HomeMy WebLinkAboutCP-21-CR-0001409-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CHARGE: FAILURE TO COMPLY WITH
: REGISTRATION OF SEXUAL
: OFFENDERS REQUIREMENTS
:
ERIC KENNETH JONES :
OTN: K559344-2 : CP-21-CR-1409-2008
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., April 8, 2009.
In this criminal case, Defendant was found guilty following a jury trial of Failure
1
To Comply with Registration of Sexual Offenders Requirements, a felony of the first
2
degree. Defendant was sentenced in the standard range of the guidelines to undergo a
period of imprisonment in a state correctional institution of not less than forty months nor
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more than eighty months.
From the judgment of sentence, Defendant has filed an appeal to the Pennsylvania
4
Superior Court. The bases for the appeal have been expressed in a statement of errors
complained of on appeal as follows:
1. The Court erred by denying defendant’s omnibus pretrial
motions for relief.
2. The evidence of non-registration was insufficient for
conviction for the following reasons:
(a) Defendant is not a child molester;
(b) Defendant is not subject to the Community Reporting
Requirements according to the Commonwealth’s trial exhibits;
1
Act of November 24, 2004, P.L. 1243, §1, as amended, 18 Pa. C.S. §4915(a)(1).
2
Order of Court, September 24, 2008.
3
Order of Court, December 23, 2008.
4
Defendant’s Notice of Appeal, filed January 12, 2009.
(c) The alleged victim in this case is the person who posted
defendant’s security from the Dauphin County Prison and helped him
establish a residence in New Cumberland, PA;
(d) The victim knew defendant had to establish a new
residence because of a fire;
(e) The victim took defendant to PennDOT to change his
address to New Cumberland, PA.
(f) The victim then, feigning fear, and for improper
motive, notified police that she believed a sexual offender had moved
into her neighborhood and she was concerned for her daughter’s
safety.
(g) Defendant directly notified the Commonwealth of his
change of address via PennDOT in May 2008, upon his release from
the Dauphin County Prison.
(h) In fact, the first place that the local police checked for
information about Eric K. Jones was with PennDOT for any registered
addresses.
(i) Defendant was also interviewed at DCP prior to his
release in May 2008 and gave his prospective address to prison
personnel.
(j) The DCP witness testified at trial she would not have
cared what defendant’s address was to be. PSP was never advised of
same.
3. Megan’s Law is unconstitutional on due process, equal
protection, and other grounds in violation of the United States and
Pennsylvania Constitutions and, further, constitutes cruel and unusual
punishment as applied to the defendant for the following reasons:
(a) Defendant was convicted of Rape and sentenced in
1992 to 6-12 years in state prison. Defendant served the entire 12 year
maximum term.
(b) Megan’s Law did not exist at the time of defendant’s
rape conviction.
(c) Requiring defendant’s adherence to Megan’s Law
brands defendant as a child molester when he has never been
convicted of such offenses.
(d) The Megan’s Law child molester label/branding has
subjected defendant to extraordinary and different forms of treatment
and punishment from other inmates and by prison staff, including
segregation, solitary confinement and curtailing of other privileges
based on Megan’s Law.
2
(e) Megan’s Law and reporting requirements subject the
defendant to what is in effect a lifetime sentence for an offense for
which he has served his debt to society.
(f) The application of Megan’s Law and the effect of non-
compliance subjects defendant to multiple punishments for the same
offense.
(g) The community notification requirements of Megan’s
Law have no applicability to defendant as he has never been convicted
of offenses involving children.
(h) Defendant has never been classified as a sexually
violent predator.
4. The commonwealth failed to establish the mens rea element
with respect to defendant’s alleged non-reporting violation.
5. During voir dire, the Commonwealth’s use of defendant’s prior
rape conviction and revealing its case to the jury in the fashion of an
opening argument prior to the start of the trial was inflammatory, unfair,
prejudicial and denied defendant a fair and impartial trial.
6. The defendant was denied a fair and impartial trial by the
Commonwealth’s repeated and erroneous statements that defendant had
pled guilty to rape when he did not.
7. The evidence of a prior conviction for failing to register under
Megan’s Law was prejudicial and denied defendant a fair trial.
8. Defendant’s sentence was excessive under the circumstances.
9. The application of mandatory sentencing against defendant was
error and unconstitutional and an ex post facto law.
10. Megan’s Law is a penal statute and its applicability to
defendant is so punitive either in its purpose and effect as to negate the
5
legislature’s non-punitive intent and is thus unconstitutional.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
In this criminal action where Defendant (1) was accused of Failure To Comply
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with Registration of Sexual Offenders Requirements, (2) was found guilty by a jury on
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Defendant’s Concise Statement of the Errors Complained of on Appeal, filed February 3, 2009. Whether
this statement of errors complained of comports with the conciseness requirement of Pennsylvania Rule
of Appellate Procedure 1925(b)(4)(ii) is beyond the scope of this opinion. But see Tucker v. R.M. Tows,
2007 PA Super 352, 939 A.2d 343; Kanter v. Epstein, 2004 PA Super 470, 866 A.2d 394.
3
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September 24, 2008, (3) was sentenced to a standard range period of imprisonment of
not less than 40 months nor more than 80 months, with credit for time already served on
89
the charge, and (4) now appeals on grounds, inter alia, of insufficiency of the evidence,
the relevant procedural and factual history may be summarized as follows.
Procedural History. Before the commencement of trial, both parties filed pre-trial
motions: the Defendant’s Amended Omnibus Pretrial Motions for Relief in the form of a
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Motion To Quash Information; and the Commonwealth’s Motion in Limine.
Defendant’s Amended Omnibus Pretrial Motions for Relief read as follows,
th
AND NOW, this 8 day of September, 2008, comes the above
defendant, by and through his counsel, John M. Shugars, Esquire, Senior
Assistant Public Defender, who in support of his motion avers as follows,
to wit:
1. Defendant was convicted of Rape under Crimes Code Section
3721 in 1990 in Dauphin County and served the maximum time of his
imposed 6-12 year sentence.
2. 42 Pa. C.S. Section 9795.1 (b)(2), subjects defendants convicted
of Rape to lifetime registration requirements as sexual offenders on a
timely basis including timely reporting changes of address to the
Pennsylvania State Police aka Megan’s Law.
3. Violation of the said lifetime registration constitutes a felony
one.
4. Defendant was arrested in May 2008 for his alleged failure to
on or before May 10, 2008, advise the PSP of his current change of
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Criminal Information, filed July 21, 2008, as amended, Order of Court, September 19, 2008, Order of
Court, September 23, 2008.
7
Order of Court, September 24, 2008.
8
Order of Court, December 23, 2008.
9
Defendant’s Notice of Appeal, filed January 12, 2009; Defendant’s Concise Statement of the Errors
Complained of on Appeal, filed February 3, 2009.
10
Defendant’s Amended Omnibus Pretrial Motions for Relief, filed September 8, 2008. The
Commonwealth sought permission to introduce evidence of Defendant’s prior conviction for Failure To
Register As a Sexual Offender for the purpose of proving that Defendant had the requisite knowledge of
his requirement to register with the Pennsylvania State Police and was not operating under a mistake. The
Commonwealth maintained that this evidence was not so prejudicial as to outweigh its probative value.
The Commonwealth further sought to exclude certain testimony of a legal nature by Defendant that he did
not need to register under Megan’s Law or, in the alternative, that he could not be punished for failing to
register. Commonwealth’s Motion in Limine To Introduce Defendant’s Previous Conviction and Exclude
Certain Testimony, filed September 22, 2008.
4
address in a timely manner (i.e., “register”) contrary to PA Crimes Code
Section 4915 (a)(1). See P.C. affidavit attached as Exhibit #1.
5. Defendant asserts his compliance with the aforesaid registration
requirements.
6. In the alternative, the aforesaid registration requirements as
applied to the Defendant are unlawful, illegal, and unconstitutional as set
forth below.
7. The offense charged fails to put the Defendant on notice of the
required mens rea element of the statute which must be proven before
invoking the punishment provisions of Megan’s Law. See
Commonwealth v. Pond, 846 A.2d 699, 706 (Pa. Super. 2004).
8. The lifetime registration requirements constitute cruel and
unusual punishment contrary to the Pennsylvania and United States
Constitutions.
9. Prosecution of the Defendant under the lifetime reporting
requirements constitutes double jeopardy contrary to the Pennsylvania and
State Constitutions due to subjecting the Defendant to multiple
prosecutions and punishments for the same criminal episode for which he
has already been tried, convicted and sentenced.
10. The Pennsylvania Superior Court on June 6, 2005 in the matter
of Commonwealth v. Eric K. Jones, Docket No. 1078 MDA 2004, (an
unpublished opinion attached as Exhibit #2), held that Defendant’s
sentence for a similar offense in Dauphin County on June 24, 2004, was
“constitutionally infirm and illegal” and remanded the case resulting in the
Defendant’s release from incarceration.
11. The Pennsylvania Superior Court based its decision in Jones
on Commonwealth v. Williams, 574 Pa. 487, 525-528, 832 A.2d 962, 985-
986 (2003).
12. Similarly, Defendant asserts the unconstitutionality of his
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present prosecution.
Following a proceeding on both motions, held on September 22, 2008, the
following order was entered by the undersigned judge:
nd
AND NOW, this 22 day of September, 2008, upon consideration
of Defendant’s Amended Omnibus Pretrial Motions for Relief in the form
of a Motion To Quash Information, as amplified by a document filed by
Defendant on September 9, 2008, and of the Commonwealth’s Motion in
Limine To Introduce Defendant’s Previous Conviction and Exclude
Certain Testimony, and following a proceeding on this date on the
motions, it is ordered and directed as follows:
11
Defendant’s Amended Omnibus Pretrial Motions for Relief, filed September 8, 2008.
5
1. The Information having been previously amended pursuant to
paragraph 7 of Defendant’s Amended Omnibus Pretrial Motions for Relief
[in accordance with a request by Defendant to include a mens rea element
by the Honorable Kevin A. Hess of this court], the balance of Defendant’s
motions are denied; and
2. The Commonwealth’s Motion in Limine To Introduce
Defendant’s Previous Conviction and Exclude Certain Testimony is
granted with respect to the aspect of the motion seeking to be permitted to
introduce evidence of Defendant’s previous conviction for a violation of
the registration requirements of Megan’s Law and deemed moot with
respect to the aspect of the motion relating to the exclusion of testimony in
light of defense counsel’s indication at the proceeding that he does not
intend to elicit legal arguments from Defendant, should Defendant be
called as a witness. In the event that a given question to or answer of
Defendant appears to the Commonwealth to be inconsistent with this
12
position, the court will entertain an objection at sidebar.
During the trial, no objections were made by Defendant in the voir dire phase to
any of the prosecutor’s statements or questions. In this phase, Megan’s Law was vaguely
described by the prosecutor using the terms “certain offenders and certain sexual
13
offenders.” The Commonwealth stated that, “[Megan’s Law] is aimed at community
14
notification so certain people know where certain offenders live.” The Commonwealth
continued that, “[t]he way that they accomplish that goal is by making those certain
offenders and certain sexual offenders register their address, register where they work,
15
things of that type . . . .” The Commonwealth stated that, “I expect that you will hear
testimony in this case that the Defendant was convicted of rape. . . . Is there anyone here,
knowing that fact, that feels they can’t be fair to both the Commonwealth and the
16
Defendant in this case?”
The Commonwealth, in regard to the facts of the case, stated,
[t]he allegation in this case, as I said to you, is failure to register. I
want to tell you just briefly the facts to see if you maybe have heard
12
Order of Court, September 22, 2008.
13
Notes of Testimony 6, Voir Dire Proceedings, September 23, 2008 (hereinafter N.T. Voir Dire __).
14
N.T. Voir Dire 6.
15
N.T. Voir Dire 6.
16
N.T. Voir Dire 7.
6
anything about it in the paper or something like that that might cause
you not to be fair.
In this case the Defendant was residing at the Dauphin
County Prison in January of 2008. That was the last known address
that was registered with the Pennsylvania State Police Megan’s Law
Unit. He was released from there in April of 2008. He moved to the
New Cumberland area, established an address at 421 Geary Avenue,
and failed to register that address, and still failed to register that
th
address as of May 12, 2008, when he was arrested for this
17
particular charge.
Factual History. Defendant served all twelve years of a six-to-twelve year
18
sentence stemming, according to the record, from a 1992 guilty plea to rape. Evidence
of Defendant’s rape conviction was admitted because Defendant refused to stipulate that
he had previously been convicted of Rape or that he knew he had to register under
19
Megan’s Law. This rape conviction ultimately subjected Defendant to lifetime
20
registration under Megan’s Law. Prior to his release in 2002, Defendant met with
representatives of the Pennsylvania State Police and discussed how the lifetime
21
registration requirement would affect him. At that time, Defendant noticed the State
22
Police as to where he would reside upon his release in 2002.
More recently, Defendant found himself incarcerated in Dauphin County Prison
23
from January 5, 2008 until April 29, 2008 on an unrelated charge. On January 9, 2008,
17
N.T. Voir Dire 9-10.
18
Notes of Testimony 78, 107-08, Jury Trial, September 23-24, 2008 (hereinafter N.T.__);
Commonwealth’s Exhibit 8, admitted September 23, 2008 (Defendant’s first trial resulted in a hung jury.
Defendant remained incarcerated until the conclusion of the subsequent retrial. Defendant pled guilty and
was ultimately sentenced to six to twelve years, on March 26, 1992. Defendant received credit for time
already served on the charge from June 6, 1990 to March 26, 1992.); Act of December 6, 1972, P.L. 1482,
§1, as amended, 18 Pa. C.S. §3121.
19
N.T. 4-5.
20
Act of May 10, 2000, P.L. 74, §3, as amended, 42 Pa. C.S. §9795.1(b). On January 1, 2007, Megan’s
Law was changed decreasing the period in which a person subject to registration has to register from 10
days to 48 hours. N.T. 76
21
N.T. 109.
22
N.T. 109.
23
N.T. 49, 57, 112.
7
soon after entering the prison, Defendant met with Rebecca Venneri, a treatment
24
coordinator with the prison. At the time of Defendant’s incarceration, Ms. Venneri was
25
in charge of handling all Megan’s Law updates for inmates entering the prison. At the
meeting, Ms. Venneri filled out an address worksheet with Defendant for the purpose of
26
updating his address to the Dauphin County Prison. Ms. Venneri then faxed and mailed
the address worksheet to the Megan’s Law Section of the Pennsylvania State Police in
27
order to update his address as required by Megan’s Law. Ms. Venneri testified that the
practice of the Dauphin County Prison was, “[i]f [inmates] have already previously been
registered under Megan’s Law and come into the prison, then I meet with them and fill
out a sex offender address worksheet updating their address to be at the Dauphin County
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Prison.” She added that,
[b]ecause we’re a County facility, inmates come and go very quickly.
You don’t always know when they’re going to be released, they don’t
always know when they’re going to be released, so it’s the inmate’s
responsibility to make sure they update their registration within the time
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period once they get out.
Ms. Venneri held sex offender group meetings as part of her duties as treatment
30
coordinator. In these meetings, she would periodically review the requirements under
Megan’s Law, and would stress that registered offenders had 48 hours upon their release
31
to update their information with the Pennsylvania State Police. The policy of the prison
was that, when an inmate subject to registration under Megan’s Law arrived, the prison
24
N.T. 40-41, 50-53.
25
N.T. 41-43.
26
N.T. 52-54.
27
N.T. 54-56.
28
N.T. 42.
29
N.T. 47.
30
N.T. 48.
31
N.T. 48.
8
ensured that the Pennsylvania State Police were notified of the inmate’s new address;
32
when they left, it was the individual’s responsibility to provide the notification.
33
On April 29, 2008, Defendant was bailed out of the Dauphin County Prison by
3435
Janet Gray at the request of Defendant’s girlfriend, Cynthia Kelly. Ms. Gray, at that
time, resided at 423 Geary Avenue, New Cumberland, Cumberland County,
Pennsylvania, next door to where Defendant resided with his girlfriend at 421 Geary
36
Avenue. Ms. Gray testified that she knew that Defendant was subject to Megan’s Law
because,
in 2005 Cynthia came to live with me in [Highspire] at 403 Eshelman
Street, and she lived with me for about 8 months. He was incarcerated at
the time in Huntingdon, and he got out, and he needed a home plan, and he
came to my house to live, and I took him to Troop H [of the Pennsylvania
37
State Police] to register [under Megan’s Law].
Ms. Gray further testified that she reported to the New Cumberland Borough Police
Department (a) that Defendant was presently living at 421 Geary Avenue and (b) that she
38
believed he had not registered under Megan’s Law.
Ms. Gray spoke with Officer Freeze of the New Cumberland Borough Police
39
Department on May 10, 2008, regarding this matter. Officer Freeze then asked Officer
William Weaver of the same Department to follow up with the Pennsylvania State Police
40
Megan’s Law unit on Monday, May 12, 2008. As part of a preliminary investigation by
Officer Weaver, his office located information regarding Defendant on the Pennsylvania
32
N.T. 47-48.
33
When Defendant was bailed out by Ms. Gray, he was required to sign paperwork related to bail. This
paperwork required him to include where he would be residing upon his release. N.T. 114-15, 140-41.
34
N.T. 18, 24, 112-13.
35
N.T. 18-19, 24.
36
N.T. 17, 18.
37
N.T. 20.
38
N.T. 18, 20-21.
39
N.T. 29.
40
N.T. 29-30.
9
41
Megan’s Law website. The website indicated that Defendant’s address was that of the
42
Dauphin County Prison, where he had previously registered. Officer Weaver then called
the Megan’s Law Unit of the Pennsylvania State Police and confirmed that its latest
information regarding Defendant’s last known address indicated the Dauphin County
4344
Prison. The prison confirmed that Defendant had been released on April 29, 2008.
Officer Weaver next checked the Pennsylvania Department of Transportation records to
45
verify where Defendant was living. Officer Weaver learned that Defendant had
obtained a photo I.D. on April 30, 2008, “in the name of Eric Kent Jones, with the same
date of birth, the pictures were the same as the individual on the website, and that he was
46
listing an address of 421 Geary Avenue in New Cumberland.” Based on this
investigation, Officer Weaver filed a charge against Defendant for failure to comply with
47
requirements relating to registration of sexual offenders. On that same day, May 12,
2008, Officer Weaver along with a Corporal Spadaccino, went to 421 Geary Avenue, and
48
arrested Defendant.
Defendant testified that his intention upon leaving the Dauphin County Prison was
49
to get his life back together. Defendant, according to his testimony, attempted to do this
50
by: (1) calling the Red Cross to try to get aid stemming from an apartment fire; (2)
51
going to the Pennsylvania Department of Transportation to secure a photo I.D; and (3)
41
N.T. 30.
42
N.T. 30.
43
N.T. 31.
44
N.T. 31.
45
N.T. 31.
46
N.T. 32.
47
N.T. 34.
48
N.T. 34.
49
N.T. 121-22.
50
N.T. 121-22.
51
N.T. 123-24.
10
52
applying for a new social security card and a new birth certificate. Defendant testified
that it was his intention to register with the Pennsylvania State Police, but that he did not
53
get a chance to. Defendant testified that he did not know that the registration period had
54
been shortened from ten days to 48 hours.
Defendant testified that in 2002 he knew that he had to register within ten days of
55
moving. In 2003, Defendant pled guilty for failure to register as a sex offender within
56
the ten-day period. Chief Kenneth Lenker of the Steelton Police Department testified
that, at the preliminary hearing for the 2003 violation, but prior to its commencement,
Defendant spoke with him regarding Defendant’s requirements to register with the
57
Pennsylvania State Police. Chief Lenker testified that at that time Defendant “was
58
wondering why he was charged and what the law was.” Chief Lenker testified that he
59
briefly explained to him what the law was and why he needed to register. The jury in
the present case was given a cautionary instruction, immediately following the testimony
regarding the previous Megan’s Law violation, that
evidence [of the prior Megan’s Law violation] is admissible for one
purpose only, and that is . . . as to the issue of whether the Defendant knew
he had to register under Megan’s Law.
It is not admissible for any other purpose. You may not consider it
as evidence of any proclivity to commit crime, and in particular any
proclivity to commit this type of crime that is charged in this case. You
may consider it only on the issue of whether the Defendant knew he had
60
an obligation to register.
52
N.T. 123-24.
53
N.T. 144-45.
54
N.T. 110.
55
N.T. 134.
56
N.T. 96, 109; Commonwealth’s Exhibit 9, September 23, 2008.
57
N.T. 97.
58
N.T. 98.
59
N.T. 98.
60
N.T. 99 (Counsel for the Defense and Prosecution both agreed that this was a satisfactory cautionary
instruction to the jurors.)
11
At the conclusion of the trial, and following closing arguments and the jury
charge, the jury found Defendant guilty of Failure To Comply with Registration of
61
Sexual Offenders Requirements, a felony of the first degree. Defendant was sentenced
to a standard range period of imprisonment of not less than 40 months nor more than 80
months, with credit to be given, to the extent permissible by law, from May 12, 2008 to
62
December 23, 2008. The undersigned judge rejected the Commonwealth’s position that
a five-year mandatory sentence applied to the present case. Defendant’s notice of appeal
63
from the judgment of sentence, challenging, inter alia, the sufficiency of the evidence,
64
was filed on January 12, 2009.
Discussion
Defendant’s first error complained of on appeal is that his Omnibus Pretrial
Motions in the form of a Motion To Quash Information was improperly denied. With the
exception of Defendant’s request in Paragraph 7, relating to the addition of a mens rea
element, which had been previously granted by Judge Hess, the remaining matters in the
motion dealing with factual or constitutional issues were, in the court’s view, properly
denied.
Defendant asserted in paragraph 5 of his motion that he was in compliance with
the registration requirements of Megan’s Law. In this regard, Defendant was, in effect,
attempting to secure a form of habeas corpus relief, which is available pretrial where the
Commonwealth is unable to make out a prima facie case. Commonwealth v. Marti, 2001
PA Super 194, ¶2, 779 A.2d 1177, 1179. Unfortunately for Defendant, it is well settled
that a subsequent conviction of the offense precludes further review of that pretrial issue.
Commonwealth v. Lee, 541 Pa. 260, 270, 662 A.2d 645, 650 (1965).
Furthermore, on the merits of the issue, Defendant’s position was not persuasive.
The Commonwealth establishes a prima facie case when it produces evidence that, if
61
Order of Court, September 24, 2008.
62
Order of Court, December 23, 2008.
63
Defendant’s Concise Statement of the Errors Complained of on Appeal, filed February 3, 2009.
64
Defendant’s Notice of Appeal, filed January 12, 2009.
12
accepted as true, would warrant a trial. Commonwealth v. Marti, 2001 PA Super 194, ¶5,
779 A.2d 1177, 1180. A defendant’s Failure To Comply with Registration of Sexual
Offenders Requirements under 18 Pa. C.S. §4915 (a)(1) is made out by a showing of the
following: (1) Defendant was subject to registration with the Pennsylvania State Police as
required by 42 Pa. C.S. §9795.1(a) or (b); (2) Defendant knew he needed to register
under 42 Pa. C.S. §9795.2; and (3) Defendant knowingly failed to register with the
Pennsylvania State Police as required by 42 Pa. C.S. §9795.2. In the present case, the
evidence of the Commonwealth, if credited, more than tended to demonstrate that
Defendant was required to register, knew he had to register, and failed to register as
required by the aforementioned statutory provisions. For this reason, Defendant’s habeas
corpus claim in paragraph 5 was denied.
Paragraphs 6, 8, 9, 10, and 12 of Defendant’s Omnibus Pretrial Motion each
related to the constitutionality of registration requirements. Defendant relied on
Commonwealth v. Williams, 574 Pa. 487, 525-528, 832 A.2d 962, 985-986 (2003)
(“Williams II”), for the proposition that Megan’s Law was unconstitutional. Williams II
did not generally declare Megan’s Law to be unconstitutional. In Williams II, the
Supreme Court of Pennsylvania concluded that “Megan’s Law’s registration, notification,
and counseling provisions constitute non-punitive, regulatory measures supporting a
legitimate governmental purpose.” Id. at 528, 832 A.2d 986. All Williams II held
unconstitutional were the statute’s prescribed penalties for failure to register and verify
one’s residence, as applied to sexually violent predators. Id; see Commonwealth v. Lee,
594 Pa. 266, 271, 935 A.2d 865, 867 (2007) (stating that “the General Assembly enacted
Megan’s Law II the constitutionality of which this Court substantially upheld in . . .
Williams . . . with the exception that we found invalid the penalty provisions that attached
to sexually violent predators (SVP) who failed to comply with the provisions of the
statute.”) As Defendant had not been classified as a sexually violent predator, the
provisions found to be unconstitutional did not apply to him. Furthermore, the General
13
Assembly addressed this nonpertinent issue by amending Megan’s Law. See Act of Nov.
65
24, 2004, P.L. 1243, §§7-8, amending 42 Pa. C.S. §9792 et. seq.
In Commonwealth v. Wilson, 589 Pa. 559, 562, 910 A.2d 10, 12 (2006), the
Pennsylvania Supreme Court held that, where no sexually violent predator determination
occurs for an offender subject to lifetime registration, “the constitutional concerns that
required us to sever the penalty provisions in Williams II are absent. As a result, we find
the remaining provisions of Megan’s Law II, which establish criminal liability for failure
to comply with the Act’s requirements, are constitutional.” For these reasons,
Defendant’s Omnibus Pretrial Motion as constitutionally premised was denied.
Defendant’s second error complained of on appeal is that the evidence of non-
registration was insufficient to support the guilty verdict. On a challenge to the
sufficiency of the evidence in a criminal case, the proper test is “whether, viewing the
evidence in the light most favorable to the Commonwealth as verdict winner and drawing
all proper inferences favorable to the Commonwealth, the trier of fact could have
determined all the elements of the crime have been established beyond a reasonable
doubt.” Commonwealth v. O’Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290,
quoting Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995).
A challenge to the sufficiency of the evidence does not implicate a weighing of the
evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856 A.2d 131, 135. The
trier of fact is “free to believe all, part or none of the evidence.” Commonwealth v.
Petaccio, 2000 PA Super 384, ¶5, 764 A.2d 582, 585, quoting Commonwealth v.
Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986).
65
The amended version of Megan’s Law was evaluated for constitutionality in Commonwealth v. Lee,
594 Pa. 266, 279, 935 A.2d 865, 873 (2007). In Lee, the Pennsylvania Supreme Court utilized the United
States Supreme Court’s two-part test which asks “whether the legislature’s intent was to impose
punishment, and, if not, whether the statutory scheme is nonetheless so punitive either in purpose or effect
as to negate the legislature’s non-punitive intent.” Id. (citations omitted). The court in Lee concluded that
the legislature’s intent with respect to Megan’s Law was not punitive, that the statutory scheme was not
so punitive as to negate the legislature’s intent, and that Megan’s Law was now constitutional with
respect to sexually violent predators. Id. at 301, 935 A.2d 886; see also Act of Oct. 24, 1995, P.L. 1079,
§1, as amended 42 Pa. C.S. §9791.
14
In a case of the present type, the Commonwealth has the burden of proving
beyond a reasonable doubt that Defendant committed the offense of Failure To Comply
with Registration of Sexual Offenders Requirements under 18 Pa. C.S. §4915 (a)(1). The
Commonwealth meets this burden by proving that (1) Defendant was subject to
registration with the Pennsylvania State Police as required by 42 Pa. C.S. §9795.1(a) or
(b), (2) Defendant knew he needed to register under 42 Pa. C.S. §9795.2, and (3)
Defendant knowingly failed to register with the Pennsylvania State Police as required by
42 Pa. C.S. §9795.2.
The evidence produced at trial tended to show that Defendant had been previously
convicted of rape under 18 Pa. C.S. §3121. A conviction of this offense ultimately
subjected Defendant to the lifetime registration requirements of Megan’s Law under 42
Pa. C.S. §9795.1(b). The evidence also tended to show that on multiple occasions
Defendant was told of his registration requirements. His actual knowledge was further
evidenced by a prior guilty plea to a failure to register charge. Finally, the evidence
tended to show that Defendant did not register his change in address for the period
between April 29, 2008, and May 12, 2008, a period of 14 days. Therefore, the evidence
was sufficient for a jury to find the Defendant guilty of Failure To Comply with
Registration of Sexual Offenders Requirements.
Defendant, in his statement of errors complained of on appeal, argues against this
conclusion by raising several points. First, Defendant notes that he is not a child
molester. It is correct that Defendant has never been convicted of child molestation.
However, it is also true that under Megan’s Law a conviction for child molestation is not
a prerequisite to registration duties. A number of offenses requiring a convicted
individual to undergo lifetime registration may be committed without an act of child
molestation, including rape, involuntary deviate sexual intercourse, sexual assault, and
aggravated indecent assault. See Act of May 10, 2000, P.L. 74, §3, as amended, 42 Pa.
C.S. §9795.1(b).
Second, Defendant argues that he is not subject to the Community Reporting
Requirement of Megan’s Law according to the Commonwealth’s trial exhibits.
15
Defendant is correct that he is not subject to this requirement. Community reporting is
required if the convicted offender has been adjudged to be a sexually violent predator.
See Act of October 24, 1995, P.L. 1079, §1, as amended, 42 Pa. C.S. §9798. Defendant
was not adjudicated a sexually violent predator and was not subject to this requirement.
However, this fact did not absolve him of responsibility to comply with other
requirements of Megan’s Law.
Third, Defendant argues that the “victim” in this case is the same person who
facilitated, by posting bail, his release from the Dauphin County Prison in another case
and helped him establish a residence in New Cumberland, Pennsylvania. The purpose of
Megan’s Law has been expressed in the following terms:
If the public is provided adequate notice and information about
sexually violent predators and certain other offenders, the community can
develop constructive plans to prepare themselves and their children for the
offender's release. This allows communities to meet with law enforcement
to prepare and obtain information about the rights and responsibilities of
the community and to provide education and counseling to their children.
. . . .
It is hereby declared to be the intention of the General Assembly to
protect the safety and general welfare of the people of this Commonwealth
by providing for registration and community notification regarding
sexually violent predators who are about to be released from custody and
will live in or near their neighborhood. It is further declared to be the
policy of this Commonwealth to require the exchange of relevant
information about sexually violent predators among public agencies and
officials and to authorize the release of necessary and relevant information
about sexually violent predators to members of the general public as a
means of assuring public protection and shall not be construed as punitive.
Act of October 24, 1995, P.L. 1079, §1, as amended, 42 Pa. C.S. § 9791. Defendant
correctly notes that Ms. Gray was the same person that bailed him out of jail on April 29,
2008, and informed police that he was in violation of the registration requirements of
Megan’s Law. It is inconsequential that she both bailed him out and reported him.
Defendant, at all times pertinent hereto, was subject to a requirement that he properly
register under Megan’s Law, and he failed to do so. Defendant’s characterization of Ms.
Gray as the “victim” of the offense is also misplaced. The General Assembly has
indicated that the purpose of the statute is the protection of the people of the
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Commonwealth as a whole, not simply the individual who happens to report an offense to
authorities.
Fourth, Defendant asserts that Ms. Gray knew that Defendant had to establish a
new residence because of a fire. Again, such knowledge on the part of Ms. Gray had no
bearing on whether or not Defendant failed to comply with Megan’s Law. Furthermore,
Megan’s Law specifically addresses situations of the type posed by Defendant, stating
that, “[t]he occurrence of a natural disaster or other event requiring evacuation of
residences shall not relieve an individual of the duty to register or any other duty imposed
by this chapter.” Act of May 10, 2000, P.L. 74, §3, as amended, 42 Pa.C.S. § 9795.1(c).
Fifth, Defendant asserts that Ms. Gray took defendant to PennDOT to change his
address to that of the residence in New Cumberland, Pennsylvania. This is also
inconsequential. Megan’s Law requires offenders subject to its requirements to
specifically register with the Pennsylvania State Police. See Act of May 10, 2000, P.L.
74, §3, as amended, It was immaterial under the statute that
42 Pa.C.S. § 9795.1.
Defendant obtained a photo I.D. card using his new address or that Ms. Gray
accompanied him in the process.
Sixth, Defendant asserts that Ms. Gray, feigning fear and for an improper motive,
reported that she believed a sexual offender had moved into her neighborhood and was
concerned for her daughter’s safety. Ms. Gray’s alleged motive for the report, whether
sincere or feigned, was immaterial to the issue of Defendant’s failure to comply with the
law.
Seventh, Defendant asserts that he directly notified the Commonwealth of his
change of address via PennDOT in May of 2008, upon his release from the Dauphin
County Prison. As previously mentioned, Megan’s Law requires offenders subject to its
requirements to specifically register with the Pennsylvania State Police. See Act of May
10, 2000, P.L. 74, §3, as amended, It was not enough that Defendant
42 Pa.C.S. §9795.1.
obtained a photo I.D. card using his new address.
Eighth, Defendant asserts that the first place that the local police checked for
information as to any registered address of Eric K. Jones was PennDOT. This is not
17
entirely accurate. Officer Weaver testified that he began his investigation by looking at
the Pennsylvania State Police Megan’s Law website, and then spoke with the
Pennsylvania State Police Megan’s Law unit prior to searching the PennDOT records. In
any event, the mere fact that Defendant’s address was confirmed through PennDOT did
not serve to excuse Defendant from registration requirements.
Ninth, Defendant asserts that he was interviewed at the Dauphin County Prison
prior to his release in May 2008 and gave his prospective address to prison personnel.
Defendant, as part of the bail process upon his release from Dauphin County Prison, was
required to fill out paperwork relating to bail. This paperwork required Defendant to
disclose where he would be residing upon his release. However, this paperwork was (1)
for the sole purpose of facilitating his release on bail, (2) had nothing to do with Megan’s
Law, and (3) did not serve as a substitute for Megan’s Law registration.
Tenth, Defendant asserts that the Dauphin County Prison witness testified at trial
she would not have cared what defendant’s address was to be. Quite simply, the
registration requirement fell squarely on Defendant upon his release from the Dauphin
County Prison. The “DCP witness” was not the Pennsylvania State Police and
Defendant’s advice to her of where he would be living, if provided, would not have
satisfied Megan’s Law.
In the foregoing ten assertions, Defendant has basically placed the blame on others
for his failure to comply with the law. However, the evidence at trial showed that
Defendant was required to register, that he knew of this requirement, and that, despite
this knowledge, he failed to register. None of the assertions made by Defendant,
individually or collectively, shows that the evidence was insufficient to sustain the jury’s
verdict that Defendant was guilty of Failure To Comply with Registration of Sexual
Offenders Requirements.
Defendant’s third error complained of on appeal restates his position that Megan’s
Law is unconstitutional on due process, equal protection, and other grounds in violation
of the United States and Pennsylvania Constitutions and, further, constitutes cruel and
unusual punishment as applied to Defendant. The United States Supreme Court, in Smith
18
v. Doe, 538 U.S. 84, 91, 123 S.Ct. 1140, 1146 (2003), considered the issue of whether a
Megan’s Law constituted an ex post facto law as applied to individuals convicted of an
offense that, after the fact, subjected him or her to registration requirements. The
Supreme Court reviewed Alaska’s Megan’s Law statute and determined that the act was
non-punitive and that its retroactive application did not constitute an ex post facto law. Id.
at 105-06, 123 S.Ct. at 1154. In reaching this conclusion, The Supreme Court utilized a
two-part test. Id. at 92, 123 S.Ct. at 1146-47. Under this procedure, the first step was to
determine whether the legislature meant the statute to be punitive. Id. at 92, 123 S.Ct. at
1147. If the Legislature’s intention was to enact a non-punitive regulatory scheme, the
Court was then to take the second step and conduct a further examination as to whether
the statutory scheme was so punitive, either in purpose or effect, as to negate the State’s
intention to deem it civil. Id. The Supreme Court added that, “[b]ecause we ordinarily
defer to the legislature’s stated intent, . . . ‘only the clearest proof’ will suffice to override
legislative intent and transform what has been denominated a civil remedy into a criminal
penalty.” Id (citations omitted). The Pennsylvania legislature has declared the purpose of
Megan’s Law to be non-punitive. See Act of October 24, 1995, P.L. 1079, §1, as
amended, 42 Pa. C.S. § 9791.
In Lee, the Pennsylvania Supreme Court utilized the United States Supreme
Court’s two-part test and concluded that the legislature’s intent was not punitive and that
the statutory scheme was not so punitive as to negate the legislature’s intent, therefore
holding Megan’s Law constitutional in regard to its treatment of sexually violent
predators. Lee, 594 Pa. at 301, 935 A.2d at 886; see also Act of Oct. 24, 1995, P.L. 1079,
§1, as amended, 42 Pa. C.S. §9791. In Wilson, 589 Pa. at 562, 910 A.2d at 12, the
Pennsylvania Supreme Court held that, where no sexually violent predator determination
occurs for an offender subject to lifetime registration, “the constitutional concerns that
required us to sever the penalty provisions in Williams II are absent. As a result, we find
the remaining provisions of Megan’s Law II, which establish criminal liability for failure
to comply with the Act’s requirements, are constitutional.” As Megan’s Law has been
determined to be non-punitive, (1) it is not an ex post facto law, (2) it does not subject
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Defendant to a lifetime sentence for an offense for which he has served his debt to society
and (3) it does not constitute multiple punishments for the same offense.
As part of Defendant’s third error complained of on appeal, Defendant asserts a
number of reasons why Megan’s Law constitutes cruel and unusual punishment. The
reasons asserted by Defendant do not amount to a showing that Megan’s Law constitutes
cruel and unusual punishment. Megan’s Law is intended to be non-punitive. For this
reason it does not constitute an ex post facto law nor can it be considered an additional
punishment for the same offense. The registration requirements of Megan’s Law apply to
a number of types of offenders, not merely those determined to be sexually violent
predators or child molesters. See Act of May 10, 2000, P.L. 74, §3, as amended, 42 Pa.
C.S. §9795.1. Defendant was never determined to be a sexually violent predator, nor has
he been convicted of any crimes against a minor. Defendant is subject to lifetime
registration because he was found guilty of rape under 18 Pa. C.S. §3121. It is unclear
why Defendant regards himself as having been labeled a child molester as a result of his
conviction. In any event, any ignorance of the nature of Megan’s Law by those
Defendant has come in contact with is no reason to undermine the law or excuse
66
Defendant from having to comply with it. Defendant is correct that the community
notification requirements have no applicability to him because he was never found to be a
sexually violent predator; however, by virtue of this inapplicability, any infirmities of the
law with respect to its community notification provisions are of no avail to him.
Defendant’s fourth error complained of on appeal is that the Commonwealth failed
to establish the mens rea element with respect to Defendant’s alleged non-reporting
violation. An offense of Failure To Comply with Sexual Offender Registration
Requirements under 18 Pa. C.S. §4915 (a)(1) requires that a defendant knowingly fail to
register with the Pennsylvania State Police. The Commonwealth in the present case
66
In an effort to alleviate any difficulties which Defendant might experience in the future by reason of
such misperceptions, the court added the following sentence to the sentencing order dated December 23,
2008, filed December 24, 2008: “It is noted that the Defendant’s prior record does not include any
conviction for child molestation.”
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offered several witnesses and a previous conviction to show that Defendant had the
requisite knowledge of his duty to register under Megan’s Law.
Defendant’s fifth error complained of on appeal is that, during voir dire, the
Commonwealth’s revelation of defendant’s prior rape conviction and discussion of the
instant prosecution was inflammatory, unfair, and prejudicial and denied Defendant a fair
and impartial trial. Issues relating to the voir dire of prospective jurors are waived where
no specific objections are made at the time of voir dire. Commonwealth v. Doe, 316 Pa.
Super. 1, 6, 462 A.2d 762, 765 (1983); see also Commonwealth v. Miller, 2006 PA Super
91, ¶20, 897 A.2d 1281, 1290 (noting that “defense counsel did not challenge the
Commonwealth's question and therefore any objection is waived”). As a result of failing
to specifically object during the voir dire process, Defendant waived this issue.
Furthermore, in the court’s view, and given the facts of the case and elements of the
crime charged, none of the prosecutor’s statements or questions during voir dire was
inflammatory or otherwise rose to the level of an impropriety.
Defendant’s sixth error complained of on appeal is that he was denied a fair and
impartial trial by the Commonwealth’s repeated and erroneous statements that Defendant
had pled guilty to rape when he did not. As a general rule, issues not raised in the lower
court are waived and cannot be raised for the first time on appeal. Pa. R.A.P. 302(a). No
objection was raised by Defendant when Trooper Henneman stated that Defendant had
pled guilty to rape. Therefore this issue is deemed waived for appeal. Notwithstanding
this issue’s having been waived, the record indicated that Defendant had in fact pled
guilty to rape. As previously noted, the fact that Defendant had this prior conviction was
a necessary element of the Commonwealth’s case.
Defendant’s seventh error complained of on appeal is that the evidence of a prior
conviction for failing to register under Megan’s Law was prejudicial and denied
Defendant a fair trial. Defendant would not stipulate to this previous conviction.
Pennsylvania Rule of Evidence 404(b)(1) states that, “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show action in
conformity therewith.” Pennsylvania Rule of Evidence 404(b)(2) states that, “[e]vidence
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of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” Pennsylvania Rule of Evidence 404(b)(3) states that, “[e]vidence of other
crimes, wrongs, or acts . . . may be admitted in a criminal case only upon a showing that
the probative value of the evidence outweighs its potential for prejudice.” Defendant’s
prior conviction was at issue in Commonwealth’s Motion in Limine, prior to trial. The
evidence of prior conviction was ruled admissible for the sole purpose of proving the
Defendant’s knowledge. The jury was instructed, immediately following the testimony
on the subject, regarding how the evidence could be considered. This limiting instruction
was affirmatively approved by Defendant’s counsel. The probative value of this
evidence in showing Defendant’s knowledge of his requirement to register under
Megan’s Law far outweighed any potential prejudice against Defendant, in the court’s
view.
Defendant’s eighth error complained of on appeal is that his sentence was
excessive under the circumstances. Pennsylvania Rule of Appellate Procedure 2119(f)
states, “[a]n appellant who challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence. The statement
shall immediately precede the argument on the merits with respect to the discretionary
aspects of sentence.” Commonwealth v. Crork, 2009 PA Super 24, ¶10, --- A.2d ----, is
on point.
Where an appellant challenges the discretionary aspects of a
sentence, there is no automatic right to appeal and an appellant’s
appeal should be considered a petition for allowance of appeal.
Before a challenge to a judgment of sentence will be heard on the
merits, an appellant first must set forth in his or her brief a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of his or her sentence.
Id. (citations omitted)
When a sentence falls outside of the guideline range, the primary question is
whether the sentence was reasonable. Id.
22
In reviewing the record the appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history and
characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant,
including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
Act of November 26, 1978, P.L. 1316, §3, as amended, 42 Pa. C.S. §9781(d).
A sentence may be found unreasonable if it fails to properly account for these four
statutory factors. Crork, 2009 PA Super at ¶10. Challenges to the discretionary aspects
of sentencing must be raised in a post-sentence motion or during the sentencing
proceedings. Com. v. Mann, 2003 PA Super 119, ¶19, 820 A.2d 788, 794 (citations
omitted). Otherwise, an objection to the discretionary aspects is waived. Id. (citations
omitted). “Challenges to the discretionary aspects of sentencing do not entitle appellant
to appellate review as of right.” Com. v. Evans, 2006 PA Super 132, ¶9, 901 A.2d 528,
533. (citation omitted) Prior to reaching the merits of a discretionary sentencing issue:
We conduct a four part analysis to determine: (1) whether appellant
has filed a timely notice of appeal, see Pa. R.A.P. 902 and 903; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see Pa. R. Crim. P. 1410
[now Rule 720]; (3) whether appellant’s brief has a fatal defect, Pa.
R.A.P. 2119(f); and (4) whether there is a substantial question that
the sentence appealed from is not appropriate under the Sentencing
Code, [42 Pa. C.S. §9781(b)].
Id. (citations omitted)
In the present case, it is believed that Defendant will not be able to adequately set
forth the merits of an appeal for the discretionary aspects of his sentence. Furthermore,
Defendant’s sentence fell within the bounds of reasonableness under 42 Pa. C.S.
§9781(d). Finally, Defendant’s sentence was within the standard range of sentencing and
the undersigned judge in fact rejected the Commonwealth’s argument that a five-year
mandatory sentence applied to the case.
23
Defendant’s ninth error complained of on appeal is that the application of
mandatory sentencing against him was error and unconstitutional and an ex post facto
law. The mandatory sentencing provision that Defendant is apparently complaining of
was not applied. As previously mentioned, the five-year mandatory sentence was
rejected. Defendant was sentenced within the standard range of the sentencing
guidelines, without regard to the lesser mandatory sentence that did apply.
Defendant’s final matter complained of on appeal is that Megan’s Law is a penal
statute and that its applicability to him is so punitive in its purpose and effect as to negate
the legislature’s non-punitive intent and is thus unconstitutional. As previously stated,
Megan’s Law has been found to be non-punitive and constitutional. See Lee, 594 Pa.
266, 279, 935 A.2d 865, 873; see also Wilson, 589 Pa. 559, 562, 910 A.2d 10, 12.
For the foregoing reasons, it is believed that the judgment of sentence was
properly entered.
BY THE COURT,
__________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
John M. Shugars, Esq.
Senior Assistant Public Defender
24