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[U] Commonwealth v. Martin

Superior Court of Pennsylvania

March 4, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RUBIN LEE MARTIN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of January 25, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000987-2010, CP-51-CR-0000988-2010, CP-51-CR-0000997-2010.

Joseph D. Seletyn, Esq.

BEFORE: GANTMAN, OLSON AND WECHT, JJ.

MEMORANDUM

OLSON, J.

Appellant, Rubin Lee Martin, appeals from the judgment of sentence entered on January 25, 2013, as made final by the denial of Appellant's post-sentence motion on February 28, 2013. We affirm.

The trial court has ably summarized the underlying facts of this case.

On May 30, 2012, [Appellant] entered a nolo contendere plea on three transcripts: CP-51-CR-0000987-2010; CP-51-CR-0000988-2010; and CP-51-CR-0000997-2010. On each transcript, [Appellant pleaded] nolo contendere to one count of [unlawful contact with a minor, endangering the welfare of a child, and indecent assault of a child.[1] . . . The [trial] court imposed the sentence negotiated by the parties on transcripts ending 0000988-2010 and 0000997-2010. The court deferred sentencing on the transcript ending 0000987-2010 and ordered [Appellant] to be assessed by the Sexual Offenders Assessment Board ("the Board"). . . .
A hearing was held on January 25, 2013, pursuant to [42 Pa.C.S.A.] § 9799.24 to determine if [Appellant] should be classified as a sexually violent predator ("SVP"). On that date, the Commonwealth presented the August 24, 2012 expert report of Barry Zakireh, Ph.D. [Within Dr. Zakireh's expert report, Dr. Zakireh] concluded that [Appellant] met the statutory criteria [for being an] SVP. . . . [Appellant] and the Commonwealth stipulated to Dr. Zakireh's report, though [Appellant] did not stipulate to the conclusions therein. . . .
Upon considering Dr. Zakireh's report and hearing brief argument, the [trial] court found [Appellant] to be an SVP within the meaning of the statute and imposed the parties' negotiated sentence on the remaining transcript. [Specifically, the trial court sentenced Appellant to an aggregate term of seven years of probation, with the sentence to run concurrent to the sentences the trial court had already imposed].

Trial Court Opinion, 6/11/13, at 1-2.

After the trial court denied Appellant's timely post-sentence motion, Appellant filed a notice of appeal to this Court and the trial court ordered Appellant to file and serve a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant's Rule 1925(b) statement lists the following claims:

1. Did the [trial court] err in finding that [Appellant] was a violent sexual offender and was the evidence insufficient to support such a finding? Was there no evidence of a mental abnormality? Were the standards set forth in the statute not met?
2. Did the report of the psychologist err in that it had factual errors, including the fact that one of the alleged victims had been made pregnant by [Appellant], when in fact it turned out it had been fabricated by the victim and there was no scientific evidence that she ever had any pregnancy?
3. Did the [trial c]ourt err in ordering [Appellant's court-appointed counsel] to file an appeal when [counsel] had written [to the trial court] and indicated that the appeal was absolutely, totally frivolous and this was a civil matter now and he should not be required to do so pursuant to his court appointment?
4. Did the [trial c]ourt err in ordering [Appellant's court-appointed counsel] to file an appeal to reconsideration since this was a civil appeal and beyond the [30] days and, therefore, the [30-day] time period for an appeal would have lapsed?
5. [Appellant] reserves the right to raise other issues once the notes of testimony of the sexual offender's hearing have been transcribed.

Appellant's Rule 1925(b) Statement, 3/22/13, at 1-2.

Now on appeal, Appellant raises one claim: that the evidence was insufficient to support the SVP determination because Dr. Zakireh did not personally interview Appellant and, instead, improperly based his expert report upon the allegations that were introduced into evidence during Appellant's nolo contendere plea hearing. Appellant's Brief at 15-29. According to Appellant, since Dr. Zakireh's expert report relied upon the allegations at the nolo contendere hearing – and since a nolo contendere plea does not admit guilt – Dr. Zakireh's expert report "is essentially meaningless" and the evidence is insufficient to support the trial court's SVP determination. Id. at 23. This claim is waived, as Appellant failed to raise the claim in his court-ordered Rule 1925(b) statement.

As this Court has continuously held:

If Appellant wants to preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the element or elements on appeal. [Where a] 1925(b) statement [] does not specify the allegedly unproven elements[, ] . . . the sufficiency issue is waived [on appeal].

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008), quoting Commonwealth v. Flores, 921 A.2d 517, 522-523 (Pa.Super. 2007).

In this case, Appellant's Rule 1925(b) statement declared, in boilerplate fashion, that the evidence was insufficient to support the trial court's SVP determination. This boilerplate statement simply does not preserve Appellant's current claim: that the evidence was insufficient to support the trial court's SVP determination, as Dr. Zakireh's expert report was improperly based upon allegations that were introduced at the nolo contendere hearing. Moreover, the trial court did not anticipate (or otherwise guess) that Appellant wished to claim that Dr. Zakireh's expert report was improperly based upon allegations that were introduced at the nolo contendere hearing. See Trial Court Opinion, 6/11/13, at 1-8.

Further, we conclude that our holding of waiver is not affected by our Supreme Court's opinion in Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007). In Laboy, the Commonwealth charged Mr. Laboy with drug crimes and criminal conspiracy. At trial, the Commonwealth conceded that Mr. Laboy did not actually possess the contraband. The Commonwealth instead theorized that Mr. Laboy "acted as a lookout and money handler in connection with multiple sales of illicit drugs in Philadelphia." Id. at 1058.

At the conclusion of Mr. Laboy's brief trial – which "span[ned] a mere [30] pages of transcript" – Mr. Laboy was convicted of the charges. Id. at 1058 and 1060. Following Mr. Laboy's sentencing, Mr. Laboy filed a notice of appeal to this Court and the trial court ordered him to file a Rule 1925(b) statement. Mr. Laboy responded to the trial court's order with a boilerplate Rule 1925(b) statement, which simply declared that the "evidence . . . was insufficient" to support his convictions. Id. at 1058. Notwithstanding Mr. Laboy's boilerplate statement, the trial court knew that Mr. Laboy wished to raise the following claim on appeal: whether the evidence was sufficient to prove that Mr. Laboy "was vicariously liable for the actions of his co-defendant, as he neither possessed drugs personally nor was observed actually conducting a drug transaction." Id. at 1059. The trial court thus prepared a Rule 1925(a) opinion and addressed Mr. Laboy's claim. Id. at 1058-1059.

In Mr. Laboy's brief to this Court, Mr. Laboy raised the issue that the trial court addressed. However, we held that Mr. Laboy's claim was waived, as his Rule 1925(b) statement failed "to specify how the evidence failed to establish which element or elements of the offenses for which [Mr. Laboy] was convicted." Id. at 1059. Mr. Laboy filed a petition for allowance of appeal to our Supreme Court and the Supreme Court held that we erred in finding waiver. As the High Court held:

the Superior Court should have afforded the requested sufficiency review. In the present, relatively straightforward drug case, the evidentiary presentation spans a mere thirty pages of transcript. It may be possible in more complex criminal matters that the common pleas court may require a more detailed statement to address the basis for a sufficiency challenge. Here, however, the common pleas court readily apprehended Appellant's claim and addressed it in substantial detail.

Id. at 1060.

In the case at bar, however, the trial court neither anticipated nor addressed the claim that Appellant currently raises on appeal. Therefore, Laboy is not controlling. Appellant's claim is waived. See Pa.R.A.P. 1925(b)(4)(vii) ("[i]ssues not included in the [Rule 1925(b) s]tatement and/or not raised in accordance with the provisions of [Rule 1925(b)(4)] are waived").

Judgment of sentence affirmed.

Judgment Entered.


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