HomeMy WebLinkAbout97-1333 CriminalCOMMONWEALTH :
:
V. :
:
RICHARD M. MOONEY :
OTN: F003409-0
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 97-1333 CRIMINAL TERM
IN RE: DEFENDANT'S MOTION CHALLENGING THE CONSTITUTIONALITY OF
THE "SEXUALLY VIOLENT PREDATOR" pRQVI$ION$ OF
PENNSYLVANIA'S MEGAN'S LAW
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this [~1 day of May, 1998, upon consideration of
Defendant's Motion Challenging the Constitutionality of the
"Sexually Violent Predator" Provisions of Pennsylvania's Megan's
Law, and for the reasons stated in the accompanying opinion, the
motion is granted to the extent indicated in the opinion, the
hearing pursuant to Section 9794(e) of the Judicial Code scheduled
for June 11, 1998, at 9:00 a.m., is cancelled, and Defendant is
directed to appear for sentence as previously scheduled on June 23,
1998, at 9:30 a.m.
Travis N. Gery, Esq.
Assistant District Attorney
William J. Fulton, Esq.
106 Walnut Street
Harrisburg, PA 17101
Attorney for Defendant
BY THE COURT,
J~Wesley Ole~2~Jr. ,' ~'
COMMONWEALTH :
:
V. :
:
RICHARD M. MOONEY :
OTN: F003409-0
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 97-1333 CRIMINAL TERM
IN RE: DEFENDANT'S MOTION CHALLENGING THE CONSTITUTIONALITy OF
THE "SEXUALI,Y VIOLENT PREDATOR" PROVISIONS OF
PENNSYLVANIA'S MEGAN'S LAW
BEFORE OLER, J,
OPINION and ORDER OF COURT
Oler, J., May 1, 1998
In this criminal case, Defendant was found guilty followin9 a
jury trial of indecent assault upon his twelve-year old daughter.
Pursuant to Section 9794(e) of the Judicial Code,~ Defendant was
ordered to be assessed by the Pennsylvania Sexual Offenders Board2
and a status determination hearin9 was scheduled prior to
sentencin~ to determine whether Defendant should be designated a
sexually violent predator pursuant to Pennsylvania,s Me~an's Law.3
Prior to the hearing, Defendant filed the motion sub judice
challengin~ in certain respects the constitutionality of
Pennsylvania's Me~an's Law.
STATEMENT OF FACT$
Defendant's conviction arose out of incidents of sexual
contacts between Defendant and his minor daughter at the family
home on several occasions, beginnin9 when the child was eleven
years old.
~ Act of October 24, 1995, P.L. 1079, § 1, as amended, 42 Pa.
C.S.A. § 9794(a) .
Order of Court, dated November 26, 1997.
3 Act of Oct. 24, 1995, P.L. 1079, § 1, as amended, 42 Pa.
C.S.A. §§ 9791-99.6.
Following a jury trial, Defendant was found guilty of indecent
assault, an offense enumerated in Section 9793(b) of the Judicial
Code.4 Pursuant to Section 9794 of the Judicial Code, an
"offender convicted of any offense set forth in section 9793(b)
shall be presumed ... to be a sexually violent predator,,,~ and must
be assessed by the Pennsylvania Sexual Offenders Board.~ The
offender can rebut the presumption at the status determination
hearing which must be held prior to sentencing in which the court
determines if the offender is a sexually violent predator.7 Once
the court finds that an offender is a sexually violent predator,
the offender is subject to a sentence enhancement, counseling,
registration and notification requirements.8 These provisions of
the Judicial Code are part of what is commonly referred to as
Pennsylvania's Megan's Law.9
Accordingly, Defendant was ordered to be assessed by the
Pennsylvania Sexual Offenders Board and a status determination
hearing was scheduled. Prior to the hearing, Defendant filed the
4 Act of October 24, 1995, P.L. 1079, § 1, as amended, 42 Pa.
C.S.A. § 9793(b) (3).
s Act of October 24, 1995, P.L. 1079, § 1, as amended, 42 Pa.
C.S.A. § 9794(b) .
~ Act of October 24, 1995, P.L. 1079, § 1, as amended, 42 Pa.
C.S.A. § 9794(a) .
? Act of October 24, 1995, P.L. 1079, § 1, as amended, 42 Pa.
C.S.A. § 9794(e) .
8 Act of October 24, 1995, P.L. 1079, § 1, as amended, 42 Pa.
C.S.A. §§ 9795, 9797, 9798, and 9799.4.
9 Act of October 24, 1995, P.L. 1079, § 1, as amended, 42 Pa.
C.S.A. §§ 9791 to 9799.6.
2
motion sub judice challenging the constitutionality of
Pennsylvania's Megan's Law, contending that the sexually violent
predator provisions are unconstitutional under the Constitution of
the United States and the Constitution of the Commonwealth of
Pennsylvania for the following reasons:
a) The law punishes and tries the defendant twice for the
same offense;
b) The law can not prognosticate dangerous and criminal
behavior in the defendant's future;
c) The law diagnoses an affliction or infirmity ... upon
the defendant and a suspect class which is vague,
defamatory, and discriminatory ...;
d) The law can not be shown to prevent anticipated harms
to the citizens when balanced with the burdens put upon
an irrationally selected and designated class;
e) The law permits defendant's assessment ... and a life
sentence by mere presumption, while requiring the
defendant to establish his innocence or exempt status by
clear and convincing evidence without a right to jury
trial;
f) The law permits an assessment in a non-adversarial
forum by the board without allowing confrontation, cross-
examination, representation by counsel, or testimony;
g) The law permits a legislatively created board to
dictate and bind the judiciary to hold findings and facts
as true without due process while disregarding rules of
evidence and the separation of powers.~°
In Commonwealth v. Dick, No. 97-0913 Criminal Term (Cumberland
County) (April 29, 1998), the Honorable Kevin A. Hess of this court
analyzed the constitutionality of the sexually violent predator
provisions of Pennsylvania's Megan's Law. Judge Hess held that the
~0 Defendant's Motion Challenging the Constitutionality of the
"Sexually Violent Predator" Provisions of Pennsylvania's Megan's
Law, paragraph 6.
3
presumption created by Section 9794 of the Judicial Code that any
"offender convicted of any offense set forth in section 9793(b)
shall be presumed ... to be a sexually violent predator,''~ in
relation to the sentence enhancement and notification provisions of
Megan's Law violates due process and is therefore invalid.
The holding and rationale of Judge Hess's opinion in Dick is
adopted in this case, and the opinion is attached hereto and made
a part hereof. Therefore, the following order will be entered:
ORDER OF COURT
AND NOW, this ~ day of May, 1998, upon consideration of
Defendant's Motion Challenging the Constitutionality of the
"Sexually Violent Predator" Provisions of Pennsylvania's Megan's
Law, and for the reasons stated in the accompanying opinion, the
motion is granted to the extent indicated in the opinion, the
hearing pursuant to Section 9794(e) of the Judicial Code scheduled
for June 11, 1998, at 9:00 a.m., is cancelled, and Defendant is
directed to appear for sentence as previously scheduled on June 23,
1998, at 9:30 a.m.
BY THE COURT,
J. Wesley Olero Jr,
J. Wesley Oler, Jr., J.
~ Act of October 24, 1995, P.L. 1079, § 1, as amended, 42 Pa.
C.S.A. § 9794(b) .
Travis N. Gery, Esq.
Assistant District Attorney
William J. Fulton, Esq.
106 Walnut Street
Harrisburg, PA 17101
Attorney for Defendant