J-S35002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PATRICK OKEY

Appellant No. 1157 WDA 2015

Appeal from the Judgment of Sentence July 16, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000601-2015

BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED JULY 31, 2017

Patrick Okey appeals from his judgment of sentence, entered in the 

Court of Common Pleas of Erie County, following his conviction for three 

counts of failing to register with the Pennsylvania State Police under our 

Commonwealth’s version of Megan’s Law/Sexual Offender Registration and 

Notification Act.1 Okey’s counsel seeks to withdraw pursuant to Anders v. 

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009). Because we have identified one non-frivolous issue 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 Megan’s Law previously provided for the registration of sexual offenders 

and was codified at 42 Pa.C.S.A. § 9791 et seq. Megan’s Law was replaced 

with the Sexual Offender Registration and Notification Act (“SORNA”), 

effective December 20, 2012. See 42 Pa.C.S.A. § 9799.10-9799.41. Okey 

is now subject to registration under SORNA, even though Megan’s Law was 

in effect at the time of his underlying conviction.
J-S35002-17

- 2 -

which entitles Okey to sentencing relief, we deny counsel’s petition to 

withdraw, affirm Okey’s convictions, vacate his judgment of sentence, and 

remand for resentencing. 

Okey was required to register as a Tier 1 sex offender under Megan’s 

Law following his conviction in 2009 for attempting to lure a child into a 

motor vehicle.2 Prior to his release from custody3at the State Correction 

Institute in Albion, Pennsylvania (“SCI Albion”), on January 14, 2015 Okey 

meet with Margaret Lucas, an employee in SCI Albion’s records department. 

Lucas testified that she met with Okey to review the information necessary 

for him to register as a sex offender. Although Okey understood the 

registration requirements, he refused to sign any verification relating to the 

information the State had about him, or to be photographed or 

fingerprinted, due to his believe that his underlying conviction was in error. 

Under SORNA, a registrant must provide authorities with the address at 

which he will reside upon release. Although Okey did provide an address, he 

told Lucas the address was not the one at which he would live, and refused 

to provide Lucas with that address. 

____________________________________________

2 18 Pa.C.S.A. § 2910(a).

3 Okey has a prior conviction for failure to register under Megan’s 

Law/SORNA, also stemming from his underlying conviction for attempted 

luring. The instant offenses occurred as he was being released from custody 

on that conviction.
J-S35002-17

- 3 -

On January 27, 2015, Corporal Mark Weindorf and Trooper Christian 

Miller of the Pennsylvania State Police met with Okey at SCI Albion in an 

attempt to have Okey complete his registration. Corporal Weindorf testified 

that Okey’s previous conviction required Okey to register under SORNA. 

Corporal Weindorf stated that Okey had been provided with four 

opportunities to register, and on each occasion, Okey refused to comply in 

any way. Because of his refusal to register, Okey was charged and arrested. 

Okey represented himself at trial after waiving his right to counsel. 

Okey’s argument was that the underling conviction for luring a child into a 

motor vehicle was baseless and made in error, therefore, he is not subject to 

SORNA’s registration requirements. On July 15, 2015, Okey filed a motion 

in limine, essentially seeking to relitigate his underlying conviction. The 

motion was denied that same day. On July 16, 2015, a jury convicted Okey 

of knowingly failing to register as a sex offender with the Pennsylvania State 

Police,4knowingly failing to verify his address or be photographed,5and 

knowingly failing to provide an accurate address.6 On August 27, 2015, 

Okey was sentenced to 60 to 120 months’ incarceration pursuant to the 

____________________________________________

4 18 Pa.C.S. § 4915.1(a)(1)

5 18 Pa.C.S. § 4915.1(a)(2)

6 18 Pa.C.S. § 4915.1(a)(3)
J-S35002-17

- 4 -

mandatory minimum set forth in 42 Pa.C.S.A. § 9718(2)(i). This appeal 

followed.7 

Okey filed a Pa.R.A.P. 1925(b) concise statement of errors complained 

of on appeal on December 13, 2016. The trial court filed its Rule 1925(a) 

opinion on January 5, 2017. On April 21, 2017, Okey’s counsel filed a 

statement of intent to file an Anders brief pursuant to Rule 1925(c)(4).

Counsel has filed a petition to withdraw pursuant to the requirements 

set forth in Anders and Santiago. Our Supreme Court in Santiago held:

[I]n the Anders brief that accompanies court[-]appointed 

counsel’s petition to withdraw, counsel must: (1) provide a 

summary of the procedural history and facts, with citations to 

the record; (2) refer to anything in the record that counsel 

believes arguably supports the appeal; (3) set forth counsel’s 

conclusion that the appeal is frivolous; and (4) state counsel’s 

reasons for concluding the appeal is frivolous. 

Santiago, 978 A.2d at 361. Once counsel has satisfied the procedural 

requirements of Santiago, this Court engages in an independent evaluation 

of the record to determine if the claims on appeal are wholly frivolous. 

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005). 

Counsel’s brief satisfies the necessary procedural requirements. Her 

brief provides “a summary of the procedural history and facts, with citations 

____________________________________________

7 Okey originally filed his appeal prior to sentencing. However, the appeal is 

deemed timely filed pursuant to Pa.R.A.P. 905(a)(5), which provides that “a 

notice of appeal filed after the announcement of a determination but before 

the entry of an applicable order shall be treated as filed after such entry and 

on the day thereof.” 
J-S35002-17

- 5 -

to the record.” Santiago, 978 A.2d at 361; Brief of Appellant, at 5-6. She 

further provides a review of the record, and raises the issues she believes 

arguably supports an appeal. Santiago, 978 A.2d at 360; Brief of 

Appellant, at 8-10. Counsel’s brief also states her conclusion that the claims 

are frivolous, and she provides her reasoning for this conclusion. Santiago, 

978 A.2d at 360; Brief of Appellant, at 11-13. Lastly, counsel notified Okey 

of her request to withdraw and provided him with a copy of the brief and a 

letter explaining his right to retain new counsel or proceed pro se as to any 

issues he believes might have merit. Counsel having satisfied the 

procedural requirements for withdrawal, we must now examine Okey’s claim 

to determine if the appeal is frivolous. Anders, 386 U.S. at 744; Rojas, 

874 A.2d at 639.

Okey raises the following issues for our review:

A. Whether the trial court abused its discretion in denying 

[Okey’s] [m]otion in [l]imine that sought to limit the testimony 

regarding [Okey’s] prior conviction(s).

B. Whether the Commonwealth failed to present sufficient 

evidence to find [Okey] guilty beyond a reasonable doubt for 

[f]ailure to [register] with the [Pennsylvania State Police]. 

C. Whether the trial court abused its discretion in sentencing 

[Okey] and whether . . . the sentence is manifestly excessive, 

clearly unreasonable and inconsistent with the objectives of the 

Sentencing Code. 

Brief of Appellant, at 4.

Okey first claims that the trial court erred in denying his motion in

limine, in which he sought to present evidence he believed would prove that 
J-S35002-17

- 6 -

his underlying conviction for attempting to lure a child was in error. Our 

standard of review for determining if evidence was properly excluded is as 

follows:

The admissibility of evidence is a matter directed to the sound 

discretion of the trial court, and an appellate court may reverse 

only upon a showing that the trial court abused that discretion. 

The threshold inquiry with admission of evidence is whether the 

evidence is relevant. Evidence is relevant if it logically tends to 

establish a material fact in the case, tends to make a fact at 

issue more or less probable, or supports a reasonable inference 

or presumption regarding the existence of a material fact.

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998) (citations and 

quotation marks omitted). In short, Okey must show that the evidence he 

wished to present was relevant to a matter at issue in the present case, and 

that the trial court’s finding that the evidence was irrelevant was an abuse of 

its discretion. Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 

590, 592 (Pa. 1987). 

In this case, Okey was charged with three counts of failure to comply 

with registration requirements 18 Pa C.S.A. § 4915.1(a)(1-3). Section 4915 

provides, in relevant part: 

(a) Offense defined. — An individual who is subject to 

registration under 42 Pa.C.S. § 9795.1(a) or (a.1) (relating to 

registration) or an individual who is subject to registration under 

42 Pa.C.S. § 9795.1(b) 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 he knowingly fails 

to:
J-S35002-17

- 7 -

(1) register with the Pennsylvania State Police as required 

under 42 Pa.C.S. § 9795.2 (relating to registration 

procedures and applicability);

(2) verify his residence or be photographed as required 

under 42 Pa.C.S. § 9796 (relating to verification of 

residence); or

(3) provide accurate information when registering under 

42 Pa.C.S. § 9795.2 or verifying a residence under 42 

Pa.C.S. § 9796.

18 Pa.C.S. § 4915(a)(1-3) (bold in original). Section 9795.2 provides, in 

relevant part:

(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). 

The record clearly shows that Okey was previously convicted of a 

crime that requires him to register as a sex offender with the Pennsylvania 

State Police.8 Trial Court Opinion, 1/5/17, at 2; Brief of Appellant, at 5. The 

facts of Okey’s previous conviction, and his attempts to relitigate them, are 

____________________________________________

8 42 Pa. C.S.A. § 9795.1
J-S35002-17

- 8 -

completely irrelevant to whether Okey failed to meet his registration 

obligations under section 4915. As such, the evidence was properly 

excluded. See Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008) 

(holding that exclusion of out of court statements made by unrelated party 

was proper when statements were irrelevant in finding whether 

discriminatory intent existed). Moreover, Okey cannot use this appeal to 

make a collateral attack on his 2008 conviction. Any collateral attack on an 

underlying conviction must be raised in a petition pursuant to the Post 

Conviction Relief Act,9 which provides the sole means for obtaining collateral 

review of a judgment of sentence. Commonwealth v. Infante, 63 A.3d 

358, 365 (Pa. Super. 2013). Accordingly, we find that the trial court did not 

abuse its discretion in denying Okey’s motion in limine and Okey’s claim to 

be without merit. 

Okey next asserts that there was insufficient evidence to support his 

conviction. Our standard of review upon a challenge to the sufficiency of the 

evidence is well settled: 

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial 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 

____________________________________________

9 42 Pa.C.S.A. §§ 9541-9546.
J-S35002-17

- 9 -

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 

trier 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. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), 

quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 

2000) (citations and quotation marks omitted). 

In this case, the jury convicted Okey of three section 4915.1 

violations: (1) knowingly failing to register as a sex offender with the 

Pennsylvania State Police; (2) knowingly failing to verify his address or be 

photographed; and (3) knowingly failing to provide an accurate address. 18 

Pa.C.S.A. § 4915.1(a)(1-3). In order to convict Okey of these crimes, the 

jury must have determined that Okey was subject to registration, and failed 

to comply with section 4915.1(a)(1-3). Additionally, the jury must have 

determined that Okey acted knowingly. “Knowingly” is defined in our Crimes 

Code as follows: 

(2) A person acts knowingly with respect to a material element 

of an offense when:

(i) if the element involves the nature of his conduct or the 

attendant circumstances, he is aware that his conduct is of 

that nature or that such circumstances exist.
J-S35002-17

- 10 -

18 Pa.C.S. § 302(b)(2)(i). Our Court has interpreted this provision to mean 

that “a person ‘knows’ . . . if he is ‘aware’ of [a] fact.” Commonwealth v. 

Robinson, 128 A.3d 261, 265 (Pa. Super. 2015), citing 18 Pa.C.S.A. § 

302(b)(2)(i).

Upon review of the record and viewing all evidence in a light most 

favorable to the Commonwealth, Distefano, supra, we find that there was 

sufficient evidence to support a finding that Okey knowingly failed to comply 

with his SORNA requirements. Testimony from Corporal Weindorf indicated 

that Okey had been convicted of a crime that required him to comply with 

SORNA. Lucas and Corporal Weindorf both testified that Okey was aware of 

his SORNA requirements, yet refused to comply with any of them. The only 

action Okey took to comply with his obligations was providing Lucas with an 

inaccurate address. Accordingly, this claim is meritless.

Finally, Okey argues that the trial court abused its discretion in 

imposing his sentence. However, this claim is moot, as our own 

independent review of the record reveals that Okey was illegally sentenced 

under section 9718.4.10

At the time of Okey’s sentencing, our decision in Commonwealth v. 

Pennybaker, 121 A.3d 530, 534 (Pa. Super. 2015), held that application of 

____________________________________________

10 While neither the trial court nor the parties have raised this issue, “[a]n 

illegal sentence can never be waived and may be reviewed sue sponte by 

this Court.” Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super. 

1998). 
J-S35002-17

- 11 -

mandatory minimum statutes was constitutional when sentencing for failure 

to register under SORNA. However, on allowance of appeal, the Supreme 

Court of Pennsylvania vacated and remanded to the trial court for 

resentencing without application of the mandatory minimum, in light of its 

recent decisions in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), 

and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). See 

Commonwealth v. Pennybaker, 145 A.3d 720, (Pa. 2016) (per curiam). 

Our recent decision in Commonwealth v. Blakney, 152 A.3d 1053 (Pa. 

Super. 2016), held all of section 9718.4 unconstitutional under Alleyne v. 

United States, 133 S. Ct. 2151 (2013),11 as violating the right to trial by 

jury. Consequently, Okey’s mandatory minimum sentence under section 

9718.4 must be vacated. Accordingly, we deny counsel’s petition to 

withdraw, and remand for resentencing, without consideration of the 

mandatory minimum set forth in section 9718.4. Because this issue involves 

a question of law and our review of the record is complete, we decline to 

remand for the preparation of an advocate’s brief. See Commonwealth v. 

Mitchell, 986 A.2d 1241, 1244 (Pa. Super. 2009) (remanding Anders 

appeal for resentencing when court imposed illegal sentence, without first 

requiring advocate’s brief).

____________________________________________

11 In Alleyne, the Supreme Court held that “facts that increase mandatory 

minimum sentences must be submitted to the jury” and found beyond a 

reasonable doubt. Alleyne, 133 S. Ct. at 2163.
J-S35002-17

- 12 -

In conclusion, we find Okey’s claims of abuse of discretion by the trial 

court and insufficiency of the evidence to be meritless. Because of our 

recent decision in Blakney, we find his sentence under section 9718.4 to be 

illegal, and remand the case for resentencing. Consequently, counsel’s 

Anders motion is denied.

Convictions affirmed. Judgment of sentence vacated. Motion to 

withdraw denied. Case remanded for resentencing without consideration of 

the mandatory minimum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/31/2017