J-S26007-26 2026 PA Super 191
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
WESLEY MORGAN POLLARD : No. 1424 MDA 2025
Appeal from the Order Entered September 24, 2025
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000912-2025
BEFORE: PANELLA, P.J.E., NICHOLS, J., and NEUMAN, J.
OPINION BY PANELLA, P.J.E.: FILED AUGUST 28, 2026
The Commonwealth appeals from the order granting Pollard’s motion to
dismiss the 3 charges of failure to register1 pursuant to the registration
requirements of section I of the current version of the Sex Offender
Registration and Notification Act (“SORNA II”).2 The Commonwealth asserts
the trial court erred in finding Pollard was not required to register as a sex
offender pursuant to SORNA II. After careful review, we reverse and remand
for further proceedings.
The trial court set forth the relevant factual and procedural history:
On May 9, 2025, [the Commonwealth], via criminal information,
charged [Pollard] with three (3) counts of failure to register [with
the Pennsylvania State Police (“PSP”)], in violation of [18]
Pa.C.S.A. § 4915.2(a)(1) stemming from an incident on April 21,
2025, wherein [Pollard] allegedly failed to update his residence ____________________________________________
1 18 Pa.C.S.A. § 4915.2(a)(1).
2 42 Pa.C.S.A. §§ 9799.51-9799.75.
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and address, as well as his employment status with [PSP] in
accordance with SORNA requirements from a 1990 involuntary
deviate sexual intercourse [(“IDSI”)] conviction out of Luzerne
County, Pennsylvania.
… On … August 25, 2025, [Pollard] filed a motion to dismiss
alleging that because [Pollard’s] prior conviction occurred in 1990,
it predates any Megan’s Law or SORNA requirements, therefore
any retroactive application of such is punitive and unlawful
pursuant to Commonwealth v. Stanley, 259 A.3d 989 (Pa.
Super. 2021) and Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017). On … September 10, 2025, [the Commonwealth] filed its
response and a hearing was held on September 17, 2025.
Following said hearing, the [trial court] rendered its decision,
granting [Pollard’s] motion to dismiss and effectively dismissing
all charge[s] alleged based upon retroactive application of SORNA.
On September 25, 2025, [the Commonwealth] filed a motion for
reconsideration …, which [the trial court] denied via order the
same date. …
Trial Court Opinion, 1/7/26, at 1-2 (unnecessary capitalization and record
citations omitted).
The Commonwealth filed a timely notice of appeal to this Court.3 The
trial court thereafter ordered the Commonwealth to file a Rule 1925(b)
3 The Commonwealth’s brief asserts this Court has jurisdiction pursuant to 42
Pa.C.S.A. § 742, as this is an appeal from a final order. However, on August 4, 2026, Pollard filed an application to quash with this Court, asserting this Court does not have jurisdiction pursuant to Commonwealth v. Sutton, ---A.3d ---, 90 MAP 2024, 104 MAP 2024 (Pa. filed July 21, 2026). We disagree with Pollard. In Sutton, the Pennsylvania Supreme Court held that section 742 does not provide this Court with jurisdiction to hear appeals of orders dismissing charges for failure to make out a prima facie case because the Commonwealth has the option to refile the charges and make another attempt at establishing the factual prerequisite of a prima facie case. See id. at * 13-14.
(Footnote Continued Next Page)
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statement. See Pa.R.A.P. 1925(b). The Commonwealth complied and the trial
court authored its Rule 1925(a) opinion on January 7, 2026. See Pa.R.A.P.
1925(a).
The Commonwealth raises two issues for our review:
[1.] Whether the trial court erred in dismissing failure to register
charges against [Pollard] on the basis that [Pollard] was not
required to register as a sexual offender pursuant to
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and
Commonwealth v. Santana, 266 A.3d 528 (Pa. 2021), when the
applicable case is, instead, Commonwealth v. Lacombe, 234
A.3d 602 (Pa. 2020), which demands that [Pollard] did have an
obligation to register as a sexual offender at the time the failure
to register charges were brought against him[?]
[2.] Whether the trial court erred in extending to [Pollard’s]
situation the finding in Muniz and Santana that retroactive
application of the registration requirements of SORNA I was
punitive and an ex post facto violation, when [Pollard] was
required to register pursuant to Subchapter I of SORNA II which
was declared non-punitive in Lacombe[?]
Appellant’s Brief, at 4 (lower court answers omitted).
We begin with our standard of review:
The decision to grant a pretrial motion to dismiss a criminal charge
is vested in the sound discretion of the trial court and may be
overturned only upon a showing of [an] abuse of discretion or
error of law.
Here, however, no such option exists because the court did not dismiss the charges for the Commonwealth’s failure to establish the factual prerequisite of a prima facie case. Instead, the court found the Commonwealth could not charge Pollard with failure to register as a matter of law, which did not leave the Commonwealth with the option to refile the charges. See Order, 9/24/25, at 2 (pagination added for ease of reference). Therefore, we conclude Sutton is distinguishable and we deny Pollard’s application to quash.
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The term ‘discretion’ imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion, within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused when the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill will.
Commonwealth v. King, 932 A.2d 948, 950-51 (Pa. Super. 2007) (quotation
marks, brackets, and citations omitted).
Where, however, a defendant has challenged the constitutionality of a
statute, “our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Mucci, 327 A.3d 1223, 1229 (Pa. Super. 2024) (citation
and internal quotation marks omitted).
Here, Pollard argued in his motion to dismiss that he was not required
to register as a sex offender for two reasons: (1) the plain language of SORNA
II, Subchapter I does not apply to him because his conviction occurred in
1990; and (2) any retroactive application of the SORNA II registration
requirements would violate the ex post facto clauses of the United States and
Pennsylvania Constitutions. See Motion to Dismiss, 8/25/25, at 2-3
(pagination added for ease of reference). The trial court agreed and held that
“SORNA [II] was unlawfully applied retroactively based upon [Pollard’s] 1990
convictions of rape and involuntary deviate sexual intercourse. Further,
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requiring [Pollard] to register [under SORNA II] as an additional condition of
sentence is punitive, and in clear violation of ex post facto principles.” Order,
9/24/25, at 2 (pagination added for ease of reference).
We first will address whether Pollard is required to register under the
plain language of SORNA II before we turn to the trial court’s finding that
requiring Pollard to register would violate the ex post facto clauses of the
United States and Pennsylvania Constitutions.
Before we do, though, we recognize the confusion surrounding the many
versions of, and cases interpreting, Megan’s Law and SORNA. We therefore
find it helpful to briefly address the different versions and notable decisions
regarding each:
In 1995, Pennsylvania enacted its inaugural version of Megan’s
Law, a comprehensive regulatory scheme designed, among other
things, to protect the safety and general welfare of the people of
this Commonwealth by providing for registration, community
notification and access to information regarding sexually violent
predators and offenders who are about to be released from
custody and will live in or near their neighborhood. Since then,
that law has been amended, revised, replaced, and renamed. All
told, there have been four versions of Megan’s Law and two of
SORNA, most of which have faced a variety of constitutional
challenges. These laws have been challenged upon due process
grounds, upon the manner in which the law was passed, and as
violations of the ex post facto clauses in the United States and
Pennsylvania Constitutions.
Commonwealth v. Arnett, 353 a.3d 705, 707 (Pa. 2026) (footnotes,
brackets, and quotation marks omitted).
The Pennsylvania Supreme Court struck down portions of Megan’s Law
I in Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999) (Williams I).
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“After Williams I was decided, the General Assembly passed Megan’s Law II,
which was signed into law on May 10, 2000.” Commonwealth v. Muniz, 164
A.3d 1189, 1198 (Pa. 2017). Portions of Megan’s Law II were found
unconstitutional in Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003)
(Williams II). This decision did not find the entirety of Megan’s Law II
unconstitutional and severed the unconstitutional portions from the remainder
of the statute. See Williams II, 832 A.2d at 986. This severance did not
affect the registration requirements. See id.
Notably, in the case currently before us, Pollard was released from
prison on July 11, 2003, prior to the decision of Williams II. Pollard was
therefore required to, and did in fact, register under Megan’s Law II upon his
release.
“The General Assembly made further amendments to Megan’s Law II
with the passage of Act 152 of 2004, commonly referred to as Megan’s Law
III, which was signed into law of November 24, 2004.” Muniz, 164 A.3d at
1197 (citation omitted). The Pennsylvania Supreme Court struck down Act
152 as unconstitutionally violative of the single subject rule in
Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013). The Court stayed its
decision for 90 days to allow the General Assembly to remediate their error.
Neiman, 84 A.3d at 75.
“Megan’s Law III was replaced by SORNA [I].” Muniz, 164 A.3d at 1198.
The General Assembly enacted SORNA [I] in response to the
federal Adam Walsh Child Protection and Safety Act of 2006, …
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which mandates that states impose on sex offenders certain tierbased registration and notification requirements in order to avoid
being subject to a penalty, i.e., the loss of federal grant funding.
Accordingly, Pennsylvania’s General Assembly sought to comply
with this federal legislation by providing for the expiration of prior
registration requirements, commonly referred to as Megan’s Law
III, … as of December 20, 2012, and for the effectiveness of
SORNA [I] on the same date.
Id. at 1203-04 (quotation marks, brackets, and citations omitted).
The Court then found SORNA I violated the ex post facto clauses of both
the United States and Pennsylvania Constitutions in Muniz. See id. at 1193,
1218, 1223.
On June 12, 2018, SORNA I was then replaced with SORNA II to
remedy the former version’s unconstitutional requirements for
offenders whose crimes preceded the effective date of SORNA I.
Subchapter H of SORNA II governs crimes committed on or after
December 20, 2012, whereas, Subchapter I of SORNA II applies
to [individuals who were:
(1) convicted of a sexually violent offense committed
on or after April 22, 1996, but before December 20,
2012, whose period of registration with the
Pennsylvania State Police, as described in section
9799.55 (relating to registration), has not yet
expired; or
(2) required to register with the Pennsylvania State
Police under a former sexual offender registration law
of this Commonwealth on or after April 22, 1996, but
before December 20, 2012, whose period of
registration has not yet expired.
42 Pa.C.S.A. § 9799.52.]
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Commonwealth v. Frehafer, 344 A.3d 1070, *1 (Pa. Super. filed July 1,
2025) (unpublished memorandum).4
It is this latest version, SORNA II, Subchapter I, that we must interpret
in this case. Here, both parties agree subsection 9799.52(1), quoted above,
does not apply to Pollard. See Appellant’s Brief, at 16; Appellee’s Brief, at 7-8.
However, the Commonwealth contends that Pollard must register under
subsection 9799.52(2). See Appellant’s Brief, at 16. Pollard argues subsection
9799.52(2) cannot apply to him because, if it did, its retroactive application
would be an unconstitutional ex post facto punishment. See Appellee’s Brief,
at 9-12.
Subsection 9799.52(2) “considers whether an individual was previously
required to register and whether that registration period was still in effect as
of February 21, 2018.” Commonwealth v. Worthington, 289 A.3d 86, *3
(Pa. Super. filed Nov. 22, 2022) (unpublished memorandum) (citation
omitted). As noted above, Pollard was released from prison in 2003, prior to
the decision in Williams II. When Pollard was released from prison, he did
register with PSP as required under Megan’s Law II. He was therefore
“required to register with [PSP] under a former sexual offender registration
4Pursuant to Pa.R.A.P. 126(b), this Court may rely upon unpublished memorandum filed after May 1, 2019, for their persuasive value.
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law … after April 22, 1996, but before December 20, 2012[.]” 42 Pa.C.S.A. §
9799.52(2).
The sentence Pollard was serving prior to his release from prison was
for IDSI, which, under Megan’s Law II, required Pollard to register as a sex
offender for the remainder of his life. See 42 Pa.C.S.A. § 9795.1(b)(2)
(expired; version in effect Jan. 21, 2003, to Jan. 23, 2005). Therefore, at the
time SORNA II was enacted, Pollard’s “period of registration ha[d] not yet
expired,” and we agree with the Commonwealth that Pollard is required to
register pursuant to subsection 9799.52(2). 42 Pa.C.S.A. § 9799.52(2).
As the plain language of subsection 9799.52(2) applies to Pollard, we
turn to the Commonwealth’s argument that the trial court erred in finding the
application of subsection 9799.52(2) violates ex post facto principles.
Both Pollard and the trial court rely upon Muniz and Commonwealth
v. Santana, 266 A.3d 528 (Pa. 2021) in finding that Pollard’s registration
violates the ex post facto clauses. However, both Muniz and Santana
interpreted SORNA I, not SORNA II. See Muniz, 164 A.3d at 1192; Santana,
266 A.3d at 529 n.2. As such, neither case is directly on point herein.
The Pennsylvania Supreme Court addressed whether the retroactive
application of SORNA II, Subchapter I, violates the ex post facto clauses in
Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), and found that it
did not violate the ex post facto clauses because Subchapter I is non-punitive.
See Lacombe, 234 A.3d at 605-06, 626-27. As the Court stated: “the
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threshold question for determining whether the retroactive application of
Subchapter I to appellees violates the constitutional prohibition against ex
post facto laws is whether the requirements of Subchapter I constitute criminal
punishment.” Id. at 618 (citation omitted).
The Court applied the same standard as enunciated in Muniz to
determine if Subchapter I of SORNA II constitutes criminal punishment:
We first consider whether the General Assembly’s
intent was to impose punishment, and, if not, whether
the statutory scheme is nonetheless so punitive either
in purpose or effect as to negate the legislature’s
nonpunitive intent. If we find the General Assembly
intended to enact a civil scheme, we then must
determine whether the law is punitive in effect by
considering the [Kennedy v. Mendoza-Martinez,
372 U.S. 144 (1963) (“Mendoza-Martinez”)]
factors. We recognize only the clearest proof may
establish that a law is punitive in effect. Furthermore,
in determining whether a statute is civil or punitive,
we must examine the law’s entire statutory scheme.
Id. at 618 (quoting Muniz, 164 A.3d at 1208).
The Court noted “the General Assembly’s purpose in enacting
Subchapter I was non-punitive, that is, it intended to enact a civil regulatory
scheme.” Id. Then, the Court evaluated all the Mendoza-Martinez factors
and held:
As the above Mendoza-Martinez analysis clearly reflects,
Subchapter I effected significant changes from the original version
of SORNA, retroactive application of which we found
unconstitutional in Muniz. To summarize, we find three of the five
factors weigh in favor of finding Subchapter I nonpunitive.
Additionally, we give little weight to the fact Subchapter I
promotes the traditional aims of punishment and give significant
weight to the fact Subchapter I is narrowly tailored to its
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nonpunitive purpose of protecting the public. As we have not
found the requisite clearest proof Subchapter I is punitive, we may
not override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty.
We hold Subchapter I does not constitute criminal punishment,
and the ex post facto claims forwarded by appellees necessarily
fail.
Id. at 626-27 (citations and quotation marks omitted).
As it is clear that Subchapter I is nonpunitive and therefore cannot be
an ex post facto violation, we are constrained to reverse the order of the trial
court and reinstate the 3 charges of failure to comply with 42 Pa.C.S. Ch. 97
Subch. I registration requirements. See Commonwealth v. Strickler, 262
A.3d 508, *5 (Pa. Super. filed Aug. 17, 2021) (unpublished memorandum)
(“Lacombe applies equally to individuals who, like [Pollard] were convicted
of an offense prior to the enactment of any sex offense registration scheme.”)
(citation omitted).
Order reversed. Charges reinstated. Application to quash denied.
Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 08/28/2026
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