Com. v. Barger, R. (memorandum)

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J-S69034-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROBERT K. BARGER Appellant No. 919 WDA 2013 Appeal from the Judgment of Sentence September 11, 2012 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003703-2011 BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J. MEMORANDUM BY LAZARUS, J. FILED DECEMBER 4, 2013 Robert K. Barger appeals from his judgment of sentence, entered in the Court of Common Pleas of Westmoreland County, after he was found guilty of failing to comply with Megan s Law1 registration requirements2 and failing to provide accurate information when registering under the Law.3 The trial court sentenced Barger to an aggregate sentence of five to twenty years incarceration.4 We affirm. ____________________________________________ 1 42 Pa.C.S. §§ 9791-9799.9. 2 18 Pa.C.S. § 4915(a)(1). 3 18 Pa.C.S. § 4915(a)(3). 4 Specifically, the court sentenced Barger to 5-20 years incarceration for failing to give accurate information and a concurrent sentence of 3-10 years (Footnote Continued Next Page) J-S69034-13 Barger is a designated sexually violent predator 5 under the Law; as a result, he has been ordered to comply with the Law s registration requirements. See 42 Pa.C.S. § 9795.1(b)(3) (requiring lifetime registration for sexually violent predators). Barger reported and updated6 his residence to the Pennsylvania State Police Megan s Law Unit four times in 2011 (January, April, May and July).7 Each time he listed his physical address/residence as transient/homeless, giving a general description of the streets, bridges and/or stores in the vicinity where he could be found residing. Barger also listed a maroon two-door Chevrolet Cavalier bearing Pennsylvania registration HTP0006 in his April and May reports. In January and May, Barger listed an address, purportedly his mother s residence, as (Footnote Continued) _______________________ incarceration for failing to comply with registration requirements under the Law. 5 On September 25, 2006, Barger contact/communication with a minor. was convicted of unlawful 6 Under the Law, sex offenders must also notify Pennsylvania State Police within 48 hours of any change in residence and or establishment of an additional residence or residences. 42 Pa.C.S. § 9795.2(a)(2)(i). Effective February 2012, but not applicable to the instant case, section 9795.2 was amended to include language related to registration requirements for individuals who have a temporary dwelling, including a homeless shelter or park. 7 See 42 Pa.C.S. § 9796 (sexually violent predator shall appear quarterly between January 5 and January 15, April 5 and April 15, July 5 and July 15 and October 5 and October 15 of each calendar year at approved registration site to complete verification form and be photographed). -2- J-S69034-13 his mailing address. In July he listed his mother s address as an alternate residence. On appeal, Barger presents the following issues for our consideration: (1) Whether the verdict/finding of Failing to Comply with Registration of Sexual Offenders Requirements 18 Pa.C.S.A. [§] 4915(A)(1) and Failing to Provide Accurate Information [p]ursuant to 18 Pa.C.S.A. [§]4915(A)(3) was supported by sufficient evidence. (2) Whether the verdict of guilty of Failing to Comply with Registration of Sexual Offenders Requirements 18 Pa.C.S.A. [§] 4915(A)(1) and Failing to Provide Accurate Information [p]ursuant to 18 Pa.C.S.A. [§]4915(A)(3) was against the weight of the evidence. (3) Whether the application and enforcement of Statutes 18 Pa.C.S.A. [§] 4915(A)(3) are unconstitutional as applied to Defendant/Appellant [a] homeless person and should be struck down as violating Appellant s substantial and procedural due process rights. Under section 9795.2 of Megan s Law, Berger was required to register as follows: (a) Registration. (1) Offenders and sexually violent predators shall be required to register with the Pennsylvania State Police upon release from incarceration, upon parole from a State or county correctional institution or upon the commencement of a sentence of intermediate punishment or probation. For purposes of registration, offenders and sexually violent predators shall provide the Pennsylvania State Police with all current or intended residences, all information concerning current or intended employment and all information concerning current or intended enrollment as a student. 42 Pa.C.S. § 9795.2(a)(1) (emphasis added). Megan s Law defines residence as the location where an offender resides or is domiciled or -3- J-S69034-13 intends to be domiciled for 30 consecutive days or more during a calendar year. 42 Pa.C.S. § 9792. Moreover, in Commonwealth v. Wilgus, 40 A.3d 1201, 1208 (Pa. 2012) (Wilgus II), our Supreme Court recognized the fact that by including the word intends in section 9792, the Legislature anticipated a fixed residence might be uncertain for some offenders, and this language includes those who do not have a permanent residence. Simply stated, homelessness is not a defense to failing to satisfy Megan s Law registration requirements. Commonwealth v. Demitt, 45 A.3d 429 (Pa. Super. 2012). Barger was aware of the Law s registration requirements, but was never found in the vicinities or areas he reported as his primary residence8 to the Megan s Law Unit. He repeatedly ignored instructions by Pennsylvania State Troopers that he should list his mother s address as his residence, although Barger was present at his mother s residence on an almost daily basis9 from January 2011 to June 2011. Accordingly, he violated section 4915 by failing to list10 his mother s address as his residence in compliance ____________________________________________ 8 Barger testified that he only stayed at these locations a couple of times in a row and then [he] would move on. N.T. Non-Jury Trial, 6/19/2012, at 139. 9 Barger testified that he would stay there from nine [AM] and leave . . . [at] 12:00, 1:00 in the morning and that three or four days a week he would stay all night. Id. at 141-42. 10 Although Barger ultimately listed his mother s residence as a secondary residence in June 2011, his repeated refusal (even at the urging of (Footnote Continued Next Page) -4- J-S69034-13 with Megan s Law. See Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011) (defendant found in violation of Megan s Law registration provision where he slept on porches and in alleyways near registered address, owners of registered address were not aware of defendant s presence and defendant never lived at registered address any time after release from prison). Moreover, we find Barger s due process/constitutional challenge to the Law s registration provisions, as it applies to homeless registrants, unpersuasive. As our Supreme Court has noted: Pennsylvania's Megan's Law clearly requires sexually violent predators to notify Pennsylvania State Police of all current and intended residences, and to notify police of a change of residence. Unlike some other states that have ruled on this issue, Pennsylvania clearly defines "residence" for registration purposes. There is no exception for homeless offenders[.] Wilgus, 40 A.3d at 1208; see also Commonwealth v. Leidig, 850 A.2d 743 (Pa. Super. 2004), aff d, 956 A.2d 399 (Pa. 2008) (Megan s Law registration, notification and counseling requirements do not constitute criminal punishment for constitutional purposes). We rely upon the Honorable Rita D. Hathaway s Pa.R.A.P. 1925(a) opinion in affirming Barger s sentence on appeal. We instruct the parties to (Footnote Continued) _______________________ authorities) to list this as a primary residence since his release from prison is a clear violation of Megan s Law registration requirements. -5- J-S69034-13 attach a copy of that decision in the event of further proceedings in the matter. Judgment of sentence affirmed.11 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/4/2013 ____________________________________________ 11 Although we sympathize with the fact that Barger was concerned his mother would be evicted if her landlord discovered a convicted sex offender were living in his building, this concern does not trump our Commonwealth s statutory registration requirements under the Law. -6-

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