J-A19017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN EUGENE PATRICK, III                   :
                                               :
                       Appellant               :   No. 1631 MDA 2017

              Appeal from the Judgment of Sentence July 10, 2017
      In the Court of Common Pleas of Adams County Criminal Division at
                        No(s): CP-01-CR-0000873-2016


BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 13, 2019

        Appellant John Eugene Patrick, III, appeals from the judgment of

sentence following his convictions involuntary deviate sexual intercourse

(IDSI), statutory sexual assault, unlawful contact with a minor, corruption of

minors, and indecent assault.1          Appellant asserts that his conviction was

against the weight of the evidence, his sentence is excessive in light of the

gravity of the offenses and his rehabilitative needs, and the trial court erred

in admitting evidence obtained in violation of the Pennsylvania Wiretap Act.2

We affirm.



____________________________________________


1 18 Pa.C.S. §§ 3123(a)(7), 3122.1(b), 6318(a)(1), 6301(a)(1)(ii), and
3126(a)(8), respectively.

2   18 Pa.C.S. §§ 5701-5782.
J-A19017-18



     The trial court summarized the relevant factual background to this

matter as follows:

     During the time period at issue in trial (September 2015 to
     January 2016) B.A. (hereinafter “Victim”) was 14 to 15 years old,
     and lived with her adoptive mother, her twin sister, and Appellant
     (her adopted brother) . . . in Gettysburg, Adams County,
     Pennsylvania.

     On January 20, 2016, [Victim] testified she remained home from
     school because her mouth was sore from having braces put on.
     [Victim] testified Appellant came into her room that morning and
     woke her up. She testified Appellant asked her to have sex with
     him and she agreed. Appellant and [Victim] went to the living
     room where Appellant removed his and [Victim]’s clothes.
     Appellant had [Victim] perform oral sex on him[,] which, she
     explained, meant Appellant’s penis was inside her mouth. Next,
     Appellant performed oral sex on [Victim] where his tongue went
     inside her vagina. Appellant then had Victim stand up and turn
     around so she was facing away from him. Appellant “[went]
     behind [[Victim]] and put his penis in [her] vagina.” [Victim]
     testified Appellant did not ejaculate inside of her but on a nearby
     towel. After the assault, [Victim] put her pink underwear back on.
     [Victim] testified after the incident occurred she went back to bed.
     [Victim] showered at about 6:00 p.m.

     At approximately 8:00 p.m., [Victim] testified she “decided that
     [she] couldn’t stay anymore” and “packed her bags and . . . went
     to [her] neighbor’s house.”         Her neighbor, Keith Klinefelter
     (“Klinefelter”) testified [Victim] came to his residence and told him
     “[s]he needed help.” Klinefelter testified [Victim] told him “her
     stepbrother . . . was sexually assaulting her.” While [Victim] was
     at Klinefelter’s house, Appellant and [Victim]’s sister arrived at
     Klinefelter’s residence looking for her.

     Klinefelter took [Victim] to the Cumberland Township police
     station where she spoke to Detective Stephen Higgs (“Detective
     Higgs”) at approximately 8:30 p.m. [Victim] told Detective Higgs
     what Appellant did to her and gave him the pink underwear she
     put on after the assault. Next, [Victim] went to Gettysburg
     Hospital for a forensic sexual assault examination.       Allison
     Arrowood (“Nurse Arrowood”), a [Sexual Assault Nurse Examiner]
     at Gettysburg Hospital[,] performed an examination of [Victim].


                                     -2-
J-A19017-18


     Nurse Arrowood collected as evidence the underwear [Victim]
     wore when she came in for the exam and vaginal swabs[,] which
     she provided to the police.      [Nurse Arrowood also noted an
     abnormal reddened area at Victim’s vaginal opening.] Detective
     Higgs sent [Victim]’s pink underwear and the sexual assault kit to
     the Pennsylvania State Police crime lab for testing.

     At trial, [Victim] also testified Appellant assaulted her prior to the
     January 20, 2016 incident. Specifically, that between September
     2015 and January 2016[,] Appellant had sexual intercourse with
     her “almost daily, but not every day.” She testified the incidents
     occurred “in the living room, on the other side of the kitchen, in
     the basement.” During that time frame, [Victim] also testified she
     performed oral sex on Appellant and he performed oral sex on her.
     She testified this occurred “usually in the basement[,]” which
     [was] Appellant’s bedroom. When asked why she did not report
     the incidents prior to January 20, 2016, [Victim] explained
     Appellant threatened “he would tell [her] mom and blame it on
     [her] and make it seem like [she] was the one who wanted
     everything to happen.”

     Mary Ayres was called as a witness for Appellant and on direct
     examination she testified that she is the mother of [Victim] and
     Appellant and both lived in her household during the relevant time
     period. [Victim] slept in a first floor bedroom with her sister next
     to Mary Ayres’ bedroom and Appellant slept in the basement.
     When asked about [Victim]’s sleeping situation[,] Mary Ayres
     testified that she “always locked their bedroom from the time they
     were five years old.” Mary Ayres further testified that on January
     20, 2016, “I woke up about just a little bit before 7:00 [a.m.],
     because I remember the incident very well because [Victim’s
     sister] had climbed up to [Victim] and took her socks off, and we
     were laughing about that that morning, and [Victim] stayed home
     because she had an orthodontist appointment that day.” Mary
     Ayres further testified that “[she] got up and [Victim] made [her]
     coffee, [Victim] made herself a cup of tea, and then [Victim’s
     sister] left for school and [she and Victim] sat around talking in
     the kitchen for a little while and then in the living room until it was
     time to go to the orthodontist around 1:00. When asked where
     Appellant was on January 20, 2016, Mary Ayres testified “[h]e was
     usually in the basement playing his guitar.” Mary Ayres also
     testified that when [Victim] and her sister were home they were
     never out of her sight and she never heard any problem between
     Appellant and [Victim].


                                      -3-
J-A19017-18


        On cross-examination Mary Ayres testified that Appellant left her
        residence the evening of January 20, 2016[,] and never returned
        to her residence. Between January 20, 2016[,] and June 28,
        2016[,] Mary Ayres had telephone conversations with Appellant.
        Mary Ayres advised Appellant that Detective Higgs had been to
        the house and spoke with Mary Ayres and Mary Ayres testified
        concerning her conversation with Appellant[:] “but we just
        discussed that, yeah, there was a problem, and it had to be
        resolved,” referring to the sexual assault allegations by [Victim]
        against Appellant.

        The Commonwealth also questioned Mary Ayres about a recorded
        confrontation between her and [Victim] on March 20, 2016.[3] The
        Commonwealth cross-examined Mary Ayres concerning the
        following statements[4] Mary Ayres made to [Victim] during the
        March 20, 2016 recorded confrontation: “you fucking ruined
        someone’s life. All because you let him fuck you and that ruined
        his life.” “He should have known better than to fuck a 15-year-
        old that’s going to be vindictive, you are a vindictive little bitch,
        that’s what you are.” “[L]et a 46-year-old man do you, uh, that’s
        gross, I never though you would have done something like that.”
        “You know better than to say yes to a man but you didn’t.” “Oh,
        you’re disgusting, shut the fuck up, shut the fuck up, because I
        don’t want to hear anything come out of your mouth because it’s
        all fucked up, your way of talking, shut up, I don’t want to hear
        you, shut the fuck up, he shouldn’t have asked, then [Victim]
        wouldn’t have said yes, you’re fucked up with that way of
        thinking.” “[I]t was consensual, it was consensual, consensual.”
        After Mary Ayres was confronted with each quote, she either
        denied having said it or did not remember saying it. She did agree
        that if she said those things they would have been contained in
        the recording. Mary Ayres testified that as a result of the
        confrontation with [Victim] on March 20, 2016[,] she entered
        pleas of guilty on December 15, 2016[,] to endangering the
        welfare of a child and terroristic threats.

Suppl. Trial Ct. Op., 11/21/18, at 1-6 (footnotes and citations omitted).
____________________________________________


3   Victim recorded the argument on her cellphone.

4 The Commonwealth questioned Mary Ayres about the statements and the
trial court permitted Detective Higgs to read the statements into the record
during rebuttal. The trial court did not allow the recorded statements to be
played for the jury. See N.T., 4/13/17, at 318.

                                           -4-
J-A19017-18



       At the conclusion of the trial, the jury found Appellant guilty of the

aforementioned offenses.          On July 10, 2017, the trial court sentenced

Appellant to an aggregate sentence of twenty-four to forty-eight years’

incarceration, including consecutive standard range sentences of eight to

sixteen years for both counts of IDSI and one count of unlawful contact with

a minor, graded as a felony of the first degree.       Appellant also received

concurrent sentences of four to eight years’ incarceration for statutory sexual

assault and two to four years’ incarceration for one count of unlawful contact

with a minor, graded as a felony of the third degree, and corruption of a

minor.5 Appellant filed a timely post-sentence motion challenging the

excessiveness of his sentence and alleging that the court failed to consider his

rehabilitative needs properly. The trial court denied Appellant’s post-sentence

motion on October 6, 2017.

       Appellant filed a timely notice of appeal on October 11, 2017.        On

October 30, 2017, the trial court directed Appellant to file a concise statement

of errors complained of on appeal under Pa.R.A.P. 1925(b) within twenty-one

days. Appellant did not file a Rule 1925(b) concise statement until December

11, 2017.




____________________________________________


5 Appellant did not receive a separate sentence for indecent assault because
it merged with the IDSI and statutory sexual assault convictions.




                                           -5-
J-A19017-18



       Meanwhile, the trial court filed an initial Pa.R.A.P. 1925(a) opinion on

December 8, 2017, before receiving Appellant’s concise statement.            As a

result, we remanded this matter for the trial court to file a supplemental Rule

1925(a) opinion.6 The trial court filed a supplemental Rule 1925(a) opinion

on November 21, 2018.

       On appeal, Appellant raises three issues, which we have reordered as

follows:

       1. Whether the trial court erred in denying Appellant’s [p]ost-
          [s]entence [m]otion where his convictions were against the
          weight of the evidence so as to shock one’s sense of justice
          where Appellant was never shown to have committed the
          crimes alleged[.]

       2. Whether the trial court erred in denying Appellant’s [p]ost-
          [s]entence [m]otion where Appellant’s sentence is excessive
          and unreasonable and constitutes too severe a punishment in
          light of the gravity of the offense, Appellant’s rehabilitative
          needs, and what is needed to protect the public[.]

       3. Whether the trial court erred in admitting illegally obtained
          evidence in violation of the Pennsylvania Wiretap Act[,] 18
          Pa.C.S. § 5721.1(a)(1)[,] during the Commonwealth’s cross
          examination of a defense witness and whether the probative
          value of such evidence was outweighed by its prejudicial effect.

Appellant’s Brief at 6.

       In his first issue, Appellant asserts that his convictions were against the

weight of the evidence. Id. at 33. However, a claim that the verdict was
____________________________________________


6 See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en
banc) (holding that where there has been an untimely filing of a Rule 1925(b)
statement, “this Court may decide the appeal on the merits if the trial court
had adequate opportunity to prepare an opinion addressing the issues being
raised on appeal. If the trial court did not have an adequate opportunity to
do so, remand is proper”).

                                           -6-
J-A19017-18



against the weight of the evidence must be raised in the trial court orally or

in writing before sentencing or in a post-sentence motion. See Pa.R.Crim.P.

607(A) (“A claim that the verdict was against the weight of the evidence shall

be raised with the trial judge in a motion for a new trial”); Commonwealth

v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding that although the

appellant “included an issue challenging the verdict on weight of the evidence

grounds in his 1925(b) statement and the trial court addressed [the

appellant’s] weight claim in its Pa.R.A.P 1925(a) opinion, [he] did not preserve

his weight of the evidence claim for appellate review in the absence of an

earlier motion.” (citations omitted)).

      Here, our review reveals that Appellant did not challenge the weight of

the evidence before sentencing or in his post-sentence motion. Therefore, we

are constrained to conclude that Appellant has waived the issue.           See

Sherwood, 982 A.2d at 494.

      Next, Appellant raises a discretionary aspects of sentencing claim.

Appellant argues that his sentence was excessive and did not take into

consideration his rehabilitative needs and the lack of danger he poses to the

community. Appellant’s Brief at 35. Appellant asserts that “[t]here was never

any testimony that [Appellant] was violent or that he presented an untenable

danger to society. His sentence of 24-48 years [of incarceration is] excessive

given . . . Appellant’s rehabilitative needs and the danger he poses to the

community.” Id.




                                         -7-
J-A19017-18



      We note that an appeal challenging the discretionary aspects of

sentencing is not an appeal as of right. Commonwealth v. Dunphy, 20 A.3d

1215, 1220 (Pa. Super. 2011).

      To determine whether an appellant has properly preserved the
      discretionary aspects of sentencing for appellate review, we must
      conduct the following four part analysis: (1) whether appellant has
      filed a timely notice of appeal;(2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence;(3) whether appellant’s brief has a fatal defect;and (4)
      whether there is a substantial question that the sentence appealed
      from is not appropriate under the Sentencing Code.

Id. (footnotes and citation omitted).

      Here, Appellant filed a timely notice of appeal, the issue of whether

Appellant’s sentence was excessive and whether the court failed to consider

his rehabilitative needs was preserved in a post-sentence motion, and

Appellant’s brief includes a Pa.R.A.P. 2119(f) statement of the reasons relied

upon for allowance of appeal. Accordingly, we turn to whether a substantial

question exists in this matter.

      We note that “an excessive sentence claim—in conjunction with an

assertion that the court failed to consider mitigating factors—raises a

substantial question.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.

Super. 2015) (en banc) (citation omitted). Accordingly, Appellant presents a

substantial question in this appeal.

      Where a sentence is imposed within the guidelines, we may only reverse

the trial court if we find that the circumstances of the case rendered the

application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).


                                       -8-
J-A19017-18



Our review of the reasonableness is based upon the factors contained in 42

Pa.C.S. § 9781(d),7 and the trial court’s consideration of the general

sentencing standards contained in 42 Pa.C.S. § 9721(b).8

        In fashioning a sentence, the trial court is required to consider the

particular circumstances of the offense and the character of the defendant.

See 42 Pa.C.S. § 9721(b); Commonwealth v. Ventura, 975 A.2d 1128,

1135 (Pa. Super. 2009). “[W]here the sentencing judge had the benefit of a

pre-sentence investigation report [(PSI)], it will be presumed that he or she

was aware of the relevant information regarding the defendant’s character

and weighed those considerations along with mitigating statutory factors.”

Ventura, 975 A.2d at 1135 (citation omitted).
____________________________________________


7   Section 9781(d) includes the following:

        (d) Review of record.—In reviewing the record the appellate
        court shall have regard for:

           (1) The nature and circumstances of the offense and the history
           and characteristics of the defendant.

           (2) The opportunity of the sentencing court to observe the
           defendant, including any presentence investigation.

           (3) The findings upon which the sentence was based.

           (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).
8 Section 9721(b) provides that the court must follow the general principal
that “the sentence imposed should call for confinement that is consistent with
the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S. § 9721(b).



                                           -9-
J-A19017-18



      In this matter, Appellant’s sentence for each conviction fell within the

guideline range.     The trial court was well aware of the nature and

circumstances of the crimes involved, particularly since it had access to a PSI.

See id. At sentencing, the trial court stated:

      The aggregate sentence imposed in this case is a sentence of 24
      years to 48 years. This [c]ourt has imposed this sentence based
      on the fact that [Appellant] in this case engaged in an ongoing
      course of sexual conduct with [Victim] for a period of up to five
      months. This ongoing course of conduct included numerous
      sexual encounters involving sexual intercourse with [Victim],
      [Appellant] having [Victim] perform oral sex on himself and
      [Appellant] performing oral sex on [Victim]; the fact that
      [Appellant] was living under the same roof as [Victim] during this
      ongoing course of sexual conduct and [Appellant] exerted
      psychological influence on [Victim] to ensure she would not report
      these sexual assaults; the fact that [Appellant] was 45 to 46 years
      old at the time he committed these offenses and [Victim] was 15
      years old; the [c]ourt has taken into account the substantial
      impact that these crimes have had on [Victim]. [Victim] has lost
      her family and she has lost relationships with her stepmother and
      most importantly has lost the relationship with her twin sister; the
      [c]ourt has taken into account the emotional impact that these
      crimes have had on the victim; the [c]ourt has taken into
      consideration [Appellant’s] testimony at trial. [Appellant] lied
      under oath while testifying at trial; and this [c]ourt takes into
      account that [Appellant] has shown no remorse whatsoever for
      his actions in this case and the impact on [Victim].

                                     ***

      As a condition of [Appellant’s] sentence he shall have no contact
      with [Victim].    A further condition will be that [Appellant]
      participate in sexual offender treatment and programming at the
      designated state correctional institution.

Order, 7/10/17, at 4-5.

      Accordingly, a review of the record reveals no basis to conclude that the

trial court failed to consider or inappropriately weighed the lack of physical


                                     - 10 -
J-A19017-18



violence associated with Appellant’s offense or Appellant’s rehabilitative needs

in light of the gravity of the offense and the impact on Victim. On this basis,

we cannot conclude that the sentence imposed was “clearly unreasonable.”

See 42 Pa.C.S. § 9781(c).      Therefore, Appellant’s discretionary aspects of

sentencing claim entitles him to no relief.

      In his final issue, Appellant asserts that

      [i]t is uncontested that the prosecution cross-examined defense
      witness Mary Ayres about oral communications that she made to
      [Victim] while they were both in Mary Ayres’ home. [Victim] used
      her cellphone to record those statements without Mary Ayres’
      consent.    Such actions were undertaken in violation of the
      Pennsylvania Wiretap Act and the fruits of this illegal act should
      have been suppressed.

Appellant’s Brief at 20. Specifically, Appellant argues that Victim “recorded a

private conversation between herself and Mary Ayres [in violation of 18

Pa.C.S. § 5703], and that this recording does not meet any of the exceptions

delineated in the Pennsylvania Wiretap Act[.]” Id. at 28. Appellant further

argues that the probative value of the contents of the conversation was

substantially outweighed by the prejudice to Appellant of permitting the

contents to be introduced into evidence. Id. at 31.

      Here, the trial court’s decision to permit cross-examination of Mary

Ayres based upon the recorded oral conversation implicates the construction

and application of the Wiretap Act’s provisions. Accordingly,

      our review is guided by the rules set forth in the Statutory
      Construction Act of 1972 (“SCA”). 1 Pa.C.S.A. § 1501 et seq. The
      SCA instructs that “the object of all interpretation and construction
      of statutes is to ascertain and effectuate the intention of the
      General Assembly. Every statute shall be construed, if possible, to

                                     - 11 -
J-A19017-18


      give effect to all its provisions.” 1 Pa.C.S.A. § 1921(a). Further,
      “[w]hen the words of a statute are clear and free from all
      ambiguity, the letter of it is not to be disregarded under the
      pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). When,
      however, the words of the statute are not explicit, the intention of
      the General Assembly may be ascertained by considering other
      matters. 1 Pa.C.S.A. § 1921(c).

      Under the SCA, “[w]ords and phrases shall be construed according
      to the rules of grammar and according to their common and
      approved usage[.]” 1 Pa.C.S.A. § 1903(a). If the General
      Assembly defines words that are used in a statute, those
      definitions are binding. A court may presume that in drafting the
      statute, the General Assembly intended the entire statute to be
      effective. 1 Pa.C.S.A. § 1922(2). Thus, when construing one
      section of a statute, courts must read that section not by itself,
      but with reference to, and in light of, the other sections.

Commonwealth v. Deck, 954 A.2d 603, 606-07 (Pa. Super. 2008) (some

citations omitted).

      We note the following regarding the Wiretap Act’s framework:

      As a general rule, in Section 5703, the Act prohibits the
      interception, disclosure or use of any wire, electronic or oral
      communication. 18 Pa.C.S.A. § 5703. In Section 5704, however,
      the Act sets forth several exceptions to Section 5703’s prohibitions
      and allows for the interception of a wire, electronic or oral
      communication in designated circumstances. 18 Pa.C.S.A. § 5704.
      In Section 5721.1, the Act provides a statutory exclusionary rule
      that authorizes the suppression of interceptions that were not
      carried out in compliance with Section 5704’s exceptions. 18
      Pa.C.S.A. § 5721.1(b); Commonwealth v. Spangler, 809 A.2d
      [234, 238 & n.7 (Pa. 2002)].

Deck, 954 A.2d at 607.

      As to the Wiretap Act’s specific provisions, we begin with Section 5703,

which provides:

      Except as otherwise provided in this chapter, a person is guilty of
      a felony of the third degree if he:



                                     - 12 -
J-A19017-18


          (1) intentionally intercepts, endeavors to intercept, or procures
          any other person to intercept or endeavor to intercept any wire,
          electronic or oral communication;

          (2) intentionally discloses or endeavors to disclose to any other
          person the contents of any wire, electronic or oral
          communication, or evidence derived therefrom, knowing or
          having reason to know that the information was obtained
          through the interception of a wire, electronic or oral
          communication; or

          (3) intentionally uses or endeavors to use the contents of any
          wire, electronic or oral communication, or evidence derived
          therefrom, knowing or having reason to know, that the
          information was obtained through the interception of a wire,
          electronic or oral communication.

18 Pa.C.S. § 5703.     Subject to certain exclusions not pertinent here, the

Wiretap Act defines “oral communication” as “[a]ny oral communication

uttered by a person possessing an expectation that such communication is not

subject to interception under circumstances justifying such expectation.” 18

Pa.C.S. § 5702.

     One exception to Section 5703 is set forth in Section 5704, which

permits

     [a]ny victim, witness or private detective . . . to intercept the
     contents of any wire, electronic or oral communication, if that
     person is under a reasonable suspicion that the intercepted party
     is committing, about to commit or has committed a crime of
     violence and there is reason to believe that evidence of the crime
     of violence may be obtained from the interception.

18 Pa.C.S. § 5704(17).

     The statutory exclusionary rule in Section 5721.1 provides that evidence

may be disclosed by

     [a]ny person who has obtained knowledge of the contents of any
     wire, electronic or oral communication, or evidence derived

                                     - 13 -
J-A19017-18


     therefrom, which is properly subject to disclosure under section
     5717 (relating to investigative disclosure or use of contents of
     wire, electronic or oral communications or derivative evidence)
     may also disclose such contents or evidence in any matter relating
     to any criminal, quasi-criminal, forfeiture, administrative
     enforcement or professional disciplinary proceedings in any court,
     board or agency of this Commonwealth or of another state or of
     the United States or before any state or Federal grand jury or
     investigating grand jury. Once such disclosure has been made,
     then any person may disclose the contents or evidence in any such
     proceeding.

18 Pa.C.S. § 5721.1(a)(2). However,

     [a]ny aggrieved person who is a party to any proceeding in any
     court, board or agency of this Commonwealth may move to
     exclude the contents of any wire, electronic or oral
     communication, or evidence derived therefrom, on . . . the
     following grounds:

        (1) Unless intercepted pursuant to an exception set forth in
        section 5704 (relating to exceptions to prohibition of
        interception and disclosure of communications), the
        interception was made without prior procurement of an order
        of authorization under section 5712 (relating to issuance of
        order and effect) or an order of approval under section 5713(a)
        (relating to emergency situations) or 5713.1(b) (relating to
        emergency hostage and barricade situations).

18 Pa.C.S. § 5721.1(b)(1). An “aggrieved person” is “[a] person who was a

party to any intercepted wire, electronic or oral communication or a person

against whom the interception was directed.” 18 Pa.C.S. § 5702.

     Instantly, the aggrieved person was Mary Ayres. Appellant was not an

aggrieved person since his oral communication was not intercepted nor was

the interception directed at him.    See 18 Pa.C.S. § 5702.     Accordingly,

Appellant was not an aggrieved person who was also a party to the proceeding

in which he attempted to exclude the contents of the conversation between



                                    - 14 -
J-A19017-18



Mary Ayres and Victim, as required by Section 5721.1(b). See 18 Pa.C.S. §

5721.1(b). Therefore, Appellant did not have standing under the Wiretap Act

to seek to exclude the contents of the conversation from being introduced into

evidence during his trial. See id. For the foregoing reasons, the trial court

did not violate the Wiretap Act in permitting the contents of the conversation

between Mary Ayres and Victim from being introduced into evidence.9

       Appellant also argues that the probative value of the contents of Mary

Ayres’ wiretapped conversation with the Victim was outweighed by the


____________________________________________


9 In any event, we agree with the trial court that Victim’s recording of the
conversation with Mary Ayres falls under an exception to the prohibition of
intercepting and disclosing communications. Under 18 Pa.C.S. § 5704(17), it
is not unlawful and court approval is not required for

       [a]ny victim, witness or private detective . . . to intercept the
       contents of any wire, electronic or oral communication, if that
       person is under a reasonable suspicion that the intercepted party
       is committing, about to commit or has committed a crime of
       violence and there is reason to believe that evidence of the crime
       of violence may be obtained from the interception.

18 Pa.C.S. § 5704(17). For purposes of the Wiretap Act, a “crime of violence”
includes, among other things, intimidation of a witness or victim under 18
Pa.C.S. § 4952, retaliation against a witness or victim under 18 Pa.C.S. §
4953, and any equivalent offense. See 18 Pa.C.S. § 5702. Here, Victim was
under a reasonable suspicion that Mary Ayres was committing or about to
commit a crime of violence, because Mary Ayres was berating her in a manner
consistent with intimidation of witnesses. As an indication that Mary Ayres’
behavior rose to the level of criminal behavior justifying a wiretap, we note
that Mary Ayres was later charged and pled guilty to intimidation in a child
abuse case based on the conversation Victim recorded. Because intimidation
in a child abuse case is an equivalent offense to intimidation under Section
4952, see 18 Pa.C.S. § 4958(a), it qualifies as a crime of violence under the
Wiretap Act and Victim was justified in recording the conversation with Mary
Ayres on March 20, 2016.

                                          - 15 -
J-A19017-18



prejudice of the contents to him.       Appellant asserts that this provides an

alternative basis under which the trial court should have excluded the

evidence.

      In considering Appellant’s issue, we note that

      [a]dmissibility of evidence is within the sound discretion of the
      trial court and will not be disturbed absent an abuse of discretion.
      An abuse of discretion is not merely an error of judgment, but is
      rather the overriding or misapplication of the law, or the exercise
      of judgment that is manifestly unreasonable, or the result of bias,
      prejudice, ill-will or partiality, as shown by the evidence of record.

Commonwealth v. Lynn, 192 A.3d 165, 169 (Pa. Super. 2018) (citations

and internal quotation marks omitted).

      We note that under Pa.R.E. 401, evidence is relevant if “(a) it has any

tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.”

Pa.R.E. 401. In general, “relevant evidence is admissible, except as otherwise

provided by law. Evidence that is not relevant is not admissible.” Pa.R.E.

402. “The credibility of a witness may be impeached by any evidence relevant

to that issue, except as otherwise provided by statute or these rules.” Pa.R.E.

607; see also Pa.R.E. 613(a) (“A witness may be examined concerning a prior

inconsistent statement made by the witness to impeach the witness’s

credibility.”).   As is pertinent in this matter, relevant evidence may be

excluded if its probative value is outweighed by the danger of unfair prejudice,

among other things.      Pa.R.E. 403.     Because all relevant Commonwealth

evidence is meant to prejudice a defendant, exclusion of evidence is limited


                                     - 16 -
J-A19017-18



to evidence so prejudicial that it would “inflame the jury’s sensibilities with

reference to matters other than the legal propositions relevant to the case.”

Commonwealth v. Gonzalez, 112 A.3d 1232, 1238 (Pa. Super. 2015)

(quotation marks and citations omitted).

      Here, the court permitted the contents of the conversation to be read to

the jury but did not permit the recorded conversation to be played:

      I will allow you, in rebuttal, to actually have the detective take the
      stand, and he can say what is on the recording. I’m not playing
      the recording itself. I think the prejudice outweighs any probative
      value [by playing the recording], but he can say on the recording
      what she specifically said in rebuttal.

N.T., 4/13/17, at 318.     As the trial court noted in its supplemental Rule

1925(a) opinion,

      [i]t is clear from Mary Ayres’ testimony that she was called as a
      fact witness by Appellant to show that Appellant was not in a
      position to have committed a sexual assault against [Victim] on
      January 20, 2016[,] or in the months preceding January 20, 2016.
      The statements of Mary Ayres made to [Victim] during the
      recorded confrontation on March 20, 2016[,] are clearly relevant,
      given the direct testimony provided by Mary Ayres at trial,
      because her statements tend to make a fact at issue more or less
      probable or support a reasonable inference or presumption
      regarding a material fact, that is that the Appellant sexually
      abused [Victim]. Such statements are also admissible to impeach
      or rebut Mary Ayres’ direct testimony. Furthermore, the probative
      value of these statements clearly outweighs any unfair prejudice
      to Appellant, as they go directly to whether the sexual abuse
      occurred in this matter. As such, the recorded statements of Mary
      Ayres of March 20, 2016[,] are relevant and the probative value
      outweighs any danger of unfair prejudice to Appellant.

Suppl. Trial Ct. Op., 11/21/18, at 11-12.




                                     - 17 -
J-A19017-18



     We agree with the trial court that the probative value of Mary Ayres’

statements was not outweighed by the potential of unfair prejudice to

Appellant.   The statements were relevant as they went to Mary Ayres’

credibility and demonstrated her belief that Appellant had committed the

sexual offenses charged in this matter. See Gonzalez, 112 A.3d at 1238.

Additionally, Mary Ayres actually denied making certain statements on the

recording,   see   N.T.,   4/13/17,    at   314,    376,    which   permitted    the

Commonwealth       to   introduce   evidence   of   those   statements   as     prior

inconsistent statements. See Pa.R.E. 613(a). Thus, the trial court did not

abuse its discretion in permitting the Commonwealth to cross-examine Mary

Ayres regarding the statements and in allowing the statements to be read to

the jury during rebuttal. See Lynn, 192 A.3d at 169.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/13/2019




                                      - 18 -
