Com. v. Bodnari, B.

• Court: Superior Court of Pennsylvania
• Decided: April 15, 2021
• Docket: 780 MDA 2020
• Status: Unpublished

Opinion

J-S54026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BENJAMIN C. BODNARI : : Appellant : No. 780 MDA 2020

Appeal from the Judgment of Sentence Entered July 11, 2019 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005687-2018

BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 15, 2021

Benjamin C. Bodnari appeals from the judgment of sentence entered

after he pleaded guilty to Indecent Assault.1 Bodnari claims the trial court

erred in classifying him as a sexually violent predator (“SVP”)2 and that the

automatic lifetime registration requirements imposed by Subchapter H of the

Sex Offender Registration and Notification Act (“SORNA”)3 are

unconstitutional. We affirm.

When pleading guilty, Bodnari admitted to the following facts:

Between March 28, 2015, and April 3, 2015, Bodnari rubbed a 12- year-old female’s butt over her underwear but under her pajamas and touched her above her vaginal area over her pajamas and licked his fingers. On a second occasion during that timeframe, ____________________________________________

1 See 18 Pa.C.S.A. § 3126(a)(2).

2 See 42 Pa.C.S.A. § 9799.12 (defining SVP).

3 See 42 Pa.C.S.A §§ 9799.10-9799.42. J-S54026-20

Bodnari touched the breast area and vagina of a 13-year-old female over her clothes.

Trial Court Opinion, filed July 22, 2020, at 2-3 (citing N.T., 7/11/19 (Guilty

Plea and Sentencing), at 6). Bodnari was 33 years old at the time of the

assaults. N.T. (Guilty Plea and Sentencing) at 6.

As part of his plea deal, the trial court dismissed the ten counts with

which the Commonwealth had originally charged Bodnari, and Bodnari waived

his right to have a determination of his SVP status prior to his sentencing

hearing. See 42 Pa.C.S.A. § 9799.24(a). The court sentenced Bodnari to serve

11½ to 23 months’ incarceration, followed by three years of probation. The

court then ordered the State Sexual Offenders Assessment Board to determine

whether Bodnari should be classified an SVP. See id. at § 9799.24(b).

Bodnari filed a Motion to Quash the SVP determination on the basis that

it was unconstitutional under Commonwealth v. Butler, 173 A.3d 1212,

1214-18 (Pa.Super. 2017) (“Butler I”), rev’d by 226 A.3d 972 (Pa. 2020).

See Motion to Quash, 10/10/19, at ¶¶ 5-6. The trial court entered an order

scheduling a hearing on the Motion, which it then continued until the time of

Bodnari’s SVP hearing. See 42 Pa.C.S.A. § 9799.24(e). At the beginning of

the hearing, the Commonwealth argued, “The Butler matter had been

outstanding before the Pennsylvania Supreme Court [and] has come back in

favor of the Commonwealth[.]” N.T., 4/30/20 (SVP hearing), at 4. Although

the trial court did not explicitly rule on Bodnari’s Motion to Quash, the court

in effect denied it by proceeding to the SVP hearing.

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The Commonwealth presented the testimony of Dr. Veronique N.

Valliere, a licensed psychologist, and a member of the Board, who testified as

an expert in the evaluation of individuals as SVPs. Dr. Valliere testified that

Bodnari met the criteria to be classified an SVP. N.T., 4/30/20 (SVP hearing),

at 10. She found he met the diagnostic criteria for “other specified paraphilic

disorder to children,” due to his history of sexual arousal and sexual behavior

with adolescents. Id. at 10-11. She noted that although Bodnari had long ago

suffered legal consequences due to another sexual offense involving a minor,

this had not deterred him from committing the instant offenses, because his

disorder “overrides [his] control.” Id. Dr. Valliere explained that “[a]

paraphilic disorder is considered an acquired or lifetime diagnosis that must

be managed over the course of someone’s lifetime after [a] pattern is

created,” and that it is “related to a future likelihood of reoffending.” Id. She

stated Bodnari “has proven his own risk of re-offense because he is multiply

arrested [sic] for sex crimes.” Id. at 11.4

Dr. Valliere also found Bodnari’s behavior satisfied the statutory

definition of predatory, and that he has “significant antisocial traits” which

“make it difficult for him to establish internal barriers to the criminal and

sexual behavior,” as evidenced by his “repeated sentencing dates, assaultive

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4 Dr. Valliere also stated she could not predict whether Bodnari was “likely to reoffend in particular,” but stated “he does have a disorder which is motivated, in his particular case that has motivated his re-offense anyway, so it’s the disorder that needs to be related to the risk and not for me to make a prediction of the risk.” N.T. (SVP hearing) at 11.

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crimes, probation violations, contempt of child support orders, and . . .

lifestyle instability.” Id. at 11-12. The Commonwealth submitted Dr. Valliere’s

assessment report into evidence.

On cross-examination, Dr. Valliere testified that in addition to the two

acts for which Bodnari plead guilty, Bodnari’s pattern of sexual behavior

involved a 2003 conviction for sexual abuse of a 14-year-old girl, and

allegations from 1999 and 2002. Id. at 13. She explained that at those earlier

times, when Bodnari was younger, he may not have met the SVP criteria, but

that “as he aged, he continued to pursue minor children sexually, that’s what

says that it went from a, perhaps a consensual, of not illegal, relationship, to

a sexual pattern of arousal. He didn’t grow out of it.” Id.

The court determined that the Commonwealth provided clear and

convincing evidence that Bodnari was an SVP, and notified him of his duty to

register for his lifetime under SORNA. See 42 Pa.C.S.A. § 9799.15(a)(5).

Bodnari appealed,5 and raises the following issues:

[1.] Whether the lower court erred in designating [Bodnari] as a “sexually violent predator” (SVP) where the Commonwealth adduced legally insufficient (unclear and unconvincing) evidence to support a finding that [Bodnari] had a likelihood of sexual recidivism[.]

5 Bodnari’s notice of appeal is timely, as he filed it within 30 days of the court’s April 30, 2020 order classifying him as an SVP, which finalized his judgment of sentence. See Pa.R.A.P. 903(a); Commonwealth v. Schrader, 141 A.3d 558, 561 (Pa.Super. 2016) (“where a defendant pleads guilty and waives a pre-sentence SVP determination, the judgment of sentence is not final until that determination is rendered”).

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[2.] Whether the lifetime-registration requirements of Subchapter H of The Sex Offender Registration and Notification Act (SORNA) constitute an illegal sentence that violates the due process clause of the US and PA Constitutions because they are impermissibly punitive based on an irrebuttable false presumption, and do not require a finding of guilt beyond a reasonable doubt[.]

[3.] Whether Subchapter H’s provisions regarding automatic lifetime-registration requirements, demonstrated earlier in [Bodnari]’s brief to be unconstitutionally punitive, are not severable from its provisions regarding requirements for SVPs: wherefore the latter must be stricken down with the former, along with the entirety of Subchapter H[.]

[4.] Whether the lifetime-registration requirements of Subchapter H of SORNA involve unconstitutionally cruel and unusual punishment.

Bodnari’s Br. at 11-12 (answers below, suggested answers, and footnote

omitted).

1. Evidence Supporting SVP Determination

Bodnari first argues the court erred in designating him an SVP based on

a pattern of behavior. Bodnari claims his only other conviction for a sexual

offense was for statutory sexual assault, a result of consensual sex that

occurred when he was a teenager. Bodnari’s Br. at 22. Bodnari contends this

shows Dr. Valliere’s assessment was flawed, because she stated Bodnari “has

proven his own risk of re-offense because he is multiply arrested [sic] for sex

crimes,” and calls into question Dr. Valliere’s conclusion that Bodnari’s

purported mental disorder makes it likely that he will further commit sexually

violent offenses. Id. (quoting N.T. (SVP hearing) at 11).

Although Bodnari did not raise this issue prior to appeal, the issue is not

waived insofar as Bodnari challenges the sufficiency of the evidence

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supporting the SVP determination. See Commonwealth v. Fuentes, 991

A.2d 935, 941 n.4 (Pa.Super. 2010). To the extent that Bodnari complains

that Dr. Valliere’s opinion was erroneous, his argument goes to the weight,

and not the sufficiency, of the evidence, a claim that Bodnari has not

preserved. See id. at 944-45 (holding appellant’s challenge to SVP

determination was weight claim, where appellant complained Board expert

testified “prior sexual assault is one of the best predictors of future sexual

assault” and appellant had not been previously arrested or charged for any

sexual offenses).6

“We will reverse a trial court’s determination of SVP status only if the

Commonwealth has not presented clear and convincing evidence that each

element of the statute has been satisfied.” Id. at 942 (quoting

Commonwealth v. Geiter, 929 A.2d 648, 650 (Pa.Super. 2007)). We review

the evidence of record in the light most favorable to the Commonwealth. Id.

A sexually violent predator is a person who was convicted of an

enumerated offense and “who is determined to be a[n SVP] under section

9799.24 (relating to assessments) due to a mental abnormality or personality

disorder that makes the individual likely to engage in predatory sexually

violent offenses.” 42 Pa.C.S.A. § 9799.12. “The salient inquiry to be made by

the trial court is the identification of the impetus behind the commission of

6 See also Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa.Super. 2008) (stating challenge to credibility or reliability of expert’s SVP determination goes to the weight of the evidence).

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the crime and the extent to which the offender is likely to reoffend.”

Commonwealth v. Morgan, 16 A.3d 1165, 1169 (Pa.Super. 2011) (quoting

Fuentes, 991 A.2d at 943) (emphasis omitted). However, evidence of a

likelihood of re-offense is not required. Id. at 1169, 1173.

Dr. Valliere testified that, based on his history of sexual behavior and

his anti-social personality traits, Bodnari has a mental abnormality that makes

it likely he will engage in predatory sexually violent offenses in the future. She

explained that it was not the extent of the criminality of his previous behavior

that established Bodnari’s risk of reoffending, but his persistence in pursuing

minors despite the passage of time and his understanding of the

consequences. Viewed in the light most favorable to the Commonwealth, the

evidence is sufficient. See Fuentes, 991 A.2d at 944 (on challenge to

sufficiency of evidence supporting SVP determination, acknowledging “the

well-settled law that an expert’s opinion, which is rendered to a reasonable

degree of professional certainty, is itself evidence” (emphasis in original));

Feucht, 955 A.2d at 382 (“a Board report or opinion that the individual has

an abnormality indicating the likelihood of predatory sexually violent offenses

is itself evidence”).

2. Due Process

Bodnari argues that in requiring some sexual offenders to register for

their lifetimes, Subchapter H violates the Due Process Clauses of the United

States’ and Pennsylvania’s Constitutions. A challenge to registration

requirements is a challenge to the legality of sentence, over which we employ

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a de novo standard of review. Commonwealth v. Groner, 233 A.3d 807,

808 (Pa.Super. 2020). We presume a legislative act is constitutional, and will

only find it unconstitutional if it “clearly, palpably, and plainly violates the

[C]onstitution.” Commonwealth v. Killinger, 888 A.2d 592, 594 n.2 (Pa.

2005) (citation omitted).

First, Bodnari argues that automatic lifetime registration violates due

process because it is founded on the irrebuttable the presumption that “all

sexual offenders are dangerous and pose a high risk of recidivation.” Bodnari’s

Br. at 27 (quoting Commonwealth v. Torsilieri, 232 A.3d 567, 573 (Pa.

2020)). Bodnari argues that lifetime registration affects the constitutional

right to reputation, and that the presumption is obviously untrue because,

according to him, SVP hearings often determine that an individual offender

does not pose a high risk of recidivation. He further maintains that a

reasonable alternative to the presumption exists, as courts could utilize the

same assessment process as they do to determine whether an individual is an

SVP, to determine whether an individual actually poses a high risk of

reoffending.7

Bodnari lacks standing to challenge “automatic” lifetime registration.

Bodnari seems to complain that Subchapter H of SORNA “automatically” ____________________________________________

7 Bodnari acknowledges that the Pennsylvania Supreme Court confronted the issue in Torsilieri, and remanded for the parties to present additional evidence of whether a scientific consensus exists regarding sexual offenders’ recidivism rates that would justify, pursuant to the irrebuttable presumption doctrine, overturning the registration system created by the legislature. Nevertheless, Bodnari lodges his own argument in support of the issue.

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subjects an offender convicted of a Tier III offense to lifetime registration,

without an opportunity to rebut the presumption that he is likely to reoffend.

See 42 Pa.C.S.A. 9799.15(a)(3). However, Bodnari is not subject to

“automatic” lifetime registration as a Tier III offender. Rather, Bodnari must

register for life because the trial court found him to be an SVP. Bodnari cannot

complain of the constitutionality of statutory provision to which he is not

subject. Commonwealth v. McKown, 79 A.3d 678, 691 (Pa.Super. 2013);

Commonwealth v. Smith, 917 A.2d 848, 852 (Pa.Super. 2007).8

Second, Bodnari argues that Subchapter H violates due process in

imposing automatic lifetime registration on some offenders without first

submitting the triggering facts to a jury for a finding beyond reasonable doubt.

Bodnari invokes our statement in Commonwealth v. Strafford, 194 A.3d

168, 173 (Pa.Super. 2018), that “SORNA’s registration requirements are an

authorized punitive measure separate and apart from [an appellant’s] term of

incarceration.” He also asserts SORNA’s automatic lifetime registration

requirements are punitive under an assessment of the Mendoza-Martinez9

factors. Bodnari relies heavily on the Pennsylvania Supreme Court’s discussion

8See also Commonwealth v. Semuta, 902 A.2d 1254, 1261-62 (Pa.Super. 2006); Commonwealth v. Ciccola, 894 A.2d 744, 747 (Pa.Super. 2006).

9 See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

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of the factors in Commonwealth v. Muniz, 164 A.3d 1189, 1210-15 (Pa.

2017) (OAJC).10

Again, Bodnari attempts to challenge the constitutionality of a statutory

provision that caused him no injury. Bodnari was not subject to automatic

lifetime registration, but was subject to lifetime registration as an SVP. While

the SVP determination was not submitted to a jury or required to be proven

beyond a reasonable doubt, our Supreme Court has determined that the

registration requirements Subchapter H imposes on SVPs do not constitute

criminal punishment. See Commonwealth v. Butler, 226 A.3d 972, 993 (Pa.

2020) (“Butler II”). Hence, Bodnari has not suffered a due process violation.

Commonwealth v. Manzano, 237 A.3d 1175, 1179 (Pa.Super. 2020);

Groner, 233 A.3d at 809.

3. Severability of Statutory Provisions

Bodnari next argues that the provisions of Subchapter H regarding

registration for SVPs are not severable from those provisions requiring

automatic lifetime registration (which Bodnari argues are unconstitutional).

As we decline to consider the constitutionality of statutory provisions that do

not apply in this case, we need not address this issue further.

10 Again, Bodnari acknowledges that the Pennsylvania Supreme Court encountered this issue in Torsilieri, but remanded for development of the issue through expert testimony.

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4. Cruel and Unusual Punishment

Bodnari’s final argument is that because, as he asserts, SORNA’s

registration requirements are punitive, “it should follow—at least according to

the logic of the [trial] court in Torsilieri—that the lifetime-registration

requirements are arbitrary, excessive and constitute cruel and unusual

punishment.” Bodnari’s Br. at 52 (citing Torsilieri, 232 A.3d at 594

(summarizing the trial court’s findings)). He does not state whether he argues

under the State or Federal Constitution, or provide any authority regarding

the standard for deciding what constitutes cruel and unusual punishment.

By substantially failing to develop this argument, Bodnari has waived it.

See Pa.R.A.P. 2119(a); Commonwealth v. Woodard, 129 A.3d 480, 502

(Pa. 2015). Moreover, the appellant in Torsilieri was not designated an SVP,

and therefore the trial court did not consider whether the registration

requirements for SVP’s are arbitrary, excessive and constitute cruel and

unusual punishment. See Torsilieri, 232 A.3d at 572 n.2. Further, as

discussed above, our Supreme Court has ruled that the registration

requirements for SVPs under Subchapter H of SORNA do not constitute

punishment. See Butler II, 226 A.3d at 993. We are therefore unable to

conclude that registration requirements for SVPs constitute cruel and unusual

punishment.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/15/2021

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