J. S69030/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                                           :
              v.                           :
                                           :
ANDREW JOSEPH PATTERSON,                   :
                                           :
                    APPELLANT              :     No. 1539 MDA 2015

              Appeal from the Judgment of Sentence July 30, 2015
              In the Court of Common Pleas of Huntingdon County
              Criminal Division at No(s): CP-31-CR-0000460-2014

BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.:                        FILED NOVEMBER 17, 2016

        Appellant, Andrew J. Patterson, appeals from the Judgment of

Sentence entered by the Huntingdon County Court of Common Pleas

following his conviction by a jury of Indecent Assault and Corruption of

Minors. After careful review, we affirm.

        We summarize the relevant factual and procedural history as follows.

On July 29, 2014, Appellant was arrested and charged with Rape, Statutory

Sexual Assault, Involuntary Deviate Sexual Intercourse, Corruption of

Minors, and Indecent Assault1 for an incident that took place on Appellant’s



*
    Retired Senior Judge Assigned to the Superior Court.
1
   18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3122.1(b); 18 Pa.C.S. §
3123(a)(1); 18 Pa.C.S. § 6301(a)(1)(ii); and 18 Pa.C.S. § 3126(a)(2),
respectively.
J. S69030/16


farm in May 2012. The male complainant, B.S., alleged that when he was

15 years old, Appellant forcibly performed oral sex on him while he was

working on Appellant’s farm.

      Appellant elected to proceed to a jury trial.     Prior to trial, the

Commonwealth filed a Notice of Prior Bad Acts, seeking to introduce the

testimony of G.J. and C.B, two additional boys who alleged Appellant had

also had inappropriate sexual contact with them when they were 15 or 16

years old.2     The Commonwealth argued that the testimony was admissible

as part of a common plan, scheme, or design. The trial court agreed, ruling

that the testimony was admissible at trial. The Commonwealth withdrew the

Rape charges against Appellant at the same hearing.

      At trial, complainant B.S. testified that in May of 2012, when he was

15 years old, his parents arranged for him to work on Appellant’s farm in

order to earn money for an upcoming vacation. While they were performing

chores on the farm, Appellant rubbed up against B.S. in a manner which

made him uncomfortable. When B.S. told him to stop, Appellant stopped for

some period, before later putting his hands down B.S.’s pants and grabbing

his genitals.     After B.S. again protested, Appellant backed off, before

eventually tackling B.S. to the ground and forcibly performing oral sex on

B.S. while pinning him to the ground.

2
  The prior bad acts at issue were the subject of criminal charges filed
against Appellant at CP-31-CR-244-2013. Appellant entered a plea of nolo
contendere to the charges.



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      Victims G.J. and C.B. also testified at trial. Prior to G.J.’s testimony,

the trial court gave a cautionary instruction to the jury, admonishing them

against considering the testimony as propensity evidence. N.T., 4/6/15, at

131-32.   G.J. testified that after Appellant lured him to his farm with the

promise of employment, Appellant twice groped G.J. without his consent.

G.J. also testified that Appellant later sent him text messages, asking G.J.

for pictures of his genitals and offering G.J. money to allow Appellant to

perform oral sex on him.

      C.B. testified that Appellant obtained his phone number by promising

C.B. employment. However, instead of using his number to arrange work on

the farm, Appellant texted C.B. to offer him money in exchange for pictures

of C.B.’s genitals.

      On April 6, 2015, the jury convicted Appellant of Corruption of Minors

and Indecent Assault.      The jury was unable to reach a verdict on the

remaining charges, and the Commonwealth withdrew them.

      The trial court ordered a Pre-Sentence Investigation (“PSI”) and on

July 30, 2015, the court sentenced Appellant to the statutory maximum term

of incarceration on each conviction, with the sentences to run consecutively,

for an aggregate sentence of six to twelve years of incarceration.

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

Appellant then timely appealed.     Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.



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      On appeal, Appellant raises the following two issues:

      I. Whether the [t]rial [c]ourt committed an abuse of discretion
      in allowing the Commonwealth to present testimony regarding
      Appellant’s “prior bad acts”?

      II. Whether the [t]rial [c]ourt committed an abuse of discretion
      in sentencing Appellant to the statutory maximum on each of the
      convictions for an aggregate sentence of six to twelve (6-12)
      years[’] incarceration?

Appellant’s Brief at 3.

      In his first issue, Appellant avers that the trial court erred in admitting

the testimony of G.J. and C.B. under an exception to the general prohibition

against admitting evidence of prior bad acts.           Our standard of review

concerning a challenge to the admissibility of evidence is as follows:

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

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

quotation marks omitted).

      Pennsylvania Rule      of Evidence     404(b) prohibits evidence          of a

defendant’s prior bad acts “to prove a person’s character” or demonstrate

“that on a particular occasion the person acted in accordance with the

character.” Pa.R.E. 404(b)(1). Nevertheless, the Rule further provides that

prior bad acts evidence “may be admissible for another purpose, such as




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proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident. In a criminal case, this evidence is

admissible only if the probative value of the evidence outweighs its potential

for unfair prejudice.”    Pa.R.E. 404(b)(2).     See also Daniel J. Anders,

Ohlbaum on the Pennsylvania Rules of Evidence § 404.11 et. seq. (2016 ed.

LexisNexis Matthew Bender).

      Evidence is properly admitted under the common plan, scheme, or

design exception where all of the alleged acts are of a similar character.

Commonwealth v. Booth, 435 A.2d 1220, 1226 (Pa. Super. 1981).               To

establish a common plan or scheme, courts must examine the details of the

prior and present incidents for factual similarities. Commonwealth v.

O’Brien, 836 A.2d 966, 970-71 (Pa. Super. 2003). “[A] comparison of the

crimes      must   establish   a    logical    connection   between     them.”

Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014) (quotation

omitted).

      Even where the alleged acts are sufficiently similar, “the court must

balance     the    potential   prejudicial    impact   of   the   evidence[.]”

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa. Super. 2007). In

so doing, the trial court should consider “the degree of similarity established

between the incidents of criminal conduct, the Commonwealth’s need to

present evidence under the common plan exception, and the ability of the

trial court to caution the jury concerning the proper use of such evidence by



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them in their deliberations.” Id. On review, this Court may affirm a trial

court’s ruling where we conclude that the court’s cautionary instruction to

the jury was sufficient to “ameliorate[] any undue prejudice caused by the

introduction of the prior bad acts.”    Commonwealth v. Sherwood, 982

A.2d 483, 497-98 (Pa. 2009); see also Commonwealth v. Watkins, 843

A.2d 1203, 1216 (Pa. 2003) (observing that “[a] jury is assumed to have

followed the cautionary instruction given.”).

      In the instant case, all three incidents were relatively close in time and

locality, occurring between 2010 and 2012 on Appellant’s farm.            N.T.,

4/6/15, at 25, 133, 140. All three victims were either 15 or 16 years old at

the time of the offenses. Id. at 25, 134, 140. Appellant used an offer of

employment to entice or attempt to entice his victims to the farm in all three

cases. Id. at 25, 27, 134, 140. All three victims were affiliated with the Mill

Creek Fire Hall, and Appellant met each victim through their connection to

the Fire Hall.3 Id. at 47, 133, 140. With all three victims, Appellant sought

to see, touch, or perform sexual acts on their genitals. With B.S. and G.J.,

Appellant inappropriately rubbed and groped both while they were doing

chores on his farm.   Id. at 31, 135. In both instances, when the victims

protested, he briefly stopped before ultimately continuing the offensive


3
  Although B.S., the victim in this case, had not met Appellant before the
assault, he testified that his parents knew Appellant through their connection
to the Fire Hall and arranged for B.S. to work on Appellant’s farm. N.T.,
4/6/15, at 47.



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contact, attempting to, or actually, performing oral sex on both. Id. at 32,

39, 135-37.

      In his closing argument, Appellant’s defense counsel reminded the jury

of the trial court’s cautionary instruction. Id. at 218-19. Before sending the

jury into deliberations, the trial court again delivered a cautionary

instruction, reminding them of the limited purpose for which they could

consider the testimony of G.J. and C.B., and admonishing the jury that they

“may not convict a person simply because [they] believe he may have

committed similar acts in the past.” Id. at 243-44.

      Based on the foregoing, we agree with the trial court that there were

sufficient similarities between the prior bad acts and the allegations in the

instant case to support the proper admission of G.J.’s and C.B.’s testimony.

We further conclude that the trial court sufficiently addressed any risk of

unfair prejudice with its cautionary instructions to the jury. Accordingly, we

find no abuse of discretion on the part of the trial court in admitting the

testimony of G.J. and C.B. under the common plan, scheme and design

exception provided in Pa.R.E. 404(b)(2).

      In his second issue, Appellant challenges the discretionary aspects of

his sentence when he avers that the trial court erred in sentencing him

outside of the guidelines after considering the details of his prior offenses.4


4
  The argument section of Appellant’s Brief presents a confusing
amalgamation of alleged errors, none of which he supports with citation to



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He alleges that the sentencing court’s “equating the case under review with

his prior convictions reflects the [sentencing c]ourt’s prejudice against him

[and] the [c]ourt’s rationale does not support such a significant departure

from the sentencing guidelines and is manifestly unreasonable.” Appellant’s

Brief at 14-15.

      A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. See Commonwealth v. Hill,

66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant

has preserved the sentencing challenge for appellate review by raising it at

sentencing or in a timely post-sentence motion, the appellant must (1)

“include in his brief a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a

sentence[,]” pursuant to Pa.R.A.P. 2119(f); and (2) “show that there is a

substantial question that the sentence imposed is not appropriate under the

Sentencing Code.” Id. at 363-64.

      In the instant case, Appellant filed a timely Notice of Appeal and a

timely Post-Sentence Motion. He also included a separate Pa.R.A.P. 2119(f)

Statement in his appellate brief.   In addition, Appellant has presented a

substantial question for our review. See Commonwealth v. McNabb, 819

A.2d 54, 56-57 (Pa. Super. 2003) (holding that an appellant does raise a

supporting law or legal analysis.           Appellant’s Brief at 13-15.
Notwithstanding these briefing errors, we are able to review his sentencing
challenge.



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substantial question when he avers an excessive sentence due to the court’s

reliance on impermissible factors); Commonwealth v. Sheller, 961 A.2d

187, 190 (Pa. Super. 2008) (holding that an “[a]ppellant’s contention that

the sentencing court exceeded the recommended range in the Sentencing

Guidelines without an adequate basis raises a substantial question for this

Court to review.”).

      Accordingly, we turn to the merits of Appellant’s claim, mindful of our

standard of review:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

      Where a trial court imposes a sentence outside of the sentencing

guidelines, 42 Pa.C.S. § 9721(b) requires the trial court to provide, in open

court, a “contemporaneous statement of reasons in support of its sentence.”

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012). To

satisfy the requirements of Section 9721(b), the trial court must:

      demonstrate on the record, as a proper starting point, its
      awareness of the sentencing guidelines. Having done so, the
      sentencing court may deviate from the guidelines, if necessary,
      to fashion a sentence which takes into account the protection of
      the public, the rehabilitative needs of the defendant, and the


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     gravity of the particular offense as it relates to the impact on the
     life of the victim and the community, so long as it also states of
     record the factual basis and specific reasons which compelled it
     to deviate from the guideline range.

Id. (brackets and citation omitted). See also Commonwealth v. Hunzer,

868 A.2d 498, 514 (Pa. Super. 2005) (observing that the trial court’s

statement of reasons need not be “a detailed, highly technical statement.”).

     In addition, where the trial court has the benefit of a PSI, “it is

presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.”    Commonwealth v. Ventura, 975 A.2d 1128,

1135 (Pa. Super. 2009) (discussing Commonwealth v. Devers, 546 A.2d

12, 18-19 (Pa. 1988)).       Thus, if the sentencing court states that it

considered the PSI, the court has properly explained the basis for the

sentence that it imposed. Ventura, supra at 1135 (citation omitted).

     Where the trial court deviates above the guidelines, this Court may

only vacate and remand a case for resentencing if we first conclude that “the

sentence is unreasonable.”    42 Pa.C.S. § 9781(c)(3). A sentence is not

unreasonable simply because the trial court deviates above the guidelines to

impose the statutory maximum. See, e.g., Commonwealth v. Rossetti,

863 A.2d 1185, 1194-95 (Pa. Super. 2004) (affirming a statutory maximum

sentence imposed after the trial court considered and balanced all of the

relevant mitigating and aggravating facts).        Our Supreme Court has

emphasized that “rejection of a sentencing court’s imposition of sentence on


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unreasonableness    grounds   [should]   occur   infrequently,   whether   the

sentence is above or below the guideline ranges, especially when the

unreasonableness inquiry is conducted using the proper standard of review.”

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).

     In the instant case, the trial court made the following detailed

statement on the record before imposing sentence:

     [Appellant], I have read the pre-sentence investigation. I sat
     through trial. I think the statements you made in the pre-
     sentence investigation regarding these young men are
     ridiculous.[5] You have a history of grooming young men. I
     went back and I reviewed the files from your previous
     conviction. In 2007 it was the same thing.[6] You used text
     message. You get young boys to the farm and you do what you
     do.

     I have reviewed the sentencing guidelines in this case. What the
     sentencing guidelines of one to 12 months don’t take into
     consideration is the fact that you have been convicted of
     corruption of minors before and this is exactly the same conduct.
     You have not learned your lesson. You continue to do the same
     thing over and over. The public is at risk. Young men are at
     risk.


5
  Appellant averred that B.S., G.J., and C.B. must have seen the high-profile
allegations against Jerry Sandusky on the news and made up their
allegations against him in order to get money. Pre-Sentence Investigation
at 2.
6
  In 2013, the Commonwealth charged Appellant with two counts each of
Unlawful Contact with Minors and related offenses. He pled nolo contendere
to one count each of Criminal Solicitation (Unlawful Contact with Minor) and
one count of Corruption of Minors. G.J. and C.B. testified at trial to the
events underlying the 2013 charges. In 2007, in an unrelated case, the
Commonwealth charged Appellant with Possession of Child Pornography and
related offenses. He eventually pled nolo contendere to one count of
Corruption of Minors in the 2007 case.



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      I’ve read the letter from your brother Brian.      I heard the
      comments of your dad. I feel very bad for your parents. I really
      do because you have put them through this and they are victims
      of this, maybe not so much as these young men but they are
      victims as well. They have fought through your convictions and
      your conduct over and over and over. Again, you are a threat to
      the public.

      I’ve considered your rehabilitative needs and I don’t think you
      can be rehabilitated. The only way that the public is protected is
      if you are in the state prison. So once again I have considered
      the sentencing guidelines and I’m not going to follow the
      sentencing guidelines.

N.T., 7/30/15, at 9-10. See also Pa.R.A.P. 1925(a) Opinion, at 10-13.

      Contrary to Appellant’s contention, we conclude that the trial court did

not impose its sentence as a result of prejudice. The record indicates that

the sentencing court properly considered and balanced all of the relevant

mitigating and aggravating facts, including Appellant’s background and his

prior conduct.   Appellant has not established “that the sentencing court

ignored or misapplied the law, exercised its judgment for reasons of

partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

decision.” Raven, supra at 1253.

      In light of the record facts of this case and the sentencing court’s

thorough explanation of its rationale, we are not persuaded that the

imposition of consecutive statutory maximum sentences was unreasonable.

Accordingly, we affirm Appellant’s Judgment of Sentence.

      Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2016




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