J-S36043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GERONAMI PAUL KATTUPALLI                   :
                                               :
                       Appellant               :   No. 1878 MDA 2018

          Appeal from the Judgment of Sentence Entered July 23, 2018
       In the Court of Common Pleas of Centre County Criminal Division at
                         No(s): CP-14-CR-0001252-2016


BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                           FILED AUGUST 05, 2019

        Geronami Paul Kattupalli (Kattupalli) appeals from the judgment of

sentence imposed by the Court of Common Pleas of Centre County (trial court)

following his jury conviction of violation of the Radiation Protection Act, 35

P.S. §§ 7110.101- 7110.703 (Act).1 We affirm.


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1   35 P.S. § 7110.308, which provides as follows:

        (a) Summary offense.--Any person, other than a municipal
        official exercising his official duties, who violates any provisions of
        this act or any rules or regulations or order promulgated or issued
        hereunder commits a summary offense and shall, upon conviction,
        be sentenced to pay a fine not less than $100 and not more than
        $1,000 for each separate offense and in default thereof shall be
        imprisoned for a term of not more than 30 days. All summary
        proceedings under this act may be brought before any district
        justice or magistrate in the county where the offense was
        committed and to that end jurisdiction is hereby conferred upon


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       Kattupalli is a physician and owned and operated a clinic called Dr. Paul’s

Clinic. His conviction stems from directing his then medical assistant, Chelsey

Brown, to perform X-rays on patients even though she is not a licensed X-ray

technician. The trial court sentenced Kattupalli to pay a fine in the amount of

$32,500.00 and the costs of prosecution. After the trial court denied his post-

sentence motion, Kattupalli timely appealed.       Kattupalli and the trial court

complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).




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       district justices and magistrates, subject to appeal by either party
       in the manner provided by law.

       (b) Misdemeanor.--Any person, other than a municipal official
       exercising his official duties, who violates any provision of this act
       or any rule or regulation or order promulgated or issued
       hereunder, within two years after having been convicted of any
       summary offense under this act, commits a misdemeanor of the
       third degree and shall, upon conviction, be sentenced to pay a fine
       of not less than $1,000 but not more than $25,000 for each
       separate offense or imprisonment in the county jail for a period of
       not more than one year, or both.

       (c) Felony.--Any person who intentionally, knowingly or
       recklessly violates any provision of this act, or any rule or
       regulation or order of the department or any term or condition of
       any permit, and whose acts or omissions cause or create the
       possibility of a public nuisance or bodily harm to any person,
       commits a felony of the second degree and shall, upon conviction,
       be sentenced to pay a fine of not less than $2,500 but not more
       than $100,000 per day for each violation, or to a term of
       imprisonment of not less than one year but not more than ten
       years, or both.


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                                               I.

       Kattupalli first contends that the trial court erred in failing to rule that

Section 7110.308(c) of the Act is unconstitutional because it is void for

vagueness because it does not define the criminal offense in a way that

ordinary people can determine what conduct is prohibited. (See Kattupalli’s

Brief, at 14-20).2 First, he alleges that the felony section sets forth that a

defendant must “intentionally, knowingly, or recklessly” violate any provision

of the Act that somehow makes the summary mens rea for the summary the

same as the felony provision. He then contends that because the mens rea is

the same, whether a person is prosecuted for a felony or summary offense, is

left completely to the discretion of the prosecuting agency, leading to arbitrary

enforcement. (See id.).

       Preliminarily, we note the “general proposition that issues regarding

[t]he constitutionality of a statute can be waived.”         Commonwealth v.

Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014), appeal denied, 114 A.3d 416

(Pa. 2015) (citation omitted).           “An appellate court should not address

constitutional issues unnecessarily or when they are not properly presented



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2 “The constitutionality of a statute presents a question of law and this Court’s
review is plenary. A statute duly enacted by the General Assembly is
presumed valid and will not be declared unconstitutional unless it clearly,
palpably and plainly violates the Constitution. Accordingly, any party seeking
to overcome that presumption of validity bears a heavy burden of persuasion.”
J. & S.O. v. C.H., 206 A.3d 1171, 1174 (Pa. Super. 2019) (citations omitted).


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and preserved in the trial court for our appellate review.” Commonwealth

v. Berryman, 649 A.2d 961, 973 (Pa. Super. 1994), appeal denied, 663 A.2d

685 (Pa. 2005) (citation omitted). This Court cannot consider an appellant’s

constitutional arguments where he failed to raise them in pre-trial filings or

during trial.   See Commonwealth v. Danko, 421 A.2d 1165, 1167 (Pa.

Super. 1980).

       Instantly, Kattupalli’s pre-trial memorandum does not raise any

challenge to the Act and does not refer to the statutory provision at issue at

all.   (See Defendant’s Pretrial Memorandum, 3/14/18, at 1).          Although

Kattupalli made an oral motion to dismiss on the first day of trial, he argued

only that there was a constitutional due process violation because the term

“bodily harm” lacked a working definition.       (N.T. Trial, 3/19/18, at 7).

Therefore, we     may not    consider   Kattupalli’s remaining constitutional

arguments which he did not raise in a pre-trial motion or at trial because they

are waived. See Danko, supra at 1167.

       Kattupalli also maintains that Section 7110.308(c) is void for vagueness

because the terms “bodily harm” and “public nuisance” are not defined in the

Act.   (See id. at 16-17).      We note, “[t]he void-for-vagueness doctrine

requires that a penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited

and in a manner that does not encourage arbitrary and discriminatory

enforcement.” Commonwealth v. Mayfield, 832 A.2d 418, 422 (Pa. 2003)


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(citation omitted). “[A] statute which either forbids or requires the doing of

an act in terms so vague that men of common intelligence must necessarily

guess at its meaning and differ as to its application violates the first essential

of due process of law.” Id. (citation omitted). “Due process is satisfied if the

statute provides reasonable standards by which a person may gauge his future

conduct.”   Id. (citation omitted).    “It is well established that vagueness

challenges to statutes which do not involve First Amendment freedoms must

be examined in the light of the facts of the case at hand.”         Id. (citation

omitted). Additionally, “when ascertaining the meaning of a statute, if the

language is clear, we give the words their plain and ordinary meaning.”

Commonwealth v. DeNapoli, 197 A.3d 771, 776 (Pa. Super. 2018), appeal

denied, 206 A.3d 495 (Pa. 2019) (citation omitted).

      Instantly, we agree with the Commonwealth that the term “bodily harm”

is generally familiar and can be assigned its plain and ordinary meaning, i.e.,

that a patient’s body suffers a harm such as a physical ailment or injury. (See

Commonwealth’s Brief, at 16). We cannot conclude that the term is “so vague

that men of common intelligence must necessarily guess at its meaning[.]”

Mayfield, supra at 422. Thus, Kattupalli has not met his heavy burden of

demonstrating that Section 7110.308(c) of the Act is unconstitutional. See

J. & S.O., supra at 1174.




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                                               II.

       Citing to the United States Supreme Court’s decision in McCoy v.

Louisiana, 138 S.Ct. 1500 (2018), Kattupalli next claims trial court error in

the denial of his request for a new trial because trial counsel admitted

Kattupalli’s guilt in front of the jury without his consent.

       In McCoy, the defendant’s counsel conceded that his client committed

three murders during the guilt phase of a capital trial, despite the defendant’s

strong objection to any admission of guilt. See id. at 1505. The McCoy Court

held that criminal defendants have a Sixth Amendment right “to insist that

counsel refrain from admitting guilt, even when counsel’s experienced-based

view is that confessing guilt offers the defendant the best chance to avoid the

death penalty.” Id.3

       In contrast, in the instant case, a review of the record reflects that

defense counsel did not admit Kattupalli’s guilt. Instead, counsel expressly

stated “no crime was committed, and I am going to ask you to find Mr.

Kattupalli not guilty[.]” (N.T. Trial, 3/19/18, at 38). Although counsel did

concede that his client was “not compliant with the regulations[,]” counsel

qualified that admission by explaining that “this should be a case where Dr.


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3 The McCoy Court explained that counsel’s admission of a client’s guilt over
the client’s express objection is a structural error requiring a new trial. See
McCoy, supra at 1512. Kattupalli’s issue, therefore, poses a pure question
of law, to which we apply a de novo standard of review. See Commonwealth
v. Tejada, 188 A.3d 1288, 1292–93 (Pa. Super. 2018).


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Kattupalli receives a fine, not a criminal action[.]” (Id. at 38-39). Counsel

further explained that regulatory noncompliance should “not lead to criminal

charges     and    certainly    not    a   criminal   conviction,”   and   that   “the

Commonwealth’s case absolutely fails[.]” (Id. at 47-48). Thus, Kattupalli’s

claim that counsel admitted his guilt at trial is belied by the record, which

clearly shows that counsel instead repeatedly argued that criminal charges

should never have been brought in this case.

                                               III.

       Kattupalli’s final two issues challenge the propriety of the trial court’s

jury instructions.4 He first asserts that the court erred in failing to define two

terms included in the Act, i.e., “public nuisance” and “bodily harm.” (See

Kattupalli’s Brief, at 22-23). Kattupalli also contends that the court erred in

failing to make clear to the jury in either its oral instruction or the verdict slip

that it was required to unanimously find that Kattupalli’s conduct constituted

either a “public nuisance” or a “bodily harm.” (Id. at 24-25).

       It is well-settled that “[a] specific and timely objection must be made to

preserve a challenge to a particular jury instruction. Failure to do so results

in waiver.”    Commonwealth v. Proctor, 156 A.3d 261, 270 (Pa. Super.


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4 “[W]hen evaluating the propriety of jury instructions, this Court will look to
the instructions as a whole, and not simply isolated portions, to determine if
the instructions were improper. . . . Only where there is an abuse of discretion
or an inaccurate statement of the law is there reversible error.”
Commonwealth v. Johnson, 192 A.3d 1149, 1153 (Pa. Super. 2018),
appeal denied, 200 A.3d 440 (Pa. 2019) (citation omitted).

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2017), appeal denied, 172 A.3d 592 (Pa. 2017) (citation omitted); see also

Pa.R.Crim.P. 647(C) (“No portions of the [jury] charge nor omissions from the

charge may be assigned as error, unless specific objections are made thereto

before the jury retires to deliberate.”). Likewise, “the failure to object to an

improper verdict slip before deliberations also waives any complaint relating

thereto.” Commonwealth v. Dorm, 971 A.2d 1284, 1288 (Pa. Super. 2009)

(citation omitted).

      Here, the record reflects that defense counsel did not lodge a

contemporaneous objection to the trial court’s instruction on the elements of

the crime. (See N.T. Trial, 3/20/18, at 185). Further, after the court issued

the charge, defense counsel expressly stated: “Judge, I have no objection to

the charge.” (Id. at 194). Thus, Kattupalli’s challenge to the trial court’s

instructions fails.

      To the extent that Kattupalli claims error with regard to the verdict slip,

we agree with the Commonwealth that such argument is also waived. In his

appellate brief, Kattupalli fails to identify where in the record this contention

is preserved, and the portions of the record that he does reference do not

show any objection to the verdict slip. See Pa.R.A.P. 2119(c), 2101; (see

also Kattupalli’s Brief, at 24). This is especially problematic in light of the

Commonwealth’s contention that Kattupalli never objected to the verdict slip,

as well as the trial court’s observation that defense counsel did not seek to

add any specific question regarding the two alternatives to the verdict slip.


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(See Commonwealth’s Brief, at 5; 24-25; Trial Court Opinion, 10/16/18, at

6). In fact, the proposed verdict slip submitted by defense counsel prior to

trial is nearly identical to the verdict slip actually used by the trial court. (See

Defendant’s Pretrial Memorandum, 3/14/18, Exhibit A; Verdict Slip, 3/21/18).

Therefore, Kattupalli’s final issue fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2019




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