J-A29018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANKLIN D. LONG                           :
                                               :
                       Appellant               :   No. 3214 EDA 2017

             Appeal from the Judgment of Sentence March 16, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002941-2016

BEFORE:      OTT, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                                  FILED JUNE 26, 2019

        Appellant, Franklin D. Long, appeals from the March 16, 2017 Judgment

of Sentence entered in the Delaware County Court of Common Pleas following

his jury conviction of two counts of Involuntary Deviate Sexual Intercourse

with a Child (“IDSI”) and one count of Indecent Assault of a Person Less than

13 Years of Age.1 After careful review, we affirm Appellant’s convictions, but

vacate his Judgment of Sentence and remand for resentencing.

        Appellant is the former step-grandfather of the victim.2 On October 22,

2015, the victim reported to Swarthmore Borough police officers that

Appellant had sexually assaulted him on two occasions between April 1996



____________________________________________


1   18 Pa.C.S. §§ 3123(b) and 3126(a)(7).

2   Appellant and the victim’s grandmother divorced in 2001.


____________________________________
* Former Justice specially assigned to the Superior Court.
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and July 2001, while the victim was a child.3 The victim, who by the time he

reported these incidents was in his early twenties, alleged that Appellant had

assaulted him in the victim’s family’s home in Swarthmore while Appellant and

the victim’s grandmother were overnight guests. Based on the victim’s report,

police arrested Appellant and charged him with the above crimes.

       On July 29, 2016, Appellant filed an Omnibus Pretrial Motion to Quash

the Bills of Information for failing to specify the dates of the offenses with

reasonably sufficient particularity and seeking a competency hearing to

consider the victim’s tender years at the time of the offenses. The trial court

denied Appellant’s Motion.

       Following Appellant’s three-day jury trial and subsequent conviction, the

trial court sentenced Appellant to two consecutive terms of five to 10 years’

incarceration, followed by an aggregate probationary period of seven years.

Appellant filed a Post-Sentence Motion, which the trial court denied.

       This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant raises the following eight issues on appeal:

       [1.] Did not the lower court err and abuse its discretion, and
       violate [Appellant’s] Fifth and Fourteenth Amendment rights
       under the Federal Constitution, and Article I, Section 9 of the
       Pennsylvania Constitution, by overruling defense objections to the
       prosecutor’s comments in the opening and closing statements that
____________________________________________


3The victim was born in July 1993. Thus, during the period in which Appellant
assaulted him, the victim was between two and seven years old. Appellant
was approximately 68 years old at the time of the crimes and 83 years old at
his March 16, 2017 sentencing hearing.

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      undermined [Appellant’s] right not to testify and impermissibly
      shifted the burden of proof?

      [2.] Did not the lower court err and abuse its discretion, and
      violate [Appellant’s] right of confrontation under the Federal and
      State constitutions, by permitting several witnesses to testify to
      hearsay statements purportedly corroborating the incidents; and
      further, did not the lower court err, and abuse its discretion, by
      allowing a police officer to testify to her opinion about the
      credibility of the complainant in violation of Pa.R.E. 701?

      [3.] Did not the lower court err in refusing to quash the
      information based on the lack of adequate notice under the State
      and Federal Constitutions, where the dates of the two criminal
      incidents was alleged to have been on some unknown date at least
      fifteen years earlier, within a period of over five years?

      [4.] Did not the lower court err in refusing to grant a hearing, to
      permit [Appellant] to challenge the complainant’s competency to
      communicate, observe[,] remember, and comprehend the duty to
      speak the truth, at the time of the incidents?

      [5.] Did not the lower court err in refusing to declare a mistrial
      after the Commonwealth presented highly prejudicial evidence
      that the complainant was treated for anxiety and depression, after
      defense counsel prejudicially relied upon the Commonwealth’s
      representation that he had never received treatment?

      [6.] Did not the cumulative impact of the numerous errors
      infecting [Appellant’s] trial prejudice him, and deny him due
      process and a fair trial under the Pennsylvania and United States
      Constitutions?

      [7.] Did not the lower court err in failing to afford [Appellant] his
      right to allocution at his sentencing?

      [8.] Did not the lower court impose a manifestly excessive and
      clearly unreasonable sentence contrary to the norms that underlie
      the sentencing process and the provisions of 42 Pa.C.S. §
      9721(b)?

Appellant’s Brief at 6-7.




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Prosecutor’s Statements

      In his first issue, Appellant challenges the trial court’s decision to

overrule his objections to comments the prosecutor made during his opening

and closing arguments.

      Appellant bases this challenge on three incidents.        First, Appellant

objected after the prosecutor made the following statement in his opening

argument:

      [T]his process is not like what you see on television. This process
      is not going to be like Law and Order. It’s going to take a lot more
      than one hour to conclude. We’re probably going to have starts
      and stops, unfortunately. I have this old, rickety projector I have
      to deal with. It’s not going to be like the fancy things you see on
      television. You’re also probably not going to get some teary-
      eyed confession from [Appellant] on the stand at the end
      of every episode. It’s going to be a difficult decision that you
      guys have to weigh. That’s the part of Law and Order they never
      show.

N.T., 10/22/16, at 65-66 (emphasis added). Appellant argued to the court at

sidebar that this statement constituted an “allusion to [Appellant] testifying

or not testifying or giving a confession” and implied to the jury that Appellant

“has to say something or talk.” Id. at 66-67. The court overruled Appellant’s

objection and assured counsel that he would give the jury an appropriate

instruction. Id. at 67.

      Appellant next objected to the following statement made by the

prosecutor moments later:

      It’s going to be a difficult decision. You’re going to have to go
      back there and deliberate. It’s not going to be crystal-clear like it
      is at the end of a television episode. And also, as I was saying,


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      it’s not going to be like CSI. We’re not going to be able to bring
      in here some guy in a lab coat to show you some scientific test
      that makes your decision easier. This is a credibility case. I’m
      not going to lie to you. This is what a lot of people might go[]
      around saying is a he said/she said, or in this case, a he
      said/he said. It’s a credibility case. And by all of that, of course,
      I don’t mean when I said he said/he said, I don’t mean that
      [Appellant] has to testify. Of course he doesn’t. He can sit there
      silent, because the Commonwealth has the burden of proof. The
      Commonwealth will put forth its evidence, and that evidence will
      convince you.

Id. at 68 (emphasis added). Appellant objected to this statement, arguing

that it also alluded to Appellant testifying. Id. at 69. The trial court overruled

this objection, finding that Commonwealth clearly clarified to the jury that

Appellant does not have to testify. Id. The Commonwealth then reminded

the jury that the jury’s job is to determine whether the victim’s testimony is

credible. Id. at 70.

      Last, following the Commonwealth’s closing argument, Appellant alleged

that the prosecutor had engaged in impermissible burden-shifting when he

stated that there was “nothing in the evidence” to indicate that the victim was

lying or had a motive to lie. N.T., 10/26/16, at 90. Appellant requested a

curative instruction to the jury that Appellant had no burden to show that the

victim had a motive to lie. Id. In response, the court indicated that it would

“charge the jury generally that [Appellant] has no burden whatsoever in

anything,” but that it would not instruct the jury with any more specificity than

that. Id.

      At the conclusion of trial, the judge instructed the jury, inter alia, as

follows:


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     It is not [Appellant’s] burden to prove that he is not guilty.
     Instead, it is the Commonwealth that always has the burden of
     proving each and every element of the crimes charged, and that
     [Appellant] is guilty of those crimes beyond a reasonable doubt.
     A person accused of a crime is not required to present any
     evidence or to prove anything in his own defense.

                                      ***

     You’ll [recall] that [Appellant] exercised his constitutional right not
     to testify in this matter. It is entirely up to the [d]efendant in
     every criminal trial whether or not to testify. The [d]efendant has
     an absolute right founded in the constitution to remain silent. You
     must not draw any inference adverse to the [d]efendant from the
     fact that he exercised his right to remain silent. Under the law,
     every [d]efendant is presumed to be innocent and has the right
     to remain silent.

Id. at 93-94, 96.

     “Our standard of review for a claim of prosecutorial misconduct is limited

to whether the trial court abused its discretion.” Commonwealth v. Harris,

884 A.2d 920, 927 (Pa. Super. 2005) (citation and quotation marks omitted).

        In considering this claim, our attention is focused on
        whether the defendant was deprived of a fair trial, not a
        perfect one. Not every unwise remark on a prosecutor’s
        part constitutes reversible error. Indeed, the test is a
        relatively stringent one. Generally speaking, a prosecutor’s
        comments do not constitute reversible error unless the
        unavoidable effect of such comments would be to prejudice
        the jury, forming in their minds fixed bias and hostility
        toward [the defendant] so that they could not weigh the
        evidence objectively and render a true verdict.
        Prosecutorial misconduct, however, will not be found where
        comments . . . were only oratorical flair. In order to
        evaluate whether comments were improper, we must look
        to the context in which they were made.

Id. at 927 (internal citations omitted). See also Commonwealth v. Cash,

137 A.3d 1262, 1273 (Pa. 2016) (same).



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      Appellant avers that the prosecutor’s comments “wrongly implicated

[Appellant’s] right to remain silent” and created an expectation that the jury

would hear “two sides to this story.” Appellant’s Brief at 29. He argues that

the prosecutor’s statements “ensured that once [Appellant] did not present

‘his side,’ the jury found that he had not rebutted the accusations and was,

therefore, guilty.” Id. at 30. Appellant further claims that, in stating that

there was no evidence of the victim’s corrupt motive, the Commonwealth

impermissibly shifted the burden of proof to Appellant. Id. Appellant argues

that the court’s curative jury instruction, given at the end of trial, was

insufficient to ensure that the jury would not consider the prosecutor’s

comments. Id. at 31. In sum, Appellant argues that, notwithstanding the

court’s instruction to the jury, the Commonwealth’s references to Appellant

“on the stand,” its use of the term “he said/he said,” its repeated implication

that the jury should expect to hear Appellant testify, and its suggestion that

Appellant presented no evidence of the victim’s corrupt motive, were not

harmless error. Id. at 33.

      In its Rule 1925(a) Opinion, the trial court explained that it reviewed

the prosecutor’s opening statement and concluded first that, although the

prosecutor “might be guilty of an inartful use of the colloquial ‘he said/she

said,’” by this statement the prosecutor intended to convey to the jury that

only if it found the victim credible could it find Appellant guilty. Trial Ct. Op.,

1/17/18, at 27. The court also specifically found that the prosecutor did not

intend to reference Appellant’s decision not to testify, and its statement did

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not shift the burden of proof to Appellant.          Id. at 28.   In evaluating the

prosecutor’s statement in context, the trial court concluded that both the

prosecutor’s intent and the effect of his statement was to “impress upon the

jury that the evidence that must be considered in this ‘real’ trial was much

different than might be seen in a fictional television trial.” Id.

      With respect to Appellant’s objection to the prosecutor’s closing

statement, the trial court opined that its jury instruction “eliminated any

possibility that the prosecutor’s comment could jeopardize [Appellant’s]

rights” as the court “directly, clearly[,] and unequivocally instructed the jury

as to the Commonwealth’s burden of proof, the presumption of innocence that

[Appellant] enjoys, his right to remain silent[,] and the constitutional principle

that prohibits the jury from drawing any adverse inference from the fact that

[Appellant] exercised his right to remain silent.” Id. As the court aptly noted,

we presume the jury followed the court’s instructions. Commonwealth v.

Smith, 167 A.3d 782, 790 (Pa. Super. 2017).

      We agree with the trial court’s analysis. Following our review of the

prosecutor’s statements, and the context in which he made them, as well as

the court’s instructions to the jury, we find that the trial court properly

exercised its discretion in overruling Appellant’s objections.         Accordingly,

Appellant is not entitled to relief on this claim.

Hearsay

      In his second issue, Appellant claims the trial court erred in allowing the

victim’s friend, the victim’s mother, and Swarthmore Borough Police Officer

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Ann Marie Bardo to testify about the victim’s revelations of abuse to them over

Appellant’s hearsay objection. Appellant’s Brief at 34.

      Our standard of review concerning a challenge to the admissibility of

evidence is as follows:

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

      Hearsay is an out-of-court statement offered for the truth of the matter

asserted. Pa.R.E. 801(c). It is generally inadmissible unless it falls within one

of the exceptions to the hearsay rule delineated in the Rules of Evidence.

Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012). “An out-of-court

statement is not hearsay when it has a purpose other than to convince the

fact finder of the truth of the statement[,]” such as motive or the effect on

the listener. Id. See also Daniel J. Anders, Ohlbaum on the Pennsylvania

Rules of Evidence § 801.11[1] et seq. (2017 ed.).

      Lay witnesses may offer an “opinion [that] is limited to one that is []

rationally   based   on   the   witness’s   perception;   []   helpful   to   clearly

understanding the witness’s testimony or to determining a fact in issue; and




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[] not based on scientific, technical, or other specialized knowledge[.]”

Pa.R.E. 701.

      In particular, Appellant complains that the court erred in permitting the

victim’s friend to testify that the victim told him that “some fucked up shit

happened to me between me and my grandfather . . . in a bedroom.”

Appellant’s Brief at 35. He further complains that the court erred in permitting

the victim’s mother to testify that the victim told her “I was sexually abused.”

Id. Appellant argues that in admitting this testimony, the court violated his

constitutional rights to confrontation and due process. Id. He also asserts

that the admission of this hearsay testimony “improperly, and serially,

bolstered the account of the [victim].” Id.

      Finally, Appellant baldly claims that Officer Bardo “provided a litany of

‘very detailed’ hearsay, not only from the [victim], but from [the victim’s

mother], and that the trial court violated Pa.R.E. 701 when it permitted Officer

Bardo to give her opinion as to the detail, specificity, and veracity of the

victim’s allegations. Id.

      The Commonwealth argues that the trial court properly admitted the

testimony of these three witnesses in response to Appellant’s reference in his

opening statement to the victim’s disclosures. Commonwealth’s Brief at 13.

The Commonwealth avers that it offered the subject testimony to rebut

Appellant’s statement that “at the end of this trial . . . none of us are going to

know what [the victim’s] motivation was to make this story up.” Id. (quoting

N.T., 10/25/16, at 77).

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      Contrary to Appellant’s assertions, the statements to which he lodged

objections were not hearsay statements because the Commonwealth did not

offer them for the truth of the matter asserted. Rather, the record reflects

that the Commonwealth offered this testimony to rebut Appellant’s charge

that the victim had fabricated the allegations against Appellant.          See

Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004)

(explaining that Pa.R.E. 613(c)(1) allows evidence of a witness’s prior

consistent statement to rebut a charge of “fabrication, bias, improper

influence or motive, or faulty memory”). The trial court considered that the

statements did not contain details of the assaults, but rather pertained

exclusively to the manner in which the victim revealed his sexual abuse. It

then properly held that “the circumstances of the [v]ictim’s revelations as well

as his demeanor” were relevant to the victim’s credibility, which Appellant had

put at issue from the outset. Trial Ct. Op. at 23. Based on our review of the

record and the relevant authority, we agree with the trial court’s analysis. The

trial court did not abuse its discretion in admitting this testimony. Appellant

is, therefore, not entitled to relief on this claim.

Motion to Quash

      In his third issue, Appellant claims the trial court erred in not quashing

the Criminal Information, because the “Commonwealth failed to fix with

reasonable certainty the date upon which the two incidents [of abuse]

occurred.” Appellant’s Brief at 41-42 (citing Commonwealth v. Devlin, 333

A.2d 888 (Pa. 1975)). He avers that this violated his constitutional rights and

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violated Pa.R.Crim.P. 560(B)(3). Id. He claims that both the five-year period

during which the alleged offenses occurred and the “exceedingly long over

fifteen-year expanse of pre-accusation delay” were egregious and prejudicial

to him. Id. at 41-42.

      Our standard of review in assessing whether a trial court erred in

quashing a criminal information is well settled. We review the trial court’s

decision to grant or deny a motion to quash a criminal information or

indictment for an abuse of discretion. Commonwealth v. Wyland, 987 A.2d

802, 804 (Pa. Super. 2010) (citations and quotation marks omitted). We will

reverse the trial court’s order only where the court has clearly abused its

discretion. Id.

      Although it “is the duty of the prosecution to fix the date when an alleged

offense occurred with reasonable certainty . . . the Commonwealth does not

always need to prove a single specific date of an alleged crime.”

Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa. Super. 2006) (citations

omitted).

      With respect to allegations of child sexual abuse, we afford the

Commonwealth broad latitude when attempting to ascertain the date of the

incidents.   See Commonwealth v. Niemetz, 422 A.2d 1369, 1373 (Pa.

Super. 1980) (concluding that time is not of the essence in matters involving

rape, IDSI, indecent assault of children, and corruption of minors);

Commonwealth v. Groff, 548 A.2d 1237, 1241 (Pa. Super. 1998)

(explaining that “the [C]ommonwealth must be allowed a reasonable measure

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of flexibility when faced with the special difficulties involved in ascertaining

the date of an assault upon a young child,” given that when the victim is a

young child it can be almost impossible to ascertain the exact date when a

crime occurred); Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa.

Super. 2007) (“Case law has established that the Commonwealth must be

afforded broad latitude when attempting to fix the date of offenses which

involve a continuous course of conduct.”).

      Appellant relies on Devlin, supra, in support of his allegation that the

Commonwealth’s failure to give him sufficiently specific notice of when the

assaults occurred rendered him unable to prepare a defense. In Devlin, the

Commonwealth charged the defendant with sodomizing a mentally challenged

adult who had the mental ability of a first- or second-grade child and the

emotional stability of an even younger child. The Commonwealth alleged that

the crime occurred at some unspecified time during a 14-month period. The

defendant argued that the Commonwealth’s allegation as to the time of the

crime was so vague that it precluded him from preparing an effective defense

to the charges, and our Supreme Court agreed. Importantly, however, the

Supreme Court declined to adopt a per se rule concerning the length of the

time-period in which the Commonwealth must establish that the defendant

had committed the crime. Devlin, 333 A.2d at 892. The Court emphasized

that a case-by-case inquiry, which considered the nature of the crime and the

age of the victim, was appropriate, and the Commonwealth must only fix the

date of the offense “with reasonable certainty.” Id. at 890-92.

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      In this case, the trial court considered the facts and the controlling

authority and concluded that the Commonwealth had fixed the time frame of

the charged offenses with “reasonable certainty” considering the age of the

victim at the time of the alleged crimes. The court observed:

      The Commonwealth’s inability to identify with more specificity the
      dates on which these assaults occurred did not deprive [Appellant]
      of adequate notice in this case. While [Appellant] has alleged a
      deprivation of his right to prepare a defense generally, he has not
      specified in what ways his defense was hampered. The [v]ictim
      was a very young boy. Although he could remember vividly
      details of the assault[,] he could not attach an exact age or date,
      except that he knew the incidents occurred around the time that
      he was in kindergarten or early elementary school. He clearly
      knew that they occurred in the house on University Place.
      Testimony from his mother confirmed that the family lived there
      from 1996 to 2001. The date of the offense is not an element of
      the offenses charged. [ ] During the period in question [Appellant]
      frequently visited the [v]ictim’s home on holidays and for
      overnight visits. The assaults occurred during these periodic
      visits. There is no suggestion that an alibi defense was a
      possibility give the ongoing familial interactions and the passage
      of time.     These circumstances[,] however[,] do not protect
      [Appellant] from prosecution, nor should they.

Trial Ct. Op., at 18-19.

      Following our review, we conclude that given the nature of the crimes,

the age of the victim, and the fact that the date of the offense is not an

element of the charged crimes, we conclude that the trial court did not abuse

its discretion in finding that the Commonwealth gave adequate notice to

Appellant of the dates of the offenses.      Appellant’s claim that the court

improperly denied his Motion to Quash, thus, fails.




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Failure to Hold a Competency Hearing

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

his request for a hearing to determine the victim’s retrospective competency

to observe and remember the assaults at the time they occurred. Appellant’s

Brief at 47-49. Appellant concedes that there is no “Pennsylvania Supreme

Court precedent addressing the issue of a retrospective competency

determination” in the context of a competent adult reporting and testifying

about his victimization as a child. Id. at 48. Rather, Appellant alleges that

because he could have challenged the minor-victim’s competency at the time

of the offenses if he had reported them contemporaneously, he is similarly

entitled to challenge the victim’s competency at the time of the offenses. Id.

Thus, Appellant concludes that “a retroactive competency hearing was

required.” Id.

      Appellant avers that Pa.R.E. 601(a)(1) entitles him to “develop and

present such evidence to determine if a young child was competent at the

time of the event.” Id.

      Pennsylvania Rule of Evidence 601 does not, however, include a

subsection (a)(1). Pa.R.E. 601(a) provides that “[e]very person is competent

to be a witness except as otherwise provided by statute or in these rules.”

Pa.R.E. 601(a). Pa.R.E. 601(b)(1) provides exceptions to the general rule that

every person is presumed competent. Pa.R.E. 601(b)(1)-(4).




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       Generally, we presume that an adult witness is competent to testify,

and the burden falls on the objecting party to demonstrate that a witness is

incompetent. Commonwealth v. Walter, 93 A.3d 442, 451 (Pa. 2014).

However, in Commonwealth v. Smith, 167 A.3d 782 (Pa. Super. 2007), this

Court noted that “the presumption [of competency] does not arise where a

child witness is under age [14].” Smith, 167 A.3d at 789.

       Here, the victim was an adult when he testified at Appellant’s trial.

Thus, the law presumes that he was competent to testify. Appellant did not

present evidence to rebut that presumption. Thus, we discern no error in the

trial court’s denial of a competency hearing based on its conclusion that “the

[23-]year old victim’s ability to recall correctly and to remember the events in

question does not raise a question of competency.” Trial Ct. Op. at 14.

Denial of Request for a Mistrial

       In his fifth issue, Appellant claims the trial court erred when it refused

to declare a mistrial after the Commonwealth presented evidence that the

victim had received treatment for anxiety and depression. Appellant’s Brief

at 50-51. He argues that the Commonwealth had previously represented that

the victim had not received treatment for those conditions, so that when the

Commonwealth later elicited testimony that the victim suffered from

depression and anxiety, Appellant was unfairly surprised and prejudiced.4 Id.

____________________________________________


4 Appellant avers he suffered prejudice because defense counsel had argued
in his opening statement that the victim had a “lack of treatment for any



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at 52.     Appellant concedes that the Commonwealth was not required to

disclose that the victim had received treatment for anxiety and depression.

Id. He argues, however, that pursuant to Pa.R.Crim.P. 573(D),5 once the

Commonwealth learned that the victim had received such treatment, the

Commonwealth had a duty to disclose it. Id. The Commonwealth maintains

that it was not aware that the victim had received treatment for anxiety and

depression before the victim disclosed it at trial, and, thus, it could not have

produced this information to Appellant in discovery. Commonwealth’s Brief at

24-25.

       Our standard of review with regard to denial of motion for mistrial is as

follows:

       A motion for a mistrial is within the discretion of the trial court. A
       mistrial upon motion of one of the parties is required only when
       an incident is of such a nature that its unavoidable effect is to
       deprive the appellant of a fair and impartial trial. It is within the
       trial court's discretion to determine whether a defendant was
       prejudiced by the incident that is the basis of a motion for a
       mistrial. On appeal, our standard of review is whether the trial
       court abused that discretion.

Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa. Super. 2014) (citation

omitted).

       The victim testified at trial that he confided in his friend that when he

was in tenth grade he was “suffering from a lot of depression and anxiety.”
____________________________________________


distress of symptoms related to childhood sexual abuse.” Appellant’s Brief at
50. Thus, the victim’s testimony “eviscerated” Appellant’s defense. Id.
5 Pa.R.Crim.P. 573(D) provides that a party has a continuing duty prior to and

during trial to disclose additional evidence or material previously requested in
discovery. Pa.R.Crim.P. 573(D).

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N.T., 10/25/19, at 100, 103. The victim also testified that he had told his

mother about his anxiety and saw his pediatrician for treatment. Appellant’s

counsel objected to this testimony because the Commonwealth had not

provided him with the victim’s mental health treatment records and the victim

was not qualified to give an expert opinion. Id. at 101. The court overruled

Appellant’s objection, whereupon Appellant moved for a mistrial.              The

Commonwealth represented that it was not aware of any existing mental

health treatment records. The court took the motion under advisement, and

permitted Appellant to put the fact that no records of mental health treatment

existed on the record. Id. at 105.

         During cross-examination, Appellant’s counsel questioned the victim

about the anxiety and depression that he claimed to have suffered. The victim

testified that he did not remember telling the Commonwealth about it prior to

trial.

         The trial court found credible the victim’s testimony that he had not

previously informed the Commonwealth that he had sought treatment for

anxiety and depression.         Therefore, the trial court concluded that the

Commonwealth did not commit a discovery violation, and denied Appellant’s

Motion for a Mistrial.

         Following our review of the record, we find that the trial court properly

exercised its discretion in denying Appellant’s Motion. This claim, therefore,

does not garner Appellant relief.




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Cumulative Impact of Errors

      In his sixth issue, Appellant claims that he has been prejudiced and

denied his due process rights owing to the cumulative impact of the numerous

errors alleged supra. Appellant’s Brief at 55. Appellant has failed to support

this claim with citation to any relevant case law. Accordingly, we find this

issue waived. See Pa.R.A.P. 2119(a); Commonwealth v. Perez, 93 A.3d

829, 838 (Pa. 2014) (claims failing to advance developed argument or citation

to supporting authorities and record are waived).

      Moreover, even if Appellant had not waived this claim, he would not be

entitled to relief. It is well-settled that “where a claimant has failed to prove

prejudice as the result of any individual errors, he cannot prevail on a

cumulative effect claim unless he demonstrates how the particular cumulation

requires a different analysis.” Commonwealth v. Wright, 961 A.2d 119,

158 (Pa. 2008). Appellant has failed to do so here.

Right to Allocute

      In his seventh issue, Appellant contends that we should remand this

case for resentencing because the trial court erred in sentencing Appellant

before offering him an opportunity to address the court. Appellant’s Brief at

56. We are constrained to agree.

      Pa.R.Crim.P. 704(C)(1) provides, in relevant part, that “[a]t the time of

sentencing, the judge shall afford the defendant the opportunity to make a

statement[.]” Pa.R.Crim.P. 704(C)(1); see also 42 Pa.C.S. § 9752 (providing

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that the court shall “[a]fford to the defendant the right to make a

statement.”); Commonwealth v. Hardy, 99 A.3d 577, 580 (Pa. Super.

2014) (the trial court’s failure to inform the defendant of his right to allocution

and to afford an opportunity for allocution prior to imposing sentence is

reversible error).

      “What effect the exercise of the right of allocution might have on the

subjective process of sentencing can never be known with such certainty that

a reviewing court can conclude there was no prejudice in its absence.”

Commonwealth v. Thomas, 553 A.2d 918, 919 (Pa. 2003).                         “The

significance of allocution lies in its potential to sway the court toward leniency

prior to imposition of sentence.      Permitting the defendant to speak after

sentence has been imposed fails to meet the essence of the right of

allocution.” Commonwealth v. Hague, 840 A.2d 1018, 1020 (Pa. Super.

2003).

      In the instant case, the court sentenced Appellant prior to offering him

the opportunity to make a statement. Upon being informed of the oversight,

the court both provided Appellant with the opportunity to make a statement

to the court—and Appellant availed himself of the opportunity—and informed

Appellant that the court would consider Appellant’s statement and “make any

changes I feel might be necessary as a result thereof.” N.T., 3/26/17, at 78.

      Notwithstanding the trial court’s attempts to cure its failure to notify

Appellant of his right to allocute prior to sentencing, our case law is clear that




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this failure constituted reversible error.         We, therefore, vacate Appellant’s

sentence and remand for resentencing.6

       Convictions affirmed. Judgment of Sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

       Judge Ott joins the memorandum.

       President Judge Emeritus Stevens files a Concurring and Dissenting

memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/19




____________________________________________


6 In light of our disposition of this issue, we need not address Appellant’s final
claim in which he challenges the discretionary aspects of his sentence.

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