Commonwealth v. Weimer

J-S35006-17
2017 Pa. Super. 212
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL DAVID WEIMER
Appellant No. 1042 WDA 2016
Appeal from the PCRA Order July 12, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011522-2010,
CP-02-CR-0011523-2010, CP-02-CR-0011535-2010
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
OPINION BY LAZARUS, J.: FILED JULY 7, 2017
Paul David Weimer appeals from the trial court’s order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. In 2011, Weimer was found guilty by a jury of 21 criminal
counts relating to his sexual abuse of three adolescent boys, R.Z., M.G., and
J.D. After careful review, we reverse the PCRA order, vacate the judgments
of sentence for all three victims,1 and remand for resentencing.
A prior panel of this Court aptly set forth the procedural history of this
case as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
See No. CC 201022522 (R.Z.); No. CC201011523 (M.G.); and No. CC
201011535 (J.D.).
J-S35006-17
[Weimer, who was forty years old,] was arrested on [August 5,
2010] and eventually charged, regarding [victim, J.D.] at 11535-
2010, with involuntary deviate sexual intercourse (“IDSI”),
unlawful contact with the minor, statutory sexual assault,
indecent assault, furnishing liquor to minors, and two counts of
corruption of minors; he was charged regarding [victim, J.C.] at
11524-2010, with unlawful contact with a minor, corruption of
minors and open lewdness; regarding [victim, R.Z.], he was
charged at 11522-2010 with two counts of rape, IDSI, unlawful
contact with a minor, two counts of statutory sexual assault,
endangering the welfare of children, corruption of minors, and
furnishing liquor to minors; [and] regarding [victim, M.G.], he
was charged at 11523-2010 with IDSI, indecent assault,
endangering the welfare of children, and corruption of minors.
[* * *].
At the conclusion of the jury trial, [Weimer] was acquitted of all
charges regarding [J.C.]; regarding [J.D.], he was convicted of
furnishing liquor to minors, unlawful contact with a minor and
two counts of corruption of minors, and acquitted of IDSI,
statutory sexual assault and indecent assault; regarding [R.Z.],
he was convicted of IDSI, unlawful contact with a minor, two
counts of statutory sexual assault, endangering the welfare of
children, corruption of minors, furnishing alcohol to minors, and
acquitted of two counts of rape; regarding [M.G.], he was
convicted of IDSI, indecent assault, endangering the welfare of
children, and corruption of minors.
Commonwealth v. Weimer, 133 WDA 2012 (Pa. Super. unpublished
memorandum filed 8/1/13).
The Commonwealth gave notice of its intent to seek imposition of the
10-year mandatory minimum sentence for the IDSI convictions, pursuant to
42 Pa.C.S. § 9718(a). Prior to sentencing, the court held a hearing where it
determined that Weimer met the criteria to be classified as a Sexually
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Violent Predator (SVP) under this Commonwealth’s version of Megan’s Law.2
On March 13, 2012, Weimer was sentenced to an aggregate term of
imprisonment of 25-50 years. Specifically, the court sentenced Weimer to:
consecutive sentences of 10-20 years of incarceration on each count of IDSI
with regard to R.Z. and M.G., and a consecutive term of 5-10 years of
incarceration for unlawful contact with a minor with regard to J.D. 3 Weimer
filed post-trial motions that were denied on August 2, 2012, save for the
court granting Weimer two days of credit. Weimer filed a timely direct
appeal; our Court affirmed his judgment of sentence on August 1, 2013. On
November 27, 2013, the Pennsylvania Supreme Court denied Weimer’s
petition for allowance of appeal.
On April 7, 2014, Weimer filed a pro se PCRA petition. On April 14,
2014, the court appointed PCRA Counsel, Thomas Farrell, Esquire. On May
28, 2014, the court granted counsel’s petition to appoint an investigator. On
February 25, 2015, the trial court gave Weimer Pa.R.Crim.P. 907 notice of
its intent to dismiss the petition without a hearing. On June 16, 2015,
____________________________________________
2
See 42 Pa.C.S.A. §§ 9791-9799.9. On December 20, 2011, the
legislature enacted the Sex Offender Registration and Notification Act
(SORNA), effective in one year, or December 20, 2012. Thus, at the time
Weimer was sentenced, SORNA was not yet in effect. However, under
SORNA he is now classified as a Tier III offender who will be a lifetime
registrant. See 42 Pa.C.S.A. §§ 9799.14(d)(4), 9799.15(a)(3).
3
No further penalty was imposed on the remaining charges for which
Weimer was convicted.
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Attorney Farrell filed an amended PCRA petition on behalf of Weimer. On
July 12, 2016, the court dismissed Weimer’s petition. This timely collateral
appeal follows. On appeal, Weimer presents the following issues for our
consideration:
(1) Whether trial counsel gave ineffective assistance for failing
to file a motion to withdraw, when there was a conflict of
interest?
(2) Whether trial counsel gave ineffective assistance for failing
to suppress evidence under the Fourth Amendment and
Article I, Section 8[,] of the Pennsylvania Constitution?
(3) Whether trial counsel gave ineffective assistance for failing
to object to the trial court’s instruction that the
Commonwealth did not have to prove beyond a reasonable
doubt the date of the crime when the date of the crime
was significant as to the age of the victim?
(4) Whether the trial court imposed an illegal sentence for the
charges of involuntary deviate sexual intercourse when the
trial court imposed mandatory sentences of ten to twenty
years pursuant to 42 Pa.C.S. § 9718, which has been held
to be facially unconstitutional?
(5) Whether the trial court imposed an illegal sentence of five
to ten years of incarceration for unlawful contact with a
minor?
(6) Whether the notice of intent to dismiss that was issued by
the PCRA Court violated Rule 907(1) of the Pennsylvania
Rules of Criminal Procedure?
The standard of review of an order dismissing a PCRA petition is
whether that determination is supported by the evidence of record and is
free of legal error. The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record. Commonwealth
v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).
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We rely upon the opinion, authored by the Honorable Donna Jo
McDaniel, to affirm issues one through three on appeal. First, Weimer has
failed to show how either Attorney Collins or Attorney Allman “actively
represented conflicting interests.” Cuyler v. Sullivan, 446 U.S. 335
(1980). Moreover, to the extent that Weimer alleges Attorney Collins was
ineffective in failing to file a motion to withdraw, we note that Weimer
suffered no prejudice from this alleged misstep, where the trial court
specifically concluded that it would not have granted such motion and where
Attorney Allman adequately represented Weimer at trial. Second, Weimer
cannot demonstrate that he was prejudiced by counsel’s failure to seek to
suppress a printout of an email exchange between himself and victim, J.C.,
which was introduced on J.C.’s redirect examination. The defense had, in
fact, introduced the contents of that same email exchange, including a
picture of a man later identified as J.C.’s friend, during cross-examination
and also had it entered as a defense exhibit at trial. Third, the trial court did
not need to charge the jury that it was required to determine, beyond a
reasonable doubt, the exact date that the incidents occurred where the jury
was instructed that, for purposes of the charged offenses, it did need to find
that victims were under the age of sixteen when considering the IDSI
offenses.
In his fourth issue on appeal, Weimer contends that his mandatory
minimum sentences, imposed pursuant to 42 Pa.C.S. § 9718(a), are illegal
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“where the mandatory sentencing structure [of section 9718] is facially
unconstitutional.” Appellant’s Brief, at 46.
Our Supreme Court has held section 9718 “irremediably
unconstitutional on its face, non-severable, and void” under the principles
espoused in Alleyne.4 See Commonwealth v. Wolfe, 140 A.3d 651, 663
(Pa. 2016).5 Moreover, because Weimer’s judgment of sentence became
final after Alleyne was decided, he is entitled to relief on his timely filed
PCRA petition. See Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa.
Super. 2015) (defendant can raise Alleyne challenge in timely PCRA petition
so long as judgment of sentence not yet final when Alleyne decided on June
17, 2013); but see Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016) (Supreme Court has also held that Alleyne does not apply
retroactively to cases pending on collateral review where judgment of
sentence became final before Alleyne decided).6 Accordingly, the
____________________________________________
4
Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a reasonable doubt.”).
5
We note that the trial court incorrectly cites to Commonwealth v.
Matteson, 96 A.3d 1064 (Pa. Super. 2014), to conclude that section 9718
does not violate Alleyne principles. In Wolfe, supra, our Supreme Court
held that “[Commonwealth v.] Newman abrogated this Court’s decision in
Matteson” and that a sentence applying section 9718 is illegal. Id. 140
A.3d at 806.
6
Although we recognize the apparent viability of Commonwealth v. Ruiz,
131 A.3d 54 (Pa. Super. 2015), which held that a defendant could succeed
on an Alleyne challenge in a timely PCRA petition if the defendant’s
(Footnote Continued Next Page)
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judgments of sentence as to offenses committed against R.Z. and M.G. (CC
201011522 and CC 201011523, respectively) must be vacated and
remanded to the trial court for resentencing without application of the
mandatory minimum sentence under section 9718.
In his next issue, Weimer contends that the trial court imposed an
illegal sentence of 5-10 years of imprisonment on the unlawful contact with
a minor conviction with regard to victim J.D. Specifically, Weimer argues
that because the jury was never instructed as to what crime(s) Weimer
committed for purposes of engaging in the unlawful conduct under section
6318, the lowest graded offense of which he was acquitted (indecent assault
(M-2)) must be assumed and the grading of the offense under section
6318(b)(2) should be no more than a third-degree felony.7
Unlawful contact with a minor is defined as:
(a) Offense defined. — A person commits an offense if he is
intentionally in contact with a minor, or a law enforcement
officer acting in the performance of his duties who has assumed
_______________________
(Footnote Continued)
judgment of sentence was not final at the time Alleyne was decided, the
viability of that decision is currently under review. See Commonwealth v.
Dimatteo, 2017 Pa. LEXIS 378 (filed 2/15/17) (granting petition for
allowance of appeal, in case applying Ruiz, and denoting issue as whether
decision conflicts with Washington and whether the panel “ordered
inappropriate relief, in that, the panel vacated that portion of the plea
defendant challenged and remanded for resentencing” and noted that
“defendant . . . is not [entitled to relief].”).
7
We note that the proper grading of an offense is a challenge to the legality
of a sentence. Commonwealth v. Tustin, 888 A.2d 843 (Pa. Super.
2005).
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J-S35006-17
the identity of a minor, for the purpose of engaging in an activity
prohibited under any of the following, and either the person
initiating the contact or the person being contacted is within this
Commonwealth:
(1) Any of the offenses enumerated in Chapter 31
(relating to sexual offenses).
(2) Open lewdness as defined in section 5901 (relating to
open lewdness).
(3) Prostitution as defined in section 5902 (relating to
prostitution and related offenses).
(4) Obscene and other sexual materials and performances
as defined in section 5903 (relating to obscene and other
sexual materials and performances).
(5) Sexual abuse of children as defined in section 6312
(relating to sexual abuse of children).
(6) Sexual exploitation of children as defined in section
6320 (relating to sexual exploitation of children).
18 Pa.C.S. § 6318(a). See Commonwealth v. Felder, 75 A.3d 513, 517
(Pa. Super. 2013) (subsection 6318(a) sets forth specific crimes that may
constitute forms of unlawful contact). A section 6318 offense is graded as
follows:
(b) Grading. — A violation of subsection (a) is:
(1) an offense of the same grade and degree as the most
serious underlying offense in subsection (a) for which the
defendant contacted the minor; or
(2) a felony of the third degree; whichever is greater.
18 Pa.C.S. § 6318(b).
In order to be convicted under section 6318, a defendant does not
have to be convicted of the underlying offense for which he contacted the
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minor. Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010). In other words,
the offenses designated in sections 6318(a)(1)-(6) are not predicate
offenses for the offense of unlawful contact with a minor. Id. Rather, a
defendant is guilty under section 6318 if he or she contacts the minor for the
purpose of engaging in the prohibited behaviors criminalized in Chapter 31
and 18 Pa.C.S §§ 5901, 5902, 5903, 6312, and 6320 of the Crimes Code.
In fact, the Commonwealth need not even separately charge a defendant
with an underlying offense set forth in sections 6318(a)(1)-(6). However, if
the Commonwealth does charge a defendant with an offense under sections
6318(a)(1)-(6), an acquittal is relevant for purposes of grading the section
6318 offense at sentencing under subsection 6318(b). Id.
Instantly, the trial court charged the jury, regarding the unlawful
contact conviction as follows:
The defendant is charged with three counts of unlawful contact
with a minor. The alleged victims are [J.C.], [J.D.] and [R.Z.].
In order to find the defendant guilty of this offense, you must
find that each of the following elements has been proven beyond
a reasonable doubt. First, that the defendant was intentionally in
contact with a minor. Second, that the contact was for the
purposes of engaging in an unlawful act; that is, the
crimes listed in the information. And, third, that either the
defendant or the person being contacted is within this
Commonwealth.
Contact is any direct or indirect communication by any means. A
minor is an individual under the age of 18.
N.T. Jury Trial, 8/18/11, at 721-22 (emphasis added). See
Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010) (tying grading of section
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6318 conviction to how Commonwealth charges and presents its case to
jury).
Here, the bill of information,8 which is relevant to how the jury was to
determine Weimer’s guilt regarding the crime of unlawful contact, states:
The District Attorney of ALLEGHENY County, by this information
charges that on (or about) Wednesday, the 1st day of March,
2006, through on (or about) Tuesday, the 17th day of August,
2010 in the said County of ALLEGHENY, PAUL DAVID WEIMER
hereinafter called actor, did commit the crime or crimes
indicated herein, that is
Count 2 UNLAWFUL CONTACT WITH MINOR Felony 2
The actor intentionally contacted a minor namely, John
Doe, age 14 for the purpose of arranging actual or
simulated sexual activity or nudity for the purpose of
sexual stimulation or gratification of another person
as defined in section 6320[9] namely, Involuntary
____________________________________________
8
Notably, in the criminal complaint, the Commonwealth charged Weimer
with unlawful contact with a minor under a different subsection, as follows:
18 [Pa.C.S. §] 6318[(a)(1)] UNLAWFUL CONTACT WITH MINOR -
FELONY 1 OFFENSE ENUMERATED IN CHAPTER 31 Fl 1 COUNT
The actor intentionally contacted a minor namely, A
KNOWN 14 YEAR-OLD MALE for the purpose of engaging in
the activity of INVOLUNTARY DEVIATE SEXUAL
INTERCOURSE in violation of 18 [§]Pa.C.S. §6318(a)(1).
9
Section 6320 delineates the crime of “sexual exploitation of children,” not
involuntary deviate sexual intercourse, which is found at 18 Pa.C.S. §
3123(a)(1). Sexual exploitation of children is defined as:
(a) Offense defined. — A person commits the offense of
sexual exploitation of children if he procures for another person
(Footnote Continued Next Page)
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Deviate Sexual Intercourse, in violation of Section
6318(a)(6) of the Pennsylvania Crimes Code, Act of
December 6, 1972, 18 Pa.C.S. §6318 (a)(6), as
amended[.]
Criminal Information, 10/14/10, at 1 (emphasis added).
In Commonwealth v. Aikens, 139 A.3d 244 (Pa. Super. 2016),10 our
Court recently addressed a similar grading issue with regard to the
defendant’s unlawful contact with a minor conviction under section
6318(a)(1). In Aikens, the Commonwealth filed its information charging
the defendant with: unlawful contact with a minor, corruption of minors,
IDSI, statutory sexual assault, and indecent exposure. The defendant was
found guilty of the unlawful contact and corruption charges; the jury
acquitted him of IDSI and the remaining charges were nolle prossed. The
_______________________
(Footnote Continued)
a child under 18 years of age for the purpose of sexual
exploitation.
(b) Penalty. — An offense under this section is a felony of the
second degree.
(c) Definitions. — As used in this section, the following words
and phrases shall have the meanings given to them in this
subsection:
“Procure.” —To obtain or make available for sexual exploitation.
“Sexual exploitation.” —Actual or simulated sexual activity or nudity
arranged for the purpose of sexual stimulation or gratification of any person.
10
We note that the Pennsylvania Supreme Court recently granted allowance
of appeal in Aikens limited to the issue of whether “the court illegally
sentence[d] Aikens on unlawful contact with a minor graded as an F-1 when
it should have been graded as an F-3”? See Commonwealth v. Aikens,
268 EAL 2016 (Pa. filed 11/2/16).
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trial court graded the defendant’s section 6318 conviction as a first-degree
felony, based on its charge to the jury, which stated:
[Defendant] has been charged with unlawful contact with a
minor. To find [Defendant] guilty of this offense, you must find
that each of the following elements has been proven beyond a
reasonable doubt: First, that [Defendant] was intentionally in
contact for the purpose of engaging in an unlawful act – and in
this case, that unlawful act is alleged to be [IDSI], the
crime that we just discussed, that I just defined for you[.]
Id. at 247-48 (emphasis in original). The Court concluded that because the
trial court’s charge made it clear to the jury that the defendant was only
accused of contacting the minor for one specific offense, IDSI, when the jury
returned a verdict of guilt under section 6318, “it must have concluded, as a
matter of fact, that [Defendant] contacted the victim for the purpose of
engaging in IDSI.” Id. at 248. Accordingly, the Court affirmed the grading
of the section 6318 offense as a first-degree felony where “the jury did find
that a first-degree felony was the ‘most serious underlying offense . . . for
which the defendant contacted the minor.’” Id.
Unlike the case in Aikens, here the trial court did not charge the jury
with regard to the specific offense for which Weimer was accused of
contacting the victim for purposes of section 6318. Therefore, we do not
know the “most serious underlying offense . . . for which Weimer contacted
the minor” for purposes of grading the offense under section 6318(b). See
Felder, supra at 517 (“language of section 6318 expressly requires a
factual determination of the crime ‘for which the defendant contacted the
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minor’ in order to determine proper grading.”). Because of this, the trial
court would have had to have guessed what crime Weimer sought to commit
when he contacted the minor. This is neither permitted nor intended under
the statute. Reed, supra; Aikens, supra.
Based on these facts, we conclude that the section 6318(b)(2) default
third-degree felony grading should have been applied where Weimer was
acquitted of all charged section 6318(a) offenses, Reed, supra, and where
the court’s charge to the jury did not make it clear for which section 6318(a)
offense Weimer was accused of contacting the minor. See Aikens, supra
at 644 (where sentencing court would have to guess at which offense
defendant sought to commit under section 6318, “[w]e cannot countenance
that result.”).11 Thus, the court’s 5-10 year sentence of imprisonment for
Weimer’s unlawful contact conviction with regard to victim J.D. is illegal
where a third-degree felony under section 6318(b)(2) carries a statutory
____________________________________________
11
Moreover, even if the jury had read the information for purposes of
determining what, if any, of the crimes listed in it may have constituted the
underlying offense for which Weimer contacted J.D., our decision about
grading the offense would not change. The discrepancies in the
Commonwealth’s bill of information create further confusion with regard to
exactly which subsection of section 6318, and its delineated crimes, the
Commonwealth intended to use as the “underlying offense.” While the
information states that Weimer contacted J.D. for “the purpose of arranging
actual or simulated sexual activity or nudity for the purpose of sexual
stimulation or gratification of another person as defined in section 6320,” the
information later states that the underlying offense is the crime of IDSI,
found at section 3123. See supra nn.9-10. These crimes not only have
differing elements, but are also graded differently.
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maximum sentence of seven years’ imprisonment. Accordingly, we vacate
the judgment of sentence as it relates to victim J.D. (CC 201011535) and
remand for resentencing.
In his final issue on appeal, Weimer contends that he is entitled to
relief due to the court’s defective Rule 907 notice of its intent to dismiss his
PCRA petition without a hearing. Specifically, Weimer asserts that because
the court’s notice failed to explain the reasons for the intended dismissal and
what defects, if any, were in his petition, he has effectively been denied his
right to file an amended petition to correct any defects under Pa.R.Crim.P.
905(a).
Weimer is correct in asserting that a Rule 907 pre-dismissal notice
affords a petitioner the opportunity to seek leave to amend his petition and
correct any material defects. Commonwealth v. Rykard, 55 A.3d 1177,
1189 (Pa. Super. 2012) (citing Commonwealth v. Williams, 782 A.2d 517,
526 (Pa. 2001)). The ultimate goal of this process is to permit merit review
by the PCRA court of potentially arguable claims. Id.
While the trial court’s Rule 907 notice did not specifically list the
court’s reasons for its intent to dismiss Weimer’s petition or any perceived
defects in Weimer’s petition, we recognize that the court had previously
granted counsel the opportunity to amend Weimer’s pro se petition and also
granted Weimer leave to submit pro se supplements to his petition.
Moreover, in the four and one-half months that elapsed between the Rule
907 notice and the order dismissing Weimer’s petition, the court accepted
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numerous filings submitted on Weimer’s behalf, including a supplemental
petition certifying witnesses, pro se and counseled responses and objections
to the Rule 907 notice, and a supplemental PCRA petition. The court
acknowledged that it considered “the responses filed to [its] notice of
intention to dismiss.” Order Dismissing Post Conviction Petition without a
Hearing, 7/12/16.12 Under these circumstances, we find no merit to this
issue on appeal. See Commonwealth v. Albrecht, 720 A.2d 693 (Pa.
1998) (under Pa.R.Crim.P. 1507(a), predecessor to Rule 907, Supreme
Court found no defect in notice of intent to dismiss PCRA petition without
hearing where petitioner could not demonstrate violation of rule because he
was afforded both further proceedings and opportunity to present arguments
in support of petition, which is all rule requires).
Order reversed. Judgments of sentence vacated. Case remanded for
resentencing consistent with this opinion. Jurisdiction relinquished. 13
____________________________________________
12
To the extent that Weimer filed pro se supplemental petitions in the court
below, we note that the record reflects that he was still represented by
Attorney Farrell. Although counsel filed a motion to withdraw, the trial court
never granted that motion. In fact, Attorney Farrell remains listed as
counsel on appeal. See Pa.R.Crim.P. 576(a)(4) (pro se filings of
represented litigants); Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993).
13
We instruct the parties to attach a copy of Judge McDaniel’s opinion in the
event of further proceedings in the matter.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2017
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1-OPINION
Circulated 05/31/2017 03:59 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTHOF PENNSYLVANIA CRIMINAL DIVISION
CC Nos. 201011522, 201011523,
201011535.
vs.
SUPERIOR COURT
No. 1042 WDA 2016
PAUL WEIMER,
Defendant.
OPINION
Filed By:
Hon. Donna Jo McDaniel
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Michael Streily, DDA
Office of the District Attorney
401 Courthouse
436 Grant Street
Pittsburgh, PA 15219
Dated: 10-13-2016
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
V. CC: 201011522, 201011523, 201011535
PAUL WEIMER,
Defendant
OPINION
The Defendant has appealed from this Court's Order of July 12, 2016, which dismissed
his Amended Post Conviction Relief Act Petition without a hearing. However, a review of the
record reveals that the Defendant has failed to present any meritorious issues on appeal and,
therefore, this Court's Order should be affirmed.
The Defendant was charged with a total of 21 counts1 encompassing Rape,2 Involuntary
Deviate Sexual Intercourse,3 Statutory Sexual Assault,4 Unlawful Contact with a Minor, 5
Endangering the Welfare of a Child,6 False Imprisonment," Corruption of Minors8 and Selling or
I Due to the numerous charges, this Court has created a chart showing the charges, their disposition and resulting
sentence, which it has attached to this Opinion as Appendix I.
2 18 Pa.C.S.A. §3121(a)(1)
3 18 Pa.C.S.A. §3123(a)(7)
4 18 Pa.C.S.A. §3122.1
5 18 Pa.C.S.A. §6318(a)(6)
6 18 Pa.C.S.A. §4304
7 18 Pa.C.S.A. §2903(a)
8 18 Pa.C.S.A. §630 l(a)(l)
Furnishing Liquor to Minors9 in relation to various incidents with three young men who visited
and lived in his home. A jury trial was held before this Court in August, 2011. At the
conclusion of the Commonwealth's case, this Court granted the Defendant's Motion for
Judgment of Acquittal at the False Imprisonment charge and denied it at all other counts. The
jury returned a verdict of Not Guilty to the Rape charges at CC 20 l O 11522 and the IDSI,
Indecent Assault and Statutory Sexual Assault charges at CC 201011535 and guilty of all
remaining charges. The Defendant next appeared before this Court on March 13, 2012, when he
was found to be a Sexually Violent Predator and was sentenced to two (2) consecutive terms of
imprisonment of 10 to 20 years and one (1) consecutive term of imprisonment of five (5) to 10
years, for an aggregate sentence of 25-50 years. Post-Sentence Motions were granted as to the
sentencing credit issue and denied in all other respects. The judgment of sentence was affirmed
by the Superior Court on August 1. 2013 and the Defendant's subsequent Petition for Allowance
of Appeal was denied on November 27, 2013.
No further action was taken until April 7, 2014 when the Defendant filed a pro se Post
Conviction Relief Act Petition. Thomas Farrell, Esquire, was appointed to represent the
Defendant and an Amended PCRA Petition was filed on June 16, 2015. After reviewing the
Amended Petition and record and the Conunonwealth's response thereto, this Court gave notice
of its intent to dismiss the Petition on February 25, 2016. After again reviewing the record in
light of the Defendant's Response to the Notice of Intent, this Court dismissed the Amended
Petition without a hearing on July 12, 2016. This appeal followed.
9 I 8 Pa.C.S.A. §6310.1 (a)
2
By way of a brief review, the evidence presented at trial established that when he was
between the ages of 13 and 15, Jason Diaz did odd jobs at the Defendant's house. At various
times when he was at the Defendant's house, Diaz testified that the Defendant gave him liquor
(Trial Transcript, p. 216, 229), touched his private parts (T.T .. p. 221), performed oral sex on him
(T.T., p. 216), performed anal sex on him (T. T., p. 218), forced Diaz to perform oral sex on the
Defendant (T. T., p. 226), induced Diaz and three other young teenage boys into having an oral
sex "foursome" while the Defendant watched (T.T., p. 220), and had Diaz watch while other of
the young teenagers performed oral sex on the Defendant (T.T., p. 222). Diaz also testified that
the Defendant induced him into inviting over another boy, Rick Zimmerman, in order for the
Defendant to have sex with him as well (T.T., p. 230)
On appeal, the Defendant raises nine (9)10 claims of error. This Court has combined
some issues and re-ordered them for ease of review. They are addressed as follows:
Initially, the Defendant raises a number of claims directed to the ineffective assistance of
counsel. In order to establish a claim for the ineffective assistance of counsel, "a PCRA
Petitioner must demonstrate, by a preponderance of the evidence, that: (1) the underlying claim
is of arguable merit; (2) no reasonable basis existed for counsel's action or inaction; and (3) there
is a reasonable probability that the result of the proceedings would have been different absent
such error." Commonwealth v. Gibson, l 9 A.3d 512, 525-26 (Pa. 2011 ). "The law presumes that
10
Reference is made to the oft-cited quote from Judge Aldisert: "With a decade and a half of federal appellate court
experience behind me, I can say that even when we reverse a trial court, it is rare that a brief successfully
demonstrates that the trial court committed more than one or two reversible errors ... When I read an appellant's brief
that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that this is
an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate
advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness." Aldisert, The Appellate Bar:
Professional Competence and Professional Responsibility - a View from the Jaundiced Eye of One Appellate Judge,
11 Cap.U.L.Rev. 445, 458 (1982).
3
counsel was not ineffective, and the appellant bears the burden of proving otherwise ... [I]f the
issue underlying the charge of ineffectiveness is not of arguable merit, counsel will not be
deemed ineffective for failing to pursue a meritless issue... Also, if the prejudice prong of the
ineffectiveness standard is not met, 'the claim may be dismissed on that basis alone and (there is
no] need [to] determine whether the [arguable merit] and [client's interests] prongs have been
rnet." Commonwealth v. Khalil, 806 A.2d 415, 421-2 (Pa.Super. 2002). "With regard to the
reasonable basis prong, [the appellate court] will conclude that counsel's chosen strategy lacked
a reasonable basis only if the petitioner proves that the alternative strategy not elected offered a
potential for success substantially greater than the course acutely pursued." Commonwealth v.
Busanet, 54 A.3d 35. 46 (Pa. 2012).
1. Ineffective Assistance of Counsel - Motion to Withdraw
Initially, the Defendant argues that his first appointed attorney, Michelle Collins, Esquire,
was ineffective for failing to file a Motion to Withdraw from her representation. This claim is
meritless.
Attorney Michelle Collins of the Public Defender's Office was initially appointed to
represent the Defendant but prior to trial, the Defendant became dissatisfied with her personaJly
and sent her a letter demanding that she withdraw. Attorney Collins did not withdraw but instead
transferred the case to another Public Defender, Carrie Allman, Esquire. Attorney Allman
represented the Defendant through trial and. according to correspondence submitted by the
Defendant, he remained pleased with her services until he was convicted at which point he
became dissatisfied with her.
4
It is well established that "the right to appointed counsel does not include the right to
counsel of the defendant's choice." Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998).
Additionally, the decision of "whether to grant a defendant's petition to replace court appointed
counsel is a decision which is left to the sound discretion of the trial court. As a general rule,
however, a defendant must show irreconcilable differences between himself and his court
appointed counsel before a trial court will be reversed for abuse of discretion in refusing to
appoint new counsel. Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa.Super. 2007), internal
citations omitted. Our courts have held that '"substantial reasons' or 'irreconcilable differences'
warranting appointment of new counsel are not established where the defendant merely aJleges a
strained relationship with counsel, where there is a difference of opinion in trial strategy, where
the defendant lacks confidence in counsel's ability, or where there is brevity of pretrial
communications. Id.
That the Defendant now seeks to raise an ineffectiveness claim against Attorney Collins
is somewhat confusing to this Court. The Defendant's own pleadings indicate that his conflict
with Attorney Collins was personal to her and not with the Public Defender's Office as a whole,
and that once Attorney Allman, also from the Public Defender's Office, took over the case, the
Defendant was satisfied with the transfer.
In order to sustain a claim for ineffective assistance, the Defendant would have to
establish that had Attorney Collins filed a formal Motion to Withdraw, rather than simply
transferring the case to another attorney. the result would have been different. The Defendant
fails to establish that this Court would have even granted the Motion to Withdraw, let alone the
remaining elements of his ineffectiveness claim. It is not this Court's practice to allow
5
defendants to serially request new attorneys for reasons of irreconcilable differences (which in
this case appeared to be the Defendant's personal conflict with Attorney Collins and not an error
or omission on her part) and this Court can say with certainty that had such a Motion been
presented, this Court would have denied it. Thus, Attorney Collins· actions in transferring the
case to Attorney Allman in her office actually resulted in the Defendant getting the relief he
wanted (a new attorney), which he would otherwise not have been able to do. For her part,
Attorney Allman performed ably and well at trial and the Defendant's rights and interests were
well-represented (and indeed, the Defendant was pleased with her services up until the guilty
verdict). Whatever the dispute between the Defendant and Attorney Collins, it did not impede
the Defendant's right to a fair trial and to effective counsel in Attorney Allman. This claim is
meritless.
2. Ineffective Assistance of Counsel - Motion to Suppress
Next, the Defendant argues that trial counsel was ineffective for failing to file a Motion to
Suppress an email between the Defendant and victim Jordan Campbell because it was not
included as a subject of the search warrant executed at the Defendant's home. Again, this claim
is meritless.
At trial, during the cross-examination of victim Jordan Campbell, Attorney Allman
questioned the witness regarding a document which included a photo of a man (later identified as
the witness' friend, Chuck) above an email from the Defendant to Campbell dated April 29,
2010. The email was printed in its entirety and was completely legible. That document was
marked as Defense Exhibit A and was later admitted. Then, on re-direct, the Commonwealth
6
marked and admitted a text-only copy of the same email (without the picture) as
Commonwealth's Exhibit 7:
Q. (Ms. Allman): Mr. Campbell, do you recognize the person in that picture
at all?
A. (Jordan Campbell): Yes.
Q. Who's that person?
A. This is my friend, Chuck.
Q. How old's Chuck?
A. Chuck is 32.
Q. Okay. So he's an adult male, as well?
A. Yes.
Q. Is he homosexual? Do you know?
A. He had expressed doubts about his sexuality.
Q. Did you have any relationship with Chuck of a sexual nature?
A. No.
Q. Not prior to Mr. Weimer?
A. No.
Q. Did you ever tell Mr. Weimer that you had a sexual relationship with
Chuck?
A. I told him that we had hung out, not that he had actually had any sort of
sexual relationship.
THE COURT: Can we mark that as Defense A, please, for purposes of the record.
MS. ALLMAN: Yes, Your Honor. I'll grab my stickers.
7
No further questions of this witness, Your Honor.
MR. SCHULTE: Just a very few questions.
REDIRECT EXAMINATION
Q. (Mr. Schulte): I'm going to show you a text of that email. Do you
remember getting that email?
A. (Jordan Campbell): I believe so, yes.
THE COURT: Can you tell me what exhibit we're on, please?
MR. SCHULTE: I'm going to mark - this will be Commonwealth's Exhibit 7.
skipped seven before.
THE COURT: Okay.
Q. And who was this email from?
A. This email is from Paul.
Q. Okay. And you understood it to be from PauJ?
A. Yes.
Q. Okay. And that's his email as you knew it?
A. Yes.
Q. And in the recipient spot there, that's your email, right?
A. Yes.
Q. And do you remember the context behind getting this email?
A. I don't really remember. I believe I had just woken up and discovered that
I had that email one morning.
Q. Do you remember if you responded to this?
A. I don't recall.
8
Q. Okay.
MR. SCHULTE: Your Honor, I've marked this as Commonwealth's Exhibit 7,
and Pd move for its admission. And may I briefly publish it?
THE COURT: Yes. It will be admitted.
(Trial Transcript, p. 84-86).
The Defendant now argues that trial counsel was ineffective for failing to seek
suppression of the email as presented by the Commonwealth. However, this argument
completely disregards that the email was presented and marked as an exhibit by defense counsel
before the text-only copy was introduced by the Commonwealth. Because the Defendant
introduced the email himself before the Commonwealth did, he cannot claim that he was
prejudiced by the Commonwealth's later use of the same email.
Moreover, the Defendant's argument also completely disregards that he was acquitted of
all charges relating to victim Jordan Campbell and he has thus utterly failed to establish any
prejudice from the Commonwealth's use of the email. Insofar as the Defendant introduced the
email first himself and was subsequently acquitted of all charges relating to Jordan Campbel1, he
has utterly failed to establish his claim that counsel was ineffective for failing to seek the email's
suppression. This claim must also fail.
3. IneffectiveAssistance of Counsel - Zealous Advocacy
The Defendant also argues that trial counsel was ineffective in failing to zealously
advocate for him at trial. Again, this claim is meritless.
The Defendant now avers that Attorney Allman failed to zealously advocate for him at
trial both as a general proposition and for a laundry list of perceived examples of ineffectiveness
9
which were not explained, discussed or analyzed. "When a court has to guess what issues an
appellant is appealing, that is not enough for meaningful review. When an appellant fails
adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial
court is impeded in its preparation of a legal analysis which is pertinent to those issues. In other
words, a Concise Statement which is too vague to allow the court to identify the issues raised on
appeal is the functional equivalent of no Concise Statement at all." Commonwealth v. Reeves,
907 A.2d 1, 2 (Pa.Super. 2006), citing Commonwealth v. Dowling, 78 A.2d 683, 686-7
(Pa.Super. 2001 ). Given the lack of explanation or review, this Court is unable to provide any
meaningful analysis of the Defendant's laundry list of perceived wrongs. As such, these claims
of error are waived.
To the extent that the Defendant seeks to raise a claim regarding Ms. Allman's conduct in
general, that claim is also meritless. After presiding at trial and having the opportunity to
observe Ms. Allman's conduct both before and during trial, this Court feels that Ms. Allman was
obviously well-prepared for trial, that she engaged in effective witness examinations, both on
direct and cross-examination, that she made appropriate and effective arguments and, ultimately,
that she presented the best defense she could with the facts she was given. It is also important to
note that she did secure acquittals on the most serious charges. It is understandable that the
Defendant is upset by the guilty verdicts, however, the mere fact that some of the verdicts were
guilty does not mean that counsel was ineffective. As discussed above and below, there was no
basis for a finding of ineffectiveness on any of the specific allegations, nor is there a basis for a
.finding of cumulative ineffective assistance. This claim must also fail.
JO
4. Ineffective Assistance of Counsel - Failure to Call Witness
Next, the Defendant argues that trial counsel was ineffective in failing to present the
testimony of Elizabeth Beroes, Esquire because "she was able to call into question the credibility
of multiple Commonwealth witnesses" (Defendant's Amended PCRA Petition, Section IV).
As it specifically relates to a claim for ineffectiveness for the failure to call a witness, the
petitioner must establish that "(I) the witness existed; (2) the witness was available to testify for
the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the absence of the testimony of the witness
was so prejudicial as to have denied the defendant a fair trial." Commonwealth v. Matias, 63 A.
3d 807, 810-811 (Pa.Super. 2013). "Ineffectiveness for failing to call a witness will not be found
where a defendant fails to provide affidavits from the alleged witnesses indicating availability
and willingness to cooperate with the defense." Commonwealth v. O'Bidos, 849 A.2d 243, 249
(Pa.Super. 2004). "Failure to call a witness is not per sc ineffective assistance of counsel, for
such a decision implicates matters of trial strategy. It is [the petitioner's] burden to demonstrate
that trial counsel had no reasonable basis for declining to call [a particular person] as a witness.
'Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed
constitutionally effective if he chose a particular course that had some reasonable basis designed
to effectuate his client's interests.' A claim of ineffectiveness generally cannot succeed
through comparing, in hindsight, the trial strategy employed with alternatives not
pursued." Commonwealth v. Hammond, 953 A.2d 544, 558 (Pa.Super. 2008), emphasis added.
Here, the Defendant avers only that trial counsel was ineffective in failing to call
Attorney Beroes because she would .. call into question the credibility of multiple
11
Commonwealth witnesses" (Defendant's Amended PCRA Petition. Section IV). The Defendant
does not provide any specifics regarding the substance of her testimony, nor has he attached an
affidavit from Attorney Beroes indicating the substance of her testimony and that she was willing
and available to testify for the defense. The Defendant's argument that Attorney Beroes was
sighted in the courtroom during trial does not mean that she was available and willing to testify
on his behalf.
Given the complete absence of any specific information regarding what Attorney Beroes'
testimony would have been, any evidence that it would have changed the result or its absence
deprived the Defendant of a fair trial, and any proof that she was willing and available to testify
on the Defendant's behalf, the Defendant has utterly failed to establish his claim for ineffective
assistance of counsel in this regard. This claim must also fail.
5. Ineffective Assistance o/Counsel 77 A.3d 663, 667 (Pa.Super. 2013).
Pennsylvania law regarding the date of a crime is well-settled:
Rule 560. Information: Filing, Contents, Function
(b) The information shall be signed by the attorney for the Commonwealth
and shall be valid and sufficient in law if it contains:
(3) the date when the offense is alleged to have been committed if the
precise date is known, and the day of the week if it is an essential
element of the offense charged. provided that if the precise date is
not known or if the offense is a continuing one, an allegation that it
was committed on or about any date within the period fixed by
the statute of limitations shall be sufficient;
Pa.R.Crim.Pro. 560, emphasis added.
It is the duty of the prosecution to 'fix the date when an alleged offense occurred
with reasonable certainty' ... The purpose of so advising a defendant of the date
when an offense is alleged to have been committed is to provide him with
sufficient notice to meet the charges and prepare a defense.
However, 'due process is not reducible to a mathematical formula,' and the
Commonwealth does not always need to prove a specific date of an alleged
crime ... Additionally, 'indictments must be read in a common sense manner and
are not to be construed in an overly technical sense'... Permissible leeway
regarding the date varies with, inter alia, the nature of the crime and the rights of
the accused ...
Case law has further 'established that the Commonwealth must be afforded broad
latitude when attempting to fix the date of offenses which involve a continuous
course of criminal conduct'... This is especially true when the case involves a
sexual offense against a child victim.
13
Commonwealth v. Brooks, 7 A.3d 852, 857-8 (Pa.Super. 2010).
At the conclusion of the trial, this Court instructed the jury, in part. as follows:
THE COURT: It is not the defendant's burden to prove that he is not guilty.
Instead, it is the Commonwealth that always has the burden of proving each and
every element of the crimes charged beyond a reasonable doubt. A person
accused of a crime is not required to present evidence or to prove anything in his
own defense ...
... The indictments allege that the crimes were committed between March of2006
and August of 2010. You are not bound by any of these dates that are alleged in
the information. It is not an essential element of any of the crimes charged. You
may find the defendant guilty if you are satisfied beyond a reasonable doubt that
he committed the crime charged in the indictment, even though you are not
satisfied that he committed it on a particular date that is alleged in the
indictment ...
. . . The defendant is charged with three counts of involuntary deviate sexual
intercourse. There are three alleged victims. One victim would apply to each
count. The alleged victims are Mario Gorsop, Jason Diaz, Rick Zimmerman.
In order to find the defendant guilty of involuntary deviate sexual intercourse, you
must find that the following elements have been met beyond a reasonable doubt.
First, that the defendant had deviate sexual intercourse with the children. Second,
that the children were under the age of 16. Third, that the defendant was four or
more years older than the children. And, fourth, that the defendant and child were
not married to one another ....
.. . Don't let the name of this crime, involuntary deviate sexual intercourse,
mislead you. It is immaterial to the charge of involuntary deviate sexual
intercourse with a child under I 6 that the child did not object or resist or even that
the child consented. When a child is under 16, the law treats deviate sexual
intercourse as involuntary, even if the child is a willing partner.
(T.T. pp. 710, 715-716, 720-721).
This Court did not err in giving the instruction that date was not an essential element of
the offenses, because it was not. Because the jury instruction was consistent with the statute and
was an accurate statement of law, counsel was not ineffective for failing to challenge it. This
claim must also fail.
14
6. Illegal Sentence - Involuntary Deviate Sexual intercourse
The Defendant next avers that this Court imposed an illegal mandatory sentence at the
Involuntary Deviate SexuaJ Intercourse charges. Although he initially framed this issues in terms
of the ineffective assistance of counsel in his Amended Petition, he now simply avers trial court
error. However, a review of the record reveals that this claim is meritless.
Section 9718 of our Judicial Code provides for the following mandatory minimum
sentences:
§9718. Sentencesfor offensesagainst infant persons.
(a). Mandatorysentence. -
(1) A person convicted of the followingoffenses when the victim is less
than 16 years of age shall be sentenced to a mandatory term of
imprisonment asfollows:
18 Pa.CS. §2702(a)(l) and (4) (relating to aggravated assault) -
not less than two years.
18 Pa.CS. §3121(a)(l). (2), (3), (4) and (5) (relating to rape)-not
less than ten years.
18 Pa. C.S. §3123 (relating to involuntary deviate sexual
intercourse)- not less than ten years.
18 Pa. C.S. §3 J 25(a)(1) through (6) (relating to aggravated
indecent assault) - not less than five years.
Our appellate courts have recently authored a line of cases following the United States
Supreme Court's decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), holding that
mandatory minimum sentencing schemes, which require certain factual findings to trigger or
increase the minimum sentence, are unconstitutional because they require proof of an additional
fact(s) that was not submitted to the jury. See, e.g., Commonwealth v. Newman, 99 A.3d 86
15
(Pa.Super. 20 I 4), Commonwealth v. Valentine, 101 A.3d 80 l (Pa.Super. 2014) and
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014). Newman and Valentine both
concerned sentencing enhancements for firearms violations and Wolfe concerned a mandatory
minimum sentence pursuant to 42 Pa.C.S.A. §9718(a), where the victim was under 16 years of
age.
However, the Defendant's case is distinguishable from Newman, Valentine and Wolfe,
supra, because the crimes for which he was convicted required the jury's finding that the victim
was under age 16. Because the factor which gave rise to the mandatory minimum sentence was
an element of the offense, the jury had already made the requisite finding beyond a reasonable
doubt.
Our Superior Court addressed this identical issue in Commonwealth v. Matteson, 96 A.3d
1064 (Pa.Super. 2014). In Matteson, the defendant was convicted of Aggravated Indecent
Assault of a Child and Indecent Assault of a Person Under 13. He was sentenced to a mandatory
minimum term of imprisonment of IO to 20 years at the Aggravated Indecent Assault of a Child
charge. He appealed, claiming that his sentence was illegal pursuant to Alleyne and that
mandatory minimum sentencing schemes were, in general, unconstitutional. In affirming the
judgment of sentence, the Superior Court stated:
'The Alleyne decision ... renders those Pennsylvania mandatory minimum
sentencing statutes that do not pertain to prior convictions constitutionally inform
insofar as they permit a judge to automatically increase a defendant's sentence
based on a preponderance of the evidence standard.'... However, the Sixth
Amendment concerns present in Alleyne are not implicated in this case. Here,
Matteson was charged with aggravated indecent assault of a child, which requires,
inter alia, that the victim is less than 13 years of age. See 18 Pa.C.S.A. §3125.
The victim testified that she was 11 years old at the time of the incident. .. The
jury received an instruction that it was required to find that the victim was less
16
than 13 years of age... Therefore, by finding Matteson guilty of aggravated
indecent assault of a child beyond a reasonable doubt, the jury specifically found
the element required to impose the mandatory minimum sentence... Thus, the
requirements of Allevne have been met and Matteson's claim is without merit.
Commonwealth v. Matteson, 96 A.3d 1064, 1066-1067 (Pa.Super. 2014).
In the instant case, the Defendant was sentenced to two (2) mandatory minimum
sentences for Involuntary Deviate Sexual Intercourse with a Child. These offenses required the
jury's preliminary finding that the victims were under the age of 16 at the time of the
commission of the crimes. By finding the Defendant guilty of these offenses, the jury made the
requisite factual finding to satisfy Alleyne and so the sentences were not illegal. This claim is
meritless.
7. Illegal Sentence - Unlawful Contact of a Minor
The Defendant next avers that this Court imposed an illegal sentence at the Unlawful
Contact with a Minor charge "when AppelJant was convicted of unlawful contact with a minor
based upon various theories of the Commonwealth including that Appellant indecently assaulted
the victim pursuant to 18 Pa.C.S. §3126( a)(8), a misdemeanor of the second-degree, which made
the grade of the crime of unlawful contact a felony of the third-degree" (Defendant's Concise
Statement of Errors Complained of on Appeal, p. 2). This claim is meritless.
The Defendant was charged with Unlawful Contact with a Minor (Sexual Exploitation of
Children) pursuant to §6318(a)(6), as follows:
§6318. Unlawfulcontact with minor
(a). Offense defined - A person commits an offense if he is intentionally in
contact with a minor, or a law enforcement officer acting in the
performance of his duties who has assumed the identity of a minor, for the
purpose of engaging in an activity prohibited under any of the following,
17
and either the person initialing the contact or the person being contacted
is within this Commonwealth:
(6). Sexual exploitation of children as defined in section 6320 (relating
to sexual exploitation of children).
(b). Grading. -A violation of subsection (a} is:
(]). an offense of the same grade and degree as the most serious
underlying offense in subsection (a) for which the defendant
contacted the minor; or
(2). a felony of the third degree;
whichever is greater.
18 Pa.C.S.A. §6318.
Sexual exploitation of children is further enumerated in our Crimes Code as follows:
§6320. Sexual exploitation of children
(a). Offense defined. - A person commits the offense of sexual exploitation of
children if he procures for another person a child under 18 years of age
for the purpose of sexual exploitation.
(b). Penalty. - An offense under this section is a felony of the second degree.
18 Pa.C.S.A. §6320.
Here, the Defendant was charged with and convicted of subsection (a)(6) of Unlawful
Contact with a Minor, relating to Sexual Exploitation of Children. Sexual Exploitation of
Children is, by statute, a felony of the second degree. Thus, pursuant to §6318(b)(l), the
Unlawful Contact charge appropriately assumed the underlying grading of Sexual Exploitation of
Children, a second-degree felony. This Court did not err in grading the Unlawful Contact charge
as a second-degree felony and sentenced the Defendant appropriately thereon. This claim must
fail.
18
8. Trial Court Error
Finally, the Defendant argues that this Court erred in filing a defective Notice oflntent to
Dismiss the Amended Petition and in "refusing to allow" the Defendant to file a Second
Amended Petition. This claim is meritless.
On February 25, 2016, this Court filed a Notice of Intent to Dismiss the Defendant's
Amended PCRA Petition without a hearing. That Order stated:
NOTICE OF INTENTION TO DISMISS PCRA PETITION
WITHOUT A HEARING
AND NOW, to-wit, this 25 day of February, 2016, petitioner is hereby put
on notice that after a thorough review of the record which included the Amended
Petition filed by appointed counsel, the Commonwealth's Response and the
Defendant's prose Supplements; this Court intends to dismiss the petition without
a hearing.
The Petitioner may respond to the proposed dismissal within 20 days of
the date of this notice in accordance with Pa.R.Crim.P. Rule 907.
BY THE COURT:
s/McDaniel, J.
A review of the record demonstrates that the Order met the requirements of Rule 907.
The Order noted the documents reviewed and gave the appropriate notice of the intent to dismiss
it. Rule 907 does not require a lengthy analysis of the reasons for the dismissal, as the Defendant
seems to suggest. Rather, the Order was appropriate and in accordance with the Rules of
Procedure. This claim is meritless.
As to the Defendant's claim that this Court "refused to allow" him to file a second
Amended Petition in response to the Notice of Intent to Dismiss, this claim is belied by the
19
record. After the Notice of Intent to Dismiss was filed on February 25, 2016, this Court accepted
the following findings from the Defendant:
• Response to Notice oflntent to Dismiss, March 11, 2016, by Attorney Farrell;
• Objection to Notice of [ntent to Dismiss, March 16, 2016, by the Defendant; and
• Supplemental Petition in Support of PCRA, March 18, 2016, by the Defendant.
This Court did review and consider the Defendant's pro se and counseled filings and
noted the same in its Order dismissing the Petition on July 12, 2016. Thus, the Defendant's
claim that this Court refused to allow him to respond to the Notice of Intent to Dismiss is false
and so must fail.
Accordingly, for the above reasons of fact and law, this Court's Order of July 12, 2016,
which dismissed the Defendant's Amended Post Conviction Relief Act Petition without a
hearing, must be affirmed.
Dated: October 13, 2016
20
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