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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ELLIS CHUNDU DONES
Appellant No. 1968 MDA 2015
Appeal from the Judgment of Sentence June 3, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002358-2014
BEFORE: BOWES, PANELLA AND JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 15, 2017
Ellis Chundu Dones appeals from the judgment of sentence of five to
ten years incarceration imposed following his conviction for failing to comply
with sexual offender registration requirements under the Sex Offender
Registration and Notification Act (hereinafter “SORNA”).1 We affirm the
conviction but vacate judgment of sentence.
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1
On December 20, 2012, the Sex Offender Registration and Notification Act
became effective. 42 Pa.C.S. §§ 9799.10–9799.41. Pennsylvania courts
have referred to this act as “Megan’s Law IV.” Commonwealth v. Britton,
134 A.3d 83, 84 (Pa.Super. 2016). In this decision, we generically refer to
the body of sexual offender laws as “Megan’s Law.”
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The Commonwealth established the following facts at trial. Appellant
is required to register as a sex offender in Pennsylvania due to a 2004 New
York conviction for unlawful imprisonment of the first degree, N.Y. Penal Law
§ 135.10. Appellant’s conviction required him to register as a sex offender
in New York. N.Y. Correction Law § 168-a (requiring any person convicted
of, inter alia, N.Y. Penal Law § 135.10, to register as sex offender where the
victim is under seventeen). Appellant was subsequently classified as a level
three offender by New York’s Board of Examiners of Sex Offenders and was
required to register annually for life. N.T., 6/2-3/15, at 280.
Sometime thereafter, Appellant moved to Pennsylvania. State Police
Corporal James Gallagher, a field liaison for the Pennsylvania State Police’s
Megan’s Law division, testified as a records custodian. Id. at 131-32. The
records established that Appellant first submitted documentation in
Pennsylvania on August 13, 2008.2 Id. at 141.
On May 15, 2009, Officer William Stickler of the Anville Township
Police began an investigation at the address listed by Appellant on the
August 13, 2008 form. Id. at 125. While investigating, Officer Stickler
learned that Appellant had not resided there as of April 30, 2009.
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2
The applicable version of Megan’s Law at that time, codified at 42 Pa.C.S.
§ 9795.1, effective January 1, 2007 through December 7, 2008, required
certain out-of-state offenders to register. Appellant’s duty to register is not
at issue.
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Appellant’s failure to update his residency resulted in a charge of one
count of failing to register, 18 Pa.C.S. § 4915(a)(1). On February 2, 2011,
Appellant entered a guilty plea and was sentenced, on March 23, 2011, to
twenty-seven months to five years incarceration.
Sometime in 2013, Pennsylvania State Parole Agent Scott Yarnell
assumed supervision of Appellant. Id. at 83. Appellant’s precise date of
parole was not explicitly established; however, the Commonwealth
introduced a document dated September 6, 2013 showing that Appellant
listed his residence as a halfway house in Greene County. Id. at 143, 327.
The records also established that Appellant submitted a form, dated
December 9, 2013, signed by a Pennsylvania Board of Probation and Parole
Agent. Id. at 145, 331-32.
On December 13, 2013, Appellant visited the Reading state parole
office. Id. at 85-86. In Agent Yarnell’s presence, Appellant updated his
address to 317 North 6th Street. Id. at 302. Appellant also received a
packet of documents informing Appellant of his obligations. Id. at 86-87.
This form informed Appellant that, inter alia, he “must appear in-person,
within three (3) business days, at any approved registration site to notify the
Pennsylvania State Police of . . . [a]ny change in residence[.]” Id. at 300
(emphasis in original). At the conclusion of the meeting, Appellant was told
that he would need to update any change of address at an approved
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registration site, and that the failure to do so could result in prosecution.
Id. at 119-20.
On March 12, 2014, Appellant updated his address to 415-417 Walnut
Street. N.T. at 146. On April 1, 2014, Agent Yarnell assisted Appellant in
moving to ADAPPT, a group home located on Walnut Street.3 Id. at 90.
Later that evening, Agent Yarnell received a phone call from the home’s
supervisor indicating that Appellant left the facility. Id. at 91.
Two days later, Agent Yarnell received a phone call from Appellant,
during which Agent Yarnell advised Appellant that he was in violation of
parole and “would be turning [the] parole violation into a new criminal
charge.” Id. at 92. Appellant did not provide Agent Yarnell with a new
address. Id. at 114. On April 17, 2014, the Megan’s Law unit sent a letter
to the Reading police department, requesting investigation to determine if
Appellant had, in fact, failed to update his residency. Id. at 95.
On May 1, 2014, Appellant sent Agent Yarnell an email, stating he had
learned that the police were looking for him. Appellant wrote he did not
want to go back to jail, and that Agent Yarnell or his co-workers “will have to
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3
According to the Berks County Social Services Directory website
maintained by Reading Area Community College, ADAPPT House is a
residential facility, contracted to the Pennsylvania Department of
Corrections, which houses certain chemically dependent parolees and parole
candidates for the purposes of preparing them for independent living.
http://www.racc.edu/BCSS/a020.aspx
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shoot me dead if you can catch me.” Id. at 305. Appellant was arrested at
a bar in Reading ten days later. His residency information was not updated
from April 1, 2014, through the date of his arrest. Id. at 171.
The jury found Appellant guilty at the sole count, and, on June 3,
2015, Appellant was sentenced to a mandatory minimum sentence of five to
ten years incarceration. Post-sentence motions were duly filed and denied.
Appellant timely appealed, the trial court and Appellant complied with
Pa.R.A.P. 1925, and the matter is now ready for review. Appellant submits
four issues for our consideration, reordered for ease of discussion.
[A]. Whether retroactive application of SORNA to offenders who,
at the time sentence was imposed, had no duty to register is
unconstitutional on its face and as-applied to Appellant, where
such retroactive application constitutes an unlawful ex post facto
law under the U.S. and Pennsylvania Constitutions?
[B]. Whether the verdict of guilty for Failure to Comply with
Registration Requirements is contrary to the weight of the
evidence presented at trial?
[C]. Whether the trial court erred by instructing the jury to
consider and determine whether the Commonwealth had
demonstrated beyond a reasonable doubt that the Appellant had
a prior conviction for Failure to Comply with Registration
Requirements.
[D]. Whether the trial court abused its discretion in denying
Appellant’s Motion in Limine and allowing Commonwealth to
present evidence as to Appellant’s prior conviction for Failure to
Comply with Registration Requirements.
Appellant’s brief at 5.
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Appellant’s first issue raises ex post facto challenges to Megan’s Law.
“No ex post facto law, nor any law impairing the obligation of contracts, or
making irrevocable any grant of special privileges or immunities, shall be
passed.” Pa. Const. Art. I, § 17. The standard applied to determine a
violation is identical under both the Pennsylvania Constitution and the United
States Constitution. Commonwealth v. Rose, 81 A.3d 123, 127
(Pa.Super. 2013).
Preliminarily, we note this issue presents a question of law and our
standard of review is de novo. Commonwealth v. Britton, 134 A.3d 83,
87 (Pa.Super. 2016). However, this issue has already been addressed by
this Court. In Britton, we observed that our decision in Commonwealth v.
Perez, 97 A.3d 747 (Pa.Super. 2014), “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 [Kennedy v.] Mendoza–
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Martinez[, 372 U.S. 144 (1963)]. 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. 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.
Britton, supra at 87–88. Appellant’s brief recognizes that this matter has
been settled but asks us to revisit the issue in light of the fact our Supreme
Court has granted consolidated review of three cases on these questions:
1) Does the application of the Sex Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S. § 9799.10 et seq., to
[petitioner] violate [petitioner's] procedural due process rights
under the Federal and Pennsylvania Constitutions, when
[petitioner] was no longer serving a criminal sentence at the
time SORNA became effective?
2) Does SORNA violate the Ex Post Facto Clause of the Federal
Constitution when SORNA's purpose or effect is so punitive that
it constitutes a retroactive increase in punishment when applied
to [petitioner]?
3) Does SORNA violate the Ex Post Facto Clause of the
Constitution of the Commonwealth of Pennsylvania when
SORNA's purpose or effect is so punitive that it constitutes a
retroactive increase in punishment when applied to [petitioner]?
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Commonwealth v. Gilbert, 135 A.3d 178 (Pa. 2016). We remain bound
by our precedent. “It is beyond the power of a Superior Court panel to
overrule a prior decision of the Superior Court . . . except in circumstances
where intervening authority by our Supreme Court calls into question a
previous decision of this Court.” Commonwealth v. Pepe, 897 A.2d 463,
465 (Pa.Super. 2006). Since the Court has yet to decide these cases, there
is no intervening authority calling Perez into question. No relief is due.
We next address Appellant’s attack on the weight of the evidence.
This issue was raised in a post-sentence motion. Commonwealth v.
Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012). Our standard of review is
well-settled. We review the exercise of the trial court's discretion in ruling
on the weight claim, not the underlying question of whether the verdict is
against the weight of the evidence. Commonwealth v. Leatherby, 116
A.3d 73, 82 (Pa.Super. 2015) (citing Commonwealth v. Brown, 23 A.3d
544, 558 (Pa.Super. 2011)). “One of the least assailable reasons for
granting or denying a new trial is the lower court's conviction that the
verdict was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.” Id. at 82.
Appellant highlights that Agent Yarnell agreed Appellant signed the
SORNA forms without reading them. Appellant also maintains that he was
led to believe that the parole office would take care of registration
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requirements with the Pennsylvania State Police, as evidenced by the fact
Agent Yarnell assisted Appellant with moving to ADAPPT.
However, Appellant ignores that Agent Yarnell testified Appellant was
specifically told that any change of address must be reported within three
business days to an approved registration site. N.T., 6/2-3/15, at 119.
Additionally, the agent told Appellant on the phone that he was in violation
of parole and risked a new criminal charge. Id. at 92. Therefore, the jury
could choose to credit this testimony and find Appellant knew of the
requirements. The trial court plainly did not abuse its discretion in denying
the weight claim.
We now address the introduction of Appellant’s prior conviction for
failing to register under Megan’s Law. Appellant filed a motion in limine
seeking to bar admission of the prior conviction. N.T., 6/2-3/15, at 4. The
trial court denied the motion, and, in its Pa.R.A.P. 1925(a) opinion,
determined that the evidence of the “prior conviction of failure to comply
with registration requirements was necessary to prove the ‘knowing’ element
of the charge.” Trial Court Opinion, 3/17/16 at 6.
Our review of a trial court’s evidentiary rulings applies the following
standard.
The admissibility of evidence is solely within the discretion of the
trial court and will be reversed only if the trial court has abused
its discretion. An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the
law, or the exercise of judgment that is manifestly unreasonable,
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or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record.
Commonwealth v. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016). Pa.R.E.
404 governs the admissibility of prior crimes.
Under the Pennsylvania Rules of Evidence, evidence of other bad
acts or crimes that are not currently being prosecuted against
the defendant are not admissible against the defendant to show
his bad character or propensity to commit criminal acts.”
However, evidence of other crimes may be admissible where
that evidence is used for some other purpose. Such purposes
explicitly include “proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Rule 404(b)(2).
Commonwealth v. Diehl, 140 A.3d 34, 41 (Pa.Super. 2016) (citations
omitted). Evidence is admissible for these other purposes “only if the
probative value of the evidence outweighs its potential for unfair prejudice.”
Pa.R.E. 404(b)(2). The Rule is designed to avoid a predisposition in the
minds of the jurors that the accused is guilty, thus stripping him of the
presumption of innocence. Commonwealth v. Kinard, 95 A.3d 279, 284
(Pa.Super. 2014) (en banc) (citing Commonwealth v. Spruill, 391 A.2d
1048, 1049 (Pa. 1978)).
The Commonwealth submits that the trial court did not err under these
principles because the prior conviction formed a part of the case and served
to establish knowledge and absence of mistake. Appellant counters that the
prejudicial value of the evidence outweighed its probative value, since the
Commonwealth “had other evidence to demonstrate knowledge outside the
fact of a prior conviction.” Appellant’s brief at 19. He asserts,
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The following evidence admitted at trial tended to provide proof
of knowledge. The testimony of State Parole Officer Scott Yarnell
and his verbal communications with Dones after Dones did not
return to ADDAPT. (N.T. p. 92) His e-mail communications with
Dones after Dones did not return to ADDAPT. (N.T. p. 94) Letters
from Dones tending to show his understanding of the
requirement to register after a change of address. (N.T. pp. 182,
184) Completed Pennsylvania offender registration packets with
requirements for in-person reporting for a change in residence
for August 13, 2008, September 6, 2013, December 9, 2013,
December 13, 2013, and March 12, 2014. (Commonwealth’s
Exhibit 3, 7, 8, 9, 10). The fact of a prior conviction added
redundant value to the existing and admissible evidence
presented by Commonwealth.
Id. at 19-20. Appellant maintains that these other sources of evidence
served the same purpose as the fact of his prior conviction. Thus, the
prejudicial impact outweighed its probative value as the conviction was
effectively cumulative.
We disagree. There is a significant difference between evidence
establishing that Appellant was informed that he had a duty to register and
evidence showing that he knowingly failed to register. Appellant argued that
he did not knowingly violate the statute because he thought the registration
requirements applied only to his duties as a parolee. Appellant stressed this
point in closing.
Officer Yarnell had him sign the notices without reading it. He
believed his registration requirements were taken care of by
parole. He believed any mistakes he made, it was being taken
care of by parole. He thought if he made any mistake, he was
violating his parole. He did not know he was violating any
registration statute of the law.
Id. at 227-28.
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Furthermore, Appellant argued that his New York conviction, which
requires him to register under Megan’s Law in Pennsylvania as an out-of-
state offender, was not a sexual offense that would require registration had
he committed that crime in this Commonwealth. N.T., 6/2-3/15, at 167-69.
Appellant argued that the statutory schemes are confusing and Appellant did
not fully understand the requirements. “The only way that anything is wrong
with these registrations is because the statute says so. So you need to
know that statute to know that it is wrong. It’s not something that is
inherent.” Id. at 228. Obviously, the fact that Appellant was previously
convicted of violating SORNA is powerful evidence that he knew his New
York conviction imposed additional duties on him in this Commonwealth,
establishing that he knowingly violated his obligations. Thus, we agree with
the Commonwealth that the evidence of the prior conviction was relevant to
establish an absence of mistake or his knowledge of the requirements.
Accordingly, we find that the trial court acted within the bounds of
discretion when it concluded that the prior conviction was admissible and its
probative value outweighed the potential prejudice. Indeed, Appellant’s
weight of the evidence argument undermines his present argument that the
other evidence sufficed to provide proof of knowledge. Thus, no relief is
due.
The final issue concerns the Commonwealth’s invocation of a
mandatory minimum sentence due to Appellant’s prior conviction for failure
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to register and the fact he was required to register under SORNA. The
relevant provision provides, in pertinent part, as follows:
(2) Sentencing upon conviction for a second or subsequent
offense shall be as follows:
(i) Not less than five years for an individual who:
(A) is subject to section 9799.13 and
must register for a period of 15 or 25
years or life under section 9799.15 or a
similar provision from another
jurisdiction; and
(B) violated 18 Pa.C.S. § 4915.1(a)(1) or
(2).
42 Pa.C.S. § 9718.4(a).
In Alleyne v. United States, 133 S. Ct. 2151 (2013), the United
States Supreme Court held that any fact that increases a mandatory
minimum sentence is an element of the crime that must be submitted to the
jury. Alleyne is an application of Apprendi v. United States, 530 U.S.
466 (2000), in which the Court held that any fact that increases the penalty
for a crime is an element of the crime. Apprendi’s rule is subject to an
important exception: the fact of a prior conviction. Apprendi, supra at 490
(citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)).
In an effort to comply with Alleyne, the trial court informed the jury
that “there was a lot of evidence presented with regard to [the prior
conviction]” and, in the event of a guilty verdict, the jury would have to
decide “whether there was a prior conviction.” N.T., 6/2-3/15, at 241.
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Upon its verdict of guilty, the jury was given a separate slip and asked to
find if Appellant had a prior conviction for failure to register.
Appellant contends that this instruction requires that we vacate his
sentence, reasoning that the prior conviction exception means that a jury
must be shielded from facts pertaining to the prior exception. 4 The
Commonwealth concedes that the trial court erred, but asks us to find
harmless error.
We disagree with Appellant’s reading of Apprendi. The prior
conviction exception to Apprendi simply means that a prosecuting entity is
relieved from its normal burden of submitting and proving to the jury the
fact of a prior conviction. That does not suggest it is somehow constitutional
error to have that fact proven beyond a reasonable doubt. The jury was not
asked to find the fact of the prior conviction until after it rendered a verdict
of guilt. Thus, we agree that any error in submitting the issue to the jury
was harmless.
Nevertheless, we find that Appellant’s sentence is illegal. Following
submission of the briefs in this matter, we decided Commonwealth v.
Blakney, --- A.3d ---, 2016 WL 7322797 (Pa.Super. 2016), which declared
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4
We recognize Appellant’s argument that the risk of unfair prejudice is the
rationale behind the Almendarez-Torres rule. We note that the trial court
submitted the issue of the prior conviction to the jury after it returned its
verdict.
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42 Pa.C.S. § 9718.4 unconstitutional in its entirety. Applying
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), we held that the proof
at sentencing provision set forth in § 9718.4(b) is unconstitutional and not
severable from the remainder of the statute. Thus, Appellant’s sentence is
illegal, and we may reach the issue sua sponte. Commonwealth v.
Orellana, 86 A.3d 877, 883, n.7 (Pa.Super. 2014) (“[T]his Court is endowed
with the ability to consider an issue of illegality of sentence sua sponte.”).
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge Jenkins did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2017
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