J-A27021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
GABINO BERNAL,                           :
                                         :
                        Appellant        :      No. 1922 WDA 2013


    Appeal from the Judgment of Sentence Entered November 19, 2013,
            In the Court of Common Pleas of Allegheny County,
             Criminal Division, at No. CP-02-CR-0002976-2013.


BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 08, 2014

      Appellant, Gabino Bernal, appeals from the judgment of sentence

entered in the Court of Common Pleas of Allegheny County. For the reasons

that follow, we vacate and remand for resentencing.

      The trial court summarized the procedural and factual history of this

case as follows:

            [Appellant] was charged with Rape of a Child,1 Unlawful
      Contact with a Minor,2 Indecent Assault of a Person Under 133
      and Corruption of Minors4 in relation to a series of incidents with
      his girlfriend’s 8-year-old daughter.     Following a jury trial,
      [Appellant] was found not guilty of Rape of a Child and guilty at
      the remaining charges. On November 19, 2013, [Appellant]
      appeared before this Court and was sentenced to a term of
      imprisonment of nine (9) to eighteen (18) years at the Unlawful
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      Contact with a Minor charge.      No Post-Sentence Motions were
      filed. This appeal followed.[1]
            1
                18 Pa.C.S.A. §3121(c)
            2
                18 Pa.C.S.A. §6318[(a)(1)]
            3
                18 Pa.C.S.A. §3126(a)(7)
            4
                18 Pa.C.S.A. §6301(a)(1)[(i)]

            Briefly, the evidence presented established that in the fall
      of 2003, [Appellant] lived with his girlfriend [E. C.], her eight (8)
      year old daughter, [(“the Victim”)] and her 11 year old son, [J.],
      who has cerebral palsy and is confined to a wheelchair. It was
      customary for [Appellant] to pick up [the Victim] from school
      and walk her home when her mother was not able to do so.
      Sometime that fall, [the Victim] got in trouble at school, and her
      teacher told [Appellant] when he arrived to pick her up.
      [Appellant] became angry and pulled [the Victim’s] hair during
      the walk home. Upon arriving at their house, [Appellant] took
      [the Victim] to the bedroom he shared with her mother, forcibly
      undressed her and raped her. [The Victim] testified that the
      rapes occurred numerous times over the course of the next
      several months. [Appellant] threatened to hurt [the Victim’s
      brother], with whom [the Victim] was very close, if she told
      anyone.

Trial Court Opinion, 4/3/14, at 1-2.

      Appellant presents the following issues for our review:

            1.   Did the trial judge abuse her discretion by permitting
      Mary Carrasco, M.D. to testify as a Commonwealth rebuttal
      witness when her testimony did not constitute rebuttal?

           2.    Did the trial judge abuse her discretion by permitting
      the Commonwealth to cross-examine all character witnesses as
      to whether they were aware that [Appellant] was an illegal alien


1
 Both Appellant and the trial court complied with the dictates of Pa.R.A.P.
1925.

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      without limiting the ruling as to whether the character witnesses
      should testify that [Appellant] was law-abiding?

            3.    Did the trial judge commit an error of law sentencing
      [Appellant] at Count 2 to nine to eighteen years in prison when
      at that count he was only convicted of a felony of the third
      degree, and not a felony of the first degree?

Appellant’s Brief at 2-3.

      Appellant first argues that the trial court abused its discretion in

permitting Mary Carrasco, M.D., to testify as a Commonwealth rebuttal

witness because, as Appellant contends, her testimony did not constitute

rebuttal. Appellant’s Brief at 13. Appellant maintains that Appellant’s expert

witness, Dr. Breck, was precluded from answering questions, due to

sustained objections, and thus, there was no testimony provided by Dr.

Breck that Dr. Carrasco could rebut.        Id. at 14-15.   Appellant further

contends that because Dr. Breck responded that she had no knowledge

regarding a statistic related to child assault victims not showing signs of

being sexually assaulted, subsequent testimony from Dr. Carrasco regarding

the statistic was not rebuttal testimony. Id. at 15, 20.

      We have stated the following when reviewing a trial court’s evidentiary

ruling:

             The standard of review for a trial court’s evidentiary
      rulings is narrow. The admissibility of evidence is solely within
      the discretion of the trial court and will be reversed only if the
      trial court has abused its 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


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     manifestly unreasonable, or the result of bias, prejudice, ill-will
     or partiality, as shown by the evidence of record.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013).

     Furthermore, in addressing the admissibility of rebuttal evidence, our

Supreme Court has stated the following:

     [T]he admission of rebuttal testimony is within the sound
     discretion of the trial court, and the appropriate scope of rebuttal
     evidence is defined by the evidence that it is intended to rebut.
     [W]here the evidence proposed goes to the impeachment of the
     testimony of his opponent’s witnesses, it is admissible as a
     matter of right. Rebuttal is proper where facts discrediting the
     proponent’s witnesses have been offered.

Commonwealth v. Ballard, 80 A.3d 380, 401-402 (Pa. 2013).

     Despite Appellant’s claims that Dr. Breck’s testimony was limited in

various ways, the record established that Dr. Breck indeed provided

testimony regarding her conclusions as to whether the Victim had been

subjected to sexual abuse. Specifically, Dr. Breck testified that during her

examination of the Victim on December 1, 2003, she found no abnormalities

and stated that the Victim’s vagina and hymen were normal. N.T., 8/27/13,

at 101-102.   Dr. Breck also stated that following her examination of the

Victim on December 29, 2003, she had again concluded that the Victim’s

pubic area was “normal.” Id. at 102-103.

     On cross-examination, Dr. Breck’s testimony reflected that the

December 1, 2003, examination was for a urinary tract infection.            N.T.,

8/27/13, at 104. After acknowledging that having sex can be a cause of a


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urinary tract infection, Dr. Breck was asked by the Assistant District Attorney

whether it was possible that the Victim’s infection was the result of having

had sexual intercourse.     Id. at 104-105.      Dr. Breck answered:       “My

examination does not show any signs of her having penetration sex.” Id. at

105. Dr. Breck conceded that she had not used a colposcope, an instrument

often used in sexual assault cases to examine the vagina, when she

conducted her examination of the Victim in this matter.       Id. at 105-106.

When questioned regarding a statistic that indicated that ninety-five percent

of female children known to have been sexually assaulted do not exhibit any

physical signs of such an assault, Dr. Breck stated that she could not answer

because “I don’t have that knowledge.” Id. at 106. On redirect, however,

when presented with the same statistic, Dr. Breck stated: “It’s hard for me

to believe.” Id. at 107.

      In rebuttal, Dr. Carrasco testified as an expert in the area of child

abuse, and explained that according to the most widely used study on the

subject, only five percent of children referred for a sexual-abuse evaluation

exhibited any physical evidence of such abuse. N.T., 8/28/13, at 139-140.

Dr. Carrasco further explained that, in her twenty-five years of experience

examining children for signs of sexual abuse, she used a colposcope “as a

magnifying device to record the appearance of the hymen in case there’s a

need to look at the evidence instead of simply examining the child, we would




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be able to see it.” Id. at 136-138, 141. Dr. Carrasco explained that while

“it’s not impossible to [examine the hymen] visually, it’s much better with a

[colposcope] because you can see a much greater level of detail of sexual

abuse.” Id. at 142.

      As is reflected above, Dr. Breck, in fact, provided testimony regarding

her opinion as to whether the Victim was subject to sexual abuse by

testifying that the Victim’s vagina and hymen appeared “normal” and that

there was no evidence of penetration sex.      Furthermore, Dr. Breck stated

that it was “hard for her to believe” the statistic establishing that children

who were subjected to sexual abuse may not show signs of such abuse.

      Accordingly, Dr. Carrasco’s testimony was appropriately admitted for

purposes of rebutting Dr. Breck’s. Dr. Carrasco’s testimony suggested that

Dr. Breck’s examinations were not as thorough as necessary due to her

failure to use the proper instrument for examination and that a “normal”

vagina and hymen did not necessarily mean that the Victim had not

experienced vaginal penetration or that the Victim had not been subjected to

sexual abuse. Additionally, Dr. Carrasco’s testimony regarding the statistic

of known child victims of sexual abuse not reflecting signs of that abuse

served to rebut Dr. Breck’s opinion that such a statistic was “hard for her to

believe.” Accordingly, the trial court did not abuse its discretion in allowing

the rebuttal testimony of Dr. Carassco. Appellant’s first claim lacks merit.




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     Appellant next contends that “the trial judge abused her discretion by

permitting the Commonwealth to cross-examine all character witnesses as to

whether they were aware that [Appellant] was an illegal alien without

limiting the ruling as to whether the character witnesses should testify that

[Appellant] was law-abiding.”    Appellant’s Brief at 20.     Appellant filed a

motion in limine, stating that Appellant was an undocumented alien and

requesting that the trial court enter an order prohibiting the Commonwealth

from introducing this fact to the jury.    Id. at 20-21.   After jury selection,

Appellant asserts, the parties met in chambers and discussed the motion in

limine. Id. at 21. Appellant contends that although the meeting was not

placed on the record and a written order was never entered, the trial court

ruled “in blanket fashion” that the Commonwealth could, in fact, cross-

examine defense character witnesses as to whether they were aware that

Appellant was an illegal alien. Id. at 22. Appellant further maintains that

the ruling was not limited to whether the character witnesses testified that

Appellant was law-abiding. Id. Appellant now argues that it was error for

the trial court to issue a blanket order that any character witness could be

cross-examined by the Commonwealth regarding Appellant’s status as an

undocumented alien.    Id. at 25.   Appellant relies on Commonwealth v.

Kouma, 53 A.3d 760 (Pa. Super. 2012), for the proposition that cross-




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examination is permitted in Pennsylvania only when the character witness

testifies as to a defendant’s “reputation for being law-abiding.” Id. at 26.

      The Commonwealth contends that Appellant never requested that the

trial court judge limit the Commonwealth’s references to Appellant’s illegal

immigrant status to those instances in which a character witness had already

testified to Appellant’s reputation for law-abidingness.      Commonwealth’s

Brief at 15. Because Appellant failed to make this request to the trial court,

the Commonwealth argues the claim is waived.             Id. at 15-16.       The

Commonwealth further asserts that even if the claim is not waived, the trial

court did not abuse its discretion in permitting the prosecutor to question the

witnesses regarding Appellant’s illegal alien status. Id. at 20.

      “It is a settled principle of appellate review, of course, that courts

should not reach claims that were not raised below.”       Commonwealth v.

Colavita, 993 A.2d 874, 891 (Pa. 2010). Pennsylvania Appellate Rule 302

provides as follows:

      Rule 302. Requisites for Reviewable Issue

      (a) General rule. Issues not raised in the lower court are
      waived and cannot be raised for the first time on appeal.

      (b) Charge to jury. A general exception to the charge to the
      jury will not preserve an issue for appeal. Specific exception shall
      be taken to the language or omission complained of.

Pa.R.A.P. 302. Additionally, the note to Pa.R.A.P. 302 states:




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      Note: This rule sets forth a frequently overlooked requirement.
      See, e.g., Commonwealth v. Piper, 458 Pa. 307, 328 A.2d
      845 (1974), as to Subdivision (a). See, e.g., Dilliplaine v.
      Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974);
      Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974) as
      to Subdivision (b). Rule 2117(c) (statement of place of raising
      or preservation of issues) and Rule 2119(e) (statement of place
      of raising or preservation of issues) require that the brief
      expressly set forth in both the statement of the case and in the
      argument reference to the place in the record where the issue
      presented for decision on appeal has been raised or preserved
      below.

Pa.R.A.P. 302, Note.

      Nothing in the record reflects the trial court’s ruling on Appellant’s

motion in limine prior to trial.       This fact is consistent with Appellant’s

assertion that an unrecorded, in-chambers meeting between parties took

place, during which the trial court ruled that if the defense called character

witnesses, the Commonwealth would be able to cross-examine them as to

whether they were aware that Appellant was an illegal alien. A review of the

record does reflect, however, the following exchange between counsel and

the trial court, during trial, regarding cross-examination of witnesses related

to Appellant’s illegal alien status:

      [Commonwealth]:           So you are in this country legally?

      [Appellant]:       No.

            [Appellant’s Counsel]: You are a citizen of the United
      States?

            [Appellant]:        No, I’m sorry, no.




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             [Appellant’s counsel]:   May we approach, Your Honor?

                                      ---

                 (A discussion at sidebar was held as follows:)

                                      ---

            [Appellant’s counsel]: Two things. First, I filed a motion
     that none of that could be brought into this case and [the
     Commonwealth] agreed with that motion but the Court didn’t get
     to rule on it, that’s Number One.

           Number Two, the Court did not rule that if I presented
     character testimony that the character witness was aware that
     [Appellant] was here illegally, if that question could be asked,
     that was fair game in cross examination. This is improper cross
     examination.

           The Court: I thought you weren’t calling               character
     witnesses. I also don’t think it makes any difference.

           [Appellant’s counsel]: Your Honor, there’s a couple of
     things. First of all, I might change my mind about calling
     character witnesses. In this case, cross examination is not
     permitted, it’s improper. Number Two, there’s a time and place
     for everything and the time and place for that type of cross
     examination is only as to whether or not they knew about it.

           The Court: Well, the credibility of [Appellant] was in taking
     the stand.

             [Appellant’s counsel]:   But I don’t see how it could be
     used.

             The Court: That he was a Mexican national.

             [Appellant’s counsel]:   And I said that.

           [Commonwealth]:        I was picking up his direct. He was
     asking the question if he was in the country legally and he said
     he came in through Arizona.


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             The Court: I agree with [Appellant’s Counsel] that it never
      came up. My suggestion would be to move on at this point. If
      you call character witnesses, then [the Commonwealth] can
      cross examine them on whether [Appellant] is here illegally. If
      not, I will initiate a cautionary instruction to the jury.

            [Appellant’s Counsel]: If I might point out something.              I
      did ask him and he did say he entered illegally.

                The Court: He has a right to cross examine him.

            [Appellant’s Counsel]: It is not evidence of bad character,
      it is not evidence of crimen falsi, it is not evidence of
      impeachment.

            The Court: Well, you did open the door and I believe [the
      Commonwealth] has indicated you did, but I will allow you to
      continue.

                [Commonwealth]: Thank you, Your Honor.

                                          ---

                       (Discussion at sidebar was concluded)

                                          ---

                           The Court: Objection overruled.

N.T., 8/27/13, at 116-118.

      Even after the trial court ruled that the Commonwealth could cross-

examine character witnesses regarding their knowledge of Appellant’s

illegal-alien    status,   Appellant’s   counsel   did   not   request   that   cross-

examination be limited and permissible only after the witness testified to

Appellant having a reputation for being law-abiding. Furthermore, Appellant




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has failed to identify where in the record he requested that the trial court

limit any cross-examination as to his illegal-alien status to be in response to

a character witness’s testimony that Appellant was law-abiding.       Thus, we

are constrained to agree with the Commonwealth that Appellant has failed to

preserve this issue for appellate review.

      We further note that, contrary to Appellant’s assertions, Kouma does

not pronounce a blanket holding that character witnesses can be questioned

regarding an appellant’s illegal alien status only when an appellant’s law-

abidingness is raised.   In Kouma, the appellant’s specific contention was

that “the trial court erred in ruling that, if [a]ppellant called character

witnesses to testify as to his reputation for being law-abiding, the prosecutor

could cross-examine the witnesses as to their knowledge of Appellant’s

immigration status as an illegal alien.”       Kouma, 53 A.3d 760, 768.

Accordingly, this Court was required to determine whether appellant’s

immigration status as an illegal alien, subject to deportation, was probative

as it related to his trait of being law-abiding. Id. at 769. After conducting

its analysis, this Court concluded that the Commonwealth was permitted to

use the appellant’s immigration status as an illegal alien to call into question

the character witnesses’ qualifications to speak for the community on the

issue, i.e., their basis of knowledge of the person or law-abiding trait and

the standard by which they measure reputation.       Id. at 770. As such, the




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Court’s ruling in Kouma was specific to the facts in the case before it and

does not stand for the proposition, as stated by Appellant, that a defendant’s

status as an illegal alien can be referenced during the cross-examination of a

character witness only when that witness had testified to the defendant’s

reputation for law-abidingness. Thus, Appellant’s second claim lacks merit.

      In his final issue, Appellant maintains that because he was not

convicted of a felony of the first degree, the trial court erred in sentencing

him to nine to eighteen years in prison. Appellant’s Brief at 28. Appellant

relies on Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010), in support of

his position.   Id. at 31-32.   Appellant asserts that because the trial court

committed an error of law, the case should be remanded for resentencing.

Id. at 34.

      The Commonwealth agrees with Appellant’s claim that he was

improperly sentenced. Commonwealth’s Brief at 23-25. The Commonwealth

also relies on Reed in its analysis.     Id. at 24-25.    The Commonwealth

concedes that it was error for the trial court to have graded the unlawful-

contact-with-a-minor conviction as anything greater than a felony of the

third degree.     Id. at 25.     As such, the Commonwealth asserts that

resentencing is necessary. Id.

      We first note that the statutory provision defining the offense and

establishing grading provides, in relevant part, as follows:




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     § 6318. Unlawful contact with minor

     (a) Offense defined.--A person commits an offense if he is
     intentionally in contact with a minor, or a law enforcement
     officer acting in the performance of his duties who has assumed
     the identity of a minor, for the purpose of engaging in an activity
     prohibited under any of the following, and either the person
     initiating the contact or the person being contacted is within this
     Commonwealth:

           (1) Any of the offenses enumerated in Chapter 31
           (relating to sexual offenses).

           (2) Open lewdness as defined in section 5901
           (relating to open lewdness).

           (3) Prostitution as defined in section 5902 (relating
           to prostitution and related offenses).

           (4) Obscene and other sexual materials and
           performances as defined in section 5903 (relating to
           obscene   and    other    sexual    materials   and
           performances).

           (5) Sexual abuse of children as defined in section
           6312 (relating to sexual abuse of children).

           (6) Sexual exploitation of children as defined in
           section 6320 (relating to sexual exploitation of
           children).

     (b) Grading.--A violation of subsection (a) is:

           (1) an offense of the same grade and degree as the most
           serious underlying offense in subsection (a) for which the
           defendant contacted the minor; or

           (2) a felony of the third degree;

     whichever is greater.

18 Pa.C.S. § 6318 (a) & (b).


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      Additionally, in Reed, our Supreme Court was confronted with a

factual scenario similar to the one presented herein.         In Reed, the

defendant was charged with attempted unlawful contact with a minor and

criminal attempt of the following crimes:    rape of a child and involuntary

deviate sexual intercourse (“IDSI”), which are first-degree felony offenses,

statutory sexual assault, a second-degree felony, indecent assault, a

second-degree misdemeanor, and corruption of a minor, a first-degree

misdemeanor. Reed, 9 A.3d at 1141. The defendant was acquitted of all

charges except criminal attempt to commit unlawful contact with a minor.

Id.   At sentencing, the trial court graded defendant’s conviction for

attempted unlawful contact with a minor as a first-degree felony based on

the fact that defendant also was charged with the first-degree felony

offenses of rape and IDSI, determining that the grading scheme was not

contingent upon an actual conviction of those underlying offenses.    Id. at

1141-1142. This Court, after concluding that the trial court erred in grading

defendant’s offense as a first-degree felony and ruling that grading under 18

Pa.C.S. § 6318(b)(1) depended “upon whether [defendant] was actually

convicted of the underlying offenses,” vacated the judgment of sentence and

remanded the matter for resentencing.      Id. at 1142, 1144. Our Supreme

Court granted the Commonwealth’s petition for allowance of appeal for the

purpose of deciding the following issue:




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        What is the proper grading of a conviction under 18 Pa.C.S. §
        6318, where the trial court at sentencing concluded that the
        most serious underlying offenses for which the defendant
        contacted the minor were offenses for which the defendant was
        acquitted?

Id. at 1142.

        The Court explained that pursuant to the express statutory language,

a violation of 18 Pa.C.S. § 6318(a), unlawful contact with a minor, is graded

as either the most serious underlying offense for which the defendant

attempted contact with the minor, or a first-degree misdemeanor, the

default grading under section 6318(b)(2), whichever is greater. 2    Reed, 9

A.3d at 1146-1147. The Court stated that because a fact-finder acquitted

the defendant of the other charges, those acquittals cannot be ignored when

applying the appropriate grading under subsection 6318(b).      Id. at 1147.

Thus, the Court concluded that because the defendant had been acquitted of

the separate Chapter 31 charges, the default sentencing provision applied.

Id. at 1148.

        In the case sub judice, as noted, Appellant was convicted of indecent

assault of a person under thirteen and corruption of minors in addition to his

conviction for unlawful contact with a minor.     Appellant was acquitted of

rape.    The convictions of indecent assault and corruption of minors are



2
  At the time, section 6318(b)(2) provided that the default grading for the
offense was a misdemeanor of the first degree. 18 Pa.C.S. § 6318 (1997);
Commonwealth v. Miller, 35 A.3d 1206, 1211 (Pa. 2012).

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graded as misdemeanors of the first degree.     Because the default grading

provision of section 6318(b)(2), a felony of the third degree, is greater than

the two other convictions for misdemeanors of the first degree, Appellant’s

conviction of unlawful contact with a minor must be graded as a felony of

the third degree. 18 Pa.C.S. § 6318(b)(2); Reed, 9 A.3d at 1148.

      Sentencing for a felony of the third degree “shall be fixed by the court

at not more than seven years.”      18 Pa.C.S. § 1103(3).      Appellant was

sentenced to incarceration for nine to eighteen years.     As such, the trial

court erred in sentencing Appellant.    Thus, we are constrained to vacate

Appellant’s sentence and remand the matter for resentencing.

      Vacate sentence and remand for resentencing on all counts.         See

Commonwealth v. Stemple, 940 A.2d 504, 513 (Pa. Super. 2008)

(holding that where vacating the sentence reduces the aggregate penalty

and upsets the overall sentencing scheme, “the appropriate step is to vacate

the entire sentence and to remand for resentencing.”)             Jurisdiction

relinquished.

      Judge Musmanno joins this Memorandum.

      Judge Olson Concurs in the Result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2014




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