Com. v. Fluelling II, M.

J-S37038-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MICHAEL FLUELLING II :

:

Appellant : No. 2986 EDA 2023

Appeal from the Judgment of Sentence Entered June 22, 2023

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0007394-2019

BEFORE: BOWES, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED APRIL 7, 2025

Michael Fluelling II (“Fluelling”) appeals from the judgment of sentence

following his jury convictions of one count each of rape of a child, involuntary

deviate sexual intercourse with a child, aggravated indecent assault of a child,

indecent assault ─ person less than 13, and corruption of minors. 1 We affirm

the convictions but vacate the judgment of sentence in part and remand for

resentencing.

We take the underlying facts and procedural history in this matter from

our review of the certified record and the trial court’s February 2024 opinion.

The charges in this matter arose from Fluelling’s repeated sexual assaults of

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1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7), 6301(a)(1)(ii).

J-S37038-24

his ten-to-twelve-year-old stepdaughter (“the victim”) from 2014 to 2017.

See Trial Court Opinion, 2/28/24, at 1.

Of pertinence to the instant appeal, at trial the victim testified, without

objection, that she was sexually abused by Fluelling. Further, the victim was

the first witness to testify about her initial disclosure of the sexual abuse to

Ms. Fyock (“Ms. Fyock”), a Children’s Hospital of Philadelphia (“CHOP”) social

worker, also without objection. See N.T., 3/14/23, at 99-101. Likewise, Dr.

Mercedes Marie Blackstone (“Dr. Blackstone”), an emergency room physician

at CHOP testified regarding her examination of the victim. See N.T.,

3/14/23, at 157-73. During her testimony, Dr. Blackstone testified, without

objection, the victim had suicidal ideation and reported, during an interview

with Courtney Fyock, Fluelling sexually assaulted her years earlier. See id.

at 166-67. Dr. Blackstone testified after the victim, but prior to Ms. Fyock.

Ms. Fyock testified part of her role at CHOP was to assess children with

behavioral or mental health issues, as well as suspected child abuse and

neglect. See N.T., 3/15/23, at 7. She stated that, during a one-on-one

interview with the victim, the victim began crying and disclosed Fluelling’s

sexual abuse. See id. at 9-10.

Following trial, the jury convicted Fluelling of the above-cited offenses.

The trial court subsequently sentenced Fluelling to an aggregate term of

twenty-seven to fifty-four years in prison to be followed by sixteen years of

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probation.2 The court also ordered Fluelling to comply with lifetime

registration requirements under Revised Subchapter H of the Sexual Offender

Registration and Notification Act (“SORNA”).3 Fluelling filed a timely post-

sentence motion, which the trial court denied. This appeal followed. 4

On appeal, Fluelling raises three issues for our review:

I) Whether the trial court erred by allowing a social worker

to testify to the [victim’s] out-of-court statements implicating []

Fluelling since the statements do not qualify under the medical

diagnosis or treatment exception to the rule against hearsay?

II) Whether the imposition of sexual offender registration is

illegal, and [] Fluelling is entitled to less restrictive Subchapter I

requirements since the jury never made any offense date findings,

and in any event, Subchapter H’s more restrictive requirements

are unconstitutional?

III) Whether the forty-three-year total sentence for rape

(count nine) is illegal since it exceeds the applicable forty-year

statutory maximum?

Fluelling’s Brief at 5 (italicization omitted).

Fluelling’s first issue asserts the admission of hearsay. The admissibility

of evidence

is a matter for the discretion of the trial court and a ruling thereon

will be reversed on appeal only upon a showing that the trial court

committed an abuse of discretion. An abuse of discretion may not

be found merely because an appellate court might have reached

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2 The court’s sentence included a twenty- to forty-year term of imprisonment

for rape of a child followed by three years of consecutive probation. See Trial

Court Opinion, 2/28/24, at 3.

3 See 42 Pa.C.S.A. §§ 9799.10-9799.42.

4 Fluelling and the trial court complied with Pa.R.A.P. 1925.

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a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support so as to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (internal

quotation marks and citations omitted). The Pennsylvania Rules of Evidence

provide “[a]ll relevant evidence is admissible, except as otherwise provided

by law. Evidence that is not relevant is not admissible.” Pa.R.E. 402.

In addition,

[h]earsay is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.

Johnson, 42 A.3d at 1035 (internal quotation marks and citations omitted).

During Ms. Fyock’s testimony about her employment and her duties at

CHOP, the following exchange occurred:

[THE COMMONWEALTH]: And what specifically do you remember

[the victim] disclosing to you about sexual abuse?

[DEFENSE COUNSEL]: Objection, Judge. Hearsay.

THE COURT: Could you repeat the question?

[THE COMMONWEALTH]: I said what does she remember [the

victim] specifically disclosing to her about the child abuse?

THE COURT: Sidebar.

***

[Sidebar discussion]

THE COURT: I’m assuming your question goes towards the

consistency of the statements that [the victim] made, [that the

victim] already testified to?

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[THE COMMONWEALTH]: Yes, Judge. And it’s obviously

statements made for medical diagnosis or treatment.

[DEFENSE COUNSEL]: I mean, she’s not a doctor though. She’s a

social worker.

[THE COMMONWEALTH]: Doesn’t matter. Whoever she makes the

statements to at the hospital.

*****

THE COURT: Yeah. All right. I’m going to allow it. . . .

*****

[On the record]:

[THE COMMONWEALTH]: Okay. What do you remember [the

victim] disclosing to you about her sexual abuse?

*****

[MS. FYOCK]: . . . she told me that her stepfather had been

sexually abusing her for about a year, that he touched her bare

breast and performed oral sex on her as well as kind of taught her

-- introduced her to pornography.

N.T., 3/15/23, 10-13 (emphasis added).

On appeal, Fluelling argues the identity of the abuser does not fall under

the exception for statements made for medical diagnosis or treatment. See

Pa.R.E. 803(4); Fluelling’ s Brief at 11-15 (citing Commonwealth v. Smith,

681 A.2d 1288, 1293 (Pa. 1996)).

The trial court determined the identity of the perpetrator was admissible

under the medical diagnosis or treatment exception. See Trial Court Opinion,

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2/28/24, at 27-32. After a thorough review of the certified record, we affirm

the denial of relief on grounds other than those relied upon by the trial court. 5

Fluelling’s claim does not merit relief because, even if the testimony was

hearsay, any error in the admission of the testimony was harmless. The

harmless error doctrine “reflects the reality that the accused is entitled to a

fair trial, not a perfect trial.” Commonwealth v. Hairston, 84 A.3d 657, 671

(Pa. 2014).

Harmless error exists if the record demonstrates either: (1) the

error did not prejudice the defendant or the prejudice was de

minimis; or (2) the erroneously admitted evidence was merely

cumulative of other untainted evidence which was substantially

similar to the erroneously admitted evidence; or (3) the properly

admitted and uncontradicted evidence of guilt was so

overwhelming and the prejudicial effect of the error was so

insignificant by comparison that the error could not have

contributed to the verdict.

Id. at 671–72.

Here, as noted above, prior to Ms. Fyock’s testimony, both the victim

and Dr. Blackstone testified without objection as to the disclosure of Fluelling’s

sexual assault to the social worker. See N.T., 3/14/12, at 99-101; 166-68.

Thus Ms. Fyock’s testimony regarding Fluelling’s identity was wholly

cumulative of both witnesses’ prior testimony. Fluelling did not object to the

same testimony with the two prior witnesses. See N.T., 3/14/23, at 99-101,

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5 See Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa. Super. 2022)

(stating it is well-settled where the result is correct, we may affirm a lower

court’s decision on any ground whether relied upon by that court).

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166-68; N.T., 13/15/23, at 13-14. Thus, even if the trial court erred in

allowing Ms. Fyock to testify regarding the identity of the perpetrator, any

error was harmless. See Hairston, 84 A.3d at 671-72. Fluelling’s first issue

does not merit relief.

In his second issue, Fluelling argues:

The imposition of sexual offender registration is illegal, and

[] Fluelling is entitled to less onerous Subchapter I requirements.

The jury never made any offense date findings, and in any event,

Subchapter H’s more restrictive and punitive provisions are

unconstitutional.

Fluelling’s Brief at 16 (italics removed); see id. at 16-23.

After the filing of this appeal, our Supreme Court issued its decision in

Commonwealth v. Torsilieri, 316 A.3d 77 (Pa. 2024) (“Torsilieri II”). The

Court found Torsilieri “failed to meet his burden to establish that Subchapter

H’s irrebuttable presumption, that sex offenders pose a high risk of re-offense,

is constitutionally infirm.” Id. at 110. The Court likewise determined Torsilieri

did not “meet his burden in demonstrating that Subchapter H constitutes

criminal punishment.” Id.

In sum, our Supreme Court has plainly stated the irrebuttable

presumption that adult sex offenders pose a high risk of reoffending does not

violate due process, and SORNA’s Revised Subchapter H registration

requirements are not punitive in nature and do not constitute cruel and

unusual punishment. Id. at 99-100, 103-110. As our Supreme Court's

analysis in Torsilieri II is dispositive of the issues raised by Fluelling, we

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discern no error on the part of the trial court in imposing Revised Subchapter

H of SORNA’s lifetime registration requirements on him. 6 Fluelling’s second

issue does not merit relief.

In his final issue, Fluelling challenges the legality of his sentence for

rape of a child, arguing the three-year probationary sentence imposed to

follow his sentence of twenty to forty years in prison renders the sentence

illegal because 42 Pa.C.S.A. § 9718.5, the statute authorizing the three-year

probation, did not take effect until after Fluelling committed the instant

offenses. See Fluelling’s Brief at 23-24. The Commonwealth agrees. See

Commonwealth’s Amended Brief at 18-21. The trial court disagreed, arguing

the three-year probationary tail was legal pursuant to 42 Pa.C.S.A. § 9718.5.

See Supplemental Opinion, 7/19/24, at 1 n. 1.

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6 Fluelling’s reliance on Commonwealth v. Alston, 212 A.3d 526 (Pa. Super.

2019), for the proposition that he is subject to the reporting requirements of

Subchapter I rather than Subchapter H is wholly without merit. See Fluelling’s

Brief at 16-17. In Alston, the defendant’s crimes bridged the time periods

during which Subchapters H and I applied. See id. The jury did not make

any specific findings as to the date of the offenses, and we held, under those

circumstances, the defendant was entitled to the less restrictive requirements

of Subchapter I. See id. at 530. Here, while the jury did not make any

specific findings as to the dates of the offenses, the victim’s mother testified

she did not meet Fluelling until late 2012 or early 2013. Subchapter I only

applies to offenses which took place before December 20, 2012. See N.T.,

3/14/23, at 176; 42 Pa.C.S.A. §§ 9799.51-9799.75. Thus, Alston provides

no basis for relief. In any event, we note the Pennsylvania Supreme Court

vacated this Court’s decision in Alston and remanded for reconsideration in

light of its decision in Torsilieri II, supra. See Commonwealth v. Alston,

321 A.3d 868 (Pa. 2024).

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Fluelling’s claim constitutes a nonwaivable challenge to the legality of

his sentence. See Commonwealth v. Succi, 173 A.3d 269, 285 (Pa. Super.

2017) (“Legality of sentence issues occur . . . when [inter alia]. . . the sentence

imposed is patently inconsistent with the sentencing parameter set forth by

the General Assembly”) (citation omitted). “Because the legality of a

sentence presents a pure question of a law, our scope of review is plenary,

and our standard of review is de novo.” Commonwealth v. Pi Delta Psi,

Inc., 211 A.3d 875, 889 (Pa. Super. 2019) (citation omitted).

Section 9718.5 of the Judicial Code requires the sentencing court to

impose a consecutive probationary term of three years, in addition to any

lawful sentence imposed for the crime, upon persons convicted of certain

sexual offenses.7

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7 Section 9718.5 provides in pertinent part:

§ 9718.5. Mandatory period of probation for certain

sexual offenders

(a) Mandatory probation supervision after release

from confinement.—A person who is convicted in a

court of this Commonwealth of an offense under section

9799.14(d) (relating to sexual offenses and tier system)

shall be sentenced to a mandatory period of probation of

three years consecutive to and in addition to any other

lawful sentence issued by the court.

(b) Imposition.—The court may impose the term of

probation required under subsection (a) in addition to the

(Footnote Continued Next Page)

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Our Supreme Court has stated:

In order for a criminal or penal law to be deemed an ex post facto

law, two critical elements must be met: it must be retrospective,

that is, it must apply to events occurring before its enactment,

and it must disadvantage the offender affected by it.

Commonwealth v. Rose, 127 A.3d 794, 799 (Pa. 2015) (quotations marks

and citation omitted).

Here, Fluelling’s abuse of the victim ended in 2017. Section 9718.5 did

not take effect until April 2018. The application of the statute to Fluelling is

thus retrospective. Additionally, the consecutive three-year probationary

sentence disadvantaged him, in that it constituted additional punishment

beyond the statutory maximum imposed on this count. As the two “critical

elements” are present, applying Section 9718.5 to Fluelling constitutes an ex

post facto violation as it relates to the present timeline. Thus, the trial court’s

sentence of twenty to forty years in prison followed by three years of probation

for rape of a child is illegal. See Commonwealth v. Bent, 258 A.3d 543 (Pa.

Super. 2021) (unpublished memorandum at *8) (holding application of

Section 9718.5 to sentence for offenses which took place before its effective

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maximum sentence permitted for the offense permitted

for the offense for which the defendant was convicted.

42 P.A.C.S.A. § 9718.5(a), (b).

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date constituted an ex post facto violation resulting in an illegal sentence);8

Commonwealth v. Kinley, 251 A.3d 1239 (Pa. Super. 2021) (unpublished

memorandum at **6-7) (same).

Accordingly, we vacate the portion of Fluelling’s sentence for rape of a

child imposing a consecutive three-year period of probation following his term

of imprisonment for that crime. Because our decision impacts the trial court’s

overall probationary sentence, we remand for resentencing solely with respect

to probation. In all other respects, we affirm Fluelling’s conviction and

judgment of sentence.

Convictions affirmed. Judgment of sentence vacated in part. Case

remanded. Jurisdiction relinquished.

Date: 4/7/2025

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8 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decision of

Superior Court filed after May 1, 2019, may be cited for persuasive value).

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