J. S41026/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
PAUL DEPAOLI                                :
         Appellant                          :
                                            :     No. 1720 EDA 2015

            Appeal from the Judgment of Sentence February 19, 2015
                In the Court of Common Pleas of Monroe County
               Criminal Division No(s): CP-45-CR-0001772-2013

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
PAUL DEPAOLI                                :
         Appellant                          :
                                            :     No. 1721 EDA 2015

            Appeal from the Judgment of Sentence February 19, 2015
                In the Court of Common Pleas of Monroe County
               Criminal Division No(s): CP-45-CR-0001773-2013

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

JUDGMENT ORDER BY DUBOW, J.:                      FILED DECEMBER 14, 2016

        In this consolidated appeal, Appellant, Paul DePaoli, appeals from two

Judgments of Sentence entered on February 19, 2015, in the Court of

Common Pleas of Monroe County following his convictions of Rape of a Child1



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(c).
J.S41026/16


and related offenses. After careful review, we remand and order the trial

court to file an amended Pa.R.A.P. 1925(a) Opinion within sixty (60) days.

     On October 23, 2015, after a consolidated trial, a jury found Appellant

guilty of numerous sexually based offenses regarding two minor victims. On

February 19, 2015, after a hearing, the trial court found Appellant to be a

Sexually Violent Predator (“SVP”) and sentenced Appellant to an aggregate

term of 23¼ to 48 years’ incarceration.2

     After the denial of his Post-Sentence Motion, Appellant filed a timely

Notice of Appeal on June 12, 2015. On July 6, 2015, Appellant filed a timely

Rule 1925(b) Statement, which raised eleven distinct issues spanning two

pages.

     On September 4, 2015, the trial court filed a Rule 1925(a) Opinion

that only addressed the seven issues listed on the first page of Appellant’s

Rule 1925(b) Statement. The trial court failed to address any of the issues

listed on the second page of the Rule 1925(b) Statement, including:

           h. Failing to instruct the jury in regards to the mens rea
           and actus reus issues relating to the voluntariness of the
           contract between Defendant and RD in the shower;

           i. Finding [Appellant] to be a SVP;




2
  The trial court sentenced Appellant to an aggregate term of 11½ to 24
years’ incarceration for the docket concerning victim M.K. and an aggregate
term of 11¾ to 24 years’ incarceration for the docket concerning victim R.D.
The trial court ordered the sentences to be served consecutively.



                                    -2-
J.S41026/16


           j. Sentencing [Appellant] in excess of the “mandatory
           minimum”, though the [trial court] correctly found that
           such “mandatories” are Constitutionally infirm;

           k. Finding that the jury’s verdict was against the weight of
           the evidence[.]

Appellant’s Pa.R.A.P. 1925(b) Statement at 2.

     Without a complete Rule 1925(a) Opinion, this Court is unable to

conduct meaningful appellate review and remand is the appropriate remedy.

See Commonwealth v. DeJesus, 868 A.2d 379, 383 (Pa. 2005) (case

remanded to the trial court for the issuance of an adequate opinion); see

also Pa.R.A.P. 1925. “[I]n any case where the trial court fails to prepare an

opinion that addresses the issues upon which it passed and which are raised

by a party on appeal, the net result is the same: the appellate court is

deprived of explication and guidance on those issues from the judicial entity

most familiar with the matter.” DeJesus, 868 A.2d at 383.

     Based on the foregoing, we remand this matter to the trial court for

issuance of an amended Opinion in accordance with Pa.R.A.P. 1925(a). The

amended Rule 1925(a) Opinion shall address the four issues of trial court

error that Appellant raised in his Rule 1925(b) Statement and addressed in

his brief, specifically issues “h.” through “k.”   See Appellant’s Pa.R.A.P.

1925(b) Statement at 2. The trial court is to file the amended Rule 1925(a)

Opinion within sixty (60) days of the date of this Judgment Order.

     Case remanded with instructions. Jurisdiction retained.




                                    -3-
J.S41026/16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2016




                          -4-
                                                                                             Circulated 11/28/2016 10:55 AM




                        COURT OF COMMON PLEAS· OF MONROE COUNTY
                            FORTY-THIRD JUDICIAL DISTRICT
                          COMMONWEALTH OF PENNSYLVANIA


COMMONWEALTH OF PENNSYLVANIA
                                                                          NO. 1772 CR-2013
                                                                          NO. 1773 CR 2013
                   v.
                                                                          APPEAL DOCKET NO.
PAUL DEPAOLI,                                                             1720 EDA 2015
                                                                          1721 pDA 2015
                   Defendant


                         OPINlqN PU~SUANT TO Pa.R.A.,P.1925(a)

          Following the denial of his post-sentence motions, Defendant                              Paul DePaoli

("Defendant") filed an appeal from the judgments of sentence entered on May 29, 2015.

After the appeal was filed, we directed Defendant to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P.. 1925(b). Defendant complied.
                                                                     .
                                                                            We now

file this opinion in accordance with Pa.R.A.P. 1925(a).1

                                                   Background

         Prior to June, 2012, Defendant and his family were close friends with Jeanette

Rayola for flfteen years. During that time, M.K., Ms. Rayola's daughter, would often

spend time at Defendant's house playing with Defendant's daughter, R.D. On June 12,

2012, while in the bathtub. M.K made a statement to her mother that Defendant had

placed a chocolate stick i~ h~r mouth and moved it back and forth. The following day,

M.K. stated to her mother that Defendant placed his thumb in her mouth as well as a

chocolate stick. A few days later M.K. told her mother that Defendant and M.K. would


I Although the Defendant's cases are docketed separately, we are filing a single, consolidated opinion because the

relevant facts and history are the same and the challenged judgments resulted from a single, consolidated trial.


                                                          1
  play an activity where Defendant would take M.K. into his bedroom, put a blindfold on

. her, and put his hairy thumb and chocolate twizzlers in her mouth. M.K. 's mother

  became concerned and reached out to the director of. the Tobyhanna Army Depot Child
     .                              .               .                      .
  Care Center. Following a discussion with the director, M.K.'s mother contacted the Child
                                          .                                          .
 Advocacy Center. After overhearing a discussion between her mother and Patrick

 Lawrence from the Child Advocacy Center, M.K. told her mother that Defendant shot

 water in her mouth and made her swallow. After speaking with Lawrence, M.K. 's mother

 called Child Line to report the suspected child abuse. The Barrett Township Police

 Department then opened an investigation into the matter.

         M.K.'s mother entered M.K. in counseling with Samantha Burkhardt, a therapist,

 whose practice focuses primarily on the treatment of victims and perpetrators of sexual

 abuse. During· counseling sessions with Burkhardt, M.K. told the same story involving

 the blindfold, candy, Defendant's hairy thumb, and Defendant's squirting water in her

 mouth. M.K. described the water as salty, gross, and yucky. Over the course of their

 counseling sessions Burkhardt educated M.K. on male and female anatomy. Following

· this education M.K recounted the above story to Burkhardt, but us.ed the word penis

 instead of hairy thumb.

         Defendant was arrested in July of 2013 and charged, in relation to M.K., with

rape of a child, involuntary deviate sexual intercourse with a child, aggravated indecent

assault of a child, indecent assault of a child, endangering the welfare of a child,

corruption of a minor, and unlawful contact with a minor. These charges were filed at

docket No. 1772 CR 2013.




                                              2
        In June . ·of--201-3, ·RD.,   Defendant's daughter, related a story.to.Bobbe . . Frankel

 regarding inappropriate physical contact with the Defendant. Following the disclosures,

 Frankel contacted      the relevant Pennsylvania        authorities and an _investigation   was
                                               ..
 started regarding these allegations. Defendant was arrested in July of ~013 and

 charged, in relation to R.D., with rape     of a   child, involuntary deviate sexual intercourse

 with a child, incest, indecent exposure, indecent assault of a child, unlawful contact with

 a minor, corruption of a minor, and endangering the welfare of a child. These· charges

were filed to docket No. 1773 CR 2013.

        In July of 2014, Melissa DePaoli, Defendant's wife and R.D.'s mother, took R.D.

to see a therapist to determine whether an inappropriate physical contact with the

Defendant had taken place.

       On August 13, 2013, the Commonwealth gave notice that the two cases would

be joined pursuant to Pa.R.Crim.P. 582(b)(1 ). Defendant did not object to joinder,

       On October 11, 2013 the Commonwealth filed a motion seeking to allowM.K. to

testify by a contemporaneous alternative method pursuant to 42 Pa.C.S.A § 5985, and

a separate motion requesting an in camera hearing to determine the admissibility of

statements made.by M.K. to others under the Tender Years Hearsay Act ("TYHA'1)1 42

Pa.C.S.A. § 5985.1. An in camera hearing was conducted on March 28, 2014. Following

the hearing, the parties filed briefs addressing M.K.'s competency and the admissibility

of statements under the TYHA.

      On July 28, 2014, we issued an order fin~ing that testifyin~ in open court or in

front of Defendant would cause M.K. severe emotional distress. Accordingly, we

permitted M.K. to testify via contemporaneous alternative method. In addition, we found


                                                3
··· --·· - ··that·that statements made by ·M.K. to her mother and counselor.-wer.e .admissible   under .
      the TYHA Finally, we indicated that competency of witnesses would be determined at

      trial.
                Prior to M.K.'s trial testimony, a competency examination was conducted. M.K.

      was able to spell her name, and tell the Court her age, birthday, year of birth, and where

      she went to school.      M.K. appropriately answered questions regarding truth and lies,

      and demonstrated that she knew lying was bad and that if she lied in court she would

      get in big trouble. M.K. further demonstrated that she knew what a promise was, and

      she promised not to lie in court. We found her to be a competent witness.

                During her testimony at trial, M.K. testified that Defendant did bad things to her

      and that Defendant blindfolded        her and gave her candy. She also testified 'that

      Defendant put his hairy thumb in her mouth and that she told her mother and counselor

      about this event. Upon cross examination, M.K. answered defense counsel's questions.

      she      never refused to answer or became unresponsive and defense counsel willingly

       ceased his eross-examlnatlon.
                On the second day of trial the    Commonwealth called Rebecca Guerrini as a

       rebuttal witness, Defense counsel objected, because Guerrini had been in the

       courtroom the previous day and for the morning session and other witnesses had been

       sequestered.     Guerrini was not called during the Commonwealth's case in chief as she

      was only a potential rebuttal witness.       After the testimony of Donna Caponigro and

       Joanne Laughton-Abate, the Commonwealth became aware that Guerrini's testimony

       would be needed and had her leave the room until she was called.




                                                     4
· · ·· ·· ·· · · · --------   · -On-Oeteber -23, ·-2015,--the jury found .Defendant .guil.ty.. of.numerous __s_ex_c.r.in:Le..s... .

                    and other offenses. In the case involving M.K., Defendant was convicted of involuntary

                    deviate sexual intercourse with a child, endangering the welfare of a child, unlawful

                    contact with a minor, corruption of a minor, and indecent assault of a child.                In the case

                    involving RD., Defendant was found guilty of rape of a child, involuntary deviate sexual

                    intercourse with a chitd, incest, endangering the_ welfare of a child, unlawful             contact with
                    a minor, indecent exposure, corruption of a minor, and indecent assault of a child. In

                    each case, an order was issued scheduling a sentencing hearing and directing that

                   Defendant undergo an evaluation               by   the Pennsylvania Sexual Offender Assessment

                   Board.

                              On February 19,- 2015, after a hearing, we found· Defendant to be a Sexually

                   Violent Predator. Defendant was then sentenced to an aggregate period of incarceration

                   of not less than 11 years and 9 months and not more than 24 years and ordered to

                   register under Megan's Law IV, 42 Pa.C.S.A               § 9799.1 O et. seq.

                              Subsequently, Defendant filed post-sentence motions. The motions were denied

                   on May 2.9, 2015. Defendant then filed this appeal.

                                                                  Discussion .

                        1. Competency as a Witness

                              Defendant's second assignment of error contends that we erred by finding M.K.

                  to be a competent witness. This contention is meritless.

                              The general rule is that every person is competent to be a witness except as
                                 .                                                         .
                                                                                       ,
                  otherwise provided by statute or in the Pennsylvania Rules of Evidence.                          Pa.RE.

                  601 (a). A person is deemed incompetent if, due to a mental defect or immaturity, the



                                                                        5
· ··· · · ··· ··-· · court finds-the -person:   ''(,1) is, -Of was, at any relevant .tlrne, .. incapable.. o.Lp_e.rc.e.i.v.ing

              accurately; (2) is unable to express himself or herself so as to be understood either

              directly    or through an interpreter;           (3) has an impaired memory; or (4) does not

              sufficiently understand the duty to tell the truth." Pa.RE. 601(b). Pennsylvania requires

              an examination of child witnesses for competency.· Commonwealth v. Delbridge, 855

              A.2d 27, 37 (Pa. 2003).             The test for child competency involves an examination of

              whether a child has:

                       (1) capacity to communicate, including as it does both an ability to
                       understand questions and to frame and express intelligent answers,
                       (2) mental capacity to observe the occurrence itself and the
                       capacity of remembering what it is that she is called to testify about
                       and (3) a consciousness of the duty to speak the truth.

              Id   (quoting Rasche v. McCoy, 1q6 A.2d 307, 310 (Pa. 1959)).                        The trial court retains

             discretion to determine whether a child witness is competent to testify. Commonwealth

              v. Hunzer, 868 A.2d 49S, 507 (Pa. Super. 2005).

                      M. K. participated in two in camera proceedings in which her competency was

             examined.       On March 28, 2014, during the pre-trial TYHA hearing, M.K. was able to tell

             us her age and what grade she was in and was able to count to ten. (N.T.1 3/28/20141

             p. 13). She demonstrated that she knew the difference between the truth and a lie, and

             further stated that telling lies could get her in trouble.             (Id.   at   14). M.K. also said she

             would not tell a lie and that lying is bad. (Id. at 19). She further stated that the Defendant

             did something to her that she does not like to talk about but that she would talk about it

             again in the court if she had to. (Id.        at 21, 25-26).     This clearly demonstrated that M.K.

             had the ability to communicate, the capacity to observe and remember the occurrence

             she was to testify about, and the requisite awareness of the duty to speak the truth.


                                                                   6
·· ··· ········---···-····'   ···-·· -··· -The-seeene- in -oamera--pr0ceeding       tookplace .on OctobeL.22,-20'.l.4.,_imme.d.i.ateJy

                               prior to M.K.'s trial testimony. During that examination, M.K. knew and could spell her

                               last name, knew how old she was, knew her birthdate and year, and knew what school

                               she was attending. (N.T., 10/22/2014, p. 8). This demonstrated both that M.K. had the

                               capacity    to communicate         through   understanding         questions   and giving    intelligent

                               answers. She also demonstrated she knew the difference between the truth and a lie,

                               said that telling lies was bac, and promised she would tell the truth. (Id. at 10).                M.K.

                               said that she knew she could get in big trouble for lying in court                  (Id. at 16).   This

                               demonstrated that M.K. was conscious of her duty to speak the truth.

                                       Because M.K. demonstrated her capacity to communicate through understanding

                              questions    and giving intelligent answers, demonstrated her .ability to observe and

                              remember the event she was called to testify about, and because she was conscious of

                              her duty    to speak   the truth we found M.K. to be a competent witness. Her subsequent

                              testimony at trial demonstrated that our determination was correct under the law.

                              Defendant's challenge      to our   determination that M.K. was competent to testify is without

                              merit.

                                  2. Introductionof Tender Years Material

                                       Defendant's first and third assignments of error contend that we erred by allowing

                              the Commonwealth to admit statements made by M.K. to others under the TYHA. In

                              these assignments       of error Defendant appears           to   raise a general challenge to our

                              evidentiary ruling. In addition, Defendant claims that M.K.'s statements should not have

                              been allowed because, according to Defendant, M.K. was effectively unable to complete

                              her testimony. Finally, Defendant argues that his state and federal confrontation rights


                                                                                7
--···· ···-- ---··-   -were-violated-by-the-lntreduotlon         -0f.-M.K.!s Tender-Years.' .. hearsay.statements.ijhese        .

                       assignments of error lack merit.

                                Generally, an out-of-court statement is inadmissible at trial unless it falls into one

                       of the     exceptions     to the       hearsay    rule.   "Exceptions   have been fashioned         to

                       accommodate certain classes of hearsay that are substantially more trustworthy than

                       hearsay in. general, and thus merit exception. to the hearsay rule." Commonwealth v.

                       Bean, 677       A.2d     842,   844     (Pa.     Super.   1996) (citations   omitted);   See also

                       Commonwealth v. Charlton, 902 A.2d 554 (Pa. Super. 2006).

                             The tender years exception to the rule against hearsay is set forth in .the TYHA.

                      The TYHA provides, in relevant part, as follows:

                             a) General rule.-- An out-of-courtstatement   made by a child victim
                             or witness, who at the time the statement was made was 12 years
                             of age or younger, describing any of the offenses enumerated in 18
                             Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to
                             assault), 29 (relating to kidnapping), 31 (relating to sexual
                             offenses), 35 (relating to burglary and other criminal intrusion) and
                             37 (relating to robbery), not otherwise admissible by statute or rule
                             of evidence, is admissible in evidence in any criminal or civil
                             proceeding if:

                                      (1) the court finds, in an in camera ·hearing, that the evidence .·
                                       is relevant and that the time, content and circumstances of
                                     · the statement provide sufficient indicia of reliability; and

                                      (2) the child either:

                                               (i) testifies at the proceeding; or

                                              (ii) is unavailable as a witness.

                      42 Pa.C.S.A. §5985.1.




                                                                          8
--· .... ··-···- ... ·- . ·- --·--· .. ·--· ·--Unaer-the -+YHA,- an out-of-court statement of .aohild .. sexual ..assault.victim.or   .
                  witness who is twelve years old or younqer, is adrnlsslble into evldence in a crlminal or

                  civil proceeding if

                                    two requirements are satisfied. First, the trial court must find
                                    that the evidence is relevant and that the time, content, and
                                    circumstances of the statement provide sufficient indicia of
                                    reliability. Second, the child must either (1) testify at the
                                   .proceeding, or (2) be deemed unavailable as a witness. 42
                                    Pa.C.S.A. § 5985.1 (a)(2)(i), (ii). In order for the child to be
                                    deemed unavailable to testify as a witness, "the court must
                                   determine, based on evidence prese_nted to it, that testimony
                                    by the child as a witness will result in the child suffering
                                   serious emotional distress that would substantially impair the
                                   child's ability to reasonably communicate." Id. § 5985.1 (a.1 ).
                                   In making this determination, the court may (1) observe and
                                   question the child, either inside or outside of the courtroom;
                                   and (2) hear testimony of the child's parent or custodian or
                                   any other person who has dealt with the child in a medical or
                                   therapeutic setting. Id. § 5985.1(a.1)(1), (2).· The TYHA does
                                   not require that a trial court's determination of unavailability
                                   be supported by expert testimony.

                  Commonwealth v. Walter, 93 A.3d. 442 (Pa. 2014).

                          As the quoted passages demonstrate, to be admissible, a child's out-of-court

                 statement must be both relevant and reliable. Evidence is relevant if it logically tends to

                 establish a material fact in the case, tends to make a fact in issue more or less

                 probable, or tends to support a reasonable inference or proposition regarding a material

                 fact. Commonwealth v. Reid, 811 A.2d 530, _544 (Pa. 2002); Commonwealth v. Serge,

                 837 A.2d 1255, 1260 (Pa. Super. 2003); Pa.RE. 401. Reliability requires the court to

                 assess whether the statement contains "particularized guarantees of trustworthiness

                 surrounding the circumstances under which the statements were uttered to the person

                 who is testifying." Commonwealth v. Delbridge, 855 A.2d 27, 45 (Pa. 2003). The

                 assessment should consider, among other things, the spontaneity of the statements,

                                                                        9
-- -·····-----   -eenslsteney-ln-repetition, .. the. mental state. ofthe .child., .. use .. oLunexp.acte.d ..tenns.Jn.a ...

                 . child
                   .       of that age. and
                                         .  the
                                             . .. lack. of . a motive
                                                               . . to . fabricate a story. Wafter, 93 A.3d         at 451;
                  Delbridge, supra. See Idaho v. Wright, 497 U.S. 805 (1990).

                            A determination that a child's out-of-court statement is relevant and reliable does

                  not automatically make the statement admissible. The protections of the Confrontation

                  Clause under Crawford v. Washington; 541 U.S. 36 (2004) and its progeny must also be

                  considered.      See Michigan v. Bryant, 562 U.S. 344 (2011); Davis v. Washington1 547

                  U.S. 813 (2006).

                            In Crawford, the High Court held that the Confrontation Clause will not permit the

                 entry of out-of-court testimonial statements by a witness, no matter how reliable, unless

                 {1) the witness is unavailable, and (2) the defendant had a prior opportunity to cross-

                 examine the witness:

                                  Where nontestimonial hearsay is at issue, it is wholly
                                  consistent with the Framers' design to afford the States
                                  flexibility in their development of hearsay law-as does [Ohio
                                  v.] Roberts, 448 U.S. 56 (1980), and as would an approach
                                  that exempted such statements from Confrontation Clause
                                  scrutiny altogether. Where testimonial evkienoe is at issue,
                                  however, the Sixth Amendment demands what the common
                                  law required: unavailability and a prior opportunity for cross-
                                  examination.

                 Crawford,. 541 U.S at 68 (emphasis in original) See Commonwealth v. Al/house, 36 A.3d

                 163, 172 (Pa. 2012). However, "when the declarant appears for cross-examination at
                                                             .                                                 .
                 trial, the Confrontation Clause places no constraints at all on the use of his prior

                 testimonial statements." Crawford, 541 U.S. at 59 (citation omitted). See In re N.C.1 105

                 A.3d 1199 (Pa. 2014); Al/house, supra; Commonwealth v. Kemmerer, 33 A.3d 3.9 (Pa.

                 Super. 2011 ); Commonwealth v. Charlton, 902 A.2d 554 (Pa. Super. 2006), eppeel



                                                                  10
··denied;-9-1--1-·A-;20···-933- (2006). This is .especially tr.ue .in cases ... where, .. JJ$. ....bereL. the

defendant      has the
                    .. ,. opportunity
                           ..        . to cross-examine
                                                 .                the . declarant
                                                                             .    and the witnesses

through whom the Tender Years hearsay is admitted at both a pre-trial hearing and

during trial. Kemmerer, supra; Charlton, supra.

        Thus, when the Commonwealth seeks to introduce Tender Years hearsay

statements, the threshold Confrontation Clause query under Crawford "ls whether the
                  .                                      .

statements are testimonial, for if the statements are nontestlmonial, 'the confrontation

clause places no restriction on their introduction except for the "tradifional llrnitations"

upon hearsay evidence'." Al/house, 36 A.3d at 173 (quoting Davis, 547 U.S.                     at   821). In

analyzing whether statements are testimonial and, therefore, subject to the protections

of the Confrontation Clause under Crawford, the court must look at the objective intent

of the declarant and the objective intent of the questioner as well as the environment jn

which the statement was given. Id. at 176. In determining the intent of a ·child declarant

it is appropriate to take into consideration the child's age.                 Id. at 180-81. In more

expanded terms:

                a court must determine whether the primary purpose of the
                interrogation was to establish or prove past events relevant
                to a later criminal prosecution. In making the determination
                as to the primary purpose of an interrogation, a court first
                should determine whether the interrogation occurred during
                the existence of an ongoing emergency, or· what was
                perceived to be an ongoing emergency. Although the
               existence-actual or perceived-of an ongoing emergency is
               one of the most important factors, this factor is not
               dispositive because there may be other circumstances,
               outside of an ongoing emergency, where a statement is
               obtained for a purpose other than for later use in criminal
               proceedings. In determining· the primary purpose of an
               interrogation, a court must also objectively evaluate the
               circumstances surrounding the interrogation, including the



                                                   11
..   ·· -- ·-     · .. -···-· ···--·-·---for-mality--and location, .. and the statements ..and .. actlcns __Qf           ,__ _ .. __
                                          both the interrogator and the declarant.

                 Al/house,   36. A)d    at 1'15-76. . . .   . ....                    .   .     •··.   . . ..   .   -.   ...~-   .


                         In sum, under Crawford and its progeny, if out-of-court statements are non-

                 testimonial,   then they are subject only to the traditional' rules· of hearsay and the

                 Confrontation Clause does not apply. Davis, 547 U.S.- at 821. See Al/house, supra. If

                the statements are testimonial, they are inadmissible unless: 1) the declarant/witness is

                 unavailable and the defendant had a prior opportunity to cross-examine the witness; or

                2) the declarant/witness        appears for cross-examination at trial. crewton: supra; In re

                N.C., supra; Al/house, supra; Kemmerer, supra; Charlton, supra.

                        In this case, it is undisputed and clear from the record that M.K. is under the age

                of twelve, that Defendant was charged with and later convicted of Chapter 31 sex

                offenses, and that M.K. testified and.was cross-examined during a pre-trial hearing and

                at trial. It is also clear from the record that the Commonwealth provided ample pre-trial

                notice of its intent to introduce statements made by M.K. to her mother and to her

                therapist.

                        The statements made by M. K. to her mother and her therapist were addressed at

                a hearing that included, among other things, an in camera examination of M.K. and·

                public. testimony from M.K.'s mother and the therapist. Counsel for Defendant cross-

                examined all three witnesses. (N.T., 3/28/2014, pp. 10-27, 51-76).

                       M.K. first spoke about the abuse perpetrated by Defendant while her mother was

                giving her a bath. During the bath, M.K. spontaneously told her mother that Defendant

                had put a chocolate twizzler stick in her mouth and moved it in and out of her mouth.

                (N.T., 3/28/2014, pp. 66-67). The following evening M.K.'s mother asked M.K. to repeat.


                                                                     12
-··· · -      . -the. story-to . ·her-father and M.K. stated that Defendant .put..hoth . . bis. .. thumb... and.. a

.... _     __ . chocolate_ twizzler stick.in her mo~!lt:. (?cf. at_67).
                                                                    _ .. _
                                                                           A,._ few days
                                                                                      ·-·
                                                                                          later,
                                                                                           - ··-4-,
                                                                                                    while --·-getting         ready
                                                                                                               .. ·-·-·····-·-···--   .


                for bed, M.K. told her mother that Defendant took her into his bedroom, closed the door,

                put a blindfold on her, and put his hairy thumb and chocolate twizzler sucks ·in her

                mouth. (Id.). Subsequently, after overhearing her mother talk about these incidents on

                the phone, M.K. told her mother that Defendant shot water into her mouth with a water

                gun and made her swallow. before giving her twizzler sticks. (Id. at 68). The statements

                M.K. made to her mother were spontaneous and consisted of age-appropriate; child71ike

               terms. The statement she made to her father was at the request of her mother, not the

               police or any governmental person or entity, and was in response to appropriate

               parental and familial action. Most if not all of the statements were made before any

               police involvement.          M.K. was and continues to be consistent in repeating· what
               Defendant did to her. Additionally, no motive to fabricate was advanced.

                        During counseling with Ms. Burkhardt, M.K. said that Defendant put his thumb                           in
               her mouth and described its taste.               (N.T., 3/28/2014, p. 53). In subsequent sessions

               M.K. told Ms. Burkhardt that Defendant sbot water in her mouth, .and that he put a

               blindfold on her. (Id. at 57-58). After being educated on male and female anatomy, M.K.

              told Burkhardt that Defendant placed his penis in her mouth. (Id. at 55),. These

              statements were made during the course of counseling sessions which M.K. underwent

              for therapeutic purposes. In addition, the statements were consistent with what M.K. told

              her mother ..

                       At trial M.K. was found competent and testified via closed circuit television.

              Counsel for Defendant cross-examined her. (N.T., 10/22/2014, pp. 7-16, 52-75). M.K.'s


                                                                      13
-    - ··· ··--· .. -- -rnether-andMs.        ·-Burkhardt also testified and were ..cross-examined ... by.Defendant's

._       -····--··    attorney._j/d.   _at. 77-1_24).
                                                 .. •' ...
                                                           The Tender Years hearsay that
                                                           - •••--•• .• , ... ••-.•••• • - . ._.,_ ·-•••·-..•~ ._ ... ,. • -·• ••• ,-..
                                                                                                                                                         was elicited during
                                                                                                                                        , .• ,.. ._.., __ ,,,_.,...... - .... ,,••••••--•---,
                                                                                                                                                                                                               trial
                                                                                                                                                                                              ..._.,._HOO---•,- ...._.... ••-   •••   -•>''•




                      consisted of the statements made by M.K. about which the Commonwealth had given

                      Defendant notice and that were the subject of the pre-trial hearing.

                             In short, at the time she made the challenged statements, M.K. was under 12

                      years of age. The statements were unquestionably relevant to the crimes charged. The

                      facts amply demonstrate that the time, content, and circumstances of the statements

                      provided    sufficient            indicia              o_f reliability. In ·this regard, the statements                                                                               were

                      spontaneously made to a parent who acted appropriately and to a treating therapist who

                      spoke with M.K. for therapeutic reasons rather than investigatory purposes. Further,

                      M.K. used age-appropriate language and was consistent in repeating the statements.

                     Additionally, no motive to fabricate was advanced. Finally, M.K. testified during the trial.

                      Under these circumstances it is clear that all requirements of the THYA were satisfied.

                             For many of the same reasons, it is equally clear that the challenged statements

                     were non-testimonial, and therefore, introduction of the Tender Years' 'hearsay did not

                     violate Defendant's confrontation rights. In this regard, M.K.'s initial statements to her

                     mother were spontaneous. The statement she made to her father was made at the

                     request of her mother; however, .that statement was elicited for proper familial reasons

                     · and not for investigative or prosecutorial purposes. In addition, the statements were

                     made during normal parent-child interactions in the family's home and before police

                     were involved. Further, at the time she made the statements M.K. was five years-old. It

                     is doubtful that she had any prosecutorial intent. Similarly, her mother acted as a

                     concerned parent and not an investigator or an agent of law enforcement. Likewise, the



                                                                                                          14
                   ·statements         to -Ms.      Burkhardt      were    made      during   the course . of counseling,.          in .a .

- - --:-··---·-   __ tbec...ape_ytic __ setti_n.gJ_Jbe   P.!.JlP..Q.~~- qf..wbi9.!1 W.~.S. J..o _!feat M.K., n_ot inve~-~~att:_ or_ gather    __

                   evidence for the prosecution of Defendant, Along similar lines, neither M.K.'s mother nor

                   Ms, Burkhardt interacted with M.K. witli the intent or primary purpose of establishing or

                   proving past events for this criminal prosecution. Under these circumstances and the

                   law cited above, the statements were undoubtedly non-testimonial. As a result, and

                   because the requirements                   of the TYHA were satisfied, "the confrontation                     clause

                   placejd] no restriction on their lntroductlon'." Al/house, 36 A.3d at 173 (quoting Davis,

                   547 U.S. at 821).

                             In the alternative, even if M.K.'s statements are deemed to be testimonial,

                   Defendant's confrontation rights were not violated because M.K. testified                              at   trial and

                   was cross-examined by counsel for Defendant. As the High Court stated in Crawford1

                  "when the declarant appears for cross-examination at trial, the Confrontation Clause

                  places no constraints at all on the use of his prior testimonial statements." Crawford,

                  541 U.S. at 59 (citation omitted). In fact, in this case, l\{1.K., her mother, and her therapist
                  were all cross-examined by Defendant's attorney at both the pre-trial Tender Years

                  hearing and at trial. Under current law, this completely obliterates Defendant's claim that

                  his confrontation rights were violated. Crawford, supra; In re N. C., supra; Al/house,

                  supra; Kemmerer, supra; Charlton, supra.

                          · Despite the facts summarized above, Defendant apparently contends that M.K.'s

                  statements were constitutionally and statutorily inadmissible because M.K.'s testimony

                  was not qualitatively suffi~ient to constitute "testimony" within the meaning of either

                  TYHA or Crawford. Although                     not completely clear, it appears that Defendant's


                                                                             15
             ·- contention may be based on the proposition that Crawford and its progeny require both

... ···----··----· _tb._e _Q.resence of a witness .. and "an_opportun!!_y   for effective._cross_examination." In re   .....

                 N.C., 105 A.3d at 1216. No matter how Defendant fleshes this contention out            on appeal,
                 his argument does not hold water because the record amply demonstrates that M.K.

                 provided constitutionally and statutorily sufficient testimony.

                         In In re N. C., a case not cited by Defendant in. the proceedings before this Court,

                 a four year-old, who had not previously been subject to cross-examination, appeared as

                 a witness in a juvenile adjudication hearlnq. The child was unable to testify on direct

                 examination. Specifically, despite two recesses and as many changes in caregivers to

                 comfort her while she was on the witness stand; the child-witness never verbalized a

                 response to questions concerning the charges the juvenile faced, made only some head

                movements in response to questions, and eventually became totally unresponsive and

                recoiled into a fetal position. Simply, during her time on the stand, the child-witness

                provided virtually no verbal responses on direct examination, which effectively left

                defense counsel with no opportunity to .cross-examine her on the charges brought

                against the juvenile. As a result, in a narrow holding issued in light of the "specific facts"

                and "unique circumstances"          of the case, our. Supreme Court found that the child's

                Tender Years' hearsay was inadmissible,            even     though the requirements of the TYHA

                had or appeared to have been met, because the child could not be cross-examined, and

                therefore, was not "available" as a witness for Confrontation Clause purposes.               In re

                N.C., 105 A.3d at 1200.
                        The holding in In re N. C. and the principles on which the decision was based do

                not require that a witness, child or adult, be able to answer every question, remember



                                                                   16
             every detail,· cooperate with the cross-examiner, or answer .in the manner .and direction

·--··---   _..in_ which the .. cross-examiner desires to lead the witness. Instead, the Confrontation
                                               '        ·-··--- - ... - ·- -·-· . --·---··-----··-·-·-·--··   ·-···~-~·-
            Clause requires only that the accused have a meaningful opportunity to cross-examine.
                                                                     .                               .
             In this regard, the decision specifically recognizes that the mere fact that a child (or an

            adult) witness refuses. to fully cooperate with the examiner, is evasive, or lacks memory

            of certain events does       not   render the witness constitutionally unavailable for cross-

            examination. In Re N.C., 105 A.3d at 1217.

                    Here, even a cursory review of the record reveals that M.K.'s testimony was both
                                                                                                ..
            qualitatively and quantitatively different and vastly more substantive than the testimony ·

            of the child-witness      in In re N.C. The same quick review demonstrates that M.K.

            provided "testimony" within the meaning of the TYHA, that she was "available" for

            constitutionally meaningful and effective cross-examination, and that she was, in fact,

           cross examined.         Specifically,   M.K. answered    all questions put to her by the

           Commonwealth and also answered all of the questions asked by Defendant's attorney.

           While she answered some questions by saying that she did not remember, and not

           surprisingly answered other questions with child-like responses, overall her answers

           were substantive. To the extent she did not remember specifics or responded with a

           child's answer, counsel for Defendant was free to mention the manner in which M.K.

           responded when arguing credibility and weight of the evidence to the jury. Additionally,

           M.K. did -not refuse to answer questions, become unresponsive, or cause· either direct or

           cross examination to cease prematurely. (N.T., 10/22/2014, pp. 55-74). In this regard,

           Defense counsel ceased questioning M.K. when he had no more questions. Finally, and

           significantly,   counsel for Defendant did not lodge an objection,          constitutional or


                                                          17
    otherwise, to M.K.'s testimony on direct or cross examination. (Id. at 74). Under these

    circumstances, it is clear that M.K. rendered testimony that satisfied both statutory and
                                     -- ..---·-·-·--------·-· ---                                                   -··-·--·
    Confrontation Clause requirements. Defendant's argument to the contrary is bootless.

             In short, the requirements of the TYHA were met and introduction of M.K.'s

. Tender Years hearsay statements did not violate Defendant's constitutional rights.

    Therefore, we did not err by allowing introduction of M.K.'s statements and Defendant's

    assignments of error arguing otherwise lack merit.2

    2.      Constitutionality of Closed Circuit Testimonyby M.K.

            In· a related constitutional argument, Defendant contends that our decision

    permitting M.K. to testify yia .closed circuit television violated his confrontation rights

    under both the United States Constitution and the Pennsylvania Constitution. This

    contention is without merit.

            Under the United States Constitution a face-to-face confrontation at trial is not

    absolutely required and a different form of confrontation may be substituted where

 avoiding a face-to-face confrontation
                                   .
                                       serves
                                       .
                                              an important public policy and where the

 reliability of the testimony is otherwise assured. · Maryland v. Craig, 497 U.S. 836, 650

 (1990).      Protecting the physical and psychological well-being of a child is a sufficiently.

important state interest. Id. at 853. If the court determines that testifying in the physical

presence of the defendant will cause trauma to a child witness, the use of closed-circuit

television to hear testimony does not violate the Confrontation Clause. Id. at 855-57;


2
    Defendant's confrontation rights claims are apparently based on both the Sixth Amendment to the United States
Constitution and Article I, Section 9 of the Pennsylvania Constitution. In the proceedings before this Court,
Defendant did not assert or attempt to argue that Article 9, Section I affords greater protection than the Sixth
Amendment. Further, our Supreme Court has indicated that the Confrontation Clause analysis is the same under
both the United States Constitution and the Pennsylvania Consritution. In re NC., 105 A·. 3d at 1210 n.15. See
Commonwealtn v. Williams, 84 A.3d 680, 682 n. 2 (Pa. 2014). Thus, we believe that our analysis adequately
addresses Defendant's claims under both constitutions.

                                                         18
                    Historically, the Pennsylvania Constitution granted the accused the right to "meet

---ll·-wu.i !. !d.tn. !.!,e~s=ses face to face.11 This Qr~cluded the u..se   Jr. _f.'ennsylvania   of closed c~uit ---·

            television and other forms of testimony where the witness was not in the presence of

           the defendant.      In 2003, the Constitution was amended to provide, in relevant part, that

           "[i]n all criminal prosecutions the accused hath a right to be confronted with the

           witnesses against him .... " to make it identical to the Confrontation Clause of the Sixth

           Amendment to the United States Constitution.               Bergdoll v. Commonwealth, 858 A.2d

           185, 190 (Pa. Cmwlth. 2004) (en bane), affirmed, 874 A.2d 1148 (Pa. 2005). See also In

           re N.C., supra; Commonwealth v. Williams, 84 A:3d 680 (Pa .. 2014); Commonwealth v.

           Charlton, 902 A.2d 554, 558 {Pa. Super. 2006). The purpose of the amendment was to

           allow Pennsylvania to adopt rules to permit children to testify in a criminal proceeding

           outside of the presence of the accused. Bergdoll, 858 A.2d at 191.

                   Accordingly, under both the United States Constitution 'and the Pennsylvania

           Constitution a young child may now testify via a contemporaneous alternative method if

           the court determines         that established      criteria are met. The procedure            for thls

          determination is provided by 42 Pa.C.S.A. § 5985, a companion statute to the TYHA

          which has requirements similar to the TYHA. Section 5985 provides, in pertinent part,.

          that:

                  (a.1) Determination.--Before the court orders the child victim or the child
                  material witness to testify by a contemporaneous alternative method, the
                  court must determine, based on evidence presented to it, that testifying
                  either in an open forum in the presence and full view· of the finder of fact or
                  in the defendant's presence will result in the child victim or child material
                  witness suffering serious emotional distress that would substantially impair
                  the child victim's or child material witness's ability to reasonably
                  communicate. ln making this determination, the court may do all of the
                  following:                                                                         ·



                                                             19
                              (1) Observe and question the child victim or child material witness,
                              either inside or outside the courtroom.
---------ji-----"(~2)"_LH~e~a1-r .!,S;te~st.lliimony of a parent or custodian....Q[_§l.DY other person,
                              such as a person who has dealt with the child victim or child
                              material witness in a medical or therapeutic setting. . ·

               Section 5985 has been routinely used since its adoption following .the 2003 amendment

              to Article I, Section 9 of the Pennsylvania Constitution. ·

                      In this case, at the Tender Yearshearing we observed M.K. and her responses

              to questions     regarding the Defendant. She stated that she did not want to see

              Defendant or be next to him and did not want to talk about the "bad thing" he had done

              to her if he was in the same room. She also stated that seeing him would bother her.

              (N.T., 3/28/2014, pp. 23-24): M.K.1s demeanor and body language conveyed even more

              clearly that being near Defendant and testifying in front of him in court would cause her

              distress and impact her ability to communicate. At the same hearing, M.K.'s mother

              credibly testified that M.K. does not ·like Defendant and says he is a "bad man." She

              also expressed her belief that M.K. would not be able to talk about what Defendant did

              to her if she was in the same room with him (Id. at 68). Similarly; Ms. Burkhardt credibly

              testified that M.K. would suffer emotional trauma if she were forced to testify in front of

              Defendant about what Defendant had done to her. Ms.: Burkhardt further testified that

              she believed such in-person testimony would affect M.K.'s ability to communicate and

              talk about incidents involving the Defendant.      (Id. at p. 54). Based on the evidence

              presented and our observation of M.K., we determined that M.K. would suffer serious

              emotional distress that would impair her ability to communicate if she were forced to

              testify in open court and granted the Commonwealth's motion to allow her to testify via

              closed circuit television.



                                                           20
            Because the record amply supports our determination that M.K; would suffer

    severe emotional trauma if she were forced to testify in open court, the requirements of

    Section 5985, which serves an important state interest and is stringent enough to

    Constitutionally permit non face-to-face testimony, were met. Accordingly, allowing M.K.

to testify via closed circuit television did not violate the Confrontation Clause of the

    United States Constitution. or the Pennsylvania Constitution.3 We believe this is

especially true in this case since, as discussed, counsel for Defendant                had the

opportunity to question M.K. during both the pre-trial hearing and at trial, and because

the jury and Defendant were able to contemporaneously observe her on the closed

circuit television screen.

       3. Joinder of Cases

            Defendant's fifth assignment of error is that we erred by joining the two cases for

trial. This contention is non-specific and is without merit.

            The joinder and severance of cases for trial is governed by Rules 582 and 583 of

the Pennsylvania Rules of Criminal Procedure. In order to join separate indictments for

trial, notice must be in writing, filed with the clerk of courts, and a copy served on the

defendant at or before the arraignment. Pa.R.Crlm.P. 582(b). The court may order

separate trials for offenses if it appears that the defendant would be prejudiced by

offenses being tried together.          Pa.R.Crim.P. 583.      The decision to separate or

consolidate offenses for trial is at the sole discretion of the trial court. Commonwealth v.

Keaton, 729 A.2d 529, 537 (Pa. 1999).

           On August 13, 2013, the Commonwealth properly noticed the joinder of these

separate cases for trial. Defendant did not object to joinder or file a motion to sever.
3
    See footnote 2.
                                                21
Instead, he summarily raised and argued improper joinder for the first time in his post-

sentence ~otions. As a result, we believe he has waived this issue. In any event, the

issue is rneritless because Defendant has not to date alleged or argued prejudice.

   4. Violationof Sequestration Order

       Defendant'sflnai    assertion is that we erred by allowing the Commonwealth to call

a person to testify as a rebuttal witness who had not been sequestered. This contention

is without merit.

       The decision of whether to sequester a witness is within the province of the trial

judge and, absent a clear abuse of discretion, will not be reversed. Commonwealth v.

Pursell, 724 A.2d 293, 310 (Pa. 1999) (citation omitted). In order to grant a new trial, a
                              '
defendant must show that a violation of a sequestration order by the Commonwealth

was a deliberate attempt to mislead the jury. Id. Selection of·a remedy .for the violation

of a sequestration order is within the discretion of the trial court.   Commonwealth v.

Robertson, 874 A.2d 1200, 1209 (Pa. Super, 2005) (citing Commonwealth v. Smith, 346

A.2d 757 (Pa. 1975)).      In making its. determination, the trial court must consider the

"seriousness of the violation, its impact on the testimony of the witness, the probable

impact on the outcome of the trial, whether the. witness intentionally disobeyed the

order, and whether        the party calling the witness procured the disobedience."

commonweent: v. Schwartz, 615 A.2d 350,      357 (Pa. Super. 1992) (citation omitted).

       Evid_entiary· rulings are reviewed for abuse of discretion. Commonwealth v.

Hairston, 84 A.3d 657, 665 (Pa. 2014).       "An abuse of discretion may not be found

merely because an appellate court might have reached a different conclusion, but




                                            22
 requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill·Will, or

 such lack of su          ort so as to be clearly erroneous." Id. (Citation omitted).

           In the instant case, the Commonwealth called Rebecca Guerrini as a rebuttal

 witness on the second day of trial. (N.T.. 10/23/2014, p. 144). Counsel for Defendant

 objected on the basis that Guerrini had been in the courtroom and not been

 sequestered. In response, the assistant district attorney stated that Guerrini, who

worked at M.K.'s daycare, had been in the courtroom for the first day of trial. and part of

the second because he did . not initially intend to call her. However, when defense

witnesses who worked at M.K.'s daycare testified, the assistant district attorney asked

her to step outside because he might want to call her on rebuttal. After the defense

rested Guerrini, was called. (N.T., 10/23/2014, p. 145). We accepted and found credible

the representation          of the Commonwealth, overruled the objection, and permitted

Guerrini    to testify.   (Id. at 146). Defense counsel did not request a curative instruction

and did not bring up in his cross-examination the fact that Guerrini had remained in the

courtroom in violation of the sequestration order. (Id. at 149-151). Defendant has not

presented any evidence to indicate that 'the violation of the sequestration .order was a

deliberate attempt by the Commonwealth to mislead the jury, and we found at the time

that it was not. Guerrini was not certain to be called as a witness by the Commonwealth,

and her testimony was limited to a brief rebuttal involving R.D's and M.K's actions and

demeanor at school, testimony that had a limited impact on the trial. Additionally, there

was and is nothing to indicate that Guerrini intentionally disobeyed the order, that the

Commonwealth purposely procured her disobedience, or that she altered her testimony

based on what she heard in the courtroom. Finally, Defendant has not alleged and we



                                                   23
             cannot discern any prejudice.     Under these circumstances, we do not believe that we

-----..JJ-   erred or abused our discretion in allowin Guerrini to testify.

                    In the alternative, erroneous ruling by a trlal court on an evidentiary issue does

             not require relief if the error was harmless. Commonwealth v. Mitchell, 902 A.2d 430,

             452 (Pa. 2006).        The accused     is entitled to a fair trial, not   a   perfect   one.

             Commonwealth v. Noel, 104 A.3d 1156, 1172 (Pa. 2014).            An error will be deemed

             harmless where an appellate court concludes beyond a reasonable doubt that the error

             did not contribute to the verdict. Id. An err.or will be considered harmless if one of the

             following factors is met:

                    (1) the error did not prejudice the defendant or the prejudice was de
                    minimis;
                    (2) the erroneously admitted evidence was merely cumulative of other
                    untainted evidence which was substantially similar to the erroneously
                    admitted evidence; or
                    (3) the properly admitted and uncontradicted evidence of guilt was so
                    overwhelming and the prejudicial effect of the error was so insignificant by
                    comparison that the error could not have contributed to the verdict

             Commonwealth v. Molina, 104 A.3d 430, 454 (Pa. 2014).

                    At bar, Guerrini Was a teacher at the school both R.D. and M.K. attended. She

             testified that in one instance she saw R.D. with her hand in her shorts touching herself

             and also that R.D. started to wet herself in the Spring of 2013. (N. T., 10/23/2014, p.

             148). She further testified that M.K. started acting out in class and during a classroom

             session involving "good touch/bad touch" M.K. raised her hand and said that Defendant

             put his thumb in her mouth. (N.T., 10/23/2014', pp. 148-149).

                   Throughout the trial several witnesses testified about potentially illicit physical

             contact that the Defendant had with R.D. These witnesses included ·R.D., the

             Defendant, Melissa DePaoli (recounting a story her husband shared with her), Bobbe

                                                        24
 Frankel (recounting ·a story R.D. told her), and Roberta Franzola (a child counselor who

            ith R.D. . Guerrini alone testified regarding· R.D .. touching herself or wetting

· herself at school. This testimony did not specify any potential source for R.D.'s

 problems or actions in school. Assuming arguendo that Guerrini's testimony regarding

 R.D. was admitted in error, the error is harmless due to the fact that 1) the Defendant

. was not prejudiced by her testimony and 2) the properly admitted evidence of guilt was

 overwhelming and any prejudicial effect of testimony regarding a few instances of R.D.'s

 conduct in school was so insignificant that it could not have contributed to the verdict.

        Similarly, throughout the trial several witnesses testified regarding at least one

 encounter Defendant had with M.K.          In this regard, M.K. told her mother and her ·

counselor that Defendant placed his hairy thumb in her mouth, and both of these

individuals testified to this at trial. M.K also testified at trial that Defendant put his hairy

thumb in her mouth.      Assuming arguendo that Guerrini's testimony regarding M.K.'s

behavior at school and M.K.'s story during. a classroom series was admitted in error, the

error is harmless.    M.K.'s behavior at school was not attributed to a specific event.

Further, the story Guerrini heard M.K. repeat in the classroom was merely cumulative of

other untainted evidence that was substantially similar. M.K and two other witnesses

described the same story.

       We allowed Guerrini to testify despite the fact that she remained in the

courtroom, because we accepted and found credible the Commonwealth's assertion

that they did not intend to call her until the Defendant brought in testimony she was

needed to rebut, The remedy for a violation of. a sequestration order is within our

discretion, so we did not err by allowing Guerrini to testify. However, even if we erred



                                             25
by allowing her testimony the error did not contribute to the verdict in the case and is

barmless,
       For these reasons, we believe the judgment of sentence should be affirmed ..




Date: September_, 2015                                                                       J.



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                                           26
                                                                   Circulated 11/28/2016 10:55 AM




              COURT OF COMMON PLEAS OF MONROE COUNTY
                  FORTY-THIRD JUDICIAL DISTRICT RE"coAo F
                COMMONWEALTH OF PENNSYLVANIA SUptRfOR                                 ~'JB~1
                                                                     ()·"'·,-
                                                                     -· (, I    1 8 ~'JO 16
COMMONWEAL TH OF PENNSYLVANIA                                     PHtLA
                                                         NO. 1772 CR zo~LPH/A
                                                         NO. 1773 CR 2013
              v.
                                                         APPEAL DOCKET NO.
PAUL DEPAOLI,                                            1720 EDA 2015
                                                         1721 EDA 2015
              Defendant


      SUPPLEMENT AL OPINION PURSUANT TO Pa.R.A.P. 1925(a)

       By judgment order dated August 31, 2016, the Superior Court remanded

these consolidated appeals for issuance of an amended opinion addressing the four

assignments of error listed on the second page of Defendant's Rule 1925(b)

statement that were not addressed in the appeal opinion filed on September 4,

2015. In response, we issue this supplemental opinion.

                            Additional Background

       The factual and procedural history recited in the initial appeal opinion is

supplemented as follows:

       1.    The SVP and Sentencing Hearillg§_

      After the jury returned its verdicts of guilty, we issued an order scheduling a

sentencing hearing. In that order, we directed our Probation Department to conduct a Pre-

Sentence Investigation (PSI) and issue a report of its findings, and ordered the               fJ
                                                                                               (". "v-1
                                                                                               r-.   0
                                                                                               0     -


                                                                                               ~ vi
                                            1
    Pennsylvania Sexual Offenders Assessment Board (SOAB) to conduct a Sexually Violent

    Predator (SVP) assessment and file a report containing its conclusions.

           Prior to sentencing, the PSI report was timely prepared. It was made available to

    and reviewed by Defendant's counsel and the Commonwealth's attorney.

           The SOAB report was also timely issued. The report identified Defendant as a

    SVP. Accordingly, we ordered that an SVP hearing be held immediately prior to the

    sentencing hearing.

          On February 19, 2015, the S\rp hearing was convened as scheduled. During the

    SVP hearing, the Commonwealth presented the SOAB report together-with the testimony

    of Mary E. Muscari, PhD, the evaluator who authored the report.1 (N.T., 2/19/2015 at 8-

35; Exhibit 2 (SOAB Report)). Based on her evaluation of all available information, Dr.

Muscari diagnosed Defendant as having Pedophilic Disorder. (Id at 13-20; Exhibit 2, pp.

    1 ~8). She also found that Defendant exhibited predatory behavior by abusing positions of

trust and authority - his position as the father of one child victim and his status as trusted

adult and babysitter of the other child. victim - in order to manipulate and sexually assault

them. (Id. at 19; Exhibit 2, p. 9). Based on these findings, Dr. Muscari concluded that

Defendant met the criterion to. be classified as an SVP. (Id. at 20; Exhibit 2, p: IO).

1
  Dr. Muscari authored two reports: an initial report and a revised report. During her testimony, she explained-why.
When Dr. Muscari first received this case, she was given a record of conviction regarding only one of the two child
victims. As a result, in performing the statutory SVP assessment she was not permitted to consider the second child
as a victim or even to factor-in information about the second child. Based on consideration of only one of the two
victims, Dr. Muscari determined that Defendant did not meet the criteria to be classified as a SVP, a fin.ding
reflected in the initial report. However, Dr. Muscari was later given the record of conviction regarding the second
child. Accordingly, she re-assessed Defendant. Factoring-in the existence ofa second child victim and considering
all relevant information, including information-about both children.Dr. Muscari concluded that Defendant did meet
the criteria to be classified· as a SVP. She revised her report accordingly. Dr. Mascari indicated that it was not
unusual for records of conviction regarding multiple victims to be provided to assessors at different times. lN.T.
02/19/2015, pp. 11-12, 26-31', and 33-35).                                                                       ·

                                                         2
 Defendant did not present testimony or evidence to contradict Dr. Muscari's findings. (Id.

 at 35-36).

        After hearing arguments from counsel for both parties, and considering both the

 law and the evidence presented during the hearing, we found that the Commonwealth had

 proven by clear and convincing evidence that Defendant was a SVP. We summarized our

 reasons on the record. In broad overview, we found Dr. Muscari to be credible, concluded

 that she properly considered statutory SVP factors, and determined that her diagnoses and ·

conclusions were supported by both the facts and the law. (Id. at 38-39).

        Immediately after the S VP hearing concluded, the sentencing hearing was

convened. Initially, we .addressed the Commonwealth's notification and request for

imposition of a mandatory minimum sentence pursuant to 42 Pa. C.S.A. Section 9718(a).

After hearing arguments, reviewing cases cited by the parties, and explaining the· Court's

independent research and findings, we held that, under the precedent which existed at the

time, the mandatory minimum sentence could not be applied. (Id. at 3-8, 40-50, 64-65).

       Substantively, neither party had any objections or corrections to the PSI report.

(Id. at 63). Before sentence was imposed, Defendant and his. attorney were given the

opportunity to address the Court and to submit evidence. Defendant's attorney began by

asserting that the main issue would be whether to run sentences concurrent or consecutive

to each other, both within each case and from case-to-case. (Id. at 51 ). He asked the Court

to sentence Defendant at the low end of the standard range in both cases and to run the

sentences     concurrent. Factually,   Counsel relied upon the information regarding

Defendant's life that was brought out during the trial, the PSI report, and letters that had

                                             3
been submitted on Defendant's behalf. (Id. at 51-54). Defendant chose not to speak on his

own behalf and no evidence was presented. (Id. at 53-54).

       The Commonwealth presented the mother of one of the child victims who, through

both a written statement and remarks made during the hearing, highlighted the impact

Defendant's crimes have had on her daughter and asked for a stiff sentence. Based on the

facts of the case, the impact on the child victims 'and their families, the severity of the

crimes, and its assertion that aggravating factors existed, the Commonwealth asked us to

impose a total aggregate sentence of 30 to 60 years. (Id. at 54-61 ).

       At the conclusion of the hearing, we sentenced Defendant to an aggregate period

of incarceration of 23 years, 3 months to 48 years. In addition, we designated Defendant

as a SVP, and ordered him to register under the Sexual Offenders Registration and

Notification Act (SORNA), 42 Pa.C.S.A.           § 9799.10 et. seq., for life. (Id. at 68-76;

Sentencing Orders, dated February 19, 2015).

       Before imposing sentence, we informed Defendant of the documents and

information we considered and explained our reasoning. Specifically, we advised

Defendant that the sentence was based on the facts developed during trial and pre-trial

hearings, the jury verdicts, the nature and severity of the crimes, the comprehensive PSI

report, the SOAB report, the statements made by his attorney, the assistant district

attorney, and the child victim's mother, and the letters that had been submitted to the

Court. We then stated our reasons on the record. (Id. at 61-76; PSI Report).

       Subsequently, Defendant filed timely post-sentence motions. He alleged that we

committed ten errors and asserted both weight and sufficiency of the evidence claims. On

                                             4
May 29, 2015, we denied the motions. Defendant then filed notices of appeal in both

cases.

         2.    Defendant's Failure to Serve His Rule 1925(b) Statements

          On June 16, 2015, we issued orders directing Defendant to file Rule 1925(b)

statements. On July 6, 2015, Defendant filed a statement with a dual caption in each case.

However, he did not serve copies on the undersigned as required by both Pa. R.A.P:

1925(b) and our June 16, 2015 order. In fact, his certificate of service indicates that the

statement was served only on the District Attorney.

         As a result, to prepare the initial opinion, we had to track down a copy of the Rule

l 925(b) statement from the record. We did so by printing a copy of the statement from

the electronic- docket in case No. -1772. Since a single statement was filed under .a dual

caption, we did not separately print a statement from the docket in case No. 1773. The

version of the statement electronically recorded   i? case 1772 contains only the first page
which, in turn, lists only seven-of the eleven assignments of error raised by Defendant. Ar;

a result, we addressed only the seven issues of which we were aware.

         The Commonwealth was in the same _position. From the exhibit attached to. the ·

Commonwealth's appellate brief, a copy of which was. served on the Court, it appears

that the version of the .starement provided to the District Attorney, like the version. that

appears in the, electronic docket in case_No.)772, contained only the first page.taad

therefore only the first seven assignments of error). As a result, the Commonwealth took

the position that the final four assignments of error, which it apparently gleaned from



                                               s
    Defendant's appellate brief.' had been waived, but nonetheless addressed them in the

    alternative.

            After this case was remanded for issuance of an amended opinion, we checked the

    dockets again. In two different computer systems, the electronic docket in case No. 1772

    contains only the first page of Defendant's Rule 1925(b) statement. The Certified Record

    is currently with the Superior Court. As a · result, we cannot determine whether the

    original "paper" version of the statement includes thesecond page.

            However, the electronic version of the statement filed in Case No. 1773 does

    contain the second page and, therefore, includes the final four assignments of error that

    we have been directed to address. In issuing this opinion, we have addressed the last four

    assignments of error as listed in the Superior Court's judgment order and the version of

the statement apparently tiled in Case No. 1773.

            When viewed in its entirety, Defendant's Rule l 925(b) statement raises eleven

assignments of error. The statement repeats the ten allegations of error and the weight

claim included in Defendant's post sentence motions, but does not reassert the challenge

to the sufficiency of the evidence.

            We addressed the first seven issues raised by Defendant in our initial opinion. ·we

now discuss the assignments of error eight through eleven, which are raised in Paragraphs

(h) through (k) on the second page of Defendant's appeal statement.




2
    Defendant did not provide us with a copy of his appellate brief.

                                                             6
                                                     Discussion

           1.      The Jury Was Properly Instructed On the Crimes Charged

           In his eighth assignment of error, Defendant alleges that we erred by failing "to

    instruct the jury in regards to the mens reas [sic] and actus reus issues relating to the

    voluntariness of the contact between Defendant and RD in the shower[.]" In his Rule

    I 925(b) statement, he does not specifically link this assertion to any of the individual

    crimes of which he was convicted. However, in arguing the exact same claim of error on

    post-sentence motions, Defendant contended that the Court failed to instruct the jury that

    any penetration by an actor must be the result of a voluntary act. As a result, Defendant

    attempted to assert that he may have been convicted of Rape of a Child and Involuntary

Deviate Sexual Intercourse (IDSI) of a child even if the jury believed "Defendant's

testimony that his daughter put her mouth on his penis in the shower without his

foreknowledge .... ,, (Defendant's "Post Sentencing Motions," filed March 2, 2015, pp. 6"

7). This allegation, which effectively contends that we should have molded the jury

instructions to comport with Defendant's theory of the case, lacks merit.'

          ''A person commits the offense of rape of a child, a felony of the first degree,

when the person engages in sexual intercourse with a complainant who is less than 13

years of age." 18 Pa.C.S. § 3121(c). The Pennsylvania Crimes Code describes sexual

intercourse, as follows, "In addition to its ordinary meaning, includes intercourse per os

or per anus, with some penetration however slight; emission is not required." 18 Pa.C.S.

3
  This assignment of error applies only to CaseNo. 1773, in Which Defendant was convicted of Rape of a Child and·
IDSI of a child against his daughter, R.D. The claim of error does not apply to the separate case, docketed. to No.
1772, in which Defendant was convicted oflDSl ofa child against his daughter's friend, M.K ..

                                                         7
§ 3101. A person commits the separate crime of IDSI of a child, also felony of the first

degree, when the person engages in deviate sexual intercourse with a complainant who is

less than 13 years of age. 18 Pa.C.S. § 3123(b). Deviate sexual intercourse is defined as

"sexual intercourse per os or per anus between human beings and any form of sexual

intercourse with an animal. The term also includes penetration, however slight, of the

genitals or anus of another person with a foreign object for .any purpose other than good

faith medical, hygienic or law enforcement procedures." 18 Pa.C.S. § 3101.

       At trial, Defendant requested that a paragraph regarding mens rea should· be

included because "there [was] no dispute, no quibble about the existence of [Defendant's]

penis being in his daughter's (RD). mouth. The question is, was it in the context of rape. or

was it in the context of a child's playful behavior ... " (N.T. 10/23/2014, p. 156). \Ve

denied. Defendant's request and gave instructions for the crimes of Rape of a Child and

.IDSI of a Child that correctly reflected the law and properly charged the jury on the

elements of the crimes.·

       When evaluating the propriety of jury instructions, appellate courts:

              look to the instructions as. a whole, and not simply isolated
              portions, to determine if the instructions were improper .... [I]t
              is an unquestionable maxim of law in this Commonwealth
              that a trial court has broad discretion in phrasing its
              instructions, and   may   choose its own. wording so long as the
              law is clearly, adequately, and accurately presented to the jury
              for .its consideration. Only where there is an abuse of
              discretion or an inaccurate statement of the law is there
              reversible error.

Commonwealth      v.   Antidormi,   84    A.3d   736,   754 (Pa.    Super.   2014) (quoting

Commonwealth v. Trippett, 932. A.2d 188, _200 (Pa.Super.2007)). In this regard, while
defense attorneys may submit points for charge and requested          instructions, the court is

not obligated to accept counsel's wording for an instruction as long as the court's

instruction "correctly reflects the law." Commonwealth v. Ohle, 470 A.2d 61, 70 (Pa.

 1963).

          In these cases, our jury instructions accurately reflected the law and properly

instructed the jury on the elements of these crimes. (N.T., 10/23/2014, pp. 229-30). /

Defense counsel's requested instruction was nothing more than an attempt to align the

jury charge with his theory that Defendant's penis accidently went into the mouth of his

daughter while they showered together. This is especially clear given the fact that the

claim of accident was asserted as only to one of several incidents where Defendant put

his penis into the mouths of the child victims and as to only the charges filed in Case No.

1773 in which his daughter, R.D., was the victim. We were under no obligation to read

Defendant's requested charge or to mold our instructions to dovetail with his attorney's

closing argument. However, our ruling did not preclude Defendant from asserting his

theory of the case. On the contrary, we clarified that both parties could argue what

"penetration" is or is not and that there is a difference between someone inserting their

penis into someone's mouth and someone inserting their mouth on a penis. (Id. at 164-

65). In fact, counsel for Defendant did just that. (Id. at 166-67).

       Simply, we properly instructed the jury on the charges of Rape of a Child and

IDSI of a Child. Defendant's eighth assignment of error is bootless.




                                              9
       2.     Defendant Was Properly Classified as a Sexuallv Violent Predator.

       In his ninth assignment of error, Defendant contends that we erred in finding him

to be a SVP. This contention is meritless.

       As noted, at the conclusion of the SVP hearing, we summarized our reasons for )

classifying Defendant as an SVP on the record. (N.T., 2/19/2015, pp. 38-39). We

incorporate our on-record statements into this opinion by reference. Having reviewed the

record in light of this appeal, we remain convinced that we correctly determined that the

Commonwealth proved by clear and convincing evidence that Defendant was an SVP

within the meaning of SORNA, including Sections 9799.12 and 9799.24 of the Law. To

what we stated on the record, we highlight, amplify, and add the following:

       Our Superior Court recently articulated the standard and scope of review to be

applied in a challenge to an SVP determination:

             A challenge to a determination of SVP status requires us to
              view the evidence:
                     [I]n the light most favorable to the
                     Commonwealth. The reviewing court may not
                     weigh the evidence or substitute its judgment
                     for that of the trial court. The clear and
                     convincing standard requires evidence that is so
                     clear, direct, weighty and convincing as to
                    enable [the trier of fact] to come to a clear
                    conviction, without hesitancy. of the truth of the
                    precise facts [at] issue.
             Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa. Super.
             2005) (internal citations and quotation marks omitted). The
             scope of review is plenary. Commonwealth v. Brooks, 7 A.3d
             852 (Pa.Super.2010), appeal denied. 610 Pa. 614, 21 A.3d
             1189 (2011). "[A]n expert's opinion, which is rendered to a
             reasonable degree of professional certainty, is itself
             evidence." Commonwealth v. Fuentes, 991 A.2d 935, 944


                                             10
              (Pa. Super. 2010) (en bane), appeal denied, 608 Pa. 645, 12
              A.3d 370 (2010) (emphasis in original).
                     A challenge to the sufficiency of the evidence to
              support an SVP designation requires the reviewing 'court to
              accept the undiminished record of the case in the light most
              favorable to the Commonwealth. Commonwealth v. Meals:
              590 Pa. 110, 119, 912 A.2d 213, 218 (2006). The reviewing
              court must examine all of the Commonwealth's evidence
              without ·consideration of its admissibility. Commonwealth v.
              Baker: 24 A.3d 1006, 1035 (Pa. Super. 2011). A successful
              sufficiency challenge can lead to an outright grant of relief
              such as a. reversal of the SVP designation, whereas a
              challenge to the. admissibility of the expert's opinion. and· ·
              testimony is an evidentiary question which, if successful, can
              lead to a new SVP hearing. Commonwealth v. Sanford, 5 80
              Pa. 604, 6.08-:-09, 863 A.2d 428, 431 (2004) (distinguishing
              concepts of sufficiency of evidence versus admissibility of
              evidence, but refusing to render any opinion. on whether SVP
              expert's "reliance on the affidavit of probable cause and the
              charging documents somehow rendered her testimony
              inadmissible as this. issue is not before this court"),
                        As a general 'rule, [the] standard of review of a
                       . trial court's evidentiary ruling ... is limited to
                         determining whether the trial court abused its
                         discretion, An . abuse of discretion may not be
                         found merely because.an appellate court might
                         have .reached a .. different conclusion, but
                      requires aresult of manifest unreasonableness,                    '   -,


                      or partiality, prejudice, bias, or. ill-will, or ·such.
                    - lack of support so as to be clearly erroneous,
              Commonwealth v. Dengler, 586. Pa ... 54, 65, 890 A.2d 372,
              379 (2005) (internal citations and'. quotation marks omitted).
              Our task in· either scenario -is._one of review, not one of
              reweighing or assessing . the. evidence in the first instance.
              Meals, supra at 127., 9PA,2d:at223.

Commonwealth v. Prendes, 97 .A.3d 337, 355-56(Pa. Super. 2014).

       SORNA requires-that the Commonwealth prove by clear and convincing evidence
                                 ..   .          .
that an individualis     a sy:p.·42 Pa..C.S.A. §: 979~.24(e)(3). To classify a defendant as a

SVP, the Commonwealth · must first show that the defendant has · been convicted of at

                                                11
           least one sexually violent offense, as set forth in 42 Pa.C.S.A. Section 9799.14. Secondly,

           the Commonwealth must show that the defendant has "a mental abnormality or

           personality disorder that makes [him] likely to engage in predatory sexually violent

           offenses." 42 Pa.C.S.A. § 9799.12. When the Commonwealth meets this burden, the trial

           court then makes the final determination on the defendant's status as a SVP. See

           Commonwealth v. Prendes, supra; Commonwealth v. Askew, 907 A.2d 624, 629 (Pa.

           Super. 2006), appeal denied, 919 A.2d 954 (Pa. 2007); Commonwealth v. Kopicz, 840

           A.2d 342 (Pa. Super. 2003).

                  Inthese cases, Defendant was convicted of, among other crimes, Rape of a Child,

           IDSI of two children, and Indecent Assault of two children. All three crimes are· listed as

           sexually violent offenses in Section 9799.14. Thus, the first element the Commonwealth

           was required to prove was undisputedly satisfied.

                  The second element the Commonwealth was required to prove is that Defendant

           has "a mental abnormality or personality disorder that makes [him] likely to engage in
   ~.: ·
....


           predatory sexually violent offenses." 42 Pa.C.S.A. § 9799.12. The following elements

           must be considered:

                         An assessment shall include, but not be limited to, an
                         examination of the following:
                         (1) Facts of the current offense, including:
                                1.  'Whether the offense involved multiple victims.
                               ii. Whether the individual exceeded the means
                                    necessary to achieve the offense.
                              iii. The nature of the sexual contact with the victim.
                              iv. Relationship of the individual to the victim.
                               v. Age of the victim.



                                                       12
                  vi.    Whether the offense included a display of unusual
                         cruelty by the individual during the commission of
                        the crime.
                 vii. The mental capacity of the victim.
             (2) Prior offense history, including:
                   1.   The individual's prior criminal record.
                  u. Whether the individual completed any pnor
                        sentences.
                  ni. Whether the individual participated in available
                        programs for sexual offenders.
             (3) Characteristics of the individual, including:
                    1.   Age.
                   11.   Use of illegal drugs.
                  iii.   Any mental illness, mental disability or mental
                          abnormality.
                  rv.     Behavioral characteristics that contribute to the
                          individual's conduct.
              (4) Factors that are supported in a sexual offender assessment
                  field as criteria reasonably related to the risk of re-offense,

42 Pa.C.S.A. § 9799.24(b).

      Here, the Commonwealth relied on the report and testimony of Dr. Muscari, an

expert on sexual offenders and the SOAB evaluator, who performed the court-ordered·

sex-offender assessment and prepared the SOAB report. Dr. Muscari testified that in

performing her assessment of Defendant, she considered each of the statutory factors she

was required to examine under Section 9799 .24(b ). She said that, based on her

consideration of the statutory factors and the facts of this case, she had formed an

opinion, to a reasonable degree of professional certainty, that Defendant meets the criteria

for classification as an SVP. She outlined the facts she considered relevant to each factor

in her written report and discussed the factors and corresponding facts during her

testimony.



                                              13
       In summarv, based on a review of all available records, and considering the factors

under Section 9799.24, Dr. Muscari diagnosed Defendant as having Pedophilic           Disorder

and found Defendant's behavior during the commission of the underlying charges to have

been predatory in nature. (N.T., 2/19/15, pp. 16-20; Exhibit 2, SOAB Report, pp. 7-10).

This opinion was based on, among other facts and factors: the circumstances surrounding

the crimes, the fact that there were two child victims, the ages of both girls, Defendant's

relationship with each of the children, and Defendant's use of those relationships -to

manipulate and sexually assault the children.

       We found. that Dr. Muscari's uncontradicted testimony was credible and that her

report, diagnoses, and .conclusions were fully supported by both the facts and the Iaw,

Viewed in the light of the applicable standards, Dr. Muscari's testimony and report are

more than sufficient. to establish, by clear andconvincing evidence, that Defendant was a

SVP. Defendant's protestation to the contrary lacks merit.

       3.      Defendant's Sentenc~lenge             Fails to Assert a Substantial Question.·
               and, in Anv Event. Is Devoid of Merit.

       In his tenth assignment of error, Defendant claims that we erred by sentencing

him, "in excess of the 'mandatory minimum,' though the Court correctly found that such

'mandatories' are constitutionally infirm." This sentencing challenge fails to assert a

substantial question. In the alternative, it is devoid of merit.

       Sentencing i~ a matter within . t~e. sound discretion of the trial court. See

Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) . In sentencing each particular

defendant, the sentencing . court may select one or more options with regard to


                                               14
      determining the appropriate sentence to be imposed. Id. The options include guilt without

      further penalty, probation, partial confinement, or total confinement. Id.; 42 Pa.C.S. §

      9721(a). The court must impose a sentence that is "consistent with 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." 42 Pa.C.S. § 9721(b). See

      Walls, 926 A.2d at 967-68; Commonwealth v. Dodge, 957 A.2d 1198, 1200 (Pa. Super.

      2008) ("Dodge II"), appeal denied, 980 A.2d 605 (Pa. 2009).

             The sentencing guidelines promulgated by the Pennsylvania Commission on

      Sentencing are instructive and advisory, but are not binding on the sentencing court. The

      court is obligated to consider the guidelines, but is under no duty to sentence a particular

      defendant within the guidelines or to impose the minimum possible confinement

      consistent with the guidelines. Walls, 926 A.2d at 575; Dodge II, 957 A.2d at 1201.

      "Where a sentence is within the standard range of the guidelines, Pennsylvania law views

1,-   the sentence as appropriate under the Sentencing Code." Commonwealth v. Moury, 992

      A.2d 162, 171 (Pa. Super. 2010) (citing Commonwealth v. Cruz-Centeno, 668 A.2d 536

      (Pa. Super. 1995), appeal denied, 676 A.2d 1195 (Pa. 1996)).

             "When imposing a sentence! the sentencing court must consider the factors set out

      in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public, gravity of offense in

      relation to impact on victim and community, and rehabilitative needs of the defendantl.]"

      Commonwealth v. Walls, 846 A.2d 152, 157 (Pa. Super. 2004). Additionally, a court

      should consider the particular circumstance of the offense and the character of the

      defendant, and should re.fer to the defendant's prior criminal record, his age, personal

                                                    15
characteristics     and his potential    for rehabilitation.   Moury, 992 A.2d at 1 71 ( citing

Commonwealth v. Griffin, 804 A.2d I, 10 (Pa. Super. 2002), appeal denied, 868 A.2d

1198 (Pa. 2005), cert. den, 545 U.S. 1148 (2005)).

        The court determines whether the sentence imposed should run consecutively or

concurrently with other sentences to which the defendant is subject. In this regard, it is

well-settled that the sentencing judge has discretion to impose a sentence concurrently or

consecutively to other sentences being imposed at the same time or to sentences already

imposed. See Commonwealth v. Mastromarino,2 A.3d 581 (Pa. Super. 2010) (and cases

cited therein.) and Commonwealth v. Marts, 889, A.2d 608 (Pa. Super. 2005) (same). See

also 42 Pa. C.S.A. §9721(a).

       The sentencing judge must state his or her reasons for the sentence on the record.

42 Pa.C.S.A. § 972l(b). The judge may satisfy this requirement by stating or

demonstrating at time of sentencing that the judge has been informed of the reasons by

the PSI report. Commonwealth v. Coss, 695 A.2d 831, 834 (Pa. Super. 1997); 42

Pa.C.S.A. § 972 l(b ). When, as here, a PSI report exists, the law presumes that

                  the sentencing judge was aware of the relevant information
                  regarding the defendant's character and weighed those
                  considerations along with mitigating statutory factors. A pre-
                  sentence report constitutes the record and speaks for
                  itself .... [Sentencing courts] are under no compulsion to
                  employ checklists or any extended or systematic definitions
                  of their punishment procedure. Having been fully informed
                  by· the pre-sentence report, the sentencing court's discretion
                  should not be disturbed. This is particularly true · ... in those
                  circumstances where· it can be demonstrated that the judge
                  had any degree of awareness of the. sentencing considerations,
                  and there we will presume also that the weighing process took
                  place in a meaningful fashion. It would be foolish, indeed, to

                                                 16
               take the position that if a court is in possession of the facts, it
               will fail to apply them to the case at hand ..

 Commonwealth      v. Devers, 546 A.2d at 18. See also Moury, 992 A.2d · at 171;

 Commonwealth v. Fowler, 893 A.2d 758 (Pa. Super. 2006); Commonwealth v. Tirado,

 870 A.2d 362 (Pa. Super. 2005); Commonwealth v, Burns, 765 A.2d 1144, 1150~ n5 l

 (Pa. Super. 2000). In this regard, a sentencing judge is not required, when giving the

 reasons for a particular sentence, to make a specific reference to the factors set forth in

 the Sentencing Cede that were considered in deciding the sentence, but the record as a

 whole must reflect . that the judge         in fact considered the sentencing        factors.

 Commonwealth v. Coulverson, 34 A.3d ] 3 5, 145- 146 (Pa. Super. 2011 ).

        Sentences that fal! within guideline ranges are subject the "clearly unreasonable"

 standard of 42 .Pa.· C.S.A. Section 9781(c)(2). while sentences that fall outside the

guidelines are subject to the "unreasonable"            standard of Section 9781(c)(3). .An

"unreasonable" decision from the sentencing court would be one that is " "irrational' or

"not guided by sound judgment.' " Walls. 926 A.2d at 963. See also Dodge II, 957 A.2d

at 1200; 42 Pa. C.S.A. § 9781(c)(2) and (3).

       In sum, our sentencing laws establish a. framework for sentencing. Within the

established framework, trial courts have broad discretion in determining the range of

permissible confinements that best suits the particular defendant and the circumstances

surrounding the event. See Commonwealth        V;   Moore, 617 A.2d 8, 12 (Pa. Super. 1992),

In order to constitute an abuse of discretion, a sentence must either exceed the statutory

limits or be so manifestly      excessive    as to constitute an abuse of discretion.


                                             17
Commonwealth v. uiu», 965 A.2d 276, 277 (Pa. Super. 2009) (quoting Commonwealth

v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000)). A sentence should not be disturbed where

it is evident that the sentencing court was aware of sentencing considerations and

weighed the considerations in a meaningful fashion. Finally, where the sentencing court

imposes a standard-range sentence with the benefit of a PSI report, the Superior Court

will not consider the sentence excessive. Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.

Super. 2011) (citing Commonwealth v. Moury, suprai.

       Challenges to the discretionary aspects of sentencing do not entitle a defendant to

review as of right. In order to establish that review is warranted, the appellant must

demonstrate that there is a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code. A substantial question exists only when the

defendant advances a colorable argument that the sentencing judge's actions were either:

I) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the

fundamental norms of the sentencing process. See Commonwealth v. Mouzon, 812 A.2d

617, 627-628 (Pa. 2002) (plurality); Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.

Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010); Moury, supra; Commonwealth        v.


Sierra, 752 A.2d 910 (Pa. Super. 2000). These issues must be examined and determined

on a case-by-case basis. Commonwealth v. Marts, 889 A.2d 608, 613 (Pa. Super. 2005).

      Before reviewing the discretionary aspects of a sentencing claim, the Superior

Court conducts:

             a four-part analysis to determine: ( 1) whether appellant has
             filed a timely notice of appeal, see PaR.A.P. 902 and 903; (2)
             whether the issue was properly preserved at sentencing or in a

                                           18
              motion to reconsider and modify sentence, see Pa.R.Crim.P.
              [720]; (3) whether 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.A. § 9781(b) ....
              Objections to the discretionary aspects of a sentence are
              generally waived if they are not raised at the sentencing
              hearing or raised in a motion to modify the sentence imposed
              at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006), appeal denied, 909 A.2d

303 (Pa. 2006) (citations and quotation marks omitted).

       Application of these rules, standards, and guidelines to the facts of this case

demonstrates that Defendant's sentencing challenge is meritless.

       Initially, we do not believe that Defendant will be able to demonstrate the requisite-

substantial question. Defendant's sentencing challenge consists entirely of his general.

conclusory assertion that we erred in sentencing him to a period of time "in excess of' a

mandatory minimum sentence we ruled couldnot be applied. He makes no attempt tp

either explain why the sentence is excessive or identify a sentencing norm or code

provision that was not followed by the Court. The challenge is nothing more than a bald

"excessiveness'' claim of the type that is routinely rejected as failing to assert a

substantial question. This is especially true in this case since Defendant was sentenced

within the standard range.

       In the alternative, if Defendant's excessiveness challenge will be heard, the

challenge is substantively without merit As noted, we stated our reasons for the sentence

imposed on.. the record, Our on-record statements demonstrate that, in fashioning

Defendant's sentence,   W<;   strove to achieve a sentence that was consistent with the
                                             19
       protection of the public, the gravity of the offense in relation to its impact on the victims

       and the community, the rehabilitative needs (and realities) of Defendant, and other

       appropriate sentencing considerations. See 42 Pa.C.S.A. §9721(b). In doing so, we had

       first-hand knowledge of the evidence and of Defendant's in-court demeanor gleaned from

      pre-trial proceedings, the trial, the SVP hearing, and sentencing. We also had the benefit

      of the SOAB report and a comprehensive PSI report · which contained substantial

      information=-favorablc and unfavorable, mitigating and aggravating-about          Defendant.

      At the sentencing hearing, we indicated an awareness of and an appreciation for the

      information contained in the reports regarding Defendant's character, background, and

      predatory conduct, and weighed those factors and the requisite statutory and guideline

      provisions when deciding and announcing Defendant's sentence. We also gave reasons

      for imposing sentence. The fact that Defendant believes his sentence is "excessive," or

      that he wants a lighter sentence, does not establish either an error of law or an abuse· nf

'-·   discretion .

.'            Simply, before imposing sentence, we identified the facts, information,

      documents, and reports, including the PSI report and SOAB report, we considered. We

      also explained our reasons for imposing the sentence that Defendant now seeks to

      challenge. (N.T., 2/19/2015, pp.61-67; PSI Report). Our on-record statements, coupled

      with the PSI report and SOAB report, are more than sufficient to explain the reasons for

      the sentence we imposed, to demonstrate that we complied with applicable sentencing

      laws and regulations, to show that in sentencing Defendant we acted well within our

      discretion, to debunk Defendant's bald sentencing challenge, and to adequately, properly,

                                                   20
and fully address any sentencing issue that Defendant is deemed to have preserved for

appellate review.

       4.       Defendant Waived His Weight Claim. In the Alternative, the Claim is
                Meritless.

       In his eleventh and final assignment of error, Defendant asserts that "the jury's

verdict was against the weight of the evidence." This boilerplate is insufficient to raise a

valid weight claim. In the alternative, the claim is bootless.

       Pennsylvania Rule of Criminal Procedure 607 provides:

                (A) A claim that the verdict was against the weight of the
                evidence shall be raised with the trial judge in a motion for a
                new trial:

                       ( 1) orally, on the record, at any time before
                       sentencing;

                       (2) by written motion at any time before
                       sentencing; or

                       (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A). A post-sentence motion challenging the weight of the evidence

"will preserve no issue for appellate review unless the motion goes on to specify in what

respect the evidence was insufficient, or why the verdict was against the weight of the

evidence." Commonwealth v. Holmes, 461 A.2d 1268, 1270 (Pa. Super. 1983) (emphasis

in original).

       Here, Defendant filed a timely post-sentence motion challenging the weight of the

evidence. However, the motion included only the boilerplate assertion that "[t]he jury's

verdict was against the weight of the evidence." (Defendant's "Post Sentencing


                                              21
 Motions," filed March 2, 2015, 'l!H). The motion does not even attempt to specify how

 the verdict was contrary to the weight of the evidence. The boilerplate is insufficient to

 preserve theweight claim for appellate review.

        Defendant's 1925(b) statement likewise lacks the required specificity to preserve a

 weight claim. In fact, the statement contains only the same boilerplate that was included

 in the post sentence motion. (Defendant's Rule 1925(b) statement, filed in case no. 1773

on July 6, 2015, · ,rk). A boilerplate appeal statement, like a boilerplate post sentence

motion, will not preserve a weight claim. See Commonwealth v. Seibert, 799 A.2d 54, 62

(Pa. Super. 2002) (vague weight claim in.Rule 1925(b) statement waives claim).

       For these reason, we believe that Defendant's weight claim has been waived. In

the alternative, the weight claim is substantively with.out merit.

       A challenge to· the weight ofthe evidence.

                concedes that there is sufficient evidence to sustain the
                verdict. . An allegation that the verdict is against the weight of
                the.evidence is addressed to the discretion of the trial court. A
                new trial should not be granted because of a mere conflict in        r _,
            .. the testimony or because the judge on the same facts would
                have arrived at a different conclusion. A trial judge must do
                more than reassess. the credibility of the witnesses and allege
                that he would not have assented to "the verdict if he were a
               juror. Trial judges, in reviewing a claim that the verdict is·
                against the weight of the evidence do not sit as the thirteenth
               juror. Rather, the role of.the trial· judge is to determine that
               notwithstanding. all the facts, certain (acts are so clearly of
               greater weight _that to. ignore them or _to give them equal
               weight with-all the facts is to· deny justice.
                               :   ·.·
Commonwealth. v. Widmer, 744 A.2d 745, _751-52 (Pa. 2000) (internal citations, footnote,
                                                   .
and quotation marks omitted). A verdict is not contrary. to the evidence


                                              22
                      because of a conflict in testimony or because the reviewing
                      court on the same facts might have arrived at a different
                      conclusion than the fact[-]finder. Rather, a new trial is
                      warranted only when the· jury's verdict is so contrary to the
                      evidence that it shocks one's sense of justice and the award of .
                      a new trial is imperative so that right may be given another
                      opportunity to prevail. ... [A]n appellate court's role is not to
                      consider the underlying question of whether the verdict is
                      against the weight of the evidence. Rather, appellate review is
                      limited to whether the trial court palpably abused its
                      discretion ·in ruling on the weight claim .... [O]nly where the
                      facts and inferences disclose a palpable abuse of discretion
                      will the denial of a motion for a new trial based on the weight
                      of the evidence be upset on appeal.

         Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014). Finally, there is, of course,

                      some tension between the power of trial courts to overturn
                      jury verdicts premised upon weight claims, and the bedrock
                      principle that questions of credibility are exclusively for the
                      fact-finder. Accordingly, the authority for the trial judge to
                      upset a verdict premised upon a weight claim is narrowly
                      circumscribed.

         Armbruster v. Horowitz, 813 A.2d 698, 702-03 (Pa. 2002) (internal citations and

         quotation marks omitted).
: ·~·'
 '
               In this case, the jury heard and saw the testimony of both child victims Defendant

         was charged with sexually assaulting. The victims testify about incidents during which

         Defendant stuck his penis into their mouths. Their testimony, standing alone, was enough

         to support the verdicts and undermine Defendant's weight claim.

               However, the child victims' testimony did not stand alone. Several other witnesses

         called by the Commonwealth testified about statements made by the child victims which

         were consistent with their trial testimony. In addition, Defendant acknowledged that his

         penis went into the mouth of one of the victims, RD., although he characterized that

                                                    23
       occurrence as accidental or the result of a child being curious. All witnesses were

       thoroughly cross-examined.

               The jury also heard and saw the testimony of all defense witnesses. Defendant

       testified on his own behalf. In doing so, Defendant claimed his penis accidentally landed

       in his daughter's mouth while taking a shower. Along similar lines, Defendant's wife

       testified that Defendant told her that his penis accidently landed in his daughter's mouth.

       In addition, Defendant's wife claimed Defendant was ari honest man even though he had

       waited years to disclose multiple affairs with other women. Further, Defendant also

       called three character witnesses. All three testified that Defendant had a reputation for

       being a truthful person. Like the· Commonwealth's witnesses, the defense witnesses,

       including Defendant, were cross-examined.

               The jury observed. all witnesses testify. By its verdict, the jury obviously believed

       the Commonwealth's evidence, including the testimony of the victims and the witnesses

       who testified about the children's statements, found that the statements made by both

.-,,   victims were reliable," and rejected the evidence and arguments presented by Defendant.

       Doing so was squarely within the province of the jury.

               Under the facts and circumstances of this case, the verdict does not shock the

       conscience and there is not even a hint that justice has been denied. Accordingly, we did

       not and do not detect any basis on which to intrude on the jury's findings or alter its

       verdict. The weight claim, if not deemed waived, simply does not hold water.


       4 In ruling that M.K. and R.D. 's statements were admissible under the Tender Years Hearsay Act, we, too, found
       that the statements were made under reliable circumstances.
                                                             24
                                          Conclusion

        In sum, for the reasons articulated in our initial appeal opinion, assignments of

error one through seven are baseless. For the reasons stated in this opinion, assignments

of error eight through eleven similarly lack merit. Accordingly, we believe the judgments

of sentence should be affirmed.



                                                   BY THE COURT:
                                                             3'.:
                                                                    I~
                                                                    en
                                                               O     CJ




Date:




C .,.
  ~.    Suoerior
          ,                       .
                  Court of Pennsvlvania
        Jonathan Mark, J.
        District Attorney (MTR)
        Brett Riegel, Esq.




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