The opinion
J-S27035-24
2025 PA Super 27
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALLACE ROSS, :
:
Appellant : No. 1924 EDA 2023
Appeal from the Judgment of Sentence Entered June 4, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009862-2014
BEFORE: LAZARUS, P.J., NICHOLS, J., and STEVENS, P.J.E. *
OPINION BY STEVENS, P.J.E.: FILED JANUARY 30, 2025
Appellant, Wallace Ross, appeals from the judgment of sentence entered
in the Court of Common Pleas of Philadelphia County after a jury found him
guilty of rape and related crimes. Herein, he raises challenges to the
admission of inculpatory statements made to a police officer and to his
requirement to register as a sex offender pursuant to Subchapter H of the
Sexual Offender Registration and Notification Act (“SORNA”). We affirm.
The trial court sets forth the pertinent facts and procedural history, in
relevant part:
In the early morning hours of August 13, 2014, Appellant entered
the bedroom of his fifteen-year-old foster daughter, [hereinafter,
“Victim”], and sexually assaulted her. Appellant’s adult daughter,
[], caught Appellant exiting Victim’s room and immediately alerted
Denise Ross, Appellant’s wife and Victim’s foster mother. Denise
and [her adult daughter] then expelled Appellant from the home
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* Former Justice specially assigned to the Superior Court.
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and called the police, who escorted Victim to the Special Victims
Unit (“SVU”).
After leaving the home, Appellant called his longtime friend and
fellow minister, Pastor Thomas Reese, who directed Appellant to
meet him at Pastor Reese’s church. Pastor Reese then called a
mutual friend, Philadelphia Police Officer Yusef Jackson and asked
him to join Pastor Reese and Appellant at the church. Appellant,
Pastor Reese, and Officer Jackson[, all of whom are pastors at
their church,] subsequently had a brief conversation in which
Appellant confessed that he had “fondled” Victim. Officer Jackson
then drove Appellant to SVU so that he could turn himself in.
Appellant was arrested and charged with Rape, Unlawful Contact
with a Minor, Endangering Welfare of Children, Corruption of
Minors, Indecent Assault, and Incest.
...
On November 23, 2015, Laurie Jubelirer, Esquire, entered her
appearance as Appellant’s counsel. Appellant’s matter was
reassigned to the Honorable Roger F. Gordon on November 4,
2016. On December 29, 2016, Appellant filed through counsel an
omnibus pretrial motion seeking to suppress the statements that
Appellant gave to Pastor Reese and Officer Jackson on the basis
that they were obtained in violation of Appellant’s constitutional
rights after Appellant was not adequately informed of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966).
On April 25, 2017, Appellant filed through counsel a supplemental
omnibus pretrial motion, renewing his Miranda claim and
additionally moving to suppress his statements to Pastor Reese as
confidential communications to a clergyman . . . .[1] [2]
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1 Omitted from the trial court’s chronological statement of procedural history,
and relevant to the present appeal, is Judge Gordon’s August 1, 2017, status
listing on the docket stating, “Necessary witness on motion to suppress
statement not present today. Motion to suppress statement remains
outstanding.” See Docket Entries ##121-126, dated from 8/1/2017 to
8/28/2017.
(Footnote Continued Next Page)
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On December 6, 2017, Judge Gordon permitted Appellant to
proceed pro se with Ms. Jubilerer serving as backup counsel in the
event that Appellant could not retain private counsel.
...
On April 19, 2018, Judge Campbell ordered that Ms. Jubelirer be
attached as Appellant’s counsel for his forthcoming jury trial. On
April 26, 2018, Judge Campbell granted the Commonwealth’s
motion to revoke Appellant’s bail.
On May 10, 2018, Judge Campbell ordered that Ms. Jubelirer be
removed as Appellant’s counsel and appointed Jason Kadish, [3]
Esquire, to represent Appellant. Over the next two (2) years,
Appellant’s matter was continued several times and reassigned to
several different Court of Common Pleas judges. . . . On
September 21, 2020, Mr. Kadish filed a motion in limine on
Appellant’s behalf seeking to preclude [as privileged confessional
communications to clergy] the statements Pastor Reese made to
Officer Jackson regarding Appellant’s assault of D.R. and the
statements Appellant himself provided to Officer Jackson at the
direction of Pastor Reese.
Appellant’s matter was reassigned to [the Honorable Charles A.
Ehrlich] on September 23, 2020. On September 30, 2020, [Judge
Ehrlich] held a motions hearing . . . [and, on] October 5, 2020, []
granted Appellant’s [counseled] motion [in limine] in part and
denied it in part, finding that the communications between
Appellant and Pastor Reese prior to Officer Jackson’s arrival were
privileged and inadmissible at Appellant’s trial. [Judge Ehrlich]
ruled, however that the statements made after Officer Jackson’s
arrival would be admissible, finding that the [clerical] privilege no
longer existed at that point. N.T., 10/5/2020, at 3-7.
____________________________________________
2 The record reflects that on May 2, 2017, Judge Gordon denied Appellant’s
pro se omnibus motions except for a request for discovery of high school
records. See Docket Entries ##112-114.
3 Attorney Kadish was the fourth court-appointed counsel to represent
Appellant. This Court notes with disapproval the number of counsel who have
been appointed in the present matter.
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Appellant’s jury trial commenced before [the trial court, Judge
Ehrlich presiding] on October 7, 2020, after a jury was selected
on October 6, 2020. On October 9, 2020, after hearing all
evidence, closing arguments from counsel, and jury instructions
from [the trial court], a jury deliberated and found Appellant guilty
of Rape, Unlawful Contact with a Minor, Endangering Welfare of
Children, Corruption of Minors, Indecent Assault, and Incest. [The
trial court] ordered a presentence investigation report and a
mental health evaluation for Appellant and deferred sentencing to
a later date. N.T., 10/9/2020, at 111-116.
[At Appellant’s sentencing hearing, after considering the
presentence investigation report, the mental health evaluation,
Appellant’s prior record score, and the facts and circumstances of
his case, the trial court sentenced Appellant to an aggregate term
of twenty-seven-and-a half (27 ½) to fifty-five (55) years of
confinement, with credit for time served. The Commonwealth had
also requested that the conditions of lifetime registration, sex
offender treatment, and sex offender supervision apply, and
Appellant was advised] of the registration and reporting
requirements he was subject to under Megan’s Law due to his
Rape conviction. N.T., 6/4/2021, at 6-43.
On June 8, 2021, [Appellant filed a timely counseled post-
sentence motion challenging the weight of the evidence with
respect to his Rape conviction and contending his sentence was
unduly excessive.] Appellant’s post-sentence motion should have
been denied by operation of law on October 9, 2021, the 120 th
day after it was filed. Due to a breakdown related to limited
operations during the COVID-19 pandemic, the denial of
Appellant’s post-sentence motion was not docketed until July 10,
2023. Appellant filed a timely notice of appeal to the Superior
Court of Pennsylvania on July 11, 2023.
[Appellant’s Pa.R.A.P. 1925(b) statement of matters complained
of on appeal alleged, inter alia: that the trial court erred in denying
Appellant’s motion to apply the clergy privilege to preclude Officer
Jackson’s testimony recounting the inculpatory statements
Appellant related to him during their conversations in the church
and during the car ride to the police station; that the suppression
court erred in denying Appellant’s 2015 motion to suppress
Appellant’s statements as obtained in violation of his Miranda
rights; and that his lifetime registration under Revised Subchapter
H of SORNA constitutes an illegal sentence.]
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Trial Court Opinion, 1-11 (footnotes added).
In Appellant’s brief, he raises the following issues for this Court’s
consideration:
1. Did the Suppression court err when it denied Appellant’s pre-
trial motion seeking suppression of inculpatory statements
made to a police officer where those statements were made
while Appellant was subject to a custodial detention and police
failed to advise Appellant of his Miranda rights resulting in a
confession that was not knowing, intelligent and voluntary?
2. Did the trial court err and/or abuse its discretion when it
admitted testimony regarding inculpatory statements made by
Appellant in violation of the clergy/clerical privilege where
those statements were made to an off-duty police officer who
was conversing with Appellant “as another member of the
clergy” and where Appellant did not consent to disclosure of
the statements?
3. Should SORNA lifetime registration requirement imposed as
part of the sentence in the matter sub judice be vacated
because the SORNA statute is facially unconstitutional?
Brief of Appellant, at 7-8.
In Appellant’s first issue on appeal, he challenges the purported denial
of the Miranda claim he raised in his 2017 counseled motion to suppress.4
____________________________________________
4 Appellant also asserts that the trial court violated Pa.R.Crim.P. 581(I) when
it failed to issue an opinion setting forth findings of fact and conclusions of law
supporting a decision to deny Appellant’s Miranda claim. See Appellant’s
Brief at 25-26. As discussed infra, the record belies this basis of this assertion,
as the trial court never denied the Miranda claim raised in Attorney Jubelirer’s
2017 Supplemental omnibus pretrial motion to suppress, and subsequent
counsel, Attorney Jason Kadish, indicated during the October 2, 2020,
suppression hearing that he was not seeking suppression of Appellant’s
statements based on a Miranda challenge. Therefore, we discern no merit to
Appellant’s Rule 581(I)-based argument.
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Our standard of review for an order denying a motion to suppress is well-
established.
[We are] limited to determining whether the suppression court's
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when read
in the context of the record as a whole. Where the suppression
court's factual findings are supported by the record, we are bound
by these findings and may reverse only if the court's legal
conclusions are erroneous. Where, as here, the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court's legal conclusions are not
binding on an appellate court, “whose duty it is to determine if the
suppression court properly applied the law to the facts.” Thus,
the conclusions of law of the courts below are subject to our
plenary review.
Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019), quoting
Commonwealth v. Kemp, 195 A.3d 269, 275 (Pa. Super. 2018).
As noted in the above summary of procedural history, the trial court
entered a May 2, 2017, order denying generally Appellant’s pro se omnibus
motion to suppress, except for a request for discovery of his daughter’s high
school records pertaining to unrelated allegations of sexual assault she had
made. The trial court did not, however, enter an order denying the April 25,
2017, counseled “Supplemental Omnibus Pretrial Motion” filed by Attorney
Jubelirer seeking suppression of, inter alia, Appellant’s statements given to
Officer Jackson without having first received Miranda warnings. See
Supplemental Omnibus Pretrial Motion, 4/25/2017, at 2-3. Rather, the trial
court observed in multiple docket entries beginning on August 1, 2017, that
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because a necessary witness was not available the motion to suppress
Appellant’s statement “remains outstanding.” See fn. 1, supra.
An opportunity to advance the unresolved, “outstanding” Miranda
challenge presented itself several years later at the October 2, 2020, hearing
on the counseled motion in limine to bar the same statements under the clergy
privilege. During argument, Judge Ehrlich asked Attorney Kadish to expound
also on the interaction and communications between Appellant and Officer
Jackson. Counsel indicated, however, that he was not pursuing a Miranda
claim as a basis for suppression of Appellant’s statements because he viewed
Appellant’s interaction with Officer Jackson as voluntary. See N.T.,
10/2/2020, at 48-49.5
____________________________________________
5 During oral argument on Appellant’s counseled pretrial motion to suppress
Appellant’s statements under the clergy privilege, counsel for Appellant
advanced the argument that Pastor Reese divulged to Officer Jackson
privileged communications by Appellant made to Pastor Reese during a
spiritual consultation. Specifically, when Officer Jackson arrived at the church
he sat down and, wanting to know why he had been called by the two men at
1:30 am, asked, “What happened?” Pastor Reese replied, “I think he fondled
his foster daughter.” From there, Appellant offered inculpatory statements in
his explanation of events that occurred earlier that evening during his
interaction with D.R. According to defense counsel, Appellant’s statements
were inadmissible “fruit of the poisonous tree” that would not have been
shared if not for Pastor Reese’s improper divulgence of privileged confessional
communications.
Near the completion of argument on this distinct evidentiary challenge,
however, the trial court asked defense counsel if there is a separate challenge
focused, instead, on Appellant’s statements made to Officer Jackson directly.
Defense Counsel replied that he elected against raising a Miranda challenge
in this regard based on his determination that Appellant interacted voluntarily
with his colleague Officer Jackson:
(Footnote Continued Next Page)
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“Issues not raised in the trial court are waived and cannot be raised for
the first time on appeal.” Pa.R.A.P. 302(a). “[A]ppellate review of an order
denying suppression is limited to examination of the precise basis under which
suppression initially was sought; no new theories of relief may be considered
____________________________________________
The Court: Okay. But what about Officer Jackson who
hears certain things directly?
I understand what your argument is about,
Pastor Thomas Reese, Mr. Reese, or whatever
we’re calling him. But what about Officer
Jackson?
Counsel: Well, er to, it’s that with Officer Jackson, like I
said, it breaks into two things. What’s said
when he [Appellant] is in the car with Officer
Jackson, look, he’s there voluntarily. I didn’t
make any motion under Miranda or anything
else like that because it’s clearly not that type
of situations. It’s a rather unique factual
situation and I don’t believe that argument fits.
I think when all three of them are together at
the church – you know, I think it’s also
interesting and clear that Officer Jackson, their
relationship, they know each other, too. And
Officer Jackson obviously was involved in the
spiritual radio show, which led to all of the
parties being familiar with one another. But,
you know, if anything, I don’t really have much
of an argument when they’re in the car driving
over to Special Victim’s Unit then because
Pastor Reese isn’t there. They’re clearly on their
way and he’s voluntarily driving over to turn
himself in.
N.T., 10/2/2020, at 48-49.
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on appeal.” Commonwealth v. Howard, 326 A.3d 474, 2024 WL 4003307
(non-precedential decision) (Pa. Super. filed August 30, 204) (quoting
Commonwealth v. Little, 903 A.2d 1269, 1272–73 (Pa. Super. 2006)).
The suppression hearing transcript shows counsel for Appellant did not
simply pass on the suppression court’s invitation to address Appellant’s
communications with Officer Jackson, he conceded that no Miranda violation
occurred because Appellant entered the communications voluntarily.
Accordingly, under governing standards of review, we find Appellant has
waived the claim underpinning his first issue. 6
In Appellant’s second issue, he asserts that the trial court erred when it
ruled against applying the clergy-communicant privilege to testimony by
Officer Jackson relating certain inculpatory statements Appellant made in his
and Pastor Reese’s presence while the three men discussed Appellant’s
admission of having committed sexual assault and what his next actions
should entail. Pennsylvania recognizes a clergy-communicant privilege
pursuant to 42 Pa.C.S.A. § 5943, which provides:
No clergyman, priest, rabbi or minister of the gospel of any
regularly established church or religious organization, except
clergymen or ministers, who are self-ordained or who are
members of religious organizations in which members other than
____________________________________________
6 We observe, further, Appellant’s acknowledgment that, “[t]o the extent that
some lapse of trial counsel deprived appellant of his right to effective
assistance at the suppression stage of this case, such claims are not presented
herein as they were not preserved, and are more properly raised in the context
of a claim under the PCRA. Such claims are best left to collateral review and
preserved for future resolution. See Commonwealth v. Holmes, 79 A.3d
562, 563-64 (Pa. 2013).”
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the leader thereof are deemed clergymen or ministers, who while
in the course of his duties has acquired information from any
person secretly and in confidence shall be compelled, or allowed
without consent of such person, to disclose that information in any
legal proceeding, trial or investigation before any government
unit.
42 Pa.C.S.A. § 5943. “Pennsylvania courts have interpreted our clergy-
communicant privilege as applying only to confidential communications
between a communicant and a member of the clergy in [the] role as confessor
or spiritual counselor.” Commonwealth v. Stewart, 547 Pa. 277, 283, 690
A.2d 195, 197-98 (1997) (internal emphasis omitted).
In Appellant’s brief, he argues for the preclusion of statements he made
to Pastor Reese and Officer Jackson during their 30-minute conversation at
their church. Specifically, Appellant argues that Officer Jackson’s own
testimony at trial in which he maintained he responded to Pastor Reese’s
request for assistance “as another member of clergy who got a phone call
from a pastor who was asking for help[,]” supports the legal conclusion that
inculpatory statements conveyed to him were privileged. We disagree.
Viewing Officer Jackson’s statement within the context of the evidentiary
record generally and his testimony specifically supports the trial court’s
conclusion that while Officer Jackson’s sense of obligation to answer Pastor
Reese’s early morning call for assistance may have stemmed from the officer’s
own religious vocation as well as from his affiliation with the pastor’s and
Appellant’s church and church radio show, his role once there was not as
Appellant’s confidential spiritual advisor but as a trusted officer of the law who
would bring Appellant to the SVU properly. Indeed, Officer Jackson testified
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that Appellant explained at the church that he agreed to call the officer for the
specific purpose of having the officer transport him to the SVU properly and
to make things easy for him. N.T., 9/30/2020, at 113. Pastor Reese
corroborated this testimony, as he, too, testified that Appellant wanted Officer
Jackson’s assistance for this reason. N.T., 10/2/2020, at 56. 7
Based on this record, the trial court ruled that the initial consultation
between only Appellant and Pastor Reese, the head of Appellant’s church,
qualified for the privilege because Appellant clearly sought confidential,
spiritual guidance in that meeting. The privilege did not apply to the
subsequent 30-minute conversation that included Officer Jackson, the trial
court determined, as Appellant had agreed to include the officer in discussions
not for spiritual or penitential reasons but for the practical purpose of involving
a trusted police officer who would bring him properly and safely to the SVU.
As we agree with the trial court’s assessment, we find Appellant’s second issue
affords him no relief.
In his final issue, Appellant challenges the legality of the sentence
imposed upon him based on the imposition of a lifetime sex offender
____________________________________________
7 Appellant attempts to ascribe a clerical role to Officer Jackson by noting how
Pastor Reese directed him to tell the officer what happened upon the officer’s
arrival. See Brief of Appellant, at 42. The record shows, however, that Pastor
Reese advised this as part of his call to Appellant to “man up” and take
responsibility, and only after Appellant had said in the officer’s presence that
he “was tired of running from this” and was “not running from these sexual
demons.” N.T., 9/30/20, at 112. As did the trial court, we view such
statements as pronouncements of Appellant’s willingness to turn himself in to
Officer Jackson in his role as police officer rather than a confession made for
the purpose of receiving spiritual guidance.
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registration requirement pursuant to Revised Subchapter H of SORNA, which
Appellant contends is facially unconstitutional because it constitutes
punishment and is based on an irrebuttable presumption that all sex offenders
are high-risk dangerous recidivists. See Brief for Appellant, at 44-59. This
argument was addressed and rejected by the Pennsylvania Supreme Court in
Commonwealth v. Torsilieri, 316 A.3d 77 (Pa. 2024).
Appellant’s claim presents a pure question of law; therefore, our
standard of review is de novo, and our scope of review is plenary. See
Torsilieri, 316 A.3d at 86. We further note
legislation carries with it a strong presumption of constitutionality,
which will not be overcome unless the legislation is clearly,
palpably and plainly in violation of the Constitution. Indeed, a
party challenging legislation as unconstitutional bears a heavy
burden, and all doubts are to be concluded in favor of a finding of
constitutionality.
Id. (quotation marks and citation omitted).
Appellant filed his brief prior to our Supreme Court’s May 31, 2024,
decision in Torsilieri, in which our Supreme Court determined that
Subchapter H of SORNA is not punitive and that its irrebuttable presumption
is constitutional. See Torsilieri, 316 A.3d at 99-100, 109-10. As Appellant’s
claims are predicated upon his argument that Subchapter H of SORNA is
punitive, Torsilieri is dispositive. Therefore, Appellant may obtain no relief
on this claim.
Judgment of sentence is affirmed.
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Date: 1/30/2025
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