Com. v. Stump, T., Sr.

J-A31045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TOYA EDWARD STUMP, SR.,
Appellant No. 794 MDA 2015
Appeal from the Judgment of Sentence March 16, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0002227-2014
BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 20, 2016
Appellant, Toya Edward Stump, Sr., appeals from the judgment of
sentence imposed following his jury conviction of one count of failure to
register with the Pennsylvania State Police pursuant to Megan’s Law.1
Appellant challenges the weight of the evidence to support his conviction and
the discretionary aspects of his sentence. We affirm.
The trial court aptly summarized the facts of this case as follows:
Appellant, Toya Stump, is classified as a Tier II sex
offender who must comply with the attendant statutory
registration and reporting requirements. The Commonwealth
charged him with failing to comply with the registration and
reporting requirements in January 2014.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 4915.1(a)(1); see also 42 Pa.C.S.A. §§ 9791-9799.
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In support of its case, the Commonwealth presented the
testimony of Pennsylvania State Trooper Tandy Carey (“Tpr.
Carey”) whose job responsibilities include acting as [a] Megan’s
Law liaison. At trial, Tpr. Carey explained the initial registration
process, the continuing reporting requirements and the
investigatory process if an individual does not comply with the
statutory registration and reporting requirements.
[Appellant’s] full Megan’s Law registration packet was
admitted into evidence at trial. Upon review of the packet, Tpr.
Carey testified that the document memorializes “. . . essentially
everything for a person [who] is a registrant with Megan’s Law
from day one . . . [including] any investigat[ion] reports that are
sent out . . . [and] every registration form that the registrant
has signed within the time that he or she has been on Megan’s
Law.”
According to the statute, [Appellant] is required to register
two times per year for [twenty-five] years. Tpr. Carey outlined
the signed and completed registrations and some of the specific
information provided at the registrations beginning with
[Appellant’s] initial registration following his release from
incarceration[.] . . .
The Megan’s Law registration packet includes a document
that was signed by [Appellant] on July 7, 2012, which outlined
all of his registration requirements and listed approved
registration locations. The packet included a December 30, 2013
letter addressed to [Appellant] which gave notice of the [ten]
day timeframe in which he was required to appear for a timely
registration. Tpr. Carey explained that the letter was addressed
to 322 Second Street, Highspire, PA, 17034, but was returned as
undeliverable. Tpr. Carey testified that a registrant is required
to comply even if the reminder letter is not received. According
to the packet, as of January 24, 2014, [Appellant] had not
registered; therefore, an investigation request was sent by letter
indicating a possible violation which required further exploration.
Officer Jeffrey S. LeVan (“Officer LeVan”) of the Highspire
Borough Police (“HBPD”) Department was assigned to
investigate the possible Megan’s Law registration violation
involving [Appellant]. Officer LeVan commenced his
investigation on January 22, 2014 by contacting the Megan’s
Law Unit at the [Pennsylvania State Police] to be sure no further
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information on re-registration had been submitted; none had
been submitted. LeVan and a HBPD detective proceeded to
[Appellant’s] last known address—322 Second Street in
Highspire. [Appellant] was not found at that location so Officer
LeVan moved on to the Highspire post office where he
discovered a change of address form indicating that [Appellant]
had relocated to 310 North Third Street in Harrisburg as of
January 27, 2014. According to Carol Meyers, (“Ms. Meyers”),
the postmaster of the Highspire U.S. Post Office, the change of
address form was completed on August 21, 2013 and was valid
until February 22, 2014. Ms. Meyers testified that the
submission of a change of address form indicated the date on
which an individual wants his or her mail forwarded to a different
address.
Officer LeVan conducted a search on the J-Net database
using [Appellant’s] driver’s license number. The search revealed
that the license was still registered to 322 Second Street in
Highspire. Officer LeVan made two trips to the 322 Second
Street location on[e] of which included a conversation with the
landlord but, he was unable to locate [Appellant].
William Eric Stoermer (“Officer Stoermer”), a Major Deputy
Chief of Police at the Naval Support Activity Center in
Mechanicsburg, Pennsylvania testified that he recalled
encountering [Appellant] while employed at the Naval [C]enter.
Officer Stoermer stated that on November 26, 2013, while on
duty, he was involved in the termination of [Appellant’s]
employment. Officer Stoermer emphasized that when a person
is terminated from employment at the Naval Center, he is no
longer permitted on the premises and, if [Appellant] indicated on
a form that he had been employed after November 26, 2013, it
would be inaccurate.[2]
[Appellant] called George Navarro (“Mr. Navarro”), his
father, as a witness. Mr. Navarro testified that when [Appellant]
was released from prison, he lived with him at his 322 Second
Street apartment in Highspire. Mr. Navarro was aware of
[Appellant’s] registration requirements. Mr. Navarro stated that
____________________________________________
2
Appellant reported employment at the naval base in March 2014, after he
was terminated. (See N.T. Trial, 3/09/15, at 33-34).
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he had taken [Appellant] to register three times, starting in
summer of 2012, to [two different registration locations]. Mr.
Navarro [testified] to his belief that a woman named Treva
[Harris] had taken [Appellant] to register on one occasion. In
January 2013, Mr. Navarro moved from the 322 Second Street
apartment at which time [Appellant] moved out and began living
in a garage in Harrisburg.
[Appellant] also testified on his own behalf. His testimony
confirmed that Mr. Navarro had taken him to register three times
and that Ms. Harris had taken him once. [Appellant] also
confirmed that after he moved out of the apartment with Mr.
Navarro, he was homeless for a short time and then relocated to
a garage on Logan Alley in Harrisburg for the winter. A lease
agreement for the garage space dated January 11, 2013, was
admitted at trial.
[Appellant] testified that on two occasions he had
registered at the Gibson Boulevard location in addition to the
trips with Mr. Navarro and Ms. Harris. [Appellant] stated that he
understood when and how he had to register but, he had no
explanation about why there was no January 2014 registration in
the Megan’s Law Packet. The only explanation he could offer
was an error in the [police] records. Additionally, [Appellant]
acknowledged that he was required to report his change of
address and change of employment status and claimed that he
registered with the [police] within three days of moving.
(Trial Court Opinion, 9/10/15, at 2-6) (footnotes and record citations
omitted).
On March 11, 2015, the jury found Appellant guilty of the above-
mentioned offense.3 On March 16, 2015, the trial court sentenced Appellant
to a term of not less than thirty-three nor more than seventy-two months’
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3
Appellant waived preparation of a pre-sentence investigation report (PSI)
and elected to submit background materials to the court in advance of
sentencing. (See N.T. Trial, 3/11/15, at 124).
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incarceration. The court denied Appellant’s timely post-sentence motion on
April 7, 2015. This timely appeal followed.4
Appellant raises two issues for our review:
I. Whether the trial court erred in denying Appellant’s post-
sentence motion where his conviction was against the weight of
the evidence so as to shock one’s sense of justice where
Appellant was never shown to have engaged in acts which
constitute the offense of which he was convicted?
II. Whether the trial court erred in denying Appellant’s post-
sentence motion where his sentence was excessive and
unreasonable and constitutes too severe a punishment in light of
the alleged gravity of the offense, Appellant’s medical and
rehabilitative needs, and what is needed to protect the public?
(Appellant’s Brief, at 6) (underline and some capitalization omitted).
In his first issue, Appellant challenges the weight of the evidence to
support his failure to register conviction. (See Appellant’s Brief, at 14-15).5
Appellant argues his trial testimony established that he updated his
registration information in January 2014, and that he informed police of his
address change within three days of his move. (See id. at 15). This issue
does not merit relief.
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4
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on May 26, 2015. See
Pa.R.A.P. 1925(b). The court filed an opinion on September 10, 2015. See
Pa.R.A.P. 1925(a).
5
Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3); (see also Post-Sentence Motion,
3/17/15, at unnumbered page 2).
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The law pertaining to weight of the evidence claims is well-
settled. The weight of the evidence is a matter exclusively for
the finder of fact, who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses. A
new trial is not warranted because of a mere conflict in the
testimony and must have a stronger foundation than a
reassessment of the credibility of witnesses. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal with all the facts is to deny justice.
On appeal, our purview is extremely limited and is
confined to whether the trial court abused its discretion in
finding that the jury verdict did not shock its conscience. Thus,
appellate review of a weight claim consists of a review of the
trial court’s exercise of discretion, not a review of the underlying
question of whether the verdict is against the weight of the
evidence. An appellate court may not reverse a verdict unless it
is so contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015),
appeal denied, 2015 WL 5726427 (Pa. filed Sept. 29, 2015) (citations and
quotation marks omitted).
Here, the testimony at trial makes clear that Appellant was well aware
of the registration and reporting requirements and of how to comply with
them, and that he, in fact, did comply with them on several occasions. (See
N.T. Trial, 3/09/15, at 25, 28-30, 43; N.T. Trial, 3/11/15, at 71, 86-88, 94-
95). However, there was no registration information for Appellant in police
records for the January 2014 reporting period, and, as a result, police
initiated an investigation and were unable to locate him. (See N.T. Trial,
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3/09/15, 30-32, 47-49).6 The evidence also reflected that Appellant failed
to report an address change in January 2013, and that he continued to
report employment at the naval base after his employer terminated him.
(See id. at 33-34; N.T. Trial, 3/11/15, at 67-68, 98-99). Although
Appellant testified that he did register and report the address change, and
attributed lack of documentation of this to an error in police records, (see
N.T. Trial, 3/11/15, at 93-94, 98-99), the jury, as finder of fact, while
passing upon the credibility of witnesses’ testimony, was free to believe all,
part, or none of the evidence. See Gonzalez, supra at 723. After review
of the record, and mindful of our “extremely limited” purview, we cannot
conclude that the trial court’s ruling on Appellant’s weight of the evidence
claim constituted an abuse of discretion. Id. Therefore, Appellant’s first
issue does not merit relief.
In his second issue, Appellant argues that the sentence is excessive
because the court failed to consider mitigating factors such as: his age of
fifty-six; the fact that he fractured three vertebrae in 2013 and has been
participating in outpatient physical therapy ever since; and his expression of
____________________________________________
6
Appellant’s whereabouts remained unknown to police until he was arrested
in March 2014 on an unrelated simple assault charge. (See N.T.
Sentencing, 3/16/15 at 7; Trial Ct. Op., at 3 n.3).
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remorse to the court. (See Appellant’s Brief, at 12, 17-18).7 This issue
does not merit relief.
At the outset, we observe that Appellant’s issue challenges the
discretionary aspects of his sentence. However, “[t]he right to appeal the
discretionary aspects of a sentence is not absolute.” Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) (citation omitted).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence [, see Pa.R.A.P. 2119(f)]; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code. . . .
[I]f the appeal satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),
appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).
In the instant case, Appellant timely appealed, preserved his claim in
the trial court, and included a Rule 2119(f) statement in his brief. See id.With respect to the substantial question requirement:
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exits only when the appellant advances a
colorable argument that the sentencing judge’s actions were
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7
Appellant’s claim that he expressed remorse to the court, (see Appellant’s
Brief, at 12, 18), is not supported by the record, which does not reflect any
such expression. (See N.T. Sentencing, 3/16/15, at 5-6; Trial Ct. Op., at
11).
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either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal
denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).
“[T]his Court has held that an excessive sentence claim—in conjunction with
an assertion that the court failed to consider mitigating factors—raises a
substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.
Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citation omitted).
Therefore, we will review Appellant’s claim on the merits.
Our standard of review in sentencing matters is well-settled:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. An abuse of
discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will.
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal
denied, 85 A.3d 481 (Pa. 2014) (citation omitted).
In fashioning a defendant’s sentence, the court must “follow the
general principle that the sentence imposed should call for confinement that
is consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).
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Here, at the sentencing hearing, defense counsel discussed various
mitigating factors including Appellant’s age, his family support, and his
medical injury requiring physical therapy. (See N.T. Sentencing, 3/16/15,
at 4). Appellant emphasized his need for physical therapy, and explained
that he was terminated from his employment because of his prior record,
and not because of any misconduct. (See id. at 5-6). The Commonwealth
stated that Appellant’s registration and reporting violations were blatant
from the record, and noted that, despite Appellant’s claim of poor physical
health, he was arrested in March of 2014 for simple assault for allegedly
beating his girlfriend. (See id. at 7). Before imposing its sentence, which is
in the standard guideline range, the court explained its rationale as follows:
[Appellant], your conduct in this case was on the egregious
side, pretty serious. There were obvious violations of the
reporting statute and as [the Commonwealth] correctly pointed
out, once we got into the testimony, it became a little more
obvious that you were skirting your obligations.
I should say that the jury had no issue at all. They came
back with a very quick verdict based on the testimony. So I
think the Commonwealth’s case was clearly established. . . .
(Id. at 8).
Thus, the record reflects that the court was fully aware of the
mitigating factors in this case, and that it took into account relevant factors
in formulating its sentence. Accordingly, we conclude that the trial court did
not abuse its discretion in imposing Appellant’s sentence. See Clarke,
supra at 1287. Appellant’s second issue lacks merit.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2016
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