Commonwealth v. Muhammad, No. 1455 MDA 2018

• Citation: 241 A.3d 1149
• Decision Date: 23 October 2020
• Docket Number: No. 1455 MDA 2018
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Tanisha MUHAMMAD, Appellant
• Court: Pennsylvania Superior Court

241 A.3d 1149

COMMONWEALTH of Pennsylvania, Appellee

v.Tanisha MUHAMMAD, Appellant

No. 1455 MDA 2018

Superior Court of Pennsylvania.

Argued July 7, 2020

Filed October 23, 2020

Eric Jon Kress Muhlenberg, Public Defender, Reading, for appellant.

Kenneth William Kelecic, Assistant District Attorney, Reading, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.

OPINION BY STABILE, J.:

Appellant, Tanisha Muhammad, appeals from her judgment of sentence for interference with custody of children, false imprisonment, unlawful restraint, and conspiracy to commit these offenses.¹ Based on Appellant's convictions for interference with custody of children ("interference") and conspiracy to interfere with custody of children ("conspiracy"), the trial court ordered Appellant to register as a sexual offender under Revised Subchapter H of the Sexual Offenders Registration and Notification Act ("SORNA"), 42 Pa.C.S.A. §§ 9799.10 - 9799.42,² as a Tier I offender. We hold that SORNA is unconstitutional as applied to Appellant, because it creates an irrebuttable presumption that her convictions for interference and conspiracy make her a risk to commit additional sexual offenses. Accordingly, we vacate the trial court's order directing her to register as a sexual offender. Otherwise, we affirm the judgment of sentence.

The trial court summarized the evidence against Appellant as follows:

Khalid Muhammad ("Khalid") and Angelita Rodriguez ("Angelita") shared a three-year-old child, Pharaoh Samir Rodriguez ("Pharaoh") at the time of the incident. Angelita also had a 17-year-old daughter, Liajah Rodriguez ("Liajah"). As of January 7, 2014, pursuant to a valid custody order, Angelita was to have primary physical custody of Pharaoh and Khalid was to have partial physical custody of Pharaoh from Friday between noon and 1 P.M. until Sunday 4 P.M. and 5 P.M. Both parties had written notice that if any party feels that another party has violated this order, they were to petition the Court as set forth in Pa.R.C.P. 1915.12. While Angelita was incarcerated between April of 2015 and June of 2016, Pharaoh was in the care of Khalid. After being released from incarceration, Angelita contacted Khalid so that she could see Pharaoh and spend time with him. Upon agreement, Angelita picked Pharaoh up from Khalid in Philadelphia. Angelita agreed with Khalid that she would return Pharaoh to Khalid on Sunday, August 14, 2016. However, Angelita, upon finding some bruises on Pharaoh, told Khalid that she knew that the bruises were from Khalid and that she was not going to return Pharaoh.

On Monday, August 15, 2016, approximately at 2:36 P.M., Liajah, was at the front steps of 111 Orange Street, Reading, PA, with Pharaoh. Soon after, a silver Kia, pulled over down the block and Khalid stepped out of the vehicle. Khalid then picked up Pharaoh and tried to put Pharaoh on to the vehicle. Liajah engaged in a struggle with Khalid in attempt to get Pharaoh back. Jose Mejia also entered the struggle to help Liajah. Lisa Walker ("Lisa") and Tanisha Muhammad ("Appellant"), Khalid's sister, then came out from the vehicle and pulled Liajah away from the vehicle in order to prevent Liajah from getting near Pharaoh. After Pharaoh was placed in the vehicle and the door of the vehicle was shut, Appellant went back to the driver's seat.

Liajah opened the door of the vehicle and attempted to remove Pharaoh from the vehicle. After series of struggles, Lisa pulled Liajah [i]nto the vehicle. As a result of these struggles, Liajah suffered several bruises on her arm and chest, and her t-shirt was ripped. Pharaoh suffered a bump in his head and some scratches on his back.

Appellant drove off from 111 Orange Street while Pharaoh was placed on her lap. Liajah asked the Appellant and Lisa to let her out which the Appellant refused to do. While Appellant was driving through Cotton Street, Liajah opened the door of the vehicle and started to yell out for help. While the door was open, Lisa attempted to push Liajah out of the moving vehicle. After Liajah managed to hang on, Lisa rolled up the windows and locked it. Appellant told Liajah that she and Pharaoh are not going back home.

After the Reading Police were informed of the incident at 111 Orange Street, Criminal Investigator Sweitzer ("C.I.") attempted to contact Appellant numerous times. At one point, Appellant finally answered the phone. When the C.I. asked to turn around the vehicle and come back, Appellant told the C.I. that she was not going to do that. The C.I. asked to speak to Liajah to ensure her safety and Pharaoh's, but the Appellant refused to put Liajah on the phone and hung up the phone. Appellant did not respond to any further calls from the C.I.

Appellant pulled into Chestnut Hill train station where Khalid's mother ("Bonnie"), and Ebony, Khalid's sister, in a vehicle, pulled up next to Appellant. Bonnie took Pharaoh out of the silver Kia and placed Pharaoh onto the other vehicle, where thereafter Ebony drove off with Pharaoh. Bonnie then got in to the front seat of the silver Kia. Appellant then stopped at a store where Bonnie and Liajah entered the store and bought a shirt and sandals for Liajah. Then, Appellant dropped Liajah off at the Center City Greyhound Station in Philadelphia, where Bonnie took Liajah inside the station and bought Liajah a bus ticket to Reading. When Bonnie left with Appellant, Liajah asked a lady to use her phone and contacted her mother, Angelita. Liajah told Angelita where she was and what had happened. Angelita told Liajah that she had called the police and she was to wait for the police at the bus station. Liajah was too scared and got on to the bus headed for Reading, PA. At the first stop, police officers found Liajah and she was escorted back to the local police station. Soon after, the Reading Police picked Liajah up at the station and brought her back to Reading at nighttime of August 15, 2016.

On August 16, 2016, Bonnie called Angelita so that she could return Pharaoh back to Angelita. Bonnie instructed Angelita to meet at the intersection of Broad Street and another street in Philadelphia. After Angelita and C.I. waited for a while, at around 8:30 P.M., Bonnie arrived at the location and returned Pharaoh to Angelita.

Trial Court Opinion, 11/13/18, at 3-5 (with some minor grammatical revisions) (references to notes of trial testimony).

Following a bench trial, the court found Appellant guilty of the offenses listed above. These appear to be Appellant's first and only criminal offenses. N.T., 7/20/18, at 24 (Appellant's prior record score is zero); id. at 34 (court's acknowledgement that these offenses were "totally out of character" for Appellant based on the presentence investigation).

Prior to sentencing, Appellant served the court a memorandum raising a series of constitutional challenges to SORNA, including an argument that SORNA violates Appellant's right to reputation under the Due Process Clause of the Pennsylvania Constitution by creating an irrebuttable presumption that she is a high risk to commit another sexual offense. At sentencing, counsel entered this memorandum into the record and argued that SORNA is unconstitutional "as it applies to [Appellant]." N.T., 7/20/18, at 4. The court responded, "[I] am in no position to hold here that [SORNA] is unconstitutional as applied to [Appellant], and I will not do so." Id. at 4-5. Appellant acknowledged filling out a form notifying her of her requirement to register under SORNA for her convictions for interference and conspiracy. Id. at 39-40. This form was admitted into the record.³ The court sentenced Appellant to three to twenty-three months' imprisonment.

Appellant filed timely post-sentence motions, which the court denied, and a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues in this appeal:

1. Whether the registration requirements of SORNA are unconstitutional and violated [Appellant]'s rights under the Pennsylvania and United States constitutions in that SORNA denied [Appellant] procedural due process under Article I and XI of the Pennsylvania Constitution because it created an irrebuttable presumption that those convicted of enumerated offenses "pose a high risk of committing additional sexual offenses" depriving those individuals of the fundamental right to reputation.

2. Whether SORNA denied [Appellant] procedural due process under Article [I], Section 1 of the Pennsylvania Constitution because it unlawfully restricts liberty and privacy without notice and an opportunity to be heard.

3. Whether SORNA violates substantive due process under the state and federal constitutions because SORNA deprives individuals of inalienable rights and fails to satisfy strict scrutiny.

4. Whether SORNA constitutes criminal punishment and therefore violates the separation of powers doctrine because it usurps the exclusive judicial function of imposing a sentence.

5. Whether SORNA contravenes the 5th, 6th and 14th Amendments of the United States Constitution and the corresponding protections of the Pennsylvania Constitution because as a criminal punishment, SORNA cannot be imposed without due process, notice and opportunity to contest its imposition, and ensuring that each fact necessary to support imposition of mandatory sentences is submitted to a jury and proven beyond a reasonable doubt.

Appellant's Brief at 15-16.

We find Appellant's first argument dispositive of this appeal. SORNA declares that "[s]exual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest." 42 Pa.C.S.A. § 9799.11(a)(4). Appellant contends that both on its face and as applied to her, SORNA violates her right to reputation under Article I, Section 1 of the Pennsylvania Constitution⁴ by creating an irrebuttable presumption that she poses a high risk of committing additional...