J-S68008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 JOHN MARK SERVEY                          :
                                           :
                     APPELLANT             :   No. 1618 WDA 2017

            Appeal from the Judgment of Sentence May 31, 2017
    In the Court of Common Pleas of Clarion County Criminal Division at
                      No(s): CP-16-CR-0000018-2016


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

MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 12, 2018

        John Mark Servey (“Appellant”) appeals the judgment of sentence

entered after a jury convicted him of forty-nine counts of sexual offenses

against his step-granddaughter (“the victim”), who was born in February of

1997.     We affirm the convictions, vacate the judgment of sentence, and

remand for resentencing.

        The trial court summarized the facts and procedural history of this case

as follows:

              [The victim] was seven years old when [Appellant] started
        to sexually abuse her. While she was sleeping, he would pull her
        pajamas and underwear down, sometimes push her knees up, and
        then rub his penis on her vagina. Every time, he would lick and
        put his tongue in her vagina. At trial, [the victim] testified to
        these and the following facts.

              [Appellant] sexually abused her in a camper trailer and at
        her grandma’s and his home, many times. She remembers some
        times more than others. One day they were at a campsite and
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S68008-18


     were messing with a red radio and he abused her in the camper
     that night. He shined a square green flashlight on her private
     area. She recalls him doing it at her grandma’s house during
     holidays, when she was sleeping on the living room floor, because
     she remembers the Christmas tree and lights and Easter eggs.
     [Appellant] would never say anything when he was sexually
     abusing her and she would not say anything because she didn’t
     want him to know she was awake and knew what he was doing.
     When she would get up in the morning, she would find specks of
     snuff all over herself. [Appellant] chewed tobacco.

           [Appellant] continued sexually abusing her over the next
     approximately seven years, until her grandma died in 2010. She
     then stopped going to their house. She recalls he did it 16 times.

           [The victim] did not tell anyone in her family about the
     abuse because she did not want to hurt anyone. [Appellant] was
     part of her family and was important to her. Her family finally
     learned about what the [Appellant] had done when [the victim]
     was eighteen years old. Her younger sister overheard her talking
     to her boyfriend and then told their mother. That is when it was
     reported to the police. Before that time, the only other person
     [the victim] had told was her best friend [B.], when they were in
     eighth grade. [The victim] and [B.] got mad at each other and
     did not talk for many years, but when [B.] saw in the news that
     [Appellant] had been arrested, she messaged [the victim] that
     she was proud of [the victim] for sticking up for herself.

           When this case went to trial, [Appellant’s] primary strategy
     was to challenge [the victim’s] credibility through cross
     examination. He did show that when [Appellant] allegedly abused
     her on the living room floor, her grandma and sister were sleeping
     only several feet away. He challenged her recollection of the
     number of times it happened. He proved that [the victim] was
     friendly to [Appellant] and sought him out to attend family
     functions. He showed that many years went by before she
     reported the abuse to anyone.

           [Appellant’s] other strategy was to convince the jury
     [Appellant] was not guilty because he has a good reputation in the
     community. He presented the testimony of three men who are
     familiar with his reputation. Otherwise, [Appellant] presented no
     evidence. He did not testify in his own defense.


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       . . . The Clarion County jury deliberated and decided the
       Commonwealth had met its burden of proof on all 49 counts. The
       jury found [Appellant] guilty of sixteen counts of each of the
       following offenses: Involuntary Deviate Intercourse [IDSI] with a
       Child, Aggravated Indecent Assault of a Child, and Indecent
       Assault and one count of Corruption of a Minor.[1] [The trial court]
       denied bail pending appeal.

             The Commonwealth then sought a finding by the court that
       [Appellant] is a sexually violent predator. [The trial court]
       conducted a hearing. Despite having received notice, [Appellant]
       did not appear or participate in the hearing. [The trial court]
       concluded from the evidence that the Commonwealth had met its
       burden of proving [Appellant] is a sexually violent predator.

                                          * * *

             [The trial court] sentenced [Appellant] to minimum
       sentences within the Standard Range of the Sentencing Guidelines
       on each of the 49 charges. [The trial court] sentenced him to
       concurrent sentences on each of the sixteen counts of [IDSI].
       [The trial court] sentenced him to concurrent sentences on each
       of the sixteen counts of Aggravated Indecent Assault of a Child,
       to run consecutively with the sentences on the [IDSI] charges.
       [The trial court] sentenced him to concurrent sentences on each
       of the sixteen counts of Indecent Assault, to run consecutively
       with the sentences on the [IDSI] and Aggravated Indecent Assault
       of a Child charges. [The trial court] sentenced him on the
       Corruption of a Minor count, to run consecutively with the
       sentences on all other charges. The aggregate sentence was 120
       to 240 months.

             [Appellant] filed Post Sentence Motions and a Supplement
       to Post Sentence Motions. The attorneys filed briefs in support of
       their respective positions and [the trial court] heard their oral
       arguments. [The trial court] issued an Opinion and Order on
       September 29, 2017, denying [Appellant’s] Motions.

Trial Court Opinion, 12/27/17, at 1–3, 4–5.

____________________________________________


1   18 Pa.C.S. §§ 3125, 3123(b), 3126(a)(7), 6301(a)(1)(ii), respectively.



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       Appellant and the trial court complied with Pa.R.A.P. 1925.2 On appeal,

Appellant raises five questions for our consideration:

       1. Whether the verdict is supported by sufficient evidence, that
          is, whether the Commonwealth proved all 49 counts of the
          information beyond a reasonable doubt[?]

       2. Whether the verdict is against the weight of the evidence?

       3. Whether the trial court should have recused itself and granted
          [Appellant] a new trial[?]

       4. Whether [Appellant’s] sentence is illegal[?]

              a. Whether the crimes of IDSI with a child and indecent
                 assault of a child merge for sentencing purposes[?]

              b. Whether the crimes of IDSI with a child and aggravated
                 indecent assault of a child merge for sentencing
                 purposes[?]

              c. Whether      [Appellant’s]      SVP      designation    is
                 unconstitutional[?]

       5. Whether the trial court abused its discretion by sentencing
          [Appellant] based, in part, upon impermissible factors[?]

Appellant’s Brief at 9–11 (full capitalization omitted; issues re-ordered for

ease of disposition).

       In Appellant’s first issue, he avers that the evidence was insufficient to

support a conviction of all forty-nine charges.          Appellant’s Brief at 43.

Specifically, Appellant contends that the Commonwealth failed to prove that:

____________________________________________


2 The trial court relies on its October 2, 2017 Order and Opinion, disposing of
Appellant’s post-sentence motions, as the basis for its analysis of Appellant’s
Pa.R.A.P. 1925(b) claims.



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sixteen instances of assault occurred; the victim was under the age of

thirteen; and the assaults occurred on the date alleged in the criminal

information. Id. at 44–58.3

       We analyze arguments challenging the sufficiency of the evidence within

the following parameters:

             Our standard when reviewing the sufficiency of the evidence
       is whether the evidence at trial, and all reasonable inferences
       derived therefrom, when viewed in the light most favorable to the
       Commonwealth as verdict-winner, are sufficient to establish all
       elements of the offense beyond a reasonable doubt. We may not
       weigh the evidence or substitute our judgment for that of the fact-
       finder. Additionally, the evidence at trial need not preclude every
       possibility of innocence, and the fact-finder is free to resolve any
       doubts regarding a defendant’s guilt unless the evidence is so
       weak and inconclusive that as a matter of law no probability of
       fact may be drawn from the combined circumstances. . . For
       purposes of our review under these principles, we must review the
       entire record and consider all of the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (quoting

Commonwealth v. Emler, 903 A.2d 1273, 1276–1277 (Pa. Super. 2006)).

       Regarding the sufficiency of the evidence as to the number of incidents,

Appellant complains that:

       [the victim] did not specifically testify to all 16 alleged instances
       and did so, as unreliably as her testimony was, as to only one or
       two instances. Moreover, [the victim] had to be prodded to say
       “sixteen”. When asked if she could give an exact number or sort
____________________________________________


3  Appellant also asserts that the Commonwealth failed to prove aggravated
indecent assault of a child in that the victim did not testify as to “lack of
consent, compulsion, unconsciousness, lack of awareness, or impairment.”
Appellant’s Brief at 49. However, this claim does not appear in Appellant’s
Pa.R.A.P. 1925(b) statement.          Therefore, we deem it waived.
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).

                                           -5-
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     of an estimate of the number of times this happened, [the victim]
     testified “No.” [N.T., 10/31/16, at 38–39.] It was only after much
     leading by the Commonwealth, and her referring to the script
     prepared in advance of trial . . . that [the victim] affirmed the
     answer that the Commonwealth sought from her: “Sixteen.” [Id.
     at 39–41.]

Appellant’s Brief at 44 (emphases in original; footnote omitted). In support

of his argument, Appellant suggests that the victim’s written statements

“speak to the lack of veracity of [her] every-changing story.” Id. at 45 n.16.

     The Commonwealth explains the victim’s testimony, as follows:

     It is clear from the victim’s testimony that this was a frequent
     occurrence from [age] 7 to when her grandmother died when [the
     victim] was 13. [The victim] testified that she cannot recall every
     date and time these assaults happened. [N.T., 10/31/16, at 36.]
     She was able to use external indicators, such as Christmas tree
     lights, to place a specific context to certain assaults. Id. at 36–
     37. A written statement was prepared outlining a total of 16 times
     that [the victim] could specifically recall the timeframe of the
     assaults. Id. at 37–41.

           The victim was asked if this list of 16 occurrences was a
     comprehensive list of every time [Appellant] molested her. Id.
     37–38. She answered that there were times she did not have
     “specific dates” for. Id. In other words, her testimony was that
     Appellant molested her more than 16 times, but that she could
     only specifically describe 16 incidents. She was asked if there
     were times she was assaulted between [the ages of] seven and
     twelve. Id. pg. 43. She responded yes. Id.

                                   * * *

     She then indicated that she wrote a statement for the police
     detailing those specific incidents she does remember. She was
     shown the written statement she wrote to the police in order to
     refresh her recollection about how many times she can specifically
     point to. She did so and testified there were 16 separate and
     distinct incidents she had a specific memory of. N.T. 10/31/16 at
     39–41.


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Commonwealth’s Brief at 13, 15–16.

     The trial court disposed of this claim with the following analysis:

            [Appellant’s first sufficiency] . . . argument is based on the
     jury’s request, during deliberations, to see [the victim’s] written
     statements, which were Commonwealth’s Exhibits A and B. The
     jury presented the following request to the court: “The jury would
     like to view the exhibits in the case of Commonwealth vs. John
     Mark Servey, Case 18 of 2016.” Upon receiving this message, the
     court met in chambers with both attorneys. The only exhibits
     which were referenced during the trial were Commonwealth’s
     Exhibits A and B, but they were not admitted in evidence and [the
     victim] had not testified about the entire contents of the Exhibits.
     For those reasons, the court denied the jury’s request. N.T. at pp.
     108 and 109. [Appellant] argues the fact that the jury requested
     the Exhibits shows the jury was uncertain whether the testimony
     of the Commonwealth’s witnesses proved [Appellant] was guilty
     and therefore, the verdict was based on surmise and conjecture.

           This argument lacks merit. The jury’s message to the court
     was simple and straight forward [sic]. The jury simply wanted to
     view the Exhibits. The jury did not indicate why it wanted to view
     them. The message does not reflect any uncertainty or confusion.

Trial Court Opinion, 10/2/17, at unnumbered 5.

     Upon review of the evidence in the light most favorable to the

Commonwealth, we reject Appellant’s sufficiency claim as to the number of

incidents of sexual assault. As the Commonwealth observed:

           The general contents [sic] of the victim’s testimony was that
     from 2004 when she was 7 years old, until when her grandmother
     died in 2010 she was repeatedly subject[ed] to sexual assaults by
     [Appellant].

                                    * * *

           Appellant wished to paint a picture in which the victim could
     only recall two or three specific incidents. This is not accurate. It
     is important to note that the 16 offenses testified to were based
     simply on incidents in which the victim could put a specific

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      timeframe on [sic]. . . The actual number of assaults is far above
      that number.

Commonwealth’s Brief at 12, 13–14. The jury was free to believe the victim’s

testimony that she could recall sixteen instances of sexual assault.       The

victim’s written statements to the police corroborated her testimony. Because

the victim’s statements, which were not admitted into evidence, disclosed

unrelated events, the trial court denied the jury’s request to view them. Trial

Court Rule 1925(a) Opinion, 12/27/18, at unnumbered 6; Trial Court Opinion,

10/2/17, at unnumbered 5. Appellant has not challenged that ruling. Thus,

we conclude that the evidence at trial, and all reasonable inferences derived

therefrom, was sufficient to establish beyond a reasonable doubt that

Appellant sexually assaulted the victim on sixteen different occasions.

      Appellant’s second sufficiency claim concerns proof of the victim’s age.

According to Appellant, “if one believes the testimony presented by the

Commonwealth, one must also believe that some of the 16 alleged instances

occurred after [the victim] turned 13 and, then, 14.” Appellant’s Brief at 46

(emphasis in original).   The Commonwealth responds:          “[T]he testimony

believed by the jury was that the victim was systematically assaulted between

the ages of 7 and 12.” Commonwealth’s Brief at 17. In support of its position,

the Commonwealth points to defense counsel’s question to the victim about

her being seven to twelve years old during the period of sexual assaults, to

which she answered, “Yes.” Id.

      The trial court disposed of this sufficiency challenge as follows:

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     [Appellant] argues that the Commonwealth failed to prove that
     the victim was less than 13 years of age at the time the crimes
     were committed, which is an element of each of the 16 counts of
     [IDSI], the 16 counts of Aggravated Indecent Assault of a Child,
     and the 16 counts of Indecent Assault — Person Less than 13
     years of Age.

                                    * * *

            [The victim] testified at trial that she stayed very frequently
     with her grandma until her grandma died in 2010. [The victim]
     was [13] years old when [her grandma] died. Notes of Testimony
     from jury trial of October 31, 2016 (N.T.) at pages 28 and 29.
     [The victim] stated [Appellant] began sexually assaulting her
     when she was seven years old. N.T. at pp. 30 and 31. She
     described in detail how [Appellant] assaulted her on several
     occasions. N.T. at pp. 33 through 35. [The victim] stated the
     assaults stopped when her grandma died at the end of 2010.
     There were times she remembers more than others; a lot occurred
     around the holidays. N.T. pp. 36 and 37. When she testified, she
     could not remember the number of times it happened, but the
     prosecutor showed her a statement she had written and she said
     it refreshed her recollection that [Appellant] assaulted her 16
     times. N.T. at pp. 38 through 41. She testified there were times
     it happened between the ages of seven and 12. N.T. at p. 43.
     Further, [the victim] answered “yes” to the following question by
     defense counsel: “So you’re a nine, ten, 11, 12 year-old girl, and
     this guy is systematically raping you, you don’t remember it
     starting or ending and you go back to sleep, that’s your
     testimony?”

          This evidence, when viewed in the light most favorable to
     the Commonwealth as the verdict winner and when the
     prosecution is given the benefit of all reasonable inferences to be
     drawn from the evidence, is sufficient to establish that [Appellant]
     assaulted [the victim] 16 times between the ages of seven and
     12.

Trial Court Opinion, 10/2/17, at unnumbered 1–3.

     Upon review of the certified record in the light most favorable to the

Commonwealth, we agree with the trial court that the evidence at trial, and


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all reasonable inferences derived therefrom, was sufficient to establish that

the victim was less than thirteen years old when Appellant sexually assaulted

her. The victim recalled being sexually assaulted by Appellant on numerous

occasions from the time she was seven years old until her grandmother died

in 2010 when she was thirteen years old. N.T., 10/31/16, at 28–31. Although

she could not remember the total number of incidents, she remembered

sixteen specific assaults, as evidenced by her written statements to the police.

The jury was free to believe that Appellant sexually assaulted the victim

sixteen times when the victim was less than thirteen years old. Appellant’s

contrary claim lacks merit.

      Appellant’s third and final sufficiency challenge involves the date when

the offenses were alleged to have been committed as set forth in the criminal

information. Appellant complains, “[T]he Commonwealth should have been

more specific in the Information as to dates of the alleged acts, and the

Commonwealth’s failure to do so violated [Appellant’s] constitutional rights.”

Appellant’s Brief at 52. According to Appellant, the Commonwealth’s failure

to fix the dates of the alleged offenses deprived him of the ability to establish

an alibi defense and to defend himself against the charges.          Id. at 54.

Notably, with regard to the specific date of an offense, Appellant recognizes

that recent jurisprudence affords “greater latitude to the Commonwealth in

cases involving claims of abuse of minors occurring over a period of time.”

Id. (citing Commonwealth v. Benner, 147 A.3d 915 (Pa. Super. 2016)).


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Yet, in support of his position, Appellant relies on Commonwealth v. Devlin,

333 A.2d 888, 890 (Pa. 1975), in which the Pennsylvania Supreme Court

reversed a sodomy conviction because “the showing of the commission of the

crime within [a] fourteen-month period” did not meet the “sufficient

particularity” standard outlined in Commonwealth v. Levy, 23 A.2d 97 (Pa.

Super. 1941).

       Relying on Pa.R.Crim.P. 560,4 the Commonwealth responds: “In the

instant case, the precise date of the offense is not known. As the offenses

committed were a continuing course of conduct, the Commonwealth fixed [an]

offense date (1/1/2004) falling within the statute of limitations, as provided

by Rule 560.” Commonwealth’s Brief at 19. Additionally, the Commonwealth

relies on Commonwealth v. G.D.M., Sr., 926 A.2d 984 (Pa. Super. 2007).

Therein, this Court affirmed an indecent assault conviction where the victim

testified to ongoing, repeated abuse over a seven-month span from the time

the victim began kindergarten until the defendant was arrested.



____________________________________________


4   The rule provides, in relevant part, as follows:

       [The Information must contain] the date when the offense is
       alleged to have been committed if the precise date is known, and
       the day of the week if it is an essential element of the offense
       charged, provided that if the precise date is not known or if the
       offense is a continuing one, an allegation that it was committed
       on or about any date within the period fixed by the statute of
       limitations shall be sufficient.

Pa.R.Crim.P. 506(B)(3).

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     The G.D.M., Sr. Court held that:

     the due process concerns of Devlin are satisfied where the victim,
     as here, can at least fix the times when an ongoing course of
     molestation commenced and when it ceased. A six-year-old child
     cannot be expected to remember each and every date upon which
     he was victimized, especially where those events are numerous
     and occur over an extended period of time. Unlike adults, the
     lives of children, especially pre-school children or those who have
     only started school, do not revolve around the calendar, except to
     the extent that they may be aware of their birthday or Christmas,
     or the day a favorite television show airs. To require young
     children to provide such detail would be to give child predators
     free rein. Instantly, we find that the dates of the incidents were
     proven with sufficient specificity to satisfy due process.

Id. at 990.

     Here, the trial court rejected Appellant’s claim on the following grounds:

     Appellant next states that the Commonwealth alleged in the
     Information that all of the offenses occurred on January 1, 2004.
     He argues that the Commonwealth failed to prove any specific
     date or range of dates when the assaults occurred.            The
     Commonwealth did state in the Information: “Offense Date:
     01/01/2004” for each of the 16 counts of [IDSI] with a Child, the
     16 counts of Aggravated Indecent Assault of a Child, and the 16
     counts of Indecent Assault – Person Less than 13 years of Age.
     The Commonwealth also stated in the Information that [the
     victim] was less than 13 years of age and she was seven years of
     age when the incidents began.

     In Com. v. Young, 748 A.2d 166, 182 (Pa. 1999), the Supreme
     Court stated:

              In general, the Commonwealth need not prove that
              the crime occurred on the date alleged in the
              indictment, except where the date is an essential issue
              in the case, e.g., where the defendant presents an
              alibi defense. See, e.g., Commonwealth v. Boyer, 216
              Pa.Super. 286, 264 A.2d 173 (Pa.Super. 1970).

     In the present case, the date of each offense was not an essential
     issue in the case.

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          The Supreme Court also stated in In re R.M., 790 A.2d 300,
     306 (Pa. 2002) that,

          . . . a variance may be deemed harmless where a
          defendant is fully apprised of the charges against him
          and able to anticipate and respond to the
          prosecution’s proof. See United States v. Stuckey,
          220 F.3d 976, 982–[983] (8th Cir. 2000);
          Commonwealth v. Kelly, 487 Pa. 174, 178, 409 A.2d
          21, 23 (1979); accord United States v. Alicea–
          Cardoza, 132 F.3d 1, 6 (1st Cir. 1997). Harmlessness
          may be found either because the disparity between
          the charging document and the proof at trial was not
          material, or because the disparity, though material,
          did not prejudice the defendant. See Kelly, 487 Pa. at
          177; 409 A.2d at 23; *656 [sic] Commonwealth v.
          Ohle, 503 Pa. 566, 589, 470 A.2d 61, 73 (1983).

     In Com. v. Einhorn, 911 A.2d 960, 978 (Pa. Super. 2006), the
     Court stated:

          Additionally, ‘indictments must be read in a common
          sense manner and are not to be construed in an overly
          technical sense.’ Commonwealth v. Ohle, 503 Pa.
          566, 588, 470 A.2d 61, 73 (1983) (citation omitted).
          The purpose of the indictment is to provide the
          accused with sufficient notice to prepare a defense.
          See id. A variance is not fatal unless it could mislead
          the defendant at trial, impairs a substantial right or
          involves an element of surprise that would prejudice
          the defendant’s efforts to prepare his defense. See
          id., at 589, 470 A.2d at 73.

     In the present case, the Commonwealth stated an “Offense Date”
     in the Information of “01/01/2004.” At trial, the victim . . . did
     not give a specific date or dates when the incidents occurred.
     Nevertheless, the Commonwealth also stated in the Information
     that [the victim] was less than 13 years of age and she was seven
     years of age when the incidents began. [Appellant] was fully
     apprised of the charges against him and able to anticipate and
     respond to the prosecution’s proof and therefore, any variance
     between the date provided in the Information and the proof at
     trial was harmless.


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Trial Court Opinion, 10/2/17, at unnumbered 3–5.

       Upon review of the certified record in the light most favorable to the

Commonwealth, as well as the relevant case law cited by the Commonwealth

and the trial court, we conclude that “the dates of the incidents were proven

with sufficient specificity to satisfy due process.” G.D.M., Sr., 926 A.2d at

990. Like the victim in G.D.M., Sr., the victim here was able to fix the times

when an ongoing course of molestation commenced and when it ceased.

Specifically, she testified that the sexual assaults started when she was seven

years old and continued until her grandmother died in 2010, when the victim

was thirteen years old. N.T., 10/31/16, at 28–31. The victim also recalled

sixteen specific incidents during the ongoing period of molestation, and she

testified to being assaulted between the ages of seven and twelve. Id. at 41,

43. Thus, Appellant’s final sufficiency claim does not warrant relief.

       Appellant’s second issue presents a challenge to the weight of the

evidence.5 According to Appellant, the victim’s testimony was “contradictory,



____________________________________________


5  Initially, Appellant complains that the trial court misunderstood the proper
standard of review for a weight-of-the-evidence challenge. Appellant’s Brief
at 32–33. In disposing of this claim, we agree with the Commonwealth that
Appellant took “a statement made by the trial court out of context” to support
an allegation of error. Commonwealth’s Brief at 9. Appellant first raised a
weight claim in his post-verdict motion for a new trial, which the trial court
denied. Order, 2/21/17. Three months later, the trial court conducted a
recusal hearing. During that hearing, the trial court made the statement at
issue, i.e., that it would be sentencing Appellant based on the jury’s verdict,
not on his own opinion of the evidence. N.T., 5/31/17, at 32. Appellant’s
allegation of trial court error is disingenuous and belied by the record.

                                          - 14 -
J-S68008-18


unspecific and lacking as to the dates and circumstances alleged, and her

testimony was incredible and utterly unreliable.”      Appellant’s Brief at 34.

Specifically, Appellant challenges the victim’s failure to remember that she

had told a childhood friend about the assaults.        Id. at 39. Additionally,

Appellant argues that the evidence is contrary to his reputation, as described

by three character witnesses called on his behalf. Id. at 40.

      Our Supreme Court has set forth the following standards for addressing

challenges to the weight of the evidence:

      The decision to grant or deny a motion for a new trial based upon
      a claim that the verdict is against the weight of the evidence is
      within the sound discretion of the trial court. Thus, the function of
      an appellate court on appeal is to review the trial court’s exercise
      of discretion based upon a review of the record, rather than to
      consider de novo the underlying question of the weight of the
      evidence. An appellate court may not overturn the trial court’s
      decision unless the trial court palpably abused its discretion in
      ruling on the weight claim. Further, in reviewing a challenge to
      the weight of the evidence, a verdict will be overturned only if it
      is so contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations

and quotation marks omitted). “[W]e do not reach the underlying question of

whether the verdict was, in fact, against the weight of the evidence....

Instead, this Court determines whether the trial court abused its discretion in

reaching whatever decision it made on the motion[.]” Commonwealth v.

Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation omitted). “Thus,

the trial court’s denial of a motion for a new trial based on a weight of the




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evidence claim is the least assailable of its rulings.”     Commonwealth v.

Diggs, 949 A.2d 873, 879–880 (Pa. 2008).

      Here, the trial court succinctly disposed of Appellant’s weight claim when

it denied his motion for a new trial:

      [This] court has applied the following standard set forth in Com.
      v. Davidson, 860 A.2d 575, 582 (Pa. Super. 2004), “When
      reviewing a challenge to the weight of the evidence, the verdict
      must be reversed only if it is so contrary to the evidence as to
      shock one’s sense of justice.”        In the present case, the
      Commonwealth presented the testimony of the victim . . . that
      [Appellant] penetrated her vagina with his tongue sixteen times
      during the period beginning in 2004 when she was seven years
      old until the time when her grandmother died in December 2010
      when she was 13 years old. The jury’s verdict was not so contrary
      to the evidence as to shock one’s sense of justice.

Order, 2/21/17, at 2.

      Affording the gravest consideration to the findings and reasons

advanced by the trial judge for its determination that the verdict was not

against the weight of the evidence, we discern no abuse of the trial court’s

discretion.   Commonwealth v. Clay, 64 A.3d 1049, 1056 (Pa. 2013).

Although Appellant assails the victim’s testimony and exalts his own character,

he offers no evidence that the trial court exercised manifestly unreasonable

judgment, misapplied the law, or acted out of partiality, prejudice, bias, or ill-

will in denying his motion for a new trial. Moreover, the jury heard defense

counsel cross-examine the victim about, inter alia, inconsistencies in her

testimony, the assaults occurring in a room where other family members were

sleeping, and the victim’s failure to remember that she told a friend in eighth


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grade about the assaults. N.T., 10/31/16, at 44–50, 53–55; Trial Court Rule

1925(a) Opinion, 12/27/18, at unnumbered 2. Yet, the jury chose to give

weight to the victim’s testimony. Appellant essentially asks us to reassess the

credibility of the victim and to reweigh the evidence presented at trial, which

we cannot do.      See Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa.

Super. 2015), appeal denied, 138 A.3d 4 (2016) (citation omitted) (“The

weight of the evidence is exclusively for the finder of fact, who is free to

believe all, none or some of the evidence and to determine the credibility of

the witnesses.”). Thus, our review of the record leads to the conclusion that

the trial court did not abuse its discretion when it held that the verdict was

not so contrary to the evidence as to shock the court’s conscience. Appellant

is not entitled to relief on his weight of the evidence claim.

       In his third issue, Appellant claims the trial judge should have recused

himself. In summary, Appellant states: “The trial judge admittedly engaged

in a conversation with a friend, after trial.        While the specifics of the

conversation remain unknown to [Appellant], the subject involved the verdict

in this case, during which the judge allegedly stated that he did not believe

[Appellant] was guilty.” Appellant’s Brief at 58.6

____________________________________________


6   The trial court observed that Appellant raised for the first time in his
Pa.R.A.P. 1925(b) statement an additional recusal complaint, i.e., that the
trial court “made a statement at the end of the trial that [the victim] did not
testify to all of the alleged instances, indicating that [the trial court] did not
believe the Commonwealth had proven some of the charges and . . . could not



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       The Commonwealth responds: “The trial judge denied ever making the

alleged statement, and no evidence was presented to refute that. The original

allegation was not a direct allegation, but rather an inadmissible hearsay

statement. The trial court’s decision was correct, and [it] did not abuse [its]

discretion.” Commonwealth’s Brief at 26.

       When addressing a recusal issue, our standard of review is well settled:

             [Our Supreme]        Court presumes judges of this
       Commonwealth are honorable, fair and competent, and, when
       confronted with a recusal demand, have the ability to determine
       whether they can rule impartially and without prejudice. The party
       who asserts a trial judge must be disqualified bears the burden of
       producing evidence establishing bias, prejudice, or unfairness
       necessitating recusal, and the decision by a judge against whom
       a plea of prejudice is made will not be disturbed except for an
       abuse of discretion.

             As a general rule, a motion for recusal is initially directed to
       and decided by the jurist whose impartiality is being challenged.
       In considering a recusal request, the jurist must first make a
       conscientious determination of his or her ability to assess the case
       in an impartial manner, free of personal bias or interest in the
       outcome. The jurist must then consider whether his or her
       continued involvement in the case creates an appearance of
       impropriety and/or would tend to undermine public confidence in
       the judiciary. This is a personal and unreviewable decision that
       only the jurist can make. Where a jurist rules that he or she can
       hear and dispose of a case fairly and without prejudice, that
       decision will not be overruled on appeal but for an abuse of
       discretion.



____________________________________________


be fair.” Trial Court Pa.R.A.P. 1925(a) Opinion, 12/27/17, at unnumbered 6.
Upon review of the certified record, we agree with the trial court that Appellant
raised this issue for the first time in his Pa.R.A.P. 1925(b) statement.
Therefore, it is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).

                                          - 18 -
J-S68008-18


            [A] trial judge should recuse himself whenever he has any
     doubt as to his ability to preside impartially in a criminal case or
     whenever he believes his impartiality can be reasonably
     questioned. It is presumed that the judge has the ability to
     determine whether he will be able to rule impartially and without
     prejudice, and his assessment is personal, unreviewable, and
     final. Where a jurist rules that he or she can hear and dispose of
     a case fairly and without prejudice, that decision will not be
     overturned on appeal but for an abuse of discretion.

Commonwealth v. Kearney, 92 A.3d 51, 60–61 (Pa. Super. 2014) (internal

citations and quotation marks omitted).

     The trial court stated the context and its analysis of this issue as follows:

           [Appellant] [sought] a new trial because [the trial court]
     denied defense counsel’s oral motion for recusal at a hearing on
     May 31, 2017. He contends that [the trial court] could not be
     impartial and lenient in imposing a sentence because an individual
     had reported that [the trial court] told another individual [it]
     believed [Appellant] was not guilty and thus, questioned [its]
     impartiality. All of the pertinent facts and [the trial court’s] ruling
     and reasons for [its] ruling are set forth in the record of the
     hearing of May 31, 2017.

            The record shows [the trial court] had ordered the District
     Attorney to provide notice [of] the hearing to the person who
     made the allegation against [it] and to any other persons who may
     have information about [its] conversation.          At the hearing,
     Assistant District [Attorney] Welsh confirmed that the person was
     present, but did not want to talk or identify himself or herself. No
     one came forward and provided any information indicating that
     [the trial court] had stated [it] believed [Appellant] was not guilty.
     [The trial court] had no information that members of the
     community really thought [it] said that or that anyone in the
     community perceived that [the trial court] favored [Appellant] and
     would be lenient toward him. There is no indication [the trial
     court] felt a need to respond to a perception in the community by
     imposing a harsher sentence.

            [The trial court] did impose sentence on May 31 and stated
     [its] reasons for the sentence. There is a record of that proceeding
     as well. [The trial court] considered the facts of the offenses, the

                                     - 19 -
J-S68008-18


       Sentencing Guidelines and the information provided at the
       sentencing hearing in deciding what the sentence would be; the
       same as [it does] in every case. [The trial court] believe[s it]
       provided valid reasons for imposing the sentence.

Trial Court Opinion, 10/2/17, at unnumbered 6–7.

       Upon review of the record, we discern no abuse of the trial court’s

discretion in denying Appellant’s recusal request. Kearney, 92 A.3d at 60.

The trial judge denied making the alleged statement. N.T., 5/31/17, at 8.

Nevertheless, he took measures to investigate the allegations by an

unidentified third party regarding a statement concerning Appellant’s

innocence. N.T., 5/12/17, at 7–21. At the recusal hearing, the trial judge

explained his understanding of the allegations, the allegations remained

unsubstantiated, and Appellant produced no testimony in support of recusal.

Id. at 6–9, 15, 16, 21–24.           Thus, Appellant did not carry his burden of

presenting evidence to establish bias, prejudice, or unfairness necessitating

recusal. Kearney, 92 A.3d at 60. Moreover, after careful consideration of

Appellant’s request, the trial judge made a conscientious determination that

he could be impartial at sentencing. N.T., 5/31/17, at 23–24. Appellant’s

contrary claim lacks merit.7




____________________________________________


7  We are aware of Appellant’s argument that his inability to examine the
anonymous caller violated his Confrontation Clause rights. Appellant’s Brief
at 64. Upon review, we reject this claim as it was not preserved in the trial
court. Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b); Lord, 719 A.2d 306.

                                          - 20 -
J-S68008-18


       Appellant’s fourth issue attacks the legality of his sentence on two

fronts: merger and designation as a sexually violent predator (“SVP”).

Appellant first argues that, for sentencing purposes: (1) IDSI with a child

merges with indecent assault of a person less than thirteen years old, and (2)

IDSI with a child merges with aggravated indecent assault of a child.

Appellant’s Brief at 78–84.8

       A claim that the trial court imposed an illegal sentence by failing to

merge convictions for sentencing is a question of law. Commonwealth v.

Duffy, 832 A.2d 1132, 1137 (Pa. Super. 2003). Accordingly, our scope of

review is plenary. Id. Our legislature has addressed the mandatory merger

of convictions for the purpose of sentencing in section 9765 of the Sentencing

Code, which provides as follows:

       § 9765. Merger of sentences

       No crimes shall merge for sentencing purposes unless the crimes
       arise from a single criminal act and all of the statutory elements
       of one offense are included in the statutory elements of the other
       offense. Where crimes merge for sentencing purposes, the court
       may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.




____________________________________________


8  Appellant raised a claim in his brief that indecent assault of a person less
than thirteen years old merges with aggravated indecent assault of a child,
then promptly acknowledged that this Court has held otherwise. Appellant’s
Brief at 78 n. 21 (citing Commonwealth v. Allen, 856 A.2d 1251 (Pa. Super.
2004). Thus, we will not address this claim.

                                          - 21 -
J-S68008-18


      Our Supreme Court has summarized the appropriate test concerning

merger of convictions for sentencing as follows:

      The statute’s mandate is clear. It prohibits merger unless two
      distinct facts are present: 1) the crimes arise from a single
      criminal act; and 2) all of the statutory elements of one of the
      offenses are included in the statutory elements of the other.

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

      Appellant first argues that the sixteen convictions of IDSI with a child

and the sixteen convictions of indecent assault of a child merge. Appellant’s

Brief at 78.       In support of his position, Appellant relies on—and the

Commonwealth         acknowledges—this       Court’s   recent   decision    in

Commonwealth v. Tighe, 184 A.3d 560 (Pa. Super. 2018). Therein, we

held as follows:

            “Deviate sexual intercourse is defined as “Sexual
      intercourse per os or per anus between human beings.” 18
      Pa.C.S. § 3101.     Proof of the “deviate sexual intercourse”
      requirement of § 3123(a)(7) satisfies the “indecent contact”
      element of § 3126(a)(8). Thus, proof of involuntary deviate
      sexual intercourse with a person under sixteen necessarily proved
      indecent assault of a person under sixteen. Accordingly, the
      convictions merge for sentencing purposes.

Id. at 585.

      Applying Tighe to the cases at hand, we hold that proof of the “deviate

sexual intercourse” requirement of § 3123(b) satisfies the “indecent contact”

element of § 3126(a)(7).       Thus, evidence of involuntary deviate sexual

intercourse with a person under thirteen necessarily proved indecent assault

of a person under thirteen. Accordingly, the sixteen convictions for indecent


                                    - 22 -
J-S68008-18


assault merge with the sixteen IDSI convictions for sentencing purposes.

Because the trial court imposed consecutive sentences on the sixteen

convictions of indecent assault, our ruling disrupts the sentencing scheme and

requires that we vacate the judgment of sentence and remand for

resentencing. Tighe, 184 A.3d at 585.

      Appellant next argues that the sixteen convictions of IDSI with a child

and the sixteen convictions of aggravated indecent assault of a child merge.

Appellant’s Brief at 81.   We disagree.    IDSI with a child requires proof of

deviate sexual intercourse with forcible compulsion or threat of forcible

compulsion; or with an unconscious, unaware, or impaired complainant, who

is less than 13 years of age.       18 Pa.C.S. § 3123(b).       “Deviate sexual

intercourse” includes, inter alia, sexual intercourse per os or per anus between

human beings. 18 Pa.C.S. § 3101. Sexual intercourse “includes intercourse

per os or per anus, with some penetration however slight; emission is not

required.” Id.   Aggravated indecent assault of a child requires proof of

“penetration, however slight, of the genitals or anus of a complainant [who is

less than 13 years old] with a part of the person’s body” and without consent;

with forcible compulsion or threat of forcible compulsion; or with an

unconscious, unaware, or impaired complainant. 18 Pa.S.C. § 3125(b).

      Here, Appellant’s merger argument fails because he committed different

acts to establish each of the elements of IDSI with a child and aggravated

indecent assault of a child. The victim testified that Appellant rubbed his penis


                                     - 23 -
J-S68008-18


on her privates and performed oral sex on her without her consent; she also

testified that Appellant’s “tongue would go into [her] vagina.” N.T., 10/31/16,

at 33, 35–36, 41, 52. Each of these actions are separate acts that would

separately meet the requirements for IDSI with a child and aggravated

indecent assault of a child. See Commonwealth v. Bishop, 742 A.2d 178,

189 (Pa. Super. 1999) (finding evidence that defendant licked his five-year-

old step-granddaughter’s vagina during the course of a secret game was

sufficient to establish IDSI; evidence that defendant’s tongue penetrated the

victim’s vagina was sufficient to establish aggravated indecent assault).

Because multiple acts occurred, Appellant’s second merger argument fails.

       Appellant’s second legality-of-sentence claim challenges his SVP

designation. Appellant’s Brief at 84. According to Appellant, pursuant to our

decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), we

must vacate the order designating him a SVP because it is the result of an

unconstitutional process.       Id. at 86, 92. Appellant is correct. We held in

Butler that because:

       our Supreme Court has held that SORNA registration
       requirements are punitive or a criminal penalty to which
       individuals are exposed, then under Apprendi and Alleyne,[9] a
       factual finding, such as whether a defendant has a “mental
       abnormality or personality disorder that makes him or her likely
       to engage in predatory sexually violent offenses,” 42 Pa.C.S.A. §
       9799.12, that increases the length of registration must be found
       beyond a reasonable doubt by the chosen fact-finder. Section
____________________________________________


9 Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
States, 570 U.S. 99 (2013).

                                          - 24 -
J-S68008-18


      9799.24(e)(3) identifies the trial court as the finder of fact in all
      instances and specifies clear and convincing evidence as the
      burden of proof required to designate a convicted defendant as an
      SVP. Such a statutory scheme in the criminal context cannot
      withstand constitutional scrutiny. Accordingly, we are constrained
      to hold that section 9799.24(e)(3) is unconstitutional and
      Appellant’s judgment of sentence, to the extent it required him to
      register as an SVP for life, was illegal.

Butler, 173 A.3d 1212, 1217–1218 (Pa. Super. 2017), allowance of appeal

granted, 190 A.3d 581 (Pa. 2018) (internal brackets omitted).

      Accordingly, we vacate the trial court’s April 10, 2017 order, which

designated Appellant an SVP and required him to register as a SVP for life,

and we remand this case to the trial court for the sole purpose of issuing the

appropriate notice under 42 Pa.C.S. § 9799.23 as to Appellant’s registration

obligation. Butler, 173 A.3d at 1218.

      Lastly, Appellant argues that the trial court abused its discretion at

sentencing by considering impermissible factors.       Appellant’s Brief at 92.

Appellant first claims the trial court should not have considered the SVP

designation in sentencing Appellant.     Id. at 93.    Given our disposition of

Appellant’s sentencing and SVP issues, this argument is moot.

      Appellant next claims that the trial court improperly considered public

perception of his ability to sentence Appellant.       Appellant’s Brief at 96.

Specifically, Appellant accuses the trial judge of sentencing him “in a manner

which would be perceived by the ‘public’ as being sufficiently harsh” as a

countermeasure to the allegation that the trial judge stated his belief to a

friend that Appellant was not guilty. Id. at 96–97.

                                     - 25 -
J-S68008-18


      Appellant’s claim challenges the discretionary aspect of his sentence.

We note that “[t]he right to appellate review of the discretionary aspects of a

sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for allowance

of appeal.   Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.

2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

            An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a four-
      part test:

             We conduct a four-part analysis to determine: (1)
             whether appellant has filed a timely notice of appeal,
             see Pa.R.A.P. 902 and 903; (2) whether the issue was
             properly preserved at sentencing or in a motion to
             reconsider and modify sentence, see Pa.R.Crim.P.
             [708]; (3) whether appellant’s brief has a fatal defect,
             Pa.R.A.P. 2119(f); and (4) whether there is a
             substantial question that the sentence appealed from
             is not appropriate under the Sentencing Code, 42
             Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)). The determination of whether there is a substantial question is made

on a case-by-case basis, and this Court will grant the appeal only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing Code;

or (2) contrary to the fundamental norms which underlie the sentencing

                                      - 26 -
J-S68008-18


process.    Commonwealth v. Sierra, 752 A.2d 910, 912-913 (Pa. Super.

2000).

      Herein, the first requirement of the four-part test is satisfied: Appellant

brought a timely appeal. Notice of Appeal, 10/26/17. However, Appellant did

not preserve this claim at sentencing or in a motion to reconsider and modify

sentence. N.T., 5/31/17, at 40–60; Post Sentence Motions, 6/12/17. Thus,

Appellant waived this challenge to the discretionary aspects of his sentence.

Moury, 992 A.2d at 170.

      Appellant’s convictions are supported by sufficient evidence and not

contrary to the weight of that evidence. However, Appellant’s sentence is

infirm and requires that we remand for resentencing consistent with this

decision.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2018




                                     - 27 -
