HomeMy WebLinkAboutCP-21-CR-0002304-2011 (2)
COMMONWEALTH
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v.
:
:
DONALD JOHN MCCAUSLIN
: CP-21-CR-2304-2011
IN RE: DEFENDANT’S AMENDED POST-SENTENCE MOTIONS FOR RELIEF
OPINION and ORDER
For consideration at this time are Defendant’s Amended Post-Sentence Motions for
Relief. (Defendant’s Amended Post-Sentence Motions for Relief, filed Jan. 8, 2013). Following
a trial by jury, Defendant was convicted of aggravated indecent assault, indecent assault, and
corruption of minors. On November 7, 2012, Defendant was sentenced to 22-48 months
incarceration for aggravated indecent assault, 9-24 months for corruption of minors, and 3-24
months for indecent assault, the sentences to run concurrently. (Order of Court, In Re:
Sentencing, filed Nov. 7, 2012). Defendant has filed the instant amended post-sentence motions
asserting, first, that the evidence presented at trial was insufficient to sustain the aforementioned
convictions, second, that Defendant is entitled to bail pending his appeal, and, lastly, that the
registration requirements under the new Sex Offender Registration and Notification Act
(SORNA), effective December 20, 2012, are unconstitutional as applied to Defendant;
specifically, Defendant contends that the retroactive application of the new provisions of
SORNA are a violation of Defendant’s substantive and procedural due process rights under both
Article I, Section 17 of the Pennsylvania Constitution and Article I, Section 9, Clause 3 of the
Constitution of the United States. For the reasons that follow, Defendant’s Amended Post-
Sentence Motions will be denied.
The facts of this case may be summarized as follows. By way of a criminal information,
filed September 8, 2011, Defendant was charged with fifteen counts of violations of the
Pennsylvania Crimes Code. (Information, filed Sep. 8, 2011). Specifically, Defendant was
charged with the following: rape, a violation of 18 Pa.C.S.A. § 3121(a)(1); rape of a child, a
violation of 18 Pa.C.S.A. § 3121(c); involuntary deviate sexual intercourse, a violation of 18
Pa.C.S.A. § 3123(a)(1); involuntary deviate sexual intercourse (offenses prior to 12/9/2002), a
violation of 18 Pa.C.S.A. § 3123(a)(6); involuntary deviate sexual intercourse, a violation of 18
Pa.C.S.A. § 3123(a)(7); involuntary deviate sexual intercourse with a child, a violation of 18
Pa.C.S.A. § 3123(b); aggravated indecent assault of a child, a violation of 18 Pa.C.S.A. §
3125(b); statutory sexual assault, a violation of 18 Pa.C.S.A. § 3122.1; aggravated indecent
assault, a violation of 18 Pa.C.S.A. § 3125(a)(1); aggravated indecent assault, a violation of 18
Pa.C.S.A. § 3125(a)(7); aggravated indecent assault, a violation of 18 Pa.C.S.A. § 3125(a)(8);
indecent assault, a violation of 18 Pa.C.S.A. § 3126(a)(7); corruption of minors, a violation of 18
Pa.C.S.A. § 6301(a)(1); indecent assault, a violation of 18 Pa.C.S.A. § 3126(a)(1); and indecent
assault, a violation of 18 Pa.C.S.A. § 3126(a)(8). (Information, filed Sep. 8, 2011). A jury trial
was held on April 30, 2012 through May 2, 2012 with the undersigned judge presiding.
At trial, the Commonwealth called four witnesses: B.T., the victim in this case
(hereinafter “the victim”); Julian Darden, a friend and confidant of the victim; M.T., the mother
of the victim (hereinafter “the mother”); and Cpl. Bryan R. Henneman, the Pennsylvania State
Police trooper who received the initial information that the victim had been subjected to sexual
abuse and led the subsequent investigation. In addition to testifying on his own behalf,
Defendant presented the testimony of his sons, Aaron McCauslin and Andrew McCauslin; and
Daniel Harris, a long-time neighbor and friend of Defendant.
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In the Commonwealth’s case-in-chief, the victim testified to a long history of sexual
abuse by her stepfather, the Defendant, beginning when she was approximately seven years old
and lasting until she was seventeen. (Notes of Testimony, 29-63, In Re: Jury Trial Proceedings,
Apr. 30 - May 2, 2012 (hereinafter “N.T. __”)). The victim testified that her mother met
Defendant when the victim was four years old, that the mother and victim moved in with
Defendant shortly thereafter, and that the mother and Defendant married when the victim was
approximately six or seven years old. (N.T. 26). The victim had one biological brother, and
Defendant had two sons, all of whom resided together for the majority of the victim’s young
adolescence. (N.T. 27).
The victim testified that the “first time something happened” between the victim and
Defendant occurred while the family was living in a trailer on the Holly Pike in Carlisle,
Cumberland County, Pennsylvania. (N.T. 29-30). Specifically, the victim testified that, when
she was seven years old, she went “camping in my backyard” with Defendant and her three
brothers. (N.T. 30). She testified that it was Defendant’s idea to go camping, and that at some
point during the night Defendant touched her vagina with his hands. (N.T. 30). She further
testified that, at the direction of Defendant, she was wearing her mother’s underwear the night
that Defendant touched her. (N.T. 30). The victim testified that, while this alleged sexual abuse
was occurring, her brothers were sleeping next to the victim and Defendant in the tent. (N.T. 31).
Shortly after the night of camping, the victim testified that, when she was either seven or
eight years old, Defendant first directed her to perform oral sex on him. (N.T. 32). She testified
that the oral sex became more frequent as she got older, that he ejaculated in her mouth, that she
would perform the oral sex on him, and he would perform on her, and that it would occur
“whenever he told me to do it.” (N.T. 35-43). The victim testified that Defendant taught her
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various sexual acts by telling her and showing her pornography. (N.T. 61). The victim further
testified that the first time the two had intercourse was shortly after September 11, 2001, when
the victim was approximately twelve years old. (N.T. 36-37). Specifically, the victim testified
that “[h]e stuck his penis inside…my vagina.” (N.T. 38). The sexual intercourse continued until
the victim reached the age of seventeen, at which point she moved out of the residence. (N.T.
38). The victim testified that she did not want the sexual activity to occur and that she did not
consent to it. (N.T. 62). The victim testified that often the Defendant would provide her with
lunch or ice cream in return for performing sexual acts; additionally, she testified Defendant
would often pressure her to fake an illness, causing her to miss days in school, and resulting in
the victim remaining at home alone during the day with Defendant. (N.T. 40-41).
The victim testified that throughout the years she tried a number of ways to end the
sexual abuse; however, she testified that “[w]hen I said no, he would treat me and my brother
like pieces of crap.” (N.T. 40). She testified that Defendant would yell, clench his fists, and
treat them poorly. (N.T. 40). The victim testified that when she told her brother, Aaron
McCauslin, about the sexual abuse the day after the family went camping, Defendant “beat my
ass. . .with his hand” as a result. (N.T. 42).
The victim testified that she remained afraid to tell anyone of the abuse until she reached
the age of seventeen, at which time she confided in her personal friend, Julian Darden, and told
him of the years of sexual abuse. (N.T. 55). Although unrelated to the victim’s revelation of the
abuse, it was not long thereafter that the victim’s mother and Defendant separated in 2009. (N.T.
58). Two years later, in June or July of 2011, the victim testified that she finally told her mother
of the abuse. Specifically, the victim testified that one evening she and her mother were arguing
because the victim had not been permitted to spend the night at the house of a friend. (N.T. 58-
4
59). The victim testified that she sent a text message to her mother stating, “it is not okay for me
to be at my friend’s house all night but it is okay for your husband to fuck me for ten years.”
(N.T. 59). Upon receiving the text message, the mother called the police and that same day took
the victim to the police station whereupon she gave her initial report. (N.T. 59-60). Subsequent
to generating the initial report, the victim met with Trooper Henneman of the Pennsylvania State
Police and thereafter aided with the investigation. (N.T. 60).
The victim also testified concerning a consensual wiretap that occurred in 2011 at the
direction of Trooper Henneman. The wiretap involved a phone call that was placed by the
victim to Defendant whereupon the victim falsely informed Defendant that she had contracted a
sexually transmitted disease and was pregnant. (N.T. 92). The victim stated to Defendant that
she “needed to know the last time he was tested to know if he had given it to [the victim] or not.”
(N.T. 92). Defendant responded that the last time they had intercourse was “over two years
ago,” thereby indicating that their most recent intercourse had occurred sometime in 2009. (N.T.
81).
The Commonwealth also presented the testimony of Julian Darden, a close personal
friend of the victim. (N.T. 94). Mr. Darden testified to the closeness of his relationship with the
victim, and he stated that the victim had confided in him concerning the alleged sexual abuse.
(N.T. 95). Corroborating the victim’s testimony, Mr. Darden testified that, possibly at some
point in 2009, he had received a letter from the victim which had detailed the sexual abuse she
suffered at the hands of her stepfather. (N.T. 96). Mr. Darden testified that, although he did not
have the letter with him, he did have the letter in his possession somewhere. (N.T. 96).
The testimony of the victim’s mother was also presented by the Commonwealth at trial.
(N.T. 97). The mother described her previous relationship with Defendant and corroborated
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much of the victim’s description of her early adolescence, absent the details of the sexual abuse
of which, at the time, she was unaware. (N.T. 98). Specifically, the mother testified that the
victim spent a lot of time alone with Defendant, that she often missed school due to a sudden
sickness that kept her home during the day, and that Defendant often took the victim to the
doctor. (N.T. 98-99). Additionally, the mother testified that she did recall a night in the summer
of 1998 or 1999 when Defendant and the children slept outside in a tent. (N.T. 100-101).
Lastly, the mother corroborated the victim’s description of the events that led to the mother
learning of the sexual abuse; specifically, she testified that during an argument she received a
text message from the victim stating that Defendant had been sexually abusing the victim for
more than ten years. (N.T. 102).
Trooper Henneman also testified on behalf of the Commonwealth during the
Commonwealth’s case-in-chief. (N.T. 115). Trooper Henneman testified that after he received
information that the victim in this case had been the victim of sexual abuse, he conducted an
interview with the victim at the state police station. (N.T. 118). After conducting the interview,
the trooper contacted the Cumberland County District Attorney’s office and requested a
consensual phone call be placed to Defendant. (N.T. 118). The trooper testified that he received
approval to place the call, and the consensual wiretap phone call was initiated by the victim at his
direction. (N.T. 121). A tape recording of the wiretap was entered into the record and played
for the jury. (Commonwealth’s Ex. 2). After obtaining the wiretap, the trooper spoke with the
District Attorney’s Office, and Defendant was taken into custody and interviewed. (N.T. 123).
Trooper Henneman testified that, at all points during the interview, Defendant denied any and all
allegations of sexual abuse or contact with the victim in the past. (N.T. 127). The trooper
testified that Defendant did admit to a recent phone call from the victim, but denied that the
6
victim had asked him if they had sex two years ago. (N.T. 127). Furthermore, Trooper
Henneman testified that Defendant denied having made the statement that they had not had sex
for two years. (N.T. 127). The trooper further testified that during the course of his
investigation he also interviewed the victim’s mother, Mr. Julian Darden, Ms. Consuela Stahl,
and Defendant’s brother. (N.T. 128).
Defendant presented the testimony of Defendant’s sons, Aaron and Andrew McCauslin.
(N.T. 144). Aaron McCauslin testified to his relationship with his father and his knowledge of
the family dynamics. (N.T. 144). Aaron McCauslin testified that he lived together with the
victim and his father; that the relationship between the victim and his father was never
inappropriate; and, additionally, he denied that the victim had told him of the alleged abuse that
occurred the night the family slept in the tent. (N.T. 145-46). Lastly, Aaron McCauslin testified
that, in 2009, the mother of the victim had stated to him that she “was going to do whatever it
took to get the house” from Defendant. (N.T. 147). Andrew McCauslin likewise testified about
his relationship with his father, and he testified that he had lived with the victim and Defendant
throughout the time that the victim had resided in the home. (N.T. 154). Andrew McCauslin
testified that he observed the interactions of Defendant and the victim, and that it appeared to
him that the victim loved Defendant and was not in any fear of him. (N.T. 155).
Mr. Daniel Harris also testified on behalf of Defendant. (N.T. 159). Mr. Harris indicated
that he and Defendant became neighbors approximately ten years ago, and that they had become
close friends. (N.T. 160). Mr. Harris testified that their families often spent weekends and
holidays together and that he felt that he knew the family very well. (N.T. 160). Mr. Harris
further testified that he believed Defendant’s reputation in the community to be excellent. (N.T.
160).
7
Lastly, Defendant took the stand at trial to testify on his own behalf. (N.T. 162). After
describing his background, Defendant testified that, contrary to the victim’s testimony, he and
the victim had a “good” relationship and that the victim often confided in him regarding personal
matters. (N.T. 165). Defendant described their relationship as a “father/daughter” relationship,
and adamantly denied the allegations that he had inappropriately touched the victim. (N.T. 172).
Defendant testified that the first time he learned of the accusations was the day that he was
arrested. (N.T. 172). Concerning the consensual wiretap, Defendant testified that he did admit
over the phone to having had sex with the victim “over two years ago.” (N.T. 173). Defendant
testified that, at the time, his marriage was “all but dissolved.” (N.T. 173). He testified that he
was upset that his wife had moved out, and he suspected that she had been cheating on him.
(N.T. 173-74). Defendant testified that, in approximately September of 2009, he had been
drinking beer and watching a movie one night when he decided to go across to the street to the
house where the victim’s mother had been residing. (N.T. 174). He testified that, although the
victim’s mother was not home, he did speak to the victim and her brother. (N.T. 174-75).
Defendant testified that the victim, noticing the loneliness and sorrow in Defendant, began to cry
and gave him a hug before he left. (N.T. 175). Defendant testified that, upon returning home,
shortly thereafter he heard a knock at the door, whereupon the victim entered his residence and
sat down next to him. (N.T. 175). He testified that she asked him how he was feeling, put her
arm on his shoulder, her hand on his lap, and began to kiss him. (N.T. 175). Defendant testified
that the victim then led Defendant through the living room and upstairs to the bedroom,
whereupon she continued to kiss him and removed her pants. (N.T. 175). At that point,
Defendant testified that he too removed his pants, and the two had intercourse. (N.T. 175-76).
Defendant testified that, at the time, he knew the victim was seventeen years old. (N.T. 177).
8
Defendant testified that he denied having had intercourse with the victim when he was
interviewed by Trooper Henneman because he was “embarrassed and scared.” (N.T. 177).
Defendant testified that he was embarrassed because he the victim was the daughter of his
estranged wife, and he was scared because he did not want to “get[] in trouble,” as he was under
the impression that having intercourse with a seventeen year old was a crime. (N.T. 177).
Additionally, Defendant testified that this was the only time that he had ever had sex with the
victim, and he reiterated that he never touched the victim in an inappropriate manner. (N.T. 177,
183).
After deliberations, the jury found Defendant guilty of aggravated indecent assault,
indecent assault, and corruption of minors. On November 7, 2012, Defendant was sentenced by
this court to undergo a period of imprisonment in a State Correctional Institution for a period of
22-48 months incarceration for aggravated indecent assault, 9-24 months for corruption of
minors, and 3-24 months for indecent assault, the sentences to run concurrently. (Order of
Court, In Re: Sentencing, filed Nov. 7, 2012). Subsequent to the entry of the judgment of
sentence imposed for the above-listed convictions, Defendant filed the instant Amended Post-
Sentence Motions asserting, first, that the evidence presented at trial was insufficient to sustain
the aforementioned convictions, second, that Defendant is entitled to bail pending his appeal,
and, lastly, that the registration requirements under the new Sex Offender Registration and
Notification Act (SORNA), effective December 20, 2012, are unconstitutional as applied to
Defendant; specifically, Defendant contends that the retroactive application of the new
provisions of SORNA are a violation of Defendant’s substantive and procedural due process
rights under both Article I, Section 17 of the Pennsylvania Constitution and Article I, Section 9,
9
Clause 3 of the Constitution of the United States. Briefs were submitted, and argument was
heard by the parties on January 3, 2013.
A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a
conviction on a particular charge, and is granted “only in cases in which the Commonwealth has
failed to carry its burden regarding that charge.” Commonwealth v. Hutchinson, 2008 PA Super
,
82, ¶ 17, 947 A.2d 800, 805–06, appeal denied 602 Pa. 663, 980 A.2d 606 (2009) (quoting
Commonwealth v. Andrulewicz, 2006 PA Super 309, ¶ 5, 911 A.2d 162, 165); Commonwealth v.
Foster, 2011 PA Super 195, ¶ 9, 33 A.3d 632, 635. When evaluating a challenge to the
sufficiency of the evidence in a criminal case, the test is “whether, viewing the evidence in the
light most favorable to the Commonwealth as verdict winner and drawing all proper inferences
favorable to the Commonwealth, the trier of fact could have determined all the elements of the
crime have been established beyond a reasonable doubt.” Comomwealth v. O'Bryon, 2003 PA
Super 139, ¶ 7, 820 A.2d 1287, 1290 (quoting Commonwealth v. Hagan, 539 Pa. 609, 613, 654
A.2d 541, 543 (1995)). In applying the standard, a court “may not weigh the evidence and
substitute [its] judgment for the fact-finder.” Commonwealth v. Quel, 2011 PA Super 179, 27
A.3d 1033, 1037 (quoting Commonwealth v. Brown, 2011 PA Super 67, 23 A.3d 544, 559-60).
The Superior Court has expounded upon the standard as follows:
[W]e note that the facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of fact may be drawn
from the combined circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually received must be considered.
Finally, the trier of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none of the
evidence.
10
Andrulewicz, 2006 PA Super 309, ¶ 5, 911 A.2d at 165 (quoting Commonwealth v. DiStefano,
2001 PA Super 238, ¶ 19, 782, A.2d 574, 582).
The crime of aggravated indecent assault is defined in 18 Pa.C.S.A. § 3125(a)(1) as
follows:
Offenses defined
(a) . - - Except as provided in sections 3121 (relating to rape),
3122.1 (relating to statutory sexual assault), 3123 (relating to involuntary deviate
sexual intercourse) and 3124.1 (relating to sexual assault), a person who engages
in penetration, however slight, of the genitals or anus of a complainant with a part
of the person’s body for any purpose other than good faith medical, hygienic or
law enforcement procedures commits aggravated indecent assault if:
(1) the person does so without the complainant’s consent;
18 Pa.C.S.A. § 3125(a)(1).
Thus, the crime above consists of two elements: (1) that a defendant engaged in
penetration with the genitals or anus of the victim; and (2) without the victim’s consent. 18
Pa.C.S.A. § 3125(a)(1).
The crime of corruption of minors is defined in 18 Pa.C.S.A. § 6301(a)(1) as follows:
(a) Offense defined. - -
(1) (i) Except as provided in subparagraph (ii), whoever, being of the age
of 18 years and upwards, by any act corrupts or tends to corrupt the
morals of any minor less than 18 years of age, or who aids, abets, entices
or encourages any such minor in the commission of any crime, or who
knowingly assists or encourages such minor in violating his or her parole
or any order of court, commits a misdemeanor of the first degree.
(ii) Whoever, being of the age of 18 years and upwards, by any course of
conduct in violation of Chapter 31 (relating to sexual offenses) corrupts
or tends to corrupt the morals of any minor less than 18 years of age, or
who aids, abets, entices or encourages any such minor in the commission
of an offense under Chapter 31 commits a felony of the third degree.
18 Pa.C.S.A. § 6301(a)(1).
Lastly, the crime of indecent assault is defined in 18 Pa.C.S.A. § 3126(a)(1) as follows:
11
(a) Offense defined.--
A person is guilty of indecent assault if the person has
indecent contact with the complainant, causes the complainant to have indecent
contact with the person or intentionally causes the complainant to come into
contact with seminal fluid, urine or feces for the purpose of arousing sexual desire
in the person or the complainant and:
(1) the person does so without the complainant's consent;
18 Pa.C.S.A. § 3126(a)(1).
Viewing the evidence presented at trial in the light most favorable to the Commonwealth
as the verdict winner and drawing all proper inferences favorable to the Commonwealth, we
conclude that there was sufficient evidence to enable the jury as the trier of fact to find beyond a
reasonable doubt that Defendant violated 18 Pa.C.S.A. §§ 3125(a)(1), 6301(a)(1), and
3126(a)(1). The evidence of record presented to the jury included the testimony of the victim in
which she testified that Defendant, who was at least twenty-six years older than her, first touched
her vagina with his hands while camping when she was seven years old. The victim testified that
Defendant first directed her to perform oral sex on him when she was seven or eight years old,
that he did ejaculate in her mouth, and she testified that Defendant first had sexual intercourse
with her when she was twelve years old. The victim testified that the abuse continued until she
was seventeen years old and had moved out of the residence. She testified that she did not want
to engage in sexual relations with Defendant, and she testified that she did not consent to the
sexual activity. The victim testified that Defendant taught her sexual acts by telling her and
showing her pornography. Thus, the jury as the trier of fact was presented with this and an
abundance of other relevant testimony and evidence by which they could have determined that
Defendant did engage in penetration with the genitals or anus of the victim and that he did so
without the victim’s consent. Additionally, the jury was presented with sufficient evidence to
sustain convictions for corruption of minors and indecent assault.
12
Defendant’s brief in support of his post-sentence motion contends that, because the jury
acquitted Defendant of a multitude of other crimes stemming from the same alleged pattern of
abuse, the jury must have disbelieved the victim’s testimony and, as a result, we too must
consider the evidence as untruthful and not credible. Defendant’s argument continues that
because the jury appears to have disbelieved the victim’s testimony, the evidence of her
testimony must be discarded and, as a result, cannot be considered in a challenge to the
sufficiency of the evidence. We disagree. Courts of this Commonwealth have long held that
mere facial inconsistency in verdicts is not a valid basis upon which to upset a conviction which
is otherwise proper, since consistency in verdicts is not required. Commonwealth v. Magliocco,
584 Pa. 244, 266, 883 A.2d 479, 492 (2005) (citing Commonwealth v. Carter, 444 Pa. 405, 282
A.2d 375, 376 (1971) (consistency in criminal verdicts is unnecessary)). As noted above, we
find that the jury was presented with evidence sufficient to sustain a convictions for aggravated
indecent assault, corruption of minors, and indecent assault.
Defendant’s Amended Post-Sentence Motion next contends that he is entitled to bail
during the pendency of his appeal. We disagree. Pursuant to Pennsylvania Rule of Criminal
Procedure 521(B)(2), when a defendant is sentenced to a term of imprisonment of two years or
more, “the defendant shall not have the same right to bail as before verdict, but bail may be
allowed in the discretion of the judge.” Pa.R.Crim.P. 521(B)(2). Our Superior Court has held
the same, finding that subsequent to “a verdict of guilt. . .a defendant has no state or federal
constitutional right to bail. . . . After conviction and pending final disposition of all direct appeal
proceedings, allowance of bail in non-capital cases is left to the discretion of the trial court.”
Commonwealth v. McDermott, 377 Pa.Super. 623, 635-36, 547 A.2d 1236, 1242 (1998) (internal
citations omitted).
13
After consideration, we find that Defendant has been convicted of some of the most
serious crimes contained within the Pennsylvania Crimes Code, and, as a result, we will deny
Defendant’s request for bail. We find no significant reason to grant bail in this case, and,
conversely, believe it to be in the best interest of the community that the Defendant remain
incarcerated during the disposition of his motions.
Lastly, Defendant’s Amended Post-Sentence Motion contends that the registration
requirements under the new Sex Offender Registration and Notification Act (SORNA), effective
December 20, 2012, are unconstitutional as applied to Defendant; specifically, Defendant
contends that the retroactive application of the new provisions of SORNA are a violation of
Defendant’s substantive and procedural due process rights under both Article I, Section 17 of the
Pennsylvania Constitution and Article I, Section 9, Clause 3 of the Constitution of the United
States.
Defendant asserts that under the new SORNA, he will be subject to a lifetime registration
requirement with the Pennsylvania State Police because he has been of convicted of aggravated
indecent assault, a Tier III sexual offense. See 42 Pa.C.S.A. § 9799.14(d)(7) (providing that
aggravated indecent assault is a Tier III sexual offense); 42 Pa.C.S.A. § 9799.15(a)(3) (providing
that Tier III sexual offenses are subject to lifetime registration requirements). Because
Defendant was convicted of a Tier III sexual offense, he must appear quarterly at an approved
registration site to verify his information and be photographed. 42 Pa.C.S.A. § 9799.25(a)(3).
Although Defendant’s conviction for indecent assault qualifies as a Tier I sexual offense,
subjecting him to a 15 year period of registration, the indecent assault conviction is clearly
overshadowed by the aggravated indecent assault reporting requirement. See 42 Pa.C.S.A. §
14
9799.14(b)(6) (providing that indecent assault is a Tier I sexual offense); 42 Pa.C.S.A. §
9799.15(a)(3) (providing that Tier III sexual offenses require a registration period of 15 years).
Pursuant to 42 Pa.C.S.A. § 9796(b), the previous law which was in effect when
Defendant was convicted and sentenced, Defendant would have been subject to a lifetime
registration requirement for the aggravated indecent assault conviction, but he would have only
been required to register annually. 42 Pa.C.S.A. § 9796(b) (“Annual verification by offenders. -
- The Pennsylvania State Police shall verify the residence of offenders. For the period of
registration required by section 9795.1, an offender shall appear within ten days before each
annual anniversary date of the offender’s initial registration under section 9795.1 at an approved
registration site to complete a verification form and to be photographed.”). Thus, Defendant
contends that, because he was convicted and sentenced before the new provisions of SORNA
went into effect, the retroactive and enhanced application of the new reporting requirements
violate Defendant’s constitutional rights under both Article I, Section 17 of the Pennsylvania
Constitution and Article I, Section 9, Clause 3 of the Constitution of the United States.
Pennsylvania courts have long held that the registration and reporting requirements
associated with convictions for sexual offenses may be retroactively applied because the
requirements are merely a collateral consequence of a defendant’s criminal punishment; that is,
“one that is not related to the length or nature of the sentence.” Commonwealth v. Leidig, 2004
PA Super 167, ¶ 12, 850 A.2d 743, 747 (internal citations omitted). The Superior Court has also
held elsewhere that “the collateral effect of current legislation may be imposed on the defendant
so long as he remains in the custody of correctional authorities to discharge any part of his
sentence for the offense.” Commonwealth v. Benner, 2004 PA Super 243, ¶ 11, 853 A.2d 1068,
1072.
15
Pennsylvania courts have retroactively applied the registration requirements of Megan’s
Law to sex offenders who were incarcerated at the time the statute went into effect. In Brenner,
supra, the Superior Court held that the lifetime registration requirement of Megan’s Law II could
be retroactively applied to a defendant who was incarcerated at the time the requirement went
into effect. Brenner, 853 A.2d at 1072. In that case, the defendant had entered a guilty plea to
one count of aggravated indecent assault and was sentenced to two and a half to five years
imprisonment. Id. at 1069. The defendant was imprisoned from April, 1999 until November,
2003, when he was granted parole. Id. The court found that because the defendant “continued to
serve his sentence for the sex offense at issue after the promulgation of Megan’s II, he remains
subject to the collateral effect of its application.” Id. at 1072. The court further explained that
although a defendant is only subject to one conviction under the statutes in effect on the date of
his sentence, the application of the registration requirements of Megan’s Law II are not as
limited and may be retroactively applied due to their collateral nature. Id.
Like the retroactive application of the Megan’s Law II reporting requirements in Brenner,
the new and enhanced registration and reporting requirements of SORNA are a collateral
consequence of Defendant’s aggravated indecent assault conviction. As a result, Defendant must
be subject to the reporting requirements of 42 Pa.C.S.A. § 9799.15(a)(3) and the collateral effect
of its application. Because 42 Pa.C.S.A. § 9799.15(a)(3) requires lifetime registration for a
conviction of aggravated indecent assault, Defendant is subject to the lifetime registration and
the reporting requirements associated therewith.
For the foregoing reasons, Defendant’s Amended Post-Sentence Motions for Relief will
be denied, and the following order will be entered:
16
ORDER
st
AND NOW, this 1 day of April, 2013, upon consideration of Defendant’s Amended
Post-Sentence Motions for Relief, and for the reasons contained in the opinion filed of even date
herewith, Defendant’s Motions are DENIED.
BY THE COURT,
__________________
Kevin A. Hess, P.J.
17
COMMONWEALTH
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v.
:
:
DONALD JOHN MCCAUSLIN
: CP-21-CR-2304-2011
IN RE: DEFENDANT’S AMENDED POST-SENTENCE MOTIONS FOR RELIEF
ORDER
st
AND NOW, this 1 day of April, 2013, upon consideration of Defendant’s Amended
Post-Sentence Motions for Relief, and for the reasons contained in the opinion filed of even date
herewith, Defendant’s Motions are DENIED.
BY THE COURT,
__________________
Kevin A. Hess, P.J.
Emily Provencher, Esquire
Sr. Assistant District Attorney
Joseph Caraciolo, Esquire
th
112 Market Street, 6 Floor
Harrisburg, PA 17101
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