Com. v. Neetz, R. ( 2017 )

J-S94025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RONALD WILLIAM NEETZ,
Appellant No. 752 MDA 2016
Appeal from the Judgment of Sentence February 22, 2016
in the Court of Common Pleas of Clinton County Criminal Division
at No(s): CP-18-CR-0000233-2015
BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.
CONCURRING MEMORANDUM BY FITZGERALD, J.: FILED MAY 30, 2017
I respectfully concur in the result. In my opinion, the Rules of
Appellate Procedure do not permit us to treat the issues in Appellant Ronald
William Neetz’s brief as waived. For the reasons articulated below, I
conclude that the evidence was sufficient to sustain his conviction for failure
to comply with sex offender registration requirements.1
The relevant procedural history is as follows. The jury found Appellant
guilty of failure to comply with sex offender registration requirements.
Following sentencing, Appellant filed post-sentence motions, which the trial
court denied in a written opinion. Appellant timely appealed from the order
denying post-sentence motions. On May 20, 2016, the trial court ordered
Appellant to file a Pa.R.A.P. 1925(b) statement within twenty-one days.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 4915.1(a)(2).
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Appellant’s counsel did not file a Pa.R.A.P. 1925(b) statement until July 12,
2016, beyond the twenty-one day deadline. Nevertheless, the trial court
issued a Pa.R.A.P. 1925(a) opinion in which it incorporated by reference its
April 29, 2016 opinion denying Appellant’s post-sentence motions.
In his appellate brief, Appellant raises the same issues that he raised
in his post-sentence motions and in his untimely Pa.R.A.P. 1925(b)
statement, namely challenges to the sufficiency of the evidence.
The Rules of Appellate Procedure provide in relevant part:
If an appellant in a criminal case was ordered to file a
[Pa.R.A.P. 1925(b)] Statement and failed to do so, such
that the appellate court is convinced that counsel has been
per se ineffective, the appellate court shall remand for the
filing of a [Pa.R.A.P. 1925(b)] Statement nunc pro tunc
and for the preparation and filing of an opinion by the
judge.
Pa.R.A.P. 1925(c)(3). The proceedings in this case effectively satisfy Rule
1925(c)(3). From review of the record, I am convinced that Appellant’s
counsel was per se ineffective for failing to file a timely Pa.R.A.P. 1925(b)
statement. The normal procedure in this circumstance would be to remand
to the trial court “for the filing of a [Pa.R.A.P. 1925(b)] Statement nunc pro
tunc and for the preparation and filing of an opinion by the judge.” Id.
Here, however, these steps have already taken place: Appellant filed an
untimely Pa.R.A.P. 1925(b) statement, and the trial court then issued a
Pa.R.A.P. 1925(a) opinion. Thus, remand is unnecessary, and we should
decide this appeal on the merits. See Commonwealth v. Burton, 973
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A.2d 428, 433 (Pa. Super. 2009) (en banc) (“if there has been an untimely
filing [of a Pa.R.A.P. 1925(b) statement], this Court may decide the appeal
on the merits if the trial court had adequate opportunity to prepare an
opinion addressing the issues being raised on appeal”).
On the merits, I reluctantly conclude that Appellant’s arguments lack
merit. The jury found Appellant guilty of violating 18 Pa.C.S. §
4915.1(a)(2), which provides: “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: . . . (2) verify his address . . . as required under 42
Pa.C.S. § 9799.15 . . .” Section 9799.15(g)(2) provides that a sex offender
“shall appear in person at an approved registration site within three business
days to provide current information relating to . . . commencement of
residence, change in residence, termination of residence or failure to
maintain a residence, thus making the individual a transient.” 42 Pa.C.S. §
9799.15(g)(2).2 A residence is defined as “[a] location where an individual
resides or is domiciled or intends to be domiciled for 30 consecutive days or
more during a calendar year . . . .” 42 Pa.C.S. § 9799.12.
Appellant argues that the evidence was insufficient to prove that he
violated section 9799.15(g)(2) or that his violation was “knowing.”
2
I note that the Commonwealth Court held the “in person” provision
unconstitutional in Coppolino v. Noonan, 102 A.3d 1254, 1278-79 (Pa.
Cmwlth. 2014) (en banc), aff’d, 125 A.3d 1196 (Pa. 2016), a decision issued
before the events in this case. Appellant, however, does not challenge the
constitutionality of this provision in this appeal.
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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial the in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the finder of fact [,]
while passing upon the credibility of witnesses and the
weight of the evidence produced is free to believe all, part
or none of the evidence.
Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)
(citation omitted), appeal den., 138 A.3d 4 (Pa. 2016).
The evidence of record demonstrates that Appellant is a Tier III sex
offender who is required to register for his entire lifetime. On March 9,
2015, Clinton County Children and Youth Social Services Agency personnel
informed Appellant that he needed to leave his residence on 105 East Main
Street, Loganton, Pennsylvania because other children were residing in this
residence. The evidence shows that Appellant moved to a new address at 9
West Main Street, Loganton, Pennsylvania, but failed to appear in person at
an approved registration site within three business days to provide current
information relating to this change in residence. On March 23, 2015, a state
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trooper confronted Appellant at 9 West Main Street and asked him if he
resided there. Appellant answered that he did and added that he had been
asked to move out of 105 East Main Street. The trooper placed Appellant
under arrest for failing to report his change in address. The trooper
accompanied Appellant into an apartment, and Appellant retrieved
medication from a bedroom, which he described as his bedroom.
Construed in the light most favorable to the Commonwealth, the
evidence demonstrates that Appellant had moved into 105 East Main Street
and intended to be domiciled there for more than thirty days. He knowingly
failed to report this change in residence at an approved registration site
within three business days after March 9, 2015, the date he was directed to
leave his former residence. Thus, the evidence was sufficient to sustain his
conviction under 18 Pa.C.S. § 4915.1(a)(2).
For these reasons, I respectfully concur in the result.
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