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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

GERONAMI PAUL KATTUPALLI

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1878 MDA 2018 Appeal from the Judgment of Sentence Entered July 23, 2018 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001252

- 2016

BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J. MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 05, 2019 Geronami Paul Kattupalli (Kattupalli) appeals from the judgment of sentence imposed by the Court of Common Pleas of Centre County (trial court) following his jury conviction of v iolation of the Radiation Protection Act , 35 P.S. §§ 7110.101

- 7110.703 (Act)

. 1 We affirm.

_________________ __________ ______ ____ _______ 1 35 P.S. § 7110.308 , which provides as follows: ( a ) Summary offense

. -- Any person, other than a municipal official exercising his official duties, who violates any provisions of this act or any rules or regulations or order promulgated or issued hereunder commits a summary offense and shall, upon conviction, be sentenced t o pay a fine not less than $100 and not more than $1,000 for each separate offense and in default thereof shall be imprisoned for a term of not more than 30 days. All summary proceedings under this act may be brought before any district justice or magistr ate in the county where the offense was committed and to that end jurisdiction is hereby conferred uponJ

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Kattupalli is a physician and owned and operated a clinic called Dr. Paul’s Clinic. His convict ion stems from directing his then medical assistant, Chelsey
Brown , to perfo rm X

- rays on patients even though she is not a licensed X

- ray technician. T he trial court sentenced Kattupalli to pay a fine in the amount of $32, 500.00 and the costs of prosecution

. After the trial court de nied his post

sentence motion, Kattupalli timely appealed

. Kattupalli and the trial court complied with Rule 1925. See Pa.R.A.P. 1925(a)

- (b).

_________________ __________ ______ ____ _______ district justices and magistrates, subject to appeal by either party in the manner provided by law. ( b) Misdemeanor

. -- Any person, other than a municipa l official exercising his official duties, who violates any provision of this act or any rule or regulation or order promulgated or issued hereunder, within two years after having been convicted of any summary offense under this act, commits a misdemeanor of the third degree and shall, upon conviction, be sentenced to pay a fine of not less than $1,000 but not more than $25,000 for each separate offense or imprisonment in the county jail for a period of not more than one year, or both. ( c) Felony

. -- Any person who intentionally, knowingly or recklessly violates any provision of this act, or any rule or regulation or order of the department or any term or condition of any permit, and whose acts or omissions cause or create the possibility of a public nuisa nce or bodily harm to any person, commits a felony of the second degree and shall, upon conviction, be sentenced to pay a fine of not less than $2,500 but not more than $100,000 per day for each violation, or to a term of imprisonment of not less than one year but not more than ten years, or both.J

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- I .

Kattupalli first contends that the trial court erred in failing to rule that S ection 7110.308 (c) of the Act is unconstitutional because it is void fo r vagueness because it does not define the criminal offense in a way that ordinary people can determine what conduct is prohibited. ( See Kattupalli’s Brief, at 14

- 20). 2 First, he alleges that the felony section sets forth that a defendant must “ intentio nally, knowingly, or recklessly” violate any provision of th e Act that somehow makes the summary mens rea for the summary the same as the felony provision. He then contends that because the mens rea is the same, whether a person is prosecuted for a felony or summary offense , is left completely to the discretion of the prosecuting agency, leading to arbitrary enforcement. ( See id. ).
P reliminarily, we note the “general proposition that issues regarding [t]he constitutionali ty of a statute can be waived.” C ommonwealth v.
Lawrence , 99 A.3d 116, 122 (Pa. Super. 2014), appeal denied , 114 A.3d 416 (Pa. 2015) (citation omitted). “ An appellate court should not address constitutional issues unnecessarily or when they are not properly presented

_________________ __________ ______ ____ _______ 2 “ The constitutionality of a statute presents a question of law and this Court’s review is plenary. A statute duly enacted by the General Assembly is presumed valid and will not be declared unconstitutional unl ess it clearly, palpably and plainly violates the Constitution

. Accordingly, any party seeking to overcom e that presumption of validity bears a heavy burden of persuasion.” J. & S.O. v. C.H. , 206 A.3d 1171, 1174 (Pa. Super. 2019) (citations omitted).J

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and preserved in the trial court for our appellate review.” Commonwealth v. Berryman , 649 A.2d 961, 973 ( Pa. Super. 1994) , appeal denied , 663 A.2d 685 (Pa. 2005) (citation omitted). This C ourt cannot consider an appellant’s constitutional arguments where he failed to raise them in pre

- trial filings or during trial. See Commonwealth v. Danko , 421 A.2d 1165, 1167 (Pa. Super. 1980)

. Instantly, Kattupalli’s pre

- trial memorandum does not raise any challenge to the Act and does not refer to the statutory provision at issue at all. ( See Defendant’s Pretrial Memorandum, 3/14/18, at 1). Although Kattupalli made an oral motion to dismiss on the first day of trial, he argued only that there was a co nstitutional due process violation because the term “bodily harm” lacked a working definition. (N.T. Trial, 3/19/18, at 7). Therefore, we may not consider Kattupalli’s remaining constitutional arguments which he did not raise in a pre

- trial motion or at trial because they are waived. See Danko , supra at 1167

. Kattupalli also maintains that S ection 7110.308 (c) is void for vagueness because the terms “bodily harm” and “public nuisance” are not defined in the Act. ( See id. at 16

- 17). W e note, “[t ]he void

- for

- vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory

en for cement.” Commonwealth v. Mayfield , 832 A.2d 418, 422 ( Pa. 2003)J

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(citation omitted). “ [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. ” Id. (citation omitted). “ Due process is satisfied if the statute provides reasonable standards by which a person may gauge his futu re conduct.” Id. (citation omitted). “It is well es tablish ed that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” Id. (citation omitted). Additionally, “when ascertaining the meaning of a statute, if the langu age is clear, we give the words their plain and ordinary meaning.” Commonwealth v. DeNapoli , 19 7 A.3d 771, 776 (Pa. Super. 2018), appeal denied , 206 A.3d 495 (Pa. 2019) (citation omitted). Instantly, we agree with the Commonwealth that the term “bodily ha rm” is generally familiar and can be assigned its plain and ordinary meaning, i.e. , that a patient’s body suffers a harm such as a physical ailment or injury. ( See Commonwealth’s Brief, at 16). We cannot conclude that the term is “ so vague that men of common intelligence must necessarily guess at its meaning [.]” Mayfield , supra at 422 . Thus, Kattupalli has not met his heavy burden of demonstrating that S ection 7110.308 (c) of the Act is unconstitutional. See J. & S.O. , supra at 1174

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- II . Citing to the United States S upreme Court’s decision in McCoy v. Louisiana , 138 S.Ct. 1500 (2018), Kattupalli next claims trial court error in the denial of his request for a new trial because trial counsel admitted Kattupalli’s guilt in front of the jury without his consent

. In McCoy , the defendant’ s counsel conceded that his client committed three murders during the guilt phase of a capital trial, despite the defendant ’s strong objection to any admission of guilt. See id. at 1505. T he McCoy Court held that crim inal defendants have a Sixth Amendment right “to insist that counsel refrain from adm itting guilt, even when counsel’ s experienced

- based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.” Id. 3 In contrast, in t he instant case, a review of the record reflects that defense counsel did not admit Kattupalli’s guilt

. Instead, counsel expressly stated “no crime was committed, and I am going to ask you to find Mr. Kattupalli not guilty[.]” (N.T. Trial, 3/19/18, at 38 ). Although counsel did concede that his client was “not compliant with the regulations[,]” counsel qualified that admission by explaining that “this should be a case where Dr.

_________________ __________ ______ ____ _______ 3 The McCoy Court explained that counsel’s admission of a client’ s guilt over the cli ent’s express objection is a structu ra l error requiring a new trial. Se e McCoy , supra at 1512. Kattupalli’s issue , therefore , poses a pure question of law, to which we ap ply a de novo standard of review. See Commonwealth v. Tejada , 188 A.3d 1288, 1292

– 93 (Pa. Super. 2018)

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Kattupalli receives a fine, not a criminal action[.]” ( Id. at 38

- 39). Counse l further explained that regulatory noncompliance should “not lead to criminal charges and certainly not a criminal conviction, ” and that “the Commonwealth’s case absolutely fails[.]” ( Id. at 47

- 48). Thus, Kattupalli’s claim that counsel admitted his guilt at trial is belied by the record, which clearly shows that counsel instead repeatedly argued that criminal charges should never have been brought in this case.
III . Kattupalli’s final two issues challenge the propriety of the trial court’s jury instr uctions. 4 He first asserts that the court erred in failing to define two terms inclu ded in the Act, i.e. , “public nuisance” and “bodily harm.” ( See Kattupalli’s Brief, at 22

- 23). Kattupalli also contends that the court erred in failing to make clear to the jury in either its oral instruction or the verdict slip that it was required to unanimous ly find that Kattupall i’s conduct constituted either a “public nuisance” or a “bodily harm.” ( Id. at 24

- 25). It is well

- settled that “[a] specific and timely obje ction must be made to preserve a challenge to a particular jury instruction. Failu re to do so results in waiver.” Commonwealth v. Proctor , 1 56 A.3d 261, 270 (Pa. Super.

_________________ __________ ______ ____ _______ 4 “ [ W]hen evaluating the propriety of jury instructions, this Court will look to the instructions as a whole, and not simply isolated portions, to determine if th e instructions were improper. . . . Only where there is an abuse of discretion or an inaccurate statement of the law is there reversible error. ” Commonwealth v. Johnson , 192 A.3d 1149, 1153 (Pa. Super. 2018), appeal denied , 200 A.3d 440 (P a. 2019) (citation omitted)

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2017), appeal denied , 172 A.3d 592 ( Pa. 2017) (citation omitted) ; see also Pa.R.Crim.P. 647 (C) (“No portions of the [jury] charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate.” ). Likewise, “ the failure to object to an improper verdict s lip before deliberations also waives any complaint relating thereto.” Commonwealth v. Dorm , 971 A.2d 1284, 1288 (Pa. Super. 2009) (citation omitted). Here, the record reflects that defense counsel did not lodge a contemporaneo us objection to the trial cou rt’ s instruction on the elements of the crime

. ( See N.T. Trial, 3/20/18 , at 185 ). Further, after the court issued the charge, defense counsel expressly stated: “Judge, I have no objection to the charge.” ( Id. at 194). Thus, Kattupalli’s challenge to the trial court’s
instruction s fails. To the ex tent that Kattupalli claims error with regard to the verdict slip,
we agr ee with the Commonwealth that such argument is also waived

. In his appellate brief, Kattupalli fails to identif y where in the record th is contention is preserved , and the portions of the record that he does reference do not show any objection to the verdict slip

. See Pa.R.A.P. 2119(c), 2101 ; ( see also Kattupalli’s Brief, at 24) . This is especially problematic in light of the Commonwealt h’ s contention that Kattupalli never objected to the verdict slip , as well as the trial court’s observation that defense counsel did not seek to add any specific question regarding the two alternatives to the verdict slip

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( See Commonwealth’s Brief, at 5; 24

- 25 ; Trial Court Opinion, 10/16/18, at 6 ). In fact, the proposed verdict slip submitted by defense counsel prior to trial is nearly identical to the verdict slip actually used by the trial court. ( See Defendant’s Pretrial Memorandum, 3/14/18, Exhibi t A; Verdict Slip, 3/21/18). Theref ore, Kattupalli’s final issue fails. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/5/2019