J-S29023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

GREGORY ALLEN KOONS

                            Appellant                 No. 1383 WDA 2015


             Appeal from the Judgment of Sentence March 5, 2015
               In the Court of Common Pleas of McKean County
              Criminal Division at No(s): CP-42-CR-0000519-2013


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                               FILED JUNE 21, 2016

        Appellant, Gregory Allen Koons, appeals from the judgment of

sentence entered following his conviction for failure to comply with the

sexual offender registration requirements under Pennsylvania’s Sex Offender

Registration and Notification Act (SORNA).1 After review, we are constrained

to reverse the judgment of sentence and order Koons discharged.

        The relevant factual and procedural history is as follows. In November

1991, a New York state court convicted Koons of attempted rape in the first

degree.2 After Koons was released from New York state prison in 1996, he

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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9799.10-9799.41.
2
    N.Y. Penal Law §§ 110.00, 130.35(2).
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was advised of his duty to register as a sexual offender in New York for 10

years. Koons timely registered with the New York State Sex Offender

Registry and kept his registration up to date until his registration

requirement expired in 2006. Koons later moved from New York to

Pennsylvania.

       It is undisputed that by virtue of his prior sex-related conviction in

New York, Koons was, and remains, subject to the registration requirements

of Pennsylvania’s SORNA. Under SORNA, Koons was required to register as a

sexual offender in Pennsylvania upon moving to the state.3 Koons failed to

do so. Pennsylvania State Police eventually discovered that Koons was not

registered. Consequently, in June 2013, Koons was arrested and charged

with violating 18 Pa.C.S.A. § 4915.1(a)(1).4 This statutory provision states

as follows.

       (a) Offense defined.--An individual who is subject to registration
       under 42 Pa.C.S.[A.] § 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.[A.] § 9799.15 (relating to period of registration),

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3
  Koons’s New York offense is similar to 18 Pa.C.S.A. § 3121(a)(3).
Consequently, under Pennsylvania law, Koons was required to register as a
sexual offender for life. See 42 Pa.C.S.A. §§ 9799.14(d)(2), 9799.15(a)(3).
4
  Koons was initially charged with violating 18 Pa.C.S.A. § 4915(a)(1);
however, the complaint was later amended to reflect the updated version of
the statute, 18 Pa.C.S.A. § 4915.1(a)(1).




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      9799.19 (relating to initial registration) or 9799.25 (relating to
      verification by sexual offenders and Pennsylvania State Police);

18 Pa.C.S.A. § 4915.1(a)(1) (emphasis added).

      A jury convicted Koons of violating section 4915.1(a)(1). Thereafter,

the trial court sentenced Koons to 3 to 6 years’ imprisonment. Koons’s post-

sentence motion was denied. This timely appeal followed.

      On appeal, Koons raises three issues for our review. In his first issue,

Koons challenges the sufficiency of the Commonwealth’s evidence. In his

second issue, Koons asserts that his conviction was against the weight of the

evidence. In his third issue, Koons argues that the trial court erred in

admitting his Certificate of Conviction from New York State into evidence.

      We will first address Koons’s challenge to the sufficiency of the

Commonwealth’s evidence. Koons does not challenge the fact that, under

current Pennsylvania law, he had a duty to register as a sexual offender

upon moving to Pennsylvania. Instead, Koons argues that his conviction

cannot stand because the Commonwealth did not prove that he “knowingly”

failed to register. See Appellant’s Brief, at 11-13.

      We review sufficiency claims as follows.

      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


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     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. Reynolds, 835 A.2d 720, 725-726 (Pa. Super. 2003)

(citation and brackets omitted).

     Section 302(b)(2) of the Crimes Code defines “knowingly” 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; and

     (ii) if the element involves a result of his conduct, he is aware
     that it is practically certain that his conduct will cause such a
     result.

18 Pa.C.S.A. § 302(b)(2)(i)-(ii) (emphasis added).

     The Commonwealth claims that it presented sufficient evidence to

sustain Koons’s conviction by showing that in 1996, Koons signed a New

York Sex Offender Registration Form. See Appellee’s Brief, at 6-8. According

to the Commonwealth, Koons signed this form after his parole officer, John

Sobel, advised him of his duty to register as sexual offender in New York.

See id. The Commonwealth argues that this evidence was sufficient to

support the jury’s conclusion that Koons knew of his duty to register in




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Pennsylvania, yet chose not to do so. See id. We, however, find this

evidence to be woefully inadequate.

       Even in viewing the evidence presented at trial in the light most

favorable to the Commonwealth, we cannot discern a single piece of

evidence showing that Koons was aware of his duty to register as a sexual

offender in Pennsylvania. The only document admitted at trial relating to his

duty to register was the New York State Sex Offender Registration Form that

he signed in 1996, which simply stated that he was required to register as a

sexual offender in New York for 10 years. See N.T., Trial, 2/10/15, at 34-35,

37. The form made no mention of his duty to register in another state should

he move. See id., at 38-39. As noted, the New York mandate ended in

2006, before he moved to Pennsylvania. Moreover, although Sobel testified

that he read Koons the registration requirements listed on the form, Sobel

did not testify that he advised Koons of his duty to register in another state

should he move. See id.

       Because we find that the evidence presented was insufficient to show

that Koons possessed actual knowledge of his obligation to register in

Pennsylvania,      Koons     could    not      have   “knowingly”   violated   section

4915.1(a)(1). Accordingly, we must reverse the judgment of sentence. 5



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5
   Our disposition renders it unnecessary to address the remaining two
issues.



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Nevertheless, it should now be abundantly clear that Koons has a duty to

register as sexual offender in Pennsylvania for the remainder of his life.

      Judgment of sentence reversed. Appellant discharged. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016




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