J-S36012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

LEON WATSON

                            Appellant               No. 3250 EDA 2015


          Appeal from the Judgment of Sentence September 11, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001136-2014
                                         CP-51-CR-0001141-2014
                                         CP-51-CR-0001142-2014
                                         CP-51-CR-0001143-2014
                                         CP-51-CR-0001144-2014
                                         CP-51-CR-0001145-2014


BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                          FILED AUGUST 03, 2017

        Appellant, Leon Watson, appeals from the judgment of sentence

entered after a jury convicted him of multiple crimes arising from the sexual

abuse of five juvenile victims and one adult victim. We affirm.

        In 2013, Watson was arrested and charged with Sexual Assault,1

Involuntary Deviate Sexual Intercourse (“IDSI”),2 three counts of IDSI with


____________________________________________


1
    18 Pa.C.S.A § 3124.1.
2
    18 Pa.C.S.A § 3123 (a)(1).
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a Child,3 five counts of Corruption of Minors,4 five counts of Unlawful Contact

with a Minor,5 and two counts of Indecent Assault,6 relating to the sexual

abuse of five juveniles, I.B., K.B., B.J., R.C., and D.J., and one mentally

disabled adult, J.H.7 The Commonwealth alleged that Watson used his

position as coach of the “Little Vicks” football team to find his victims and

gain their trust.

        Prior to trial, the Commonwealth filed motions to consolidate the five

juvenile victim’s cases with the adult victim’s case and admit Watson’s

juvenile history of previous sexual offenses. Watson filed a response

opposing the motion to admit evidence of the previous sexual offenses citing

the remoteness in time. Further, Watson opposed the Commonwealth’s

motion to consolidate the victims’ cases and moved to sever the adult

victim’s case from the juvenile victims’ cases. The trial court granted the

Commonwealth’s motions and denied Watson’s motion to sever.



____________________________________________


3
    18 Pa.C.S.A § 3123(b).
4
    18 Pa.C.S.A § 6301(a)(1)(ii).
5
    18 Pa.C.S.A § 6318(a)(1).
6
    18 Pa.C.S.A § 3126(a)(7).
7
   The Commonwealth also charged Watson with additional crimes related to
these allegations. However, these additional charges were disposed of prior
to trial.



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       The consolidated cases proceeded to a jury trial on January 12, 2015.

As part of its case in chief, the Commonwealth presented the testimony of

all   six   victims,   I.B.,   K.B.,   B.J.,   R.C.,   D.J.,   and   J.H.   Further,   the

Commonwealth introduced the testimony of Michael Wood, Watson’s

brother, and an admission made by Watson relating to Watson’s juvenile

court adjudication for sexual offenses in 2005.

       The jury convicted Watson of all charges relating to all six victims. The

trial court subsequently sentenced Watson to an aggregate sentence of 114

to 228 years’ imprisonment, followed by 35 years’ of probation. 8 Watson

filed a timely post-sentence motion, which the trial court denied. This timely

appeal follows.

       Prior to reaching the merits of Watson’s issues, we must first

determine whether Watson has preserved an issue for our review. In his

appellate brief, Watson contends that the trial court infringed upon his

constitutional right to remain silent at sentencing by compelling him to

____________________________________________


8
  Watson was sentenced to 10 to 20 years’ imprisonment for IDSI, 20 to 40
years’ imprisonment for each of the three counts of IDSI with a Child, 10 to
20 years’ imprisonment for each of three of the counts of Unlawful Contact
with a Minor, 3½ to 7 years’ imprisonment for each of the remaining two
counts of Unlawful Contact with a Minor, and 3½ to 7 years’ imprisonment
on each of the two counts of Indecent Assault. The trial court ordered these
sentences to run consecutively. The conviction for Sexual Assault merged
with IDSI. Further, Watson was sentenced to seven years of probation for
each of the five counts of Corruption of a Minor. The trial court ordered these
probationary sentences to run consecutive to Watson’s prison term and
consecutively to each other.



                                           -3-
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testify and that the trial court used his attempted silence against him in

fashioning his sentence. See Appellant’s Brief, at 4, 29-36. However, we find

these discretionary aspects of sentencing claims waived as Watson failed to

raise this challenge with the trial court.

      “[W]e note that issues, even those of constitutional dimension are

waived if not raised in the trial court.” Commonwealth v. Berryman, 649

A.2d 961, 973 (Pa. Super. 1994) (citations omitted). See also Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”) Here, at his sentencing hearing and in

his motion to reconsider sentence, Watson failed to raise the claims that the

trial court violated his constitutional right to remain silent and that it

improperly considered his silence in fashioning his sentence. See N.T.,

Sentencing, 9/11/15; Post Sentence Motion: Motion to Reconsider Sentence,

9/18/15. Thus, we find this issue waived. We proceed to address the

remaining issues.

      In his first preserved issue on appeal, Watson contends the trial court

erred by permitting the Commonwealth to ask questions in front of the jury

that established the minor victims’ competency. See Appellant’s Brief, at 4,

25-29. Watson claims that this questioning violated the dictates of the per se

rule set forth in Commonwealth v. Washington, 772 A.2d 643 (Pa. 1998),

and therefore requires a new trial. See Appellant’s Brief, at 27-29.




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     Under Pennsylvania law, the competency of witnesses over the age of

fourteen is generally presumed. See Commonwealth v. Delbridge, 855

A.2d 27, 39 (Pa. 2003). However, trial courts must inquire into the

competency of witnesses under the age of fourteen to ensure that the

witness has the mental capacity “to perceive the nature of the events about

which he or she is called to testify, to understand questions about that

subject matter, to communicate about the subject at issue, to recall

information, to distinguish fact from fantasy, and to tell the truth.” Id., at

45. The competency of juvenile witnesses is a matter solely within the

purview of the trial court. See Commonwealth v. Dowling, 883 A.2d 570,

576 (Pa. 2005).

     As the trial court is the sole judge of competency, the defendant in

Washington questioned the appropriateness of inquiring into a juvenile

witness’s competency in the presence of the jury. See 722 A.2d at 645.

There, the trial court allowed counsel to conduct a lengthy voir dire of the

juvenile witnesses in the presence of the jury. See id., at 644-645.

Following voir dire, defense counsel objected to the juvenile witness’s

competency, but the trial court overruled the objection and specifically

informed the jury that the witness was competent to testify. See id., at 645.

The defendant argued that allowing the jury to witness the voir dire and

hear the competency ruling implied that the trial court endorsed the

witness’s credibility. See id. Our Supreme Court agreed and set forth a per


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se rule “requiring the trial court to conduct a competency hearing in the

absence of the jury.” 722 A.2d at 647.

      However, our Supreme Court clarified the boundaries of this per se

rule in Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011). In

Hutchinson, the Court clarified that not all questioning which mirrors the

voir dire of juvenile witnesses violates the per se Washington rule. See id.,

at 296. Specifically, the Court found that the prosecutor’s inquiry into the

juvenile witness’s ability to differentiate between the truth and a lie in the

presence of the jury did not violate the per se Washington rule where the

trial court refrained from ruling on the juvenile witness’s competency in the

presence of the jury, and later instructed the jury that it was the sole judge

of credibility. See Hutchinson, 25 A.3d at 295.

      Here, the circumstances of the competency hearings closely aligns

with the facts set forth in Hutchinson. For each juvenile victim, the trial

court correctly conducted a competency hearing outside of the presence of

the jury. See N.T., Jury Trial, 1/12/15, at 105-107 (relating to B.J.); N.T.,

Jury Trial, 1/13/15, at 5-7 (relating to K.B.), 8-9 (relating to I.B.), 89-91

(relating to D.J.), 92-93 (relating to R.C.). Watson did not challenge the

competency of any of the juvenile victims at the time of trial (or now on

direct appeal).

      Upon direct examination, the Commonwealth asked each juvenile

victim to recite his age, birthday, and to confirm their understanding of the


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difference between the truth and a lie.9 See N.T., Jury Trial, 1/12/15, at

125-126 (relating to B.J.); N.T., Jury Trial, 1/13/15, at 10-11 (relating to

K.B.), 57-58 (relating to I.B.), 94 (relating to D.J.), 108-109 (relating to

R.C.). The Commonwealth then proceeded to ask questions directly related

to the charged crimes. These competency-like questions flowed smoothly

into the rest of each juvenile victim’s testimony. The trial court did not

discuss the issue of competency in front of the jury in relation to any of the

juvenile victims. Further, the trial court expressly instructed the jury on its

duty as the sole fact finder and judge of credibility. See N.T., Jury Trial,

1/15/15, at 125. There is no evidence that the jury did not follow this

instruction, and, as such, we must presume that they did so in this matter.

See Hutchinson, 25 A.3d at 299. As such, Watson is not entitled to relief

on this claim.

       Next, Watson contends that two improper decisions of the trial court

combined     to   paint    Watson     as   an    “uncontrollable   sexual   predator.”

Appellant’s Brief, at 37. First, Watson claims the trial court erred in denying

his motion to sever and by consolidating the charges relating to the five

juvenile victims with the charges relating to the adult victim for trial. See

id., at 36-39. Watson avers that this error, coupled with Watson’s next
____________________________________________


9
  The record reveals that the Commonwealth also asked B.J. and I.B. their
grade in school in the presence of the jury. See N.T., 1/12/15, at 125; N.T.,
1/13/15, at 58. This additional question does not alter our analysis of the
issue.



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alleged trial court error of admitting evidence of Watson’s juvenile sexual

offenses, deprived Watson of a fair trial and necessitates a new trial. See

id., at 39-41.

      [A] motion for severance is addressed to the sound discretion of
      the trial court, and … its decision will not be disturbed absent a
      manifest abuse of discretion. The critical consideration is
      whether [the] appellant was prejudiced by the trial court’s
      decision not to sever. [The a]ppellant bears the burden of
      establishing such prejudice.

Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010) (citation

omitted; brackets in original).

      In order to address Watson’s contention, we must determine

      [1] whether the evidence of each of these offenses would be
      admissible in a separate trial for the other; [2] whether such
      evidence is capable of separation by the jury so as to avoid
      danger of confusion; and, if the answers to these inquiries are in
      the affirmative; [3] whether the defendant will be unduly
      prejudiced by the consolidation of offenses.

Commonwealth v. Boyle, 733 A.2d 633, 635 (Pa. Super. 1999) (citation

omitted; alterations in the original). See also Pa.R.Crim.P. 582 and 583.

      Our first step is to determine whether the evidence regarding each

incident would be admissible in a separate trial for the other. “Admission of

evidence is within the sound discretion of the trial court and will be reversed

only upon a showing that the trial court clearly abused its discretion.”

Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002) (citation

omitted). However, it is impermissible to present evidence at trial of a

defendant’s prior bad acts or crimes in an attempt to establish the

defendant’s criminal character or proclivities. See Commonwealth v.

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Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008); Pa.R.E. 404(b)(1). Such

evidence, however, may be admissible “where it is relevant for some other

legitimate purpose and not utilized solely to blacken the defendant’s

character.” Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super.

2007) (citation omitted). “[E]vidence of other crimes, wrongs or acts may be

admitted for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity or absence of mistake or lack of

accident.” Pa.R.E. 404(b)(2).

      Watson concedes that the evidence of the abuse of the juvenile victims

would be admissible in separate trials for the others, and does not contest

the trial court’s decision to consolidate the juvenile cases for trial. See

Appellant’s Brief, at 36. However, he challenges the trial court’s conclusion

that the evidence admitted in the trial relating to the juvenile victims would

be admissible at the trial as evidence of a common plan or scheme for J.H.,

the sole adult victim, and vice versa. See id., at 36-39.

      In determining whether the common plan or scheme exception

applies, a trial court must assess the distinctiveness of similarity of the

circumstances of the two incidents to determine whether they constitute a

“signature.” Commonwealth v. Tyson, 119 A.3d 353, 358-359 (Pa. Super.

2015) (citations omitted). A signature does not necessitate proof of nearly

identical facts, but requires that there be a “logical connection between [the

crimes.]” Commonwealth v. Ivy, 146 A.3d 241, 254 (Pa. Super. 2016).

Next, the court must assess the lapse of time between the incidents, as a

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prior bad act that is remote in time may not be probative of a common plan.

See Tyson, 119 A.3d at 358-359. Finally, the court must determine that the

probative value of the prior bad act evidence is not outweighed by the

prejudicial impact on the trier of fact. See id.

      Here, the circumstances surrounding the separate allegations of sexual

abuse were set forth through the testimony of the victims, as accurately

summarized by the trial court as follows:

             B.J. is an eleven-year-old child who played football for the
      Little Vicks and the Rhawnhurst Raiders. B.J. stated that
      [Watson] was the assistant coach of the Rhawnhurst Raiders and
      in charge of the Little Vicks. B.J. testified that he would
      sometimes spend the entire weekend at [Watson’s] house and
      sleep in [Watson’s] bed. B.J. stated that he, K.B., I.B., and
      sometimes D.J. and R.C. would sleep in the same bed with
      [Watson]. B.J. testified that [Watson] would touch their private
      parts and that [Watson] would put his private part in [B.J.’s]
      butt. [Watson’s] private part would go in B.J.’s mouth and “some
      white stuff” would come out of [Watson’s] private part when he
      was “doing it” to [B.J.] B.J. stated that this happened more than
      one time. B.J. was too scared to tell [Watson] that it hurt
      because he thought that [Watson] would hit him.

            The Commonwealth next called K.B. to testify. K.B. is an
      eleven-year-old child who also played football with the
      Rhawnhurst Raiders and the Little Vicks. K.B. testified that in
      2013 he lived at … Street with his brother I.B., [Watson],
      [Watson’s] mother, father, and mother’s boyfriend. He testified
      that while he lived with [Watson], [Watson] would touch him
      inappropriately. [Watson] would take his penis and rub it against
      K.B.’s butt or penis almost every night. K.B. stated that
      [Watson] would sometimes suck his penis and that after a while
      [Watson’s] sperm would come out of his penis and land on K.B.’s
      butt or penis. K.B. thought about telling his mother but he was
      scared that his family would get hurt. K.B. testified that he
      witnessed this happen to R.C., I.B., and B.J.



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           The Commonwealth next called I.B. to testify. I.B. is a
     nine-year-old child who played on the Little Vicks. I.B. testified
     that [Watson] would put his mouth on his private part and
     sometimes in his butt. He stated that white and clear stuff would
     come out of [Watson’s] penis and go on [I.B.’s] back and
     stomach and that this happened more than one time. I.B. said
     that he did not tell anyone about what was happening because
     [Watson] had a knife and taser and he thought [Watson] would
     use them on him.

            The Commonwealth next called D.J. to testify. D.J. is an
     eleven-year-old child who played on the Little Vicks. He states
     that he went over to [Watson’s] house when he got suspended
     from school because no one could look after him at his own
     home. D.J. testified that [Watson] touched him on the chest,
     butt, and private part when he was over [Watson’s] house that
     day. D.J. stated that he slept over [Watson’s] house but in a
     different bed than [Watson]. He testified that he would see
     [Watson] “wrestle” K.B. and I.B. in [Watson’s] bed.

           The Commonwealth next called R.C. to testify. R.C. is a
     ten-year-old child who played on the Little Vicks. He testified
     that he slept over [Watson’s] house about nine times. R.C.
     would sleep in [Watson’s] bed when he slept over. R.C. stated
     that [Watson] touched him on his butt when he was in the
     kitchen getting breakfast. [Watson] also touched R.C. on his
     “nuts” over his clothes in the bedroom and [R.C. stated] that
     this occurred about two or three times. R.C. did not tell anybody
     because he was scared he would get in trouble with his mom.

                                    ***

           The Commonwealth next called J.H. to testify. J.H. is
     twenty-four years old and mentally challenged. J.H. testified that
     he lives with Ryan O’Neal and that something bad happened
     there with [Watson]. [] O’Neal works for JEVS Human Services,
     which is a program that supports people with intellectual
     disabilities or mental retardation through housing and
     employment opportunities. [] O’Neal lives in a house on
     Wellington Street where [Watson] resided for a few months from
     late 2012 to early 2013. J.H. was part of this JEVS program. J.H.
     stated that [Watson] raped him and that it happened six times.
     J.H. explained that he was too scared to tell anyone what was
     going on because he was scared of [Watson]. [Watson] held

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      J.H.’s arms down and put his penis in J.H.’s butt until a “white
      thing” would come out of [Watson’s] penis. [Watson] also forced
      his penis into J.H.’s mouth until a “white thing” would come out.
      While this was going on, [Watson] would look out the window to
      make sure [] O’Neal was not coming home.

Trial Court Opinion, 5/27/16, at 5-9 (internal citations to the record

omitted).

      Watson contends this testimony proves that, other than race, the

occurrence of sexual contact, and that all acts occurred in bedrooms, there

is no clear commonality between the cases involving the juvenile victims,

and the case involving the adult victim. See Appellant’s Brief, at 37. Watson

highlights the significant age difference between the juvenile victims and the

adult victim; the fact that the assaults on the juvenile victims occurred in his

mother’s home while Harris’s assault occurred in a group home; the fact that

J.H.’s assault occurred nine months prior to the juveniles’ assaults; and the

fact he used restraint in J.H.’s sexual abuse. See id., at 38. We disagree.

      The record reveals that in all of the assaults, Watson targeted African-

American males who he either lived with, or who stayed overnight at his

residence. While J.H. was 21 at the time of the assault, all of the testimony

indicates that he mentally functioned at a level similar to the five juvenile

victims. All six victims were involved in either the Little Vicks or the

Rhawnhurst Raiders, which logically suggests that Watson used his position

of power as a coach to gain control over his victims. Additionally, all of the

assaults occurred within a two-year period, contrary to Watson’s assertion


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that the assaults were remote in time. Further, while there is no evidence

that Watson physically restrained any victim but J.H., this fact alone does

not preclude consolidation. Thus, we find that the cases are similar enough

to be admitted as evidence in each case if tried separately.

      The next step is to determine whether joinder of the offenses for trial

posed a danger of confusing the jury. “Where a trial concerns distinct

criminal offense that are distinguishable in time, space and the characters

involved, a jury is capable of separating the offenses.” Commonwealth v.

Collins, 703 A.2d 418, 423 (Pa. 1997) (citation omitted).

      Watson entirely ignores the danger of confusion in his brief. However,

the crimes occurred on different days and at different times. Further, the

subject matter was rather simplistic and could be easily understood by the

jury. Thus, we find that there was no danger of confusing the jury with

evidence of each crime.

      Finally, we must determine whether joinder of the offenses for trial

unfairly prejudiced Watson.

      The “prejudice” of which Rule [583] speaks is not simply
      prejudice in the sense that appellant will be linked to the crimes
      for which he is being prosecuted, for that sort of prejudice is
      ostensibly the purpose of all Commonwealth evidence. The
      prejudice of which Rule [583] speaks is, rather, that which would
      occur if the evidence tended to convict appellant only by showing
      his propensity to commit crimes, or because the jury was
      incapable of separating the evidence or could not avoid
      cumulating the evidence.




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Commonwealth v. Newman, 598 A.2d 275, 279 (Pa. 1991) (citation

omitted).

      As we stated above, the burden for establishing prejudice falls

squarely on Watson. Watson does not even attempt to establish prejudice in

his appellate brief. Further, we have already explained that the evidence

regarding each sexual assault would be admissible in a separate trial for the

other. And we concluded that the jury was capable of separating the

evidence of each crime. Thus, we can discern no abuse of discretion in the

trial court’s denial of Watson’s motion to sever, and grant of the

Commonwealth’s motion to consolidate, all six cases for trial.

      In his second prong of this argument, Watson contends the trial court

improperly granted the Commonwealth’s motion to introduce a juvenile

court adjudication, which revealed that he had previously molested children.

See Appellant’s Brief, at 39-41. Specifically, Watson challenges the

introduction of evidence relating to sexual abuse he perpetrated in 2005. At

that time, he “anally penetrated his then-eight year old brother and

vaginally penetrated his then-three year old sister,” as well as testimony

that “[a]t around the same time period, [Watson] rubbed himself up against

[two of his cousins] during a water fight.” Id., at 39. Watson claims that this

evidence is too far removed from the allegations introduced at trial and lacks

a signature-like quality necessary to qualify for the common plan or scheme




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exception   to   Pa.R.E.   404(b)(2),     and    therefore   its   introduction   was

impermissible proof of propensity to commit a crime. See id., at 41.

      As discussed in detail above, we determined that Watson displayed a

common plan or scheme that involved sexually assaulting immature African-

American children and a mentally disabled adult that trusted him because of

their relationship and all of whom were easily accessible as victims for him

to sexually abuse. Watson’s abuse of his siblings and cousins falls neatly

within this general plan or scheme. Watson clearly had access to his younger

cousins and his sister and had power over them because of his elder status.

Further, Watson’s brother, Michael Wood, eighteen at the time of the trial,

testified that

      when he was eight years old and [Watson] was sixteen,
      [Watson] would play the “quiet game” and the “kissing game”
      with him. During the “quiet game,” [Watson] would make Wood
      lay down and [Watson] would insert his penis inside Wood’s
      anus. During the “kissing game” [Watson] would kiss Wood and
      make Wood give him oral sex. The “quiet game” would happen
      almost every day after school and the “kissing game” did not
      happen too often. Wood testified that roughly three times he
      saw [Watson] “go on top of” their three year old sister. He
      stated that he saw [Watson] “stroking up and down on top of
      her.”

Trial Court Opinion, 5/27/16, at 9-10 (internal citations to the record

omitted).

      Wood’s description of the sexual abuse he suffered is strikingly similar

to the abuse described by B.S. We find these factual similarities sufficient to

establish a logical connection between the cases.


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      We recognize that Watson is correct in noting that evidence of a

common plan or scheme that is too remote in time generally loses its

probative value, but we find that, under the particular circumstances here,

the evidence of Watson’s juvenile sexual offenses are not too remote in

time. “If the evidence reveals that the details of each criminal incident are

nearly identical, the fact that the incidents are separated by a lapse of time

will not likely prevent the offer of evidence unless the time is excessive.”

Commonwealth v. Smith, 635 A.2d 1086, 1089 (Pa. Super. 1983)

(citation and emphasis omitted). Further, in evaluating the remoteness of a

particular crime intended to be introduced as evidence of a common plan or

scheme, “time spent in prison must be excluded in the calculation of how

much time has elapsed since the prior crime.” Tyson, 119 A.3d at 361

(citations omitted).

      Watson was in custody for his juvenile sexual offenses from February

2006 until September 2010. He was released from custody into the

residential support home where he eventually sexually assaulted J.H.

Effectively, there was an approximate three year gap between the instances

in which he sexually assaulted his cousins and siblings and the instances in

which he assaulted J.H. After his assaults of J.H., he began sexually

assaulting the five juvenile victims within the year time.

      We do not find that these lapses in time removed the probative value

of evidence of a common plan or scheme. See id., at 361 (finding five-year


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“look-back period” not too remote and citing cases where ten-year and six

year-lapses were not too remote). Additionally, we do not find that the trial

court abused its discretion in determining that the probative value of

Watson’s prior sexual offenses outweighed its potential for undue prejudice.

Given the substantial similarities between the sexual assaults, it was

reasonable to find the previous assaults highly probative. Accordingly,

Watson’s challenge to the admission of evidence relating to his juvenile

adjudication for sexual assaults is without merit.

       In his final argument, Watson contends that the trial court abused its

discretion in imposing sentence. See Appellant’s Brief, at 20-24, 41-51.

Watson relies upon two arguments to support this contention. 10 First,

Watson contends that the trial court abused its discretion by sentencing him

to aggravated range and “outside the aggravated range” sentences on every

count and running the sentences consecutively, essentially creating a life

sentence. See id., at 22-23. Second, Watson contends that the trial court

abused its discretion by failing to adequately justify the reasons for its
____________________________________________


10
    We have rearranged Watson’s arguments for ease of disposition.
Additionally, through his challenge to the discretionary aspects of his
sentence, Watson attempted to raise a third argument: that the trial court
abused its discretion by construing his constitutional right to remain silent as
a lack of remorse, and using that alleged lack of remorse against him in
sentencing. See Appellant’s Brief, at 20. However, as we have discussed
above, Watson waived this challenge by failing to object to this alleged error
at sentencing or in his motion to reconsider his sentence. Thus, we will not
address this waived issue in the context of his challenge to the discretionary
aspects of his sentence.



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sentence on the record at sentencing and by failing to consider mitigating

factors. See id., at 20-21. Watson concedes that both of these challenges

implicate the discretionary aspects of the trial court’s sentence.

       Preliminarily, we note that Watson’s contention that the trial court

sentenced him to both aggravated range and “outside the aggravated range”

sentences mischaracterizes the trial court’s sentencing scheme. Specifically,

in his Rule 2119(f) statement, Watson incorrectly alleges that the trial court

imposed aggravated range sentences for the three counts of IDSI of a Child,

and for the three corresponding counts of Unlawful Contact with a Minor.11

See Appellant’s Brief, at 22 n.16. At the sentencing hearing, both parties

agreed, correctly, see 204 Pa. Code. § 303.15, that Watson’s prior record

score was four and an offense gravity score of 14 for each these six counts.

See N.T., Sentencing, 9/11/15, at 7-8. Based upon these numbers, a

standard range sentence for any of these charges would include a minimum

sentence ranging from 14 years’ to the statutory limit of 20 years’

imprisonment. See 204 Pa. Code. § 303.16(a). Thus, Watson’s minimum

sentence of 10 years’ imprisonment for each of three counts of Unlawful

Contact with a Minor is below the standard range. See id. Further, while

Watson’s minimum sentence of 20 years’ imprisonment for IDSI of a Child is

____________________________________________


11
  Peculiarly, Watson later concedes that the three sentences of 20-40 years’
imprisonment that he received for the ISDI with a Child were standard range
sentences. See Appellant’s Brief, at 48.



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the statutory maximum, it is also a standard range sentence for Watson.

See id. Despite this mischaracterization, we will address this claim as the

trial court did sentence Watson to five sentences outside the guidelines.12

       “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). “Two requirements must be met before we

will review this challenge on its merits.” Id. (citation omitted).

       “First, an appellant must set forth in his brief a concise statement of

the reasons relied upon for allowance of appeal with respect to the

discretionary aspects of a sentence.” Id. (citation omitted). See also

Pa.R.A.P. 2119(f). “Second, the appellant must show that there is a

substantial question that the sentence imposed is not appropriate under the

Sentencing Code.” Id. (citation omitted). That is, “the sentence violated

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)

(citation omitted).
____________________________________________


12
   The trial court’s sentence of 3½ to 7 years’ imprisonment for the
remaining two counts of Unlawful Contact with a Minor, as well as the two
counts of Indecent Assault, were outside the standard range of the
guidelines, but within the statutory limits. See 204 Pa. Code. § 303.16(a).
This is also true for Watson’s sentence of 10 to 20 years’ imprisonment for
IDSI. See id.



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      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted). Here, Watson has preserved his arguments

through a post-sentence motion and his appellate brief contains the requisite

Rule 2119(f) concise statement.

      We will first address Watson’s erroneous contention that the trial court

abused its discretion by sentencing him to aggravated range and “outside

the aggravated range” sentences on every count and running the sentences

consecutively, essentially creating a life sentence. Essentially, through this

argument, Watson is objecting to the consecutive nature of his sentence. We

find that this argument fails to raise a substantial question for our review.

      “Although Pennsylvania’s system stands for individualized sentencing,

the court is not required to impose the ‘minimum possible’ confinement.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation

omitted).   “Generally,   Pennsylvania   law   affords   the   sentencing   court

discretion to impose its sentence concurrently or consecutively to other

sentences being imposed at the same time or to sentences already imposed.

Any challenge to the exercise of this discretion ordinarily does not raise a

substantial question.” Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.

Super. 2013). See also 42 Pa.C.S.A. § 9721(a); Commonwealth v. Hoag,


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J-S36012-17


665 A.2d 1212, 1214 (Pa. Super. 1995) (stating that an appellant is not

entitled to a “volume discount” for his crimes by having all sentences run

concurrently). “The imposition of consecutive, rather than concurrent,

sentences may raise a substantial question in only the most extreme

circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment.”

Moury, 992 A.2d at 171-72 (citation omitted).

      We do not find that an “extreme circumstance” is present here. The

trial court acted well within its discretion in imposing consecutive sentences.

Although we do not deny that Watson’s aggregate sentence is lengthy,

Watson concedes that it is a legal sentence. Given the egregious nature of

the sexual abuse of six individuals in this matter, five of whom were

children, we agree with the trial court’s conclusion that a sentence of 114 to

128 years’ imprisonment, followed by a 34-year probationary tail is

reasonable under the circumstances and not excessive. Thus, Watson’s first

challenge to the discretionary aspects of his sentence is without merit; it

does not even raise a substantial question for our review.

      Finally, Watson argues in his Rule 2119(f) statement that the trial

court abused its discretion by failing to state adequately the reasons for its

sentence on the record and by ignoring mitigating circumstances, such as

his diagnosis of mild mental retardation, his history of abuse in childhood,

and his rehabilitative needs. See Appellant’s Brief, at 20-21. We have


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J-S36012-17


previously held that this claim raises a substantial question for our review.

See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015)

(en   banc),   appeal   denied,   126   A.3d   1282   (Pa.   2015).   See   also

Commonwealth v. Parlante, 823 A.2d 927, 929-930 (Pa. Super. 2003)

(holding that failing to adequately state reasons on the record coupled with

failure to consider rehabilitative needs raises a substantial question).

      The standard of review with respect to sentencing is as follows.
      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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted).

      We first note that at Watson’s sentencing, the trial court was provided

with a pre-sentence investigation report (“PSI”). Where the sentencing court

had the benefit of reviewing a PSI, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure. Having been fully informed by the pre-sentence
      report, the sentencing court’s discretion should not be disturbed.
      This is particularly true, we repeat, in those circumstances where
      it can be demonstrated that the judge had any degree of


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J-S36012-17


      awareness of the sentencing considerations, and there we will
      presume also that the weighing process took place in a
      meaningful fashion. It would be foolish, indeed, to take the
      position that if a court is in possession of the facts, it will fail to
      apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted).

      In addition to the PSI, which highlighted Watson’s claims of mental

disability and childhood abuse, defense counsel argued at sentencing that

Watson’s troubled childhood and “mild mental retardation” evidenced a need

for rehabilitative efforts. N.T., Sentencing, 9/11/15, at 10-14. While it is

clear from the record that Watson had an extremely difficult childhood and

mental deficiencies, there is no indication that the trial court completely

disregarded this information in fashioning a sentence. In fact, the trial court

acknowledged Watson’s claims during sentencing, but indicated that he did

not believe rehabilitation would be successful, as Watson had already been

given the opportunity for “treatment and rehabilitation … by the juvenile

justice system” and “went AWOL [from] sexual offender treatment several

times.” Id., at 38, 41. We therefore conclude that the trial court considered

the appropriate factors when sentencing Watson, and therefore did not

abuse its discretion. Thus, Watson’s final issue on appeal merits no relief.

      Judgment of sentence affirmed.

      President Judge Emeritus Ford Elliott joins in the memorandum.

      Judge Olson concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2017




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