Com. v. Maze, L. ( 2017 )

J-A21013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY MAZE,
Appellant No. 893 WDA 2016
Appeal from the Judgment of Sentence Entered May 3, 2016
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s):
CP-33-CR-0000266-2014
CP-33-CR-0000599-2014
CP-33-CR-0000600-2014
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 20, 2017
Appellant, Larry Maze, appeals from the aggregate judgment of
sentence of 86-270 years’ incarceration, imposed following his conviction for
numerous sexual offenses. After careful review, we determine that both of
Appellant’s claims have been waived. However, for the reasons stated infra,
we reverse the order of the trial court designating Appellant as a sexually
violent predator (SVP).
Given the nature of our disposition in this case, a detailed factual
summary is unnecessary. Briefly, Appellant was accused of numerous sex
crimes against three girls who were 12-13 years old at the time of
Appellant’s crimes. Appellant’s conduct included groping and similar forms
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of molestation, as well as solicitation over social media for sexual contact
with one of the minors.
For these acts, the Commonwealth charged Appellant in the three
above-captioned case numbers, one for each of the victims. At CP-33-CR-
0000266-2014 (266), the Commonwealth charged Appellant with fifteen
counts, including twelve counts of criminal solicitation of Chapter 31
offenses,1 18 Pa.C.S. § 902(a); as well as single counts of corruption of
minors, 18 Pa.C.S. § 6301(a)(1)(ii); unlawful contact with a minor, 18
Pa.C.S. § 6318(a)(1); and indecent assault, 18 Pa.C.S. § 3126(a)(7). At CP-
33-CR-0000599-2014 (599), the Commonwealth charged Appellant with
corruption of minors, unlawful contact with a minor, and three counts of
indecent assault (pursuant to subsection (a)(8)). At CP-33-C-0000600-2014
(600), the Commonwealth charged Appellant with corruption of minors,
unlawful contact with a minor, and six counts of indecent assault (pursuant
to subsection (a)(7)).
Cases 266, 599, and 600 were consolidated for a single jury trial,
which began on June 15, 2015. On June 16, 2015, the jury returned a
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1 Chapter 31 of Title 18 of the Crimes Code governs sexual offenses. The
crimes which were the target of these solicitation offenses are: rape of a
child, 18 Pa.C.S. § 3121(c); statutory sexual assault, 18 Pa.C.S. § 3122.1;
involuntary deviate sexual intercourse (two counts), 18 Pa.C.S. § 3123;
unlawful contact with a minor (3 counts), 18 Pa.C.S. § 6318; corruption of
minors (3 counts), 18 Pa.C.S. § 6301; and indecent assault (2 counts), 18
Pa.C.S. § 3126.
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verdict of guilty on all counts. A bifurcated SVP hearing occurred on
December 11, 2015, and May 3, 2016, following which the trial court
determined that Appellant is an SVP. Appellant was also sentenced on May
3, 2016, to an aggregate term of 86-270 years’ incarceration. Appellant
filed a timely post-sentence motion on May 13, 2016, which was denied by
the trial court on May 17, 2016. Appellant filed a timely notice of appeal,
and a timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial court
issued its Rule 1925(a) opinion on January 25, 2017.
Appellant now presents the following questions for our review:
I. Should the Commonwealth have been permitted to
perform a time-consuming skit during its case in chief,
which was a re-enactment of a transcript of an alleged
Facebook conversation between Appellant and one of the
alleged victims[,] and done to get an emotional response
[from] the jury, when it was the only supporting evidence
that a crime occurred and its probative value was
outweighed by a danger of unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time,
and/or needlessly presenting cumulative evidence?
II. Should the case be remanded for resentencing in light of
the fact that the sentence, the legal equivalent to a
sentence of life without parole, is excessive considering
that Appellant, who had a clean criminal record for 19
years prior to the underlying offenses and never a prior
sex offense in his life, was found guilty of offenses which
involved no penetration of any kind and little actual
physical contact with any of the victims?
Appellant’s Brief at 5.
Appellant’s first claim is a challenge to the trial court’s discretion as to
the presentation of evidence, with regard to the manner by which
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Appellant’s inculpatory Facebook conversation with one of the victims was
presented to the jury. Appellant argues that the prejudicial effect of the
manner of presentation of this evidence outweighed its probative value. The
trial court explains:
[Appellant] faults the court for "allowing the
Commonwealth to perform a very time[-]consuming skit" to
relay to the jury conversations he had with his oldest victim,
B.P., on Facebook. The way it actually happened, though, was
far different than the way he characterizes it[,] and was no more
prejudicial than the alternative of having the jurors read the
messages silently to themselves.
By the time Chief Troy Bell testified, the jury had already
heard from B.P. that she and [Appellant] had messaged one
another privately on Facebook, that he sometimes asked her
inappropriate questions through that venue, and that the
messages in the Commonwealth's possession were accurate
depictions of those conversations. When the district attorney
later sought to publish their content to the jury, he asked
permission to have Chief Bell read [Appellant]'s messages and
his secretary, Sarah Neal, read B.P.'s messages. [Appellant]
preferred that the jurors read the messages for themselves, but
the [c]ourt overruled the objection. Thereafter, Chief Bell and
Ms. Neal began reading the messages precisely as [Appellant]
and his victim had written them. Neither reader attempted to
dramatize the messages, and the district attorney only
interjected to ask Chief Bell whether some of them coincided
with other evidence the jury had already heard.
Trial Court Opinion, 1/25/17, at 1.
The Commonwealth argues that Appellant waived this claim by failing
to object with any degree of specificity at trial. We agree. As noted by the
trial court above, the substance of the evidence in question had already
been admitted into evidence without objection. While defense counsel did
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object to the manner of presentation, the grounds for his objection were
vague:
THE COURT: Mr. White [Appellant’s counsel], any objection to
that?
MR. WHITE: Other than that I think the jury can read it on their
own. It’s admitted into evidence. This would be for [effect],
Your Honor.
N.T., 6/15/15, at 190.2 Now, on appeal, Appellant claims that the manner of
presentation of this evidence presented a “danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence” under Pa.R.E. 403. Appellant’s
Brief at 10.
Pa.R.E. 103(a) states, in pertinent part, as follows:
(a) Preserving a Claim of Error. A party may claim error in a
ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or
motion in limine; and
(B) states the specific ground, unless it was
apparent from the context;
Pa.R.E. 103(a) (emphasis added).
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2 The transcript indicates that the bracketed phrase actually read, “a fact.”
Id. We afford counsel the benefit of the doubt and assume he meant or
actually said “for effect” for the purposes of our analysis, even though he
makes no attempt in Appellant’s brief to correct the record.
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Here, trial counsel clearly did not state the specific ground for his
objection, especially in light of the claim(s) he now makes on appeal.
Accordingly, we deem Appellant’s first issue waived on that basis. See King
v. Pulaski, 710 A.2d 1200, 1202–03 (Pa. Super. 1998) (“It is well-settled
that, in order for a claim of error to be preserved for appellate review, a
party must make a timely and specific objection before the trial court at the
appropriate stage of the proceedings.”) (emphasis added).
Alternatively, we would also deem Appellant’s issue waived by
appellate counsel due to the failure to adequately develop this claim in the
argument portion of Appellant’s brief. See Commonwealth v. Rodgers,
605 A.2d 1228, 1239 (Pa. Super. 1992) (“We must deem an issue [waived]
where it has been identified on appeal but not properly developed in the
appellant's brief.”). Other than Appellant’s brief mention of Pa.R.E. 403, he
provides virtually no analysis of this claim in the single page of argument
provided. Appellant’s counsel writes that the manner of presentation of the
Facebook evidence created a “danger of unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence[,]” which is a direct quotation from Pa.R.E.
403, but then he provides no analysis, much less citation to relevant case
law, to demonstrate or explain how those Rule 403 factors applied to the
presentation of the evidence in question. Accordingly, if this matter had not
already been waived in the first instance, we would also find that it has been
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waived by counsel’s failure to adequately develop the claim in Appellant’s
brief.
Next, Appellant challenges the imposed sentence as being unduly
excessive.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)
(citation omitted).
However,
[c]hallenges to the discretionary aspects of sentencing do
not entitle an appellant to review as of right. Commonwealth
v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
(internal citations omitted). Objections to the discretionary
aspects of a sentence are generally waived if they are not raised
at the sentencing hearing or in a motion to modify the sentence
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imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
A substantial question exists “only when the appellant advances
a colorable argument that the sentencing judge's actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Sierra, supra at 912-
13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). An appellant must articulate the reasons the sentencing
court's actions violated the sentencing code. Id.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Instantly, although appellate counsel provides what appears to be a
Rule 2119(f) statement in Appellant’s brief, that statement is virtually the
same one-half page argument set forth later in the Argument section of
Appellant’s brief, in which he baldy asserts that the imposed sentence was
“the legal equivalent of [l]ife without [p]arole.” Appellant’s Brief at 9. There
is no effort made therein to “advance[] a colorable argument that the
sentencing judge's actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Moury, supra (quoting Sierra).
Indeed, there is no citation to any pertinent authorities whatsoever, nor any
relevant legal analysis, in either the Rule 2119(f) statement or in the
Argument portion of Appellant’s brief as it pertains to Appellant’s sentencing
issue.
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It is well settled that “[w]hen a challenge to the discretionary
aspect of a sentence is raised, an appellant must provide a
separate statement specifying where the sentence falls in the
sentencing guidelines, what provision of the sentencing code has
been violated, what fundamental norm the sentence violates,
and the manner in which it violates the norm. Pa.R.A.P.
2119(f).”
Commonwealth v. Sarapa, 13 A.3d 961, 962 (Pa. Super. 2011) (quoting
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)).
Appellate counsel’s efforts were so inadequate that he even failed to
mention, anywhere in Appellant’s brief, what Appellant’s aggregate sentence
and individual sentences are, let alone where those sentences fall within the
guidelines, what provision of the sentencing code was violated by the
imposition of sentence, or the manner in which fundamental norms of
sentencing were violated. Consequently, we deem Appellant’s sentencing
issue waived, due to the inadequacy of Appellant’s Rule 2119(f) statement,
and because the Argument portion of his brief was inadequately developed
to permit meaningful review of his sentencing claim. Thus, we have
determined that all of the claims presented in Appellant’s brief have been
waived.3
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3 We note that Appellant, writing to this Court pro se on August 1, 2017,
recognized many of these defects in his brief, complained that appellate
counsel was appointed against his wishes, and sought relief from this Court
for those reasons. Appellant’s only remedy, however, is to file a petition
pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., and
seek reinstatement of his appellate and post-sentence motion rights by
alleging appellate counsel’s ineffectiveness.
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However, we are compelled to sua sponte vacate an illegal aspect of
Appellant’s sentence, namely, the portion of the sentencing order deeming
him an SVP. See Commonwealth v. Butler, No. 1225 WDA 2016, *6 (Pa.
Super. filed Oct. 31, 2017) (concluding that the issue discussed, infra,
implicates the legality of a defendant’s sentence). In Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme Court held that the
registration requirements under SORNA4 constitute criminal punishment,
thus overturning prior decisions deeming those registration requirements
civil in nature. Id. at 1218. On October 31, 2017, this Court ruled that,
since our Supreme Court has held [in Muniz] that SORNA
registration requirements are punitive or a criminal penalty to
which individuals are exposed, then under Apprendi [v. New
Jersey, 530 U.S. 466 (2000),] and Alleyne [v. United States,
133 S. Ct. 2151, 2163 (2013)], a factual finding, such as whether
a defendant has a “mental abnormality or personality disorder
that makes [him or her] likely to engage in predatory sexually
violent offenses[,]” 42 Pa.C.S.[] § 9799.12, that increases the
length of registration must be found beyond a reasonable doubt
by the chosen fact-finder. Section 9799.24(e)(3) identifies the
trial court as the finder of fact in all instances and specifies clear
and convincing evidence as the burden of proof required to
designate a convicted defendant as an SVP. Such a statutory
scheme in the criminal context cannot withstand constitutional
scrutiny.
Butler, No. 1225 WDA 2016, at *11. Accordingly, the Butler panel held
that 42 Pa.C.S. § 9799.24(e)(3) is unconstitutional. Id. at *11-12.
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4 Pennsylvania's Sex Offender Registration and Notification Act.
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In light of Butler, we are compelled to conclude that the portion of
Appellant’s sentencing order deeming him an SVP is illegal. See id. at *12.
Accordingly, we vacate only that aspect of Appellant’s judgment of sentence,
and remand his case for the trial court to determine under what tier of
SORNA Appellant must register, and to provide him with the appropriate
notice of his registration obligations under 42 Pa.C.S. § 9799.23. See id. at
*13.
SVP Order reversed. Judgment of sentence affirmed in all other
respects. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2017
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