J-S08014-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL DWAIN MATHEW 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 270 MDA 2022

Appeal from the Judgment of Sentence Entered February 1, 2022

In the Court of Common Pleas of Cumberland County Criminal Division at 

No(s): CP-21-CR-0000603-2020

BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: MAY 24, 2023

Appellant, Michael Dwain Mathew, appeals from the judgment of 

sentence entered on February 1, 2022, following his jury trial conviction for 

failure to comply with registration requirements, 18 Pa.C.S.A. § 4915.2. We 

affirm.

The trial court summarized the facts and procedural history of this case 

as follows:

[Appellant] was convicted in Oregon on November 19, 1993, for 

an offense [of sexual abuse1] that occurred on or about August 8, 

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* Retired Senior Judge assigned to the Superior Court.

1

 Upon our review of the record, Appellant was convicted of first-degree 

sodomy in Oregon in 1993. The equivalent crime in Pennsylvania is

involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123. SORNA classifies 

offenders and their offenses into three tiers. Commonwealth v. Lacombe, 

234 A.3d 602, 611 (Pa. 2020), citing 42 Pa.C.S.A. § 9799.14. Involuntary 

(Footnote Continued Next Page)
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1993. He committed his Oregon offense prior to this 

Commonwealth’s enactment of [the Sex Offender Registration and 

Notification Act (SORNA)]. However, he was required to register 

in Oregon as a sex offender in accordance with Oregon Law before 

he moved to Pennsylvania in 2009.

On or about June 1, 2009, [Appellant] relocated to Pennsylvania. 

Due to his Oregon conviction, he [was] required to register as a 

lifetime sexual offender with the Pennsylvania State Police under 

Pennsylvania’s sexual offender registration law.[2] He completed 

his initial registration with [the Pennsylvania State Police (PSP)] 

at that time. As part of his initial registration, he executed 

[r]egistration forms acknowledging that he was required to 

register as a sex offender, that he had to report changes of 

address within three (3) business days, and that failure to provide 

such information when registering would subject him to arrest and 

felony prosecution pursuant to [] 18 Pa.C.S.A. § 4915.2. Since 

that time, he registered every year, up to and including October 

23, 2019. 

In 2019, [Appellant] was under Perry County supervision for 

unrelated offenses. He was required to report changes of address 

as [a condition of that] supervision. On December 3, 2019, he 

contacted his Perry County Probation Officer to report that his 

house burned down. He told his [probation officer] that he had 

moved from [a residence on] Clay Street [] to [] North 18th Street

[in] Harrisburg[, Pennsylvania]. His [probation officer] advised 

him that he also needed to update his address with PSP [for 

compliance with sexual offender reporting requirements].

On February 5, 2020, [PSP] generated an investigation request 

and [forwarded] it to the East Pennsboro Township Police 

Department, asking that it investigate whether [Appellant] was [in 

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deviate sexual intercourse is a tier III offense, subject to lifetime sex offender 

registration. Id. at 613. Appellant does not dispute this determination. 

2 Because Appellant was a sex offender registrant in Oregon in 2009 when he 

relocated to Pennsylvania, he was also required to register as a sex offender 

in Pennsylvania. See T.P.B. v. Pennsylvania State Police, 264 A.3d 828 

(Cmwlth. Ct. 2021), affirmed sub nom., T.P.B. v. Pennsylvania State 

Police, Megan's L. Section, 278 A.3d 843 (Pa. 2022) citing former 42 

Pa.C.S.A. § 9795.2(b)(4)(iii)-(v) (effective Jan. 1, 2007 through Feb. 20, 

2012). 
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compliance] with his sexual offender reporting requirements. His 

last reported address to the PSP [] was [] Clay Street [] which is 

under East Pennsboro’s jurisdiction. At some point the same day, 

[Appellant] reported in-person to [PSP] and again signed an 

acknowledgment of his SORNA obligations. At that time, he also 

reported a change of address stating that on February 4, 2020, he 

moved to [] Executive Park Drive, Harrisburg[, Pennsylvania.]

[A police officer from] the East Pennsboro Police Department 

investigated [the] report from [PSP]. He found that the Clay 

Street residence [] burned down on November 12, 2019. It was 

no longer a viable residence after the fire. [Appellant] did not 

report his new address to PSP until February 5, 2020. Based upon 

that information, [Appellant was charged] with [failure to comply 

with registration requirements].

Trial Court Opinion, 6/28/2022, at 1-3 (footnotes and record citations 

omitted). On November 2, 2021, a jury convicted Appellant of the 

aforementioned crime. On February 1, 2022, the trial court sentenced 

Appellant to 31 to 62 months of imprisonment. This timely appeal resulted.3

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3

 Appellant filed a notice of appeal on February 14, 2022. After transcripts 

from trial were filed, the trial court directed Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

by an order entered on March 28, 2022. Appellant complied timely on April 

18, 2022. On June 28, 2022, the trial court filed an opinion pursuant to 

Pa.R.A.P. 1925(a).

On December 20, 2022, Appellant filed a pro se application with this Court 

requesting the appointment of substitute counsel from outside of the Public 

Defender’s Office. Appellant averred that he had no contact with appointed 

counsel since February 2022. Because appointed counsel filed an appellate 

brief on behalf of Appellant, it was clear that counsel had not abandoned 

Appellant. Accordingly, on December 28, 2022, we entered an order denying 

Appellant’s request for substitute counsel and directing counsel of record to 

advise Appellant in writing regarding the status of his appeal and to file a copy 

of said correspondence with this Court within 14 days. To date, counsel has 

not responded to this Court’s order. 

(Footnote Continued Next Page)
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On appeal, Appellant presents the following issue for our review:

I. Was the evidence sufficient to establish [the] requisite mens

rea that Appellant “knowingly” failed to comply with SORNA 

registration requirements?

Appellant’s Brief at 7.

Appellant acknowledges that he “was in technical violation” of his 

obligation to comply with registration requirements when he “reported [his]

most recent address to the PSP several months after a fire destroyed his last 

reported home[.]” Id. at 13; see also id. at 15 (“Acknowledged, technically, 

[Appellant] violated the SORNA registration requirements.”). Appellant 

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“It is well settled that an indigent is entitled to free counsel, but not to free 

counsel of his choice.” Commonwealth v. Person, 498 A.2d 432, 436 (Pa. 

Super. 1985) (citations omitted). “Although the right to counsel is absolute, 

there is no absolute right to a particular counsel.” Id. (citations omitted). 

Moreover, our Supreme Court has recognized:

Pennsylvania Rule of Criminal Procedure 122(C) provides “[a] 

motion for change of counsel by a defendant for whom counsel 

has been appointed shall not be granted except for substantial 

reasons.” Pa.R.Crim.P 122(C). To satisfy this standard, a 

defendant must demonstrate he has an irreconcilable difference 

with counsel that precludes counsel from representing him. 

Commonwealth v. Spotz, 756 A.2d 1139, 1150 (Pa. 2000), 

citing Commonwealth v. Tyler, 360 A.2d 617, 619 (Pa. 1976). 

Commonwealth v. Wright, 961 A.2d 119, 134 (Pa. 2008). The decision 

whether to appoint new counsel is discretionary. Id. (citation omitted).

Here, we denied Appellant’s application for relief since he had not 

demonstrated that he had an irreconcilable difference with counsel that 

precluded counsel from representing him. Indeed, counsel filed an appellate 

brief with this Court arguing that there was insufficient evidence to support 

Appellant’s conviction. However, we certainly do not condone counsel’s 

inattention to this Court’s subsequent directives. 
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asserts that he was “transient” and moved from place to place in the months 

following the complete loss of his residence and all his belongings, but 

“concede[s] that homelessness or transience is not a defense to violating 

SORNA.” Id. at 13-14. Appellant recognizes that “[h]e should have reported 

the moves within [a] certain allotted time, but [contends he] had no means 

of registering in person at a PSP barracks, as required by SORNA” because he 

sold his car. Id. at 13. Appellant further recognizes that he updated his 

probation officer about his change of residency, albeit well after the three-day 

period for notifying PSP under SORNA’s sex offender registration 

requirements, but also asserts that his probation officer “made no effort to 

assist him in complying with the law[.]” Id. Instead, Appellant argues that 

the Commonwealth failed to prove that he “knowingly” violated the law. Id.

at 16. “To put it another way,” Appellant posits that “he acted within the spirit

of the law.” Id. (emphasis in original). Appellant claims that he “made []

best effort[s] to report to [PSP and] did not attempt to absolutely avoid 

registering[.]” Id. at 23. Appellant suggests he “is a victim of circumstances, 

and those circumstances, temporarily, led to his noncompliance.” Id. at 24 

(emphasis in original). Finally, Appellant points out that he “successfully 

complied with the law during the [prior] 10 years[.]” Id. at 25. Accordingly, 

Appellant argues that there was insufficient evidence to support his conviction 

for failure to comply with registration requirements. Id. at 29.

This Court has recently determined:
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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.

As for the substantive law, [we have explained above that] SORNA 

assigns registration requirements of varying durations to 

convicted sexual offenders. The statute ties the length of an 

offender's registration period to the severity and number of 

underlying crimes for which the offender has been convicted. See

Pa.C.S.A. § 9799.55 (imposing ten-year-registration and lifetimeregistration requirements for various offenders).

[...Registrants] “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.A. 

§ 9799.56(a)(1)(iii).

Furthermore, sexual offenders [who are subject to registration 

requirements]:

shall inform the Pennsylvania State Police within three 

business days of:

(i) A change of residence or establishment of an 

additional residence or residences.

* * *

42 Pa.C.S.A. § 9799.56(a)(2).

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The registration obligations are ongoing. 

* * *

A registrant who “knowingly fails to register with the Pennsylvania 

State Police as required under 42 Pa.C.S.A. § 9799.56 ... [or to] 

verify [their] residence or be photographed as required under 42 

Pa.C.S.A. § 9799.60” commits the crime of failure to comply with 

SORNA-registration requirements. 18 Pa.C.S.A. § 

4915.2(a)(1),(2) (subsection numeration omitted).

Commonwealth v. Roberts, -- A.3d --, 2023 WL 2358844, at *1-2 (Pa. 

Super. Mar. 6, 2023) (internal case citations and most quotations omitted). 

“[H]omelessness is not a defense for failing to satisfy the registration 

requirements[.]” Commonwealth v. Demmitt, 45 A.3d 429, 432 (Pa. 

Super. 2012) (en banc), citing Commonwealth v. Wilgus, 40 A.3d 1201, 

1208 (Pa. 2012) (“Wilgus II”).

Moreover,

The legislature has defined “knowingly” as follows:

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; and

(ii) if the element involves a result of his conduct, he is 

aware that it is practically certain that his conduct will cause 

such a result.

18 Pa.C.S.A. § 302(b)(2). 

* * *

To violate 18 Pa.C.S.A. § 4915.2(a)(1),(2), a registrant must 

“knowingly fail to register” or “knowingly fail to verify.” 18 

Pa.C.S.A. § 4915.2(a)(1),(2). Therefore, a registrant must be 

aware that [his conduct involves a failure to report a change in 
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residence or to verify required information with PSP and that he] 

is practically certain [that a] fail[ure] to report [or] to verify

[information will result from his conduct.] The mens rea is simply 

that the actus reus of failure be committed knowingly.

In most cases, such a failure will be knowing, because a rational 

actor knows when he fails to do something. The only exceptions 

would be in cases where a registrant has dementia, is in a coma, 

or suffers from a similar mental incapacity.

A registrant's reason for failing to report or to verify is irrelevant 

to the mens rea analysis, where, as here, the registrant knew he 

failed to report or to verify.

Roberts, 2023 WL 2358844, at *3-4.

Here, there is no dispute that Appellant was subject to lifetime reporting 

requirements under SORNA and that he was aware that he was required to 

report a change of residence with PSP within three days. Moreover, Appellant 

does not challenge our Supreme Court’s prior pronouncements that

homelessness is not a defense to failing to report change of residence. 

Appellant clearly knew that he had a duty to, but failed to, report. As set forth 

in Roberts, Appellant’s reason for failing to report is wholly irrelevant. For all 

of the foregoing reasons, Appellant’s claim that the Commonwealth failed to 

present sufficient evidence to support his conviction lacks merit.
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Judgment of sentence affirmed.

Judge McCaffery joins this Memorandum.

Judge Colins notes dissent.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2023