J-A21013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

LARRY MAZE,

                           Appellant                  No. 893 WDA 2016


        Appeal from the Judgment of Sentence Entered May 3, 2016
            In the Court of Common Pleas of Jefferson County
                        Criminal Division at No(s):
                         CP-33-CR-0000266-2014
                         CP-33-CR-0000599-2014
                         CP-33-CR-0000600-2014


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:               FILED NOVEMBER 20, 2017

     Appellant, Larry Maze, appeals from the aggregate judgment of

sentence of 86-270 years’ incarceration, imposed following his conviction for

numerous sexual offenses.       After careful review, we determine that both of

Appellant’s claims have been waived. However, for the reasons stated infra,

we reverse the order of the trial court designating Appellant as a sexually

violent predator (SVP).

     Given the nature of our disposition in this case, a detailed factual

summary is unnecessary. Briefly, Appellant was accused of numerous sex

crimes against three girls who were 12-13 years old at the time of

Appellant’s crimes.    Appellant’s conduct included groping and similar forms
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of molestation, as well as solicitation over social media for sexual contact

with one of the minors.

       For these acts, the Commonwealth charged Appellant in the three

above-captioned case numbers, one for each of the victims. At CP-33-CR-

0000266-2014 (266), the Commonwealth charged Appellant with fifteen

counts, including twelve counts of criminal solicitation of Chapter 31

offenses,1 18 Pa.C.S. § 902(a); as well as single counts of corruption of

minors, 18 Pa.C.S. § 6301(a)(1)(ii); unlawful contact with a minor, 18

Pa.C.S. § 6318(a)(1); and indecent assault, 18 Pa.C.S. § 3126(a)(7). At CP-

33-CR-0000599-2014 (599), the Commonwealth charged Appellant with

corruption of minors, unlawful contact with a minor, and three counts of

indecent assault (pursuant to subsection (a)(8)). At CP-33-C-0000600-2014

(600), the Commonwealth charged Appellant with corruption of minors,

unlawful contact with a minor, and six counts of indecent assault (pursuant

to subsection (a)(7)).

       Cases 266, 599, and 600 were consolidated for a single jury trial,

which began on June 15, 2015.             On June 16, 2015, the jury returned a


____________________________________________


1 Chapter 31 of Title 18 of the Crimes Code governs sexual offenses. The
crimes which were the target of these solicitation offenses are: rape of a
child, 18 Pa.C.S. § 3121(c); statutory sexual assault, 18 Pa.C.S. § 3122.1;
involuntary deviate sexual intercourse (two counts), 18 Pa.C.S. § 3123;
unlawful contact with a minor (3 counts), 18 Pa.C.S. § 6318; corruption of
minors (3 counts), 18 Pa.C.S. § 6301; and indecent assault (2 counts), 18
Pa.C.S. § 3126.



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verdict of guilty on all counts.      A bifurcated SVP hearing occurred on

December 11, 2015, and May 3, 2016, following which the trial court

determined that Appellant is an SVP. Appellant was also sentenced on May

3, 2016, to an aggregate term of 86-270 years’ incarceration.           Appellant

filed a timely post-sentence motion on May 13, 2016, which was denied by

the trial court on May 17, 2016. Appellant filed a timely notice of appeal,

and a timely, court-ordered Pa.R.A.P. 1925(b) statement.          The trial court

issued its Rule 1925(a) opinion on January 25, 2017.

      Appellant now presents the following questions for our review:

       I.   Should the Commonwealth have been permitted to
            perform a time-consuming skit during its case in chief,
            which was a re-enactment of a transcript of an alleged
            Facebook conversation between Appellant and one of the
            alleged victims[,] and done to get an emotional response
            [from] the jury, when it was the only supporting evidence
            that a crime occurred and its probative value was
            outweighed by a danger of unfair prejudice, confusing the
            issues, misleading the jury, undue delay, wasting time,
            and/or needlessly presenting cumulative evidence?

      II.   Should the case be remanded for resentencing in light of
            the fact that the sentence, the legal equivalent to a
            sentence of life without parole, is excessive considering
            that Appellant, who had a clean criminal record for 19
            years prior to the underlying offenses and never a prior
            sex offense in his life, was found guilty of offenses which
            involved no penetration of any kind and little actual
            physical contact with any of the victims?

Appellant’s Brief at 5.

      Appellant’s first claim is a challenge to the trial court’s discretion as to

the presentation of evidence, with regard to the manner by which



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Appellant’s inculpatory Facebook conversation with one of the victims was

presented to the jury.   Appellant argues that the prejudicial effect of the

manner of presentation of this evidence outweighed its probative value. The

trial court explains:

             [Appellant]   faults  the   court     for    "allowing the
      Commonwealth to perform a very time[-]consuming skit" to
      relay to the jury conversations he had with his oldest victim,
      B.P., on Facebook. The way it actually happened, though, was
      far different than the way he characterizes it[,] and was no more
      prejudicial than the alternative of having the jurors read the
      messages silently to themselves.

             By the time Chief Troy Bell testified, the jury had already
      heard from B.P. that she and [Appellant] had messaged one
      another privately on Facebook, that he sometimes asked her
      inappropriate questions through that venue, and that the
      messages in the Commonwealth's possession were accurate
      depictions of those conversations. When the district attorney
      later sought to publish their content to the jury, he asked
      permission to have Chief Bell read [Appellant]'s messages and
      his secretary, Sarah Neal, read B.P.'s messages. [Appellant]
      preferred that the jurors read the messages for themselves, but
      the [c]ourt overruled the objection. Thereafter, Chief Bell and
      Ms. Neal began reading the messages precisely as [Appellant]
      and his victim had written them. Neither reader attempted to
      dramatize the messages, and the district attorney only
      interjected to ask Chief Bell whether some of them coincided
      with other evidence the jury had already heard.

Trial Court Opinion, 1/25/17, at 1.

      The Commonwealth argues that Appellant waived this claim by failing

to object with any degree of specificity at trial. We agree. As noted by the

trial court above, the substance of the evidence in question had already

been admitted into evidence without objection.    While defense counsel did




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object to the manner of presentation, the grounds for his objection were

vague:

       THE COURT: Mr. White [Appellant’s counsel], any objection to
       that?

       MR. WHITE: Other than that I think the jury can read it on their
       own. It’s admitted into evidence. This would be for [effect],
       Your Honor.

N.T., 6/15/15, at 190.2 Now, on appeal, Appellant claims that the manner of

presentation of this evidence presented a “danger of unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence” under Pa.R.E. 403. Appellant’s

Brief at 10.

       Pa.R.E. 103(a) states, in pertinent part, as follows:

       (a) Preserving a Claim of Error. A party may claim error in a
       ruling to admit or exclude evidence only:

          (1) if the ruling admits evidence, a party, on the record:

               (A) makes a timely objection, motion to strike, or
               motion in limine; and

               (B) states the specific ground, unless it was
               apparent from the context;

Pa.R.E. 103(a) (emphasis added).




____________________________________________


2 The transcript indicates that the bracketed phrase actually read, “a fact.”
Id. We afford counsel the benefit of the doubt and assume he meant or
actually said “for effect” for the purposes of our analysis, even though he
makes no attempt in Appellant’s brief to correct the record.



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      Here, trial counsel clearly did not state the specific ground for his

objection, especially in light of the claim(s) he now makes on appeal.

Accordingly, we deem Appellant’s first issue waived on that basis. See King

v. Pulaski, 710 A.2d 1200, 1202–03 (Pa. Super. 1998) (“It is well-settled

that, in order for a claim of error to be preserved for appellate review, a

party must make a timely and specific objection before the trial court at the

appropriate stage of the proceedings.”) (emphasis added).

      Alternatively, we would also deem Appellant’s issue waived by

appellate counsel due to the failure to adequately develop this claim in the

argument portion of Appellant’s brief.    See Commonwealth v. Rodgers,

605 A.2d 1228, 1239 (Pa. Super. 1992) (“We must deem an issue [waived]

where it has been identified on appeal but not properly developed in the

appellant's brief.”). Other than Appellant’s brief mention of Pa.R.E. 403, he

provides virtually no analysis of this claim in the single page of argument

provided. Appellant’s counsel writes that the manner of presentation of the

Facebook evidence created a “danger of unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence[,]” which is a direct quotation from Pa.R.E.

403, but then he provides no analysis, much less citation to relevant case

law, to demonstrate or explain how those Rule 403 factors applied to the

presentation of the evidence in question. Accordingly, if this matter had not

already been waived in the first instance, we would also find that it has been




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waived by counsel’s failure to adequately develop the claim in Appellant’s

brief.

         Next, Appellant challenges the imposed sentence as being unduly

excessive.

         Sentencing is a matter vested in the sound discretion of the
         sentencing judge, and a sentence will not be disturbed on appeal
         absent a manifest abuse of discretion. In this context, an abuse
         of discretion is not shown merely by an error in judgment.
         Rather, the appellant must establish, by reference to the record,
         that the sentencing court ignored or misapplied the law,
         exercised its judgment for reasons of partiality, prejudice, bias
         or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)

(citation omitted).
         However,

               [c]hallenges to the discretionary aspects of sentencing do
         not entitle an appellant to review as of right. Commonwealth
         v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
         challenging the discretionary aspects of his sentence must
         invoke this Court's jurisdiction by satisfying a four-part test:

           [W]e conduct a four-part analysis to determine: (1)
           whether appellant has filed a timely notice of appeal, see
           Pa.R.A.P. 902 and 903; (2) whether the issue was properly
           preserved at sentencing or in a motion to reconsider and
           modify sentence, see Pa.R.Crim.P. [720]; (3) whether
           appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
           (4) whether there is a substantial question that the
           sentence appealed from is not appropriate under the
           Sentencing Code, 42 Pa.C.S.A. § 9781(b).

         Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
         2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
         (internal citations omitted).   Objections to the discretionary
         aspects of a sentence are generally waived if they are not raised
         at the sentencing hearing or in a motion to modify the sentence



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         imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
         Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

               The determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis.
         Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
         A substantial question exists “only when the appellant advances
         a colorable argument that the sentencing judge's actions were
         either: (1) inconsistent with a specific provision of the
         Sentencing Code; or (2) contrary to the fundamental norms
         which underlie the sentencing process.” Sierra, supra at 912-
         13.

               As to what constitutes a substantial question, this Court
         does not accept bald assertions of sentencing errors.
         Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
         2006). An appellant must articulate the reasons the sentencing
         court's actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

         Instantly, although appellate counsel provides what appears to be a

Rule 2119(f) statement in Appellant’s brief, that statement is virtually the

same one-half page argument set forth later in the Argument section of

Appellant’s brief, in which he baldy asserts that the imposed sentence was

“the legal equivalent of [l]ife without [p]arole.” Appellant’s Brief at 9. There

is no effort made therein to “advance[] a colorable argument that the

sentencing judge's actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.”      Moury, supra (quoting Sierra).

Indeed, there is no citation to any pertinent authorities whatsoever, nor any

relevant legal analysis, in either the Rule 2119(f) statement or in the

Argument portion of Appellant’s brief as it pertains to Appellant’s sentencing

issue.

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       It is well settled that “[w]hen a challenge to the discretionary
       aspect of a sentence is raised, an appellant must provide a
       separate statement specifying where the sentence falls in the
       sentencing guidelines, what provision of the sentencing code has
       been violated, what fundamental norm the sentence violates,
       and the manner in which it violates the norm. Pa.R.A.P.
       2119(f).”

Commonwealth v. Sarapa, 13 A.3d 961, 962 (Pa. Super. 2011) (quoting

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)).

       Appellate counsel’s efforts were so inadequate that he even failed to

mention, anywhere in Appellant’s brief, what Appellant’s aggregate sentence

and individual sentences are, let alone where those sentences fall within the

guidelines, what provision of the sentencing code was violated by the

imposition of sentence, or the manner in which fundamental norms of

sentencing were violated.         Consequently, we deem Appellant’s sentencing

issue waived, due to the inadequacy of Appellant’s Rule 2119(f) statement,

and because the Argument portion of his brief was inadequately developed

to permit meaningful review of his sentencing claim.           Thus, we have

determined that all of the claims presented in Appellant’s brief have been

waived.3


____________________________________________


3 We note that Appellant, writing to this Court pro se on August 1, 2017,
recognized many of these defects in his brief, complained that appellate
counsel was appointed against his wishes, and sought relief from this Court
for those reasons. Appellant’s only remedy, however, is to file a petition
pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., and
seek reinstatement of his appellate and post-sentence motion rights by
alleging appellate counsel’s ineffectiveness.



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        However, we are compelled to sua sponte vacate an illegal aspect of

Appellant’s sentence, namely, the portion of the sentencing order deeming

him an SVP. See Commonwealth v. Butler, No. 1225 WDA 2016, *6 (Pa.

Super. filed Oct. 31, 2017) (concluding that the issue discussed, infra,

implicates the legality of a defendant’s sentence).        In Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme Court held that the

registration requirements under SORNA4 constitute criminal punishment,

thus overturning prior decisions deeming those registration requirements

civil in nature. Id. at 1218. On October 31, 2017, this Court ruled that,

        since our Supreme Court has held [in Muniz] that SORNA
        registration requirements are punitive or a criminal penalty to
        which individuals are exposed, then under Apprendi [v. New
        Jersey, 530 U.S. 466 (2000),] and Alleyne [v. United States,
        133 S.Ct. 2151, 2163 (2013)], a factual finding, such as whether
        a defendant has a “mental abnormality or personality disorder
        that makes [him or her] likely to engage in predatory sexually
        violent offenses[,]” 42 Pa.C.S.[] § 9799.12, that increases the
        length of registration must be found beyond a reasonable doubt
        by the chosen fact-finder. Section 9799.24(e)(3) identifies the
        trial court as the finder of fact in all instances and specifies clear
        and convincing evidence as the burden of proof required to
        designate a convicted defendant as an SVP. Such a statutory
        scheme in the criminal context cannot withstand constitutional
        scrutiny.

Butler, No. 1225 WDA 2016, at *11.             Accordingly, the Butler panel held

that 42 Pa.C.S. § 9799.24(e)(3) is unconstitutional. Id. at *11-12.




____________________________________________


4   Pennsylvania's Sex Offender Registration and Notification Act.



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J-A21013-17



       In light of Butler, we are compelled to conclude that the portion of

Appellant’s sentencing order deeming him an SVP is illegal. See id. at *12.

Accordingly, we vacate only that aspect of Appellant’s judgment of sentence,

and remand his case for the trial court to determine under what tier of

SORNA Appellant must register, and to provide him with the appropriate

notice of his registration obligations under 42 Pa.C.S. § 9799.23. See id. at

*13.

       SVP Order reversed.    Judgment of sentence affirmed in all other

respects. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2017




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