In the Interest of T.E.H.

DISSENTING OPINION BY

COLVILLE, J.:

¶ 11 dissent.

¶ 2 In their motions to quash, their concise statements of matters complained of on appeal, and their chief appellate briefs, Appellants argued that the DNA Act is unconstitutional because it violates the separation of powers doctrine, because it is void for vagueness, and because it allows for unreasonable searches and seizures. In their reply brief, Appellants rely on Commonwealth v. Derk, 895 A.2d 622 (Pa.Super.2006), in arguing that they “are not subject to the requirements of the DNA Act....” Appellants’ Reply Brief at 3. In my view, Appellants waived any issue regarding the applicability of the DNA Act to them because they failed to present such an issue in the trial court, see Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”), because they failed to raise such an issue in their Pa.R.A.P. 1925(b) statements, see Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998) (“Any issues not raised in a 1925(b) statement will be deemed waived.”), and because they raised this issue for the first time in their reply brief, see Commonwealth v. Wharton, 571 Pa. 85, 811 A.2d 978, 990 (2002) (“[T]he claim is waived because it was raised for the first time in a reply brief.”).

¶ 3 In their reply brief, Appellants brought their applicability issue under the following heading: “Whether the lower court erred in denying Appellants’ motion to quash the DNA sample because ... 44 Pa.C.S.A. § 2316 violates the separation of powers doctrine?” Appellants’ Reply Brief at 3. However, the argument Appellants present under this heading does not relate to a claim that the DNA Act violates the separation of powers doctrine. Instead, Appellants rely upon the disposition of the consolidated companion case in Derk, Commonwealth v. Bingaman, 895 A.2d 622 (Pa.Super.2006), in contending that the DNA Act does not apply to them. The Majority, in turn, addresses Appellants’ first issue, ie., their separation of powers issue, by relying upon this Court’s disposition of Bingaman’s appeal.

¶ 4 However, in Derk, this Court did not determine that the trial court erred in requiring Bingaman to comply with the DNA Act because the Act violated the separation of powers doctrine. Rather, the Court merely interpreted the language employed by the legislature in crafting the DNA Act and concluded that the legislature did not intend for the DNA Act to apply to persons such as Bingaman.17 The *325meritorious argument relied upon by Bin-gaman simply was that “his misdemeanor retail theft convictions are not predicate offenses under the [DNA] Act.” This argument was available to Appellants, but they did not raise it until they filed their reply brief. As such, the issue is waived, and consequently, I would not afford M.M.B. or A.M. the relief provided to them by the Majority.18

. The following excerpt from Derk demonstrates that this Court applied concepts of statutory construction, not constitutional interpretation, in determining that the trial court erred in requiring Bingaman to comply with the DNA Act: •

The trial court focused too narrowly on § 2316(b) which applies to conditions of release, probation or parole without giving due consideration to § 2316(a), the general rule and § 2316 in toto. When read as a whole, it is evident that the General Assembly did not tailor the Act to apply to those incarcerated for non-predicate offenses; otherwise, it would have simply stated so. Instead, the Act applies to those who stand before the court currently convicted or adjudicated delinquent for a felony sex offense or other specified offense or those serving a sentence for a felony sex offense or other specified offense. Since Bingaman was not incarcerated because of a felony sex offense *325or other specified offense, he did not fall within the purview of the DNA Act. As such, it was error for the court to order that he submit a DNA sample and to pay the mandatory $250 fee. Accordingly, we reverse and vacate that portion of his sentence, and the rest of the sentence remains intact.

Derk, 895 A.2d at 632.

. While I have styled this opinion as a dissent, I note that I have not ruled out the possibility that Appellants are due relief under the standards that govern their various constitutional issues.