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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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