author: GARB, P.J.,

text:
    Commonwealth v. Wolff

      C.P. of Bucks County,
    no. 4297/1997.

      Maggie Snow, chief deputy district attorney, for Commonwealth.

      Ann Faust, deputy public defender, for defendant.
    May 6, 1998
   GARB, P.J.,

Defendant entered pleas of guilty to two counts of statutory sexual assault and two counts of involuntary deviate sexual intercourse as well as lesser included related offenses. On each of the two charges of involuntary deviate sexual intercourse, both being felonies of the first degree, he was sentenced to incarceration in a state correctional facility for a period of not less than 10 nor more than 20 years consecutively to one another. With respect to the charges of involuntary deviate sexual intercourse, the Commonwealth invoked the mandatory sentencing provisions of the Mandatory Sentencing Act, thus mandating a sentence of total incarceration of not less than five years. The Commonwealth likewise invoked the provisions of Pennsylvania’s version of Megan’s Law, for purposes of the statutorily prescribed mandatory sentence. As noted, we declined to invoke that provision of Megan’s Law, and rather, imposed a sentence as provided for by the Crimes Code for the crimes involved.

Subsequent to the entry of the plea of guilty, and prior to sentence, defendant asserted a number of constitutional challenges to the various provisions of Megan’s Law. Initially, defendant challenged the registration provisions. Even if we assume that that challenge is now ripe for determination, it is clear that that issue has now been decided by the United States Third Circuit Court in construing the New Jersey Megan’s Law, which, with respect to registration, is virtually indistinguishable from the Pennsylvania statute. See Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235 (3d Cir. 1996). See also, Commonwealth v. Gaffney, 702 A.2d 565 (Pa. Super. 1997) adopting the Artway decision as the law of Pennsylvania at least with respect to the application of the challenge to the registration provisions as being an ex post facto law.

Defendant likewise challenges the notification provisions of the law. However, inasmuch as these provisions are only triggered by a finding that the defendant is a sexually violent predator, in view of our discussion infra, there is no occasion to address this issue.

The issue we address is the constitutionality of section 9794 of Megan’s Law. That section deals with the designation of sexually violent predators. Subsection (a) provides that after conviction, but before sentencing, the court shall order a person convicted of any of the predicate offenses of the Act to be assessed by the State Board to Assess Sexually Violent Predators. The Act further provides in subsection (b) that an offender convicted of any of the predicate offenses shall be presumed by the board and the court to be a sexually violent predator but that this presumption may be rebutted by the offender by clear and convincing evidence at a hearing held in accordance with subsection (e). That section provides for a court review of the findings of the board, and after hearing, a determination of whether the offender shall be designated a violent sexual offender. As noted, for that purpose, the offender has the burden of proving that he is not such an offender by clear and convincing evidence. The significance of that section is realized in section 9799.4. wherein it is provided in subsection (a) that upon the court’s finding that the offender is a sexually violent predator, his maximum term of confinement for any of the predicate offenses shall be increased to the offender’s lifetime, notwithstanding lesser statutory maximum penalties for these offenses. In subsection (c), it is provided that when a person who has been designated as a sexually violent predator is convicted of a subsequent sexually violent offense, the mandatory sentence shall be life imprisonment. Considering the effect of the designation of the offender as a violent sexual predator under section 9799.4, it is our determination that the presumption of such status of section 9794 and the imposition of the burden of proof upon the offender by clear and convincing evidence that he is not such an offender, violates both the United States and Pennsylvania Constitutions.

With respect to the due process provisions of the Fourteenth Amendment of the United States Constitution, it is held in In re Winship, 397 U.S. 358, 90 S .Ct. 1068 (1970) that proof of a criminal charge beyond a reasonable doubt is constitutionally required. Similarly, pursuant to the due process provisions of Article I, Section 9 of the Pennsylvania Constitution, a conviction cannot be sustained except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged, the burden upon the Commonwealth. Commonwealth v. McFarland, 252 Pa. Super. 523, 382 A.2d 465 (1977).

The reach and thrust of Winship was considered in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881 (1975). In that case, the Supreme Court was considering the homicide statute of the State of Maine which provided murder consisted of an intentional killing whereas the homicide could be reduced to manslaughter upon a showing that the defendant acted in the heat of passion on sudden provocation. However, the statute further provided that the burden of proving that the accused acted in the heat of passion on sudden provocation was placed upon the offender. In applying the Winship standard, the Supreme Court held that that statute was in violation of the due process provisions of the Fourteenth Amendment of the United States Constitution. In addressing the contention by the State of Maine that the issue of heat of passion on sudden provocation was not an element of the offense, but rather should be treated as an affirmative defense, the Supreme Court stated as follows:

“This analysis fails to recognize that the criminal law of Maine, like that of other jurisdictions, is concerned not only with guilt or innocence in the abstract, but also with the degree of criminal culpability. Maine has chosen to distinguish those who kill in the heat of passion from those who kill in the absence of this factor. Because the former are less ‘blameworth(y),’ State v. Lafferty, 309 A.2d at 671, 673 (concurring opinion), they are subject to substantially less severe penalties. By drawing this distinction, while refusing to require the prosecution to establish beyond a reasonable doubt, the fact upon which it turns, Maine denigrates the interest found critical in Winship.
“The safeguards of due process are not rendered unavailing simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty. The fact remains that the consequences resulting from a verdict of murder, as compared with a verdict of manslaughter, differ significantly. Indeed, when viewed in terms of the potential difference in restrictions of personal liberty attendant to such conviction, the distinction established by Maine between murder and manslaughter may be of greater importance than the difference between guilt or innocence for many lesser crimes.” 95 S.Ct. at 1889.

In considering the argument of the State of Maine that the distinctions between murder, voluntary manslaughter and involuntary manslaughter, depend solely on intent, the Supreme Court in Mullaney opines that an offender could be convicted of felonious homicide and sentenced to life imprisonment unless he was able to prove the requisite heat of passion as the polestar of voluntary manslaughter or recklessness as that of involuntary manslaughter. With respect to this observation, the Supreme Court stated as follows:

“Winship is concerned with substance rather than this kind of formalism. The rationale of that case requires an analysis that looks to the ‘operation and effect of the law as applied and enforced by the state,’ St. Louis S.W.R., Co. v. Arkansas, 235 U.S. 350, 362, 35 S.Ct. 99, 102, 59 L.Ed. 265 (1914), and to the interests of both the state and the defendant as effected by the allocation of the burden of proof.” Mullaney v. Wilbur, 95 S.Ct. 1890.

Thus, Mullaney holds the doctrine of Winship goes beyond the mere formalism of determining guilt or innocence but also to those matters relevant to the prosecution having a significant impact upon the liberty rights of the accused.

At first blush, one might conclude that Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319 (1977) represented a step back from Mullaney. The court in Patterson, of course, acknowledged the viability of Winship. In addressing the holding of Mullaney, it recognized that the Supreme Court had held that the burden of proof could not constitutionally be placed on the defendant proving by a preponderance of the evidence that the killing had occurred in the heat of passion on sudden provocation as was the law of Maine. The court in Patterson further recognized that the chief justice and Mr. Justice Rhenquist in Mullaney concurred in the result and called attention to the fact that the court did not call into question the holding in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002 (1952) holding that it was not a violation of due process principles to impose the burden upon a criminally accused of proving insanity as a defense to the crime. The court in Patterson was considering a New York conviction in which the burden was placed consistent with the law of the State of New York upon the defendant of proving affirmative defense. Thus, Patterson stands for the proposition that it is not a violation of the Fourteenth Amendment to place the burden of proof of affirmative defenses by a preponderance of the evidence upon the defendant so long as it is understood that all elements of the criminal charge must be proven by the prosecution beyond a reasonable doubt. Significantly, that is likewise the law of Pennsylvania with respect to the due process provisions of Article I, Section 9 of the Pennsylvania Constitution. See Commonwealth v. Stawinsky, 234 Pa. Super. 308, 339 A.2d 91 (1975); Commonwealth v. McFarland, supra, and Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978). In fact, the due process rights as contained in the Fourteenth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution are essentially coextensive. Commonwealth v. Clutter, 419 Pa. Super. 275, 615 A.2d 362 (1992), allocatur denied, 535 Pa. 644, 633 A.2d 149 (1993).

Bearing these principles in mind, the question is then reduced to whether the designation as a sexually violent predator as created by this statute and the mandatory sentencing consequences thereof, fall within the reach of Winship and Mullaney. We believe that they do. Winship involved a proceeding against a juvenile, and the question was whether the juvenile, in a proceeding for delinquency, was entitled to the due process protections of the Fourteenth Amendment of the United States Constitution placing the burden upon the prosecution of proof beyond a reasonable doubt. The court therein held, that in view of the extreme consequences of incarceration which could result from a finding of delinquency, due process did so require. Similarly, Mullaney reached the same conclusion regarding the extremity of the result where the burden of proof was thrust upon the defendant regarding proof of matters which would constitute, not an affirmative defense, but rather the elements of a lesser offense. Patterson does not detract from either of those cases. Under the scheme devised by the legislature in Megan’s Law, the effect of the determination of whether the defendant is a sexually violent predator is extreme. Upon such a finding, as previously noted, on a first offense, the mandated maximum sentence is life imprisonment, and the mandated sentence on the second offense is life imprisonment. Although many of the predicate offenses are felonies of the first degree for which the maximum sentence could be 20 years, with respect to prostitution, one of the predicate offenses, a felony of the third degree, the maximum sentence is seven years.

We have no difficulty in determining that this sentencing structure constitutes punishment as the sanction as applied to the individual serves the goals of punishment. Those goals are that punishment serves the twin aims of retribution and deterrence. Retribution and deterrence are not legitimate nonpunitive governmental objectives. U.S. v. Halper, 490 U.S. 435, 109 S.Ct. 1892 (1989). See also, Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801 (1993)\Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937 (1994) and California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597 (1995) which shifted the focus of the law’s purpose to its effect and establishing that the appropriate punishment analysis is flexible and context dependent. These cases were synthesized in Pennsylvania in terms of an ex post facto analysis in Commonwealth v. Gaffney, supra, adopting the analysis of the Third Circuit as the law of Pennsylvania and providing that a measure is punishment if (1) the legislature’s actual purpose is punishment, (2) if the objective purpose is punishment, or (3) if the effect of the statute is so harsh that as a matter of degree it constitutes punishment.

A review of the legislative findings and declaration of policy by the legislature in enacting this legislation is instructive. Subsection (a) deals with the legislative findings and declares as a matter of legislative finding essentially that the public for its own protection has a right to be informed of the fact that a sexually violent predator has been released and where he will reside so that appropriate actions for the protection of the community can be taken. Subsection (b) of that section contains the declaration of policy as follows:

“It is hereby declared to be the intention of the General Assembly to protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood. It is further declared to be the policy of this Commonwealth to require the exchange of relevant information about sexually violent predators among public agencies and officials and to authorize the release of necessary and relevant information about sexually violent predators to members of the general public as a means of assuring public protection and shall not be construed as punitive.”

Obviously, these legislative findings and declaration of policy address the public notification sections and provisions of this legislation but make no mention of the mandatory sentencing provisions of persons determined to be violent sexual predators. A declaration that these provisions shall not be construed as punitive, aside from the fact that it is self-serving, address only the legislative findings and the declaration of policy all relating to notification but not to mandatory sentencing. It is abundantly clear that this sentencing scheme is punitive aimed at retribution and deterrence, at least to the extent that a life sentence would deter this offender from again offending.

McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411 (1986) is somewhat instructive although not directly on point. In that case, the Supreme Court was considering the constitutionality of the Pennsylvania Mandatory Sentencing Law, which provides that any person convicted of a designated number of violent offenses shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a mandatory minimum sentence of at least five years. The Act further provides that at the time of sentencing, the court must be satisfied by a preponderance of the evidence, that such a firearm was visibly displayed. By virtue of the affirmative nature of this fact, the burden was obviously placed upon the Commonwealth but by preponderance of the evidence rather than beyond a reasonable doubt. The constitutional issue raised by the appellants in that case was the constitutionality of reducing the burden of proof upon the Commonwealth from beyond a reasonable doubt to a preponderance of the evidence (or at least to clear and convincing). The Supreme Court held that this did not constitute a violation of the due process provisions of the Fourteenth Amendment because the fact to be proved was not an element of the offense but rather a consideration for sentencing. The court returned to Mullaney and its holding that once the state proved the elements required by the Maine law beyond a reasonable doubt, the defendant faced “a differential in sentencing ranging from a nominal fine to a mandatory life sentence.” 421 U.S. at 700, 95 S.Ct. at 1890. In the case before the court in McMillan, the court observed that the situation was quite different. It pointed out that the predicate offenses are all either felonies of the first degree or felonies of the second degree with maximum sentences of 20 years for the former and 10 years for the latter. Section 9712 of the Judicial Code, acknowledged by McMillan, neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty.

“It operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. Section 9712 ‘ups the ante’ for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan. The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. ” McMillan v. Pennsylvania, 106 S.Ct. at 2417. (emphasis added)

Megan’s Law not only shifts the burden to the defendant but imposes a burden of proof of clear and convincing evidence, and also increases the penalty from what could be a maximum sentence of seven years to life imprisonment. This does not just “raise the ante” but rather, it is truly a “tail which wags the dog of the substantive offense.”

Lastly, the court in McMillan cited and distinguished Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209 (1967) in which the Colorado scheme of sentencing at issue provided conviction of a sexual offense otherwise carrying a maximum penalty of 10 years exposed a defendant to an indefinite term to and including life imprisonment if the sentencing judge made a post-trial finding that the defendant posed “a threat of bodily harm to members of the public, or is an habitual offender and mentally ill.” The court in Specht as acknowledged by McMillan, required that for such finding, due process principles apply. We believe that they likewise apply here including the due process principle, at the very least, placing the burden of proof upon the Commonwealth.

Defendant also challenges the definition of sexual violent predator as contained in section 9792 of the Act. In view of the foregoing discussion, it is unnecessary to address this issue.

      . 18 Pa.C.S. §3122.1.

      . 18 Pa.C.S. §3123(a)(7).

      . 42 Pa.C.S. §9718.

      . 42 Pa.C.S. §9791.

      . 42 Pa.C.S. §9793.

      . 42 Pa.C.S. §9798.

      . With respect to the notification provisions of the New Jersey Megan’s Law, see E.B. Verniero, 119 F.3d 1077 (3d Cir. 1997) wherein the Third Circuit held that the notification provisions of the New Jersey law did not violate the ex post facto or double jeopardy clauses of the United States Constitution. However, that court held that the due process clause would be violated by any notification that occurred without a prior opportunity to challenge the registrant’s classification and notification plan in a hearing at which the prosecutor has the burden of persuasion and must prove his or her case by clear and convincing evidence.

      . 42 Pa.C.S. §9794.

      . Strangely, the Act does not provide for what weight or effect the determination of the board has on the hearing held pursuant to subsection (e).

      . 42 Pa.C.S. §9799.4.

      . These United States Supreme Court decisions as well as Artway, of course, construe those statutes in terms of due process, double jeopardy, and ex post facto considerations under the United States Constitution. However, the Pennsylvania Constitution with respect to these concepts is co-extensive with the United States Constitution. See Commonwealth v. Gaffney, supra, and Commonwealth v. Mattis, 454 Pa. Super. 605, 686 A. 2d 408 (1996), allocatur denied, 547 Pa. 752, 692 A.2d 564 (1997).

      . 42 Pa.C.S. §9712.

      . Clear and convincing evidence has been defined as evidence that is virtually indisputable, In re Fiori, 438 Pa. Super. 610, 652 A.2d 1350 (1995), allocatur granted, 540 Pa. 600, 655 A.2d 989 (1995) and testimony that is so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Paulshock v. Bonomo, 443 Pa. Super. 409, 661 A.2d 1386 (1995).

      . 42 Pa.C.S. §9792.


source: Caselaw Access Project

author: SPICER, P.J.,

license: Public Domain

text:
    Commonwealth v. Hurd

      C.P. of Adams County,
    no. CC-528-97.

      Michael A. George, district attorney, for Commonwealth.

      Philip Levine, for defendant.

      April 17, 1998
   SPICER, P.J.,

Private First Class Michael D. Trostel, a member of the Eastern Regional Police Department in Adams County, Pennsylvania, filed a criminal complaint on May 30,1997. He charged defendant with a number of sexual crimes, including aggravated indecent assault, 18 Pa.C.S. §3125(8). That subsection makes it a felony of the second degree when “a person . . . engages in penetration, however slight, of the genitals ... of a complainant with a part of the person’s body for any purpose other than good faith medical, hygienic or law enforcement procedures . . . if: the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.”

The section specifically excludes conduct covered by section 3122.1. That section reads:

“Except as provided in section 3121 (relating to rape) a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and that person are not married to each other.”

Provisions defining aggravated indecent assault must be read in conjunction with definitions in section 3101, where “deviate sexual intercourse” is defined to include penetration by a foreign object, and sexual intercourse includes the oral variety. Thus, penetration under section 3125 must be construed to mean penetration with a body part, such as a finger, and not with a tongue.

The district attorney filed an information on July 29, 1997, charging defendant with numerous violations of the law. Included were Count 4, aggravated indecent assault — statutory; Count 7, corruption of minors; and Count 8, furnishing intoxicants to a minor. At formal arraignment on that date, defendant appeared with counsel, entered pleas of not guilty to all charges and demanded a trial by jury.

A jury was selected December 8, 1997, and an in camera conference conducted concerning Rape Shield Law, §3104, issues. When defendant appeared for the commencement of the trial proper, he entered open pleas to Counts 4, 7 and 8. He was specifically notified that Count 4 required an assessment by the state sexual offenders assessment board to determine if defendant was a sexually violent predator. A presentence investigation was ordered and sentencing was deferred until March 6, 1998.

Facts presented during the plea colloquy indicated that defendant, who was 22 years old, took a 13-year-old female to a motel room during the evening of October 26, 1996 and provided her with alcoholic beverages. Temporary impotence caused by intoxication thwarted accomplishment of his goal of having sexual intercourse. Instead, he penetrated her vagina with his finger.

The record may not indicate this, but defendant did not appear for an evaluation by the board. The report provided by the court indicated that the board classified defendant as a sexually violent predator, since no evidence rebutted the statutory presumption. Both counsel were provided notice of and access to the report. By order dated February 9, 1998, the court scheduled a hearing “just prior to sentence,” to determine defendant’s status.

This apparently prompted a motion for extraordinary relief, based upon a constitutional challenge to the provisions of 42 Pa.C.S. §9791 et seq., hereinafter called “Megan’s Law.” Ultimately, consideration of the motion was also scheduled for a time prior to sentencing, by order dated March 2, 1998.

The court orally refused defendant’s motion, and also refused a request for a temporary recess to allow an interlocutory appeal. This court found no justification for interrupting normal procedure, and directed that challenges to Megan’s Law could and should be addressed through post-sentence motions. Accordingly, a hearing ensued during which defendant presented witnesses attesting to his reliability and character. Following the hearing, the court entered specific findings relating to factors described in section 9794(c). We noted that defendant had not overcome the statutory presumption by clear and convincing evidence, but that the finding would have been otherwise by a preponderance standard.

Defendant was classified as a sexually violent predator and sentenced as such.

Sentences imposed, other than those involving Megan’s Law, were as follows:

Count 4: A suspended one- to four-year sentence in a state correctional institution. Defendant was allowed to serve the sentence locally, as long as he was a suitable prisoner at Adams County Prison. Costs were imposed.

Count 7 (incorrectly typed as 5 in the order of sentencing): A fine of $100, fees and charges and four years of probation concurrent with Count 4.

Count 8 (erroneously typed as 3 in the order of sentencing): A mandatory fine of $1,000, costs and a concurrent one-year term of probation.

Counsel were notified that constitutional challenges would be considered in post-sentence motions, without defendant being required to refile explicit grounds. At first, the undersigned determined that those motions should be determined en banc, in order to decide whether Judge John D. Kuhn’s decision in Commonwealth v. Harget, 39 Adams Co. L.J. 229 (1998), should be adopted by the entire court. However, upon reflection, this writer vacated an order for en banc consideration, after determining that the critical issue involved in the case sub judice was not considered by Judge Kuhn in Harget.

Defendant’s request for modification of the sentence imposed on Count 4 apparently is based upon a misunderstanding of how guidelines are applied. He states:

“(3) The defendants (sic) concurrent sentence on Counts III, IV and V should be modified to reflect the standard range of sentencing guidelines in effect on or about October 26, 1996, being the date that the crime was to have occurred. The standard range for aggravated indecent assault is eight to 20 months for an offender who has a prior record score of zero, which is defendant’s prior record score.”

In ¶5 of his motion, defendant argues that he should have been sentenced under mitigated ranges, but in ¶6, contends that the sentence “was excessive and over the standard range of the sentencing guidelines in effect at the time of the crime.”

Defendant’s incorrect references to counts may have been caused by the sentencing order, and should be corrected from III, IV and V, to 4, 7 and 8.

Sentencing guidelines refer to minimal sentences. All sentences were within standard ranges, and were imposed after considering a presentence investigation report. These motions are summarily denied. See Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893 (1996); Commonwealth v. Wright, 411 Pa. Super. 111, 600 A.2d 1289 (1991); Commonwealth v. Adams, 694 A.2d 353 (Pa. Super. 1997).

It is quite evident that an appellate decision is required, and is doubtlessly forthcoming, with respect to Megan’s Law. We have considered Judge Kuhn’s scholarly opinion in Harget, and understand that it has been appealed by the Commonwealth. We also understand that the Commonwealth, by appealing Harget, joins a considerable number of parties seeking appellate review of Megan’s Law. The latest count with which this writer is familiar has the Commonwealth acting as appellant in a slight majority of those appeals. Extensive and exhaustive opinions have been written by a number of jurists, and we see little to be gained by adding more verbiage to the discussion. Although we think holdings that essentially say, bad law but constitutional, are entitled to thoughtful consideration, we dispose of most of arguments on the basis of Harget, for purposes of the appeal we are sure will follow this decision. However, we find a fatal defect in the statute, as applied to the case sub judice, based upon narrow, equal protection grounds.

Equal protection provisions intend that persons in like circumstances will be treated similarly. Provisions do not preclude the legislature from making classifications bearing a reasonable relationship to legitimate state interests, as long as classifications provide a non-arbitrary, reasonable and just basis for different treatment. When the right affected is fundamental, statutes are subject to a heightened standard of review. Other rights trigger review based upon a determination of whether there is a rational basis for the classification. Curtis v. Kline, 542 Pa. 249, 666 A. 2d 265 (1995); Appeal of Torbik, 548 Pa. 230, 696 A.2d 1141 (1997); Nicholson v. Combs, 703 A.2d 407 (Pa. 1997).

Certainly, a person’s freedom involves fundamental rights. However, we find that the distinction between a defendant charged under section 3125(8) and one charged under 3121.1 cannot even meet a rational basis test. The elements of the crimes are identical, except that the latter, statutory sexual assault, involves sexual intercourse, and the former, aggravated indecent assault, involves penetration by some other body part.

About the same time we dealt with defendant Hurd, the Commonwealth presented another case that involved almost an identical factual scenario. Another man, who took a 13-year-old girl to a motel room, and had sexual intercourse with her, was sentenced under section 3121.1. That section is not subject to Megan’s Law. The natural question is, why should one section be and the other not be subject to Megan’s Law? The only answer seems to be, that’s just the way it is, that’s why. This judge defies anyone to rationally explain why penetration by a finger should be considered more serious than penetration by a penis. Megan’s Law involves drastic possible sanctions. Distinguishing perpetrators, as the legislature did, on the basis of digital/penile penetration is, in our opinion, ludicrous.

There is no need to consider the validity of Megan’s Law, other than as it is applied to 18 Pa.C.S. §3125(8), and we do not. We rule narrowly that application of Megan’s Law to that subsection violates defendant’s equal protection rights and, thus, resentence defendant without subjecting him to that law’s requirements.

ORDER

And now, April 17, 1998, the court finds that 18 Pa.C.S. §3525, subsection 8, violates the equal protection clause for reasons stated in an opinion to be issued contemporaneously with this order. The order of March 6, 1998, is vacated.

The sentence of the court is that on Count 4, aggravated indecent assault, the defendant is sentenced to a term of not less than one year nor more than four years in such state correctional institution as may be designated by the deputy commissioner for treatment, Department of Corrections.

He is directed to pay the costs and all fees and charges imposable by law. He shall be taken to the Diagnostic and Classification Center at Camp Hill for purposes of effectuating this sentence. For as long as the defendant is a suitable prisoner at Adams County Prison, imposition of the state sentence is suspended and the defendant may serve his time at Adams County Prison.

The sentence of the court on Count 7, corruption of minors, is that the defendant is directed to pay a fine of $100, a $25 public service fee, $10 law enforcement fee, $10 test fee, and a $25 per month local offender’s supervision fee. The local offender’s supervision fee shall be effective when the defendant is released from prison.

The defendant may request an evaluation of his financial condition at any time by the probation office with a recommendation of suspension or waiver of the local offender’s supervision fee. He is placed on probation for a period of four years, subject to standard conditions.

The sentence of the court on Count 8, furnishing alcoholic beverages to minors, is that the defendant shall pay the costs and all fees and charges imposable by law and shall pay a mandatory fine of $1,000. He is placed on probation for a period of one year, subject to standard conditions.

All sentences shall run concurrently. All sentences shall be effective and run from March 6, 1998.

Both the defendant and the Commonwealth are notified that they have the right to appeal from this order within the next 30 days.

The defendant is notified that he has the right to proceed in forma pauperis, if he is indigent. He has the right to proceed with assigned counsel. If he feels that he needs or wants a lawyer and cannot afford to hire one, he should apply promptly on a form available through the clerk of courts office or the public defender’s office, and if he qualifies, a lawyer will be provided him free of charge.

He is notified that he has the right to request the court to consider setting bail and to allow him to post bail pending the outcome of his appeal.

In the interim, Mr. Levine will prepare, file, litigate motions, perfect and litigate an appeal if, but only if, the defendant directs him to do so.

      . We have seen various spellings of “Megan,” including “Meagan.” However, the most common seems to be the one we have chosen.

      . The Crimes Code makes it clear that sexual intercourse is given its ordinary meaning, with some additional provisions added. 18 Pa.C.S. §3101. Apparently, the ordinary meaning is so well-known that many dictionaries provide no real definition. For example, The American Heritage Dictionary of the English Language (Houghton Mifflin Company), defines sexual intercourse as coitus, and coitus as sexual intercourse.

      . Obviously, the defendant was correctly charged and properly sentenced.