Com. v. Calloway, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD CALLOWAY :
:
Appellant : No. 655 WDA 2022
Appeal from the Judgment of Sentence Entered May 5, 2022
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001065-2021
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED: June 28, 2023
Ronald Calloway appeals from the judgment of sentence of forty to 120
months of incarceration, followed by twelve months of mandatory state re-
entry supervision, imposed after a jury found him guilty of failure to verify his
address pursuant to his sexual offender registration requirements. We affirm.
By way of background, Appellant pled guilty in 2007 to one count of
indecent assault as a misdemeanor of the first degree for an act occurring in
2006. He was sentenced to a period of incarceration of six to twelve months
and ordered to comply with the conditions of parole. One of those conditions
was compliance with Megan’s Law registration. See Commonwealth’s Exhibit
1 (Appellant’s Parole Minimum Summary, 9/7/11, at 1). Although it is unclear
from the record, it appears that Appellant remained incarcerated following the
expiration of the twelve-month maximum he received for the indecent assault
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conviction.1 Regardless, his Megan’s Law paperwork listed his registration
start date as October 17, 2012, and his registration end date as October 17,
2022. See e.g., Exhibit 2 (Appellant’s Sexual Offender Registration,
11/12/20).
Before discussing the conduct underlying Appellant’s failure to verify his
address, we take a brief detour into the pertinent amendments to sexual
offender registration in Pennsylvania. At the time Appellant was sentenced in
2007, he was subject to a ten-year registration term pursuant to Megan’s Law
III. Megan’s Law III remained the relevant statute on the books at the time
he began his registration in October 2012.
Later that year, however, our legislature replaced Megan’s Law III with
Megan’s Law IV, more commonly known as the Sex Offender Registration and
Notification Act (“SORNA”). See Commonwealth v. Derhammer, 173 A.3d
____________________________________________1 In its Pa.R.A.P. 1925(a) opinion, the trial court indicates that “Appellant’s
registration period was tolled because the Appellant was incarcerated. The
fact that that the Appellant was incarcerated was inadmissible because it was
more prejudicial than probative.” Trial Court Opinion, 7/8/22, at 2. Notably,
the record is devoid of any argument or decision related to the admissibility
of any periods of incarceration. However, we note with displeasure that the
transcript references several sidebar conferences, including the resolution of
objections, that were held off the record. It is possible that discussions
relevant to the issues discussed infra were held during those sidebar
conferences, but by virtue of Appellant’s failure to ensure their inclusion in the
certified record, this Court cannot consider anything that may have been
discussed therein in rendering our decision. See Commonwealth v. Lopez,
57 A.3d 74, 82 (Pa.Super. 2012) (noting that “it is an appellant’s duty to
ensure that the certified record is complete for purposes of review” and
whenever “portions of a proceeding are unrecorded, appellant’s burden to
supply a record may be satisfied through the statement in absence of
transcript procedures” (cleaned up)).
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723, 725 (Pa. 2017). After that, our Supreme Court held that Megan’s Law
III was unconstitutional in its entirety because its enactment had violated the
Pennsylvania Constitution’s single-subject rule. See Commonwealth v.
Neiman, 84 A.3d 603 (Pa. 2013). Our High Court stayed its decision “to
provide a reasonable amount of time for the General Assembly to consider
appropriate remedial measures, or to allow for a smooth transition period” for
those registrants, like Appellant, whose offenses had been committed when
Megan’s Law III was in effect. Id. at 616. In response, the legislature
modified SORNA “to clarify that persons who were required to register with
the state police at any time before SORNA’s effective date, and whose
registration period had not expired, were still obligated to register with the
state police as provided in Section 9799.15[.]” Derhammer, supra at 726.
Meanwhile, in 2017, our Supreme Court held the retroactive application
of SORNA upon defendants, like Appellant, whose crimes had been committed
before the passage of SORNA was unconstitutional pursuant to the ex post
facto clause of the Pennsylvania Constitution. See Commonwealth v.
Muniz, 164 A.3d 1189, 1193 (Pa. 2017); see also Commonwealth v. Hart,
174 A.3d 660, 667 n.9 (Pa.Super. 2017) (“[T]he binding precedent emerging
from Muniz is confined to the determination that SORNA’s registration
requirement is punishment that runs afoul of the ex post facto clause of the
Pennsylvania Constitution when applied retroactively.”). In February 2018,
our legislature overhauled SORNA in response to Muniz. Of relevance here,
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individuals whose offenses were committed “on or after April 22, 1996, but
before December 20, 2012” fell under the provisions of Subchapter I. See 42
Pa.C.S. § 9799.52(1). Thus, as of 2018, Appellant has been required to
register pursuant to Subchapter I.2
Pertinent to this appeal, Subchapter I required Appellant to, inter alia,
inform the Pennsylvania State Police (“PSP”) within three business days of a
change in residence and to report annually to verify his residence. See 42
Pa.C.S. §§ 9799.56(a)(2)(i) (notification regarding change of residence),
9799.60 (b) (annual verification of residence). In compliance therewith,
Appellant registered a new address at Edgemont Drive in Uniontown,
Pennsylvania in November 2020. The home was owned by Appellant’s then-
girlfriend, Klarissa Hollins, and Appellant lived there with her until April 5,
2021, when he moved out as a result of a Protection From Abuse (“PFA”) order
Ms. Hollins obtained against him. Despite having changed his residence,
Appellant did not update his address with PSP within the requisite three days.
Additionally, when he reported to PSP on April 26, 2021, for the annual
verification of his residence, he continued to list the Edgemont Drive address.
____________________________________________
2 We note that SORNA initially enlarged Appellant’s registration period to
fifteen years. However, Subchapter I reverted Appellant’s registration period
to the original ten-year period.
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Due to this failure to update his address, Appellant was charged as indicated
hereinabove.3
On May 2, 2022, Appellant proceeded to a two-day jury trial. Of
relevance to the instant appeal, the Commonwealth presented testimony from
PSP Trooper Jessica Zangla, as well as the above-cited Exhibits 1 and 2, to
establish that Appellant’s ten-year period of registration ran from October 17,
2012, to October 17, 2022. Appellant argued, among other things, that the
Commonwealth failed to prove why the registration start date was tolled until
October 2012, and therefore failed to establish that Appellant was subject to
registration in 2021. See N.T. Trial, 5/2/22, at 76. At the conclusion of the
trial, the jury found Appellant guilty.
On May 5, 2022, the trial court sentenced Appellant as indicated
hereinabove. This timely appeal followed. Both Appellant and the trial court
have complied with Pa.R.A.P. 1925. Appellant raises the following issues for
our review:
1. Whether the Commonwealth failed to present sufficient
evidence to prove beyond a reasonable doubt that [Appellant]
was subject to Megan’s Law registration at the time of the
alleged offense, and thus failed to prove that [Appellant]
violated 18 Pa.C.S. § 4915.1(a)(2).
____________________________________________
3 Although the Commonwealth initially charged Appellant for failure to comply
with Subchapter H’s registration requirements, the trial court permitted the
Commonwealth to amend the information to a violation of 18 Pa.C.S.
§ 4915.2, which relates to failure to comply with Subchapter I’s registration
requirements. See N.T. Trial, 5/2/22, at 14 (noting the court’s approval of
the amendment).
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2. Whether the trial court erred in permitting the Commonwealth
to offer the Megan’s Law file as a business record under Pa.R.E.
803(6) or 902 where the documents were not properly
authenticated?
3. Whether [Appellant] was denied his Sixth Amendment right to
confront witnesses against him where the Commonwealth was
permitted to rely upon the unauthenticated Megan’s Law firm
[sic] and Trooper Zangla’s hearsay testimony regarding
Appellant’s registration start and end dates?
Appellant’s brief at 5 (reordered for ease of disposition).
We first address Appellant’s sufficiency challenge “[b]ecause a
successful sufficiency of the evidence claim warrants discharge on the
pertinent crime[.]” Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.Super.
2013) (cleaned up). We consider this claim mindful of our well-settled
standard of review:
When reviewing a sufficiency-of-the-evidence claim, we face a
question of law. Accordingly, our standard of review is de novo.
We view the evidence in the light most favorable to the
Commonwealth, as the verdict winner, and we draw all reasonable
inferences therefrom in the Commonwealth’s favor. Through this
lens, we must ascertain whether the Commonwealth proved all of
the elements of the crime at issue beyond a reasonable doubt.
The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Moreover, we may not weigh the
evidence and substitute our judgment for the factfinder. Any
doubts regarding a defendant’s guilt may be resolved by the
factfinder, 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. Critically, the jury, when ruling on the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part, or none of the evidence.
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Commonwealth v. Roberts, ___ A.3d ___, 2023 WL 2358844, at *1
(Pa.Super. 2023) (cleaned up). Appellant was charged with failure to verify
his address, which is defined in relevant part as follows:
(a) Offense defined.--An individual who is subject to
registration under 42 Pa.C.S. § 9799.55(a), (a.1) or (b) (relating
to registration) or who was subject to registration under former
42 Pa.C.S. § 9793 (relating to registration of certain offenders for
ten years) commits an offense if the individual knowingly fails to:
....
(2) verify the individual’s residence or be photographed as
required under 42 Pa.C.S. § 9799.60 (relating to verification
of residence)[.]
....
(f) Applicability.--This section applies to:
(1) An individual who committed an offense set forth in 42
Pa.C.S. § 9799.55 on or after April 22, 1996, but before
December 20, 2012, and whose period of registration under
42 Pa.C.S. § 9799.55 has not expired.
18 Pa.C.S. § 4915.2.
Appellant does not challenge the elements of the offense, but rather
whether the Commonwealth proved beyond a reasonable doubt that
Appellant’s ten-year registration for his 2007 conviction had not expired as of
April 2021, where the Commonwealth did not present evidence of why his
start date did not begin until 2012. See Appellant’s brief at 20-21. In other
words, Appellant contests the statute’s applicability. According to Appellant,
“the jury could not reasonably infer that certain periods of time were tolled as
there was no evidence presented as to any tolling.” Id. at 21.
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At trial, Trooper Zangla testified that, based upon Appellant’s Megan’s
Law file, he is classified as a ten-year registrant whose active registration
began on October 17, 2012. See N.T. Trial, 5/2/22, at 40-41, 47.
Additionally, the Commonwealth introduced Appellant’s sexual offender
registration from November 2020, which he signed, and which states that his
ten-year registration period ran from October 17, 2012 to October 17, 2022.
See Commonwealth’s Exhibit 2 (Appellant’s Sexual Offender Registration,
11/12/20). Based on the foregoing, the evidence was sufficient for the jury
to determine that Appellant was subject to sexual offender registration when
he neglected to update his address in April 2021. See Roberts, supra at *3
(finding evidence sufficient to establish that defendant was a lifetime
registrant where the trooper “flatly told the jury that Roberts was a lifetime
registrant, and the jury believed him”). It was squarely within the jury’s
purview to find Trooper Zangla and Appellant’s November 2020 registration
form credible in determining Appellant’s registration period. The
Commonwealth bore the burden of establishing that Appellant was subject to
registration at the time he failed to update his address, it was not required to
explain why. Accordingly, Appellant’s first claim lacks merit.
Appellant’s next issue attacks the trial court’s decision to permit Trooper
Zangla’s testimony about Appellant’s registration start and end dates based
upon hearsay evidence from an unauthenticated Megan’s Law file. See
Appellant’s brief at 17-18. Specifically, Appellant challenges the admission of
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Exhibit 1 (Appellant’s Parole Minimum Summary, 9/7/11) and Exhibit 2
(Appellant’s Sexual Offender Registration, 11/12/20).
We consider this claim mindful of the following legal principles.
Evidentiary rulings lie within the sound discretion of the trial court and will
only be overturned where the court has abused its discretion. See
Commonwealth v. DiStefano, 265 A.3d 290, 297-98 (Pa. 2021). “An
appellant cannot meet this burden by simply persuading an appellate court
that it may have reached a different conclusion than that reached by the trial
court; rather, to overcome this heavy burden, the appellant must demonstrate
that the trial court actually abused its discretionary power.” Id. at 298
(cleaned up). This Court has explained that an abuse of discretion is “not
merely an error of judgment, but is rather the overriding or misapplication of
the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the evidence of
record.” Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014)
(cleaned up). Finally, an abuse of discretion based upon a disagreement with
the trial court’s decision is improper, as this Court is not permitted to
“substitute [our] own judgment for that of the trial court.” DiStefano, supra
at 298 (cleaned up).
With respect to the admissibility of hearsay evidence, “Pennsylvania
Rule of Evidence 801 defines hearsay as an out-of-court statement made by
a declarant, which is offered into evidence to prove the truth of the matter
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asserted. This type of evidence is generally inadmissible at trial unless it falls
into an exception to the hearsay rule.” Commonwealth v. Wallace, 289
A.3d 894, 895 (Pa. 2023) (cleaned up). The relevant exception in this appeal
is the business records exception, which provides as follows:
A record (which includes a memorandum, report, or data
compilation in any form) of an act, event or condition if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6).
In considering this issue, we find persuasive this Court’s recent decision
in Commonwealth v. Fornah, 285 A.3d 900 (Pa.Super. 2022) (non-
precedential decision). Therein, the defendant was charged with failing to
comply with Subchapter I’s registration requirements. Fornah was a lifetime
registrant under Subchapter I based upon a 1989 conviction for rape in
Washington state. In responding to a disturbance at Fornah’s residence, an
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officer learned that Fornah had an outstanding warrant in Washington for a
Megan’s Law violation. The officer conveyed this information to the police
department’s Megan’s Law liaison, Detective Heather Halstead. Detective
Halstead, in turn, confirmed Fornah’s triggering conviction, corresponding
registration requirements, and outstanding warrant with officials in
Washington State, who supplied her with certified copies of the relevant court
records. When Detective Halstead informed Fornah that he was required to
register in Pennsylvania pursuant to SORNA, he disagreed, claiming he was
innocent of the underlying offense. Upon learning from the PSP that Fornah
had failed to register as a sexual offender, she obtained a warrant for his
arrest.
At Fornah’s trial, PSP Trooper Chad Roberts testified that he was the
liaison for the Megan’s Law unit in Harrisburg and detailed, among other
things, the PSP SORNA checklist used with regard to Fornah’s registration
status. Fornah’s counsel objected to the testimony regarding the PSP checklist
as violative of Fornah’s right to confrontation and because it constituted
inadmissible hearsay. With respect to the hearsay challenge, the trial court
determined, over Fornah’s objection, that Trooper Roberts qualified as a
custodian for the PSP checklist:
In his testimony, Trooper Roberts stated that as part of his
professional duties he worked with the PSP Megan’s Law unit in
Harrisburg, responsible for determining if an individual needs to
register based on their past convictions. PSP maintains the state-
wide registry of all persons convicted of sex offenses, including
out-of-state offenders who were required to register in
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Pennsylvania. Trooper Roberts had access to all of the records
kept by the Megan’s Law Unit in Harrisburg, and those records
were maintained under the care and custody of PSP in their
regular course of business. Trooper Roberts stated that “we would
obtain the actual records from the Megan’s Law Unit and be a
keeper of those records to present in court testimony like we are
here today.”
Id. (non-precedential decision at 13) (cleaned up). Pursuant to Rule 803(6),
this Court concluded that the trial court did not abuse its discretion in finding
that Trooper Roberts qualified as a custodian for the PSP checklist.
Here, Trooper Zangla testified that she was a Megan’s Law liaison for
the PSP. See N.T., 5/2/22, at 34. She explained to the jury the basic purpose
of Megan’s Law, that the PSP is tasked with maintaining Pennsylvania’s sexual
offender registry, and that the PSP works with other jurisdictions and state
agencies to monitor registration. Id. at 35. Additionally, Trooper Zangla
testified generally as to how offenders are notified of the need to register
initially and annually, where they go to register, and the time frame for
updating a change in address arising outside the annual reporting
requirement. Id. at 36-39. With respect to Appellant, Trooper Zangla brought
Appellant’s Megan’s Law file, which included “all of his registration and court
documentation, everything for Megan’s Law.” Id. at 40. Exhibits 1 and 2
were contained within that file and specifically pulled out as exhibits. Based
in part upon those exhibits, Trooper Zangla testified as to Appellant’s ten-year
period of registration and the attendant reporting requirements.
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Considering the foregoing, the trial court determined that Trooper
Zangla, as a Megan’s Law liaison, was a custodian of the Megan’s Law file.
Further, it concluded that the file, which included Exhibits 1 and 2, was kept
in the regular course of the PSP’s activities. See N.T. Trial, 5/2/22, at 58-59;
N.T. Trial, 5/3/22, at 9-10. Upon review of the certified record, we discern no
abuse of discretion in the trial court’s conclusions.
Appellant makes one final attempt at assailing the Commonwealth’s
evidence regarding the start date for his sexual offender registration.
Specifically, he argues that “Trooper Zangla’s hearsay testimony and the
documents contained in the Megan’s Law file were clearly testimonial in
nature, and thus [Appellant] was denied his right to cross-examine witnesses
who claimed his registration start date began on October 17, 2012, when he
was convicted of the underlying charge [in] 2007.” Appellant’s brief at 14.
We consider this final argument within the following framework.
“Whether a defendant has been denied his right to confront a witness is a
question of law for which our standard of review is de novo and our scope of
review is plenary.” Commonwealth v. Fitzgerald, 284 A.3d 465, 470
(Pa.Super. 2022) (cleaned up). Our Supreme Court has explained the
Confrontation Clause as follows:
The Confrontation Clause of the Sixth Amendment, made
applicable to the States via the Fourteenth Amendment, provides
that in all criminal prosecutions, the accused shall enjoy the right
to be confronted with the witnesses against him. [The U.S.
Supreme] Court held that the Sixth Amendment guarantees a
defendant’s right to confront those who bear testimony against
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him, and defined testimony as a solemn declaration or affirmation
made for the purpose of establishing or proving some fact. The
Confrontation Clause, the High Court explained, prohibits out-of-
court testimonial statements by a witness unless the witness is
unavailable and the defendant had a prior opportunity for cross-
examination.
Commonwealth v. Yohe, 79 A.3d 520, 530–31 (Pa. 2013) (cleaned up).
To determine whether a statement is testimonial, “and, therefore,
subject to the protections of the Confrontation Clause . . ., a court must review
the statement itself in order to determine whether the primary purpose of the
evidence was to establish or prove past events relevant to a later criminal
prosecution.” Id. (cleaned up). Notably, “even if a record falls within the
business record exception, its admission may still violate the Confrontation
Clause of the Sixth Amendment of United States Constitution.”
Commonwealth v. Carter, 932 A.2d 1261, 1264 (Pa. 2007) (cleaned up).
Once again, we find instructive this Court’s decision in Fornah. The
Fornah Court held that the “PSP’s worksheet was not testimonial and
therefore its admission through Trooper Roberts’[s] testimony did not violate
the Confrontation Clause.” Fornah, supra (non-precedential decision at 15).
In so holding, this Court observed that “the PSP worksheet was not created
for an evidentiary purpose and the PSP did not create the worksheet ‘under
circumstances which would lead an objective witness reasonably to believe
that the [document] would be available for use at a later trial.’” Id. (non-
precedential decision at 15) (quoting Yohe, supra at 537 (citation omitted)).
Rather, we concluded that “the report’s primary purpose was to determine
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whether Fornah had to register under SORNA, and the PSP had a statutory
duty to maintain a sex offender database. See 42 Pa.C.S. § 9799.67.”
Fornah, supra (non-precedential decision at 15-16) (cleaned up).
Here, Appellant challenges the admission of Trooper Zangla’s testimony
and Exhibits 1 and 2. We begin with Trooper Zangla’s testimony. Plainly,
Appellant’s right to confront Trooper Zangla was not violated as there were no
out-of-court statements made by Trooper Zangla admitted at trial. Even if
there had been, she was clearly available and subject to cross-examination
and two rounds of re-cross-examination. As to Appellant’s argument that
Trooper Zangla’s testimony regarding his registration start and end dates
based upon documents contained in the Megan’s Law file violated his right to
confrontation, our review of the record confirms that Appellant not only had
ample opportunity to attack her reliance on those documents and the
credibility of any testimony based thereon, but in fact did so. See N.T. Trial,
5/2/22, at 49-50 (“Your testimony that you been giving today is that you have
a bunch of documents that you went through and you are telling us what these
documents say; is that correct?”), 69-70 (highlighting that Trooper Zangla
was relying on parole documents while not being connected to the parole
board in any way). Accordingly, it is wholly apparent that Appellant was not
denied his right to confrontation with respect to Trooper Zangla’s testimony.
We now turn to the documentary evidence. Upon review of the certified
record, we conclude that Exhibits 1 and 2 are similar to the PSP worksheet
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discussed in Fornah. To wit, Appellant’s Megan’s Law file was required to be
maintained pursuant to § 9799.67, which outlines the duties of the PSP
regarding the creation and maintenance of a statewide sexual offender
registry. The file was created to determine whether Appellant had to register,
not for an evidentiary purpose or in a manner that would lead an objective
individual to reasonably believe that the file would be used at a later trial. The
same holds true for the individually admitted documents contained therein,
i.e., Appellant’s parole summary and Appellant’s November 2020 sexual
offender registration. Since the contested documents are not testimonial, the
Confrontation Clause is not implicated and Appellant’s argument fails.
To summarize, we determine that the evidence was sufficient to sustain
Appellant’s conviction, that the trial court did not abuse its discretion in
admitting Exhibits 1 and 2 pursuant to the business record exception, and the
admission of evidence regarding Appellant’s registration period did not violate
his right to confrontation. Thus, we affirm his judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2023
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