Opinion
J-S56005-18 No. 396 MDA 2018
11-07-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. TODD RICHARD OYLER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 17, 2017
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0001246-2015 BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Todd Richard Oyler, appeals from the judgment of sentence entered in the Adams County Court of Common Pleas, following his jury trial convictions for two counts of involuntary deviate sexual intercourse with a child and one count each of unlawful contact with a minor, aggravated indecent assault, indecent assault, and corruption of minors. We affirm.
18 Pa.C.S.A. §§ 3123(b); 6818(a)(1); 3125(a)(7); 3126(a)(7); 6301(a)(1)(i), respectively.
The May 2, 2018 trial court opinion accurately set forth the facts and procedural history of this case. Thus, we have no reason to restate them.
We clarify that the court sentenced Appellant on October 17, 2017, to an aggregate term of 16 to 40 years' imprisonment. The court also designated Appellant a sexually violent predator ("SVP"). On October 25, 2017, Appellant sought an extension of time to file post-sentence motions, which the court granted. Appellant timely filed post-sentence motions on Monday, November 27, 2017. On January 24, 2018, the court granted Appellant's request and vacated the SVP designation. The court denied post-sentence relief regarding all other claims on February 5, 2018. Appellant timely filed a notice of appeal on March 5, 2018.
Appellant raises the following issues for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION IN FAILING TO PROPERLY WEIGH THE EVIDENCE AND FAILING TO FIND THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE?(Appellant's Brief at 5).
WAS APPELLANT DEPRIVED OF HIS SUBSTANTIVE AND DUE PROCESS GUARANTEES TO CONFRONTATION AT HIS PRELIMINARY HEARING?
WAS APPELLANT DEPRIVED OF HIS RIGHT TO A FAIR TRIAL WHERE THE TRIAL COURT REMOVED A JUROR ON THE FINAL DAY OF TRIAL WITHOUT DETERMINING WHETHER SHE COULD BE FAIR AND IMPARTIAL?
WAS APPELLANT DEPRIVED OF HIS DUE PROCESS GUARANTEES WHEN THE COMMONWEALTH FAILED TO PROVIDE AN ADEQUATE BILL OF PARTICULARS UPON REQUEST, AND THE COURT FAILED TO SO ORDER?
For purposes of disposition, we have re-ordered some of Appellant's issues.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned order and opinion of the Honorable Thomas R. Campbell and the opinion of the Honorable Shawn Wagner, supporting their various rulings in this case, we conclude Appellant's first, second, and third issues merit no relief. The trial court decisions comprehensively discuss and properly dispose of those issues. ( See Order of Court, filed April 29, 2016, at 1-2 (J. Campbell); Trial Court Opinion, filed October 6, 2016, at 6-7 (J. Campbell); Trial Court Opinion, filed May 2, 2018, at 5-17 (J. Wagner) (finding: (1) Victim testified that Appellant's abuse began when she was about four years old in her mother's and Appellant's home in York County; Victim said abuse continued until Victim was about six or seven years old, including after Victim's mother and Appellant had moved to Adams County; Commonwealth established that Appellant engaged in numerous sex acts with Victim between November 2007 and April 2015; Victim testified that abuse tapered off when Appellant was diagnosed with cancer but started again when Victim was in fifth grade; Victim said Appellant's most recent assaults occurred in October and April of fifth grade; verdict does not shock one's sense of justice and was not against weight of evidence; (2) right of confrontation is trial right; Pa.R.Crim.P. 542(E) provides that hearsay evidence alone is sufficient to establish prima facie case at preliminary hearing; Rule is promulgated by Pennsylvania Supreme Court and deemed constitutional; moreover, once defendant has been tried and convicted, any defect in preliminary hearing is rendered immaterial; (3) during trial, Victim's stepmother, who had been listed as potential witness but did not testify, informed prosecutor that she recognized Juror #62 because they had previously worked together; court questioned juror, who admitted she had worked with Victim's stepmother but did not initially recognize name when court read list of potential witnesses during jury selection; juror admitted Victim's stepmother had reprimanded juror on one occasion during course of employment; in abundance of caution, court dismissed juror; court did not abuse its discretion in removing juror). Thus, as to Appellant's first, second, and third issues, we affirm on the basis of the order and opinion of Judge Campbell and the opinion of Judge Wagner, of the Adams County Court of Common Pleas.
See Commonwealth v. Ricker , 120 A.3d 349 (Pa.Super. 2015), appeal dismissed as improvidently granted, ___ Pa. ___, 170 A.3d 494 (2017) (holding Rules of Criminal Procedure permit hearsay evidence alone to establish prima facie case; accused does not have state or federal constitutional right to confront witnesses against him at preliminary hearing).
Regarding Appellant's fourth issue concerning an adequate bill of particulars:
Preliminarily, we observe generally that issues not raised in a Rule 1925(b) statement will be deemed waived for review. An appellant's concise statement must properly specify the error to be addressed on appeal. In other words, the Rule 1925(b) statement must be specific enough for the trial court to identify and address the issue an appellant wishes to raise on appeal. 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. The court's review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Thus, if a concise statement is too vague, the court may find waiver.Commonwealth v. Hansley , 24 A.3d 410, 415 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (internal citations and quotation marks omitted).
Instantly, in his Rule 1925(b) statement, Appellant raised a denial of his due process rights where he requested a bill of particulars from the Commonwealth but "never received it." On appeal, Appellant does not claim the Commonwealth failed to respond to his request but asserts the Commonwealth's answer was inadequate. Because Appellant did not challenge the adequacy of the Commonwealth's response in his Rule 1925(b) statement, the trial court did not address that precise claim of error in its opinion. Consequently, Appellant's fourth issue is waived for vagueness in his concise statement. See id.
Moreover, Pennsylvania Rule of Criminal Procedure 572 provides:
Rule 572. Bill of ParticularsPa.R.Crim.P. 572.
(A) A request for a bill of particulars shall be served in writing by the defendant upon the attorney for the Commonwealth within 7 days following arraignment. The request shall promptly be filed and served as provided in Rule 576.
(B) The request shall set forth the specific particulars sought by the defendant, and the reasons why the particulars are requested.
(C) Upon failure or refusal of the attorney for the Commonwealth to furnish a bill of particulars after service of a request, the defendant may make written motion for relief to the court within 7 days after such failure or refusal. If further particulars are desired after an original bill of particulars has been furnished, a motion therefor may be made to the court within 5 days after the original bill is furnished.
(D) When a motion for relief is made, the court may make such order as it deems necessary in the interests of justice.
Here, Appellant filed a request for a bill of particulars on March 9, 2016. The Commonwealth responded on March 15, 2016. Appellant did not challenge the adequacy of the Commonwealth's response by filing a motion with the court as set forth in Rule 572(C). Therefore, Appellant waived his claim on this ground as well. Accordingly, we affirm.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/7/2018
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