J-S58038-16

_____________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARMEN JOSEPH DEMARK

Appellant No. 957 MDA 2015

Appeal from the Judgment of Sentence March 18, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0001901-2014

BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 01, 2016

Appellant, Carmen Joseph Demark, appeals from the judgment of 

sentence entered in the Luzerne County Court of Common Pleas, following 

his jury trial conviction for failure to comply with sexual offender registration 

requirements.1 We affirm the conviction but vacate the judgment of 

sentence and remand for re-sentencing. 

The relevant facts and procedural history of this case are as follows. 

Beginning in 2003, Appellant has been subject to lifetime reporting 

requirements under the Sexual Offenders Registration and Notification Act 

(“SORNA”) at 42 Pa.C.S.A. § 9799.10 et seq. On April 1, 2014, the 

____________________________________________

1 18 Pa.C.S.A. § 4915.1. 
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Pennsylvania State Police mailed a letter to Appellant at his regular address. 

The letter reminded Appellant to report for quarterly registration by April 15, 

2014.2 Appellant failed to report. On May 22, 2014, a state trooper 

contacted Appellant regarding his failure to report in April. Appellant showed 

up that day at the state police barracks, where police arrested him. 

On February 3, 2015, a jury convicted Appellant of failure to comply 

with sexual offender registration requirements. The court sentenced 

Appellant on March 18, 2015, to three (3) to six (6) years’ incarceration, 

which included a mandatory minimum sentence, per 42 Pa.C.S.A. § 9718.4. 

Appellant timely filed post-sentence motions for reconsideration of sentence 

and for judgment of acquittal on March 26, 2015. The court denied relief on 

April 30, 2015. On May 29, 2015, Appellant timely filed a notice of appeal. 

The court ordered Appellant on June 15, 2015, to file a concise statement of 

errors pursuant to Pa.R.A.P. 1925(b), which he filed on July 22, 2015.3 

____________________________________________

2 On October 14, 2014, the Commonwealth Court declared Section 

9799.15(g) unconstitutionally punitive as applied to individuals convicted 

prior to enactment of the provision, where the provision required the 

offender to update the registration information in person; but the provision 

could be severed from the remainder of the statute while preserving the 

otherwise valid subsections. See Coppolino v. Noonan, 102 A.3d 1254 

(Pa.Cmwlth. 2014). Despite Coppolino, Appellant does not challenge the 

“in person” aspect of the registration process declared unconstitutionally 

punitive in Coppolino. Here, Appellant failed to register at all and in any 

manner. 

3 Appellant’s Rule 1925(b) statement was technically untimely. 

Nevertheless, this Court may address the merits of a criminal appeal where 

(Footnote Continued Next Page)
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Appellant raises the following issue for our review:

WHETHER, WHERE THE COMMONWEALTH PRODUCED NO 

EVIDENCE OF A CULPABLE MENS REA AND THE EVIDENCE 

NEGATED THE PRESENCE OF MENS REA, APPELLANT’S 

CONVICTION FOR FAILURE TO REGISTER IS AGAINST THE 

WEIGHT AND SUFFICIENCY OF THE EVIDENCE?

(Appellant’s Brief at 7). 

Appellant argues the Commonwealth failed to establish that Appellant 

had the requisite mens rea to sustain his conviction. Appellant concedes he 

failed to report to police in April 2014, but contends he did not do so 

“knowingly.” Appellant insists his various health and family issues interfered 

with his ability to remember his reporting requirements. Appellant maintains 

he relied on the routine reminder letters to let him know when he needed to 

report to police. Appellant avers the Commonwealth failed to present proof

of Appellant’s receipt of the letter. Appellant indicates he immediately 

reported to police the same day they notified Appellant of his failure to verify 

his registration information in April 2014. Appellant claims even if sufficient 

evidence supported his conviction, the verdict was against the weight of the 

evidence. Appellant concludes this Court should overturn his conviction 

and/or grant a new trial. We disagree. 

(Footnote Continued) _______________________

a defendant files an untimely Rule 1925(b) statement, if the trial court had 

adequate opportunity and chose to prepare an opinion addressing the 

issue(s) raised on appeal. See Commonwealth v. Burton, 973 A.2d 428 

(Pa.Super. 2008) (en banc). Here, the trial court filed a Rule 1925(a) 

opinion, which addressed Appellant’s sufficiency issue. Therefore, we decline 

to waive that issue. 
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Initially, we note that a challenge to the sufficiency of the evidence 

and the weight of the evidence supporting a criminal conviction are separate 

inquiries: 

[W]e find it necessary to delineate the distinctions between 

a claim challenging the sufficiency of the evidence and a 

claim that challenges the weight of the evidence. The 

distinction between these two challenges is critical. A 

claim challenging the sufficiency of the evidence, if 

granted, would preclude retrial under the double jeopardy 

provisions of the Fifth Amendment to the United States 

Constitution, and Article [1], Section 10 of the 

Pennsylvania Constitution, whereas a claim challenging the 

weight of the evidence, if granted, would permit a second 

trial.

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. Where the 

evidence offered to support the verdict is in contradiction 

to the physical facts, in contravention to human experience 

and the laws of nature, then the evidence is insufficient as 

a matter of law. 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.

A motion for new trial on the grounds that the verdict is 

contrary to the weight of the evidence concedes that there 

is sufficient evidence to sustain the verdict. Thus, the trial 

court is under no obligation to view the evidence in the 

light most favorable to the verdict winner. An allegation 

that the verdict is against the weight of the evidence is 

addressed to the discretion of the trial court. A new trial 

should not be granted because of a mere conflict in the 

testimony or because the judge on the same facts would 

have arrived at a different conclusion. A trial judge must 

do more than reassess the credibility of the witnesses and 

allege that he would not have assented to the verdict if he 
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[or she] were a juror. Trial judges, in reviewing a claim 

that the verdict is against the weight of the evidence, do 

not sit as the thirteenth juror. 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 weight with all the facts is to 

deny justice.

Commonwealth v. Widmer, 560 Pa. 308, 318, 744 A.2d 745, 751-52 

(2000) (citations and footnote omitted). 

Moreover, where the trial court has ruled on the weight 

claim below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against the 

weight of the evidence. Rather, appellate review is limited 

to whether the trial court palpably abused its discretion in 

ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) 

(internal citations omitted). “A weight of the evidence claim concedes that 

the evidence is sufficient to sustain the verdict, but seeks a new trial on the 

ground that the evidence was so one-sided or so weighted in favor of 

acquittal that a guilty verdict shocks one’s sense of justice.” 

Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013). 

The Crimes Code defines failure to comply with registration 

requirements as follows:

§ 4915.1. Failure to comply with registration 

requirements

(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:
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(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. 

18 Pa.C.S.A. § 4915.1(a). Section 302(b) of the Crimes Code defines a 

“knowing” mens rea as:

§ 302. General requirements of culpability.

* * *

(b) Kinds of culpability defined.—

* * *

(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; 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). 

Assuming proper jurisdiction, “challenges to the legality of the 
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sentence are not waivable.” Commonwealth v. Jacobs, 900 A.2d 368, 

373-73 (Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 681, 917 A.2d 

313 (2007). See Commonwealth v. Kitchen, 814 A.2d 209, 214

(Pa.Super. 2002), aff’d, 576 Pa. 229, 839 A.2d 184 (2003) (stating legality 

of sentence may be subject of inquiry by appellate court sua sponte); 

Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001) 

(maintaining legality of sentence claims cannot be waived, and may be 

reviewed sua sponte, where reviewing court has proper jurisdiction). 

“Issues relating to the legality of a sentence are questions of law....” 

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super 2008), appeal 

denied, 598 Pa. 755, 955 A.2d 356 (2008). When the legality of a sentence 

is at issue on appeal, our “standard of review is de novo and our scope of 

review is plenary.” Id. “An unconstitutional statute is ineffective for any 

purpose [as] its unconstitutionality dates from the time of its enactment and 

not merely from the date of the decision holding it so.” Commonwealth v. 

Muhammed, 992 A.2d 897, 903 (Pa.Super. 2010) (quoting 

Commonwealth v. Michuck, 686 A.2d 403, 407 (Pa.Super. 1996), appeal 

denied, 548 Pa. 668, 698 A.2d 593 (1997)). “If no statutory authorization 

exists for a particular sentence, that sentence is illegal and subject to 

correction. An illegal sentence must be vacated.” Commonwealth v. 

Watson, 945 A.2d 174, 178-79 (Pa.Super. 2008) (quoting Commonwealth 

v. Leverette, 911 A.2d 998, 1001-02 (Pa.Super. 2006)). 
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In the past, Section 9718.4 provided mandatory minimum sentences 

for failure to comply with sex offender registration and stated in relevant 

part:

§ 9718.4. Sentence for failure to comply with 

registration of sexual offenders

(a) Mandatory sentence.─Mandatory sentencing shall 

be as follows:

(1) Sentencing upon conviction for a first offense 

shall be as follows:

* * *

(iii) Not less than three years for an individual who:

(A) is subject to section 9799.13 and must register 

for a period of 25 years or life under section 9799.15 

or a similar provision from another jurisdiction; and 

(B) violated 18 Pa.C.S. § 4915.1(a)(1) or (2). 

* * *

(b) Proof at sentencing.─The provisions of this section 

shall not be an element of the crime, and notice thereof to 

the defendant shall not be required prior to conviction, but 

reasonable notice of the Commonwealth’s intention to 

proceed under this section shall be provided after 

conviction and before sentencing. The applicability of this 

section shall be determined at sentencing. The court shall 

consider any evidence presented at trial and shall afford 

the Commonwealth and the defendant an opportunity to 

present any necessary additional evidence and shall 

determine by a preponderance of the evidence if this 

section is applicable. 

(c) Authority of court in sentencing.─There shall be 

no authority in any court to impose on an offender to 

which this section is applicable any lesser sentence than 

provided for in subsection (a) or to place such offender on 
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probation or to suspend sentence. Nothing in this section 

shall prevent the sentencing court from imposing a 

sentence greater than that provided in this section. 

Sentencing guidelines promulgated by the Pennsylvania 

Commission on Sentencing shall not supersede the 

mandatory sentences provided in this section. 

* * *

42 Pa.C.S.A. § 9718.4(a)(1)(iii)(A)-(B), (b), (c). In 2015, this Court held 

that the mandatory minimum sentence under this statute for failure to 

comply with the sex offender registration requirements did not violate the 

defendant’s rights under Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 

2151, 186 L.Ed.2d 314 (2013). See Commonwealth v. Pennybaker, 121

A.3d 530 (Pa.Super. 2015). Our Supreme Court, however, granted review 

and reversed that judgment, vacated the appellant’s sentence, and 

remanded for re-sentencing without application of 42 Pa.C.S. § 9718.4, 

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

Commonwealth v. Wolfe, ___ Pa. ___, 140 A.3d 651 (2016).4 See 

Commonwealth v. Pennybaker, 2016 WL 4541106 (Pa. August 31, 2016). 

____________________________________________

4 The Wolfe Court reviewed the Alleyne issue on the merits, after 

discussing whether Alleyne violations implicate the legality of the sentence 

and the appropriateness of sua sponte appellate review. The Court deferred 

“deeper consideration” of the legality/waiver question to the disposition of 

Commonwealth v. Barnes, 2014 WL 10919327 (Pa.Super. June 27, 2014), 

appeal granted, ___ Pa. ___, 122 A.3d 1034 (September 18, 2015), which 

remains undecided to date. Nevertheless, the Wolfe Court stated: “For the 

present, it is sufficient to observe that this Court has previously found that 

an asserted Apprendi[ v. New Jersey, 530 U.S. 466,120 S.Ct. 2348, 147 

L.Ed.2d 435 (2000)]−line violation implicated the legality of a sentence...and 

(Footnote Continued Next Page)
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Instantly, Appellant’s quarterly lifetime reporting requirements as a 

sex offender began in 2003. On April 1, 2014, the Pennsylvania State Police 

mailed a letter to Appellant at his regular address, reminding him to report 

for quarterly registration. Appellant failed to comply and was subsequently 

arrested when he reported to the state police barracks on May 22, 2014. 

Prior to trial, Appellant and the Commonwealth stipulated that Appellant was 

subject to reporting requirements as a sex offender and he had failed to 

register when necessary in April 2014. 

At trial, the Commonwealth presented a copy of the verification forms 

Appellant signed each time he reported for quarterly registration. One of the 

verification forms read: “Shortly before your verification date, the 

Pennsylvania State Police will send a letter to your registered mailing 

address. This letter will not be forwarded. Failure to receive this letter does 

not relieve you of your obligation to comply with the law.” (N.T., 2/3/15, at 

44). The Commonwealth also offered testimony from Pennsylvania State 

Police Trooper Connors, who indicated that Appellant was required to verify 

his address every three months. Trooper Connors confirmed state police 

sent Appellant a reminder letter, but Appellant failed to appear for 

registration in April 2014. Appellant testified at trial and stated he knew of 

the requirement to register every three months, but he had forgotten to do 

(Footnote Continued) _______________________

that legality-of-sentence claims are not subject to the traditional waiver 

doctrine.” Id. at ___, 140 A.3d at 659-60. 
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so because he did not receive the reminder letter. 

Appellant conceded all material elements of the offense of failure to 

report. See 18 Pa.C.S.A. § 4915.1(a). Appellant admitted he was subject 

to reporting requirements as a sex offender under SORNA and was obligated 

to present himself to the state police for address verification every three 

months. Appellant’s own testimony confirmed he was aware of his 

responsibility to report to state police for quarterly registration. Thus, the 

evidence is sufficient to sustain Appellant’s conviction of failure to comply 

with sexual offender registration requirements. See Widmer, supra. 

With respect to Appellant’s contention that his conviction was against 

the weight of the evidence presented, the trial court reasoned as follows:

[Appellant] fails to suggest how or in what matter the 

evidence adduced from the Commonwealth witnesses and 

the testimony of [Appellant] himself permits the conclusion 

that the verdict is so contrary to the evidence as to shock 

one’s sense of justice. Simply stated, Appellant utterly 

fails to assert how the evidence is so tenuous, vague and 

uncertain that the verdict could be considered against the 

weight of the evidence. Moreover, [Appellant] himself 

made admissions that he knew that he was required to 

register every three (3) months but failed to do so because 

he forgot. 

(Trial Court Opinion, filed December 16, 2015, at 8). The court concluded 

the jury’s verdict was not contrary to the weight of the evidence. Id. 

Appellant’s only defense at trial was that he “just forgot” because he 

claimed he had not received a reminder letter. Notwithstanding the 

Commonwealth’s evidence suggesting Appellant did receive a letter, 
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Appellant’s insistence to the contrary does not inform review. In other 

words, Appellant’s contention that he forgot to register fails to refute the 

“knowingly” standard for this offense. See 18 Pa.C.S.A. § 302(b)(2). Each 

time Appellant reported for quarterly registration, he signed a verification 

form stating “[f]ailure to receive [a reminder] letter does not relieve you of 

your obligation to comply with the law.” (N.T., 2/3/15, at 44). Appellant 

admitted he was aware he had to register, yet failed to do so in April 2014. 

Consequently, we see no reason to disturb the court’s decision to deny relief 

on Appellant’s challenge to the weight of the evidence. See Champney, 

supra. 

Nevertheless, we also see from the record that the trial court imposed 

on Appellant a mandatory minimum sentence of three years, per 42 

Pa.C.S.A. § 9718.4. The court relied primarily on this Court’s decision in 

Pennybaker, which our Supreme Court has now reversed. Accordingly, we 

affirm the conviction but follow our Supreme Court’s lead in Pennybaker

and vacate the judgment of sentence and remand for re-sentencing without 

application of a mandatory minimum sentence per 42 Pa.C.S.A. § 9718.4. 

Judgment of sentence vacated. Case remanded for re-sentencing. 

Jurisdiction is relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2016