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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PAUL DAVID WEIMER

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1461 WDA 2018

Appeal from the Judgment of Sentence Entered April 3, 2018

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0011523

- 2010

COMMONWEALTH OF PENNSYLVANIA

v.

PAUL DAVID WEIMER

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1462 WDA 2018

Appeal from the Judgment of Sentence Entered April 3, 2018

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0011522

- 2010

COMMONWEALTH OF PENNSYLVANIA

v.

PAUL DAVID WEIMER

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1463 WDA 2018

Appeal from the Judgment of Sentence Entered April 3, 2018

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0011535

- 2010J

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BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E. *

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 27, 2020

Appellant, Paul David Weimer, appeals from the judgment of sentence

of an aggregate term of 231⁄2 to 47 years’ incarceration, imposed in three

separate cases, 1 after he was convicted by a jury of 21 criminal offenses

committed against three adolescent boys

, including involuntary deviate sexual

intercourse (IDSI)

, statutory sexual assault, endangering the welfare of a chi ld

(EWOC)

, and corruption of a minor (COM)

. On appeal, Weimer solely

challenges the discretionary aspects of his sentence. After careful review, we

affirm.

In a prior appeal, we summarized the pertinent facts and procedural

history of Weimer’s cases, as follows:

W eimer, who was forty years old, was arrested on August

5, 2010 [,] and eventually charged, regarding victim, J.D. at

11535

– 2010, with

... []IDSI[]

, unlawful contact with the

minor, statutory sexual assault, indecent assault, furnishing

liquor to minors, and two counts of [COM] ; he was charged

regarding victim, J.C. at 11524

– 2010, with unlawful contact

with a minor, [COM] and open lewdness; r egarding 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, [EWOC]

, [COM]

, and furnishing

liq uor to minors; and regarding victim, M.G.

, he was

charged at 11523

– 2010 with IDSI, indecent assault,

[EWOC]

, and [COM]

.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 This Court sua sponte issued a per curiam order on July 22, 2019,

consolidating Weimer’s three appeals.J

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- ***

At the conclusion of the jury trial, Weimer was acqu itted

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 [COM]

, and acquitted of

IDSI, statutory sexual assault a nd indecent assault;

regarding R.Z.

, he was convicted of IDSI, unlawful contact

with a minor, two counts of statutory sexual assault,

[EWOC]

, [COM]

, furnishing alcohol to minors, and acquitted

of two counts of rape; regarding M.G.

, he was convicted of

IDSI, indecent assault, [EWOC]

, and [COM]

.

Commonwealth v. Weimer

, [No.] 1331 WDA 2012

, [ unpublished memorandum at *1] (Pa. Super.

... filed [Aug. 1,

2013] ).

The Commonwealth gave notice of its intent to seek

imposition of the 10

– year mandatory minimum sentence for the

IDSI convictions, pu rsuant 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

Predato r (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. [ See Weimer , No. 1331 WDA 2012.] On November 27,

2013, the Pennsylvania Supreme Court denied Weimer’ s petition

for allowance of appeal. [ Commonwealth v. Weimer , 83 A.3d

777 (Pa. 2013).]

2 See 42 Pa.C.S.[] §§ 9791

– 9799.9. On December 20,

2011, the legislature enacted the Sex Offender Registration

and Notification Act (SORNA), effective in one year, or

December 20, 2012. Thus, at the time Weimer was

sentenced, SORNA was not yet in effect. However, under

SORNA [,] he is now classified as a Tier III offender who willJ

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- be a lifetime registrant. See 42 Pa.C.S.[] §§ 9799.14(d)(4),

9799.15(a)(3). [ 2 ]

3 No further penalty was imposed on the remaining charges

for which Weimer was convicted.

On April 7, 2014, Weimer filed a pro se PCRA [ 3 ] 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 [a] 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.

Commonwealth v. Weimer

, 167 A.3d 78, 80

– 81 ( Pa. Super. 2017)

.

Weimer timely appealed the ord er dismissing his PCRA petition. On

appeal, this Court concluded that Weimer’s mandatory

- minimum sentences

_________________ __________ ______ ____ _______

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

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

overturn ing prior decisions deeming those requirements civil in nature. Id.

at 1218. Thereafter, in Commonwealth v. Butler , 173 A.3d 1212, 1217

- 18

(Pa. Super. 2017), this Court ruled that under Muniz , the registration,

notification, and counseling requirements of SORNA’s SVP provision, 42

Pa.C.S. § 9799.24(e)(3) , is also punitive and , consequently, the statutory

requirements for designating an offender an SVP do not satisfy the dictates of

Alleyne v. United States , 570 U.S. 99, 106 (2013) (holding that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

found beyond a reasonable doubt) . Following Muniz and Butler

, the

Pennsylvania General Assembly ena cted legislation to amend SORNA, s ee Act

of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”) , and the Governor of Pennsylvania

thereafter signed new legislation striking the Act 10 amendments and

reenacting several SORNA provisions, effective June 12, 2018. See Act of

June 12, 2018 , P.L. 1952, No. 29. Additionally, our Supreme Court recently

reversed this Court’s decision in Butler , holding that SORNA’s requirements

for SVPs do not constitute criminal punishment and are not subject to the

conditions set forth in Alleyne

. Commonwea lth v. Butler

, ––– A.3d

–––– , 2020 WL 1466299 (Pa. filed Mar. 26, 2020)

.

3 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541

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for IDSI were illegal under Alleyne , and his 5 to 10 year sentence for unlawful

contact with a minor was also illegal because it exceeded the statutory

maximum term permissible for that offense. See Weimer, supra

.

Acc ordingly, we vacated Weimer’s judgment of sentence in each of his three

cases, and remanded for resentencing.

On April 3, 2018, the trial court conducted Weimer’s resentencing

hearing. At the close thereof, the court imposed a term of 31⁄2 to 7 years’

inca rceration for Weimer’s conviction of unlaw ful contact with a minor, and

two, non

- mandatory terms of 10 to 20 years’ imprisonment for both of his

IDSI convictions. All sentences were ordered to run consecutively, totaling an

aggregate term of 231⁄2 to 47 yea rs’ incarceration.

Weimer filed a timely post

- sentence motion , whic h was denied by

operation of law on September 27, 2018. He then filed timely notices of

appeal in each case, and he complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) con cise statement of errors complained of on appeal. The

court thereafter filed its Rule 1925(a) opinion. Weimer states one issue for

our review: “Did the [t]rial [c]ourt abuse its discretion when it sentenc[ed

Weimer] to consecutive statutory maximum sente nces in excess of the

[a]ggravated [r]ange of the sentencing guidelines and without giving

meaningful consideration to the sentencing factors set forth in 42 Pa.C.S.[] §

9721?” Weimer’s Brief at 5.

Preliminarily, section 9721 states, in pertinent part, a s follows:J

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(b) General standards.

-- In selecting from the alternatives set

forth in subsection (a), the court shall follow the general principle

that the sentence imposed should call for total confinement that

is consistent with section 9725 (relating to total confinement) and

the protection of the public, the gravity of the offense as it relates

to the impact on the life of the victim and on the community, and

the rehabilitative needs of the defendant. The court shall also

consider any guidelines for sent encing and resentencing adopted

by the Pennsylvania Commission on Sentencing and taking effect

under section 2155 (relating to publication of guidelines for

sentencing, resentencing and parole, risk assessment instrument

and recommitment ranges following r evocation). In every case in

which the court imposes a sentence for a felony or misdemeanor,

modifies a sentence, resentences a person following revocation of

probation or resentences following remand, the court shall make

as a part of the record, and disc lose in open court at the time of

sentencing, a statement of the reason or reasons for the sentence

imposed. In every case where the court imposes a sentence or

resentence outside the guidelines adopted by the Pennsylvania

Commission on Sentencing under se ctions 2154 (relating to

adoption of guidelines for sentencing), 2154.1 (relating to

adoption of guidelines for restrictive conditions), 2154.3 (relating

to adoption of guidelines for fines), 2154.4 (relating to adoption

of guidelines for resentencing) and 2154.5 (relating to adoption of

guidelines for parole) and made effective under section 2155, the

court shall provide a contemporaneous written statement of the

reason or reasons for the deviation from the guidelines to the

commission, as established unde r section 2153(a)(14) (relating to

powers and duties). Failure to comply shall be grounds for

vacating the sentence or resentence and resentencing the

defendant.

42 Pa.C.S. § 9721(b).

Weimer contends that the trial court did not adhere to the requirements

of section 9721 , and imposed an excessive sentence, for the following

reasons: (1) it failed to consider mitigating factors such as his minimal criminal

history, ability to contribute to society if released, and good conduct in prison

while incarcerated pr ior to the resentencing hearing; (2) it ignored theJ

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sentencing guidelines; (3) it failed to provide reasons for sentencing him

above the guideline ranges; (4) it did not consider Weimer’s rehabilitative

needs; and (5) the court placed undue and improper we ight on the “pre

sentence report and sentence [Weimer] served in 1993 after a misdemeanor

level conviction.” Weimer’s Brief at 26.

Weimer’s arguments challenge the discretionary aspects of his

sentence.

Challenges to the discretionary aspects of sentenc ing 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

[the] 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.C rim.P. 720; (3) whether [the]

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.[] § 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)....

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 questio n

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 proce ss.”

Sierra, supra at 912

– 13.J

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

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

As stated supra , Weimer filed a timely notice of appeal. He also filed a

timely post

- sentence motion challenging his sentence. However, in that

motion, Weimer did not assert that the court failed to consid er his minimal

criminal history, ability to contribute to society , or rehabilitative needs

.

Weimer also does not cite to where he raised these issues before the court at

his resentencing hearing. Therefore, these claims are waived. See Griffin

,

65 A.3d at 936 ( “[I] ssues challenging the discretionary aspects of a sentence

must be raised in a post

- sentence motion or by presenting the claim to the

trial court during the sentencing proceedings. Absent such efforts, an

objection to a discretionary aspect of a sentence is waived.” ) (citation

omitted).

Additionally, Weimer did not raise

, in his Rule 1925(b) statement

, h is

contention that the court failed to consider the mitigating factor of his good

conduct while incarcerated prior to the resentenc ing hearing. Notably, the

court informed Weimer, in its order to file a concise statement, that any issue

not set forth ther ein would be deemed waived. See Rule 1925(b) Order

,

10/17/18, at 1 (single page). Consequently, this claim is waived , as well

.

See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or

not raised in accordance with the provisions of t his paragraph (b)(4) are

waived.”).J

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In regard to Weimer’s remaining arguments , the Commonwealth

adamantly objects to the adequacy of his Rule 2119(f) statement. Therein,

Weimer states, in total, the following:

Commonwealth v. Goggins , 748 A.2d 721 (Pa. S uper. []

2000)[,] requires that the Pa.R.A.P. 2119(f) Statement for

purposes of 42 Pa.C.S. § 9781(b) must specify where the sentence

falls in relation to the sentencing guidelines, what particular

provision of the sentencing code the sentence violates, wha t

fundamental norm the sentence violates, and the manner in which

it violates that norm.

Based on the Pennsylvania Commission on Sentencing

Guideline Sentence Forms used in this matter, the ranges of

sentences are as follows

- [a] t each count of IDSI [,] the offense

gravity score is twelve. [Weimer’s] criminal history category is

two. The sentencing guideline range is 48 months in the mitigated

range, 60

– 78 months in the standard range and 90 months in the

aggravated range. For Unlawful Contact With a Minor (F3)[,] the

offense gravity score is five and the sentencing guideline range is

non

- confinement in the mitigated range, 3

– 14 months in the

standard range and 17 months in the aggravated range.

[Weimer’s] sentence, considering the advisory guidelines

range for each count of conviction to which Appellant was

sentenced, is manifestly excessive.

Weimer’s Brief at 12.

Clearly, Weimer did not present in his Rule 2119(f) statement m any of

the discrete claims he raises in the Argument section of his brief, o r explain

how those claims constitute substantial questions for our review. Additionally,

to the extent that he baldly states that his sentence is manifestly excessive

considering the applicable guideline ranges, we agree with the

Commonwealth’s lengthy a rgument that Weimer has not demonstrated a

substa ntial question for our review. See Commonwealth’s Brief at 6

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Commonwealth v. Reynolds , 835 A.2d 720, 733 (Pa. Super. 2003), we held

that bald allegations presented in a Rule 2119(f) statement do not present a

substan tial question

. Additionally, we have explained that “ t his Court is not

persuaded by bald assertions or the invocation of special words in a concise

statement of reasons; [t]o the contrary, a concise statement must articulate

the way in w hich the court’s conduct violated the sentencing code or

process.” Commonwealth v. Cannon , 954 A.2d 1222, 1229 (Pa. Super.

2008) (citation omitted).

A Rule 2119(f) statement that simply “contains incantations of

statutory provisions and pronouncements of conclusions of law” is

inadequate.

R ather, only where the appellant’ s Rule 2119(f) statement

sufficiently articulates the manner in which the sentence

violates either a specific provision of the sentencing scheme

set forth in the Sentencing Code or a particular fundamental

norm underlying the sentencing process, will such a

statement be deemed adequate to raise a substantial

question so as to permit a g rant of allowance of appeal of

the discretionary aspects of the sentence.

Commonwealth v. Bullock

, 868 A.2d 516

, 529 (Pa. Super. 2005) (quoting

Commonwealth v. Mouzon

, 812 A.2d 617, 627 ( Pa. 2002) )

.

Here , as the Commonwealth observes, Weimer’s

[Rule] 2119(f) statement fails to provide even the most basic data

that the Court needs to determine whether a “substantial

question” exists. The statement does not even inform the Court

of what sentence was imposed, much less where the sentence falls

in relation to the Sentencing Guidelines. The statement does not

articulate reasons why that sentence raises doubts as to whether

the trial court properly considered the sentencing guidelines. It

does not specify what particular provision of the Sentencing Code

has been violated, what fundamental sentencing norm wasJ

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violated, or in what manner the sentence violated any norm or

Code provision. The statement does not identify any alleged

breach of legal principles or provisions by the sentencing court.

As a result, this Court is placed in the position of having to

speculate as to the nature of, or basis for, [Weimer’s] claim that

a substantial question exists. In short, [Weimer’s] “mere

assertion” that a substantial question exists does not prove that

one do es.

Commonwealth’s Brief at 14

- 15 (citations omitted).

We are compelled to agree with the Commonwealth that the cursory,

single

- sentence claim by Weimer that , given the applicable guideline ranges,

his sentence is manifestly excessive is insufficient to demonstrate a

substantial question warranting our review. Moreover, Weimer does not set

forth in his Rule 2119(f) statement any of the other, more specific sentencing

challenges that he presents in his Argument section. Accordingly, he has

failed to esta blish that a substantial question exists for our review.

Judgment of sentence affirmed.

President Judge Emeritus Stevens joins this memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/27/202 0