J-S67008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELLIOT MADERA,                             :
                                               :
                       Appellant               :   No. 3598 EDA 2017

            Appeal from the Judgment of Sentence February 16, 2016
                 In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004301-2014,
                             CP-15-CR-0004332-2014


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                FILED JANUARY 11, 2019

        Elliot Madera appeals, nunc pro tunc, from the judgment of sentence

imposed February 16, 2016, in the Chester County Court of Common Pleas.

The trial court sentenced Madera to an aggregate term of 30 to 60 years’

imprisonment following his jury conviction of four counts of rape of a child and

involuntary deviate sexual intercourse (“IDSI”), and two counts of aggravated

indecent assault, corruption of minors, and endangering the welfare of a child1

for the ongoing sexual abuse of his minor stepdaughter when she was under

the age of 13.        The court also determined Madera met the criteria for
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 3121(c), 3123(b), 3125(A)(1) and (b), 6301, and 4304,
respectively.
J-S67008-18



classification as a sexually violent predator (“SVP”) pursuant to Pennsylvania’s

Sexual Offender Registration and Notification Act (“SORNA”).2        On appeal,

Madera challenges the legality of his sentence with respect to his classification

as an SVP and special conditions imposed on his sentence by the trial court,

two evidentiary rulings, and the trial court’s denial of a motion for a mistrial.

Because we agree that both Madera’s classification as an SVP and certain

sentencing conditions imposed by the trial court were illegal, we are

constrained to vacate the judgment of sentence, in part, and remand to the

trial court for further proceedings. In all other respects, however, we affirm

the judgment of sentence.

        In its 153-page supplemental opinion, the trial court provided a detailed

recitation of the testimony presented during Madera’s trial. See Supplemental

Trial Court Opinion, 3/9/2018, at 13-125. Accordingly, we need not reiterate

the facts underlying Madera’s conviction herein.       In summary, the victim,

Madera’s stepdaughter, testified he sexually abused her numerous times at

their home over a period of years while she was under the age of 13. Madera

was subsequently arrested and charged with numerous sex crimes including

rape of a child.     Prior to trial, the court denied a motion in limine filed by

Madera, seeking to introduce evidence at trial of the victim’s prior sexual

conduct, and granted a motion in limine filed by him to exclude any reference

to his pretrial incarceration. See Order, 11/13/2015; Order, 11/18/2015. The
____________________________________________


2   See 42 Pa.C.S. §§ 9799.10-9799.41.


                                           -2-
J-S67008-18



case proceeded to a five-day jury trial. On November 20, 2015, the jury found

Madera guilty of the above-stated crimes. Prior to sentencing, the trial court

directed the Sexual Offender Assessment Board (“SOAB”) to perform an

assessment of Madera to determine if he met the criteria for classification as

an SVP. See 42 Pa.C.S. § 9799.24.

      On February 16, 2016, the trial court conducted a combined SVP and

sentencing hearing.    Based on the SOAB’s findings, the court determined

Madera met the criteria for classification as an SVP, and sentenced him to an

aggregate term of 30 to 60 years’ imprisonment. In addition to a term of

imprisonment, the court ordered Madera to have no contact with the victim or

her mother. With respect to the minor son Madera shared with the victim’s

mother, the court permitted Madera to send one letter per month to the child,

and when the child reached the age of 12, to engage in four telephone calls

per year if the child agreed. The court also ordered the child could visit Madera

when he reached the age of 16. See Sentencing Sheet, 2/16/2016.         Further,

the court prohibited Madera from having contact with any children except at

family gatherings in the presence of other adults. See id. Madera filed a

timely post-sentence motion, which the trial court denied on May 24, 2016.

Madera then filed a timely appeal.

      Madera’s appeal was dismissed by this Court on January 5, 2017, when

he failed to file a brief. After requesting and being granted post conviction

relief, Madera filed a second, timely notice of appeal nunc pro tunc on




                                      -3-
J-S67008-18



November 3, 2017.3 The trial court did not order Madera to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

presumably because prior counsel had filed a concise statement following the

original appeal. Nonetheless, on January 18, 2018, Madera filed an application

for remand, seeking leave to file a concise statement in the trial court. This

Court granted Madera’s application on February 5, 2018, Madera filed a new

concise statement on February 26, 2018, and the trial court filed a

supplemental opinion on March 9, 2018.

       In his first issue on appeal, Madera argues his designation as an SVP is

illegal. Both the Commonwealth and the trial court concede that, under the

current state of the law, we must vacate the SVP designation and remand this

case so that the trial court can provide Madera with his proper registration

notification under 42 Pa.C.S. § 9799.23. See Commonwealth’s Brief at 11-

14; Supplemental Trial Court Opinion, 3/9/2018, at 4-5. We agree.




____________________________________________


3 We note Madera was charged and tried under two docket numbers, and his
notice of appeal lists both dockets. In June of 2018, the Pennsylvania
Supreme Court in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held
that “when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Id. at 977 (footnote omitted). Nevertheless,
we note the Walker Court specifically announced its decision would be applied
prospectively only. See Walker, supra, 185 A.3d at 97. Therefore, because
the notice of appeal in the present case was filed before Walker, we need not
quash this appeal.




                                           -4-
J-S67008-18



       Our ruling is based upon two recent appellate court decisions.4 First, on

July 17, 2017, the Pennsylvania Supreme Court held in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017), that SORNA’s registration provisions

constitute punishment, and, therefore, the retroactive application of those

provisions violates the ex post facto clauses of the federal and Pennsylvania

constitutions.    Thereafter, on October 31, 2017, a panel of this Court, in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal

granted, 190 A.3d 581 (Pa. 2018),5 recognized that “Muniz was a sea change

in the longstanding law of this Commonwealth as it determined that the

registration requirements under SORNA are not civil in nature but a criminal

punishment.”      Id. at 1215.       As such, the panel concluded the statutory

mechanism for designating a defendant as an SVP set forth in 42 Pa.C.S. §

9799.24(e)(3), which permits a trial court to make the determination based
____________________________________________


4 Although this issue was not raised before the trial court, a challenge to the
legality of sentencing may be raised for the first time on appeal, or by an
appellate court sua sponte. See Commonwealth v. Batts, 163 A.3d 410,
434 (Pa. 2017).
5  The Pennsylvania Supreme Court granted allowance of appeal on the
following claim:

       Whether the Superior Court of Pennsylvania erred in vacating the
       trial court’s Order finding [Respondent] to be [a Sexually Violent
       Predator      (“SVP”)]    by   extrapolating  the   decision    in
       [Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189
       (2017),]     to   declare    SVP    hearings  and    designations
       unconstitutional under 42 Pa.C.S. § 9799.24(e)(3).

Commonwealth v. Butler, 190 A.3d 581, 582 (Pa. 2018).              At this time,
however, the Butler decision is controlling.


                                           -5-
J-S67008-18



upon clear and convincing evidence, was “constitutionally flawed” pursuant to

the United States Supreme Court’s decisions in Alleyne v. United States,

570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

Accordingly, the Butler panel held: “[T]rial courts cannot designate convicted

defendants SVPs (nor may they hold SVP hearings) until our General Assembly

enacts a constitutional designation mechanism.” Butler, supra, 173 A.3d at

1218. Therefore, the panel vacated the order designating the defendant as

an SVP, and remanded the case to the trial court to determine his proper

registration period pursuant to 42 Pa.C.S. §§ 9799.14 and 9799.15. See id.

      The decision in Butler compels the same result here. Accordingly, we

vacate the judgment of sentence with respect to Madera’s designation as an

SVP and his concomitant lifetime registration requirement under SORNA.

Furthermore, we remand this case to the trial court to determine Madera’s

proper registration period, and provide notice to Madera thereof as required

by 42 Pa.C.S. § 9799.23.

      In his second issue on appeal, Madera asserts the trial court had no

authority to impose restrictions on his contact with his biological son both

while he is incarcerated and when he is eventually paroled. “The issue of

whether the trial court possessed the authority to impose a particular sentence

implicates the legality of the sentence.” Commonwealth v. Mears, 972 A.2d

1210, 1211 n.1 (Pa. Super. 2009).

      Again, we are constrained to agree with Madera.       To the extent the

conditions were intended to apply upon Madera’s release on parole, we note

                                     -6-
J-S67008-18



that, because he was sentenced to a maximum term in excess of five years’

imprisonment, his “parole would be under the exclusive supervision of the

Pennsylvania Board of Probation and Parole (“PBPP”) and not the Court of

Common Pleas.” Mears, supra, 972 A.2d at 1212. See also 61 Pa.C.S. §

6132(a) and 6134(b)(1), (2). Accordingly, the Parole Board will have the sole

authority to determine the conditions of Madera’s parole, and “any condition

the sentencing court purported to impose … is advisory only.”          Id.   In

Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011), a panel of

this Court concluded the trial court’s imposition of a “no contact” restriction

with the victims of the defendant’s crimes following his release on parole

exceeded “the bounds of the court’s authority, and [were] subject to

vacatur[.]” Id. at 142-143. The same is true here.6

        In the present case, however, the trial court also imposed certain

conditions to Madera’s contact with his biological children during his period of

incarceration.    While we have no doubt the trial court’s intentions were to

protect Madera’s children,7 we find no statutory authority permitting the court

to impose special conditions concerning a defendant’s contact with his

____________________________________________


6 We note the Commonwealth argues we may simply view the court’s
conditions as “advisory only,” and affirm the sentence. Commonwealth’s Brief
at 16. This position, however, is contrary to the decisions in Mears and
Coulverson, both of which vacated the offending portion of the defendant’s
sentence. See Mears, supra, 972 A.2d at 1212; Coulverson, supra, 34
A.3d at 142.

7   See Supplemental Trial Court Opinion, 3/9/2018, at 136-141.


                                           -7-
J-S67008-18



biological children during his term of imprisonment absent any allegations of

sexual contact with those children. Accordingly, we also vacate that part of

the sentence which imposed special conditions upon Madera, both while he

was incarcerated and after his parole.

      Madera’s final three issues on appeal are as follows:

      III. Did the trial court err in denying “[Madera’s] Motion to
      Introduce Evidence of Complaining Witness’[s] Prior Sexual
      Conduct Pursuant to 18 Pa.C.S. § 3104(b)” disallowing [Madera]
      from showing the complaining witness’s motive to fabricate the
      allegations?

      IV.    Did the trial court err in barring the presentation of evidence
      regarding [Madera’s] willingness to submit to a polygraph
      examination to rebut evidence of [Madera’s] consciousness of
      guilt?

      V.  Did the trial court err in failing to grant a mistrial after the
      Commonwealth’s reference to “prison” letters?

Madera’s Brief at 5.

      It is well settled that “[a] trial court has broad discretion to determine

whether evidence is admissible, and [its] ruling regarding the admission of

evidence will not be disturbed on appeal unless that ruling reflects manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to be clearly erroneous.”      Commonwealth v. Rosser, 135 A.3d

1077, 1087 (2016) (en banc) (citation and some punctuation omitted), appeal

denied, 168 A.3d 1237 (Pa. 2017).             See also Commonwealth v.

Largaespada, 184 A.3d 1002, 1006 (Pa. Super. 2018) (“[A] trial court’s

ruling on the admissibility of a sexual abuse victim’s prior sexual conduct will

be reversed only where there has been a clear abuse of discretion.”).


                                      -8-
J-S67008-18



Similarly, “[i]t is within the discretion of the trial court to determine whether

a defendant has been prejudiced by misconduct or impropriety to the extent

that a mistrial is warranted.” Commonwealth v. Johnson, 668 A.2d 97,

103 (Pa. 1995). “[A] mistrial is only warranted where the incident upon which

the motion is based is of such a nature as to deny the defendant a fair trial.”

Id. (citation omitted).

      After an independent review of the record, the parties’ briefs, and the

relevant statutory and case law, we find the trial court thoroughly addressed

and properly disposed of Madera’s remaining claims in its March 9, 2018,

supplemental opinion. See Supplemental Trial Court Opinion, 3/9/2018, at

6-12 (concluding: (1) Madera’s proposed evidence regarding the victim’s prior

sexual conduct was not competent to pierce the Rape Shield Law, because (a)

the evidence “would not have exonerated” Madera, (b) the victim did not come

forward with the allegations, but rather was reluctant to reveal the abuse, and

(c) evidence of prior sexual encounters is not admissible to explain a victim’s

knowledge of sexual terms; and (2) the probative value of the evidence was

“severely outweighed by its prejudicial effect.”); 127-129 (concluding Madera

was not entitled to introduce evidence he offered to take a polygraph

examination since the results would have been inadmissible, and his

“professed willingness … to submit to such a test … is merely a self-serving

act … which obviously could be made without any possible risk.”); 130-134

(concluding Madera was not entitled to a mistrial based upon the prosecutor’s

unintentional, “single passing reference to prison letters” since “[a]ny

                                      -9-
J-S67008-18



prejudice … was so very slight and did not deny him a fair trial, and,

nonetheless, any the error was harmless since the evidence of Madera’s guilty

was overwhelming”). Accordingly, with respect to these issues, we rest upon

the court’s well-reasoned bases.

     Judgment of sentence affirmed in part, and vacated in part.      Special

conditions of sentence and designation of Madera as an SVP are vacated. Case

remanded for notification to Madera of proper registration requirements under

SORNA. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/19




                                    - 10 -
