Com. v. Sisler, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MATTHEW SISLER : : Appellant : No. 1288 EDA 2020

Appeal from the Judgment of Sentence Entered January 2, 2020 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002177-2018

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.* MEMORANDUM BY McLAUGHLIN, J.: Filed: October 7, 2021

Matthew Sisler appeals from the judgment of sentence imposed after a jury found him guilty of numerous crimes: Rape by Impairment, Rape of a Child, Statutory Sexual Assault, Aggravated Indecent Assault of a Person Under 16, Aggravated Indecent Assault of a Child, Incest, Endangering the Welfare of a Child, Corruption of a Minor, Unlawful Contact with a Minor, Unauthorized Use of Intoxicant, two counts of Sexual Abuse of a Minor (Creating Child Pornography and Possession of Child Pornography), and Person not to Possess a Firearm. We affirm in part, based on the trial court’s opinion. However, we vacate the denial of Sisler’s post-sentence motion challenging the constitutionality of the registration requirements of ____________________________________________

• • Former Justice specially assigned to the Superior Court.

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Subchapter H of the Sex Offender Registration and Notification Act (“SORNA”),1 and remand for further proceedings.

After Sisler was charged with the aforementioned crimes, the case proceeded to a jury trial wherein Sisler’s daughter C.S., the victim, testified. C.S., who was fourteen years old at the time of the arrest, explained that Sisler had been molesting her since she was seven years old.

She described having been woken up one night by Sisler who told her she was having trouble sleeping and talking in her sleep. He then gave her a pill, which she swallowed, and told her to go back to sleep. C.S. later awoke to Sisler touching and grabbing her breasts over her pajamas. See N.T. Trial, 8/19/19, at 51-54.

This happened multiple times and Sisler progressed to touching C.S. under her clothing, and then eventually stopped using his hand and started using his penis, including putting his penis inside of her vagina. C.S. explained that on these occasions, Sisler would come in at night, tell her she was having trouble sleeping, and give her a pill. See id. at 55-56.

In addition to touching C.S.’s breasts, Sisler would touch her vagina including putting his hand inside her vagina. She explained that while she was sleeping, he would come into her room and start taking her clothes off and she would awake to him moving his hand in and out of her vagina. This ____________________________________________ 1 See 42 Pa.C.S.A §§ 9799.10-9799.42.

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happened on more than one occasion, starting when she was about nine years old. See id. at 60-62.

At times, Sisler would come into C.S.’s bedroom, take her clothes off and push her onto her side. He would then put lotion on his penis and stick it inside her. C.S. explained that when this happened, she would instantly get up and tell him to stop. Sisler did this to her more than one time beginning when she was about twelve or thirteen. See id. at 62-64.

On occasion, Sisler would come into C.S.’s bedroom while she was sleeping and would use his mouth, licking her vagina. She explained that she would usually wake up not knowing what was happening but could tell what he was doing because she could feel pressure holding her down and would look down and see Sisler’s mouth on her vagina. C.S. would tell him to stop and start kicking and would pull herself out of the bed. This happened about twice when she was twelve or thirteen. See id. at 63-65.

In addition, at times Sisler would put C.S.’s hand on his penis when she was asleep. When she awoke and tried to move her hand away, he kept putting it back and moved it up and down on his penis until he ejaculated. See id. at 68.

C.S. also testified that Sisler had taken pictures of when she was unconscious and asleep. She explained that he hid a camera in her bedroom and tried to video record her as she got out of the shower. See id. at 69.

C.S. explained that during these incidents her mom was sleeping in the living room. She did not tell her mom right away because Sisler “said if [she]

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ever told [her] mom he was going to hurt [her].” Id. at 65. C.S. testified that she was also scared of Sisler because he used to hit her with a belt and the back of his hand.

C.S. testified that over time she “started to realize what was going on” and stopped taking the pills that Sisler was giving her. Id. at 56. Sisler then began to put the pills into her food. C.S. explained that at times she would taste something in her food and notice little pieces of pill. Specifically, she recounted an incident where Sisler had baked cookies late at night and gave her one. She “took a bite and it tasted different,” so she “looked inside and there was red pills.” Id. at 57.

On another occasion, C.S. explained that she was sitting with her parents in the living room drinking a milkshake that Sisler had made for her, when a piece of pill got stuck inside the straw. C.S. asked Jennifer Geyer, her mother, what it was. Geyer said it was a pill and asked C.S. why it was in her milkshake. See id. at 174. C.S. then looked at Sisler who “freaked out,” he “started screaming and saying he didn’t put it in there[, she] put it in here [herself].” Id. at 59. Sisler and Geyer then got in an argument where Sisler kept saying that C.S. was trying to frame him for something. About two weeks later, Sisler brought up the incident again asking Geyer “what if [C.S.] gets mad at me and tells somebody that I molested her.” Id. at 152; see id. at 60.

Geyer testified that after Sisler brought up the idea of C.S. framing him, she suspected that something was wrong. See id. at 152. She told C.S about

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Sisler’s comment and asked if he had ever done anything weird. C.S. told her that Sisler “touched [her] since [she] was seven years old.” Id. at 163; see id. at 70. When she said this, C.S. was crying hysterically so Geyer did not ask for any details.

Geyer explained that initially she did not know what to do, and was afraid that Sisler would hurt them, so she went to Corey Romanowski, a family friend who was a paramedic and whose son worked in law enforcement, to ask for advice. See id. at 122, 164, 166. After C.S. told Romanowski that her father had molested her, Romanowski and his wife contacted local law enforcement and notified them of the suspected abuse. See id. at 127, 134, 143.

On September 17, 2018, Detective Christopher Boheim, Sergeant Charles LaRue, and a Monroe County Children and Youth caseworker, Melissa Snyder, came to the family’s apartment. Detective Boheim spoke with Geyer, who confirmed that her daughter, C.S., had disclosed that she had been sexually abused by Sisler. See id. at 249. He then, together with the caseworker asked some preliminary questions of C.S. who was hysterical at the time. In response to the questioning, C.S. confirmed that Sisler touched her above and under her clothes, touched her with his penis, touched her vagina with his penis, and put his fingers inside her vagina. See id. at 251.

At one point Sisler asked Detective Boheim if Sisler could go inside and get a cigarette. The detective accompanied Sisler inside and observed a firearm directly beneath Sisler’s cigarettes. The firearm and cigarettes were

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located on an end table with several other items including two of Sisler’s cell phones, his wallet, and his tablet. See id. at 255-59; N.T. Trial, 8/20/19, at 38.

Meanwhile, the caseworker spoke with C.S. and explained the Child Advocacy Center (“CAC”) process to C.S. and asked if she would go with her to the CAC. See N.T. Trial, 8/19/19, at 204-05. At the CAC, C.S. underwent a forensic interview and medical examination.

Dr. Olumbunmi Salako, M.D., conducted the medical exam of C.S. During the exam, Dr. Salako noted that C.S. was very depressed. She also observed a general neglect of personal hygiene that was out of the norm for a person of C.S.’s age range. See N.T. Trial, 8/20/19, at 11. During the physical examination, Dr. Salako noted that she was able to see C.S.’s hymen, and that there was no evidence of acute trauma. See id. at 15. Dr. Salako explained that “in young females, because a hymen is intact does not mean that there wasn’t any kind of penetration.” Id. at 16. Dr. Salako obtained a hair sample from C.S, which tested positive for Zolpidem, a sedative hypnotic. See id. at 132, 134.

At trial, Detective Boheim testified that when he executed a search warrant on the residence, he found a prescription for Zolpidem, a Sig Sauer .380 caliber firearm with two rounds in the magazine, three cell phones, a tablet, and a computer hard drive. See N.T. Trial, 8/19/19, at 257, 259; N.T. Trial, 8/20/19, at 39-40, 45-47. Geyer later found an SD card in Sisler’s

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camera and dropped it off at the Monroe County District Attorney’s Office. See N.T. Trial, 8/20/19, at 182-83.

A search of the electronic devices revealed photos and a video depicting nudity and a young female in various stages of undress. See id. at 155-78. Geyer confirmed that she was able to identify herself in some of the images, and C.S. in some of the images. She explained that she did not know that the pictures were being taken and did not give permission for Sisler to take the photos. See id. at 184-85, 188. Geyer identified C.S. in several of the pictures including one where C.S.’s face was not visible, but Geyer recognized her based on her familiarity as a mother with her daughter’s body, and the clothing that C.S. had been wearing. See id. at 191, 204. Geyer explained that one of the videos depicting C.S. without pants or underwear was taken in the master bedroom. See id. at 193. In another photo, Geyer identified C.S. dressed only in a towel with wet hair leaving the bathroom. See id. at 196-97.

Geyer testified that the Sig Sauer firearm that had been recovered was in her name, but that Sisler used it. See N.T. Trial, 8/19/19, at 167. Sisler kept the gun in a basket in the coffee table by the couch on which he slept. Geyer stated that Sisler would “dry” fire the gun at their pet cats if he got mad at them. Id. at 168. She also explained that he would shoot the gun at the shooting range which they would visit. See id. at 169. Sergeant Charles Fino, a firearms expert, tested the firearm and concluded that it was fully functional. See id. at 238.

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Sisler testified in his own defense at trial. He said that he was in the hospital from September 9 through 12, 2018, related to treatment for endstage renal failure. Therefore, he claimed he could not have assaulted C.S. on that Tuesday or Wednesday like she told investigators. See N.T. Trial, 8/21/19, at 15-16. He also denied having assaulted C.S. or taking photos or videos of her in which she was scantily clad. See id. at 35. Rather, he claimed that he used the threat of video recording as a deterrent to keep C.S. from walking out of the bathroom in a towel. See id. at 41, 45.

Sisler denied having ever used the firearm and claimed it was solely for Geyer’s use. See id. at 38. He also denied ever having been to the gun range with the firearm. See id. at 86-87.

Following Sisler’s testimony, the prosecutor introduced a video clip from Geyer’s phone of Sisler at the shooting range teaching his mother how to shoot the Sig Sauer firearm as rebuttal evidence. Sisler objected to admission of the video because it was not provided with discovery in the case. The prosecutor explained that he had only received the video five minutes earlier and the video only became relevant when Sisler testified that he was never at the gun range. The court overruled the objection. See id. at 124-28.

On August 21, 2019, at the conclusion of trial, the jury found Sisler guilty of all charges. The court ordered an assessment of Sisler by the Sexual Offenders Assessment Board (“SOAB”), and scheduled sentencing for October 31, 2019. Sentencing was continued at the request of the Commonwealth until December 17, 2019. On December 15, 2019, Sisler filed a motion to dismiss

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for a violation of his right to speedy sentencing pursuant to Pa.R.Crim.P. 704(a)(1). On December 17, 2019, Sisler filed a motion to continue sentencing, which the trial court granted.

On January 2, 2020, the court conducted a sentencing hearing. At the start of the hearing the court denied Sisler’s motion to dismiss. It then sentenced him to 63½ to 127 years of incarceration. The court informed Sisler that as a Tier 3 sexual offender he is subject to the lifetime registration and reporting requirements of SORNA. It did not find him to be an SVP. Sisler filed a post-sentence motion, which the court denied. This timely appeal followed.

Sisler raises eleven issues on appeal.

1. [Whether Sisler’s] conviction for Rape by Causing Impairment, Rape of a Child, Statutory Sexual Assault, and Incest, were against the weight of the evidence[?]

2. [Whether Sisler’s convictions for Aggravated Indecent Assault of a Person Under 16, Aggravated Indecent Assault of a Child, Endangering the Welfare of a Child, and Corrupting the Morals of a Minor are against the weight of the evidence?]2

3. Whether [Sisler’s] conviction for Unauthorized Use of an Intoxicant was against the weight of the evidence, where there was no evidence presented that [Sisler] drugged the Complainant?

4. Whether [Sisler’s] convictions for Sexual Abuse of a Minor and Sexual Abuse of a Minor-Possession of a Depiction of a Prohibited Sexual Act were against the weight of the evidence,

____________________________________________ 2 Although included in his post-sentence motion, concise statement of errors

complained of on appeal, and argued in a separate section within the argument section of his brief, Sisler appears to have omitted this question from his statement of questions. See Sisler’s Br. at 8, 48-51. Because Sisler clearly and consistently sought to raise this issue, we have addressed it.

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where the video depicting the Complainant does not show her nude or engaged in a prohibited sexual act?

5. Whether [Sisler’s] conviction for Person Not to Possess Firearm was against the weight of the evidence where the firearm in question was purchased, owned by and registered to [Sisler’s] wife?

6. Whether the trial court abused its discretion in admitting rebuttal evidence consisting of [Sisler] instructing his mother how to shoot a firearm owned by his wife, which was not provided to the defense until after [Sisler] had testified at trial that he never possessed his wife’s firearm, and therefore could not be found guilty of Possession of a Firearm by a Person Prohibited, 18 Pa.C.S.A. Section 6105, which violated [Sisler’s] right to mandatory discovery under Pa.R.Crim.P. 573 and prejudiced his right to a fair trial?

7. Whether the trial court abused its discretion in denying [Sisler’s] motion in limine to preclude salacious nude photographs of his wife that were downloaded on his laptop?

8. Whether the trial court abused its discretion in admitting into evidence, photograph of an unidentified female’s nude breast, whose face was not depicted in the picture, as such evidence had zero probative value, but was highly prejudicial and inflammatory?

9. Whether the trial court abused its discretion in denying [Sisler’s] motion to dismiss for violation of his right to a speedy sentencing, pursuant to Pa.R.Crim.P. 704?

10. Whether the [lifetime] registration requirement imposed by the trial court pursuant to the Pennsylvania Sexual Offender’s Registration Act, “SORNA,” is unconstitutional and should be set aside, where SORNA violates the fundamental right to reputation under the Pennsylvania State Constitution, as well as federal guarantees of procedural due process under the Fifth, Sixth, and Fourteenth Amendments?

11. Whether the sentencing court erred as a matter of law, abused its discretion, violated the fundamental norms of sentencing and specific provisions of the sentencing code, to wit, 42 Pa.C.S.A. Section 9721(b), which requires that any sentence imposed be consistent with the protection of the public, the gravity of the offense and the rehabilitative needs

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of [Sisler] where the sentence imposed of [67½ to 135] years was grossly disproportionate to the force of the evidence, and, therefore, manifestly excessive and unreasonable, far surpasses what is required to protect the public, the complainant and the community, as well as foster [Sisler’s] rehabilitation, and, finally, egregiously relied on an impermissible factor, an SVP assessment, wherein [Sisler] had not been interviewed by the psychologist, which the Pennsylvania Supreme Court has held to be unconstitutional?

Sisler’s Br. at 7-10 (renumbered for ease of disposition, some formatting altered, some argument omitted).

Before we address the merits of the issues raised, we must determine whether, as the trial court suggests, Sisler waived his first five claims, all of which claimed that the weight of the evidence was against his convictions. In its opinion denying Sisler’s post-sentence motion, the trial court found that Sisler waived all his claims challenging the weight of the evidence because he did not pay for transcription of the trial, did not request the notes and testimony which the Commonwealth paid to transcribe, and did not cite to any testimony from the transcripts of testimony that had been filed. See Trial Ct. Op., 6/2/20, at 5.

On July 24, 2020, the trial court granted Sisler’s request for transcription of the notes and testimony from trial and sentencing. The request had

accompanied his notice of appeal.3 The certified record reflects that the trial ____________________________________________

3 Sisler filed his notice of appeal together with a praecipe to proceed in forma

pauperis. After a hearing, the court granted Sisler’s motion for the purposes of appeal and subsequent proceedings. The court thereafter granted the request for transcripts noting that the costs would be borne by the court administration.

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and sentencing had been transcribed, and copies of the notes and testimony had been delivered. However, the certified record submitted to this Court on appeal contains only one day’s worth of trial testimony.4

“This Court cannot meaningfully review claims raised on appeal unless we are provided with a full and complete certified record.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (citations omitted). “As an appellate court, we are limited to considering only those facts that have been duly certified in the record on appeal.” Commonwealth v. Spotz, 18 A.3d 244, 323 (Pa. 2011) (citation omitted). “In the absence of an adequate certified record, there is no support for an appellant’s arguments and, thus, there is no basis on which relief could be granted.” Preston, 904 A.2d at 7. “Our law is unequivocal that the responsibility rests upon the appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty.” Id.

Instantly, Sisler failed to ensure that the certified record contained all the materials necessary for this Court to address his claims. However, despite it not being our responsibility to do so, this Court obtained copies of the trial and sentencing transcripts, which had been filed in the trial court. Additionally, in his appellate brief before this Court, Sisler has included citation to the

transcripts in support of his argument. Therefore, we do not find that Sisler ____________________________________________

4 The record contained the notes and testimony of August 20, 2019, which the Commonwealth had requested and paid for transcription for the SOAB’s use.

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has waived his challenges to the weight of the evidence, and we will address those claims on the merits.5 Weight of Evidence

A weight claim is for the trial court in the first instance. See Commonwealth v. Stiles, 143 A.3d 968, 980 (Pa.Super. 2016). The trial court may sustain a weight challenge and grant a new trial only “when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted). “The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses.” Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (quoting Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999)). We review the trial court’s rejection of a challenge to the weight of the evidence for an abuse of discretion. See Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017). ____________________________________________ 5 In its opinion denying Sisler’s post-sentence motion the trial court explained

that while Sisler styled his challenge as a weight claim, portions of his argument could be read as challenging the sufficiency of the evidence. Therefore, the court briefly addressed the sufficiency of the evidence along with the weight claim. In his appeal before this Court Sisler did not amend his questions presented to include a sufficiency challenge, nor did he add any legal standards concerning sufficiency. Therefore, we conclude that he does not intend to challenge the sufficiency of the evidence underlying his conviction and instantly we will only address his arguments concerning the weight of the evidence.

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In his first three claims, Sisler argues that the weight of the evidence was against his convictions for Rape by Causing Impairment, Rape of a Child, Statutory Sexual Assault, Aggravated Indecent Assault of a Person Under 16, Aggravated Indecent Assault of a Child, Endangering the Welfare of a Child, Corrupting the Morals of a Minor, and Unauthorized Use of an Intoxicant. Sisler argues that the testimony of the victim, C.S., which the prosecution used to establish these offenses, was incredible. He claims that on the day of his arrest, C.S. first alleged the abuse to have occurred on a date when he was in the hospital. He asserts that C.S.’s later expansion of her claims was inconsistent as to the nature of the sexual contact and did not contain any specificity about the circumstances of the events. Sisler further contends that there was no physical evidence of sexual abuse. Finally he claims that although he had been prescribed Zolpidem, there was no credible evidence presented that he gave it to C.S. See Sisler’s Br. at 45-47, 50-53.

In his fourth issue, Sisler argues that the weight of the evidence is against the convictions for Sexual Abuse of a Minor and Sexual Abuse of a Minor-Possession of a Depiction of a Prohibited Sexual Act because C.S. is not nude in either the photos or the video. Sisler asserts that because the face of the partially nude woman is not in the picture, there is no way to identify it as C.S. See id. at 54-55.

Finally, in his fifth issue Sisler challenges his conviction for Persons Not to Possess a Firearm as against the weight of the evidence. He argues that the Sig Sauer firearm found by detectives at his house was owned and

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registered to Geyer and there was no credible evidence that he ever possessed it. He contends that the video showing him teaching his mother how to use the firearm never actually depicted him in possession. Sisler claims that testimony that he would rack the firearm to scare the cats clearly lacked credibility because as a cat lover he would not use an actual firearm to scare cats. See id. at 55-56.

The trial court reviewed the evidence for each conviction, noted that the jury was free to determine the credibility of the witnesses, and concluded that the verdict was not against the weight of the evidence. See Trial Ct. Op., 6/2/20, at 9-11. We find no abuse of discretion in the trial court’s conclusion and its rejection of Sisler’s weight claims. We therefore affirm on the basis of the trial court opinion, which we adopt and incorporate herein. See id.

ADMISSIBILITY OF EVIDENCE

We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. See Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014). We give deference to the trial court’s decisions regarding the admissibility of evidence. See id. An abuse of discretion is a ruling where there is an “overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, illwill or partiality, as shown by the evidence of record.” Id. at 10 (citation omitted). Gun Range Video

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In his sixth issue, Sisler claims that the trial court abused its discretion when it admitted rebuttal evidence of the video of him at the gun range with his mother. He contends that admission of the video violated his right to mandatory discovery under Pa.R.Crim.P. 573(B)(1) and his right to a fair trial because it was not provided to the defense. He asserts that the Commonwealth’s claim that Geyer did not reveal the existence of the videotape until after Sisler had testified was not believable. See Sisler’s Br. at 57-60.

In response, the Commonwealth asserts that it “was not aware of the video prior and did not have the evidence in its possession until Ms. [Geyer] approached the [prosecutor] after [Sisler] testified untruthfully.” Commonwealth’s Br. at 18.

In criminal cases, the Commonwealth must abide by the mandatory disclosure rules set forth in Rule 573(B)(1), which states:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.

(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and

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Pa.R.Crim.P. 573(B)(1)(f). “The Commonwealth does not violate Rule 573 when it fails to disclose to the defense evidence that it does not possess and of which it is unaware.” Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008) (citation omitted).

At trial, after Sisler testified, the Prosecutor stated that it intended to recall Geyer in rebuttal to introduce a short video clip from her phone, showing Sisler at the shooting range helping his mother shoot the firearm. See N.T. Trial, 8/21/19, at 124. After Sisler objected because the evidence was not provided in discovery, the prosecutor stated that he “just got it [himself] almost maybe five minutes ago.” Id. at 126. Geyer testified similarly that she had just pulled up the video and provided it to the prosecutor during the recent break. See id. The trial court overruled the objection and admitted the video.

The trial court did not abuse its discretion in admitting the video evidence. Discovery Rule 573 only mandates that the Commonwealth disclose tangible evidence that is in its possession. See Collins, 957 A.2d at 253; see also Pa.R.Crim.P. 573(B)(1). Here, the court was free to believe that the prosecutor only came into possession of the video during the recent break, and therefore, had not violated the mandatory discovery disclosure requirements. Accordingly, this issue has no merit. Photographs of Geyer

In his seventh issue, Sisler claims that the trial court erred in denying his motion in limine to exclude nude photographs of Geyer that had been extracted from his devices. He asserts that the photos had no relevance to

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the instant case and argues that they were admitted solely to inflame the jury. Accordingly, he contends that the unfair prejudice from the photos outweighed their probative value and the court abused its discretion in admitting them. See Sisler’s Br. at 60-61.

Both the Commonwealth and the trial court assert that Sisler did not properly preserve this issue for review. They both argue that although Sisler filed a motion in limine seeking to preclude the photos, and the trial court denied the motion, it did not do so on the merits. See Commonwealth’s Br. at 19; 1925(a) Op. at 12-13. Instead, the court left open a final decision on the evidence, explaining that “the ultimate assessment of prejudicial impact versus probative value will be made at the time of trial.” Trial Ct. Order, 8/6/19. Therefore, they claim that the motion in limine did not preserve the objection, and because Sisler did not object when the Commonwealth moved for admission of the photographs, he did not preserve this challenge.6 See Commonwealth’s Br. at 19; 1925(a) Op., 8/26/20, at 12-13.

In order to preserve an issue for our consideration, a party must make a timely and specific objection at trial. See Commonwealth v. McGriff, 160 A.3d 863, 866 (Pa.Super. 2017); Pa.R.A.P. 302(a). “[A] motion in limine may

preserve an objection for appeal without any need to renew the objection at ____________________________________________

6 Sisler did not object after the Commonwealth moved to admit the photographs. See N.T. Trial, 8/20/19, at 151-52. He objected when the Commonwealth sought to publish some photos to the jury, but on the limited grounds that the photos had not been authenticated. See id. at 153. After Geyer authenticated the photographs, the Commonwealth published select images to the jury and Sisler did not object. See id. at 187.

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trial, but only if the trial court clearly and definitively rules on the motion.” McGriff, 160 A.3d at 866 (citation omitted).

Here, the trial court did not clearly and definitively rule on the merits of Sisler’s motion to exclude photographs of Geyer. The motion in limine therefore did not preserve the issue. Because Sisler did not later object to the admission of the photographs at trial, he waived this issue for appeal. See id.

Moreover, even if properly preserved, we would conclude that the trial court did not abuse its discretion. The photographs were properly admissible under Rule of Evidence 404(b)(2) to demonstrate opportunity and intent. The images showed that Sisler had photographed Geyer partially nude without her permission, just has he had captured photos of C.S. partially nude without her permission. See Pa.R.E. 404(b)(2) (evidence of other crimes, wrongs, or other acts “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”). Furthermore, we do not believe any error in admitting the photos prejudiced Sisler, in view of the extensive evidence of his crimes. As such, it was not an abuse of discretion for the court to admit the photos of Geyer. Photograph of Nude Breast

In his final evidentiary challenge, Sisler claims that the trial court abused its discretion by admitting a photograph of an unidentified female’s nude breast. He argues that because the face of the person was not depicted in the

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picture, such evidence had no probative value, and was highly prejudicial and inflammatory. See Sisler’s Br. at 62.

“Admission of evidence . . . rests within the sound discretion of the trial court, which must balance evidentiary value against the potential dangers of unfairly prejudicing the accused, inflaming the passions of the jury, or confusing the jury.” Commonwealth v. Brown, 212 A.3d 1076, 1086 (Pa.Super. 2019), appeal denied, 221 A.3d 643 (Pa. 2019) (citation omitted). A trial court may exclude relevant evidence if its probative value is outweighed by a danger of unfair prejudice. See Pa.R.E. 403.

Here, the trial court’s admission of the photo of the nude breast was not an abuse of discretion. As the court explained:

[Sisler] was charged with, among other things, two different form[s] of Sexual Abuse of Children: creation of child pornography and possession of child pornography. The photograph that [Sisler] is referring to was shown as a part of series of photographs (and a video) found on [Sisler’s] electronic devices that depicted his daughter partially nude or in compromising positions. Although the subject’s face was not shown, and contrary to [Sisler’s] baseless supposition, [] Geyer unequivocally identified the person depicted in the photo as her daughter, the victim in this case. (N.T., 8/20/2019, pp. 190). Since at all pertinent times her daughter was a child between 7 and 14 years-old, the photograph was clearly relevant to the child pornography charges. Further [Sisler’s] bald assertion that [] Geyer, who had cared for her daughter for 15 years could not identify her child’s body is made of whole cloth and, in any event, goes to the weight not the admissibility of the challenged photograph.

Simply, the photograph was highly relevant and its probative value far outweighed its prejudicial effect. [Sisler’s] claim that the photograph was irrelevant could not be authenticated, and was inadmissible is specious.

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1925(a) Op., at 18-19.

We agree that the photograph was highly relevant, and its probative value outweighed its prejudicial effect. Therefore, the trial court did not abuse its discretion in admitting the photo.

SPEEDY SENTENCING VIOLATION

Next, Sisler claims that the trial court erred when it denied his motion to dismiss for a violation of his right to a speedy sentencing. He argues that he was sentenced 137 days after his conviction, which was 47 days beyond the 90-day deadline set forth in Pa.R.Crim.P. 704(a)(1). See Sisler’s Br. at 63-64.

Rule 704 provides in pertinent part:

A) Time for Sentencing.

(1) Except as provided by Rule 702(B), sentence in a court case shall ordinarily be imposed within 90 days of conviction or the entry of a plea of guilty or nolo contendere.

(2) When the date for sentencing in a court case must be delayed, for good cause shown, beyond the time limits set forth in this rule, the judge shall include in the record the specific time period for the extension.

Pa.R.Crim.P. 704(a)(1)-(2).

This Court has explained that a violation of this rule does not automatically result in discharge of the defendant. Rather, the defendant must show prejudice:

The appropriate remedy for a violation of [Pa.R.Crim.P. 704], is discharge. However, the remedy does not automatically apply whenever a defendant is sentenced more than [90] days after

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conviction without good cause. Instead, a violation of the [90-day] rule is only the first step toward determining whether the remedy of discharge is appropriate.

***

[A] defendant who is sentenced in violation of [Pa.R.Crim.P. 704], is entitled to a discharge only where the defendant can demonstrate that the delay in sentencing prejudiced him or her.... [T]o determine whether discharge is appropriate, the trial court should consider:

(1) the length of the delay falling outside of [the Pa.R.Crim.P. 90– day–and–good–cause provisions]; (2) the reason for the improper delay; (3) the defendant’s timely or untimely assertion of his rights; and (4) any resulting prejudice to the interests protected by his speedy trial and due process rights. Prejudice should not be presumed by the mere fact of an untimely sentence. Our approach has always been to determine whether there has in fact been prejudice, rather than to presume that prejudice exists. The court should examine the totality of the circumstances, as no one factor is necessary, dispositive, or of sufficient importance to prove a violation.

Commonwealth v. Diaz, 51 A.3d 884, 887 (Pa.Super. 2012) (quoting Commonwealth v. Anders, 725 A.2d 170, 172-73 (Pa. 1999)).

At sentencing, the court heard argument on Sisler’s motion to dismiss. It then explained the relevant timeframes in this matter. The court accepted the jury’s verdict on August 21, 2019, and scheduled sentencing for October 31, 2019. The Commonwealth then filed a motion for a continuance because the prosecutor was attached to trial in a capital case and because the SOAB had not yet rendered its report. The court found that both reasons were valid and granted the Commonwealth additional time, rescheduling the sentencing for December 17, 2019, the earliest date the court could accommodate. The court explained that it did not count towards the delay the time from

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December 17 onward when it granted defense counsel’s motion for a continuance because he had the flu. See N.T. Sentencing, 1/2/20, at 11-14.

Sisler’s argument at sentencing regarding prejudice was minimal. He claimed that he was prejudiced by the delay because he received dialysis treatments for his kidney disease and was having to receive those treatments in jail. After confirming that Sisler had been receiving the required treatments, the court concluded that Sisler was not prejudiced by the delay and denied the motion to dismiss. See id. at 14.

We agree that Sisler did not demonstrate that he was prejudiced by the delay. Accordingly, the trial court did not err when it denied Sisler’s motion to dismiss. See Diaz, 51 A.3d at 887.

DISCRETIONARY ASPECT OF SENTENCE

Next, Sisler challenges the discretionary aspects of his sentence. We review a challenge to the discretionary aspects of sentence for an abuse of discretion. See Commonwealth v. Smith, 206 A.3d 551, 567 (Pa.Super. 2019). Before we address the merits of such a challenge, we must determine whether: 1) the appellant preserved the issue; 2) the appeal is timely; 3) the brief includes a Pa.R.A.P. 2119(f) statement; and 4) the appellant has raised a substantial question. See Commonwealth v. Spenny, 128 A.3d 234, 241 (Pa.Super. 2015). Here, Sisler preserved the issue in his post-sentence motion, filed a timely appeal, and his brief includes a Rule 2119(f) statement. Therefore, we must consider whether he raised a substantial question.

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“A defendant presents a substantial question when he sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process.” Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa.Super. 2018) (citation omitted).

In his Rule 2119(f) statement, Sisler alleges that he raises a substantial question because the trial court relied on an impermissible factor, namely the SOAB assessment, and imposed an excessive sentence that “solely reflected the gravity of the offenses,” and was grossly disproportionate. Sisler’s Br. at 35. This states a substantial question. See Commonwealth v. Williams, 69 A.3d 735, 740 (Pa.Super. 2013); Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa.Super. 2012) Commonwealth v. McNabb, 819 A.2d 54, 56-57 (Pa.Super. 2003).

However, his claim lacks substantive merit. To support his claims that the sentence was excessive and disproportionate, Sisler gives a recitation of the evidence in a light favorable to himself and maintains his innocence. He then argues that the SOAB report was flawed because Sisler had not sat for an interview, depriving the report’s author of a factual basis for the report’s conclusions. He also maintains that the court could not have disregarded the report’s labeling him an SVP.

We do not think the court abused its discretion in imposing sentence. The court properly reviewed the evidence and enumerated multiple factors supporting the sentence it fashioned. Sisler provides no legal authority for his

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claim that the sentencing court’s consideration of an SOAB assessment constitutes an impermissible consideration. To the contrary, to determine the appropriate sentence, the court may properly consider any evidence it deems relevant, including hearsay. See Commonwealth v. King, 182 A.3d 449, 455 (Pa.Super. 2018); Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa.Super. 1999). Sisler’s sentencing challenge lacks merit.

CONSTITUTIONALITY OF SORNA

Finally, Sisler claims that the lifetime registration requirement imposed by the trial court pursuant to SORNA is unconstitutional.7 He argues that the registration requirement violates his right to reputation because his registration as a sex offender creates a stigma that he is a dangerous adult who is likely to commit further sexual offenses. He asserts that as a Tier III offender based on his offenses, he will not have an opportunity to challenge this designation or demonstrate that he has been rehabilitated. Sisler alleges that he does not have a high risk of recidivism because although he had a prior conviction for burglary, he had no history of sexual offenses and he argues the allegations against him are “utterly without merit, if no[t] ridiculous.” Sisler’s Br. at 69. Accordingly, he claims that SORNA’s provision that sexual offenders pose a high risk of recidivism is an irrebuttable ____________________________________________ 7 Although Sisler refers in the questions presented and argument portion of

his brief to a 15-year registration period, a review of the record reflects that the trial court imposed lifetime registration, as required by SORNA for Tier III offenders. See N.T. Sentencing, 2/2/20, at 22.

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presumption that violates his constitutional right to reputation. See id. at 65-70.

In denying Sisler’s post-sentence motion the trial court noted that our Supreme Court’s then-still-pending decision in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020), would control. See Trial Ct. Op., 6/2/20, at 20.

A brief history of the holding in Torsilieri is helpful in this case. Torsilieri challenged his registration requirements arguing that Subchapter H violates his due process rights because it imposes lifetime registration requirements based on an unconstitutional irrebuttable presumption of dangerousness. The trial court held that Subchapter H was unconstitutional, and the Commonwealth appealed directly to our Supreme Court. Our Supreme Court considered whether Subchapter H violated due process based on an irrebuttable presumption of future dangerousness and it considered based on the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), whether the statute was punitive despite the legislature’s stated nonpunitive purpose. Our Supreme Court ultimately determined that the factual record was insufficient to render a decision on the merits and remanded to the trial court for future development of the record. See Torsilieri, 232 A.3d at 596.

Here, Sisler preserved his Subchapter H claim by raising it before the trial court. However, the trial court did not conduct a hearing concerning Sisler’s potential for future dangerousness and recidivism. Hence, there is no factual record on which we can evaluate Sisler’s Subchapter H claims. Where

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“there is no factual record” for us to decide a Torsilieri claim, under this Court’s precedents, “we vacate and remand for a hearing at which the parties can present evidence” in support of their respective positions. Commonwealth v. Asher, 244 A.3d 27, 33 (Pa.Super. 2020). We therefore respectfully disagree with the dissent and conclude, pursuant to Asher, that a remand is in order. We vacate Sisler’s registration requirements and remand in accordance with Torsilieri for evidentiary proceedings on whether SORNA creates a facially unconstitutional irrebuttable presumption against sexual offenders.

Judgment of sentence affirmed. Order denying post-sentence motion vacated only as to whether SORNA creates a facially unconstitutional irrebuttable presumption against sexual offenders. Case remanded for proceedings consistent with Torsilieri. Jurisdiction relinquished. President Judge Emeritus Bender joins the memorandum. President Judge Emeritus Stevens files a dissenting statement. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/7/21

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