J-A26039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARL WILLIAM SACHETTE,

                            Appellant                 No. 1764 MDA 2014


          Appeal from the Judgment of Sentence September 23, 2014
             in the Court of Common Pleas of Cumberland County
               Criminal Division at No.: CP-21-CR-0003127-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 24, 2015

        Appellant, Carl William Sachette, appeals from the judgment of

sentence imposed pursuant to his jury conviction of unlawful contact with a

minor (obscene and other sexual materials), corruption of minors, and open

lewdness.1 We affirm.

        We take the following pertinent facts from the trial court’s January 23,

2015 opinion.

              M.D., the juvenile victim, was born on June 7, 2002, and
        lives at the Pike Motel, across the street from [Appellant], with
        her parents, her two brothers, and her sister. The front of her
        house faces the front of [Appellant’s].       Both houses have
        windows in the front that are positioned such that one can see
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6318(a)(4), 6301(a)(1), and 5901, respectively.
J-A26039-15


     into [Appellant’s] house from the front window of M.D.’s house.
     On one occasion, M.D., looking out her window, saw [Appellant]
     naked in his window. M.D. was not able to see [Appellant’s] face
     but did see his unclothed torso, penis, and thighs.         While
     standing naked in his window, [Appellant] waved at M.D. M.D.
     testified that she had previously seen [Appellant] without a shirt
     on and recognized his torso. She also testified that she had not
     seen anyone else at [Appellant’s] home on that day. On another
     occasion, M.D. was outside playing with one of her brothers
     when she saw [Appellant] standing in his doorway naked. M.D.
     testified that she could see [Appellant’s] penis, which made her
     uncomfortable.

           M.D. . . . was shown two photographs by [Appellant], one
     of an adult penis with “sparkles and glitter” on it and one of an
     adult bald penis. [(N.T. Trial, 5/12/14, at 35).] [Appellant] told
     M.D., “the more you look, the more candy you get.” [(Id. at
     36).]     Both photographs were on [Appellant’s] phone.
     [Appellant] told M.D. that he had two phones, “one was for
     naked pictures and one was for other things.” [(Id. at 33).]

           . . . [T]he above incidents occurred when M.D. was eleven
     years old during her summer vacation. . . .

                                *    *    *

           [On September 13, 2013,] [a]s a result of the search
     warrant [obtained by Detective Gerald Steigleman of the
     Middlesex Township Police], two cell phones were seized from
     [Appellant’s] residence, a Samsung flip phone and a Motorola flip
     phone.     Detective Steigleman sent both phones to the
     Cumberland County laboratory to be analyzed by Detective
     [Ryan] Parthemore.

           Detective Parthemore, a detective with the Upper Allen
     Township Police Department and supervisor of the Cumberland
     County District Attorney’s Office computer forensics laboratory,
     analyzed the Samsung phone seized from [Appellant’s]
     residence.    On that phone, Detective Parthemore found a
     photograph of a penis covered with glitter and two photographs
     of plain penises, i.e., without glitter. The exchangeable image
     format (EXIF) data attached to those pictures indicated that they
     were taken by the same model of Samsung phone seized from
     [Appellant’s] residence.

                                    -2-
J-A26039-15



(Trial Court Opinion, 1/23/15, at 2-5) (footnotes omitted).

      The Commonwealth arrested Appellant and, in addition to the above

mentioned crimes, charged him with the indecent exposure, 18 Pa.C.S.A. §

3127(a), and obscene materials, 18 Pa.C.S.A. § 5903(a)(3)(i). A jury trial

commenced on May 12, 2014.            On May 13, 2014, the jury convicted

Appellant of unlawful contact with a minor (obscene and sexual materials),

corruption of minors, and open lewdness, and found him not guilty of

obscene materials and indecent exposure. On June 3, 2014, Appellant filed

a post-trial motion for judgment of acquittal, which the court denied on

August 11, 2014, after argument by the parties. On September 23, 2014,

after a hearing, the trial court found Appellant to be a sexually violent

predator (SVP).   The same day, it sentenced him to a mandatory term of

incarceration of not less than twenty-five nor more than fifty years on the

felony charge of unlawful contact with a minor based on a qualifying prior

conviction.   The misdemeanor charges of corruption of minors and open

lewdness were to run consecutively.

      Appellant timely appealed on October 21, 2014. He filed a timely Rule

1925(b) statement on November 5, 2014 pursuant to the court’s order. See

Pa.R.A.P. 1925(b).   The court filed an opinion on January 23, 2015.     See

Pa.R.A.P. 1925(a).

      Appellant raises two questions with two subparts for our review:




                                      -3-
J-A26039-15


      I.   Whether the trial court erred in denying [Appellant’s]
      motion for judgment of acquittal where the trial record and the
      snafu in the verdict slip demonstrated that felony unlawful
      contact with a minor was not proven beyond a reasonable
      doubt?

            I.A. Assuming insufficient evidence to support the felony
      verdict for unlawful contact with a minor, must the trial court’s
      SVP finding fail?

            I.B. Assuming insufficient evidence to support the felony
      verdict for unlawful contact with a minor, must the sentence be
      vacated?

      II.  Assuming arguendo the trial record supports the verdict for
      unlawful contact with a minor, is the 25 to 50 year sentence
      otherwise unconstitutional?

(Appellant’s Brief, at 8) (most capitalization omitted).

      In his first issue, Appellant challenges the sufficiency of the evidence

to support his conviction of unlawful contact with a minor. Specifically, he

maintains that “the Commonwealth’s proposed jury instruction created a

necessary predicate offense to sustain a conviction[.]”         (Id. at 15).

Appellant’s issue is waived.

      Our Rules provide, in pertinent part, that any issues not raised in a

Rule 1925(b) statement are waived. See Pa.R.A.P. 1925(b)(4)(vii). In his

statement, in pertinent part, Appellant generally asserts that there was

“[i]nsufficient evidence as a matter of law to support [the] guilty verdict[]

for Unlawful Contact with a Minor (Sexual or Obscene Materials),” and that

the trial court “erred in denying the defense motion for judgment of

acquittal.” (Rule 1925(b) Statement, 11/05/14, at unnumbered page 2).


                                      -4-
J-A26039-15


      It is well-settled that:

      when challenging the sufficiency of the evidence on appeal, the
      Appellant’s 1925 statement must “specify the element or
      elements upon which the evidence was insufficient” in order to
      preserve the issue for appeal. [Commonwealth v.] Williams,
      959 A.2d [1252,] 1257 [(Pa. Super. 2008)] (quoting
      Commonwealth v. Flores, 921 A.2d 517, 522-23 (Pa. Super.
      2007)). . . . Here, Appellant . . . 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 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.” Id. at 1257
      (quoting Flores at 522-23).

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

denied, 3 A.3d 670 (Pa. 2010); see also Commonwealth v. Hansley, 24

A.3d 410, 415 (Pa. Super. 2011), appeal denied, 32 A.3d 1275 (Pa. 2011)

(noting that a Rule 1925(b) statement “must be specific enough for the trial

court to identify and address the issue [an appellant] wishe[s] to raise on

appeal”) (internal quotation marks and citation omitted). Here, Appellant’s

vague sufficiency of the evidence claim fails to identify properly the alleged

error to be reviewed on appeal.

      Additionally, we observe that Appellant’s sufficiency of the evidence

issue is premised on claims of error in the verdict slip and jury instructions

that allegedly created an erroneous predicate element, of which Appellant

was acquitted.    (See Appellant’s Brief, at 15-22).      Not only has Appellant

waived any sufficiency challenge in general, any appellate claims regarding

the jury instructions and verdict slip also are waived.

                                     -5-
J-A26039-15


      It is well-settled that:

            . . . In order to preserve a claim that a jury instruction was
      erroneously given, the Appellant must have objected to the
      charge at trial. See Commonwealth v. Spotz,[] 84 A.3d 294,
      318 n. 18 (2014) (citations omitted); Pa.R.A.P. 302(b) (“A
      general exception to the charge to the jury will not preserve an
      issue for appeal. Specific exception shall be taken to the
      language or omission complained of.”); Pa.R.Crim.P. 647(B) (“No
      portions of the charge nor omissions from the charge may be
      assigned as error, unless specific objections are made thereto
      before the jury retires to deliberate.”). . . .

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014), appeal

denied, 117 A.3d 296 (Pa. 2015) (declining to review claim where appellant

failed to raise objection to jury instruction at trial).

      Here, Appellant expressly agreed to the jury charge and verdict slip at

trial. (See N.T. Trial, 5/13/14, at 115-17, 141, 158); (see also Appellant’s

Brief, at 21). Additionally, he utterly failed to challenge the jury instruction

and verdict slip in his Rule 1925(b) statement.            (See Rule 1925(b)

Statement, 11/05/14, at unnumbered page 2).

      Therefore, for all of these reasons, Appellant’s challenge to the

sufficiency of the evidence based on the allegedly erroneous jury instruction

and verdict slip are waived for our review.          See Parker, supra at 29;

Gibbs, supra at 281.       Moreover, Appellant’s claim that the evidence was




                                        -6-
J-A26039-15


insufficient on these bases would not merit relief. (See Appellant’s Brief, at

15-22).2

       The jury convicted Appellant of unlawful contact with a minor, obscene

and other sexual materials, pursuant to section 6318 of the Crimes Code.

(See Verdict, Unlawful Contact with a Minor, 5/13/14). It found Appellant

not guilty of obscene material pursuant to section 5903 of the Crimes Code.

(See Verdict, Obscene Materials, 5/13/14).

       Appellant concedes that, generally, a conviction pursuant to section

6318 “does not require a finding of guilt [on] the underlying offenses.”

(Appellant’s Brief, at 17) (citing Commonwealth v. Reed, 9 A.3d 1138,

1145 (Pa. 2010)). He argues, however, that “a [s]tructural [e]rror” in the

unlawful contact jury instruction and verdict slip, to which he admittedly

agreed, erroneously required the jury to find that the Commonwealth proved

the underlying offense was completed. (Appellant’s Brief, at 20; see id. at

17-22) (see also N.T. Trial, 5/13/14, at 115-16, 141, 158).           Appellant

maintains therefore, that, because he was acquitted of obscene materials,



____________________________________________


2
   “The standard we apply in reviewing the sufficiency of the evidence is
whether viewing all the evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to enable the fact-finder to
find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Best, 120 A.3d 329, 341 (Pa. Super. 2015) (citation
omitted).




                                           -7-
J-A26039-15


he could not be convicted of unlawful contact on this basis, and the evidence

supporting the verdict was insufficient. (See Appellant’s Brief, at 16-22).3

        However, our independent review of the record reveals the trial court

properly instructed the jury that, in order to convict Appellant of unlawful

contact with minors, the Commonwealth was required to prove three

elements, specifically: (1) he intentionally contacted the minor, (2) with the

intent of engaging in an unlawful act, and (3) that he or the minor was

within the Commonwealth at the time.             (See N.T. Trial, 5/13/14, at 148-

49); see also 18 Pa.C.S.A. § 6318. It also advised the jury regarding the

definitions of contact and obscene materials.         (See N.T. Trial, 5/13/14, at

149, 152).

        In discussing the verdict slip, the court told the jury that “you will first

decide if you find [Appellant] guilty or not guilty” based on the above three

elements.     (Id. at 157) (emphasis added).         The court instructed that the

jury was to stop if it found Appellant not guilty. (See id.). It then further
____________________________________________


3
    It is well-settled that:

        When reviewing a challenge to part of a jury instruction, we
        must review the jury charge as a whole to determine if it is fair
        and complete. A trial court has wide discretion in phrasing its
        jury instructions, and can choose its own words as long as the
        law is clearly, adequately, and accurately presented to the jury
        for its consideration. The trial court commits an abuse of
        discretion only when there is an inaccurate statement of the law.

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008), appeal
denied, 962 A.2d 1196 (Pa. 2008) (citation omitted).



                                           -8-
J-A26039-15


explained, “If, instead, you find [Appellant] guilty, then there is a line where

it says you have to specify which unlawful act or acts you found

underlying the charge that [Appellant] has been proven beyond a

reasonable doubt.” (Id.) (emphases added).

       Based on the foregoing, we conclude that there was no abuse of the

trial court’s discretion, and that Appellant’s argument, that the jury

instructions and verdict slip erroneously created a fourth element that was

not proven, would lack merit.          See Jones, supra at 1198.   Accordingly,

Appellant’s claim that the evidence was insufficient on this basis would fail.

See Best, supra at 341.4

       In his second issue, Appellant argues that his mandatory minimum

sentence of not less than twenty-five nor more than fifty years’ incarceration

imposed on the basis of his prior conviction is unconstitutional pursuant to

Alleyne v. U.S., 133 S.Ct. 2151 (2013). (See Appellant’s Brief, at 26-27).

We disagree.

              At the outset, we note that issues pertaining to Alleyne go
       directly to the legality of the sentence. . . . An illegal sentence
____________________________________________


4
  For the sake of completeness, we also observe that the evidence presented
at trial was sufficient to establish the crime of unlawful contact with a minor.
Specifically, the record reflects that Appellant made direct contact with M.D.
with the intent of showing her pictures of male penises that he had on his
phone. (See N.T. Trial, 5/12/14, at 33, 35). Appellant enticed M.D. to look
at the photographs by telling her that the more she looked at the pictures,
the more candy he would give her. (See id. at 36). A search of Appellant’s
phone by the police confirmed M.D.’s statement that Appellant kept the
photographs on his cell phone. (See N.T. Trial, 5/13/14, at 130).



                                           -9-
J-A26039-15


       must be vacated. Issues relating to the legality of a sentence
       are questions of law[.] . . . Our standard of review over such
       questions is de novo and our scope of review is plenary.

Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa. Super. 2014), appeal

denied, 121 A.3d 494 (Pa. 2015) (citations and quotation marks omitted).

       The Pennsylvania Supreme Court has expressly stated:

             . . . [I]n cases where the fact which increases the
       maximum penalty is not a prior conviction and requires a
       subjective assessment, anything less than proof beyond a
       reasonable doubt before a jury violates due process.
       Additionally, any judicial finding which results in punishment
       beyond the statutory maximum must be submitted to a jury and
       proven beyond a reasonable doubt. Where, however, the
       judicial finding is the fact of a prior conviction, submission
       to a jury is unnecessary, since the prior conviction is an
       objective fact that initially was cloaked in all the constitutional
       safeguards, and is now a matter of public record.

Commonwealth v. Aponte, 855 A.2d 800, 811 (Pa. 2004), cert. denied,

543 U.S. 1063 (2005) (emphasis added); see also Almendarez-Torres v.

U.S., 523 U.S. 224, 243-44 (1998);5 Commonwealth v. Valentine, 101

A.3d 801, 809 (Pa. Super. 2014) (“[T]he Alleyne decision . . . renders those

Pennsylvania mandatory minimum sentencing statutes that do not pertain

to prior convictions constitutionally infirm insofar as they permit a judge


____________________________________________


5
  We reject Appellant’s invitation to “find that Almendarez-Torres is no
longer applicable[.]” (Appellant’s Brief, at 27) “As an intermediate appellate
court, we do not enunciate new precepts of law or expand existing legal
doctrines, since that province is reserved to our Supreme Court.” Mountain
Properties, Inc. v. Tyler Hill Realty Corp., 767 A.2d 1096, 1100 (Pa.
Super. 2001), appeal denied, 782 A.2d 547 (Pa. 2001) (citations omitted).



                                          - 10 -
J-A26039-15


to automatically increase a defendant’s sentence based on a preponderance

of the evidence standard.”) (citations omitted).

      Here, the trial court sentenced Appellant to a mandatory minimum

sentence   of   not   less    than   twenty-five    nor   more   than   fifty    years’

imprisonment on the basis of his prior conviction of a sexual offense

involving a minor, specifically involuntary deviate sexual intercourse. (See

Order, 9/23/14, at 1; N.T. Sentencing, 9/23/14, at 28).

      Based on the foregoing precedent, we conclude that the court’s

sentence was not unconstitutional. See Aponte, supra at 811; see also

Almendarez-Torres,           supra   at   243-44;   Valentine,    supra     at    809.

Appellant’s second issue does not merit relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2015




                                          - 11 -
