J-A30014-12
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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-in-
law 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
2
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
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