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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL JOHN KAWALIG
Appellant No. 1598 MDA 2016
Appeal from the Judgment of Sentence May 23, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002106-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 28, 2017
Michael Kawalig appeals from his judgment of sentence, entered in the
Court of Common Pleas of Luzerne County, following his conviction for two
counts of reporting violations under Megan’s Law/SORNA.1 Upon review, we
affirm in part and vacate in part.
Kawalig is a lifetime registrant under SORNA. Among Kawalig’s
requirements as a lifetime registrant is the quarterly duty to register his
residence, and to notify the Pennsylvania State Police of any change in
residence within three business days. Kawalig has been required to comply
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*
Retired Senior Judge assigned to the Superior Court.
1
Megan’s Law previously provided for the registration of sexual offenders
and was codified at 42 PA.C.S.A. § 9791 et seq. Megan’s Law was replaced
with the Sexual Offender Registration and Notification Act. See 42 Pa.C.S.A.
§ 9799.10-9799.41.
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with these registration requirements since October of 1999, and until 2015,
had never missed a registration deadline. In 2015, the year of the offenses,
Kawalig’s quarterly registration deadlines fell on April 18, July 18, and
October 18, 2015, and January 18, 2016.
On March 30, 2015, Kawalig registered a new address with the
Pennsylvania State Police. Kawalig’s quarterly registration obligations were
not satisfied with his March 30 visit, but he was not told that he had to come
back in April to complete his quarterly registration requirement. However,
he signed a document stating that he must appear in person within three
business days to notify the Pennsylvania State Police of any change in
residence. The document also explained that the Pennsylvania State Police
would send a letter to Kawalig’s registered address shortly before his
registration date, and that a failure to receive the letter would not relieve
him of his duty to comply with the law. Kawalig had signed documents with
similar acknowledgments every time he registered in the past.
A letter was sent to Kawalig on March 31, 2015, reiterating that
Kawalig was still required to register with the State Police in April, despite
his March 30 visit. The State Police sent an additional letter on April 3,
2015, warning Kawalig that he had to register during the April 8 to April 17
window. Kawalig did not register at any point in April, and on May 14, 2015,
the State Police contacted Officer Dion Fernandes, a member of the local
Pittston police force, and asked him to investigate Kawalig’s noncompliance.
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Officer Fernandes was unable to locate Kawalig at his home address, but
was able to find him at his work address on May 18, 2015.
At trial, Officer Fernandes testified that, after Kawalig waived his
Miranda2 warnings, Kawalig stated that he did not realize that he had to
register with the State Police. Kawalig also stated that he had moved to a
new address in Wyoming on May 5, 2015. Kawalig did not inform the police
of this move, despite his registration requirements. At no point was Kawalig
requested to prepare a written statement.
Testifying in his own defense, Kawalig denied that he had ever told
Officer Fernandes that he had moved to Wyoming in May. But Kawalig
appeared to retract his earlier denial later in the same testimony, stating
that he had told Officer Fernandes that he had moved. Kawalig denied
receiving any letters that the State Police had sent him, and claimed that he
had registered in April, and had the paperwork proving it. No such
paperwork was introduced into evidence.
Before closing arguments, the Commonwealth introduced Kawalig’s
prior conviction for criminal trespass in 2009. Kawalig’s counsel requested a
charge of ignorance or mistake, which the trial court ultimately denied.
Kawalig’s counsel did not object. On April 19, 2016, a jury convicted
Kawalig of knowingly failing to register quarterly and knowingly failing to
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
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notify the Pennsylvania State Police of his new address and, on May 23,
2016, he was sentenced to 40 to 80 months’ incarceration. Kawalig filed
post-sentence motions and, after a hearing on July 25, 2016, the court
granted partial relief, reducing his sentence to 36 to 72 months’
incarceration pursuant to the mandatory minimum set forth in 42 Pa.C.S.A.
§ 9718.4(a)(1)(iii). Kawalig filed a timely notice of appeal on September 21,
2016. After an extension of time was granted, Kawalig filed a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal on October 31,
2016. The trial court filed its opinion on December 14, 2016.
Kawalig raises the following issues for our review:
1. Whether the [t]rial [c]ourt erred in denying [Kawalig’s]
[m]otion for [j]ury [i]nstructions of [m]istake?
2. Whether the [t]rial [c]ourt erred in sentencing . . .
[Kawalig] under 42 Pa. C.S.A. §9718.4 creating an illegal
sentence.
3. Whether the Commonwealth presented insufficient
evidence [to] prove a knowing mens rea and support a [j]ury’s
finding of guilt.
Brief of Appellant, at 1.
Kawalig first claims that the trial court erred in not giving the jury
instructions on the issue of mistake. The applicable rule of criminal
procedure provides, in relevant part, that:
(C) No portions of the charge nor omissions from the charge
may be assigned as error, unless specific objections are made
thereto before the jury retires to deliberate. All such objections
shall be made beyond the hearing of the jury.
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Pa.R.Crim.P. 647(C). “In order to preserve a claim that a jury instruction
was erroneously given, the Appellant must have objected to the charge at
trial.” Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014). The
mere submission, and subsequent denial, of proposed points for charge will
not suffice. Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005).
Instead,
[t]he pertinent rules . . . require a specific objection to the
charge or an exception to the trial court’s ruling on a proposed
point to preserve an issue involving a jury instruction. Although
obligating counsel to take this additional step where a specific
point for charge has been rejected may appear counterintuitive,
as the requested instruction can be viewed as alerting the trial
court to a defendant’s substantive legal position, it serves the
salutary purpose of affording the court an opportunity to avoid
or remediate potential error, thereby eliminating the need for
appellate review of an otherwise correctable issue.
Id. at 224 (citation omitted).
Here, Kawalig has failed to preserve this claim in the court below.
Specifically, when the court noted for the record that Kawalig’s request for a
charge of ignorance or mistake was denied, counsel did not object. See N.T.
Trial, 4/19/16, at 93-94. After the charge was delivered to the jury, the trial
Court asked both counsel if they had any comments, to which Kawalig’s
counsel replied “No, Your Honor.” Id. at 139. Accordingly, we find that
Kawalig has waived this claim.
Kawalig next asserts that his sentence under section 9718.4 is illegal.
The Commonwealth concedes that decisions by our Court and the Supreme
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Court of Pennsylvania, decided after the disposition of Kawalig’s post-
sentence motions, have rendered Kawalig’s sentence illegal.3
At the time of Kawalig’s post-sentence motion, our decision in
Commonwealth v. Pennybaker, 121 A.3d 530, 534 (Pa. Super. 2015),
held that mandatory minimums were constitutional when sentencing for
failure to register under SORNA. However, on allowance of appeal, the
Supreme Court of Pennsylvania vacated and remanded to the trial court for
resentencing without application of the mandatory minimum, in light of its
recent decisions in Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015),
and Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). See
Commonwealth v. Pennybaker, 145 A.3d 720, (Pa. 2016) (per curiam).
Our recent decision in Commonwealth v. Blakney, 152 A.3d 1053 (Pa.
Super. 2016), held all of section 9718.4 unconstitutional under Alleyne v.
United States, 133 S. Ct. 2151 (2013), as violating the right to trial by
jury. Consequently, Kawalig’s mandatory minimum sentence must be
vacated. Accordingly, we remand for resentencing, without consideration of
the mandatory minimum set forth in section 9718.4.
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3
The trial court and Commonwealth alternatively claim that this issue has
been waived due to Kawalig’s “vague or overly broad” Rule 1925(b)
statement. Trial Court Opinion, 12/14/16, at 6; Brief of Appellee, at 13.
However, challenges to an illegal sentence can never be waived.
Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003).
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Finally, Kawalig claims that there was insufficient evidence to support
a finding that he possessed the required mens rea. Our standard of review
upon a challenge 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
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001),
quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super.
2000) (citations and quotation marks omitted).
In this case, Kawalig was convicted of two crimes: (1) knowingly
failing to register quarterly, and (2) knowingly failing to notify the
Pennsylvania State Police of his new address.4 In order to convict Kawalig of
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4
18 Pa.C.S.A. § 4915.1(a)(1 and 2).
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these crimes, the jury must have determined that Kawalig acted knowingly.
“Knowingly” is defined in our Crimes Code as follows:
(2) A person acts knowingly with respect to a material element
of an offense when:
(i) if the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is of
that nature or that such circumstances exist.
18 Pa.C.S. § 302(b)(2)(i). Our Court has interpreted this provision to mean
that “a person ‘knows’ . . . if he is ‘aware’ of [a] fact.” Commonwealth v.
Robinson, 128 A.3d 261, 265 (Pa. Super. 2015), citing 18 Pa.C.S.A. §
302(b)(2)(i).
Upon review of the record and viewing all evidence in a light most
favorable to the Commonwealth, Distefano, supra, we find that, on both
counts, there was sufficient evidence to support a finding that Kawalig
knowingly failed to register. The State Police sent Kawalig two letters
notifying him about his upcoming registration date. Even if Kawalig did not
receive these letters, he had previously signed documents acknowledging
that his failure to receive the letter did not relieve him of his obligation to
register. In addition, Kawalig had been subject to Megan’s Law/SORNA
registration requirements since 1999, therefore, he had knowledge of his
registration requirements and the process for registration.
Kawalig’s main evidence at trial was his own testimony claiming that
he believed his March 30, 2015, visit satisfied the quarterly registration
requirement. However, the jury was free to believe all, part or none of his
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testimony. Commonwealth v. Harper, 485 Pa. 572, 576-77 (Pa. 1979).
Moreover, the Commonwealth provided evidence to discredit Kawalig’s
testimony. On cross-examination, Kawalig was inconsistent in denying and
then admitting that he had spoken to Officer Fernandes on May 18, 2015
about his move earlier that month. Additionally, while he claimed that he
had documents proving that he actually had registered in April, he did not
present this evidence. The Commonwealth further discredited him by
introducing a criminal trespass conviction from 2009. Therefore, we find
that there was sufficient evidence to allow a jury to conclude beyond a
reasonable doubt that, on both counts, Kawalig knowingly failed to register.
In conclusion, Kawalig’s claim of error in jury instructions has been
waived, and there was sufficient evidence to support a finding that he
knowingly failed to meet his registration requirements. Because of our
recent decision in Blakney, we find his sentence under section 9718.4 to be
illegal, and remand the case for resentencing.
Affirmed in part and vacated in part. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2017
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