J-S17006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JULIUS BUTCHER,

                            Appellant                  No. 3818 EDA 2015


     Appeal from the Judgment of Sentence Entered September 1, 2015
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0005635-2011


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY BENDER, P.J.E.:                            FILED JUNE 08, 2018

      Appellant, Julius Butcher, appeals from the judgment of sentence of an

aggregate term of 25 to 50 years’ incarceration, followed by 10 years’

probation, imposed after he was convicted of various offenses, including rape

of a child. On appeal, Appellant challenges the trial court’s denial of his motion

to dismiss under Pa.R.Crim.P. 600, the sufficiency of the evidence to sustain

his convictions, the discretionary aspects of his sentence, and his designation

as a sexually violent predator (SVP).         After careful review, we affirm

Appellant’s judgment of sentence in part, reverse in part, and remand for

further proceedings.

      In June of 2011, Appellant was arrested and charged with various

offenses after his 10-year-old son accused him of multiple instances of sexual

assault over the course of approximately five years.       Specifically, during a
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forensic interview of the victim, he claimed “that Appellant had ‘put his wee

wee in [the victim’s] butt’ on several occasions when they lived at three

different homes since [the victim] was five (5) years old.” Trial Court Opinion

(TCO), 6/28/17, at 28.

        Appellant proceeded to a jury trial in October of 2014, at the close of

which he was convicted of two counts each of rape of a child (complainant less

than 13 years of age), and aggravated indecent assault of a child (complainant

less than 13 years of age).1 Appellant was also found guilty of single counts

of incest of a minor, endangering the welfare of children, corruption of minors,

and terroristic threats.2

        On May 13, 2015, the trial court conducted an SVP hearing. On August

10, 2015, the court issued an order and accompanying opinion deeming

Appellant an SVP. On September 1, 2015, the court sentenced Appellant to

the aggregate term stated supra.               Appellant filed a timely post-sentence

motion and, after a hearing, the court denied that motion on December 3,

2015. Appellant filed a timely notice of appeal. The trial court then ordered

him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.    On January 8, 2016, Appellant filed a concise statement raising

various claims, and requesting that he be permitted to file a supplemental

Rule 1925(b) statement when the transcripts were available to him. The court
____________________________________________


1   18 Pa.C.S. § 3121(c) and 18 Pa.C.S. § 3125(b), respectively.

218 Pa.C.S. § 4302(b), 18 Pa.C.S. § 4304(a)(1), 18 Pa.C.S. § 6301(a)(1),
and 18 Pa.C.S. § 2706(a)(1), respectively.

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issued an order permitting Appellant to file a supplemental concise statement,

which Appellant did on February 1, 2016.       The court then issued its Rule

1925(a) opinion on June 28, 2017.

      On appeal, Appellant presents four issues for our review, which we have

reordered for ease of disposition:

      1. The trial court erred in denying Appellant’s Rule 600 motion.

      2. The evidence was insufficient as a matter of law and did not
         support [the] convictions beyond a reasonable doubt of rape,
         aggravated indecent assault, and incest[.]

      3. Appellant challenges the discretionary aspects of sentencing.
         The trial court erred in sentencing Appellant to a sentence that
         was excessive under the circumstances. The sentence was
         consecutive and exceeded the guidelines without appropriate
         justification.

      4. The trial court erred in finding Appellant to be a[n SVP.]

Appellant’s Brief at 13 (unnecessary capitalization omitted).

      Appellant first contends that the trial court erred by denying his pretrial

Rule 600 motion to dismiss. Initially, the trial court deemed this issue waived,

as Appellant failed to state it with sufficient specificity in his Rule 1925(b)

statement.    In particular, in Appellant’s initial concise statement filed on

January 8, 2016, he stated, “[t]he [t]rial [c]ourt erred in denying Appellant’s

Rule 600 motion[,]” after which he asserted that he would “supplement this

issue when the notes [of testimony] are received.”           Pa.R.A.P. 1925(b)

Statement, 1/8/16, at 2 (unnumbered). However, when Appellant filed his

supplemental Rule 1925(b) statement on February 1, 2016, he did not set

forth any Rule 600 claim. Consequently, the trial court deemed this issue


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waived based on the vague nature in which Appellant asserted it in his first

concise statement. See TCO at 28.

       We agree with the trial court’s waiver decision. This Court has declared

that “[i]f a Rule 1925(b) statement is too vague, the trial judge may find

waiver and disregard any argument.” Commonwealth v. Reeves, 907 A.2d

1, 2 (Pa. Super. 2006) (citation omitted). Moreover, “[w]hen a court has to

guess what issues an appellant is appealing, that is not enough for meaningful

review. When an appellant fails [to] adequately … identify in a concise manner

the issues sought to be pursued on appeal, the trial court is impeded in its

preparation of a legal analysis which is pertinent to those issues.” Id. (quoting

Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006)).

       Here, the trial court conducted a Rule 600 hearing, at which Appellant

raised various arguments as to why a violation of that rule had occurred in his

case. However, in his Rule 1925(b) statement, he fails to identify which of

those arguments the court erred by rejecting. Thus, given this record, we

discern no abuse of discretion in the court’s conclusion that Appellant waived

his Rule 600 issue due to his lack of specificity.3
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3 In any event, we would deem Appellant’s Rule 600 issue meritless. In his
brief to this Court, Appellant concludes that there were “537 days of non-
excludable time that … passed since the case’s initiation” and, therefore, “the
charges against [Appellant] must be dismissed with prejudice.” Appellant’s
Brief at 24. Notably, Appellant provides no discussion of “whether the
Commonwealth exercised due diligence, and whether the circumstances
occasioning the delay of trial were beyond the Commonwealth’s control.”
Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012) (citation



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       In Appellant’s second issue, he asserts that the evidence was insufficient

to convict him of rape, aggravated indecent assault, and incest. Initially, this

Court has declared that,

       [t]he standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all evidence admitted at trial in the
       light most favorable to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
       crime beyond a reasonable doubt. In applying [the above] test,
       we may not weigh the evidence and substitute our judgment for
       the fact-finder.    In addition, we note that the facts and
       circumstances established by the Commonwealth need not
       preclude every possibility of innocence. Any doubts regarding a
       defendant’s guilt may be resolved by the fact-finder unless the
       evidence is so weak and inconclusive that as a matter of law no
       probability of fact may be drawn from the combined
       circumstances. The Commonwealth may sustain its burden of
       proving every element of the crime beyond a reasonable doubt by
       means of wholly circumstantial evidence. Moreover, in applying
       the above test, the entire record must be evaluated and all
       evidence actually received must be considered. Finally, the trier
       of fact while passing upon the credibility of the witnesses and the
       weight of the evidence produced, is free to believe all, part or none
       of the evidence.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa. Super. 2003) (citations

omitted).

       Appellant contends that each of his convictions of rape, aggravated

indecent assault, and incest, requires proof of “penetration.” Appellant’s Brief

____________________________________________


omitted). The Commonwealth has included a discussion of its diligence in its
appellate brief. See Commonwealth’s Brief at 28-29. In light of Appellant’s
failure to present any meaningful, contrary discussion, we would conclude that
he has failed to demonstrate that the trial court abused its discretion in
denying his Rule 600 motion to dismiss. See Bradford, 46 A.3d at 700
(“When reviewing a trial court’s decision in a Rule 600 case, an appellate court
will reverse only if the trial court abused its discretion.”) (citation omitted).

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at 26.    According to Appellant, the Commonwealth failed to prove this

element, as the victim’s testimony only demonstrated that Appellant placed

his “penis in or on the butt cheek” of the victim, rather than into the victim’s

anus. Id. Appellant points to the following testimony by the victim in support

of this claim:

      [The Commonwealth:] After … your pants were down and his
      pants were down, you have to tell us exactly what happened next.
      What happened?

      [The Victim:] He put his dick in my butt.

      …

      [The Commonwealth:] When you said it went into your butt, was
      that on the outside of your body or the inside of your body?

      [The Victim:] It would go inside my body, but not all the way.

      [The Commonwealth:] What do you mean by that?

      [The Victim:] Like it wouldn’t go in like all the way in my butt.
      That’s how it felt.

      [The Commonwealth:] Okay. But you did feel it?

      …

      [The Victim:] Yes.

      [The Commonwealth:] Okay. Now, a butt has cheeks and then it
      has a hole.

      …

      When you say it went inside, did it go inside the cheeks,
      the hole, or something else?

      [The Victim:] Inside the cheeks.

      [The Commonwealth:] And did it go inside the hole, too?

      [The Victim:] I don’t think so.

      [The Commonwealth:] Okay. Did it go inside your butt at all?

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      [The Victim:] Yes.

N.T. Trial, 10/21/14, at 21-23 (emphasis added).

      While the above-emphasized statements could support a conclusion that

Appellant’s penis did not enter the victim’s anus, other portions of the victim’s

testimony support the opposite determination. For instance, in the above-

quoted passage, the victim said that Appellant’s penis went ‘inside his body,’

and ‘into his butt.’   Furthermore, this testimony by the victim concerned

abuse that occurred while Appellant and the victim lived at one residence;

however, the victim then went on to discuss abuse that occurred while he and

Appellant resided in two other, subsequent homes. In describing those later

instances of abuse, the victim testified that Appellant, “sticked [sic] his dick

in my butt,” id. at 30; that Appellant’s penis went “on the inside” of his body,

meaning “halfway in [his] butt[,]” id. at 31; see also id. at 37; and that the

victim knew Appellant’s penis “went inside [his] body” because the victim “felt

it[,]” id. at 31; see also id. at 37.      Viewing the totality of the victim’s

testimony in the light most favorable to the Commonwealth, as the verdict

winner, we conclude that the jury could have reasonably inferred that

Appellant’s penis penetrated the victim’s anus. Accordingly, Appellant’s attack

on the sufficiency of the evidence to sustain his rape, aggravated indecent

assault, and incest convictions fails.

      Next, Appellant challenges the discretionary aspects of his sentence.

      Challenges 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


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      challenging the discretionary aspects of his sentence must invoke
      this Court's jurisdiction by satisfying a four-part test:

         We 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). 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 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.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

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

      Appellant has included a Rule 2119(f) statement in his brief, wherein he

asserts that the trial court erroneously imposed what amounts to a life

sentence of incarceration, based only on testimony during the SVP hearing

that Appellant suffers from a “life-long condition,” from which his “chance of

rehabilitation … is nil.” Appellant’s Brief at 48, 53. Appellant also maintains

that “[t]he fact that he was sentenced to consecutive sentences[,] which


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raised the aggregate sentence to an excessive level in light of the criminal

conduct at issue in [this] case[,] raises a substantial question.” Id. at 48.

      Even if we considered Appellant’s claims as constituting substantial

questions for our review, the record demonstrates that these arguments were

not preserved below. Specifically, Appellant did not present these claims in

his post-sentence motion; instead, he argued that the court erred by imposing

what is essentially a life term of incarceration because Appellant has physical

injuries and ‘ailments’ that call for a lesser term of imprisonment. See Post-

Sentence Motion, 9/8/15, at 2 (unnumbered). Additionally, at the hearing on

Appellant’s post-sentence motion, his counsel reiterated this same argument,

asking the court to reconsider Appellant’s sentence and take into account “the

fact that [Appellant] has had numerous ailments since his incarceration way

back in 2011.” N.T. Hearing, 11/2/15, at 8. Counsel then detailed the various

injuries and illnesses from which Appellant allegedly suffers, id. at 8-9, and

asked the court to run Appellant’s sentences concurrently rather than

consecutively, id. at 10.

      From this record, it is apparent that Appellant did not argue that the

court impermissibly sentenced him to a life term of imprisonment based only

on testimony at the SVP hearing that he suffers from a ‘condition’ from which

he cannot be rehabilitated. He also did not argue that his conduct in this case

did not warrant the consecutive sentences imposed by the court. Therefore,

these arguments are waived. See Commonwealth v. Mann, 820 A.2d 788

(Pa. Super. 2003) (issues challenging the discretionary aspects of sentence

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must be raised in post-sentence motion or by raising claim during sentencing

proceedings; absent such initiative, objection to the discretionary aspects of

sentence waived on appeal).

      Notwithstanding the waiver of these claims, we would discern no abuse

of discretion in the sentence fashioned by the trial court. The court explains

the rationale underlying its sentence, as follows:

      In this case, [c]ounsel for Appellant requested that the court
      modify the sentence to run the sentences concurrent to one
      another.    Counsel argued on behalf of Appellant that the
      aggregate sentence of twenty-five (25) to fifty (50) years’
      incarceration amounted to a life sentence given Appellant’s age
      and health. When permitted the opportunity to expand on
      [c]ounsel’s argument, Appellant again blamed his wife, and
      asserted a lack of evidence to support the convictions because the
      physical examination results were normal and he has nine other
      children who have not complained of abuse.

            In sentencing Appellant, the [court] provided a list of
      considerations in fashioning the sentence. These considerations
      included Appellant’s health, the PSI report, his letter to the court
      received on July 21, 2015, his statement by way of allocution, [the
      victim’s] credible trial testimony and other trial evidence, the SVP
      hearing, the victim impact testimony by [the victim’s] mother and
      Appellant’s wife, Appellant’s criminal history, Appellant’s need for
      rehabilitation, deterrence, counsel’s well-made arguments, and
      the sentencing guidelines. The court notes, again, that Appellant’s
      aggregate exposure on these convictions amounted to seventy-
      three and one half (73½) to one hundred and forty-seven (147)
      years of incarceration.

            It is also important to note that the court sentenced
      Appellant entirely within the sentencing guidelines and set forth
      by the Pennsylvania Commission on Sentencing.          Appellant
      received standard range sentences on four (4) of the convictions,
      a mitigated range sentence on two of the convictions[,] and a
      determination of guilt without further penalty on two of the
      convictions. The court exercised its considerable discretion in
      fashioning consecutive sentences based upon the [court’s]


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       involvement in this case, including pretrial proceedings, trial
       proceedings[,] and post-trial proceedings. The serious[ness] of
       these offenses committed by Appellant upon his son in their own
       home and the effect they have had, and will continue to have, on
       this young man’s life may never be fully known, understood or
       appreciated. After careful consideration and a conscientious
       review, this court asks that the sentence imposed be affirmed.

TCO at 34-36.

       The court’s thorough explanation of the factors it considered in

fashioning Appellant’s sentence undercuts his argument that the court

premised his ‘life sentence’ only on testimony that he suffers from ‘a condition’

that cannot be rehabilitated. Therefore, even had Appellant preserved this

claim below, we would conclude that it is meritless.

       Lastly, Appellant argues “that the trial court erred in finding him to be

a[n SVP] and for failing to put sufficient findings of fact and conclusions of law

on the record.” Appellant’s Brief at 36. Essentially, Appellant challenges the

sufficiency of the evidence to demonstrate that he is an SVP. However, we

need not address the merits of Appellant’s argument, as we sua sponte

conclude, for the reasons stated infra, that the court’s August 10, 2015 order

designating Appellant an SVP under Pennsylvania’s Sex Offender Registration

and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.42,4 constitutes

an illegal sentence that must be reversed. See Commonwealth v. Butler,

173 A.2d 1212, 1215 (Pa. Super. 2017) (concluding that the issue discussed,

infra, implicates the legality of a defendant’s sentence).

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4We recognize that SORNA was recently amended on February 21, 2018, by
H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018.

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      In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme

Court held that the registration requirements under SORNA are punitive, thus

overturning prior decisions deeming those registration requirements civil in

nature. Id. at 1218. Recently, 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, 173 A.3d at 1217-18. Accordingly, the Butler panel held that 42

Pa.C.S. § 9799.24(e)(3) is unconstitutional. Id. at 1218.

      In light of Butler, we are compelled to conclude that the August 10,

2015 order deeming Appellant an SVP under that subsection of SORNA is

illegal. See id. Accordingly, we reverse that order, and remand Appellant’s

case for the trial court to determine what, if any, registration requirements

apply to Appellant. In all other respects, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed in part, reversed in part. Case remanded

for further proceedings. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/18




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