J-S24015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :        IN THE SUPERIOR COURT OF
                                              :              PENNSYLVANIA
              v.                              :
                                              :
RICHARD E. LAWRENCE,                          :
                                              :
                    Appellant                 :             No. 889 MDA 2015

            Appeal from the Judgment of Sentence January 22, 2015
              in the Court of Common Pleas of Lancaster County,
              Criminal Division, No(s): CP-36-CR-0003170-2012

BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED AUGUST 22, 2016

        Richard E. Lawrence (“Lawrence”) appeals from the judgment of

sentence     imposed    following   his   conviction   of   corruption   of   minors

(misdemeanor), corruption of minors (felony), indecent exposure and

unlawful contact with a minor.1 We affirm.

        The trial court set forth the relevant factual and procedural history in

its Opinion, which we adopt for purposes of this appeal.           See Trial Court

Opinion, 4/20/15, at 1-4. The trial court denied Lawrence’s post-sentence

Motion on April 20, 2015.       Thereafter, Lawrence filed a timely Notice of

Appeal.2

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

1
    See 18 Pa.C.S.A. §§ 6301(a)(1)(i), (ii), 3127(a), 6318(a)(1).
2
  The trial court did not order Lawrence to file a concise statement of
matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). The trial
court relies on its Opinion, entered on April 20, 2015, in support of the
judgment of sentence imposed on Lawrence.
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     1. Was the evidence presented by the Commonwealth
        insufficient to sustain [] Lawrence’s conviction for indecent
        exposure, where [] Lawrence exposed his penis to E.S. during
        consensual sexual activity, and the Commonwealth did not
        establish that the exposure was made under circumstances in
        which [] Lawrence knew or should have known that his
        conduct was likely to offend, affront or alarm?

     2. Was the evidence presented by the Commonwealth
        insufficient to sustain [] Lawrence’s conviction for unlawful
        contact with a minor, as set forth at 18 Pa.C.S.[A.] § 6318,
        which requires that he have had contact with a minor for the
        purposes of certain offenses set forth in § 6318, and []
        Lawrence did not commit any of these offenses?

     3. Because the evidence was insufficient to sustain [] Lawrence’s
        convictions for indecent exposure, unlawful contact with a
        minor, or third[-]degree felony corruption of minors, was
        there no basis for an assessment pursuant to 42 Pa.C.S.[A.]
        § 9799.24, and should [] Lawrence not have been found [to
        be] a sexually violent predator [“SVP”]?

     4. [Was] the evidence presented by the Commonwealth and the
        trial court’s charge to the jury insufficient to sustain []
        Lawrence’s conviction for corruption of minors, a third[-
        ]degree felony, as set forth at 18 Pa.C.S.A. § 6301(a)(1)(ii)?

     5. Did the trial court err by precluding defense counsel from
        informing the jury that a sixteen-year-old person was
        permitted to consent to sexual activity, to the extent that
        such consent was relevant to a consideration of whether []
        Lawrence committed indecent exposure, and did the court’s
        ruling unlawfully impede defense counsel’s right to present a
        defense, in violation of the Sixth and Fourteenth Amendments
        to the United States Constitution, and Article One, Section
        Nine, of the Constitution of the Commonwealth of
        Pennsylvania?

     6. Did the trial court err by refusing to grant a mistrial after the
        prosecutor deliberately misstated the law to the jury, stating
        that a person under eighteen cannot consent to sexual
        contact with an adult, and that he cannot consent to indecent
        exposure, that [] Lawrence should have known that it would
        be “offensive or alarming or affronting to the community” to


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         expose himself to E.S., and that whether E.S. wanted the
         sexual contact was not relevant, even to the charge of
         indecent exposure; [and] did the prosecutor’s uncured errors
         prejudice the jury against [] Lawrence such that they could
         not render a fair and impartial verdict?

      7. Was [] Lawrence’s sentence of ten and one-half to twenty
         years[’] incarceration manifestly excessive, unreasonable,
         and an abuse of discretion, where all sentences were imposed
         consecutively, all sentences were statutory maximum
         sentences, above the aggravated range of the sentencing
         guidelines, and the court chose to ignore significant evidence
         of [] Lawrence’s rehabilitation and other mitigating factors?

Brief for Appellant at 10-12 (issues renumbered for ease of disposition).

      In his first issue, Lawrence contends that the Commonwealth failed to

prove the crime of indecent exposure because the evidence did not establish

that Lawrence knew or should have known that exposing his penis to E.S.

was likely to offend, affront or alarm E.S.          Brief for Appellant at 26.

Lawrence asserts that the only crime for which an adult may properly be

charged, as related to private consensual sex with a sixteen or seventeen-

year-old minor, is first-degree misdemeanor corruption of minors. Id. at 27.

According to Lawrence, a sixteen-year-old minor may consent to sexual

activity, even with an adult.   Id. at 28.    Lawrence argues that, “[w]hile

consent is not an element of indecent assault, it surely is a defense, as it

would be absurd to suggest that a person could commit indecent exposure

during consensual sexual activity.”     Id. at 29.     Lawrence contends that,

“[b]ased on the evidence presented at trial, it appears that [] Lawrence first

exposed his genitals to E.S. during their first consensual sexual encounter, in



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the [s]pring of 2009.”   Id. at 30.     However, Lawrence asserts, based on

E.S.’s testimony, “it is not entirely clear whether [] Lawrence exposed his

penis to E.S. during this first sexual encounter, or exactly when, during this

first encounter, he did so.” Id. at 30-31. Lawrence claims that, although

his trial testimony that he and E.S. “masturbated each other” during that

first encounter “makes it more clear that [] Lawrence’s penis was exposed at

some point, [] there was no evidence from which the jury could determine

the order in which these acts took place.” Id. at 31. Lawrence argues that

he “reasonably believed that E.S. would not be offended or alarmed by

seeing his penis, while the two of them were engaged in consensual sexual

activity.” Id. Lawrence contends that, because he exposed his penis during

consensual, mutual masturbation with E.S., the Commonwealth failed to

establish that Lawrence knew or should have known that E.S would be

offended, affronted or alarmed by such exposure. Id. at 32.

      In its Opinion, the trial court set forth the relevant law, addressed

Lawrence’s first issue, and determined that it lacks merit. See Trial Court

Opinion, 11/6/14, at 4-8. Viewing the record in the light most favorable to

the verdict winner, and giving the prosecution the benefit of all reasonable

inferences to be drawn from the evidence, we agree with the reasoning of

the trial court and affirm on this basis as to Lawrence’s first issue. See id.;

see also Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super.

2013).



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      In his second issue, Lawrence contends that, because the evidence

was insufficient to sustain his conviction of indecent exposure, the evidence

was necessarily insufficient to sustain his conviction for unlawful contact with

a minor. Brief for Appellant at 33.

      In its Opinion, the trial court set forth the relevant law, addressed

Lawrence’s second issue, and determined that it lacks merit. See Trial Court

Opinion, 11/6/14, at 8; see also id. at 6-8 (wherein the trial court

determined why the evidence was sufficient to sustain Lawrence’s conviction

of indecent exposure). Viewing the record in the light most favorable to the

verdict winner, and giving the prosecution the benefit of all reasonable

inferences to be drawn from the evidence, we agree with the reasoning of

the trial court and affirm on this basis as to Lawrence’s second issue. See

id. at 8; see also Franklin, 69 A.3d at 722.

      In his third issue, Lawrence contends that, because the evidence was

insufficient to convict him of unlawful contact with minors or third-degree

felony corruption of minors, no SVP assessment should have been ordered,

and the finding that he is a SVP should be vacated. Brief for Appellant at 42.

      Based on our determination that the evidence was sufficient to sustain

Lawrence’s conviction for unlawful contact with a minor, we conclude that

Lawrence’s third issue lacks merit.       See 42 Pa.C.S.A. § 9795.1(a)(1)

(providing that a defendant convicted of unlawful contact with a minor must

register for a period of ten years); see also 42 Pa.C.S.A. § 9795.4



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(providing that “a court shall order an individual convicted of an offense

specified in section 9795.1 (relating to registration) to be assessed” to

determine “if the individual should be classified as a sexually violent

predator”).

      In his fourth issue, Lawrence contends that the trial court did not

instruct the jury that one of the elements of third-degree felony corruption

of minors was a “course of conduct” of indecent exposure.            Brief for

Appellant at 36.   Lawrence contends that the trial court’s use of a jury

instruction for third-degree felony corruption of minors that was “taken

almost verbatim from the Pennsylvania Suggested Standard Criminal Jury

Instructions is unavailing, as the words ‘course of conduct’ contained in the

Crimes Code definition were omitted from the instruction to the jury.” Id.

Lawrence further contends that, due to this omission, the trial court did not

instruct the jury that it was required to find that Lawrence had engaged in a

“course of conduct” of indecent exposure, or that it was required to find that

Lawrence had committed multiple acts of indecent exposure over time. Id.

at 37-38. On this basis, Lawrence argues that no jury verdict was returned

as to the “course of conduct” element of third-degree felony corruption of

minors. Id. at 36. Lawrence contends that this error may not be subjected

to a harmless error analysis.      Id. at 37.    Lawrence asserts that his

conviction of third-degree felony corruption of minors should be vacated,




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leaving only the conviction of first degree misdemeanor corruption of

minors. Id. at 39.

      Lawrence further claims that, despite E.S.’s testimony that seeing

Lawrence’s penis during their first sexual encounter “didn’t feel right,” and

that it was “sort of, like, scary to me,” there was no evidence that the

subsequent sexual encounters between E.S. and Lawrence were anything

but consensual. Id. at 40. Lawrence argues that the indecent exposure, if

it occurred at all, occurred during the first sexual encounter between himself

and E.S. in the spring of 2009.        Id. at 41.   Lawrence contends that,

because the spring 2009 incident occurred before the enactment and

effective date of the third-degree felony version of corruption of minors of

which he was convicted, his conviction should be vacated. Id.3

      Lawrence’s fourth issue challenges the grading of the offense of

corruption of minors rather than the offense itself. See Commonwealth v.

Kelly, 102 A.3d 1025, 1028 (Pa. Super. 2014) (en banc) (wherein this Court

ruled that the defendant’s claim that the evidence was insufficient to support

his conviction of third-degree felony corruption of minors, where the




3
  Lawrence also contends that, because the evidence was insufficient to
sustain his conviction of indecent exposure, the evidence was, necessarily,
insufficient to sustain his conviction of third-degree felony corruption of
minors. Brief for Appellant at 34-35. Based on our conclusion that the
evidence was sufficient to sustain Lawrence’s conviction for indecent
exposure, this claim lacks merit.



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Commonwealth had failed to prove a “course of conduct,” presented a

challenge to the grading of the offense).

      A claim that the trial court improperly graded an offense for sentencing

purposes implicates the legality of a sentence.       See Commonwealth v.

Graeff, 13 A.3d 516, 518 (Pa. Super 2011). When we address the legality

of a sentence, our standard of review is plenary and is limited to determining

whether the trial court erred as a matter of law. Id.4

      The offense of corruption of minors is defined as follows:

      (a)   Offense defined.

            (1)(i) Except as provided in subparagraph (ii), whoever,
            being of the age of 18 years and upwards, by any act
            corrupts or tends to corrupt the morals of any minor less
            than 18 years of age, or who aids, abets, entices or
            encourages any such minor in the commission of any
            crime, or who knowingly assists or encourages such minor
            in violating his or her parole or any order of court, commits
            a misdemeanor of the first degree.

            (ii) Whoever, being of the age of 18 years and upwards,
            by any course of conduct in violation of Chapter 31
            (relating to sexual offenses) corrupts or tends to corrupt
            the morals of any minor less than 18 years of age, or who
            aids, abets, entices or encourages any such minor in the
            commission of an offense under Chapter 31 commits a
            felony of the third degree.




4
  The Commonwealth argues that, because Lawrence did not raise any
objection to the trial court’s jury instruction on the felony corruption of
minors charge, it is waived on appeal. Although Lawrence did not object to
the instruction at trial, a grading issue raises a question as to the legality of
the sentence; thus, it is a non-waivable matter. See Commonwealth v.
Popow, 844 A.2d 13, 17 (Pa. Super. 2004).



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18 Pa.C.S.A. § 6301(a)(1)(i), (ii).5    The use of the phrase “course of

conduct” in subsection (a)(1)(ii) imposes a requirement of multiple acts over

time, in the same manner in which the term is used in the harassment,

stalking, and endangering the welfare of children statutes. See Kelly, 102

A.3d at 1031.

     Our review of the record reveals that, although the trial court did not

specifically instruct the jury to consider whether Lawrence engaged in a




5
  The corruption of minors statute was amended in 2010 to include
subsection (a)(1)(ii). Prior to the amendment, which became effective on
December 6, 2010, subsection (a)(1) only prohibited the offense now set
forth in subsection (a)(1)(i). For this reason, as discussed infra, the trial
court instructed the jury that the felony corruption of minors charge at
Count 1 pertained to the alleged conduct that took place after the statute
was amended (i.e., between December 7, 2010 and February 14, 2011),
while the misdemeanor corruption of minors charge at Count 2 pertained to
the alleged conduct that took place before the statute was amended (i.e.,
between the spring of 2009 and December 6, 2010). See N.T., 1/31/14, at
251. Notably, the jury found Lawrence guilty of indecently exposing himself
to E.S. during both time periods.



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“course of conduct,”6 the jury nevertheless convicted Lawrence of separate

sexual offenses against E.S., thereby determining that Lawrence had

perpetrated multiple instances of indecent exposure or improper sexual

contact with a minor over time.      Thus, the jury necessarily found that

Lawrence had, in fact, engaged in a “course of conduct.”

      Additionally, the record reflects that the trial court was aware of the

change in the corruption of minors statute, and that a “course of conduct”

element had been added to the felony offense.        Notably, the trial court

informed the jury that the dates supplied on the verdict slip for Counts 1 and

2 were relevant due to a change in the law, and that, in order to convict


6
   The trial court’s jury instruction regarding the third-degree felony
corruption of minors offense was as follows:

            As charged in the first count – and the verdict slip will
      indicate the dates that are relevant because of the change in the
      law, as well as the underlying conduct which pertains to that
      count. Under the first count, to find [Lawrence] guilty of the
      offense of corruption of a minor, as charged in Count 1 of the
      charging document, you must find that each of the following four
      elements has been proven beyond a reasonable doubt; first, that
      [Lawrence] was 18 years of age or older at the time of the
      incident giving rise to the charge; second, that [E.S.], the
      alleged victim, was under 18 years of age at that time; third,
      that [Lawrence] committed the offense of indecent exposure.
      That offense will be defined for you momentarily.

            To find [Lawrence] guilty of corruption of [a] minor, as
      charged in Count 1, you must be satisfied beyond a reasonable
      doubt that [he] committed the offense of indecent exposure.
      The fourth element of this offense, that the alleged conduct took
      place between December 7, 2010[,] and February 14, 2011.

N.T., 1/31/14, at 251-52.


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Lawrence of the felony offense at Count 1, they needed to find that the

conduct alleged took place between a range of dates (i.e., December 7,

2010 and February 14, 2011), and not merely on a single date, as one would

expect if the alleged conduct encompassed a solitary incident. Indeed, the

conduct in question was never presented as a single incident. Rather, the

Commonwealth presented ample and undisputed evidence that Lawrence

engaged in sexual relations with E.S. on numerous occasions between 2009

and 2011, when E.S. was sixteen and seventeen years of age. E.S. testified

that, starting in the spring of 2009, sexual contact with Lawrence occurred

“once a week on the average.” N.T.. (trial), 1/30/14, at 100. E.S. described

seeing Lawrence’s penis and engaging in oral and anal sex with him. Id. at

98-99.     E.S. further testified that his activity extended over the course of

two years. Id. at 103. Thus, we conclude that the trial court did not err by

grading the corruption of minors offense at Count 1 as a felony of the third

degree.7

     In his fifth issue, Lawrence contends that, prior to closing arguments,

the Commonwealth “moved [in limine] to preclude any argument from

defense counsel that there was ‘no crime because [E.S.] consented to the

conduct, the sexual contact, including the indecent exposure.’”       Brief for

Appellant at 43 (citing N.T., 1/31/14, at 216-17). Lawrence asserts that, in


7
  Compare Popow, supra (wherein the trial court improperly graded the
offense of corruption of minors as a felony based on evidence of a singular
event which occurred over a matter of minutes).


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response, defense counsel argued that he “should be able to tell the jury

that a sixteen[-]year[-]old can consent to sexual activity, because the jury

should be aware that E.S. was old enough to consent to sexual activity.”

Brief for Appellant at 43. Lawrence challenges the trial court’s subsequent

ruling that anyone under the age of 18, for purposes of the corruption of

minors offenses and the unlawful contact offense, is not able to consent. Id.

Lawrence argues that, despite the trial court’s ruling that defense counsel

could refer to E.S.’s “voluntariness or willingness to engage in conduct,” the

trial court nevertheless erred by prohibiting defense counsel from using the

terms “consent” or “consensual.” Id. at 44 (citing N.T., 1/31/14, at 218).

Lawrence contends that consent is a defense to the charge of indecent

exposure, and asserts that the trial court erred by prohibiting defense

counsel from arguing to the jury that E.S. had consented to the sexual

contact with Lawrence. Brief for Appellant at 44-45. Lawrence asserts that

the trial court’s prohibition essentially left him without a defense, in violation

of his right to counsel under the Sixth and Fourteenth Amendments of the

United States Constitution and Article I, Section 9 of the Constitution of the

Commonwealth of Pennsylvania. Id. at 46. Lawrence claims that, because

every charge against him, except for the misdemeanor corruption of minors

charge, was dependent upon his conviction of indecent exposure, the trial

court’s prohibition was significant and cannot be considered as a harmless

error. Id.



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      In evaluating the denial or grant of a motion in limine, our standard of

review is the same as that utilized to analyze an evidentiary challenge. See

Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa. Super. 2014) (en banc).

Pursuant to that standard,

      [t]he admission of evidence is committed to the sound discretion
      of the trial court, and a trial court’s ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support to be clearly
      erroneous.

Id. (citations omitted).

      Here, our review discloses that the Commonwealth moved in limine to

prohibit defense counsel from arguing to the jury in his closing argument

that no crime had been committed by Lawrence because E.S. had consented

to sexual contact with Lawrence. See N.T., 1/31/14, at 217. In response,

defense counsel claimed that, although “[i]t was never [his] purpose to

argue that[,] because [E.S.] voluntarily went into this relationship[,

Lawrence] should be found not guilty[,] [his] purpose in raising the consent

[issue] was to let the jury know that a 16[-]year[-]old can consent.” Id.;

see also id. (wherein defense counsel conceded that consent “is not an

element of any of these charges” and claimed, contrary to his argument on

appeal, that he “would never raise the argument that because [E.S.]

consented[, Lawrence] should be found not guilty.”).      Thereafter, the trial

court ruled that “consent” is “a term of art,” and that “anyone under the age

of 18 being defined as a minor for the purposes of both the corruption of


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minors charges, as well as the unlawful contact [charge], is not able to

consent[,]” and that, “[a]s a matter of law, a minor under the age of 18

cannot consent to unlawful contact or to being corrupted.” N.T., 1/31/14, at

218. We discern no manifest unreasonableness, partiality, prejudice, bias,

or ill-will, or lack of support for the trial court’s ruling.    Accordingly, we

conclude that Lawrence’s fifth issue lacks merit.

      In his sixth issue, Lawrence contends that the trial court erred by

failing to grant defense counsel’s request for a mistrial at the conclusion of

the prosecutor’s closing arguments, based on the prosecutor’s comments

that E.S. could not consent to sexual activity with Lawrence.            Brief for

Appellant at 50.     Lawrence points to the prosecutor’s comments in his

closing statement, wherein he instructed the jury to ignore defense counsel’s

use of the words “voluntary,” “voluntarily,” “willingly,” and “of his free will,”

because a “minor cannot consent to sexual contact with an adult.” Id. at 46

(citing N.T., 1/31/14, at 240).       Lawrence argues that the trial court

improperly ruled that the prosecutor had not misstated the law, and thereby

permitted the prosecutor’s erroneous instruction to the jury to remain

uncorrected. Brief for Appellant at 46. Lawrence asserts that, although the

trial court’s instruction to the jury regarding indecent exposure was correct,

the jury was likely confused by the prosecutor’s misstatements, and the jury

instruction   provided   was    inadequate    to    correct     and   clarify   the

misstatements.     Id. at 52.   Lawrence claims that the instruction failed to



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explain that “Lawrence had to believe his conduct would offend E.S., not that

he should have known that his conduct would offend the community.” Id.

Lawrence argues that, based on the instruction provided, the jury could have

believed that Lawrence’s exposure of his genitals to E.S. automatically

constituted indecent exposure because E.S. could not consent to the

exposure, or that Lawrence was guilty if the community would be offended

by Lawrence’s exposure of his genitals.        Id.   Lawrence contends that,

because his “conviction for indecent exposure was the linchpin upon which

all other convictions rested, other than first-degree misdemeanor corruption

of minors, an error in the jury’s understanding of the elements of indecent

exposure and any defenses to the charge, effected [sic] the entire

proceeding with unfair bias.” Id. at 52-53.

      Our standard of review in assessing the denial of a mistrial is as

follows:

            The trial court is in the best position to assess the effect of
      an allegedly prejudicial statement on the jury, and as such, the
      grant or denial of a mistrial will not be overturned absent an
      abuse of discretion. A mistrial may be granted only where 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.
      Likewise, a mistrial is not necessary where cautionary
      instructions are adequate to overcome any possible prejudice.

Commonwealth v. Johnson, 107 A.3d 52, 53 (Pa. 2014) (citation

omitted).




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      Here, in denying Lawrence’s request for a mistrial, the trial court ruled

that “consent forms no part of the elements of the offense[s] and is not a

valid defense to any of the[ charges against Lawrence].        And, therefore,

precluding the defense from arguing anything with regard to consent [by

E.S.] was completely proper.” N.T., 1/31/14, at 240. The trial court further

ruled that “[t]he Commonwealth has not misstated the law.              And just

because I don’t permit one side to misstate the law doesn’t mean the other

side isn’t allowed to properly state the law.”       Id. (emphasis supplied).

Moreover, the trial court determined that Lawrence would not be deprived of

a fair trial because defense counsel had been able to argue to the jury E.S.’s

“voluntariness and willingness[,] which goes directly to an element of the

chief underlying offense here,” i.e., whether E.S. was “offended alarmed or

affronted.”   Id.; see also id. at 241 (wherein the trial court noted that

“[j]ust because [E.S.] can’t consent doesn’t mean he wasn’t okay with [the

sexual contact with Lawrence] and, therefore, not affronted, etc.”).        We

discern no abuse of discretion by the trial court, and conclude that

Lawrence’s sixth issue lacks merit.

      In his final issue, Lawrence contends that the trial court erred by

refusing to consider “Lawrence’s letters of apology to E.S. and his parents,

taking responsibility for his actions.”   Brief for Appellant at 57.   Lawrence

asserts that the trial court’s finding that Lawrence was “mostly sorry that it

had to turn out this way only because it’s wrong criminally” is not consistent



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with the evidence presented at sentencing. Id. Lawrence claims that the

trial court erred by “failing to consider the fact that [] Lawrence was able to

rehabilitate himself after his release from prison in 1992 through regular

church attendance, prison ministry and careful attention to his spiritual

state, and that during this time there was no violation of his parole, and he

committed no offenses, for over fifteen years.” Id.8 Lawrence argues that

the trial court failed to acknowledge that his work with Pastor Melvin Esh

(“Pastor Esh”) for nearly two years showed that Lawrence was willing to and

capable of being rehabilitated through recommitment to his religious beliefs

and involvement with the church.       Id. at 58. Lawrence contends that his

work with Pastor Esh was objective conduct showing real remorse and a

desire to conform to the law in the future. Id. at 58-59. Lawrence points

out that, by engaging with the church, he was able to conform to the law for

nearly two years prior to his trial. Id. at 59. Lawrence asserts that the trial

court failed to state an adequate basis for imposing sentences which

deviated far beyond the top of the aggravated range of the sentencing

guidelines, nor did it state an adequate basis for statutory maximum

sentences.      Id.   Lawrence also claims that the trial court’s statutory

maximum sentences, imposed consecutively, were unreasonable, manifestly

excessive and constitute an abuse of discretion. Id.




8
    Lawrence has several prior convictions for sexual offenses against minors.


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     Lawrence challenges the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).     Prior to reaching the merits of a discretionary

sentencing issue,

     [this Court conducts] a four part analysis to determine: (1)
     whether appellant has filed a timely notice of appeal, see
     Pa.R.A.P. 902 and 903; (2) whether the issue was properly
     preserved at sentencing or in a motion to reconsider and modify
     sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
     has a fatal defect, [see] 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, [see] 42
     Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

     When an appellant challenges the discretionary aspects of his

sentence, we must consider his brief on this issue as a petition for

permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.

Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18

(Pa. 1987); 42 Pa.C.S.A. § 9781(b).

     In the instant case, Lawrence filed a timely Notice of Appeal,

preserved his claims in a timely post-sentence Motion, and included in his

appellate brief a separate Rule 2119(f) statement. A substantial question is

raised where an appellant alleges the sentencing court erred by imposing an

aggravated    range     sentence     without   consideration   of   mitigating

circumstances.      Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.



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Super. 2012).    Additionally, a claim that the sentencing court imposed a

sentence   outside    the   standard   sentencing   guidelines   without   stating

adequate reasons on the record presents a substantial question.              See

Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014).                 As

such, he is in technical compliance with the requirements to challenge the

discretionary aspects of a sentence. Commonwealth v. Rhoades, 8 A.3d

912, 916 (Pa. Super. 2010). Thus, we will address his claim.

              Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)

(citation omitted).

      The Sentencing Code sets forth the considerations a sentencing court

must take into account when formulating a sentence, providing that “the

court shall follow the general principle that the sentence imposed should call

for confinement 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.A. § 9721(b). Additionally, in every case where a sentencing court

imposes a sentence outside of the sentencing guidelines, the court must




                                  - 19 -
J-S24015-16


provide, in open court, a contemporaneous statement of reasons in support

of its sentence. Id. When doing so,

      a [sentencing] judge ... [must] demonstrate on the record, as a
      proper starting point, its awareness of the sentencing guidelines.
      Having done so, the sentencing court may deviate from the
      guidelines, if necessary, to fashion a sentence which takes into
      account the protection of the public, the rehabilitative needs of
      the defendant, and the gravity of the particular offense as it
      relates to the impact on the life of the victim and the
      community, so long as it also states of record the factual basis
      and specific reasons which compelled it to deviate from the
      guideline range.

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation

and brackets omitted). An appellate court must vacate and remand a case

where it finds that “the sentencing court sentenced outside the sentencing

guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3).

      The trial court addressed Lawrence’s final issue and determined that it

lacks merit. See Trial Court Opinion, 4/20/15, at 4-10. We agree with the

sound reasoning of the trial court and discern no manifest abuse of

discretion. Accordingly, we affirm on this basis as to this issue. See id.

      Because we find no merit to any of Lawrence’s issues, we affirm his

judgment of sentence.

      Judgment of sentence affirmed.




                                 - 20 -
J-S24015-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/22/2016




                          - 21 -
                                                                                             Circulated 05/03/2016 03:54 PM




IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                           CRIMINAL

                                                                                                   r-      ,-.._:,


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                    vs.                                                   No.    3170-2012         --1
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RICHARD EUGENE LAWRENCE                                                                            0
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                                                         OPINION                                   iJ      co
                                                                                                   l>
By: MILLER, J.
November 5, 2014

           Before the court are the Post-Sentence and Supplemental Post-Sentence Motions filed by

Defendant Richard Lawrence.                For the reasons that follow, the Motions are granted in part and

denied in part,

                                                     BACKGROUND

           Defendant was charged with, and following a jury trial, convicted of, two counts of

                                                                                                                      1
corruption of minors, one a felony of the third degree (Count 1 of the Criminal Information),                             and

the other a misdemeanor              of the first degree (Count 2 of the Criminal Informationj;'                   indecent

exposure (Count 3 of the Criminal Information);'                  and unlawful contact with a minor (Count 4 of

the Criminal Information).4 The charges arose from accusations of sexual contact with E.S., a 16-



 1
     18 Pa. C.S. § 6301(a)(l)(ii).

     18 Pa. C.S. § 6301(a)(l)(i).

     18 Pa. C.S. § 3127(a), a misdemeanor of the second degree.

4
     18 Pa. C.S. § 63 I 8(a)( I), a felony of the third degree.




                                                                                                                                       Un
                                                                                                         No. 3170-2012


year-old male,5 beginning in May 2009, and continuing through at least February 15, 2011, when

E.S. turned 18 years of age. Count 1, the felony corruption of minors charge, was based upon

Defendant committing the crime of indecent exposure as to E.S. between December 7, 2010, and

February 14, 2011. Count 2, the misdemeanor corruption of minors charge, was based upon

Defendant having sexual contact with E.S. between May 1, 2009, and December 6, 2010.

           Following Defendant's conviction on January 31, 2014, the court ordered the required

assessment by the Sexual Offenders Assessment Board pursuant to section 9799.24 of the Judicial

Code6 (the convictions on Counts 1 and 4 being sexually violent offenses, see 42 Pa. C.S. §§

9799.12 and 9799.14), as well as a presentence investigation. A hearing pursuant to 42 Pa. C.S. §

9799.24(e) (SVP Hearing) was conducted on June 30, 2014, following which the court determined

that Defendant met the statutory criteria to be classified as a sexually violent predator.

Immediately following the SVP Hearing, Defendant stood for sentencing. As to Counts 1 and 4,

the Commonwealth invoked the provisions of 42 Pa. C.S. § 9718.2(a)(2),7 and provided to the

 court the records of six prior convictions of Defendant from the Circuit Court of Fairfax County,

 Commonwealth of Virginia, which it alleged were for offenses equivalent to those set forth in 42




 5
     E.S.'s date ofbirth was February 15, 1993; Defendant's date ofbirth was June 17, 1955.

 6
     42 Pa. C.S. § 101 et seq., 42 Pa. C.S.A. § 9799.24.

 7
     42 Pa. C.S.A. § 9718.2. Sentences for sexual offenders
            (a) Mandatory sentence.-


            (2) Where the person had at the time of the commission of the current offense previously been
            convicted of two or more offenses arising from separate criminal transactions set forth in section
            9799.14 or equivalent crimes under the laws of this Commonwealth           in effect at the time of the
            commission of the offense or equivalent crimes in another jurisdiction, the person shall be sentenced
            to a term of life imprisonment,   notwithstanding   any other provision of this title or other statute to
            the contrary. Proof that the offender received notice of or otherwise knew or should have known of
            the penalties under this paragraph shall n.2tbe required.



                                                                2
                                                                                                   No. 3170-2012


Pa. C.S. § 9799.14.       The court agreed that the offenses and conduct underlying the Virginia

convictions were sufficiently equivalent tsJh~ offenses set forth in 42 Pa. C.S. § 9799.14 to require

imposition of mandatory sentences of life imprisonment on Counts 1 and 4.

        The undersigned sentenced Defendant as follows:

        Count 1, Corruption of Minors (F3)                        Life imprisonment
        Count 2, Corruption of Minors (Ml)                        18 months to 5 years' incarceration
                                                                              Consecutive to count 4
        Count 3, Indecent Exposure (M2) ,,,,                      1 .:::. 2 years' incarceration
                                                                              Concurrent with count 2
        Count 4, Unlawful Contact (F3)                            Life imprisonment
                                                                              Consecutive to count 1

Defendant's    aggregate sentence was two consecutive life sentences, followed by eighteen (18)

months' to five (5) years' incarceration.
                                                 ,·>".'""f/




        On July 10, 2014, Defendant filed a Post-Sentence Motion, in which he requested

permission to file a Supplemental Post-Sentence Motion following receipt of the transcript of the

 June 30, 2014, Sentencing Hearing. The request was granted and Defendant's Supplemental Post-

 Sentence Motion was filed on July 25, 20}j.;.~ The Commonwealth filed its Response on October

 20, 2014.

                                                    DISCUSSION

         Defendant contends that the sentences of life imprisonment were illegal and advances

 several different theories in support of his             contention, one of which is that Defendant's previous
                                           .,,,-...-;~;,;_c,:··· .



 convictions in the Commonwealth of Virginia were not equivalent to any Pennsylvania offenses



 8
   Defendant's Supplemental Post-Sentence Motion included certain exhibits to which the Commonwealth objected -
 specifically, photocopies of Virginia statutes defining certain crimes, a criminal information and excerpt from a
 separate case in the Lancaster County Court of Common Pleas, and briefs submitted by both the Commonwealth and
 a defendant from yet another case in the Lancaster County Court of Common Pleas. Following an in-chambers
 conference with counsel, and in order to allow the matter to move forward and be decided within the 120 day deadline,
 see Pa. R. Crim. P. 720(8)(3), Defendant agreed to withdraw the exhibits and all references to them, and the court
 entered an Order to that effect on September 5, 2014. By the same Order striking the exhibits, the undersigned directed
 the Commonwealth to respond to Defendant's Supplemental Motion within 45 days.

                                                              3
                                                                                                No.3170-2012


subject to the mandatory sentencing provisions contaLned in 42 Pa. C.S. § 9795.1, as effective

between May 1, 2009, and February 14, 2011, or contained in 42 Pa. C.S. § 9799.14, as effective

December 20, 2012.             The Commonwealth      concedes that the offenses underlying the Virginia

convictions are not equivalent to those which would trigger imposition of the mandatory sentence

of life imprisonment under Pennsylvania.law. Therefore, Defendant's                  sentence will be vacated

and the court need not address the other bases for the claimed illegality of his sentence.

           In addition to challenging his sentence, Defendant contends that the evidence presented at

trial was insufficient to sustain his convictions on Counts 1, 3 and 4 of the Criminal Information.9

Defendant argues that the evidence presented at trial was insufficient to sustain his conviction for

indecent exposure (Count 3), therefore it follows that the evidence was insufficient to sustain his

conviction for unlawful contact with a minor (Count 4), and therefore it further follows that the

evidence was insufficient to sustain his conviction for the third-degree-felony-graded                offense of

 corruption of minors (Count I). If the convictions fo~ the third-degree-felony-graded                 offense of

 corruption of minors and unlawful contact with a minor (Counts 1 and 4, respectively) are not

 valid, there was no legal basis for his assessment under 42 Pa. C.S. § 9799.24, or his classification

 as a sexually violent predator.

            Because the domino effect of Defendant's claims are predicated upon his conviction of

 indecent exposure (Count 3), the court will address that charge first. The Crimes Code" defines

 the offense of indecent exposure as follows:

             18 Pa. C.S. § 3127. Indecent exposure

             (a) Offense defined.--A person C5?JJ.1mits indecent exposure if that person exposes


 9
    Respectively, the third-degree-felony-graded   offense of corruption of minors, indecent exposure, and unlawful
 contact with a minor.
  10
       18 Pa. C.S. § IO I et seq.


                                                           4
                                                                                                                   No. 3170-2012
                                               • d-.l:..'t....._
                                                                 ....

          his or her genitals in any public place or in any place where there are present other
          persons under circumstances in which he or she knows or should know that this
          conduct is likely to offend, affront or alarm.

The court's instructions to the jury on this offense were consistent with the Crimes Code definition

and were taken almost verbatim from the .. Pennsylvania                                      Suggested Standard Jury Instructions
                                                ,;;(if.:~~· .. ·    ' .. '       ".\".,




                                 11
(SS.Tl) for criminal charges:

                   The defendant has been charged with indecent exposure. To find the
          defendant guilty of this offense[,] you must find that each of the following elements
          has been proven beyond a reasonable doubt: First, that the defendant exposed his
          genitals; second, that the defendant did so in a place where another person or other
          persons were present, specifically alleged here at 644A Cambridge Road, Salisbury
          Township, Lancaster County; a11d third, that the defendant did so under
          circumstances in which he knew or should have known that his conduct was likely
          to offend, affront, or alarm. These elements make out the offense of indecent
          exposure. (N.T. Jury Trial, Volume II, January 31, 2014, p. 253:4-15.)

In meeting its burden of proof, it is sufficient for the Commonwealth to show that a defendant

knew or should have known that his conduct is likely to cause affront or alarm. Commonwealth
                                                  . ..... ::~~:,~~·

 v. Tiffany, 926 A.2d 503, 511 (Pa. Super. 2007) (citing Commonwealth v. King, 434 A.2d 1294,

 1299 (Pa. Super. 1981)).

           In order to overturn a verdict for insufficiency of evidence, the trial court must determine

 "the evidence supporting the verdict to be so weak and inconclusive that a jury of reasonable
                                                    .;;,'-':::+::::/~·              -~ •..


 persons would not have been satisfied as to the [defendant]'s guilt." Commonwealth v. Bigelow,

 611 A.2d 301, 303 (Pa. Super. 1992) (citing Commonwealth v. Blevins, 309 A.2d 421, 425 (Pa.

 1973). If the evidence is insufficient as a matter of law, the trial judge must sustain the post-trial

 motion and dismiss the charges.          Common':!ealth v. Poindexter, 399 A.2d 390, 391 (Pa. 1979).

 Review of a motion alleging insufficient evidence is limited to determining whether there was an

 absence of the quantum evidence necessary to establish the elements of the charged offense.


  11
       Pennsylvania Suggested Standard Criminal Jury Instructions, Second Edition.                       SSJJ (Crim.) 15.3127 (indecent
 exposure).

                                                                             5
                                                                                          No. 3170-2012


Commonwealth v. Caterino, 678 A.2d 389, 391 (Pa. Super. 1996); Bigelow, supra. The trial court

must consider all of the evidence on the record, even if the evidence was not presented by the

Commonwealth         or was erroneously admitted
                                          .
                                                 and must
                                                      ..,.,._
                                                              view that evidence in the light most

favorable to the Commonwealth.             Commonwealth v. Tabb, 207 A.2d 884, 886 (Pa. 1965);

Commonwealth v. Downing, 739 A.2d 169, 173 (Pa. Super. 1999).

           The law is well-settled that the test for reviewing the sufficiency of evidence is whether,

viewing the evidence in the light mostfavorable
                                      ...
                                                to .... the verdict winner, the fact-finder could
                                                .               ·.:




reasonably have determined all the elements of the crime to have been established beyond a

reasonable doubt. Commonwealth v. Hopkins, 747 A2d. 910, 914 (Pa. Super. 2000). The "well-

settled"     principles   applicable   to a sufficiency       claim were recently   acknowledged   by the

Pennsylvania Superior Court in Commonwealth
                                     ...
                                            v. Kelly, 2014 Pa. Super. 243, 2014 WL 5408185:
                                                                 ·,·'.·.




           A claim challenging the sufficiency of the evidence is a question of law. Evidence
           will be deemed sufficient to support the verdict when it establishes each material
           element of the crime charged and the commission thereof by the accused, beyond
           a reasonable doubt. Where the evidence offered to support the verdict is in
           contradiction to the physical facts, in contravention to human experience and the
           laws of nature, then the evidence is insufficient as a matter oflaw. When reviewing
           a sufficiency claim(,] the court is,,_r~quired to view the evidence in the light most
           favorable to the verdict winner giving the prosecution the benefit of all reasonable
           inferences to be drawn from the evidence.

 Kelly, supra., 2014 WL 5408185 *2-*3, citing Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d

 745, 751 (Pa.2000) (internal citations omitted).

            In his Supplemental Post-SentenceMotion,
                                            ~.,,-~.
                                                     Defendant
                                                    -. ..,.    alleges the following in support of

 his challenge to his conviction for indecent exposure:

            The evidence showed that [Defendant] exposed his penis to E.S. in the privacy of
            his bedroom, solely in the context of consensual sexual activity. E.S. was sixteen
            years old when his sexual contact with [Defendant] began, he consented to this
            sexual activity, and was old enough to consent to this sexual activity under the law.
            Thus, [Defendant] did not expose his penis under circumstances in which he knew
            or should have known that his c';nduct was "likely to offend, affront or alarm.


                                                          6
                                                                                                   No. 3170-2012


        [Defendant] exposed his penis to E.S. while teaching E.S. to masturbate, and while
        engaging in consensual oral and anal intercourse with E.S. E.S. 's participation in
        the aforementioned sexual activitieswas consensual.

Defendant's Supplemental Post-Sentence Motion,~ 8. The Commonwealth counters Defendant's

assertions:

        Defendant exposed his genitals to the victim, E.S. E.S. testified that seeing
        Defendant's penis was "scary" to him, and repeatedly stated "it didn't feel right. It
        was - it didn't seem right. It didn't-feel right." [(N.T. Jury Trial, Volume I, January
        30, 2014, pp. 99:24-25 - 100: 1.)] It is clear that E.S. was offended, affronted and
        alarmed at the sight of Defendant's genitals. Defendant knew E.S. grew up on a
        farm, had never seen T.V. or movies, and knew nothing about sex. [[(N.T. Jury
        Trial, Volume I, January 30, 2014, pp. 94:7-9, 95:24-25 -96: 1-5, 96:21-25 - 97: 1.)]
        Defendant should have known his conduct was likely to offend, affront or alarm
        E.S., which it clearly did based on E.S. 's testimony.

Commonwealth's         response to Defendant's-Supplemental           Post-Sentence Motion,~ 5.

         Defendant's     characterization     of E.S. 's participation in the sexual activities initiated by

Defendant as "consensual" encroaches on the jury's prerogative to determine, based on all of the

evidence presented. the nature of the relationship between Defendant and E.S.12                     In considering a

 sufficiency claim, the trial court must be-mindful thatthe jury, as fact-finder, is responsible for

 resolving questions of credibility.        Commonwealth v. Blackham, 909 A.2d 315, 319 (Pa. Super.

 2006). As such, they are free to believe all, some, or none of the evidence presented, id.; see also

 Champney, 832 A.2d at 408; and the trial court may not to change the verdict because of a

 redetermination of credibility or reexamination of theevidence,                 See, e.g., Bigelow, 611 A.2d at

 303.

          In the instant case, the jury was able to view the demeanor and presentation of E.S., as well

 as his manner of testifying, in addition to considering the content of the testimony itself. Based




 12
     As consent is not an element of the crime of indecent exposure, the court need not address whether a minor can
 legally consent to conduct or activities of a sexual nature which, whether voluntary or not, may still form the basis of
 criminal charges against the adult actor.

                                                            7
                                            ,;<\.




                                                                                     No.3170-2012


on the verdict, the jury was apparently satisfied that E.S. was the somewhat naive, backward,

immature, young man characterized by the Commonwealth, that Defendant's actions did affront,

offend and alarm him, and that Defendant spent enough time with E.S. to know or have reason to

know that the sexual activities Defendant initiated, including the displays of Defendant's genitalia,

were disturbing and discomfiting to E.S. Far from being "so weak and inconclusive that a jury of

reasonable persons would not have been satisfied as to the [defendant]'s guilt," see Bigelow, supra.,

at 303, the evidence here was more than ample to support the jury's verdict, and the verdict cannot

be characterized as a "contradiction to the physical facts, in contravention to human experience

and the laws of nature," see Kelly, supra., *2.

        Having concluded that Defendant's challenge to the sufficiency of the evidence to support

his conviction of indecent exposure lacks merit, it follows that the evidence was sufficient to

support his conviction on Count 4, unlawful contact with a minor. The Crimes Code defines that

offense as follows:

        18 Pa. C.S. § 6318. Unlawful contact with minor

        (a) Offense defined.--A person commits an offense if he is intentionally in contact
        with a minor, or a law enforcement officer acting in the performance of his duties
        who has assumed the identity of a minor, for the purpose of engaging in an activity
        prohibited under any of the following, and either the person initiating the contact
        or the person being contacted is within this Commonwealth:


                 (1) Any of the offenses enumerated i1: Chapter 31 [ of the Crimes Code]
         (relating to sexual offenses).

 It is undisputed that indecent exposure is an offense "enumerated in Chapter 31" of the Crimes

 Code, and there is no other challenge to the sufficiency of the evidence with respect to the other

 elements of this offense.




                                                    8
                                                                                               No.3170-2012


         With respect to Defendant's claim as to Count 1, the third-degree-felony-graded            offense of

corruption of minors, the court observes, as did the Pennsylvania Superior Court in Kelly, supra.,

that while Defendant's       claim is couched as one of sufficiency of the evidence, "his sufficiency

claim actually addresses the grading of the offense of corruption of minors rather than the offense

itself .... " Kelly, 2014 WL 5408185 *2.

          The Crimes Code defines the third-degree-felony-graded              offense as follows:

          18 Pa. C.S. §6301. Corruption of minors

          (a) Offense defined>-


          (1) ...

          (ii) Whoever, being of the age ofJ8,,years and,ypwards, by any course of conduct
          in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt
          the morals of any minor less than 18 years of age, or who aids, abets, entices or
          encourages any such minor in the commission of an offense under Chapter 31
          commits a felony of the third degree.

 As with the offense of unlawful contact with a minor, the predicate offense of indecent exposure
                                                     ,-,.,      .....
 is the relevant "violation of Chapter 31" of the Crimes . Code and there is no other challenge to the

 sufficiency of the evidence with respect to the other elements of this offense. However, because

 the Superior Court has so recently had occasion to review the third-degree-felony-graded

 corruption of minors offense, the court believes it is appropriate to address this offense and
                                                     __   ..,,~,..·~·-.
 Defendant's conviction vis-a-vis the holding in Kelly, supra.

           The court's instructions to the jury on this offense were consistent with the Crimes Code

 definition and taken almost verbatim from the Pennsylvania Suggested Standard Criminal Jury

                    13
 Instructions:


 13
      SSJI (Crim.) 16.630IA (corruption of minor).


                                                                          9
                                                                                            No. 3170-2012


               As charged in the first co~i~t ... to find the defendant guilty of the offense of
       corruption of a minor, as charged in Count 1 of the charging document, you must find that
       each of the following four elements has been proven beyond a reasonable doubt: [F]irst,
       that the defendant was 18 years of age or older at the time of the incident giving rise to the
       charge; second, that [E.S.], the alleged victim, was under 18 years of age at that time; third,
       that the defendant: committed the offense of indecent exposure ....

                To find the defendant guil!X.Q.f corruption of minor as charged in Count 1, you must
       be satisfied beyond a reasonable doubt that the defendant committed the offense of indecent
       exposure. The fourth element of this offense, that the conduct alleged took place between
       December 7, 2010[,] and February 14, 2011. (N.T. Jury Trial, Volume II, January 31, 2014,
       pp. 25 l: 19-25 and 252: 1-12.)

Moreover, the instruction made clear to the jury the need for finding a "course of conduct" (as that

element of the offense has now been explained
                                       -~-"'·
                                              by Kelly) by requiring the jury to find that conduct

took place between the dates specified.     This is consistent with the trial testimony, wherein E.S.

testified to ongoing sexual contact, including conduct constituting                 the offense of indecent

exposure, which took place on repeated occasions over the time period indicated.                The court's

inclusion of these dates on the verdict slip Jo help differentiate the corruption of minors offenses
                                          ~."2°"'~ ·                   .
                                                                           rx.,


charged in Counts 1 and 2 further reinforced the necessity of finding a "course of conduct" as an

element of the offense.

        Satisfied as the court is that the evidence was sufficient to convict Defendant of indecent

exposure (Count 3), it therefore follows th~phe
                                            ,
                                                evidence was sufficient to sustain his conviction
                                                .,;;,..;.:~::·~   "·




for unlawful contact with a minor (Count 4), and it therefore further follows that the evidence was

sufficient to sustain his conviction for the third-degree-felony-graded             offense of corruption of

 minors (Count 1 ).   The convictions for the third-degree-felony-graded             offense of corruption of

 minors and unlawful contact with a minor (Counts 1 and 4, respectively) being valid, the court was
                                            _j,"_~-:s~' .....
                                            .                                ..._
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                           CRIMINAL


COMMONWEALTH OF PENNSYLVANIA

                      vs.                                                                    No.         3170-2012

RICHARD EUGENE LAWRENCE


                                                                     ORDER

           AND NOW, this                5th   day of November, 2014, upon consideration of Post-Sentence and

Supplemental Post-Sentence Motions, th';·Motions are GRANED IN PART and DENIED IN

PART, consistent with the foregoing Opinion.

           The sentences imposed on Defendant on June 30, 2014, are hereby VACATED. The court

wi 11 enter a separate Order for the purpose of scheduling a resentencing hearing.


ATTEST:                                                                            BY THE COURT:



                                                                                   ~~M~/
                                                                                   JUDGE




 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *'*\'* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Copies to:              James M. Reeder, Esquire - Office of the District Attorney
                        Mary Jean Glick, Esquire - Office of the Public Defender
                                                                                                        No. 3170-2012


correct   111   ordering Defendant's      assessment under 42 Pa. C.S. § 9799.24, and, following the

hearing, classifying him as a sexually violent predator.14

          Accordingly, the court enters the following:




  14
     Beyond challenging the predicate convictions on Counts I and 4, Defendant's Post-Sentence and Supplemental
  Post-Sentence Motions do not specifically challenge the SVP Hearing or the court's findings and conclusions in
  support of its determination that Defendant satisfies the statutory criteria to be classified as a sexually violent predator
  under 42 Pa. C.S. § 9799.24.


                                                               11
                                                                     '-·~-

                                                                                               Circulated 05/03/2016 03:54 PM




IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                           CRIMINAL


COMMONWEAL TH OF PENNSYLVANIA                                                                            i-          r-....:,
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                  vs.                                                        No.       3170-2012         :;:::·.     -~;
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RICHARD EUGENE LAWRENCE                                                                                  ::::0       c:;                 .
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                                                        OPINION                                          -1                       . ..
                                                                                                                                  -·-~;
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                                                                                                                      (. ..)
                                                                                                         -0
By: MILLER, J.                                                                                           !:'"-'"
April 20, 2015

           Before the court is the Post-Sentence                  Motion filed by Defendant Richard Lawrence

following his re-sentencing !)earing on January 22, 2015. For the reasons that follow, the Motion

is denied.

                                                  BACKGROUND
                                                                             ..
           Defendant was charged with, and following a jury trial, convicted of, two counts of

corruption of minors, indecent exposure, and unlawful contact with a minor.'                       The charges arose

from accusations of sexual contact with E.S.,                    a 16-year-old male,2 beginning in May 2009, and

continuing     through at least February 15, 2011, when E.S.                      turned 18 years of age.          Following
                                                    .-=;:·····

Defendant's      conviction on January 31, 2014, the court ordered the required assessment by the

Sexual Offenders Assessment Board pursuant to section 9799.24 of the Judicial Code,' as the


1
   18 Pa. C.S ~ 630l(a)(l)(ii).      a felony of the third degree (Count I): 18 Pa. C.S. ~ 630l(a)(l)(i), a misdemeanor of
the first degree (Count 2); 18 Pa. C.S. § 3 l 27(a), a misdemeanor of the second degree (Count 3 ); and 18 Pa. C.S. ~
63 I 8(a)( l ), a felony of the third degree (Count 4).

" E.S.'s   date of birth was February 15, 1993; Defendant's date of birth was June 17, 1955.

3
    42 Pa. C.S. § IO I et seq., 42 Pa. C.S.A. § 9799.24.
                                                                                                              No.3170-2012


convictions   on Counts 1 and 4 (corruption                         of minors and unlawful contact with a mmor,
                                                                           '$.

respectively, both felonies of the third degree) were sexually violent offenses, see 42 Pa. C.S. §§

9799 .12 and 9799 .14. The court also ordered a pre sentence investigation.

        A hearing pursuant to 42 Pa. C.S. § 9799.24(e) (SVP Hearing) was conducted on June 30,

2014, following which the court determined that Defendant met the statutory criteria to be
                                                ...~ .   ,/~~-·-·




classified as a sexually violent predator. Immediately f~llowing the SVP Hearing, Defendant stood

for sentencing.   As to Counts 1 and 4, the Commonwealth invoked the provisions of 42 Pa. C.S. §

97 l 8.2(a)(2), calling for mandatory life sentences for certain sexual offenders, and provided to the

court the records of six prior convictions of Defendant from the Commonwealth of Virginia, which
                                                                             ......,
it alleged were for offenses equivalent to those set forth in 42 Pa. C.S. § 9799.14. The court agreed

and sentenced Defendant to consecutive terms of Life imprisonment on Counts l and 4, 18 months

 to five years' incarceration on Count 2 and one to two years' incarceration on Count 3.                                  The

 sentence on Count 2 was made consecutive to the life sentence on Count 4; the sentence on Count

 3 was made concurrent with the sentence on Count 2:"· Defendant's aggregate sentence was two

 consecutive life sentences, followed by eighteen ( 18) months' to five (5) years' incarceration.

         Defendant      timely    filed   Post-Sentence                   and          Supplemental   Post-Sentence   Motions,

 contending. inter alia, that the sentences of life imprisonment were illegal." The Commonwealth
                                                  -~~---..-~
 conceded that the offenses underlying the Virginia convictions were not equivalent to those which

 would trigger imposition of the mandatory sentence of life imprisonment under Pennsylvania law.

 By Order of November 5, 2014, this court vacated the sentences imposed on June 30, 2014.



 4
     In addition to challenging his life sentenceS:'"''o;fendant contended that the evidence presented at trial was
 insufficient to sustain his convictions on Counts 1, 3 and 4 of the Criminal Information, and challenged the grading
 of the Count I corruption of minors charge as a felony of the third degree. The court found no merit in these claims
 and denied relief. The issues raised in Defendant's initial Post-Sentence and Supplemental Post-Sentence Motions
 are addressed in full in this court's Opinion ofNovember 5, 2014.


                                                                      2
                                                                                                                No. 3170-2012


          Having vacated Defendant's           sentences, the court held a re-sentencing hearing, at which

time the court concluded that the previously calculated prior record score (PRS) ascribed to

Defendant was incorrect, resulting in a change in the Sentencing Guidelines applicable to the

calculation      of Defendant's      minimum sentences for the various offenses.                              Concluding       that

Defendant's PRS was 1, the Guidelines indicated the following standard minimum incarceration

sentence ranges for the offenses of which Defendant was convicted, as well as the number of

months to be added or subtracted for aggravating or mitigating circumstances:

Count     1           Corruption of Minors (F3)                                  1 month - 12 months             +/-   3   months
Count     2           Corruption of Minors (M l"f            ·'"'·               1 month - 12 months             +/-   3   months
Count     3           Indecent Exposure (M2)                                     RS-6 months                     +/-   3   months
Count     4           Unlawful Contact (F3)                                      6 months - 14 months            +/-   6   months

           At the January 22, 2015, re-sentencing hearing, the court imposed the following sentences

of incarceration:

              Count   l       Corruption of Minofs(F3)                                  3 1/2 - 7 years' incarceration
              Count   2       Corruption of Minors (Ml)                                 2 1/2 - 5 years' incarceration
              Count   3       Indecent Exposure (M2)                                    1 - 2 years' incarceration
              Count   4       Unlawful Contact (F3)                                      3 1/2 - 7 years' incarceration

 The sentences on each count were made consecutive to one another, resulting in an aggregate

 sentence of 10 1/2 - 21 years' incarceration. The court concluded, and defense counsel agreed, that
                                                     -~····"-.-.:-:il;:.~-


 Defendant was not eligible for reduction of his minimum sentences under the Recidivism Risk

 Reduction Incentive (RRRI) program5 and the Commonwealth did not waive Defendant's RRRI

 ineligibility.

              On February 2, 2015, Defendant timely filed the instant Post-Sentence Motion, alleging

 that: ( 1) the sentences imposed by the court at the January 22, 2015, re-sentencing hearing were

 unreasonable         in that the minimum sentences deviated from the Sentencing                                   Guidelines       by



 5
     61 Pa. C.S. Chapter 45, 61 Pa. C.S. § 450 l et seq.

                                                                             3
                                                                                                                No. 3170-2012

                                              »«: .
exceeding the aggravated range, the maximum sentences were imposed at the statutory limit, and

the sentences were made consecutive to one another; (2) the court failed to state on the record

adequate bases for deviating from the Guidelines, imposing the statutory limits, or making the

sentences consecutive; and (3) the court failed to consider the positive aspects of Defendant's life,

his statements of remorse, and his amenability to rehabilitation.

                                                  DISCUSSION

          It is well established that sentencing is a matter vested in the sentencing court's discretion.

A sentencing court is vested with broad discretion in determining a defendant's sentence, as it is
                                               ,..;,.;::<'c,".':'.'._,,?t,.


in the best position to view the defendant's                                     character,   displays of remorse, defiance,   or

indifference, and the overall effect and nature of the crime. Commonwealth v. Begley, 780 A.2d

605, 643 (Pa. 2001 ).          A sentence will not be disturbed absent a manifest abuse of discretion.

 Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002); accord Commonwealth v.
                                                 _,;."tn,fl,~./.£.::.. ..


 Ritchie, 779 A.2d 1183 (Pa. Super. 2001).                                    A manifest abuse of discretion occurs where the

judgment imposed was manifestly unreasonable or the result of partiality, prejudice, bias, or ill

 will. Cunningham at 575.

           Under the Sentencing Code,6 the court must select a sentencing option, be it probation,

 guilt without further penalty, partial confinement, or total confinement, and in doing so must be

 guided by the statutory standard which requires that the sentence imposed be 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

 also Commonwealth v. Walls, 926 A.2d 957 (Pa. 2001r· In fashioning its sentence, the undersigned

 was guided by these standards and also the Walls court's review of sentencing considerations,



 6
     42 Pa. C.S. § 970 I et seq.
                                                                                           No. 3170-2012


including its discussion of the Sentencing Guidelines established by the Pennsylvania Commission

on Sentencing.

       While the Sentencing Guidelines are a valuable starting point to be considered, they are

but one factor among many that a court must consider.               Commonwealth v. Sheller, 961 A2.d 187,

190 (Pa. Super. 2008). The Guidelines are not binding, they create no presumptions in sentencing

and are "advisory guideposts," which "recommend ... rather than require a particular sentence."

Walls at 963. Neither the Guidelines nor the Sentencing Code require that the court impose the
                                          -~·/;:.:,"""".:-·

minimum possible confinement. Id. A court may depart from the Guidelines when necessary to

fashion a sentence "which takes into account the protection of the public, the rehabilitative needs

of the defendant, and the gravity of the particular offense as it relates to the impact on the life of

the victim and the community." Sheller at 190. When the sentencing court deviates from the

Guidelines, choosing (as in this instanceft~~.sentence 'a defendant above the aggravated range, it

 must also provide a statement of its reason or reasons for deviating from the guidelines.

 Commonwealth v. Guth, 735 A.2d 709, 711 (Pa. Super. 1999).

        In determining the reasonableness of a minimum sentence which falls outside the standard
                                                       .JI~,'


 range of the sentencing guidelines, or ofthe aggregatesentence generally, a reviewing court will

 consider: (1) the "nature and circumstance of the offense and the history and characteristics of the

 defendant, (2) the opportunity of the sentencing court to observe the defendant, including any

 presentence investigation, (3) the findings upon which the sentence was based, and ( 4) the

 [Sentencing G]uidelines promulgated bitl1"e [Pennsylvania Commission on Sentencing]." Sheller

 at 190-191. Unless a sentence exceeds the statutory maximum, or is so excessive as to constitute

 a manifest abuse of discretion, a trial court's sentence will not be disturbed. See Commonwealth

 v. Plank, 445 A.2d 491 (Pa. 1982).



                                                                5
                                                                                                 No. 3170-2012


       The essential gravamen of each contention of Defendant's                    Post-Sentence Motion is that

the court abused its discretion in imposing-the
                                         .
                                                sentences it did.
                                                               ;.,:;~
                                                                                  An abuse of discretion is "not

merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied,

or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or

ill-will, as shown by the evidence or the record." Commonwealth v. Stollar, 84 A.3d 635, 650 (Pa.

2014) (citing Commonwealth v. Chambers, 685 A.22. 96, 104 (Pa. 1996)). The record clearly

shows the undersigned's application of the required sentencing considerations                    to Defendant's

circumstances and its detailed explanation of its underlying reasoning.

        As to the consecutive rather than concurrent nature of the sentences, the Superior Court of

Pennsylvania     has recently had occasion.jo. reaffirm the well-established                standard for such a

determination:

        We have stated that the imposition of consecutive rather than concurrent sentences
        lies within the sound discretion of the sentencing court. Commonwealth v. Lloyd,
        878 A.2d 867, 873 (Pa. Super. 2005) (citing Commonwealth v. Hoag, 445 Pa.
        Super. 455, 665 A.2d 1212, 1214 (1995)). Long standing precedent of this Court
        recognizes that 42 Pa. C.S.A. § .2,721 affords the sentencing court discretion to
        impose its sentence concurrently     o~·
                                            consecutively to other sentences being imposed
        at the same time or to sentences already imposed. Commonwealth v. Marts, 889
        A.2d 608, 612 (Pa. Super. 2005) ( citing Commonwealth v. Graham, 541 Pa. 173,
         661 A.2d 1367. 1373 (1995)).

 Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super 2014), citing Commonwealth v. Johnson,

 961 A.2d 877, 880 (Pa. Super. 2008) (citations modified).

         When     fashioning   Defendant's         sentence,       this   court   took   into account   numerous

 considerations comprising the totality of the circumstances surrounding Defendant and his crimes,

 including those enunciated in 42 Pa. C.S. § 9271 (b) (i.e. requiring consideration of the general

 public and its safety, the gravity of the offense, and Defendant's rehabilitative needs), as well as




                                                          6
                                                                                                                   No. 3170-2012


the information contained in the PresentenceInvestigation Report.7 These considerations included
                                               ,.~.:...            ...          -
Defendant's comments at the re-sentencing hearing (contrary to Defendant's assertion to the

contrary) and the effect of the crimes and the manner in which they were perpetrated on the victim,

E.S.    These are fair matters for the court's consideration when it fashions a sentence. See Zirkle

at 133: " ...     Zirkle argued that the cou~,twas unduly influenced by the victims' statements .
                                                .::-:i:·~···..                  ..,.,..~




However. we have held that a claim that a court did not weigh the factors as an appellant wishes

does not raise a substantial question." (Citations omitted); and see id., n.1.

          At trial, the court, as well as the jury, was able to view the demeanor and presentation of

E.S.,   as well as his manner of testifying, ./.~i·r..:
                                                 in. addition to considering the content of the testimony
                                                                 ·l"".i;_




itself. The court's conclusion, and apparently the jury's, too, based upon the verdict, is that E.S.

was the somewhat naive, backward, immature, young man characterized by the Commonwealth.

As the court noted in its Opinion of November 5, 2014, in discussing the sufficiency of evidence

 to support the jury's verdict on the indecent assault charge, "Defendant's actions did affront,
                                                 ~~~(":'"~-                          fi;_.




 offend and alarm [E.S.], and ... Defendant spent enough time with E.S. to know or have reason

 to know that the sexual activities Defendant initiated, including the displays of Defendant's

 genitalia, were disturbing and discomfiting to E.S."                                        Commonwealth   v. Lawrence, CP-36-CR-

 3170-2014, November 5, 2014, Opinion, pp. 7-8 (CCP Lancaster County) (emphasis added) .
                                                    .~:::'.·~~-(

 Considerations such as these play a part in the sentencing court's determination of the "nature and

 circumstance of the offense and the history and characteristics of the defendant."                                     See Sheller,

 supra.



           7
             "Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of
 relevant information regarding the defendant's character and weighed those considerations along with mitigating [or
 aggravating l statutory factors." Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). The presumption is satisfied
 where the sentencing judge indicates that it has been informed by the pre-sentence report. Commonwealth v. Egan,
 679 A.2d 237, 239 (Pa. Super. 1996).


                                                                            7
                                                                                    No. 3170-2012


       Defendant's   contentions that the court failed to state adequate bases for its sentence and

failed to consider the positive aspects of Defendant's    life, his statements of remorse, and his

amenability to rehabilitation are belied by the court's remarks when sentence was imposed:

                Certainly, having been the-presiding judge at trial, I am very familiar with
       the testimony, having had now numerous opportunities at different stages to view
       the trial transcripts. It has kept it relatively fresh in my mind. And in preparation
       for ruling on the post-sentence motions, the Court had further opportunity to review
       the SVP testimony and report of Dr. Stein, and I looked at all of that in preparation
       for today's re-sentencing hearing.

               Knowi ng that. short of all of the other legal issues that may be surrounding
       this case, what is most important-here is that the criminal justice system respond
       based on the jury's convictions of the crimes charged and that the system do so in
       accordance with the law and based on the factors that the sentencing code requires
       me, as the sentencing judge, to consider.

                 Those factors, Mr. Lawrence, do not really have anything to do with any
        epiphany of your personal spiritual state at any given time, because what you need
        to understand is the criminal justice system seeks to protect those who are
        vulnerable from those who would commit crimes against them. And an individual's
        spiritual state of mind is personal to that individual. The Court cannot see into a
        man's heart or soul, or they shouldn't sentence on that basis, but should sentence
        based on the objective conduct and the objective factors. Those factors are the
        significance of the crime on the life of the victim, and as it affects the community
        in general.

                  Those factors include your prospects for rehabilitation, and also the extent
        to which you acknowledge or take=responsibility for your role in bringing the
        circumstances to fruition or into being. I am required here to think back on the
        victim's testimony. I dislike the word victim, but the language is limiting, and what
        still slicks out to me the most is the naive, youthful, uncertain young man who was
        groomed, intimidated, and he was groomed by you and intimidated by you.

                  You didn't have to do any of this. You never had to lay a finger on him. He
         never asked you to lay a finger on him. And you knew it was wrong. And I know
         you knew it was wrong because you-said to him, I can't get in trouble unless you
         testify. And you did, based on the testimony, take active or make active attempts
         at creating an atmosphere that would, if not outright scare, at least intimidate or
         discourage the young man from disclosing or ending it. And that's on you. That's
         all on you. It's your responsibility, you brought all of that to bear. And you need
         to be answerable for that because, based on your history, I know that you know that
         certain forms of conduct with a minor are illegal.



                                                   8
                                                                                    No.3170-2012


              You've been convicted of certain forms of sexual conduct with a minor, and
     they were illegal, and notwithstanding whether your sodomy convictions are
     constitutional or unconstitutional, whether they are legal conduct in the secular and
     against the law of God, has no bearing at all on what's before me today. Because
     this is not about equally-placed individuals engaging in consensual conduct. It is
     an individual who, frankly, targeted a victim, groomed that victim, predated that
     victim, brought him along, scared him into continuing conduct that made him
     uncomfortable and exposed him to criminal activity. Plain and simple.

            The ultimate morality of it is not for me to say. If an individual's orientation
     wants to go one way or another with a consenting adult is not the question in front
     of me. So many of the things thatyoi; had to say in your statement, while you may
     need to in your personal rehabilitation subscribe to certain beliefs and find your
     way through by reconnecting with certain Biblical precepts, that's between you and
     God; that's not between the Court and you.

               I see an individual who, notwithstanding everything you said today,
      basically is mostly sorry that it had to tum out this way, only because it's wrong,
      criminally wrong. Morally wrong, that's another question. It's not for me. You are
      sorry it's criminally wrong and it ended you up-in court.

               l have to be mindful of the nature of your prior offenses and the fact that I
      was satisfied, based on Dr. Stein's opinion, that you are an individual who satisfies
      the statutory definition of a sexually violent predator, and my sentence needs to
      reflect that, because ultimately, I am required to protect, and the protection of the
      community sometimes does require this Court to deviate from the sentencing
      guidelines. They are, it is true, as a matter of law, a starting point, and they are not
      an ending point, particularly, wherelbelieve, as it is in this case here, the conduct,
      that when one is not adequately controlled by a sentence that is even in the
       aggravated range, I think your propensity for re-offense is high. I think the matter
       in which you relate the matter to yourself is more indicative of one who, how shall
       I say, regrets that he enjoys his weakness so much.

                  With that in mind, and having given a great deal of thought to this, I am
      deviating from the sentencing guidelines for the reasons stated. I do not believe
      that the guidelines even in the aggravated range adequately protect the community,
      nor do they adequately reflect the degree of culpability of Mr. Lawrence in his
      conduct as to this victim over the periods of time that were found to have occurred.
      /vnd also I need to think of the vindication of the victim and his right to justice,
      where an individual has preyed upon him. (N.T. Re-sentencing Hearing, January
      ::::::. :2015. pp. 48:3-5:2: 10.)

       The court is satisfied that Defendant's sentence accords with the Jaw and fairly reflects the

nature and circumstances    of Defendant's   crimes, their effect on the victim, and Defendant's



                                                  9
                                                                                     No. 3170-2012


culpability   in light of his actions toward-E'S.   before.and after his sexual encounters with E.S.

Accordingly, the court enters the following:




                                                           ··~·- ..
lN THE    COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                              CRIMINAL


COMMONWEAL TH OF PENNSYLVANIA

              VS.                                           No.    3170-2012

RICHARD EUGENE LAWRENCE

                                        .-!f:~;   _,

                                                  ORDER~·

       AND NOW, this 20th day of April, 2015, upon consideration of the Post-Sentence Motion

filed on behalf of Defendant Richard Lawrence, the Motion is DENIED, consistent with the

foregoing Opinion.


ATTEST:                                                 BY THE COURT:



                                                       lo~
                                                        MARIiirc:MILLER
                                                        JUDGE


                                                                                    c,     C•   I


                                                                                    )>
                                                                                    (./)
                                                                                           .-"·-~




                                                                                                    (/)




******************************************************************************
Copies to:      Jennifer L. Ponessa-Hundley, Esquire - Office of the District Attorney
                Mary Jean Glick, Esquire - Office of the Public Defender
