J-S53041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ZAID ABDUL NAFEES SALAM :
:
Appellant : No. 2512 EDA 2017
Appeal from the Judgment of Sentence June 30, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006494-2015
BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 26, 2018
Appellant, Zaid Abdul Nafees Salam, appeals from the judgment of
sentence entered in the Delaware County Court of Common Pleas, following
his jury trial convictions for kidnapping, involuntary deviate sexual intercourse
(“IDSI”), and two counts of simple assault.1 We affirm Appellant’s
convictions; vacate the sexually violent predator (“SVP”) designation; remand
the matter to the trial court to issue a revised notice to Appellant regarding
his registration requirements under 42 Pa.C.S.A. § 9799.23; and affirm the
judgment of sentence in all other respects.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate them.
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1 18 Pa.C.S.A. §§ 2901(a)(3); 3123(a)(1); 2701(a)(1), respectively.
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* Retired Senior Judge assigned to the Superior Court.
J-S53041-18
Appellant raises three issues for our review:
WHETHER THE VERDICT ON THE CHARGE OF KIDNAPPING
WAS RENDERED ON INSUFFICIENT EVIDENCE BECAUSE
THE COMMONWEALTH FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT [APPELLANT] UNLAWFULLY
REMOVED ANOTHER A SUBSTANTIAL DISTANCE UNDER
THE CIRCUMSTANCES FROM THE PLACE WHERE HE WAS
FOUND, OR IF HE UNLAWFULLY CONFINED ANOTHER FOR
A SUBSTANTIAL PERIOD IN A PLACE OF ISOLATION, WITH
INTENT TO INFLICT BODILY INJURY ON OR TO TERRORIZE
THE VICTIM OR A LIAR VIA…ANOTHER?
WHETHER THE VERDICT ON THE CHARGE OF IDSI WAS
RENDERED ON INSUFFICIENT EVIDENCE BECAUSE THE
COMMONWEALTH FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT [APPELLANT] ENGAGED IN
DEVIATE SEXUAL INTERCOURSE WITH A COMPLAINANT BY
FORCIBLE COMPULSION?
IS IT UNCONSTITUTIONAL TO LABEL [APPELLANT] A
SEXUALLY VIOLENT PREDATOR SUBJECT TO
REGISTRATION REQUIREMENTS WHEN IT IS UNDISPUTED
THAT THE PROCESS LEADING TO THE LABEL IS ITSELF
UNCONSTITUTIONAL?
(Appellant’s Brief at 10).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Gregory M.
Mallon, we conclude Appellant’s first and second issues merit no relief. The
trial court opinion comprehensively discusses and properly disposes of those
issues. (See Trial Court Opinion, filed November 17, 2017, at 4-6) (finding:
(1) Commonwealth presented evidence that Appellant forcefully removed
Victim from her home at knifepoint; Victim said Appellant threatened to kill
her if she did not go to Appellant’s residence with him; Appellant held knife to
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Victim’s throat and pinned her down with baseball bat, which caused Victim to
have difficulty breathing; Commonwealth presented sufficient evidence to
sustain Appellant’s kidnapping conviction;2 (2) Victim testified that Appellant
put his penis in her mouth and in her anus; Victim said Appellant threatened
her and Victim was afraid to reject Appellant’s commands; Commonwealth
presented sufficient evidence to sustain Appellant’s IDSI conviction). Thus,
we affirm Appellant’s first and second issues on the basis of the trial court’s
opinion.
In his third issue, Appellant argues his SVP status is illegal in light of
recent Pennsylvania decisions.3 We agree with Appellant’s position.
The Pennsylvania Supreme Court has made clear that the registration
requirements under the Sexual Offender Registration and Notification Act
(“SORNA”) constitute criminal punishment. Commonwealth v. Muniz, 640
Pa. 699, 164 A.3d 1189 (2017), cert. denied, ___ U.S. ___, 138 S.Ct. 925,
200 L.Ed.2d 213 (2018). In light of Muniz, this Court held: “[U]nder
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2 “[F]or purposes of Pennsylvania’s kidnapping statute, a ‘place of isolation’ is
not geographic in nature, but contemplates that confinement of a victim
where…she is separated from the normal protections of society in a fashion
that makes discovery or rescue unlikely.” Commonwealth v. Rushing, 627
Pa. 59, 74, 99 A.3d 416, 425 (2014).
3 The trial court did not address this issue because Appellant did not raise it
in his Rule 1925(b) statement. Nevertheless, Appellant’s claim presents a
non-waivable challenge to the legality of his sentence. See Commonwealth
v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc) (explaining challenges
to illegal sentence cannot be waived, assuming jurisdiction is proper).
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Apprendi and Alleyne, a factual finding, such as whether a defendant has a
mental abnormality or personality disorder that makes him…likely to engage
in predatory sexually violent offenses, that increases the length of registration
must be found beyond a reasonable doubt by the chosen fact-finder.”4
Commonwealth v. Butler, 173 A.3d 1212, 1217 (Pa.Super. 2017), appeal
granted, ___ Pa. ___, 190 A.3d 581 (2018) (internal citations and quotation
marks omitted). This Court further held: “[S]ection 9799.24(e)(3) of SORNA
violates the federal and state constitutions because it increases the criminal
penalty to which a defendant is exposed without the chosen fact-finder making
the necessary factual findings beyond a reasonable doubt.”5 Id. at 1218. The
Butler Court concluded that trial courts can no longer designate convicted
defendants as SVPs or hold SVP hearings, “until [the] General Assembly
enacts a constitutional designation mechanism.” Id. (vacating appellant’s
SVP designation and remanding to trial court for sole purpose of issuing
appropriate notice under 42 Pa.C.S.A. § 9799.23, governing reporting
requirements for sex offenders, as to appellant’s registration obligation).
Instantly, following an assessment by the Sexual Offender Assessment
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4 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013).
5 See 42 Pa.C.S.A. § 9799.24(e)(3) (stating: “At the hearing prior to
sentencing, the court shall determine whether the Commonwealth has proved
by clear and convincing evidence that the individual is a sexually violent
predator”).
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Board, the court imposed SVP status on Appellant on March 1, 2017. In light
of Muniz and Butler, Appellant’s SVP designation constitutes an illegal
sentence. Accordingly, we affirm Appellant’s convictions, based on the trial
court’s opinion; vacate the SVP designation; and remand the matter to the
trial court to issue a revised notice to Appellant of his registration obligations
under 42 Pa.C.S.A. § 9799.23.6 See Butler, supra. We affirm the judgment
of sentence in all other respects.
Judgment of sentence affirmed in part and vacated in part; case
remanded with instructions. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/18
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6SORNA, at 42 Pa.C.S.A. §§ 9799.10-9799.41, went into effect on December
20, 2012, and became the statute governing the registration and supervision
of sex offenders. SORNA was recently amended by H.B. 631, 202 Gen.
Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018. Upon remand, the court must
be cognizant that the prior version of SORNA applies to Appellant.
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Circulated 10/18/2018 12:15 PM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA NO. 6494-15
v.
ZAIDSALAM
OPINION
Mallon, J. Filed: I(f,1/t 7
Zaid Salam has appealed to the Superior Court. The nature and history of the case are as
follows:
I. Nature and History of the Case
Following a jury trial, Salam was found guilty of kidnapping, two counts of simple
assault, and involuntary deviate sexual intercourse.1 On June 30, 2016,2 this court sentenced
Appellant to 90 to 180 months of incarceration on the involuntary deviate sexual intercourse
conviction,3 12 to 24 months of consecutive incarceration on the first simple assault conviction,
l 2 to 24 months of consecutive incarceration on the second simple assault conviction, and 66 to
132 months of concurrent incarceration on the kidnapping conviction. Salam was given credit for
time served from 8/5/15 through 6/30/17 and was found not to be boot camp or RRRl eligible.
He was directed to undergo sex offender treatment, mental health treatment, and drug and
alcohol treatment. As part of his sentence, and following a determination that he was a sexually
violent predator, Salam was required to register under Megan's Law.
At trial the Commonwealth produced evidence that established that on August 4, 2015,
victim Sade Gwinn was out at a bar in Chester, Pennsylvania with her then boyfriend, Salam
I He was found not guilty of aggravated assault, sexual assault, aggravated indecent assault, and
indecent assault.
2 This sentence was amended on July 5, 2017 to include a Megan's Law Tier 3 registration.
3
Appellant was also sentenced to 5 years of probation, consecutive to parole, on this conviction.
(hereinafter "Appellant") to celebrate his birthday. N.T., 5/3/16, p. 46-47. An altercation ensued
after the Appellant became jealous because Gwinn was speaking to someone else. The police
were called to the scene. Id. at 48-51. Gwinn told the police that she had been struck in the head
by someone who had then left. When it came time to go home, Gwinn left the bar with a friend,
and went to her friend's home because she was afraid to return to her own house. Id. at 52.
Eventually, when Gwinn returned to her own home later that night, she found the
Appellant hiding in her kitchen in the dark. The Appellant asked her where she had been,
threatened her with a knife, took her cell phone, and removed her from her home. Id at 53-54.
He told her that "if she wanted to live then she better go with him or he will kill her." Id at 53.
When she arrived to the Appellant's home, Gwinn discovered that he had already removed her
personal items, such as her clothes and shoes, from her home and had taken them to his
residence. While there the Appellant choked her with a bat and threw her down on a bed. Id at
57. He held her down. Id at 57-58. Gwinn explained that at that moment she believed that he
was going to kill her. Id. at 58.
The Appellant held Gwinn against her will. He repeatedly threatened her and told her
that he would kill her if she spoke or didn't do what he said. Id. at 60. She pleaded to leave and
he punched her in the face and fractured her nose. Id. at 59. At some point she fell asleep. Id at
62. When she awoke she once again pleaded to go home. Id at 62. The Appellant responded that
if she wanted "to go home you got to give me what I want. You messed up my birthday.'' Id at
62. He then told her that he wanted, which was oral and anal sex. Id. The Appellant then sexually
assaulted Gwinn. She explained to the jury that she felt that she had no choice but to comply
with his demands. She testified that he put his penis in her mouth. Id. at 63. He then put his penis
in her anus. Id. He also touched her genitals with his fingers. Id. at 63. Afterward, the Appellant
2
ordered her to take a shower and gave her some of her clothing that he had taken to his home. Id
at 64. When she was dressed, he gathered all of her belongings and the Appellant walked her
home. Id. at 64. Gwinn approximated that she remained in a room that the Appellant rented4 until
around 8 A.M. the following day. Id. at 61. Before he left, the Appellant took Gwinn's wallet. Id.
at 66. When he turned his back to leave, Gwinn called the police. Id. at 66. Appellant was later
charged with the aforementioned offenses.
As set forth above, a jury found the Appellant guilty of kidnapping, simple assault, and
involuntary deviate sexual intercourse. Appellant filed a counseled appeal on July 28, 2017.
Appellant raises the following issues in his Statement of Matters Complained of on Appeal:
(1) Whether the verdict on the charge of kidnapping was rendered on insufficient
evidence because the Commonwealth failed to prove beyond a reasonable doubt that
Mr. Salam unlawfully removed another a substantial distance under the
circumstances from the place where he was· found, or if he unlawfully confines
another for a substantial period in a place of isolation, with intent to inflict bodily
injury on or to terrorize the victim or another? 18 Pa.C.S.A. §2901
(2) Whether the verdict on the charge of IDSI was rendered on insufficient evidence
because the Commonwealth failed to prove beyond a reasonable doubt that Mr.
Salam engaged in deviate sexual intercourse with a complainant by forcible
consumption? 18 Pa.C.S.A. §3123
(3) Whether the learned Trial Court abused its discretion when it allowed amendment of
bills of information at the Commonwealth's request absent a showing of a defect in
form, the description of offense(s), the description of any person or any property, or
the date charged, provided the information as amended does not charge an additional
or different offense? Pa.R.Crim.P. §564
( 4) Whether the learned Trial Court committed non-waivable error when it illegally
sentenced without making a determination whether the Appellant is an eligible RRRl
offender? 61 Pa.C.S.A. §4505(a)
(5) Whether the sentence is harsh and excessive under the circumstances? 42 Pa.C.S.A.
4 Gwinn explained it as "a house with just rooms, no kitchen, no living room. Just bedrooms."
N.T., 5/3/16, p. 56.
3
9781
II. Discussion
A. Sufficiency of the Evidence
In his first two issues on appeal, the Appellant challenges that sufficiency of the
evidence. Appellant claims that the evidence was insufficient for a jury to find him guilty of both
kidnapping and deviate sexual intercourse. In reviewing a challenge to the sufficiency of the
evidence, an appellate court is to consider the evidence admitted at trial and all reasonable
inferences therefrom in the light most favorable to the Commonwealth as the verdict winner.
Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1237 (2007). A court may not
substitute its judgment for that of the fact-finder and the critical inquiry is whether the evidence
believed by the fact-finder was sufficient to support the verdict as opposed to whether the court
believes the evidence established guilt beyond a reasonable doubt. Commonwealth v. Sinnott,
612 Pa. 321, 331, 30 A.3d 1105, 1110 (2011) (emphasis added). Lastly, the uncorroborated
testimony of a sexual assault victim, if believed by the trier of fact, is sufficient to convict a
defendant. Commonwealth v. Charlton, 'j