Com. v. Thomas, T.

Superior Court of Pennsylvania

Com. v. Thomas, T.

DecidedJune 17, 2019

Docket2640 EDA 2017

StatusUnpublished

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Com. v. Thomas, T., (Pa. Ct. App. 2019).

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Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 J-S75003-18

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-

-3- J-S75003-18

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

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