J-A31045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TOYA EDWARD STUMP, SR.,

                            Appellant                  No. 794 MDA 2015


             Appeal from the Judgment of Sentence March 16, 2015
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0002227-2014


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED JANUARY 20, 2016

        Appellant, Toya Edward Stump, Sr., appeals from the judgment of

sentence imposed following his jury conviction of one count of failure to

register with the Pennsylvania State Police pursuant to Megan’s Law.1

Appellant challenges the weight of the evidence to support his conviction and

the discretionary aspects of his sentence. We affirm.

        The trial court aptly summarized the facts of this case as follows:

              Appellant, Toya Stump, is classified as a Tier II sex
        offender who must comply with the attendant statutory
        registration and reporting requirements. The Commonwealth
        charged him with failing to comply with the registration and
        reporting requirements in January 2014.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 4915.1(a)(1); see also 42 Pa.C.S.A. §§ 9791-9799.
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           In support of its case, the Commonwealth presented the
     testimony of Pennsylvania State Trooper Tandy Carey (“Tpr.
     Carey”) whose job responsibilities include acting as [a] Megan’s
     Law liaison. At trial, Tpr. Carey explained the initial registration
     process, the continuing reporting requirements and the
     investigatory process if an individual does not comply with the
     statutory registration and reporting requirements.

           [Appellant’s] full Megan’s Law registration packet was
     admitted into evidence at trial. Upon review of the packet, Tpr.
     Carey testified that the document memorializes “. . . essentially
     everything for a person [who] is a registrant with Megan’s Law
     from day one . . . [including] any investigat[ion] reports that are
     sent out . . . [and] every registration form that the registrant
     has signed within the time that he or she has been on Megan’s
     Law.”

           According to the statute, [Appellant] is required to register
     two times per year for [twenty-five] years. Tpr. Carey outlined
     the signed and completed registrations and some of the specific
     information provided at the registrations beginning with
     [Appellant’s] initial registration following his release from
     incarceration[.] . . .

            The Megan’s Law registration packet includes a document
     that was signed by [Appellant] on July 7, 2012, which outlined
     all of his registration requirements and listed approved
     registration locations. The packet included a December 30, 2013
     letter addressed to [Appellant] which gave notice of the [ten]
     day timeframe in which he was required to appear for a timely
     registration. Tpr. Carey explained that the letter was addressed
     to 322 Second Street, Highspire, PA, 17034, but was returned as
     undeliverable. Tpr. Carey testified that a registrant is required
     to comply even if the reminder letter is not received. According
     to the packet, as of January 24, 2014, [Appellant] had not
     registered; therefore, an investigation request was sent by letter
     indicating a possible violation which required further exploration.

           Officer Jeffrey S. LeVan (“Officer LeVan”) of the Highspire
     Borough Police (“HBPD”) Department was assigned to
     investigate the possible Megan’s Law registration violation
     involving [Appellant].       Officer LeVan commenced his
     investigation on January 22, 2014 by contacting the Megan’s
     Law Unit at the [Pennsylvania State Police] to be sure no further

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       information on re-registration had been submitted; none had
       been submitted. LeVan and a HBPD detective proceeded to
       [Appellant’s] last known address—322 Second Street in
       Highspire. [Appellant] was not found at that location so Officer
       LeVan moved on to the Highspire post office where he
       discovered a change of address form indicating that [Appellant]
       had relocated to 310 North Third Street in Harrisburg as of
       January 27, 2014. According to Carol Meyers, (“Ms. Meyers”),
       the postmaster of the Highspire U.S. Post Office, the change of
       address form was completed on August 21, 2013 and was valid
       until February 22, 2014.        Ms. Meyers testified that the
       submission of a change of address form indicated the date on
       which an individual wants his or her mail forwarded to a different
       address.

             Officer LeVan conducted a search on the J-Net database
       using [Appellant’s] driver’s license number. The search revealed
       that the license was still registered to 322 Second Street in
       Highspire. Officer LeVan made two trips to the 322 Second
       Street location on[e] of which included a conversation with the
       landlord but, he was unable to locate [Appellant].

             William Eric Stoermer (“Officer Stoermer”), a Major Deputy
       Chief of Police at the Naval Support Activity Center in
       Mechanicsburg, Pennsylvania testified that he recalled
       encountering [Appellant] while employed at the Naval [C]enter.
       Officer Stoermer stated that on November 26, 2013, while on
       duty, he was involved in the termination of [Appellant’s]
       employment. Officer Stoermer emphasized that when a person
       is terminated from employment at the Naval Center, he is no
       longer permitted on the premises and, if [Appellant] indicated on
       a form that he had been employed after November 26, 2013, it
       would be inaccurate.[2]

             [Appellant] called George Navarro (“Mr. Navarro”), his
       father, as a witness. Mr. Navarro testified that when [Appellant]
       was released from prison, he lived with him at his 322 Second
       Street apartment in Highspire.      Mr. Navarro was aware of
       [Appellant’s] registration requirements. Mr. Navarro stated that
____________________________________________


2
 Appellant reported employment at the naval base in March 2014, after he
was terminated. (See N.T. Trial, 3/09/15, at 33-34).



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       he had taken [Appellant] to register three times, starting in
       summer of 2012, to [two different registration locations]. Mr.
       Navarro [testified] to his belief that a woman named Treva
       [Harris] had taken [Appellant] to register on one occasion. In
       January 2013, Mr. Navarro moved from the 322 Second Street
       apartment at which time [Appellant] moved out and began living
       in a garage in Harrisburg.

             [Appellant] also testified on his own behalf. His testimony
       confirmed that Mr. Navarro had taken him to register three times
       and that Ms. Harris had taken him once. [Appellant] also
       confirmed that after he moved out of the apartment with Mr.
       Navarro, he was homeless for a short time and then relocated to
       a garage on Logan Alley in Harrisburg for the winter. A lease
       agreement for the garage space dated January 11, 2013, was
       admitted at trial.

             [Appellant] testified that on two occasions he had
       registered at the Gibson Boulevard location in addition to the
       trips with Mr. Navarro and Ms. Harris. [Appellant] stated that he
       understood when and how he had to register but, he had no
       explanation about why there was no January 2014 registration in
       the Megan’s Law Packet. The only explanation he could offer
       was an error in the [police] records. Additionally, [Appellant]
       acknowledged that he was required to report his change of
       address and change of employment status and claimed that he
       registered with the [police] within three days of moving.

(Trial Court Opinion, 9/10/15, at 2-6) (footnotes and record citations

omitted).

       On March 11, 2015, the jury found Appellant guilty of the above-

mentioned offense.3 On March 16, 2015, the trial court sentenced Appellant

to a term of not less than thirty-three nor more than seventy-two months’

____________________________________________


3
  Appellant waived preparation of a pre-sentence investigation report (PSI)
and elected to submit background materials to the court in advance of
sentencing. (See N.T. Trial, 3/11/15, at 124).



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incarceration. The court denied Appellant’s timely post-sentence motion on

April 7, 2015. This timely appeal followed.4

       Appellant raises two issues for our review:

       I. Whether the trial court erred in denying Appellant’s post-
       sentence motion where his conviction was against the weight of
       the evidence so as to shock one’s sense of justice where
       Appellant was never shown to have engaged in acts which
       constitute the offense of which he was convicted?

       II. Whether the trial court erred in denying Appellant’s post-
       sentence motion where his sentence was excessive and
       unreasonable and constitutes too severe a punishment in light of
       the alleged gravity of the offense, Appellant’s medical and
       rehabilitative needs, and what is needed to protect the public?

(Appellant’s Brief, at 6) (underline and some capitalization omitted).

       In his first issue, Appellant challenges the weight of the evidence to

support his failure to register conviction. (See Appellant’s Brief, at 14-15).5

Appellant argues his trial testimony established that he updated his

registration information in January 2014, and that he informed police of his

address change within three days of his move. (See id. at 15). This issue

does not merit relief.


____________________________________________


4
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on May 26, 2015. See
Pa.R.A.P. 1925(b). The court filed an opinion on September 10, 2015. See
Pa.R.A.P. 1925(a).
5
  Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3); (see also Post-Sentence Motion,
3/17/15, at unnumbered page 2).



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            The law pertaining to weight of the evidence claims is well-
     settled. The weight of the evidence is a matter exclusively for
     the finder of fact, who is free to believe all, part, or none of the
     evidence and to determine the credibility of the witnesses. A
     new trial is not warranted because of a mere conflict in the
     testimony and must have a stronger foundation than a
     reassessment of the credibility of witnesses. Rather, the role of
     the trial judge is to determine that notwithstanding all the facts,
     certain facts are so clearly of greater weight that to ignore them
     or to give them equal with all the facts is to deny justice.

            On appeal, our purview is extremely limited and is
     confined to whether the trial court abused its discretion in
     finding that the jury verdict did not shock its conscience. Thus,
     appellate review of a weight claim consists of a review of the
     trial court’s exercise of discretion, not a review of the underlying
     question of whether the verdict is against the weight of the
     evidence. An appellate court may not reverse a verdict unless it
     is so contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015),

appeal denied, 2015 WL 5726427 (Pa. filed Sept. 29, 2015) (citations and

quotation marks omitted).

     Here, the testimony at trial makes clear that Appellant was well aware

of the registration and reporting requirements and of how to comply with

them, and that he, in fact, did comply with them on several occasions. (See

N.T. Trial, 3/09/15, at 25, 28-30, 43; N.T. Trial, 3/11/15, at 71, 86-88, 94-

95). However, there was no registration information for Appellant in police

records for the January 2014 reporting period, and, as a result, police

initiated an investigation and were unable to locate him.     (See N.T. Trial,




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J-A31045-15



3/09/15, 30-32, 47-49).6 The evidence also reflected that Appellant failed

to report an address change in January 2013, and that he continued to

report employment at the naval base after his employer terminated him.

(See id. at 33-34; N.T. Trial, 3/11/15, at 67-68, 98-99).                Although

Appellant testified that he did register and report the address change, and

attributed lack of documentation of this to an error in police records, (see

N.T. Trial, 3/11/15, at 93-94, 98-99), the jury, as finder of fact, while

passing upon the credibility of witnesses’ testimony, was free to believe all,

part, or none of the evidence. See Gonzalez, supra at 723. After review

of the record, and mindful of our “extremely limited” purview, we cannot

conclude that the trial court’s ruling on Appellant’s weight of the evidence

claim constituted an abuse of discretion.        Id.   Therefore, Appellant’s first

issue does not merit relief.

       In his second issue, Appellant argues that the sentence is excessive

because the court failed to consider mitigating factors such as: his age of

fifty-six; the fact that he fractured three vertebrae in 2013 and has been

participating in outpatient physical therapy ever since; and his expression of




____________________________________________


6
  Appellant’s whereabouts remained unknown to police until he was arrested
in March 2014 on an unrelated simple assault charge.           (See N.T.
Sentencing, 3/16/15 at 7; Trial Ct. Op., at 3 n.3).



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J-A31045-15



remorse to the court.        (See Appellant’s Brief, at 12, 17-18).7   This issue

does not merit relief.

       At the outset, we observe that Appellant’s issue challenges the

discretionary aspects of his sentence. However, “[t]he right to appeal the

discretionary aspects of a sentence is not absolute.”       Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) (citation omitted).

              Before we reach the merits of this [issue], we must engage
       in a four part analysis to determine: (1) whether the appeal is
       timely; (2) whether Appellant preserved his issue; (3) whether
       Appellant’s brief includes a concise statement of the reasons
       relied upon for allowance of appeal with respect to the
       discretionary aspects of sentence [, see Pa.R.A.P. 2119(f)]; and
       (4) whether the concise statement raises a substantial question
       that the sentence is appropriate under the sentencing code. . . .
       [I]f the appeal satisfies each of these four requirements, we will
       then proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),

appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).

       In the instant case, Appellant timely appealed, preserved his claim in

the trial court, and included a Rule 2119(f) statement in his brief. See id.

With respect to the substantial question requirement:

             The determination of what constitutes a substantial
       question must be evaluated on a case-by-case basis.         A
       substantial question exits only when the appellant advances a
       colorable argument that the sentencing judge’s actions were
____________________________________________


7
  Appellant’s claim that he expressed remorse to the court, (see Appellant’s
Brief, at 12, 18), is not supported by the record, which does not reflect any
such expression. (See N.T. Sentencing, 3/16/15, at 5-6; Trial Ct. Op., at
11).



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      either: (1) inconsistent with a specific provision of the
      Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal

denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).

“[T]his Court has held that an excessive sentence claim—in conjunction with

an assertion that the court failed to consider mitigating factors—raises a

substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.

Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citation omitted).

Therefore, we will review Appellant’s claim on the merits.

      Our standard of review in sentencing matters is well-settled:

            Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. An abuse of
      discretion is more than just an error in judgment and, on appeal,
      the trial court will not be found to have abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citation omitted).

      In fashioning a defendant’s sentence, the court must “follow the

general principle that the sentence imposed should call for confinement that

is consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).




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         Here, at the sentencing hearing, defense counsel discussed various

mitigating factors including Appellant’s age, his family support, and his

medical injury requiring physical therapy. (See N.T. Sentencing, 3/16/15,

at 4).    Appellant emphasized his need for physical therapy, and explained

that he was terminated from his employment because of his prior record,

and not because of any misconduct. (See id. at 5-6). The Commonwealth

stated that Appellant’s registration and reporting violations were blatant

from the record, and noted that, despite Appellant’s claim of poor physical

health, he was arrested in March of 2014 for simple assault for allegedly

beating his girlfriend. (See id. at 7). Before imposing its sentence, which is

in the standard guideline range, the court explained its rationale as follows:

               [Appellant], your conduct in this case was on the egregious
         side, pretty serious.    There were obvious violations of the
         reporting statute and as [the Commonwealth] correctly pointed
         out, once we got into the testimony, it became a little more
         obvious that you were skirting your obligations.

               I should say that the jury had no issue at all. They came
         back with a very quick verdict based on the testimony. So I
         think the Commonwealth’s case was clearly established. . . .

(Id. at 8).

         Thus, the record reflects that the court was fully aware of the

mitigating factors in this case, and that it took into account relevant factors

in formulating its sentence. Accordingly, we conclude that the trial court did

not abuse its discretion in imposing Appellant’s sentence.        See Clarke,

supra at 1287. Appellant’s second issue lacks merit.



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J-A31045-15



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2016




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