Appeal from the Order entered May 27, 2008 In the Court of Common Pleas of Dauphin County Criminal Division at No. CP-22-CR-0002439-2007.
The opinion of the court was delivered by: Cleland, J.
BEFORE: ALLEN, CLELAND AND FITZGERALD*fn1 , JJ.
¶ 1 We are called on to decide whether the Legislature, in requiring a Megan's Law offender to register his "residence," included within the requirement the circumstances of this case in which the defendant is a homeless and transient person.
¶ 2 The defendant William Howard Wilgus (Wilgus) was released from prison and, after being turned away from various housing programs, lived on the streets of downtown Harrisburg for 30 days before being arrested for not registering his "residence" as required by Megan's Law. He was convicted in a non-jury trial, but the trial judge set aside his conviction and dismissed the charges. The trial judge concluded Wilgus did not have a "residence" to register and, therefore, had not violated Megan's Law.
¶ 3 We conclude the Legislature could have drafted the Megan's Law registration requirement to require a homeless and transient person to register, but it did not, and, consequently, we agree the conviction must be set aside.
¶ 4 The trial court granted Wilgus an arrest of judgment of his conviction for failure to comply with the registration requirements under Pennsylvania's Megan's Law*fn2 requiring him to inform the Pennsylvania State Police of his current, intended or change in residence.*fn3 The Commonwealth appealed.
¶ 5 This is a case of first impression in which, to assess the sufficiency of the Commonwealth's evidence, we must first determine the meaning of the word "residence" as intended by the Legislature and then resolve whether a person without a fixed place of habitation or abode has acquired or can acquire a "residence" such that he must register it under the Megan's Law.
¶ 6 On March 14, 1998, following Wilgus's conviction of aggravated indecent assault, a second-degree felony,*fn4 the trial court sentenced Wilgus to five years' to life incarceration, found him to be a sexually violent predator, and ordered him to comply with the Megan's Law registration requirements. Trial Court Order, 3/14/98, at 1--2. On November 4, 1998, this Court vacated the sentence and remanded for sentencing without application of the Megan's Law registration requirements. Commonwealth v. Wilgus, 734 A.2d 441 (Pa. Super. 1998). On January 29, 1999, the trial court re-sentenced Wilgus to 5 years' to 10 years' incarceration. On April 23, 2007, Wilgus was released from prison, but since he was incarcerated at the time the 2000 revisions to Megan's Law became effective, he had to comply with the registration requirements. See §§ 9795.1 and 9795.2. On May 20, 2007, the State Police arrested and charged him with failure during the period since release to register his current or new residence address, to verify his address, and to provide accurate information.*fn5 On January 18, 2008, the trial court, sitting without a jury, found Wilgus guilty of the first two charges but acquitted on the third. On May 27, 2008, however, the trial court granted Wilgus's post-trial motion for arrest of judgment and dismissed the charges against him. Trial Court Order, 5/27/08, at 1.
¶ 7 The Commonwealth filed a timely appeal raising a question of first impression: Whether the trial court erred in granting the post-trial motion for an arrest of judgment on the ground the evidence was insufficient to support the conviction of a homeless person for failing to register and verify his current or intended residences.
¶ 8 When released from prison on April 23, a friend drove Wilgus to the Bethesda Mission, a homeless shelter in Harrisburg. He remained there from his late afternoon arrival until departing the morning of April 25 after he was informed of the Mission's policy against housing Megan's Law registrants. N.T. Trial, 1/23/08, at 12, 21. Wilgus next went to 1708 Market St., in Harrisburg, which is the address he had registered before his parole. Id. at 12. Because there were no apartments at this location, Wilgus next tried to find housing at a Salvation Army shelter for drug and alcohol addicts but there was no space available. Id. at 12-13. He then tried the Daily Bread, a soup kitchen in the Boyd Building of The Pine Street Presbyterian Church, Harrisburg, but with no success. Id. at 13-14. He also tried a YMCA but there were no vacancies. Id. at 15. With only $50.00 in his pocket and believing he had nowhere else to go, Wilgus settled into a homeless existence in the Second and Market Street areas of Harrisburg, staying in alleyways by the courthouse and by a hospital, on benches, and the like. Id. at 16, 13. He never stayed in one place for more than 20 hours at a time. Id. at 16. He arranged to obtain a locker and to receive his mail at the Daily Bread; he also listed the Daily Bread as his mailing address to receive social security benefits. Id. at 13. Finally, four weeks later, on May 20, the State Police arrested him.
¶ 9 The standard of review is:
In reviewing an appeal from a trial court's granting of motion in arrest of judgment, we must determine whether the evidence offered by the Commonwealth was legally sufficient to support the verdict. To reach this determination, we accept all of the evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict; we can affirm the granting of a motion in arrest of judgment if, viewed in that manner, the evidence was nonetheless insufficient in law to find ...