J-S50026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD BRADON SMITH                        :
                                               :
                       Appellant               :   No. 171 WDA 2018

            Appeal from the Judgment of Sentence January 3, 2018
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0001771-2016


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

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 09, 2018

        Donald Bradon Smith appeals from the judgment of sentence imposed

on January 3, 2018, in the Court of Common Pleas of Fayette County following

a jury verdict finding him guilty on charges of Involuntary Deviate Sexual

Intercourse, Statutory Sexual Assault (11 years older than complainant), two

counts of Sexual Assault, and two counts of Aggravated Indecent Assault

(complainant less than 16).1 Smith received an aggregate sentence of nine

to eighteen years’ incarceration. In this timely appeal, Smith argues only that

the evidence was insufficient to support the verdicts. After a thorough review

of the submissions by the parties, relevant law, and the certified record we

affirm.    However, our review of this matter also indicates that Smith was

subjected to an illegal sentence pursuant to Commonwealth v. Butler, 173

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1   18 Pa.C.S. §§ 3123(a)(7), 3122.1(b), 3124.1, and 3125(a)(8), respectively.
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A.3d 1212 (Pa. Super. 2017) (determination a defendant is a sexually violent

predator by trial court based on clear and convincing evidence is

unconstitutional) appeal granted, 2018 Pa. Lexis 3906 (July 31, 2018), when

the trial court, sua sponte, determined Smith to be a sexually violent predator.

Accordingly, we vacate the determination Smith is a sexually violent predator

as well as that portion of his sentence requiring he attend monthly counseling

sessions for the rest of his life. We remand this matter for a determination of

the applicability of the amendments to the law, found at 42 Pa.C.S. § 9799.51

et seq.2

        Due to our resolution of this matter, we need not recite the underlying

facts of this matter in detail.       At trial, B.N.C., a minor who lived with her

mother and resided in the same dwelling as Smith, testified Smith sexually

assaulted her in a variety of manners on multiple occasions.

        In this timely appeal, Smith claims the evidence presented at trial was

insufficient to support his convictions due to the “speculative and unreliable

nature” of the testimony of B.N.C. This claim has been waived.

        Initially, we note that a challenge to credibility of the evidence is a claim

regarding the weight of the evidence, not the sufficiency.          This Court has

explained:

        This argument goes to the credibility of the witness’s testimony,
        and is, therefore, not an attack on the sufficiency of the evidence,
        but an allegation regarding the weight it should have been
        afforded. Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa.
____________________________________________


2   Title 42, Subchapter I.

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       Super. 2011) appeal denied, 613 Pa. 663, 34 A.3d 828 (2011)
       (The appellant's “sufficiency” argument directed entirely to the
       credibility of the Commonwealth’s chief witness challenged the
       weight, not the sufficiency, of the evidence).

Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013).

       Because Smith has made no arguments as to the sufficiency of the

evidence of the crimes of which he was convicted, the challenge to the

sufficiency of the evidence has been waived for failure to develop the

argument.

       The failure to properly develop a claim renders an issue waived.
       See [Commonwealth v.] Williams, supra, 959 A.2d [1252] at
       1258 [(Pa. Super. 2008)]; Commonwealth v. Ellis, 700 A.2d
       948, 957 (Pa. Super. 1997) (holding waiver results if an appellant
       fails to properly develop an issue or cite to legal authority to
       support his contention in his appellate brief).

Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017). See

also Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003) (In

conducting our review, we consider all of the evidence actually admitted at

trial and do not review a diminished record.)3

       Significantly, Smith never raised a claim regarding the weight of the

evidence before the trial court. It is well-settled law that a claim asserting the

verdict is against the weight of the evidence and must be raised before the

trial court, either orally at sentencing or in a written post-sentence motion.

Smith did neither. Therefore, his weight of the evidence claim has also been

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3 Nonetheless, we note the trial court cogently addressed the sufficiency of
the evidence. See Trial Court Opinion at 5-8. We found no error in that
discussion.

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waived. See Pa.R.Crim.P. 607; Roche, 153 A.3d at 1071 (Pa. Super. 2017)

(challenge to the weight of the evidence must be raised in a timely pre or

post-trial motion). Additionally, Smith failed to raise a weight of the evidence

claim in his Pa.R.A.P. 1925(b) statement. Claims not raised in a defendant’s

Pa.R.A.P. 1925(b) statement are waived. See Commonwealth v. Smith,

146 A.3d. 257, 262 (Pa. Super. 2016) (issues not included in 1925(b)

statement are waived). This provides another basis for our finding of waiver.

       Although Smith is not entitled to relief on the sufficiency of the evidence

claim he raised, Smith was found, sua sponte by the trial court,4 to be a

sexually    violent   predator     (SVP)       under   a   constitutionally   infirm   law.

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (Sex Offender

Registration and Notification Act (SORNA) is punitive in nature) and

Commonwealth v. Butler, supra, combined to make 42 Pa.C.S. §

9799.24(e)(1) unconstitutional.         Accordingly, any SVP determination made

under that law must be vacated. Along with the SVP determination, Smith

was ordered to attend monthly counseling sessions for the rest of his life.




____________________________________________


4 At the sentencing hearing, the Commonwealth informed the trial court it
would not be proceeding with the SVP determination because of the
moratorium due to the uncertainty of the constitutionality of the law. See
N.T. Sentencing Hearing, 1/3/2018, at 2. Nonetheless, the trial court, without
hearing any evidence on the matter, determined D.B.S to be a sexually violent
predator. Id. at 5.


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Because this aspect of his sentence is based exclusively on his SVP status, it

too must be vacated.

      We recognize that the legislature has enacted 42 Pa.C.S. § 9799.51 et

seq. (Subchapter I), to replace the constitutionally infirm sections of

Subchapter H of Title 42.         Accordingly, we remand this matter for

determination of the applicability of Subchapter I to this matter.

      Judgment of sentence affirmed in part, vacated regarding Smith’s SVP

status and attendant conditions. This matter is remanded for action consistent

with this decision. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2018




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