A.S. v. Pennsylvania State Police

87 A.3d 914, 2014 WL 890204, 2014 Pa. Commw. LEXIS 150

• Court: Commonwealth Court of Pennsylvania
• Decided: March 7, 2014
• Status: Published

Opinions

OPINION BY

President Judge PELLEGRINI 1.

Before the Court are the cross-motions for summary judgment of A.S. and the Pennsylvania State Police (PSP) filed pursuant to Pa. R.C.P. No. 1035.2² with respect to A.S.’s Petition for Review in the Nature of a Complaint in Mandamus (Petition) ³ seeking to compel PSP to change his sexual offender registration status under the former Section 9795.1 of the Sentencing Code, 42 Pa.C.S. § 9795.1,⁴ from a lifetime registrant to a ten-year registrant. For the reasons that follow, we grant A.S.’s cross-motion for summary relief and the mandamus relief sought in the Petition and we deny PSP’s motion for summary relief.

This action arose out of the interactions between A.S., who was 21 years old at the time of the incident, and a 16-year-old female minor who engaged in consensual sexual relations. Because the age of consent in Pennsylvania is 16, the consensual sex between those individuals was not a crime. See Section 3122.1 of the Crimes Code, 18 Pa.C.S. § 3122.1. While it is not a crime to have sex with a 16-year-old minor, somewhat anomalously, it is a crime to photograph or cause to be photographed a 16-year-old having consensual sex and causing a minor to take photographs of herself engaging in the sexual acts. A.S. admitted that he met the victim online, developed a relationship with her which led to consensual sex, and that he persuaded the victim to take photographs of herself in various sexual positions with her digital camera. He also used the minor’s digital camera to photograph the two engaging in sexual relations.

As a result of this conduct, A.S. pled guilty in the Court of Common Pleas of Montgomery County (trial court) to one count of violating Section 6312(b) of the Crimes Code, 18 Pa.C.S. § 6312(b) (sexual abuse of children), one count of violating Section 6318(a)(5), 18 Pa.C.S. § 6318(a)(5) (unlawful contact with a minor), and one count of violating Section 6301, 18 Pa.C.S. § 6301 (corruption of minors). (Guilty Plea Colloquy, attached to PSP’s Memo as Exhibit D4).⁵ As a result of his guilty pleas, the trial court sentenced A.S. to two concurrent 5- to 23-month terms of imprisonment and a consecutive 5-year probationary term. (Trial/Plea/Sentence Form, attached to PSP’s Memo as Exhibit D7; N.T. 2/28/02⁶ at 66-67, attached to PSP’s Memo as Exhibit D6).

As a collateral consequence of his guilty plea to those charges, the former Section 9795.3 of the Sentencing Code, 42 Pa.C.S. § 9795.3, required the trial court to inform offenders at the time of sentencing of their registration requirements as a sex offender.⁷ At A.S.’s sentencing, the trial court advised him that he would be subject to the reporting requirements set forth in the former Section 9795.1 of the Sentencing Code, 42 Pa.C.S. § 9795.1. (N.T. 2/28/02 at 59-60). The trial court also noted that it did not find A.S. to be a sexually violent predator (SVP) as assessed under the former Section 9795.4, 42 Pa.C.S. § 9795.4, who were subject to a lifetime registration requirement under the former Section 9795.1(b)(3), 42 Pa.C.S. § 9795.1(b)(3).

The sentencing hearing transcript establishes that the trial court, the prosecuting attorney, and A.S. all believed that he would be subject to a ten-year and not a lifetime registration requirement under the former Section 9795.1 of the Sentencing Code. At the hearing, A.S.’s mother testified on his behalf stating, “My son made a mistake, a terrible, terrible error in his life that’s affected him. He’s been punished. He will be punished. He has a ten-year reporting component to this punishment.” (N.T. 2/28/02 at 29-30 (emphasis added)). To this, the trial court responded, “I know.” (Id. at 30). This statement by A.S.’s mother also supports his contention that, at the time of sentencing, he believed that the collateral consequence of his guilty pleas under Megan’s Law II was a ten-year and not a lifetime registration requirement. In addition, while presenting the Commonwealth’s position on sentencing, the Assistant District Attorney stated, “He’s now facing a ten-year registration for Megan’s Law. That’s true. But why is he facing this ten-year registration? He is because what he did is a serious offense.” (Id. at 45 (emphasis added)). No appeals were filed.

On August 2, 2002, upon his release from imprisonment, A.S. registered with PSP as a sex offender as required by Megan’s Law II. Following the expiration of the ten-year period in August 2012, A.S. sought to have his name removed from the registry. PSP refused to do so, claiming that because A.S. pled guilty to one count each of violating Sections 6312(b) and 6318(a)(5) of the Crimes Code, which are each listed offenses requiring a ten-year registration period under the former Section 9795.1(a)(1) of the Sentencing Code, the former Section 9795.1(b)(1) required a lifetime registration because A.S. was “an individual with two or more convictions of ... the offenses set forth in subsection (a).” Based on PSP’s refusal to remove his name from the registry, A.S. filed the instant Petition in this Court and the parties filed cross-petitions for summary relief.⁸

A.S. argues that he is entitled to summary relief because the offenses to which he pled guilty stemmed from a single criminal act, criminal episode or course of conduct, i.e., causing the photographing of a minor in a sexual act and only require a ten-year registration under the former Section 9795.1(a)(1). He contends that the enhancement provision of the former Section 9795.1(b)(1), requiring lifetime registration for multiple offenses, only applies to those convicted of separate acts of misconduct that lead to more than one criminal conviction, ie., repeat offenders and recidivists. A.S. claims that the former Section 9795.1(b)(1). should not apply to individuals who only engage in a single act of misconduct that, by statute and prosecu-torial discretion, results in multiple criminal charges and convictions. He asserts that his guilty pleas to the two enumerated offenses in the former Section 9795.1(a)(1) should be treated as a single conviction and not as two or more convictions for purposes of the former subsection (b)(1). As a result, A.S. argues that it is improper for PSP to classify him as a lifetime registrant. He asserts that to hold otherwise would violate the Equal Protection Clause because disparate registration classifications would emerge for similarly-situated defendants based solely on the charging decisions made by prosecutors.

In opposition to A.S.’s motion and in support of its own, PSP argues that it properly designated A.S. as a lifetime registrant under the former Section 9795.1(b)(1). PSP claims that the language of the former subsection (b)(1) is clear and that A.S. is subject to its provisions because he is “an individual with two or more convictions of any of the offenses set forth in subsection (a).” PSP asserts that the acts underlying the crimes are of no consequence; if the defendant is convicted of two or more crimes set forth in subsection (a)(1), he or she is a lifetime registrant under subsection (b)(1). Because A.S. is such a defendant, PSP contends that he cannot show a clear right to have his lifetime registrant designation changed and is, therefore, not entitled to mandamus relief.

The question here is whether A.S.’s guilty pleas to two separate crimes involving photographs of the same minor were one or two convictions for the purpose of the sex offender registration requirements contained in the former Section 9795.1 of the Sentencing Code. If the guilty plea is considered to be one conviction for this purpose, then under that provision, A.S. is only required to register as a sex offender for ten years under the former subsection (a)(1), but if they are considered to be two convictions, he would be subject to the lifetime registration requirement of the former subsection (b)(1).

In Commonwealth v. Gehris, 618 Pa. 104, 54 A.3d 862 (2012), a defendant, Patrick Gehris, began corresponding with what he believed to be a 19-year-old female in an internet chat room in October 2006. The female was actually a PSP officer trained to pose as a teenager to collect evidence and investigate sexual predators. In early 2007, Gehris’s exchanges included requests to meet younger girls 11- to 13-years old that the PSP officer might know and that he fantasized about having sex with the two girls. Gehris wrote that he wanted to talk to the younger girl on the phone and asked the PSP officer to send him pictures of the younger girl. Gehris e-mailed the PSP officer photos of his face and shoulders and sent a digital camera containing pictures of his penis to an address that he had been given. About ten days later, Gehris called a number that he had been given and spoke with the PSP officer posing as the 19-year-old and another officer posing as a 13-year-old girl. During the conversation, Gehris asked for a picture of the younger girl’s breasts and arranged a meeting at a motel approximately 200 miles from his residence with both of the girls to take place on February 19, 2007. Gehris suggested to the younger girl that she have some alcohol beforehand to relax herself. Gehris arrived at the motel at the arranged date and time, but turned his vehicle around in the parking lot and attempted to leave when he was arrested by PSP.

In April 2007, Gehris was charged with six crimes:

• unlawful contact with a minor to engage in involuntary deviate sexual intercourse in violation of Section 6318(a)(1) of the Crimes Code, 18 Pa.C.S. § 6318(a)(1), for arranging the meeting at the motel;

• unlawful contact with a minor to engage in the sexual abuse of children in violation of Section 6318(a)(5) for requesting the nude photographs;

• criminal solicitation for the sexual exploitation of children in violation of Section 902(a), 18 Pa.C.S. § 902(a), and Section 6320, 18 Pa.C.S. § 6320, for soliciting the 19-year-old to procure the 13-year-old for sexual exploitation;

• criminal solicitation for the sexual abuse of children in violation of Sections 902(a) and 6312 for soliciting the 19-year-old to obtain nude photographs of the 13-year-old;

• criminal solicitation for the corruption of a minor in violation of Sections 902(a) and 6301(a) for soliciting the 19-year-old to obtain a 13-year-old for sexual activity; and

• criminal attempt of the corruption of a minor in violation of Section 901, 18 Pa.C.S. § 901, and Section 6301(a), for driving to the motel to engage in the planned sexual activity.

Gehris pled guilty to the solicitation and attempt charges and was sentenced to a one- to two-year term of imprisonment with a consecutive eight-year probationary term. Because Gehris was guilty of both the criminal solicitation for the sexual exploitation of children and criminal solicitation for the sexual abuse of children, the trial court found that he was subject to the lifetime registration requirement of the former Section 9795.1(b)(1) of the Sentencing Code.⁹

On appeal from an unreported Superior Court opinion affirming the trial court’s determination, the Pennsylvania Supreme Court considered whether Gehris was subject to the former Section 9795.1(b)(1) lifetime registration requirement due to his guilty pleas to two subsection (a)(1) offenses arising out of a four-month course of conduct that were contained in a single criminal information. However, the six sitting Justices were unable to reach a consensus in the case, resulting in a per curiam affirmance of the Superior Court order due to an evenly divided Supreme Court.

The Opinion in Support of Affirmance (OISA) concluded that the language of the former Section 9795.1(b)(1) was clear and unambiguous and rejected an alternative interpretation that would limit the reach of the former subsection (b)(1) to only repeat offenders or recidivists. • The OISA adopted a similar statutory-construction approach to that of the Superior Court in Merolla, explaining:

Although the overall structure of Section 9795.1 conditions its registration scheme, in part, on the nature of particular sexual offenses, since lifetime registration is required of those who commit the arguably more serious offenses enumerated in Section 9795.1(b)(2), I find it significant that the legislature also chose to impose the very same lifetime registration requirement for those convicted of two or more of any of the offenses enumerated in Section 9795.1(a)(1), the vast majority of which are offenses against children. This, from my perspective, evidences a deliberate legislative judgment, consistent with its objective of protecting public safety, to make the differing length of registration requirements dependent not only on the nature of the specific sexual offenses for which an individual is convicted, but, also, on the occurrence of a multiplicity of certain types of offenses, particularly those committed against children. In my view, this reflects a considered determination by the legislature that, in order to protect the safety and general welfare of the public, the frequency with which a convicted defendant is determined to have engaged in certain types of prohibited conduct with children is a particularly important factor in determining whether he or she should be subject to lifetime registration.

Gehris, 618 Pa. at 114, 54 A.3d at 867-68 (footnote omitted).

The Opinion in Support of Reversal (OISR) agreed that, in isolation, the statutory language of the former Section 9795.1(b)(1) was “not ambiguous or unclear.” Gehris, 618 Pa. at 125, 54 A.3d at 875. However, in the OISR’s view, that does not necessarily address the problem:

The problem confronted in this appeal arises when subsection (b)(1) is applied to an offender who has committed “two or more” subsection (a) offenses during the course of a single continuous criminal episode or course of conduct. As appellant points out, in our age of ever more rapid and varied technological communications, it is increasingly likely that this circumstance will arise often or in almost every case. This reveals an unfortunate lack of specificity in potential application of Section 9795.1. If the statutory scheme entails a “recidivist philosophy,” as discussed in greater depth infra, then mechanical imposition of the lifetime registration requirement may not always be proper.

Id. at 125-26, 54 A.3d at 875.

In support of this position, the OISR reviewed the history of that recidivist philosophy and its adoption and application by the United States Supreme Court and our Supreme Court. One of the cases recounted was:

Commonwealth v. McClintic, 589 Pa. 465, 909 A.2d 1241 (2006) [in which the Supreme Court held] that the defendant, who had two prior violent crime convictions (aggravated assault in 1987 and robbery in 1996), and then committed two crimes — robbery and burglary — in a June 2002 incident, could not be “double-charged” as, concurrently, a third and fourth strike offender for the 2002 offenses. In the Court’s view, because the 2002 offenses arose out of a single criminal episode and the defendant had no opportunity to reform, they should be treated together as a third strike. Id. at 1251-52.

Id. at 131, 54 A.3d at 878.

The OISR concluded that the registration requirements of the former provisions of the Sentencing Code encompassed a recidivist philosophy and must be read in light of that philosophy, explaining:

The “two or more convictions” language in subsection (b) seems clear and unambiguous on the surface. But if Section 9795.1 is viewed as a whole and the General Assembly’s legislative findings and declaration of policy at 42 Pa. C.S. § 9791 are read closely, it is clear that the primary concern is with sexually violent predators. Considering the nine subsections in Section 9791, the term “sexually violent predator” appears nine times, particularly in the provision addressing repeat offenders: “sexually violent predators pose a high risk of engaging in further offenses even after being released from incarceration or commitments and that protection of the public from this type of offender is a paramount governmental interest.” 42 Pa.C.S. § 9791(a)(2). References to nonviolent offenders are comparatively few, just four in all, and two of these pertain specifically to recent amendments accounting for the circumstance of released “offenders” who may be homeless or without a “fixed place of habitation.” See 42 Pa.C.S. § 9791(a)(1) & (b)(3); see also Commonwealth v. Wilgus [615 Pa. 32], 40 A.3d 1201 (Pa.2012).

It is evident that in drafting Section 9795.1, the General Assembly meant to set up a graduated registration scheme. In this tiered approach, more serious (primarily violent) offenders and “true” recidivists who squander a given opportunity to reform are understandably subject to lifetime requirements. By contrast, lesser, first-time offenders, especially those who are nonviolent, receive an opportunity for rehabilitation and eventual freedom from the requirements if they “stay on the path” for ten years.

[I]t is true that appellant was convicted of “two or more” Megan’s Law subsection (a) offenses, and without consideration of how this statutory scheme falls within the sphere of recidivist philosophy legislation detailed above, a strict, mechanical application of Section 9795.1(b) would result in imposition of the lifetime registration requirement. But, we would conclude that Section 9795.1 embodies the recidivist philosophy and reflects a belief that first-time and lesser offenders are capable of reform and rehabilitation if given an opportunity to do so under the still-punitive aegis of relatively lighter discipline, as well as the threat of harsher treatment next time, should there be a next time....

Id. at 132-33, 54 A.3d at 878-79.

As a result, the OISR concluded that, “[w]e would therefore hold that a defendant convicted of ‘two or more’ subsection (a) offenses is subject to the lesser sanction of the ten-year registration requirement so long as it is clear that the offenses were part of the same course of criminal conduct....” Id. at 133, 54 A.3d at 879. We find the OISR’s interpretation of the former provisions of Section 9795.1 to be persuasive and applicable to the disposition of the instant cross-motions for summary relief and Petition.

If that interpretation is not adopted, then having a ten-year requirement under the former subsection (a) and a separate lifetime reporting requirement under the former subsection (b) is meaningless. Every single event where a minor takes his or her own picture would result in multiple charges and convictions under the provisions set forth in the former Section 9795.1, which would mean it would read the ten-year reporting requirement out of these former provisions of the Sentencing Code. Also, that interpretation has the advantage of fostering the purpose of that provision, which allows a person to reform and “make a firm purpose of amendment” in the ten years and not again engage in such behavior. It also provides a bright line for the administration of this provision as to when a person has to report for ten years or for a lifetime.¹⁰

Based on the foregoing, it is clear and free from doubt that the conduct here was a result of a “single criminal episode” ¹¹ to which A.S. pled guilty, that it was all part of one “logically related act” making it one conviction for the purpose of the former Section 9795.1, and that A.S had no opportunity to reform.¹² Accordingly, as a matter of law, PSP erred in failing to change A.S.’s designation to a ten-year registrant under the former Section 9795.1(a)(1) of the Sentencing Code from its erroneous designation as a lifetime registrant under the former subsection (b)(1). As a result, A.S.’s Cross-Motion for Summary Relief and the relief sought in his Petition for Review in the Nature of a Complaint in Mandamus are granted; PSP’s Motion for Summary Relief is denied.

ORDER

AND NOW, this 7th day of March, 2014, A.S.’s Cross-Motion for Summary Relief is granted and the relief sought in his Petition for Review in the Nature of a Complaint in Mandamus is granted; the Pennsylvania State Police’s Motion for Summary Relief is denied. The Pennsylvania State Police, in its capacity under the former Section 9799.1 of the Sentencing Code, 42 Pa.C.S. § 9799.1, and the current Section 9799.16 of the Sex Offender Registration and Notification Act, 42 Pa.C.S. § 9799.16, is directed to change A.S.’s lifetime registration designation under the former Section 9795.1(b) of the Sentencing Code, 42 Pa.C.S. § 9795.1(b), to a 10-year registration designation under the former Section 9795.1(a) of the Sentencing Code, 42 Pa.C.S. § 9795.1(a).

1 . This opinion was reassigned to the authoring judge on February 18, 2014.

2 . See Bussinger v. Department of Corrections, 29 A.3d 79, 81 n. 1 (Pa.Cmwlth.2011) ("We will treat the cross-motions as cross-applications for summary relief pursuant to Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure. 'A motion for summary relief may be granted only where no material fact is in dispute and the right of the moving party to relief is clear.’.”) (citation omitted); Department of Health v. Hanes, 78 A.3d 676, 677 n. 1 (Pa.Cmwlth.2013) ("An application for summary relief filed under Pa. R.A.P. 1532(b) is generally the same as a motion for peremptory judgment filed in a mandamus action in the common pleas court. The application will be granted where the right to such relief is clear, but will be denied where there are material issues of fact in dispute or if it is not clear the applicant is entitled to judgment as a matter of law.”) (citation omitted).

3 . As the Supreme Court has explained:

The writ of mandamus exists to compel official performance of a ministerial act or mandatory duty. See Delaware River Port Auth. v. Thornburgh, 508 Pa. 11, [20,] 493 A.2d 1351, 1355 (1985). Mandamus cannot issue "to compel performance of a discretionary act or to govern the manner of performing [the] required act.” Volunteer Firemen’s Relief Ass’n of City of Reading v. Minehart, 415 Pa. 305, [311,] 203 A.2d 476, 479 (1964). This Court may issue a writ of mandamus where the petitioners have a clear legal right, the responding public official has a corresponding duty, and no other adequate and appropriate remedy at law exists. Id.; see Board of Revision of Taxes v. City of Philadelphia, 607 Pa. 104, [133,] 4 A.3d 610, 627 (2010). Moreover, mandamus is proper to compel the performance of official duties whose scope is defined as a result of the mandamus action litigation. Thornburgh, [508 Pa. at 20,] 493 A.2d at 1355. Thus, "we have held that mandamus will lie to compel action by an official where his refusal to act in the requested way stems from his erroneous interpretation of the law.” Minehart, [415 Pa. at 311,] 203 A.2d at 479-80.

Fagan v. Smith, 615 Pa. 87, 90, 41 A.3d 816, 818 (2012).

4 . Sections 9791 through 9799.9 of the Sentencing Code, 42 Pa.C.S. §§ 9791-9799.9, which were in effect at the time of A.S.’s criminal conviction and his initial registration with PSP in August 2002, were commonly referred to as "Megan’s Law II.” The original version of "Megan’s Law” was held to be unconstitutional in Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999); however, in Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003), the Supreme Court held that Megan’s Law II was constitutional. By operation of Section 9799.41 of the Sentencing Code, 42 Pa.C.S. § 9799.41, enacted on December 20, 2011, certain sections of the Sentencing Code, including Section 9795.1, expired on December 20, 2012. The subject matter of these expired provisions are now found in the Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-.40. However, whether A.S. was a ten-year registrant will depend on this Court’s interpretation of the now-expired Section 9795.1(b)(1) because if he was a ten-year registrant under that law, his ten-year registration period would have ended prior to the expiration of Megan’s Law II and the effective date of SORNA. The former Section 9795.1 stated, in pertinent part:

(a) Ten-year registration. — Except as set forth in subsection (a.l) or (b), the following individuals shall be required to register with [PSP] for a period of ten years:

(1)Individuals convicted of any of the following offenses:

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18 Pa.C.S. § 6312 (relating to sexual abuse of children).

18 Pa.C.S. § 6318 (relating to unlawful contact with minor).

(b) Lifetime registration. — The following individuals shall be subject to lifetime registration:

(1) An individual with two or more convictions of any of the offenses set forth in subsection (a).

(2) Individuals convicted of any of the following offenses:

18 Pa.C.S. § 3121 (relating to rape).

18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).

18 Pa.C.S. § 3124.1 (relating to sexual assault).

18 Pa.C.S. § 3125 (relating to aggravated indecent assault).

18 Pa.C.S. § 4302 (relating to incest) when the victim is under 12 years of age.

(3) Sexually violent predators.

(4) Individuals currently residing in this Commonwealth who have been convicted of offenses similar to the crimes cited in paragraph (2) under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.

PSP is the state agency vested with the duty to create and maintain a statewide registry of sexual offenders under the former Section 9799.1 of the Sentencing Code, 42 Pa.C.S. § 9799.1, and the current Section 9799.16 of SORNA, 42 Pa.C.S. § 9799.16.

5 . A.S. was charged with other violations but those charges were nolle prossed.

6 . "N.T. 2/28/02” refers to the transcript of the trial court’s February 28, 2002 sentencing hearing.

7 . See now Sections 9799.20 and 9799.23 of SORNA, 42 Pa.C.S. §§ 9799.20, 9799.23.

8 . This Court overruled PSP’s preliminary objections to the Petition by memorandum opinion and order filed March 12, 2013. PSP subsequently filed an answer and new matter to the Petition and A.S. filed a reply to the new matter. In May 2013, A.S. and PSP filed a stipulation that, in light of the documents already filed as exhibits in the answer, new matter and reply to the new matter, they did not need to take any discovery and anticipated filing the instant cross-motions for summary relief.

9 . The trial court relied on Commonwealth v. Merolla, 909 A.2d 337 (Pa.Super.2006), in which the Superior Court upheld a trial court’s determination that lifetime registration was required under the former Section 9795.1(b)(1) for a defendant who pled nolo contendere to two counts of indecent assault and one count of statutory sexual assault stemming from his improper fondling of three girls under 16 years of age. See Merolla, 909 A.2d at 346-47. To the extent that Merolla could apply to the instant case, it is factually distinguishable in that it involved convictions for crimes committed on multiple victims during distinct periods of time and criminal episodes. See id. at 340. Moreover, “although this court may look to decisions of the Superi- or Court for guidance, those decisions, unlike decisions of the Pennsylvania Supreme Court, are not controlling on this court.” Muntz v. Department of Transportation, 157 Pa.Cmwlth. 514, 630 A.2d 524, 525 (1993).

10 . See Section 1922 of the Statutory Construction Act, 1 Pa.C.S. § 1922(1), (2) ("In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used: (1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable: (2) That the General Assembly intends the entire statute to be effective and certain....”).

11 . In Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983), our Supreme Court held that in order for there to be a "single criminal episode,” the convictions must be "logically and temporally related:”

[I]n ascertaining whether a number of statutory offenses are ‘logically related' to one another, the court should initially inquire as to whether there is a substantial duplication of factual, and/or legal issues presented by the offenses. If there is duplication, then the offenses are logically related and must be prosecuted at one trial. The mere fact that the additional statutory offenses involve additional issues of law or fact is not sufficient to create a separate criminal episode since the logical relationship test does not require ‘an absolute identity of factual backgrounds.’

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The temporal relationship between criminal acts will be a factor which frequently determines whether the acts are ‘logically related.’ However, the definition of a 'single criminal episode' should not be limited to acts which are immediately connected in time. As the United States Supreme Court recognized in Moore v. New York Cotton Exchange, [270 U.S. 593, 610, 46 S.Ct. 367, 70 L.Ed. 750 (1926)]. 'Transaction is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.’ It is submitted that by requiring that criminal acts be logically related, the courts will be better able to implement the policies which the ‘single criminal episode’ test is designed to promote.

Hude, 500 Pa. at 491-92, 458 A.2d at 181-82 (quoting Comment, Commonwealth v. Campana and Section 110 of the Crimes Code: Fraternal Twins, 35 U. Pitt. L.Rev. 275, 286-87 (1973)).

12 .As outlined above, the sentencing hearing transcript suggests that the trial court, the prosecuting attorney and A.S. all believed that the charges related to one incident and that A.S. would only be subject to a ten-year and not a lifetime registration requirement under the former Section 9795.1 of the Sentencing Code. (See N.T. 2/28/02 at 29-30, 45). PSP’s standing to contend otherwise in the instant proceedings is problematic. See Sammons v. Pennsylvania State Police, 931 A.2d 784 (Pa.Cmwlth.2007). Moreover, even if the conduct is not considered as part of a single criminal episode, then as the OISR recounted:

Most recently, in Commonwealth v. Jarowecki, 604 Pa. 242, 985 A.2d 955 (2009), this Court considered 18 Pa.C.S. § 6312, which criminalizes possession and dissemination of sexually explicit depictions of children. In Jarowecki, the question was whether the defendant's eight concurrent convictions were to be treated as one "first” offense, which would be a third-degree felony, and seven "second or subsequent” offenses, which would be more serious second-degree felonies under the statute. There was no question raised to dispute that the eight convictions were separate crimes and not part of a single episode. This Court, construing the terms "first” and “second or subsequent” in Section 6312, first noted that "[s]uperficially considered,” imposition of the more punitive grading scheme was viable; nevertheless, the Court continued, "the object to be attained is the authentic password to the true meaning of the words of a law.” Id. at 966 (internal quotation marks omitted). Following a thorough review of recidivist philosophy precedent, the Jarowecki Court concluded that Section 6312 embodied a recidivist philosophy, vacated the harsher grading that had been imposed by the lower courts, and remanded for resentencing. Id. at 961-69.

Gehris, 618 Pa. at 131, 54 A.3d at 878.