J-S35021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

THOMAS CALEB,

                        Appellant                   No. 1883 EDA 2014


            Appeal from the Judgment of Sentence June 2, 2014
            In the Court of Common Pleas of Philadelphia County
                         Criminal Division at No(s):
                          CP-51-CR-0006440-2012
                          CP-51-CR-0006441-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JUNE 20, 2016

     Appellant, Thomas Caleb, appeals from the judgment of sentence of

12½ to 25 years’ incarceration, followed by 10 years’ probation, imposed

after a jury convicted him of involuntary deviate sexual intercourse (IDSI),

incest, endangering the welfare of a child, and indecent assault.          After

careful review, we conclude that all of Appellant’s issues are meritless,

except for his challenge to the legality of a mandatory minimum sentence

imposed under 42 Pa.C.S. § 9718 (Sentences for offenses against infant

persons).   Accordingly, we vacate Appellant’s judgment of sentence and

remand for resentencing.

     The trial court summarized the facts of Appellant’s offenses as follows:

          On May 14, 2012, Appellant was arrested for committing
     sexual acts with his half-sister, R.M., age fourteen at the time of
J-S35021-16


       the incident, and his niece, S.G., age twelve at the time of the
       incident. In April of 2012, Appellant performed oral sex on R.M.
       and forced R.M. to reciprocate. On another spring day in 2012,
       Appellant performed oral sex on S.G., attempted to have
       intercourse with her, and showed her a video on his phone of
       him receiving oral sex from his girlfriend. That same day, S.G.
       reported the sexual abuse to her mother’s boyfriend who, at
       S.G.’s request, did not inform anyone of this report until one
       week later when he told S.G.’s mother that she needed to speak
       with her daughter and niece[, R.M.] The mother immediately
       spoke with S.G., learned of the abuse, and took both girls to the
       detective division to make formal statements.

Trial Court Opinion (TCO), 5/18/15, at cover page.1

       As noted by the trial court, Appellant was arrested on May 14, 2012,

and charged with the above-stated offenses. A jury trial was conducted in

November of 2013, at the close of which Appellant was convicted of each of

those crimes.       On June 6, 2014, the court sentenced Appellant to an

aggregate term of 12½ to 25 years’ imprisonment, which included a

mandatory term of 10 to 20 years’ incarceration for Appellant’s IDSI offense

pursuant to 42 Pa.C.S. § 9718. Appellant also received a consecutive term

of 2½ to 5 years’ imprisonment for his incest offense, and an aggregate

term of 10 years’ probation for his remaining crimes.

       Appellant filed a timely notice of appeal, as well as a timely Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.        Herein, he

raises four claims for our review:


____________________________________________


1
  The trial court’s opinion begins numbering on the second page, leaving the
first page of the opinion (from which this excerpt was quoted) unnumbered.



                                           -2-
J-S35021-16


      1. Did the lower court err in denying [A]ppellant’s motion in
      limine to allow [A]ppellant to present evidence that he had
      argued with one of the complainants over her relationship with
      an older man, where the evidence was relevant to establish that
      the complainant had a motive to lie and [Appellant] did not seek
      to introduce evidence of [the] victim’s sexual activity?

      2. Did the lower court abuse its discretion in allowing the
      Commonwealth to elicit testimony from two detectives that it
      was common in their experience for child victims to disclose
      information over time?

      3. Did the lower court err in requiring [A]ppellant to testify with
      a sheriff standing behind him on the witness stand?

      4.   Is     [A]ppellant’s     mandatory    minimum     sentence
      unconstitutional in light of Alleyne v. United States, 133 S.Ct.
      2151 (2013)?

Appellant’s Brief at 3.

      Appellant’s first issue challenges the court’s decision to preclude him

from presenting certain evidence.

      The admissibility 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 abuse of discretion. An abuse of discretion
      will 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. Moreover, an
      erroneous ruling by a trial court on an evidentiary issue does not
      necessitate relief where the error was harmless beyond a
      reasonable doubt.

Commonwealth v. Travaglia, 28 A.3d 868, 873–74 (Pa. 2011) (citation

omitted).

      By way of background, Appellant filed a motion in limine in January of

2013, and a hearing was conducted on that motion on January 14, 2013.

There, Appellant argued that he should be permitted to admit evidence that


                                      -3-
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one of his victims, R.M., had been involved in a relationship with an older,

married man and, when Appellant had discovered the relationship, he and

R.M. had argued. N.T. Hearing, 1/14/13, at 13-14. During the argument,

Appellant threatened to reveal R.M.’s relationship to her family and, shortly

after that argument, R.M. alleged that Appellant had sexually abused her.

Id. at 14. Appellant contended that evidence of R.M.’s relationship with the

older man, and the argument that occurred between her and Appellant,

should be admitted to demonstrate R.M.’s “motive to fabricate or lie and

make up allegations against [Appellant].” Id.

        The Commonwealth argued that the court should deny Appellant’s

motion because presenting the evidence of R.M.’s relationship with the older

man would violate the Rape Shield Law, 18 Pa.C.S. § 3104.2 Ultimately, the

trial court agreed, and issued an order denying Appellant’s motion in limine.
____________________________________________


2
    The Rape Shield Law states:

        (a) General rule.--Evidence of specific instances of the alleged
        victim's past sexual conduct, opinion evidence of the alleged
        victim's past sexual conduct, and reputation evidence of the
        alleged victim's past sexual conduct shall not be admissible in
        prosecutions under this chapter except evidence of the alleged
        victim's past sexual conduct with the defendant where consent of
        the alleged victim is at issue and such evidence is otherwise
        admissible pursuant to the rules of evidence.

        (b) Evidentiary proceedings.--A defendant who proposes to
        offer evidence of the alleged victim's past sexual conduct
        pursuant to subsection (a) shall file a written motion and offer of
        proof at the time of trial. If, at the time of trial, the court
        determines that the motion and offer of proof are sufficient on
(Footnote Continued Next Page)


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      However, new counsel entered his appearance on Appellant’s behalf in

October of 2013, and at a jury voir dire proceeding conducted on November

14, 2013, that attorney presented an oral motion in limine, again requesting

that the court admit evidence of R.M.’s relationship with the older man. At

the hearing, defense counsel explained that upon further investigation, he

discovered that Appellant had discovered R.M.’s relationship with the older

man, and that three to four weeks prior to R.M.’s making abuse allegations

against Appellant, Appellant had directed R.M. to end the relationship or he

was “going to kill [the] guy.” N.T. Hearing, 11/14/13, at 9. Defense counsel

claimed that

      [a]t that point, the relationship between [Appellant] and [R.M.]
      soured. It completely fell apart. There was a breakdown in
      communication. She refused to talk to him anymore. They were
      at odds with one another, and they lived in the same house.
      Three to four weeks later, RM makes these accusations, and
      [Appellant is] arrested and he’s taken out of the house. And
      from what I have from [R.M.’s] Facebook page with this [older
      man], she continues on [with her relationship with him].

Id. at 9-10.

      The Commonwealth again argued that the Rape Shield Law precluded

this evidence, noting that the court had already ruled as much in January of
                       _______________________
(Footnote Continued)

      their faces, the court shall order an in camera hearing and shall
      make findings on the record as to the relevance and admissibility
      of the proposed evidence pursuant to the standards set forth in
      subsection (a).

18 Pa.C.S. § 3104.




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2013. Id. at 15-16. In response, defense counsel maintained that evidence

regarding the context of Appellant’s argument with R.M., i.e., R.M.’s

relationship with the older man and Appellant’s threat to her to end it, did

not violate the Rape Shield Law. Id. at 17. Counsel explained:

      [Defense Counsel]: The attorney for the Commonwealth keeps
      saying this violates rape shield, this violates rape shield. The
      Rape Shield [Law] was created in order to prevent testimony
      regarding the sexual activity of the complainant that showed this
      person who is the victim or alleged victim of a crime had had sex
      before and therefor she was unchaste. … I’m not asking to have
      any of that type of information admitted, to her lack of chastity,
      to her sexual relationship with any man whatsoever. In fact, in
      my argument a little while ago, I didn’t even bring out the fact
      that she might have had a sexual relationship with this older
      man. I don’t want any of that to come in. My argument is
      limited to the notion of motive for retribution. And there has to -
      - that motive for retribution, it didn’t happen inside of a bubble.
      There’s a larger world that it did happen within, and now there’s
      corroborating evidence [i.e., R.M.’s Facebook postings,] that
      does show a motive for actual retribution based upon real-world
      facts.

Id. at 17-18.   The trial court ultimately ruled that Appellant could offer

evidence that R.M. and he had engaged in an argument shortly before her

allegations of abuse, but denied Appellant’s request to present evidence

regarding the argument being about R.M.’s relationship with an older man.

Id. at 16.

      Now, on appeal, Appellant challenges the trial court’s decision, arguing

that “the lower court was obligated, at a minimum, to conduct an in camera

hearing, hear[] the proffered testimony, and determine whether the

probative value of the information outweighed any prejudice. Having been



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denied that hearing, [A]ppellant is entitled to a new trial.” Appellant’s Brief

at 11-12.      Notably, however, Appellant at no point requested, at the

November 14, 2013 hearing or at the hearing in January of 2013, that the

court conduct an in camera hearing to consider R.M.’s testimony. While the

Rape Shield Law requires the trial court to conduct such a hearing if it

“determines that the motion and offer of proof are sufficient on their faces,”

Appellant explicitly argued at the hearing that the Rape Shield Law did not

apply to the evidence he sought to admit.         Thus, Appellant cannot now

contend that the court erred by not holding an in camera hearing when

Appellant did not request that the court do so.

         Nevertheless, Appellant does argue that the evidence regarding R.M.’s

relationship with another man should not have been precluded. In this vein,

Appellant discusses several cases wherein this Court held that evidence of a

victim’s prior sexual activity was admissible to demonstrate his/her motive

in making abuse allegations against the defendant.     See Appellant’s Brief at

9-11 (discussing Commonwealth v. Black, 487 A.2d 396 (Pa. Super.

1985), Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. 1992), and

Commonwealth v. Eck, 605 A.2d 1248 (Pa. Super. 1992)).

         In Black, the appellant was convicted of molesting his thirteen-year-

old daughter in a case that turned on a battle of credibility between Black

and his victim. At trial, Black was prevented from introducing evidence of

the victim’s sexual conduct with one of her brothers, despite the following

facts:

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J-S35021-16


             While the sexual incident was found to have occurred
       during Christmas, 1979, testimony indicated that [the victim]'s
       complaints began to surface almost three months later, near the
       end of March, 1980. These complaints coincided with violent
       arguments between [Black] and prosecutrix' fifteen-year-old
       brother, which culminated in the brother leaving home and
       separating from the family, including prosecutrix. [The victim]
       admitted wanting her brother back in the home, and other
       testimony indicated that as soon as [Black] was arrested and
       removed, the fifteen-year-old brother contacted the family and
       sought to return home. In his defense, [Black] offered to show
       through cross-examination that [the victim] had maintained an
       ongoing, consensual sexual relationship with this brother, which
       ended when the brother left home. [Black] contends that the
       true extent of prosecutrix' bias against him could only be
       revealed by showing the abnormal, sexual relationship which she
       had with her brother and which had been terminated by [Black]'s
       dispute with her brother. Specifically, [Black] urges that [the
       victim]'s testimony can only be weighed fairly when measured
       against her desire, first, to punish [Black] for his interference
       with her sexual relationship with her brother, and, second, to
       remove [Black] from the home so that her brother might return
       and resume the relationship.

Black, 487 A.2d at 398.

       In Black, the trial court excluded this evidence under the Rape Shield

Law.   This Court reversed and remanded for the trial court to hold an in

camera hearing, with the following instructions:

       At this hearing, the trial court should determine the following as
       a matter of record to be preserved for appellate review: (1)
       whether the proposed evidence is relevant to show bias or
       motive or to attack credibility; (2) whether the probative value
       of the evidence outweighs its prejudicial effect; and (3) whether
       there are alternative means of proving bias or motive or to
       challenge credibility.

Id. at 401.

       Although superficially analogous to      the   instant case,   Black is

distinguishable.   The appellant in Black was denied the ability to present

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J-S35021-16



any evidence pertaining to the victim’s relationship with her brother. As was

evident from the instructions we gave to the trial court in Black, its blunt

application of the Rape Shield Law prevented critical inquiries into the

probative versus prejudicial effect of the proffered evidence, and gave no

consideration to ‘alternative means’ of introducing the evidence so as to

minimize Rape Shield concerns.

      Here, by contrast, the trial court implicitly acknowledged that the

evidence in question was probative of a legitimate purpose: the victim’s

motive to lie. But, in a compromise reflecting both the probative value of

this evidence and legitimate Rape Shield concerns, the trial court permitted

Appellant to present evidence of his argument with the victim, but did not

permit him to implicate the victim’s sexual relationship with another man.

Thus, the trial court here did precisely what the trial court in Black did not

do: it considered the probative and prejudicial value of the evidence in

question, and arrived at a solution that ostensibly maximized both

Appellant’s   interest   in   proving   the   victim’s   motive   to   lie   and   the

Commonwealth’s interest in avoiding the defense’s exploitation of the

victim’s sexual history.

      Appellant believes the trial court’s ruling went too far.              Appellant

“sought to introduce evidence that R.M. had been involved in a relationship

with an older man with a criminal record, and that [A]ppellant had

threatened to kill that man if R.M. did not terminate the relationship.”

Appellant’s Brief at 11.      Appellant contends that the court’s limiting the

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J-S35021-16



evidence to “vague testimony of an argument is simply not of the same

caliber to explain the bias or basis for retribution.”     Id.   Appellant also

maintains that the court’s decision was an abuse of discretion in light of the

fact that he “attempted to limit the prejudice to R.M. by refraining from any

mention of a physical relationship and merely focusing on the argument.”

Id.

      There is at least some theoretical merit to this claim. We agree that

the mere mention of a fight between siblings is significantly less impactful of

a reason to fabricate charges of this severity. All siblings argue and fight,

but not all siblings threaten to kill the adult paramour of an underage sibling.

Moreover, it should be possible to identify the nature of the argument

between Appellant and R.M. without exposing unnecessary details about the

nature of R.M.’s relationship with the other man.

      Nevertheless, we decline to grant Appellant a new trial based on his

assertion that he was not able to present a full defense regarding R.M.’s

motive to fabricate her allegations, where Appellant himself did not develop

this defense to the fullest extent possible in his own testimony.

      Appellant did testify regarding the argument. After indicating that he

had a great relationship with R.M., the following direct examination took

place:

      Q     At some point did that relationship change?

      A     Yes, it did.




                                     - 10 -
J-S35021-16


     Q      Okay.     And what was the event that caused that
     relationship to change?

     A      About a month and a half, about two months before I was
     arrested, we had a real big argument, not just like a regular
     argument that you would normally have back and forth with your
     sibling, but it was a big blowup and our relationship went sour.

                                     …

     A     Well, the end result of the argument resulted in me and
     her not really speaking anymore. We were just a hi-bye basis,
     or say hello to each other in passing, like what’s up or so. But at
     the very end of the argument she told me she hated me.

N.T., 11/19/14, at 156-57.

     However, when asked if he could think of “one reason” why R.M. and

S.G. “would come forward and say that [he] did these things to them[,]”

Appellant replied, “I don’t understand why they would say this, and I don’t

know a reason they have for saying this.” N.T. Trial, 11/19/14, at 212. Yet,

the court’s ruling did not preclude Appellant from testifying that he had an

argument with R.M. that was so severe that R.M. chose to fabricate sexual

abuse allegations against him.   Appellant took the stand and chose not to

offer that defense consistently throughout his testimony.      Instead, after

defense counsel questioned him about this heated argument with R.M.,

Appellant went on throughout the remainder of his direct- and cross-

examinations to repeatedly testify that he had no idea why R.M. was alleging

the abuse.

     Specifically, defense counsel asked him “why would two girls make up

a story like this about you?” to which Appellant replied, “I have no idea. I

don’t know why they would do something like this. This is my family, and to


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me it’s just disgusting and I don’t know why.” N.T. Trial, 11/19/14, at 181.

Later, defense counsel asked him if he had “[a]ny idea why [R.M.] would

make something up like [the abuse allegations],” and Appellant replied, “No,

I do not have any idea why she would make something up like that, and I’m

trying to get to the bottom of it now….”       Id. 194. On cross-examination,

after the Commonwealth noted that Appellant “already testified on multiple

occasions that there’s not one reason [he] can think of for why these girls

would come forward and say that [he] did these things to him,” Appellant

once again reiterated that that was “[c]orrect” and said, “I don’t understand

why they would say this, and I don’t know a reason they have for saying

this.” Id. at 222.

      We also find notable that on cross-examination, Appellant downplayed

the damaging impact of the fight that he previously testified had ‘soured’ his

relationship with R.M.      In that exchange, the Commonwealth asked

Appellant, “And aside from this one fight that you had talked about, you and

[R.M.] had a great relationship, right?”     Id. at 212.   Appellant answered:

“Yes. We had our regular differences as far as brother-sister -- little sibling

arguments, but just that one big incident, and that was all. It was a good

relationship.” N.T. Trial, 11/19/14, at 212.

      Appellant’s testimony indicates that he chose not to fully pursue the

defense that R.M. had a motive to lie or fabricate the charges against him.

This cannot be explained by the court’s ruling, as the court permitted

Appellant to present evidence that he and R.M. had argued, and that after

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the argument their “relationship went sour” and R.M. told Appellant “she

hated [him].”    Id. at 156-57.    Had the court totally precluded evidence

regarding Appellant’s and R.M.’s argument, Appellant could contend that the

court prohibited him from presenting this defense.       However, the court

permitted Appellant to testify about his argument with R.M., yet Appellant

chose not to pursue that defense to the fullest degree possible under the

trial court’s ruling.   He cannot now claim that he was prejudiced by the

omission of that defense.

      We are further convinced that any error in the exclusion of this

evidence was harmless by the fact that there were multiple victims in this

case. Here, R.M.’s accusations were corroborated by the fact that Appellant

was also sexually abusing S.G. This was not the case in Black, which pitted

only one victim’s word against the defendant in that case, rendering motive-

to-lie evidence in that case far more probative than in the instant matter.

Moreover, R.M. did not even come forward until after S.G. made her own

allegations,   making it even more      doubtful   that R.M.’s claims were

manufactured as a direct response to her argument with Appellant.

       Wall is also distinguishable from the instant case.      In Wall, the

defendant had

      filed a motion in limine seeking to introduce evidence that the
      victim had been removed from her mother's home and placed in
      foster care after being sexually assaulted by her mother's
      paramour. Defense counsel argued in an in camera hearing on
      this issue that evidence of the victim's previous participation in
      the successful prosecution of an adult male who had sexually
      abused her was relevant to his defense of fabrication because it

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      tended to show that the victim may have been peculiarly aware
      of the fact that such a sexual abuse claim could lead to her
      removal from her aunt's home. Defense counsel urged that in
      view of the fact that there existed otherwise admissible evidence
      of the victim's desire to leave her aunt's home because of the
      strict discipline that her aunt often imposed, the evidence of the
      victim's prior participation in a materially similar prosecution was
      logically necessary to complete the fabrication theory. The trial
      court denied this motion, however, based on the Pennsylvania
      Rape Shield law, and allowed only the introduction of evidence
      that the victim resided with appellant and his wife because there
      was a “problem” at her mother's home.

Wall, 606 A.2d at 452 (footnote omitted).

      Relying on Black, the Wall Court reversed the trial court’s decision,

noting first that:

      Here, the excluded evidence established that the victim had,
      three years before this charge, alleged that her mother's
      paramour had sexually molested her. This, in and of itself, is not
      significant. Far more important, however, is the fact that the
      proffer also established that the victim participated in the
      successful prosecution of her former abuser, and that
      participation ultimately lead to her removal from her mother's
      house. From this, the jury could have inferred that the victim
      had, at the time she alleged that appellant had sexually abused
      her, labored under the impression that the making of another
      sexual abuse claim could result in her removal from her aunt and
      uncle's house. The victim's peculiar knowledge of the content
      and of the potential consequences of a sexual abuse claim was
      thus relevant to establish why the victim might have chosen to
      fabricate a specific type of claim, one of sexual abuse against an
      adult male in the house in which she lived and wanted to leave.

Id. at 462.

      Thus, the Wall court concluded as follows:

      In sum we find that in light of the evidence that the victim
      wanted to leave her aunt's home and harsh discipline, the
      specific proffer of uncontested evidence that the victim had been
      previously removed from a home in which she had successfully
      alleged that she had been sexually abused was relevant, non-

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       cumulative and more probative than prejudicial.       To have
       excluded such evidence, under these peculiar circumstances,
       was to frustrate the truth-determining process by preventing
       consideration of exculpatory evidence to the defense.

Id. at 466 (footnoted omitted) (emphasis added).

       Notably, as was the case in Black, the critical issue in Wall was the

weighing of the credibility of a single victim against the credibility of the

defendant.     Moreover, the Wall court stressed that it was the “peculiar”

facts of that case that permitted evidence of the victim’s prior, successful

sexual abuse allegations, evidence which fit squarely within the defense’s

fabrication theory.3 Id. Here, however, when afforded the opportunity to

do so, Appellant repeatedly professed to have no knowledge of why R.M.

would fabricate charges against him. Thus, we conclude that Wall also does

not support reversal in this case.

       Finally, in Eck, a twenty-three-year-old defendant was accused of

performing oral sex on his fifteen-year-old foster brother, T.H. The defense

sought, by motion in limine, to admit evidence of T.H.’s juvenile record,

which would have demonstrated that T.H. had performed that same act on

his five-year-old brother in a different foster home.   Eck argued that this

evidence would substantiate his claim that T.H. had fabricated his accusation



____________________________________________


3
   In Wall, other admitted evidence, derived from the victim’s own
testimony, demonstrated that the victim had repeatedly acted out in other
ways in her efforts to escape her aunt’s home, such that the sexual abuse
accusations appeared to be an escalation of those efforts.



                                          - 15 -
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against Eck. The trial court denied Eck’s motion in limine as barred under

the Rape Shield Law.

        On appeal, this Court reversed that decision.   Again, like Black and

Wall, we were confronted with a case where the credibility of the defendant

was at odds with the credibility of a single victim. At the time he made his

accusations, Eck’s victim was facing the prospect of violating his probation

for underage drinking. The theory of the defense was that the victim had

fabricated the charges against Eck in order to elicit sympathy for himself,

because, “as the perpetrator of a sexual offense, T.H. learned that victims

receive more favorable treatment than do perpetrators.” Eck, 605 A.2d at

1255.    In reversing, we remanded, as we did in Black, for “an in camera

hearing to perform the requisite balancing” of probative versus prejudicial

value of that evidence. Id.

        Eck also does not compel reversal.         Instantly, the trial court

performed the ‘requisite balancing’ that was lacking in Eck. And, although

we conclude that the trial court likely erred by excessively circumscribing the

evidence Appellant could admit regarding R.M.’s relationship with an older

man, we still conclude that error was harmless in the specific circumstances

of this case. Again, Appellant failed to exploit what latitude he was given to

present the contested evidence, and the evidence had a diminished

probative value given the corroboration provided by S.G., and the fact that

R.M.’s allegations followed S.G.’s.    Accordingly, for all the aforementioned




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reasons, we conclude that Appellant is not entitled to relief on this claim, as

whatever evidentiary error occurred was harmless.

      Next, Appellant claims the trial court erred when it permitted the

Commonwealth to elicit testimony from two detectives that it was common

in their experience for child victims to disclose information over time.

Appellant complains that “[b]ecause testimony about common behaviors of

child victims of sexual assault to explain why they may have divulged

information over time was inadmissible to [A]ppellant’s case and, in any

event, was not given by a qualified expert, the trial court abused its

discretion in allowing the Commonwealth to elicit the testimony. As such, he

is entitled to a new trial.” Appellant’s Brief at 13.

      Appellant refers to the following incidents at trial.   First, during the

testimony of Detective Gregory Meissler, the following transpired:

      [Prosecutor:] Calling your attention to your statement from
      [S.G.], and as counsel told you on cross-[examination], she has
      disclosed additional behavior from [Appellant], is it common in
      your experience for children to --

            [Defense counsel]: Objection. This calls for speculation.

            [Prosecutor]: in the detective’s experience, counsel opened
      the door based on his question.

      THE COURT: Let me hear the question.

      [Prosecutor]: Okay.

      [Prosecutor:] In your experience is it common for children to
      give additional disclosures after the first interview?

            [Defense counsel]: I renew my objection.




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          THE COURT: That’s sustained.          Can you rephrase or
     something?

           [Prosecutor]: Yes.

     [Prosecutor:] Have you ever experienced             a   child   giving
     additional disclosures after the first interview.

           [Defense counsel]: I renew my objection.

           THE COURT: Overruled.

     [Detective Meissler:] Yes.

N.T., 11/19/14, at 59-60.

     Next, during the testimony of Detective Thomas Brown, the following

exchange occurred:

     [Prosecutor:] In – have you been made aware that [R.M.] has
     provided that additional disclosure that she had provided oral
     sex to [Appellant]?

     [Detective Brown:] No.

     [Prosecutor:] Okay. Approximately how many interviews with
     children have you conducted in your career?

           [Defense counsel]: Objection to relevance.

           THE COURT: Noted. But overruled. Go ahead.

           [Detective Brown]: I’d put it in the thousands.

     [Prosecutor:] And, in your experience have you had children give
     additional disclosures --

           [Defense counsel]: I renew my objection. Irrelevant.

           THE COURT: Noted. Overruled. Go ahead.

           [Detective Brown]: Yes.

     [Prosecutor:] Is that something that only happened once or
     substantial times?

     [Detective Brown:] I think it’s happened quite a few times.



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Id. at 90-91.

      With regard to Detective Meissler, it is clear that the trial court

sustained Appellant’s objection as it was presented: that the Commonwealth

had called for mere speculation. The question was then rephrased to elicit

the detective’s direct knowledge of such instances. Appellant now presents

us with a claim that the trial court erred by permitting speculative testimony

about ‘common behaviors of child victims of sexual assault.’ No such

response was permitted with respect to Detective Meissler; therefore,

Appellant’s claim lacks a foundation in the record.      To the extent that

Appellant now claims that the testimony elicited from Detective Meissler was

inadmissible because it was not given by a qualified expert, Appellant waived

that claim by not raising it before the trial court. “Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a).

      With regard to Detective Brown, the Commonwealth did not even ask

a question eliciting speculation from the witness regarding ‘common

behaviors of child victims of sexual assault.’    Thus, Appellant’s claim is

meritless with respect to his testimony as well.        Similarly, any claim

regarding the admissibility of the testimony given by Detective Brown based

on the argument that he was not a qualified expert witness was similarly

waived. Pa.R.A.P. 302(a).

      Next, Appellant argues that the trial court erred when it required him

to either testify before the jury from counsel’s table, or, if he were to take

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J-S35021-16



the stand, that he would have to do so with a sheriff standing behind him.

Appellant argues that, “[b]y not allowing [him] to take the witness stand

free of a visible security presence and testify like every other witness, the

trial court sent a clear message to the jury that he was dangerous and

deprived him of his right to the presumption of innocence.” Appellant’s Brief

at 14.   Ultimately, Appellant did take the stand with the sheriff standing

behind him, and the trial court instructed the jury that “[A] defendant in a

criminal case is always escorted by the sheriff. Don’t think anything of it.

That’s his job being here in a criminal case.” N.T., 11/19/13, 143.

      Appellant    cites    a   single     case   to     support   his   argument,

Commonwealth v. Mayhugh, 336 A.2d 379 (Pa. Super. 1975).                        In

Mayhugh, a juror inadvertently observed Mayhugh being restrained by two

sheriffs, one of whom was grasping Mayhugh’s arm, as Mayhugh was

brought into the courtroom.      Defense counsel requested a mistrial, which

was denied by the trial court.     We affirmed.        Nevertheless, we recognized

the following principles:

            Due process of law guarantees respect for those personal
      immunities which are ‘so rooted in the traditions and conscience
      of our people as to be ranked as fundamental,’ Snyder v.
      Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed.
      674 (1934), or are ‘implicit in the concept of ordered liberty.’
      Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152,
      82 L.Ed. 288 (1937). See Rochin v. California, 342 U.S. 165,
      72 S.Ct. 205, 96 L.Ed. 183 (1952). Fundamental to the concept
      of due process is the principle that every person who stands
      accused of a crime is entitled to a fair and impartial trial.
      Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135
      (1954); Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed.


                                         - 20 -
J-S35021-16


     1595 (1942). Our courts long ago recognized that an essential
     ingredient of a fair trial is the presumption of innocence with
     which an accused is clothed. ‘The principle that there is a
     presumption of innocence in favor of the accused is the
     undoubted law, axiomatic and elementary, and its enforcement
     lies at the foundation of the administration of our criminal law.’
     Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403,
     39 L.Ed. 481 (1895).

            ‘The presumption of innocence,’ as noted by the court in
     Eaddy v. People, 115 Colo. 488, 492, 174 P.2d 717, 718
     (1946), ‘requires the garb of innocence;’ and the defendant is
     entitled to all the physical indicia consistent with innocence.
     Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973), cert.
     denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974).
     Thus, from the earliest days of the common law a defendant in a
     criminal trial had the right to appear in court free of restraint.
     State v. Roberts, 86 N.J.Super. 159, 206 A.2d 200 (1965)
     (tracing the history of this rule from 1678); See Kranskopf,
     Physical Restraint of the Defendant in the Courtroom, 15 St.
     Louis U.L.J. 351 (1971). This right can be abrogated only in
     exceptional circumstances, such as where necessary to prevent
     escape, to protect those persons in the courtroom, and to
     maintain order during the trial. See, e.g., Commonwealth v.
     Cruz, 226 Pa.Super. 241, 311 A.2d 691 (1973); Woodards v.
     Cardwell, 430 F.2d 978 (6th Cir. 1970), cert. denied, 401 U.S.
     911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971).

            The rule is stated in the A.B.A. Project on Standards for
     Criminal Justice, Standards Relating to Trial by Jury s 4.1(c)
     (Approved Draft, 1968): ‘Defendants and witnesses should not
     be subjected to physical restraint while in court unless the trial
     judge has found such restraint reasonably necessary to maintain
     order.’ The comments explain that physical bonds may create
     prejudice in the minds of the jury against the accused. ‘(T)he
     jury must necessarily conceive a prejudice against the accused,
     as being in the opinion of the judge a dangerous man, and one
     not to be trusted, even under the surveillance of officers.’ State
     v. Kring, 64 Mo. 591, 593 (1877) Quoted in Kennedy v.
     Cardwell, supra at 106. ‘It offends not only judicial dignity and
     decorum, but also that respect for the individual which is the
     lifeblood of the law.’ Illinois v. Allen, 397 U.S. 337, 350-51,
     90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970).

Mayhugh, 336 A.2d at 381-82.

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J-S35021-16



      We rejected Mayhugh’s claim that he had been deprived of the cloak of

innocence because 1) he was not seen physically restrained with handcuffs,

and 2) the restraint observed, if observed at all, was minimal. Thus, on its

face, Mayhugh does not directly compel reversal here, as no relief was even

granted in that case.

      Nevertheless, Appellant was not restrained in this case at all: the

sheriff was only standing near him as he testified. Appellant fails to cite any

authority which suggests that the presence of a sheriff or similar security

official in the vicinity of a testifying defendant implicates that defendant’s

due process right to be cloaked in the presumption of innocence.           Thus,

Appellant’s claim lacks merit.

      In any event, at the beginning of Appellant’s testimony, and in

response to Appellant’s concerns, the trial court instructed the jury not to

take any adverse inference against Appellant from the presence of the

sheriff, in an effort to mitigate any potential prejudice the presence of the

sheriff might cause. N.T., 11/19/13, 143. Appellant did not object at trial

that the instruction was insufficient to remedy any potential prejudice

resulting from the sheriff’s presence, nor does he argue now why that

instruction was insufficient to cure any resulting prejudice.   On this basis,

even if we were to find that the trial court erred, we would deem that error

harmless as it was adequately remedied by the trial court’s instruction.

      Finally, Appellant asserts that he was illegally sentenced under 18

Pa.C.S. § 9718, as that statute violated the rule set forth in Alleyne, 133

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S.Ct. 2151 (holding any fact that increases mandatory minimum sentence

for crime is an element of an aggravated crime, not a mere sentencing

factor of the lesser, that must be submitted to jury and proven beyond a

reasonable doubt).        See Commonwealth v. Wolfe, 106 A.3d 800 (Pa.

Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015).        In Wolfe, this

Court applied Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(en banc), to find 18 Pa.C.S. § 9718 unconstitutional under Alleyne. The

trial court agrees, noting that “[b]ecause Alleyne …, … Newman, and now

… Wolfe render mandatory minimum sentences pursuant to Section 9718

unconstitutional, Appellant’s sentence should be vacated and remanded.”

TCO, at 16.

       We agree with Appellant and the trial court. Appellant’s IDSI sentence

was unconstitutional under the Alleyne/Newman/Wolfe line of decisions.4

Moreover, because we believe this may affect the trial court’s overall
____________________________________________


4
   The Commonwealth suggests that we hold this matter pending our
Supreme Court’s consideration of the Commonwealth’s appeal in Wolfe.
See Commonwealth’s Brief, at 19-21. We are well-aware that Wolfe
presents a unique challenge to the Newman line of cases, as the
Commonwealth aptly describes in its brief. Id.         Nevertheless, Wolfe is
clearly the law of this Commonwealth at the moment, and must therefore be
dutifully applied by this Court. However, nothing in our decision today
precludes the Commonwealth from seeking review in the Supreme Court of
our decision to remand based on Wolfe. Indeed, because the Supreme
Court is currently considering (or reconsidering) this Court’s decision in
Wolfe, we believe the Supreme Court is the appropriate venue in which to
seek a stay of resentencing if, indeed, the Commonwealth believes justice
requires such relief. With regard to the propriety of granting such a stay, we
express no opinion.



                                          - 23 -
J-S35021-16



sentencing scheme, as Appellant received consecutive sentences, we vacate

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

resentencing.   See Commonwealth v. Williams, 997 A.2d 1205, 1210–

1211 (Pa. Super. 2010) (stating that “if a correction by this Court may upset

the sentencing scheme envisioned by the trial court, the better practice is to

remand [for resentencing]”) (internal quotations, citations, and corrections

omitted).

      In sum, we conclude that all of Appellant’s trial- and pretrial-related

claims either lack merit or constitute harmless error.          Thus, we do not

disturb his conviction. However, because Appellant was illegally sentenced

pursuant to an unconstitutional statute, 18 Pa.C.S. § 9718, we vacate his

judgment of sentence in its entirety and remand for resentencing consistent

with the Alleyne/Newman/Wolfe line of decisions.

      Judgement of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




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