J-S32002-16

                                2016 PA Super 164

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

MICHAEL WITMAYER,

                           Appellant                 No. 1560 EDA 2015


             Appeal from the Judgment of Sentence May 4, 2015
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0004935-2013


BEFORE: BOWES, MUNDY AND PLATT,* JJ.

OPINION BY BOWES, J.:                                  FILED JULY 22, 2016

      Michael Witmayer appeals from the judgment of sentence of five and

one-half to twenty years imprisonment that was imposed after he was

convicted at a jury trial of involuntary deviate sexual intercourse with a child

less than sixteen years of age (“IDSI”), indecent assault of a person less

than sixteen years of age, corruption of a minor, and endangering the

welfare of a child.   We affirm.

       Appellant’s convictions stemmed from his pattern of sexual abuse of

C.M. that occurred when C.M. was eight to fourteen years old in both

Chester County and Montgomery County.          Appellant, who was a father-

figure to the victim, masturbated the victim, performed oral sex on him, and

had C.M. perform oral sex on Appellant.         In May 2010, C.M., who was

twelve years old at the time, made allegations of sexual abuse against


* Retired Senior Judge assigned to the Superior Court.
J-S32002-16



Appellant regarding events that transpired in Chester County.           Detective

Timothy Prouty of the North Coventry Police Department investigated the

allegations, and, on June 3, 2010, Appellant met with Detective Prouty at

the police station.   When Appellant arrived, he was taken to the interview

room, and Detective Prouty told him specifically that he was not under arrest

and that he was free to leave at any time.          Appellant was provided with

directions for exiting the station.

      Shortly thereafter, Detective Prouty and a colleague began to discuss

the sexual abuse allegations. The victim had told Detective Prouty about an

incident that occurred when he and Appellant were in a car alone riding from

a Wal-Mart located in Morgantown and headed towards a mall known as

Coventry Mall. C.M. said that, while they were on a side road, Appellant told

C.M. that he may be gay and convinced C.M. to remove his pants and

underwear and touch his own penis. After C.M. complied, Appellant asked to

touch C.M.’s penis.     C.M. initially consented, but changed his mind and

pushed away Appellant’s hand.

      When asked about this allegation, Appellant admitted that he had been

with the victim at the Wal-Mart in Morgantown and that, when they left, they

headed    toward   Coventry    Mall   alone   in   Appellant’s   car.   Appellant

acknowledged that they took a side road during the journey.             Appellant

represented that C.M., not Appellant, had said that he might be gay and that

C.M. had voluntarily lowered his pants and underwear, and began to touch

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his own penis.   Appellant also claimed that C.M. asked Appellant to touch

C.M.’s penis, but Appellant refused, telling C.M. that they could not engage

in sexual contact until C.M. was eighteen years old.

      Ultimately, the Chester County District Attorney’s Office did not press

criminal charges against Appellant. In 2012, C.M. alerted authorities of new

incidents of sexual abuse perpetrated by Appellant in various locations

throughout    Chester   and   Montgomery      Counties.   Montgomery   County

authorities thereafter launched an investigation into all reported instances of

sexual abuse.     During the investigation, Pottstown Police completed a

telephone intercept, with C.M.’s consent, of two conversations between

Appellant and the victim. In one, the victim and Appellant spoke about their

friendship, and, in the other, Appellant denied engaging in inappropriate

sexual contact with C.M.’s brother.       The following business day, police

furnished the recording of the intercept to the Montgomery District

Attorney’s Office, where it remained in a safe until trial.

      On June 10, 2013, this criminal action was instituted in Montgomery

County wherein Appellant was accused of committing a multitude of crimes

concerning the sexual abuse occurring from 2006 to 2012.          The charges

encompassed crimes committed in both counties in question. Criminal

Complaint, 6/10/13.

      On June 13, 2014, the Commonwealth moved to amend the

information to include the phrase “County of Chester,” which it maintained

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was mistakenly absent from the original information. N.T. Trial, 6/17/14, at

9. On June 17, 2014, the trial judge heard pre-trial arguments from both

parties on the issue and granted the Commonwealth’s motion to amend. Id.

at 3-12. The judge found that the crimes that transpired in Chester County

were part of the same criminal episode which initially occurred in

Montgomery County, and further, that Appellant had been on notice of all of

the charges. The trial judge also denied Appellant’s motion to suppress his

June 3, 2010 statement to Detective Prouty.

       On June 19, 2014, a jury found Appellant guilty of IDSI, indecent

assault of a person less than sixteen years of age, corruption of minors, and

endangering the welfare of a child.              On May 4, 2015, the trial court

sentenced Appellant to an aggregate term of five and one-half to twenty

years imprisonment. No mandatory minimum sentence was applied. This

timely appeal followed.        On June 16, 2015, Appellant filed his Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal and on July 7,

2015, the trial court issued its corresponding opinion.        This matter is now

ready for review. Appellant raises these allegations.1

____________________________________________


1
  We note that Appellant’s brief is forty-six pages in length and does not
contain the certification required by Pa.R.A.P. 2135. Pa.R.A.P. 2135(a)(1)
(“A principal brief shall not exceed 7,000 words, except as stated in
subparagraphs (a)(2)-(4) [involving cross appeals and capital cases]. A
party shall file a certificate of compliance with the word count limit if the
principal brief is longer than 30 pages or the reply brief is longer than 15
(Footnote Continued Next Page)


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   1. The sentence levied on the charge of involuntary deviate sexual
      intercourse is illegal because the element “the complainant and
      person are not married to each other” was missed. The record is
      silent on the element.

   2. The [t]rial [c]ourt abused its discretion when it allowed the
      Commonwealth to pursue alleged criminal conduct in Chester
      County that had been thoroughly investigated by Chester County
      detectives and passed on by the District Attorney of Chester
      County.

   3. The [t]rial [c]ourt abused its discretion when it failed to suppress
      the [Appellant’s] statement given to Detective Timothy Prouty of
      the North Coventry Township Police Department on June 3,
      2010. The Detective’s invitation to the police station for no
      stated purpose devolved into a custodial interrogation inside a
      police station interrogation room without the benefit of Miranda.

   4. The [t]rial [c]ourt abused its discretion when it failed to suppress
      wiretap results that were unauthenticated by former county
      detective Mary Anders who had been fired due to her reckless
      disregard for the truth in another criminal investigation that
      resulted in civil rights litigation.

   5. The [t]rial [c]ourt abused its discretion when it failed to suppress
      wiretap results that were seized in violation of enabling
      legislation.

Appellant’s brief at 7-8 (internal citations omitted) (italics omitted) (re-

numbered for ease of disposition).

      Appellant’s first averment purports to be a challenge to the legality of

his sentence.     However, his actual averment is that there was no proof
                       _______________________
(Footnote Continued)

pages when prepared on a word processor or typewriter.”) As we conclude
that this single deviation from the rules applicable to briefs does not impede
our review, we will overlook it. Cf. Commonwealth v. Spuck, 86 A.3d 870
(Pa.Super. 2014).




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adduced at trial that he was not married to C.M. Thus, his challenge relates

to a missing element of crime of IDSI. Specifically, Appellant was convicted

under 18 Pa.C.S. § 3123(a)(7), which states: “A person commits a felony of

the first degree when the person engages in deviate sexual intercourse with

a complainant . . . . who is less than 16 years of age and the person is four

or more years older than the complainant and the complainant and person

are not married to each other.” 18 Pa.S.C. § 3123(a)(7). In his first claim

on appeal, Appellant avers that there was no proof that he was not married

to C.M. and suggests that the sentence imposed thereon is illegal.

      We conclude that Appellant’s allegation does not pertain to the legality

of his sentence.   He does not suggest that his sentence exceeded the

mandatory minimum, should have been merged with another offense, or

was imposed under an infirm mandatory minimum sentencing provision. He,

instead, is asserting that an element of the crime in question was not

proven. A position that the Commonwealth failed to prove all elements of a

crime is obviously a challenge to the sufficiency of the evidence supporting a

conviction and not to the legality of the sentence imposed upon that

conviction. However, Appellant did not raise an objection to the sufficiency

of the evidence supporting his IDSI conviction in his Pa.R.A.P. 1925(b)

statement.   Hence, his first claim is waived.   Commonwealth v. Hill, 16

A.3d 484, 494 (Pa. 2011) (“Any issues not raised in a Pa.R.A.P. 1925(b)

statement will be deemed waived.”); Commonwealth v. Tyack, 128 A.3d

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254 (Pa.Super. 2015). Despite Appellant’s attempt to circumvent waiver by

reframing his first averment as pertaining to the legality of his sentence, we

reject this ploy.

      In his second issue on appeal, Appellant contends that the trial court

abused its discretion when it allowed the Commonwealth to prosecute in this

Montgomery-County action the conduct that transpired in Chester County.

We have reviewed Appellant’s argument and, despite experiencing some

difficulty in discerning the precise nature of his complaint, we have

concluded that Appellant is challenging two determinations in connection

with this second position: 1) the trial court’s ruling that Montgomery County

was the appropriate venue for prosecuting the sexual abuse that occurred in

both Montgomery and Chester Counties, and 2) the trial court’s grant of the

Commonwealth’s motion to amend the information to include the phrase,

“County of Chester.” See Appellant’s brief at 24-29.

      We address the venue position first and employ this standard of

review:

            Venue merely concerns the judicial district in which the
      prosecution is to be conducted; it is not an essential element of
      the crime, nor does it relate to guilt or innocence. Because
      venue is not part of a crime, it need not be proven beyond a
      reasonable doubt as essential elements must be. Accordingly,
      applying the preponderance-of-the-evidence standard to venue
      challenges allows trial courts to speedily resolve this threshold
      issue without infringing on the accused's constitutional rights.
      Like essential elements of a crime, venue need not be proven by
      direct evidence but may be inferred by circumstantial evidence.
      Appellate review of venue challenges, similar to that applicable

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      to other pre-trial motions, should turn on whether the trial
      court's factual findings are supported by the record and its
      conclusions of law are free of legal error.

Commonwealth v. Gross, 101 A.3d 28, 33-34 (Pa. 2014) (citations

omitted).

      Appellant argues that the trial court incorrectly viewed the various

crimes as the same criminal episode under Pa.R.Crim.P. 130. Appellant

proclaims that the “the criminal acts alleged have no connection but for the

same victim and defendant.” Appellant’s brief at 26.              Appellant also

maintains that there was a significant gap of sixteen months between the

2010 Chester County allegations and the ones leveled in 2012. Id.

Pa.R.Crim.P. 130 provides in pertinent part:

      (A) Venue. All criminal proceedings in summary and court cases
      shall be brought before the issuing authority for the magisterial
      district in which the offense is alleged to have occurred . . .
      subject, however, to the following exceptions:

      (3) When charges arising from the same criminal episode occur
      in more than one judicial district, the criminal proceeding on all
      the charges may be brought before one issuing authority in a
      magisterial district within any of the judicial districts in which the
      charges arising from the same criminal episode occurred.

Pa.R.Crim.P 130(A)(3). This Court “has held that a condition precedent to

the exercise by a single county to jurisdiction in a case involving multiple

offenses in various counties is: the offense must constitute a single criminal

episode.” Commonwealth v. Kohler, 811 A.2d 1046, 1049 (Pa.Super.

2002) (citations omitted).       If “a number of charges are logically or



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J-S32002-16



temporally related and share common issues of law and fact, a single

criminal episode exists.” Id. at 1050 (citation omitted). When we ascertain

      whether a number of statutory offenses are ‘logically related’ to
      one another, the court should initially inquire as to whether
      there is a substantial duplication of factual, and/or legal issues
      presented by the offenses. The mere fact that the additional
      statutory offenses involve additional issues of law or fact is not
      sufficient to create a separate criminal episode since the logical
      relationship test does not require ‘an absolute identity of factual
      backgrounds.’

             The temporal relationship between criminal acts will be a
      factor which frequently determines whether the acts are
      ‘logically related.’ However, the definition of a ‘single criminal
      episode’ should not be limited to acts which are immediately
      connected in time. ‘Transaction’ is a word of flexible meaning. It
      may comprehend a series of many occurrences, depending not
      so much upon the immediateness of their connection as upon
      their logical relationship.

Id. at 1050-51.

      Our review of the record reveals that the crimes in question were

logically and temporally related.     The proof adduced at trial was that

Appellant groomed the victim as a young child, corrupted his morals as a

young teenager, and continued to seek sexual contact with him as he aged.

Appellant engaged in a continuing course of sexual molestation, and the

2012 allegations included incidents occurring at various locations in both

Chester County and Montgomery County.            Based on the foregoing we

conclude that the trial court’s finding is supported by the record and that the

court did not commit legal error in concluding the offenses charged in this

action were part of the same criminal episode.

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      Appellant   also    contends    that   the    trial     court’s   grant   of    the

Commonwealth’s motion to amend the information on the day of trial

unfairly prejudiced him and violated Pa.R.Crim.P. 564. That rule provides:

      The court may allow an information to be amended when there
      is a defect in form, the description of the offense(s), the
      description of any person or any property, or the date charged,
      provided the information as amended does not charge an
      additional or different offense. Upon amendment, the court may
      grant such postponement of trial or other relief as is necessary
      in the interests of justice.

Pa.R.Crim.P. 564.

      A defendant will be afforded relief when the trial court exercises its

discretionary power to allow amendment of the information only if the

defendant was prejudiced by the amendment.               Commonwealth v. Veon,

109 A.3d 754, 768 (Pa. 2015). Factors for a court to consider in determining

the existence of prejudice include:

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

Id.

      Appellant   avers    that   “additional      and      different   offenses     were

undoubtedly added and prejudiced” him. Appellant’s brief at 27 (emphasis

removed). He continues that the amendment caused prejudice because it,

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inter alia, added new facts, was deceptive, and unfairly harmed the defense

strategy. Appellant’s brief at 29. These assertions are without merit. The

amendment merely added the phrase, “County of Chester,” to the

information. It did not add any new facts or charges of which Appellant was

previously unaware.     Both the criminal complaint and affidavit of probable

cause detailed acts of abuse occurring in both Chester County and

Montgomery County. Thus, the trial court agreed with the Commonwealth

that the missing phrase was merely a defect in form. The fact that Appellant

leveled pretrial attacks on the prosecution of the charges committed in

Chester County is a clear indication that he was both aware of and preparing

a defense against those charges.       Accordingly, we find no prejudice as a

result of the amendment to the information, and therefore, the trial court did

not err or abuse its discretion in permitting it.

      In his third issue, Appellant claims that his statement to Detective

Prouty in June of 2010 should have been suppressed.        Appellant suggests

that he reasonably believed he was in police custody, and was therefore

legally entitled to Miranda warnings. Appellant’s brief at 33-35.

      When reviewing the denial of a defendant's suppression motion, we

are subject to the following standard of review:

      [An appellate court's] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the suppression court's factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. Because the Commonwealth

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     prevailed before the suppression court, we may consider only
     the evidence of the Commonwealth and so much of the evidence
     for the defense as remains uncontradicted when read in the
     context of the record as a whole.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation

omitted).

     Our law is well settled that an individual is entitled to Miranda

warnings only when he is subject to a custodial interrogation.              See

Commonwealth v. Cooley, 118 A.3d 370, 376 (Pa. 2015). An individual is

considered to be in custody when “he is physically denied his freedom of

action in any significant way or is placed in a situation in which he

reasonably believes that his freedom of action or movement is restricted by

the interrogation." Id. (quoting Commonwealth v. Johnson, 727 A.2d

1089, 1100 (Pa. 1999)).      The determination of whether a person is in

custody is an objective one and based upon the reasonable belief conveyed

to the person being questioned, with attention on the totality of the

circumstances. Id.

     The factors a court utilizes to determine, under the totality of the
     circumstances, whether a detention has become so coercive as
     to constitute the functional equivalent of arrest include: the basis
     for the detention; its length; its location; whether the suspect
     was transported against his or her will, how far, and why;
     whether restraints were used; whether the law enforcement
     officer showed, threatened or used force; and the investigative
     methods employed to confirm or dispel suspicions. The fact that
     a police investigation has focused on a particular individual does
     not automatically trigger “custody,” thus requiring Miranda
     warnings.



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Commonweath v. Baker, 963 A.2d 495, 501 (Pa.Super. 2008) (citation

omitted).

      Appellant professes that his meeting with Detective Prouty amounted

to a seizure because a reasonable man would not have felt free to leave

upon learning of the allegations against him. Appellant’s brief at 35.

Appellant relies on this Court’s holding in Commonwealth v. Dewar, 674

A.2d 714 (Pa.Super. 1996), wherein the defendant was found to be subject

to a custodial interrogation. Id. at 717. However, that case is distinguishable

from the case sub judice. In Dewar, the Commonwealth had appealed the

trial court’s suppression of statements that the defendant provided to police,

and this Court refused to overturn the trial court’s findings due to a lack of

evidence regarding the circumstances of the interrogation. Thus, we were

unable to discern if the court erred in concluding that the defendant was in

custody. Id. at 717 (“No evidence was offered as to the length of detention

or whether appellee's freedom of movement was restricted. Under the

circumstances, given the evidence presented, we cannot find that the trial

court erred in concluding that appellee was in ‘custody’ during the police

interrogation.”).

      The Commonwealth in the present case offered ample evidence to

support the trial court’s legal conclusion that Appellant was not subject to a

custodial interrogation. Appellant voluntarily agreed to meet with Detective

Prouty at the police station. The Detective informed Appellant he was not

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under arrest and that he was free to leave at any time. Appellant was given

directions for exiting the station. A casual interview ensued and it was not

unduly long. At no point did Appellant exhibit signs of misunderstanding or

incapacity. These circumstances sufficiently support the trial court’s holding

that a reasonable man would not have believed he was in police custody.

Baker, supra. Thus, Appellant’s third claim fails.

       Appellant’s fourth and fifth issues pertain to the consensual recordings

of the telephone intercept utilized by the Commonwealth at trial. He attacks

their admission on two bases.              First, he claims the recordings were

unauthenticated since the detective who originally obtained them did not

testify at trial. He also avers that, since the district attorney did not have

possession of the recordings for a short period, they were obtained in

violation of the Wiretap Act, which permits consensual phone intercepts and

mandates that the recordings of such intercepts be in the custody of the

district attorney. See 18 Pa.C.S. § 5704(2)(ii).2 Both of these contentions

implicate the admissibility of the recordings.

____________________________________________


2
    That section states:

             (ii) one of the parties to the communication has given prior
       consent to such interception. However, no interception under
       this paragraph shall be made unless the Attorney General or a
       deputy attorney general designated in writing by the Attorney
       General, or the district attorney, or an assistant district attorney
       designated in writing by the district attorney, of the county
(Footnote Continued Next Page)


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      The standard of review for challenges to the admissibility of evidence

is well-settled:

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

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (citations and

quotation marks omitted).

      Regarding authentication, several principles apply.       "To satisfy the

requirement of authenticating or identifying an item of evidence, the

proponent must produce evidence sufficient to support a finding that the

item is what the proponent claims it is." Pa.R.E. 901(a). Critically, “Physical

evidence may be properly admitted despite gaps in testimony regarding
                       _______________________
(Footnote Continued)

      wherein the interception is to be initiated, has reviewed the facts
      and is satisfied that the consent is voluntary and has given prior
      approval for the interception; however, such interception shall
      be subject to the recording and record keeping requirements of
      section 5714(a) (relating to recording of intercepted
      communications) and that the Attorney General, deputy attorney
      general, district attorney or assistant district attorney
      authorizing the interception shall be the custodian of recorded
      evidence obtained therefrom[.]

18 Pa.C.S. § 5704(2)(ii). We note that our Wiretap Act is preempted by the
Federal Wiretap Act in circumstances not involved herein. Bansal v. Russ,
513 F. Supp.2d 264 (E.D.Pa. 2007).




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custody.” Commonwealth v. Feliciano, 67 A.3d 19, 29 (Pa.Super. 2013).

Furthermore, any issue regarding gaps in the chain of custody relate to the

weight of the evidence, not its admissibility. Id.

      Appellant’s contentions are that the absence of the detective who

conducted the phone intercept rendered the recordings of the consensual

phone intercept unauthenticated and that the district attorney failed to keep

the recordings in his custody as required by the Wiretap Act, 18 Pa.C.S. §

5704(2)(ii), are wholly without merit.     The evidence adduced at trial was

more than sufficient to establish the authenticity of the tape recordings.

C.M., his mother, a detective, and two assistant district attorneys all testified

as to the authenticity of the recordings. There is no requirement that the

prosecution must present, as a witness, every individual involved with the

evidence sought to be presented. Feliciano, supra at 29.

      Additionally, Assistant District Attorney Kevin Steele testified that the

phone interception took place on December 28, 2012, a Friday, and the

recordings were received by the District Attorney’s Office on December 31,

2012, the following Monday. Thereafter, they remained in a safe at the

district attorney’s office. As the trial court correctly noted, “[t]he gap in the

chain of custody was brought out by both the Commonwealth and by

defense counsel on cross-examination, therefore, it was for the jury to

determine the weight to be given to the evidence despite the gap in the

chain of custody.” Trial Court Opinion, 7/7/15, at 8. Accordingly, the trial

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court did not abuse its discretion when it allowed the recordings to be

admitted into evidence, nor did it abuse its discretion when it denied

Appellant’s motion to prevent introduction of the recordings. For the

foregoing reasons, Appellant’s fourth and fifth claims fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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