J-S44023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    IFEANY J. OKORAFOR                         :
                                               :
                       Appellant               :   No. 2644 EDA 2016

             Appeal from the Judgment of Sentence April 10, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014915-2012

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 24, 2018

        Ifeany J. Okorafor (Appellant) appeals from the judgment of sentence

imposed after a jury found him guilty of indecent assault of a child less than

13 years of age.1 We affirm.

        The trial court summarized the testimony of the victim and her mother

as follows:

           The victim in this case, J.O., is [Appellant]’s daughter. For
        approximately two years beginning when J.O. was seven years
        old, [Appellant] repeatedly sexually abused her. At the time of
        the abuse, J.O. lived with her mother and three brothers in a two-
        bedroom apartment in Philadelphia. Although her mother and
        [Appellant] had separated in 2009 following a volatile relationship,
        [Appellant] would still occasionally spend the night at the
        apartment and supervise the children while J.O.’s mother was at
        work. N.T., 8/6/14, [at] 114, 117-18.

          [Appellant] molested his daughter approximately ten times.
        The assaults would happen when [J.O.’s] mother was at work and
____________________________________________


1   18 Pa.C.S.A. § 3126(a)(7).
J-S44023-18


      her brothers were sleeping. [Appellant] would lead J.O. into her
      mother’s bedroom, take off her pants, and touch her vagina with
      his hands and/or his mouth. He also, on repeated occasions, led
      J.O. into the bathroom where he would take his penis out of his
      boxers, rub soap on it, and put the victim’s hand on his testicles
      until he ejaculated. Id. at 66-67.

         J.O. first told her mother about the abuse when she was in third
      grade. Her mother confronted [Appellant] with J.O.’s accusations,
      but he denied assaulting her. Her mother did not call the police
      because she was not sure whether it had happened. The assaults
      continued, and [Appellant] asked J.O. – as he was touching her
      vagina – why she told on him. Id. at 74, 120-121.

         The final incident happened in September[] 2012, when J.O.
      was nine years old. [Appellant] woke J.O. up after her mother
      had left for work. He led her by the hand into her mother’s
      bedroom and directed her onto her back on her mother’s bed.
      [Appellant] took off J.O.’s pajama shorts and underwear and
      touched her vagina with his hands. He also put his mouth on her
      vagina. [Appellant] then led her to the bathroom, where she sat
      on the edge of the tub. [Appellant] stood at the sink with his
      pants down and his penis protruding through his boxers. He took
      a bar of soap and rubbed it on his penis. He then took J.O.’s hand
      and put it up the leg of his boxers to his testicles. J.O. saw
      [Appellant] ejaculate. [Appellant] led J.O. back to her mother’s
      room and onto the bed. He covered her face with the blanket. As
      she lay there with her pants down and her legs open, J.O. heard
      the click of a camera two times. After [Appellant] left the
      apartment, J.O. called her mother crying. Her mother called the
      police when she came home from work. Id. at 51-55, 57-60, 62-
      64, 76, 125-26.

Trial Court Opinion, 8/8/17, at 1-2.

      Appellant was charged with involuntary deviate sexual intercourse

(IDSI), unlawful contact with a minor, corruption of a minor, and indecent

assault of a child less than 13 years of age. On August 11, 2014, a jury found

Appellant guilty of indecent assault of a child less than 13 years of age and

acquitted him of all remaining charges.

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      Following his conviction, the trial court deferred sentencing for purposes

of a pre-sentence investigation and evaluation by the Sexual Offenders

Assessment Board. Ultimately, after a hearing, the trial court determined that

Appellant was not a sexually violent predator. On April 10, 2015, the trial

court sentenced Appellant to 11½ to 23 months of incarceration with

immediate parole to house arrest, followed by three years of probation.

Appellant did not file any post-sentence motions or a direct appeal.

      On October 1, 2015, Appellant filed a petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. On March 3, 2016,

Appellant filed an amended PCRA petition seeking reinstatement of his right

to file post-sentence motions and a direct appeal nunc pro tunc. On July 13,

2016, following the filing of a second amended petition and a hearing, the trial

court granted Appellant’s petition and reinstated his right to file a direct appeal

nunc pro tunc. On July 25, 2016, Appellant filed a motion seeking permission

to raise an ineffective assistance of counsel claim on direct appeal, and

asserted that his trial counsel was ineffective for failing to advise him of the

immigration consequences of his conviction under Padilla v. Kentucky, 559

U.S. 356 (2010), on direct appeal. On August 10, 2016, the trial court denied

his motion seeking to raise his ineffectiveness claim on direct appeal.

Appellant timely filed a direct appeal from his judgment of sentence and the

order denying his request to raise an ineffective assistance of counsel claim

on direct appeal.


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     On appeal, Appellant presents ten issues for review:

     1.    Did the [t]rial [c]ourt err and abuse its discretion in granting
     the Commonwealth’s [p]rior [b]ad [a]cts motion, where the
     Commonwealth did not establish that it provided reasonable
     notice and where the evidence had little, if any, probative value
     but was significantly prejudicial?

     2.    Did the trial court err and abuse its discretion in allowing
     amendment of the bills of information on the eve of trial, where
     the amendment added an additional two years of liability, where
     the Commonwealth failed to establish that [Appellant] was fully
     apprised of the factual scenario supporting the charges (an
     especially egregious omission where [Appellant] spared the
     complainant the need to testify at a preliminary hearing), where
     two years’ worth of additional facts necessitated a significant
     change in defense strategy, and where the Commonwealth did not
     establish that it had provided ample notice and [Appellant] was
     prejudiced thereby?

     3.    Was the evidence insufficient to support [Appellant]’s
     conviction, where the Commonwealth did not establish beyond a
     reasonable doubt the alleged purpose of the alleged acts, and
     where the complainant’s testimony was so non-credible that it
     cannot support a conviction beyond a reasonable doubt? Did the
     trial court err in denying [Appellant]’s motion in arrest of
     judgment, styled as a motion for extraordinary relief, where
     inconsistent verdicts are allowed when the evidence is sufficient
     to support them, a circumstance that is absent in the present
     case?

     4.    Did the trial court err and exceed its authority by using a
     special verdict sheet, with special interrogatories allowing the jury
     to make yes or no determinations as to course of conduct, and
     magnify the deleterious impact of its error by omitting the
     “beyond a reasonable doubt” standard, thereby allowing the jury
     to make a specific finding of an element of a crime by a lesser
     evidentiary standard, in violation of the due process guarantees
     of the Pennsylvania and United States [C]onstitutions?

     5.    Did the trial court err in failing to declare a mistrial after the
     jury twice announced that it could not reach a verdict, and in
     instead giving a charge under Commonwealth v. Spencer, 275
     A.2d 299 (Pa. 1971)?

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      6.     Should the verdict be struck as repugnant to justice and
      violating the due process clauses of the Pennsylvania and United
      States [C]onstitutions, where there is evidence indicating that the
      jury reached its verdict by applying a lesser standard than
      “beyond a reasonable doubt”?

      7.    Did the trial court err in denying [Appellant]’s motion to
      raise ineffectiveness claims on direct appeal, pursuant to
      Commonwealth v. Holmes, 79 A.3d 562, 578 (Pa. 2013)?

      8.    Did the Commonwealth violate its obligations under Brady
      v. Maryland, 373 U.S. 83 (1963), by failing to turn over in
      discovery any exonerating materials relating to its search of
      [Appellant]’s electronics, including his cellular phone, a violation
      that was exacerbated to [Appellant]’s prejudice when the
      Commonwealth stated in its opening argument that certain
      alleged photographs he was supposed to have taken of the
      complainant were “gone at that point [of the search]”?

      9.    Did the Commonwealth engage in inappropriate and
      suggestive interviewing techniques with the minor complainant,
      techniques (such as repeat interviews in a short period of time on
      the same day, with suggestive, closed-ended rather than open-
      ended questioning) that are at direct odds with best practices for
      forensic interviewing of minor victims and witnesses, and as a
      result, should the evidence tainted thereby have been excluded?

      10. Did the trial court err and abuse its discretion by allowing
      the Commonwealth’s DNA expert to testify as to the alleged
      presence of a Y chromosome in the complainant’s underpants,
      where those underpants had been kept in a common laundry
      hamper with the dirty clothes of multiple male relatives, where
      the evidence was more prejudicial than probative, where the
      Commonwealth provided woefully insufficient notice, and thus,
      regardless of the Commonwealth’s intentions, the result of
      admission of this testimony was trial by ambush; see N.T. 8.7.14,
      pp. 8-11; see also Commw. Exh. 7, excluding [Appellant] as a
      source of the DNA detected in the sample in question?

Appellant’s Brief at 5-6.




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      First, Appellant argues that the trial court erred in permitting the

Commonwealth to introduce evidence that Appellant physically abused the

victim’s mother. Appellant contends that the evidence of his acts of physical

abuse upon the victim’s mother do not rise to the severity of those observed

in Commonwealth v. Dillon, 925 A.2d 131 (Pa. 2007), and thus, the trial

court should not have admitted the evidence. Appellant further asserts that

the Commonwealth did not provide him with reasonable notice of its intent to

introduce this prior bad acts evidence.

      Our standard of review is as follows:

      It is well settled that the admission of evidence is solely within the
      discretion of the trial court, and a trial court’s evidentiary rulings
      will be reversed on appeal only upon an abuse of that discretion.
      An abuse of discretion will not be found based on a mere error of
      judgment, but rather occurs where the court has reached a
      conclusion that overrides or misapplies the law, or where the
      judgment exercised is manifestly unreasonable, or the result of
      partiality, prejudice, bias or ill-will.

Commonwealth v. Hicks, 151 A.3d 216, 224 (Pa. Super. 2016) (quotations,

citations and brackets omitted), appeal denied, 168 A.3d 1287 (Pa. 2017).

      As our Supreme Court has explained, generally, “all relevant evidence,

i.e., evidence which tends to make the existence or non-existence of a

material fact more      or     less probable, is admissible,       subject   to    the

prejudice/probative    value    weighing   which   attends   all   decisions      upon

admissibility.”   Dillon, 925 A.2d at 136.    An exception to this rule is that

“[e]vidence 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

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acted in accordance with the character.” Pa.R.Evid. 404(b)(1). Evidence of

an uncharged crime, however, may be admissible for a purpose other than to

show criminal propensity, “such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.”    Pa.R.Evid. 404(b)(2).   “This list is not exhaustive[,]” as the

Supreme Court of Pennsylvania has recognized that one permissible purpose

of such evidence is “to furnish the context or complete story of the events

surrounding a crime[,]” i.e., the res gestae exception. Dillon, 925 A.2d at

137.

       Even where an exception to Rule 404(b)’s prohibition against evidence

of prior bad acts applies, the evidence of other crimes is admissible “only if

the probative value of the evidence outweighs its potential for unfair

prejudice.”   Pa.R.Evid. 404(b)(2).   “Unfair prejudice means a tendency to

suggest decision on an improper basis or to divert the jury’s attention away

from its duty of weighing the evidence impartially.”          Pa.R.Evid. 403

(comment).

       In Dillon, the defendant was convicted of sexually assaulting a child

“for nearly four years between 1995 and 1998[.]” Dillon, 925 A.2d at 133.

These sexual assaults, however, went unreported until 2001. Id. At trial, the

Commonwealth introduced evidence that the defendant had physically abused

the victim’s mother and brother to explain the victim’s delay in reporting the

sexual abuse. Id.


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     On appeal, the Supreme Court held that it was permissible under Rule

404(b) for the Commonwealth to introduce evidence that the defendant

physically abused family members of the victim. Id. at 136-42. Specifically,

the Court determined that the evidence was “relevant for purposes other than

to show [Dillon’s] bad character and criminal propensity.” Id. at 139.        In

reaching this conclusion, our Supreme Court in Dillon recognized that under

Section 3105 of the Crimes Code, “[a] jury may consider evidence of a lack of

prompt complaint in cases involving sexual offenses.”        Id. at 137.     The

Supreme Court explained:

     Section 3105 codified a common law principle recognizing that the
     victim of a sexual assault naturally would be expected to complain
     of the assault at the first safe opportunity. . . . Generally, there
     are three principles upon which evidence addressing the
     timeliness of a sexual assault complaint has been deemed relevant
     and admissible: (1) as an explanation of an inconsistency/silence;
     (2) as corroboration of similar statements; or (3) as a res gestae
     declaration.

Id. (citing 18 Pa.C.S.A. § 3105).

     Furthermore:

     [B]oth the common law experience and the judgment of the
     General Assembly have led to a recognition of the relevance of the
     promptness of a complaint of sexual abuse, and this Court has
     separately recognized the reality that a sexual assault prosecution
     oftentimes depends predominately on the victim’s credibility,
     which is obviously affected by any delay in reporting the abuse.
     Revealing the circumstances surrounding an incident of sexual
     abuse, and the reasons for the delay, enables the factfinder to
     more accurately assess the victim’s credibility. Moreover, this
     Court has acknowledged that juries in sexual assault cases expect
     to hear certain kinds of evidence and, without any reference to
     such evidence during the trial, a jury is likely to unfairly penalize
     the Commonwealth, the party with the burden of proof.

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Id. at 138–39 (citations omitted).

      Based on this reasoning, our Supreme Court in Dillon concluded that

the evidence:   (1) “tend[ed] to show that [the victim’s] experiences with

[Dillon], including those assaults on family members, caused her to fear

making a prompt report”; and (2) was “relevant for res gestae purposes, i.e.,

to explain the events surrounding the sexual assaults.” Id. at 139

      Lastly, the Court stated:

      Evidence will not be prohibited merely because it is harmful to the
      defendant. This Court has stated that it is not required to sanitize
      the trial to eliminate all unpleasant facts from the jury’s
      consideration where those facts are relevant to the issues at hand
      and form part of the history and natural development of the
      events and offenses for which the defendant is charged. Moreover,
      we have upheld the admission of other crimes evidence, when
      relevant, even where the details of the other crime were
      extremely grotesque and highly prejudicial.

Id. at 141 (quotations and citations omitted). The Court noted, however, that

the trial court must “carefully tailor[ ] how and to what degree evidence of the

reasons for [the victim’s] delayed report is introduced at trial” and must give

limiting instructions. Id.

      In this case, the trial court determined that the evidence of Appellant’s

physical abuse of J.O.’s mother “was relevant to explain the victim’s hesitancy

and delay in reporting that [Appellant] was abusing her.” Trial Court Opinion,

8/8/17, at 4. We agree. J.O. testified that while Appellant did not physically

abuse her mother in J.O.’s presence, she was home when the abuse occurred

and heard the yelling and physical struggle. N.T., 8/6/14, at 77-78. J.O.

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stated that she also watched as the police removed Appellant from the home

and saw her mother’s black eye. Id. at 77, 79-80. J.O. testified that this

incident made her “scared.” Id. at 80.

      Given the discretionary nature of evidentiary claims, we cannot say in

this instance that the trial court abused its discretion in admitting the evidence

of Appellant’s abuse of J.O.’s mother. Although it was only one instance of

abuse, J.O. specifically testified that the incident, which included arguing

between her mother and Appellant, her mother getting a black eye from

Appellant, and the police arresting Appellant – all of which occurred while J.O.

was in the home – made her afraid. Thus, the evidence of Appellant’s physical

abuse of J.O.’s mother served a purpose beyond demonstrating Appellant’s

bad character and criminal propensity, i.e., the approximately three-year gap

between when Appellant began sexually assaulting J.O. and when her mother

contacted the police.     See Dillon, 925 A.2d at 136-42.          The evidence

demonstrated that both J.O. and her mother had reason to fear Appellant.

Because the Commonwealth’s case was largely based on J.O. and her mother’s

credibility, the probative value of the evidence outweighed any prejudicial

effect. See id. Moreover, as our Supreme Court instructed in Dillon, the trial

court provided the jury with a limiting instruction that they “must not regard

this evidence as showing that [Appellant] is a person of bad character or

criminal tendencies[.]” N.T., 8/8/14, at 12. Accordingly, we conclude that

the trial court did not err in admitting this evidence.


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      To the extent Appellant argues that the Commonwealth did not provide

him with reasonable notice of its intent to introduce this prior bad acts

evidence, this argument does not warrant relief. The record reflects that on

March 24, 2014, more than four months prior to Appellant’s trial, the

Commonwealth filed a motion in which it sought permission to introduce

evidence of Appellant’s physical abuse of J.O.’s mother. Therefore, Appellant

had ample opportunity to prepare for and contest the introduction of this

evidence.

      Second, Appellant argues that the trial court abused its discretion in

permitting the Commonwealth to amend the Criminal Information the day

before his trial.   Appellant takes issue with the amendments changing the

statutory subsection under which he was charged for IDSI and changing the

offense dates from September 2012 to September 2010 through 2012. With

respect to the amending of the offense dates, Appellant asserts that the short

notice he received informing him that he would have to account for two years’

worth of liability prevented him from preparing an appropriate defense for that

time period.

      When presented with a question concerning the propriety of an

amendment of the criminal information, we consider:

      [w]hether the crimes specified in the original indictment or
      information involve the same basic elements and evolved out of
      the same factual situation as the crimes specified in the amended
      indictment or information. If so, then the defendant is deemed to
      have been placed on notice regarding his alleged criminal conduct.
      If, however, the amended provision alleges a different set of

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      events, or the elements or defenses to the amended crime are
      materially different from the elements or defenses to the crime
      originally charged, such that the defendant would be prejudiced
      by the change, then the amendment is not permitted.

Commonwealth v. Beck, 78 A.3d 656, 660 (Pa. Super. 2013) (quotations

and citations omitted).

      Furthermore,

      [i]n reviewing a grant to amend an information, the Court will look
      to whether the appellant was fully apprised of the factual scenario
      which supports the charges against him. Where the crimes
      specified in the original information involved the same basic
      elements and arose out of the same factual situation as the crime
      added by the amendment, the appellant is deemed to have been
      placed on notice regarding his alleged criminal conduct and no
      prejudice to defendant results.

Id. (quotations and citations omitted).

      Courts must consider the following factors in determining whether an

amendment is prejudicial:

      (1) whether the amendment changes the factual scenario
      supporting the charges; (2) whether the amendment adds new
      facts previously unknown to the defendant; (3) whether the entire
      factual scenario was developed during a preliminary hearing; (4)
      whether the description of the charges changed with the
      amendment; (5) whether a change in defense strategy was
      necessitated by the amendment; and (6) whether the timing of
      the Commonwealth’s request for amendment allowed for ample
      notice and preparation.

Id. (quotations and citations omitted).

      With respect to the amendment of the IDSI charge, we note that the

jury acquitted Appellant of IDSI. Thus, Appellant plainly was not prejudiced

by the amendment to that charge.


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      Regarding the amendments to the dates of the offenses, while the

Commonwealth did request these amendments the day before Appellant’s

trial, the record reveals that the Commonwealth provided ample notice to

Appellant that it intended to prosecute him for sexual misconduct that

allegedly occurred over the course of two years. The affidavit of probable

cause for Appellant’s arrest warrant, the criminal complaint, and the

Commonwealth’s motion to admit evidence of other crimes, wrongs, or acts

each indicate that Appellant was charged in relation to allegations of sexual

misconduct that occurred between September 2010 and September 2012.

See Affidavit of Probable Cause, 9/6/12, at 2; Criminal Complaint, 9/6/12, at

2; Motion to Admit Other Crimes, Wrongs, or Acts Pursuant to Rule 404(b),

3/24/14.      Appellant’s claim that he was somehow unaware that the

Commonwealth was prosecuting him for conduct that occurred over the course

of those two years, and consequently prejudiced in preparing his defense, is

belied by the record. Accordingly, we conclude that the trial court did not

abuse its discretion in permitting the Commonwealth to amend the Criminal

Information.

      Third, Appellant argues that the evidence was insufficient to sustain his

indecent assault conviction.      Additionally, Appellant asserts that the

inconsistent verdicts in this case and the unreliable testimony of J.O. and her

mother resulted in a verdict that could only be the product of surmise and

conjecture.


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      In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

         As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      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.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

          The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, [t]he fact that the evidence
      establishing a defendant’s participation in a crime is circumstantial
      does not preclude a conviction where the evidence coupled with
      the reasonable inferences drawn therefrom overcomes the
      presumption of innocence. Significantly, we may not substitute
      our judgment for that of the fact finder; thus, so long as the
      evidence adduced, accepted in the light most favorable to the
      Commonwealth, demonstrates the respective elements of a
      defendant’s crimes beyond a reasonable doubt, the appellant’s
      convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).     Importantly, “the jury, which

passes upon the weight and credibility of each witness’s testimony, is free to

believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,

33 A.3d 602, 607 (Pa. 2011).

      Under Section 3126 of the Crimes Code:

      A person is guilty of indecent assault if the person has indecent
      contact with the complainant, causes the complainant to have
      indecent contact with the person or intentionally causes the

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      complainant to come into contact with seminal fluid, urine or feces
      for the purpose of arousing sexual desire in the person or the
      complainant[.]

18 Pa.C.S.A. § 3126(a). Section 3101 defines “indecent contact” as “[a]ny

touching of the sexual or other intimate parts of the person for the purpose of

arousing or gratifying sexual desire, in any person.” 18 Pa.C.S.A. § 3101.

      The trial court explained:

      Here, the victim testified that on approximately ten occasions
      between the time she was seven and nine years old, and
      specifically, on or about September 4, 2012, [Appellant] would
      lead her into her mother’s bedroom in the early morning hours,
      when her mother was at work and her brothers were asleep,
      remove her clothing, and touch her vagina with his hands and
      mouth. N.T., 8/6/14, [at] 52-55. She further testified that
      [Appellant] would then take the victim to the bathroom, where he
      would masturbate in front of her and place her hand on his
      testicles while doing so, until he ejaculated. Id. 58-60. The very
      nature of this contact – [Appellant] both touching the victim’s
      genitalia and requiring her touch his – was itself circumstantial
      evidence that [Appellant] was acting with purpose of arousing or
      gratifying his sexual desire.

Trial Court Opinion, 8/8/17, at 7.

      Based on review of the certified record, including the transcripts of J.O.’s

testimony, and viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, we agree with the trial court’s

conclusion that the Commonwealth presented sufficient evidence to sustain

Appellant’s conviction of indecent assault. Additionally, Appellant’s claim that

the verdicts were inconsistent does not entitle him to relief. Our Supreme

Court has stated that inconsistent verdicts “are allowed to stand so long as




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the evidence is sufficient to support the conviction.”     Commonwealth v.

Miller, 35 A.3d 1206, 1208 (Pa. 2012).

      Lastly, Appellant’s challenge to the credibility of J.O.’s and her mother’s

testimony is likewise meritless.      This Court has consistently held that

“credibility determinations are made by the fact finder and that challenges

thereto go to the weight, and not the sufficiency, of the evidence.”

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997); see also

Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009) (“An

argument that the finder of fact should have credited one witness’ testimony

over that of another witness goes to the weight of the evidence, not the

sufficiency of the evidence.”).    Appellant has not raised or preserved a

challenge to the weight of the evidence. Accordingly, Appellant’s third issue

does not entitle him to relief.

      Fourth, Appellant argues that the trial court erred in using an improper

verdict form.    While Appellant’s argument is convoluted and difficult to

understand, he appears to assert that the trial court improperly asked the

jury, in the event they found Appellant guilty of indecent assault, whether

they also found that there was a course of conduct associated with Appellant’s

actions.

      Appellant has waived this claim by failing to preserve it before the trial

court. Rule 647 of the Pennsylvania Rules of Criminal Procedure states that

“[n]o portions of the charge nor omissions from the charge may be assigned


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as error, unless specific objections are made thereto before the jury retires to

deliberate.”    Pa.R.Crim.P. 647(c); see also Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.”).     The record reveals no objection to the jury charge before they

retired to deliberate. See N.T., 8/8/14, at 29-30. Appellant also concedes

that he failed to preserve this issue for review.       Appellant’s Brief at 58.

Because Appellant never objected to the jury charge, he has not preserved

this issue for appeal.

       Even if Appellant had preserved this issue for appeal, it would not

warrant relief. The trial court instructed the jury, in pertinent part, as follows:

          If you find that [the elements of indecent assault] have been
       proven beyond a reasonable doubt you should find [Appellant
       guilty. If you do so find you should indicate on the verdict form
       whether you also find the following elements proven beyond a
       reasonable doubt:

          There has been a course of conduct of indecent assault by the
       person.

Id. at 24-25.      Not only does this jury instruction mirror the Pennsylvania

Suggested Standard Jury Instruction for indecent assault of a child, 2 but the

____________________________________________


2The Pennsylvania Suggested Standard Jury Instruction for indecent assault
of a child provides, in relevant part, as follows:

       2.    If you find that [the elements of indecent assault of a child]
       have been proven beyond a reasonable doubt, you should find the
       defendant guilty. If you do so find, you should indicate on the
       verdict form whether you also find the following element[s]
       proven beyond a reasonable doubt:



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portion of the instruction relating to Appellant’s course of conduct was

necessary for determining the grading of the offense.          See Pa.C.S.A. §

3126(b)(3)(ii) (“An offense under subsection (a)(7) is a misdemeanor of the

first degree unless any of the following apply, in which case it is a felony of

the third degree: . . . [t]here has been a course of conduct of indecent assault

by the person.”). Accordingly, Appellant’s fourth issue is meritless.

       Fifth, Appellant argues that the trial court erred in failing to declare a

mistrial after the jury twice announced that it could not reach a verdict and

instead gave the jury a charge pursuant to Commonwealth v. Spencer, 275

A.2d 299 (Pa. 1971). Appellant has once again failed to preserve this issue

for review by raising before the trial court. See Pa.R.A.P. 302(a). The record

reveals no objection the trial court’s Spencer charge to the jury. See N.T.,

8/11/14, at 4-6. Appellant concedes that he has not preserved this issue.

Appellant’s Brief at 59.

       Even if the issue was preserved for appeal, it would not merit relief. In

Spencer, our Supreme Court held that “a conviction will be reversed if the

jury’s verdict was effectively coerced by the trial judge’s charge[.]” Spencer,

275 A.2d at 303. A trial court’s charge to a jury that is unable to reach a



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              a.   There has been a course of conduct of indecent
              assault by the person.

Pa.S.S.J.I. (Criminal) § 15.3126C.

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verdict is improper where the charge instructs: “(1) a minority juror should

yield to the majority; and (2) those with no reasonable doubt, i.e., the

majority, need not re-examine their position despite the existence of a

reasonable doubt in the mind of a minority juror.” Id. at 303-04.

        We agree with the trial court’s assessment that the charge did not result

in a coerced verdict,3 and that “the court followed the standard set forth in



____________________________________________


3   The trial court instructed the jury as follows:

            Getting a verdict in this case is a matter of extreme importance
        to the [c]ourt, the Commonwealth, and [Appellant]. And of course
        it would be considerable time, expense, and anxiety for everyone
        concerned should I need to declare a mistrial and start this trial
        all over again from day one. And that is what will happen if you
        do not return a verdict.

           Nevertheless, no juror should surrender an honest conviction
        as to the weight or effect of the evidence solely because of the
        opinion of fellow jurors or for the mere purpose of returning a
        verdict.

           However, please bear in mind that jurors have a duty to consult
        with one another and deliberate with a view to reaching an
        agreement if it can be done without violence of individual
        judgment.

           Each juror must decide the case for himself or herself, but only
        after an impartial consideration of the evidence with fellow jurors.
        In order to return a verdict each juror must agree, your verdict
        must be unanimous.

           Remember also in the course of deliberation a juror should not
        hesitate to raise that and revisit his or her own views or change
        his or her own opinion if convinced it is erroneous.

N.T., 8/11/14, at 4-6.

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J-S44023-18


[Spencer], urging the jurors to keep an open mind toward their fellow jurors’

viewpoints without abandoning their own.” Trial Court Opinion, 8/8/17, at 10.

Because the charge contains none of the elements prohibited by Spencer,

Appellant’s fifth issue is meritless.

      Sixth, Appellant argues that the trial court erred in permitting the jury

to apply a lesser standard than “beyond a reasonable doubt” when deciding

Appellant’s case. Appellant asserts that this Court should remand this case

for an evidentiary hearing regarding the burden of proof the jury used in

reaching its verdict.

      This argument is meritless for several reasons. Appellant provides no

explanation as to why he believes that the jury applied a lesser standard than

“beyond a reasonable doubt.” He points to no record support for his claim.

The record is replete, however, with examples of the trial court instructing the

jury to apply a “beyond a reasonable doubt” standard in reaching its verdict.

See, e.g., N.T., 8/8/14, at 6-8 (“The Commonwealth . . . has the burden of

proving each and every element of the crime charged and that [Appellant] is

guilty of that crime beyond a reasonable doubt.       . . . If after careful and

impartial consideration of all of the evidence in this case you have a reasonable

doubt that [Appellant] is guilty of the charge, you should find [Appellant] not

guilty.”). “The law presumes that the jury will follow the instructions of the

court.”   Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011).

Moreover, during deliberations, the jury also requested that the trial court


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read to them the definition of “reasonable doubt,” demonstrating that they

understood the appropriate burden of proof.         See N.T., 8/8/14, at 32.

Accordingly, Appellant’s sixth issue does not entitle him to relief.

      Seventh, Appellant argues that the trial court erred in denying his

motion seeking to raise an ineffective assistance of counsel claim on direct

appeal pursuant to our Supreme Court’s decision in Commonwealth v.

Holmes, 79 A.3d 562 (Pa. 2013). Holmes addressed the circumstances in

which a criminal defendant may raise claims of ineffective assistance of

counsel on direct appeal. This Court in Commonwealth v. Knox, 165 A.3d

925 (Pa. Super. 2017), appeal denied, 173 A.3d 257 (Pa. 2017), explained

the Holmes decision as follows:

         Generally, claims of ineffectiveness of counsel are not ripe until
      collateral review. See [Holmes, 79 A.3d at 576]. However, in
      extraordinary cases where the trial court determines that the
      claim of ineffectiveness is “both meritorious and apparent from
      the record,” it may exercise its discretion to consider the claim in
      a post-sentence motion. Id. at 577.

          In Holmes, the Supreme Court of Pennsylvania explicitly
      identified ineffectiveness claims as “presumptively reserved for
      collateral attack[.]” Id. at 577 n.10. The Court warned against
      trial courts appointing “new counsel post-verdict to search for
      ineffectiveness claims.” Id. Thus, while the trial court retains
      discretion in addressing such claims, the presumption weighs
      heavily in favor of deferring such claims to collateral review.

         Further, the Court justified the creation of the “meritorious and
      apparent from the record” exception by explaining that “[t]he
      administration of criminal justice is better served by allowing trial
      judges to retain the discretion to consider and vindicate such
      distinct claims of ineffectiveness[.]” Id. at 577 (emphasis added).

Id. at 928.

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J-S44023-18


          Appellant argues that he has a valid ineffective assistance of counsel

claim under the United States Supreme Court’s Padilla decision. In Padilla,

the United States Supreme Court held that when a criminal defendant intends

to plead guilty to a crime, “counsel must inform her client whether his plea

carries a risk of deportation.” Padilla, 559 U.S. at 374. Although he did not

plead guilty in this case, Appellant argues that his trial counsel should have

negotiated a plea agreement that precluded his deportation rather than

allowing him to proceed to trial. We have been unable to find any authority

from this Court or our Supreme Court applying Padilla in this context, and

Appellant does not cite any such authority. Appellant asserts, however, that

Padilla is applicable to this case based on Lafler v. Cooper, 566 U.S. 156

(2012). Even assuming Padilla is applicable here, Appellant is not entitled to

relief.

          In Lafler, the United States Supreme Court explained that to meet the

prejudice prong of the ineffectiveness test4 where the alleged ineffectiveness

____________________________________________


4 In deciding ineffective assistance of counsel claims, we begin with the
presumption that counsel rendered effective assistance. Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,
the petitioner must establish: “(1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s action or failure to act; and (3)
the petitioner suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability that the result of the
proceeding would have been different.”           Id. (citation omitted).      To
demonstrate prejudice in an ineffective assistance of counsel claim, “the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been



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J-S44023-18


of counsel involves a defendant’s decision to proceed to trial, the defendant

must show:

       that but for the ineffective advice of counsel there is a reasonable
       probability that the plea offer would have been presented to the
       court (i.e., that the defendant would have accepted the plea and
       the prosecution would not have withdrawn it in light of intervening
       circumstances), that the court would have accepted its terms, and
       that the conviction or sentence, or both, under the offer’s terms
       would have been less severe than under the judgment and
       sentence that in fact were imposed.

Lafler, 566 U.S. at 164. The Court cautioned, however, “[i]f no plea offer is

made . . . the issue raised here simply does not arise.” Id. at 168.

       In this case, the trial court determined that Appellant’s claim was not

meritorious.     We agree.        The trial court, which accurately summarized

Appellant’s testimony, explained:

       [Appellant] did not enter a plea . . . nor did he waive any of his
       rights to a jury trial. Moreover, he testified at the evidentiary
       hearing – having since been made fully aware of the immigration
       consequences of his conviction, - that it was his decision to
       proceed to a jury trial, that he did not want to plead guilty, and
       that he would never have considered an offer to plead guilty. N.T.,
       5/16/16, [at] 78-79.

Trial Court Opinion, 8/8/17, at 12 (emphasis in original). Because there was

never a plea offer, and Appellant stated he would not have considered a plea

offer, neither Padilla nor Lafler are applicable.      Thus, Appellant has not

presented an ineffectiveness claim that is “meritorious and apparent from the


____________________________________________


different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.

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J-S44023-18


record.” Holmes, supra. Accordingly, the trial court did not err in denying

his motion raise this claim on direct appeal.

      Eighth, Appellant argues that the Commonwealth committed a Brady

violation.   Specifically, Appellant argues that the Commonwealth failed to

disclose evidence relating to the search of Appellant’s cellphone for

inappropriate photographs of J.O. Although the parties stipulated there were

no such photographs on Appellant’s phone, he insists that the Commonwealth

withheld evidence proving that not only were there no inappropriate photos

on his phone, but also that he never took and subsequently deleted those

photos.

      In rejecting this claim, the trial court explained:

         “[T]o establish a Brady violation, a defendant must
      demonstrate that: (1) the evidence was suppressed by the
      Commonwealth, either willfully or inadvertently; (2) the evidence
      was favorable to the defendant; and (3) the evidence was
      material, in that its omission resulted in prejudice to the
      defendant.” Commonwealth v. Robinson, 122 A.3d 367, 373
      (Pa. Super. 2015), appeal denied, 130 A.3d 1289 (Pa. 2015).
      Moreover, “the withheld evidence must have been in the exclusive
      control of the prosecution at the time of trial.” Id. Importantly,
      the underlying premise in all Brady violations is that the evidence
      actually exists. Commonwealth v. Lawrence, [165 A.3d 34, 47
      (Pa. Super. 2017)].

         The record indicates that the Commonwealth turned over all
      existing discovery relating to the search of [Appellant]’s
      electronics. There is no motion for discovery and no objection by
      counsel as to the Commonwealth’s reference to the search of
      [Appellant]’s electronics. Moreover, the parties stipulated that the
      electronics were sent to a laboratory and that the laboratory “did
      not find images of [the victim] . . .” N.T., 8/7/14, [at] 102. To
      the extent that [Appellant] claims the Commonwealth withheld
      additional evidence that would have shown that [Appellant] never

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J-S44023-18


      had photographs of the victim, such [a] claim seems to be
      premised only on a belief that such evidence exists. This is
      insufficient to establish a Brady violation.

Trial Court Opinion, 8/8/17, at 13 (emphasis in original).

      Based upon our review of the certified record, and the applicable case

law cited by the trial court, Appellant, and the Commonwealth, we conclude

that the trial court properly analyzed and disposed of this issue. The parties

stipulated that the laboratory found no images of J.O. on Appellant’s phone.

The record contains no support for Appellant’s claim that any additional

evidence exists relating to his phone or whether he took inappropriate

photographs of J.O. At best, Appellant’s Brady claim is based on speculation.

Accordingly, Appellant’s eighth issue is meritless.

      Ninth, Appellant argues that the police engaged in inappropriate and

suggestive interviewing techniques when they took J.O.’s statement.

Consequently, he asserts that the trial court should have excluded evidence

of the statement because it was more prejudicial than probative.

      Appellant has not preserved this issue for appeal.     As the trial court

points out, Appellant never moved for the exclusion of this evidence.

Appellant once again readily concedes that he did not object to the admission

of this evidence. Appellant’s Brief at 59. Therefore, Appellant has waived this

issue. See Pa.R.A.P. 302(a). Even if Appellant had preserved this issue for

review, it would not entitle him to relief. As the Commonwealth points out,

Appellant had ample opportunity at trial to cross-examine both J.O. and the


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J-S44023-18


police officer who took the statement. See N.T., 8/6/14, at 84-107; N.T.,

8/7/14, at 88-95. Accordingly, Appellant’s ninth issue is meritless.

      Finally, Appellant argues that the trial court abused its discretion by

allowing the Commonwealth’s DNA expert to testify regarding the presence of

male DNA in J.O.’s undergarments.        Appellant contends that the expert

testimony was more prejudicial than probative because the expert testified

that there was male DNA found in J.O.’s undergarments, but could not identify

the source. Appellant argues that by not identifying the source, the testimony

created the implication that it was Appellant’s DNA. Appellant further asserts

that he did not receive sufficient notice of the Commonwealth’s intent to

introduce this expert testimony.

      With respect to his argument that the expert testimony was more

prejudicial than probative, Appellant has once again not preserved this issue

for review, as he raises it for the first time on appeal. See Pa.R.A.P. 302(a).

Appellant even concedes that he did not preserve this argument for appeal.

Appellant’s Brief at 59.

      As for Appellant’s claim that he did not receive sufficient notice of the

expert testimony, it is meritless. The trial court explained:

      Prior to the forensic scientist’s testimony, [Appellant] objected on
      the grounds that he had been given insufficient notice that she (as
      opposed to a general lab technician) was going to testify, and he
      had therefore not secured his own DNA expert. N.T., 8/7/14, [at]
      6. The Commonwealth refuted [Appellant]’s claim, representing
      that it had passed the report to [Appellant] months prior and that
      the report indicated that the DNA analysis was performed by a
      forensic scientist, not a technician. Id. at 7-8. The court accepted

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J-S44023-18


      the Commonwealth’s representation that it had given ample
      notice – and [Appellant] did not argue that he had not timely
      received the report – and permitted the testimony.

Trial Court Opinion, 8/8/17, at 14 (emphasis in original). Based on the record

before us and the trial court’s explanation of this issue, and because

evidentiary determinations are left to the sound discretion of the trial court,

we see no basis upon which to disrupt the court’s ruling. See Hicks, 151 A.3d

at 224.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/18




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