from the Judgment of Sentence Entered March 26, 2018 In the
Court of Common Pleas of Mercer County Criminal Division at
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
Lee Andrew Moore, appeals from the Judgment of Sentence
entered on March 26, 2018. At issue in this case is whether
Acts 10 and 29 of 2018 ("SORNA II"), which require
the Pennsylvania State Police ("PSP") to
disseminate via the Internet registration information about
sex offenders, violate the Ex Post Facto Clause of
the U.S. Constitution. In light of our Supreme Court's
decision in Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017), we conclude that the Internet dissemination
provision of SORNA II violates the federal prohibition
against ex post facto laws. Accordingly, we affirm
Appellant's Judgment of Sentence, but direct the removal
of his entry from the state police sex offender website.
only state briefly the underlying facts and procedural
history in order to analyze properly the constitutionality of
the public dissemination provisions of SORNA II. Between 2004
and 2008, Appellant sexually abused his former stepson.
See Commonwealth v. Moore, 2009 WDA 2013, at 1 (Pa.
Super. filed Dec. 8, 2014) (unpublished memorandum),
appeal denied, 117 A.3d 296 (Pa. 2015). In July
2013, following a jury trial, Appellant was convicted of
Involuntary Deviate Sexual Intercourse, Unlawful Contact with
Minor, Statutory Sexual Assault, Corruption of Minors, and
Indecent Assault.Id. at 2. The trial court
sentenced Appellant to an aggregate term of nine to
twenty-five years of imprisonment. Id. Appellant
timely appealed, but this Court denied relief. Id.
Appellant sought collateral relief, challenging the legality
of his sentence. In February 2018, the lower court granted
Appellant relief and vacated his Judgment of Sentence.
See PCRA Ct. Order, 2/2/18. Following a hearing, the
lower court imposed a new aggregate sentence of five and
one-half to seventeen years of incarceration followed by
twelve years of probation. N.T. Sentencing, 3/26/18, at
40-42. The trial court also notified Appellant that SORNA II
required that after he is released from prison, he must
register as a convicted sexual offender with the PSP for the
remainder of his life.
timely filed a Post-Sentence Motion, challenging his
obligation to register as a convicted sexual offender.
Post-Sentence Motion, 4/4/18. According to Appellant, the
registration requirements set forth in SORNA II include
several punitive elements not in effect at the time he
committed his crimes. Id. at 2 (unpaginated). Thus,
according to Appellant, the requirements violated the federal
constitutional ban on ex post facto laws. See
id. Following argument, the lower court denied relief.
Sentencing Ct. Order, 10/3/18.
timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement. In its responsive Opinion, the lower court
rejected Appellant's constitutional claim, concluding
that SORNA II was not punitive in either intent or effect.
See Sentencing Ct. Op., 12/12/18, at 7-12.
Appellant raises the following issues on appeal:
1. [Whether] the sex offender registration provisions
established by Acts 10 and 29 of 2018 [are] unconstitutional
as applied to an individual whose offense dates pre-dated
2. [Whether] the punitive registration and publication
provisions established by Acts 10 and 29 of 2018 [are]
Appellant's Br. at 6.
broadly worded, Appellant's first issue presents a narrow
challenge to the manner in which SORNA II requires the PSP to
disseminate the information that a sex offender provides to
the PSP pursuant to 42 Pa.C.S. § 9799.63 ("Section
9799.63"). Appellant's Br. at 10. Section 9799.63
provides in relevant part:
The Commissioner of the [PSP] shall . . . [d]evelop and
maintain a system for making the information described in
subsection (c) publicly available by electronic means so that
the public may, without limitation, obtain access to the
information via an Internet website to view an individual
record or the records of all sexually violent predators,
lifetime registrants and other offenders who are registered
with the [PSP].
42 Pa.C.S. 9799.63(b).
Appellant asserts that Section 9799.63 is punitive because
the provision is akin to traditional forms of punishment,
adversely affects his reputation, and is excessive in
relation to the General Assembly's remedial intentions.
See Appellant's Br. at 9-15. This punitive
impact, according to Appellant, renders Section 9799.63
unconstitutional when applied retroactively to offenders such
as Appellant, whose criminal conduct preceded the enactment
of Section 9799.63. See id.
consider Appellant's claim, mindful that lawfully enacted
statutes are presumptively constitutional. Commonwealth
v. Lee, 935 A.2d 865, 876 (Pa. 2007); Commonwealth
v. Williams, 832 A.2d 962, 973 (Pa. 2003). A
constitutional challenge presents a question of law.
Commonwealth v. Molina, 104 A.3d 430, 441 (Pa.
2014). Thus, our standard of review is de novo, and
our scope of review is plenary. Id.; Lee,
935 A.2d at 876.
Ex Post Facto Claim
constitutional prohibition against ex post facto
laws ensures "'fair warning' about what
constitutes criminal conduct, and what the punishments for
that conduct entail." Muniz, 164 A.3d at 1195.
Thus, "[c]ritical to relief under the Ex Post
Facto Clause is not an individual's right to less
punishment, but the lack of fair notice and governmental
restraint when the legislature increases punishment beyond
what was prescribed when the crime was consummated."
Id. (quoting Weaver v. Graham, 450 U.S. 24,
determine whether Section 9799.63 constitutes retroactive
punishment, we employ a two-step inquiry. Smith v.
Doe, 538 U.S. 84, 92 (2003); Muniz, 164 A.3d at
1208; Williams, 832 A.2d at 971. Initially, we must
ascertain whether the legislative intent was to enact a
civil, remedial scheme or impose punishment. Smith,
538 U.S. at 92. If the intent was non-punitive, then we
proceed to the second step and consider whether the provision
is "so punitive either in purpose or effect as to negate
the legislature's non-punitive intent."
Muniz, 164 A.3d at 1208 (quoting Williams,
832 A.2d at 971). "[O]nly the clearest proof will
suffice to override legislative intent and transform what has
been denominated a civil remedy into a criminal
penalty." Smith, 538 U.S. at 92 (internal
quotation marks and citation omitted).
Intent of Section 9799.63
2011, the Pennsylvania General Assembly passed the Sex
Offender Registration and Notification Act ("SORNA
I"), Act of Dec. 20, 2011, P.L. 446, No. 111, as
amended, 42 Pa.C.S. §§ 9799.10 to 9799.41
(effective Dec. 20, 2012) in order to comply with the Adam
Walsh Child Protection and Safety Act of 2006 (Adam Walsh
Act), Pub. L. 109-248, as amended, 34 U.S.C.
§§ 20911, et seq. In 2017, our Supreme
Court determined that the retroactive application of SORNA I
violated the federal Ex Post Facto Clause.
Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa.
response, the General Assembly passed SORNA II, dividing
SORNA II into two distinct subchapters-Subchapter H, which
applies to "individuals who committed a sexually violent
offense on or after December 20, 2012, for which the
individual was convicted[, ]" 42 Pa.C.S. §
9799.11(c), and Subchapter I, which applies to individuals
who committed a sexually violent offense "on or after
April 22, 1996, but before December 20, 2012," and whose
period of registration has not yet expired or whose
registration requirements under a former sexual offender
registration law have not expired. 42 Pa.C.S. § 9799.52.
respect to the provisions that require the PSP to disseminate
information about the sex offender via the Internet, the
legislature expressed its intention that "public safety
will be enhanced by making information about . . . [various
sex offenders] available to the public through the Internet
and electronic notification." 42 Pa.C.S.
§9799.63(a). The legislature further found that
"[k]nowledge of whether a person is a . . . [convicted
sex offender] could be a significant factor in protecting
oneself and one's family members . . . from recidivist
acts by [sex offenders.]" Id. The legislature
concluded that the "technology afforded by the Internet
and electronic notification would make this information
readily accessible to parents and private entities, enabling
them to undertake appropriate remedial precautions to prevent
or avoid placing potential victims at risk."
Id. Most importantly to our analysis of the
legislative purpose in mandating dissemination via the
Internet, the legislature stated that public access to the
information that the sex offender provides to PSP "is
intended solely as a means of public protection and shall not
be construed as punitive." Id.
accord a legislature considerable deference to the intent
stated in its legislative proclamation. Smith, 538
U.S. at 93. The statutory text set forth above is clear and
defines a non-punitive objective-assure public safety by
disseminating information about sexual offenders. Moreover,
our Supreme Court has interpreted similar language as
indicative of the General Assembly's remedial intent.
See Muniz, 164 A.3d at 1209-10 (addressing similar
declaration of policy in SORNA I, Subchapter H);
Williams, 832 A.2d at 971-72 (Megan's Law II);
Commonwealth v. Gaffney, 733 A.2d 616, 619 (Pa.
1999) (Megan's Law I). For these reasons, we conclude the
General Assembly's intent was to create a civil, remedial
consider whether the Section 9799.63 is sufficiently punitive
in effect to overcome the General Assembly's non-punitive
purpose. See Muniz, 164 A.3d at 1210. This analysis
involves examining factors identified by the United States
Supreme Court. See Williams, 832 A.2d at 972-73
(citing Kennedy v. ...