J-S60034-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
               Appellee                     :
                                            :
      v.                                    :
                                            :
ERIC ROSADO,                                :
                                            :
               Appellant                    :   No. 3333 EDA 2015


           Appeal from the Judgment of Sentence September 24, 2015
                in the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0002264-2014

BEFORE:       SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY: STRASSBURGER, J.:                  FILED OCTOBER 21, 2016

      Eric Rosado (Appellant) appeals from the judgment of sentence

entered on September 24, 2015, after he was found guilty of indecent

assault, endangering the welfare of a child, corruption of minors, and

unlawful contact with a minor. We affirm.

      The pertinent factual history of this case was summarized by the trial

court as follows.

      On February 21, 2014, seven[-]year-old M.F. was visiting
      [Appellant], her step-grandfather, at his house in the Poconos.
      On this evening, while M.F.’s maternal grandmother, [A.Q.], and
      [her] brother [] were upstairs, [Appellant] asked M.F. to sit on
      his lap on a stool in the kitchen. While M.F. sat on his lap,
      [Appellant] reached underneath her and rubbed her vaginal area
      through her clothes. Immediately after she got down from
      [Appellant’s] lap, M.F. went upstairs where she told her
      grandmother what had happened. [A.Q.] confronted [Appellant]
      about the situation and eventually demanded that he leave the
      house.    [A.Q.] took M.F. home to her mother, [T.C.], in

*Retired Senior Judge assigned to the Superior Court.
J-S60034-16


        Delaware the next morning and, after further discussions
        between M.F., her mother, and her grandmother, it became
        apparent that this was not the only incident where [Appellant]
        touched M.F. in this fashion. This conduct had been occurring
        with frequency at [Appellant’s] apartment in New York City over
        the preceding two years. M.F. reported the New York incidents
        to her grandmother after this latest occurrence because she
        recently watched a video in school about not keeping bad
        secrets.

Trial Court Opinion, 1/27/2015, at 1-2 (footnote omitted).

        Following several pre-trial motions filed by both the Commonwealth

and Appellant, the case proceeded to a jury trial. Appellant was found guilty

of the aforementioned crimes on June 9, 2015.         On September 24, 2015,

Appellant received an aggregate sentence of not less than 30 months and no

more than 72 months of incarceration. This timely-filed appeal followed.1

        Appellant raises the following claims for our review.

        1. Whether the trial court erred, pre-trial and during trial, when
           it allowed the Commonwealth to submit prior bad acts
           evidence of previous instances of sexual abuse of the alleged
           victim by [Appellant], despite the extreme, unfairly prejudicial
           nature of these statements and the relative lack of probative
           value for the charges at issue?

        2. Whether the trial court erred, at trial, when it allowed the
           Commonwealth’s expert to testify to matters outside the
           scope of her pre-trial proffer and where the defense did not
           then have a chance to rebut such testimony with an opposing
           expert witness or have notice to prepare for such testimony
           via an expert report?

        3. Whether the trial court erred at trial, when it overruled
           defense counsel’s objections to personal commentary by the
           Commonwealth during cross-examination of [Appellant] and

1
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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J-S60034-16


        where the trial court, in front of the jury, seriously
        compounded that error by going on to effectively suggest that
        [Appellant] was being dishonest?

     4. [Whether the] trial court erred, at trial, when it refused to
        instruct the jury that it could consider the lack of promptness
        of the complaint as a factor in assessing credibility?

     5. [Whether the] trial court erred, at trial, when it denied the
        motion for mistrial based upon the Commonwealth’s attorney
        [sic] expressing a personal opinion on witness credibility
        during summation?

     6. Whether the trial court erred as a matter of law and abused
        its discretion in rendering an excessive sentence, at the top of
        the standard range on all charges when it:

           a. improperly and unreasonably failed to consider the
              effects of Megan’s Law registration in crafting the
              sentence;

           b. improperly and unreasonably considered as a
              sentencing factor that the criminal act evinced [sic]
              [Appellant’s] threat to the community, which is true of
              every instance of the crime for which [Appellant] was
              convicted, and which is repetitive to the sentencing
              guidelines consideration of the crimes already?

Appellant’s Brief at 8-10 (emphasis omitted).2

     We first address Appellant’s issue that the trial court erred in finding

prior incidents of sexual abuse by Appellant against M.F. permissible

evidence under Pa.R.E. 404(b). Appellant avers the prejudice to him caused

by the introduction of this evidence outweighed the probative value.


2
  Included in Appellant’s statement of questions involved are several issues
that were raised within his concise statement of errors complained of on
appeal (Concise Statement) and subsequently addressed by the trial court.
Appellant now seeks to withdraw these issues. Therefore, they will not be
presented herein or addressed by this Court. See Appellant’s Brief at 8-9.
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Appellant’s Brief at 28. Specifically, Appellant contends “there was no actual

purpose in admitting the evidence beyond accumulating a sense of outrage

in the jury and encouraging judgment based upon propensity.” Id.

      In determining whether the trial court properly allowed testimony of

these prior incidents, we are mindful that “[e]vidence of crimes other than

the one in question is not admissible solely to show the defendant’s bad

character or propensity to commit crime.” Commonwealth v. Collins, 703

A.2d 418, 422 (Pa. 1997); see also Pa.R.E. 404(b)(1) (“Evidence of a

crime, wrong, or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in accordance

with the character.”).

      Nevertheless, “[t]his evidence may be admissible for another purpose,

such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.”   Pa.R.E. 404(b)(2); see

also Commonwealth v. Ross, 57 A.3d 85, 103 (Pa. Super. 2012) (quoting

Commonwealth v. Elliott, 700 A.2d 1243, 1249 (Pa. 1997)) (“Under

Pennsylvania law, evidence of prior bad acts is admissible to prove ‘a

common scheme, plan or design where the crimes are so related that proof

of one tends to prove the others.’”); Commonwealth v. Dillon, 863 A.2d

597, 601 (Pa. Super. 2004) (“In trials involving sexual assault, res gestae

evidence [known as the “complete story” exception] is of particular

importance and significance to the fact-finder. By their very nature, sexual


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assault cases have a pronounced dearth of independent eyewitnesses, and

there is rarely any accompanying physical evidence.”); Commonwealth v.

Dillon, 925 A.2d 131, 137 (Pa. 2007) (“[Our Supreme] Court has

recognized a res gestae exception to Rule 404(b) which allows admission of

other crimes evidence when relevant to furnish the context or complete

story of the events surrounding a crime.”).

     In its 1925(b) opinion, the trial court offered the following analysis:

            As to the New York incidents, this case is exactly the type
     of case to which the res gestae exception is meant to apply. The
     evidence proffered and then submitted by the Commonwealth
     demonstrated that [Appellant] took advantage of his position of
     trust to surreptitiously touch and sexually abuse his young step-
     granddaughter here and in New York. The incidents of touching
     and abuse in New York were clearly part of a connected chain
     and sequence of criminal events that formed the history of this
     case and led to the assault that occurred in the home in the
     Poconos. Evidence of the New York incidents also provided
     context for and the complete story of the abuse charged in this
     case.    For many of the same reasons, evidence about the
     incidents that occurred in New York was also admissible under
     the common plan or scheme exception. Specifically, the crimes
     committed here and those perpetrated in New York were so
     similar and related that proof of one tends to prove the others.
     Further, there is no question that the evidence was relevant.
     Given the facts and circumstances of this case it is equally clear
     that the probative value of the evidence outweighed its
     prejudicial effect. As the cited cases indicate, since the evidence
     fell under exceptions to Pa.R.E. 404(b) and was more probative
     than prejudicial, we were not required to sanitize the trial to
     eliminate all unpleasant facts from consideration. Finally, we
     gave required limiting instructions.

            Simply, [Appellant’s] prior acts toward M.F. fit under the
     res gestae and common plan or scheme exceptions to Pa.R.E.
     404(b), were more probative than prejudicial, and required
     limiting instructions were given. Accordingly, [Appellant’s]
     complaint has no merit.

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J-S60034-16


Trial Court Opinion, 11/24/2015, at 9-10 (citations omitted).

      Upon review, we wholly agree with the trial court’s thoughtful analysis,

and conclude that the evidence allowed by the trial court was permissible

under Pa.R.E. 404(b).     In doing so, we disagree with Appellant that the

incidents that occurred in New York provided no probative value. As aptly

stated by the trial court, the prior incidents “clearly fell within the res gestae

[and common scheme exception] in that they furnished context for the

crimes charged and helped to provide the complete story of events as they

showed a natural progression and development which culminated in the

crime charged in this case.” Trial Court Opinion, 11/24/2015, at 8. No relief

is due.

      Appellant also challenges the trial court’s decision to permit expert

testimony elicited by the Commonwealth that was outside the scope of the

pre-trial proffer. As concisely summarized by the trial court:

            In the instant case, no expert report was generated as
      [Carol Haupt (Ms. Haupt), the Commonwealth’s expert] was
      being called to give general testimony regarding victim behavior.
      Counsel for [Appellant] was well aware of this from
      communications he had with the assistant district attorney and
      from discussions and rulings during pre-trial hearings. As there
      was not going to be any testimony specific to M.F. or
      [Appellant], there was no requirement that a report be
      generated. In lieu of a report, [Appellant] was given transcripts
      of similar general victim behavior testimony given by Ms. Haupt
      in other cases. While the Commonwealth stated that its purpose
      for calling Ms. Haupt was to elicit testimony about victim delays
      in reporting, there was not an affirmative representation that
      this was the only thing this expert could testify to in regard to
      general victim behavior.


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            At trial, before the Commonwealth called Ms. Haupt,
      [Appellant] intentionally elicited testimony on cross-examination
      of M.F.’s grandmother [A.Q.] that as a teacher she was a
      mandatory reporter for child abuse and that she had received
      some child abuse training, including training on signs of child
      abuse. She then testified that she had never observed any signs
      of child abuse in M.F. When the Commonwealth called Ms.
      Haupt, [Appellant] objected to allowing her to testify in regard to
      any signs or symptoms (or lack thereof) of child abuse.
      [Appellant] claimed that because the Commonwealth stated,
      pretrial, their intention to call Ms. Haupt for testimony regarding
      a delay in reporting, they were not able to elicit testimony
      outside this narrow scope and that doing so prejudiced him.

Trial Court Opinion, 11/24/2015, at 12 (citations omitted).

      Appellant argues that he was essentially “ambushed at trial” and that

Appellant’s “cross-examination of a lay witness was of an entirely different

kind than the Commonwealth’s introduction of expert testimony.” Appellant’s

Brief at 30. Disagreeing that he had “opened the door” to this testimony,

Appellant contends the court’s allowance of this testimony was highly

prejudicial. Id. at 30-31.

            [T]he admission of expert scientific testimony is an
      evidentiary matter for the trial court’s discretion and should not
      be disturbed on appeal unless the trial court abuses its
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness,
      or partiality, prejudice, bias, or ill-will, or such lack of support so
      as to be clearly erroneous.

Commonwealth v. Szakal, 50 A.3d 210, 227 (Pa. Super. 2012) (quoting

Grady v. Frito–Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003)).




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J-S60034-16


      Opining that it did not err by allowing the Commonwealth to elicit the

aforementioned information from its expert, the trial court offered the

following.

             Because [Appellant] raised the issue in his cross-
      examination of M.F.’s grandmother we ruled that the
      Commonwealth could ask Ms. Haupt general questions regarding
      signs of child abuse similar to the questions asked by [Appellant]
      of M.F.’s grandmother. In regard to this particular issue, the
      Commonwealth asked Ms. Haupt two questions about general
      behavior and signs, or lack thereof, of sexual abuse. This
      testimony was in direct response to testimony elicited by
      [Appellant] from another witness and did not go beyond the pre-
      trial proffer of general victim behavior testimony. Furthermore,
      assuming arguendo this testimony did go beyond the scope of
      the expert testimony as indicated by the Commonwealth,
      [Appellant] made only a bald claim of prejudice and, in fact,
      there was no prejudice from the few questions asked.

            Given the facts and circumstances of this case, the limited
      nature of Ms. Haupt’s testimony on the contested subject, and
      the fact that [Appellant], not the Commonwealth, interjected the
      subject, we believe that we acted well within our discretion in
      allowing the testimony. The evidence was relevant, responsive
      to questioning conducted by [Appellant’s] attorney, and did not
      prejudice [Appellant].

Trial Court Opinion, 11/24/2015, at 12-13 (citations omitted).

      Upon review, we conclude that the trial court acted within its

discretion.   The decision to allow Ms. Haupt to offer testimony to rebut

defense counsel’s questioning of M.F.’s grandmother is reasonable, not the

product of “partiality, prejudice, bias or ill will.” Commonwealth v. Hoch,

936 A.2d 515, 518 (Pa. Super. 2007) (citations omitted).         Accordingly,

Appellant is entitled to no relief from this Court.



                                      -8-
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      Next,   in   addressing    Appellant’s   issue   related   to   the   personal

commentary made during cross-examination by the Commonwealth and trial

court, we first set forth our standard of review.

      “Comments by a prosecutor constitute reversible error only where

their unavoidable effect is to prejudice the jury, forming in their minds a

fixed bias and hostility toward the defendant such that they could not weigh

the evidence objectively and render a fair verdict.”         Commonwealth v.

Miller, 746 A.2d 592, 601–02 (Pa. 2000).         Appellant takes issue with the

following two interactions that occurred when he was cross-examined by the

Commonwealth.

      [The Commonwealth:] Okay so when you say eight grandkids –
      and again you’re talking [A.Q.’s] kids?

      [Appellant:] Yeah, because they’ve been the closest to me all
      these years.

      [The Commonwealth:] Okay, I just thought it was odd that you
      didn’t mention that you have your own grandkids.

      [Defense Counsel:]        Objection to what the district attorney
      thought Your Honor.

      [Trial Court:] Overruled.

N.T., 6/9/2015, at 39.

      [The Commonwealth:] So what’s the difference then between
      [M.F.] sitting on your lap in the Poconos versus all the other
      times she sat on your lap? Why is this one time that you’re so
      adamant that no, she never did? What’s the difference?

      [Appellant:] I don’t get it.



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     [The Commonwealth:] Neither do I sir, that’s why I asked the
     question.

     [Defense Counsel:] Judge, you know, does he have to resort to
     this -- those comments? He doesn’t get it? I think everybody
     else does.

     [Trial Court:] Well we’ll see if they do or not; but the point of it
     is that he didn’t answer the question either. So you can ask him
     the question again.

     [Defense Counsel:] Judge, can he rephrase the question?

     [Trial Court:] I think it was an easy question to answer.

     [The Commonwealth:]           I thought it was an easy question too
     Judge.

N.T., 6/9/2015, at 50-51.      Appellant argues that these two instances of

“personal commentary,” along with a third occurrence, the objection to

which was sustained by the trial court, exhibit improper expressions of the

prosecutor’s personal opinion. Appellant avers that, “although not explicitly

stated, the meaning” of these comments, including the trial court’s response

to defense counsel’s request to rephrase the question “was perfectly clear.”

Appellant’s Brief at 34.    Specifically, Appellant contends “[t]he prosecutor

believed [Appellant] was lying, evinced [sic] by the prosecutor’s sarcastic

string of comments. The [trial court] and the prosecutor then demonstrated

agreement that [Appellant] was evading easy questions, making it seem to

the jury that the [trial court] and the prosecutor were of one mind on

[Appellant’s] testimony.”    Id.    Such commentary, Appellant argues, “was




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J-S60034-16


highly prejudicial … and would serve to form a fixed bias in the minds of the

jury so as to taint the fairness and impartiality of the verdict.” Id. at 35.

      In response, the trial court concluded the issue was waived.          Trial

Court Opinion, 1/27/2015, at 24-25. Specifically, the trial court found it was

“unable to ascertain” what Appellant was referring to3 and Appellant’s failure

to “pinpoint the alleged error within the record” resulted in waiver. Id.

      We agree with the trial court that Appellant failed to state with exact

specificity what remarks in the record he was contesting. However, because

we find the issue as written provided enough context to discern which parts

of Appellant’s testimony he was challenging, we decline to find waiver.

      In reviewing the applicable portions of the transcript as set forth

above, it appears Appellant only objected to one of the comments made by

the prosecutor. Regardless, to the extent that Appellant properly objected

to both remarks and thus preserved the issue for our review, we discern no

abuse of discretion by the trial court. See Commonwealth v. Cooper, 941

A.2d 655, 668 (Pa. 2007) (citations omitted) (“Not every intemperate or

improper remark mandates the granting of a new trial.          Reversible error

occurs only when the unavoidable effect of the challenged comments would


3
  In his Concise Statement, Appellant raised the following issue the trial
court deemed waived: “The trial court erred, at trial, when it overruled
defense counsel’s objections to personal commentary by the Commonwealth
during cross-examination with [Appellant] and where the trial court, in front
of the jury, seriously compounded that error by going on to effectively
suggest that [Appellant] was being dishonest.”        Concise Statement,
11/24/2015, at 3.
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prejudice the jurors and form in their minds a fixed bias and hostility toward

the defendant such that the jurors could not weigh the evidence and render

a true verdict.”). No relief is due.

      Next, Appellant asserts the trial court erred when it refused to issue a

prompt complaint instruction to the jury.4      Contending the instruction was

essential for assessing the victim’s credibility, Appellant avers the trial

court’s failure to issue this instruction, while allowing testimony of prior

incidents (which were not reported immediately) under the res gestae

exception was extremely prejudicial. Appellant’s Brief at 38-41. Appellant

notes that while the trial court denied Appellant’s request for the instruction,

it expressly permitted the Commonwealth “to present an expert witness that

addressed the victim’s delay in reporting.”           Id. at 38.      Although

acknowledging the jury was instructed about general witness credibility,

Appellant argues this instruction was “insufficient and misleading to the jury

on the issue of delay in reporting.” Id. at 39.

      [I]n reviewing a challenge to the trial court’s refusal to give a
      specific jury instruction, it is the function of this [C]ourt to
      determine whether the record supports the trial court’s decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case.




4
 Initially, the trial court said it would give a prompt complaint instruction.
However, upon an objection from the Commonwealth and the court’s review
of case law, the court declined to give the instruction. See. N.T., 6/9/2015,
at 67-68, 75-81.
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Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006)

(citations omitted).

      “The prompt complaint instruction is based upon a belief that a victim

of a violent assault would reveal the assault occurred at the first available

opportunity. [T]he purpose of the instruction is to allow a jury to call into

question a complainant’s credibility when he or she did not complain at the

first available opportunity.” Id. (omitted).

      The trial court determined that a prompt complaint instruction was not

required,   largely    on   the   basis   of    our   Supreme   Court’s   opinion   in

Commonwealth v. Snoke, 580 A.2d 295 (Pa. 1990).

      In Snoke, a five[-]year-old girl was sexually abused by her
      father. She did not report the abuse for five months. Similar to
      M.F. in this case, the child victim’s report in Snoke was made
      after she watched a video in school on the difference between
      “good touching” and “bad touching.” On appeal, the defendant-
      Father argued that the trial court erred by failing to give a “lack
      of prompt complaint” instruction. Our Supreme Court disagreed,
      stating:

            [W]here the actual occurrence of the assault is at
            issue in the case, the trial judge is required to charge
            the jury as to the relevance of a delay in disclosure
            and the significance of a prompt complaint. In such
            an assessment the witness’ understanding of the
            nature of the conduct is critical. Where the victim
            did not comprehend the offensiveness of the contact
            at the time of its occurrence, the absence of an
            immediate complaint may not legitimately be used to
            question whether the conduct did in fact occur.

                                          ***

            Where no physical force is used to accomplish the
            reprehensible assault, a child victim would have no

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           reason to promptly complain of the wrong-doing,
           particularly where the person involved is in a position
           of confidence. Where such an encounter is of a
           nature that a minor victim may not appreciate the
           offensive nature of the conduct, the lack of a
           complaint would not necessarily justify an inference
           of a fabrication. As the testimony reveals in this
           case, the child had no reason to question the
           character of the conduct until her subsequent
           viewing of a film depicting this type of conduct. It is
           also significant that the party involved in the
           behavior was her father whom she would naturally
           trust and accept his judgment as to the propriety of
           the act.... In this setting the absence of an
           immediate outcry would not in and of itself warrant
           an inference that the event was a recent fabrication
           and, therefore, a charge to that effect was properly
           denied by the trial court.

     Snoke, 580 A.2d at 298-300.

           [The trial court explained its decision to forego the
     instruction in this case as follows:] In this case, [Appellant]
     argued that M.F. did not make a prompt complaint. Specifically,
     he maintained that a “delay” occurred when M.F.’s mother and
     grandmother waited for a short period of time before contacting
     the police. He also pointed to the fact that M.F. did not disclose
     the incidents in New York until she reported the assault that
     occurred in this case. However, after examining case law we
     determined that neither aspect of [Appellant’s] assertion holds
     water.

            Having reviewed the matter again in light of this appeal,
     we continue to believe that our ruling was correct under the
     facts and the law. Initially, M.F. did promptly report the abuse.
     Specifically, immediately after the sexual assault here in the
     Poconos, M.F. went upstairs and told her grandmother what had
     happened. The next morning, after her grandmother drove her
     home, M.F. told her mother what had happened. Given these
     facts, a prompt complaint instruction was simply not warranted.

                                    ***



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      [Appellant’s] assertion that M.F.’s delay in reporting the New
      York incidents required a lack of [prompt] complaint instruction
      is equally meritless in light of Snoke. Given M.F.’s age, the
      family relationship between [Appellant] and M.F., the position of
      trust [Appellant] enjoyed, the lack of force used to perpetrate
      the abuse, and the other considerations discussed above, a lack
      of prompt complaint instruction was not warranted based on any
      delay attributable to M.F. regardless of whether the assertion of
      delay is made in reference to New York incidents, the abuse that
      occurred in Pennsylvania, or both. Further, as [Appellant] points
      out in other arguments, he was not on trial in this case for the
      New York incidents, we allowed evidence of the New York
      incidents for limited purposes only, the jury was instructed on
      the limitations, and counsel for [Appellant] remained free to
      point out and argue the length of time between the occurrence
      of the New York incidents and M.F.’s reporting of the assaults.
      There was simply no need or requirement to give a lack of
      prompt complaint instruction in regard to prior acts that were
      admitted for only limited purposes.


Trial Court Opinion, 11/24/2015, at 18-21 (citations omitted, emphasis

in original).

      We find the trial court’s explanation for denying Appellant’s request for

a prompt complaint instruction was well-reasoned and in line with our long

standing case law concerning this subject. We find no abuse of discretion or

misapplication of law and wholly agree with the conclusions of the trial court

set forth above.5


5
  Furthermore, as correctly cited by Appellant, this Court has held that a
general     witness-credibility instruction is   sufficient   under   similar
circumstances when confronted with a trial court’s refusal to grant a prompt
complaint instruction. See Commonwealth v. Sandusky, 77 A.3d 663,
669 (Pa. Super. 2013) (finding the trial court’s credibility instruction
“provided the jury with a sufficient framework to question the victims’
credibility”). See also Commonwealth v. Snoke, 580 A.2d 299-300
(footnotes and citations omitted) (“The trial judge in this case refused to
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      In his fifth issue, Appellant contends the trial court erred when it

denied a motion for a mistrial based on comments made by the

Commonwealth during summation. Specifically, Appellant takes issue with

two statements, which he claims express the Commonwealth’s personal

opinion.     First, the prosecutor commented on the negative reaction he

witnessed when the victim saw Appellant unexpectedly while she was

testifying via closed circuit television. N.T., 6/9/2015, at 114-16. Defense

counsel objected.     In response, the trial court advised counsel not to

interrupt.    “You can make objections later.     Overruled.”   Id. 115.    The

second comment followed when the prosecutor stated, “I just can’t wrap my

mind around it,” referring to Appellant’s version of events. Id. at 120. At

the end of the Commonwealth’s closing, Appellant’s counsel requested a

mistrial based upon the aforementioned statements.        Id. at 138-42.     On

appeal, Appellant contends these statements “would serve to form a fixed

bias in the minds of the jury so as to taint the fairness and impartiality of

the verdict.” Appellant’s Brief at 35.




instruct the jury with a charge specifically addressing the implications of a
delay in making a complaint. The trial judge properly reasoned that the
facts of this case did not necessitate the specific instruction on delay. The
trial judge did instruct the jury thoroughly upon the general subject of
credibility in accordance with the suggested instruction for witness
credibility. … We believe that, under the fact of this case, this was sufficient
to permit the jury to ascertain the truthfulness of the testimony offered by
the minor complaining witness as well as of others who testified in this
matter.”)
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      “The decision to declare a mistrial is within the sound discretion of the

court and will not be reversed absent a ‘flagrant abuse of discretion.’”

Commonwealth v. Manley, 985 A.2d 256, 266–67 (Pa. Super. 2009)

(citations omitted). As stated supra “[c]omments by a prosecutor constitute

reversible error only where their unavoidable effect is to prejudice the jury,

forming in their minds a fixed bias and hostility toward the defendant such

that they could not weigh the evidence objectively and render a fair verdict.”

Commonwealth v. Miller, 746 A.2d at 601–02.

      Thus, where the prosecutor breaches his duty of fairness and
      acts in a manner that deprives the defendant of a fair trial, a
      mistrial should be granted. We note, however, that the
      misconduct must cause prejudice to the defendant, and if the
      prejudice to the defendant is eliminated by subsequent curative
      instructions from the court, then no mistrial need be granted.

Commonwealth v. Ashmore, 403 A.2d 603, 604–05 (Pa. Super. 1979)

(citations omitted).

            The trial court offered the following analysis.

            [The trial court] determined that both the Commonwealth
      and [Appellant] had made some personal comments in their
      closing[s] but that they did not overly prejudice the jury and
      could be cured with cautionary instructions, which we gave to
      the jury both before and after closing arguments.[6] A further
      examination of the transcript and exact language used by the
      prosecutor and complained of by [Appellant] does not reveal

6
   Following summation, the trial court re-issued the following cautionary
instruction: “[R]emember that the attorneys’ beliefs aren’t evidence and
they’re not even really arguments so it’s up to you to assess the facts, find
the facts based on all the evidence that was presented regardless of whether
it was mentioned by the attorneys or not and regardless what either of their
beliefs are, and then you apply those facts to the law as I instruct you on
and that’s how you will reach a verdict in this case.” N.T., 6/9/2015, at 146.
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       improper personal comments which create a deep and uncurable
       prejudice against [Appellant]. Rather it seems to be more along
       the lines of appropriate oratorical flair. The words used by the
       prosecutor were not improper, or, if they were, they did not
       create a fixed bias and hostility toward [Appellant], especially
       since appropriate instructions were given.

Trial Court Opinion, 11/24/2015, at 22-23 (citations omitted).

       We agree with the trial court’s finding that the statements were not of

such a nature as to form a fixed bias or hostility towards Appellant.           In

reviewing the record, we found defense counsel made similar comments

when referring to evidence in the case such as stating “[a]gain, things that

don’t make sense.” N.T., 6/9/2015, at 94.       “It is well-established that the

prosecution is permitted to respond to arguments made by the defense.”

Commonwealth v. Thomas, 54 A.3d 332, 340 (Pa. 2012).

       Furthermore, in assessing the totality of the evidence presented, we

find the Commonwealth’s comments concerning what he had seen and what

the jury may or may not have seen as they watched M.F. testify via closed

circuit television were cured by the trial court’s cautionary instructions that

the jury was only to consider the facts based on the evidence presented.

“The   jury   is   presumed   to   have   followed   the   court’s   instructions.”

Commonwealth v. Flor, 998 A.2d 606, 632 (Pa. 2010).

       Appellant’s final issue challenges the discretionary aspects of his

sentence.

       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

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     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.

                                    ***

           When imposing sentence, a court is required to consider
     the particular circumstances of the offense and the character of
     the defendant. In considering these factors, the court should
     refer to the defendant’s prior criminal record, age, personal
     characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

     An appellant is not entitled to the review of challenges to the
     discretionary aspects of a sentence as of right. Rather, an
     appellant challenging the discretionary aspects of his sentence
     must invoke this Court’s jurisdiction. We determine whether the
     appellant has invoked our jurisdiction by considering the
     following four factors:

           (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, Pa.R.A.P. 2119(f); and (4) whether
           there is a substantial question that the sentence
           appealed from is not appropriate under the
           Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

     Here, Appellant timely filed a notice of appeal.   We do not have a

2119(f) statement before us, but, as the Commonwealth has not objected to



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its absence, waiver does not apply on that basis.            Commonwealth. v.

Brougher, 978 A.2d 373, 375 (Pa. Super. 2009).

         Thus, we must consider whether Appellant preserved the issues raised

in his brief by raising them in a post-sentence motion. Those two issues are

that the trial court (1) “failed to consider the effects of Megan’s Law

registration in crafting a sentence;” and (2) “considered as a sentencing

factor    that   the   criminal   act   evidenced   [Appellant’s]    threat   to   the

community,” as such is true in all cases of sex crimes against minors.

Appellant’s Brief at 9-10.

         Appellant did not raise either of these claims at sentencing or in his

motion for reconsideration of sentence.           Accordingly, the issues are not

preserved for our review. Commonwealth v. Tejada, 107 A.3d 788, 799

(Pa. Super. 2015) (holding discretionary aspects claims not raised at

sentencing or in a post-sentence motion are not subject to our review, even

if raised in 1925(b) statement and addressed in the trial court’s 1925(a)

opinion).

          Accordingly, Appellant’s final issue warrants no relief.

         Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/21/2016




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