Com. v. Mountain

• Decision Date: 03 April 1998
• Citation: 711 A.2d 473
• Parties: COMMONWEALTH of Pennsylvania v. Keith Lewis MOUNTAIN, Appellant.
• Court: Pennsylvania Superior Court

Page 473

711 A.2d 473

COMMONWEALTH of Pennsylvania v. Keith Lewis MOUNTAIN, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 15, 1998.

Filed April 3, 1998.

Joseph P. Burt, Erie, for appellant.

Marshall Piccinini, Asst. Dist. Atty., Erie, for Com., appellee.

Before TAMILIA, JOHNSON and BROSKY, JJ.

TAMILIA, Judge:

Keith L. Mountain appeals from the February 21, 1997 judgment of sentence imposing a fourteen and one-half (14-1/2) to twenty-nine (29) year term of imprisonment. Following a January 1997 jury trial, appellant was found guilty of rape, ¹ indecent assault, ² unlawful restraint ³ and simple assault. ⁴ The record reveals the following facts.

On the evening of May 27, 1996, appellant was visiting with the victim and the victim's boyfriend, appellant's brother. At the end of the evening, the victim requested both her boyfriend and appellant leave. The two left and the victim went to sleep. Appellant, however, returned around midnight claiming to have left something inside the victim's apartment earlier that evening. Appellant then initiated a conversation with the victim regarding her relationship with his brother. When the victim told appellant to leave, he refused, began making lewd remarks to the victim and became physically abusive when the victim rejected his advances. When she continued to demand that he leave, appellant cornered the victim, punched her in the face, choked her with his hands and placed a pillow over her face. Appellant then raped the victim and fled the apartment.

As discussed previously, a jury found appellant guilty of rape, indecent assault, unlawful restraint and simple assault. Having been convicted of rape, appellant was automatically subject to the provisions of Pennsylvania's Megan's Law ⁵ requiring him to register a current address with the Pennsylvania State Police for ten years upon release from incarceration or upon parole from a state or county correctional institution. 42 Pa.C.S. § 9793, Registration of certain offenders for ten years. Upon review of reports prepared by the State Board to Assess Sexually Violent Predators, the sentencing court agreed with the reports' conclusion appellant did not fit the profile of a "sexually violent predator" as defined at section 9792 and as expounded upon at section 9794 of Megan's Law. Having been classified as a "sexual offender" as opposed to a "sexually violent predator", appellant's registration information is disseminated only to local law enforcement officials by the Pennsylvania State Police. We note the registration and notification requirements for sexually violent predators are much more broad. VanDoren v. Mazurkiewicz, 695 A.2d 967 (Pa.Commw.1997); 42 Pa.C.S. §§ 9794-9798.

On appeal, appellant raises the following three issues challenging Megan's Law.

1. Did the "Notification Upon Parole" portion of the sentence violate the due process clause of the Fourteenth Amendment to the U.S. Constitution and Article I, § 9 of the Pennsylvania Constitution in that: A) the statute allows Mr. Mountain to be rendered a social pariah, with a chill cast upon his exercise of his right to associate with others as a functioning member of society; and B) the statute, via a mere conviction, creates an irrebuttable presumption that Mr. Mountain is within a class of people whose rights may otherwise constitutionally be so curtailed?

2. Did the statute violate Mr. Mountain's right to privacy?

3. Did the "Notification Upon Parole" portion of the sentence violate Article I, §§ 9 & 10 of the U.S. Constitution and Article I, § 18 of the Pennsylvania Constitution in that it operates as a bill of attainder?

(Appellant's Brief, p. 4.)

Specifically, these inartfully posed challenges to the registration requirements of Megan's Law raise claims as to federal and state due process violations, invasion of privacy, and federal and state constitutionally prohibited bills of attainder. We address each of these challenges bearing in mind "[a] statute will not be invalidated unless there is a clear, palpable and plain demonstration that the statute violates a constitutional provision." Commonwealth v. Rishel, 441 Pa.Super. 584,, 658 A.2d 352, 354 (1995), citing Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992).

Appellant's due process argument, as set forth in his brief, is illogical, vague and confusing. Appellant suggests his convictions automatically subject him to the registration requirements of Megan's Law. He is correct; however, he makes no substantive argument thereafter invoking federal due process rights pursuant to either the Fourteenth Amendment of the United States Constitution or state due process rights pursuant to Article 1, § 9, of the Pennsylvania Constitution. Upon reading appellant's brief, one may conclude appellant intends to argue a substantive due process deprivation in that he contends he will be socially exiled as a result of the registration requirement or a procedural due process deprivation in that appellant is required to register with Pennsylvania State Police without the benefit of some prior judicial proceeding. (See Appellant's Brief, pp. 8-9.) Regardless of whether appellant intended one or both of these theories to be the foundation for his due process challenge, in the interests of judicial economy we have examined both and found neither presents a meritorious argument.

It is beyond cavil that in order to successfully assert a due process claim, one must have been deprived of something, be it a physical item or personal right. "The threshold inquiry in any due process analysis is whether there exists any identifiable property or liberty interest at issue." Stone and Edwards Insurance Agency v. Department of Insurance, 161 Pa. Commw. 177, n. 28, 636 A.2d 293, 302 n. 28 (1994). In the instant matter, appellant anticipates being treated as a social outcast upon release from incarceration. First of all, how appellant may be treated in 14-1/2 to 29 years is purely speculative. Secondly, even if appellant finds himself alienated from society, appellant has not and cannot present any evidence suggesting alienation would result from the registration requirement.

Statistical evidence gathered in New Jersey indicates adverse repercussions reportedly experienced by convicted offenders have little connection to the applicable notification requirements. E.B. v. Verniero, et al., 119 F.3d 1077, 1088-1089 (3rd Cir.1996), cert. denied, W.P. et al. v. Verniero, --- U.S. ----, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998). ⁶ A similar statistical survey conducted by the Oregon Department of Corrections in January 1995 revealed "[l]ess than 10% of offenders experienced some form of harassment." Id. at 1090 (citations omitted). In addition, a Washington State review of community notification between March 1990 and March 1993 found of the 176 notifications completed, there were only 14 reported incidents of harassment. Id. at 1089 (citations omitted). The value of examining the above statistics from other jurisdictions is two-fold. First, it suggests the unlikelihood a person subject to Pennsylvania's Megan's Law would be adversely affected by the statute's requirements, and secondly, it serves to vitiate the argument appellant, as a sexual offender subject only to registration requirements, would suffer social harm by merely providing his registration information to law enforcement, for it is apparent even when subject to broad public notification requirements, few offenders realize an adverse social effect.

Section 9793 provides in pertinent part as follows:

§ 9793. Registration of certain offenders for ten years

(a) Registration.--A person convicted of any of the offenses set forth in subsection (b) shall be required to register a current address with the Pennsylvania State Police upon release from incarceration, upon parole from a State or county correctional institution, upon the commencement of a sentence of intermediate punishment or probation.... The offender shall inform the Pennsylvania State Police within ten days if the offender changes residence. The offender shall register with a new law enforcement agency no later than ten days after establishing residence in another state. The period of registration shall be ten years.

This Court recently addressed the issue of whether the registration requirement of Megan's Law is constitutional in Commonwealth v. Gaffney, 702 A.2d 565 (Pa.Super.1997). In Gaffney, the defendant presented an ex post facto challenge arguing the registration requirement was, in effect, a subsequent and more harsh punishment for his crimes. The Gaffney court analyzed this issue in light of the three-prong test set forth in Artway v. Attorney General, 81 F.3d 1235 (3rd Cir.1996), as modified in E.B. v. Verniero, supra. The Artway /Verniero test is designed to determine whether a legislative act qualifies as punishment.

A statutory provision will be considered punishment if "(1) the legislature's actual purpose is punishment, (2) if the 'objective' purpose is punishment, or (3) if the effect of the statute is so harsh that 'as a matter of degree' it constitutes punishment. Gaffney, supra at 567, citing Verniero, supra. In 1996, the registration provisions of the New Jersey's Megan's Law were found to be non-punitive and were upheld by the Third Circuit as constitutional. Artway, supra at 1267. In Gaffney, this Court adopted the Artway/Verniero test and conducted a careful comparison of the New Jersey registration provisions and Pennsylvania's 42 Pa.C.S. § 9793. This Court found "no meaningful difference between their respective registration provisions". Gaffney, supra at 568. Moreover, the provisions are "essentially indistinguishable" with respect to their policy objectives, coverage qualifications and sanctions. Id.

Lastly, the Gaffney court discussed the unobtrusive nature of section 9793.

[T]he only information which appellant must provide is his current address. See 42 Pa.C.S.A....