Commonwealth v. Mountain

Concurmg Opinion by

Johnson, J.

JOHNSON, Judge, concurring:

I concur in the result reached by the Majority in this case.

I also agree with the Majority that the appellant’s brief is composed of “inartfully posed challenges” to the constitutionality of Megan’s law. Op. at 475. As the Majority notes, appellant’s arguments are “illogical, vague, and confusing.” Id. at 475. Thus, this Court is left with the task of deciphering exactly what the appellant is attempting to assert. It is for this reason that I write separately to express my concern regarding the Majority’s decision to fully address appellant’s due process and right to privacy claims.

Specifically, I am concerned that the Majority, in attempting to make sense of appellant’s claims, has decided issues of wide-ranging significance that are not adequately developed or presented in appellant’s brief. Pa.R.A.P. 2119. For example, the appellant phrases his first issue as follows:

The “notification provision upon parole” portion of the sentence did violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and Article I, § 9 of the Pennsylvania Constitution in that: A) the statute allows Mr. Mountain to be rendered a social pariah, with a chill cast upon his exercise of his right to associate with others as a functioning member of society; and B) the statute, via a mere conviction, creates an irrebuttable presumption that Mr. Mountain is within a class of people whose rights may be so curtailed.

Brief for Appellant at 8. Appellant then baldly asserts, without any further development, that the following rights have been violated: (1) his “post-parole right to freedom of association (‘chilling it’ by means of the stigma created)” and (2) his right to “privacy (by ‘reaching out’ with the clear intent of prompting surveillance and/or monitoring).” Id. at 9. With respect to his right to privacy issue, appellant asserts interests in: (1) avoiding disclosure in private matters and (2) being free from unwarranted govern *480 mental intrusion. Id. at 10. He then urges this Court “to vacate the ‘notification/registration’ upon parole requirement.” Id. at 9-10.

Based upon my review of the appellant’s brief, I find that the appellant attempts to challenge both the notification and registration provisions of Megan’s law. See 42 Pa. C.S. §§ 9793 (registration of certain offenders for 10 years) and 9798 (other notification). However, appellant only has standing to challenge the registration provision of Megan’s law since he was not classified as a “sexually violent predator” and, therefore, is not subject to the notification provisions. See id. § 9794. Thus, our review of appellant’s claim is limited to his challenges to the registration provision.

With this in mind, it is clear that while appellant has cited a number of constitutionally protected rights in his brief, he has failed to show us how his constitutional rights have been violated by the registration provision. At most, the interests found in appellant’s brief are better suited for a challenge to the notification provision, which is not properly before us. More importantly, appellant’s claims are not supported by any reference to pertinent legal authority. Instead, appellant’s argument for these issues consists of a rambling, unintelligible narrative. Therefore, because I find that appellant has neither articulated an identifiable liberty or property interest, nor asserted a “legitimate expectation of privacy” with respect to the registration provisions, I would end our analysis of these issues here and find that appellant’s constitutional challenges must instantly fail. See County of Berks v. PLRB, 644 Pa. 541 , 548-560, 678 A.2d 355, 359 (1996) (where appellant failed to identify what life, liberty or property interest had been deprived by PLRB determination, due process claim failed); Commonwealth v. Blystone, 519 Pa. 450, 462-464 , 549 A.2d 81, 87 (1988), aff'd, 494 U.S. 299 , 110 S.Ct. 1078 , 108 L.Ed.2d 255 (1990) (to determine whether appellant’s activities fall within the right of privacy, appellant’s privacy expectation must be one that society is prepared to recognize as reasonable).

The Majority, however, attempts to speculate as to whether the appellant is asserting a substantive or procedural due process claim and then proceeds to fully develop both before finding these claims lack merit. Op. at 475-478. The Majority also determines that the inconvenience of registration is “greatly outweighed by the need to ensure public safety.” Id. at 478. I do not believe such a due process analysis is warranted in this instance; nor should we employ judicial balancing of interests where the appellant fails to show us how his privacy rights have been violated.

This Court has long held that we will not act as appellant’s counsel. In re J.C., 412 Pa.Super. 369 , 603 A.2d 627 , 629 n. 2 (1992). This is especially so where, as here, the issues are of wide-ranging significance. See id. (where appellant’s due process argument was sparse and contained no reference to relevant precedent, court declined to address appellant’s constitutional issue). Unlike the Majority, I find that the state of appellant’s brief makes it extremely difficult for us to properly review the merits of this ease, let alone allow us to thoroughly address these issues of first impression. I believe that a proper resolution of these issues would be best left for another case where a litigant has properly developed an argument in support of his claims. Id. Thus, while I join the Majority with respect to the result reached, I believe this case should have been decided on much simpler and narrower grounds. Specifically, the appellant has failed to show this Court how his constitutional rights were violated by the registration provision and, therefore, his claim must fail.