J-S05015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PHILLIP D. COLTON,

                            Appellant                 No. 53 MDA 2015


      Appeal from the Judgment of Sentence Entered September 23, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000454-2013

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PHILLIP D. COLTON,

                            Appellant                 No. 54 MDA 2015


      Appeal from the Judgment of Sentence Entered September 23, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000531-2014


BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 05, 2016

        Appellant, Phillip D. Colton, appeals from the September 23, 2014

judgment of sentence of an aggregate term of 30 to 60 years’ incarceration,


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*
    Retired Senior Judge assigned to the Superior Court.
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imposed after he was convicted of various sexual offenses, including rape of

a child, rape of a mentally disabled person, aggravated indecent assault of a

mentally disabled child, and aggravated indecent assault of a person less

than 13 years of age.1 Appellant challenges multiple evidentiary rulings by

the trial court, as well as the legality of several mandatory minimum

sentences imposed pursuant to 42 Pa.C.S. § 9718. After careful review, we

affirm Appellant’s convictions, but vacate his judgment of sentence and

remand for resentencing.

       Appellant was arrested in March of 2013 and charged with numerous

counts of various sexual offenses committed against a minor female victim,

the mentally disabled granddaughter of Appellant’s paramour.      The victim

alleged that Appellant abused her from the time she was 10 years old until

she was 13 years old, with Appellant being 52 to 55 years old during those

years. Appellant’s abuse included rubbing the victim’s vagina with his hands

and penis, performing oral sex on her and requiring her to perform oral sex

on him, taking pictures of the victim’s naked body, and making the victim

watch pornography.

       In July of 2013, Appellant accepted a plea agreement from the

Commonwealth, by which he would plead guilty to aggravated indecent
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1
  Appellant’s convictions were imposed at two separate trial court docket
numbers, and he filed notices of appeal in each. This Court sua sponte
consolidated Appellant’s appeals by per curiam order filed on January 28,
2015.



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assault in exchange for the Commonwealth’s recommending a sentence of 5

to 10 years’ incarceration and asking the court to nol pros the other charges

pending against Appellant. On August 5, 2013, Appellant entered his guilty

plea before the trial court, after which the court ordered a presentence

investigation report (PSI) to be prepared.      After receiving that report,

however, the trial court informed the parties that it would reject the agreed

upon sentence.   Accordingly, Appellant moved to withdraw his guilty plea,

which the court granted.

     Appellant’s case ultimately proceeded to a jury trial on July 1, 2014.

At the close thereof, the jury convicted Appellant of multiple counts of rape

of a mentally disabled person (18 Pa.C.S. § 3121(a)(5)), rape of a child (8

Pa.C.S. § 3121(c)), statutory sexual assault (18 Pa.C.S. § 3122.1(b)),

involuntary deviate sexual intercourse (IDSI) with a mentally disabled

person (18 Pa.C.S. § 3123(a)(5)), IDSI with a person less than 16 years of

age (18 Pa.C.S. § 3123(a)(7)), IDSI with a child (18 Pa.C.S. § 3123(b)),

aggravated indecent assault (AIA) of a child (18 Pa.C.S. § 3125(b)), AIA of a

mentally disabled person (18 Pa.C.S. § 3125(a)(6)), AIA of a person less

than 13 years old (18 Pa.C.S. § 3125(a)(7)), sexual abuse of children (18

Pa.C.S. § 6312(b)), disseminating sexually explicit materials to a minor (18

Pa.C.S. § 5903(c)(1)), indecent assault of a person less than 13 years old

(18 Pa.C.S. § 3126(a)(7)), and indecent assault of a mentally disabled

person (18 Pa.C.S. § 3126(a)(6)).




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         On September 23, 2014, Appellant was sentenced to an aggregate

term of 30 to 60 years’ imprisonment, which included several mandatory

minimum sentences under 42 Pa.C.S. § 9718 (“Sentences for offenses

against infant persons”).       Appellant filed a timely post-sentence motion,

which was denied. He then filed a timely notice of appeal, and also timely

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement.

Herein, Appellant raises four issues for our review:

         A. Did the trial court err in denying [Appellant’s] motion in limine
         with respect to allowing testimony at his jury trial of his
         incriminating statements to Probation Officer Chad Miller during
         the pre-sentence investigation interview process, before the
         withdrawal of his guilty pleas?

         B. Did the trial court err in disallowing character testimony for
         the traits of peacefulness and non-violence, in allowing
         impermissible and argumentative cross-examination outside of
         the scope of direct examination of [Appellant’s] character
         witnesses, and in striking character testimony from the record?

         C. Did the trial court err in granting the Commonwealth’s motion
         in limine with respect to preventing the defense from presenting
         an illustration of reasonable doubt during closing summation?

         D. Did the sentencing court err in imposing mandatory minimum
         sentences pursuant to 42 Pa.C.S.A. §[]9718?

Appellant’s Brief at 26-27 (unnecessary capitalization omitted).

         Appellant’s first three issues challenge evidentiary rulings by the trial

court.

         “Admission of evidence is within the sound discretion of the trial
         court and will be reversed only upon a showing that the trial
         court clearly abused its discretion.” Commonwealth v.
         Drumheller, 570 Pa. 117, 135, 808 A.2d 893, 904 (2002), cert.
         denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003)
         (quoting Commonwealth v. Stallworth, 566 Pa. 349, 363, 781

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      A.2d 110, 117 (2001)); Commonwealth v. Collins, 70 A.3d
      1245, 1251 (Pa. Super. 2013). “An abuse of discretion is not
      merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will
      or partiality, as shown by the evidence of record.”
      Commonwealth        v.    Harris,   884     A.2d     920,     924
      (Pa.Super.2005), appeal denied, 593 Pa. 726, 928 A.2d 1289
      (2007).

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015).

      In Appellant’s initial issue, he maintains that the trial court erred by

denying his pretrial motion in limine seeking to preclude the Commonwealth

from admitting statements he made to Centre County Probation Officer Chad

Miller (“PO Miller”) during the officer’s compilation of a presentence

investigation report (PSI) following Appellant’s initial guilty plea. According

to Appellant, PO Miller included the following summary of the statements

Appellant made to him in the completed PSI:

      [Appellant] disagrees with the statements in the Affidavit of
      Probable Cause. He advised this officer this whole thing is blown
      out of proportion. [Appellant] claims he is not guilty in the way
      these offenses have been alleged against him.           [Appellant]
      stated that if he tried to fight this he would spend the rest of his
      life in jail. He informed this officer he had contact with the
      victim but it was not for his gratification. [Appellant] reported
      the victim is mentally challenged and she came to him to learn.
      [Appellant] stated he worked with her [to] prove to her that she
      was not stupid. [Appellant] informed this officer the victim is a
      hands on child and she has to learn by doing. [Appellant] also
      stated the victim has an imagination. [Appellant] advised this
      officer he went out with the victim’s grandmother, [M.F.], for
      twenty-five years.        He also reported having twenty-one
      grandchildren who he could put on the stand to testify for him.
      [Appellant] stated to this officer he did not want to destroy the
      victim.

Appellant’s Brief at 41.

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       Appellant asserted in his motion in limine that the statements he made

to PO Miller were inadmissible under Pa.R.E. 410(a)(3) and Pa.R.Crim.P.

590, which together preclude the admission of statements made during the

course of plea proceedings.2         The trial court ultimately denied Appellant’s

motion in limine, concluding that the relied upon rules only exclude

“statements made during plea discussions[,] but would not exclude the

statements at issue here, voluntary statements made to the probation officer

during a PSI.” Trial Court Opinion (TCO), 3/31/15, at 2.

       Despite the court’s ruling permitting PO Miller’s testimony, the

Commonwealth did not call him to the stand during Appellant’s trial, or

introduce any evidence regarding Appellant’s remarks to the officer.

Consequently, the trial court now “maintains this issue is a moot point as the

Commonwealth did not introduce these statements.” Id. at 3. In response,

Appellant contends that the issue is not moot because, based on the court’s

denial of his motion in limine, he “elected not to testify on his [own]

behalf[,]” fearing that if he did so, the Commonwealth would be permitted

“to cross-examine him with respect to these statements or to present his




____________________________________________


2
  Rule 410(a)(3) states: “In a civil or criminal case, evidence of the following
is not admissible against the defendant who made the plea or participated in
plea discussions: … (3) a statement made in the course of proceedings
under Rule[] … 590 of the Pennsylvania Rules of Criminal Procedure….” Rule
590 sets forth mandates governing pleas and plea agreements.



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prejudicial and inflammatory statements on rebuttal.”         Appellant’s Brief at

42-43.

     Appellant’s    argument    is   unconvincing.    As      Appellant   correctly

acknowledges, this Court “has found that a defendant’s statements to a pre-

sentence investigator could be used for impeachment purposes.” Id. at 45

(citing Commonwealth v. Smith, 710 A.2d 1179 (Pa. Super. 1998),

overruled on other grounds by Commonwealth v. Morris, 958 A.2d 569

(Pa. Super. 2008)).     In other words, even if the court had granted

Appellant’s motion in limine and precluded the Commonwealth from

admitting evidence of his statements to PO Miller in its case in chief, the

Commonwealth would have been allowed to admit that evidence to impeach

Appellant’s testimony had he taken the stand.         See Smith, (“[E]ven if

suppression   [of   Smith’s    statements   made     during     the   presentence

investigation] were warranted, the information would only be excluded from

the Commonwealth’s case in chief. Even voluntary statements suppressed

because of constitutional violations, such as a lack of Miranda warnings, are

admissible for purposes of impeachment.”). Therefore, we reject Appellant’s

argument, and agree with the trial court that his challenge to the denial of

his motion in limine is moot, given that the Commonwealth did not admit

evidence of Appellant’s statements to PO Miller.

     Next, Appellant argues that the court erred by not permitting him to

present character witnesses to testify pertaining to his reputation in the

community for peacefulness and non-violence. Instead, the trial court only

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permitted Appellant’s four character witnesses to testify as to his “reputation

for law-abidingness.” Appellant’s Brief at 56 (citation to the record omitted).

In   claiming   the   court’s   ruling   was   erroneous,   Appellant   relies   on

Commonwealth v. Luther, 463 A.2d 1073 (Pa. Super. 1983), where this

Court stated that, “[i]n a rape case, evidence of the character of the

defendant would be limited to presentation of testimony concerning his

general reputation in the community with regard to such traits as non-

violence or peaceableness, quietness, good moral character, chastity, and

disposition to observe good order.”       Luther, 463 A.2d at 1078 (citations

omitted).

      Appellant improperly interprets Luther as holding that a court must

always admit, in a rape case, character evidence pertaining to the

defendant’s reputation for non-violence or peacefulness.        He cites no case

law construing Luther in this manner, and we have found none.                    We

acknowledge that rape has been defined as a “crime of violence” in the

mandatory minimum sentencing statute of 42 Pa.C.S. § 9714(g). However,

this fact alone does not compel us to adopt the interpretation of Luther put

forth by Appellant. Notably, we stressed in Luther (and many subsequent

cases) that, “[e]vidence of good character offered by a defendant in a

criminal prosecution must be limited to his general reputation for the

particular trait or traits of character involved in the commission of the crime

charged.”   Id. at 1077 (emphasis added).          Here, nothing in the record

suggests (and Appellant does not argue) that violence was involved in the

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commission of the crimes for which he was tried.        The lack of force or

violence in the commission of Appellant’s crimes stands in sharp contrast to

the facts of Luther, where the victim alleged that Luther raped her while

holding a knife to her throat and threatening to harm both her and her

young son.    Id. at 1075.   Clearly, Luther’s reputation for peacefulness or

non-violence was relevant to the charge of rape pending against him and,

thus, character evidence pertaining to his reputation for those traits was

admissible. Appellant offers no argument regarding why the character traits

of non-violence or peacefulness were relevant in his case. Accordingly, he

has failed to demonstrate that the court abused its discretion by limiting his

character evidence to Appellant’s reputation for law-abidingness.

      Appellant also argues, however, that the trial court erred by allowing

the prosecutor to “engage[] in impermissible and argumentative cross-

examination of [Appellant’s] four character witnesses, and the [t]rial [c]ourt

abused its discretion in sustaining prosecution objections and in striking

testimony.”   Appellant’s Brief at 56.   Appellant goes on to essentially list

objections made by the Commonwealth that the court should not have

sustained, as well as questions by the prosecution that the court should not

have allowed. See id. at 56-57. However, he offers no discussion of why

these rulings were in error, nor does he cite any legal authority to support

his claims. For instance, Appellant baldly claims:

      The [t]rial [c]ourt further erred in sustaining the prosecution’s
      objection to the question posted to [Appellant’s] granddaughter,
      Melinda Webster: “During the 21 years that you have known

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      your grandfather, how frequently would you come into contact
      with him[?”] (N.T., 07/01/14, pp. 180-181).      … The [t]rial
      [c]ourt erred in allowing the prosecution to question Justin G.
      Allen as to what he knew about the allegations against
      [Appellant]. (N.T., 07/01/14, pp. 200-214).

Id. at 57.   Because Appellant does not explain why these rulings by the

court were erroneous, or cite any law to support such a claim, he has waived

these undeveloped arguments for our review.           See Commonwealth v.

Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (stating that this court may

find issues waived where the appellant violates his “duty to present

arguments that are sufficiently developed for our review” by not supporting

his “claims with pertinent discussion, with references to the record and with

citations to legal authorities”).

      Appellant also offers little explanation to bolster his claim that the trial

court erred by striking the testimony of two of his character witnesses,

instead simply stating:

      Larry Allen, who had known [Appellant] for twenty-three years,
      testified on direct examination that [Appellant] had a reputation
      in the community for being law-abiding and that he never heard
      any remark that reflected negatively upon his reputation for
      being a law-abiding citizen. The [t]rial [c]ourt erred in striking
      his testimony. … It was additional error for the [t]rial [c]ourt to
      strike the testimony of William Sterling Hollabaugh who
      specifically testified that during the twenty-three years that he
      had known [Appellant], he had never heard any remark which
      reflected negatively upon [Appellant’s] reputation for being a
      law-abiding citizen.        Mr. Hollabaugh also testified that
      [Appellant’s] reputation in the community for law-abidingness
      was “excellent.”

Appellant’s Brief at 57-58 (citations to the record omitted). Appellant does

not provide much elaboration on why it was improper for the court to strike

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the testimony of these two character witnesses, nor does he cite any case

law to support that claim. Consequently, we conclude that his undeveloped

challenge to the court’s decision to strike these witnesses’ testimony is

waived, as well. See Hardy, 918 A.2d at 771

      Appellant’s third issue challenges the trial court’s granting of the

Commonwealth’s motion in limine to preclude defense counsel’s “ability to

attempt to illustrate the concept of reasonable doubt in closing summation.”

Appellant’s Brief at 59. As the trial court explains:

      In their Motion in Limine, the Commonwealth sought to preclude
      defense counsel from using an illustration in her closing
      argument regarding reasonable doubt. The illustration involved
      using one’s common sense and experience to make a decision
      regarding whether to ice skate on a pond after making
      observations such as the weather, the appearance of the ice,
      etc.

TCO at 5.

      In arguing that the court erred by not allowing his counsel to use this

illustration, Appellant relies on this Court’s decision in Commonwealth v.

Jones, 858 A.2d 1198 (Pa. Super. 2004), and our Supreme Court’s decision

in Commonwealth v. Fisher, 813 A.2d 761 (Pa. 2002).            In Jones, this

Court found no error in the trial court’s jury instruction comparing

reasonable doubt to an assessment of whether to cross a busy street at

noon, versus making that same decision at midnight when no cars are

traveling on the road.     Jones, 858 A.2d 1201.        We upheld the court’s

“straightforward” instruction, emphasizing that,



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      [e]very jury can relate to crossing a street. The judge's
      distinction between crossing the street at noon with a high
      volume of traffic versus crossing the same street at midnight
      when there would be little to no traffic was clear and
      understandable. Moreover, when the illustration is read with the
      remainder of the charge, we find that the charge, as a whole, is
      a clear and accurate statement of the law that does not afford
      appellant grounds for reversal of his judgment and sentence.

Id. at 1203. In Fisher, our Supreme Court rejected an ineffectiveness claim

regarding counsel’s failure to object to the trial court’s utilizing an illustration

to explain reasonable doubt, in which the court compared reasonable doubt

to deciding whether to send a child to private school. Fisher, 813 A.2d at

769-770.     The Court reasoned that, “[v]iewing the lengthy charge on

reasonable doubt as a whole, it clearly and accurately stated the law, and

there was no error.” Id. at 770.

      Here, Jones and Fisher are not precisely on point, as we are not

determining whether the trial court’s use of an illustration during jury

instructions was a clear and accurate statement of the law regarding

reasonable doubt. Instead, we are assessing whether the court abused its

discretion in precluding defense counsel from using the proposed illustration

in her closing argument. In explaining its decision, the trial court stated:

      This [c]ourt precluded defense counsel from using this
      illustration as it is not that useful in understanding reasonable
      doubt, can tend to confuse the jury, involves an experience that
      many people cannot relate to as not everyone ice skates on open
      bodies of water, and involves a fearful concept. The thought of
      making a mistake in assessing the security of ice on which to
      skate, falling through the ice into the water, and the potential
      results of hypothermia, frost bite, and drowning are such
      unpleasant thoughts, this [c]ourt concluded that this particular
      illustration [was] not appropriate. See [] Fisher, … 813 A.2d

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       [at] 774 … [(]Justice Saylor concurring.[)]. Defense counsel was
       free to use another illustration or to describe the concept of
       reasonable doubt in another manner for the jury.

TCO at 5-6.

       Appellant does not explain how the trial court’s rationale for prohibiting

defense counsel’s proposed illustration constituted an abuse of discretion.

Additionally, he offers no discussion of how the jury instructions examined in

Jones and Fisher are comparable to defense counsel’s illustration of

reasonable doubt, or why those cases compel us to conclude that the trial

court manifestly erred by limiting defense counsel’s closing argument.

Instead, he simply sets forth the instructions at issue in Jones and Fisher,

states the holdings of those two decisions, and then abruptly concludes that,

“For the foregoing reasons, a new [t]rial is respectfully requested.”

Appellant’s Brief at 64. Appellant’s argument is insufficient to convince us

that the court abused its discretion in this regard. Consequently, his third

issue does not warrant relief.

       In Appellant’s fourth and final issue, he challenges the legality of his

sentence, arguing that the mandatory minimum terms of incarceration

imposed pursuant to 42 Pa.C.S. § 9718 are illegal under Alleyne v. U.S.,

133 S.Ct. 2151 (2013).3 In Alleyne, the United States Supreme Court held
____________________________________________


3
  Appellant is raising this claim for the first time on appeal. However, “a
challenge to a sentence premised upon Alleyne … implicates the legality of
the sentence and cannot be waived on appeal.”            Commonwealth v.
Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).




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that “facts that increase mandatory minimum sentences must be submitted

to the jury” and found beyond a reasonable doubt. Id. at 2163. Both this

Court and our Supreme Court have applied Alleyne to strike down various

mandatory minimum sentencing statutes in this Commonwealth, including

the statute under which Appellant’s mandatory sentences were imposed,

section 9718.      See Commonwealth v. Wolfe, 106 A.3d 800, 805 (Pa.

Super. 2014).4

       In light of Wolfe, we agree with Appellant that his mandatory

minimum sentences are illegal and must be vacated. See Commonwealth

v. Fennell, 105 A.3d 13, 15 (Pa. Super. 2014) (“It is … well-established that

‘[i]f no statutory authorization exists for a particular sentence, that sentence

is illegal and subject to correction.’”) (quoting Commonwealth v. Rivera,

95 A.3d 913, 915 (Pa. Super. 2014) (citation omitted)).                       Because our

decision upsets the trial court’s overall sentencing scheme, we vacate

Appellant’s    judgment      of   sentence     in    its   entirety,   and    remand   for

resentencing,     without     consideration     of    42    Pa.C.S.    §     9718.     See

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (“If our




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4
  We acknowledge that our Supreme Court granted the Commonwealth’s
petition for allowance of appeal in Wolfe. See Commonwealth v. Wolfe,
121 A.3d 433 (Pa. 2015). However, no opinion by our Supreme Court has
been issued as of the date of this decision.




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disposition upsets the overall sentencing scheme of the trial court, we must

remand so that the court can restructure its sentence plan.”).

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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