J-A16026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID DWAYNE WALTERS

                            Appellant                No. 1483 WDA 2013


             Appeal from the Judgment of Sentence April 11, 2013
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000735-2009


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 30, 2014

        David Dwayne Walters appeals from the judgment of sentence

imposed April 11, 2013, in the Fayette County Court of Common Pleas. The

trial court sentenced him to a term of 16 to 32 months’ imprisonment,

following Walters’ jury conviction of one count of indecent assault of a victim

less than 13 years of age.1 On appeal, Walters challenges the trial court’s

evidentiary rulings, failure to grant a mistrial, and jury instructions, as well

as the weight and sufficiency of the evidence, and the discretionary aspects

of his sentence. For the reasons set forth below, we affirm.

        The facts giving rise to Walters’ arrest and conviction are summarized

by the trial court as follows:
____________________________________________


1
    18 Pa.C.S. § 3126(a)(7).
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             [The victim] was born [in June of 1996]. She knew …
       Walters, having met him when [Walters], the boyfriend of her
       mother, resided in the home of her mother for about a year. [2]
       During that time, [the victim] became close to [Walters], and he
       became a father figure to her. Even after her mother and
       [Walters] ended their relationship, [the victim] continued to see
       [Walters].

             When she was ten years of age, arrangements were made
       for her and her sister to spend the weekend with [Walters]. To
       that end, [Walters] came to their home on a Friday after school
       and transported the children to a home in Uniontown, Fayette
       County, Pennsylvania.

             In the early morning hours of Saturday, sometime around
       3:00 a.m. to 4:00 a.m., [Walters] awakened [the victim].
       Laying down beside her, [Walters] put his hand inside her
       underwear and on her vagina. He then took her hand, placed it
       on his penis, and started moving her hand up and down.

             [At Walters’ trial, Trooper David Bell] testified that
       [Walters] told him his date of birth is [August of 1978]. Further,
       [Walters] admitted that he did have [the victim] at his home
       that weekend, a weekend which he said occurred on April 20,
       2007.

Trial Court Opinion, 10/25/2013, at 6-7 (record citations omitted).

       Walters was subsequently arrested and charged with one count of

indecent assault. Twice he entered a plea of nolo contendre to the charge,

and both times he successfully withdrew the pleas prior to sentencing.

Walters’ first jury trial ended in a mistrial on December 7, 2012, when the

____________________________________________


2
   Walters met the victim’s mother in December of 2004. N.T., 4/2-4/2013,
at 126.      He testified that he resided with the victim’s family “for
approximately two months.” Id. The victim’s mother testified that she
dated Walters for about “a year and a half,” and that he moved in with her
“off and on” during that time. Id. at 58. She claimed the the last time he
lived with them was in July of 2006. Id. at 60.



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jury reported that it was deadlocked. His second trial commenced on April

2, 2013.     On April 4, 2013, the jury returned a verdict of guilty on the

charge of indecent assault. Walters was sentenced, on April 11, 2013, to a

term of 16 to 32 months’ imprisonment.3 He filed post-sentence motions,

which were denied by the trial court on August 12, 2013. This timely appeal

followed.4

       Although Walters lists 13 issues in the Statement of Questions

Involved section of his brief, we have paraphrased and consolidated the

issues into the following eight claims:



____________________________________________


3
  Following the entry of his first plea of nolo contendre in July of 2010, the
trial court directed Walters to undergo an assessment by the Sexual
Offenders Assessment Board (SOAB) to determine whether he met the
classification as sexually violent predator (SVP) under the former Megan’s
Law, 42 Pa.C.S. § 9791 et seq. The SOAB investigator determined that
Walters did not meet the criteria for classification as an SVP. Effective
December 20, 2012, the Sex Offender Registration and Notification Act
(SORNA) replaced Megan’s Law, and applies to Walters’ conviction in this
case. See 42 Pa.C.S. 9799.13(1) (SORNA applies to “an individual who, on
or after the effective date of this section, is convicted of a sexually violent
offense[.]”); § 9799.12 (defining “sexually violent offense” as Tier I, II, or III
offense listed in § 9799.14); § 9799.14(d)(8) (classifying conviction of 18
Pa.C.S. § 3126(a)(7) as Tier III sexual offense). Neither Walters, nor the
Commonwealth, has raised a claim concerning Walters’ registration
requirements under SORNA.
4
  On August 30, 2013, the trial court ordered Walters to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Walters complied with the trial court’s directive and filed a concise statement
on September 20, 2013.




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        1) Whether the trial court erred in denying Walters’ request to read

into evidence the prior testimony of two unavailable defense witnesses, or to

issue a bench warrant for their appearance?

        2) Whether the trial court erred in denying Walters’ request for a

mistrial when, on the second day of trial, Walters was arrested on a bench

warrant for another matter outside the courthouse, and in the view of the

jury?

        3) Whether the trial court erred in precluding Walters from cross-

examining the victim’s mother regarding the content of letters she sent to

him that evidenced her premeditated plan to create false allegations of a

sexual assault?

        4) Whether the trial court erred in precluding Walters from testifying

about another incident that provided a motive for the victim’s family to

create false allegations of a sexual assault?

        5) Whether the trial court erred in failing to instruct the jury that it

may draw a negative inference from the victim’s failure to make a prompt

complaint?

        6) Whether the evidence was insufficient to support the verdict?

        7) Whether the verdict was against the weight of the evidence?

        8) Whether the sentence imposed, outside the standard range of the

sentencing guidelines, was significantly higher than his rehabilitative needs?


See Walters’ Brief at 4-5.


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      First, Walters challenges the trial court’s refusal to allow him to read

into evidence the prior hearing testimony of two unavailable defense

witnesses.   Specifically, Walters contends he made a good faith effort to

locate the missing witnesses, another former girlfriend and her daughter,

which included serving them both with a subpoena before trial. Further, he

avers that although his attorney declined the trial court’s offer to issue a

bench warrant for their arrest, “[d]efense counsel reasonably believed that a

warrant was unnecessary to produce the witnesses[,]” whom she believed

were at a hospital with a relative, because such actions would only

antagonize them.     Walters’ Brief at 13.     Lastly, Walters claims the trial

court’s refusal to admit their prior testimony was not harmless error since

their testimony “directly contradicts that of the alleged victim[.]” Id. at 14.

      We begin with our well-established standard of review:

      The admission of evidence is solely within the discretion of the
      trial court, and a trial court's evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion.

Commonwealth v. Reid, ___ A.3d ___, 2014 WL 4097637, *15 (Pa. Aug.

20, 2014). “[A]n abuse of discretion is not a mere error in judgment, but,

rather,   involves     bias,   ill   will,   partiality,   prejudice,   manifest

unreasonableness, or misapplication of law.” Commonwealth v. Davis, 17

A.3d 390, 395 (Pa. Super. 2011) (quotation omitted), appeal denied, 29

A.3d 371 (Pa. 2011).

      In certain limited circumstances, the prior trial testimony of a witness

may be admissible in a subsequent trial for the same crime.

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       Whenever any person has been examined as a witness, either
       for the Commonwealth or for the defense, in any criminal
       proceeding conducted in or before a court of record, and the
       defendant has been present and has had an opportunity to
       examine or cross-examine, if such witness afterwards dies, or is
       out of the jurisdiction so that he cannot be effectively served
       with a subpoena, or if he cannot be found, or if he becomes
       incompetent to testify for any legally sufficient reason properly
       proven, notes of his examination shall be competent evidence
       upon a subsequent trial of the same criminal issue. For the
       purpose of contradicting a witness the testimony given by him in
       another or in a former proceeding may be orally proved.

42 Pa.C.S. § 5917 (emphasis supplied). “A witness ‘cannot be found,’ within

the meaning of [Section 5917] only if a good-faith effort to locate the

witness and compel his attendance at trial has failed.” Commonwealth v.

Blair, 331 A.2d 213, 214 (Pa. 1975). “It is within the discretion of the trial

court to determine what constitutes a good faith effort to locate a missing

witness[.]”     Commonwealth v. Lebo, 795 A.2d 987, 990 (Pa. Super.

2002).

       The underlying facts pertaining to this issue were aptly summarized by

the trial court as follows:

             In the morning of the second day of trial, after the
       Commonwealth rested, Trial Counsel advised the Court that two
       witnesses who had been subpoenaed had failed to appear,
       apparently because of an accident involving the son of one of the
       witnesses.[5] Trial Counsel then asked for a recess until the next
____________________________________________


5
  The proposed witnesses were Walters’ former girlfriend, Debra Fowler, and
her 16-year-old daughter, Mary Jo Hltaky. At Walters’ first trial, Fowler and
Hltaky testified that they also spent the weekend at the home when the
purported abuse took place, and nothing like what the victim described had
occurred. See N.T. 12/5-7/2012, at 84-93 (testimony of Fowler); 114-117
(testimony by Hltaky). This testimony would have contradicted that of the
(Footnote Continued Next Page)


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      day. The Court advised Trial Counsel that she could ask for
      bench warrants to be issued to assure the appearance of the
      witnesses. The Court further advised Trial Counsel that if she
      did not seek such relief, it would not be granted the following
      day, to which Trial Counsel replied that she understood. The
      Court then declared a recess and asked that some verification
      from the hospital be provided.

            When court reconvened at 10:30 A.M., Trial Counsel
      advised the Court that she was unable to verify, from the
      hospital, anything confirming the whereabouts of the witness,
      only text messages from her husband.[6] Trial Counsel was then
      again advised that a request for a bench warrant would not be
      granted when trial reconvened the next day, and Trial Counsel
      answered she understood and that she had discussed the issue
      with her “client and we believe that based on the circumstances
      of their unavailability today, we would not like the Court to issue
      a bench warrant.” The trial was then recessed at 10:40 A.M. for
      the day.

            When trial resumed the following day, Trial Counsel
      advised the Court that the witnesses had again failed to appear,
      and offered no explanation.         Although she offered no
      explanation, Trial Counsel asked the Court to find that the
      witnesses were unavailable and to read prior testimony to the
      jury. The Court then, under the circumstances presented, found
                       _______________________
(Footnote Continued)

victim, who denied Fowler and Hltaky stayed at the house that same
weekend. N.T., 4/2-4/2013, at 17, 35.

      Defense counsel informed the trial court that she had been notified
that Fowler’s son (Hltaky’s brother) had been in a car accident the night
before the first day of trial, and was transferred the previous night to a
hospital in Pittsburgh for emergency surgery. Id. at 103-104.
6
  Counsel stated that she received text messages from Fowler’s husband
confirming that Fowler’s son underwent surgery at 6:30 that morning, and
that Fowler did not have her cell phone with her at the hospital. Id. at 106-
107. The messages also indicated that her husband “expects her to be
home today, and available [to testify] tomorrow.” Id. at 107. Counsel was
unable to provide the trial court with the name of the hospital where
Fowler’s son was being treated. Id. at 108.



                                            -7-
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       that the witnesses were not unavailable[ and denied counsel’s
       request to admit their prior testimony into evidence].

Trial Court Opinion, 10/25/2013, at 9-10 (record citations omitted).

       Our review of the record, and in particular the circumstances

surrounding the witnesses’ failure to appear, reveals no abuse of discretion

on the part of the trial court in denying Walters’ request to read into the

record the witnesses’ prior testimony. The trial court provided Walters with

ample opportunity to produce the witnesses or deliver some proof of their

legitimate unavailability.       He failed to do either.   Indeed, Walters declined

the trial court’s offer to issue a bench warrant for the witnesses’ arrest the

first day they failed to appear, and he neglected to obtain any proof that the

witnesses were where they claimed to be, in a hospital caring for their

injured son/brother. Therefore, Walters has not demonstrated that, despite

his good faith efforts, the witnesses could not be found. See 42 Pa.C.S. §

5917; Blair, supra. See also Commonwealth v. Connors, 458 A.2d 190,

195 (Pa. Super. 1981) (subpoenaed witness who refused to testify because

she was scared was not “unavailable” for purposes of Section 5917; “counsel

delayed too long the ‘drastic steps’ which would have compelled her

attendance” such as issuance of a bench warrant). Finding no abuse of

discretion on the part of the trial court, we conclude Walters is entitled to no

relief on his first issue.7
____________________________________________


7
 We agree with Walters’ contention that the proposed testimony of Fowler
and Hltaky “could have caused jurors to have reasonable doubt as to [his]
(Footnote Continued Next Page)


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      Next, Walters argues the trial court erred in refusing to grant him a

mistrial.   Specifically, he contends that, as he was exiting the courthouse

after the second day of trial, he was arrested by a state constable on a

bench warrant for a separate matter, and escorted into a marked vehicle, all

in full view of the jury. Walters argues this event, witnessed by the jury,

was “inherently prejudicial,” and, therefore, the trial court erred when it

refused his request for a mistrial. Walters’ Brief at 15.

      The decision whether to grant a motion for a mistrial is within the trial

court’s discretion.     Commonwealth v. Tejeda, 834 A.2d 619 (Pa. Super.

2003).

       “[A] mistrial [upon motion of one of the parties] is required only
      when an incident is of such a nature that its unavoidable effect is
      to deprive the appellant of a fair and impartial trial.” It is within
      the trial court’s discretion to determine whether a defendant was
      prejudiced by the incident that is the basis of a motion for a
      mistrial.

Id. at 623 (citations and footnote omitted). Accordingly, we review the trial

court’s ruling for an abuse of discretion. Id.

      The trial court explained the basis for its ruling as follows:

            The Motion for Mistrial was made by counsel, who
      contended that she was told by [Walters] that he was
      approached by a Pennsylvania State Constable just inside the
      Courthouse door and placed under arrest in the presence of
      Jurors. It was counsel’s position that although she did not know
                       _______________________
(Footnote Continued)

guilt.” Walters’ Brief at 13. Nevertheless, Walters’ remedy, if any, lies in an
ineffectiveness of counsel claim in a collateral proceeding.




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         if anyone saw what happened, there was [a] “reasonable
         probability that they did […].” Refusing to make assumptions,
         the Court stated that an inquiry could be made of the Jurors as
         to whether they observed anything involving [Walters]. After
         consulting with [Walters], counsel requested that the Court
         make inquiry of the Jurors. The Court then made inquiry of the
         Jurors and received a negative response as to all Jurors. Thus,
         this issue is without merit.

Trial Court Opinion, 10/25/2013, at 11-12 (record citations omitted).

         Our review of the record supports the trial court’s ruling.       When

confronted with the potentially prejudicial event, the court polled the jury,

asking them:       “Did any of you witness anything yesterday as you were

leaving the Courthouse regarding the Defendant in this case, David Walters?

If so, please raise your hand.” N.T., 4/2-4/2013, at 117. After receiving no

response, the court denied the motion for a mistrial.        Therefore, because

Walters was unable to demonstrate that any of the jurors actually witnessed

the potentially prejudicial event, we agree with the trial court that a mistrial

was unwarranted.       See Commonwealth v. Valerio, 712 A.2d 301, 302

(Pa. Super. 1998) (“Where a defendant was possibly viewed by the jury

panel while handcuffed in the hall outside of the courtroom, but no evidence

was presented by the defendant that there was any prejudice or that any

juror actually saw him, the trial court properly refused a request for

mistrial.”), appeal denied, 732 A.2d 1210 (Pa. 1998). Accordingly, this issue

fails.

         In his third claim, Walters contends the trial court erred in precluding

his cross-examination of the victim’s mother regarding the content of letters



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she sent to him, which, he claims are evidence of her premeditated plan to

create false allegations of a sexual assault.    Specifically, Walters asserts

that, in the letters, the victim’s mother “threatens [him] that if he does not

return her property, she will file reports of sexual assault against him.”

Walters’ Brief at 15. He also claims the letters state that the victim’s mother

has her children in “‘play therapy’ preparing them to meet with the District

Attorney and testify against [Walters].” Id. Walters argues the content of

the letters was “highly relevant” and should have been presented to the jury

so that they could have drawn their own conclusion as to whether or not the

letters demonstrated a “pre-meditated plan on the part of the alleged

victim’s mother[.]” Id. at 16.

      As we noted supra, “[t]he admission of evidence is solely within the

discretion of the trial court, and a trial court’s evidentiary rulings will be

reversed on appeal only upon an abuse of that discretion.” Reid, supra, at

*15. Similarly, “[t]he scope of cross-examination is within the trial court’s

discretion, and this Court cannot disturb the trial court’s determinations

absent a clear abuse of discretion or an error of law.” Commonwealth v.

Ramtahal, 33 A.3d 602, 609 (Pa. 2011).

      In the present case, the trial court excluded the letters because it

determined they were not relevant. Trial Court Opinion, 10/25/2013, at 14.

The Pennsylvania Rules of Evidence define evidence as relevant if: “(a) it

has any tendency to make a fact more or less probable than it would be

without the evidence; and (b) the fact is of consequence in determining the

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action.” Pa.R.E. 401. Generally, all relevant evidence is admissible at trial.

Pa.R.E. 402.

       Here, Walters sought to question the victim’s mother about two letters

she purportedly wrote to Walters in the summer of 2006, almost a year

before the incident in question. The trial court described the first letter as

follows:

       I was handed an envelope which indicates a postage date of 18
       July 2006. And it says I talked to the DA on Monday the 17th.
       She has to talk to [the victim and her two sisters]. She also has
       to talk with [the victim’s nephew].

N.T., 4/2-4/2013, at 76.8        The second letter, dated August 28, 2006, and

addressed to a “Mr. Hawkins,” contained the following statements:

       [A]sk Dave why I went to the DA. He knows. He is also in a lot
       of trouble. My kids are in play therapy so they can testify.
       Dave’s f-u-c-k-e-d. Hope he likes his little cell.

Id. at 78-79.      “Dave” is apparently a reference to the defendant, David

Walters.

       After considering the letters and offers of proof, the trial court

determined that neither letter was relevant to the issues at trial.        With

regard to the first letter, the court found that it was not relevant because it
____________________________________________


8
  The victim’s oldest sister, who was 23 years old at the time of trial, had a
son in 2006. See N.T., 4/2-4/2013, at 60. Both she and her son lived with
the victim, her mother, and their other sister at the time of the sexual
assault.




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referred to all of the children in the victim’s home. However, only the victim

and one sister were involved in the incident at issue.        See id. at 78.

Further, with regard to the second letter, the trial court did not believe it

supported Walters’ theory that “there was a premeditated plan by the

victim’s mother to bring criminal charges.” Trial Court Opinion, 10/25/2013,

at 14 (emphasis supplied).

         We detect no abuse of discretion on the part of the trial court in

precluding Walters from cross-examining the victim’s mother regarding the

content of the two letters at issue. Neither letter tends to make it “more or

less probable” that the victim’s mother fabricated allegations of abuse in

the present case. Pa.R.E. 401. Therefore, we agree with the determination

of the trial court that the evidence was not relevant, and Walters’ third claim

fails.

         Walters next argues the trial court erred in precluding his testimony

regarding an incident with the victim’s grandmother that provided a motive

for creating false allegations against him. Specifically, he contends the trial

court erred when it refused to allow him to testify that he wrongfully

withdrew funds from the victim’s grandmother’s bank account, using the

grandmother’s ATM card that she provided to him for another purpose. In

his brief, Walters summarizes the facts as follows:

         [Walters] had been commissioned by the alleged victim’s
         grandmother to remodel her bathroom in her home, shortly after
         [the] weekend visit with the alleged victim. The grandmother
         gave [Walters] her ATM card, with the understanding that [he]
         was going to use it [to] purchase materials for the remodeling

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      job. Instead, [Walters] withdrew cash and kept the same.
      [Walters] was subsequently charged with theft, he pled guilty to
      the charges, and admitted to taking the money. As soon as he
      made these withdraw[als] from the grandmother’s bank account,
      the alleged victim ‘suddenly’ after weeks had passed, reported
      the incident of ‘alleged indecent assault’.

Walters’ Brief at 17.   He asserts that this testimony was admissible “in order

to establish a motive by the alleged victim, specifically, revenge, for

[Walters] taking this money.” Id.

      Our review of the record reveals that Walters did, indeed, testify at

trial regarding the incident with the victim’s grandmother, the resultant

criminal charges, and the proximity of that event to the report of abuse.

See N.T., 4/2-4/2013, at 136-140.       Accordingly, no relief is warranted on

this claim.

      Next, Walters challenges the trial court’s refusal to provide the jury

with a “prompt complaint” instruction, that is, an instruction that the jury

may draw a negative inference from the fact that the victim failed to make a

prompt complaint of the alleged sexual abuse. He argues that, in refusing

the instruction, the trial court ignored certain facts that weighed in favor of

providing a “prompt complaint” instruction.

      Our review of this issue is guided by the following principles:

         In reviewing a challenge to the trial court’s refusal to give
         a specific jury instruction, it is the function of this Court to
         determine whether the record supports the trial court’s
         decision. In examining the propriety of the instructions a
         trial court presents to a jury, our scope of review is to
         determine whether the trial court committed a clear abuse
         of discretion or an error of law which controlled the
         outcome of the case. A jury charge will be deemed


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        erroneous only if the charge as a whole is inadequate, not
        clear or has a tendency to mislead or confuse, rather than
        clarify, a material issue. A charge is considered adequate
        unless the jury was palpably misled by what the trial judge
        said or there is an omission which is tantamount to
        fundamental error. Consequently, the trial court has wide
        discretion in fashioning jury instructions. The trial court is
        not required to give every charge that is requested by the
        parties and its refusal to give a requested charge does not
        require reversal unless the Appellant was prejudiced by
        that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)

(quotation omitted).

     The foundation for a prompt complaint instruction is codified at 18

Pa.C.S. § 3105, which provides, that while the “[p]rompt reporting” of a

sexual assault is not required, a defendant may “introduc[e] evidence of the

complainant’s failure to promptly report the crime if such evidence would be

admissible pursuant to the rules of evidence.” Indeed,

     [t]he premise for the prompt complaint instruction is that a
     victim of a sexual assault would reveal at the first available
     opportunity that an assault occurred. See id. The instruction
     permits a jury to call into question a complainant’s credibility
     when he or she did not complain at the first available
     opportunity. See Commonwealth v. Prince, 719 A.2d 1086,
     1091 (Pa.Super.1998). However, there is no policy in our
     jurisprudence that the instruction be given in every case.

      “The propriety of a prompt complaint instruction is determined
     on a case-by-case basis pursuant to a subjective standard based
     upon the age and condition of the victim.” Thomas, 904 A.2d at
     970. For instance, “[w]here an assault is of such a nature that
     the minor victim may not have appreciated the offensive nature
     of the conduct, the lack of a prompt complaint would not
     necessarily justify an inference of fabrication.” Commonwealth
     v. Jones, 449 Pa.Super. 58, 672 A.2d 1353, 1357 n. 2 (1996).



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Sandusky, supra, 77 A.3d at 667.

      Walters argues the trial court ignored certain facts when it determined

that a prompt complaint instruction was not warranted in the present case.

Specifically, he contends the trial court disregarded the fact that (1) the

victim had access to a telephone while she was staying at Walters’ home and

actually spoke to her mother that weekend but did not tell her mother about

the assault; (2) there were other adults staying at the home that weekend,

but the victim failed to report the assault to them; (3) the victim did not

report the assault to her grandmother when Walters returned her to the

grandmother’s house at the end of the weekend; and (4) the allegations did

not come to light until after Walters unlawfully withdrew funds from the

grandmother’s bank account. Walters’ Brief at 19. Walters concludes “[a]ll

of these factors, ignored by the Trial Court … have created reversible error.”

Id. at 19-20.

      The trial court opined, however, that its review of the relevant facts

concerning the proposed “prompt complaint” charge led to its conclusion

that the charge was not warranted. The court explained:

            In making this ruling, we looked to the age of the victim,
      which at the time of the crime, was ten; that the victim told the
      daughter of [Walters’] girlfriend later that same day; that the
      victim told her mother two weeks later; that before telling her
      mother, the victim told her sister; that the victim did not tell her
      mother right away because she was scared; and that [Walters]
      who had custodial control over the victim, and was a father
      figure to her, asked her “not to tell anybody and [she] told him
      [she] wouldn’t.”

Trial Court Opinion, 10/25/2013, at 17-18.

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       We detect no abuse of discretion on the part of the trial court.      As

stated above, when determining the propriety of a prompt complaint charge,

the trial court must consider “the age and condition of the victim[.]”

Sandusky, supra, 77 A.3d at 667 (citation omitted). Here, the trial court

considered the fact that the ten year old victim looked to her assailant as a

father figure and was staying at his house for the weekend when the abuse

occurred. While she did not tell an adult about the assault until two weeks

later, she did tell a friend the day after it occurred, and one of her sisters

sometime later. Therefore, no relief is warranted on this claim.

       In his sixth issue, Walters challenges the sufficiency of the evidence

supporting his conviction.    Specifically, he contends “[t]here is no direct

evidence, or even circumstantial evidence, that these allegations occurred.”

Walters’ Brief at 21.     In support of his argument, he emphasizes the

following:

       [T]here was no report made of the incident for two weeks after
       the alleged incident. There was no physical evidence that the
       incident occurred. None of the Commonwealth’s witnesses could
       give first hand testimony as to a date or location of the incident.

 Id.

       Our review of a challenge to the sufficiency of the evidence is well-

settled:

       We must determine whether the evidence admitted at trial, and
       all reasonable inferences drawn therefrom, when viewed in a
       light most favorable to the Commonwealth as verdict winner,
       support the conviction beyond a reasonable doubt. Where there
       is sufficient evidence to enable the trier of fact to find every


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        element of the crime has been established beyond a reasonable
        doubt, the sufficiency of the evidence claim must fail.

              The evidence established at trial need not preclude every
        possibility of innocence and the fact-finder is free to believe all,
        part, or none of the evidence presented. It is not within the
        province of this Court to re-weigh the evidence and substitute
        our judgment for that of the fact-finder. The Commonwealth's
        burden may be met by wholly circumstantial evidence and “any
        doubt about the defendant’s guilt is to be resolved by the fact
        finder unless the evidence is so weak and inconclusive that, as a
        matter of law, no probability of fact can be drawn from the
        combined circumstances.”

Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010) (internal

citations omitted), appeal denied, 14 A.3d 826 (Pa. 2011).

        When, as here, the defendant is charged with indecent assault of a

victim less than 13 years of age, the Commonwealth must prove the

following:

        A person is guilty of indecent assault if the person has indecent
        contact with the complainant, causes the complainant to have
        indecent contact with the person or intentionally causes the
        complainant to come into contact with seminal fluid, urine or
        feces for the purpose of arousing sexual desire in the person or
        the complainant and …

        (7) the complainant is less than 13 years of age[.]

18 Pa.C.S. § 3126(a)(7). “Indecent contact” is defined in the Crimes Code

as “[a]ny touching of the sexual or other intimate parts of the person for the

purpose of arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. §

3101.

        Our review of the record reveals the victim testified that sometime

during the springtime when she was in fifth grade, Walters arranged for her

and her sister to spend the weekend with him at a home in Uniontown,

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Fayette County. N.T., 4/2-4/2013, at 14, 16, 34. This was the only time

the victim visited Walters for the weekend. Id. at 31. She testified that in

the middle of the night, Walters woke her and put his hand inside her

underwear on her vagina. Id. at 18, 21. He then took her hand, put it on

his penis, and moved it up and down. Id. at 21. This testimony, if deemed

credible by the jury, was sufficient to support a charge of indecent assault.

Indeed, it is well-established that “[t]he uncorroborated testimony of a

sexual assault victim, if believed by the trier of fact, is sufficient to convict a

defendant.”    Commonwealth v. McDonough, 96 A.3d 1067, 1069 (Pa.

Super. 2014) (citation omitted).

      Furthermore, while the victim could not recall the specific date or

location of the weekend visit, Walters acknowledged that he arranged for the

victim and her sister to stay at his house the weekend of April 20-22, 2007.

N.T., 4/2-4/2013, at 127-128. Moreover, he testified that that was the only

time the victim stayed with him. Id. at 127. Therefore, Walters’ challenge

to the sufficiency of the evidence fails.

      Walters’ penultimate claim asserts that the verdict is against the

weight of the evidence.     Appellate review of a weight of the evidence claim

is also well-established:

      A weight of the evidence claim concedes that the evidence is
      sufficient to sustain the verdict, but seeks a new trial on the
      ground that the evidence was so one-sided or so weighted in
      favor of acquittal that a guilty verdict shocks one’s sense of
      justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20, 744
      A.2d 745, 751–52 (2000); Commonwealth v. Champney, 574
      Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review, an

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      appellate court does not substitute its judgment for the finder of
      fact and consider the underlying question of whether the verdict
      is against the weight of the evidence, but, rather, determines
      only whether the trial court abused its discretion in making its
      determination. Widmer, 560 Pa. at 321–22, 744 A.2d at 753;
      Champney, 574 Pa. at 444, 832 A.2d at 408.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S.Ct. 1792 (2014).

      Walters’ argument that the verdict is against the weight of the

evidence is primarily a restatement of his prior claims. See Walters’ Brief at

24-27 (contending that (1) “he is entitled to a new trial because he was not

given the opportunity to have the testimony of … two of his key,

eyewitnesses, presented to the jury[;]” (2) he was prejudiced when he was

arrested, on an unrelated matter, in the view of the jury; and (3) he was not

permitted to enter into evidence letters written by the victim’s mother which

supported his defense of fabrication). The only “new” claim is his assertion

that the jury could not determine whether the victim was less than 13 years

of age at the time of the sexual assault because the victim “could not

remember when these allegations took place[,]”.            Walters’ Brief at 23.

However, as noted supra, Walters acknowledged that the victim and her

sister spent the weekend with him only one time, from April 20-22, 2007,

when the victim would have been ten years’ old. See N.T., 4/2-4/2013, at

10 (testimony regarding victim’s date of birth).

      The trial court disposed of this claim as follows:

      We have set forth the testimony offered at trial, supra, and will
      not re-state it here. The only conflict in the testimony is the
      denial of [Walters] that he committed the acts testified to by the

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      victim. While it is correct that the victim, who was ten years of
      age when the offense was committed, could not remember the
      exact date, she did testify that it was during the spring, and
      [Walters] told Trooper Bell that he had custody of the child
      during the weekend of April 20, 2007. If children are to be
      protected by the Criminal Justice System, a certain degree of
      imprecision concerning times and dates must be tolerated.
      Commonwealth v. Groff, 584 A.2d 1237, 1242 (Pa. Super.
      1988). The verdict rendered by the jury was not contrary to the
      evidence it received, and does not shock one’s sense of justice.
      Hence, this issue is without merit.

Trial Court Opinion, 10/25/2013, at 23.          We find no abuse of discretion.

Accordingly, Walters is entitled to no relief.

      Lastly, Walters challenges his sentence, arguing there was “no

justification” for sentencing him outside the standard range of the

sentencing guidelines.     Walters’ Brief at 28.      Further, he asserts “[t]he

amount of time that this offense has been pending against [him] has been

grueling and punishing[,]” and the sentence imposed was “significantly

higher than [his] rehabilitative needs.” Id. at 28-29.

      Preliminarily, we note that, contrary to Walters’ claim, the sentence

imposed by the trial court was within the standard range of the sentencing

guidelines. The indecent assault conviction carried an offense gravity score

of five, and Walters had a prior record score of four.         See 204 Pa.Code

303.15; Guideline Sentence Form, 4/11/2013. Accordingly, the Sentencing

Guidelines called for a minimum standard range sentence of nine to 16

months’ imprisonment. See 204 Pa.Code § 303.16(a); Guideline Sentence

Form, 4/11/2013.       Therefore, Walters’ sentence of 16 to 32 months’

imprisonment was within the standard range of the guidelines.

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       “Sentencing is a matter vested in the sound discretion of the judge,

and will not be disturbed on appeal absent a manifest abuse of discretion.”

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).            Where, as here, a

defendant seeks to challenge the discretionary aspects of his sentence, he

must set forth a substantial question “that the sentence imposed is either

inconsistent with a specific provision of the Sentencing Code or is contrary to

the    fundamental        norms       underlying   the   sentencing   process.”9

Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009),

appeal denied, 987 A.2d 161 (Pa. 2009) (citation omitted). This Court will

not accept “bald assertions of sentencing errors[,]” but rather the defendant

“must articulate reasons the sentencing court’s actions violated the

sentencing code.”       Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010). Moreover,

       [w]here the sentencing court had the benefit of a presentence
       investigation report (“PSI”), we can assume the sentencing court
____________________________________________


9
  We note that Walters has complied with the procedural requirements for
appeal by filing a timely notice of appeal, and challenging his sentence in a
post-sentence motion before the trial court. Commonwealth v. Dunphy,
20 A.3d 1215, 1220 (Pa. Super. 2011). Although he neglected to include in
his appellate brief the requisite statement pursuant to Pa.R.A.P. 2119(f),
setting forth the reasons relied upon for allowance of appeal, the
Commonwealth did not object to this omission. Therefore, we may overlook
the defect. Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super.
2003).




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      “was aware of relevant information regarding the defendant’s
      character and weighed those considerations along with
      mitigating statutory factors.”   Further, where a sentence is
      within the standard range of the guidelines, Pennsylvania law
      views the sentence as appropriate under the Sentencing Code.

Id. at 171 (citations omitted).

      Here, the trial court had the benefit of a PSI, which it specifically

acknowledged it had reviewed prior to the sentencing hearing.             N.T.,

4/11/2013, at 5. The court also stated that it had considered the gravity of

the offense, as well as Walters’ rehabilitative needs. Id. at 4-5. However,

the court ultimately concluded that “a lesser sentence would depreciate the

seriousness of this crime.”   N.T., 4/11/2013, at 5.     Walters has provided

only a “bald assertion” that the trial court’s standard range sentence was

unreasonable.    Moury, supra.     Upon our review, we detect no abuse of

discretion on the part of the trial court, and Walters is, accordingly, entitled

to no relief on this claim.

      Having found none Walters’ claims raised on appeal entitle him to

relief, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2014


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