J-S21027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GLENVILLE MOSLEY

                            Appellant                  No. 514 EDA 2014


            Appeal from the Judgment of Sentence October 26, 2010
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0111341-2006


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

MEMORANDUM BY LAZARUS, J.:                               FILED MAY 06, 2016

        Glenville Mosley appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County following his convictions for

several offenses stemming from his sexual abuse of a minor, D.G.          After

careful review, we vacate and remand for resentencing.

        The underlying facts of the case are as follows.       In 1990, Mosley

moved into the house where five-year old D.G. was living with his mother,

G.G., two older brothers and two younger sisters. In 1991, G.G. and Mosley

were married and had a child together.




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S21027-16



        Over time, G.G.’s two older sons, M.G. and L.G., moved out, and by

1994 or 1995, D.G. was the only boy in the house.         At that point Mosley

began to sexually abuse D.G.

        In 1998, while D.G. was staying at the home of his older brother,

M.G., he told M.G. about the abuse, which had occurred over a period of

years. M.G. informed an uncle, who contacted the Philadelphia Department

of Human Services (DHS).        A DHS social worker interviewed D.G. at his

aunt’s house, and DHS then contacted D.G.’s mother and Mosley. D.G. and

his siblings were removed from the family home and were placed in foster

care.

        D.G. initially did not wish to pursue a case against Mosley.   In April

2004, D.G. made a statement to police but still did not wish to prosecute.

However, in December 2005, after becoming a father, D.G. went to the

police and asked them to pursue the matter. Mosley was arrested in 2006.

        In Fall 2009, following several pretrial hearings, the Honorable Leslie

Fleisher made the following rulings:     (1) pre-arrest delay did not violate

Mosley’s due process rights; (2) the Commonwealth could not present

testimony in its case in chief, that following Mosley’s interview with a DHS

investigator on May 26, 1998, he attempted suicide; and (3) the

Commonwealth could not present testimony in its case in chief that in 1986

Mosley pled no contest to attempted involuntary deviate sexual intercourse

(IDSI) with his 13-year-old stepson.




                                       -2-
J-S21027-16



        The case proceeded to a jury trial before the Honorable Willis W.

Berry, Jr., on January 28, 2010.               On February 3, 2010, the jury found

Mosley guilty of involuntary deviate sexual intercourse (IDSI), 1 indecent

assault,2 endangering the welfare of children,3 and corruption of a minor.4

        On October 26, 2010, Judge Berry sentenced Mosley to 10 to 20 years’

incarceration for IDSI. It is clear from the record that the court imposed the

sentence pursuant to 42 Pa.C.S. §9718(a)(1), which requires a minimum

sentence of ten years when the victim of IDSI is less than sixteen years of

age. The court imposed a consecutive term of incarceration of one to two

years for child endangerment, and concurrent terms of incarceration of one

to two years for corruption of a minor and indecent assault, resulting in an

aggregate sentence of 11 to 22 years in prison.

        Mosley filed a direct appeal to this Court, which we quashed on July 2,

2012, for failure to file a brief.       Mosley filed a PCRA petition on April 15,

2013, which was granted on January 21, 2014. This timely nunc pro tunc

appeal followed and the matter was assigned to the Honorable Charles A.

Ehrlich due to Judge Berry’s retirement in September 2012.

____________________________________________


1
    18 Pa.C.S. § 3123(a)(1).
2
    18 Pa.C.S. § 3126(a)(1).
3
    18 Pa.C.S. § 4304.
4
    18 Pa.C.S. § 6301.



                                           -3-
J-S21027-16



     On January 31, 2014, following the grant of an extension pending

receipt of the notes of testimony, Mosley filed a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal. By leave of court, he filed an amended

statement on June 18, 2014. The trial court filed its Rule 1925(a) opinion on

June 29, 2015.

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

     1. The court erred and abused its discretion when it denied
        [Mosley’s] motion for dismissal resulting from pre-arrest
        delay. The Court erred and abused its discretion when it
        ruled that the Commonwealth’s delay in arresting [Mosley] in
        this case did not violate [Mosley’s] due process rights.

     2. The Court erred and abused its discretion when it ruled that
        the defense had not met the standard for the second prong of
        a dismissal motion even though the same court ruled that the
        Defendant had been prejudiced as a result of pre-arrest
        delay.   Such ruling by the court was clearly erroneous.
        Peden v. Gambone Bros. Development Co., 798 A.2d 305
        (Pa. Cmwlth. 2002); In re Estate of Rochez, 606 A.2d 563
        (Pa. Cmwlth. 1992).

     3. The trial court erred and abused its discretion when it denied
        [Mosley’s] motion for a mistrial where the Commonwealth’s
        complaining witness testified that this older brother may have
        been sexually assaulted by [Mosley], testimony which was
        explicitly ruled as inadmissible by the trial court when it ruled
        on the Commonwealth’s motion for admission of prior bad
        acts.       In violation of the trial court’s order, the
        Commonwealth elicited the exact testimony the trial court
        ruled as inadmissible to provoke [Mosley] into moving for a
        mistrial and was done either intentionally or with gross
        negligence to prejudice [Mosley] to the point of the denial of
        a fair trial. Commonwealth v. Anderson, 38 A.3d 828, 835
        (Pa. Super. 2011) (en banc) (quoting Commonwealth v.
        Smith, 615 A.2d 321, 325 (Pa. 1992).

     4. The trial court erred and abused its discretion when it denied
        [Mosley’s] objection and motion for mistrial where the
        assistant district attorney asked [Mosley] (1) whether he had

                                    -4-
J-S21027-16


           ever participated in sexual offenders counseling, in violation
           of the trial court’s ruling excluding evidence of prior bad acts,
           and (2) whether [Mosley] had ever stated that he would
           attend sexual offender’s counseling, statements made to a
           religious pastor prior to trial.

         5. [Mosley] was convicted of, inter alia, involuntary deviate
            sexual intercourse and sentenced to the mandatory minimum
            of ten (10) years upon a finding that the victim was under
            sixteen (16) years of age. Such a determination, made by
            the judge at sentencing, violated [Mosley’s] due process
            rights, Commonwealth v. Hilbert, 382 A.2d 724, 728 (Pa.
            1978), and was in clear violation of recent decisional case law
            holding that any fact or factor which raises the mandatory
            minimum sentence is a fact that must be determined beyond
            a reasonable doubt. Alleyne v. United States, ___ U.S.
            ___, 133 S.Ct. 2151 (2013); Commonwealth v. Wolfe, 106
            A.3d 800, 801 (Pa. Super. 2014).

Brief of Appellant, at 8-10.

         Mosley first asserts that the trial court committed legal error when it

denied his motion for dismissal for pre-arrest delay. He argues that Judge

Fleisher applied an incorrect standard when making her decision. While we

agree that Judge Fleisher did indeed apply the wrong standard, Mosley is not

entitled to relief.

         At a hearing on September 30, 2009, the Commonwealth suggested

that the standard for pre-arrest delay was set forth in Commonwealth v.

Jette, 818 A.2d 533 (Pa. Super. 2004). In Jette, a panel of this Court

relied    on   the    opinion   announcing   the   judgment   of   the   court   in

Commonwealth v. Scher, 803 A.2d 1204 (Pa. 2002), which held that to

establish a due process violation, the defendant must first show that the

delay caused him actual prejudice and the evidence must show “the delay


                                       -5-
J-S21027-16



was the product of intentional, bad faith, or reckless conduct by the

prosecution.”   Id. at 1221.    Scher further held that “[n]egligence in the

conduct of a criminal investigation, without more, will not be sufficient to

prevail on a due process claim based on pre-arrest delay.” Id. at 1222.

     The following exchange took place between the court and counsel at

the September 30, 2009 hearing:

     The Court:              I’m trying to get this so we can address
     each prong – circumstances that would determine the reason for
     the Commonwealth’s delay?           And it may not be the
     Commonwealth’s. And was it the product of any, you know, kind
     of intentional bad faith or reckless conduct by the prosecution,
     then it would be a due process violation, but negligence is not
     enough to prevail. I think that’s the most basic way to put that
     paragraph [of Jette]. And the court would have to weigh the
     totality of the circumstances. Is there anything anyone wishes
     to add?

     The Commonwealth:         No.

     The Court:                In terms of that being the analysis which
     applies?

     Defense Counsel:          I agree.

N.T. Pre-Trial Hearing, 9/30/09, at 52-53.

     At a hearing on October 1, 2009, the court continued to discuss pre-

arrest delay with counsel:

     The Court:                Negligence would not be attributable to
     the Commonwealth?

     The Commonwealth:         Well, if the [c]ourt finds that the
     Commonwealth acted negligently that would not be enough to
     find a violation of the defendant’s due process rights.

     The Court:            Okay.    Anyway, we did discuss this
     yesterday. [Defense counsel], do you agree so far?

                                     -6-
J-S21027-16


      Defense Counsel:        I am in agreement so far.

N.T. Pre-Trial Hearing, 10/1/09, at 17.

      At the commencement of the hearing on October 2, 2009, the court

referenced Jette and stated that Mosley had established actual prejudice.

N.T. Pre-Trial Hearing, 10/2/09, at 7.    However, after hearing testimony

from two Commonwealth witnesses regarding the delay, the court concluded

that Mosley’s due process rights were not violated. Id., at 152.

      In Commonwealth v. Wright, 865 A. 894 (Pa. Super. 2004), a panel

of this Court noted that Jette incorrectly relied on the opinion announcing

the judgment of the court in Scher because it had no precedential value.

Instead, the applicable standard, set forth in Commonwealth v. Snyder,

713 A.2d 596 (Pa. 1998), was that a due process violation occurs where

there is actual prejudice to the defendant and there are no proper reasons

for postponing the defendant’s arrest. The Wright court stated:

      We deem it appropriate in extended pre-arrest delay cases there
      should be a shifting burden with the initial burden upon the
      accused to establish that the pre-arrest delay caused actual
      prejudice, and the subsequent burden upon the Commonwealth
      to provide a reasonable basis for the extended delay in
      prosecuting the crime.

Wright, supra at 902.

      Mosley asserts that the trial court erred by applying the Scher

standard   adopted    by   Jette.     Furthermore,   he   argues   that   the

Commonwealth’s evidence at the hearing failed to meet the burden of

establishing proper reasons for the delay under Wright.



                                    -7-
J-S21027-16



       This Court decided Wright on March 22, 2004, more than five and

one-half years before the first hearing in the instant case. However, at the

hearings on September 30 and October 1, 2009, counsel for Mosley explicitly

stated his agreement with the application of the Scher/Jette standard. At

the hearing on October 2, 2009, the court stated, “I believe, yesterday, we

all agreed, counsel and I, that that was the standard applied.”    N.T., Pre-

Trial Hearing, 10/2/09, at 7. Mosley did not object to this statement.

       Because Mosley agreed to application of the intentional bad faith or

recklessness standard for pre-trial delay, any challenge to that standard is

waived on appeal.        “Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Failure to

raise or preserve a due process claim precludes an appellate court from

considering the issue. Commonwealth v. Colavita, 993 A.2d 874, 89-94

(Pa. 2010).5

       Mosley next asserts that the trial court erred by applying the law of

the case doctrine to its review of the issues raised on appeal.6 This claim
____________________________________________


5
  Even if we were to apply the standard set forth in Snyder and Wright, we
would conclude that there were valid reasons for the delay based on the
victim’s unwillingness to pursue the matter until he became an adult. This
Court should defer to the prosecutor’s conclusions that under the
circumstances a case is not ripe for court. Commonwealth v. Snyder, 761
A.2d 584, 589 (Pa. Super. 2000).
6
  Mosley did not raise this issue in the statement of questions involved.
However, because this failure has not hampered our review of the issue, we
will we consider it despite Mosley’s failure to conform to the Rules of
(Footnote Continued Next Page)


                                           -8-
J-S21027-16



arises, in part, from the unusual procedural history of this case. As noted,

Judge Fleisher decided the pre-trial motions, and Judge Berry conducted the

trial.    However, by the time permission to appeal from the judgment of

sentence nunc pro tunc was granted, both members of the bench had

retired. Accordingly, it fell to Judge Ehrlich to file a Rule 1925(a) opinion.

         Judge Ehrlich notes in his Rule 1925(a) opinion that the law of the

case doctrine precluded him from assessing the merits of the errors alleged

by Mosley. See Trial Court Opinion, 6/29/15, at 6, 15. The law of the case

doctrine “refers to a family of rules which embody the concept that a court

involved in the later phases of a litigated matter should not reopen questions

decided by another judge of that same court or by a higher court in the

earlier phases of the matter.”         Commonwealth v. Starr, 664 A.2d 1326,

1331 (Pa. 1995) (citation omitted).

         Mosley argues that the trial court’s reliance on the law of the case

doctrine was misplaced. We agree, but find that he is not entitled to relief.

It is not the law of the case doctrine that precluded Judge Ehrlich from

“reopening questions decided by another judge,” but rather Pa.R.A.P. 1701,

which provides that after an appeal is taken the trial court may no longer

proceed further in the matter.” A Rule 1925(b) opinion is not an opportunity



                       _______________________
(Footnote Continued)

Appellate Procedure. See In re Adoption of G.K.T., 75 A.3d 521, 524 n.4
(Pa. Super. 2013).



                                            -9-
J-S21027-16



to reopen previously decided issues; it simply provides an explanation for

the order on appeal.

       While his analysis of some of the issues is less than comprehensive,

we note that in his Rule 1925(a) opinion, Judge Ehrlich extensively reviews

the standard for granting relief on a claim of pre-trial delay, and concludes

that Judge Fleisher applied the incorrect standard.         Judge Ehrlich also

explains why this Court should remand the matter for resentencing.

Because the trial court’s opinion adequately addresses the issues on appeal,

no relief is due on this claim.

      Mosley next argues that the trial court erred by not granting a mistrial

when on direct examination, the complainant, D.G., referred to Mosley

having abused his older brother.

      We review the trial court’s decision to deny a mistrial for an
      abuse of discretion. Commonwealth v. Boone, 862 A.2d 639,
      646 (Pa. Super. 2004). A mistrial is necessary only when “the
      incident upon which the motion is based is of such a nature that
      its unavoidable effect is to deprive the defendant of a fair trial by
      preventing the jury from weighing and rendering a true verdict.”
      Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super.
      2008), appeal denied, 600 Pa. 755, 966 A.2d 571 (2009). A
      mistrial is inappropriate where cautionary instructions are
      sufficient to overcome any potential prejudice. Id.

Commonwealth v. Bedford, 50 A.3d 707, 712-13 (Pa. Super. 2012).

      At trial, the Commonwealth established that one to two weeks elapsed

between the final time Mosley abused the victim and the time that the victim

told his eldest brother, M.G., what had happened.       N.T. Trial. 1/29/10, at

21-22. The following line of questioning ensued by the Commonwealth:


                                     - 10 -
J-S21027-16


      Q:    Where were you the last time this defendant did these
      things?

      A:    On 25th (Street).

      Q:    Which room?

      A:    Front room.

      Q:    On the second floor of the house?

      A:    Yes.

      Q:    What happened then . . .?

      A:   That’s when told me that I should be comfortable with it
      now. That was it.

           And from there, I went and stayed at my brother’s house
      and he asked me was anything taking place.        From my
      understanding, this happened to him.

      Defense Counsel:          Objection.

      Q:   Let me ask you this . . .. Without saying what [M.G.] told
      you specifically, what did you say to him?

      A:     I told him something was going on. He was doing things
      to me. His wife noticed that I didn’t want to go back home and
      that I wanted to stay at his house.

            So, from my understanding, this may have taken place
      with my second oldest brother.

      Defense Counsel:          Objection.

      The Court: Let me see counsel at the side.

Id. at 22-23.

      An on-the- record discussion took place in the robing room, during

which Mosley’s counsel rejected the offer of a curative instruction and moved

for a mistrial. The court decided to take the motion under advisement, and

denied it on the last day of trial.




                                      - 11 -
J-S21027-16



        “[M]ere     ‘passing    references’    to    prior    criminal      activity   will   not

necessarily require reversal unless the record illustrates definitively that

prejudice results.” Commonwealth v. Thompson, 106 A.2d 742, 752 (Pa.

Super. 2014).       “When the Commonwealth introduces evidence which does

not directly establish appellant’s [other] criminal conduct, but which is

merely suggestive of it, the operative question is whether the jury could

reasonably infer from the facts presented that the accused had engaged in

[other] criminal activity.” Commonwealth v. Edwards, 762 A.2d 382, 388

(Pa. Super. 2000), quoting Commonwealth v. Thomas, 521 A.2d 442,

449-450 (Pa. Super. 1987).

        Mosley argues that the statements prejudiced him in the eyes of the

jury.    Furthermore, he argues that the statements bolstered the victim’s

credibility. Appellant’s Brief, at 33.

        At    the   pre-trial   hearing,   the      court    specifically     held     that   the

Commonwealth would not be allowed to present testimony in its case-in-

chief regarding Mosley’s 1986 conviction for attempted IDSI. Based on this

ruling, Mosley asserts that the Commonwealth had an affirmative duty to

direct D.G. not to make any statements about allegations of abuse against

Mosley by anyone. Mosley argues that the Commonwealth’s failure to give

this instruction to D.G. was an attempt to circumvent the trial court’s ruling

and constituted prosecutorial misconduct.

        The    Commonwealth         directed        D.G.     not   to    mention       Mosley’s

incarceration or that Mosley had attempted suicide after being confronted

                                           - 12 -
J-S21027-16



about allegations of abuse against D.G. This instruction was consistent with

the pre-trial orders precluding introduction of this evidence by the

Commonwealth.          Contrary to Mosley’s assertion, there was nothing in the

pre-trial rulings that would have put the Commonwealth on notice that it

needed to direct D.G. not to mention any other possible victim.

      It   is   also    clear   from   the   testimony   cited   above   that   the

Commonwealth’s questions to D.G. about what happened to him and what

he told his brother were not intended to elicit statements regarding other

victims.

      Here, in light of the speculative nature of the challenged testimony,

Mosley has failed to establish that the trial court abused its discretion in

denying his request for a mistrial. See Bedford, supra. It is also apparent

from the record that Mosley’s related claim of prosecutorial misconduct fails.

      Mosley next argues that the trial court erred by permitting the

Commonwealth to question him about privileged material during cross-

examination.

      On direct examination, Mosley testified that in 2004, DHS investigated

matters involving his daughters, and that the allegations were deemed to be

unfounded.      N.T. Trial, 2/1/10, at 153-54.       On cross-examination, the

following exchange took place between the assistant district attorney and

Mosley:

      Q:    This allegation from 2004, when DHS came out to
      investigate you for having sex with your two stepdaughters and


                                        - 13 -
J-S21027-16


      your biological daughter was initiated by Michelle Humphrey in
      March of 2004; isn’t that right?

      A:    Yes.

      Q:    Tonya Baker is your sister, correct?

      A:    Yes.

      Q:    And Robert Baker is her husband?

      A:    Yes.

      Q:   And you know Tonya Baker’s husband, Robert, had a
      conversation with Pastor Henry Davis; isn’t that right?

      A:    I don’t know anything about that.

      Q:    Do you know Pastor Henry Davis?

      A:    Yes, I do.

      Q:   Isn’t it true you promised your brother-in-law, Robert
      Baker that you were going to go for sex offenders counseling
      once Michelle Humphrey made those allegations against you?

      Defense Counsel:        Objection.

      The Court:              Overruled.

      Q:   You never said to Pastor Henry Davis that you would go to
      counseling and then reneged on that promise to go?

      A:    I never made a promise to him at all.

      Q:      In fact, you never had sex offenders counseling in your
      life; is that correct?

      A:    No.

Id. at 159-60. The Commonwealth then engaged in a completely different

line of questioning.

      Mosley argues that without filing a pretrial motion, the Commonwealth

questioned him about his communications with Pastor Davis. He claims that

the communications are subject to the statutory privilege between priest and


                                    - 14 -
J-S21027-16



penitent set forth in section 5943 of the Judicial Code, which provides, in

relevant part:

      § 5443      Confidential communications to clergymen

      No clergyman, priest, rabbi or minister of the gospel of any
      regularly established church or religious organization . . . who
      while in the course of his duties has acquired information from
      any person secretly and in confidence, shall be compelled, or
      without consent of such person, to disclose that information in
      any legal proceeding, trial or investigation before any
      government unit.

42 Pa.C.S. § 5943.

      He further asserts that questioning about the communication should

have been outside the presence of the jury, so the court could have

determined the applicability of the privilege.

      From our review of the record, it is clear that Mosley did not assert the

privilege and did not request a mistrial.     His objection to whether he had

promised his brother-in-law that he would go to sex offenders counseling did

not preserve the issue of a statutory privilege.     “Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a). Accordingly, we engage in no further review of this issue.

      Mosley’s final claim is that pursuant to Alleyne v. United States, ___

U.S. ___, 133 S.Ct. 2151 (2013) his sentence is illegal. In Commonwealth

v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), petition for allowance of appeal




                                     - 15 -
J-S21027-16



granted, 121 A.2d 433 (Pa. 2015),7 this Court held that section 9718 of the

Sentencing Code governing mandatory minimum sentences for persons

convicted of specified crimes, including IDSI, against victims less than

sixteen years of age is facially unconstitutional.         Therefore, we agree with

the trial court that the sentence for IDSI must be vacated and remanded for

resentencing without imposition of a mandatory minimum sentence.

       Because Mosley was sentenced for multiple offenses, we vacate the

entire judgment of sentence and remand to the trial court for resentencing.

See Commonwealth v. Wilson, 934 A.2d 1191 (Pa. 2007) (where

appellate court’s disposition upsets trial court’s original sentencing scheme,

remanding for resentencing is appropriate disposition).

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016
____________________________________________


7
  The Supreme Court heard oral argument in Wolfe on November 18, 2015.
On January 20, 2016, the Supreme Court ordered the case be resubmitted
for reconsideration on previously filed briefs.



                                          - 16 -
