J-A30014-12

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :       IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                          Appellee           :
                                             :
             v.                              :
                                             :
DAVID JONATHAN WEAVER,                       :
                                             :
                          Appellant          :       No. 489 MDA 2012


      Appeal from the Judgment of Sentence Entered December 19, 2011,
     In the Court of Common Pleas of Lancaster County, Criminal Division,
        at Nos. CP-36-CR-0000183-2011 and CP-36-CR-0000184-2011.


BEFORE: SHOGAN, LAZARUS and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED SEPTEMBER 23, 2014

       Appellant, David Jonathan Weaver, appeals from the judgment of

sentence entered following his conviction of numerous counts of rape and

indecent sexual assault. This case returns to this Court on remand from our

Supreme     Court   for   further    consideration    in   light   of    its   opinion   in

Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013).1                        Upon review, we



remand to the trial court for resentencing.

       The trial court summarized the history of this case as follows:




1
    In Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), our Supreme

because the enacting legislation violated the Single Subject Rule.                 Id. at
605, 616.
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          The charges in this matter stemmed from nine years of
     [Appellant] sexually violating his minor stepdaughter, K.H.
     [Appellant] began his course of inappropriately touching K.H.
     when she was nine years old. At that time, [Appellant] had been

     two   years.    [Appellant]   and   nine-year-old   K.H.   were   in


     Over time, the contacts escalated to vaginal and anal
     penetration. The conduct continued for the following nine years
     until K.H. left for college.

           The year prior to K.H. leaving for college, [Appellant] went
     on a hunting trip with his friend, Tim Heller.         [Appellant]
     discussed his inappropriate sexual acts on K.H. with Mr. Heller.
     Sometime thereafter, Mr. Heller disclosed this information with a
     police officer, who was also his brother-in-law. His brother-in-
     law relayed the information to the Lancaster Bureau of Police
     and an investigation into the matter began.

           In the fall of 2010, K.H. was unaware of the investigation
     and proceeded to college.          When she came home for
     Thanksgiving break, Detective Harnish reached K.H. by phone.
     She agreed to meet him at the police station. During the
     interview, K.H. discussed what [Appellant] did to her, but she
     did not go into detail. She did not wish to press charges at that
     time. Thereafter, K.H. went back to college until Christmas
     break. When K.H. returned to Lancaster, she told her mother
     that [Appellant] raped her.       On December 22, 2010, K.H.
     returned to the police station where she spoke to Detective
     Harnish and Officer Ramos. She provided more detail than she
     had during her earlier interview in November.

           As part of her meeting, she consented to conducting
     wiretap telephone conversations with [Appellant]. K.H. made a
     series of three telephone conversations with [Appellant]. K.H.
     explained that she was in therapy at college and needed help
     remembering everything that happened to her. [Appellant] told
     K.H. that everything started when she was twelve. He expressed
     remorse and [attributed] his actions to weakness, but did not




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J-A30014-12



     her several times to not talk to her mother and to make sure she
     saw a private counselor that would keep sessions confidential.

            On December 22, 2010, [Appellant] was charged with
     indecent assault1 (five counts), indecent exposure,2 aggravated
     indecent assault,3 rape4 (two counts), statutory sexual assault,5
     involuntary deviate sexual intercourse6 (five counts), sexual
     assault7 (three counts), criminal attempt at aggravated indecent
     assault,8 corruption of minors,9 and unlawful contact with a
     minor,10 all related to incidents with K.H. [Appellant] proceeded
     to trial on July 11, 2011. At trial, the Commonwealth presented
     Mr. Heller, who testified about his hunting trip with [Appellant]
     and the disclosures [Appellant] made during the trip. Then K.H.
     took the stand. She recounted numerous sexual assaults and
     inappropriate actions by [Appellant]. K.H. was able to recall
     different incidents of sexual contact with specificity.       She
     explained that although many of the incidents blended together
     because of the numerous occurrences, she was able to
     remember certain encounters because they coincided with
     significant times in her life.
           1
             18 Pa.C.S.A. § 3126(a).
           2
             18 [Pa.C.S.A.] § 3127(a).
           3
             18 Pa.C.S.A. §3215(a)(7).
           4
             18 Pa.C.S.A. § 3121(a)(1).
           5
             18 Pa.C.S.A. §3122.1.
           6
             18 Pa.C.S.A. § 3123(a).
           7
             18 Pa.C.S.A. § 3124.1.
           8
             18 Pa.C.S.A. § 901(a).
           9
             18 [Pa.C.S.A.] § 6301 (a)(1).
           10
              18 Pa.C.S.A. § 6318(a)(1).

          K.H. also authenticated her taped telephone conversations,
     which the Commonwealth then played for the jury.           K.H.

     when it was flaccid. Detective Harnish l
     description of the birthmark with photographs obtained pursuant
     to a warrant. Detective Harnish, the investigating officer in this

     testimony. As a witness, he told the jury t
     testimony was consistent with what she told him during their
     December 2010 meeting at the police station.



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J-A30014-12




           Prior to closing arguments, defense counsel made
     numerous motions for judgment of acquittal. Defense counsel
     argued, regarding various counts, that the testimony presented
     lacked specificity compared to the allegations in the Information.
     Three counts were ultimately dismissed. Regarding the criminal
     attempt     at   aggravated    indecent    assault    count,   the
     Commonwealth asserted that [Appellant] attempted to insert his
     fingers into the vagina of K.H. in August 2010. Defense counsel


     The Court agreed and this count was dismissed.

            Regarding two counts of indecent assault by forcible
     compulsion, defense counsel argued the elements as alleged
     were not made out by the evidence presented.                 The
     Commonwealth responded that the Information listed the correct
     statute and grading, but contained a technical defect in that the
     definitions were incorrect. The Commonwealth initially sought to

     counts were dismissed by agreement of the parties. The
     remaining seventeen counts were renumbered, also by
     agreement of the parties.

            Following deliberations, the jury found [Appellant] guilty
     on all but three counts, indecent assault without consent,
     indecent sexual assault by forcible compulsion, and rape by
     forcible compulsion.       The Court ordered a presentence
     investigation and a sex offender assessment. The Pennsylvania

     opinion that [Appellant] met the criteria for classification as a
     sexually violent predator (
     December 19, 2011, [Appellant] proceeded to a hearing on his

     assessment and a [pre]-sentence investigation, the Court
     deemed [Appellant] a sexually violent predator and sentenced
     him to an aggregate term of fourteen to thirty years of state
     imprisonment.

           On December 29, 2011, [Appellant] filed a motion for
     post-sentence relief which was denied by Order of January 24,




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J-A30014-12



      2012. [Appellant] filed the instant timely appeal on February 22,
      2012.

Trial Court Opinion, 4/26/12, at 1-4.

      On December 3, 2012, this Court affirmed in part and vacated in part

the judgment of sentence of the trial court in an unpublished memorandum

decision.   Commonwealth v. Weaver, 489 MDA 2012, 64 A.3d 9 (Pa.

Super. filed December 3, 2012) (unpublished memorandum).                   Specifically,



concerning restitution and remanded for resentencing. However, this Court



Law III due to its passing through the General Assembly in violation of the
                       2



except for the portion of the original sentence dealing with restitution.

      Thereafter, on January 2, 2013, Appellant filed with our Supreme

Court a petition for allowance of appeal.           On July 11, 2014, our Supreme



pertaining to the co

previous    decision   in   this   matter,    and   remanded   to   this    Court   for

reconsideration in light of Neiman.           Commonwealth v. Weaver, 7 MAL




2
           hall be passed containing more than one subject, which shall be
clearly expressed in its title, except a general appropriation bill or a bill



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J-A30014-12



2013, ___ A.3d ___, (Pa. filed July 11, 2014).3 The Supreme Court denied

allocator

order granted allowance of appeal only for reconsideration of our decision in

                                               Neiman, we confine our review to

that issue.

        As Appe




3
    The complete text of our Supreme C

              AND NOW, this 11th day of July, 2014, the Petition for
        Allowance of Appeal is GRANTED, LIMITED to the following issue
        as stated by [Appellant]:

              Whether, if Act 152 violates the single-subject rule of
              Article III, Section 3 of the Pennsylvania

              severance of the remaining portions of Act 152 of
              2004.


        decision in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013),
        to the extent th
        and the matter is REMANDED for reconsideration in light of
        Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013). Allocatur is
        DENIED as to all remaining issues.

              Justice Stevens notes his dissent to the order, as he would

        Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), which struck
        down Act 152, P.L. 1243 No. 152 (2004) as unconstitutional
        under the single subject rule of Article III, Section 3 of the
        Pennsylvania Constitution.

Supreme Court Order, 7 MAL 2013, 7/11/14, at 1.



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J-A30014-12



duly   enacted    legislation   carries   with   it   a   strong   presumption   of

                     Commonwealth v. Turner, 80 A.3d 754, 759 (Pa. 2013)



not intend to violate the Constitution of the United States or of this

                                                             Commonwealth v.

Baker, 78 A.3d 1044, 1050 (Pa. 2013) (quoting 1 Pa.C.S. § 1922(3)).

              In conducting our review, we are guided by the principle
       that acts passed by the General Assembly are strongly presumed
       to be constitutional, including the manner in which they were
       passed. Thus, a statute will not be found unconstitutional unless
       it clearly, palpably, and plainly violates the Constitution. If there
       is any doubt as to whether a challenger has met this high

       constitutionality.

Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (quotation

marks and citations omitted). As the constitutionality of a statute presents a

pure question of law, our standard of review is de novo and our scope of

review is plenary.

       In support of the issue currently before us on remand, Appellant notes




                                                                   ant argues that

Article III, Section 3 of the Pennsylvania Constitution prohibits the General

Assembly from passing a law containing more than one subject - commonly




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J-A30014-12



law enacting



sexually violent predator must be vacated. Id. at 13.

      As Appellant properly notes, this Court had occasion to consider the



restriction against the passage of bills containing more than one subject.

                       -13 (citing Commonwealth v. Neiman, 5 A.3d 353

(Pa. Super. 2010 (en banc)). This Court held in Neiman

III is constitutional on the basis that the other provisions were not germane

to the over-arching subject-

regulation of sexual predators. Neiman, 5 A.3d at 360.

      In particular, we began our analysis in Neiman with a survey of case

law applying the single subject rule.     Id. at 356-357. We then noted our




      which fairly constitute parts of a scheme to accomplish a single

      provisions which have no proper legislative relation to each
      other, and are not part of the same legislative scheme, may not
      be joined in the same act.

Id.   at   357   (quoting   Payne   v.    School   District   of   Borough   of

Coudersport, 31 A. 1072 (Pa. 1895)).           Upon reviewing the legislative



92 pertained to the Deficiency Judgment Act. Id. at 358. Relying on our



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J-A30014-12



                                     Pennsylvanians       Against    Gambling

Expansion Fund, Inc. et al. v. Commonwealth of Pennsylvania, et al.,

877 A.2d 383, 393 (Pa. 2005), the en banc Court in Neiman held that,

although the disparate provisions did not address the same subject, the

extraneous provisions could be severed from the centerpiece provisions



were held to be constitutional. Conversely, the extraneous provisions were

stricken as violative of Article III, Section 3 of the Pennsylvania Constitution.

Neiman, 5 A.3d at 359-360. Such was the state of the law at the time of



      Consequently, we declined Appel

        en banc holding in Neiman



                          en banc holding in Neiman, and we concluded

          s issue was without merit. However, our Supreme Court accepted

allowance of appeal from our en banc decision in Neiman, determined that



Law III along with other provisions of Act 152, reversed the order in this

        en banc ruling, and struck down, in its entirety, Act 152, which




                                       -9-
J-A30014-12



Pennsylvania Constitution. See Commonwealth v. Neiman, 84 A.3d 603

(Pa. 2013).

                                                        Neiman striking the

entirety of Act 152 as violative of the Pennsylvania Constitution, we are



determination as a sexually violent



Hence, we vacate the judgment of sentence of the trial court entered



Su



stands.

     Judgment of sentence affirmed in part and vacated in part.       Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2014




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