JUSTICE BROBSON

Jason Alexander Checque, Esq., Erie, PA, Jessica Ann Fiscus, Esq., Erie County Public Defender's Office, for Appellant Thorne, Shaune Jarel, Sr.

Elizabeth Anne Hirz, Esq., Erie County District Attorney's Office, for Appellee Commonwealth of Pennsylvania.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE BROBSON

In this discretionary appeal, we consider whether the Superior Court erred by concluding that Shaune Jarel Thorne, Sr.’s (Appellant) constitutional challenges to the lifetime registration requirements of Revised Subchapter H of Pennsylvania's Sex Offender Registration and Notification Act ("SORNA") were waived because Appellant did not raise such challenges at the time of his sentencing or in a post-sentence motion but, instead, raised them for the first time in his brief to the Superior Court. After careful review, we conclude that this Court's legality of sentencing jurisprudence—i.e. , that challenges implicating the legality of a sentence cannot be waived—applies equally to constitutional challenges to Revised Subchapter H of SORNA. Consequently, we reverse the Superior Court's order, in part, and remand the matter to the Superior Court for further proceedings consistent with this opinion.

I. BACKGROUND

On February 5, 2019, a jury convicted Appellant of aggravated indecent assault of a child, indecent assault of a person less than 13 years of age, corruption of minors, and indecent exposure in connection with the sexual abuse of Appellant's granddaughter (victim) from July 30, 2015, through July 30, 2017, at a time when the victim was between the ages of 9 and 11. Thereafter, on April 9, 2019, the Court of Common Pleas of Erie County (trial court) sentenced Appellant to an aggregate term of 10 to 20 years’ imprisonment. The trial court also informed Appellant, who is a Tier III offender due to his convictions for aggravated indecent assault of a child and indecent assault of a person less than 13 years of age, that he was obligated to register as a sexual offender for his lifetime under Revised Subchapter H of SORNA. Appellant filed a timely post-sentence motion, which the trial court denied by order dated April 23, 2019.

Subsequent thereto, Appellant filed a notice of appeal to the Superior Court. In his Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) statement, Appellant argued, inter alia , that the jury's verdict was against the weight and sufficiency of the evidence because the testimony of the Commonwealth's primary witness—i.e. , the victim—was contradicted by prior statements the victim had made during her Child Advocacy Center interview, inconsistent with the testimony of other Commonwealth witnesses, including the victim's mother, "tainted" by prior conversations the victim had with her mother, and inconsistent with the testimony of Appellant's "alibi defense" witness. When he filed his brief with the Superior Court, however, Appellant presented two additional issues for consideration, both of which Appellant had not raised before the trial court or in his Rule 1925(b) statement: (1) whether the lifetime registration requirement set forth in Revised Subchapter H of SORNA constitutes an illegal sentence because it is punitive in nature and effectively extends Appellant's maximum sentence without a jury's finding of future dangerousness in violation of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; and (2) whether Revised Subchapter H's lifetime registration requirement constitutes an illegal sentence because it violates the constitutional prohibition against cruel and unusual punishment.

By decision dated December 24, 2020, the Superior Court affirmed Appellant's judgment of sentence. In so doing, the Superior Court first determined that the trial court did not palpably abuse its discretion by concluding that the verdict was not against the weight of the evidence because the inconsistencies in the victim's testimony, including the victim's failure to initially report the sexual assault to her mother, were explained by the victim at the time of trial and are typical of a confused, frightened, victimized, and manipulated child. With respect to Appellant's challenges to the constitutionality of Revised Subchapter H of SORNA—i.e. , Appellant's Apprendi and cruel and unusual punishment challenges—the Superior Court, relying on its prior decision in Commonwealth v. Reslink , 257 A.3d 21 (Pa. Super. 2020), concluded that it was constrained to find Appellant's claims waived because Appellant presented his constitutional challenges to Revised Subchapter H's lifetime registration requirement for the first time in his appellate brief.

Appellant filed a petition for allowance of appeal with this Court, which we granted limited to the following issue, as phrased by Appellant:

Did the Superior Court panel err, misapprehending law/facts of record, or overlook controlling authority when it determined that [Appellant's] two SORNA challenges did not constitute challenges to the legality of the sentence and, as such, cannot be waived?

Commonwealth v. Thorne , ––– Pa. ––––, 260 A.3d 922 (2021).

II. PARTIES’ ARGUMENTS

The parties’ arguments on the limited issue of waiver are succinct and straightforward. Appellant contends that, by concluding that his constitutional challenges to Revised Subchapter H of SORNA were waived because he raised them for the first time in his appellate brief, the Superior Court overlooked or failed to apply its own decisional authority, as well as authority from this Court, that Apprendi and cruel and unusual punishment challenges implicate the legality of a sentence and, therefore, cannot be waived. In support thereof, Appellant suggests that the Superior Court's reliance on its decision in Reslink is misplaced because, although Appellant's constitutional challenges to Revised Subchapter H are identical to the constitutional claims raised by the appellant therein, the cases relied upon by the Superior Court in Reslink to find waiver—i.e. , In re F.C. III , 607 Pa. 45, 2 A.3d 1201 (2010), and Commonwealth v. Howe , 842 A.2d 436 (Pa. Super. 2004) —"do not stand for the proposition that colorable challenges to the legality of sentence are waivable." (Appellant's Br. at 40.)

In response, the Commonwealth contends that the Superior Court's prior decisions in Reslink and its progeny, Commonwealth v. Snyder , 251 A.3d 782 (Pa. Super. 2021), are dispositive on the waiver issue presented here. Essentially, the Commonwealth suggests that Reslink and Snyder require a finding of waiver because Appellant's constitutional challenges to Revised Subchapter H of SORNA are similar to the constitutional challenges raised in both Reslink and Snyder and Appellant, like the appellants in Reslink and Snyder , did not first raise his constitutional challenges to Revised Subchapter H before the trial court.

III. ANALYSIS

Generally speaking, issues not properly raised and preserved before the trial court "are waived and cannot be raised for the first time on appeal." Pa. R.A.P. 302(a) ; see also Hill , 238 A.3d at 407 (noting that issues not raised in lower court are waived and cannot thereafter be raised for first time on appeal); Commonwealth v. Barnes , 637 Pa. 493, 151 A.3d 121, 124 (2016) ("[A]n appellant waives any claim that is not properly raised in the first instance before the trial court and preserved at every stage of his appeal."). A challenge that implicates the legality of an appellant's sentence, however, is an exception to this issue preservation requirement. See, e.g. , Hill , 238 A.3d at 407 ; Barnes , 151 A.3d at 124. "Stated succinctly, an appellate court can address an appellant's challenge to the legality of his sentence even if that issue was not preserved in the trial court; indeed, an appellate court may [even] raise and address such an issue sua sponte ." Hill , 238 A.3d at 407. Both this Court and the Superior Court have previously held that Apprendi -based claims and claims invoking the constitutional prohibition against cruel and unusual punishment implicate the legality of a sentence. See Commonwealth v. Wolfe , 636 Pa. 37, 140 A.3d 651, 660 (2016) ("[T]his Court has previously found that an asserted Apprendi -line violation implicated the legality of a sentence, ... and that legality-of-sentence claims are not subject to the traditional waiver doctrine."); Commonwealth v. Gordon , 596 Pa. 231, 942 A.2d 174, 175 (2007) ("It seems to be a settled question in Pennsylvania that Apprendi -based challenges raise questions related to the legality of a sentence."); Commonwealth v. Lawrence , 99 A.3d 116, 122 (Pa. Super. 2014) ("Th[e] [Superior] Court has consistently enunciated three distinct categories of legality[-]of[-]sentence claims as a baseline[:] ... ‘(1) claims that the sentence fell ‘outside of the legal parameters prescribed by the applicable statute[ ];[’] (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi .’ " (quoting Commonwealth v. Robinson , 931 A.2d 15, 21 (Pa. Super. 2007) (en banc))), appeal denied , 114 A.3d 416 (Pa. 2015) ; Commonwealth v. Brown , 71 A.3d 1009, 1015-16 (Pa. Super.) ("[A] claim that a sentence violates an individual's right to be free from cruel and unusual punishment is a challenge to the legality of the sentence, rendering the claim unwaivable."), appeal denied , 77 A.3d 635 (Pa. 2013).

Despite this legal authority addressing constitutional claims implicating the legality of a sentence, in Reslink , the Superior Court concluded that it was constrained to find that the appellant waived his Apprendi -based and cruel and unusual punishment challenges to Revised Subchapter H of SORNA because he "did not raise [the] claims before the trial court, in a motion to bar [the] application of SORNA, or in post-sentence motions ... [but, rather,] raise[d] [the] claims for the first time on appeal." Reslink , 257 A.3d at 25. In reaching this conclusion, the Superior Court relied upon In re F.C. III and Howe for the proposition that "[i]t is well-settled that issues not raised before the trial court cannot be advanced for the first time on appeal." Id. In so doing, the Superior Court appears to have ignored that the constitutional challenge advanced in In re F.C. III and found to be waived did not implicate the legality of a sentence and that Howe did not even involve a finding of waiver because the appellant raised his constitutional challenge in a timely post-sentence motion. See In re F.C. III , 2 A.3d at 1205, 1211-12 (involving due process challenge to Section 12.1 of Pennsylvania Drug and Alcohol Abuse Control Act, Act of April 14, 1972, P.L. 221, as amended , added by Act of November 26, 1997, P.L. 501, 71 P.S. § 1690.112a, which permits parent or guardian to petition for civil involuntary commitment of their drug-dependent child to drug and alcohol treatment program); Howe , 842 A.2d at 441 (finding that appellant preserved constitutional challenge to prior iteration of Pennsylvania's sex offender registration law by raising it in timely post-sentence motion—i.e. , motion for reconsideration of trial court's denial of extraordinary relief). In fact, in Reslink , the Superior Court did not even discuss the authority establishing that constitutional challenges implicating the legality of a sentence cannot be waived, let alone provide any reasonable explanation as to why it had departed therefrom to conclude that Apprendi -based and cruel and unusual punishment challenges to Revised Subchapter H, even though they implicate the legality of a sentence, are waived if raised for the first time on appeal.

The Commonwealth urges this Court to follow Reslink and Snyder and conclude that Appellant's Apprendi and cruel and unusual punishment challenges to the lifetime registration requirement set forth in Revised Subchapter H of SORNA are waived because Appellant raised them for the first time in his brief to the Superior Court. Similar to the Superior Court, however, the Commonwealth has not advanced any reasonable explanation as to why we should treat constitutional challenges to Revised Subchapter H that implicate the legality of a sentence differently from any other constitutional challenge that implicates the legality of a sentence. More importantly, we, ourselves, cannot discern any reason as to why this Court's legality of sentencing jurisprudence should not apply equally to constitutional challenges to Revised Subchapter H. Thus, we conclude that Appellant did not waive his Apprendi -based and cruel and unusual punishment challenges to the lifetime registration requirement set forth in Revised Subchapter H by raising them for the first time in his brief to the Superior Court, because such claims implicate the legality of a sentence and, therefore, cannot be waived. Further, for purposes of clarification, we expressly disapprove Reslink to the extent that it unnecessarily limits a sexual offender's ability to raise constitutional challenges to Revised Subchapter H by requiring that those challenges be raised before the trial court.

While we recognize that the issue of whether the lifetime registration requirement set forth in Revised Subchapter H of SORNA constitutes an illegal sentence may be inextricably intertwined with the issue of whether Revised Subchapter H constitutes punishment, our decision today does not in any way establish that Revised Subchapter H is punitive in nature and/or that Appellant's underlying claims will be successful on the merits. Rather, our decision today is confined to the issue of waiver and the applicability of this Court's legality of sentencing jurisprudence to constitutional challenges to Revised Subchapter H. The question of whether the lifetime registration requirement of Revised Subchapter H is punitive in nature and, therefore, part of Appellant's criminal sentence subject to various constitutional protections applicable to criminal sentences currently remains open. See Torsilieri , 232 A.3d at 588-96. Moreover, nothing in this opinion should be construed as undermining our decision in Commonwealth v. Lacombe , ––– Pa. ––––, 234 A.3d 602 (2020), not to prescribe any one procedural mechanism as the exclusive means of challenging the individual application of sexual offender registration statutes. See Lacombe , 234 A.3d at 618. Accordingly, we reverse, in part, the order of the Superior Court and remand the matter to the Superior Court for further proceedings consistent with this opinion. ^,

Justices Todd, Dougherty and Wecht join the opinion.

Chief Justice Baer files a dissenting opinion in which Justices Donohue and Mundy join.

CHIEF JUSTICE BAER, dissenting The majority holds that this Court's legality-of-sentence jurisprudence (i.e. , that claims implicating the legality of sentences cannot be waived) applies to constitutional challenges to Revised Subchapter H of Pennsylvania's Sex Offender Registration and Notification Act ("SORNA") 42 Pa.C.S. §§ 9799.10 -.42; thus, these claims are not subject to general issue preservation requirements. The majority, however, simultaneously declares, "The question of whether the lifetime registration requirement of Revised Subchapter H is punitive in nature and, therefore, part of Appellant's criminal sentence subject to various constitutional protections applicable to criminal sentences currently remains open." Majority Opinion at 1198. I respectfully dissent because, in my view, these conclusions simply are irreconcilable and place the jurisprudential cart before the horse.

For a claim to implicate the legality of a sentence, there must be a "sentence" that is challenged. Here, Appellant does not challenge his criminal sentence of incarceration; rather, he attacks the lifetime registration requirements of Revised Subchapter H. While Appellant has alleged that the challenged registration provisions are punitive, neither the Superior Court below nor the majority have entertained that claim. Further, to date, this Court has not held that Revised Subchapter H is punitive in nature or otherwise impacts one's criminal sentence. In my view, unless and until there is a determination that the challenged registration provisions are punitive and, therefore, a part of Appellant's criminal sentence, the registration provisions remain a civil collateral consequence of Appellant's criminal conviction, and cannot form the basis of a legality-of-sentence challenge.

As the majority observes, generally speaking, "[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). An exception to this general rule of issue preservation exists, however, where a claim challenges the legality of a sentence. Commonwealth v. Hill , 659 Pa. 359, 238 A.3d 399, 407 (2020). An appellate court may address an appellant's challenge to the legality of his sentence even if that claim was not preserved in the trial court; in fact, an appellate court may raise and address a challenge to the legality of sentence sua sponte . Hill , 238 A.3d at 407-08.

The legality-of-sentence doctrine is relevant here because Appellant presented the following claims for the first time in his Superior Court brief, without having presented them in the trial court: (1) whether the lifetime registration requirement set forth in Revised Subchapter H of SORNA constitutes an illegal sentence because it is punitive in nature and effectively extends Appellant's maximum sentence without a jury's finding of future dangerousness in violation of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; and (2) whether Revised Subchapter H's lifetime registration requirement constitutes an illegal sentence because it violates the constitutional prohibition against cruel and unusual punishment.

As the majority observes, this is not the first time that this Court has examined whether Revised Subchapter H is punitive in nature and, therefore, constitutes an illegal sentence. In Commonwealth v. Torsilieri , ––– Pa. ––––, 232 A.3d 567 (2020), a sexual offender challenged Revised Subchapter H based on expert affidavits disputing the legislative presumption in SORNA that all sexual offenders are dangerous and pose a high risk of recidivism, and that registration and notification procedures are required to protect the public from recidivist offenders. Id. at 573. The sexual offender further contended that Revised Subchapter H was punitive in nature and violated various statutory and constitutional protections relating to criminal sentences.

Crediting the sexual offender's expert evidence, the trial court in Torsilieri held that the registration provisions at issue violated due process by impairing the sexual offender's right to reputation, as protected by the Pennsylvania Constitution, through the use of an irrebuttable presumption. Id. at 574. Germane to the instant appeal, the trial court further held that Revised Subchapter H was punitive and, therefore, constituted a part of the sexual offender's criminal sentence, which rendered the registration provisions subject to all the constitutional and statutory protections applicable to sentences as alleged by the sexual offender. Id. at 588. The trial court also concluded that Revised Subchapter H violated the separation-of-powers doctrine by preventing trial courts from imposing individualized sentences, and violated Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and Apprendi , supra , by allowing "the imposition of enhanced punishment based on an irrebuttable presumption of future dangerousness that is neither determined by the finder of fact nor premised upon proof beyond a reasonable doubt." Torsilieri , 232 A.3d at 575 (citing Tr. Ct. Order, July 10, 2018, at 3).

On direct appeal from the trial court's declaration of the statute's unconstitutionality, this Court declined to resolve on the record before us whether the challenged registration provisions violate due process by impairing the sexual offender's right to reputation. Instead, we found that a remand was "necessary to allow the parties to present additional argument and evidence to address whether a scientific consensus has developed to overturn the legislative determinations in regard to adult sexual offenders’ recidivation rates and the effectiveness of a tier-based registration and notification system as they relate to the prongs of the irrebuttable presumption doctrine." Id. at 587-88. We next addressed in Torsilieri the Commonwealth's challenge to the trial court's finding that Revised Subchapter H was punitive and constituted a part of the sexual offender's criminal sentence, which rendered the registration requirements subject to the various constitutional and statutory protections as alleged by the sexual offender. Acknowledging that the trial court's analysis of this issue did not rely overtly on the sexual offender's scientific evidence, this Court concluded that the trial court may have weighed the factors relevant to a determination of whether the statute was punitive based upon that court's acceptance of the expert evidence. Id. at 590. Thus, we held that, following presentation of additional scientific evidence on remand, the trial court must reevaluate the factors relevant to a determination of whether the statutory provisions are punitive. Id. at 594. Accordingly, we vacated that portion of the trial court's order declaring the registration requirements of Revised Subchapter H of SORNA punitive and unconstitutional and remanded for further proceedings. Id . at 596.

As of today, this Court has not yet rendered any rulings on whether Revised Subchapter H is punitive. Indeed, the majority in the case at bar accurately finds that this issue "currently remains open." Majority Opinion, at 1198. Absent a prior ruling that Revised Subchapter H is punitive or a determination that Appellant has established the punitive nature of the registration requirements in this appeal, I fail to comprehend how the registration requirements constitute a part of the criminal sentence that may be used to implicate the legality-of-sentence doctrine.

The majority appears to assume, without deciding, that Appellant's registration requirements constitute a part of his criminal sentence for purposes of applying the legality-of-sentence doctrine. Instead of delving into Appellant's contentions that his registration requirements under Revised Subchapter H are punitive, the majority's analysis focuses exclusively on the propriety of the Superior Court's decision in Commonwealth v. Reslink , 257 A.3d 21 (Pa. Super. 2020). While I find that Reslink adds little to my analysis, I discuss the Superior Court's decision therein, as it serves as the basis of the majority's holding.

Reslink is the lead intermediate appellate case to hold that challenges to sexual offender registration requirements do not implicate the legality of sentence and, thus, are governed by issue preservation principles. In rejecting Reslink ’s holding, the majority first correctly concludes that the cases relied upon in Reslink to support the conclusion that a sexual offender waives his constitutional challenges to Revised Subchapter H by failing to preserve them in the trial court are inapposite, as those cases did not involve challenges to the legality of a sentence. Majority Opinion, at 1196–97. Second, the majority accurately observes that the Superior Court in Reslink neither discussed authority establishing that constitutional challenges implicating the legality of a sentence cannot be waived, nor provided persuasive reasoning why the legality-of-sentence doctrine was inapplicable to constitutional challenges to Revised Subchapter H. Id. at 1197.

Lastly, the majority concludes that Reslink ’s holding, that constitutional challenges to Revised Subchapter H do not implicate the legality of sentence, is inconsistent with decisions of both this Court and the Superior Court, which hold "that Apprendi -based claims and claims invoking the constitutional prohibition against cruel and unusual punishment implicate the legality of a sentence." Majority Opinion at 1196 (citing Commonwealth v. Wolfe , 636 Pa. 37, 140 A.3d 651, 660 (2016) ; Commonwealth v. Gordon , 596 Pa. 231, 942 A.2d 174 (2007) ; Commonwealth v. Lawrence , 99 A.3d 116 (Pa. Super. 2014) ; and Commonwealth v. Brown , 71 A.3d 1009 (Pa. Super. 2013), appeal denied , 77 A.3d 635 (Pa. 2013) ).

I respectfully disagree because the aforementioned cases relied upon by the majority do not involve challenges to sexual offender registration provisions. Instead, the cases merely hold that challenges to sentences of imprisonment based upon Apprendi or the cruel and unusual punishment clauses of the state and federal charters constitute questions implicating the legality of sentence, as opposed to claims challenging the discretionary aspects of the sentence. Stated differently, the cases relied upon by the majority for the proposition that constitutional challenges to Subchapter H implicate legality of sentence are wholly distinguishable because they involve a challenge to what is indisputably a sentence, namely, a term of imprisonment.

In my view, the majority, like the Superior Court in Reslink , fails to appreciate that the threshold question in determining whether the legality-of-sentence doctrine applies to constitutional challenges to Revised Subchapter H is whether the claim asserted is actually a sentencing issue. In Commonwealth v. Spruill , 622 Pa. 299, 80 A.3d 453 (2013), this Court examined "the proper scope of the ‘illegal sentence’ doctrine, which allows for review of otherwise defaulted claims." Id. at 454. Similar to my view of the instant case, the Court in Spruill found that under the unique circumstances presented, "the question is not whether a sentencing claim implicates the ‘legality’ of the sentence, so as to negate issue preservation principles; rather, we have the more elemental question of whether the claim posed is a sentencing claim at all." Id. at 461.

Because the claim advanced in Spruill involved the defendant's underlying conviction at trial and not his sentence, the Court found that "the failure to forward a contemporaneous objection to the court's verdict cannot be excused by resort to an ‘illegal sentence’ doctrine." Id. See also Commonwealth v. Hill, 238 A.3d at 408 (holding that the appellant waived the issue challenging his second conviction of driving under the influence by failing to preserve the claim in the trial court, as the asserted challenge to his conviction did not impact the legality of his actual criminal sentence).

The logic of those cases apply here where Appellant is challenging sexual offender registration requirements that have not been deemed punitive and have not been determined to be a part of his criminal sentence. The fact that Revised Subchapter H's registration requirements may be held to be punitive in the future does not render them a part of Appellant's criminal sentence today for purposes of invoking the exception to issue preservation principles set forth in the legality-of-sentence doctrine.

Absent a preliminary determination that Revised Subchapter H is punitive, it is inappropriate for this Court to deem Appellant's claims as challenges to the legality of sentence. This is particularly true considering that no court has entertained or resolved Appellant's contentions in this case that the registration provisions of Revised Subchapter H are punitive in nature.

Accordingly, I would vacate the Superior Court's affirmance of Appellant's judgment of sentence, and remand to that court for it to determine first whether Appellant, on the record before that court, established that Revised Subchapter H is punitive in nature so as to constitute a part of his criminal sentence. If the Superior Court answers this inquiry in the affirmative, it should proceed to examine Appellant's substantive constitutional claims that the registration provisions violate Apprendi , supra , and the constitutional prohibition against cruel and unusual punishment.

Justices Donohue and Mundy join this dissenting opinion.