Commonwealth v. Weimer

• Decision Date: 07 July 2017
• Docket Number: No. 1042 WDA 2016.,1042 WDA 2016.
• Citation: 167 A.3d 78
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Paul David WEIMER, Appellant
• Court: Pennsylvania Superior Court

167 A.3d 78

COMMONWEALTH of Pennsylvania, Appellee

v.Paul David WEIMER, Appellant

No. 1042 WDA 2016.

Superior Court of Pennsylvania.

Submitted May 15, 2017

Filed July 7, 2017

Thomas N. Farrell, Pittsburgh, for appellant.

Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.^*

OPINION BY LAZARUS, J.:

Paul David Weimer appeals from the trial court's order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 – 9546. In 2011, Weimer was found guilty by a jury of 21 criminal counts relating to his sexual abuse of three adolescent boys, R.Z., M.G., and J.D. After careful review, we reverse the PCRA order, vacate the judgments of sentence for all three victims,¹ and remand for resentencing. A prior panel of this Court aptly set forth the procedural history of this case as follows:

[Weimer, who was forty years old,] was arrested on [August 5, 2010] and eventually charged, regarding [victim, J.D.] at 11535–2010, with involuntary deviate sexual intercourse ("IDSI"), unlawful contact with the minor, statutory sexual assault, indecent assault, furnishing liquor to minors, and two counts of corruption of minors; he was charged regarding [victim, J.C.] at 11524–2010, with unlawful contact with a minor, corruption of minors and open lewdness; regarding [victim, R.Z.], he was charged at 11522–2010 with two counts of rape, IDSI, unlawful contact with a minor, two counts of statutory sexual assault, endangering the welfare of children, corruption of minors, and furnishing liquor to minors; [and] regarding [victim, M.G.], he was charged at 11523–2010 with IDSI, indecent assault, endangering the welfare of children, and corruption of minors.

[* * *].

At the conclusion of the jury trial, [Weimer] was acquitted of all charges regarding [J.C.]; regarding [J.D.], he was convicted of furnishing liquor to minors, unlawful contact with a minor and two counts of corruption of minors, and acquitted of IDSI, statutory sexual assault and indecent assault; regarding [R.Z.], he was convicted of IDSI, unlawful contact with a minor, two counts of statutory sexual assault, endangering the welfare of children, corruption of minors, furnishing alcohol to minors, and acquitted of two counts of rape; regarding [M.G.], he was convicted of IDSI, indecent assault, endangering the welfare of children, and corruption of minors.

Commonwealth v. Weimer, 1331 WDA 2012, 2013 WL 11256421 (Pa. Super. unpublished memorandum filed 8/1/13).

The Commonwealth gave notice of its intent to seek imposition of the 10–year mandatory minimum sentence for the IDSI convictions, pursuant to 42 Pa.C.S. § 9718(a). Prior to sentencing, the court held a hearing where it determined that Weimer met the criteria to be classified as a Sexually Violent Predator (SVP) under this Commonwealth's version of Megan's Law.² On March 13, 2012, Weimer was sentenced to an aggregate term of imprisonment of 25–50 years. Specifically, the court sentenced Weimer to: consecutive sentences of 10–20 years of incarceration on each count of IDSI with regard to R.Z. and M.G., and a consecutive term of 5–10 years of incarceration for unlawful contact with a minor with regard to J.D.³ Weimer filed post-trial motions that were denied on August 2, 2012, save for the court granting Weimer two days of credit. Weimer filed a timely direct appeal; our Court affirmed his judgment of sentence on August 1, 2013. On November 27, 2013, the Pennsylvania Supreme Court denied Weimer's petition for allowance of appeal.

On April 7, 2014, Weimer filed a pro se PCRA petition. On April 14, 2014, the court appointed PCRA Counsel, Thomas Farrell, Esquire. On May 28, 2014, the court granted counsel's petition to appoint an investigator. On February 25, 2015, the trial court gave Weimer Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing. On June 16, 2015, Attorney Farrell filed an amended PCRA petition on behalf of Weimer. On July 12, 2016, the court dismissed Weimer's petition. This timely collateral appeal follows. On appeal, Weimer presents the following issues for our consideration:

(1) Whether trial counsel gave ineffective assistance for failing to file a motion to withdraw, when there was a conflict of interest?

(2) Whether trial counsel gave ineffective assistance for failing to suppress evidence under the Fourth Amendment and Article I, Section 8[,] of the Pennsylvania Constitution?

(3) Whether trial counsel gave ineffective assistance for failing to object to the trial court's instruction that the Commonwealth did not have to prove beyond a reasonable doubt the date of the crime when the date of the crime was significant as to the age of the victim?

(4) Whether the trial court imposed an illegal sentence for the charges of involuntary deviate sexual intercourse when the trial court imposed mandatory sentences of ten to twenty years pursuant to 42 Pa.C.S. § 9718, which has been held to be facially unconstitutional?

(5) Whether the trial court imposed an illegal sentence of five to ten years of incarceration for unlawful contact with a minor?

(6) Whether the notice of intent to dismiss that was issued by the PCRA Court violated Rule 907(1) of the Pennsylvania Rules of Criminal Procedure ?

The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

We rely upon the opinion, authored by the Honorable Donna Jo McDaniel, to affirm issues one through three on appeal. First, Weimer has failed to show how either Attorney Collins or Attorney Allman "actively represented conflicting interests."

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Moreover, to the extent that Weimer alleges Attorney Collins was ineffective in failing to file a motion to withdraw, we note that Weimer suffered no prejudice from this alleged misstep, where the trial court specifically concluded that it would not have granted such motion and where Attorney Allman adequately represented Weimer at trial. Second, Weimer cannot demonstrate that he was prejudiced by counsel's failure to seek to suppress a printout of an email exchange between himself and victim, J.C., which was introduced on J.C.'s redirect examination. The defense had, in fact, introduced the contents of that same email exchange, including a picture of a man later identified as J.C.'s friend, during cross-examination and also had it entered as a defense exhibit at trial. Third, the trial court did not need to charge the jury that it was required to determine, beyond a reasonable doubt, the exact date that the incidents occurred where the jury was instructed that, for purposes of the charged offenses, it did need to find that victims were under the age of sixteen when considering the IDSI offenses.

In his fourth issue on appeal, Weimer contends that his mandatory minimum sentences, imposed pursuant to 42 Pa.C.S. § 9718(a), are illegal "where the mandatory sentencing structure [of section 9718 ] is facially unconstitutional." Appellant's Brief, at 46.

Our Supreme Court has held section 9718"irremediably unconstitutional on its face, non-severable, and void" under the principles espoused in Alleyne.⁴ See Commonwealth v. Wolfe, ––– Pa. ––––, 140 A.3d 651, 663 (2016). Moreover, because Weimer's judgment of sentence became final after Alleyne was decided, he is entitled to relief on his timely filed PCRA petition. See Commonwealth v. Ruiz, 131 A.3d 54, 59–60 (Pa. Super. 2015) (defendant can raise Alleyne challenge in timely PCRA petition so long as judgment of sentence not yet final when Alleyne decided on June 17, 2013); but see Commonwealth v. Washington, ––– Pa. ––––, 142 A.3d 810, 820 (Pa. 2016) (Supreme Court has also held that Alleyne does not apply retroactively to cases pending on collateral review where judgment of sentence became final before Alleyne decided).⁵ Accordingly, the judgments of sentence as to offenses committed against R.Z. and M.G. (CC 201011522 and CC 201011523, respectively) must be vacated and remanded to the trial court for resentencing without application of the mandatory minimum sentence under section 9718.

In his next issue, Weimer contends that the trial court imposed an illegal sentence of 5–10 years of imprisonment on the unlawful contact with a minor conviction with regard to victim J.D. Specifically, Weimer argues that because the jury was never instructed as to what crime(s) Weimer committed for purposes of engaging in the unlawful conduct under section 6318, the lowest graded offense of which he was acquitted (indecent assault (M–2)) must be assumed and the grading of the offense under section 6318(b)(2) should be no more than a third-degree felony.⁶

Unlawful contact with a minor is defined as:

(a) Offense defined. —A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:

(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).

(2) Open lewdness as defined in section 5901 (relating to open lewdness).

(3) Prostitution as defined in section 5902 (relating to prostitution and related offenses).

(4) Obscene and other sexual materials and performances as defined in section 5903 (relating to obscene and other sexual materials and performances).

(5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children).

(6) Sexual exploitation of children as defined in section

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