from the PCRA Order July 12, 2016 In the Court of Common
Pleas of Allegheny County Criminal Division at No(s):
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.
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
remand for resentencing.
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
Commonwealth v. Weimer, 133 WDA 2012 (Pa. Super.
unpublished memorandum filed 8/1/13).
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.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. 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.
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
(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?
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).
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
(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.
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.
Supreme Court has held section 9718 "irremediably
unconstitutional on its face, non-severable, and void"
under the principles espoused in
Alleyne. See Commonwealth v. Wolfe,
140 A.3d 651, 663 (Pa. 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, 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). 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
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
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
(2) Open lewdness as defined in section 5901 (relating to
(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
6320 (relating to sexual exploitation of children).
18 Pa.C.S. § 6318(a). See Commonwealth v.
Felder, 75 A.3d 513, 517 (Pa. Super. 2013) (subsection
6318(a) sets forth specific crimes that may constitute forms
of unlawful contact). A section 6318 offense is graded as
(b) Grading. - A violation of subsection (a) is:
(1) an offense of the same grade and degree as the most
serious underlying offense in subsection (a) for which the
defendant contacted the minor; or
(2) a felony of the third degree; whichever is greater.
18 Pa.C.S. § 6318(b).
order to be convicted under section 6318, a defendant does
not have to be convicted of the underlying offense for which
he contacted the minor. Commonwealth v. Reed, 9 A.3d
1138 (Pa. 2010). In other words, the offenses designated in
sections 6318(a)(1)-(6) are not predicate offenses for the
offense of unlawful contact with a minor. Id.
Rather, a defendant is guilty under section 6318 if he or she
contacts the minor for the purpose of engaging in
the prohibited behaviors criminalized in Chapter 31 and 18
Pa.C.S §§ 5901, 5902, 5903, 6312, and 6320 of the
Crimes Code. In fact, the Commonwealth need not even
separately charge a defendant with an underlying offense set
forth in sections 6318(a)(1)-(6). However, if the
Commonwealth does charge a defendant with an offense under
sections 6318(a)(1)-(6), an acquittal is relevant for
purposes of grading the section 6318 offense at sentencing
under subsection 6318(b). Id.
the trial court charged the jury, regarding the unlawful
contact conviction as follows:
The defendant is charged with three counts of unlawful
contact with a minor. The alleged victims are [J.C.], [J.D.]
and [R.Z.]. In order to find the defendant guilty of this
offense, you must find that each of the following elements
has been proven beyond a reasonable doubt. First, that the
defendant was intentionally in contact with a minor. Second,
that the contact was for the purposes of engaging in an
unlawful act; that is, the crimes listed in the information.
And, third, that either the defendant or the person being
contacted is within this Commonwealth.
Contact is any direct or indirect communication by any means.
A minor is an individual under the age of 18.
N.T. Jury Trial, 8/18/11, at 721-22 (emphasis added).
See Commonwealth v. Reed, 9 A.3d 1138 (Pa.
2010) (tying grading of section 6318 conviction to how
Commonwealth charges and presents its case to jury).
the bill of information, which is relevant to how the jury was
to determine Weimer's guilt regarding the crime of
unlawful contact, states:
The District Attorney of ALLEGHENY County, by this
information charges that on (or about) Wednesday, the
1st day of March, 2006, through on (or about)
Tuesday, the 17th day of August, 2010 in the said County of
ALLEGHENY, PAUL DAVID WEIMER hereinafter called actor, did
commit the crime or crimes indicated herein, that is
Count 2 UNLAWFUL CONTACT WITH MINOR Felony 2
The actor intentionally contacted a minor namely, John Doe,
age 14 for the purpose of arranging actual or simulated
sexual activity or nudity for the purpose of sexual
stimulation or gratification of another person as defined in
namely, Involuntary Deviate Sexual Intercourse, in violation
of Section 6318(a)(6) of the Pennsylvania Crimes Code, Act of
December 6, 1972, 18 Pa.C.S. §6318 (a)(6), as amended[.]
Criminal Information, 10/14/10, at 1 (emphasis added).
Commonwealth v. Aikens, 139 A.3d 244 (Pa. Super.
2016),10 our Court
recently addressed a similar grading issue with regard to the
defendant's unlawful contact with a minor conviction
under section 6318(a)(1). In Aikens, the
Commonwealth filed its information charging the defendant
with: unlawful contact with a minor, corruption of minors,
IDSI, statutory sexual assault, and indecent exposure. The
defendant was found guilty of the unlawful contact and
corruption charges; the jury acquitted him of IDSI and the
remaining charges were nolle prossed. The trial
court graded the defendant's section 6318 conviction as a
first-degree felony, based on its charge to the jury, which
[Defendant] has been charged with unlawful contact with a
minor. To find [Defendant] guilty of this offense, you must
find that each of the following elements has been proven
beyond a reasonable doubt: First, that [Defendant] was
intentionally in contact for the purpose of engaging in an
unlawful act – and in this case, that unlawful act is
alleged to be [IDSI], the crime that we just discussed, that
I just defined for you[.]
Id. at 247-48 (emphasis in original). The Court
concluded that because the trial court's charge made it
clear to the jury that the defendant was only accused of
contacting the minor for one specific offense, IDSI, when the
jury returned a verdict of guilt under section 6318, "it
must have concluded, as a matter of fact, that [Defendant]
contacted the victim for the purpose of engaging in
IDSI." Id. at 248. Accordingly, the Court
affirmed the grading of the section 6318 offense as a
first-degree felony where "the jury did find that a
first-degree felony was the 'most serious underlying
offense . . . for which the defendant contacted the
the case in Aikens, here the trial court did not
charge the jury with regard to the specific offense for which
Weimer was accused of contacting the victim for purposes of
section 6318. Therefore, we do not know the "most
serious underlying offense . . . for which Weimer contacted
the minor" for purposes of grading the offense under
section 6318(b). See Felder, supra at 517
("language of section 6318 expressly requires a factual
determination of the crime 'for which the defendant
contacted the minor' in order to determine proper
grading."). Because of this, the trial court would have
had to have guessed what crime Weimer sought to commit when
he contacted the minor. This is neither permitted nor
intended under the statute. Reed, supra;
on these facts, we conclude that the section 6318(b)(2)
default third-degree felony grading should have been applied
where Weimer was acquitted of all charged section 6318(a)
offenses, Reed, supra, and where the
court's charge to the jury did not make it clear for
which section 6318(a) offense Weimer was accused of
contacting the minor. See Aikens, supra at
644 (where sentencing court would have to guess at which
offense defendant sought to commit under section 6318,
"[w]e cannot countenance that result.").11 Thus, the court's 5-10
year sentence of imprisonment for Weimer's unlawful
contact conviction with regard to victim J.D. is illegal
where a third-degree felony under section 6318(b)(2) carries
a statutory maximum sentence of seven years'
imprisonment. Accordingly, we vacate the judgment of sentence
as it relates to victim J.D. (CC 201011535) and remand for
final issue on appeal, Weimer contends that he is entitled to
relief due to the court's defective Rule 907 notice of
its intent to dismiss his PCRA petition without a hearing.
Specifically, Weimer asserts that because the court's
notice failed to explain the reasons for the intended
dismissal and what defects, if any, were in his petition, he
has effectively been denied his right to file an amended
petition to correct any defects under Pa.R.Crim.P. 905(a).
is correct in asserting that a Rule 907 pre-dismissal notice
affords a petitioner the opportunity to seek leave to amend
his petition and correct any material defects.
Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa.
Super. 2012) (citing Commonwealth v. Williams, 782
A.2d 517, 526 (Pa. 2001)). The ultimate goal of this process
is to permit merit review by the PCRA court of potentially
arguable claims. Id.
the trial court's Rule 907 notice did not specifically
list the court's reasons for its intent to dismiss
Weimer's petition or any perceived defects in
Weimer's petition, we recognize that the court had
previously granted counsel the opportunity to amend
Weimer's pro se petition and also granted Weimer
leave to submit pro se supplements to his petition.
Moreover, in the four and one-half months that elapsed
between the Rule 907 notice and the order dismissing
Weimer's petition, the court accepted numerous filings
submitted on Weimer's behalf, including a supplemental
petition certifying witnesses, pro se and counseled
responses and objections to the Rule 907 notice, and a
supplemental PCRA petition. The court acknowledged that it
considered "the responses filed to [its] notice of
intention to dismiss." Order Dismissing Post Conviction
Petition without a Hearing, 7/12/16. Under these circumstances, we
find no merit to this issue on appeal. See Commonwealth
v. Albrecht, 720 A.2d 693 (Pa. 1998) (under Pa.R.Crim.P.
1507(a), predecessor to Rule 907, Supreme Court found no
defect in notice of intent to dismiss PCRA petition without
hearing where petitioner could not demonstrate violation of
rule because he was afforded both further proceedings and
opportunity to present arguments in support of petition,
which is all rule requires).
reversed. Judgments of sentence vacated. Case remanded for
resentencing consistent with this opinion. Jurisdiction
COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
DIVISION CC Nos. 201011522, 201011523, 201011535
1042 WDA 2016
Donna Jo McDaniel Judge
N. Farrell, Esq. 100 Ross Street, Suite 1 Pittsburgh, PA
Streily, DDA Office of the District Attorney 401 Courthouse
436 Grant Street Pittsburgh, PA 15219
COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
201011522, 201011523, 201011535
Defendant has appealed from this Court's Order of July
12, 2016, which dismissed his Amended Post Conviction Relief
Act Petition without a hearing. However, a review of the
record reveals that the Defendant has failed to present any