Com. v. Smith, D. ( 2018 )


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  • J-S50026-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    DONALD BRADON SMITH                        :
    :
    Appellant               :   No. 171 WDA 2018
    Appeal from the Judgment of Sentence January 3, 2018
    In the Court of Common Pleas of Fayette County
    Criminal Division at No(s): CP-26-CR-0001771-2016
    BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
    MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 09, 2018
    Donald Bradon Smith appeals from the judgment of sentence imposed
    on January 3, 2018, in the Court of Common Pleas of Fayette County following
    a jury verdict finding him guilty on charges of Involuntary Deviate Sexual
    Intercourse, Statutory Sexual Assault (11 years older than complainant), two
    counts of Sexual Assault, and two counts of Aggravated Indecent Assault
    (complainant less than 16).1 Smith received an aggregate sentence of nine
    to eighteen years’ incarceration. In this timely appeal, Smith argues only that
    the evidence was insufficient to support the verdicts. After a thorough review
    of the submissions by the parties, relevant law, and the certified record we
    affirm.    However, our review of this matter also indicates that Smith was
    subjected to an illegal sentence pursuant to Commonwealth v. Butler, 173
    ____________________________________________
    1   18 Pa.C.S. §§ 3123(a)(7), 3122.1(b), 3124.1, and 3125(a)(8), respectively.
    J-S50026-18
    A.3d 1212 (Pa. Super. 2017) (determination a defendant is a sexually violent
    predator by trial court based on clear and convincing evidence is
    unconstitutional) appeal granted, 2018 Pa. Lexis 3906 (July 31, 2018), when
    the trial court, sua sponte, determined Smith to be a sexually violent predator.
    Accordingly, we vacate the determination Smith is a sexually violent predator
    as well as that portion of his sentence requiring he attend monthly counseling
    sessions for the rest of his life. We remand this matter for a determination of
    the applicability of the amendments to the law, found at 42 Pa.C.S. § 9799.51
    et seq.2
    Due to our resolution of this matter, we need not recite the underlying
    facts of this matter in detail.       At trial, B.N.C., a minor who lived with her
    mother and resided in the same dwelling as Smith, testified Smith sexually
    assaulted her in a variety of manners on multiple occasions.
    In this timely appeal, Smith claims the evidence presented at trial was
    insufficient to support his convictions due to the “speculative and unreliable
    nature” of the testimony of B.N.C. This claim has been waived.
    Initially, we note that a challenge to credibility of the evidence is a claim
    regarding the weight of the evidence, not the sufficiency.          This Court has
    explained:
    This argument goes to the credibility of the witness’s testimony,
    and is, therefore, not an attack on the sufficiency of the evidence,
    but an allegation regarding the weight it should have been
    afforded. Commonwealth v. Palo, 
    24 A.3d 1050
    , 1055 (Pa.
    ____________________________________________
    2   Title 42, Subchapter I.
    -2-
    J-S50026-18
    Super. 2011) appeal denied, 
    613 Pa. 663
    , 
    34 A.3d 828
    (2011)
    (The appellant's “sufficiency” argument directed entirely to the
    credibility of the Commonwealth’s chief witness challenged the
    weight, not the sufficiency, of the evidence).
    Commonwealth v. Griffin, 
    65 A.3d 932
    , 939 (Pa. Super. 2013).
    Because Smith has made no arguments as to the sufficiency of the
    evidence of the crimes of which he was convicted, the challenge to the
    sufficiency of the evidence has been waived for failure to develop the
    argument.
    The failure to properly develop a claim renders an issue waived.
    See [Commonwealth v.] 
    Williams, supra
    , 959 A.2d [1252] at
    1258 [(Pa. Super. 2008)]; Commonwealth v. Ellis, 
    700 A.2d 948
    , 957 (Pa. Super. 1997) (holding waiver results if an appellant
    fails to properly develop an issue or cite to legal authority to
    support his contention in his appellate brief).
    Commonwealth v. Roche, 
    153 A.3d 1063
    , 1072 (Pa. Super. 2017). See
    also Commonwealth v. Dale, 
    836 A.2d 150
    , 152 (Pa. Super. 2003) (In
    conducting our review, we consider all of the evidence actually admitted at
    trial and do not review a diminished record.)3
    Significantly, Smith never raised a claim regarding the weight of the
    evidence before the trial court. It is well-settled law that a claim asserting the
    verdict is against the weight of the evidence and must be raised before the
    trial court, either orally at sentencing or in a written post-sentence motion.
    Smith did neither. Therefore, his weight of the evidence claim has also been
    ____________________________________________
    3 Nonetheless, we note the trial court cogently addressed the sufficiency of
    the evidence. See Trial Court Opinion at 5-8. We found no error in that
    discussion.
    -3-
    J-S50026-18
    waived. See Pa.R.Crim.P. 607; 
    Roche, 153 A.3d at 1071
    (Pa. Super. 2017)
    (challenge to the weight of the evidence must be raised in a timely pre or
    post-trial motion). Additionally, Smith failed to raise a weight of the evidence
    claim in his Pa.R.A.P. 1925(b) statement. Claims not raised in a defendant’s
    Pa.R.A.P. 1925(b) statement are waived. See Commonwealth v. Smith,
    146 A.3d. 257, 262 (Pa. Super. 2016) (issues not included in 1925(b)
    statement are waived). This provides another basis for our finding of waiver.
    Although Smith is not entitled to relief on the sufficiency of the evidence
    claim he raised, Smith was found, sua sponte by the trial court,4 to be a
    sexually    violent   predator     (SVP)       under   a   constitutionally   infirm   law.
    Commonwealth v. Muniz, 
    164 A.3d 1189
    (Pa. 2017) (Sex Offender
    Registration and Notification Act (SORNA) is punitive in nature) and
    Commonwealth v. 
    Butler, supra
    , combined to make 42 Pa.C.S. §
    9799.24(e)(1) unconstitutional.         Accordingly, any SVP determination made
    under that law must be vacated. Along with the SVP determination, Smith
    was ordered to attend monthly counseling sessions for the rest of his life.
    ____________________________________________
    4 At the sentencing hearing, the Commonwealth informed the trial court it
    would not be proceeding with the SVP determination because of the
    moratorium due to the uncertainty of the constitutionality of the law. See
    N.T. Sentencing Hearing, 1/3/2018, at 2. Nonetheless, the trial court, without
    hearing any evidence on the matter, determined D.B.S to be a sexually violent
    predator. 
    Id. at 5.
    -4-
    J-S50026-18
    Because this aspect of his sentence is based exclusively on his SVP status, it
    too must be vacated.
    We recognize that the legislature has enacted 42 Pa.C.S. § 9799.51 et
    seq. (Subchapter I), to replace the constitutionally infirm sections of
    Subchapter H of Title 42.         Accordingly, we remand this matter for
    determination of the applicability of Subchapter I to this matter.
    Judgment of sentence affirmed in part, vacated regarding Smith’s SVP
    status and attendant conditions. This matter is remanded for action consistent
    with this decision. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/9/2018
    -5-
    

Document Info

Docket Number: 171 WDA 2018

Filed Date: 11/9/2018

Precedential Status: Precedential

Modified Date: 11/9/2018