Commonwealth v. Britton

J-S14036-16

2016 PA Super 62

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

RAYMOND JOSEPH BRITTON,

Appellant No. 864 MDA 2015

Appeal from the Judgment of Sentence April 16, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005108-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED MARCH 10, 2016

Appellant Raymond Joseph Britton appeals from the judgment of

sentence entered in the Court of Common Pleas of Berks County. The

sentence was imposed after the trial court, sitting without a jury, found

Appellant guilty of failure to comply with the registration of sexual offenders

requirements.1 On appeal, Appellant contends (1) the evidence was

insufficient to sustain his conviction; (2) the trial court erred in failing to

conclude the Sexual Offender Registration and Notification Act (“SORNA”)2

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1
18 Pa.C.S.A. § 4915.1.
2
SORNA, codified at 42 Pa.C.S.A. §§ 9799.10–9799.41, became effective on
December 20, 2012. In this decision, we refer to this statute as “SORNA.”
Pennsylvania courts have also referred to the current statute as “Megan's
Law IV,” “Act 111 of 2011,” “Adam Walsh Child Protection and Safety Act,”
and the “Adam Walsh Act.” See, e.g., Commonwealth v. M.W., 614 Pa.
(Footnote Continued Next Page)

*Former Justice specially assigned to the Superior Court.
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was an ex post facto law under the United States and Pennsylvania

Constitutions; and (3) the trial court erred in failing to conclude that

applying SORNA retroactively resulted in a denial of Appellant’s right to

counsel. We affirm.

The relevant facts and procedural history are as follows: Charges

were filed against Appellant under 18 Pa.C.S.A. § 4915.1, and on March 27,

2014, Appellant filed a counseled pre-trial motion seeking to have SORNA

declared unconstitutional. Following a hearing, the trial court denied

Appellant’s pre-trial motion.

On February 2, 2015, represented by counsel, Appellant proceeded to

a bench trial. The parties agreed the case should be considered on the

following stipulation of facts, which was marked as the Commonwealth’s

Exhibit No. 1 and presented to the trial court:

1. On or about July 3, 1989, [Appellant] pled guilty to Rape by
Forcible Compulsion, 18 Pa.C.S. [§] 3921, a felony of the first
degree[,] and to Kidnapping for Ransom, 18 Pa.C.S. [§]
2901, a felony of the first degree.

2. On or about July 3, 1989, [Appellant] was sentenced to 7 to
15 years’ incarceration on the charge of Rape[,] and 2 to 10
years’ incarceration on the charge of Kidnapping for
Ransom[.] [Thus, Appellant received an aggregate sentence
of 9 years to 25 years in prison.]

_______________________
(Footnote Continued)

633, 39 A.3d 958, 968 (2012) (Baer, J., concurring); Coppolino v.
Noonan, 102 A.3d 1254, 1265 (Pa.Cmwlth. 2014) (en banc);
Commonwealth v. Partee, 86 A.3d 245, 246 (Pa.Super. 2014).

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3. At the time of the entry of the guilty pleas, the
Commonwealth of Pennsylvania had not enacted any statute
for the purpose of requiring those convicted of specific
offenses to be classified as a sexual predator and did not
require anyone to report their address to law enforcement
except for the purpose of complying with any probation or
parole or parole supervision as part of their sentence.

4. On or about April 21, 1996, the Commonwealth enacted a
statute requiring the reporting of various information to law
enforcement by those convicted of specific criminal offenses
related to sexual assault or violence.

5. The initial statute, Act 24 of 1995, was referred to commonly
as “Megan’s Law[.]”

6. The statute has gone through several iterations in the
Commonwealth since the original act became effective in the
Commonwealth.

7. The current statute, Senate Bill No. 1183, S.B. 1183, became
effective December 20, 2012, and is currently part of the
nationwide standardization of such registration required of
those convicted of specific and violent offenses and is
commonly referred to as . . . SORNA[.]

8. [Appellant] has been under both incarceration and parole
supervision since the time of his conviction.

9. [Appellant] was informed of his duty to register as a
requirement of the previous Megan’s [L]aw statutes and the
SORNA statute in 2007 and again on September 24, 2013[.]

10. On or about October 4, 2013[,] Sergeant John Solecki of
the Reading Police Department did file criminal charges for
[Appellant’s] failure to register his place of residence as he
did not return to the halfway house after his sign-out on
September 29, 2013[,] and his whereabouts were thereafter
unknown.

11. [Appellant] was required to return to the halfway house
facility where he was residing within two hours from his
signing out in the afternoon of September 29, 2013.

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12. [Appellant] was to have been residing at 417-419 Walnut
Street, a state owned halfway house in the City of Reading,
Berks County, PA, and had established the halfway house as
his residence on the Megan’s Law/SORNA registration
documentation[.]

13. [Appellant] left the facility on September 29, 2013[,] by
signing himself out of the facility and did not return as
detailed in the reports generated by the halfway [house.]

14. Subsequently, [Appellant] failed to report his change of
address, or any current address, to the Pennsylvania State
Police or any other law enforcement agency within or without
the Commonwealth as required by the SORNA statute.

15. After the warrants were issued for [Appellant’s] arrest, he
was subsequently apprehended during a traffic stop in
Dauphin County, Pennsylvania on October 4, 2013[,] and was
returned to Berks County Prison.

Commonwealth’s Exhibit No. 1, filed 2/2/15, at 1-2.

At the conclusion of the bench trial, based on the parties’ stipulated

facts, the trial court convicted Appellant of the offense indicated supra. On

April 16, 2015, the trial court sentenced Appellant to forty months to eighty

months in prison, and on that same date, Appellant signed an

acknowledgment of his post-sentence and appellate rights. Thirteen days

later, on April 29, 2015, Appellant filed a counseled motion to file post-

sentence motions nunc pro tunc wherein he indicated that counsel had

intended to file a timely post-sentence motion on Appellant’s behalf but was

delayed by the death of his uncle. By order entered on May 1, 2015, the

trial court granted Appellant’s motion to file post-sentence motions nunc pro

tunc. However, Appellant elected not to file post-sentence motions, and

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instead, on Monday, May 18, 2015, Appellant filed a timely, 3 counseled

notice of appeal to this Court. All Pa.R.A.P. 1925 requirements have been

met.

Appellant’s first claim is the evidence was insufficient to sustain his

conviction for failure to comply with the registration of sexual offenders

requirements under 18 Pa.C.S.A. § 4915.1.

Our standard for reviewing challenges to the sufficiency of the

evidence is well settled.

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and

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3
Since Appellant did not file timely post-sentence motions, his notice of
appeal was required to be filed within thirty days of the imposition of his
judgment of sentence. Pa.R.A.P. 903(c)(3). Here, we take judicial notice of
the fact that the thirtieth day fell on Saturday, May 16, 2015. Thus,
Appellant had until Monday, May 18, 2015, to file a timely appeal. 1
Pa.C.S.A. § 1908.

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the weight of the evidence produced, is free to believe all, part
or none of the evidence.

Commonwealth v. Caban, 60 A.3d 120, 132–33 (Pa.Super. 2012)

(quotation omitted).

Appellant’s specific sufficiency claim is that, under Section 9799.15(g)

of SORNA, he was required to report a change in his residence or a

commencement of temporary lodging within three business days; however,

the Commonwealth failed to prove three business days passed from the

time he left the halfway house where he was residing until the time he was

arrested by police during a traffic stop in Dauphin County. See Appellant’s

Brief at 12-13.

Assuming, arguendo, Appellant’s interpretation of the statute is

correct, we note that, as stipulated to by the parties, Appellant left the

halfway house on September 29, 2013, failed to return to the halfway

house, and was then arrested in Dauphin County during a traffic stop on

October 4, 2013. Appellant acknowledges he stipulated to this evidence, but

argues the trial court improperly “looked beyond the record” in concluding

September 29, 2013, was a Sunday, and October 4, 2013, was a Friday in

order to arrive at the legal conclusion that three business days had passed.

Id. We dispose of this assertion by noting the trial court was permitted to

utilize common sense, as well as a 2013 calendar, in order take “judicial

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notice” of the fact September 29, 2013, fell on a Sunday and October 4,

2013, fell on a Friday.4 Commonwealth v. Brown, 839 A.2d 433

(Pa.Super. 2003) (holding a judicially noticed fact is one not subject to

reasonable dispute in that it is capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be questioned).

Appellant’s next claim is the trial court erred in concluding SORNA is

not an unconstitutional ex post facto law. Essentially, Appellant argues the

Ex Post Facto Clause of the federal constitution prohibits the retroactive

application of the SORNA registration requirement to him such that he could

not legally have been found to violate the registration requirements under

18 Pa.C.S.A. § 4915.1. In this vein, he concedes that the legislative intent

in enacting SORNA was not punitive in nature. See Appellant’s Brief at 15.

However, he contends that under the multi-factor test mandated by

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d

644 (1963), the effects of SORNA are sufficiently punitive as to override the

legislature’s preferred categorization. See Appellant’s Brief at 14-22.

Initially, we note this issue presents a question of law, and therefore,

our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Elia, 83 A.3d 254, 266 (Pa.Super. 2013).

____________________________________________

4
Appellant does not dispute the trial court is correct that September 29,
2013, fell on a Sunday or that October 4, 2013, fell on a Friday.

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In Commonwealth v. Perez, 97 A.3d 747 (Pa.Super. 2014), this

Court thoroughly analyzed whether SORNA constitutes an ex post facto law

under the federal constitution. We observed that such a challenge must be

evaluated under a two-step test, which was established by the U.S. Supreme

Court in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164

(2003). Perez, 97 A.3d at 751 (indicating that under Smith the two-step

test requires the court to determine (1) whether the legislature intended the

statutory scheme to be punitive, and (2) if not, whether the statutory

scheme is so punitive in either its purpose or effect so as to negate the

legislature’s intention).

With regard to the first step under Smith, we held the legislature

specifically indicated that SORNA “shall not be construed as punitive[,]” and,

therefore, the legislative intent in enacting the law was not to impose

punishment. Perez, 97 A.3d at 751 (citing 42 Pa.C.S.A. § 9799.11(b)(2)

(emphasis omitted)). Turning to the second step under Smith, this Court

addressed whether SORNA constitutes “punishment” under the multi-factor

test articulated in Mendoza-Martinez. After a thorough review, we

concluded SORNA does not constitute “punishment.” Perez, supra.

Specifically upon balancing the Mendoza-Martinez factors, this Court held

the following:

Based on all of the[ ] considerations, we ultimately
conclude that [the appellant] has not shown by the “clearest
proof” that the effects of SORNA are sufficiently punitive to
overcome the General Assembly’s preferred categorization.

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J-S14036-16

Therefore, we further conclude that the retroactive application of
SORNA to [the appellant] does not violate the Ex Post Facto
Clause of the Federal Constitution.

Perez, 97 A.3d at 759 (citations omitted). Accordingly, as in Perez, we find

Appellant is not entitled to relief on his federal ex post facto claim.5

In his final claim, Appellant phrases his issue as whether applying

SORNA retroactively resulted in a denial of his right to counsel with regard to

his underlying 1989 guilty plea. However, a review of his argument reveals

that his concern is more akin to a claim that the application of SORNA is

unconstitutionally punitive as opposed to a mere collateral consequence.

Such a constitutional characterization of SORNA, however, has previously

been rejected by this Court. See Commonwealth v. McDonough, 96 A.3d

1067, 1071 (Pa.Super. 2014) (“The registration provisions of Megan's Law

do not constitute criminal punishment. The registration requirement is

properly characterized as a collateral consequence of the defendant's plea,

as it cannot be considered to have a definite, immediate and largely

automatic effect on a defendant's punishment.”) (quotation omitted)).
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5
Appellant also summarily avers retroactive application of SORNA violates
the Pennsylvania Constitution’s Ex Post Facto Clause. However, as the
Commonwealth notes, Appellant failed to set forth an analysis under
Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).
Commonwealth’s Brief at 13. As this Court held in Perez, “[t]he Edmunds
analysis is mandatory and a failure to provide it precludes the consideration
of a state constitutional claim independent of its federal counterpart.”
Perez, 97 A.3d at 760 (citations omitted). Accordingly, we decline to
address Appellant’s averment further.

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For all of the foregoing reasons, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2016

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