Com. v. Brashear, J.

2024 Pa. Super. 317

• Court: Superior Court of Pennsylvania
• Decided: December 31, 2024
• Docket: 429 MDA 2024
• Status: Published

Opinion

J-A27031-24

2024 PA Super 317

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JEREMY TODD BRASHEAR : : Appellant : No. 429 MDA 2024

Appeal from the Judgment of Sentence Entered February 28, 2024 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000661-2020

BEFORE: LAZARUS, P.J., KUNSELMAN, J., and McLAUGHLIN, J.

OPINION BY KUNSELMAN, J.: FILED: DECEMBER 31, 2024

Jeremy Todd Brashear appeals from the judgment of sentence, imposing

nine to 18 months of time served, after a jury convicted him of not registering

his “residence,” pursuant to Subchapter I of the Sex Offender Registration and

Notification Act (“SORNA”).1 Because Brashear provided his “residence” as a

matter of law, we vacate the conviction.

On April 15, 2014, the United States District Court for the Middle District

of Pennsylvania convicted Brashear of possessing child pornography, which

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1 See 42 Pa.C.S.A. §§ 9799.51-9799.75. On February 21, 2018, in the wake of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (barring ex post facto application of SORNA’s registration requirements), the General Assembly divided SORNA into Subchapters H and I. Subchapter H, 42 Pa.C.S.A §§ 9799.10-9799.42, covers individuals to whom Muniz does not apply, because they committed their offense after December 20, 2012, when SORNA went into effect. “Subchapter I, an entirely new subchapter, was applied to sexual offenders who committed their offenses prior to December 20, 2012, and whose registration obligations were potentially affected by Muniz.” Commonwealth v. Torsilieri, 316 A.3d 77, 81 (Pa. 2024). Brashear’s underlying offense occurred in December of 2010. See United States v. Brashear, No. 4:11-CR-0062, 2012 WL 4867402 (M.D. Pa. 2012). As such, his SORNA-registration requirements are in Subchapter I. J-A27031-24

subjected him to ten years of SORNA registration with the Pennsylvania State

Police (“PSP”). At his November 2019 registration, Brashear provided various

information in response to a corrections officer’s questions. The corrections

officer typed Brashear’s responses into the PSP Form for SORNA registrants.

Block 53 of the PSP Form was headed “Street address 1,” while Block

54 was headed “Street Address 2-Include Apartment/Room #.” Trial Court

Opinion, 6/12/24, at 2. In Block 53, the corrections officer entered “19 S 4th

Street,” and, in Block 54, he entered “Harrisburg.” Id. The officer did not

enter an apartment or room number, because Brashear did not provide one.

Brashear received a copy of the Form, had an opportunity to make any

changes, and signed the Form to signify his agreement with the entered

information.

Brashear’s PSP Form made its way to a detective in the Harrisburg Police

Department. She immediately recognized 19 S 4th Street as a hotel known as

The Alva, which has “at least 27 rooms in that building.” See N.T., 8/16/23,

at 83. In the detective’s opinion, a registrant may report that he “live[s] at

The Alva, that’s fine, but your room number has to be on [the PSP Form] as

well, so that people are aware of what room you’re living in.” Id. at 84.

The detective went to The Alva to investigate Brashear’s whereabouts.

She met with the hotel’s owner who informed her that Brashear was in Room

109. The detective went to Room 109, found Brashear, and told him that “he

was technically out of compliance with [SORNA], because he never listed a

room number.” Id. at 85. She allowed Brashear a week to return to the

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registration center to update his PSP Form. Brashear neglected to do so, and

on January 10, 2020, the detective arrested him for violating 18 Pa.C.S.A. §

4915.1(a)(2).

Two-and-a-half years later, on the morning before the jury trial, the

Commonwealth realized that the detective had mistakenly charged Brashear

under 18 Pa.C.S.A. § 4915.1(a)(2). The prosecutor moved to amend the

charge to an alleged violation of 18 Pa.C.S.A. § 4915.2(a)(2). The parties

agreed that Section 4915.1 governs Subchapter H registrants, while Section

4915.2 governs Subchapter I registrants. Brashear conceded that “he’s a

Subchapter I registrant,” and the trial court granted the motion to amend the

information. N.T., 8/16/23, at 5.

Members of law enforcement testified for the Commonwealth. At the

close of its case-in-chief, Brashear moved for judgment of acquittal, because

he was “required to update a ‘residence,’ not an apartment number.” Id. at

97. “If the legislature wished for the specific address to be the thing a

registrant must register, they would specify that.” Id.

Noting that this was a case of first impression under Subchapter I, the

trial court denied the motion. It opined, “in the absence of specific case law

that would negate an apartment number or a room number from being

factually compliant with the statute, I’m not inclined to grant” judgment of

acquittal. Id. at 110. In the court’s view, “it’s up to the jury to decide [if

Brashear] knowingly failed to register pursuant to that” statutory provision.

Id. But the trial court acknowledged, “this case has a lot of potential to clarify

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that legal issue on whether or not the General Assembly was diligent in setting

a clear-cut definition for what ‘residence’ is in the statute.” Id. at 110-111.

Finding ambiguity in “the fact that ‘residence’ can be interpreted differently –

I don’t have a case to the contrary – and the fact that the [PSP Forms]

themselves provide for an apartment number and a room number, and in this

case factually that was communicated to [Brashear] prior to him being

charged, I think the matter is in front of the jury.” Id. at 111.

The jury convicted Brashear of failing to register pursuant to Subchapter

I of SORNA, and the trial court sentenced him as described above. This timely

appeal followed.

Brashear asks, “Whether the Commonwealth produced insufficient

evidence that [he] failed to register when [he] provided the address of his

general housing location [but not] the specific room number?” Brashear’s

Brief at 4.

A challenge to the legal sufficiency of the Commonwealth’s evidence

“presents a question of law, for which our standard of review is de novo, and

our scope of review is plenary.” Commonwealth v. Peters, 320 A.3d 1231,

1236 (Pa. Super. 2024). This Court views “the record in the light most

favorable to the [Commonwealth], giving the prosecution the benefit of all

reasonable inferences to be drawn from the evidence.” Id. “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.” Id.

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Brashear argues, as he did in his motion for judgment of acquittal, that

the term “residence” in SORNA and 18 Pa.C.S.A. § 4915.2(a)(2) is clear and

unambiguous, and it is not synonymous with one’s full mailing “address.” He

claims that, if the legislature had used the word “address” in Subchapter I and

Section 4915.2(a)(2), then that word would have required him to provide his

room number at registration, but the word “residence” did not demand the

same level of specificity that “address” would have. Moreover, if there is any

ambiguity in “residence,” then Brashear relies upon the rule of lenity. He

suggests that, under that doctrine of statutory construction, this Court must

resolve any ambiguity in this criminal statute in his favor and strictly construe

it against the Commonwealth.

In response, the Commonwealth presents a meandering argument that

largely disregards the statutory text. It contends that “one can divine that

‘residence’ is the term that imposes the requirement for [Brashear] to provide

his complete address.” Commonwealth’s Brief at 10. Although the legislature

wrote “residence,” the Commonwealth believes it actually meant “complete

address.” In the Commonwealth’s view, providing the street address without

a room number implied that Brashear resided in the entire hotel. Thus, it

asserts that he knowingly failed to provide his specific “residence” therein.

To support its claim, the Commonwealth initially points to the PSP “Form

which stated [Brashear] was required to input both the street address and the

apartment/room number in order to verify his complete address . . . .” Id. at

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11. It also relies on the United States Post Office.2 See id. at 14. In addition,

the Commonwealth cites two cases from the Commonwealth Court regarding

the Election Code and the Zoning Ordinance of New Hope Borough,

respectively. See id. at 15, 19 (citing In re Nomination Papers of

Creighton, 899 A.2d 1166 (Pa. Cmwlth. 2006), and Eichlin v. Zoning

Hearing Board of New Hope Borough, 671 A.2d 1173 (Pa. Cmwlth. 1996)).

Furthermore, the Commonwealth claims that, in Commonwealth v. Wilgus,

40 A.3d 1201 (Pa. 2012), the Supreme Court of Pennsylvania “concluded that

residence and address are used interchangeably in” a pre-SORNA statute,

known as Megan’s Law II. Id. at 15-16.

Finally, the Commonwealth makes a policy argument. It claims that,

when a SORNA registrant resides in an apartment building or hotel, “there is

no way that anyone could find [a registrant’s] room without having to inquire

further, which defeats the purposes of the statute in being able to easily find

out where the individual resides.” Id. at 18. “Policy demands that . . . SORNA

registrants must be easily found if the need arises and without a room or

apartment number being included this cannot be accomplished.” Id. The

Commonwealth’s contentions disregard the plain language of SORNA and are,

therefore, not determinative. ____________________________________________

2 Specifically, the Commonwealth references the Post Office’s website on “How

to Send a Letter or Postcard,” available at https://usps.com/ship/letters.htm (last visited 11/19/23) (instructing citizens to address envelopes with “the following on separate lines: [(1)] Recipient’s full name or company name, [(2)] Apartment or suite number, [(3)] Full street address, [and [(4)] City, State, and ZIP+4 Code.”).

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The salient facts of this case are undisputed. Brashear was required to

register his “residence” under Subchapter I of SORNA. He identified the place

where he resided by its street address but did not provide his room number

within that building. Thus, the question is one of statutory interpretation: did

the General Assembly require Subchapter I registrants to provide apartment

or room numbers when they verify their residence?

“As this case requires us to engage in statutory interpretation, we are

mindful of our paramount objective to give effect to the intent of our General

Assembly in enacting the particular statute under review.” Commonwealth

v. Jacobs, 39 A.3d 977, 982 (Pa. 2012) (citing 1 Pa.C.S.A. § 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.S.C.A. §

1921(b).

As mentioned, the arresting detective originally charged Brashear with

failure to register under 18 Pa.C.S.A. § 4915.1(a)(2). But, because Brashear

is a Subchapter I registrant, the Commonwealth had to amend the information

to charge him under 18 Pa.C.S.A. § 4915.2(a)(2). The difference between

those two sections controls the outcome of this case.

In Section 4915.1 (i.e., the statute under which Brashear was originally

and erroneously charged), the legislature commanded, “An individual who is

subject to registration under [Subchapter H of SORNA] commits an offense if

he knowingly fails to . . . (2) verify his address . . . .” 18 Pa.C.S.A §

4915.1(a)(2) (emphasis added). By contrast, in Section 4915.2 (i.e., the

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statute under Bashear was convicted), the legislature commanded, “An

individual who is subject to registration under [Subchapter I of SORNA]

commits an offense if the individual knowingly fails to . . . (2) verify the

individual’s residence . . . .” 18 Pa.C.S.A. § 4915.2(a)(2) (emphasis added).

The Supreme Court has long held that “A statute must be construed, if

possible, to give effect to all of its provisions. It is presumed that every word,

sentence, or provision of a statute is intended for some purpose and

accordingly must be given effect.” Commonwealth v. Lobiondo, 462 A.2d

662, 664 (Pa. 1983) (some punctuation omitted). “Thus, when the legislature

uses two different words, we must . . . presume that it must have meant for

the words to have separate meanings.” Commonwealth v. Elliott, 50 A.3d

1284, 1290 (Pa. 2012) (some punctuation).

In drafting Sections 4915.1(a)(2) and 4915.2(a)(2), the legislature used

two different words; it used “address” in the former and “residence” in the

latter. The Commonwealth would have us interpret the word “residence” to

mean “complete address.” If we adopted that interpretation, the distinction

that the General Assembly intended by using the word “address” in one section

and “residence” in another section would be negated.3 The Commonwealth’s

interpretation would not effectuate every word in the statute, as the General

Assembly has drafted it, in contravention of Lobiondo and Elliott, supra.

3 If the legislature wants Subchapter I registrants to provide their addresses,

including room or unit numbers, it may amend 18 Pa.C.S.A. § 4915.2(a)(2) and 42 Pa.C.S.A. §§ 42 Pa.C.S.A. §§ 9799.51-9799.75.

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Presumably, the legislature knew the difference between “address” and

“residence” when it authored SORNA’s distinct subchapters and their related,

failure-to-register criminal provisions. An obligation to provide one’s complete

mailing address – including room or apartment number – clearly arises under

Subchapter H and 18 Pa.C.S.A. § 4915.1(a)(2), because, in those provisions,

the legislature commanded registrants to verify their “address.” By contrast,

in Subchapter I and 18 Pa.C.S.A. § 4915.2(a)(2), the legislature imposed a

less stringent standard. There, the legislature only compelled registrants to

verify their “residence.” Id.

In drafting Subchapter I, the General Assembly defined “residence” as

“A location where an individual resides . . . The term includes a residence

which is mobile, including a houseboat, mobile home, trailer or recreational

vehicle.” 42 Pa.C.S.A. § 9799.12 (emphasis added). We hold that, where, as

here, a registrant resides in a building, the operable “location,” is the building

itself. This reading gives “residence” its common meaning in plain English.

The list of “locations” that the legislature used as examples buttresses our

interpretation. Everything in that list is a complete structure. Nothing in that

list indicates that the drafters intended “residence” to mean a specific room

within a larger building, as the Commonwealth contends.

In fact, if someone asked a person living in an apartment complex or a

condominium where she resides, her most likely answer would be the name

of the apartment or condominium, not her specific room or unit. Also, this

plain-language interpretation of “residence” reduces the burden of Subchapter

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I registrants from the more specific and onerous requirement of a complete

mailing address under Subchapter H. A reduced burden on Subchapter I

registrants comports with the legislative purpose for adopting Subchapter I:

namely, eliminating the penal nature of SORNA that caused it to run afoul of

the ex post facto clause in the first place. See Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017). Hence, the legislature demanded that Subchapter

I registrants verify only the buildings in which they reside, while retaining the

heightened, pre-Muniz obligation of Subchapter H registrants to verify their

complete mailing addresses.

In sum, the trial court erred, as a matter of law, because it committed

this pure question of statutory construction to the jury, when no material facts

were in dispute. Section 4915.2(a)(2) does not require a Subchapter I

registrant to verify the specific room or apartment in which he resides. As

such, Brashear was under no obligation to provide that information when he

registered his new residence in November of 2019. In addition, the detective

was mistaken in her interpretation of the statute; Block 54 on the PSP Form

(i.e., apartment/room number) is irrelevant to a Subchapter I registrant.

Under the plain language of the statute, the Commonwealth presented

overwhelming evidence of Brashear’s innocence. He verified his “residence”

to the corrections officer as the legislature intended that word in Subchapter

I of SORNA and 18 Pa.C.S.A. § 4915.2(a)(2). Accordingly, Brashear is entitled

to full appellate relief, and we reverse the order denying judgment of acquittal.

Judgment of sentence vacated. Defendant discharged.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/31/2024

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