J-S58038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARMEN JOSEPH DEMARK

                            Appellant                  No. 957 MDA 2015


            Appeal from the Judgment of Sentence March 18, 2015
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0001901-2014


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                     FILED DECEMBER 01, 2016

        Appellant, Carmen Joseph Demark, appeals from the judgment of

sentence entered in the Luzerne County Court of Common Pleas, following

his jury trial conviction for failure to comply with sexual offender registration

requirements.1       We affirm the conviction but vacate the judgment of

sentence and remand for re-sentencing.

        The relevant facts and procedural history of this case are as follows.

Beginning in 2003, Appellant has been subject to lifetime reporting

requirements under the Sexual Offenders Registration and Notification Act

(“SORNA”) at 42 Pa.C.S.A. § 9799.10 et seq.            On April 1, 2014, the

____________________________________________


1
    18 Pa.C.S.A. § 4915.1.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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Pennsylvania State Police mailed a letter to Appellant at his regular address.

The letter reminded Appellant to report for quarterly registration by April 15,

2014.2     Appellant failed to report.         On May 22, 2014, a state trooper

contacted Appellant regarding his failure to report in April. Appellant showed

up that day at the state police barracks, where police arrested him.

       On February 3, 2015, a jury convicted Appellant of failure to comply

with sexual offender registration requirements.            The court sentenced

Appellant on March 18, 2015, to three (3) to six (6) years’ incarceration,

which included a mandatory minimum sentence, per 42 Pa.C.S.A. § 9718.4.

Appellant timely filed post-sentence motions for reconsideration of sentence

and for judgment of acquittal on March 26, 2015. The court denied relief on

April 30, 2015. On May 29, 2015, Appellant timely filed a notice of appeal.

The court ordered Appellant on June 15, 2015, to file a concise statement of

errors pursuant to Pa.R.A.P. 1925(b), which he filed on July 22, 2015.3

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2
   On October 14, 2014, the Commonwealth Court declared Section
9799.15(g) unconstitutionally punitive as applied to individuals convicted
prior to enactment of the provision, where the provision required the
offender to update the registration information in person; but the provision
could be severed from the remainder of the statute while preserving the
otherwise valid subsections. See Coppolino v. Noonan, 102 A.3d 1254
(Pa.Cmwlth. 2014). Despite Coppolino, Appellant does not challenge the
“in person” aspect of the registration process declared unconstitutionally
punitive in Coppolino. Here, Appellant failed to register at all and in any
manner.
3
   Appellant’s Rule 1925(b) statement was technically untimely.
Nevertheless, this Court may address the merits of a criminal appeal where
(Footnote Continued Next Page)


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      Appellant raises the following issue for our review:

          WHETHER, WHERE THE COMMONWEALTH PRODUCED NO
          EVIDENCE OF A CULPABLE MENS REA AND THE EVIDENCE
          NEGATED THE PRESENCE OF MENS REA, APPELLANT’S
          CONVICTION FOR FAILURE TO REGISTER IS AGAINST THE
          WEIGHT AND SUFFICIENCY OF THE EVIDENCE?

(Appellant’s Brief at 7).

      Appellant argues the Commonwealth failed to establish that Appellant

had the requisite mens rea to sustain his conviction. Appellant concedes he

failed to report to police in April 2014, but contends he did not do so

“knowingly.” Appellant insists his various health and family issues interfered

with his ability to remember his reporting requirements. Appellant maintains

he relied on the routine reminder letters to let him know when he needed to

report to police. Appellant avers the Commonwealth failed to present proof

of Appellant’s receipt of the letter.            Appellant indicates he immediately

reported to police the same day they notified Appellant of his failure to verify

his registration information in April 2014. Appellant claims even if sufficient

evidence supported his conviction, the verdict was against the weight of the

evidence.    Appellant concludes this Court should overturn his conviction

and/or grant a new trial. We disagree.
                       _______________________
(Footnote Continued)

a defendant files an untimely Rule 1925(b) statement, if the trial court had
adequate opportunity and chose to prepare an opinion addressing the
issue(s) raised on appeal. See Commonwealth v. Burton, 973 A.2d 428
(Pa.Super. 2008) (en banc). Here, the trial court filed a Rule 1925(a)
opinion, which addressed Appellant’s sufficiency issue. Therefore, we decline
to waive that issue.



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      Initially, we note that a challenge to the sufficiency of the evidence

and the weight of the evidence supporting a criminal conviction are separate

inquiries:

         [W]e find it necessary to delineate the distinctions between
         a claim challenging the sufficiency of the evidence and a
         claim that challenges the weight of the evidence. The
         distinction between these two challenges is critical. A
         claim challenging the sufficiency of the evidence, if
         granted, would preclude retrial under the double jeopardy
         provisions of the Fifth Amendment to the United States
         Constitution, and Article [1], Section 10 of the
         Pennsylvania Constitution, whereas a claim challenging the
         weight of the evidence, if granted, would permit a second
         trial.

         A claim challenging the sufficiency of the evidence is a
         question of law. Evidence will be deemed sufficient to
         support the verdict when it establishes each material
         element of the crime charged and the commission thereof
         by the accused, beyond a reasonable doubt. Where the
         evidence offered to support the verdict is in contradiction
         to the physical facts, in contravention to human experience
         and the laws of nature, then the evidence is insufficient as
         a matter of law. When reviewing a sufficiency claim the
         court is required to view the evidence in the light most
         favorable to the verdict winner, giving the prosecution the
         benefit of all reasonable inferences to be drawn from the
         evidence.

         A motion for new trial on the grounds that the verdict is
         contrary to the weight of the evidence concedes that there
         is sufficient evidence to sustain the verdict. Thus, the trial
         court is under no obligation to view the evidence in the
         light most favorable to the verdict winner. An allegation
         that the verdict is against the weight of the evidence is
         addressed to the discretion of the trial court. A new trial
         should not be granted because of a mere conflict in the
         testimony or because the judge on the same facts would
         have arrived at a different conclusion. A trial judge must
         do more than reassess the credibility of the witnesses and
         allege that he would not have assented to the verdict if he


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            [or she] were a juror. Trial judges, in reviewing a claim
            that the verdict is against the weight of the evidence, do
            not sit as the thirteenth juror. 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 weight with all the facts is to
            deny justice.

Commonwealth v. Widmer, 560 Pa. 308, 318, 744 A.2d 745, 751-52

(2000) (citations and footnote omitted).

            Moreover, where the trial court has ruled on the weight
            claim below, an appellate court’s role is not to consider the
            underlying question of whether the verdict is against the
            weight of the evidence. Rather, appellate review is limited
            to whether the trial court palpably abused its discretion in
            ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted). “A weight of the evidence claim concedes that

the evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal     that   a   guilty    verdict    shocks        one’s   sense    of   justice.”

Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013).

      The      Crimes    Code     defines    failure   to    comply   with    registration

requirements as follows:

            § 4915.1.    Failure to comply with registration
            requirements

               (a) Offense defined.—An individual who is subject
               to registration under 42 Pa.C.S. § 9799.13 (relating to
               applicability) commits an offense if he knowingly fails
               to:


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                (1) register with the Pennsylvania State Police as
                required under 42 Pa.C.S. § 9799.15 (relating to
                period of registration), 9799.19 (relating to initial
                registration) or 9799.25 (relating to verification by
                sexual offenders and Pennsylvania State Police);

                (2) verify his address or be photographed as
                required under 42 Pa.C.S. § 9799.15, 9799.19 or
                9799.25; or

                (3) provide accurate information when registering
                under 42 Pa.C.S. § 9799.15, 9799.19 or 9799.25.

18 Pa.C.S.A. § 4915.1(a).     Section 302(b) of the Crimes Code defines a

“knowing” mens rea as:

        § 302. General requirements of culpability.

                                 *    *    *

        (b)   Kinds of culpability defined.—

                                 *    *    *

           (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).

     Assuming proper jurisdiction, “challenges to the legality of the


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sentence are not waivable.”       Commonwealth v. Jacobs, 900 A.2d 368,

373-73 (Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 681, 917 A.2d

313 (2007).     See Commonwealth v. Kitchen, 814 A.2d 209, 214

(Pa.Super. 2002), aff’d, 576 Pa. 229, 839 A.2d 184 (2003) (stating legality

of sentence may be subject of inquiry by appellate court sua sponte);

Commonwealth          v.   Edrington,     780   A.2d   721     (Pa.Super.     2001)

(maintaining legality of sentence claims cannot be waived, and may be

reviewed sua sponte, where reviewing court has proper jurisdiction).

      “Issues relating to the legality of a sentence are questions of law….”

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super 2008), appeal

denied, 598 Pa. 755, 955 A.2d 356 (2008). When the legality of a sentence

is at issue on appeal, our “standard of review is de novo and our scope of

review is plenary.”    Id.   “An unconstitutional statute is ineffective for any

purpose [as] its unconstitutionality dates from the time of its enactment and

not merely from the date of the decision holding it so.” Commonwealth v.

Muhammed,        992       A.2d   897,    903    (Pa.Super.     2010)       (quoting

Commonwealth v. Michuck, 686 A.2d 403, 407 (Pa.Super. 1996), appeal

denied, 548 Pa. 668, 698 A.2d 593 (1997)). “If no statutory authorization

exists for a particular sentence, that sentence is illegal and subject to

correction.   An illegal sentence must be vacated.”           Commonwealth v.

Watson, 945 A.2d 174, 178-79 (Pa.Super. 2008) (quoting Commonwealth

v. Leverette, 911 A.2d 998, 1001-02 (Pa.Super. 2006)).


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        In the past, Section 9718.4 provided mandatory minimum sentences

for failure to comply with sex offender registration and stated in relevant

part:

          § 9718.4.    Sentence for failure to comply with
            registration of sexual offenders

          (a) Mandatory sentence.─Mandatory sentencing shall
          be as follows:

            (1)     Sentencing upon conviction for a first offense
            shall be as follows:

                                  *    *    *

              (iii) Not less than three years for an individual who:

               (A) is subject to section 9799.13 and must register
               for a period of 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).

                                  *    *    *

          (b) Proof at sentencing.─The provisions of this section
          shall not be an element of the crime, and notice thereof to
          the defendant shall not be required prior to conviction, but
          reasonable notice of the Commonwealth’s intention to
          proceed under this section shall be provided after
          conviction and before sentencing. The applicability of this
          section shall be determined at sentencing. The court shall
          consider any evidence presented at trial and shall afford
          the Commonwealth and the defendant an opportunity to
          present any necessary additional evidence and shall
          determine by a preponderance of the evidence if this
          section is applicable.

          (c) Authority of court in sentencing.─There shall be
          no authority in any court to impose on an offender to
          which this section is applicable any lesser sentence than
          provided for in subsection (a) or to place such offender on

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          probation or to suspend sentence. Nothing in this section
          shall prevent the sentencing court from imposing a
          sentence greater than that provided in this section.
          Sentencing guidelines promulgated by the Pennsylvania
          Commission on Sentencing shall not supersede the
          mandatory sentences provided in this section.

                                       *       *   *

42 Pa.C.S.A. § 9718.4(a)(1)(iii)(A)-(B), (b), (c).     In 2015, this Court held

that the mandatory minimum sentence under this statute for failure to

comply with the sex offender registration requirements did not violate the

defendant’s rights under Alleyne v. United States, ___ U.S. ___, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013). See Commonwealth v. Pennybaker, 121

A.3d 530 (Pa.Super. 2015). Our Supreme Court, however, granted review

and reversed that judgment, vacated the appellant’s sentence, and

remanded for re-sentencing without application of 42 Pa.C.S. § 9718.4,

citing Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247 (2015) and

Commonwealth v. Wolfe, ___ Pa. ___, 140 A.3d 651 (2016).4                  See

Commonwealth v. Pennybaker, 2016 WL 4541106 (Pa. August 31, 2016).

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4
   The Wolfe Court reviewed the Alleyne issue on the merits, after
discussing whether Alleyne violations implicate the legality of the sentence
and the appropriateness of sua sponte appellate review. The Court deferred
“deeper consideration” of the legality/waiver question to the disposition of
Commonwealth v. Barnes, 2014 WL 10919327 (Pa.Super. June 27, 2014),
appeal granted, ___ Pa. ___, 122 A.3d 1034 (September 18, 2015), which
remains undecided to date. Nevertheless, the Wolfe Court stated: “For the
present, it is sufficient to observe that this Court has previously found that
an asserted Apprendi[ v. New Jersey, 530 U.S. 466,120 S.Ct. 2348, 147
L.Ed.2d 435 (2000)]−line violation implicated the legality of a sentence…and
(Footnote Continued Next Page)


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       Instantly, Appellant’s quarterly lifetime reporting requirements as a

sex offender began in 2003. On April 1, 2014, the Pennsylvania State Police

mailed a letter to Appellant at his regular address, reminding him to report

for quarterly registration. Appellant failed to comply and was subsequently

arrested when he reported to the state police barracks on May 22, 2014.

Prior to trial, Appellant and the Commonwealth stipulated that Appellant was

subject to reporting requirements as a sex offender and he had failed to

register when necessary in April 2014.

       At trial, the Commonwealth presented a copy of the verification forms

Appellant signed each time he reported for quarterly registration. One of the

verification   forms     read:    “Shortly       before   your   verification   date,   the

Pennsylvania State Police will send a letter to your registered mailing

address. This letter will not be forwarded. Failure to receive this letter does

not relieve you of your obligation to comply with the law.” (N.T., 2/3/15, at

44).   The Commonwealth also offered testimony from Pennsylvania State

Police Trooper Connors, who indicated that Appellant was required to verify

his address every three months.             Trooper Connors confirmed state police

sent Appellant a reminder letter, but Appellant failed to appear for

registration in April 2014. Appellant testified at trial and stated he knew of

the requirement to register every three months, but he had forgotten to do
                       _______________________
(Footnote Continued)

that legality-of-sentence claims are not subject to the traditional waiver
doctrine.” Id. at ___, 140 A.3d at 659-60.



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so because he did not receive the reminder letter.

      Appellant conceded all material elements of the offense of failure to

report. See 18 Pa.C.S.A. § 4915.1(a). Appellant admitted he was subject

to reporting requirements as a sex offender under SORNA and was obligated

to present himself to the state police for address verification every three

months.     Appellant’s own testimony confirmed he was aware of his

responsibility to report to state police for quarterly registration.      Thus, the

evidence is sufficient to sustain Appellant’s conviction of failure to comply

with sexual offender registration requirements. See Widmer, supra.

      With respect to Appellant’s contention that his conviction was against

the weight of the evidence presented, the trial court reasoned as follows:

          [Appellant] fails to suggest how or in what matter the
          evidence adduced from the Commonwealth witnesses and
          the testimony of [Appellant] himself permits the conclusion
          that the verdict is so contrary to the evidence as to shock
          one’s sense of justice. Simply stated, Appellant utterly
          fails to assert how the evidence is so tenuous, vague and
          uncertain that the verdict could be considered against the
          weight of the evidence. Moreover, [Appellant] himself
          made admissions that he knew that he was required to
          register every three (3) months but failed to do so because
          he forgot.

(Trial Court Opinion, filed December 16, 2015, at 8). The court concluded

the jury’s verdict was not contrary to the weight of the evidence. Id.

      Appellant’s only defense at trial was that he “just forgot” because he

claimed he had not received a reminder letter.              Notwithstanding the

Commonwealth’s      evidence   suggesting     Appellant   did   receive   a   letter,


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Appellant’s insistence to the contrary does not inform review.       In other

words, Appellant’s contention that he forgot to register fails to refute the

“knowingly” standard for this offense. See 18 Pa.C.S.A. § 302(b)(2). Each

time Appellant reported for quarterly registration, he signed a verification

form stating “[f]ailure to receive [a reminder] letter does not relieve you of

your obligation to comply with the law.” (N.T., 2/3/15, at 44). Appellant

admitted he was aware he had to register, yet failed to do so in April 2014.

Consequently, we see no reason to disturb the court’s decision to deny relief

on Appellant’s challenge to the weight of the evidence.     See Champney,

supra.

      Nevertheless, we also see from the record that the trial court imposed

on Appellant a mandatory minimum sentence of three years, per 42

Pa.C.S.A. § 9718.4.     The court relied primarily on this Court’s decision in

Pennybaker, which our Supreme Court has now reversed. Accordingly, we

affirm the conviction but follow our Supreme Court’s lead in Pennybaker

and vacate the judgment of sentence and remand for re-sentencing without

application of a mandatory minimum sentence per 42 Pa.C.S.A. § 9718.4.

      Judgment of sentence vacated.       Case remanded for re-sentencing.

Jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2016




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