Com. v. Farquharson, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEVON G. FARQUHARSON, JR. :
:
Appellant : No. 637 WDA 2020
Appeal from the Judgment of Sentence Entered February 11, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000109-2019
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: September 8, 2021
Devon G. Farquharson, Jr. appeals from the judgment of sentence
entered after a jury found him guilty of four charges relating to failure to
comply with sex offender registration requirements. Farquharson challenges
the weight and sufficiency of the evidence and argues that his convictions and
designation as a sexually violent predator (“SVP”) were unconstitutional,
pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). He also
contends that a faulty jury charge, improper testimony, and the prosecutor’s
argument so prejudiced him that he is entitled to a new trial. We affirm.
In 2003, Farquharson committed a sexual offense that required him to
register monthly as a sex offender. In addition, he was found to be an SVP in
a related proceeding. Trial Ct. Op., filed 07/29/20, at 1.
On July 19, 2017, the Pennsylvania Supreme Court decided Muniz. That
decision held that the application of the Sex Offender Registration and
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Notification Act (“SORNA”) violated the Ex Post Facto Clauses of the federal
and state constitutions. Following the decision, the registration statuses of
certain offenders, including Farquharson, changed to “Pending – Review” in
the Pennsylvania State Police computer systems. See Farquharson’s Br. at 11.
Farquharson complied with his monthly registration requirements in
December of 2017, January of 2018, and February of 2018. During those
months, Farquharson registered as a transient.
In response to the uncertainty surrounding the registration laws, in
February 2018, the General Assembly passed, and Governor Tom Wolf signed
into law, Act 10 of 2018.1 See Commonwealth v. Lacombe, 234 A.3d 602,
615 (Pa. 2020). It went into effect February 21, 2018.2 Act 10 applies to
defendants convicted of sexually violent offenses whose crimes had occurred
after April 22, 1996 and before December 20, 2012. See id.. It requires those
designated SVPs to register for life. Id.; see also 42 Pa.C.S. § 9799.55(b)(3).
Ultimately, the Pennsylvania Supreme Court held that the requirements of Act
10 do not constitute criminal punishment, and accordingly, do not constitute
ex post facto punishment. Lacombe, 234 A.3d at 618-627.
On March 19, 2018, the Pennsylvania State Police sent Farquharson a
letter about his registration requirements under Act 10. Trial Ct. Op., at 1-2.
____________________________________________
1 Act of Feb. 21, 2018, P.L. 27, No. 10 (“Act 10”); Act of June 12, 2018, P.L.
140, No. 29.
2 See Act of Feb. 21, 2018, P.L. 27, No. 10, § 22.
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He did not register that month, in March 2018, and did not provide proof that
he had been attending counseling.
Some eight months later, on January 13, 2019, Farquharson verified his
information at the Uniontown City Police Department and provided a
residential and mailing address. From March 2018 through January 2019,
Farquharson did not verify proof of his attendance at counseling.
Farquharson was charged with failure to comply with sex offender
registration requirements, verify his address or be photographed, provide
accurate information, and comply with counseling.3 A jury convicted
Farquharson, as above. The court sentenced him on February 11, 2020, to 40
to 80 months of incarceration. Farquharson filed a timely post-sentence
motion requesting a judgment of acquittal or an arrest of judgment and new
trial. He challenged the weight and sufficiency of the evidence and contended
that the registration requirements and his SVP designation were
unconstitutional. Following argument, on June 11, 2020, the court denied
Farquharson’s motion. Farquharson filed this timely appeal.
Farquharson raises the following issues:
I. Whether the evidence presented at trial was legally and factually
sufficient to prove that [Farquharson] committed the offenses
charged when the Commonwealth could not prove that they had
a correct address for [Farquharson] at his last known registration;
when [Farquharson]’s status had been changed by the
Commonwealth to ‘pending review;’ and when the Commonwealth
____________________________________________
3 See 18 Pa.C.S. §§ 4915.1(a)(1), 4915.1(a)(2), 4915.1(a)(3),
4915.1(a.2)(1), respectively.
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failed to prove that [Farquharson] received notification to
complete his ‘initial’ registration pursuant to Act 10 of 2018.
II. Whether the verdicts of guilty in this matter were against the
weight of the evidence, and so contrary to the evidence and
testimony presented at trial, as to shock one’s sense of justice.
III. Whether [Farquharson]’s convictions at trial were
unconstitutional based [upon] the Pennsylvania Supreme Court’s
holding in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)
when [Farquharson]’s underlying conviction occurred prior to the
Sex Offender Registration and Notification Act (“SORNA”); the
Commonwealth demonstrated no evidence that [Farquharson]
was required to register pursuant to SORNA; and the time period
for which he was alleged to have violated his registration
requirements included the time period covered by SORNA.
IV. Whether [Farquharson]’s designation as a sexually violent
predator was unconstitutional pursuant to Muniz when
[Farquharson]’s underlying conviction occurred prior to SORNA;
the Commonwealth demonstrated no evidence that [Farquharson]
was required to register pursuant to SORNA; and the time period
for which he was alleged to have violated his registration
requirements included the period of time covered by SORNA.
V. Whether the inclusion of erroneous testimony regarding
[Farquharson]’s unconstitutional designation as a sexually violent
predator was so prejudicial that [Farquharson] is entitled to a new
trial?
VI. Whether the inclusion of erroneous instruction from the trial
court, and argument by the Commonwealth, that the jury consider
whether [Farquharson] potentially violated his registration
requirements beginning thirty (30) days from his most recent
registration on or about February 2, 2018, was so prejudicial to
[Farquharson] that he is entitled to a new trial.
Farquharson’s Br. at 4-5.
In his first issue, Farquharson contends that there was insufficient
evidence to convict him of the various charges related to his failure to register
because the Commonwealth did not prove that he “knowingly” failed to
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register as a sex offender. Farquharson’s Br. at 9-13. Farquharson presents
three reasons in support of this argument: there were typographical errors in
his address in his January 2018 and February 2018 address; that
Farquharson’s status had been changed to “Pending – Review” following the
Muniz decision and that any of his attempts to comply with registration would
not have been recorded; and that there was no confirmation that the initial
registration letter had been sent to the correct address or, in fact, had been
received. Farquharson’s Br. at 13-14.
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. ... 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.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations
omitted). “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.”
Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011).
Additionally, “[t]he fact finder is free to believe all, part, or none of the
evidence presented at trial.” Id.The Crimes Code, in relevant part, provides as follows:
§ 4915.1 Failure to comply with registration requirements
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(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:
(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.
(a.1) Transients.--An individual set forth in 42 Pa.C.S. §
9799.13 who is a transient commits an offense if he
knowingly fails to:
(1) register with the Pennsylvania State Police as required
under 42 Pa.C.S. §§ 9799.15, 9799.16(b)(6) (relating to
registry) and 9799.25(a)(7);
(2) verify the information provided in 42 Pa.C.S. §§ 9799.15
and 9799.16(b)(6) or be photographed as required under
42 Pa.C.S. § 9799.15 or 9799.25;
(3) provide accurate information when registering under 42
Pa.C.S. § 9799.15, 9799.16(b)(6) or 9799.25.
(a.2) Counseling.--The following apply:
(1) An individual who is designated as a sexually
violent predator or sexually violent delinquent child
commits an offense if he knowingly fails to comply
with 42 Pa.C.S. § 6404.2(g) (relating to duration of
outpatient commitment and review) or 9799.36
(relating to counseling of sexually violent predators).
18 Pa.C.S. § 4915.1.
Farquharson was required to verify and update his information monthly
as both an SVP and as a transient, and he regularly verified and updated his
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information as a transient, even after Muniz, until February 2, 2018. N.T.,
2/4/20, at 47-52. Further, the letter informing Farquharson of his Act 10
registration requirements was sent to the address Farquharson had listed and
was not returned to the State Police Megan’s Law Unit as undeliverable. Id.
at 52-54. The evidence was thus sufficient for the jury to infer that
Farquharson was aware of his obligation to register.
In his second issue, Farquharson argues that his verdict was against the
weight of the evidence. A weight claim is for the trial court in the first instance.
See Commonwealth v. Stiles, 143 A.3d 968, 980 (Pa.Super. 2016). The
trial court may sustain a weight challenge and grant a new trial only “when
the jury’s verdict is so contrary to the evidence as to shock one’s sense of
justice and the award of a new trial is imperative so that right may be given
another opportunity to prevail.” Commonwealth v. Clay, 64 A.3d 1049,
1055 (Pa. 2013) (citation omitted). We review the trial court’s rejection of a
challenge to the weight of the evidence for an abuse of discretion.
Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017).
Farquharson contends that the evidence demonstrating the change in
his status to “pending review,” the Commonwealth’s alleged failure to prove
service of the “initial” registration letter; and the subsequent actions of the
State Police outweighed the allegations against him. Farquharson’s Br. at 18.
In support of these arguments, Farquharson contends that he registered
correctly from November 2017 through February 2018, but that, following
“incorrect entries and a malfunctioning system,” his status was changed to
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“Pending – Review” due to the Pennsylvania Supreme Court’s decision in
Muniz. Farquharson’s Br. at 16. He argues that, as a result, he was not
required to register. Id. Farquharson also contends that when he was arrested
on an unrelated charge, the Pennsylvania State Police Officer was unaware of
Farquharson’s Act 10 responsibilities to register. Id. at 16-19.
A failure to receive the Act 10 notice does not relieve an offender of
registration obligations. 42 Pa.C.S.A. § 9799.54(b). The contents of the State
Police computer system is similarly immaterial, and Farquharson’s arrest on
an unrelated charge and that state trooper’s lack of knowledge of
Farquharson’s compliance or lack thereof with Act 10 is not material to the
instant charges. The Commonwealth introduced evidence of Farquharson’s
obligation to register under Act 10 and his subsequent failure to register from
March 2018 until January 2019. Farquharson’s additional arguments are
equally unavailing. Muniz was decided in July 2017 and Farquharson
continued to register regardless until March 2018. Accordingly, the trial court’s
rejection of the weight claim was not an abuse of discretion. See Clay, 64
A.3d at 1055.
Farquharson’s fourth and fifth issues contend that his convictions were
unconstitutional pursuant to Muniz, 164 A.3d at 1189. He argues that his
underlying conviction occurred prior to SORNA and the Commonwealth
demonstrated no evidence that he was required to register pursuant to
SORNA. Farquharson’s Br. at 4. Similarly, he attacks his designation as an
SVP as unconstitutional pursuant to Muniz, contending that his underlying
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conviction occurred prior to SORNA and that Muniz rendered SVP designations
unconstitutional. Farquharson’s Br. at 20.
The requirements of Subchapter I are not criminal sanctions, and thus
do not constitute violations of the Ex Post Facto Clause, pursuant to Muniz.
Commonwealth v. Elliott, 249 A.3d 1190, 1193-94 (Pa.Super. 2021); see
also Lacombe, 234 A.3d at 618-627. Further, the lifetime registration,
notification, and counseling requirements (“RNC”) for SVPs do not constitute
criminal punishment and are constitutionally permissible. Commonwealth v.
Butler, 226 A.3d 972, 976 (Pa. 2020) (“Butler II”).
Thus, Farquharson’s arguments are unavailing. Subchapter I of Act 10
was applicable to him; he was convicted of a violation of Act 10’s registration
requirements; and those registration requirements and SVP designations do
not constitute ex post facto punishment. Lacombe, 234 A.3d at 618-627;
Butler II, 226 A.3d at 976.Elliott, 249 A.3d at 1193-94;
Farquharson next argues that the inclusion of erroneous testimony
regarding his allegedly unconstitutional designation as an SVP was so
prejudicial that he is entitled to a new trial. Farquharson’s Br. at 21. As noted,
supra, the designation was not unconstitutional. He is not entitled to relief.
Finally, Farquharson argues that “the inclusion of erroneous instruction
from the trial court, and argument by the Commonwealth” that the jury
consider whether Farquharson had violated his registration requirements
beginning thirty days from his most recent registration was so prejudicial that
he is entitled to a new trial. Farquharson’s Br. at 22. Farquharson argues that
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he was prejudiced by the Commonwealth’s argument that he violated his
requirements as early as March 14, 2018, when he failed to register as a
transient, or that, in the alternative, he violated his registration requirements
on May 22, 2018 when he failed to register pursuant to Act 10. See id. The
trial court instructed the jury that the date of the failure was not an essential
element of the crime charged, and Farquharson contends that had the
Commonwealth conceded that they could not prove beyond a reasonable
doubt that Farquharson violated during a specific time period, the “entire
composition of the case changes in [his] favor.” See id. at 23.
Farquharson cites no authority in support of these contentions, in
violation of Pa.R.A.P. 2119(a) (argument shall include citation of authorities).
He has thus failed to present a properly developed argument. In so doing, he
has waived this issue. See Commonwealth v. Spotz, 18 A.3d 244, 281 n.21
(Pa. 2011) (without a “developed, reasoned, supported, or even intelligible
argument[, t]he matter is waived for lack of development”); In re Estate of
Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (“The argument portion of an
appellate brief must include a pertinent discussion of the particular point
raised along with discussion and citation of pertinent authorities[; t]his Court
will not consider the merits of an argument which fails to cite relevant case or
statutory authority” (internal citations and quotation marks omitted));
Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (explaining
appellant’s arguments must adhere to rules of appellate procedure, and
arguments which are not appropriately developed are waived on appeal;
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arguments not appropriately developed include those where party has failed
to cite any authority in support of contention)).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2021
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