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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
SAMUEL S. WALLACE,                       :          No. 679 EDA 2014
                                         :
                        Appellant        :


         Appeal from the Judgment of Sentence, January 17, 2014,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0011143-2012


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 20, 2015

      Appellant appeals from the judgment of sentence imposed following

his conviction for various sex offenses committed against the minor daughter

of his girlfriend. Finding no merit in the issues raised on appeal, we affirm.

      The trial court accurately summarized the factual background:

                  In October 2011, Defendant and [H.C.] began
            a dating relationship. In February 2012, Defendant
            moved into [H.C.]’s house where [H.C.]’s daughters,
            K.C. and [M.], also resided. N.T. 09/19/2013 at
            194-95. In June 2012, K.C., who was then 14 years
            old, attended a cookout at her aunt’s house in
            Philadelphia in celebration of her eighth-grade
            graduation. At one point during the cookout, K.C.
            was upstairs watching television. Defendant came
            into the room where K.C. was watching television
            and started to tickle her all over her body. Although
            Defendant’s tickling made her uncomfortable, K.C.
            did not tell anyone about the incident because she
            believed her mother was happy to be dating
            Defendant. Id. at 57-59, 158-60.


* Former Justice specially assigned to the Superior Court.
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                A few days later, K.C. was alone with her sister
          in her     mother’s apartment in        Philadelphia.
          Defendant started to touch K.C., including kissing
          and blowing on her neck. K.C. went into a bathroom
          to get away from Defendant and closed the
          bathroom door. Defendant attempted to open the
          bathroom door, but he ultimately walked away. K.C.
          did not say anything to her mother about this
          incident because she was scared. Id. at 59-61, 160-
          61.

                On June 17, 2012, K.C. moved into her
          grandmother’s house in Philadelphia with her mother
          and her sister. Around 9:00pm or 10:00pm that
          night, K.C. was downstairs watching a movie when
          Defendant came into the room and started to touch
          her all over her body, including her neck and chest.
          As he was touching her, Defendant was telling K.C.
          that she was beautiful. Defendant then took off his
          pants and put his penis in between her thighs. As he
          was behind her, he started to go back and forth with
          his penis between her thighs. Shortly thereafter,
          Defendant ejaculated into his hand and then ran into
          the kitchen. K.C. did not say anything to her mother
          about this incident because she was scared. Id. at
          61-66, 142-52, 170-72.

                On June 21, 2012, K.C. was sleeping in her
          grandmother’s room with her sister when Defendant
          woke her up around 9:00am and told her to come to
          the middle bedroom. K.C.’s mother was not home at
          the time. When K.C. entered the middle bedroom,
          Defendant removed his pants and laid on top of her.
          K.C. was wearing a long t-shirt and underwear.
          Defendant removed K.C.’s underwear, pushed down
          on her shoulders with his hands, put her legs up in
          the air and started thrusting with his penis back and
          forth into her vagina. Defendant stopped thrusting
          when he had ejaculated. K.C. did not consent to
          Defendant inserting his penis into her vagina. Later
          that same day, Defendant told K.C. that “we
          shouldn’t be doing this anymore.” K.C. did not say
          anything to her mother or grandmother about this


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            incident because she was scared that Defendant
            would hurt her or her sister. Id. at 66-72, 167-69,
            172-73.

Trial court opinion, 11/3/14 at 1-3.

      On September 19, 2013, a jury found appellant guilty of unlawful

contact with minor, statutory sexual assault, corruption of minors, and

indecent assault of a person under 16.1 On January 17, 2014, appellant was

sentenced to an aggregate 7 to 20 years’ imprisonment, which sentence was

in the aggravated range of the Sentencing Guidelines.     This timely appeal

followed.

      Appellant raises two issues on appeal:

            I.    Did the Honorable Court err when it overruled
                  the Defendant’s well placed objection during
                  the closing argument of the prosecutor, where
                  the prosecutor, by the totality of her words,
                  vouched for the truth of the complaining
                  witness?

            II.   Is the Defendant entitled to a remand to the
                  Sentencing Court for a new sentencing hearing
                  where the Sentencing Court abused its
                  discretion and imposed a sentence that was
                  manifestly excessive?

Appellant’s brief at 3. We will address these matters in the order presented.

            Our standard of review for a claim of prosecutorial
            misconduct is limited to whether the trial court
            abused its discretion. In considering this claim, our
            attention is focused on whether the defendant was
            deprived of a fair trial, not a perfect one. Not every
            inappropriate remark by a prosecutor constitutes

1
  18 Pa.C.S.A. §§ 6318(a)(1), 3122.1(b), 6301(a)(1)(i), and 3126(a)(8),
respectively.


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            reversible error. A prosecutor’s statements to a jury
            do not occur in a vacuum, and we must view them in
            context. Even if the prosecutor’s arguments are
            improper, they generally will not form the basis for a
            new trial unless the comments unavoidably
            prejudiced the jury and prevented a true verdict.

Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa.Super. 2013), appeal

denied, 80 A.3d 777 (Pa. 2013), quoting Commonwealth v. Lewis, 39

A.3d 341, 352 (Pa.Super. 2012), appeal denied, 51 A.3d 838 (Pa. 2012)

(internal quotes and citations omitted).

       The nature of the prosecutorial misconduct alleged here is that the

prosecutor improperly personally vouched for the credibility of the victim,

K.C.

                   Although a prosecutor may comment on the
            credibility of the defendant or other witnesses, it is
            improper for a prosecutor to express a personal
            belief as to their credibility. Commonwealth v.
            Chmiel, 585 Pa. 547, 889 A.2d 501, 545 (2005). A
            prosecutor may make fair comment on the admitted
            evidence and may provide fair rebuttal to defense
            arguments.      Commonwealth v. Spotz, 616 Pa.
            164,     47     A.3d   63,    97   (2012)   (quoting
            Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
            244, 288 (2011) (additional citations omitted)).
            Even an otherwise improper comment may be
            appropriate if it is in fair response to defense
            counsel’s remarks.       Id.    Any challenge to a
            prosecutor’s comment must be evaluated in the
            context in which the comment was made. Id. The
            effect of the prosecutor’s remarks must be evaluated
            in the context and atmosphere of the entire trial.
            Commonwealth v. Cox, 556 Pa. 368, 728 A.2d
            923, 932 (1999) (citing Commonwealth v.
            Stoltzfus, 462 Pa. 43, 337 A.2d 873, 882 (1975)).




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                    Moreover, not every unwise, intemperate, or
             improper remark made by a prosecutor mandates
             the grant of a new trial. Commonwealth v. Cox,
             603 Pa. 223, 983 A.2d 666, 687 (2009). “Reversible
             error occurs only when the unavoidable effect of the
             challenged comments would 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.” Id. To
             constitute a due process violation, the prosecutorial
             misconduct must be of sufficient significance to
             result in the denial of the defendant’s right to a fair
             trial. Id. at 685 (quoting Greer v. Miller, 483 U.S.
             756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987)).
             The touchstone is the fairness of the trial, not the
             culpability of the prosecutor. Id.

Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013), cert. denied,

Sanchez v. Pennsylvania, 135 S.Ct. 154 (2014).

        Appellant objects to the following comment by the prosecutor to the

jury:

             I’m going to ask you to come back out and use your
             voices in a way that [K.C.] wasn’t able to. I’m going
             to ask you to come back when you render your
             verdict, tell [K.C.] you don’t have to write in your
             journal anymore about Mr. Sam. He’s not going to
             hurt you anymore. We believe you.

Notes of testimony, 9/18/13 at 169-170.

        We find appellant’s argument to be specious. Frankly, the prosecutor’s

statement in no way expresses her personal belief as to the veracity of K.C.

We see no possible interpretation of the quoted language where it can be

viewed as the prosecutor’s personal belief. Rather, the prosecutor is merely

exhorting the jury to believe K.C. There is no error here whatsoever.



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      Appellant next argues that his sentence is excessive.       Such an issue

goes to the discretionary aspects of appellant’s sentence.

            Appellant challenges the discretionary aspects of
            sentencing for which there is no automatic right to
            appeal. This appeal is, therefore, more appropriately
            considered a petition for allowance of appeal. Two
            requirements must be met before a challenge to the
            judgment of sentence will be heard on the merits.
            First, the appellant must set forth in his [or her] brief
            a concise statement of matters relied upon for
            allowance of appeal with respect to the discretionary
            aspects of his [or her] sentence. Pa.R.A.P. 2119(f).
            Second, he or she must show that there is a
            substantial question that the sentence imposed is not
            appropriate      under    the     Sentencing      Code.
            42 Pa.C.S.A. § 9781(b)[.]

Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa.Super. 2014),

quoting Commonwealth v. Marts, 889 A.2d 608, 611-612 (Pa.Super.

2005) (footnote and citations omitted).

      Instantly, appellant’s brief does contain a concise statement of reasons

for allowing an appeal of the discretionary aspects of his sentence. Therein

appellant asserts that his sentence was manifestly excessive in that the

court did not adequately consider his mitigating circumstances, and because

the court did not give a contemporaneous written statement of its reasons

for imposing the sentence.

      We note that our cases have held that a substantial question is raised

where an assertion is made that a sentence is excessive because it is in the

aggravated range of the sentencing guidelines and the court failed to

adequately consider mitigating circumstances. Commonwealth v. Moury,


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992 A.2d 162, 171 (Pa.Super. 2010). Although appellant’s statement fails to

link his aggravated range sentence with the failure to consider mitigating

circumstances, we will give appellant the benefit of the doubt and find that a

substantial question has been presented on this basis.

      The trial court announced at sentencing that it had a pre-sentence

report. (Notes of testimony, 1/17/14 at 4.) As such, the court is presumed

to have considered mitigating factors:

            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 statutory factors. A pre-sentence
            report constitutes the record and speaks for itself.
            In order to dispel any lingering doubt as to our
            intention of engaging in an effort of legal purification,
            we state clearly that sentencers are under no
            compulsion to employ checklists or any extended or
            systematic definitions of their punishment procedure.
            Having been fully informed by the pre-sentence
            report, the sentencing court’s discretion should not
            be disturbed. This is particularly true, we repeat, in
            those circumstances where it can be demonstrated
            that the judge had any degree of awareness of the
            sentencing considerations, and there we will
            presume also that the weighing process took place in
            a meaningful fashion. It would be foolish, indeed, to
            take the position that if a court is in possession of
            the facts, it will fail to apply them to the case at
            hand.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Thus, there is no

merit to appellant’s assertion that the court did not consider his mitigating

circumstances in imposing an aggravated range sentence.




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      Finally,   as   to    the    trial   court’s    alleged   failure   to   provide   a

contemporaneous written statement of reasons for its sentence, this does

not go to whether a substantial question exists, but rather to the viability of

the sentence itself.        This court has held that where a court imposes a

sentence   outside     of    the   Sentencing        Guidelines,   it   must   provide   a

contemporaneous written statement of its reasons for the deviation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-761 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014). However, this court has also held

that this requirement is satisfied when the court states its reasons for the

sentence on the record and in the defendant’s presence. Id. We find that

the court adequately stated the reasons for its sentence in the presence of

appellant at sentencing:

                  THE COURT:         All right.     Thank you.
            Mr. Wallace, in this matter, I’ve already stated the
            guidelines, and let me review the following from the
            presentence report as well as the other documents,
            which are part of the sentencing record. Some of
            these are mitigating factors, some are aggravating
            factors.

                  First, there’s no doubt that the defendant has
            some prior history of employment as well as the
            family support. Those are both mitigating factors.
            There are potentially, other mitigating factors,
            mental health issues, drugs and alcohol treatment.

                  However, on the other hand, there are
            aggravating factors that would be in my view, the
            extensive impact that these crimes have had on the
            victim the prior efforts of rehabilitation that
            ultimately, were not successful ending in revocation



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           of probations that you previously went through the
           juvenile system. That was unsuccessful.

                  Due to the following, the convictions that he
           had as an adult -- and let me state for the record,
           I’m not considering as part of the sentence the prior
           arrest for rape, which was ultimately found to be not
           guilty by a jury of his peers.

                 And considering the protection of the public,
           the nature and gravity of this offense as it relates to
           the community and to the victim and rehabilitative
           needs of the defendant, considering the guidelines of
           the presentence report, the other documents which
           were admitted, counsel’s arguments, statements of
           support from the defendant’s family and statements
           of impact as it relates to the victim’s family, my
           observations of the defendant both during trial and
           the sentencing hearing, it is my intention to sentence
           the defendant . . .

Notes of testimony, 1/17/14 at 30-31.

     Plainly, the trial court provided adequate reasons for appellant’s

aggravated range sentence. We find no merit here.

     Accordingly, having found no merit in the issues raised on appeal, we

will affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/20/2015




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