J-A21005-18

                               2018 PA Super 299

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOHN CONTE                              :
                                         :
                   Appellant             :   No. 3879 EDA 2017

           Appeal from the Judgment of Sentence June 20, 2017
             In the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0000403-2016


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

OPINION BY PANELLA, J.                         FILED NOVEMBER 01, 2018

      Before the Court is the appeal of John Conte from his conviction of

Endangering the Welfare of Children, 18 Pa.C.S.A. § 4304. We affirm.

      The first stage of this criminal prosecution was in January 2016 when

the Pocono Mountain Regional Police interviewed M.C.B., then 29 years old,

about an alleged sexual assault and rape that she said occurred when she was

a minor. M.C.B. related to the police that starting when she was 4 or 5 years

old, her father, John Conte (hereinafter “Conte” or “Appellant”), raped and

assaulted her on several occasions. During that time period, she was living

with her mother and Conte, as well as siblings. Although she could not specify

the exact dates of the attacks, she believed they occurred when she was

between the ages of 4 and 8 years old.

      On January 29, 2016, a Criminal Complaint was filed against Conte
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charging him with multiple counts of Rape1, Involuntary Deviate Sexual

Intercourse2, Aggravated Indecent Assault3, all as felonies, and Endangering

the Welfare of Children and two other misdemeanor charges.

        There were a number of pretrial matters, which were addressed by the

trial court. A jury trial was held in March 2017. At the multi-day trial, M.C.B.

testified, as did her mother and brothers. A number of other family members

also testified for the prosecution. On the defense side, Conte and his current

wife testified, as well as other family members and friends.

        As well-stated by Conte in his Appellate Brief, the testimony at trial

painted an amazingly different picture of the Conte household during the era

in which M.C.B. testified about the sexual assaults. “Specifically, M.C.B.’s part

of the family, centered around her mother Rose, painted Conte as a cruel,

vindictive, and violent man who harbored no dispute in the house, and

regularly meted out physical punishment on Rose and the children, with the

exception of M.C.B. who he treated as a princess.” Appellant’s Brief at 8. The

defense witnesses portrayed Conte in a very different light. Although they

testified that discipline was applied, the household was warm and often the

place of welcoming visits from family and friends.

        At the conclusion of the trial, Conte was convicted of the single charge

of Endangering the Welfare of Children. A pre-sentence investigation report
____________________________________________


1   18 Pa.C.S.A. § 3121(a).
2   18 Pa.C.S.A. § 3123(a).
3   18 Pa.C.S.A. § 3125(a).


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was prepared and submitted to the trial court. Sentencing occurred on June

20, 2017; Conte was sentenced to the statutory maximum of thirty to sixty

months’ incarceration. Conte filed a Motion to Reconsider Sentence and Post-

Trial Motions, which were denied on November 21, 2017, following a hearing.

      Our review of Appellant's first issue on appeal reveals that he is

challenging the discretionary aspects of his sentence. Preliminarily, we note

that issues challenging the discretionary aspects of a sentence must be raised

in a post-sentence motion or by presenting the claim to the trial court during

the sentencing proceedings. Absent such efforts, an objection to a

discretionary aspect of a sentence is waived. See Commonwealth v. Tirado,

870 A.2d 362, 365 (Pa. Super. 2005); Pa.R.A.P. 302(a). In the present case,

Conte timely filed a motion for reconsideration of sentence in which he argued

that the sentence he received was excessive and inappropriate. See Motion

to Reconsider Sentence and Post-Trial Motions, filed 6/29/17. As such, we

find Appellant's motion for reconsideration of sentence preserved the claims

now raised on appeal. See Commonwealth v. Levy, 83 A.3d 457, 467 (Pa.

Super. 2013).

      The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.

See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.

2014). “An appellant must satisfy a four-part test to invoke this Court's

jurisdiction when challenging the discretionary aspects of a sentence.” Id. We

conduct this four-part test to determine whether:

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      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
      raises a substantial question for our review.

Commonwealth v. Horning, 2018 WL 3372367 at *5, ___ A.3d ___ (Pa.

Super. 2018) (citation omitted).

      Although Conte contested his sentence in the trial court by way of a

motion for reconsideration, and timely filed an appeal, he has failed to provide

a Rule 2119(f) statement in his brief. Pa.R.A.P. 2119(f) provides:

      (f) Discretionary aspects of sentence. An appellant who
      challenges the discretionary aspects of a sentence in a criminal
      matter shall set forth in a separate section of the brief a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of a sentence. The statement
      shall immediately precede the argument on the merits with
      respect to the discretionary aspects of the sentence.


Pa.R.A.P. 2119 (emphasis added). The Commonwealth, however, has not

objected to this violation of our Rules of Appellate Procedure. “Although, in

the absence of any objection from the Commonwealth, we are empowered to

review claims that otherwise fail to comply with Rule 2119(f), we need not do

so.” Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa.Super. 2005)

(citation omitted). Conte challenged his sentence in the trial court, filed a

supporting brief, and has fully briefed this issue in this Court. In light of the

detailed arguments presented by the defense in support of Conte’s position,

the absence of a Rule 2119(f) statement in the present case does not



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significantly hamper our ability to review Conte’s argument; therefore, we will

address his claim on the merits. See Commonwealth v. Gould, 912 A.2d

869, 872 (Pa. Super. 2006).4

       “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code    or   is   contrary   to   the   fundamental   norms   of   the   sentencing

process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)

(internal quotations and citation omitted). We must make this decision on a

case-by-case basis. See Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa.

Super. 2012).

       Conte asserts that the trial court abused its discretion when it imposed

an excessive sentence by ignoring the acquittals determined by the jury on

the majority of the charges, and when it focused exclusively on the gravity of

the offense in fashioning the sentence imposed. These two challenges present

substantial questions for our review. See Commonwealth v. Tobin, 89 A.3d

663, 666 (Pa. Super. 2014) (holding contention that trial court considered

allegations of offenses for which defendant was not found guilty raised a

substantial question); Commonwealth v. Rossetti, 863 A.2d 1185, 1194




____________________________________________


4Additionally, Appellant’s brief does not comply with Pa.R.A.P. 2111(b), which
requires the opinion from the trial court to be appended to the brief of the
appellant. Neither the trial court opinion and order dated November 21, 2017,
nor the trial court statement pursuant to Rule 1925(a) dated January 11,
2018, were attached to Appellant’s brief.

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(Pa. Super. 2004) (holding failure of sentencing court to consider specified

factors other than gravity of offense raises a substantial question).

      Conte also faults the trial court for relying upon the testimony of M.C.B.,

her mother and her siblings at the time of sentencing instead of giving credit

to the testimony of Conte and his witnesses. In Commonwealth v. Felmlee,

828 A.2d 1105 (Pa. Super. 2003) (en banc), the appellant complained that

the sentencing court sentenced him in the aggravated range without adequate

consideration of the mitigating factors he presented. This was found to have

raised a substantial question. Id. at 1107. Therefore, we find this additional

challenge to be properly before us, because in essence, Conte is arguing that

the trial court did not consider the pleas of mitigation given by his witnesses

at the time of sentencing, i.e., that he was a good father and husband.

      As stated, prior to sentencing, a pre-sentence investigation report was

prepared. The standard range for the charge of Endangering the Welfare of

Children, a misdemeanor of the first degree, was RS to 6 months’

incarceration, with an upward enhancement of three months for the

aggravated range.

      At sentencing, the following witnesses appeared on behalf of the

Appellant: Vivian Conte, Appellant’s current wife; Pat Cummings, a family

friend; Daniel Conte, Appellant’s son; Crystal Conte, Vivian Conte’s daughter;

and finally, Appellant himself. N.T. Sentencing, 6/20/17, at 7–10. Counsel for

Appellant, referring to the supportive statements by many of the Appellant’s

family members, requested a probationary sentence.         Conte exercised his

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right of allocution, but largely failed to address the assaults claimed by M.C.B.:

“I really don’t know why I’m here today.” Id. at 9.

      The prosecution presented the testimony of Conte’s former wife, Rose

Asbury, who is M.C.B.’s mother; Justin Deutsch, Rose Asbury’s son; Anthony

Conte, Appellant’s son; and M.C.B., Appellant’s daughter and the victim in this

case. Id. at 13–42. Counsel for the Commonwealth, referring to the

horrendous    conduct   attributed    to   Conte    by   these   family   members,

recommended the imposition of the maximum penalty of two and a half years

to five years’ incarceration.

      Conte   argues    that    the   sentence     imposed   was   excessive   and

inappropriate given the particular circumstances of this case. Conte

emphasizes he was acquitted of the most serious charges and found guilty of

only one charge, Endangering the Welfare of Children, which he classifies as

a “relatively insignificant misdemeanor.” Appellant’s Brief at 18.

      The trial court began by referring to the pre-sentence investigation. N.T.

Sentencing, 6/20/17, at 50. The trial court noted that it had sat through the

entire trial and “heard all of the witnesses’ testimony and the evidence that

was presented here.” Id. The trial court found Conte responsible for the

disharmony of the family. Id. at 51. Although the trial court showed respect

for the jury’s verdict, it found Conte accountable for the lifetime of pain

suffered by M.C.B. The trial court also rejected Conte’s contention that the

Endangerment conviction had to be unrelated to the testimony of M.C.B. After




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demonstrating that it had given the witnesses and arguments of counsel

proper consideration, the trial court stated in a compelling fashion:

      [T]he impact on [M.C.B.] was significant. She suffered anxiety,
      depression, nightmares, eating disorders, self-mutilation.

      We’ve heard that she’s had two suicide attempts, unable to have
      normal healthy sexual relations in her life, unable to trust people,
      unable to handle certain social situations.

      She suffers from . . . certain sounds and sights. And those are all
      real. I see them, and I don’t think they’re made up. I don’t think
      this is some ruse that Rose Asbury put [M.C.B.] up to put you in
      this position. You endangered her welfare. There’s no doubt about
      that, and that’s what the jury found you guilty of.

      I certainly think there are compelling facts in this case which make
      a departure sentence more appropriate than just the guideline
      sentence in this case.

      You’re having the complete lack of remorse. You certainly lack any
      empathy for your daughter. In fact, you don’t call these children
      your children anymore; you’ve disowned them. It is what they
      set forth in the presentence investigation report. The impact has
      been great on [M.C.B.]. The impact has been great on Rose. Your
      two sons who live with this guilt that they couldn’t protect their
      little sister, and they’ve been affected as well.

      You blame others for the situation you’re in. You blame Rose that
      she brainwashed the kids, and that she’s the one what caused all
      of this. It’s certainly a disturbing situation, and one that I believe
      warrants a sentence over and above that set forth in the
      guidelines.

Id. at 53–54.

      Conte focuses his argument that the sentence is unreasonable by

arguing that it is contrary to the verdict of the jury. He first emphasizes the

trial court’s reliance on the victim’s testimony about the sexual assaults belies



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the jury’s verdicts, which found him not guilty of the sexual violence crimes.

Therefore, Conte challenges the discretionary aspects of the sentence.

     In its Opinion which denied the motion to reconsider sentence, the trial

court explained the sentence pronounced on June 20, 2017:

           This Court had the benefit of sitting through the entire trial,
     including all pre-trial motions filed by the parties. We heard all of
     the evidence and we were able to observe the demeanor of the
     witnesses, including [Appellant]. We had the benefit of a PSI
     report and we listened to all of those who spoke at sentencing,
     including [M.C.B.] and those in support of [Appellant].

           Pursuant to 42 Pa.C.S.A. § 9721(b), we imposed a sentence
     which is consistent with the protection of the public, the gravity of
     the offense as it relates to the impact on the life of [M.C.B.] and
     on the community as well as the rehabilitative needs of the
     [Appellant]. We set forth, on the record, our reasons for the
     sentence we imposed on [Appellant]. Specifically, we recognized
     that [Appellant’s] conduct caused a great deal of strife within the
     family, a family now divided. Although [Appellant] would like to
     minimize his role, we listened to several days of testimony and we
     believe the responsibility for the chasm in this family lies with
     [Appellant] and his actions.

           We found the testimony of [M.C.B.] to be compelling and
     although the Commonwealth did not meet its burden of beyond a
     reasonable doubt on the most serious charges, we cannot say that
     the jury did not find [M.C.B.’s] testimony just as compelling. We
     expressed our concern with what would be the proper punishment
     of [Appellant], however, we were concerned with the struggles
     [M.C.B.] has endured and will continue to undergo. [Appellant]
     was in a position of trust, being [M.C.B.’s] father; however
     [Appellant] continues to place the blame on [M.C.B.’s] mother,
     Rose, for the charges in this case.

            In deviating from the guidelines, we imposed the sentence
     on [Appellant] which we believe is warranted under 42 Pa.C.S.A.
     § 9721(b). We also considered that [Appellant] has a complete
     lack of remorse or empathy for [M.C.B]. [Appellant] has
     effectively disowned [his] children from his marriage to Rose,
     which is set forth in the PSI. In that light, we find that [Appellant]

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      has failed to advance a substantial question and we are satisfied
      that we sentenced [Appellant] appropriately.

Trial Court Opinion, filed 11/22/17, at 5-6.

      “When imposing a sentence, the sentencing court must consider the

factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public,

gravity of offense in relation to impact on victim and community, and

rehabilitative needs of the defendant….” Commonwealth v. Fullin, 892 A.2d

843, 847 (Pa. Super. 2006) (citation omitted). Furthermore, a trial court has

discretion when it sentences a defendant:

      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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2015) (citations

omitted).

      A judge's statement of the reasons for imposing a particular sentence

“must clearly show that he has given individualized consideration to the

character of the defendant.” Commonwealth v. Ritchey, 779 A.2d 1183,

1187 (Pa. Super. 2001) (citation omitted). In addition:

      Where pre-sentence reports exist, we shall continue to 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

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       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.

Commonwealth         v.   Devers,       546    A.2d       12,   18    (Pa.    1988).

Accordingly, “[w]here the sentencing judge had the benefit of a pre-sentence

report, it will be presumed that he was aware of relevant information

regarding appellant's character and weighed those considerations along with

the mitigating statutory factors.” Fullin, 892 A.2d at 849–50.

       We find that the factors which led to the maximum sentence were legal

considerations, that the reasons for the sentence were aptly stated on the

record. As mentioned by the trial court in its opinion, it had the benefit of

sitting through the entire trial and observing the presentation and demeanor

of the witnesses, including Appellant. The sentencing court is in a superior

position to “review the defendant's character, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Marts, 889 A.2d

608,    613   (Pa.   Super.   2005)     (citation   omitted).     “Simply     stated,

the sentencing court sentences flesh-and-blood defendants and the nuances

of sentencing decisions are difficult to gauge from the cold transcript used

upon appellate review. Moreover, the sentencing court enjoys an institutional

advantage to appellate review, bringing to its decisions an expertise,

experience,   and    judgment    that    should     not    be   lightly   disturbed.”

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).

       Under the Sentencing Code an appellate court is to exercise its

judgment in reviewing a sentence outside the sentencing guidelines to assess

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whether the sentencing court imposed a sentence that is “unreasonable.” 42

Pa.C.S.A.   §   9781(c)(3).     There    are   no   concrete   rules   as   to   the

unreasonableness review for a sentence that falls outside of the guidelines.

See Walls, 926 A.2d at 964.

      In this case, we find that the trial court properly considered the nature

and circumstances of the offense for which Conte was convicted, recognized

the background that led to Conte’s criminal conduct against M.C.B., the basis

of the behavior attributable to him by M.C.B. and other family members, and

the circumstances in which they occurred. The trial court also took into

account the history and characteristics of Conte, specifically noting that Conte

demonstrated no remorse for the emotional trauma suffered by his daughter,

the victim. The trial court acknowledged that it had observed Conte through

the numerous court proceedings and gave due consideration to the

information in the presentence report.

      After making findings, supported by the record, that Conte was

responsible for the suffering that still haunts M.C.B., the trial court decided to

depart from the guidelines. N.T. Sentencing, 6/20/17, at 53. Specifically,

the sentencing court pointed to M.C.B.’s age at the time of the incidents that

she reported, that she has suffered throughout her entire childhood and most

of her adult life, that this has separated the family with some siblings siding

with M.C.B. and others with Conte, and that Conte was in a parental position

of trust when this occurred.




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       An additional argument raised by Conte in contesting the sentence is

that it is doubtful the Endangerment charge was based on conduct with his

daughter, M.C.B., because the evidence regarding his daughter was mainly in

relation to rape and involuntary deviate sexual intercourse, for which he was

found not guilty.       Instead, he points to the evidence presented by the

Commonwealth in relation to T.F. which he contends would satisfy the

Endangerment charge. At trial, testimony presented by the Commonwealth

included that Conte once forced this other girl, T.F., who was a minor at the

time, to touch him on his penis, over the top of his clothes. Conte references

the questions asked by the jury during deliberations, which, in his opinion,

seem to indicate that the Endangerment charge was based upon this incident

involving T.F., and not his daughter. In the alternative, Conte also argues that

the Endangerment conviction may have been in relation to testimony that he

permitted a “known pedophile” into his home with access to his children.5

       The developments at trial, however, do not support Conte’s arguments.

The trial court specifically instructed the jury that all of the charges were based

upon conduct perpetrated by Conte against his daughter, M.C.B. Furthermore,

following the testimony of T.F., the trial court gave the jury the instruction on


____________________________________________


5At trial, there was testimony that Conte permitted Leo Deutsch, the brother
of Rose Asbury, to visit the home. It was known to Conte that Leo Deutsch
was a convicted pedophile. Therefore, Conte contends that the Endangerment
charge could have been tied into this testimony which showed that Conte
exposed the children to a known child abuser.



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Pa.R.E. 404(b) evidence. In this regard, the trial court specifically advised the

jury that the testimony of T.F. was admitted to show the general environment

in the Conte household, and other purposes listed in Rule 404(b), and not to

prove the elements of the charges filed against Conte. 6          The jury was

specifically told that it were not permitted to use the testimony of T.F. to infer

guilt upon Conte. The law presumes the jury will follow the instructions of the

court. See Commonwealth v. Brown, 786 A.2d 961, 971 (Pa. 2001).

       Accordingly, we find that the trial court took into account the general

standards for sentencing in 42 Pa.C.S.A. § 9721(b). Because the trial court

took a reasoned approach and sentenced Conte after taking into account

multiple factors, we discern no abuse of discretion.

       We next consider Conte's claim that the “prior bad acts” evidence,

presented to the jury by the testimony of T.F., should not have been admitted

because it was “inflammatory and prejudicial.” Appellant’s Brief at 32.

       On March 1, 2017, the Commonwealth filed notice of its intent to

introduce evidence pursuant to Pa.R.E. 404(b) through the following

testimony: “improper sexual advances towards T.F.” Commonwealth’s

Supplemental Notice of 404B, 3/1/17. On March 16, 2017, Conte filed a

motion in limine requesting that the court not permit the admission of this

evidence because:
____________________________________________


6 The certified record indicates that the trial court, defense counsel, and the
prosecutor all told the jury that the criminal charges in this case were all based
on conduct perpetrated by Conte on his daughter, M.C.B. See N.T. Trial,
3/23/17, at 232, 265, 306, 309; 3/24/17, at 17.

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      4. Any and all such testimony would be severely prejudicial to
      [Appellant]

      5. Such testimony would have little or no probative value for the
      jury other than to inflame them against [Appellant] for actions
      which have nothing to do with the charges against him.

      6. Charges of alleged sexual misconduct involving others is
      specifically inappropriate as it leads a jury to convict someone
      based on cumulative evidence rather than the evidence of the
      actions in front of them for trial.

      ...

      9. Such testimony is totally irrelevant to the case at hand.

Motions in Limine, 3-16-17 at 1-2. The trial court conducted a hearing on

March 16, 2017, and ordered that the issues concerning the Rule 404(b)

evidence were taken under advisement and would be ruled upon by the court

at the time of trial. The gist of the testimony by T.F. was that Conte had asked

T.F. to join him in his car and had placed T.F.’s hand over this pants on his

penis. See N.T. Trial, 3/23/17, at 159. T.F. was an acquaintance of Conte’s

children. See id. at 154.

      At a conference held prior to trial, the trial court expressed its hesitancy

in admitting the testimony of T.F. In light of this, the Commonwealth indicated

that it would not call T.F. in its case-in-chief. See id., 3/21/17, at 20-21.

However, the Commonwealth decided to call T.F as a rebuttal witness and

requested permission from the trial court to call T.F. after the defense had

rested.

      The Commonwealth argued to the trial court that the testimony of T.F.

was needed on rebuttal to assist the jury in clearing up any confusion in the


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testimony about the identity of the assailant of M.C.B. and to rebut some of

the testimony presented on the defense side.        Id., 3/22/17, at 99-100,

3/23/17, at 151. “Common scheme, plan or design” are exceptions specifically

listed in Rule 404(b). Furthermore, the Pennsylvania Supreme Court “has also

recognized the res gestae exception,” which permits the admission of evidence

of other crimes or bad acts to “tell the complete story.” Commonwealth v.

Hairston, 84 A.3d 657, 665 (Pa. 2014) (internal quotations and citation

omitted). Although the defense objected to the proposed testimony of T.F, the

trial court determined that the defense had opened the door to this testimony

and ruled that it was admissible. N.T. Trial, 3/23/17, at 151.

      T.F. then testified as a rebuttal witness that when she was younger than

sixteen years old, Conte pulled up in front of her house with his car when she

was playing in her yard and called her over. Id. at 158-159. He asked her to

get into his car. When she did, he took her hand and placed it over the top of

his clothes over his penis. Id. at 159, 167-168.

      Following Conte’s conviction, the defense raised the issue of the

admission of T.F.’s testimony in its Motion to Reconsider Sentence and Post-

Trial Motions, and the Concise Statement of Matters Complained Of On Appeal.

Therefore this issue is properly before us on appeal.

      Pennsylvania Rule of Evidence 404 provides, in pertinent part:

      (b) Crimes, Wrongs or Other Acts.

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person's character in order to show that


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      on a particular occasion the person acted in accordance with the
      character.

      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent, preparation,
      plan, knowledge, identity, absence of mistake, or lack of accident.
      In a criminal case this evidence is admissible only if the probative
      value of the evidence outweighs its potential for unfair prejudice.

      (3) Notice in a Criminal Case. In a criminal case the prosecutor
      must provide reasonable notice in advance of trial, or during trial
      if the court excuses pretrial notice on good cause shown, of the
      general nature of any such evidence the prosecutor intends to
      introduce at trial.

Pa.R.E. 404(b). As stated above, the Commonwealth provided the notice as

required under subsection (b)(3) of Rule 404.

      It is well-settled that,

      [o]n appeals challenging an evidentiary ruling of the trial court,
      our standard of review is limited. A trial court's decision will not
      be reversed absent a clear abuse of discretion. Abuse of discretion
      is not merely an error of judgment, but rather where the judgment
      is manifestly unreasonable or where the law is not applied or
      where the record shows that the action is a result of partiality,
      prejudice, bias or ill will.

Commonwealth v. Aikens, 990 A.2d 1181, 1184–85 (Pa.Super. 2010)

(internal quotations and citations omitted).

      In accordance with Rule 404(b)(1), evidence of prior bad acts or criminal

activity unrelated to the crimes at issue is generally inadmissible to show that

a defendant acted in conformity with those past acts or to show criminal

propensity. See Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988).

However, it is well settled that evidence of prior bad acts may be admissible

when offered to prove some other relevant fact, such as motive, opportunity,

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intent, preparation, plan, knowledge, identity, and absence of mistake or

accident. See Rule 404(b)(2). “In determining whether evidence of other prior

bad acts is admissible, the trial court is obliged to balance the probative value

of such evidence against its prejudicial impact.” Commonwealth v.

Sherwood, 982 A.2d 483, 497 (Pa. 2009) (citation omitted). Further, the

evidence may also be admissible “to impeach the credibility of a testifying

defendant.” Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002) (citation

omitted).

      The trial court had the benefit of the pre-trial hearing and the arguments

of counsel prior to permitting the admission T.F.’s testimony on rebuttal. The

trial court thoroughly reviewed and properly addressed the Rule 404 evidence

at trial. This testimony was offered in rebuttal to the defense testimony that

Conte had never been inappropriate to M.C.B., her cousin, A.M.D., or any

other child.

      We find no abuse of discretion in this regard. The bad acts evidence of

which Conte complains was not inflammatory, not graphic, and not extensive.

Furthermore, the trial court gave an appropriate Rule 404 jury instruction. The

instruction explained that the evidence was for a limited purpose, “tending to

show the general environment in the Conte household and familial

relationships between the witnesses - - of the witnesses and Mr. Conte . . . .”

N.T. Trial, 3/24/17, at 4, 18. The trial court also instructed the jury that they

could consider the testimony of T.F. as evidence of a common scheme, plan


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or to show proof of identity in light of the similarities of the assaults on T.F.,

A.M.D., and M.C.B. See id. The trial court specifically told the jury that they

were not to regard the testimony of T.F. as “showing that the Defendant is a

person of bad character or criminal tendencies from which you might be

inclined to infer guilt.” Id.

      In his closing argument, counsel for the Commonwealth reminded the

jury that Conte was on trial for the conduct toward M.C.B., but argued that

the testimony showed similarities with the testimony of Conte’s actions toward

T.F. and A.M.D. See N.T. Trial, 3/23/17, at 306.

      Evidence will not be prohibited merely because it is harmful to the

defendant. “[E]xclusion is limited to evidence so prejudicial that it would

inflame the jury to make a decision based on something other than the legal

propositions relevant to the case.” Commonwealth v. Talbert, 129 A.3d

536, 539 (Pa. Super. 2015) (citation omitted). Although at times the jury is

presented with unpleasant facts, “[t]he trial court is not required to sanitize

the trial to eliminate all unpleasant facts . . . .” Hairston, 84 A.3d at 666

(citation omitted).

      Although evidence of Conte's actions with T.F. certainly painted Conte

in a bad light, we conclude the trial court did not abuse its discretion in finding

it was not unduly prejudicial against Conte.

      Conte raised two other issues in the Concise Statement of Matters

Complained Of On Appeal and the Docketing Statement: whether the trial


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court erred (1) in allowing the testimony of A.L., who also testified to

inappropriate contact with Conte, and (2) in denying the defense request for

a taint hearing to test the competency of M.C.B. These issues were not

addressed in Appellant’s Brief and are therefore waived. See Commonwealth

v. Sanford, 445 A.2d 149, 150 (Pa. Super. 1982) (holding issues not properly

raised and developed in briefs are waived on appeal). Accordingly, we affirm

Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/18




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