Com. v. Powell, W.

• Court: Superior Court of Pennsylvania
• Decided: February 26, 2016
• Docket: 551 MDA 2015
• Status: Unpublished

Opinion

J-S07007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WALTER R. POWELL,

Appellant No. 551 MDA 2015

Appeal from the Judgment of Sentence December 8, 2014 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000647-2014

BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 26, 2016

Walter R. Powell appeals from the judgment of sentence of five to ten

years imprisonment that the trial court imposed after it adjudicated him

guilty at a nonjury trial of failing to comply with the registration

requirements imposed by the Sexual Offenders Registration and Notification

Act (“SORNA”), 42 Pa.C.S. § 9799.10, et seq. We affirm.

The following facts are undisputed. Appellant was a Tier III sexual

offender under SORNA, and, as such, Appellant was required to register his

residence with the Pennsylvania State Police for life. 42 Pa.C.S. §

9799.15(a)(3) (“An individual convicted of a Tier III sexual offense shall

register for the life of the individual.”). SORNA also mandated that Appellant

appear in person at an approved registration site within three business days * Former Justice specially assigned to the Superior Court. J-S07007-16

to provide current information relating to a change in residence. 42 Pa.C.S.

§ 9799.15(g)(2) (an individual required to register “shall appear in person at

an approved registration site within three business days to provide current

information relating to . . . [a] . . .change in residence[.]” An approved

registration site is defined as a “site in this Commonwealth approved by the

Pennsylvania State Police at which individuals subject to this subchapter may

comply with this subchapter.” 42 Pa.C.S. § 9799.12.

Tina Penikowski Randazzo testified as follows at trial. She was a

property manager for the Cadle Company, owner of a duplex located at 54

Gates Street, Wilkes-Barre. On December 17, 2013, Appellant applied to

rent the second floor apartment at 54 Gates Street for the calendar year

beginning on January 1, 2014. In that document, Appellant indicated that

he resided on the first floor of 291 South Grant Street, Wilkes-Barre, and

represented that he had never been convicted of a crime. Having been

recommended by another tenant, Appellant’s rental application was

approved. On December 31, 2013, he made a cash deposit of $900 to

reside in the apartment, which was being rented for $425 per month, and

received the keys.

Appellant had started to move into the apartment on January 2, 2014,

when Ms. Randazzo conducted an inspection at his apartment at 54 Gates

Street. That witness reported that Appellant “had the apartment beautifully

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decorated” and “was getting things together and settling in[.]” N.T. NonJury

Trial, 9/24/14, at 30, 31.

Wilkes-Barre Police Officer James Comny testified as follows. At

approximately 7:50 a.m. on January 10, 2014, he and another identified

officer responded to an emergency call at 54 Gates Street relating to a

physical domestic dispute. As they proceeded up the rear stairwell, the

officers “could hear screaming and commotion coming from inside the

residence[.]” Id. at 41. After they knocked on the door, it was opened by

Cathy Moore, who was bleeding from what appeared to be a slash caused by

a knife or other sharp object. Ms. Moore allowed Officer Comny and the

other officer into the apartment, where they observed Appellant. An

ambulance was summoned to treat Ms. Moore’s laceration.

Appellant, who was in his pajamas, told police that he was defending

himself and also said that “he was the sole resident of 54 Gates Street,

second floor, and that Ms. Moore did not live there. It was his apartment.”

Id. at 44. Officer Comny stated that the residence appeared as though

someone was living there. Specifically, there was bedroom furniture, a

kitchen table, a couch, and a television.

Officer Comny conducted a criminal background check on Appellant

and discovered that he was a Tier III sex offender required to register his

address with the Pennsylvania State Police. The officer then ascertained

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that the State Police still had 291 South Grant Street as Appellant’s

registered address.

On January 23, 2014, Officer Comny arrested Appellant for failing to

notify State Police within three business days that he had changed his

residence from 291 South Grant Street to 54 Gates Street in violation of 42

Pa.C.S. § 9799.15(g)(2). Appellant was located in the apartment on the

second floor of 54 Gates Street at the time of his arrest, although his

registered address with the State Police remained 291 South Grant Street.

Appellant testified in his own defense. He maintained that he still

resided at 291 South Grant Street during January 2014 and that he was

located at 54 Gates Street on January 10th because 291 South Grant Street

was being fumigated for vermin and insects. Appellant represented that he

was in the process of moving into 54 Gates Street during January but did not

plan to reside there until the end of the month and that he still received mail

at 291 South Grant Street.

Rejecting Appellant’s testimony and crediting the Commonwealth’s

proof, the trial court found Appellant guilty of violating 18 Pa.C.S. §

4915.1(a)(1), which was graded as a first-degree felony herein due to the

fact that Appellant was previously convicted of failing to keep his registered

address current. 18 Pa.C.S. § 4915.1(c)(2). At sentencing, the trial court

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imposed a mandatory minimum sentence of a five to ten year term of

imprisonment.1 On appeal, Appellant raises one claim: “Whether the

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1 While Appellant does not challenge the imposition of this mandatory minimum, such an issue relates to the legality of sentence and may be raised sua sponte by this Court. Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en banc). Mandatory minimum sentencing statutes have been impacted by Alleyne v. United States, 133 S.Ct. 2151 (2013). In that decision, the United States Supreme Court held that any fact, other than a prior conviction, that triggers a mandatory minimum sentence must be proven beyond a reasonable doubt before the factfinder. This decision has rendered many of Pennsylvania’s mandatory minimum sentencing statutes infirm. See, e.g., Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc); Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015).

In this case, Appellant was subject to a five-year mandatory minimum sentence due to his prior conviction for failing to register. 42 Pa.C.S. § 9718.4(2)(2)(i). Since the mandatory minimum herein was premised upon a prior conviction, Alleyne is not implicated. See Commonwealth v. Miller, 102 A.3d 988, 995 n. 5 (Pa.Super. 2014) (no Alleyne violation where the increase in the defendant’s minimum sentence was “based on the fact of prior convictions”); see also Commonwealth v. Valentine, 101 A.3d 801, 804 n.2 (Pa.Super. 2014) (citation omitted; emphasis added) (“The Alleyne decision renders those Pennsylvania mandatory minimum sentencing statutes that do not pertain to prior convictions constitutionally infirm insofar as they permit a judge to automatically increase a defendant's sentence based on a preponderance of the evidence standard.”).

In addition, in light of Alleyne, we have addressed the constitutionality of a different section of 42 Pa.C.S. § 9718.4, which was the statute applied herein. Commonwealth v. Pennybaker, 121 A.3d 530 (Pa.Super. 2015). Specifically, we examined subsection (a)(1)(iii), which imposes a two-year mandatory minimum upon a first conviction of failing to register. In Pennybaker, we concluded that § 9718.4(a)(1)(iii) was not infirm because, by imposing a mandatory minimum upon conviction of the crime by the fact-finder, it “does not provide for any fact-finding, nor does it (Footnote Continued Next Page)

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Commonwealth failed to present evidence sufficient to demonstrate beyond

a reasonable doubt that [Appellant’s] residence had changed to require

[Appellant] to register with the Pennsylvania State Police as required by 18

Pa.C.S. § 4915.1(a)(1)?” Appellant’s brief at 1-2.

When reviewing a sufficiency-of-the-evidence claim, we examine

whether the Commonwealth’s evidence, together with all reasonable

inferences to be draw therefrom, was enough to “enable the fact-finder to

find every element of the crime beyond a reasonable doubt.”

Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015). This Court

is not permitted to “weigh the evidence and substitute our judgment for the

fact-finder.” Id. Rather, the fact-finder decides “the credibility of witnesses

and the weight of the evidence produced” and it is “free to believe all, part

or none of the evidence.” Id. Moreover, “[a]ny doubts regarding a

defendant's guilt may be resolved by the fact-finder unless the evidence is

so weak and inconclusive that as a matter of law no probability of fact may

be drawn from the combined circumstances.” Id.

As noted, Appellant was convicted of failing to notify State Police of a

change in residence, in violation of 18 Pa.C.S. § 4915.1(a)(1), which states:

_______________________ (Footnote Continued)

make the application of the mandatory minimum sentence contingent on any factual question that has not already been determined.” Id. at 534.

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(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:

(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.

As noted, Appellant was a Tier III sexual offender and had to register

his residence with the Pennsylvania State Police for life. 42 Pa.C.S. §

9799.15(a)(3). Thus, he was required under SORNA to appear in person at

an approved registration site within three business days to provide current

information relating to a change in residence. 42 Pa.C.S. § 9799.15(g)(2).

The evidence herein was that Appellant signed a lease for 54 Gates

Street, Wilkes-Barre, and paid for two months’ rental on December 31,

2013. He had decorated that apartment when the property manager

inspected it on January 2, 2014. When police arrived at 54 Gates Street in

response to a domestic disturbance on January 10, 2014, Appellant said that

he lived in the apartment alone. This fact was confirmed by the presence of

furniture and Appellant’s attire, pajamas, at 8:00 a.m. in the morning.

Officer Comny testified that he checked with State Police on January 10,

2014, and they had Appellant’s registered address as his former residence

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on 291 South Grant Street, Wilkes-Barre. Appellant was located at the

Gates Street apartment when he was arrested on January 23, 2014. This

proof was sufficient to establish that Appellant moved to 54 Gates Street by

January 2, 2014, and did not change his registration within three business

days.

On appeal, Appellant’s position is premised upon his own testimony,

which was that he was in the process of moving to 54 Gates Street during

January 2014 and that he still resided at 291 South Grant Street. In this

sufficiency review, we cannot accept that testimony as true since the fact-

finder rejected it. Trial Court Opinion, 6/5/15, at (unnumbered page) 4.

(“We resolved all issues of credibility in favor of the Commonwealths’

witnesses and against the Defendant.”). Appellant’s argument is therefore

unavailing, and we must affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/26/2016

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