J-S41030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


*
    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


____________________________________________


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.




____________________________________________


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


____________________________________________


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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