Commonwealth v. Weimer

J-S35006-17

2017 PA Super 212

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

PAUL DAVID WEIMER

Appellant No. 1042 WDA 2016

Appeal from the PCRA Order July 12, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011522-2010,
CP-02-CR-0011523-2010, CP-02-CR-0011535-2010

BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

OPINION BY LAZARUS, J.: FILED JULY 7, 2017

Paul David Weimer appeals from the trial court’s order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. In 2011, Weimer was found guilty by a jury of 21 criminal

counts relating to his sexual abuse of three adolescent boys, R.Z., M.G., and

J.D. After careful review, we reverse the PCRA order, vacate the judgments

of sentence for all three victims,1 and remand for resentencing.

A prior panel of this Court aptly set forth the procedural history of this

case as follows:

____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
See No. CC 201022522 (R.Z.); No. CC201011523 (M.G.); and No. CC
201011535 (J.D.).
J-S35006-17

[Weimer, who was forty years old,] was arrested on [August 5,
2010] and eventually charged, regarding [victim, J.D.] at 11535-
2010, with involuntary deviate sexual intercourse (“IDSI”),
unlawful contact with the minor, statutory sexual assault,
indecent assault, furnishing liquor to minors, and two counts of
corruption of minors; he was charged regarding [victim, J.C.] at
11524-2010, with unlawful contact with a minor, corruption of
minors and open lewdness; regarding [victim, R.Z.], he was
charged at 11522-2010 with two counts of rape, IDSI, unlawful
contact with a minor, two counts of statutory sexual assault,
endangering the welfare of children, corruption of minors, and
furnishing liquor to minors; [and] regarding [victim, M.G.], he
was charged at 11523-2010 with IDSI, indecent assault,
endangering the welfare of children, and corruption of minors.

[* * *].

At the conclusion of the jury trial, [Weimer] was acquitted of all
charges regarding [J.C.]; regarding [J.D.], he was convicted of
furnishing liquor to minors, unlawful contact with a minor and
two counts of corruption of minors, and acquitted of IDSI,
statutory sexual assault and indecent assault; regarding [R.Z.],
he was convicted of IDSI, unlawful contact with a minor, two
counts of statutory sexual assault, endangering the welfare of
children, corruption of minors, furnishing alcohol to minors, and
acquitted of two counts of rape; regarding [M.G.], he was
convicted of IDSI, indecent assault, endangering the welfare of
children, and corruption of minors.

Commonwealth v. Weimer, 133 WDA 2012 (Pa. Super. unpublished

memorandum filed 8/1/13).

The Commonwealth gave notice of its intent to seek imposition of the

10-year mandatory minimum sentence for the IDSI convictions, pursuant to

42 Pa.C.S. § 9718(a). Prior to sentencing, the court held a hearing where it

determined that Weimer met the criteria to be classified as a Sexually

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Violent Predator (SVP) under this Commonwealth’s version of Megan’s Law.2

On March 13, 2012, Weimer was sentenced to an aggregate term of

imprisonment of 25-50 years. Specifically, the court sentenced Weimer to:

consecutive sentences of 10-20 years of incarceration on each count of IDSI

with regard to R.Z. and M.G., and a consecutive term of 5-10 years of

incarceration for unlawful contact with a minor with regard to J.D. 3 Weimer

filed post-trial motions that were denied on August 2, 2012, save for the

court granting Weimer two days of credit. Weimer filed a timely direct

appeal; our Court affirmed his judgment of sentence on August 1, 2013. On

November 27, 2013, the Pennsylvania Supreme Court denied Weimer’s

petition for allowance of appeal.

On April 7, 2014, Weimer filed a pro se PCRA petition. On April 14,

2014, the court appointed PCRA Counsel, Thomas Farrell, Esquire. On May

28, 2014, the court granted counsel’s petition to appoint an investigator. On

February 25, 2015, the trial court gave Weimer Pa.R.Crim.P. 907 notice of

its intent to dismiss the petition without a hearing. On June 16, 2015,

____________________________________________

2
See 42 Pa.C.S.A. §§ 9791-9799.9. On December 20, 2011, the
legislature enacted the Sex Offender Registration and Notification Act
(SORNA), effective in one year, or December 20, 2012. Thus, at the time
Weimer was sentenced, SORNA was not yet in effect. However, under
SORNA he is now classified as a Tier III offender who will be a lifetime
registrant. See 42 Pa.C.S.A. §§ 9799.14(d)(4), 9799.15(a)(3).
3
No further penalty was imposed on the remaining charges for which
Weimer was convicted.

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Attorney Farrell filed an amended PCRA petition on behalf of Weimer. On

July 12, 2016, the court dismissed Weimer’s petition. This timely collateral

appeal follows. On appeal, Weimer presents the following issues for our

consideration:

(1) Whether trial counsel gave ineffective assistance for failing
to file a motion to withdraw, when there was a conflict of
interest?

(2) Whether trial counsel gave ineffective assistance for failing
to suppress evidence under the Fourth Amendment and
Article I, Section 8[,] of the Pennsylvania Constitution?

(3) Whether trial counsel gave ineffective assistance for failing
to object to the trial court’s instruction that the
Commonwealth did not have to prove beyond a reasonable
doubt the date of the crime when the date of the crime
was significant as to the age of the victim?

(4) Whether the trial court imposed an illegal sentence for the
charges of involuntary deviate sexual intercourse when the
trial court imposed mandatory sentences of ten to twenty
years pursuant to 42 Pa.C.S. § 9718, which has been held
to be facially unconstitutional?

(5) Whether the trial court imposed an illegal sentence of five
to ten years of incarceration for unlawful contact with a
minor?

(6) Whether the notice of intent to dismiss that was issued by
the PCRA Court violated Rule 907(1) of the Pennsylvania
Rules of Criminal Procedure?

The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is

free of legal error. The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record. Commonwealth

v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

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J-S35006-17

We rely upon the opinion, authored by the Honorable Donna Jo

McDaniel, to affirm issues one through three on appeal. First, Weimer has

failed to show how either Attorney Collins or Attorney Allman “actively

represented conflicting interests.” Cuyler v. Sullivan, 446 U.S. 335

(1980). Moreover, to the extent that Weimer alleges Attorney Collins was

ineffective in failing to file a motion to withdraw, we note that Weimer

suffered no prejudice from this alleged misstep, where the trial court

specifically concluded that it would not have granted such motion and where

Attorney Allman adequately represented Weimer at trial. Second, Weimer

cannot demonstrate that he was prejudiced by counsel’s failure to seek to

suppress a printout of an email exchange between himself and victim, J.C.,

which was introduced on J.C.’s redirect examination. The defense had, in

fact, introduced the contents of that same email exchange, including a

picture of a man later identified as J.C.’s friend, during cross-examination

and also had it entered as a defense exhibit at trial. Third, the trial court did

not need to charge the jury that it was required to determine, beyond a

reasonable doubt, the exact date that the incidents occurred where the jury

was instructed that, for purposes of the charged offenses, it did need to find

that victims were under the age of sixteen when considering the IDSI

offenses.

In his fourth issue on appeal, Weimer contends that his mandatory

minimum sentences, imposed pursuant to 42 Pa.C.S. § 9718(a), are illegal

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“where the mandatory sentencing structure [of section 9718] is facially

unconstitutional.” Appellant’s Brief, at 46.

Our Supreme Court has held section 9718 “irremediably

unconstitutional on its face, non-severable, and void” under the principles

espoused in Alleyne.4 See Commonwealth v. Wolfe, 140 A.3d 651, 663

(Pa. 2016).5 Moreover, because Weimer’s judgment of sentence became

final after Alleyne was decided, he is entitled to relief on his timely filed

PCRA petition. See Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa.

Super. 2015) (defendant can raise Alleyne challenge in timely PCRA petition

so long as judgment of sentence not yet final when Alleyne decided on June

17, 2013); but see Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016) (Supreme Court has also held that Alleyne does not apply

retroactively to cases pending on collateral review where judgment of

sentence became final before Alleyne decided).6 Accordingly, the
____________________________________________

4
Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a reasonable doubt.”).
5
We note that the trial court incorrectly cites to Commonwealth v.
Matteson, 96 A.3d 1064 (Pa. Super. 2014), to conclude that section 9718
does not violate Alleyne principles. In Wolfe, supra, our Supreme Court
held that “[Commonwealth v.] Newman abrogated this Court’s decision in
Matteson” and that a sentence applying section 9718 is illegal. Id. 140
A.3d at 806.
6
Although we recognize the apparent viability of Commonwealth v. Ruiz,
131 A.3d 54 (Pa. Super. 2015), which held that a defendant could succeed
on an Alleyne challenge in a timely PCRA petition if the defendant’s
(Footnote Continued Next Page)

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J-S35006-17

judgments of sentence as to offenses committed against R.Z. and M.G. (CC

201011522 and CC 201011523, respectively) must be vacated and

remanded to the trial court for resentencing without application of the

mandatory minimum sentence under section 9718.

In his next issue, Weimer contends that the trial court imposed an

illegal sentence of 5-10 years of imprisonment on the unlawful contact with

a minor conviction with regard to victim J.D. Specifically, Weimer argues

that because the jury was never instructed as to what crime(s) Weimer

committed for purposes of engaging in the unlawful conduct under section

6318, the lowest graded offense of which he was acquitted (indecent assault

(M-2)) must be assumed and the grading of the offense under section

6318(b)(2) should be no more than a third-degree felony.7

Unlawful contact with a minor is defined as:

(a) Offense defined. — A person commits an offense if he is
intentionally in contact with a minor, or a law enforcement
officer acting in the performance of his duties who has assumed
_______________________
(Footnote Continued)

judgment of sentence was not final at the time Alleyne was decided, the
viability of that decision is currently under review. See Commonwealth v.
Dimatteo, 2017 Pa. LEXIS 378 (filed 2/15/17) (granting petition for
allowance of appeal, in case applying Ruiz, and denoting issue as whether
decision conflicts with Washington and whether the panel “ordered
inappropriate relief, in that, the panel vacated that portion of the plea
defendant challenged and remanded for resentencing” and noted that
“defendant . . . is not [entitled to relief].”).
7
We note that the proper grading of an offense is a challenge to the legality
of a sentence. Commonwealth v. Tustin, 888 A.2d 843 (Pa. Super.
2005).

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J-S35006-17

the identity of a minor, for the purpose of engaging in an activity
prohibited under any of the following, and either the person
initiating the contact or the person being contacted is within this
Commonwealth:

(1) Any of the offenses enumerated in Chapter 31
(relating to sexual offenses).

(2) Open lewdness as defined in section 5901 (relating to
open lewdness).

(3) Prostitution as defined in section 5902 (relating to
prostitution and related offenses).

(4) Obscene and other sexual materials and performances
as defined in section 5903 (relating to obscene and other
sexual materials and performances).

(5) Sexual abuse of children as defined in section 6312
(relating to sexual abuse of children).

(6) Sexual exploitation of children as defined in section
6320 (relating to sexual exploitation of children).

18 Pa.C.S. § 6318(a). See Commonwealth v. Felder, 75 A.3d 513, 517

(Pa. Super. 2013) (subsection 6318(a) sets forth specific crimes that may

constitute forms of unlawful contact). A section 6318 offense is graded as

follows:

(b) Grading. — A violation of subsection (a) is:

(1) an offense of the same grade and degree as the most
serious underlying offense in subsection (a) for which the
defendant contacted the minor; or

(2) a felony of the third degree; whichever is greater.

18 Pa.C.S. § 6318(b).

In order to be convicted under section 6318, a defendant does not

have to be convicted of the underlying offense for which he contacted the

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minor. Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010). In other words,

the offenses designated in sections 6318(a)(1)-(6) are not predicate

offenses for the offense of unlawful contact with a minor. Id. Rather, a

defendant is guilty under section 6318 if he or she contacts the minor for the

purpose of engaging in the prohibited behaviors criminalized in Chapter 31

and 18 Pa.C.S §§ 5901, 5902, 5903, 6312, and 6320 of the Crimes Code.

In fact, the Commonwealth need not even separately charge a defendant

with an underlying offense set forth in sections 6318(a)(1)-(6). However, if

the Commonwealth does charge a defendant with an offense under sections

6318(a)(1)-(6), an acquittal is relevant for purposes of grading the section

6318 offense at sentencing under subsection 6318(b). Id.

Instantly, the trial court charged the jury, regarding the unlawful

contact conviction as follows:

The defendant is charged with three counts of unlawful contact
with a minor. The alleged victims are [J.C.], [J.D.] and [R.Z.].
In order to find the defendant guilty of this offense, you must
find that each of the following elements has been proven beyond
a reasonable doubt. First, that the defendant was intentionally in
contact with a minor. Second, that the contact was for the
purposes of engaging in an unlawful act; that is, the
crimes listed in the information. And, third, that either the
defendant or the person being contacted is within this
Commonwealth.

Contact is any direct or indirect communication by any means. A
minor is an individual under the age of 18.

N.T. Jury Trial, 8/18/11, at 721-22 (emphasis added). See

Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010) (tying grading of section

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6318 conviction to how Commonwealth charges and presents its case to

jury).

Here, the bill of information,8 which is relevant to how the jury was to

determine Weimer’s guilt regarding the crime of unlawful contact, states:

The District Attorney of ALLEGHENY County, by this information
charges that on (or about) Wednesday, the 1st day of March,
2006, through on (or about) Tuesday, the 17th day of August,
2010 in the said County of ALLEGHENY, PAUL DAVID WEIMER
hereinafter called actor, did commit the crime or crimes
indicated herein, that is

Count 2 UNLAWFUL CONTACT WITH MINOR Felony 2

The actor intentionally contacted a minor namely, John
Doe, age 14 for the purpose of arranging actual or
simulated sexual activity or nudity for the purpose of
sexual stimulation or gratification of another person
as defined in section 6320[9] namely, Involuntary

____________________________________________

8
Notably, in the criminal complaint, the Commonwealth charged Weimer
with unlawful contact with a minor under a different subsection, as follows:

18 [Pa.C.S. §] 6318[(a)(1)] UNLAWFUL CONTACT WITH MINOR -
FELONY 1 OFFENSE ENUMERATED IN CHAPTER 31 Fl 1 COUNT

The actor intentionally contacted a minor namely, A
KNOWN 14 YEAR-OLD MALE for the purpose of engaging in
the activity of INVOLUNTARY DEVIATE SEXUAL
INTERCOURSE in violation of 18 [§]Pa.C.S. §6318(a)(1).
9
Section 6320 delineates the crime of “sexual exploitation of children,” not
involuntary deviate sexual intercourse, which is found at 18 Pa.C.S. §
3123(a)(1). Sexual exploitation of children is defined as:

(a) Offense defined. — A person commits the offense of
sexual exploitation of children if he procures for another person
(Footnote Continued Next Page)

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J-S35006-17

Deviate Sexual Intercourse, in violation of Section
6318(a)(6) of the Pennsylvania Crimes Code, Act of
December 6, 1972, 18 Pa.C.S. §6318 (a)(6), as
amended[.]

Criminal Information, 10/14/10, at 1 (emphasis added).

In Commonwealth v. Aikens, 139 A.3d 244 (Pa. Super. 2016),10 our

Court recently addressed a similar grading issue with regard to the

defendant’s unlawful contact with a minor conviction under section

6318(a)(1). In Aikens, the Commonwealth filed its information charging

the defendant with: unlawful contact with a minor, corruption of minors,

IDSI, statutory sexual assault, and indecent exposure. The defendant was

found guilty of the unlawful contact and corruption charges; the jury

acquitted him of IDSI and the remaining charges were nolle prossed. The

_______________________
(Footnote Continued)

a child under 18 years of age for the purpose of sexual
exploitation.

(b) Penalty. — An offense under this section is a felony of the
second degree.

(c) Definitions. — As used in this section, the following words
and phrases shall have the meanings given to them in this
subsection:

“Procure.” —To obtain or make available for sexual exploitation.

“Sexual exploitation.” —Actual or simulated sexual activity or nudity
arranged for the purpose of sexual stimulation or gratification of any person.
10
We note that the Pennsylvania Supreme Court recently granted allowance
of appeal in Aikens limited to the issue of whether “the court illegally
sentence[d] Aikens on unlawful contact with a minor graded as an F-1 when
it should have been graded as an F-3”? See Commonwealth v. Aikens,
268 EAL 2016 (Pa. filed 11/2/16).

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J-S35006-17

trial court graded the defendant’s section 6318 conviction as a first-degree

felony, based on its charge to the jury, which stated:

[Defendant] has been charged with unlawful contact with a
minor. To find [Defendant] guilty of this offense, you must find
that each of the following elements has been proven beyond a
reasonable doubt: First, that [Defendant] was intentionally in
contact for the purpose of engaging in an unlawful act – and in
this case, that unlawful act is alleged to be [IDSI], the
crime that we just discussed, that I just defined for you[.]

Id. at 247-48 (emphasis in original). The Court concluded that because the

trial court’s charge made it clear to the jury that the defendant was only

accused of contacting the minor for one specific offense, IDSI, when the jury

returned a verdict of guilt under section 6318, “it must have concluded, as a

matter of fact, that [Defendant] contacted the victim for the purpose of

engaging in IDSI.” Id. at 248. Accordingly, the Court affirmed the grading

of the section 6318 offense as a first-degree felony where “the jury did find

that a first-degree felony was the ‘most serious underlying offense . . . for

which the defendant contacted the minor.’” Id.

Unlike the case in Aikens, here the trial court did not charge the jury

with regard to the specific offense for which Weimer was accused of

contacting the victim for purposes of section 6318. Therefore, we do not

know the “most serious underlying offense . . . for which Weimer contacted

the minor” for purposes of grading the offense under section 6318(b). See

Felder, supra at 517 (“language of section 6318 expressly requires a

factual determination of the crime ‘for which the defendant contacted the

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J-S35006-17

minor’ in order to determine proper grading.”). Because of this, the trial

court would have had to have guessed what crime Weimer sought to commit

when he contacted the minor. This is neither permitted nor intended under

the statute. Reed, supra; Aikens, supra.

Based on these facts, we conclude that the section 6318(b)(2) default

third-degree felony grading should have been applied where Weimer was

acquitted of all charged section 6318(a) offenses, Reed, supra, and where

the court’s charge to the jury did not make it clear for which section 6318(a)

offense Weimer was accused of contacting the minor. See Aikens, supra

at 644 (where sentencing court would have to guess at which offense

defendant sought to commit under section 6318, “[w]e cannot countenance

that result.”).11 Thus, the court’s 5-10 year sentence of imprisonment for

Weimer’s unlawful contact conviction with regard to victim J.D. is illegal

where a third-degree felony under section 6318(b)(2) carries a statutory

____________________________________________

11
Moreover, even if the jury had read the information for purposes of
determining what, if any, of the crimes listed in it may have constituted the
underlying offense for which Weimer contacted J.D., our decision about
grading the offense would not change. The discrepancies in the
Commonwealth’s bill of information create further confusion with regard to
exactly which subsection of section 6318, and its delineated crimes, the
Commonwealth intended to use as the “underlying offense.” While the
information states that Weimer contacted J.D. for “the purpose of arranging
actual or simulated sexual activity or nudity for the purpose of sexual
stimulation or gratification of another person as defined in section 6320,” the
information later states that the underlying offense is the crime of IDSI,
found at section 3123. See supra nn.9-10. These crimes not only have
differing elements, but are also graded differently.

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J-S35006-17

maximum sentence of seven years’ imprisonment. Accordingly, we vacate

the judgment of sentence as it relates to victim J.D. (CC 201011535) and

remand for resentencing.

In his final issue on appeal, Weimer contends that he is entitled to

relief due to the court’s defective Rule 907 notice of its intent to dismiss his

PCRA petition without a hearing. Specifically, Weimer asserts that because

the court’s notice failed to explain the reasons for the intended dismissal and

what defects, if any, were in his petition, he has effectively been denied his

right to file an amended petition to correct any defects under Pa.R.Crim.P.

905(a).

Weimer is correct in asserting that a Rule 907 pre-dismissal notice

affords a petitioner the opportunity to seek leave to amend his petition and

correct any material defects. Commonwealth v. Rykard, 55 A.3d 1177,

1189 (Pa. Super. 2012) (citing Commonwealth v. Williams, 782 A.2d 517,

526 (Pa. 2001)). The ultimate goal of this process is to permit merit review

by the PCRA court of potentially arguable claims. Id.

While the trial court’s Rule 907 notice did not specifically list the

court’s reasons for its intent to dismiss Weimer’s petition or any perceived

defects in Weimer’s petition, we recognize that the court had previously

granted counsel the opportunity to amend Weimer’s pro se petition and also

granted Weimer leave to submit pro se supplements to his petition.

Moreover, in the four and one-half months that elapsed between the Rule

907 notice and the order dismissing Weimer’s petition, the court accepted

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J-S35006-17

numerous filings submitted on Weimer’s behalf, including a supplemental

petition certifying witnesses, pro se and counseled responses and objections

to the Rule 907 notice, and a supplemental PCRA petition. The court

acknowledged that it considered “the responses filed to [its] notice of

intention to dismiss.” Order Dismissing Post Conviction Petition without a

Hearing, 7/12/16.12 Under these circumstances, we find no merit to this

issue on appeal. See Commonwealth v. Albrecht, 720 A.2d 693 (Pa.

1998) (under Pa.R.Crim.P. 1507(a), predecessor to Rule 907, Supreme

Court found no defect in notice of intent to dismiss PCRA petition without

hearing where petitioner could not demonstrate violation of rule because he

was afforded both further proceedings and opportunity to present arguments

in support of petition, which is all rule requires).

Order reversed. Judgments of sentence vacated. Case remanded for

resentencing consistent with this opinion. Jurisdiction relinquished. 13

____________________________________________

12
To the extent that Weimer filed pro se supplemental petitions in the court
below, we note that the record reflects that he was still represented by
Attorney Farrell. Although counsel filed a motion to withdraw, the trial court
never granted that motion. In fact, Attorney Farrell remains listed as
counsel on appeal. See Pa.R.Crim.P. 576(a)(4) (pro se filings of
represented litigants); Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993).
13
We instruct the parties to attach a copy of Judge McDaniel’s opinion in the
event of further proceedings in the matter.

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J-S35006-17

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2017

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 1-OPINION
Circulated 05/31/2017 03:59 PM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTHOF PENNSYLVANIA CRIMINAL DIVISION

CC Nos. 201011522, 201011523,
201011535.
vs.
SUPERIOR COURT
No. 1042 WDA 2016
PAUL WEIMER,
Defendant.

OPINION

Filed By:
Hon. Donna Jo McDaniel

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Michael Streily, DDA
Office of the District Attorney
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Pittsburgh, PA 15219

Dated: 10-13-2016
 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

V. CC: 201011522, 201011523, 201011535

PAUL WEIMER,

Defendant

OPINION

The Defendant has appealed from this Court's Order of July 12, 2016, which dismissed

his Amended Post Conviction Relief Act Petition without a hearing. However, a review of the

record reveals that the Defendant has failed to present any meritorious issues on appeal and,

therefore, this Court's Order should be affirmed.

The Defendant was charged with a total of 21 counts1 encompassing Rape,2 Involuntary

Deviate Sexual Intercourse,3 Statutory Sexual Assault,4 Unlawful Contact with a Minor, 5

Endangering the Welfare of a Child,6 False Imprisonment," Corruption of Minors8 and Selling or

I Due to the numerous charges, this Court has created a chart showing the charges, their disposition and resulting
sentence, which it has attached to this Opinion as Appendix I.

2 18 Pa.C.S.A. §3121(a)(1)
3 18 Pa.C.S.A. §3123(a)(7)
4 18 Pa.C.S.A. §3122.1
5 18 Pa.C.S.A. §6318(a)(6)

6 18 Pa.C.S.A. §4304
7 18 Pa.C.S.A. §2903(a)
8 18 Pa.C.S.A. §630 l(a)(l)
Furnishing Liquor to Minors9 in relation to various incidents with three young men who visited

and lived in his home. A jury trial was held before this Court in August, 2011. At the

conclusion of the Commonwealth's case, this Court granted the Defendant's Motion for

Judgment of Acquittal at the False Imprisonment charge and denied it at all other counts. The

jury returned a verdict of Not Guilty to the Rape charges at CC 20 l O 11522 and the IDSI,

Indecent Assault and Statutory Sexual Assault charges at CC 201011535 and guilty of all

remaining charges. The Defendant next appeared before this Court on March 13, 2012, when he

was found to be a Sexually Violent Predator and was sentenced to two (2) consecutive terms of

imprisonment of 10 to 20 years and one (1) consecutive term of imprisonment of five (5) to 10

years, for an aggregate sentence of 25-50 years. Post-Sentence Motions were granted as to the

sentencing credit issue and denied in all other respects. The judgment of sentence was affirmed

by the Superior Court on August 1. 2013 and the Defendant's subsequent Petition for Allowance

of Appeal was denied on November 27, 2013.

No further action was taken until April 7, 2014 when the Defendant filed a pro se Post

Conviction Relief Act Petition. Thomas Farrell, Esquire, was appointed to represent the

Defendant and an Amended PCRA Petition was filed on June 16, 2015. After reviewing the

Amended Petition and record and the Conunonwealth's response thereto, this Court gave notice

of its intent to dismiss the Petition on February 25, 2016. After again reviewing the record in

light of the Defendant's Response to the Notice of Intent, this Court dismissed the Amended

Petition without a hearing on July 12, 2016. This appeal followed.

9 I 8 Pa.C.S.A. §6310.1 (a)

2
 By way of a brief review, the evidence presented at trial established that when he was

between the ages of 13 and 15, Jason Diaz did odd jobs at the Defendant's house. At various

times when he was at the Defendant's house, Diaz testified that the Defendant gave him liquor

(Trial Transcript, p. 216, 229), touched his private parts (T.T .. p. 221), performed oral sex on him

(T.T., p. 216), performed anal sex on him (T. T., p. 218), forced Diaz to perform oral sex on the

Defendant (T. T., p. 226), induced Diaz and three other young teenage boys into having an oral

sex "foursome" while the Defendant watched (T.T., p. 220), and had Diaz watch while other of

the young teenagers performed oral sex on the Defendant (T.T., p. 222). Diaz also testified that

the Defendant induced him into inviting over another boy, Rick Zimmerman, in order for the

Defendant to have sex with him as well (T.T., p. 230)

On appeal, the Defendant raises nine (9)10 claims of error. This Court has combined

some issues and re-ordered them for ease of review. They are addressed as follows:

Initially, the Defendant raises a number of claims directed to the ineffective assistance of

counsel. In order to establish a claim for the ineffective assistance of counsel, "a PCRA

Petitioner must demonstrate, by a preponderance of the evidence, that: (1) the underlying claim

is of arguable merit; (2) no reasonable basis existed for counsel's action or inaction; and (3) there

is a reasonable probability that the result of the proceedings would have been different absent

such error." Commonwealth v. Gibson, l 9 A.3d 512, 525-26 (Pa. 2011 ). "The law presumes that

10
Reference is made to the oft-cited quote from Judge Aldisert: "With a decade and a half of federal appellate court
experience behind me, I can say that even when we reverse a trial court, it is rare that a brief successfully
demonstrates that the trial court committed more than one or two reversible errors ... When I read an appellant's brief
that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that this is
an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate
advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness." Aldisert, The Appellate Bar:
Professional Competence and Professional Responsibility - a View from the Jaundiced Eye of One Appellate Judge,
11 Cap.U.L.Rev. 445, 458 (1982).

3
counsel was not ineffective, and the appellant bears the burden of proving otherwise ... [I]f the

issue underlying the charge of ineffectiveness is not of arguable merit, counsel will not be

deemed ineffective for failing to pursue a meritless issue... Also, if the prejudice prong of the

ineffectiveness standard is not met, 'the claim may be dismissed on that basis alone and (there is

no] need [to] determine whether the [arguable merit] and [client's interests] prongs have been

rnet."" Commonwealth v. Khalil, 806 A.2d 415, 421-2 (Pa.Super. 2002). "With regard to the

reasonable basis prong, [the appellate court] will conclude that counsel's chosen strategy lacked

a reasonable basis only if the petitioner proves that the alternative strategy not elected offered a

potential for success substantially greater than the course acutely pursued." Commonwealth v.

Busanet, 54 A.3d 35. 46 (Pa. 2012).

1. Ineffective Assistance of Counsel - Motion to Withdraw

Initially, the Defendant argues that his first appointed attorney, Michelle Collins, Esquire,

was ineffective for failing to file a Motion to Withdraw from her representation. This claim is

meritless.

Attorney Michelle Collins of the Public Defender's Office was initially appointed to

represent the Defendant but prior to trial, the Defendant became dissatisfied with her personaJly

and sent her a letter demanding that she withdraw. Attorney Collins did not withdraw but instead

transferred the case to another Public Defender, Carrie Allman, Esquire. Attorney Allman

represented the Defendant through trial and. according to correspondence submitted by the

Defendant, he remained pleased with her services until he was convicted at which point he

became dissatisfied with her.

4
 It is well established that "the right to appointed counsel does not include the right to

counsel of the defendant's choice." Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998).

Additionally, the decision of "whether to grant a defendant's petition to replace court appointed

counsel is a decision which is left to the sound discretion of the trial court. As a general rule,

however, a defendant must show irreconcilable differences between himself and his court

appointed counsel before a trial court will be reversed for abuse of discretion in refusing to

appoint new counsel. Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa.Super. 2007), internal

citations omitted. Our courts have held that '"substantial reasons' or 'irreconcilable differences'

warranting appointment of new counsel are not established where the defendant merely aJleges a

strained relationship with counsel, where there is a difference of opinion in trial strategy, where

the defendant lacks confidence in counsel's ability, or where there is brevity of pretrial

communications. Id.

That the Defendant now seeks to raise an ineffectiveness claim against Attorney Collins

is somewhat confusing to this Court. The Defendant's own pleadings indicate that his conflict

with Attorney Collins was personal to her and not with the Public Defender's Office as a whole,

and that once Attorney Allman, also from the Public Defender's Office, took over the case, the

Defendant was satisfied with the transfer.

In order to sustain a claim for ineffective assistance, the Defendant would have to

establish that had Attorney Collins filed a formal Motion to Withdraw, rather than simply

transferring the case to another attorney. the result would have been different. The Defendant

fails to establish that this Court would have even granted the Motion to Withdraw, let alone the

remaining elements of his ineffectiveness claim. It is not this Court's practice to allow

5
defendants to serially request new attorneys for reasons of irreconcilable differences (which in

this case appeared to be the Defendant's personal conflict with Attorney Collins and not an error

or omission on her part) and this Court can say with certainty that had such a Motion been

presented, this Court would have denied it. Thus, Attorney Collins· actions in transferring the

case to Attorney Allman in her office actually resulted in the Defendant getting the relief he

wanted (a new attorney), which he would otherwise not have been able to do. For her part,

Attorney Allman performed ably and well at trial and the Defendant's rights and interests were

well-represented (and indeed, the Defendant was pleased with her services up until the guilty

verdict). Whatever the dispute between the Defendant and Attorney Collins, it did not impede

the Defendant's right to a fair trial and to effective counsel in Attorney Allman. This claim is

meritless.

2. Ineffective Assistance of Counsel - Motion to Suppress

Next, the Defendant argues that trial counsel was ineffective for failing to file a Motion to

Suppress an email between the Defendant and victim Jordan Campbell because it was not

included as a subject of the search warrant executed at the Defendant's home. Again, this claim

is meritless.

At trial, during the cross-examination of victim Jordan Campbell, Attorney Allman

questioned the witness regarding a document which included a photo of a man (later identified as

the witness' friend, Chuck) above an email from the Defendant to Campbell dated April 29,

2010. The email was printed in its entirety and was completely legible. That document was

marked as Defense Exhibit A and was later admitted. Then, on re-direct, the Commonwealth

6
marked and admitted a text-only copy of the same email (without the picture) as

Commonwealth's Exhibit 7:

Q. (Ms. Allman): Mr. Campbell, do you recognize the person in that picture
at all?

A. (Jordan Campbell): Yes.

Q. Who's that person?

A. This is my friend, Chuck.

Q. How old's Chuck?

A. Chuck is 32.

Q. Okay. So he's an adult male, as well?

A. Yes.

Q. Is he homosexual? Do you know?

A. He had expressed doubts about his sexuality.

Q. Did you have any relationship with Chuck of a sexual nature?

A. No.

Q. Not prior to Mr. Weimer?

A. No.

Q. Did you ever tell Mr. Weimer that you had a sexual relationship with
Chuck?

A. I told him that we had hung out, not that he had actually had any sort of
sexual relationship.

THE COURT: Can we mark that as Defense A, please, for purposes of the record.

MS. ALLMAN: Yes, Your Honor. I'll grab my stickers.

7
No further questions of this witness, Your Honor.

MR. SCHULTE: Just a very few questions.

REDIRECT EXAMINATION

Q. (Mr. Schulte): I'm going to show you a text of that email. Do you
remember getting that email?

A. (Jordan Campbell): I believe so, yes.

THE COURT: Can you tell me what exhibit we're on, please?

MR. SCHULTE: I'm going to mark - this will be Commonwealth's Exhibit 7.
skipped seven before.

THE COURT: Okay.

Q. And who was this email from?

A. This email is from Paul.

Q. Okay. And you understood it to be from PauJ?

A. Yes.

Q. Okay. And that's his email as you knew it?

A. Yes.

Q. And in the recipient spot there, that's your email, right?

A. Yes.

Q. And do you remember the context behind getting this email?

A. I don't really remember. I believe I had just woken up and discovered that
I had that email one morning.

Q. Do you remember if you responded to this?

A. I don't recall.

8
 Q. Okay.

MR. SCHULTE: Your Honor, I've marked this as Commonwealth's Exhibit 7,
and Pd move for its admission. And may I briefly publish it?

THE COURT: Yes. It will be admitted.

(Trial Transcript, p. 84-86).

The Defendant now argues that trial counsel was ineffective for failing to seek

suppression of the email as presented by the Commonwealth. However, this argument

completely disregards that the email was presented and marked as an exhibit by defense counsel

before the text-only copy was introduced by the Commonwealth. Because the Defendant

introduced the email himself before the Commonwealth did, he cannot claim that he was

prejudiced by the Commonwealth's later use of the same email.

Moreover, the Defendant's argument also completely disregards that he was acquitted of

all charges relating to victim Jordan Campbell and he has thus utterly failed to establish any

prejudice from the Commonwealth's use of the email. Insofar as the Defendant introduced the

email first himself and was subsequently acquitted of all charges relating to Jordan Campbel1, he

has utterly failed to establish his claim that counsel was ineffective for failing to seek the email's

suppression. This claim must also fail.

3. IneffectiveAssistance of Counsel - Zealous Advocacy

The Defendant also argues that trial counsel was ineffective in failing to zealously

advocate for him at trial. Again, this claim is meritless.

The Defendant now avers that Attorney Allman failed to zealously advocate for him at

trial both as a general proposition and for a laundry list of perceived examples of ineffectiveness

9
which were not explained, discussed or analyzed. "When a court has to guess what issues an

appellant is appealing, that is not enough for meaningful review. When an appellant fails

adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial

court is impeded in its preparation of a legal analysis which is pertinent to those issues. In other

words, a Concise Statement which is too vague to allow the court to identify the issues raised on

appeal is the functional equivalent of no Concise Statement at all." Commonwealth v. Reeves,

907 A.2d 1, 2 (Pa.Super. 2006), citing Commonwealth v. Dowling, 78 A.2d 683, 686-7

(Pa.Super. 2001 ). Given the lack of explanation or review, this Court is unable to provide any

meaningful analysis of the Defendant's laundry list of perceived wrongs. As such, these claims

of error are waived.

To the extent that the Defendant seeks to raise a claim regarding Ms. Allman's conduct in

general, that claim is also meritless. After presiding at trial and having the opportunity to

observe Ms. Allman's conduct both before and during trial, this Court feels that Ms. Allman was

obviously well-prepared for trial, that she engaged in effective witness examinations, both on

direct and cross-examination, that she made appropriate and effective arguments and, ultimately,

that she presented the best defense she could with the facts she was given. It is also important to

note that she did secure acquittals on the most serious charges. It is understandable that the

Defendant is upset by the guilty verdicts, however, the mere fact that some of the verdicts were

guilty does not mean that counsel was ineffective. As discussed above and below, there was no

basis for a finding of ineffectiveness on any of the specific allegations, nor is there a basis for a

.finding of cumulative ineffective assistance. This claim must also fail.

JO
4. Ineffective Assistance of Counsel - Failure to Call Witness

Next, the Defendant argues that trial counsel was ineffective in failing to present the

testimony of Elizabeth Beroes, Esquire because "she was able to call into question the credibility

of multiple Commonwealth witnesses" (Defendant's Amended PCRA Petition, Section IV).

As it specifically relates to a claim for ineffectiveness for the failure to call a witness, the

petitioner must establish that "(I) the witness existed; (2) the witness was available to testify for

the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the

witness was willing to testify for the defense; and (5) the absence of the testimony of the witness

was so prejudicial as to have denied the defendant a fair trial." Commonwealth v. Matias, 63 A.

3d 807, 810-811 (Pa.Super. 2013). "Ineffectiveness for failing to call a witness will not be found

where a defendant fails to provide affidavits from the alleged witnesses indicating availability

and willingness to cooperate with the defense." Commonwealth v. O'Bidos, 849 A.2d 243, 249

(Pa.Super. 2004). "Failure to call a witness is not per sc ineffective assistance of counsel, for

such a decision implicates matters of trial strategy. It is [the petitioner's] burden to demonstrate

that trial counsel had no reasonable basis for declining to call [a particular person] as a witness.

'Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed

constitutionally effective if he chose a particular course that had some reasonable basis designed

to effectuate his client's interests.' A claim of ineffectiveness generally cannot succeed

through comparing, in hindsight, the trial strategy employed with alternatives not

pursued." Commonwealth v. Hammond, 953 A.2d 544, 558 (Pa.Super. 2008), emphasis added.

Here, the Defendant avers only that trial counsel was ineffective in failing to call

Attorney Beroes because she would .. call into question the credibility of multiple

11
Commonwealth witnesses" (Defendant's Amended PCRA Petition. Section IV). The Defendant

does not provide any specifics regarding the substance of her testimony, nor has he attached an

affidavit from Attorney Beroes indicating the substance of her testimony and that she was willing

and available to testify for the defense. The Defendant's argument that Attorney Beroes was

sighted in the courtroom during trial does not mean that she was available and willing to testify

on his behalf.

Given the complete absence of any specific information regarding what Attorney Beroes'

testimony would have been, any evidence that it would have changed the result or its absence

deprived the Defendant of a fair trial, and any proof that she was willing and available to testify

on the Defendant's behalf, the Defendant has utterly failed to establish his claim for ineffective

assistance of counsel in this regard. This claim must also fail.

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