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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DARNELL STUBBS, : No. 3764 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, November 19, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004871-2013
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 27, 2017
Darnell Stubbs appeals from the judgment of sentence of
November 19, 2015, following his conviction of sexual offenses. We affirm.
The trial court has aptly summarized the history of this case as
follows:
The complainant (“F.C.”) gave a statement to
police officers on February 23, 2013, indicating
sometime between February 10, 2013, and
February 14, 2013, at 3 a.m., she encountered a
black male, five foot nine inches or taller, in his
thirties, with nappy hair, carrying a Save-A-Lot bag.
Notes of Testimony (“N.T.”) April 7, 2015, at p. 4.
The encounter took place at or near 3500 Kensington
Avenue in the City and County of Philadelphia. Id.
F.C. told the police that she had seen the individual
approximately five times before. Id. She later
identified him as [appellant]. Id. F.C. reported that
she and [appellant] agreed to go to a house at
1901 E. Venango Street where she would provide
him with sexual services in exchange for money. Id.
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When they arrived at the house, there was an
altercation where [appellant] pushed her to the floor.
Id. [Appellant] pulled his pants down and [anally]
penetrated her with his penis. N.T. March 31, 2015,
at p. 6. After the assault, [appellant] told her to “get
the fuck out of the house” and she left the residence.
Id. at 6-7.
Trial court opinion, 8/19/16 at 2-3.
On April 10, 2015, a jury found [appellant]
guilty of involuntary deviate sexual intercourse by
forcible compulsion (“IDSI”),[Footnote 1] unlawful
restraint,[Footnote 2] sexual assault,[Footnote 3]
and simple assault.[Footnote 4] The court deferred
sentencing for a pre-sentence investigation and an
assessment by the Sexual Offenders Assessment
Board (“SOAB”) pursuant to 42 Pa.C.S.[A.]
§ 9799.24 to determine if [appellant] meets the
criteria of a Sexually Violent Predator (“SVP”).
Following an SVP hearing, on November 19, 2015,
the court concluded that the Commonwealth proved
by clear and convincing evidence that [appellant]
meets the criteria for a sexual [sic] violent predator.
On that same date, [appellant] was sentenced to an
aggregate sentence of five to twelve years of
incarceration followed by seven years of sex offender
probation.[Footnote 5] On December 1[5], 2015,
[appellant] filed a timely Notice of Appeal.
[Footnote 1] 18 [Pa.C.S.A.] § 3123(a)(1)[.]
[Footnote 2] 18 [Pa.C.S.A.] § 2902(a)(1)[.]
[Footnote 3] 18 [Pa.C.S.A.] § 3124.1[.]
[Footnote 4] 18 [Pa.C.S.A.] § 2701(a)[.]
[Footnote 5] [Appellant] was sentenced to
five to twelve years of incarceration
followed by seven years of sex offender
probation on the IDSI charge. For
sentencing purposes the sexual assault
charge merged with the IDSI charge.
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[Appellant] was sentenced to five years of
probation on the unlawful restraint charge
and two years of probation on the simple
assault charge. All probation sentences to
run concurrently.
Trial court opinion, 8/19/16 at 1-2.
No post-sentence motions were filed; however, on December 15,
2015, appellant filed a timely notice of appeal. On December 17, 2015,
appellant was ordered to file a concise statement of errors complained of on
appeal within 21 days pursuant to Pa.R.A.P. 1925(b). On January 7, 2016,
appellant filed a Rule 1925(b) statement, alleging that the evidence was
insufficient to prove that he met the statutory definition of a sexually violent
predator. (Docket #6.) Appellant also requested permission to file a
supplemental statement after receiving all the notes of testimony. (Id.) On
January 12, 2016, the trial court entered an order granting appellant
permission to file a supplemental Rule 1925(b) statement within 7 days of
receiving all of the notes of testimony. (Docket #8.) Appellant filed a
supplemental concise statement on March 30, 2016, and on August 19,
2016, the trial court filed a Rule 1925(a) opinion. (Docket #9, 10.) On
January 5, 2017, this court dismissed the appeal for failure to file a brief.
On January 6, 2017, appellant filed a motion to reinstate the appeal, which
was granted on January 23, 2017.
Appellant has raised the following issue for this court’s review: “Did
not the Commonwealth fail to prove by clear and convincing evidence that
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the appellant met the statutory definition of ‘sexually violent predator’ where
the doctor relied on erroneous and incomplete information?” (Appellant’s
brief at 3.)1
Appellant argues that Barry Zakireh, Ph.D., the SOAB expert, relied on
inaccurate and incomplete information to support his conclusion that
appellant suffers from anti-social personality disorder and is likely to
reoffend. Appellant complains that Dr. Zakireh relied, in part, on appellant’s
prior arrest and adjudication for simple assault and indecent assault at
age 12, but did not review any materials related to that case. (Appellant’s
brief at 15.) In his SOAB report, Dr. Zakireh noted that appellant was
arrested on November 3, 1999 and charged with various offenses including
rape and IDSI. (Appellant’s brief, Exhibit C, Sexually Violent Predator
Assessment, 7/7/15 at 3, 5.) The complainants were two infant females, not
older than one year. (Id.) However, there was limited information relating
to the specific offenses, including the context, duration, or appellant’s
relationship to the victims. (Id.)2
Dr. Zakireh also noted that appellant was committed to multiple
residential programs for adolescent sexual offenders after his adjudication at
1
A second issue raised in appellant’s concise statement and addressed by
the trial court in its Rule 1925(a) opinion, whether the trial court erred in
denying appellant’s motion to suppress identification, has been abandoned
on appeal.
2
The parties stipulated to the contents of Dr. Zakireh’s report, and he was
not called to testify at the SVP hearing. (Trial court opinion, 8/19/16 at 7.)
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age 12, including programs in Virginia, Utah, and Massachusetts. (Sexually
Violent Predator Assessment, 7/7/15 at 5.) Dr. Zakireh concluded that
appellant has likely struggled to make progress or satisfactorily complete the
programs. (Id. at 6.) Appellant argues that this was conjecture on
Dr. Zakireh’s part and that Dr. Zakireh did not review any records from
appellant’s juvenile residential placements. (Appellant’s brief at 15.) In
addition, appellant contends that Dr. Zakireh’s diagnosis of anti-social
personality disorder was made without the benefit of adequate information
about appellant’s background, education, family life, employment history,
etc. (Id. at 17.)
In appellant’s Rule 1925(b) statement, appellant alleged that, “The
evidence was insufficient as a matter of law to establish by clear and
convincing evidence that appellant met the statutory definition of a
“‘sexually violent predator’ pursuant to Megan’s Law, 42 Pa.C.S. § 9791
et seq. where the doctor relied on erroneous information.” (Appellant’s
brief, Exhibit B; supplemental Rule 1925(b) statement, 3/30/16 at 2.)
Appellant did not specify what allegedly erroneous information Dr. Zakireh
relied upon to support his findings. The trial court concluded that appellant’s
Rule 1925(b) statement was vague and resulted in waiver of this issue.
(Trial court opinion, 8/19/16 at 4.) We agree. Rule 1925(b) provides: “The
Statement shall concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for
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the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the Statement
and/or not raised in accordance with the provisions of this [Rule] are
waived.” Pa.R.A.P. 1925(b)(4)(vii).
It has been held that when the trial court directs an
appellant to file a concise statement of matters
complained of on appeal, any issues that are not
raised in such a statement will be waived for
appellate review. Commonwealth v. Dowling, 778
A.2d 683, 686 (Pa.Super. 2001), citing
Commonwealth v. Lord, 553 Pa. 415, 418, 719
A.2d 306, 308 (1998). Similarly, when issues are
too vague for the trial court to identify and address,
that is the functional equivalent of no concise
statement at all. Id. Rule 1925 is intended to aid
trial judges in identifying and focusing upon those
issues which the parties plan to raise on appeal.
Commonwealth v. Lemon, 804 A.2d 34, 37
(Pa.Super. 2002). Thus, Rule 1925 is a crucial
component of the appellate process. Id. “When the
trial court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.”
Id., citing Dowling, supra.
Commonwealth v. Smith, 955 A.2d 391, 393 (Pa.Super. 2008) (en banc).
See also In re A.B., 63 A.3d 345, 350 (Pa.Super. 2013) (“This Court has
considered the question of what constitutes a sufficient 1925(b) statement
on many occasions, and it is well-established that Appellant’s concise
statement must properly specify the error to be addressed on appeal.”
(quotation marks and citation omitted)).
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As appellant’s Rule 1925(b) statement was overly broad and vague
and failed to specify what allegedly erroneous information Dr. Zakireh
improperly relied upon, the issue is waived on appeal.3
Judgment of sentence affirmed.
Panella, J. joins this Memorandum.
Olson, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
3
Moreover, a careful review of Dr. Zakireh’s report and the trial court’s
opinion supports the finding that appellant met the statutory criteria for
classification as an SVP. (Trial court opinion, 8/19/16 at 5-9.)
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