Commonwealth v. Torsilieri

316 A.3d 77

COMMONWEALTH of Pennsylvania, Appellant

v.George J, TORSILIERI, Appellee

No. 97 MAP 2022

Supreme Court of Pennsylvania.

Argued: May 23, 2023

Decided: May 31, 2024

Appeal from the Order of the Chester County Court of Common Pleas, Criminal Division, dated August 22, 2022 (filed on August 23, 2022) at No. CP-15-CR-1570-2016. Allison B. Royer, Judge

Joshua William Brownlie, John Jacob Hare, Esqs., Marshall Dennehey Warner Coleman & Goggin, P.C., for Amicus Curiae Sixteen Legal Scholars.

Andrew Nicholas D’Aversa, Jason A. Leckerman, Michael R. McDonald, Esqs., Ballard Spahr LLP, for Amicus Curiae Assessment and Treatment Alternatives and Joseph J. Peters Institute.

Courtney Marie Karasek, Esq., Department of Corrections, Abby Nicole Trovinger, Esq., Pennsylvania Office of General Counsel, for Amicus Curiae PA Office of Victim Advocate.

Stevan Kip Portman, Esq., Commonwealth of Pennsylvania, for Amicus Curiae Pennsylvania State Police.

Maureen Flannery Spang, Kevin R. Steele, Esqs., PA District Attorneys Association, for Amicus Curiae Pennsylvania District Attorneys Association.

Andrea M. Levy, Esq., Pennsylvania Coalition Against Rape, for Amicus Curiae Pennsylvania Coalition Against Rape.

Ronald Eisenberg, Michelle Ann Henry, Tracy Saylor Piatkowski, Esqs., Pennsylvania Office of Attorney General, for Appellant.

Arielle Egan, Esq., Wiseman and Schwartz, Aaron Joshua Marcus, Esq., Defender Association of Philadelphia, Emily Lynne Mirsky, Marni Jo Snyder, Esqs., Law Offices of M.J. Snyder, LLC, for Appellee.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

CHIEF JUSTICE TODD

In this direct appeal following a remand, we consider whether the General Assembly’s determination, in Pennsylvania’s Sexual Offender Registration and Notification Act ("SORNA")¹, that individuals who commit sexual offenses pose a high risk of committing additional sexual offenses constitutes an unconstitutional irrebuttable presumption violative of due process, because it impairs the right to reputation under the Pennsylvania Constitution.² In addition, we are asked to determine whether the registration and notification requirements in Subchapter H of SORNA constitute criminal punishment, which serves as the predicate for various constitutional challenges to the legislation. For the reasons that follow, we conclude that SORNA withstands these challenges, and, thus, reverse the order of the Chester County Court of Common Pleas.

I. Background

[1] By way of brief background, to contextualize the factual and procedural history of this appeal as well as the parties’ arguments, the first issue before us concerns a presumption which largely un- dergirds the criminal justice system’s treatment of sex offenders: that those who commit sexual offenses pose a high risk to reoffend. The General Assembly has memorialized this presumption in its legislative findings: "Sexual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest." 42 Pa.C.S. § 9799.11(a)(4). To challenge such assumptions under the irrebuttable presumption doctrine, a challenging party must demonstrate: (1) an interest protected by the due process clause; (2) utilization of a presumption that is not universally true; and (3) the existence of a reasonable alternative means to ascertain the presumed fact. In re J.B., 630 Pa. 408, 107 A.3d 1, 15-16 (2014). In In re J.B., our Court considered the irrebuttable presumption that juvenile offenders pose a high risk of committing additional sexual offenses; we found such presumption denied juveniles due process because it impaired their right to reputation protected by Article I, Section 1 of the Pennsylvania Constitution, We now address this same issue with respect to adult sexual offenders.

The second issue we will consider involves whether Subchapter H constitutes criminal punishment. Whether a statute is punitive in nature is a threshold question for determining the viability of the various constitutional challenges brought in this matter, including whether the legislation unconstitutionally usurps judicial power over sentencing in violation of the separation of powers doctrine,³ violates the United States Constitution’s prohibition on cruel and unusual punishment,⁴ and infringes upon the right to a trial by jury by failing to require that facts that increase the punishment imposed on the underlying crime be found by a reasonable doubt.⁵ It is a gateway inquiry, as legislation must be deemed to be in the nature of criminal punishment to invoke the protections of these constitutional provisions. Our Court has considered the punitive nature of various Pennsylvania sex offender statutes, including Megan’s Law and its progeny. See Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999) (concluding the notification requirements of Megan’s Law I were not punitive, and, therefore, did not violate ex post facto protections); Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999) ("Williams I") (striking Megan’s Law I sexually violent predator provisions as imposing criminal punishment and violating due process guarantees); Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003) ("Williams II") (upholding Megan’s Law II’s provisions as not constituting criminal punishment); Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017) (plurality) (finding SORNA’s provisions to be punitive, and retroactive application to violate federal ex post facto protections); Commonwealth v. LaCombe, 660 Pa. 568, 234 A.3d 602 (2020) (holding retroactive application of Subchapter I of SORNA was not punitive or an unconstitutional ex post facto violation). We now address this same issue with respect to Subchapter H of SORNA.

II. Facts

With this context in hand, we turn to the facts and procedural history underlying this appeal. In 2017, after a six-day trial, a jury convicted Appellee, George Torsilieri, of one count each of aggravated indecent assault, 18 Pa.C.S. § 3125(a)(1), and indecent assault, id. § 3126(a)(1), for an attack on a woman in the early morning hours of November 14, 2015. The jury, however, acquitted him of sexual assault, id. § 3124.1.

Prior to sentencing, the Sex Offenders Assessment Board ("SOAB") conducted an evaluation and determined Appellee did not meet the criteria to be designated as a sexually violent predator. On November 27, 2017, Judge Anthony A. Scarcione of the Chester County Court of Common Pleas sentenced Appellee to a term of incarceration of 1 to 2 years imprisonment (minus one day on each end), followed by three years of probation.

As a result of his conviction for aggravated indecent assault, Appellee was automatically categorized under Subchapter H of SORNA as a Tier III sexual offender. This designation subjected him to lifetime registration and notification regarding a panoply of changes in his personal life, which we will discuss more fully below, including his address, employment status, and significant change in physical appearance, with the Pennsylvania State Police ("PSP"). 42 Pa.C.S. § 9799.14(d)(7); id. § 9799.16(c)(4).

On February 21, 2018, the General Assembly enacted Act 10 of 2018, which amended SORNA to address the constitutional shortcomings found by our Court in Muniz, supra. In doing so, the legislature divided the registration statute into two chapters. Subchapter H, at issue in this appeal, was applied to sexual offenders who committed their offenses on or after December 20, 2012, and, thus, to whom Muniz’s prohibition against retroactive application of SORNA did not apply. See 42 Pa.C.S. §§ 9799.10-9799.42. Subchapter I, an entirely new subchapter, was applied to sexual offenders who committed their offenses prior to December 20, 2012, and whose registration obligations were potentially affected by Muniz. See id. §§ 9799.51-9799.75. As his assault took place in 2015, and, thus, after December 20, 2012, Appellee was subjected to the requirements of Subchapter H, and so our Court’s decision in Muniz, rendered two weeks after Appellee’s conviction, did not impact him.

Seemingly addressing assertions that the prior registration and notification requirements were punitive, the General Assembly modified some of SORNA’s provisions, creating a procedure by which a Tier II or III offender’s in-person semi-annual or quarterly registrations could be reduced after three years and replaced with annual in-person and semi-annual or quarterly telephone registrations, if the offender complied with all registration requirements for the first three years and had not been convicted of another offense punishable by more than a year of incarceration. Id. § 9799.25(a.l). It additionally limited the non-sexual offenses triggering SORNA registration and provided a process for sexual offenders to petition for removal from the registry after 25 years, if they have not been convicted of an offense punishable by more than a year of incarceration, and if they prove by "clear and convincing evidence that exempting the sexual offender … is not likely to pose a threat to the safety of any other person." Id. § 9799.15(a.2)(5).

Relevant to this matter, on May 18, 2018, Appellee filed a post-sentence motion in which he alleged that the registration and notification provisions of Subchapter H violated his due process rights under the Pennsylvania Constitution, including the contention that the legislative underpinnings of Subchapter H were empirically false. In support thereof, he cited and attached reports and sworn affidavits from experts who had performed studies on the recidivism potential of sex offenders, certain of which are summarized below, which he claimed supported the conclusion that the application of these registration and notification provisions was unconstitutional. According to Appellee, the registration and notification provisions rested on SORNA’s stated presumption that sexual offenders...