Com. v. Lacosta-Franco, X.

J-A14030-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

XAVIER LACOSTA-FRANCO

Appellant No. 963 MDA 2021

Appeal from the Judgment of Sentence July 12, 2021

In the Court of Common Pleas of Berks County

Criminal Division at No: CP-06-CR-0002791-2014

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED: AUGUST 16, 2022

Appellant, Xavier LaCosta-Franco, appeals from his aggregate

judgment of sentence of 29½ to 109 years’ imprisonment for multiple sexual

offenses against three minor victims and to his classification as a sexually

violent predator (“SVP”). We affirm.

In 2014, Appellant was charged with three counts of rape of a child,

three counts of involuntary deviate sexual intercourse (“IDSI”) and other

offenses. The allegations concerned Appellant’s sexual abuse of three minor

females aged eight, thirteen and fifteen between 2010 and 2012. The

fifteen-year-old female was the daughter of Appellant’s paramour and lived

with Appellant. The other two minor females were friends of the fifteen-

year-old.

____________________________________________

* Former Justice specially assigned to the Superior Court.

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In August 2016, a jury found Appellant guilty of multiple counts of

rape, IDSI, statutory sexual assault, aggravated indecent assault and

indecent assault. On March 2, 2017, the trial court determined that

Appellant was a sexually violent predator (“SVP”) and imposed a lengthy

sentence of imprisonment. Appellant filed a timely appeal, and on June 4,

2018, this Court reversed and remanded for resentencing at the trial court’s

request. The purpose was for resentencing in light of this Court’s decision in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), that held the

SVP statute, 42 Pa.C.S.A. § 9799.24, was unconstitutional. See id.

(imposition of SVP status constitutes criminal punishment; consequently,

SVP statute unconstitutional because it permits Commonwealth to prove

defendant’s eligibility for SVP treatment with clear and convincing evidence

instead of evidence beyond reasonable doubt).1 The panel did not reach the

merits of any of the issues that Appellant raised in that appeal.

On August 25, 2020, the trial court resentenced Appellant to the same

term of imprisonment and again found him to be an SVP. The court,

however, did not enter a new sentencing order on the docket. Appellant

filed a post-sentence motion, which the trial court denied on December 23,

____________________________________________

1 On March 26, 2020, our Supreme Court reversed our decision in Butler by

holding that the lifetime registration, notification, and counseling

requirements applicable to SVP’s do not constitute criminal punishment and

therefore were not unconstitutional. Commonwealth v. Butler, 226 A.3d

972, 976 (Pa. 2020).

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2020. On January 22, 2021, Appellant filed an appeal to this Court. On May

21, 2021, this Court dismissed the appeal sua sponte due to the lack of a

sentencing order and remanded for resentencing in accordance with our

June 4, 2018 order.

On July 12, 2021, the court readvised Appellant that he was an SVP,

resentenced him to the same aggregate term, and entered judgments of

sentence on each count of conviction. Appellant filed timely post-sentence

motions contending that there was insufficient evidence from which to

declare him an SVP and that the SVP statute was unconstitutionally vague

and overbroad. On July 16, 2021, the court entered an order denying

Appellant’s post-sentence motions. Appellant filed a timely notice of appeal,

and both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues in this appeal:

1. Whether the trial court abused its discretion in overruling

[Appellant]’s objection to the prosecutor’s closing argument

during which the prosecutor effectively stated that Defense

Counsel ignored a line of questioning because Defense Counsel

knew [Appellant] was guilty?

2. The granting of Commonwealth’s pretrial motion in limine

regarding 404(B) and tender years statements were error.

3. Whether the evidence was insufficient to support the trial

court’s finding that [Appellant] was a “sexually violent predator”

because the victims were neither “stranger[s]” nor “person[s]

with whom a relationship had been instituted, established,

maintained or promoted, in whole or in part, in order to facilitate

or support victimization?”

4. Whether 42 Pa.C.S.A. § 9799 is unconstitutionally vague in

that it, together with the relevant law, simultaneously call for an

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inquiry into the “extent to which the offender is likely to

reoffend” due to a mental abnormality while the consideration of

the factors to be used in this inquiry “are not to be used for risk

assessment?”

5. Whether 42 Pa. C.S.A. § 9799 is unconstitutionally overbroad

in that it effectively classifies all offenders as sexually violent

predators unless 1) there is no victim or 2) [the] defendant has

no mental abnormality?

6. Whether [Appellant]’s classification as a sexually violent

predator with the attendant lifetime reporting requirements

makes [Appellant]’s sentence illegal pursuant to the recently

decided Pennsylvania Supreme Court case, Commonwealth v.

Muniz, [164 A.3d 1189 (Pa. 2017)], which indicates that the

provisions of SORNA are punitive in effect? As reporting is

punitive, it is in reality part of a sentence, but lifetime reporting

potentially extends the punishment to a lifetime penalty beyond

the relevant statutory maximums.

Appellant’s Brief at 11-12.

In his first argument, Appellant asserts that that the trial court abused

its discretion by overruling defense counsel’s objection to the prosecutor’s

closing argument. This claim does not warrant relief.

During cross-examination, defense counsel sought to discredit the

second victim’s testimony by raising alleged inconsistencies between her

testimony at the preliminary hearing and at trial. The second victim testified

as follows on cross-examination:

[DEFENSE COUNSEL]: Let me ask you this, it has been a while

since the preliminary hearing in this case as well. I mean we are

talking about events from 2011, 2012. The preliminary hearing

this case was held in June of 2014, which is more than two years

ago, was your memory better in June of 2014 or is it more

accurate that you are in court at this time, if you have an

opinion?

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VICTIM #2: Not sure what you are asking me.

Q. I’m suggesting the version of events you are telling us now is

in respects different than what you said over two years ago is

because your memory is faded and you are struggling to

remember the facts or not?

A. Lately I’ve been like scared about this and stuff and I’m like

been trying to forget about it but everything that I have said the

first time I’m saying now.

Q. You don’t remember testifying differently at the preliminary

hearing?

A. If there were different questions asked, yes, different ways.

Q. Do you remember, for example, describing the color of the

pajamas that he was wearing at the time this occurred?

A. Right.

Q. You remember testifying to that?

A. Yes.

Q. But you don’t remember testifying previously that there was

one incident of anal intercourse and one not of anal intercourse?

A. It was one that did touch and one that didn’t.

N.T., 8/22/17, at 124-26. In closing, defense counsel stated:

[Victim #2], herself, comes into court today, and if I understood

her testimony correctly, for the first time describes two anal

rapes on two separate occasions. In my recollection . . . that is

not what the District Attorney said was expected in her opening

statement and is not what is considered to be the theory of the

case in the affidavit of probable cause.

N.T., 8/24/17, at 273. The prosecutor responded:

And, ladies and gentlemen, defense counsel was asking [Victim

#2] a lot of questions and wasn’t really referring to the

transcript, do you remember testifying to this and not following

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up or showing her the transcript but the one thing that really

stuck out in my mind was that he asked her, do you remember

testifying what color pajamas [Appellant] was wearing and her

response was he was wearing red pajamas and then Mr.

Waltman followed up and said, no, no, I’m not asking you that.

I’m asking you if you remember testifying to that. And I

honestly don’t remember what her response was, but what I can

tell you is that Mr. Waltman did not follow up.

Id. at 295-96. Defense counsel objected, “Your honor, the commentary of

what I did or didn’t do is irrelevant. I object.” Id. at 296. The court

overruled the objection without further argument or discussion. Id.

Appellant argues that the prosecutor engaged in misconduct by

“suggesting that defense counsel’s strategy in cross-examining the witness

indicated he knew his client was guilty.” Appellant’s Brief at 19.

“Our standard of review for a claim of prosecutorial misconduct is

limited to whether the trial court abused its discretion.” Commonwealth v.

Rolan, 964 A.2d 398, 410 (Pa. Super. 2008). “It is the duty of the trial

judge to rule upon the [prosecutor’s] comments; this Court is limited in its

review to whether the trial court abused its discretion.” Commonwealth v.

Brawner, 553 A.2d 458, 463 (Pa. Super. 1989). “An abuse of discretion

may not be found merely because an appellate court might have reached a

different conclusion, but requires a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such a lack of support so as to be

clearly erroneous.” Commonwealth v. Jones, 240 A.3d 881, 889 (Pa.

2020).

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In a criminal trial, “the prosecutor must be free to argue that the facts

of record establish every element of the crime charged and must be free to

respond fairly to the arguments of the defense.” Commonwealth v.

Crumbley, 270 A.3d 1171, 1182 (Pa. Super. 2022). The bounds of

“oratorical flair” afford the prosecution significant leeway in this regard. Id.

A prosecutor must have reasonable latitude in presenting his case to the jury

and must be free to present his arguments with logical force and vigor.

Rolan, 964 A.2d at 410. “Reversible error occurs only when the

unavoidable effect of the . . . comments would prejudice the jurors and form

in their minds a fixed bias and hostility toward the defendant such that the

jurors could not weigh the evidence and render a true verdict.” Crumbley,

270 A.3d at 1182-83. “The touchstone is the fairness of the trial, not the

culpability of the prosecutor.” Id.

Appellant claims during closing argument the prosecutor implied that

defense counsel abandoned a line of questioning on cross-examination

because counsel believed that the witness was credible and that Appellant

was guilty. The record demonstrates, however, that the prosecutor never

commented on defense counsel’s beliefs. The prosecutor merely contended

that defense counsel failed to impeach the witness’s credibility. More

specifically, the prosecutor argued that defense counsel insinuated during

cross-examination that the witness’s trial testimony was different from her

preliminary hearing testimony, but counsel failed to provide specific

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examples of inconsistent testimony. This was a fair response to defense

counsel’s questions during cross-examination that suggested the witness

changed her testimony. N.T., 8/22/17, at 124-26. We see nothing improper

in this argument, let alone anything that “would prejudice the jurors and

form in their minds a fixed bias and hostility toward the defendant such that

the jurors could not weigh the evidence and render a true verdict.”

Crumbley, 270 A.3d at 1182-83.

In his next argument, Appellant contends that the trial court abused

its discretion by allowing the Commonwealth to introduce evidence of

uncharged misconduct during trial. Appellant has waived this argument.

The Rules of Appellate Procedure require that an appellant who refers

to evidence in his brief must include “a reference to the place in the record

where the matter referred to appears.” Pa.R.A.P. 2119(c). An appellant’s

failure to properly develop an argument with citations to the relevant

portions of the record will result in the waiver of his appellate claims.

Commonwealth v. Brown, 200 A.3d 986, 991 (Pa. Super. 2018) (“[i]n

order for this Court to determine whether [the appellant] was prejudiced by

the trial court’s adverse ruling on his motion in limine, he must, at a

minimum, direct us to the specific places in the record where allegedly

prejudicial testimony was elicited”); see also Commonwealth v.

Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997) (“[i]n a record containing

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thousands of pages, this court will not search every page to substantiate a

party's incomplete argument”).

While Appellant complains in his brief that the trial court improperly

permitted Rule 404(b) evidence of uncharged misconduct, he fails to identify

the evidence he believes was inadmissible or the place(s) in this record

where this evidence was introduced. Due to these omissions, we have no

way to determine whether the evidence was inadmissible or prejudicial to

Appellant. Consequently, this argument is waived. Pa.R.A.P. 2119(c);

Brown, Mulholland, supra.

Next, Appellant argues that the evidence was insufficient to justify the

court’s determination that he is an SVP because his offenses were not

predatory under the SVP statute. We disagree.

SORNA, the Sex Offender Registration and Notification Law,2 provides

rigorous standards for determining whether the defendant is an SVP. First,

____________________________________________

2 42 Pa.C.S.A. §§ 9799.51-9799.75. SORNA’s purpose is to “substantially

comply with [federal law] and to further protect the safety and general

welfare of the citizens of this Commonwealth by providing for increased

regulation of sexual offenders, specifically as that regulation relates to

registration of sexual offenders and community notification about sexual

offenders.” 42 Pa.C.S.A. § 9799.11.

SORNA is the General Assembly’s fourth enactment of the law commonly

referred to as Megan’s Law. Megan’s Law I was enacted in 1995 but was

held unconstitutional by our Supreme Court in Commonwealth v.

Williams, 733 A.2d 593 (Pa. 1999). In response, the General Assembly

enacted Megan’s Law II in 2000. In 2003, the Supreme Court held that

some portions of Megan’s Law II were unconstitutional, Commonwealth v.

(Footnote Continued Next Page)

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the defendant must be convicted of a “sexually violent offense,” 42 Pa.C.S.A.

§ 9799.55, which Subchapter I of SORNA defines to include various serious

felonies (e.g., rape, IDSI, kidnapping a minor and other forms of sexual

assault). See 42 Pa.C.S.A. §§ 9799.53 and 9799.55. Next, the defendant

must have a “mental abnormality or personality disorder that makes the

person likely to engage in predatory sexually violent offenses” or “has ever

been determined by a court to have a mental abnormality or personality

disorder that makes the person likely to engage in predatory sexually violent

offenses under a former sexual offender registration law of this

Commonwealth.” 42 Pa.C.S.A. § 9799.53. To determine whether the

(Footnote Continued) _______________________

Gomer Williams, 832 A.2d 962 (Pa. 2003), and the General Assembly

responded by enacting Megan’s Law III. In 2006, the United States

Congress expanded the public notification requirements of state sexual

offender registries in the Adam Walsh Child Protection and Safety Act of

2006, 42 U.S.C. §§ 16901—16945. In 2011, the General Assembly passed

SORNA. SORNA went into effect on December 20, 2012, while Megan’s Law

II expired on the same date. In 2013, our Supreme Court struck down

Megan’s Law III for violating the single subject rule of Article III, Section 3

of the Pennsylvania Constitution. Commonwealth v. Neiman, 84 A.3d

603, 616 (Pa. 2013). By that time, however, SORNA had already replaced

Megan’s Law III.

SORNA has been amended several times, most importantly in Acts 10 and

29 of 2018. Through Act 10, as amended in Act 29, the General Assembly

split SORNA I’s former Subchapter H into a revised Subchapter H and

Subchapter I. Subchapter I applies to sexual offenders who committed an

offense on or after April 22, 1996 but before December 20, 2012. See 42

Pa.C.S.A. §§ 9799.51—9799.75. Revised Subchapter H applies to offenders

who committed an offense on or after December 20, 2012. See 42

Pa.C.S.A. §§ 9799.10—9799.42. Here, Appellant’s offenses took place

before December 20, 2012, so we will apply Subchapter I to this case.

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defendant meets these standards, the SOAB must evaluate fifteen criteria

relating to the facts of the offense, the defendant’s prior offense history, his

individual characteristics, and any other factors reasonably related to the

risk of reoffense, 42 Pa.C.S.A. § 9799.58(b), and present a written report of

its assessment to the district attorney. 42 Pa.C.S.A. § 9799.58(d). The

SOAB must also provide a written summary of the defendant’s conduct that

specifies, inter alia, (1) whether the victim was a minor, (2) the manner of

weapon or physical force used or threatened, (3) if the offense involved

unauthorized entry into a room or vehicle occupied by the victim, and (4) if

the offense was part of a course or pattern of conduct involving multiple

incidents or victims. 42 Pa.C.S.A. § 9799.58(d.1). Upon praecipe by the

district attorney, the court must hold a hearing in which it determines

whether the Commonwealth has proved by clear and convincing evidence

that the defendant is an SVP. 42 Pa.C.S.A. § 9799.58(e)(3).

In order to affirm an SVP designation,

we, as a reviewing court, must be able to conclude that the fact-

finder found clear and convincing evidence that the individual is

a [SVP]. As with any sufficiency of the evidence claim, we view

all evidence and reasonable inferences therefrom in the light

most favorable to the Commonwealth. We will reverse a trial

court’s determination of SVP status only if the Commonwealth

has not presented clear and convincing evidence that each

element of the statute has been satisfied.

Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015).

In this case, the only element challenged by Appellant is “predatory”

behavior, so we limit our sufficiency analysis to this element. SORNA

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defines “predatory” as “[a]n act directed at a stranger or at a person with

whom a relationship has been initiated, established, maintained or

promoted, in whole or in part, in order to facilitate or support victimization.”

42 Pa.C.S.A. § 9799.53. The evidence presented by Dr. Veronica Valliere,

the Commonwealth’s expert on the classification of SVP’s, demonstrates that

Appellant not only was likely to engage in predatory conduct but actually did

so. The court admitted Dr. Valliere’s written report into evidence during

Appellant’s SVP hearing. Dr. Valliere testified that she extensively reviewed

the record of this case and interviewed Appellant for 45 minutes. N.T.,

2/21/17, at 6-7 (SVP hearing). Appellant was convicted of a multitude of

sexually violent offenses against three victims, including rape, statutory

sexual assault, IDSI, indecent assault and aggravated indecent assault. Dr.

Valliere’s report observed that Appellant resided with his paramour and

paramour’s fifteen-year-old daughter, the first victim. Report at 3.

Appellant sexually assaulted the fifteen-year-old twice and threatened to kill

her and her mother (his paramour) if she talked about it. Id. Appellant also

sexually assaulted a thirteen-year-old female, the second victim, who had

come over to visit Appellant’s paramour’s daughter. Id. at 2-3. Appellant

threatened to kill the thirteen-year-old and her family if she told anyone, a

threat that prompted the girl’s family to move to Florida. Id. Finally,

Appellant grabbed the breast of an eight-year-old girl, the third victim, who

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came over to Appellant’s paramour’s house. Id. at 3. Only Appellant and

the girl were in the house at the time. Id. Dr. Valliere concluded:

Appellant was acquainted with the victims through different

relationships, either neighbor, child of a paramour, or friend of a

child. He engaged in an act with one child, grabbing her breast

suddenly, and raped two others, then threatening them to

ensure silence. All his behavior promoted a secret, threatening

relationship with the children to facilitate the victimization. His

behavior meets the statutory definition of predatory behavior.

Id. at 10.

Based on the evidence presented during Appellant’s SVP hearing,

including Dr. Valliere’s testimony and expert report, we conclude that the

Commonwealth presented sufficient evidence to fulfill the element of

predatory behavior. Appellant’s challenge to the sufficiency of the evidence

fails.

Next, Appellant contends that the trial court erred by refusing to hold

that SORNA’s procedures for assessing whether the defendant is an SVP are

unconstitutionally vague. We disagree based on our analysis in

Commonwealth v. Kopicz, 840 A.2d 342 (Pa. Super. 2003), which

rejected a similar void-for-vagueness challenge to Megan’s Law II.

There is a strong presumption in the law that legislative enactments

are constitutional, and a heavy burden of persuasion rests upon one who

challenges the constitutionality of a statute. A statute will only be found

unconstitutional if it clearly, palpably and plainly violates the Constitution.

Commonwealth v. Williams, 733 A.2d 593, 603 (Pa. 1999). All doubts

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are to be resolved in favor of sustaining the constitutionality of the

legislation. Commonwealth v. Blystone, 549 A.2d 81, 87 (Pa. 1988).

The void for vagueness doctrine requires statutes to be drawn with

sufficient definiteness and specificity to provide fair warning of the conduct

proscribed by the law and to restrict the discretion of governmental

authorities or courts in enforcing the law. Papachristou v. City of

Jacksonville, 405 U.S. 156, 165-170 (1972). The void for vagueness

doctrine applies both to penal and nonpenal statutes. Johnson v. United

States, 576 U.S. 591, 612-13 (2015) (Thomas, J., concurring in judgment)

(collecting cases). We therefore apply it here, even though SORNA is not a

penal statute. See Butler, 226 A.3d 972, 976 (lifetime registration,

notification, and counseling requirements applicable to SVP’s do not

constitute criminal punishment); Commonwealth v. Lacombe, 234 A.3d

602 (Pa. 2020) (Subchapter I of SORNA is nonpunitive and does not violate

constitutional ex post facto principles).

Appellant argues that SORNA’s SVP assessment procedures are void

for vagueness for the following reasons:

[SORNA defines an SVP as] someone who has a mental

abnormality or personality disorder that makes them likely to

reoffend by “engag[ing] in predatory sexually violent offenses[] .

. .” 42 Pa.C.S.[A.] § 9799.53. In making that determination,

the Court is required to consider a number of factors including

“[c]haracteristics of the individual, including . . . . (iii) A mental

illness, mental disability or mental abnormality.” 42 Pa.C.S.[A.]

§ 9799.58(b)(3). Yet because of the manner in which the

statute is written, the absence of any one of those factors, i.e.,

including whether or not the personal has a mental health

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condition, is not considered dispositive. The courts and SOAB

are free to interpret and apply the statute in any way it wishes

and for this reason the statute must fail.

Appellant’s Brief at 32-33. Appellant further objects that Section

9799.58(b)(4), which calls for assessment of “factors that are supported in a

sexual offender assessment field as criteria reasonably related to the risk of

reoffense,” fails to specify what these factors should be. Id. at 31.

It does not appear that Pennsylvania appellate courts have addressed

the constitutionality of SORNA’s SVP assessment procedures. Two decades

ago, however, this Court held in Kopicz that the SVP assessment

procedures in Megan’s Law II were not void for vagueness. Kopicz’s

incisive analysis deserves recitation at length:

The Act [Megan’s Law II] defines a “sexually violent predator”

as:

A person who has been convicted of a sexually

violent offense as set forth in section 9795.1

(relating to registration) and who is determined to be

a sexually violent predator under section 9795.4

(relating to assessments) due to a mental

abnormality or personality disorder that makes the

person likely to engage in predatory sexually violent

offenses.

42 Pa.C.S.A. § 9792. Moreover, “mental abnormality” is defined

as:

A congenital or acquired condition of a person that

affects the emotional or volitional capacity of the

person in a manner that predisposes that person to

the commission of criminal sexual acts to a degree

that makes the person a menace to the health and

safety of other persons.

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Id. Although the term “personality disorder” is not defined in

the Act, it is a psychiatric term defined in the Diagnostic and

Statistical Manual of Mental Disorders IV. Finally, the Act defines

“predatory” sexually violent offenses as ones in which the act is

“directed at a stranger or at a person with whom a relationship

has been established or promoted for the primary purpose of

victimization.” 42 Pa.C.S.A. § 9792.

A statute is constitutionally void [for vagueness] only if it is so

vague that persons of common intelligence must necessarily

guess at its meaning and differ as to its application. A vague law

impermissibly delegates basic policy matters to policemen,

judges, and juries for resolution on an ad hoc and subjective

basis, with the attendant dangers of arbitrary and discriminatory

application. However, a statute will not be deemed

unconstitutionally vague if the terms, when read in context, are

sufficiently specific that they are not subject to arbitrary and

discriminatory application.

[Commonwealth v. Cotto, 753 A.2d 217, 220 (Pa. 2000)].

Appellant contends that the definitions of “mental abnormality”

and “personality disorder” provide no objective standards, so

that the potential for an erroneous classification of an offender

as a sexually violent predator is enormous. Indeed, he argues

that, under the definition provided in the Act, an offender could

be diagnosed as having a “mental abnormality” simply because

the court deems him to be a “menace” to society. In addition,

because the psychiatric definition of “personality disorder”

contains a catchall diagnosis, “identifying an offender as

possessing a psychiatric disorder becomes merely a formality as

an offender conceivably will fit within the overreaching

parameters of this definition even if that offender does not fall

within any of the other nine diagnoses.”

This Court’s recent decision in Commonwealth v. Rhoads, 836

A.2d 159 (Pa. Super. 2003), is controlling. There, as here, the

appellant mounted a void for vagueness challenge against the

Act's definition of “sexually violent predator.” We noted that an

offender is classified as a “sexually violent predator” only if he

has been convicted of one of the predicate offenses listed in §

9795.1, and then only after he has undergone a thorough

assessment hearing pursuant to § 9795.4. Section 9795.4(b)

lists numerous factors that the [SOAB] must consider before

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making its determination. These factors relate to (a) the facts of

the offense, i.e., number of victims, the age and mental capacity

of the victim, the relationship of the offender to the victim, the

nature of the sexual contact, and whether force or unusual

cruelty was used in the attack; (b) the offender’s prior history,

i.e., his prior criminal record, including sentences completed,

and his participation in sexual offender programs; (c) the

characteristics of the offender, i.e., his age, use of illegal drugs,

mental illness or abnormality, and any behavioral characteristics

that contribute to his conduct; and (d) any other relevant factors

relating to his risk of reoffense. 42 Pa.C.S.A. § 9795.4(b). As

we held in Rhoads, supra,

Given the definitive filtering mechanism offered by §

9795.1 in term[s] of clearly defining who is subject

to a SVP assessment and the exhaustive

determinative factors utilized in making such an

assessment in accordance with § 9795.4, we find the

statute is sufficiently clear and specific to withstand

appellant’s constitutional challenge.

Id. at 162–63. Appellant offers no new argument here; thus,

his claim fails.

Id. at 348-50.

The text in Megan’s Law II that survived a void-for-vagueness

challenge in Kopicz is identical to the text in SORNA that Appellant claims is

void for vagueness in the present case. Compare 42 Pa.C.S.A. § 9799.53

(SORNA’s definitions of “sexually violent predator,” “mental abnormality,”

and “predatory”) with 42 Pa.C.S.A. § 9792 (expired December 20, 2012)

(identical definitions in Megan’s Law II); compare also 42 Pa.C.S.A. §

9799.58 (SORNA’s criteria for SVP assessment) with 42 Pa.C.S.A. § 9795.4

(expired December 20, 2012) (identical assessment criteria in Megan’s Law

II). SORNA thus contains the same “definitive filtering mechanism[s]” as

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Megan’s Law II for distinguishing SVP’s from non-SVP’s. Accordingly, we

hold that the trial court properly rejected Appellant’s argument that SORNA’s

SVP assessment procedures are void for vagueness.

Next, Appellant argues that the SVP designation process is

unconstitutionally overbroad based on his claim that all sex offenders are

classified as SVP’s unless there is no victim or the defendant has no mental

abnormality. We disagree.

A statute is overbroad

if by its reach it punishes a substantial amount of

constitutionally-protected conduct. If the overbreadth of the

statute is substantial, judged in relation to its legitimate sweep,

it may not be enforced against anyone until it is narrowed to

reach only unprotected activity. The function of overbreadth

adjudication, however, attenuates as the prohibited behavior

moves from pure speech towards conduct, where the conduct

falls within the scope of otherwise valid criminal laws that reflect

legitimate state interests.

Commonwealth v. Mayfield, 832 A.2d 418, 425 (Pa. Super. 2003).

Appellant’s argument fails because the SVP assessment process does

not punish constitutionally protected conduct. The first qualification for SVP

status is a conviction for a “sexually violent offense,” which Subchapter I of

SORNA defines to include various serious felonies (e.g., rape, IDSI,

kidnapping a minor and other forms of sexual assault). See under 42

Pa.C.S.A. §§ 9799.53 and 9799.55. Obviously, none of this criminal conduct

is constitutionally protected. In addition, as discussed above, not all

defendants convicted of sexually violent offense qualify as SVP’s. A

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defendant is not designated as an SVP unless, inter alia, he possesses “a

mental abnormality or personality disorder which makes [him] to engage in

predatory sexually violent offenses,” 42 Pa. C.S.A. § 9799.53, a standard

that requires analysis of fifteen criteria concerning the defendant’s individual

characteristics, the nature of the offense, and the defendant’s prior offense

history. 42 Pa.C.S.A. § 9799.58(b). In short, the SVP statute is not

overbroad because it has two reliable safeguards against SVP treatment of

constitutionally protected conduct: the requirement that the defendant be

convicted of a sexually violent offense, and the additional requirement that

he fulfill the rigorous criteria within Section 9799.58(b).

In his final argument, Appellant contends that the SVP statute is

unconstitutional because it is punitive in nature, but only clear and

convincing evidence is necessary to establish that he is an SVP instead of

proof beyond a reasonable doubt. This argument fail as our Supreme

Court’s recent decisions in Butler and LaCombe provide that SORNA is non-

punitive.

For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/16/2022

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