from the Order of the Commonwealth Court at No. 728 MD 2012
dated June 9, 2016
NOW, this 16th day of August, 2017, the
Commonwealth Court's ruling dated June 9, 2016 is
affirmed in part and reversed in part:
(1) that portion of the ruling granting the Suggestion of
Mootness filed by the Pennsylvania Board of Probation and
Parole is hereby AFFIRMED; and
(2) that portion of the ruling granting the Preliminary
Objections filed by the Pennsylvania State Police and
denying the Motion for Summary Judgment filed by Appellant
Leroy Spann is hereby REVERSED. See Commonwealth v.
Muniz, __ A.3d __, 47 MAP 2016 (Pa. July 19, 2017).
case is hereby remanded to the Commonwealth Court for the
entry of an appropriate order granting mandamus relief.
Justice Saylor and Justice Mundy file concurring statements.
I dissented in the controlling case, Commonwealth v.
Muniz, __ Pa. __, __, __ A.3d __, __, 2017 WL 3173066
(July 19, 2017) (Opinion Announcing the Judgment of the
Court), I recognize that there was a majority consensus in
that decision to the effect that SORNA exacts punishment and
retroactive application of the enactment violates
constitutional norms. Accordingly, while I have expressed my
disagreement with these propositions, see id. at __,
__ A.3d at __, 2017 WL 3173066, at *34-39 (Saylor, C.J.,
dissenting), I join the present per curiam order
based on the prevailing precedent.
that in light of this Court's recent decision in
Commonwealth v. Muniz, __ A.3d __, 2017 WL 3173066
(Pa. July 19, 2017), the Commonwealth Court erred in
rejecting Appellant's argument that SORNA is an ex
post facto law. However, if I were writing on a blank
slate, I would conclude that SORNA does not violate the
Ex Post Facto Clauses of the Federal and
previously expressed my views in this area in
Commonwealth v. Perez, 97 A.3d 747 (Pa. Super.
2014). Therein, the Superior Court balanced the factors
articulated under Kennedy v. Mendoza-Martinez, 372
U.S. 144 (1963). The panel concluded that SORNA's
requirement that an offender appear physically in person to
regularly update his or her information was "an
affirmative restraint, " weighing in favor of concluding
SORNA was punitive, and therefore an ex post facto
law. Perez, 97 A.3d at 754. However, the court also
concluded that the other six factors did not weigh in favor
of concluding SORNA was punitive. See id. 754-58.
Balancing these factors, Perez concluded that SORNA
was not punitive, and therefore not an ex post facto
law under the Federal Constitution. Id. at 758-59.
continue to believe that Perez was correctly decided
and struck the proper balance under controlling cases from
the Supreme Court of the United States. I therefore disagree
with Muniz's conclusion that SORNA violates the
Ex Post Facto Clause of the Federal Constitution.
Even assuming that Muniz's federal
constitutional analysis was correct, its analysis should have
properly ended there, since any claim under the Pennsylvania
Constitution is moot. See generally Pap's A.M. v.
City of Erie, 719 A.2d 273, 281 n.12 (Pa. 1998)
(concluding that since a local ordinance violated the First
Amendment of the Federal Constitution, there was no need to
consider whether the ordinance also violated the Pennsylvania
Constitution), rev'd, 529 U.S. 277 (2000). Since
the Court decided to reach that argument, I ...