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                               2018 PA Super 234

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
STEVEN MICHAEL VUCICH                    :
                                         :
                   Appellant             :   No. 1855 WDA 2016

          Appeal from the Judgment of Sentence November 8, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0011096-2015


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

OPINION BY BOWES, J.:                              FILED AUGUST 27, 2018

      Steven Michael Vucich appeals from the judgment of sentence of ten

to twenty years incarceration imposed following his jury trial convictions for,

inter alia, involuntary deviate sexual intercourse with a child.    We vacate

Appellant’s designation as a sexually violent predator (“SVP”) and remand

for further proceedings.

      The trial court summarized the factual history in its Pa.R.A.P. 1925(a)

opinion:

      Briefly, the evidence presented at trial established that when he
      was nine (9) years old, [C.D.]'s mother married [Appellant] and
      he moved into their home. On one (1) occasion when he was
      [ten] years old, [C.D.] had just gotten out of the shower when
      [Appellant] took him into the bedroom, removed his towel, knelt
      in front of him and put [C.D.]'s penis in his mouth. Thereafter,
      [Appellant] would have "cuddle time" with [C.D.], where the two
      would lie in bed and the Defendant would touch and rub [C.D.]'s
      penis. [Appellant] also let [C.D.] play certain video games his
      mother had deemed too violent, but would rub and touch his
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      penis while he played. [Appellant] instructed [C.D.] not to tell his
      mother what had happened. Approximately 10 years later,
      [C.D.] disclosed the abuse to his therapist and eventually told
      his mother what had happened.

Trial Court Opinion, 6/29/17, at 2.

      Appellant was charged with rape of a child, involuntary deviate sexual

intercourse with a child, unlawful contact with a minor, corruption of minors,

and indecent assault with a person less than thirteen. Following a jury trial,

Appellant was convicted of all crimes except rape of a child. On November

8, 2016, Appellant was sentenced as previously referenced. On December

8, 2016, Appellant filed a timely notice of appeal. That same day, the trial

court held a hearing to determine if Appellant was an SVP. The trial court

determined that he was, and entered a separate order to that effect on

December 21, 2016. Appellant did not file a separate notice of appeal from

that order.

      Appellant complied with the trial court’s order to file a concise

statement of matters complained of on appeal, and the trial court issued an

opinion in response. The matter is ready for review of Appellant’s claims:

      I.      Did the lower court abuse its discretion when it permitted
              the introduction and publication of Commonwealth Exhibits
              [two] and [three], photographs of the complainant taken
              at around the time of the alleged incidents, as the photos
              were irrelevant, prejudicial, and intended to inflame the
              passions of the jury?

      II.     Did the lower court err in failing to exclude language from
              Standard Jury Instruction 4.13(B) during voir dire, as
              requested by the Motion in Limine? Moreover, was it


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             erroneous to give this same instruction to the jury as it is
             only a partially correct statement of the law?

      III.   Must the determination that [Appellant] is a [SVP] be
             vacated as the mechanism for SVP determinations was
             deemed unconstitutional in Commonwealth v. Butler[,
             173 A.3d 1212 (Pa.Super. 2017)]?

Appellant’s brief at 7.

      Appellant’s first issue challenges the admission of two photographs

depicting C.D. when he was between the ages of nine and eleven.             The

admission of evidence is vested within the discretion of the trial court. We

apply the following principles to an evidentiary challenge:

      In determining whether evidence should be admitted, the trial
      court must weigh the relevant and probative value of the
      evidence against the prejudicial impact of that evidence.
      Evidence is relevant if it logically tends to establish a material
      fact in the case or tends to support a reasonable inference
      regarding a material fact. Although a court may find that
      evidence is relevant, the court may nevertheless conclude that
      such evidence is inadmissible on account of its prejudicial
      impact.

Commonwealth v. Storey, 167 A.3d 750, 758 (Pa.Super. 2017) (citation

omitted).

      The evidence was introduced during the testimony of C.D.’s mother.

One photograph was a school picture from fourth or fifth grade; the other

was a photograph of C.D. at his grandparents’ house.      The Commonwealth

moved to enter the photographs into evidence. Appellant stated, “I put my




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objection on the record.” N.T., 8/9-10/16, at 98. The trial court replied, “It

will be so noted.” Id. at 99.1

       Citing Commonwealth v. Funk, 29 A.3d 28 (Pa.Super. 2011), the

trial court’s opinion discussed the following two-part test applied to

inflammatory photographs:

       First, the court must determine whether the photograph is
       inflammatory. This Court has interpreted inflammatory to mean
       the photo is so gruesome it would tend to cloud the jury's
       objective assessment of the guilt or innocence of the defendant.
       Next, if the trial court decides the photo is inflammatory, in
       order to permit the jury to view the photo as evidence, it must
       then determine whether it is has essential evidentiary value.


____________________________________________


1 Following a request from this Court, the parties submitted a supplemental
certified record containing the photographs at issue.      The photographs
generically depict what C.D. looked like between the ages of nine and
eleven. One photograph is from a school portrait, while the other shows
C.D. sitting outside on a wall.

The Commonwealth maintains that this claim is waived for failing to specify
the grounds for his objection. Pursuant to Pa.R.E. 103(a)(1)(B), a party is
required to make a timely objection and state the specific ground in order to
preserve that issue for appeal, “unless it was apparent from the context.”
We have found waiver of evidentiary issues due to generic objections. See
Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa.Super. 2012) (“This Court
has    deemed     an    appellate   claim   that    testimony    constituted
inadmissible hearsay waived where, at trial, counsel merely said without
[an] explanation ‘Objection.’”) (citation omitted). However, other cases
applying Pa.R.E. 103 have noted that “[e]ven a general objection is
adequate to preserve a challenge to an evidentiary ruling where the
evidence is inadmissible for any purpose[.]” Cominsky v. Donovan, 846
A.2d 1256, 1258 n.2 (Pa.Super. 2004). Presently, the trial court readily
apprehended the nature of Appellant’s objection, which sought to exclude
the evidence as inadmissible for any purpose. We therefore decline to find
waiver.



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Id. at 33 (citations omitted). The Commonwealth likewise invokes this test.

“First, the court must decide whether a photograph is inflammatory by its

very nature.” Commonwealth’s brief at 12.

      Since a photograph is simply a type of demonstrative evidence,

Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006), it, like all

other types of evidence, is subject to general relevancy principles.             “All

relevant evidence is admissible, except as otherwise provided by law.

Evidence that is not relevant is not admissible.”           Pa.R.E. 402.   The usual

context for a challenge to a photograph is, as noted, a gruesome photograph

in which the relevance of the item is obvious and undisputed. The two-part

inflammatory test relied upon by the trial court is simply a specific

prohibition of otherwise admissible evidence.

      However,      viewing    the      photograph    through    the    inflammatory

framework misses the mark, as Appellant does not assert that the

photograph is inadmissible on that basis. Instead, Appellant contends that

the   photographs    were     legally    irrelevant   and   therefore   inadmissible.

Commonwealth v. Wilson, 147 A.3d 7, 15 (Pa.Super. 2016) (“In general,

relevant evidence, i.e., evidence that logically tends to establish a material

fact in the case, tends to make a fact at issue more or less probable, or

supports a reasonable inference or presumption regarding a material fact, is

admissible.”) (citation omitted).       As applied herein, Appellant avers that the

victim’s appearance at the time of the crime did not tend to establish any


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material fact.   “With respect to the issue of whether the incidents [C.D.]

testified to had actually occurred, his likeness at the younger age does

nothing to advance the inquiry.” Appellant’s brief at 13. We now examine

the trial court’s rationale for admitting the photograph, as set forth in its

opinion after concluding that it was not inflammatory:

      As [C.D.] explained during his testimony, he was [ten] years old
      at the time of the assaults. Given his young age, he had
      difficulty processing and dealing with what was happening to him
      and so, for many years, simply tried to forget what had
      happened. [C.D.] first told his therapist of the abuse when he
      was [eighteen] years old and by the time he testified at trial, he
      was [twenty] years old. It was difficult to equate the [twenty]-
      year old man testifying about something that had happened so
      long ago with the child who was unable to somehow stop or even
      deal with the attacks. The two pictures introduced by [C.D.]'s
      mother helped the jury to picture [C.D.] as a child so that the
      jury could better evaluate his testimony.

Trial Court Opinion, 6/29/17, at 6-7.

      The connection between viewing depictions of a witness as a child and

how those photographs can assist in the evaluation of the victim’s in-court

testimony is questionable.    The parties have not supplied us with any

citation to a Pennsylvania authority addressing the introduction of a

photograph under these circumstances, where a victim testifies long after

the commission of the crimes.    However, numerous cases have addressed

the related context of introducing photographs of a homicide victim.

      Appellant relies upon Commonwealth v. Story, 383 A.2d 155 (Pa.

1978), a homicide case, to establish both the irrelevancy of the photograph

and the prejudice generated by its admission.       Therein, the prosecution

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called, as its second witness, the victim’s widow, Marilyn Wallace.         Ms.

Wallace produced photographs of the victim and his daughter, and also

testified to “the victim’s family status” as well as “other events of a personal

nature.”   Id. at 157.   Our Supreme Court held that the photograph was

irrelevant and prejudicial:

      Here, Mrs. Wallace's testimony concerning her husband's family
      status and personal life, and her description of the photographs
      of her husband with his child have no “rational probative value”
      to the issue whether appellant feloniously killed Patrick Wallace.
      Rather, this evidence injected extraneous considerations into the
      case and prejudiced appellant by creating sympathy for the
      victim and his family.

      In its offer of proof, the Commonwealth stated that it thought
      that the jury was “entitled to know this man was married, he
      was a father, he in fact was a family man.” The prosecutor
      further stated that the victim “is more than a body” and that the
      prosecutor wanted the jury “to get some feel for this activity of
      his life.” It is evident that the Commonwealth explicitly sought to
      create sympathy for the victim and his family and to inflame the
      jury against appellant. We condemn such trial tactics.

Id. at 159.

      The Supreme Court applied Story in Commonwealth v. Rivers, 644

A.2d 710 (Pa. 1994), which also discussed the propriety of introducing a

photograph of a homicide victim.      The Commonwealth asserted that the

photograph was relevant because it established that “she had been a life in

being prior to the homicide.” Id. at 716. Thus, the Commonwealth linked

the relevancy of the photograph to an element of the crime. Our Supreme

Court stated that such photographs were “clearly irrelevant” as there was no

dispute that the victim was alive prior to discovery of her body.

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     The existence of Ms. Burt as a life in being was clearly
     established through the testimony of various witnesses. The
     Commonwealth therefore did not need the photograph to
     establish this fact. This photograph was introduced for the
     purpose of engendering sympathy for the victim with the intent
     of creating an atmosphere of prejudice against the defendant.
     The admission of this type of photograph is error. Photographs of
     this type are clearly irrelevant to the central issue at trial, which
     is the guilt or innocence of the accused. Only where the
     victim's character or physical abilities are called into
     question will such evidence be relevant.

Id. at 716 (emphasis added, citations omitted).

     Our Supreme Court recently distanced itself from the notion that

photographs of a homicide victim are relevant only for the grounds

referenced in the foregoing emphasized language.       In Commonwealth v.

Smyrnes, 154 A.3d 741 (Pa. 2017), Jennifer Lee Daugherty, a mentally

challenged woman, was subjected to horrific torture and abuse at the hands

of six criminals prior to her murder. Ms. Daugherty’s body was discovered

with her hair cut close to her scalp. A witness testified that the group cut

Ms. Daugherty’s hair during the ordeal.     The Commonwealth introduced a

photograph of Ms. Daugherty depicting her normal hairstyle. Our Supreme

Court held that the photograph was relevant, since its evidentiary purpose

had some connection to the Commonwealth’s case-in-chief:

     Presently, the Commonwealth established a plausible basis for
     relevance, contrasting the length of the victim's hair as depicted
     in the picture and verified by Ms. Daugherty's mother (longer
     style with curled ends) with the appearance when the victim's
     body was presented for autopsy (at which time her hair was cut
     close to the scalp in a haphazard fashion). The contrasting
     images were corroborative of Meidinger's testimony concerning


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      an instance of domination which occurred during the kidnapping
      ordeal preceding Ms. Daugherty's murder.

            ....

      [G]iven that the photograph had some relevance, and the limited
      use of it made by the Commonwealth, we decline [to] find an
      abuse in the trial court's discretionary evidentiary ruling.

Id. at 754-55 (footnote and citation omitted). Nonetheless, the High Court

reiterated the statement from Rivers that such evidence is normally

irrelevant and should be avoided. Id. at 754 (“We recognize that it was by

no means essential to the prosecution to place this photograph before the

jury. Moreover, we caution the Commonwealth concerning the value of

restraint in scenarios involving potential prejudice connected with such non-

essential evidence.”).

      We find that these principles naturally extend to the present

circumstances.     There are obvious parallels between the Commonwealth’s

seeking to establish through photographic proof what a homicide victim

looked like around the time of his or her death, and the facts sub judice, in

which the Commonwealth sought to show the victim’s appearance near the

time of the crimes.      Just as such evidence is generally irrelevant in a

homicide prosecution—at least in cases where the “life in being” element is

not in question—so too were C.D.’s childhood pictures irrelevant, as

Appellant did not contest that C.D. was actually a child at the times he

testified that the abuse occurred. There was thus no need to prove to the

jury what C.D. looked like as a child, rendering the evidence irrelevant.

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       We further disagree with the Commonwealth’s assertion that the

evidence was relevant because the photographs “were necessary to visually

depict his appearance at the time the crimes occurred.”          Commonwealth’s

brief at 13. It is undeniable that, due to the passage of time in this case,

photographs or some other type of demonstrative evidence were indeed

necessary to establish C.D.’s appearance at the time of the crimes.           The

Commonwealth’s argument, however, begs the question by assuming that

the victim’s visual appearance at the time of the crimes needed to be

established in the first place.2       Pursuant to the principles in Story and its

progeny, we conclude that the photographs were irrelevant, and therefore

inadmissible.

       The Commonwealth alternatively submits that any error was harmless

beyond a reasonable doubt. Our Supreme Court has set forth the following:

       [A]n erroneous ruling by a trial court on an evidentiary issue
       does not require us to grant relief where the error was harmless.
       The Commonwealth bears the burden of demonstrating harmless
       error. Harmless error exists where: (1) the error did not
       prejudice the defendant or the prejudice was de minimis; (2) the
       erroneously admitted evidence was merely cumulative of other
       untainted evidence which was substantially similar to the
       erroneously admitted evidence; or (3) the properly admitted and
       uncontradicted evidence of guilt was so overwhelming and the
       prejudicial effect of the error was so insignificant by comparison
____________________________________________


2  To take the Commonwealth’s assertion that the photographs were
necessary at face value, then the failure to establish visual proof of a
victim’s appearance would render the evidence insufficient as a matter of
law. Obviously, that cannot be the case. The evidence was surely relevant
under an ordinary use of that term, but not in the legal sense.



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      that the error could not have contributed to the verdict.

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (citations

omitted).

      We find that any prejudice was de minimis and therefore the error was

harmless beyond a reasonable doubt.       There is a natural overlap between

what the photographs show and how the prosecution uses the photographs,

and any resulting prejudice.    In Story, our Supreme Court noted that the

photographs were introduced along with testimony of the victim’s “family

status” and “other events of a personal nature.”        Story, supra at 157.

Herein, as the Commonwealth notes, the photographs were referenced

briefly, and the prosecutor did not revisit or otherwise draw attention to the

photographs following their introduction. This circumstance is more akin to

Rivers, in which our Supreme Court concluded that introducing the victim’s

photograph was harmless beyond a reasonable doubt:

      In the instant case the photograph was identified by the
      decedent's daughter, who merely related when and where the
      photograph was taken and verified that it was an accurate
      depiction of her mother immediately prior to her death. The
      testimony surrounding the photograph in this case was limited.
      Further, the actual polaroid snapshot of the victim does not
      portray her as particularly old or frail, nor does it reveal that she
      was an amputee seated in a wheelchair, as in the photograph
      the victim is seated behind a table. Although admission of the
      photograph was clearly improper and irrelevant, in light of the
      overwhelming circumstantial evidence of the appellant's guilt, we
      conclude that the error was harmless.

Rivers, supra at 716.




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      Therefore, while the photographs were irrelevant, their use was

limited, and, according to the parties’ descriptions of the items, the exhibits

simply depicted C.D.’s general appearance at the time of these crimes.

While improperly introduced, we conclude that any prejudicial effect was de

minimis.

      Related to this point, there is one obvious distinction between the

scenarios in the examined homicide cases and these circumstances.         In a

homicide prosecution, but for the introduction of demonstrative evidence of

the victim, the jury will have no frame of reference for the victim’s

appearance. In contrast, the jury was obviously aware of the fact that C.D.

was once a child, and it takes no great leap of imagination to imagine what a

witness may have looked like as a child. This point further highlights the de

minimis prejudice.

      Finally, we briefly note that our decision today is limited to these

factual circumstances, wherein the photographs were displayed for no

purpose other than establishing C.D.’s appearance at the time of the crimes.

We do not hold that the appearance of a child victim is per se irrelevant. Cf.

State v. Klein, 593 N.W.2d 325, 327 (N.D. 1999) (finding that photograph

depicting twelve-year-old victim at age six, when the molestation occurred,

was relevant; further noting that the photo “permitted the jury to see what

[the victim] looked like at the age of six when he asserted he had been




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deathly afraid of Klein, as opposed to his appearance at the trial when he

was twelve years old and testified he was no longer afraid of Klein”).

      Appellant’s second issue challenges the trial court’s instruction to the

jury that the testimony of a victim, standing alone, suffices to establish guilt.

Appellant challenges that point in two different contexts: voir dire and jury

instructions.   As applied to voir dire, we find that Appellant’s challenge is

waived. First, voir dire was not transcribed and what the jury was asked is

not of record. Second, according to a status conference transcript, which is

not in the certified record but is quoted by both parties, Appellant agreed to

the questions.     “The Commonwealth’s proposed voir dire questions are

acceptable and agreed to by the defense[.]”.          Appellant’s brief at 18 n.1.

(quoting transcript).

      We now address Appellant’s challenge to the jury instruction. A trial

court has discretion in instructing the jury, and “can choose its own wording

so long as the law is clearly, adequately, and accurately presented to the

jury for its consideration. Only where there is an abuse of discretion or an

inaccurate statement of the law is there reversible error.” Commonwealth

v.   Hawkins,     701   A.2d   492,   511      (Pa.   1997)   (citations   omitted).

Furthermore:

      a trial court need not accept counsel's wording for an instruction,
      as long as the instruction given correctly reflects the law. It is
      axiomatic that, in reviewing a challenged jury instruction, an
      appellate court must consider the charge in its entirety, not
      merely isolated fragments, to ascertain whether the instruction
      fairly conveys the legal principles at issue. Instructions will be

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      upheld if they adequately and accurately reflect the law and are
      sufficient to guide the jury properly in its deliberations.

Commonwealth v. Rainey, 928 A.2d 215, 242–43 (Pa. 2007) (citations

omitted).

      In a pre-trial motion, Appellant raised a challenge to Pennsylvania

Standard Jury Instruction 4.13b:

      The Defense requests that this Honorable Court exclude Jury
      Instruction 4.13b, as it is misleading and unfairly prejudices the
      jury against the defendant.

      Pennsylvania Standard Jury Instruction 4.13b states:

            The testimony of [name of victim] standing alone, if
            believed by you, is sufficient proof upon which to find
            the defendant guilty in this case. The testimony of
            the victim in a case such as this need not be
            supported by other evidence to sustain a conviction.
            Thus you may find the defendant guilty if the
            testimony of [name of victim] convinces you beyond
            a reasonable doubt that the defendant is guilty.

      This instruction is misleading because: 1) it inappropriately tells
      the jury that the alleged victim's testimony is sufficient to
      convict; 2) [i]t misstates the burden of proof by omitting the
      necessity to prove each element of each offense beyond a
      reasonable doubt.

Motion, 8/2/16, at 2.

      While no order appears on the docket denying Appellant’s motion, the

trial court clearly did so, as its jury charge tracked the suggested instruction

quoted above:

      The testimony of the victim standing alone if believed by you is
      sufficient proof upon which to find the defendant guilty. The
      testimony of the victim in a case such as this need not be
      supported by other evidence to sustain a conviction. Thus, you

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      may find the defendant guilty if the testimony of the victim
      convinces you beyond a reasonable doubt that the defendant is
      guilty.

N.T., 8/9-10/16, at 160-61.       Appellant objected following the close of

instructions, thereby preserving his challenge.

      Preliminarily, we note that Appellant’s brief advances an argument that

substantively aligns with the argument presented in his pre-trial motion. To

wit, Appellant maintains that an accurate charge requires the judge to

instruct the jury that the testimony of the victim must still prove each

element of the crimes beyond a reasonable doubt, as opposed to simply

believing the victim in a generic sense. “They believe the victim - enough to

convict. But one of the elements is missing - cannot convict. This illustrates

the problem with the instruction given in this case.” Appellant’s brief at 25.

      Where Appellant’s current argument departs from his pre-trial motion

is in the remedy.     Appellant’s pre-trial motion did not assert that the

instruction could be saved through modification; rather, he requested that

the entire instruction be excluded.       “[T]he defense requests that this

Honorable Court exclude Jury Instruction 4.13b, as it is misleading and

unfairly prejudices the jury against the defendant.”      Motion, 8/2/16, at 4.

On appeal, Appellant now argues that the standard jury instruction should

have been altered as follows:

      A completely correct statement of the law would include the
      proviso that a victim's testimony, if believed by the jury, and if it
      establishes each element of the crimes charged beyond a
      reasonable doubt, can be enough for a conviction. Not including

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       the second clause above limits the defendant's rights to due
       process and a fair trial, and also compromises the
       Commonwealth's burden of proving each element of a crime
       beyond a reasonable doubt.

Appellant’s brief at 26.

       Arguably, we could find his current claim waived as it suggests that

the trial court could have remedied the error through a modification,

whereas he requested that the trial court simply exclude the instruction in its

entirety.3 We nevertheless decline to do so, as Appellant’s argument affords

no relief.

       As quoted, our standard of review asks whether the charge “in its

entirety . . . fairly conveys the legal principles at issue.” Rainey, supra at

243. We find that the instructions, read as a whole, satisfy that test. As

Appellant concedes, the trial court “reminded the jury of the presumption of

innocence, and that the Commonwealth ‘always had the burden of proving

each and every element of the crimes charged beyond a reasonable doubt.’”

Appellant’s brief at 24 (citations to transcript omitted).

       Appellant nevertheless maintains that the jury was faced with

contradictory instructions, as it could have found that C.D. was generally

believable, thereby permitting a conviction, even though it may not have

found his testimony credible with respect to one or more elements of the
____________________________________________


3 We also note that Appellant did not present any type of due process
challenge in his motion.




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crimes. This ascribes a level of incompetence to the jury that our system

flatly rejects. “It is well settled that the jury is presumed to follow the trial

court’s instructions.” Commonwealth v. Cash, 137 A.3d 1262, 1280 (Pa.

2016). When read as a whole, and not in isolation, the jury was correctly

informed that it was required to find that the Commonwealth satisfied each

element of all crimes beyond a reasonable doubt. The trial judge informed

the jury of that necessity at the close of its charge.    “[You must] thereby

decide whether or not the Commonwealth has met its burden of proving the

defendant guilty beyond a reasonable doubt.” Id. at 165. The jury was also

informed of the same principle at the beginning of the charge.          “[I]f the

Commonwealth does meet the burden of proof beyond a reasonable doubt,

then your verdict should be guilty.” Id. at 154. Therefore, when read as a

whole, the instructions “adequately and accurately reflect[ed] the law and

[were] sufficient to guide the jury properly in its deliberations.”     Rainey,

supra at 243. We therefore find no error.4

       Finally, we address Appellant’s claim that his SVP designation must be

reversed pursuant to Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super.

2017). As this Court has explained,


____________________________________________


4 Furthermore, Appellant’s speculation that the jury may have been led to
convict based solely on the idea C.D.’s testimony was generally believable is
severely undermined by the jury’s verdict, as it acquitted him of rape of a
child, while finding him guilty of the remaining crimes.



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       Butler applied Commonwealth v. Muniz, ––– Pa. ––––, 164
       A.3d 1189 (2017), which held that the sexual offender
       requirements under the Sexual Offender Registration and
       Notification Act, including its SVP framework, constitute
       punishment. Butler determined that, as a result of Muniz, the
       SVP procedure is subject to the constitutional requirement that
       the facts constituting that punishment must be found by a fact-
       finder beyond a reasonable doubt. Thus, 42 Pa.C.S.
       § 9799.24(e)(3), which requires the trial court to find the
       relevant facts by clear and convincing evidence, was deemed
       unconstitutional. Id. at 1218.

Commonwealth v. Tighe, 184 A.3d 560, 583 (Pa.Super. 2018).

        The Commonwealth, while conceding that Butler renders Appellant’s

SVP designation illegal and implicates the legality of sentence, claims that

this issue is not before the court since the SVP finding occurred after his

judgment of sentence was imposed. In the Commonwealth’s view, the SVP

order is a separate order from which the current notice of appeal does not

lie.   See Commonwealth v. Whanger, 30 A.3d 1212, 1215 (Pa.Super.

2011) (“The sentencing order was one thing; the SVP order was another.”).

According to the Commonwealth, Appellant must raise this claim in collateral

proceedings.

       We disagree.    The Commonwealth’s citation to Whanger fails to

address the changes in law occasioned by Muniz and Butler.         We see no

reason to ignore the fact that the later SVP hearing is now considered part of

Appellant’s sentence. While we recognize there is a procedural irregularity

occasioned by the lack of a separate notice of appeal to the SVP order, we




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decline to defer this issue to collateral review.5           The Commonwealth’s

reliance upon prior precedents deeming an SVP order a separately

appealable order ignores case law that has abrogated those holdings. As the

law currently stands, SORNA constitutes criminal punishment, which

necessarily includes the SVP framework employed by the trial court at the

time of Appellant’s SVP hearing.               We see no reason to waste judicial

resources by forcing Appellant to raise this claim in collateral proceedings.

We therefore vacate the SVP portion of Appellant’s sentence.

       Finally, we note that Appellant was convicted of 18 Pa.C.S. § 3123,

which is classified as a Tier III offense and requires lifetime registration.

See 42 Pa.C.S.A. § 9799.14(d)(4). Thus, although our vacating Appellant’s

SVP designation does not alter the length of his registration requirements,

we remand for the trial court to inform Appellant of his correct reporting

obligations.



____________________________________________


5  We also add that the Commonwealth’s suggestion poses its own set            of
irregularities. Had Appellant sought collateral review while his appeal         is
pending before this Court, the PCRA court would have been compelled            to
find that it lacked jurisdiction since his direct appeal from his judgment     of
sentence precluded the filing of a PCRA petition.

Therefore, according to the Commonwealth, the PCRA court could not
address the legality of sentence due to this Court having jurisdiction over his
criminal sentence, while we simultaneously cannot disturb the same criminal
sentence because we also lack jurisdiction. It cannot be that Appellant’s
SVP designation exists in some phantom zone, unreviewable by any court.



                                          - 19 -
J-A02006-18


     SVP designation vacated. Judgment of sentence affirmed in all other

respects. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2018




                                  - 20 -
