Com. v. Weaver, D.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee :

:

v. :

:

DAVID JONATHAN WEAVER, :

:

Appellant : No. 489 MDA 2012

Appeal from the Judgment of Sentence Entered December 19, 2011, In the Court of Common Pleas of Lancaster County, Criminal Division, at Nos. CP-36-CR-0000183-2011 and CP-36-CR-0000184-2011.

BEFORE: SHOGAN, LAZARUS and OTT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 23, 2014

Appellant, David Jonathan Weaver, appeals from the judgment of

sentence entered following his conviction of numerous counts of rape and

indecent sexual assault. This case returns to this Court on remand from our

Supreme Court for further consideration in light of its opinion in

Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013).1 Upon review, we

remand to the trial court for resentencing.

The trial court summarized the history of this case as follows:

1 In Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), our Supreme

because the enacting legislation violated the Single Subject Rule. Id. at 605, 616.

The charges in this matter stemmed from nine years of [Appellant] sexually violating his minor stepdaughter, K.H. [Appellant] began his course of inappropriately touching K.H. when she was nine years old. At that time, [Appellant] had been

two years. [Appellant] and nine-year-old K.H. were in

Over time, the contacts escalated to vaginal and anal penetration. The conduct continued for the following nine years until K.H. left for college.

The year prior to K.H. leaving for college, [Appellant] went on a hunting trip with his friend, Tim Heller. [Appellant] discussed his inappropriate sexual acts on K.H. with Mr. Heller. Sometime thereafter, Mr. Heller disclosed this information with a police officer, who was also his brother-in-law. His brother-inlaw relayed the information to the Lancaster Bureau of Police and an investigation into the matter began.

In the fall of 2010, K.H. was unaware of the investigation and proceeded to college. When she came home for Thanksgiving break, Detective Harnish reached K.H. by phone. She agreed to meet him at the police station. During the interview, K.H. discussed what [Appellant] did to her, but she did not go into detail. She did not wish to press charges at that time. Thereafter, K.H. went back to college until Christmas break. When K.H. returned to Lancaster, she told her mother that [Appellant] raped her. On December 22, 2010, K.H. returned to the police station where she spoke to Detective Harnish and Officer Ramos. She provided more detail than she had during her earlier interview in November.

As part of her meeting, she consented to conducting wiretap telephone conversations with [Appellant]. K.H. made a series of three telephone conversations with [Appellant]. K.H. explained that she was in therapy at college and needed help remembering everything that happened to her. [Appellant] told K.H. that everything started when she was twelve. He expressed remorse and [attributed] his actions to weakness, but did not

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her several times to not talk to her mother and to make sure she saw a private counselor that would keep sessions confidential.

On December 22, 2010, [Appellant] was charged with indecent assault1 (five counts), indecent exposure,2 aggravated indecent assault,3 rape4 (two counts), statutory sexual assault,5 involuntary deviate sexual intercourse6 (five counts), sexual assault7 (three counts), criminal attempt at aggravated indecent assault,8 corruption of minors,9 and unlawful contact with a minor,10 all related to incidents with K.H. [Appellant] proceeded to trial on July 11, 2011. At trial, the Commonwealth presented Mr. Heller, who testified about his hunting trip with [Appellant] and the disclosures [Appellant] made during the trip. Then K.H. took the stand. She recounted numerous sexual assaults and inappropriate actions by [Appellant]. K.H. was able to recall different incidents of sexual contact with specificity. She explained that although many of the incidents blended together because of the numerous occurrences, she was able to remember certain encounters because they coincided with significant times in her life.

1

18 Pa.C.S.A. § 3126(a).

2

18 [Pa.C.S.A.] § 3127(a).

3

18 Pa.C.S.A. §3215(a)(7).

4

18 Pa.C.S.A. § 3121(a)(1).

5

18 Pa.C.S.A. §3122.1.

6

18 Pa.C.S.A. § 3123(a).

7

18 Pa.C.S.A. § 3124.1.

8

18 Pa.C.S.A. § 901(a).

9

18 [Pa.C.S.A.] § 6301 (a)(1).

10

18 Pa.C.S.A. § 6318(a)(1).

K.H. also authenticated her taped telephone conversations, which the Commonwealth then played for the jury. K.H.

when it was flaccid. Detective Harnish l description of the birthmark with photographs obtained pursuant to a warrant. Detective Harnish, the investigating officer in this

testimony. As a witness, he told the jury t testimony was consistent with what she told him during their December 2010 meeting at the police station.

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Prior to closing arguments, defense counsel made numerous motions for judgment of acquittal. Defense counsel argued, regarding various counts, that the testimony presented lacked specificity compared to the allegations in the Information. Three counts were ultimately dismissed. Regarding the criminal attempt at aggravated indecent assault count, the Commonwealth asserted that [Appellant] attempted to insert his fingers into the vagina of K.H. in August 2010. Defense counsel

The Court agreed and this count was dismissed.

Regarding two counts of indecent assault by forcible compulsion, defense counsel argued the elements as alleged were not made out by the evidence presented. The Commonwealth responded that the Information listed the correct statute and grading, but contained a technical defect in that the definitions were incorrect. The Commonwealth initially sought to

counts were dismissed by agreement of the parties. The remaining seventeen counts were renumbered, also by agreement of the parties.

Following deliberations, the jury found [Appellant] guilty on all but three counts, indecent assault without consent, indecent sexual assault by forcible compulsion, and rape by forcible compulsion. The Court ordered a presentence investigation and a sex offender assessment. The Pennsylvania

opinion that [Appellant] met the criteria for classification as a sexually violent predator ( December 19, 2011, [Appellant] proceeded to a hearing on his

assessment and a [pre]-sentence investigation, the Court deemed [Appellant] a sexually violent predator and sentenced him to an aggregate term of fourteen to thirty years of state imprisonment.

On December 29, 2011, [Appellant] filed a motion for post-sentence relief which was denied by Order of January 24,

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2012. [Appellant] filed the instant timely appeal on February 22, 2012.

Trial Court Opinion, 4/26/12, at 1-4.

On December 3, 2012, this Court affirmed in part and vacated in part

the judgment of sentence of the trial court in an unpublished memorandum

decision. Commonwealth v. Weaver, 489 MDA 2012, 64 A.3d 9 (Pa.

Super. filed December 3, 2012) (unpublished memorandum). Specifically,

concerning restitution and remanded for resentencing. However, this Court

Law III due to its passing through the General Assembly in violation of the

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except for the portion of the original sentence dealing with restitution.

Thereafter, on January 2, 2013, Appellant filed with our Supreme

Court a petition for allowance of appeal. On July 11, 2014, our Supreme

pertaining to the co

previous decision in this matter, and remanded to this Court for

reconsideration in light of Neiman. Commonwealth v. Weaver, 7 MAL

2 hall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill

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2013, ___ A.3d ___, (Pa. filed July 11, 2014).3 The Supreme Court denied

allocator

order granted allowance of appeal only for reconsideration of our decision in

Neiman, we confine our review to

that issue.

As Appe

3 The complete text of our Supreme C

AND NOW, this 11th day of July, 2014, the Petition for Allowance of Appeal is GRANTED, LIMITED to the following issue as stated by [Appellant]:

Whether, if Act 152 violates the single-subject rule of Article III, Section 3 of the Pennsylvania

severance of the remaining portions of Act 152 of 2004.

decision in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), to the extent th and the matter is REMANDED for reconsideration in light of Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013). Allocatur is DENIED as to all remaining issues.

Justice Stevens notes his dissent to the order, as he would

Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), which struck down Act 152, P.L. 1243 No. 152 (2004) as unconstitutional under the single subject rule of Article III, Section 3 of the Pennsylvania Constitution.

Supreme Court Order, 7 MAL 2013, 7/11/14, at 1.

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duly enacted legislation carries with it a strong presumption of

Commonwealth v. Turner, 80 A.3d 754, 759 (Pa. 2013)

not intend to violate the Constitution of the United States or of this

Commonwealth v.

Baker, 78 A.3d 1044, 1050 (Pa. 2013) (quoting 1 Pa.C.S. § 1922(3)).

In conducting our review, we are guided by the principle that acts passed by the General Assembly are strongly presumed to be constitutional, including the manner in which they were passed. Thus, a statute will not be found unconstitutional unless it clearly, palpably, and plainly violates the Constitution. If there is any doubt as to whether a challenger has met this high

constitutionality.

Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (quotation

marks and citations omitted). As the constitutionality of a statute presents a

pure question of law, our standard of review is de novo and our scope of

review is plenary.

In support of the issue currently before us on remand, Appellant notes

ant argues that

Article III, Section 3 of the Pennsylvania Constitution prohibits the General

Assembly from passing a law containing more than one subject - commonly

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law enacting

sexually violent predator must be vacated. Id. at 13.

As Appellant properly notes, this Court had occasion to consider the

restriction against the passage of bills containing more than one subject.

-13 (citing Commonwealth v. Neiman, 5 A.3d 353

(Pa. Super. 2010 (en banc)). This Court held in Neiman

III is constitutional on the basis that the other provisions were not germane

to the over-arching subject-

regulation of sexual predators. Neiman, 5 A.3d at 360.

In particular, we began our analysis in Neiman with a survey of case

law applying the single subject rule. Id. at 356-357. We then noted our

which fairly constitute parts of a scheme to accomplish a single

provisions which have no proper legislative relation to each other, and are not part of the same legislative scheme, may not be joined in the same act.

Id. at 357 (quoting Payne v. School District of Borough of

Coudersport, 31 A. 1072 (Pa. 1895)). Upon reviewing the legislative

92 pertained to the Deficiency Judgment Act. Id. at 358. Relying on our

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Pennsylvanians Against Gambling

Expansion Fund, Inc. et al. v. Commonwealth of Pennsylvania, et al.,

877 A.2d 383, 393 (Pa. 2005), the en banc Court in Neiman held that,

although the disparate provisions did not address the same subject, the

extraneous provisions could be severed from the centerpiece provisions

were held to be constitutional. Conversely, the extraneous provisions were

stricken as violative of Article III, Section 3 of the Pennsylvania Constitution.

Neiman, 5 A.3d at 359-360. Such was the state of the law at the time of

Consequently, we declined Appel

en banc holding in Neiman

en banc holding in Neiman, and we concluded

s issue was without merit. However, our Supreme Court accepted

allowance of appeal from our en banc decision in Neiman, determined that

Law III along with other provisions of Act 152, reversed the order in this

en banc ruling, and struck down, in its entirety, Act 152, which

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Pennsylvania Constitution. See Commonwealth v. Neiman, 84 A.3d 603

(Pa. 2013).

Neiman striking the

entirety of Act 152 as violative of the Pennsylvania Constitution, we are

determination as a sexually violent

Hence, we vacate the judgment of sentence of the trial court entered

Su

stands.

Judgment of sentence affirmed in part and vacated in part. Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/23/2014