J-A15001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

NICHOLAS DUPREE

                            Appellant              No. 1636 EDA 2013


             Appeal from the Judgment of Sentence May 13, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000172-2010


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.:                           FILED JULY 29, 2014

       Appellant, Nicholas Dupree, appeals from the judgment of sentence

entered May 13, 2013, by the Honorable Gwendolyn N. Bright, Court of

Common Pleas of Philadelphia County. We affirm.

       This case stems from a series of incidents in 2009 during which

Dupree repeatedly sexually assaulted his nine-year-old minor daughter, ND.

On September 14, 2012, following a jury trial, the jury convicted Dupree of

Involuntary Deviate Sexual Intercourse with a

Corruption of Minors, Indecent Assault, and Aggravated Indecent Assault.1

On May 13, 2013, the trial court sentenced Dupree to the mandatory

minimum 10-
____________________________________________


1
  18 PA.CONS.STAT.ANN. §§ 3123(b), 4302, 6301(a)(1), 3126(a)(7) and
3125(a)(1).
J-A15001-14



                        ted indecent assault,2 and terms of probation for



Reconsideration of Sentence without a hearing on May 22, 2012. This timely

appeal followed.

       On appeal, Dupree raises the following issues for our review:

       I.     Did not the trial court err in admitting evidence of prior
              bad acts including, but not limited to both the fact of Mr.

              purporting to support a number of charges which were
              dismissed, involving alleged prior sexual misconduct
              committed by Mr. Dupree upon his daughter, the
              complainant in the instant matter?

       II.    Did not the trial court further err in admitting hearsay
              testimony by a former assistant district attorney, Robert
              Foster, who was improperly permitted to testify

              purported state of mind, his opinion that the complainant
              was truthful, his opinion that children do not make up what
              was purported to be the substance of th
              testimony, and what the alleged facts were in the prior
              case regarding the complainant, which facts were neither
              proved, or admitted?

       III.   Did not the trial court err in finding that there was no
              prejudice to Mr. Dupree in the seating of Juror #12,

              extraordinary relief?

       IV.    Was not the sentence imposed by this [h]onorable [c]ourt
              excessive under the circumstances, and did not the trial
              court abuse its discretion in sentencing Mr. Dupree to more
              than the mandatory minimum, which minimum was more
              than sufficient to punish Mr. Dupree?
____________________________________________


2
 Indecent Assault merged with Aggravated Indecent Assault for sentencing
purposes.



                                           -2-
J-A15001-14




      Dupree first claims that the trial court erred when it admitted evidence

                                                                      y plea in

2005 to simple assault against the same victim in this matter as well as

testimony regarding the facts surrounding that episode of criminal conduct.



and will be reversed only upon a showing that the trial court clearly abused

                   Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa.

Super. 2012) (internal citations omitted).



bad acts or

proclivities.   See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.

Super. 2008).      There are, however, certain notable exceptions to this

prohibition:

      One such exception arises in the prosecution of sexual offenses.
      Evidence of prior sexual relations between defendant and his or
      her victim is admissible to show a passion or propensity for illicit
      sexual relations with the victim. This exception is limited,
      however. The evidence is admissible only when the prior act
      involves the same victim and the two acts are sufficiently
      connected to suggest a continuing course of conduct. The
      admissibility of the evidence is not affected by the fact that the
      prior incidents occurred outside of the statute of limitations.

Commonwealth v. Young, 989 A.2d 920, 925 (Pa. Super. 2010) (citation

omitted).

      Dupree argues, without any further elaboration, that the act to which



                                     -3-
J-A15001-14




Young).3 We disagree.


       significance of evidence which provides [the factfinder] with the
       res gestae, or complete history, of a crime.

          [T]he trial court is not ... required to sanitize the trial to
          eliminate all unpleasant facts from ... consideration where
          those facts are relevant to the issues at hand and form
          part of the history and natural development of the events
          and offenses for which the defendant is charged.

       Res gestae evidence is of particular import and significance in
       trials involving sexual assault. By their very nature, sexual
       assault cases have a pronounced dearth of independent
       eyewitnesses, and there is rarely any accompanying physical
       evidence.... [In these] cases the credibility of the complaining
       witness is always an issue.

Commonwealth v. Wattley, 880 A.2d 682, 687 (Pa. Super. 2005)

(internal citations and quotes omitted).

       Instantl

victim and the factual circumstances surrounding that plea are undoubtedly

connected to the current criminal acts against the same victim and clearly

suggest a continuing course of conduct.          Although certainly prejudicial, we



____________________________________________


3
 The decision in Young, which held prior bad acts for which a defendant has
been acquitted are admissible und

prior bad acts with which this Court was presented in Young were
committed against the same victim as in the prior episode of abuse not a
separate individual.



                                           -4-
J-A15001-14



[finder of fact] as to sweep them beyond a rational consideration of guilt or

                                          Commonwealth v. Sherwood, 603 Pa.

92, 116 n.25, 982 A.2d 483, 498 n. 25 (2009) (citation omitted).

Accordingly, we find the trial court properly admitted the evidence of




admission of alleged hearsay and inappropriate opinion testimony by former

assistant district attorney, Robert Foster.4     Dupree first argues the former




9/6/12 at 51. Even if we were to find this testimony to be objectionable, the

record reveals that Dupree did not raise a contemporaneous objection to this

testimony at trial. Accordingly, this claim is waived. See Commonwealth

v. May




2005 case was re




____________________________________________


4
  As we have already determined that the trial court properly admitted
evidence and testimony regarding the allegations of abuse arising out of the
2005 incident involving ND, we need not address this issue further.



                                           -5-
J-A15001-14



      Dupree additionally argues that the former ADA improperly offered his

                                           -direct examination.   See, e.g.,

Commonwealth v. Walker, --- A.3d ---, 2014 WL 2208139, *12 (Pa.



upon the jury's basic




83.   Counsel did not object to this testimony.        Regardless, on cross-

examination, defense counsel asked Foster whether, in his opinion, ND was

truthful.   See

issue of

                                                          -direct examination

was in error.     See Commonwealth v. Kruder, 62 A.3d 1038, 1058 (Pa.

Super. 2013)

that the Commonwealth chose to explore further what was behind that



      Dupree next argues that the trial court erred when it denied his Motion

for Extraordinary Relief on the basis that juror Eugene Epperson should not

have been seated and that Mr. Epperson committed misconduct which

                               See




                                     -6-
J-A15001-14



mother, Sonja Dupree, and that there was some animosity between the two

of them prior to trial. See id.

      The right to be judged by a fair and impartial jury of one's peers
      is, of course, firm and well-established. However, the inalterable
      fact of human frailty requires us to recognize that not every act
      of juror misconduct warrants the declaration of a mistrial. Only
      when there has been prejudice to the accused does an act of
      juror misconduct require the granting of a new trial.

Commonwealth v. Flor, 606 Pa. 384, 439, 998 A.2d 606, 639 (2010)

(citations omitted).

      Applying this standard, the trial court explained its reasoning for




      Extraordinary Relief to consider this issue.   [Sonja Dupree]
      testified that for a short time she and Epperson worked in the
      same office at the Domestic Relations Division and that she
      believed Epperson harbored hostility towards her as a result of
      matters pertaining to work assignments.

            Throughout the trial [Sonja Dupree] was sequestered and
      never inside the courtroom. She did not testify in the case. The
      only time she saw Epperson was in the hallway of the courtroom
      and as Epperson exited and entered the Courthouse. Epperson
      was not identified in any way as a juror and [Sonja Dupree]

      the courthouse.

            Epperson testified that he is a Hearing Officer in the
      Domestic Relations Division. He explained that he had minimal
      contact with [Sonja] Dupree and that during the initial voir dire
      when the names of potential witnesses were revealed he did not
      recognize her name.      Epperson further stated that [Sonja]
      Dupree worked with him for a very brief time and that he had no
      disputes with her over anything. He stated that he was unaware

      that there was no juror misconduct. Error was not committed.



                                    -7-
J-A15001-14



Trial Court Opinion, 8/28/13 at 8-

reasoning and find that Dupree suffered no prejudice as a result of juror



                                                      -fold.   He first argues

                                                                          d a

reasonable doubt, facts sufficient to establish any mandatory minimum. Nor



at 15. Dupree does not elucidate what facts, precisely, were not determined

by the jury to have been proven beyond a reasonable doubt. Moreover, this



Complained of on Appeal. Ordinarily, such failures would result in waiver of

                           See Commonwealth v. Delvalle, 74 A.3d 1081,

1087 (Pa. Super. 2013) (finding undeveloped claim to be waived);

Commonwealth v. Carpenter

                                                                             -

ordered 1925(b) statement wil

However, because the application of a mandatory minimum sentence gives

rise to illegal sentence concerns, which are non-waivable, we will proceed to

address this issue on the merits. See Commonwealth v. Watley, 81 A.3d

108, 118 (Pa. Super. 2013).

     Dupree was convicted of Involuntary Deviate Sexual Intercourse with a

Child, 18 PA.CONS.STAT.ANN. 3123(b).       Dupree was sentenced to the

mandatory minimum sentence pursuant to 42 PA.CONS.STAT.ANN. § 9718(d),

                                     -8-
J-A15001-14



whic

convicted under 18 PA.CONS.STAT.ANN. § 3123, where the victim is under 16

years of age. His argument suggests that the fact necessary to support the

mandatory minimum       that the victim, ND, was under 16 years of age    was

not determined by a jury or proven beyond a reasonable doubt in violation

                                                n Alleyne v. United States,

--- U.S. ---, 133 S.Ct. 2151, 186 L.E.2d 314 (2013).

       According to the Alleyne Court, a fact that increases the
       sentencing floor is an element of the crime. Thus, it ruled that
       facts that mandatorily increase the range of penalties for a
       defendant must be submitted to a fact-finder and proven beyond
       a reasonable doubt. The Alleyne decision, therefore, renders
       those Pennsylvania mandatory minimum sentencing statutes
       that do not pertain to prior convictions constitutionally infirm
       insofar as they permit a judge to automatically increase a
       defendant's sentence based on a preponderance of the evidence
       standard.

Watley, 81 A.3d at 117-118.

       Here, the record undoubtedly establishes that the jury did find beyond

a reasonable doubt that the victim was under 16 years of age.       The trial

court specifically instructed the jury that in order to find Dupree guilty of

IDSI with a child, indecent assault of a child, and aggravated indecent

assault of a child, they were required to find, beyond a reasonable doubt,

                                                                            -

183, 186-188.

       In convicting Dupree of these crimes, the jury clearly determined

beyond a reasonable doubt that ND was under 13 years of age as instructed.


                                    -9-
J-A15001-14



Commonwealth v. Arrington



omitted).   Accordingly, we find the fact triggering the application of the

mandatory minimum in this case was properly determined by the jury and

therefore the sentence was not in error.

     Dupree alternatively argues that his sentence was excessive in

violation of the mandates of 42 PA.CONS.STAT.ANN. § 9721. See

Brief at 5, 15. Dupree does not describe the manner in which his sentence

ran afoul of the section 9721, or otherwise describe in what manner the



                                    Id

surrounding this claim to be woefully underdeveloped.   Consequently, this

claim is waived. See Delvalle, supra.




sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2014


                                   - 10 -
