Commonwealth v. Askew

CONCURRING STATEMENT BY

LALLY-GREEN, J.:

¶ 1 I agree with the highly regarded Majority that Appellant waived his challenge to the constitutionality of Megan’s Law by failing to raise that challenge in post-sentence motions. Commonwealth v. Howe, 842 A.2d 436, 440-441 (Pa.Super.2004). A motion for extraordinary relief is an improper and inadequate substitute for a post-sentence motion. Id.; Pa. R.Crim.P. 704(B)(3). Such a motion has no effect on waiver or preservation of issues. Id. Because Appellant did not raise his constitutional challenge in a post-sentence motion or in any proper manner before sentencing, the issue is waived. As such, I would not address the merits, as the Majority does.

¶ 2 I also observe that Appellant may challenge the sufficiency of the evidence supporting his SVP determination for the first time on appeal. Rule of Criminal Procedure 606(A)(7) provides that a defendant may challenge, for the first time on appeal, “the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged.” This Court has applied that same rule to SVP determinations.¹³ See, e.g., Commonwealth v. Krouse, 799 A.2d 835 (Pa.Super.2002) (en banc), appeal denied, 573 Pa. 671, 821 A.2d 586 (2003); Commonwealth v. Meals, 842 A.2d 448 (Pa.Super.2004), appeal granted, 583 Pa. 661, 875 A.2d 1074 (2005). In other words, this Court has not required defendants to challenge the sufficiency of the SVP evidence in a post-sentence motion. See Commonwealth v. Evans, 2006 PA Super 132, 901 A.2d 528; Commonwealth v. Snyder, 870 A.2d 336 (Pa.Super.2005); Commonwealth v. Plucinski, 868 A.2d 20 (Pa.Super.2005). Thus, I agree with the Majority’s conclusion that the sufficiency issue is not waived. I also agree with the Majority’s conclusion that clear and convincing evidence supported Appellant’s SVP classification.

13 . This is true even though SVP determinations do not relate to the sufficiency of the evidence for the underlying crime.