J-A23022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                        Appellee

                   v.

ALFONZO MICHEL DEIULIIS

                        Appellant              No. 1290 WDA 2014


         Appeal from the Judgment of Sentence June 24, 2014
           In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0014043-2013


                                    *****

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                        Appellee

                   v.

ALFONZO DEIULIIS

                        Appellant              No. 1291 WDA 2014


         Appeal from the Judgment of Sentence June 24, 2014
           In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0014132-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                  FILED DECEMBER 08, 2015
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        Alfonzo Michel DeIuliis appeals from his judgments of sentence,1 entered

in the Court of Common Pleas of Allegheny County, after the trial court denied

his post-sentence motions.2 Upon careful review, we affirm.

        The instant case stems from incidents that occurred in February 2013,

July 2013, and August 2013 at an LA Fitness (“the gym”) in McCandless

Township.     DeIuliis was charged at docket number 0014043-2013 (Case 1)

with two counts of unlawful contact with a minor,3 corruption of minors,4

indecent assault,5 indecent exposure,6 open lewdness7 and harassment.8

Those charges involved a minor victim, D.L. DeIuliis was also charged in Case

1 with indecent exposure, open lewdness, and harassment with respect to


____________________________________________


1
  By order dated October 6, 2014, this Court consolidated DeIuliis’s appeals at
1290 WDA 2014 and 1291 WDA 2014 (which consisted of two separate trial
court docket numbers with separate judgments of sentence entered below).
See Pa.R.A.P. 513.
2
  See Commonwealth v. Chamberlain, 658 A.2d 395 (Pa. Super. 1995)
(order denying post-sentence motion acts to finalize judgment of sentence;
thus, appeal is taken from judgment of sentence, not order denying post-
sentence motion).
3
    18 Pa.C.S. § 6318(a)(1).
4
    18 Pa.C.S. § 6301(a)(1)(i).
5
    18 Pa.C.S. § 3126(a)(1).
6
    18 Pa.C.S. § 3127(a).
7
    18 Pa.C.S. § 5901.
8
    18 Pa.C.S. § 2709(a)(4).


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victim E.H.    DeIuliis was charged at docket number 0014132-2013 (Case 2)

with indecent exposure and open lewdness. Case 2 involved victim E.W.

       At trial, DeIuliis presented an alibi defense claiming that he was not at

the LA Fitness at the time the victims alleged he committed the instant

offenses. The defense presented alibi witness, Raffaella Greco, who testified

that DeIuliis was at her mother’s house on August 12, 2013, from the late

afternoon (4:30PM/5:00PM) until approximately 9:30 PM.           To lend further

support to his alibi defense, DeIuliis testified on his own behalf and submitted

LA Fitness records indicating that he was not in the gym on the alleged dates

of the offenses. A portion of his testimony focused on his being on vacation in

Florida from July 19-July 30, 2013; this testimony was offered to rebut E.W.’s

claim that he was the victim of DeIuliis’s actions during that time period.

       After a three-day joint jury trial held in May 2014, DeIuliis was convicted

of seven of the ten crimes charged in Case 19 and adjudicated guilty of both

charged offenses in Case 2. On June 24, 2014, DeIuliis received an aggregate

sentence on both cases of 42 days’ incarceration (with credit for time served),

with six months of house arrest, and seven years of probation. DeIuliis was

also classified as a “Tier 2” offender10 under this Commonwealth’s Sexual

____________________________________________


9
   The court dismissed counts 4 (indecent assault as to D.L.), 8 (indecent
exposure as to E.H.) and 9 (open lewdness as to E.H.). With regard to counts
5 (indecent exposure) and 6 (open lewdness), DeIuliis was found guilty, but no
further penalty was imposed.
10
   As a “Tier 2” offender, DeIuliis is required to register under SORNA for 25
years. See 42 Pa.C.S. § 9799.15(a)(2).



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Offender Registration and Notification Act (SORNA).          See 42 Pa.C.S. §§

9799.10-9799.41.

      DeIuliis filed timely post-sentence motions in both cases that were

denied; this appeal followed. On appeal, DeIuliis raises the following issues for

our review:

      (1)     Whether the evidence was insufficient to support Mr.
              De[I]uliis's convictions in case 2 because the Commonwealth
              failed to prove the offenses charged occurred on the dates
              contained in the information or as testified to at trial?

      (2)     Whether the evidence was insufficient to support Mr.
              De[I]uliis's conviction at count 1 of case 1 where the
              evidence did not reveal he contacted a minor for the purpose
              of engaging in a prohibited activity enumerated in 18 Pa.C.S.
              § 6318?

      (3)     Whether the evidence was insufficient to support Mr.
              De[I]uliis's conviction at count 2 of case 1 where the
              evidence did not reveal he contacted a minor for the purpose
              of engaging in open lewdness?

      (4)     Whether the evidence was insufficient to support Mr.
              De[I]uliis's conviction at count 3 of case 1 where the
              Commonwealth did not prove corruption of minors as actually
              charged?

      (5)     Whether the evidence was insufficient to support Mr.
              De[I]uliis's conviction at count 7 of case 1 where the
              Commonwealth failed to prove intent?

      (6)     Whether the evidence was insufficient to support Mr.
              De[I]uliis's conviction at count 10 of case 1 where the
              Commonwealth failed to prove intent?

      (7)     Whether, in these alibi defense cases, the trial court erred in
              instructing the jury that the date of an offense is not an
              essential element of the crime?

      (8)     Whether the trial court erred in denying Mr. De[I]uliis's
              weight of the evidence claim as to case 2 where the trial
              court failed to apply the law and acted manifestly
              unreasonable?
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       (9)    Whether the trial court erred in denying Mr. De[I]uliis's
              weight of the evidence claim as to counts 1, 2, 3, 5, 6, and 7
              of case 1 where the trial court failed to apply the law and
              acted manifestly unreasonable?

       (10) Whether the trial court erred in sustaining the
            Commonwealth's objection to mistaken identity evidence and
            precluding the jury from considering same, which was
            relevant and not speculative?

Appellant’s Brief, at 10-11.

       After reviewing the parties’ briefs, relevant case law and the certified

record on appeal, we conclude that the Honorable Donna Jo McDaniel

adequately addresses DeIuliis’s sufficiency and weight of the evidence claims

on appeal. We, therefore, rely upon Judge McDaniel’s decision, see Trial Court

Opinion, 9/18/14, at 2-9, in affirming those issues.11

       DeIuliis also claims that the trial court improperly instructed the jury12

that the dates on which several counts in Cases 1 and 2 occurred were not

essential elements of the crimes for which he was charged and for which he

advanced an alibi defense.           DeIuliis contends that the instruction was an




____________________________________________


11
   We note that the trial court incorrectly states that DeIuliis propositioned E.H.
for oral sex. Trial Court Opinion, 1/13/15, at 6. In fact, DeIuliis propositioned
just D.L. for oral sex. However, DeIuliis did ask E.H. if he “would like to jack
off with [him] sometime” both in the gym sauna and in the gym parking lot.
Therefore, his conduct does constitute harassment as defined in section 2709.
12
   We recognize that defense counsel properly objected to the given instruction
at the end of the Commonwealth’s closing. See N.T. Jury Trial, 5/14/14, at
261. At that time the court noted counsel’s objection to the charge. Id.
Therefore, we find that this issue is properly preserved on appeal. See
Pa.R.A.P. 302(b) (specific exception to jury charge required to preserve issue
for appeal).


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“inaccurate statement of the law” and, accordingly, amounted to an abuse of

discretion because it deprived him of the ability to assert his alibi defense.

       A trial court has broad discretion in how its jury instructions are phrased.

Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa. Super. 2007). It may

choose its own wording as long as the law is clearly, adequately and accurately

presented. Id. In assessing a challenge to jury instructions, the instruction

must be viewed as a whole. Commonwealth v. Jones, 858 A.2d 1198, 1201

(Pa. Super. 2004). The general effect of the charge controls, and courts will

not scrutinize isolated excerpts out of context. Id. Reversible error occurs only

where the court provides an inaccurate statement of the law.              Kerrigan,

supra at 198.

       Instantly, the trial court gave the jury the following alibi instruction:

       In this case the defendant has presented evidence of an alibi,
       that is, that he was not present at the scene but was rather
       at another location at the precise time the crime took place.
       You should consider this evidence along with all of the other
       evidence in the case, in determining whether the Commonwealth
       has met its burden of proving guilt beyond a reasonable doubt that
       a crime was committed, and that the Defendant committed it.13

       The defendant’s evidence that he was not present either by itself or
       that, together with other evidence, may be sufficient to raise a
       reasonable doubt of the defendant’s guilt, and you must find him
       not guilty.

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13
    An alibi is “a defense that places the defendant at the relevant time in a
different place than the scene involved and so removed therefrom as to render
it impossible for him to be the guilty party.” Commonwealth v. Rainey, 928
A.2d 215, 234 (Pa. 2007) (internal citations omitted).



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                                               *     *   *

       You are not bound by the dates alleged in the information.
       It is not an essential element of any of the crimes charged. You
       may find the defendant guilty if you are satisfied beyond a
       reasonable doubt that he committed the crime charged in and
       around, on or about the date charged in the information,
       even though you are not satisfied that he committed it on
       the particular date alleged in the information.14

N.T. Jury Trial, 5/14/14, at 272, 274 (emphasis added).

       To support his claim that the court’s instruction was erroneous, DeIuliis

relies upon Commonwealth v. Boyer, 264 A.2d 173 (Pa. Super. 1970). In

Boyer, the defendant was charged with, among other crimes, larceny and

burglary. In its criminal complaint, the Commonwealth stated that “[t]he date

when the accused [committed] the offense was on or about December 28,

1967 and the date of the week was Thursday (insert only if day of week is

essential element of offense).”           Id. at 174 (emphasis in original).   The

indictment alleged the crime to have occurred “on or about December 28,

1967.”     Id.     The defendant offered an alibi defense at trial, specifically

targeting the dates involved in the criminal complaint and information.

       At trial, written statements and testimony by co-defendants, as well as

testimony from the investigating officer, revealed that the crimes occurred on

the night of December 27, 1967, not on December 28.                Id. at 174-75.

Therefore, the evidence presented at trial made the defendant’s alibi for the
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14
   The court’s instruction is taken verbatim from Pennsylvania’s Standard
Criminal Jury Instruction 3.19 (relating to date of crime; proof of date alleged
not essential). See Pa. SSJU (Crim) 3.19.


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night alleged in the complaint and information “completely ineffectual.” Id. at

175. As a result, our Court reversed defendant’s judgment of sentence for the

larceny and burglary charges and ordered the indictment quashed. Id. at 278.

The Court also focused on the fact that because the criminal complaint

expressly made the day of the crime an essential element of the offense, id. at

175, it would be fundamentally unfair to uphold the convictions where the

defendant relied on that specific date in preparing and presenting his alibi

defense. Id.

     In coming to its decision, the Boyer Court noted that, generally, the

Commonwealth “is not bound by the date laid in the bill of indictment but can

show any date within the statutory period and prior to the finding of the

indictment, except in cases where time is of the essence of the offense.” Id.

at 175 (emphasis in original). The Court also concluded that “the existence of

an alibi defense does make the time alleged material to the defendant’s case.”

Id. at 176 (emphasis added).

     Instantly, the Commonwealth’s bill of information in Case 1 charged

DeIuliis with the relevant crimes committed against E.H. and D.L. as having

occurred “on (or about) Monday, the 12th day of August, 2013.” Moreover, in

its criminal complaint, the Commonwealth lists the alleged acts against E.H. as

having occurred “on February 24, 2013” and that the alleged acts against D.L.




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J-A23022-15


occurred “on August 12, around 2130 hours.”15           Similarly, in its bill of

information in Case 2, the Commonwealth alleged the acts against victim E.W.

occurred “on or about Monday, the 1 st day of July, 2013.”        In its criminal

complaint, the Commonwealth alleged that the act occurred “on or about

07/01/2013.”16

       Viewing the jury instruction as a whole, we note that the court’s alibi

instruction is a correct statement of the law. Here, DeIuliis presented evidence

to show that he was not present at the gym, but was rather at another location

at the precise time the crime took place. Therefore, although the time when

the crime occurred was relevant and central to DeIuliis’s alibi defense, Boyer,

supra at 176, it was not an essential element of the charged crimes.

Generally, time is not an essential element of the offenses charged unless the

Commonwealth expressly states it is or it is specifically in the charged crime.

Levy, supra (citing Sunday laws as specific example of when time an element

of crime charged).       Here, the Commonwealth did not so expressly state, cf.


____________________________________________


15
   On August 29, 2013 at approximately 6:30 PM, D.L. identified DeIuiliis to
gym management. Gym management then told DeIuiliis that he was no longer
allowed on gym property and that his membership would be terminated. After
taking a statement from D.L.’s mother about the incident, police investigated
the situation and were able to tie it to E.H.’s prior complaint regarding similar
behavior at the same gym.
16
    More specifically, the affidavit of probable cause indicates that the incident
occurred “[i]n July of 2013 [while E.W.] was at the gym in the evening,
sometime around 9:30 p[.]m[.]” The affidavit also states that “about 2 weeks
later [E.W.] again was at the gym” and had another encounter with DeIuliis.


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Boyer, nor did the charged crimes include time as an essential element of the

offense.

       Moreover, DeIuliis was on notice of the time frame (“on or around”)

when the victims allege the crimes occurred.            See Commonwealth v. Levy,

23 A.2d 97, 99 (Pa. Super. 1941) (“where a particular date or day of the week

is not of the essence of the offense, the date laid in the indictment is not

controlling, but some other reasonably indefinite date must be established with

sufficient particularity to advise the jury and the defendant of the time the

Commonwealth alleges the offense was actually committed, and to enable the

defendant to know what dates and periods of time he must cover if his defense

is an alibi.”).    Finally, DeIuliis did present alibi evidence, specifically gym

attendance records, for the “relevant time periods” alleged in the criminal

information and complaint.17         Therefore, he has not shown how the court’s

instruction prejudiced his alibi defense. Cf. Boyer, supra.

       Accordingly, we cannot find that the court’s instruction amounted to

reversible error. Essentially, the jury chose to believe the victims’ testimony

and disbelieve DeIuiliis’ alibi.        It was within the province of the jury, as

factfinder, to assess the witnesses’ credibility. Commonwealth v. Pirela, 580

A.2d 848, 852 (Pa. Super. 1990).           We will not disturb its findings where they

are supported in the record.


____________________________________________


17
  The fact that DeIuliis chose to present alibi evidence for a specific time was
up to him. It does not make the jury instruction erroneous.


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      Finally, DeIuliis claims that the trial court improperly sustained the

Commonwealth's objection to mistaken identity evidence, which effectively

precluded the jury from considering relevant, non-speculative evidence.        He

claims that the trial court’s ruling constituted reversible error.

      We may reverse rulings on the admissibility of evidence only if we find

that the trial court abused its discretion. Commonwealth v. Lockcuff, 813

A.2d 857, 860 (Pa. Super. 2002).            Moreover, all relevant evidence is

admissible. Pa.R.E. 402. Evidence is considered relevant if “it logically tends

to establish a material fact in the case, tends to make a fact at issue more or

less probable, or supports a reasonable inference or presumption regarding the

existence of a material fact.” Pa.R.E. 401.

      Instantly, mistaken identity was not at issue.     Therefore, because it was

not relevant to a fact in the case, the court properly deemed DeIuliis’s self-

serving answer to such a line of questioning inadmissible. There was no abuse

of discretion. Lockcuff, supra.

      Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




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