J-S66011-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



____________________________________________


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.
____________________________________________


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

____________________________________________


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

____________________________________________


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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