Com. v. Andrews, W. , 173 A.3d 1219 ( 2017 )

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2017 PA Super 349COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALTER ANDREWS, :
:
Appellant. : No. 1524 WDA 2016
Appeal from the Judgment of Sentence September 9, 2016
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000627-2015
BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.*
OPINION BY DUBOW, J.: FILED NOVEMBER 07, 2017
Appellant, Walter Andrews, appeals from the September 9, 2016
Judgment of Sentence entered in the Court of Common Pleas of Venango
County imposed after the trial court, sitting without a jury, found Appellant
guilty of Failure to Comply with Registration Requirements.1 After careful
review, we conclude that Appellant had until 12:00 midnight on the third
business day to register his new address at an approved registration site.
Appellant was arrested and booked into jail at 11:21 P.M. on the third
business day, which tolled his registration requirements. Therefore, we
reverse Appellant’s conviction and vacate Appellant’s Judgment of Sentence.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 4915.1(a)(1).
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The factual and procedural history is not in dispute. Appellant is a Tier
III sex offender subject to the registration requirements under
Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”).
See 42 Pa.C.S. §§ 9799.10–9799.41. On Friday, November 6, 2015, at
7:19 P.M., while under parole supervision, Appellant left Guadenzia
Residential Treatment Facility located in Philadelphia, Pennsylvania. On
Sunday, November 8, 2015, he arrived at 38 Prospect Avenue, Franklin,
Pennsylvania, the home of Appellant’s husband, Thomas Andrews, who was
also under parole supervision.
The Pennsylvania Board of Probation and Parole (“PBPP”) declared
Appellant delinquent from supervision, deemed him to be an absconder, and
issued a warrant for his arrest. PBPP relayed this information to PBPP Agent
Pascoe, who was supervising Appellant in Philadelphia, and PBPP Agent
Clarke, who was supervising Appellant’s husband in Franklin, Pennsylvania.
On November 12, 2015, Agent Clarke and his colleague PBPP Agent
Harriger went to Mr. Andrews’ home to check on Mr. Andrews and inquire
about Appellant’s whereabouts. Before knocking on the front door, Agent
Clarke did a perimeter security sweep of the home and heard voices inside.
Looking through the window, Agent Clarke observed two males standing
inside the kitchen.
After calling for backup from local police, Agent Harriger knocked on
the front door with Lieutenant Baker while Agent Clarke positioned himself
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outside the rear of the home. Several minutes later, Mr. Andrews answered
the door and allowed Agent Harriger, Lieutenant Baker, and Agent Clarke
into the home. When asked if anyone else was present in the home, Mr.
Andrews responded that no one else was there. After conducting a search of
the home for approximately ninety minutes, the agents found Appellant
hiding in an upstairs bedroom inside a cubbyhole located behind a dresser.
Lieutenant Baker took Appellant to Venango County Jail, where Appellant
was booked at 11:21 P.M.
On July 12, 2016, after a bench trial, the trial court found Appellant
guilty of Failure to Comply with Registration Requirements, and on
September 9, 2016, sentenced him to a term of 46 to 120 months’
incarceration.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Whether the trial court erred in finding the Commonwealth had
proven beyond a reasonable doubt that [] Appellant had failed to
register a change in residence or termination of residence within
three business days as required by 42 Pa.C.S. § 9799.15(g)?
Appellant’s Brief at 4.
The offense of Failure to Comply with Registration Requirements
requires that the Commonwealth prove, inter alia, that an individual
knowingly failed to register with the Pennsylvania State Police as required
under SORNA. See 18 Pa.C.S. § 4915.1(a)(1). Pursuant to 42 Pa.C.S. §
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9799.15(g), a SORNA registrant must appear at an approved registration
site within three “business days” after leaving or changing residence or
lodging. The registration period is tolled if a registrant is incarcerated. 42
Pa.C.S. § 9799.15(c)(1)(i).
Appellant acknowledges that, pursuant to the statute, he had three
business days to register his address with the state police after leaving
Guadenzia on Friday, November 6, 2015. Appellant’s Brief at 7. Appellant
notes that November 7 and November 8, 2015, were weekend days, and
Wednesday, November 11, 2015, was Veterans Day, a Pennsylvania state
holiday. Id. Accordingly, he maintains that his arrest on Thursday,
November 12, 2015, occurred on the third “business day.” Id. Appellant
contends that once he was arrested and booked into jail at 11:21 P.M., his
reporting requirements were tolled by statute. Id. Appellant further argues
that “the trial court erred when it found that the business day ended at 5:00
P.M. because the penal statute, which must be strictly construed, does not
place a time limit on when a person may register during the business day
and there are registration sites open at all times.” Id.
Appellant’s sole issue on appeal requires this Court to interpret a
statute, which implicates a question of law. Commonwealth v. Warren,
84 A.3d 1092, 1095 (Pa. Super. 2014). Therefore, our scope of review is
plenary, and our standard of review is de novo. Id.-4-
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When interpreting a statute, this Court must apply the Statutory
Construction Act of 1972. See 1 Pa.C.S. §§ 1501-1991. The object of all
interpretation and construction of statutes is to ascertain and effectuate the
intention of the legislature and give effect to all of the provisions of the
statute. 1 Pa.C.S. § 1921(a). “When the words of a statute are clear and
free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Generally, a statute's
plain language provides the best indication of legislative intent.
Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005). See, e.g.,
Pennsylvania Fin. Responsibility Assigned Claims Plan v. English, 664
A.2d 84, 87 (Pa. 1995) (“Where the words of a statute are clear and free
from ambiguity the legislative intent is to be gleaned from those very
words.”). In reading a statute’s plain language, “words and phrases shall be
construed according to rules of grammar and according to their common and
approved usage, while any words or phrases that have acquired a peculiar
and appropriate meaning must be construed according to that meaning.”
Shiffler, supra at 189 (citing 1 Pa.C.S. § 1903(a)) (internal quotation
marks omitted).
However, when the words of the statute are not explicit, the intention
of the legislature may be ascertained by considering, inter alia, the occasion
and necessity for the statute; the mischief to be remedied; the object to be
attained; the consequences of a particular interpretation; the legislative
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history, and the legislative and administrative interpretations of such
statute. 1 Pa.C.S. § 1921(c). Importantly, “while statutes generally should
be construed liberally, penal statutes are always to be construed strictly, 1
Pa.C.S. § 1928(b)(1), and any ambiguity in a penal statute should be
interpreted in favor of the defendant.” Shiffler, supra at 189. Finally,
when ascertaining the intention of the legislature, we presume that the
legislature “does not intend a result that is absurd, impossible of execution
or unreasonable” and “intends the entire statute to be effective and certain.”
1 Pa.C.S. § 1922(1), (2).
42 Pa.C.S. § 9799.15(g), the statute at issue here, provides in
relevant part:
[A]n individual specified in section 9799.13 shall appear in
person at an approved registration site within three business
days to provide current information relating to:
***
(2) A commencement of residence, change in residence,
termination of residence or failure to maintain a residence, thus
making the individual a transient.
***
(7) A commencement of temporary lodging, a change in
temporary lodging or a termination of temporary lodging. In
order to fulfill the requirements of this paragraph, the individual
must provide the specific length of time and the dates during
which the individual will be temporarily lodged.
42 Pa.C.S. § 9799.15(g) (emphasis added). Appellant is challenging the
trial court’s interpretation and application of the term “business days.”
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The term “business days” is not defined in SORNA and there is a
dearth of case law specifically defining the term. Instantly, both parties
concede that the term “business days” excludes weekend days and
Pennsylvania state holidays. Our examination of the Legislature’s intent
supports this conclusion. The Legislature used the term “business days,”
rather than just “days,” indicating an intent to distinguish certain “business
days” from other days of the week. Likewise, we recognize that the
“common and approved usage” of the term “business days” excludes
weekend days and Pennsylvania state holidays. See 1 Pa.C.S. § 1903. See,
e.g. Commonwealth v. Britton, 134 A.3d 83 (Pa. Super. 2016) (affirming
the appellant’s conviction of Failure to Comply with Registration
Requirements where the trial court had taken judicial notice that Appellant
absconded from a halfway house on a Sunday and was arrested on a Friday,
distinguishing weekend days from weekdays for purposes of determining
three business days). Accordingly, we agree with the parties’ interpretation
of the term “business days” to exclude weekend days and Pennsylvania state
holidays.
The question then becomes: for purposes of SORNA registration, what
time does a “business day” end? To answer this question, we must consider
information relevant to the registration sites themselves. Pursuant to
SORNA, the Pennsylvania State Police must “publish a list of approved
registration sites in the Pennsylvania Bulletin and provide a list of approved
registration sites in any notice sent to individuals required to register under
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this subchapter.” 42 Pa.C.S. § 9799.32(2). See 45 Pa.B. 2690 (published
May 30, 2015) (listing most recent approved registration sites). The list
contains over 140 approved registration sites, including the name, address,
and telephone number of each site. See 45 Pa.B. 2690 Only a few
registration sites list their operating hours, and the closing times vary. See
id. The Pennsylvania Bulletin provides that, “[p]rior to going to a site, it is
recommended that individuals call the site to ensure that it is currently open
to the public or that a registering official is there to process the individuals,
or both.” Id. Significantly, Agent Clarke testified at Appellant’s trial that
the Pennsylvania State Police Station, located twenty minutes from the
home where Appellant was arrested, is an approved registration site that is
open twenty-four hours a day, seven days a week. N.T. Trial, 7/12/16, at
42-43.
In light of the fact that: (1) the statute requires an individual to
appear in person to register; (2) there are over 140 approved registration
sites; (3) the registration sites are all open different hours; and (4) some
registration sites are open twenty-four hours a day, we conclude that it was
the intent of the legislature to allow an individual to register at any time
before 12:00 midnight on the third business day after changing residences.
To conclude differently would be unfair to a registrant who refers to the
published list, contacts his local police barracks as instructed, learns that the
police barracks is open twenty-four hours a day, and relies on that
information to determine when he can register.
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We, thus, hold that the term “business days” in 42 Pa.C.S. §
9799.15(g) should be construed as excluding Saturday, Sunday, and
Pennsylvania state holidays and as providing that the window on the third
day of registration closes at 12:00 midnight. Accordingly, we agree with
Appellant that the trial court erred when it convicted him of Failure to
Comply with Registration Requirements because Appellant was booked into
jail at 11:21 P.M., prior to 12:00 midnight on the third business day. See
42 Pa.C.S. § 9799.15(c)(1)(i).
Conviction reversed. Judgment of Sentence vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2017
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