J-S53038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JACK EMERY GIRARDI

                            Appellant                   No. 364 MDA 2016


            Appeal from the Judgment of Sentence January 13, 2016
      in the Court of Common Pleas of Lycoming County Criminal Division
                       at No(s): CP-41-CR-0001977-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 15, 2016

        Appellant, Jack Emery Girardi, appeals from the judgment of sentence

entered in the Lycoming County Court of Common Pleas following a jury trial

and his convictions for rape of a child,1   statutory      sexual    assault,2

aggravated indecent assault of child,3 unlawful restraint of minor by parent─

risk of serious bodily injury,4 incest of minor─complainant under 13 years,5




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(c).
2
    18 Pa.C.S. § 3122.1(b).
3
    18 Pa.C.S. § 3125(b).
4
    18 Pa.C.S. § 2902(c)(1).
5
    18 Pa.C.S. § 4302(b)(1).
J-S53038-16


endangering welfare of children,6 corruption of minors,7 and indecent

assault─complainant under 13 years.8     Appellant challenges the sufficiency

of the evidence, the denial of his motion for a mistrial, and the admission of

a prior recorded interview of Child, his minor daughter, as substantive

evidence. We affirm.

        On August 21, 2014, Child was interviewed at the Child’s Advocacy

Center (“CAC”).9 R.R. at 85a.10 The police and Children & Youth Services

request that CAC conduct interviews.    Id. at 249a.    Sherry Moroz was “a

forensic interviewer at the [CAC] of the Central Susquehanna Valley.” Id. at

244a.     Her job was “to conduct an interview of any child who [was] an

alleged victim of or a witness to sexual abuse, physical abuse or violent

crime.” Id. She interviewed Child on August 21, 2014. Id.


6
    18 Pa.C.S. § 4304(a)(1).
7
    18 Pa.C.S. § 6301(a)(1)(ii).
8
    18 Pa.C.S. § 3126(a)(7).
9
  The interview was recorded and transcribed. See R.R. at 85a-137a. We
note that the transcript of the interview was not included in the certified
record on appeal. Where the accuracy of a transcript is undisputed, this
Court can consider it even though it was not in the record transmitted to this
Court. Commonwealth v. Barnett, 121 A.3d 534, 545 n.3 (Pa. Super.
2015), appeal denied, 128 A.3d 1204 (Pa. 2015). In the case sub judice,
the Commonwealth chose not to file a brief. Thus, the accuracy of the
transcript of the interview is undisputed. Therefore, we can consider it. See
id.
10
  For the parties’ convenience, we refer to the reproduced record where
applicable.



                                    -2-
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        She explained that:

           the CAC is a facility-based program that offers a multi-
           disciplinary-team approach to the investigation of child
           abuse. So in order to have a child come to the CAC there
           needs to be some sort of an allegation.

                                   *    *    *

               And at the CAC we provide several services.        We
           provide an interview. We provide counseling. We provide
           medical exams. And we provide a place for─a child-
           friendly place, not the most formal place, but a child-
           friendly-place, for a team together to determine what the
           allegations truly are and what services or actions need to
           be taken to assure and maintain the safety and health and
           well being of the child.

Id. at 248a.

        One copy of the recording of the interview “is retained as part of the

child’s medical record at the CAC, and the other one is released to law

enforcement.” Id. at 250a. The DVD was played for the court. Id. at 252a.

        At the time of the interview, Child stated she was seven years old and

starting second grade the following day.11 Id. at 87a. She lives with her

mother and her five-year old brother. Id. at 92a.

           [Sherry Moroz]: . . . Is someone worried that something
           happened to you?

           A: Some things did.

                                   *    *    *

           Q: Okay. So what kinds of things happened?


11
     Mother stated that Child was a year ahead in school. R.R. at 32a.



                                       -3-
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        A: He was touching me.

        Q: Okay. Who was touching you?

        A: My dad was touching me─

                                   *    *    *

        Q: Yeah, did you tell your mom?

        A: I told my mom . . . .

                                   *    *    *

        Q: Okay. Tell me─like start at the beginning and tell me
        everything you can think of.

                                   *   *     *

        Q: I remember that he was trying to make me sit on his
        thing.

        Q: Okay.

        A: But he was trying to force me to do it.

        Q: Uh─huh.

        A: And he was touching my butt with the lotion and in
        between it.

        Q: Uh─huh.

        A: And my thing in the front.

Id. at 96a, 98a. She testified that “[e]very single time [it happened] her

mommy was at work and [her brother] was sleeping.” Id. at 100a.

        A: And daddy kept taking me every time in the middle of
        the night─

        Q: Uh-huh.



                                       -4-
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       A: ─after he gives me a bath─

       Q: Uh-huh.

       A: He takes me right in the back bedroom.

                                *    *    *

       Q: Okay, so what would he do when it was bath time?

       A: That’s when he would always make me try to sit on his
       thing.

       Q: Okay.

       A: And he was forcing me to.

       Q: Okay.

       A: And I was saying no, but he wouldn’t stop.

       Q: Okay. All right. So when─when he was wanting you to
       sit on his thing, like, where was he?

       A: He was in the bathtub with me.

                                *    *    *

       Q: Okay. Where did his thing go?

       A: In my butt.

                                *    *    *

       Q: Okay. All right. Okay, so you said that sometimes
       things would happen in the bathroom in the tub.

       A: Or in the back bedroom.

       Q: Or the back bedroom, okay. The stuff that happened in
       the tub, okay, did it happen in the tub one time or more
       than one time?

       A: More than one time.


                                    -5-
J-S53038-16



                                *    *       *

       Q: . . . Tell me about what would happen in the bedroom.

       A: He would do that stuff, like, either rub my ladybug or
       belly with that lotion─

                                *    *       *

       A: He puts his thing in my front thing.

       Q: Uh-huh.

       A: I tell him no but he won’t stop.

       Q: Okay. What does that feel like?

       A: I don’t like it when he does it.

       Q: Un-huh.

       A: Because he hurts me.

       Q: Un-huh.

                                *    *       *

       Q: Okay.     And you said that this was happening in 1st
       grade?

       A: Yeah, when I first started 1st grade.

       Q: Okay. All right. Now, what happened that you decided
       to tell mommy.

       A: I told her what he was doing to me.

                                *    *       *

       Q: . . . Does anything come out of his thing?

       A: No.



                                    -6-
J-S53038-16


                                *    *    *

       Q: So I have these picture [sic] so what I’m going to do is
       I’m going to put this here. I’m going to circle body parts
       and if you could tell me what you call me [sic] those parts,
       okay, so I know what you’re talking about for sure. What
       do you call right there?

       A: Neck

       Q: Neck. What do you call that part?

       A: Chest.

                                *    *    *

       A: Ladybug.

                                *    *    *

       A: Manbug.

                                *    *    *

       Q: . . . What made you decide to tell?

       A: Because it was really bothering me.

                                *    *    *

       Q: . . . [I]t was just kind of bothering you when you
       needed to tell your mom?

       A: Uh-huh.

       Q: So tell me what you told your mom.

       A: I told her the same things that I just told you.

                                *    *    *

       A: I told her what I told you because I didn’t remember
       anything else.



                                    -7-
J-S53038-16


       Q: Okay. Do you think more stuff happened that you don’t
       remember?

       A: More stuff did happen and I just don’t remember it.

                               *    *     *

       Q: Uh-huh. Did you ever tell your mom before that?

       A: (Shakes head back and forth).

       Q: No.

       A: Because he wouldn’t let me up and she was already at
       work.

       Q: Uh-huh. What do you mean he wouldn’t let you up?

       A: He was on me and he wouldn’t let me up.

       Q: What did that feel like with him on you?

       A: He was hurting me and I couldn’t breath[e].

       Q: Where was─where were you hurting?

       A: He was hurting me on the chest because I couldn’t
       breath[e], and I couldn’t breath[e] because he was hurting
       me.

       Q: Okay.

       A: I couldn’t scream because I couldn’t breath[e].

       Q: Uh-huh. And tell me, like, did he have any like─like
       names that he called you or anything that he would tell
       you when that was─when he was doing those things?

       A: He was, um─calling me some names─

       Q: Uh-huh.

       A: ─that he calls mommy when he gets angry.



                                   -8-
J-S53038-16


       Q: Like what?

       A: Um, could I just write them down on the paper?

       Q: If you want to. Can you write─okay.

       A: I really don’t know how to spell the words.

       Q: Okay. I think your [sic] spelling bitch?

       A: Uh-huh.

       Q: Okay, when would he say that to you?

       A: He was doing that because I wouldn’t stay still because
       I was trying to get up and he kept calling me that word
       that I just spelled and some other names, like─he was
       saying─he was saying that word.

       Q: Okay.

       A: And saying to stay still and the end he said this.

       Q: Okay. So he was saying─he was saying fuck?

       A: He was saying that word─

                                *    *    *

       Q: [W]hat body parts were involved?

       A: He was using.

       Q: His manbug, you’re point [sic] to?

       A: On my─

       Q: On your ladybug?

       A: Uh─huh.

       Q: So when he was doing that, like, where were you
       and─like, how was your body and how was his body?



                                    -9-
J-S53038-16


       A: He was on top of me. I was like this laying down on the
       mattress.

       Q: Un-huh.

       A: And he was like this.

       Q: Like─okay.

       A: Laying forward on me like this.

       Q: Okay. All right, and where was his manbug going?

       A: In my thing.

       Q: In the front?

       A: Uh-huh.

       Q: Yeah? And what did that feel like?

       A: It felt hard.

       Q: Uh-huh.

       A: Rusted wood or bark─

       Q: Okay.

       A: Bark on a tree.

       Q: Okay.

       A: And it was really hurting me and I told him to stop and he
       wouldn’t stop.

       Q: Okay. Did you ever see, like any─anything, like, left on your
       body when he was finished?

       A: Nu-huh.

                                  *     *      *

       Q: . . . So when you were six you told mommy everything?


                                      - 10 -
J-S53038-16



         A: Yeah.

                                      *     *      *

         Q: And daddy left?

         A: Uh-huh.

         Q: Did daddy come back then?

         A: Nope. . . .

Id. at 100a, 102a, 105a, 107a, 109a-10a, 113a-15a, 122a, 124a-27a, 130a.

      On March 23, 2015, a hearing was held to address Child’s competency

to testify at trial. At the hearing, Child testified that she was turning eight

years old. R.R. at 206a.

         The Court: Okay. Now, in this case, okay, meaning why
         we’re here, you said that your dad did something to you.

         [Child]: (Nods head.)

         The Court: Right?

         [Child]: Yes.

                                      *     *      *

         The Court: . . . [H]ow long ago did this stuff happen?

         [Child]: When I was in first grade.

         The Court: . . . So how many years ago was that . . . ?

         [Child]: . . . A year ago.

         The Court: . . . How old were you when it happened? Do
         you remember?

         [Child]: Six.


                                          - 11 -
J-S53038-16



       The Court: Six?

       [Child]: Actually seven, because it was near the end of the
       year.

                               *     *      *

       The Court: . . . And how many times did it happen?

       [Child]: Three times.

       The Court: Three times?

       [Child]: Or more, I don’t remember.

                               *     *      *

       The Court: So tell me about the times. Tell me will [sic]
       happened.

       [Child]: One time I was sleeping and I woke up because I
       had to go to the bathroom, and I woke up, and when I was
       done my dad told me to get undressed, and he told me to
       get in the bath, and while I was getting a bath he got
       undressed and got in with me.

       The Court: Okay.

       [Child]: And while we were waiting for the water I was
       being so loud because I was trying to get my mom up, but
       then at last I noticed that my mom wasn’t there and my
       brother was the one that woke up.

       The Court: Okay.

       [Child]: And my dad got dressed really quick.

                               *     *      *

       The Court: And what happened to you when you were in
       the tub with your dad?

       [Child]: He was trying to make me sit on his man bug.


                                   - 12 -
J-S53038-16



       The Court: Okay, what’s that?

       [Child]: His front private.

                                *      *      *

       The Court: . . . He tried to make you sit on it?

       [Child]: (Nods head).

       The Court: What part of you?

       Child: The─my butt.

                                *      *      *

       The Court: . . . And how did he try to make you sit on it?

       [Child]: He was forcing me, he was like pushing me down.

                                *      *      *

       The Court: [H]ow many times did it happen before you
       told your mom?

       [Child]: Three times.

                                *      *      *

       And I couldn’t scream or anything like that when he was
       on top of me because he was so heavy, and he was going
       like this on my mouth. And I could barely breath because
       he─

                                *      *      *

       The Court: . . . Was this the second time or the third time?

       [Child]: The second time it was the bathtub, the first time
       it was this, then the last time it was also this.

                                *      *      *



                                     - 13 -
J-S53038-16


        The Court: [S]o tell me about those.

                                 *       *      *

        [Child]: He would always get undressed, and he would
        take my clothes off when I’m sleeping. I know it because I
        always feel it, and then he would get on top of me and do
        this, like cover my nose so I can’t scream or breathe or
        anything, then I pass out, and when he did this a little bit
        later I wake up from him doing this.

                                 *       *      *

        The Court: What did he do with you before you passed
        out?

        [Child]: He would like get on top of me, unzip his pants
        and take then off, take his underwear off, then put his
        front private in my front private.

                                *       *       *

        It would feel like hard, and it would go into my front
        private, and it would always be hard─harder, feel like a
        piece of metal.

Id. at 213a-16a.

     On October 13, 2015, a hearing was held on the Commonwealth’s

motion to admit the recorded interview with Child at the CAC as substantive

evidence pursuant to 42 Pa.C.S. § 5985.1.           R.R. at 233a-54a. On October

14, 2015, the court granted the Commonwealth’s motion. Order, 10/14/15.

     On October 19, 2015, Child testified at the jury trial.       She identified

Appellant as her father. R.R. at 8a.

        [The Commonwealth]: . . . Did something happen with
        your dad . . . that had to do with a bathroom?

                                 *       *      *


                                       - 14 -
J-S53038-16



        [Child]: He would tell me to get undressed, get undressed
        while he was getting undressed. Tell me─he would get in
        the tub, and he would tell me to get in the tub. He would
        tell me to stand up and tell me to sit on his man-bug, but I
        wouldn’t. And he was─he had his hands on my shoulders
        forcing me to sit down on his man-bug.

Id. at 9a.   Child testified that her mom worked at night and she was home

with Appellant and her brother.       Id. at 10a.   Appellant would carry Child

from her bedroom into the back bedroom. Id.

        [The Commonwealth]: . . . What happened in the back
        bedroom?

        [Child]: He would tell me to get undressed. He was
        getting undressed, and he told me to get undressed. He
        told me to lay down on my back, so I did. Then he would
        lay down over top of me with his belly facing me. And he
        would lay down on me, and his man-bug would go into my
        lady-bug.

                                  *     *      *

        Q: What would happen when he did that?

        A: He would have my mouth covered, so I couldn’t scream
        out loud.

        Q: With what?

        A: His hand.

        Q: Did you want to scream out loud?

        A: Yes. And I was trying to.

        Q: . . . What would he do when he would be on top of you
        like that?

        A: He would move up and down.



                                      - 15 -
J-S53038-16


        Q: And you said his man-bug was in your lady-bug?

        A: Yes.

        Q: And do you remember was it actually inside you?

        A: Yes.

        Q: And you said he would move up and down?

        A: Yes.

        Q: And your lady-bug, where on you is your lady-bug?

        A: My front private.

        Q: And what about you said man-bug, where is a man-
        bug?

        A: On a man’s front private.

        Q: [W]hat did that feel like when he would have it inside
        your lady-bug?

        A: It would hurt.

        Q: And you said you tried to scream?

        A: Yes.

                                *      *     *

        Q: Could you tell him to stop or anything like that?

        A: He had my mouth covered, so I couldn’t.

        Q: Do you remember how many times this happened in
        the back bedroom?

        A: Twice.

Id. at 10a-11a.




                                    - 16 -
J-S53038-16


      On October 20, 2015, the jury found Appellant guilty. On January 13,

2016, Appellant was sentenced to an aggregate term of eighteen to forty

years’ imprisonment.     Appellant filed a post-sentence motion, which was

denied.    This timely appeal followed.       Appellant filed a court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and the trial

court filed a responsive opinion.

      Appellant raises the following issues for our review:

          A. The Commonwealth failed to present sufficient evidence
          to support a conviction for the offenses of rape, statutory
          sexual assault, aggravated indecent assault and incest
          when the Commonwealth’s sole witness failed to offer
          consistent testimony regarding what occurred, when it
          occurred, how many times it occurred, whether it actually
          occurred at all, testified she knows it occurred despite
          sleeping through it because her underwear was inside out
          and demonstrated she does not understand the meaning of
          penetration.

          B. The Commonwealth failed to present sufficient evidence
          to support the trial court’s holding that Appellant should be
          classified as a sexually violent predator.

          C. The Commonwealth failed to present sufficient evidence
          to support a conviction for the offense of unlawful restraint
          of a minor in accordance with 18 Pa.C.S.A. § 2902(c)(1)
          by failing to offer any evidence that Appellant placed
          [Child] in actual danger of a substantial risk of death or
          serious bodily injury.

          D. The trial court erred by denying Appellant’s motion for
          mistrial due to the attorney for the Commonwealth’s
          statements during opening remarks revealing inadmissible
          evidence to the jury which in turn deprived Appellant of a
          fair trial by preventing the jury from weighing and
          rendering a true verdict.




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         E. The trial court erred in permitting the Commonwealth to
         admit [Child’s] prior recorded interview as substantive
         evidence in accordance with 42 Pa.C.S.A. § 5985.1.

Appellant’s Brief at 5.

      First, Appellant contends that:

         the Commonwealth failed to present sufficient evidence to
         support a conviction for the offenses of rape, statutory
         sexual assault, aggravated indecent assault and incest
         when the Commonwealth’s sole witness failed to offer
         consistent testimony regarding what occurred, when it
         occurred, how many times it occurred, whether it actually
         occurred at all, testified she knows it occurred despite
         sleeping through it because her underwear was inside out
         and demonstrated she does not understand the meaning of
         penetration.

                                 *      *     *

         The inconsistencies within [Child’s] trial testimony and
         her previous testimony are too numerous to detail in full
         without a reading of the entire record. However, there are
         key points necessary to support a conviction that simply
         were not present in the Commonwealth’s case due to
         [Child’s]  inconsistent     and    therefore,  unreliable
         testimony.

Id. at 11-12.

      Our review of a sufficiency of the evidence is governed by the following

principles:

         [O]ur scope of review is plenary. Our standard of review is
         de novo. Scope of review refers to the confines within
         which an appellate court must conduct its examination. . .
         . In other words, it refers to the matters (or what) the
         appellate court is allowed to examine.        In contrast,
         standard of review refers to the manner in which (or ‘how’)
         that examination is conducted. A standard of review is the
         degree of deference given by the reviewing court to the
         decision under review. In other words, it is the power of


                                     - 18 -
J-S53038-16


        the lens through which the appellate court looks at the
        issue in a particular case.

        [T]he critical inquiry on review of the sufficiency of the
        evidence to support a criminal conviction . . . does not
        require a court to ask itself whether it believes that the
        evidence at the trial established guilt beyond a reasonable
        doubt. Instead, it must determine simply whether the
        evidence believed by the fact-finder was sufficient to
        support the verdict.      [A]ll of the evidence and any
        inferences drawn therefrom must be viewed in the light
        most favorable to the Commonwealth as the verdict
        winner.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007)

(quotation marks and citations omitted).

     As a prefatory matter, we consider whether Appellant has waived this

sufficiency of the evidence claim.   The issue presented in Appellant’s Rule

1925(b) statement is as follows:     “The evidence presented at trial by the

Commonwealth was insufficient to support a conviction on Count One, Rape,

Count Two, Statutory Sexual Assault and Count Three, Aggravated Indecent

Assault.” Appellant’s Pa.R.A.P. 1925(b) Statement, 3/16/16, at 1.

           [W]hen challenging the sufficiency of the evidence
           on appeal, the [a]ppellant’s 1925 statement must
           “specify the element or elements upon which the
           evidence was insufficient” in order to preserve the
           issue for appeal. Such specificity is of particular
           importance in cases where, as here, the [a]ppellant
           was convicted of multiple crimes each of which
           contains numerous elements that the Commonwealth
           must prove beyond a reasonable doubt. Here, [the
           a]ppellant . . . failed to specify which elements he
           was challenging in his 1925 statement . . . . While
           the trial court did address the topic of sufficiency in
           its opinion, we have held that this is “of no moment
           to our analysis because we apply Pa.R.A.P.1925(b) in


                                     - 19 -
J-S53038-16


               a predictable, uniform fashion, not in a selective
               manner dependent on an appellee’s argument or a
               trial court’s choice to address an unpreserved claim.”

            Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
            2009) [ ].

Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (some

citations omitted).

         Analogously, in the instant case, Appellant’s 1925(b) statement fails to

“specify the element or elements upon which the evidence was insufficient”

and failed to specify which convictions he was challenging. See id. Thus,

we could find the issue is waived. See id. We decline to find waiver on this

basis.

         We consider whether Appellant raises a sufficiency of the evidence

claim but argues the weight of the evidence. Appellant contends that Child’s

testimony was inconsistent and unreliable. Appellant’s Brief at 12.           In

Commonwealth v. DeJesus, 860 A.2d 102 (Pa. 2004), our Pennsylvania

Supreme Court opined:

            The [a]ppellant’s claim challenges the weight, not the
            sufficiency, of the evidence. The weight of the evidence is
            exclusively for the finder of fact, which is free to believe
            all, part, or none of the evidence, and to assess the
            credibility of the witnesses.       Questions concerning
            inconsistent testimony . . . go to the credibility of the
            witnesses. This Court cannot substitute its judgment for
            that of the jury on issues of credibility.

                                    *     *      *

            As we will not disturb the jury's credibility determinations,
            this claim fails.


                                        - 20 -
J-S53038-16



Id. at 107 (citations omitted and emphasis added). Analogously, Appellant’s

claim challenges the weight of the evidence.12             See id.     We cannot

substitute our judgment for that of the jury. See id. This claim fails. See

id.

      Next, Appellant avers that the Commonwealth failed to present

sufficient evidence to support the trial court’s holding that Appellant should

be classified as a sexually violent predator (“SVP”).      He contends that “the

report issued by psychologist C. Townsend Velkoff and the testimony offered

by the Commonwealth prior to sentencing on January 13, 2016[,] reveals

the Commonwealth failed to meet their burden in several respects.”

Appellant’s Brief at 17. Appellant argues that Velkoff “failed to adequately

consider    the   best   evidence   available   to   establish   the   nature   and

circumstances of the offense” pursuant to 42 Pa.C.S. § 9795.4. Id. at 18.

He claims Velkoff’s testimony ignored the statutory criteria for establishing a

mental abnormality. Id. Velkoff “ignored the definition of predator set forth

in 42 Pa.C.S.A. § 9792.” Id. at 19.

           A challenge to a determination of SVP status requires us to
           view the evidence

             in the light most favorable to the Commonwealth.
             The reviewing court may not weigh the evidence or
             substitute its judgment for that of the trial court.

12
   We note that Appellant did not raise the issue of the weight of the
evidence to support a conviction for rape, statutory sexual assault or
aggravated indecent assault in his Rule 1925(b) statement.



                                      - 21 -
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           The clear and convincing standard requires evidence
           that is so clear, direct, weighty and convincing as to
           enable [the trier of fact] to come to a clear
           conviction, without hesitancy, of the truth of the
           precise facts [at] issue.

        The scope of review is plenary. [A]n expert’s opinion,
        which is rendered to a reasonable degree of professional
        certainty, is itself evidence.

           A challenge to the sufficiency of the evidence to support
        an SVP designation requires the reviewing court to accept
        the undiminished record of the case in the light most
        favorable to the Commonwealth.         The reviewing court
        must examine all of the Commonwealth’s evidence without
        consideration of its admissibility. A successful sufficiency
        challenge can lead to an outright grant of relief such as a
        reversal of the SVP designation, whereas a challenge to
        the admissibility of the expert’s opinion and testimony is
        an evidentiary question which, if successful, can lead to a
        new SVP hearing.

Commonwealth v. Prendes, 97 A.3d 337, 355-56 (Pa. Super.) (citations

and quotation marks omitted), appeal denied, 105 A.3d 736 (Pa. 2014).

The basis for a determination that an individual is a SVP is statutory. Id. at

357.

        Therefore, the      salient    statutory   inquiry   for   SVP
        designation:

           [I]s identification of the impetus behind the
           commission of the offense; that is, whether it
           proceeds from a mental defect/personality disorder
           or another motivating factor. The answer to that
           question determines, at least theoretically, the
           extent to which the offender is likely to reoffend, and
           [S]ection [9799.24] provides the criteria by which
           such likelihood may be gauged.

        To deem an individual a sexually violent predator, the
        Commonwealth must first show [the individual] has been


                                      - 22 -
J-S53038-16


        convicted of a sexually violent offense as set forth in
        [section 9799.14]. . . .      See also 42 Pa.C.S.A. §
                 [13]
        9799.12.      Secondly, the Commonwealth must show that
        the individual has a mental abnormality[14] or personality
        disorder that makes [him] likely to engage in predatory
        sexually violent offenses. When the Commonwealth meets
        this burden, the trial court then makes the final
        determination on the defendant’s status as an SVP.

Id. at 357-58 (quotation marks and some citations omitted).

     Section 9799.24 provides:

        (b) Assessment.─Upon receipt from the court of an order
        for an assessment, a member of the board as designated
        by the administrative officer of the board shall conduct an
        assessment of the individual to determine if the individual
        should be classified as a sexually violent predator. The
        board shall establish standards for evaluations and for
        evaluators conducting the assessments. An assessment
        shall include, but not be limited to, an examination of the
        following:

           (1) Facts of the current offense, including:

              (i) Whether the offense involved multiple victims.

              (ii) Whether the individual exceeded the means
              necessary to achieve the offense.

13
  An SVP is defined as a person “who, on or after the effective date of this
subchapter, is determined to be a sexually violent predator under section
9799.24 (relating to assessments) due to a mental abnormality or
personality disorder that makes the individual likely to engage in predatory
sexually violent offenses.” 42 Pa.C.S. § 9799.12.
14
   Mental abnormality is defined as a “congenital or acquired condition of a
person that affects the emotional or volitional capacity of the person in a
manner that predisposes that person to the commission of criminal sexual
acts to a degree that makes the person a menace to the health and safety of
other persons.” 42 Pa.C.S. § 9799.12.




                                   - 23 -
J-S53038-16



                (iii) The nature of the sexual contact with the victim.

                (iv) Relationship of the individual to the victim.

                (v) Age of the victim.

                (vi) Whether the offense included a display of
                unusual cruelty by the individual during the
                commission of the crime.

                (vii) The mental capacity of the victim.

           (2) Prior offense history, including:

                (i) The individual's prior criminal record.

                (ii) Whether the individual completed any prior
                sentences.

                (iii) Whether the individual participated in available
                programs for sexual offenders.

           (3) Characteristics of the individual, including:

                (i) Age.

                (ii) Use of illegal drugs.

                (iii) Any mental illness, mental disability or mental
                abnormality.

                (iv) Behavioral characteristics that contribute to the
                individual's conduct.

           (4) Factors that are supported in a sexual offender
           assessment field as criteria reasonably related to the
           risk of reoffense.

42 Pa.C.S. § 9799.24.

     In Commonwealth v. Brooks, 7 A.3d 852 (Pa. Super. 2010), this

Court opined:


                                         - 24 -
J-S53038-16


           [W]ith regard to the various assessment factors
           listed in Section 9795.4,[15] there is no statutory
           requirement that all of them or any particular
           number of them be present or absent in order
           to support an SVP designation. The factors are
           not a check list with each one weighing in some
           necessary fashion for or against SVP designation.
           Rather, the presence or absence of one or more
           factors might simply suggest the presence or
           absence of one or more particular types of mental
           abnormalities.

           Thus, while the Board is to examine all the factors
           listed under Section 9795.4, the Commonwealth
           does not have to show that any certain factor is
           present or absent in a particular case. Rather, the
           question for the SVP court is whether the
           Commonwealth’s evidence, including the Board’s
           assessment, shows that the person convicted of a
           sexually violent offense has a mental abnormality or
           disorder making that person likely to engage in
           predatory sexually violent offenses.        Having
           conducted a hearing and considered the evidence
           presented to it, the court then decides whether a
           defendant is to be designated an SVP and thus made
           subject to the registration requirements of 42
           Pa.C.S.A. § 9795.1(b)(3).

        Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa.
        Super. 2008) (citations omitted).       In discussing the
        absence of certain statutory factors and discussing the
        facts of other cases, [the a]ppellant is essentially asking
        this Court to reweigh them. This we cannot do. See
        generally, Commonwealth v. Meals, [ ] 912 A.2d 213
        ([Pa.] 2006) (holding that this Court erred in reweighing
        the SVP evidence presented to the trial court; “the
        Superior Court stepped beyond its authority when it
        reweighed the evidence, giving more weight to the ‘absent’


15
  We note that 42 Pa.C.S. § 9795.1 and § 9795.4 expired on December 20,
2012. See 42 Pa.C.S. § 9799.41. Section 9799.24 is virtually identical to
Section 9795.4.



                                  - 25 -
J-S53038-16


        factors than those found and relied upon by the trial
        court”).

Id. at 863 (some citations omitted and emphasis added).

     C. Townsend Velkoff, a licensed psychologist, testified at the hearing

on January 13, 2016, as to the following. He:

        was provided with material from the assessment board
        investigator that included the Pennsylvania state police
        incident report and investigative report, the criminal
        charges and complaint, the affidavit of probable cause, the
        Lycoming County Child Protective Services record, the
        Childline report.[16] It included a protection from abuse
        order, and it also included information about [Appellant’s]
        prior offense from New York State. There was an incident
        report of that from New York State.

R.R. at 68a. In making a SVP assessment, he considered whether Appellant

“display[ed] a personality disorder, a mental abnormality disorder and also

whether he has displayed predatory behavior.”      Id. at 69a.   He indicated

there are fourteen factors that are considered. Id.

        [I]f an individual has offended a child or has a pattern of
        offending behavior related to prepubescent children, that’s
        significant with regard to risk for re-offense because the
        literature is very clear that individuals who display sexual
        interest in children have a much higher risk of re-offense
        than those that do not have that interest.



16
   The Childline report is referred to by Trooper Tyson Havens of the
Pennsylvania State Police. He testified that he had very little information
when he interviewed Appellant on August 19, 2014. The information he had
“was on the fax from Children & Youth which was basically what the aunt
had told the Childline or Children & Youth caller when─I think it’s [Mother’s]
aunt made the initial call.” R.R. at 51a.




                                    - 26 -
J-S53038-16


Id. He testified that Appellant molested his prepubescent seven-year-old17

daughter. Id. The age of the child is related “in a very significant way” to

mental abnormality. Id.

          [W]ith regard to finding mental abnormality [he]
          considered whether [Appellant met] any diagnostic criteria
          from the Diagnostic and Statistical Manual of Mental
          Disorders that would document whether he displays or
          meets diagnostic criteria for one of the paraphilias. And in
          this case, because he was molesting his daughter for well
          more than six months, he met diagnostic criteria for
          pedophilic disorder which support the conclusion that he
          has a mental abnormality.

                                  *     *      *

          [Appellant] does display pedophilic disorder and the
          mental abnormality aspect of the definition of sexually
          violent predator, it’s assumed then that [he] displays a
          lifetime condition and that this condition overrode his
          emotional and volitional control, thus resulting in the
          offending behavior.

                                  *     *      *

          There was evidence of predatory behavior as described in
          the file material with respect to him waiting until his wife
          was out of the home before initiating this behavior with his
          daughter . . . .

Id. at 69a-70a.

     Appellant had prior criminal offenses, both sexual and non-sexual. Id.

at 69a.      He had driving offenses and he was charged with forceable


17
   We note that the docket indicates the date of the offense was July 1,
2013. Child testified she was six years old when she told her mom what had
happened. R.R. at 130a. Child testified on October 19, 2015 that she was
eight years old. R.R. at 7a.



                                      - 27 -
J-S53038-16


touching in New York for fondling his sister-in-law.         Id.   His overall

professional opinion was that Appellant met the criteria to be classified as an

SVP. Id. at 70a. This opinion was rendered within a reasonable degree of

professional certainty. Id.

      Appellant was not using illegal substances. Velkoff considered this fact

in the assessment.

         [T]he fact that he wasn’t using illegal substances during
         the commission of these offenses would mean that he’s
         acting from a sober state. In other words, it can’t be
         argued that he was acting impulsively because he was
         impaired. Instead he was acting impulsively because of
         some erotic urge. So in terms of my assessment of him
         based on the file material, I would see the lack of use of
         illegal substances as slightly more risky.

Id. at 75a.

      The trial court opined:

            As far as the finding that [Appellant] is a sexually
         violent predator, such was based on evidence offered by
         the Commonwealth at a hearing on January 13, 2016,
         specifically the expert opinion of [Velkoff] who was
         qualified by the court as an expert in this area. Of special
         significance to Mr. Velkoff’s opinion were the facts that the
         victim was seven years old, which supported his conclusion
         that there was a high risk of re-offense, and that the
         offenses took place over a period of more than six months,
         which supported a finding of pedophilic disorder, a mental
         abnormality. He also considered that [Appellant] had a
         prior conviction involving a sexual offense, and that he
         displayed predatory and manipulative behavior.

Trial Ct. Op., 3/17/16, at 4-5.

      Velcoff considered whether Appellant displayed a personality disorder,

a mental abnormality disorder, and also whether he displayed predatory


                                    - 28 -
J-S53038-16


behavior. See Prendes, 97 A.3d at 357-58. He opined that Appellant had

a high risk of re-offense. See id. He considered the statutory factors. See

42 Pa.C.S. §§ 9799.12, 24; Brooks, 7 A.3d at 863. Velcoff concluded that

Appellant met the criteria to be classified as an SVP.       See 42 Pa.C.S. §

9799.24; Brooks, 7 A.3d at 863.       Viewing the evidence in the light most

favorable to the Commonwealth, we find the evidence was sufficient to

support Appellant’s SVP designation. See Prendes, 97 A.3d at 355-56.

      Third, Appellant contends “the Commonwealth failed to present

sufficient evidence to support a conviction for the offense of unlawful

restraint of a minor in accordance with 18 Pa.C.S.A. § 2902(c)(1) by failing

to offer any evidence that Appellant placed [Child] in actual danger of a

substantial risk of death or serious bodily injury.” Appellant’s Brief at 20.

      As noted above, the standard of review for a challenge to the

sufficiency of the evidence is de novo. Ratsamy, 934 A.2d at 1235.

      Section 2902(c)(1) of the Crimes Code provides:

         (c) Unlawful restraint of minor where offender is
         victim's parent.─If the victim is a person under 18 years
         of age, a parent of the victim commits a felony of the
         second degree if he knowingly:

            (1) restrains another unlawfully in circumstances
            exposing him to risk of serious bodily injury[.]

18 Pa.C.S. § 2902(c)(1). Serious bodily injury is defined as “[b]odily injury

which creates a substantial risk of death or which causes serious, permanent




                                     - 29 -
J-S53038-16


disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S. § 2301.18

      The trial court opined:

         The Commonwealth argues that the evidence that
         [Appellant’s] body weight on top of [Child’s] body during
         the intercourse caused [Child] to not be able to breathe
         and thus exposed her to the risk of suffocation, was
         sufficient to support the charge. The court agrees. [Child]
         testified that “I couldn’t scream or anything like that when
         he was on top of me because he was so heavy, and he was
         going like this on my mouth. And I could barely breathe,”
         and that [Appellant] “would get on top of me and do this,
         like cover my nose so I can’t scream or breathe or
         anything, then I pass out, and when he did this a little bit
         later I wake up from him doing this.” She also stated in an
         interview, a videotape of which was shown to the jury, that
         she couldn’t breathe because her father was hurting her,
         and she couldn’t scream because she couldn’t breathe.
         The evidence that [Appellant’s] restraint of [Child] with his
         body weight and by covering her mouth caused her to pass
         out is clearly sufficient to support a finding that there was
         an “actual danger of harm.”

Trial Ct. Op., 2/22/16, at 2 (citations and footnote omitted).

      Appellant exposed Child to the risk of suffocation that creates a

substantial risk of death or serious bodily injury.        See 18 Pa.C.S. §

2902(c)(1). We find the evidence was sufficient to support a conviction for

unlawful restraint of a minor. See 18 Pa.C.S. § 2902(c)(1); Ratsamy, 934

A.2d at 1235.




18
  We note that Appellant cites 18 Pa.C.S. § 2602 for the definition of serious
bodily injury. Chapter 26 refers to “Crimes Against Unborn Child.”



                                    - 30 -
J-S53038-16


         In his fourth issue, Appellant claims the trial court erred in denying his

motion for a mistrial due to the Commonwealth’s statement during the

opening argument that revealed inadmissible evidence to the jury, viz., that

Child’s mother got a protection from abuse act (“PFA”) order against

Appellant. Appellant’s Brief at 22. Appellant contends that this reference to

the PFA “strongly suggests the jurors would conclude a prior court or even a

prior jury had already determined Appellant committed these offenses.” Id.

at 23.

         Our standard of review of a trial court’s refusal to grant a request for a

mistrial is well established:

               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. A mistrial is
               an extreme remedy . . . [that] . . . must be granted
               only when an incident is of such a nature that its
               unavoidable effect is to deprive defendant of a fair
               trial. A trial court may remove taint caused by
               improper       testimony        through       curative
               instructions. Courts must consider all surrounding
               circumstances     before    finding    that    curative
               instructions were insufficient and the extreme
               remedy of a mistrial is required. The circumstances
               which the court must consider include whether the
               improper remark was intentionally elicited by the
               Commonwealth, whether the answer was responsive
               to the question posed, whether the Commonwealth
               exploited the reference, and whether the curative
               instruction was appropriate.

Commonwealth v. Bracey, 831 A.2d 678, 682-83 (Pa. Super. 2003)

(emphasis added and quotation marks and citations omitted).

         During opening remarks to the jury, the Commonwealth stated:


                                       - 31 -
J-S53038-16


          Finally, [Child will] tell you that when she had had
       enough, because it was really bothering her, she went to
       her mom . . . . She went to her mother while her mother
       was cooking breakfast, and she said I don’t want daddy
       sleeping with me anymore. Why not? Because daddy is
       touching me. You’ll hear that [Mother] immediately threw
       [Appellant] out of the house. You’ll hear that she got a
       PFA. [Appellant] eventually was arrested.

          Now, you’re going to see the interview with Trooper
       Havens of when [Appellant] was arrested; and you’re
       going to hear he doesn’t exactly come out and admit what
       happened because he can’t bring himself to say what he
       did to his daughter. You’re not going to hear the words I
       did such and such from him.

           But you’re going to have to listen to the words carefully,
       and you will realize the words he does say exactly convey
       that message. Not only those words, but the words that
       he said to Children & Youth worker Elizabeth Spagnuolo
       when she called him on the phone to talk to him about the
       allegations, the words that he said to Sheriff’s Deputy
       Brian Rockwell when he served the PFA to [Appellant], and
       the words and notes that he left behind for the children
       after he moved out and they came back to the home that
       were found by her mother.

           Now, more importantly, during the trial today you’re
       going to hear the words of [Child], the eight-year-old little
       girl. You’re going to hear her testimony today, and you’re
       also going to see her testimony from when she was
       interviewed by a forensic interviewer at the Children’s
       Advocacy Center in Northumberland County right after this
       happened.

          And keep in mind, ladies and gentlemen, this is an
       eight-year-old testifying. She may not say things in the
       terms that you and I would because obviously we’re using
       adult terms. I’m just asking you to carefully listen to her,
       as you will all witnesses; and in the end you will be
       convinced beyond a reasonable doubt that [Appellant] is
       guilty. And I’ll be coming back and asking you to render
       that verdict. Thank you.



                                   - 32 -
J-S53038-16


R.R. at 3a.

      The court held an on-the-record sidebar discussion, out of the

presence of the jury.    Defense counsel objected to the Commonwealth’s

mention of the PFA and asked for a mistrial.       Id.   The court denied the

request and stated it would give a curative instruction. Id. The court gave

the following instruction:

             Ladies and gentlemen, during her opening statement
         [the Commonwealth] mentioned to you that there was a
         PFA. A PFA is what they call a Protection From Abuse Act.
         It is a civil proceeding and perhaps has nothing to do with
         this case directly, and no negative inferences can be taken
         against [Appellant] as a result of the PFA. And you are
         instructed that you are to give that no weight other than
         the fact that it was one of the things in the succession of
         events that occurred with respect to the actions of
         [Appellant’s] wife.

R.R. at 4a.

      Child’s mother testified at trial and the Commonwealth did not

reference the PFA.    The Commonwealth asked Mother what she did after

Child made “a complaint concerning what this trial is about[.]” R.R. at 29a.

         [The Commonwealth]: And what did you do when she
         came to you and told you that?

         A: I went and confronted [Appellant].

                                *      *       *

         I went and confronted him about it, and he tried to deny it
         at first.

         Q: Well, what did you say?




                                      - 33 -
J-S53038-16


         A: I asked him what he had been doing to our daughter.
         And then he said that he inappropriately touched her, but
         it wouldn’t happen again. I told him to get out, that he
         was supposed to be her father, not doing those things to
         her. He was supposed to be protecting her.

         Q: Now, subsequently you would have─you would have left
         the house with the children?

         A: I did.

         Q: And at some point did you come back when he was no
         longer staying there?

         A: I did.

R.R. at 29a-30a.

      The trial court opined:

         As it turns out, the Commonwealth did not subsequently
         introduce any evidence of the PFA, but elicited from
         [Child’s] mother only that she “told him to get out” and
         that she left the house with the children and returned only
         after [Appellant] was no longer staying there. Thus, in
         light of the court’s prior instruction to the jury that the
         statements and arguments of counsel are not evidence,
         the court believes the jury did not consider the matter at
         all, let alone give it undue weight. The statement was
         insignificant in the context of a consideration of all of the
         evidence, and clearly did not deprive [Appellant] of a fair
         trial.

Trial Ct. Op., 2/22/16, at 6-7 (footnote and citation omitted).

      The trial court gave a curative instruction to the jury that removed any

possible taint by the prosecutor’s reference to the PFA.    See Bracey, 831

A.2d at 682-83.      We discern no abuse of discretion by the trial court in

denying the motion for a mistrial. See id.




                                    - 34 -
J-S53038-16


     Lastly, Appellant contends “the trial court erred in permitting the

Commonwealth to admit [Child’s] prior recorded interview as substantive

evidence in accordance with 42 Pa.C.S.A. § 5985.1.” Appellant’s Brief at 24.

Appellant avers that “[t]he statements in question, and [Child’s] statements

in general, do not possess consistency in repetition and further suggest the

mental state of the declarant is that of someone who is incapable of

understanding the truth.” Id. at 26.

     On October 14, 2015, the trial court granted the Commonwealth’s

motion to admit the recorded interview. The trial court opined:

        Here [Child] testified at trial and thus the only issue
        presented by the motion was whether there were sufficient
        indicia of reliability. . . .

           The interview was conducted by Sherry Moroz in a room
        at the Children’s Advocacy Center and was videotaped,
        although it appears that [Child] was unaware that she was
        being taped.    Ms. Moroz usually asked rather general
        questions like, “is someone worried that something has
        happened with you?”, “What kinds of things happened?”,
        “do you remember what happened?”, and “tell me about
        that”. And when she did ask a more specific question,
        such as (in response to [Child] stating “he was touching
        me”), “who was touching you?”, she never suggested an
        answer. While the statements were not spontaneous in
        the sense of being blurted out for no apparent reason, they
        were given in response to such vague prompts that the
        court finds spontaneity sufficient to support reliability.

           [Child] was consistent in repetition. . . . While she
        stated at other times, in court hearing, that more things
        happened than she talked about in the interview, at that
        interview she told Ms. Moroz that she knew other things
        had happened but could not remember what they were.
        Her statement was thus consistent with even other
        statements given subsequently.


                                   - 35 -
J-S53038-16



              [Child’s] mental state during the interview was calm;
           her demeanor was very matter-of-fact and she was not
           emotional. While she expressed hesitation to say certain
           things out loud or at all, preferring to write them down
           (the word “sex” and two “swear words”), this did not seem
           to upset her. She described other events (which have
           been described by others and thus provide a basis to
           conclude they are accurate) with clarity and accuracy and
           thus indicated that her mental state was clear and
           unaffected.

              [Child] used terms expected to be used by children her
           age, such as “ladybug” and “manbug” rather than correct
           anatomical terms. This suggests that she was describing
           the events in her own words and that she had not been
           coached.

              Finally, there was no evidence of any motive to
           fabricate.

              Therefore, the court believes it correctly admitted the
           interview as substantive evidence under section 5985.1,
           and [Appellant] is not entitled to a new trial on that basis.

Trial Ct. Op., 2/22/16, at 8-9.

        Our review is governed by the following principles:

              An appellate court’s standard of review of a trial court’s
           evidentiary rulings, including rulings on the admission of
           hearsay and determinations of witness competency, is
           abuse of discretion. However, issues of statutory
           interpretation are questions of law, over which our
           standard of review is de novo and our scope of review is
           plenary.

Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. Super. 2014) (citations

omitted).19


19
     We note that the Pennsylvania Supreme Court in Walter



                                      - 36 -
J-S53038-16


     Section 5985.1 provides:

        (a) General rule.─An out-of-court statement made by a
        child victim or witness, who at the time the statement was
        made was 12 years of age or younger, describing any of
        the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to
        criminal homicide), 27 (relating to assault), 29 (relating to
        kidnapping), 31 (relating to sexual offenses), 35 (relating
        to burglary and other criminal intrusion) and 37 (relating
        to robbery), not otherwise admissible by statute or rule of
        evidence, is admissible in evidence in any criminal or civil
        proceeding if:

           (1) the court finds, in an in camera hearing, that the
           evidence is relevant and that the time, content and
           circumstances of the statement provide sufficient indicia
           of reliability; and

           (2) the child either:

              (i) testifies at the proceeding; or

              (ii) is unavailable as a witness.




        Consider[ed] whether the Superior Court erred in holding
        the trial court was required to determine that the child
        victim was competent to testify under Pa.R.E. 601 prior to
        admitting her out-of-court statements into evidence
        pursuant to the Tender Years Hearsay Act (“TYHA”), 42
        Pa.C.S.A. § 5985.1. We hold that a determination of a
        child’s competency pursuant to Rule 601 is not a
        prerequisite to the admission of hearsay statements under
        the TYHA, and, therefore, we reverse the decision of the
        Superior Court and remand for further proceedings.

Id. at 444-45. We note that in the case sub juice there was a competency
hearing. See R.R. at 205a-224a.




                                     - 37 -
J-S53038-16


42 Pa.C.S. § 5985.1(a)(1)-(2)(i-ii).

      The Walter Court opined:

         the TYHA concerns the admissibility of out-of-court
         statements made by a child victim or witness to third
         parties.    The admissibility of this type of hearsay is
         determined by assessing the particularized guarantees of
         trustworthiness surrounding the circumstances under
         which the statements were uttered to the person who is
         testifying. To determine whether a child’s out-of-court
         statements are admissible under the TYHA,

            a trial court must assess the relevancy of the
            statements and their reliability in accordance with
            the test enunciated in Idaho v. Wright, [497 U.S.
            805 (1990)]. Although the test is not exclusive, the
            most obvious factors to be considered include
            the spontaneity of the statements, consistency
            in repetition, the mental state of the declarant,
            use of terms unexpected in children of that age
            and the lack of a motive to fabricate.

Walter, 93 A.3d at 451 (quotation marks and some citations omitted and

emphasis added).     “The tender years statute creates an exception to the

hearsay rule in recognition of the fragile nature of young victims of sexual

abuse.” Commonwealth v. Curley, 910 A.2d 692, 697 (Pa. Super. 2006)

(quotation marks and citation omitted).

      In the case sub judice, Child testified at trial. Therefore, as the trial

court found, the only issue was whether the Walter test was satisfied. The

record substantiates the trial court’s findings of sufficient spontaneity, Child

was consistent in repetition, her mental state was calm, Child used terms

expected of children her age, and there was no evidence of a motive to




                                       - 38 -
J-S53038-16


fabricate. We discern no abuse of discretion or error of law. See Walter,

93 A.3d at 449; Curley, 910 A.2d at 697.

     For all of the foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2016




                                  - 39 -
