Com. v. Demark, C. ( 2016 )


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  • J-S58038-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    CARMEN JOSEPH DEMARK
    Appellant                  No. 957 MDA 2015
    Appeal from the Judgment of Sentence March 18, 2015
    In the Court of Common Pleas of Luzerne County
    Criminal Division at No(s): CP-40-CR-0001901-2014
    BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
    MEMORANDUM BY GANTMAN, P.J.:                     FILED DECEMBER 01, 2016
    Appellant, Carmen Joseph Demark, appeals from the judgment of
    sentence entered in the Luzerne County Court of Common Pleas, following
    his jury trial conviction for failure to comply with sexual offender registration
    requirements.1       We affirm the conviction but vacate the judgment of
    sentence and remand for re-sentencing.
    The relevant facts and procedural history of this case are as follows.
    Beginning in 2003, Appellant has been subject to lifetime reporting
    requirements under the Sexual Offenders Registration and Notification Act
    (“SORNA”) at 42 Pa.C.S.A. § 9799.10 et seq.            On April 1, 2014, the
    ____________________________________________
    1
    18 Pa.C.S.A. § 4915.1.
    _____________________________
    *Retired Senior Judge assigned to the Superior Court.
    J-S58038-16
    Pennsylvania State Police mailed a letter to Appellant at his regular address.
    The letter reminded Appellant to report for quarterly registration by April 15,
    2014.2     Appellant failed to report.         On May 22, 2014, a state trooper
    contacted Appellant regarding his failure to report in April. Appellant showed
    up that day at the state police barracks, where police arrested him.
    On February 3, 2015, a jury convicted Appellant of failure to comply
    with sexual offender registration requirements.            The court sentenced
    Appellant on March 18, 2015, to three (3) to six (6) years’ incarceration,
    which included a mandatory minimum sentence, per 42 Pa.C.S.A. § 9718.4.
    Appellant timely filed post-sentence motions for reconsideration of sentence
    and for judgment of acquittal on March 26, 2015. The court denied relief on
    April 30, 2015. On May 29, 2015, Appellant timely filed a notice of appeal.
    The court ordered Appellant on June 15, 2015, to file a concise statement of
    errors pursuant to Pa.R.A.P. 1925(b), which he filed on July 22, 2015.3
    ____________________________________________
    2
    On October 14, 2014, the Commonwealth Court declared Section
    9799.15(g) unconstitutionally punitive as applied to individuals convicted
    prior to enactment of the provision, where the provision required the
    offender to update the registration information in person; but the provision
    could be severed from the remainder of the statute while preserving the
    otherwise valid subsections. See Coppolino v. Noonan, 
    102 A.3d 1254
    (Pa.Cmwlth. 2014). Despite Coppolino, Appellant does not challenge the
    “in person” aspect of the registration process declared unconstitutionally
    punitive in Coppolino. Here, Appellant failed to register at all and in any
    manner.
    3
    Appellant’s Rule 1925(b) statement was technically untimely.
    Nevertheless, this Court may address the merits of a criminal appeal where
    (Footnote Continued Next Page)
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    Appellant raises the following issue for our review:
    WHETHER, WHERE THE COMMONWEALTH PRODUCED NO
    EVIDENCE OF A CULPABLE MENS REA AND THE EVIDENCE
    NEGATED THE PRESENCE OF MENS REA, APPELLANT’S
    CONVICTION FOR FAILURE TO REGISTER IS AGAINST THE
    WEIGHT AND SUFFICIENCY OF THE EVIDENCE?
    (Appellant’s Brief at 7).
    Appellant argues the Commonwealth failed to establish that Appellant
    had the requisite mens rea to sustain his conviction. Appellant concedes he
    failed to report to police in April 2014, but contends he did not do so
    “knowingly.” Appellant insists his various health and family issues interfered
    with his ability to remember his reporting requirements. Appellant maintains
    he relied on the routine reminder letters to let him know when he needed to
    report to police. Appellant avers the Commonwealth failed to present proof
    of Appellant’s receipt of the letter.            Appellant indicates he immediately
    reported to police the same day they notified Appellant of his failure to verify
    his registration information in April 2014. Appellant claims even if sufficient
    evidence supported his conviction, the verdict was against the weight of the
    evidence.    Appellant concludes this Court should overturn his conviction
    and/or grant a new trial. We disagree.
    _______________________
    (Footnote Continued)
    a defendant files an untimely Rule 1925(b) statement, if the trial court had
    adequate opportunity and chose to prepare an opinion addressing the
    issue(s) raised on appeal. See Commonwealth v. Burton, 
    973 A.2d 428
    (Pa.Super. 2008) (en banc). Here, the trial court filed a Rule 1925(a)
    opinion, which addressed Appellant’s sufficiency issue. Therefore, we decline
    to waive that issue.
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    Initially, we note that a challenge to the sufficiency of the evidence
    and the weight of the evidence supporting a criminal conviction are separate
    inquiries:
    [W]e find it necessary to delineate the distinctions between
    a claim challenging the sufficiency of the evidence and a
    claim that challenges the weight of the evidence. The
    distinction between these two challenges is critical. A
    claim challenging the sufficiency of the evidence, if
    granted, would preclude retrial under the double jeopardy
    provisions of the Fifth Amendment to the United States
    Constitution, and Article [1], Section 10 of the
    Pennsylvania Constitution, whereas a claim challenging the
    weight of the evidence, if granted, would permit a second
    trial.
    A claim challenging the sufficiency of the evidence is a
    question of law. Evidence will be deemed sufficient to
    support the verdict when it establishes each material
    element of the crime charged and the commission thereof
    by the accused, beyond a reasonable doubt. Where the
    evidence offered to support the verdict is in contradiction
    to the physical facts, in contravention to human experience
    and the laws of nature, then the evidence is insufficient as
    a matter of law. When reviewing a sufficiency claim the
    court is required to view the evidence in the light most
    favorable to the verdict winner, giving the prosecution the
    benefit of all reasonable inferences to be drawn from the
    evidence.
    A motion for new trial on the grounds that the verdict is
    contrary to the weight of the evidence concedes that there
    is sufficient evidence to sustain the verdict. Thus, the trial
    court is under no obligation to view the evidence in the
    light most favorable to the verdict winner. An allegation
    that the verdict is against the weight of the evidence is
    addressed to the discretion of the trial court. A new trial
    should not be granted because of a mere conflict in the
    testimony or because the judge on the same facts would
    have arrived at a different conclusion. A trial judge must
    do more than reassess the credibility of the witnesses and
    allege that he would not have assented to the verdict if he
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    [or she] were a juror. Trial judges, in reviewing a claim
    that the verdict is against the weight of the evidence, do
    not sit as the thirteenth juror. Rather, the role of the trial
    judge is to determine that notwithstanding all the facts,
    certain facts are so clearly of greater weight that to ignore
    them or to give them equal weight with all the facts is to
    deny justice.
    Commonwealth v. Widmer, 
    560 Pa. 308
    , 318, 
    744 A.2d 745
    , 751-52
    (2000) (citations and footnote omitted).
    Moreover, where the trial court has ruled on the weight
    claim below, an appellate court’s role is not to consider the
    underlying question of whether the verdict is against the
    weight of the evidence. Rather, appellate review is limited
    to whether the trial court palpably abused its discretion in
    ruling on the weight claim.
    Commonwealth v. Champney, 
    574 Pa. 435
    , 444, 
    832 A.2d 403
    , 408
    (2003), cert. denied, 
    542 U.S. 939
    , 
    124 S. Ct. 2906
    , 
    159 L. Ed. 2d 816
    (2004)
    (internal citations omitted). “A weight of the evidence claim concedes that
    the evidence is sufficient to sustain the verdict, but seeks a new trial on the
    ground that the evidence was so one-sided or so weighted in favor of
    acquittal     that   a   guilty    verdict    shocks        one’s   sense    of   justice.”
    Commonwealth v. Lyons, 
    622 Pa. 91
    , 116, 
    79 A.3d 1053
    , 1067 (2013).
    The      Crimes    Code     defines    failure   to    comply   with    registration
    requirements as follows:
    § 4915.1.    Failure to comply with registration
    requirements
    (a) Offense defined.—An individual who is subject
    to registration under 42 Pa.C.S. § 9799.13 (relating to
    applicability) commits an offense if he knowingly fails
    to:
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    (1) register with the Pennsylvania State Police as
    required under 42 Pa.C.S. § 9799.15 (relating to
    period of registration), 9799.19 (relating to initial
    registration) or 9799.25 (relating to verification by
    sexual offenders and Pennsylvania State Police);
    (2) verify his address or be photographed as
    required under 42 Pa.C.S. § 9799.15, 9799.19 or
    9799.25; or
    (3) provide accurate information when registering
    under 42 Pa.C.S. § 9799.15, 9799.19 or 9799.25.
    18 Pa.C.S.A. § 4915.1(a).     Section 302(b) of the Crimes Code defines a
    “knowing” mens rea as:
    § 302. General requirements of culpability.
    *    *    *
    (b)   Kinds of culpability defined.—
    *    *    *
    (2) A person acts knowingly with respect to a
    material element of an offense when:
    (i) if the element involves the nature of his conduct
    or the attendant circumstances, he is aware that his
    conduct is of that nature or that such circumstances
    exist; and
    (ii) if the element involves a result of his conduct, he
    is aware that it is practically certain that his conduct
    will cause such a result.
    *    *    *
    18 Pa.C.S.A. § 302(b)(2).
    Assuming proper jurisdiction, “challenges to the legality of the
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    sentence are not waivable.”       Commonwealth v. Jacobs, 
    900 A.2d 368
    ,
    373-73 (Pa.Super. 2006) (en banc), appeal denied, 
    591 Pa. 681
    , 
    917 A.2d 313
    (2007).     See Commonwealth v. Kitchen, 
    814 A.2d 209
    , 214
    (Pa.Super. 2002), aff’d, 
    576 Pa. 229
    , 
    839 A.2d 184
    (2003) (stating legality
    of sentence may be subject of inquiry by appellate court sua sponte);
    Commonwealth          v.   Edrington,     
    780 A.2d 721
        (Pa.Super.     2001)
    (maintaining legality of sentence claims cannot be waived, and may be
    reviewed sua sponte, where reviewing court has proper jurisdiction).
    “Issues relating to the legality of a sentence are questions of law….”
    Commonwealth v. Diamond, 
    945 A.2d 252
    , 256 (Pa.Super 2008), appeal
    denied, 
    598 Pa. 755
    , 
    955 A.2d 356
    (2008). When the legality of a sentence
    is at issue on appeal, our “standard of review is de novo and our scope of
    review is plenary.”    
    Id. “An unconstitutional
    statute is ineffective for any
    purpose [as] its unconstitutionality dates from the time of its enactment and
    not merely from the date of the decision holding it so.” Commonwealth v.
    Muhammed,        
    992 A.2d 897
    ,    903    (Pa.Super.     2010)       (quoting
    Commonwealth v. Michuck, 
    686 A.2d 403
    , 407 (Pa.Super. 1996), appeal
    denied, 
    548 Pa. 668
    , 
    698 A.2d 593
    (1997)). “If no statutory authorization
    exists for a particular sentence, that sentence is illegal and subject to
    correction.   An illegal sentence must be vacated.”           Commonwealth v.
    Watson, 
    945 A.2d 174
    , 178-79 (Pa.Super. 2008) (quoting Commonwealth
    v. Leverette, 
    911 A.2d 998
    , 1001-02 (Pa.Super. 2006)).
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    In the past, Section 9718.4 provided mandatory minimum sentences
    for failure to comply with sex offender registration and stated in relevant
    part:
    § 9718.4.    Sentence for failure to comply with
    registration of sexual offenders
    (a) Mandatory sentence.─Mandatory sentencing shall
    be as follows:
    (1)     Sentencing upon conviction for a first offense
    shall be as follows:
    *    *    *
    (iii) Not less than three years for an individual who:
    (A) is subject to section 9799.13 and must register
    for a period of 25 years or life under section 9799.15
    or a similar provision from another jurisdiction; and
    (B) violated 18 Pa.C.S. § 4915.1(a)(1) or (2).
    *    *    *
    (b) Proof at sentencing.─The provisions of this section
    shall not be an element of the crime, and notice thereof to
    the defendant shall not be required prior to conviction, but
    reasonable notice of the Commonwealth’s intention to
    proceed under this section shall be provided after
    conviction and before sentencing. The applicability of this
    section shall be determined at sentencing. The court shall
    consider any evidence presented at trial and shall afford
    the Commonwealth and the defendant an opportunity to
    present any necessary additional evidence and shall
    determine by a preponderance of the evidence if this
    section is applicable.
    (c) Authority of court in sentencing.─There shall be
    no authority in any court to impose on an offender to
    which this section is applicable any lesser sentence than
    provided for in subsection (a) or to place such offender on
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    probation or to suspend sentence. Nothing in this section
    shall prevent the sentencing court from imposing a
    sentence greater than that provided in this section.
    Sentencing guidelines promulgated by the Pennsylvania
    Commission on Sentencing shall not supersede the
    mandatory sentences provided in this section.
    *       *   *
    42 Pa.C.S.A. § 9718.4(a)(1)(iii)(A)-(B), (b), (c).     In 2015, this Court held
    that the mandatory minimum sentence under this statute for failure to
    comply with the sex offender registration requirements did not violate the
    defendant’s rights under Alleyne v. United States, ___ U.S. ___, 
    133 S. Ct. 2151
    , 
    186 L. Ed. 2d 314
    (2013). See Commonwealth v. Pennybaker, 
    121 A.3d 530
    (Pa.Super. 2015). Our Supreme Court, however, granted review
    and reversed that judgment, vacated the appellant’s sentence, and
    remanded for re-sentencing without application of 42 Pa.C.S. § 9718.4,
    citing Commonwealth v. Hopkins, ___ Pa. ___, 
    117 A.3d 247
    (2015) and
    Commonwealth v. Wolfe, ___ Pa. ___, 
    140 A.3d 651
    (2016).4                  See
    Commonwealth v. Pennybaker, 
    2016 WL 4541106
    (Pa. August 31, 2016).
    ____________________________________________
    4
    The Wolfe Court reviewed the Alleyne issue on the merits, after
    discussing whether Alleyne violations implicate the legality of the sentence
    and the appropriateness of sua sponte appellate review. The Court deferred
    “deeper consideration” of the legality/waiver question to the disposition of
    Commonwealth v. Barnes, 
    2014 WL 10919327
    (Pa.Super. June 27, 2014),
    appeal granted, ___ Pa. ___, 
    122 A.3d 1034
    (September 18, 2015), which
    remains undecided to date. Nevertheless, the Wolfe Court stated: “For the
    present, it is sufficient to observe that this Court has previously found that
    an asserted Apprendi[ v. New Jersey, 530 U.S. 466,120 S.Ct. 2348, 
    147 L. Ed. 2d 435
    (2000)]−line violation implicated the legality of a sentence…and
    (Footnote Continued Next Page)
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    Instantly, Appellant’s quarterly lifetime reporting requirements as a
    sex offender began in 2003. On April 1, 2014, the Pennsylvania State Police
    mailed a letter to Appellant at his regular address, reminding him to report
    for quarterly registration. Appellant failed to comply and was subsequently
    arrested when he reported to the state police barracks on May 22, 2014.
    Prior to trial, Appellant and the Commonwealth stipulated that Appellant was
    subject to reporting requirements as a sex offender and he had failed to
    register when necessary in April 2014.
    At trial, the Commonwealth presented a copy of the verification forms
    Appellant signed each time he reported for quarterly registration. One of the
    verification   forms     read:    “Shortly       before   your   verification   date,   the
    Pennsylvania State Police will send a letter to your registered mailing
    address. This letter will not be forwarded. Failure to receive this letter does
    not relieve you of your obligation to comply with the law.” (N.T., 2/3/15, at
    44).   The Commonwealth also offered testimony from Pennsylvania State
    Police Trooper Connors, who indicated that Appellant was required to verify
    his address every three months.             Trooper Connors confirmed state police
    sent Appellant a reminder letter, but Appellant failed to appear for
    registration in April 2014. Appellant testified at trial and stated he knew of
    the requirement to register every three months, but he had forgotten to do
    _______________________
    (Footnote Continued)
    that legality-of-sentence claims are not subject to the traditional waiver
    doctrine.” Id. at ___, 140 A.3d at 659-60.
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    J-S58038-16
    so because he did not receive the reminder letter.
    Appellant conceded all material elements of the offense of failure to
    report. See 18 Pa.C.S.A. § 4915.1(a). Appellant admitted he was subject
    to reporting requirements as a sex offender under SORNA and was obligated
    to present himself to the state police for address verification every three
    months.     Appellant’s own testimony confirmed he was aware of his
    responsibility to report to state police for quarterly registration.      Thus, the
    evidence is sufficient to sustain Appellant’s conviction of failure to comply
    with sexual offender registration requirements. See 
    Widmer, supra
    .
    With respect to Appellant’s contention that his conviction was against
    the weight of the evidence presented, the trial court reasoned as follows:
    [Appellant] fails to suggest how or in what matter the
    evidence adduced from the Commonwealth witnesses and
    the testimony of [Appellant] himself permits the conclusion
    that the verdict is so contrary to the evidence as to shock
    one’s sense of justice. Simply stated, Appellant utterly
    fails to assert how the evidence is so tenuous, vague and
    uncertain that the verdict could be considered against the
    weight of the evidence. Moreover, [Appellant] himself
    made admissions that he knew that he was required to
    register every three (3) months but failed to do so because
    he forgot.
    (Trial Court Opinion, filed December 16, 2015, at 8). The court concluded
    the jury’s verdict was not contrary to the weight of the evidence. 
    Id. Appellant’s only
    defense at trial was that he “just forgot” because he
    claimed he had not received a reminder letter.              Notwithstanding the
    Commonwealth’s      evidence   suggesting     Appellant   did   receive   a   letter,
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    Appellant’s insistence to the contrary does not inform review.       In other
    words, Appellant’s contention that he forgot to register fails to refute the
    “knowingly” standard for this offense. See 18 Pa.C.S.A. § 302(b)(2). Each
    time Appellant reported for quarterly registration, he signed a verification
    form stating “[f]ailure to receive [a reminder] letter does not relieve you of
    your obligation to comply with the law.” (N.T., 2/3/15, at 44). Appellant
    admitted he was aware he had to register, yet failed to do so in April 2014.
    Consequently, we see no reason to disturb the court’s decision to deny relief
    on Appellant’s challenge to the weight of the evidence.     See 
    Champney, supra
    .
    Nevertheless, we also see from the record that the trial court imposed
    on Appellant a mandatory minimum sentence of three years, per 42
    Pa.C.S.A. § 9718.4.     The court relied primarily on this Court’s decision in
    Pennybaker, which our Supreme Court has now reversed. Accordingly, we
    affirm the conviction but follow our Supreme Court’s lead in Pennybaker
    and vacate the judgment of sentence and remand for re-sentencing without
    application of a mandatory minimum sentence per 42 Pa.C.S.A. § 9718.4.
    Judgment of sentence vacated.       Case remanded for re-sentencing.
    Jurisdiction is relinquished.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/1/2016
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