# W.H. v. Com. of PA and PSP

> Commonwealth Court of Pennsylvania · December 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10769759

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** December 23, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Cohn Jubelirer
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10769759

## How later opinions describe it (automated extraction)

- holding that website designer could not be made to develop a wedding website for a same sex couple as doing so would be contrary to the designer’s religious beliefs
- finding that a prohibition against employing individuals who regularly use narcotics, including methadone, did not violate equal protection
- holding a state’s redistricting of congressional districts resulted in voter dilution

## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

W.H., :
Petitioner :
:
v. : No. 352 M.D. 2021
: Submitted: October 25, 2024
Commonwealth of Pennsylvania and :
Pennsylvania State Police, :
Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: December 23, 2024

Before this Court in our original jurisdiction are W.H.’s (Petitioner), pro se,
Petition for Review1 (Petition) challenging the constitutionality of Pennsylvania’s
Sexual Offender Registration and Notification Act2 (SORNA) and an Application

1
The document Petitioner filed was named “Motion for Temporary Restraining Order
Leading to Permanent Injunction to Cease and Desist Any and All Further Sex Offender
Registrations Under Commonwealth and Federal Laws As being Federally Unconstitutional,”
which the Court treated as a Petition for Review directed to its original jurisdiction pursuant to
Section 761 of the Judicial Code, 42 Pa.C.S. § 761, and Pennsylvania Rule of Appellate Procedure
1502, Pa.R.A.P. 1502.
2
42 Pa.C.S. §§ 9799.10-9799.42, 9799.51-9799.75. The previous version of SORNA was
originally enacted on December 20, 2011, effective December 20, 2012. See Act of December 20,
2011, P.L. 446, No. 111, § 12, effective in one year or December 20, 2012 (SORNA I). SORNA I
was amended on July 5, 2012, also effective December 20, 2012, see Act of July 5, 2012, P.L. 880,
No. 91, effective December 20, 2012 (Act 91 of 2012), and amended on February 21, 2018,
effective immediately, known as Act 10 of 2018, see Act of February 21, 2018, P.L. 27, No. 10,
§§ 1-20, effective February 21, 2018 (Act 10 of 2018), and, lastly, reenacted and amended on June
12, 2018, P.L. 140, No. 29, §§ 1-23, effective June 12, 2018 (Act 29 of 2018). Acts 10 and 29 of
2018 are generally referred to collectively as SORNA II. Through Act 10, as amended in Act 29,
the General Assembly split SORNA I’s former Subchapter H into a revised Subchapter H and
(Footnote continued on next page…)
for Summary Relief3 (Application). Petitioner argues SORNA violates the due
process clauses and equal protection clauses of the United States and Pennsylvania
Constitutions, found, respectively, in the Fourteenth Amendment, U.S. CONST.
amend. XIV, and article I, sections 1 and 26, PA. CONST. art. I, §§ 1, 26. Based on
our Supreme Court’s recent decision in Commonwealth v. Torsilieri, 316 A.3d 77
(Pa. 2024) (Torsilieri II), Petitioner cannot establish a clear right to judgment as a
matter of law and, therefore, we deny the Application.

I. THE PLEADINGS
At the time of filing of the Petition, Petitioner was an inmate at Cumberland
County Prison serving the remainder of a federal sentence. (Petition at 2.) In
Petitioner’s later filed “Motion for Immediate Hearing on Petition and Rule to Show
Cause” (Motion),4 he explains that he was previously at a halfway house in
Harrisburg at which time Petitioner was taken to a Pennsylvania State Police (PSP)
barracks to register as a sex offender. (Motion ¶ 4.) After violating the halfway
house’s rules, Petitioner was transferred to the Cumberland County Prison to serve
the remainder of his sentence. (Id. ¶ 5.) With the assistance of Cumberland County
Prison staff, Petitioner changed his address with PSP to that of the prison and his

Subchapter I. Subchapter I of SORNA II applies to sexual offenders who committed an offense
on or after April 22, 1996, but before December 20, 2012, whose registration period under a prior
act had not yet expired. See 42 Pa.C.S. §§ 9799.51-9799.75. Revised Subchapter H of SORNA II
applies to offenders who committed an offense on or after December 20, 2012. See 42 Pa.C.S.
§§ 9799.10-9799.42.
3
Petitioner titled his Application as a “Motion for Summary Judgment Pursuant to
Pennsylvania Rule of Civil Procedure 1035.2,” which this Court treats as an application for
summary relief under Pennsylvania Rule of Appellate Procedure 1532(b), Pa.R.A.P. 1532(b) (“At
any time after the filing of a petition for review in an appellate or original jurisdiction matter, the
court may on application enter judgment if the right of the applicant thereto is clear.”).
4
The Court denied the Motion on January 11, 2022, because the pleadings were not closed
and no application for relief was pending at that time.

2
employment status to unemployed as required by SORNA. (Id. ¶ 6.) Petitioner then
filed the instant Petition seeking a “temporary restraining order” ordering the PSP
“to cease and desist its federally un-constitutional actions of registration and
publication of sex offender’s information on the [PSP] website, immediately, and
remove the contents of the website from public view forever in the future.”5 (Petition
at 2.)
Petitioner avers that the registration requirements and publication of
information under SORNA violates the due process clauses of both the United States
Constitution and the Pennsylvania Constitution, specifically article I, sections 1 and
26 of the Pennsylvania Constitution. (Petition ¶ 3.) Petitioner argues that sexual
offenders are a “politically unpopular group” and that the United States Supreme
Court has ruled that a state’s laws cannot aim to “harm a politically unpopular
group.” (Id. (citing U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)).)
Petitioner expands upon the Petition, explaining that this notion has protected several
“politically unpopular groups” from harmful legislation, and “this logic” is “not out
of line and in accord” for sexual offenders as well. (Motion ¶ 17.) Petitioner
explains that he has several college degrees, including a graduate degree in business,
several educational certificates, and two apprenticeships with the United States
Department of Labor, and he could not obtain a professional position while at the
halfway house in Harrisburg. (Id. ¶ 20.) Petitioner believes that his designation as
a sexual offender prevented him from obtaining a professional position, resulting in
irreparable harm. (Id.)
The Commonwealth of Pennsylvania (Commonwealth) and PSP (together,
Respondents) filed an Answer and New Matter. Respondents generally aver that the

5
The Petition was initially filed with the Court of Common Pleas of Cumberland County,
which transferred it to this Court.

3
Petition contains conclusions of law that do not require a response and generally
deny any factual averments made to the extent that Petitioner presented any. In their
New Matter, Respondents explain that Petitioner is subject to the amendments in
SORNA, the amendments do not constitute criminal punishment but rather create a
civil registration system, and neither they, nor the courts, have the authority to alter
the requirements set forth therein. (New Matter ¶¶ 3-5 (citing 42 Pa.C.S.
§ 9799.23(b)(2) (prohibiting judicial alterations to the registration requirements)).)
Further, Respondents assert that Petitioner has not provided any evidence to “rebut
the presumption that adult sexual offenders have a high rate of recidivism” and that
the registration and publication requirements are narrowly tailored to address that
risk thereby making them constitutional. (Id. ¶¶ 7, 21.) They also assert these
requirements are mandated by federal law, namely the Adam Walsh Child Protection
and Safety Act of 20066 (Adam Walsh Act), and the Commonwealth risks its
ongoing receipt of federal funding if the requirements are not present. (Id. ¶¶ 8-13.)
According to Respondents, the Petition fails to state a claim upon which relief can
be granted because SORNA does not violate the United States or Pennsylvania
Constitutions. (Id. ¶¶ 15, 18.) Respondents also contend that Petitioner’s claims are
barred by res judicata, laches, collateral estoppel, and sovereign immunity. (Id.
¶¶ 16-17, 19-20.)
Petitioner filed an Answer to the New Matter, observing that Respondents did
not address his claim that the legislature cannot pass legislation with the intent to
harm an unpopular group as set forth in Moreno, which includes sexual offenders as
recognized in Commonwealth v. Torsilieri, 232 A.3d 567, 596 (Pa. 2020)

6
34 U.S.C. §§ 20901-20962.

4
(Torsilieri I).7 (Petitioner’s Answer to New Matter ¶¶ 1-6.) Relying on language
from Torsilieri I and Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), as well
as new statistics, Petitioner maintains the recidivism risk is not nearly as high as
presumed and that his recidivism risk is very low as determined by the Federal
Bureau of Prisons. (Id. ¶¶ 7-8, 15, 22-23, 35-36, 39.) Petitioner disputes that there
is no “punishment” purpose in SORNA because criminal sanctions are applicable if
SORNA’s requirements are not met. (Id. ¶ 16.) Petitioner contends SORNA, and
the Adam Walsh Act, reflect the legislatures’ creation of a politically unpopular
group and intent to harm that group through those statutes, which is unconstitutional
and does not reflect a legitimate government interest. (Id. ¶ 30.) As to the other
affirmative defenses raised by Respondents, Petitioner contends they are
inapplicable to the Petition.8 (Id. ¶¶ 31-32.)

II. THE APPLICATION AND PARTIES’ ARGUMENTS
Petitioner filed the Application, requesting that the Court read his pleadings
liberally and grant summary relief on his behalf based on Respondents’ lack of

7
Petitioner also notes that Respondents’ Answer and New Matter was untimely filed.
However, Pennsylvania Rule of Appellate Procedure 105(a) provides that the rules are to be
liberally applied, Pa.R.A.P. 105(a), and “this Court may accept a late pleading as justice requires
and where the opposing party suffers no prejudice,” Humphrey v. Department of Corrections, 939
A.2d 987, 991 (Pa. Cmwlth. 2007). Because Respondents’ Answer and New Matter was only two
days tardy and Petitioner has not shown he was prejudiced by that late filing, we will accept the
late filed Answer and New Matter. Id.
8
Petitioner attempts to add a new claim, a violation of article I, section 29 of the
Pennsylvania Constitution, PA. CONST. art. I, § 29, asserting that sexual offenders are “minorities”
who are being discriminated against. (Petitioner’s Answer to New Matter ¶¶ 13, 21.) However,
Petitioner does not explain how sexual offenders, as a class, fall within the protections of that
constitutional provision, which states: “Equality of rights under the law shall not be denied or
abridged in the Commonwealth of Pennsylvania because of the race or ethnicity of the
individual.” PA. CONST. art. I, § 29 (emphasis added).

5
defense or scientific evidence supporting a defense.9 (Appl. at 1 & ¶ 1.) Petitioner
reiterates that the United States Supreme Court has concluded in 26 cases that
“politically unpopular groups” are protected by the concept of equal protection and
that a legislative intent to harm such groups is not a legitimate governmental interest.
(Appl. ¶ 2(A)-(Z).) Petitioner claims these cases support his argument that SORNA
is unconstitutional.
In their brief opposing summary relief, Respondents set forth the history of
SORNA and the complex litigation leading to its current iteration. Respondents
argue that Petitioner has “abandoned any due process argument, as it is completely
absent from his Application,” and Petitioner merely cites 26 United States Supreme
Court cases that reference politically unpopular groups. (Respondents’ Brief (Br.)
at 5-6.) Respondents explain that none of the cases Petitioner cites concern sexual
offender registries, the only case that discusses sexual offenders is not relevant to
Petitioner’s arguments, and in many of those cases the petitioners were not even
granted relief. As for the alleged equal protection violation, Respondents assert
Petitioner has not shown that sexual offenders are a suspect class, nor has he shown
that he has been treated differently than similarly situated people. Therefore,
Respondents assert that the Application should be denied.
Petitioner filed a responsive brief, arguing that he cited the 26 United States
Supreme Court cases not because they applied or because the petitioners prevailed
therein, but “to show that individuals such as [] Petitioner, who represent[] the
politically unpopular minority group called ‘sex[ual] offenders’ . . . [are] similarly
situated to other racial and minority groups . . . when it comes to seeking equality
and due process.” (Petitioner’s Br. ¶ 2.) Petitioner explains that the legislature

9
Respondents did not file a cross-application for summary relief.

6
cannot desire “to harm a politically unpopular group” and that desire “cannot
constitute a legitimate governmental interest.” (Id. ¶ 3 (quoting Moreno, 413 U.S.
at 534).) Thus, as sexual offenders are politically unpopular groups, Petitioner
contends they deserve “to be given equal rights and protections.” (Id.) Petitioner
maintains “that sex[ual] offenders have one of the lowest, if not the lowest,
recidivism rate of any group of former felons over both the short term and the long
term for new sex[ual] offenses.” (Id. ¶ 4.) Although sexual offenders “may reoffend
for other types of crimes,” Petitioner argues the rate of recidivism “for another
sex[ual] offense . . . is extremely low.” (Id.) Petitioner contends that when sexual
offenders are released from prison, most “only want to attempt to blend back into
society as productive citizens, but the registration scheme deprives them of both
privacy and the ability to obtain good paying jobs or housing in nice neighborhoods,
as a continual shunning of them by society today.” (Id. ¶ 6.) Petitioner further argues
that “sex[ual] offender [registration] statutes resemble probation.” (Id. ¶ 8 (citing
Lacombe, 234 A.3d at 627 (Mundy, J., concurring)).) Petitioner disputes that
SORNA has a nonpunitive purpose. (Petitioner’s Answer to New Matter ¶ 16.)
Petitioner summarizes that SORNA violates Petitioner’s right to “reputation[]” and
is thus unconstitutional. (Petitioner’s Br. ¶¶ 9, 11.)
Following the parties’ principal briefing, the Supreme Court issued its
decision in Torsilieri II, in which the Court reversed a court of common pleas’
decision and upheld the constitutionality of SORNA in the face of challenges that
the presumption that adult sexual offenders pose a higher risk of recidivism violates
due process, that SORNA’s notification and registration requirements infringe one’s
reputational interests in violation of substantive due process, and that those
requirements are punitive in nature. The Court permitted the parties to file

7
supplemental memoranda of law to address Torsilieri II and the impact, if any, that
decision has on the claims here. Petitioner did not file a supplemental memorandum
of law. Respondents did so, in which it reiterated that Petitioner’s arguments are
conclusory and that if Petitioner has not abandoned his due process argument by not
asserting it in the Application, Torsilieri II has effectively disposed of that issue by
rejecting the appellee’s substantive due process challenge to SORNA there.

III. DISCUSSION
Petitioner seeks summary relief on his claims that SORNA violates due
process and equal protection and that, for this reason, he should not be required to
register as a sexual offender. An application for summary relief may be filed
pursuant to Pennsylvania Rule of Appellate Procedure 1532(b), Pa.R.A.P. 1532(b),
at any time after the filing of a petition for review. Summary relief is properly
granted where “the pleadings, depositions, answers to interrogatories, and
admission[s] on file, together with the affidavits, if any, show that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a matter of
law.” Ducjai v. Dennis, 656 A.2d 102, 113 (Pa. 1995). Summary relief “will be
denied where material facts are in dispute[,] or the applicant is not clearly entitled to
judgment as a matter of law.” Allen v. Pa. Bd. of Prob. & Parole, 207 A.3d 981,
984 n.4 (Pa. Cmwlth. 2019). “The record must be viewed in the light most favorable
to the nonmoving party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.” Marks v. Tasman, 589
A.2d 205, 206 (Pa. 1991). Summary relief may be entered only in those cases where
the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562
A.2d 279, 280 (Pa. 1989).

8
Reviewing Petitioner’s filings, it is difficult to discern the specific bases on
which he is asserting his constitutional challenges. While Petitioner cites 26 United
Supreme Court cases for the principle that a legislature’s intent to harm or punish a
politically unpopular group cannot be a legitimate governmental interest that will
defeat an equal protection challenge, and analogizes sexual offenders to the groups
at issue in those cases,10 he also acknowledges that the comparison group did not

10
Kincaid v. Williams, 600 U.S. __, 143 S.Ct. 2414 (2023) (denying certiorari in case
involving gender dysphoria and a suit against a county sheriff for not providing accommodations
at a detention center relating to that condition); 303 Creative LLC v. Elenis, 600 U.S. 570 (2023)
(holding that website designer could not be made to develop a wedding website for a same sex
couple as doing so would be contrary to the designer’s religious beliefs); Bostock v. Clayton
County, Georgia, 590 U.S. 644 (2020) (holding that it was unlawful for an employer to
discriminate against employees based on being homosexual or transgender); Gundy v. United
States, 588 U.S. 128 (2019) (holding that a provision of the Adam Walsh Act that authorized the
United States Attorney General to specify that act’s registration requirements to sexual offenders
who were convicted of sex offenses prior to its enactment did not violate the nondelegation
doctrine); Trump v. Hawaii, 585 U.S. 667 (2018) (reversing preliminary injunction against
implementation of Presidential Proclamation that prohibited entry to the United States by foreign
nationals from six predominantly Muslim countries); Whole Woman’s Health v. Hellerstedt, 579
U.S. 582 (2016) (holding state law requiring abortion providers to have admitting privileges to a
hospital within 30 miles of their abortion facility and for such facility to meet the standards for
ambulatory surgical centers was unconstitutional), overruled in part by Dobbs v. Jackson Women’s
Health Org. 597 U.S. 215 (2022); United States v. Windsor, 570 U.S. 744 (2013) (upholding
determination that exclusion from spousal deduction for federal estate tax purposes of same sex
spouses was unconstitutional); League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006)
(holding a state’s redistricting of congressional districts resulted in voter dilution); Lawrence v.
Texas, 539 U.S. 558 (2003) (striking as unconstitutional a state law making it a crime for people
of the same sex to engage in certain intimate sexual conduct); Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) (suit by state employees with disabilities claiming discrimination based on
their disabilities and seeking money damages found to be barred by Eleventh Amendment, U.S.
CONST. amend. XI, state immunity); Reno v. American-Arab Anti-Discrimination Comm., 525
U.S. 471 (1999) (concluding federal courts lacked jurisdiction over suit by resident aliens
challenging their being targeted for deportation based on their membership to a pro-Palestinian
group in violation of the United States Constitution); Printz v. United States, 521 U.S. 898 (1997)
(holding requiring county sheriffs to perform background checks for firearms under federal law
was unconstitutional for violating sovereignty principles); Romer v. Evans, 517 U.S. 620 (1996)
(holding state constitutional amendment prohibiting legislative, executive, or judicial action
(Footnote continued on next page…)

9
always win and “not all of [those cases] apply in this case.” (Petitioner’s Br. ¶¶ 2-
3, 10; Appl. ¶ 2; Petition at 2-4.) Petitioner also appears to challenge the universality
of the presumption that sexual offenders have a high rate of reoffense and the alleged
nonpunitive nature of SORNA, and additionally argues that his right to reputation is

designed to protect homosexual persons from discrimination violates equal protection); Lyng v.
Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW, 485 U.S. 360
(1988) (holding statute precluding eligibility for or increase in food stamps for households in
which a union member is on strike did not violate equal protection and freedom of association
principles); Lyng v. Castillo, 477 U.S. 635 (1986) (determining the statutory distinction between
parents, children, and siblings, and all other groups of individuals, the latter of which receive less
food stamp benefits did not violate due process); Wright v. New Jersey, 469 U.S. 1146 (1985)
(dismissal of appeal from state supreme court decision upholding a state criminal statute relating
to the carrying of an “exacto” knife against a vagueness challenge for want of federal question);
City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432 (1985) (upholding finding a local
zoning ordinance unconstitutional on equal protection grounds where it required a special use
permit for a group home for individuals with mental retardation as it was based on an irrational
prejudice against those individuals); Rhodes v. Chapman, 452 U.S. 337 (1981) (upholding prison
policy relating to double celling inmates against a challenge brought by prisoners claiming it
constituted cruel and unusual punishment); New York City Transit Auth. v. Beazer, 440 U.S. 568
(1979) (finding that a prohibition against employing individuals who regularly use narcotics,
including methadone, did not violate equal protection); Mathews v. Diaz, 426 U.S. 67 (1976)
(holding requirement of permanent resident status and length of residence status for eligibility for
Medicare Part B supplemental insurance did not violate due process); Weinberger v. Salfi, 422
U.S. 749 (1975) (upholding statutory provision limiting Social Security widow’s benefit and
stepchildren’s benefit to those in that relationship with a deceased wage earner for more than nine
months before his death against due process challenge); Johnson v. Robison, 415 U.S. 361 (1974)
(holding system of veterans’ education benefits that excluded conscientious objectors did not
violate their rights of religious freedom and equal protection); Moreno, 413 U.S. 528 (statute
excluding from participation in the food stamp program households in which a member is
unrelated to the other members unconstitutional violated equal protection by creating an irrational
classification); New York State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405 (1973) (recipients of
public assistance benefit challenged state work requirements as being preempted by federal work
requirements and the court found no preemption); U.S. v. 12 200-Ft. Reels of Super 8mm. Film,
413 U.S. 123 (1973) (decision upholding the constitutionality of statute prohibiting the importation
of obscene matter and forfeiture of such matter against freedom of constitutional speech
challenge); and Jefferson v. Hackney, 406 U.S. 535 (1972) (holding a state system’s allocation of
benefits for one program, used more by minorities, that differed from other programs, did not
violate equal protection). Many of the references to politically unpopular groups or minorities
occurred in the dissenting or concurring opinions.

10
infringed by SORNA. (Petitioner’s Br. ¶¶ 4, 8,11; Petitioner’s Answer to New
Matter ¶¶ 4-8, 12-16, 21-24, 29-30, 35-36, 39.) Upon review, Petitioner has not
established an “entitle[ment] to judgment as a matter of law,” Ducjai, 656 A.2d at
113, particularly after the Supreme Court upheld the constitutionality of Subchapter
H of SORNA in Torsilieri II.11
Statutes carry “a strong presumption of constitutionality, which will not be
overcome unless the legislation is ‘clearly, palpably and plainly’ in violation of the
Constitution.” Torsilieri II, 316 A.3d at 86. The “party challenging legislation as
unconstitutional bears a heavy burden, and all doubts are to be concluded in favor of
a finding of constitutionality.” Id. In examining “constitutional challenges to
legislative enactments, we are ever cognizant that ‘the General Assembly may enact
laws which impinge on constitutional rights to protect the health, safety, and welfare
of society,’ but also that ‘any restriction is subject to judicial review to protect the
constitutional rights of all citizens.’” Id at 91 (quoting In re J.B., 107 A.3d 1, 14
(Pa. 2014)).
In Torsilieri II, our Supreme Court rejected claims, like those Petitioner
appears to assert here, that Subchapter H of SORNA violates the constitutional rights
of registrants, including their due process right to their reputation, through the use
of an irrebuttable presumption and the registration and publication requirements.
That Court found the reputational challenge based on the registration and publication
requirements to be synonymous with the challenge to the irrebuttable presumption
that sexual offenders pose a high risk of reoffense, reasoning that the two were
“inextricably intertwined,” and analyzed the two as one. Torsilieri II, 316 A.3d at
89, 92. The language at issue in both Torsilieri II and here is the General Assembly’s

11
The Supreme Court upheld the constitutionality of Subchapter I in Lacombe, 234 A.3d
602.

11
finding that “[s]exual offenders pose a high risk of committing additional sexual
offenses and protection of the public from this type of offender is a paramount
governmental interest.” 42 Pa.C.S. § 9799.11(a)(4).
In concluding that this presumption, “which largely undergirds the criminal
justice system’s treatment of sex offenders,” was not impermissible, the Supreme
Court examined the history and current iteration of that doctrine, the evidence
presented before the trial court, and the purpose and legislative intent behind
SORNA. Torsilieri II, 316 A.3d at 79-80, 92-100. The high court reasoned that
“[t]o overturn the legislative presumption that sex offenders are more likely as a
group to commit new sex offenses,” Torsilieri was “required to establish that there
exists a scientific consensus that sexual offenders pose no greater risk of committing
additional sexual crimes than other groups not subject to similar registration laws.”
Id. at 98-99. However, Torsilieri’s own experts had conceded that “adult sexual
offenders reoffend at a rate of at least three times higher than other individuals
convicted of non-sexual offenses.” Id. at 99. Because this evidence supported,
rather than refuted, the presumption, the Court concluded that Torsilieri did not meet
“his heavy burden to demonstrate that the irrebuttable presumption at issue was
constitutionally infirm.” Id. at 100. Based on the Supreme Court’s determination in
Torsilieri II that Subchapter H of SORNA is not unconstitutional for the above
reasons, which are the same as some of those Petitioner asserts in his filings,
Petitioner has not clearly and without doubt established that he has a clear right to
judgment as a matter of law on those claims. Ducjai, 656 A.2d at 113; Musser, 562
A.2d at 280.
Petitioner’s claim challenging the alleged nonpunitive nature of SORNA fairs
no better under Torsilieri II. The second issue in Torsilieri II was Torsilieri’s claim

12
that the registration and notification requirements were punitive in nature and
unconstitutional for, among other reasons, being cruel and unusual in violation of
the Eighth Amendment to the United States Constitution, U.S. CONST., amend. VIII.
316 A.3d at 100. The Court analyzed this question using the Mendoza-Martinez
factors outlined in the United States Supreme Court decision of Kennedy
v. Mendoza-Martinez, 372 U.S. 144 (1963). After examining Subchapter H,
including changes that had been made to SORNA after it had previously been found
to be punitive in nature and an unconstitutional ex post facto law in part by our
Supreme Court in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality),
and balancing the Mendoza-Martinez factors, the Court reached the opposite
conclusion in Torsilieri II, 316 A.3d at 109-10. It concluded that Torsilieri had “not
me[]t his heavy burden, by the clearest of evidence, to rebut the General Assembly’s
stated non[]punitive purpose” for Subchapter H of SORNA. Id. See also Lacombe,
234 A.3d at 609 (holding Subchapter I was not punitive). Thus, to the extent
Petitioner’s filings can be read as asserting that Subchapter H (or SORNA as a
whole) is punitive in nature, he has not clearly and without doubt established that he
has a clear right to judgment as a matter of law on those claims, Ducjai, 656 A.2d at
113; Musser, 562 A.2d at 280, given our Supreme Court’s contrary conclusion.
This leaves Petitioner’s contention that SORNA is unconstitutional because a
legislature’s intent to harm a politically unpopular group or minority, which he
maintains SORNA is intended to do, is not a legitimate governmental interest that
can allow for the disparate treatment of individuals. “Equal protection is the
constitutional principle that ‘like persons in like circumstances will be treated
similarly’ under the law.” M.T. v. Pa. State Police, 298 A.3d 466, 472 (Pa. Cmwlth.
2023) (quoting Doe v. Miller, 886 A.2d 310, 315 (Pa. Cmwlth. 2005)). The Equal

13
Protection Clause of the Fourteenth Amendment to the United States Constitution
provides: “No State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. CONST., amend. XIV. Article I, sections 1 and 26 of
the Pennsylvania Constitution provide the basis for equal protection under state law.
PA. CONST. art. I, § 1 (“All men are born equally free and independent, and have
certain inherent and indefeasible rights.”); PA. CONST. art. I, § 26 (“Neither the
Commonwealth nor any political subdivision thereof shall deny to any person the
enjoyment of any civil right, nor discriminate against any person in the exercise of
any civil right.”). The equal protection provisions of the Pennsylvania Constitution
are analyzed “under the same standards used by the United States Supreme Court
when reviewing equal protection claims under the Fourteenth Amendment . . . .”
Love v. Borough of Stroudsburg, 597 A.2d 1137, 1139 (Pa. 1991).
The right to equal protection under the law does not prohibit the
Commonwealth from classifying individuals for the purpose of different treatment,
and it does not require equal treatment of people having different circumstances.
Curtis v. Kline, 666 A.2d 265, 267-68 (Pa. 1995) (citations omitted). “In general,
economic and social legislation, including legislation creating classifications or
categories among criminal offenders, receives rational basis review.” Jackson
v. Commonwealth, 143 A.3d 468, 474 (Pa. Cmwlth. 2016). The rational basis test
requires a two-step analysis: the Court first determines whether the challenged
statute seeks to promote a legitimate state interest and, if it does, then the legislative
classification must be found reasonably related to accomplishing that articulated
state interest. Kramer v. Workers’ Comp. Appeal Bd. (Rite Aid Corp.), 883 A.2d
518, 534 (Pa. 2005).

14
Petitioner is correct that the United States Supreme Court has held that “the
Constitution’s guarantee of equality must at the very least mean that a bare
congressional desire to harm a politically unpopular group cannot constitute a
legitimate governmental interest.” Moreno, 413 U.S. at 534 (emphasis added).
However, Petitioner’s premise that the intent behind SORNA is to harm or punish
sexual offenders is flawed, as it has been rejected by our own Supreme Court in
Torsilieri II, 316 A.3d at 109-10 (Subchapter H), and Lacombe, 234 A.3d at 626-
27 (Subchapter I). As the Court stated in Torsilieri II, “Subchapter H offer[s] a
valid nonpunitive purpose of informing and protecting the public” from sexual
offenders, 316 A.3d at 109-10 (emphasis added), and in Lacombe, “the purpose of
Subchapter I is to ‘[p]rotect the safety and general welfare of the people of this
Commonwealth by providing for registration, community notification and access to
information regarding sexually violent predators and offenders who . . . and will live
in or near their neighborhood,’” which was a nonpunitive purpose, 234 A.3d at 618,
626-27 (citing 42 Pa.C.S. § 9799.51(b)(1)) (emphasis added). These do not reflect
that SORNA’s purpose was a “bare congressional desire to harm” sexual
offenders, Moreno, 413 U.S. at 534 (emphasis added), and Petitioner’s reliance on
Moreno to argue that there is no legitimate governmental interest for SORNA is
misplaced.
Upon review of the purpose stated by the General Assembly, and recognized
by our Supreme Court, we cannot say that the goal of promoting community safety
is not a legitimate state interest, particularly given the recent decision in Torsilieri II
upholding the presumption that sexual offenders have a high risk of reoffense.
Turning to the second factor of the equal protection analysis, we also cannot say that
SORNA’s registration and notification requirements do not bear a “rational

15
relationship to the stated goal of promoting community safety” and are not aimed at
achieving that purpose. Torsilieri II, 316 A.3d at 109. See also Lacombe, 234 A.3d
at 609 (holding that “Subchapter I is narrowly tailored to its nonpunitive purpose of
protecting the public”). Therefore, Petitioner has not clearly and without doubt
established that he has a clear right to judgment as a matter of law on his equal
protection claims, Ducjai, 656 A.2d at 113; Musser, 562 A.2d at 280.

IV. CONCLUSION
For the forgoing reasons, Petitioner has not met his burden of proving his
entitlement to summary relief on any of his claims challenging the constitutionality
of SORNA. Therefore, Petitioner’s Application is denied.

_____________________________________
RENÉE COHN JUBELIRER, President Judge

16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

W.H., :
Petitioner :
:
v. : No. 352 M.D. 2021
:
Commonwealth of Pennsylvania and :
Pennsylvania State Police, :
Respondents :

ORDER

NOW, December 23, 2024, the “Motion for Summary Judgment Pursuant to
Pennsylvania Rule of Civil Procedure 1035.2,” filed by Petitioner W.H., which this
Court treats as an Application for Summary Relief under Pennsylvania Rule of
Appellate Procedure 1532(b), Pa.R.A.P. 1532(b), is DENIED.

____________________________________
RENÉE COHN JUBELIRER, President Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10769759. Public record. Not legal advice.