Com. v. Thomas, T.

J-S75003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOBY THOMAS :
:
Appellant : No. 2640 EDA 2017
Appeal from the Judgment of Sentence July 14, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009398-2015,
CP-51-CR-0013089-2015
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED JUNE 17, 2019
Appellant, Toby Thomas, challenges the judgment of sentence entered
in the Philadelphia County Court of Common Pleas, following his convictions
for attempted rape and related offenses. We affirm his convictions, but vacate
the determination that Appellant is a sexually violent predator (“SVP”), and
remand for further proceedings.
Briefly, the relevant facts and procedural history of this case are as
follows. Appellant was charged with engaging in surreptitious, repeated sexual
abuse of his two daughters while they were between the ages of five and
eleven. His older daughter first reported the abuse when she was fifteen years
old, and his younger daughter reported shortly thereafter.
Appellant was arrested, and he proceeded to a bench trial. He was
convicted of one count each of attempted rape, involuntary deviate sexual
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intercourse with a child, statutory sexual assault, sexual assault, incest, and
indecent exposure, and two counts each of endangering the welfare of a child,
corruption of a minor, and indecent assault of a child less than thirteen.1 The
court deferred sentencing for a presentence investigation report, a mental
health report, and an evaluation by the Sexual Offenders Assessment Board.
At sentencing, the court imposed an aggregate term of seven to seventeen
years’ imprisonment, and deemed Appellant an SVP. Appellant timely filed a
notice of appeal.2 This case is now properly before us.3
Appellant first purports to challenge the sufficiency of the evidence
sustaining his convictions. Appellant protests alleged inconsistencies in the
victims’ testimonies, especially when compared to the alibi testimony given
by his brother and mother. This argument in fact contests the weight of the
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1 18 Pa.C.S.A. §§ 3121(a)(1); 3123(b); 3122.1; 3124.1; 4302; 3127(a);
4304(a); 6301(a)(1); and 3126(a)(7), respectively.
2 Appellant’s notice of appeal was filed August 14, 2017 – 31 days after his
sentence was entered on the docket. However, as the thirtieth day fell on a
Sunday, his notice of appeal was timely. See Pa.R.A.P. 903(a) (timely notice
of appeal must be filed within thirty days); see also 1 Pa.C.S.A. § 1908 (when
the thirtieth day of an appeal period falls on Saturday or Sunday, that day
shall be omitted from the timeliness computation).
3 Appellant filed a single notice of appeal from his two criminal docket
numbers. This practice has been prohibited by our Supreme Court’s recent
ruling in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Walker held
that where a single order resolves issues on more than one lower court docket,
an appellant must file separate notices of appeal at each docket number. See
id., at 977. Failure to do so requires quashal. See id. However, Walker was
decided on June 1, 2018, and applied prospectively. As Appellant filed his
single notice of appeal on August 14, 2017, before Walker was decided, we
decline to quash.
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evidence supporting his convictions. See Commonwealth v. Richard, 150
A.3d 504, 516 (Pa. Super. 2016) (reaffirming “a challenge to the weight of
the evidence is distinct from a challenge to the sufficiency of the evidence in
that the former concedes that the Commonwealth has produced sufficient
evidence of each element of the crime, but questions which evidence is to be
believed”).
If we address his argument as a challenge to the sufficiency of the
evidence, the claim is easily resolved. The testimony of a victim is sufficient,
on its own, to establish a crime of sexual assault. See Commonwealth v.
Cody, 584 A.2d 992, 993 (Pa. Super. 1991). Here, both victims provided
extensive testimony that Appellant repeatedly assaulted and abused them.
We have no trouble concluding that Appellant’s sufficiency challenge merits
no relief.
Even if we were to treat his claim as a challenge to the weight of the
evidence, Appellant is due no relief. We do not review challenges to the weight
of the evidence de novo on appeal. See Commonwealth v. Rivera, 983 A.2d
1211, 1225 (Pa. 2009). “[A]ppellate review of a weight claim is a review of
the exercise of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence.” Commonwealth v. Chine, 40
A.3d 1239, 1243 (Pa. Super. 2012) (citation omitted).
In order to grant a new trial on the grounds that the verdict is against
the weight of the evidence, “the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.” Id., at 1243-
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1244 (citations omitted). A verdict shocks the judicial conscience when “the
figure of Justice totters on her pedestal,” or when “the jury’s verdict, at the
time of its rendition, causes the trial judge to lose his breath, temporarily, and
causes him to almost fall from the bench[.]” Commonwealth v. Davidson,
860 A.2d 575, 581 (Pa. Super. 2004) (citations omitted).
An appellant wishing to challenge the weight of the evidence must
properly preserve his claim for review. Such a claim must be preserved orally
prior to sentencing, by a written motion before sentencing, or in a post-
sentence motion. See Pa.R.Crim.P. 607(a). Failure to preserve a weight of the
evidence challenge results in waiver. See Commonwealth v. Weir, 201 A.3d
163, 167 (Pa. Super. 2018).
Here, Appellant failed to raise his weight claim challenge in a motion
before or after sentencing. Instead, Appellant first contested the verdict as
against the weight of the evidence in his Pa.R.A.P. 1925(b) statement, where
he averred, “testimony from the plaintiffs are [sic] inconsistent.” Appellant’s
Rule 1925(b) Statement, at 3. Because Appellant failed to preserve this issue
before reaching the appellate stage, we cannot address it now. Consequently,
Appellant is due no relief.
Appellant also challenges his designation as a sexually violent predator.
Appellant believes this portion of his sentence is illegal. We are constrained to
agree.
“Issues relating to the legality of a sentence are questions of law…. Our
standard of review over such questions is de novo and our scope of review is
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plenary.” Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa. Super. 2017)
(en banc) (citation omitted).
In Commonwealth v. Muniz, our Supreme Court held that the
registration requirements under the Sexual Offender Registration and
Notification Act (“SORNA”) constitute criminal punishment. See 164 A.3d
1189, 1193 (Pa. 2017). In light of that determination, this Court in
Commonwealth v. Butler concluded, “section 9799.24(e) of SORNA
[relating to SVP designation] violates the federal and state constitutions
because it increases the criminal penalty to which a defendant is exposed
without the chosen fact-finder making the necessary factual findings beyond
a reasonable doubt.” 173 A.3d 1212, 1218 (Pa. Super. 2017). Because the
statute outlining SVP designation, 42 Pa.C.S.A. § 9799.24(e)(3), identifies the
trial court as the sole fact-finder for SVP designations, the Butler court found
this section unconstitutional.4 See id. The Butler panel vacated the
appellant’s SVP status and remanded to the trial court to issue appropriate
notice under 42 Pa.C.S.A. § 9799.23, as to the appellant’s registration
obligation. See id.
In light of Muniz and Butler, Appellant’s designation as an SVP
constitutes an illegal sentence. Therefore, we vacate that portion of his
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4 The Pennsylvania Legislature has endeavored to resolve the issues raised in
Muniz by passing a law to replace the invalidated portions of SORNA. See
2018 Pa. Legis. Serv. Act 2018-29 (H.B. 1952) (approved June 12, 2018)
(“Act 29”), amending Title 42 (Judicial Procedure) of the Pennsylvania
Consolidated Statutes. However, it does not amend the SVP provisions in 42
Pa.C.S.A. § 9799.24. See 42 Pa.C.S.A. § 9799.52 and 9799.55.
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sentence finding him to be an SVP, and remand to the trial court to issue a
revised reporting notice pursuant to 42 Pa.C.S.A. § 9799.23 (governing
reporting requirements of sex offenders). As Appellant is otherwise due no
relief, we affirm the remainder of his judgment of sentence.
Judgment of sentence affirmed in part and vacated in part. Case
remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/19
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