J-S35006-17

2017 PA Super 212

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PAUL DAVID WEIMER

Appellant No. 1042 WDA 2016

Appeal from the PCRA Order July 12, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011522-2010,

CP-02-CR-0011523-2010, CP-02-CR-0011535-2010

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

OPINION BY LAZARUS, J.: FILED JULY 7, 2017

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,1and remand for resentencing.

A prior panel of this Court aptly set forth the procedural history of this 

case as follows:

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 See No. CC 201022522 (R.Z.); No. CC201011523 (M.G.); and No. CC 

201011535 (J.D.).
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[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, 133 WDA 2012 (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 
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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, 

____________________________________________

2 See 42 Pa.C.S.A. §§ 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 will be a lifetime 

registrant. See 42 Pa.C.S.A. §§ 9799.14(d)(4), 9799.15(a)(3).

3 No further penalty was imposed on the remaining charges for which 

Weimer was convicted. 
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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).
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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 

(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 
J-S35006-17

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“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, 140 A.3d 651, 663 

(Pa. 2016).5 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).6 Accordingly, the 

____________________________________________

4 Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that 

“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ 

that must be submitted to the jury and found beyond a reasonable doubt.”).

5 We note that the trial court incorrectly cites to Commonwealth v. 

Matteson, 96 A.3d 1064 (Pa. Super. 2014), to conclude that section 9718 

does not violate Alleyne principles. In Wolfe, supra, our Supreme Court 

held that “[Commonwealth v.] Newman abrogated this Court’s decision in 

Matteson” and that a sentence applying section 9718 is illegal. Id. 140 

A.3d at 806.

6 Although we recognize the apparent viability of Commonwealth v. Ruiz, 

131 A.3d 54 (Pa. Super. 2015), which held that a defendant could succeed 

on an Alleyne challenge in a timely PCRA petition if the defendant’s 

(Footnote Continued Next Page)
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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.7 

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 

(Footnote Continued) _______________________

judgment of sentence was not final at the time Alleyne was decided, the 

viability of that decision is currently under review. See Commonwealth v. 

Dimatteo, 2017 Pa. LEXIS 378 (filed 2/15/17) (granting petition for 

allowance of appeal, in case applying Ruiz, and denoting issue as whether 

decision conflicts with Washington and whether the panel “ordered 

inappropriate relief, in that, the panel vacated that portion of the plea 

defendant challenged and remanded for resentencing” and noted that 

“defendant . . . is not [entitled to relief].”).

7 We note that the proper grading of an offense is a challenge to the legality 

of a sentence. Commonwealth v. Tustin, 888 A.2d 843 (Pa. Super. 

2005).
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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 

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 

follows:

(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).

In order to be convicted under section 6318, a defendant does not 

have to be convicted of the underlying offense for which he contacted the 
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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.

Instantly, 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 
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6318 conviction to how Commonwealth charges and presents its case to 

jury). 

Here, the bill of information,8 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 section 6320[9] namely, Involuntary 

____________________________________________

8 Notably, in the criminal complaint, the Commonwealth charged Weimer 

with unlawful contact with a minor under a different subsection, as follows:

18 [Pa.C.S. §] 6318[(a)(1)] UNLAWFUL CONTACT WITH MINOR -

FELONY 1 OFFENSE ENUMERATED IN CHAPTER 31 Fl 1 COUNT

The actor intentionally contacted a minor namely, A 

KNOWN 14 YEAR-OLD MALE for the purpose of engaging in 

the activity of INVOLUNTARY DEVIATE SEXUAL 

INTERCOURSE in violation of 18 [§]Pa.C.S. §6318(a)(1).

9 Section 6320 delineates the crime of “sexual exploitation of children,” not 

involuntary deviate sexual intercourse, which is found at 18 Pa.C.S. § 

3123(a)(1). Sexual exploitation of children is defined as:

(a) Offense defined. — A person commits the offense of 

sexual exploitation of children if he procures for another person 

(Footnote Continued Next Page)
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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).

In 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 

(Footnote Continued) _______________________

a child under 18 years of age for the purpose of sexual 

exploitation.

(b) Penalty. — An offense under this section is a felony of the 

second degree.

(c) Definitions. — As used in this section, the following words 

and phrases shall have the meanings given to them in this 

subsection:

“Procure.” —To obtain or make available for sexual exploitation.

“Sexual exploitation.” —Actual or simulated sexual activity or nudity 

arranged for the purpose of sexual stimulation or gratification of any person.

10 We note that the Pennsylvania Supreme Court recently granted allowance 

of appeal in Aikens limited to the issue of whether “the court illegally 

sentence[d] Aikens on unlawful contact with a minor graded as an F-1 when 

it should have been graded as an F-3”? See Commonwealth v. Aikens, 

268 EAL 2016 (Pa. filed 11/2/16).
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trial court graded the defendant’s section 6318 conviction as a first-degree 

felony, based on its charge to the jury, which stated:

[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 minor.’” Id.

Unlike 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 
J-S35006-17

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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; Aikens, supra.

Based 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 

____________________________________________

11 Moreover, even if the jury had read the information for purposes of 

determining what, if any, of the crimes listed in it may have constituted the 

underlying offense for which Weimer contacted J.D., our decision about 

grading the offense would not change. The discrepancies in the 

Commonwealth’s bill of information create further confusion with regard to 

exactly which subsection of section 6318, and its delineated crimes, the 

Commonwealth intended to use as the “underlying offense.” While the 

information states that Weimer contacted J.D. 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 section 6320,” the 

information later states that the underlying offense is the crime of IDSI, 

found at section 3123. See supra nn.9-10. These crimes not only have 

differing elements, but are also graded differently.
J-S35006-17

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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 resentencing. 

In his 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).

Weimer 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. 

While 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 
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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, 7/12/16.12 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).

Order reversed. Judgments of sentence vacated. Case remanded for 

resentencing consistent with this opinion. Jurisdiction relinquished.13

____________________________________________

12 To the extent that Weimer filed pro se supplemental petitions in the court 

below, we note that the record reflects that he was still represented by 

Attorney Farrell. Although counsel filed a motion to withdraw, the trial court 

never granted that motion. In fact, Attorney Farrell remains listed as 

counsel on appeal. See Pa.R.Crim.P. 576(a)(4) (pro se filings of 

represented litigants); Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993).

13 We instruct the parties to attach a copy of Judge McDaniel’s opinion in the 

event of further proceedings in the matter.
J-S35006-17

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/7/2017
Michael Streily, DDA 

Office of the District Attorney 

401 Courthouse 

436 Grant Street 

Pittsburgh, PA 15219 

Thomas N. Farrell, Esq. 

100 Ross Street, Suite 1 

Pittsburgh, PA 15219 

Copies mailed to: 

Filed By: 

Hon. Donna Jo McDaniel 

OPINION 

SUPERIOR COURT 

No. 1042 WDA 2016 

CC Nos. 201011522, 201011523, 

201011535. 

CRIMINAL DIVISION 

Dated: 10-13-2016 

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PAUL WEIMER, 

Defendant. 

vs. 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

C) 

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,....\ 

- 

1-OPINION

Circulated 05/31/2017 03:59 PM
2 18 Pa.C.S.A. §3121(a)(1) 

3 18 Pa.C.S.A. §3123(a)(7) 

4 18 Pa.C.S.A. §3122.1 

5 18 Pa.C.S.A. §6318(a)(6) 

6 18 Pa.C.S.A. §4304 

7 18 Pa.C.S.A. §2903(a) 

8 18 Pa.C.S.A. §630 l(a)(l) 

I Due to the numerous charges, this Court has created a chart showing the charges, their disposition and resulting 

sentence, which it has attached to this Opinion as Appendix I. 

Endangering the Welfare of a Child,6 False Imprisonment," Corruption of Minors8 and Selling or 

Deviate Sexual Intercourse,3 Statutory Sexual Assault,4 Unlawful Contact with a Minor, 

5 

The Defendant was charged with a total of 21 counts1 encompassing Rape,2 Involuntary 

therefore, this Court's Order should be affirmed. 

record reveals that the Defendant has failed to present any meritorious issues on appeal and, 

his Amended Post Conviction Relief Act Petition without a hearing. However, a review of the 

The Defendant has appealed from this Court's Order of July 12, 2016, which dismissed 

OPINION 

Defendant 

PAUL WEIMER, 

V. CC: 201011522, 201011523, 201011535 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 
2 

9 I 8 Pa.C.S.A. §6310.1 (a) 

conclusion of the Commonwealth's case, this Court granted the Defendant's Motion for 

Judgment of Acquittal at the False Imprisonment charge and denied it at all other counts. The 

jury returned a verdict of Not Guilty to the Rape charges at CC 20 l O 11522 and the IDSI, 

Indecent Assault and Statutory Sexual Assault charges at CC 201011535 and guilty of all 

remaining charges. The Defendant next appeared before this Court on March 13, 2012, when he 

was found to be a Sexually Violent Predator and was sentenced to two (2) consecutive terms of 

imprisonment of 10 to 20 years and one (1) consecutive term of imprisonment of five (5) to 10 

years, for an aggregate sentence of 25-50 years. Post-Sentence Motions were granted as to the 

sentencing credit issue and denied in all other respects. The judgment of sentence was affirmed 

by the Superior Court on August 1. 2013 and the Defendant's subsequent Petition for Allowance 

of Appeal was denied on November 27, 2013. 

No further action was taken until April 7, 2014 when the Defendant filed a pro se Post 

Conviction Relief Act Petition. Thomas Farrell, Esquire, was appointed to represent the 

Defendant and an Amended PCRA Petition was filed on June 16, 2015. After reviewing the 

Amended Petition and record and the Conunonwealth's response thereto, this Court gave notice 

of its intent to dismiss the Petition on February 25, 2016. After again reviewing the record in 

light of the Defendant's Response to the Notice of Intent, this Court dismissed the Amended 

Petition without a hearing on July 12, 2016. This appeal followed. 

and lived in his home. A jury trial was held before this Court in August, 2011. At the 

Furnishing Liquor to Minors9 in relation to various incidents with three young men who visited 
3 

10 Reference is made to the oft-cited quote from Judge Aldisert: "With a decade and a half of federal appellate court 

experience behind me, I can say that even when we reverse a trial court, it is rare that a brief successfully 

demonstrates that the trial court committed more than one or two reversible errors ... When I read an appellant's brief 

that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that this is 

an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate 

advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness." Aldisert, The Appellate Bar: 

Professional Competence and Professional Responsibility - a View from the Jaundiced Eye of One Appellate Judge, 

11 Cap.U.L.Rev. 445, 458 (1982). 

such error." Commonwealth v. Gibson, l 9 A.3d 512, 525-26 (Pa. 2011 ). "The law presumes that 

is a reasonable probability that the result of the proceedings would have been different absent 

is of arguable merit; (2) no reasonable basis existed for counsel's action or inaction; and (3) there 

Petitioner must demonstrate, by a preponderance of the evidence, that: (1) the underlying claim 

counsel. In order to establish a claim for the ineffective assistance of counsel, "a PCRA 

Initially, the Defendant raises a number of claims directed to the ineffective assistance of 

some issues and re-ordered them for ease of review. They are addressed as follows: 

On appeal, the Defendant raises nine (9)10 claims of error. This Court has combined 

Defendant to have sex with him as well (T.T., p. 230) 

the Defendant induced him into inviting over another boy, Rick Zimmerman, in order for the 

the young teenagers performed oral sex on the Defendant (T.T., p. 222). Diaz also testified that 

sex "foursome" while the Defendant watched (T.T., p. 220), and had Diaz watch while other of 

Defendant (T. T., p. 226), induced Diaz and three other young teenage boys into having an oral 

(T.T., p. 216), performed anal sex on him (T. T., p. 218), forced Diaz to perform oral sex on the 

(Trial Transcript, p. 216, 229), touched his private parts (T.T .. p. 221), performed oral sex on him 

times when he was at the Defendant's house, Diaz testified that the Defendant gave him liquor 

between the ages of 13 and 15, Jason Diaz did odd jobs at the Defendant's house. At various 

By way of a brief review, the evidence presented at trial established that when he was 
4 

Attorney Michelle Collins of the Public Defender's Office was initially appointed to 

represent the Defendant but prior to trial, the Defendant became dissatisfied with her personaJly 

and sent her a letter demanding that she withdraw. Attorney Collins did not withdraw but instead 

transferred the case to another Public Defender, Carrie Allman, Esquire. Attorney Allman 

represented the Defendant through trial and. according to correspondence submitted by the 

Defendant, he remained pleased with her services until he was convicted at which point he 

became dissatisfied with her. 

counsel was not ineffective, and the appellant bears the burden of proving otherwise ... [I]f the 

issue underlying the charge of ineffectiveness is not of arguable merit, counsel will not be 

deemed ineffective for failing to pursue a meritless issue... Also, if the prejudice prong of the 

ineffectiveness standard is not met, 'the claim may be dismissed on that basis alone and (there is 

no] need [to] determine whether the [arguable merit] and [client's interests] prongs have been 

rnet."" Commonwealth v. Khalil, 806 A.2d 415, 421-2 (Pa.Super. 2002). "With regard to the 

reasonable basis prong, [the appellate court] will conclude that counsel's chosen strategy lacked 

a reasonable basis only if the petitioner proves that the alternative strategy not elected offered a 

potential for success substantially greater than the course acutely pursued." Commonwealth v. 

Busanet, 54 A.3d 35. 46 (Pa. 2012). 

1. Ineffective Assistance of Counsel - Motion to Withdraw 

Initially, the Defendant argues that his first appointed attorney, Michelle Collins, Esquire, 

was ineffective for failing to file a Motion to Withdraw from her representation. This claim is 

meritless. 
5 

It is well established that "the right to appointed counsel does not include the right to 

counsel of the defendant's choice." Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998). 

Additionally, the decision of "whether to grant a defendant's petition to replace court appointed 

counsel is a decision which is left to the sound discretion of the trial court. As a general rule, 

however, a defendant must show irreconcilable differences between himself and his court 

appointed counsel before a trial court will be reversed for abuse of discretion in refusing to 

appoint new counsel. Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa.Super. 2007), internal 

citations omitted. Our courts have held that '"substantial reasons' or 'irreconcilable differences' 

warranting appointment of new counsel are not established where the defendant merely aJleges a 

strained relationship with counsel, where there is a difference of opinion in trial strategy, where 

the defendant lacks confidence in counsel's ability, or where there is brevity of pretrial 

communications. Id. 

That the Defendant now seeks to raise an ineffectiveness claim against Attorney Collins 

is somewhat confusing to this Court. The Defendant's own pleadings indicate that his conflict 

with Attorney Collins was personal to her and not with the Public Defender's Office as a whole, 

and that once Attorney Allman, also from the Public Defender's Office, took over the case, the 

Defendant was satisfied with the transfer. 

In order to sustain a claim for ineffective assistance, the Defendant would have to 

establish that had Attorney Collins filed a formal Motion to Withdraw, rather than simply 

transferring the case to another attorney. the result would have been different. The Defendant 

fails to establish that this Court would have even granted the Motion to Withdraw, let alone the 

remaining elements of his ineffectiveness claim. It is not this Court's practice to allow 
6 

defendants to serially request new attorneys for reasons of irreconcilable differences (which in 

this case appeared to be the Defendant's personal conflict with Attorney Collins and not an error 

or omission on her part) and this Court can say with certainty that had such a Motion been 

presented, this Court would have denied it. Thus, Attorney Collins· actions in transferring the 

case to Attorney Allman in her office actually resulted in the Defendant getting the relief he 

wanted (a new attorney), which he would otherwise not have been able to do. For her part, 

Attorney Allman performed ably and well at trial and the Defendant's rights and interests were 

well-represented (and indeed, the Defendant was pleased with her services up until the guilty 

verdict). Whatever the dispute between the Defendant and Attorney Collins, it did not impede 

the Defendant's right to a fair trial and to effective counsel in Attorney Allman. This claim is 

merit less. 

2. Ineffective Assistance of Counsel - Motion to Suppress 

Next, the Defendant argues that trial counsel was ineffective for failing to file a Motion to 

Suppress an email between the Defendant and victim Jordan Campbell because it was not 

included as a subject of the search warrant executed at the Defendant's home. Again, this claim 

is meritless. 

At trial, during the cross-examination of victim Jordan Campbell, Attorney Allman 

questioned the witness regarding a document which included a photo of a man (later identified as 

the witness' friend, Chuck) above an email from the Defendant to Campbell dated April 29, 

2010. The email was printed in its entirety and was completely legible. That document was 

marked as Defense Exhibit A and was later admitted. Then, on re-direct, the Commonwealth 
7 

MS. ALLMAN: Yes, Your Honor. I'll grab my stickers. 

THE COURT: Can we mark that as Defense A, please, for purposes of the record. 

A. I told him that we had hung out, not that he had actually had any sort of 

sexual relationship. 

Q. Did you ever tell Mr. Weimer that you had a sexual relationship with 

Chuck? 

A. No. 

Q. Not prior to Mr. Weimer? 

A. No. 

Q. Did you have any relationship with Chuck of a sexual nature? 

A. He had expressed doubts about his sexuality. 

Q. Is he homosexual? Do you know? 

A. Yes. 

Q. Okay. So he's an adult male, as well? 

A. Chuck is 32. 

Q. How old's Chuck? 

A. This is my friend, Chuck. 

Q. Who's that person? 

A. (Jordan Campbell): Yes. 

Q. (Ms. Allman): Mr. Campbell, do you recognize the person in that picture 

at all? 

Commonwealth's Exhibit 7: 

marked and admitted a text-only copy of the same email (without the picture) as 
8 

A. I don't recall. 

Q. Do you remember if you responded to this? 

A. I don't really remember. I believe I had just woken up and discovered that 

I had that email one morning. 

Q. And do you remember the context behind getting this email? 

A. Yes. 

Q. And in the recipient spot there, that's your email, right? 

A. Yes. 

Q. Okay. And that's his email as you knew it? 

A. Yes. 

Q. Okay. And you understood it to be from PauJ? 

A. This email is from Paul. 

Q. And who was this email from? 

THE COURT: Okay. 

MR. SCHULTE: I'm going to mark - this will be Commonwealth's Exhibit 7. 

skipped seven before. 

THE COURT: Can you tell me what exhibit we're on, please? 

A. (Jordan Campbell): I believe so, yes. 

Q. (Mr. Schulte): I'm going to show you a text of that email. Do you 

remember getting that email? 

REDIRECT EXAMINATION 

MR. SCHULTE: Just a very few questions. 

No further questions of this witness, Your Honor. 
9 

trial both as a general proposition and for a laundry list of perceived examples of ineffectiveness 

The Defendant now avers that Attorney Allman failed to zealously advocate for him at 

advocate for him at trial. Again, this claim is meritless. 

The Defendant also argues that trial counsel was ineffective in failing to zealously 

3. Ineffective Assistance of Counsel - Zealous Advocacy 

suppression. This claim must also fail. 

has utterly failed to establish his claim that counsel was ineffective for failing to seek the email's 

email first himself and was subsequently acquitted of all charges relating to Jordan Campbel1, he 

prejudice from the Commonwealth's use of the email. Insofar as the Defendant introduced the 

all charges relating to victim Jordan Campbell and he has thus utterly failed to establish any 

Moreover, the Defendant's argument also completely disregards that he was acquitted of 

prejudiced by the Commonwealth's later use of the same email. 

introduced the email himself before the Commonwealth did, he cannot claim that he was 

before the text-only copy was introduced by the Commonwealth. Because the Defendant 

completely disregards that the email was presented and marked as an exhibit by defense counsel 

suppression of the email as presented by the Commonwealth. However, this argument 

The Defendant now argues that trial counsel was ineffective for failing to seek 

(Trial Transcript, p. 84-86). 

THE COURT: Yes. It will be admitted. 

MR. SCHULTE: Your Honor, I've marked this as Commonwealth's Exhibit 7, 

and Pd move for its admission. And may I briefly publish it? 

Q. Okay. 
JO 

To the extent that the Defendant seeks to raise a claim regarding Ms. Allman's conduct in 

general, that claim is also meritless. After presiding at trial and having the opportunity to 

observe Ms. Allman's conduct both before and during trial, this Court feels that Ms. Allman was 

obviously well-prepared for trial, that she engaged in effective witness examinations, both on 

direct and cross-examination, that she made appropriate and effective arguments and, ultimately, 

that she presented the best defense she could with the facts she was given. It is also important to 

note that she did secure acquittals on the most serious charges. It is understandable that the 

Defendant is upset by the guilty verdicts, however, the mere fact that some of the verdicts were 

guilty does not mean that counsel was ineffective. As discussed above and below, there was no 

basis for a finding of ineffectiveness on any of the specific allegations, nor is there a basis for a 

.finding of cumulative ineffective assistance. This claim must also fail. 

which were not explained, discussed or analyzed. "When a court has to guess what issues an 

appellant is appealing, that is not enough for meaningful review. When an appellant fails 

adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial 

court is impeded in its preparation of a legal analysis which is pertinent to those issues. In other 

words, a Concise Statement which is too vague to allow the court to identify the issues raised on 

appeal is the functional equivalent of no Concise Statement at all." Commonwealth v. Reeves, 

907 A.2d 1, 2 (Pa.Super. 2006), citing Commonwealth v. Dowling, 78 A.2d 683, 686-7 

(Pa.Super. 2001 ). Given the lack of explanation or review, this Court is unable to provide any 

meaningful analysis of the Defendant's laundry list of perceived wrongs. As such, these claims 

of error are waived. 
11 

4. Ineffective Assistance of Counsel - Failure to Call Witness 

Next, the Defendant argues that trial counsel was ineffective in failing to present the 

testimony of Elizabeth Beroes, Esquire because "she was able to call into question the credibility 

of multiple Commonwealth witnesses" (Defendant's Amended PCRA Petition, Section IV). 

As it specifically relates to a claim for ineffectiveness for the failure to call a witness, the 

petitioner must establish that "(I) the witness existed; (2) the witness was available to testify for 

the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the 

witness was willing to testify for the defense; and (5) the absence of the testimony of the witness 

was so prejudicial as to have denied the defendant a fair trial." Commonwealth v. Matias, 63 A. 

3d 807, 810-811 (Pa.Super. 2013). "Ineffectiveness for failing to call a witness will not be found 

where a defendant fails to provide affidavits from the alleged witnesses indicating availability 

and willingness to cooperate with the defense." Commonwealth v. O'Bidos, 849 A.2d 243, 249 

(Pa.Super. 2004). "Failure to call a witness is not per sc ineffective assistance of counsel, for 

such a decision implicates matters of trial strategy. It is [the petitioner's] burden to demonstrate 

that trial counsel had no reasonable basis for declining to call [a particular person] as a witness. 

'Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed 

constitutionally effective if he chose a particular course that had some reasonable basis designed 

to effectuate his client's interests.' A claim of ineffectiveness generally cannot succeed 

through comparing, in hindsight, the trial strategy employed with alternatives not 

pursued." Commonwealth v. Hammond, 953 A.2d 544, 558 (Pa.Super. 2008), emphasis added. 

Here, the Defendant avers only that trial counsel was ineffective in failing to call 

Attorney Beroes because she would .. call into question the credibility of multiple 
12 

Commonwealth witnesses" (Defendant's Amended PCRA Petition. Section IV). The Defendant 

does not provide any specifics regarding the substance of her testimony, nor has he attached an 

affidavit from Attorney Beroes indicating the substance of her testimony and that she was willing 

and available to testify for the defense. The Defendant's argument that Attorney Beroes was 

sighted in the courtroom during trial does not mean that she was available and willing to testify 

on his behalf. 

Given the complete absence of any specific information regarding what Attorney Beroes' 

testimony would have been, any evidence that it would have changed the result or its absence 

deprived the Defendant of a fair trial, and any proof that she was willing and available to testify 

on the Defendant's behalf, the Defendant has utterly failed to establish his claim for ineffective 

assistance of counsel in this regard. This claim must also fail. 

5. Ineffective Assistance o/Counsel <Jury Instructions 

The Defendant also argues that this Court erred in instructing the jury that it did not need 

to determine the date the incidents occurred beyond a reasonable doubt. Again, this claim is 

merit less. 

When reviewing a challenge to jury instructions, "it is the function of [the appellate] 

court to determine whether the record supports the trial court's decision. In examining the 

propriety of the instructions a trial court presents to a jury, [the appellate court's] scope of review 

is to determine whether the trial court committed a clear abuse of discretion or an error of law 

which controlled the outcome of the case. A jury charge will be deemed erroneous only if the 

charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than 

clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by 
13 

Case law has further 'established that the Commonwealth must be afforded broad 

latitude when attempting to fix the date of offenses which involve a continuous 

course of criminal conduct'... This is especially true when the case involves a 

sexual offense against a child victim. 

However, 'due process is not reducible to a mathematical formula,' and the 

Commonwealth does not always need to prove a specific date of an alleged 

crime ... Additionally, 'indictments must be read in a common sense manner and 

are not to be construed in an overly technical sense'... Permissible leeway 

regarding the date varies with, inter alia, the nature of the crime and the rights of 

the accused ... 

It is the duty of the prosecution to 'fix the date when an alleged offense occurred 

with reasonable certainty' ... The purpose of so advising a defendant of the date 

when an offense is alleged to have been committed is to provide him with 

sufficient notice to meet the charges and prepare a defense. 

Pa.R.Crim.Pro. 560, emphasis added. 

(3) the date when the offense is alleged to have been committed if the 

precise date is known, and the day of the week if it is an essential 

element of the offense charged. provided that if the precise date is 

not known or if the offense is a continuing one, an allegation that it 

was committed on or about any date within the period fixed by 

the statute of limitations shall be sufficient; 

(b) The information shall be signed by the attorney for the Commonwealth 

and shall be valid and sufficient in law if it contains: 

Rule 560. Information: Filing, Contents, Function 

Pennsylvania law regarding the date of a crime is well-settled: 

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013). 

requested charge does not require reversal unless the Appellant was prejudiced by that refusal." 

not required to give every charge that is requested by the parties and its refusal to give a 

Consequently, the trial court has wide discretion in fashioning jury instructions. The trial court is 

what the trial judge said or there is an omission which is tantamount to fundamental error. 
14 

claim must also fail. 

was an accurate statement of law, counsel was not ineffective for failing to challenge it. This 

the offenses, because it was not. Because the jury instruction was consistent with the statute and 

This Court did not err in giving the instruction that date was not an essential element of 

(T.T. pp. 710, 715-716, 720-721). 

In order to find the defendant guilty of involuntary deviate sexual intercourse, you 

must find that the following elements have been met beyond a reasonable doubt. 

First, that the defendant had deviate sexual intercourse with the children. Second, 

that the children were under the age of 16. Third, that the defendant was four or 

more years older than the children. And, fourth, that the defendant and child were 

not married to one another .... 

.. . Don't let the name of this crime, involuntary deviate sexual intercourse, 

mislead you. It is immaterial to the charge of involuntary deviate sexual 

intercourse with a child under I 6 that the child did not object or resist or even that 

the child consented. When a child is under 16, the law treats deviate sexual 

intercourse as involuntary, even if the child is a willing partner. 

. . . The defendant is charged with three counts of involuntary deviate sexual 

intercourse. There are three alleged victims. One victim would apply to each 

count. The alleged victims are Mario Gorsop, Jason Diaz, Rick Zimmerman. 

... The indictments allege that the crimes were committed between March of2006 

and August of 2010. You are not bound by any of these dates that are alleged in 

the information. It is not an essential element of any of the crimes charged. You 

may find the defendant guilty if you are satisfied beyond a reasonable doubt that 

he committed the crime charged in the indictment, even though you are not 

satisfied that he committed it on a particular date that is alleged in the 

indictment ... 

THE COURT: It is not the defendant's burden to prove that he is not guilty. 

Instead, it is the Commonwealth that always has the burden of proving each and 

every element of the crimes charged beyond a reasonable doubt. A person 

accused of a crime is not required to present evidence or to prove anything in his 

own defense ... 

At the conclusion of the trial, this Court instructed the jury, in part. as follows: 

Commonwealth v. Brooks, 7 A.3d 852, 857-8 (Pa.Super. 2010). 
15 

fact(s) that was not submitted to the jury. See, e.g., Commonwealth v. Newman, 99 A.3d 86 

increase the minimum sentence, are unconstitutional because they require proof of an additional 

mandatory minimum sentencing schemes, which require certain factual findings to trigger or 

Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), holding that 

Our appellate courts have recently authored a line of cases following the United States 

18 Pa. C.S. §3 J 25(a)( 1) through (6) (relating to aggravated 

indecent assault) - not less than five years. 

18 Pa. C.S. §3123 (relating to involuntary deviate sexual 

intercourse) - not less than ten years. 

18 Pa.CS. §3121(a)(l). (2), (3), (4) and (5) (relating to rape)-not 

less than ten years. 

18 Pa.CS. §2702(a)(l) and (4) (relating to aggravated assault) - 

not less than two years. 

(1) A person convicted of the following offenses when the victim is less 

than 16 years of age shall be sentenced to a mandatory term of 

imprisonment asfollows: 

(a). Mandatory sentence. - 

§9718. Sentences for offenses against infant persons. 

sentences: 

Section 9718 of our Judicial Code provides for the following mandatory minimum 

error. However, a review of the record reveals that this claim is meritless. 

of the ineffective assistance of counsel in his Amended Petition, he now simply avers trial court 

Involuntary Deviate SexuaJ Intercourse charges. Although he initially framed this issues in terms 

The Defendant next avers that this Court imposed an illegal mandatory sentence at the 

6. Illegal Sentence - Involuntary Deviate Sexual intercourse 
16 

'The Alleyne decision ... renders those Pennsylvania mandatory minimum 

sentencing statutes that do not pertain to prior convictions constitutionally inform 

insofar as they permit a judge to automatically increase a defendant's sentence 

based on a preponderance of the evidence standard.'... However, the Sixth 

Amendment concerns present in Alleyne are not implicated in this case. Here, 

Matteson was charged with aggravated indecent assault of a child, which requires, 

inter alia, that the victim is less than 13 years of age. See 18 Pa.C.S.A. §3125. 

The victim testified that she was 11 years old at the time of the incident. .. The 

jury received an instruction that it was required to find that the victim was less 

judgment of sentence, the Superior Court stated: 

mandatory minimum sentencing schemes were, in general, unconstitutional. In affirming the 

charge. He appealed, claiming that his sentence was illegal pursuant to Alleyne and that 

minimum term of imprisonment of IO to 20 years at the Aggravated Indecent Assault of a Child 

Assault of a Child and Indecent Assault of a Person Under 13. He was sentenced to a mandatory 

1064 (Pa.Super. 2014). In Matteson, the defendant was convicted of Aggravated Indecent 

Our Superior Court addressed this identical issue in Commonwealth v. Matteson, 96 A.3d 

doubt. 

an element of the offense, the jury had already made the requisite finding beyond a reasonable 

was under age 16. Because the factor which gave rise to the mandatory minimum sentence was 

supra, because the crimes for which he was convicted required the jury's finding that the victim 

However, the Defendant's case is distinguishable from Newman, Valentine and Wolfe, 

age. 

minimum sentence pursuant to 42 Pa.C.S.A. §9718(a), where the victim was under 16 years of 

concerned sentencing enhancements for firearms violations and Wolfe concerned a mandatory 

Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014). Newman and Valentine both 

(Pa.Super. 20 I 4), Commonwealth v. Valentine, 101 A.3d 80 l (Pa.Super. 2014) and 
17 

(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, 

§6318. Unlawful contact with minor 

Children) pursuant to §6318(a)(6), as follows: 

The Defendant was charged with Unlawful Contact with a Minor (Sexual Exploitation of 

Statement of Errors Complained of on Appeal, p. 2). This claim is meritless. 

the grade of the crime of unlawful contact a felony of the third-degree" (Defendant's Concise 

the victim pursuant to 18 Pa.C.S. §3126( a)(8), a misdemeanor of the second-degree, which made 

based upon various theories of the Commonwealth including that Appellant indecently assaulted 

Contact with a Minor charge "when AppelJant was convicted of unlawful contact with a minor 

The Defendant next avers that this Court imposed an illegal sentence at the Unlawful 

7. Illegal Sentence - Unlawful Contact of a Minor 

meritless. 

requisite factual finding to satisfy Alleyne and so the sentences were not illegal. This claim is 

commission of the crimes. By finding the Defendant guilty of these offenses, the jury made the 

jury's preliminary finding that the victims were under the age of 16 at the time of the 

sentences for Involuntary Deviate Sexual Intercourse with a Child. These offenses required the 

In the instant case, the Defendant was sentenced to two (2) mandatory minimum 

Commonwealth v. Matteson, 96 A.3d 1064, 1066-1067 (Pa.Super. 2014). 

than 13 years of age... Therefore, by finding Matteson guilty of aggravated 

indecent assault of a child beyond a reasonable doubt, the jury specifically found 

the element required to impose the mandatory minimum sentence... Thus, the 

requirements of Allevne have been met and Matteson's claim is without merit. 
18 

fail. 

as a second-degree felony and sentenced the Defendant appropriately thereon. This claim must 

Children, a second-degree felony. This Court did not err in grading the Unlawful Contact charge 

Unlawful Contact charge appropriately assumed the underlying grading of Sexual Exploitation of 

Children is, by statute, a felony of the second degree. Thus, pursuant to §6318(b)(l), the 

Contact with a Minor, relating to Sexual Exploitation of Children. Sexual Exploitation of 

Here, the Defendant was charged with and convicted of subsection (a)(6) of Unlawful 

18 Pa.C.S.A. §6320. 

(b). Penalty. - An offense under this section is a felony of the second degree. 

(a). Offense defined. - A person commits the offense of sexual exploitation of 

children if he procures for another person a child under 18 years of age 

for the purpose of sexual exploitation. 

§6320. Sexual exploitation of children 

Sexual exploitation of children is further enumerated in our Crimes Code as follows: 

18 Pa.C.S.A. §6318. 

whichever is greater. 

(2). a felony of the third degree; 

(]). 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 

(b). Grading. -A violation of subsection (a} is: 

(6). Sexual exploitation of children as defined in section 6320 (relating 

to sexual exploitation of children). 

and either the person initialing the contact or the person being contacted 

is within this Commonwealth: 
19 

Amended Petition in response to the Notice of Intent to Dismiss, this claim is belied by the 

As to the Defendant's claim that this Court "refused to allow" him to file a second 

Procedure. This claim is meritless. 

seems to suggest. Rather, the Order was appropriate and in accordance with the Rules of 

it. Rule 907 does not require a lengthy analysis of the reasons for the dismissal, as the Defendant 

The Order noted the documents reviewed and gave the appropriate notice of the intent to dismiss 

A review of the record demonstrates that the Order met the requirements of Rule 907. 

BY THE COURT: 

s/McDaniel, J. 

The Petitioner may respond to the proposed dismissal within 20 days of 

the date of this notice in accordance with Pa.R.Crim.P. Rule 907. 

AND NOW, to-wit, this 25 day of February, 2016, petitioner is hereby put 

on notice that after a thorough review of the record which included the Amended 

Petition filed by appointed counsel, the Commonwealth's Response and the 

Defendant's prose Supplements; this Court intends to dismiss the petition without 

a hearing. 

NOTICE OF INTENTION TO DISMISS PCRA PETITION 

WITHOUT A HEARING 

Amended PCRA Petition without a hearing. That Order stated: 

On February 25, 2016, this Court filed a Notice of Intent to Dismiss the Defendant's 

Amended Petition. This claim is meritless. 

Dismiss the Amended Petition and in "refusing to allow" the Defendant to file a Second 

Finally, the Defendant argues that this Court erred in filing a defective Notice oflntent to 

8. Trial Court Error 
20 

Dated: October 13, 2016 

record. After the Notice of Intent to Dismiss was filed on February 25, 2016, this Court accepted 

the following findings from the Defendant: 

• Response to Notice oflntent to Dismiss, March 11, 2016, by Attorney Farrell; 

• Objection to Notice of [ntent to Dismiss, March 16, 2016, by the Defendant; and 

• Supplemental Petition in Support of PCRA, March 18, 2016, by the Defendant. 

This Court did review and consider the Defendant's pro se and counseled filings and 

noted the same in its Order dismissing the Petition on July 12, 2016. Thus, the Defendant's 

claim that this Court refused to allow him to respond to the Notice of Intent to Dismiss is false 

and so must fail. 

Accordingly, for the above reasons of fact and law, this Court's Order of July 12, 2016, 

which dismissed the Defendant's Amended Post Conviction Relief Act Petition without a 

hearing, must be affirmed. 
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