Com. v. Hovatter, J.

• Court: Superior Court of Pennsylvania
• Decided: September 15, 2021
• Docket: 1368 EDA 2020
• Status: Unpublished

Opinion

J-A21044-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN TAYLOR HOVATTER : : Appellant : No. 1368 EDA 2020

Appeal from the Judgment of Sentence Entered June 9, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003051-2019

BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 15, 2021

Appellant John Taylor Hovatter appeals from the judgment of sentence

entered in the Court of Common Pleas of Bucks County on June 9, 2020,

following a negotiated guilty plea. We affirm.

On April 6, 2019, Appellant, then an 81-year-old man,1 was arrested

and charged by the Middletown Township Police Department with Aggravated

Indecent Assault of a Child, 18 Pa.C.S.A. § 3125(b); Unlawful Contact with a

Minor -- Sexual Offense, 18 Pa.C.S.A. § 6318(a)(1); Aggravated Indecent

Assault-- Complainant Less than 13 Years Old, 18 Pa.C.S.A. § 3125(a)(7);

Corruption of Minors -- Defendant Age 18 or Above, 18 Pa.C.S.A. §

____________________________________________

* Former Justice specially assigned to the Superior Court. 1 Appellant’s date of birth is May 6, 1937. He was 82 years of age when he

pled guilty and is currently 84 years old. J-A21044-21

6301(a)(1)(ii); and Indecent Assault of Person Less than 13 Years of Age, 18

Pa.C.S.A. § 3126(a)(7).

The aforementioned charges arose as a result of a report received on

January 16, 2019, from a nine-year-old female victim that she had been

sexually assaulted by Appellant in her home.2 Appellant, who had befriended

the victim’s family through his church in 2015, began to visit the victim’s

parents frequently and often watched television alone with the victim during

those visits.

In January of 2019, the victim became distressed and disclosed to her

parents that Appellant “had touched her private parts, making a hand motion

over her genitals.” Following a forensic interview, the victim confirmed that

at times when she had been alone in the living room with Appellant, he would

ask her to sit on his lap or next to him on the couch, and he would touch her

on her vagina and anus. Appellant admitted he “did put [his] hand on the

young lady over her clothes,” but he stressed there was no penetration. N.T.

12/10/19, at 22-25.

On June 5, 2019, Appellant waived his right to a hearing and all charges

were bound over for trial. On December 10, 2019, Appellant entered a

negotiated plea of guilty to one count of Indecent Assault of a Person Less

than 13 Years of Age. The trial court granted the Commonwealth’s request to

2 The victim’s date of birth is May 8, 2009.

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nolle pros all remaining counts of the Information and also agreed not to

invoke the twenty-five-year mandatory minimum sentence applicable to the

offense. N.T. 12/10/19, at 9-10.3

Instead, Appellant was to be sentenced to a period of incarceration of

not less than two (2) nor more than five (5) years. Id. Appellant also was

advised of his registration and notification requirements as a Tier III offender

under the Sexual Offender Registration and Notification Act ("SORNA").4 N.T.

12/10/19, at 21.

At Appellant’s request, sentencing was deferred and scheduled for

February 20, 2020, to enable him to undergo an oral surgical procedure. N.T.

12/10/19, at 10. Claiming he still had not fully recovered from the surgery,

Appellant sought and was granted a further continuance until April 6, 2020.

On June 9, 2020, the trial court imposed the negotiated sentence of

incarceration in a state correctional institution for not less than 2 years nor

more than 5 years. Appellant was permitted to self-surrender on July 15,

2020, at 9:00 a.m.

On July 8, 2020, Appellant filed a counseled “Emergency Motion to Stay

Sentence” and attached numerous medical reports thereto. Pursuant to this

Court's directive of August 3, 2020, the trial court issued its “Statement”

3 Appellant has a prior 1986 conviction for Indecent Assault (18 Pa. C.S.A. §

3126) which also involved a child complainant. Accordingly, he was facing a mandatory minimum sentence of twenty-five (25) years of incarceration. 4 42 Pa.C.S.A. §§ 9799.10-9799.41.

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setting forth its reasons for denying Appellant’s motion to stay execution of

his sentence on September 2, 2020. Therein, the trial court observed that the

medical records did not include a certification of authenticity or other

documentation, nor was there a summary of treatment or diagnosis of

Appellant’s condition. Also, there were no resumes or curricula vitae of any

doctor. Notwithstanding, the trial court reviewed the records after which it

noted the following:

1. The primary basis for the Emergency Motion was a diagnosis of peripheral vascular disease by Dr. James McGuckin;

2. This condition was originally diagnosed by Dr. McGuckin on February 28, 2020 at which time Appellant did not want to have an arterial intervention and claimed he would return in six months;

3. Appellant also saw Dr. Youssef Kabbani on April 24, 2020 to have his toenails trimmed. At that time, Dr. Kabbani noted Appellant had moderate peripheral vascular disease;

4. On June 26, 2020, Appellant saw Dr. Kabbani for another toenail trimming. He was fully ambulatory with street shoes and was walking without any assistive devices (cane); and

5. Dr. Kabbani, on behalf of Appellant, made an appointment at that time (June 26, 2020) for Appellant to have an arteriogram on July 14, 20202 with Dr. McGuckin.

We interacted with Appellant on December 10, 2019 and June 9, 2020. On both occasions, he claimed to have extreme difficulty hearing and appeared very unsteady on his feet. He was not able to walk or stand without the assistance of a cane. At those times, we believed he was overstating, or exaggerating his condition. After review of the aforementioned medical records, we believed the exaggeration was continuing. Appellant is an 83 year old man with the health issues of a person his age. But, these health issues did not prevent him from committing this crime when he was 81 years of age. Nor

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should they prevent him from serving the sentence he negotiated.

Trial Court Statement filed 9/2/20, at 2.

The trial court denied Appellant’s emergency motion, and Appellant filed

his notice of appeal on July 9, 2020. On July 24, 2020, Appellant filed another

“Emergency Motion to Stay Sentence” with this Court. Following our review

of the Motion, the Commonwealth’s answer thereto, and the trial court’s

statement, we denied the Motion in a Per Curiam Order entered October 14,

2020. Prior thereto, on July 30, 2020, the trial court had directed Appellant to

file a concise statement of matters complained of on appeal, and Appellant

complied on August 14, 2020. The trial court did not file a separate opinion

pursuant to Pa. R.A.P. 1925(a) addressing the claims Appellant raised in his

concise statement.

In his brief, Appellant presents the following claims for our review:

1. Is the current version of the SORNA statute unconstitutional, as applied to [Appellant], and is it illegal to impose a lifetime registration requirement upon him after his release from prison?

2. Is the current version of SORNA, Act 10 of 2018 (H.B. 631), reenacted by Act 29 of 2018, P.L. 140 (H.B. 1952), unconstitutional and therefore, should not be the registration requirement be applied to [Appellant]?

3. If the court does not invalidate [Appellant’s] sentence on an “as applied basis”, or find that the statute is unconstitutional, should imposition of this statutory sentence be stayed pending the decision in Commonwealth v. Torsilieri, -- A.3d --, 2020 WL

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3241625 (Pa. June 16, 2020), which may find Section H of the new SORNA law unconstitutional?

Brief for Appellant at 2.

A challenge to the constitutionality of a statute presents this Court with

a question of law, and our review is plenary. A statute is presumed to be

constitutional and will not be declared unconstitutional unless it clearly,

palpably, and plainly violates the constitution. Thus, the party challenging the

constitutionality of a statute bears a heavy burden of persuasion.

Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004).

Appellant raises his related issues for the first time on appeal.

Therefore, before we reach the merits of Appellant’s claims, we first must

determine whether he has properly preserved them for our review.

“[C]onstitutional issues, including sentencing issues based upon the

constitution, are waived if they are not properly raised in the trial court.”

Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004); see also

Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot

be raised for the first time on appeal.”). Indeed, this Court recently concluded

that a defendant waived numerous constitutional arguments concerning

whether Revised Subchapter H creates “an irrefutable and irrebuttable

presumption against the offender” by failing to raise the claims in the trial

court. See Commonwealth v. Reslink, , ––– A.3d ––––, –––– – ––––, 2020

WL 7415959, at *3-*4 (2020).

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In Reslink, the appellant was convicted following a jury trial of indecent

assault of a person less than 13 years of age, endangering the welfare of a

child, corruption of minors, and criminal attempted indecent assault, and he

was sentenced accordingly. Appellant did not file a post-sentence motion. Id.

at *1.

On appeal, the appellant raised a challenge to the constitutionality of

Revised Subchapter H of SORNA/Act 10 on the grounds that it “creates ‘an

irrefutable presumption against the offender,’” and violates “federal and state

constitutional prohibitions against cruel and unusual punishment.” Id. at *3.

This Court found that the appellant had waived the constitutional issue

because he had failed to raise it “before the trial court, in a motion to bar

application of SORNA, or in post-sentence motions.” Id. at *4.

In reaching this decision, we noted that it “is well-settled that issues not

raised before the trial court cannot be advanced for the first time on appeal.”

Id. (citing Pa.R.A.P. 302(a)). The fact that the appellant raised a constitutional

claim did not alter this Court's analysis. See id. (citing In re F.C. III, 2 A.3d

1201, 1212 (Pa. 2010)) (finding appellant's constitutional claims waived

where he failed to raise them before the trial court, depriving that tribunal of

the opportunity to consider and rule on them); see also Commonwealth v.

Howe, 842 A.2d 436, 441 (Pa. Super. 2004) (“[C]onstitutional issues,

including sentencing issues based upon the constitution, are waived if they

are not properly raised in the trial court.”).

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As the Commonwealth argues herein, Appellant failed to raise his

constitutional challenges to SORNA, or any other objection, before the trial

court at the time of his guilty plea although the trial court advised him of his

registration requirements as a Tier III offender under Revised Subchapter H.

Moreover, Appellant raised no objection at the time of his sentencing, nor did

he file any motions either before or after his negotiated guilty plea or before

or after sentencing challenging SORNA's constitutionality.

To the contrary, his trial counsel stated that “[Appellant] is aware of

what is going on, understands that Your Honor has just sentenced him and

wanted it to go that way today, for the reasons I stated before.” N.T.

Sentencing, 6/9/20, at 12-13. Thus, we find he has waived his first two

issues.

When considering Appellant’s third claim, we acknowledge the

Pennsylvania Supreme Court’s decision in Commonwealth v. Torsilieri, --

A.3d --, 2020 WL 3241625 (Pa. June 16, 2020). Therein, our Supreme Court

was faced with addressing the constitutionality of the provisions in Revised

Subchapter H that are applicable to non-SVPs. The defendant had been

convicted of aggravated indecent assault and indecent assault and claimed

that SORNA II was unconstitutional on its face by creating an irrebuttable

presumption that all sexual offenders pose a high risk of recidivism. Id. at

572-573. The defendant argued that the presumption that all sex offenders

are dangerous and pose a high risk of recidivism, necessitating registration,

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was not supported by current research and threatens public safety by

preventing the re-integration of offenders as law-abiding citizens. Id. The

trial court agreed, finding the registration provisions of Revised Subchapter H

unconstitutional based largely on the scientific evidence the defendant had

advanced at the hearing. Id. at 574-575. The Commonwealth appealed that

determination directly to our Supreme Court.

However, our Supreme Court did not reach the merits of any of the

constitutional claims at issue on appeal after determining that the factual

record had not been sufficiently developed below. The Court remanded for

further development of the record and to allow the parties to address whether

Revised Subchapter H amounts to criminal punishment. Id. at 587-588.

As previously stated, in Reslink this Court held that constitutional

claims like those raised in Torsilieri are waivable. This Court recently reached

the same conclusion in Commonwealth v. Snyder, 251 A.3d 782, 794-95

(Pa.Super. 2021), when the defendant raised his challenge to Revised

Subchapter H for the first time on appeal and styled his claims as a challenge

to the legality of his sentence. Id. at 795 n.11 (stating “[w]e read Reslink for

the limited proposition that constitutional claims for relief directed at

Pennsylvania's sexual offender registration regime that concern the

presumption of recidivism discussed in Torsilieri are subject to waiver under

Rule 302(a), regardless of whether that claim sounds in legality of sentence.”).

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We find Reslink and Synder are dispositive of this issue. Here,

Appellant raises similar constitutional challenges for the first time on appeal

that our Court found waived in those cases. Because he did not present these

challenges to the trial court in the first instance, they are waived, and this

cannot be cured by a stay of the reporting requirement portion of his sentence

pending our Supreme Court’s decision in Torsilieri.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/15/2021

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