Opinion
J-S13035-16 No. 1169 WDA 2015
05-27-2016
COMMONWEALTH OF PENNSYLVANIA v. KEITH JOHNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 17, 2015 in the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001643-2014 BEFORE: LAZARUS, STABILE, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Keith Johnson, appeals from the judgment of sentence entered in the Fayette County Court of Common Pleas following a jury trial and convictions for aggravated assault with a deadly weapon, kidnapping, unlawful restraint-risk of serious bodily injury, unlawful restraint of a minor-risk of serious bodily injury, false imprisonment, false imprisonment of a minor, robbery, burglary, criminal trespass, theft by unlawful taking, unauthorized use of a motor vehicle, terroristic threats, and conspiracy to commit, inter alia, aggravated assault. Appellant raises multiple issues on appeal, and we affirm.
We adopt the facts and procedural history set forth in the trial court's opinion. See Trial Ct. Op., 9/25/15, at 3-10, 11-13. On July 17, 2015, the court sentenced Appellant to an aggregate sentence of twenty-eight to fifty-six years' imprisonment. On July 20, 2015, Appellant timely filed a post-sentence motion challenging the sentence and the court order for a sexual offender assessment for registration under the Sexual Offender Registration and Notification Act ("SORNA"), due to his conviction for unlawful restraint of a minor. He also claimed that ordering such an assessment in his case is unconstitutional. Appellant did not challenge the weight of the evidence.
42 Pa.C.S. §§ 9799.10-9799.41.
The court denied Appellant's post-sentence motion on July 27, 2015. On July 29, 2015, Appellant filed a notice of appeal and a non-court ordered Pa.R.A.P. 1925(b) statement. On September 25, 2015, the court filed its responsive Rule 1925(a) decision.
Appellant raises the following eight issues:
1. Did the court err in denying all of Appellant's motion for mistrial?
2. Did the court err in denying the motions for judgment of acquittal as to all charges related to the alleged minor victim as the victim of those offenses did not testify in violation of Appellant's right to confront his accuser?
3. Did the Commonwealth fail to establish that Appellant participated in any of the offenses as they did not prove Appellant's presence at the scene of the incident or corroborate that he received any of the items taken?
4. Did the court err in denying Appellant's motion for judgment of acquit[t]al as to kidnapping charges regarding Ronald and Jonathon Packroni in that they were never removed from the residence or kept in isolation?
5. Did the Commonwealth fail to prove beyond a reasonable doubt the Appellant caused serious bodily injury as required by the elements of aggravated assault?
6. Did the Commonwealth fail to prove beyond a reasonable doubt that the Appellant had any unlawful contact with the minor victim since there was no physical evidence presented in the instant case?
7. Is it unconstitutional to require an Appellant to register for a lifetime when said registration requirement exceeds the statutory maximum penalty for Appellant's offense?
8. Is the Adam Walsh statute unconstitutional in requiring the an [sic] Appellant to register for a lifetime?Appellant's Brief at 7-8.
Appellant has withdrawn this issue in his brief. Appellant's Brief at 20.
We are disappointed the Commonwealth did not file a brief.
In support of his first issue, Appellant contends the court erred in denying his three motions for mistrial. With respect to his first motion, Appellant contends the witness intended to bias the jury against Appellant. See Trial Ct. Op. at 9-10 (exchange between one of the victims and Appellant in which Appellant held a gun to the victim's head and asked "do you remember this?"). He asserts the Commonwealth was not permitted to use an uncharged prior bad act to prejudice him. Appellant's Brief at 12. Appellant disagrees with the trial court's categorization of the exchange as "at most a subtle reference to a prior incident." Id. (quoting Trial Ct. Op. at 10).
Appellant's second motion for mistrial was in response to testimony by Misty Danko, Appellant's paramour, that their relationship "was an abusive relationship." Trial Ct. Op. at 11. Appellant classifies her testimony as a reference to a prior uncharged bad act casting him in a bad light. Appellant's Brief at 13. He points out the court had warned the prosecutor to avoid such references after his initial motion for mistrial. Id. Appellant posits that the second witness's reference established a pattern of misconduct by the Commonwealth's witnesses.
It was also in response to his paramour's testimony that Appellant moved for a mistrial for the third time. His paramour testified that while she was incarcerated, she became aware that Appellant was also in the same jail. Trial Ct. Op. at 12-13. Appellant contends there was no reason to state he was incarcerated and her testimony was used to disparage him before the jury. He again contends this evidences a pattern of misconduct by the prosecutor and the Commonwealth's witnesses. We conclude Appellant is not entitled to relief.
In Commonwealth v. Wright , 961 A.2d 119 (Pa. 2008), our Supreme Court stated:
The review of a trial court's denial of a motion for a mistrial is limited to determining whether the trial court abused its discretion. . . . A trial court may grant a mistrial only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict.Id. at 142 (citations and quotation marks omitted).
An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict. If there is a reasonable probability that the error may have contributed to the verdict, it is not harmless. In reaching that conclusion, the reviewing court will find an error harmless where the uncontradicted evidence of guilt is so overwhelming, so that by comparison, the error is insignificant.Commonwealth v. Kuder , 62 A.3d 1038, 1052 (Pa. Super. 2013) (citation omitted) (discussing harmless error standard after unconstitutional reference to defendant's right to remain silent), appeal denied, 114 A.3d 416 (Pa. 2015).
Ordinarily, admission of testimony which describes, or from which the jury may infer, past criminal conduct by a defendant constitutes reversible error. However, not all such references warrant reversal. An isolated passing reference to prior criminal activity will not warrant reversal unless the record indicates that prejudice resulted from the remark. There is no per se rule which requires a new trial for every passing reference to prior criminal conduct. Additionally, the possible prejudicial effect of a witness' reference to prior criminal conduct by the defendant may, under certain circumstances, be removed by a cautionary instruction.Commonwealth v. Maute , 485 A.2d 1138, 1143 (Pa. Super. 1984) (citations omitted); accord Commonwealth v. Fletcher , 41 A.3d 892, 895 (Pa. Super. 2012).
We will not invalidate a trial court's decision to admit evidence absent an abuse of discretion. In general, evidence of uncharged crimes and prior bad acts is inadmissible to demonstrate a defendant's propensity to commit the crime charged. Our Supreme Court has stated that
Commonwealth v. Stafford , 749 A.2d 489, 495 (Pa. Super. 2000) (citations omitted).The Commonwealth must prove beyond a reasonable doubt that a defendant has committed the particular crime of which he is accused, and it may not strip him of the presumption of innocence by proving that he has committed other criminal acts. There are, of course, important exceptions to the rule where the prior criminal acts are so closely related to the crime charged that they show, inter alia, motive, intent, malice, identity, or a common scheme, plan or design.
Instantly, assuming that the court erred, we examine whether the "uncontradicted evidence of guilt[, i.e., evidence exclusive of the instant disputed testimony,] is so overwhelming, so that by comparison," the errors are insignificant. See Kuder , 62 A.3d at 1052. In this case, all of the adult victims testified, each of whom identified Appellant as the culprit. See , e.g., N.T., 7/6-7/8/15, at 28, 118, 160. Appellant's paramour—who was also present during the crimes—also inculpated Appellant. See , e.g., id. at 239-42. After a careful review of the entire record, the uncontradicted evidence at trial—including the victims' testimony and surveillance footage—identifying Appellant as the perpetrator is so overwhelming as to render any alleged errors insignificant by comparison. See Kuder , 62 A.3d at 1052.
For background regarding Appellant's second issue, we reproduce the following exchange during the testimony by the minor victim's father:
[Assistant district attorney]. And can you tell the members of the jury what impact this encounter has had on [the minor victim] if any?
[Appellant's counsel]: Objection. He can't editorialize as to what goes on with [the minor victim]. If he's going to be a [sic] alleged victim in the case, [the minor victim] will have to come testify.
[Assistant district attorney]: Your Honor, he is [the minor victim's] father. [The minor victim] is obviously a minor child, he can testify as to what happened---
[Appellant's counsel]: Your Honor---
The court: I don't want him to speculate as far as any kind of medical diagnosis or anything like that.
[Assistant district attorney]: We're not asking him to testify to medical diagnosis.
[Appellant's counsel]: Your Honor, he can't---
[Assistant district attorney]: Your Honor, we can certainly hear testimony as to the effect that he has observed from his son.
[Appellant's counsel]: Your Honor, he's not telepathic, he has no powers of mind control, he can't place himself and state what his son feels. I object.
The court: Overruled. You can answer.
[Father]. My son has repeatedly stated---
[Appellant's counsel]: Hearsay.
The court: Overruled.
A. ---stated to me directly that he is going to hurt the bad guys that hurt his dad.
[Appellant's counsel]: Same objection, Your Honor.
The court: It's overruled. Go ahead and finish.
A. And he is [sic] repeatedly and repeatedly has said this and it's been a year over a year and a half and just recently he's brought it back again. My son, I've tried everything and tried to have nobody talk about it in front of him the situation to keep it away from him, I told his mother please do not bring this up to him because I don't want him to have this on his mind but he has repeatedly over the year and a half has told me he's gonna get a gun and protect his dad from the bad guys that hurt his father.
[Appellant's counsel]: Same objection, Your Honor.
The court: Overruled.N.T. Trial at 113-14.
Appellant complains that the court permitted the minor victim's father to testify as to one statement by the minor victim, as set forth above. Appellant's Brief at 17. Appellant also argues the court should have granted his motion for judgment of acquittal for the crimes involving the minor victim, as he could not confront his minor accuser. Id. at 16. He concedes that the other "victim/witnesses" could testify about the impact of the actions he and his co-conspirators had on the minor victim. Id. But Appellant maintains that "their perceptions cannot be attributed to the minor victim." Id. In Appellant's view, the violation of his right to cross-examine the minor victim is self-evident and the court should have vacated the judgment of sentence for any conviction involving the minor victim. Id. at 17.
As noted above, the Commonwealth did not file an appellate brief. The trial court, however, opined that Appellant's right to confront the witnesses against him was not violated because "the allegations against Appellant regarding the minor victim did not come from the minor victim." Trial Ct. Op. at 14. The court observed that "the allegations came from the other victims who all testified at trial [on] their observations of what happened that night with respect to the minor victim," and Appellant cross-examined those other victims. Id. With respect to the minor victim's sole statement, the trial court opined that the statement did not implicate Appellant. Id. We hold Appellant is due no relief.
Initially, we note that other than a reference to the Confrontation Clause in the United States and Pennsylvania Constitutions, Appellant's two-page argument is devoid of any legal citation and argument. See Appellant's Brief at 16-17. Thus, we find it waived. See Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) (holding, "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." (citations omitted)).
In any event,
whether a defendant has been denied his right to confront a witness under the Confrontation Clause of the Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, is a question of law, for which our standard of review is de novo and our scope of review is plenary.In re N.C., 105 A.3d 1199, 1210 (Pa. 2014) (citations omitted).
The Confrontation Clause of the Sixth Amendment, made applicable to the States via the Fourteenth Amendment, provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him . . . . In Crawford [ v. Washington , 541 U.S. 36, 51 (2004)], the Court held that the Sixth Amendment guarantees a defendant's right to confront those who bear testimony against him, and defined "testimony" as "a solemn declaration or affirmation made for the purpose of establishing or proving some fact."Commonwealth v. Yohe , 79 A.3d 520, 544 (Pa. 2013) (citation, brackets, footnote, and some quotation marks omitted).
"[T]he text of the Pennsylvania Constitution guaranteeing accused persons the right to confront the witnesses against them was made identical to the text of the Confrontation Clause in the Sixth Amendment to the United States Constitution. Specifically, the accused has the right 'to be confronted with the witnesses against him.'" Commonwealth v. Williams , 84 A.3d 680, 682 n.2 (Pa. 2014). "Accordingly, our Confrontation Clause analysis in the present case would be the same under both the United States Constitution and the Pennsylvania Constitution." See In re N.C., 105 A.3d at 1210 n.15.
The Crawford Court explained that the Confrontation Clause applies to witnesses against the accused. Crawford , 541 U.S. at 51 (citation omitted). "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. The Confrontation Clause also bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54. It necessarily follows that the Confrontation Clause is not triggered when (1) a witness does not testify or (2) the prosecution does not present a testimonial statement, i.e., "a solemn declaration or affirmation made for the purpose of establishing or proving some fact," by an unavailable witness. Id. at 51, 53-54, 59; Yohe , 79 A.3d at 544.
Instantly, the minor victim did not testify. The Commonwealth introduced no testimonial statement by the minor victim. The minor victim's statement, as recounted by his father, was not made under oath for the purpose of establishing a particular fact. See Yohe , 79 A.3d at 544. In fact, the only out-of-court testimonial statement introduced by the Commonwealth was by Ms. Danko, who also testified at trial. N.T. Trial at 288. Because the minor victim was not a trial witness and did not proffer any testimony, the Confrontation Clause is not implicated. See Crawford , 541 U.S. at 51; Yohe , 79 A.3d at 544. Appellant, under these circumstances, has no right to confront the minor victim. See Crawford , 541 U.S. at 51; Yohe , 79 A.3d at 544. Thus, even if Appellant did not waive the issue, we would have concluded it lacked merit. See In re N.C., 105 A.3d at 1120.
For his third claim, Appellant challenged the sufficiency of evidence for all of his convictions. He argues that the Commonwealth never established he received or possessed any of the stolen items. Appellant's Brief at 18. Appellant, however, has not cited or analyzed any law whatsoever. See id. at 18-19. Accordingly, he has waived the issue. See Johnson , 985 A.2d at 924.
In support of his fifth issue, Appellant challenges whether the Commonwealth met its burden that he caused "serious bodily injury" for his aggravated assault conviction. Appellant's Brief at 21. He acknowledges that all of the victims "claimed substantial pain and blood loss" but "none of them sought medical treatment." Id. Appellant also underscores the lack of, in his view, other corroborative evidence. Id. at 21-22. He therefore requests a new trial. Id. at 22. We conclude Appellant is due no relief.
As noted above, Appellant withdrew his fourth issue from consideration by this Court. See Appellant's Brief at 20.
We note the following:
A claim challenging the sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy provisions of the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Pennsylvania Constitution, Tibbs v. Florida , 457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982); Commonwealth v. Vogel , 501 Pa. 314, 461 A.2d 604 (1983), whereas a claim challenging the weight of the evidence if granted would permit a second trial. Id.Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000).
The standard of review for a challenge to the sufficiency of evidence is de novo, as it is a question of law. Commonwealth v. Ratsamy , 934 A.2d 1233, 1235 (Pa. 2007).
[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to support the verdict.Id. at 1235-36, 1237 (citations and some punctuation omitted).
* * *
When reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offense beyond a reasonable doubt.
In contrast to a sufficiency claim, a challenge to the credibility of a witness is a weight claim. Commonwealth v. Paquette , 301 A.2d 837, 841 (Pa. 1973). Such a claim must be raised before the trial court first or it is waived on appeal. Commonwealth v. Sherwood , 982 A.2d 483, 494 (Pa. 2009); see also Pa.R.Crim.P. 607(A).
Pennsylvania law defines aggravated assault, in relevant part, as follows:
(a) Offense defined.—A person is guilty of aggravated assault if he:
18 Pa.C.S. § 2702(a)(4).
* * *
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;
Instantly, Appellant's claim—that the witnesses were not credible given the absence of corroborative evidence—is more fairly described as a challenge to the weight of the evidence. See Paquette , 301 A.2d at 841. Indeed, Appellant requested a new trial, and such relief is barred by a successful challenge to the sufficiency of evidence. See Widmer , 744 A.2d at 751. Because Appellant did not challenge the weight of the evidence before the trial court, he has waived it on appeal. See Pa.R.Crim.P. 607(A); Sherwood , 982 A.2d at 494. Regardless, construing Appellant's claim as a sufficiency challenge, after reviewing the record in the light most favorable to the Commonwealth, we easily conclude that the evidence established that Appellant and his cohorts struck the victims with firearms causing bodily harm. See , e.g., N.T. Trial, 7/6-7/7/15, at 157-60. Contrary to Appellant's argument, see Appellant's Brief at 21, the Commonwealth was not required to establish "serious" bodily harm. See 18 Pa.C.S. § 2702(a)(4).
For Appellant's sixth claim, he argues that the evidence was insufficient to sustain his convictions for unlawful restraint of a minor. See Appellant's Brief at 23-24. Appellant, however, failed to cite or analyze any law whatsoever, see id., and has thus waived the issue on appeal. See Johnson , 985 A.2d at 924.
We summarize Appellant's arguments for his seventh and eighth issues. For his seventh issue, Appellant underscores the absence of any sexual offenses against the minor victim. He asserts that his convictions for unlawful restraint of a minor and false imprisonment of a minor are Tier III sexual offenses under SORNA. He contends the purpose of SORNA is to ensure sexual offenders are registered and instantly, there were no sexual offenses. Appellant points out that the Sexual Offenders Assessment Board did not find him to be a sexually violent predator. He opines that (1) SORNA is unconstitutional, and (2) lifetime registration under SORNA is cruel and unusual punishment, illegal, and also unconstitutional. In support of his eighth issue, Appellant also contends SORNA's lifetime registration requirement is unconstitutional. Appellant apparently challenges SORNA as it applies to him, as well as on its face. We hold he is due no relief.
Appellant is partially correct. Appellant's conviction for unlawful restraint of a minor-risk of serious bodily injury, 18 Pa.C.S. § 2902(b)(1), is a Tier I sexual offense. 42 Pa.C.S. § 9799.14(b)(1) (citing 18 Pa.C.S. § 2902(b)). Similarly, his conviction for false imprisonment of a minor, 18 Pa.C.S. § 2903(b), is also a Tier I sexual offense. 42 Pa.C.S. § 9799.14(b) (citing 18 Pa.C.S. § 2903(b)). A Tier III sexual offense is defined as, inter alia, including two or more Tier I convictions. 42 Pa.C.S. § 9799.14(d)(16).
For his eighth issue, Appellant's constitutional challenge spans a scant one-and-a-half pages in his appellate brief.
The standard of review follows:
Because statutory interpretation is a question of law, our standard of review is de novo, and our scope of review is plenary.
The object of interpretation and construction of all statutes is to ascertain and effectuate the intention of the General Assembly. When the words of a statute are clear and free from all ambiguity, their plain language is generally the best indication of legislative intent. A reviewing court should resort to other considerations to determine legislative intent
Braun v. Wal-Mart Stores , Inc., 24 A.3d 875, 953 (Pa. Super. 2011) (citations omitted), aff'd, 106 A.3d 656 (Pa. 2014).only when the words of the statute are not explicit. In ascertaining legislative intent, this Court is guided by, among other things, the primary purpose of the statute, . . . , and the consequences of a particular interpretation.
The standard of review follows:
A statute will not be found unconstitutional unless it clearly, palpably, and plainly violates the Constitution. If there is any doubt as to whether a challenger has met this high burden, then we will resolve that doubt in favor of the statute's constitutionality. The constitutionality of a statute presents a question of law for which our standard of review is de novo and our scope of review is plenary.Commonwealth v. Veon , 109 A.3d 754, 763 (Pa. Super. 2015) (internal quotation marks, brackets, and citations omitted), appeal granted in part, 121 A.3d 954 (Pa. 2015). A facial constitutional challenge to a statute is waived if the challenger fails to notify the Pennsylvania Attorney General. See Pa.R.A.P. 521; Kepple v. Fairman Drilling Co., 615 A.2d 1298, 1303 (Pa. 1992) (holding appellant waived facial constitutional challenge to statute by failing to notify attorney general under Rule 521).
A defendant convicted of a "sexually violent offense" is required to register with the police under SORNA. 42 Pa.C.S. § 9799.13. A "sexually violent offense" is defined as "An offense specified in section 9799.14 (relating to sexual offenses and tier system) as a Tier I, Tier II or Tier III sexual offense." 42 Pa.C.S. § 9799.12. Unlawful restraint of a minor and false imprisonment of a minor are defined as Tier I sexual offenses. 42 Pa.C.S. § 9799.14(b)(1)-(2). Two or more convictions of a Tier I sexual offense is considered a Tier III sexual offense. 42 Pa.C.S. § 9799.14(d)(16).
In Commonwealth v. McDonough , 96 A.3d 1067 (Pa. Super. 2014), appeal denied, 108 A.3d 34 (Pa. 2015), the defendant, who was not classified as a sexually violent predator, argued SORNA was "unconstitutional and illegal to require an individual to register as a sex offender for 15 years for a crime that carries a maximum penalty of only two years in prison." Id. at 1070. The McDonough Court rejected the defendant's argument:
Because we do not view the registration requirements as punitive but, rather, remedial, we do not perceive mandating compliance by offenders who have served their maximum term to be improper. Furthermore, the fact that an offender may be held until such information is furnished is no different from confining someone in a civil contempt proceeding. While any imprisonment, of course, has punitive and deterrent effects, it must be viewed as remedial if release is conditioned upon one's willingness to comply with a particular mandate.
Commonwealth v. Gaffney , 557 Pa. 327, 733 A.2d 616, 622 (1999) (emphasis added) (citations omitted). Similarly, in [ Commonwealth v. Benner , 853 A.2d 1068 (Pa. Super. 2004)], this Court also recognized that:
The registration provisions of Megan's Law do not constitute criminal punishment. The registration requirement is properly characterized as a collateral consequence of the defendant's plea, as it cannot be considered to have a definite, immediate and largely automatic effect on a defendant's punishment.
* * *
Because the registration requirements under Megan's Law impose only collateral consequences of the actual sentence, their application is not limited by the factors that control the imposition of sentence. Thus, while a defendant may be subject to conviction only under statutes in effect on the date of his acts, and sentence configuration under the guidelines in effect on that same date, the application of the registration requirements under Megan's Law is not so limited. This is so due to the collateral nature of the registration requirement.
Id. at 1071.
Benner , 853 A.2d at 1070-71.
While Gaffney and Benner were decided prior to the effective date of SORNA, the same principles behind the registration requirements for sexual offenders under Megan's Law apply to those subject to SORNA. Namely, to effectuate, through remedial legislation, the non-punitive goal of public safety. Gaffney , 733 A.2d at 619; see 42 Pa.C.S. § 9791(a) (legislative findings and declaration of policy behind registration of sexual offenders). In fact, one of the main purposes behind SORNA is to fortify the registration provisions applicable to such offenders. See 42 Pa.C.S. § 9799.10 (purpose of registration of sexual offenders under SORNA); see also H.R. 75, 195th Gen. Assemb. Reg. Sess. (Pa. 2012). With this purpose in mind, we cannot find that the law is unconstitutional as it applies to McDonough.
Instantly, SORNA's statutory language is unambiguous: unlawful restraint of a minor and false imprisonment of a minor are defined as Tier I sexual offenses. 42 Pa.C.S. § 9799.14(b)(1)-(2). Similarly, two or more Tier I convictions is included in the definition of a Tier III sexual offense. 42 Pa.C.S. § 9799.14(d)(16). SORNA did not include any language requiring a sexual component for these offenses as a prerequisite for sexual offender registration. See Braun , 24 A.3d at 953. Because SORNA's language is unambiguous, we cannot resort to other considerations. See id. Accordingly, notwithstanding the absence of any sexual offenses against the minor victim, Appellant is not exempt from SORNA's mandatory lifetime registration requirement. See id. Because Appellant was convicted of two Tier I sexual offenses, he is considered to have committed a Tier III sexual offense, see 42 Pa.C.S. § 9799.14(d)(16), and thus, Appellant is required to register for his lifetime. See 42 Pa.C.S. §§ 9799.13, 9799.15(a). We have no discretion to disregard the plain, unambiguous language of SORNA. See Braun , 24 A.3d at 953.
The legislature has deemed it appropriate to require registration for offenses that lack a sexual component.
Similarly, we are bound by the McDonough Court's rationale, and hold that SORNA is not unconstitutional as applied to Appellant. See McDonough , 96 A.3d at 1071. SORNA's lifetime registration requirement for Appellant, which exceeds his sentence of imprisonment, is constitutional as applied to him. See id. To the extent Appellant raised a facial challenge, he waived it by failing to comply with Pa.R.A.P. 521. See Pa.R.A.P. 521; Kepple , 615 A.2d at 1303 (holding appellant waived facial constitutional challenge to statute by failing to notify attorney general under Rule 521). For all these reasons, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/27/2016
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