J-S85006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

RAFAEL WILKINSON SMALLS

                        Appellant                    No. 100 EDA 2016


         Appeal from the Judgment of Sentence December 4, 2015
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0004820-2014


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                       FILED FEBRUARY 13, 2017

      Appellant, Rafeal Wilkinson Smalls, appeals from the judgment of

sentence entered after a jury convicted him of one count each of indecent

assault – victim under 13, corruption of minors, and endangering the welfare

of a child. At issue in this appeal is the admittedly murky procedural status

of a sexually violent predator (“SVP”) hearing pursuant to 42 Pa.C.S.A. §

9792. Pursuant to one line of our precedent, SVP determinations are

collateral consequences to a judgment of sentence, but under a separate line

are considered a component of the judgment of sentence. Smalls contends

that this unique procedural status allows him to not only raise the

effectiveness of his hearing counsel on direct appeal, but also a challenge to

the weight of the evidence presented at the hearing, despite not raising the

issue until his Rule 1925(b) statement of matters complained of on appeal.
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After careful review, we conclude that Smalls is entitled to file post-sentence

motions nunc pro tunc, and therefore vacate and remand for further

proceedings.

      After the jury convicted Smalls, the Commonwealth requested a SVP

hearing. Smalls retained new counsel for the hearing. At the hearing, the

Commonwealth presented the expert testimony of Jennifer Hahn, Ph.D., who

opined that Smalls suffered from pedophilic personality disorder, and

furthermore was likely to reoffend. Dr. Hahn therefore testified that Smalls

qualified as an SVP under the statute.

      Smalls presented the expert testimony of Frank M. Dattilio, Ph.D. Dr.

Dattilio opined that Smalls suffered from histrionic personality disorder, not

pedophilic personality disorder. As a result, Dr. Dattilio testified that Smalls

was unlikely to reoffend, and therefore did not qualify as an SVP under the

statute.

      The trial court found that Smalls is a SVP and proceeded to impose

sentence on the convictions. Counsel for Smalls did not file any post-

sentence motions. Smalls subsequently retained new counsel for appellate

purposes, and this timely appeal followed.

      On appeal, Smalls raises three challenges, all concerning the trial

court’s conclusion that he is a SVP. We do not reach his challenge to the

sufficiency of the evidence supporting the trial court’s finding, as we

conclude that Smalls is entitled to file post-sentence motions nunc pro tunc,


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limited to the two other issues he has raised on appeal. In those two issues,

he argues that the trial court’s finding was against the weight of the

evidence, and furthermore, that his counsel during the SVP hearing rendered

ineffective assistance.

      It is true, as both the trial court and the Commonwealth point out, that

this Court has previously held that a failure to file post-sentence motions

waives a challenge to the weight of the evidence supporting a finding that an

appellant is a SVP. See Commonwealth v. Ratushny, 17 A.3d 1269, 1272

(Pa. Super. 2011). The Ratushny panel relied upon precedent finding

waiver where weight of the evidence claims challenging convictions and their

subsequent judgments of sentence were not raised in post-sentence

motions. See id., (citing Commonwealth v. O’Bidos, 849 A.2d 243, 252

(Pa. Super. 2004)).

      The O’Bidos panel, in turn, relied upon our Rules of Criminal

Procedure. Rule 607 requires a defendant to raise “a claim that the verdict

was against the weight of the evidence” on the record in the trial court prior

to the filing of an appeal. The Ratushny panel therefore implicitly held that

an SVP determination was a criminal verdict.

      However, this Court subsequently held, en banc, that “a challenge to

the classification of the defendant as a SVP is not a challenge to the

conviction or sentence.” Commonwealth v. Masker, 34 A.3d 841, 843-844

(Pa. Super. 2011) (en banc). The Masker panel reached this conclusion by


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referencing Commonwealth v. Leidig, 956 A.2d 399, 406 (Pa. 2008), in

which    our   Supreme    Court   held    that   the   consequences   of   a   SVP

determination are collateral, not direct, consequences of a conviction. See

Masker, 34 A.3d at 844. As a result, the Masker panel held that challenges

to any aspect of the imposition of SVP status are not cognizable under the

Post Conviction Relief Act (“PCRA”).

        Additionally, this Court has held that SVP determinations do not

modify judgments of sentence. See Commonwealth v. Whanger, 30 A.3d

1212, 1215 (Pa. Super. 2011) (Colville, J. with Bowes, J. concurring to

address a jurisdictional argument raised in the dissent filed by Lazarus, J.).

Despite this, this Court has consistently held that determination of SVP

status is “a component of the judgment of sentence” in relevant cases.

Commonwealth v. Schrader, 141 A.3d 558, 562 (Pa. Super. 2016)

(citation omitted).

        Thus, the exact procedural posture of SVP proceedings is ambiguous

and arguably unique. In Whanger, Judge Bowes’s concurring opinion

highlights the unsettled nature of these proceedings.

        The Harris Court, however, found that SVP status, although
        collateral and not punishment, is part of the judgment of
        sentence. Therefore, an argument can be made that 42
        Pa.C.S.A. § 5505 [providing that a court has only 30 days from
        entry in which to modify an order] is irrelevant, as the judgment
        of sentence was not finalized until the court entered the SVP
        order. Seemingly, if judgment of sentence is not final until the
        entry of the SVP order, then the dissent’s jurisdictional position
        largely disappears. Assuming arguendo that judgment of
        sentence is final without regard to the SVP status determination,

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     a position with which the Harris Court expressly disagreed, the
     dissent’s position still fails.3
         3
           Although the Harris Court determined that a judgment
         of sentence included the court’s Megan’s Law status
         determination, it did not conclude that the judgment of
         sentence was final after the assessment was completed
         and the Commonwealth notified the defendant that he
         would not be subject to the SVP requirements of Megan’s
         Law. Rather, as noted above, it held that judgment of
         sentence was final ninety days after our Supreme Court
         remanded for the SOAB assessment. This consequently
         does not speak to the situation where a defendant is
         determined to be an SVP after sentencing. Therefore,
         Harris does not answer the question of when a defendant
         must appeal from his judgment of sentence in a situation
         such as the one presented herein, i.e., within thirty days
         of sentencing when no post-sentence motion is filed,
         thirty days after the resolution of any timely post-
         sentence motion, or thirty days from the entry of the SVP
         order. The resolution to this query would seem to revolve
         around whether the SVP order renders the judgment of
         sentence final. For its part, the Commonwealth has noted
         this procedural anomaly, but declined to present
         substantive argument relative to when is the proper time
         to appeal.

30 A.3d at 1219 (Bowes, J. concurring).

     Thus, it is true that imposition of SVP status does not constitute a

conviction or sentence, but it is also true that the SVP determination is a

component of a judgment of sentence. Discrepancies in the imposition of

SVP status are not reviewable under the PCRA, but the Rules of Criminal

Procedure are applicable, and the imposition of SVP status is reviewed on

direct appeal from the judgment of sentence.

     Citing to these unusual circumstances, Smalls argues that we should

follow our Supreme Court’s precedent as set forth in In re J.B., 106 A.3d 76

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(Pa. 2014). There, the Supreme Court addressed an ambiguity in post-

disposition practice in juvenile delinquency cases. A juvenile had been

adjudicated delinquent for murdering a pregnant woman and her unborn

child. The juvenile did not file a post-dispositional motion, but alleged that

the adjudications were against the weight of the evidence for the first time

in his Rule 1925(b) statement.

      The juvenile court did not find J.B.’s weight claim waived, and instead

wrote an opinion explaining that it did not believe that the adjudications

were against the weight of the evidence. On appeal to this Court, the

Commonwealth argued that the weight argument was waived, since the

juvenile had not presented it to the juvenile court in the first instance. This

Court disagreed, and ultimately vacated the dispositional order, concluding

that the juvenile court had palpably abused its discretion in entering a

verdict that was “plainly contrary to the evidence.”

      The Commonwealth appealed to the Supreme Court of Pennsylvania.

The Supreme Court responded to the Commonwealth’s waiver argument by

noting that “J.B. did, however, present his weight of the evidence claim to

the juvenile court in his Pa.R.A.P. 1925(b) statement.” J.B., 106 A.3d at 96.

The Court observed that “[t]he Juvenile Rules of Court Procedure do not, at

present, specify how a juvenile who has been adjudicated delinquent must

present a weight of the evidence claim to the juvenile court so that the claim

is preserved for appellate review.” Id. The Court also opined that the


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absence of an “avenue of collateral relief for J.B. provides a stronger reason

to decline to impose waiver.” Id., at 98. As a result, the J.B. Court

remanded the case to the juvenile court to allow J.B. to file a post-

dispositional motion nunc pro tunc. See id., at 99.

      Here, we are presented with a similar situation where our precedent

has created ambiguity regarding when an appellant must present issues of

weight and ineffective assistance of counsel to the trial court. The

Commonwealth      argues   that   Rule   607(A)   requires   waiver.   As   noted

previously, however, Rule 607(A)’s reference to “the verdict” renders it

inapplicable, under our precedent, to challenges concerning the imposition of

SVP status. Ratushny was implicitly overruled by this Court’s subsequent en

banc decision in Masker.

      Despite this, SVP findings, as this appeal demonstrates, are considered

part and parcel of a judgment of sentence. However, similar to J.B., there

are no avenues of collateral relief available to appellants to otherwise

vindicate their rights in SVP proceedings after a finding of waiver.

      As such, we must agree with Smalls that J.B. requires a remand to

provide him the ability to file post-sentence motions nunc pro tunc raising

these issues with the trial court. We do not believe that the trial court’s

failure to address the weight claim in its opinion on appeal constitutes a

dispositive distinction from J.B. We therefore remand the case to the trial

court to allow Smalls the opportunity to file the appropriate post-sentence


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motions nunc pro tunc. This decision does not affect any aspect of the

judgment of sentence other than the imposition of SVP status.

     Judgment of sentence vacated. Case remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




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