J.S36043/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                           Appellee         :
                                            :
                    v.                      :
                                            :
                                            :
MICHAEL PIPER,                              :
                                            :
                           Appellant        :     No. 3218 EDA 2013


             Appeal from the Judgment of Sentence August 1, 2013
             In the Court of Common Pleas of Northampton County
               Criminal Division No(s).: CP-48-CR-0003958-2011

BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 20, 2015

        Appellant, Michael Piper, appeals from the judgment of sentence1

entered in the Northampton County Court of Common Pleas following a jury

trial. Appellant was found guilty of rape by forcible compulsion, 2 statutory

sexual assault,3 sexual assault,4 indecent assault of a person less than 13



*
    Former Justice specially assigned to the Superior Court.
1
  Appellant purported to appeal from the denial of post-sentence motions.
“[A] direct appeal in a criminal proceeding lies from the judgment of
sentence.” Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa.
Super. 2007). Accordingly, we have amended the caption.
2
    18 Pa.C.S. § 3121(a)(1).
3
    18 Pa.C.S. § 3122.1.
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years of age,5 endangering the welfare of children,6 corruption of minors,7

and incest8 for the sexual abuse of his minor daughter (“Victim”). Appellant

contends the court erred in (1) admitting certain testimony, (2) seating two

jurors, (3) instructing the jury he admitted to sexually assaulting his

stepdaughter, (4) not merging sentences and (5) imposing consecutive,

aggravated-range sentences. We affirm.

        On March 24, 2011, Victim, who was seventeen years old at that time,

was interviewed by police and reported that Appellant sexually abused her

when she was between twelve and fourteen years old.         On October 26,

2011, the Commonwealth filed a criminal complaint alleging Appellant

abused Victim on numerous occasions when she stayed in Appellant’s home

and charging him with the above-stated offenses.

        The trial court summarized the remaining procedural history of this

case in its October 17, 2013 memorandum and order denying Appellant’s

post-sentence motions:

              On June 4, 2012, [Appellant] was found guilty on all
           charges. The [c]ourt ordered a presentence investigatory

4
    18 Pa.C.S. § 3124.1.
5
    18 Pa.C.S. § 3126(a)(7).
6
    18 Pa.C.S. § 4304(a).
7
    18 Pa.C.S. § 6301(a)(1).
8
    18 Pa.C.S. § 4302.




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         report, a psychosexual evaluation of [Appellant] and a
         sexual offender assessment to be conducted by the
         Pennsylvania Sexual Offender Assessment Board.

                                  *       *   *

             [On August 1, 2013, u]pon consideration of the
         evidence adduced at [a sexually violent predator (“SVP”)]
         hearing, the [c]ourt found [Appellant] to be a [SVP] as
         defined by statute.     Upon the conclusion of the SVP
         hearing, the [c]ourt proceeded to the sentencing hearing.
         On sentencing, the Commonwealth presented [Appellant’s]
         former wife [Victim’s] mother, [(“Mother”)], who read a
         letter prepared by [Appellant’s] step-daughter, [Sister9]
         who testified against him at trial. . . . The [c]ourt made
         each sentence consecutive . . . for an aggregate term of
         351-702 months with credit for time served.            Having
         sentenced [Appellant] in the aggravated range on all
         charges, the [c]ourt noted on the record the factors
         leading to that decision, inclusive of the fact that: [Victim]
         was placed in his care and trust by virtue of his parental
         relationship with her; the vulnerability of [Victim] due to
         her youth; the fact that [Appellant] was a repeat criminal
         offender; the fact of his multiple convictions in connection
         with the alleged abuse of the child; and the apparent lack
         of remorse for his crimes.

Trial Ct. Op., 10/17/13, at 1, 3-4 (citations to record omitted).

      Appellant filed post-sentence motions which were denied. This timely

appeal   followed.    Appellant   filed   a   court-ordered   Pa.R.A.P.   1925(b)

statement of errors complained of on appeal and the trial court incorporated

its October 17th memorandum and order as its Pa.R.A.P. 1925(a) opinion.

      Appellant raises the following issues for our review:


9
 Appellant’s counsel initially objected to the reading of Sister’s letter, but
withdrew his objection. N.T., 6/6/12, at 220-21.




                                      -3-
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             [1.] Whether the trial court erred in admitting or failing
          to exclude the testimony of witness [A.M. (“Friend”)] and
          witness [Sister] because the testimony was irrelevant and,
          alternatively, its probative value did not outweigh its
          prejudicial effect?

             [2.] Whether the trial court erred by erroneously
          instructing the jury that [Appellant] “admitted to sexually
          assaulting his stepdaughter” [Sister] and failing to give a
          proper corrective instruction?

             [3.] Whether the trial court erred in seating jurors 16
          and 21 and did not [sic] granting a new trial on these
          grounds?

             [4.] Whether the trial court erred in not merging the
          sentences for rape and sexual assault and by not merging
          the sentences for statutory assault and indecent assault?

             [5.] Whether the trial court erred by imposing
          aggravated range consecutive sentences which, when
          aggregated, resulted in a manifestly excessive and unjust
          sentence?

Appellant’s Brief at 7.10

       Appellant first contends the trial court erred in overruling his

objections    to   the   “prior   bad   acts”   testimony   presented     by   the

Commonwealth. By way of background, the Commonwealth called Sister11


10
     For ease of disposition, we have reordered the questions presented.
11
    As a prefatory matter, we consider the Commonwealth’s claim that
Appellant has waived any challenge to the testimony of [Sister] because at
trial Appellant did not object to her testimony. Instantly, Appellant filed a
motion in limine to exclude testimony of his prior bad acts including
statements by [Sister] and [Friend]. Therefore, we decline to find the issue
as to the admissibility of [Sister’s] testimony waived. See Commonwealth
v. Stokes, 78 A.3d 644, 652 (Pa. Super. 2013), appeal denied, 89 A.3d 661
(Pa. 2014); Pa.R.E. 103.



                                        -4-
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and Friend to testify at trial.   He contends the testimony of these two

witnesses “did little more than to suggest a criminal propensity for the

crimes with which he was charged and w[as] not admissible for any of the

recognized exceptions.”   Id. at 14.   Appellant avers that the testimony of

the two witnesses “should have been excluded because it did not make a

fact of consequence to the trial more or less probable and was highly

prejudicial.” Id. He contends the testimony of Friend, specifically, that she

“felt ‘uncomfortable’, how [Appellant] wanted to hold her hand, and asked

her about her virginity[,]” had no proper evidentiary purpose. Id. Appellant

claims “[t]he use of evidence produced by these two witnesses was designed

to do nothing more than increase the jury’s aversion to [him], to increase

the ‘ick’ or ‘creepiness’ factor as it were or to show that [he] has a

propensity to commit crimes . . . .” Id. at. 15. We hold no relief is due.

      This Court has stated:

            Rulings on the admissibility of evidence are within the
         discretion of the trial judge, and such rulings form no basis
         for a grant of appellate relief absent an abuse of
         discretion. While it is true that evidence of prior crimes
         and bad acts is generally inadmissible if offered for the
         sole purpose of demonstrating the defendant’s bad
         character or criminal propensity, the same evidence may
         be admissible where relevant for another purpose.
         Examples of other such relevant purposes include showing
         the defendant’s motive in committing the crime on trial,
         the absence of mistake or accident, a common scheme or
         design, or to establish identity. . . . [T]he evidence may
         also be admitted where the acts were part of a chain
         or sequence of events that formed the history of the
         case and were part of its natural development. Of
         course, in addition to the relevance requirement, any


                                     -5-
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        ruling on the admissibility of evidence is subject to the
        probative value/prejudicial effect balancing that attends all
        evidentiary rulings.

Commonwealth v. Green, 76 A.3d 575, 583 (Pa. Super. 2013) (citation

omitted and emphases added), appeal denied, 87 A.3d 318 (Pa. 2014).

     The Pennsylvania Rules of Evidence12 define relevant evidence as

“having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Pa.R.E. 401. “All relevant

evidence is admissible[.]”   Pa.R.E. 402.    Rule 403 provides: “Although

relevant, evidence may be excluded if its probative value is outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”     Pa.R.E. 403.   Rule 404 provides:

“Evidence of other crimes, wrongs, or acts may be admitted for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity or absence of mistake or accident.” Pa.R.E. 404(b)(2).

           The inquiry into admissibility of “other crimes” evidence
        does not end with confirming a permissible 404(b) purpose
        such as proving identity, but proceeds to ask whether the
        probative value of the “other crimes” evidence outweighs
        its presumptive prejudice. In conducting the probative
        value/prejudice balancing test, courts must consider
        factors such as the strength of the “other crimes”
        evidence, the similarities between the crimes, the time

12
   We note the rules were amended January 17, 2013, subsequent to the
trial in this case.



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         lapse between crimes, the need for the other crimes
         evidence, the efficacy of alternative proof of the charged
         crime, and “the degree to which the evidence probably will
         rouse the jury to overmastering hostility.”

Commonwealth v. Weakley, 972 A.2d 1182, 1191 (Pa. Super. 2009)

(citations omitted).

      In the case sub judice, the trial court opined:

         [T]he Commonwealth urges that [Sister’s] testimony was
         properly admitted to corroborate certain items of the
         victim’s testimony to show a common scheme or plan, and
         to show absence of mistake. As to [Friend’s] testimony,
         they argue it was properly admitted to explain the chain of
         events leading to [Victim’s] reporting of the crimes against
         her. . . .

            Finally, the Commonwealth suggests that any perceived
         prejudice to [Appellant] was mitigated by the [c]ourt’s
         issuance of a limiting instruction to the jury, advising them
         that the subject evidence was admitted for their
         consideration for the sole purpose of explaining how the
         victim came to report the crimes against her and how the
         investigation proceeded.     Further the jury was instructed
         that they could not consider such evidence to conclude
         that [Appellant] was a bad person with criminal
         tendencies. On those facts, the Commonwealth asserts
         that [Appellant’s] contention as to the prejudicial effect of
         the challenged evidence is of no merit.           The [c]ourt
         agrees.

             While the challenged evidence was not flattering to
         [Appellant], it was, as the [c]ourt determined in its pretrial
         ruling, most certainly relevant, admissible and probative
         for the express purpose of establishing the chain of events
         and demonstrating a common scheme. In weighing the
         probative value of the evidence against any prejudice
         arising therefrom pursuant to the factors enumerated in
         Weakeley, the [c]ourt notes that (1) the acts to which
         [Sister] and [Friend] testified were in close temporal
         proximity to the crimes against the victim, (2) there were
         a great number of similarities in the testimony of [Sister]


                                     -7-
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           and that of [Victim] as to their individual experiences with
           [Appellant], and (3) [Sister’s] testimony corroborated
           certain statement by [Victim]. Moreover, the [c]ourt finds
           it highly unlikely that the testimony of [Sister] and
           [Friend] caused the jury any more hostility toward
           [Appellant] than did the testimony of [Victim] herself.

Trial Ct. Op. at 8-9 (citations to the record omitted). We agree no relief is

due.

        At trial, Sister13 testified, inter alia, as follows:

           [The Commonwealth]: How do you know [Appellant]?

           A: He was my adopted father.

                                       *    *    *

           Q: Did at some point in time your mom and dad divorce?

           A: Yes.

           Q: And did you go and visit your─with your father?

           A: Yes, every weekend.

                                       *    *    *

           Q: What were the sleeping arrangements?

           A:   . . . [W]herever me and [Victim] would sleep,
           [Appellant] would choose who would sleep with him and
           who would sleep in the other room.

                                       *    *    *

           Q: And during the times when he chose to sleep with you,
           did he ever do anything that made you feel uncomfortable?

           A: Yes.

13
     She was nineteen at the time of trial. N.T., 6/5/12, at 209.



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                                  *    *    *

        Q: And what did he do that made you feel uncomfortable?

        A: He got on top of me.

                                  *    *    *

        Q: And what happened after he got on top of you?

        A: He was moving around, like, his waist and all.

                                  *    *    *

        Q: . . . Where was it moving?

        A: On me.

        Q: . . . What part of you?

        A: My bottom half.

                                  *    *    *

        Q: Do you recall what you did when he got on top of you
        and was moving in that way?

        A: I tried to push him off, but he wouldn’t get off. Maybe
        about 10, 15 minutes later he did.

N.T., 6/5/12, at 210, 211, 212, 213.

      Sister further testified that one weekend Friend came to Appellant’s

house with her.   Id. at 216.   She did not witness anything inappropriate

transpire between Friend and Appellant.         However, Appellant’s girlfriend,

Carrie Cook, was at the house and told her that Appellant took Friend

“places with him and [held] her hand and asked her if she was a virgin . . .”

Id.



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        At trial, Sister read a note she had written to a friend, identified only

as Kristen, in which she stated: “My dad’s going to jail for trying to rape my

sister [,Victim,] and me. Then he was always with [Friend] holding her hand

and stuff. He probably would have done something to her, too.” Id. at 215,

221.

        Friend14 testified she slept once at Appellant’s house when she was

fourteen years old. N.T., 6/6/12, at 251.

           [The Commonwealth]: During the time when you slept
           over his house, did he do anything that made you feel
           uncomfortable?

           A: He always wanted to hold my hand.

           Q: Did you hold his hand?

           A: Yes.

           Q: And were you ever alone with him?

           A: Yes.

           Q: When were you alone with him?

           A: He took me to the store with him once, and then when
           we came back, we sat in his vehicle and talked.

           Q: What did you talk about?

           A: He told me that I was a beautiful girl and that any guy
           would kill to have a girl like me, told me that I had a nice
           body, and he asked me if I was a virgin.

           Q: What did you say?


14
     She was twenty years old at the time of trial. N.T., 6/6/12, at 250.



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          A: I told him I was, and he told me that we would keep it
          that way for a while.

                                  *     *      *

          Q: . . . [D]id you ever hug [Appellant]?

          A: Yes.

          Q: And did he hug you back?

          A: Yes.

          Q: And did anything occur when he hugged you that made
          you feel uncomfortable?

          A: His hand would slide down onto my butt, and he would
          rub it.

N.T., 6/6/12, at 251, 252, 253.

       At trial, Appellant renewed his objection to Friend’s testimony. Id. at

246.   The Commonwealth responded that although her testimony was not

admissible under the common scheme or plan theory, it was “admissible to

explain to the jury the history and natural sequence of events . . . .” Id. at

247. The Commonwealth explained to the court that Victim did not report

the abuse by Appellant until she learned that something happened to

Friend.15 Id. The trial court ruled that the testimony was admissible for the

purposes as stated by the Commonwealth. Id. at 249.

       The court gave the following instruction to the jury:


15
   We note the typographical error by the court reporter in attributing this
argument to counsel for Appellant. N.T., 6/6/12, at 246.




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            You have heard evidence tending to prove [Appellant]
         was guilty of improper conduct for which he is not on trial.
         I’m speaking of testimony to the effect that [Appellant]
         admitted to sexually assaulting his stepdaughter, [Sister],
         and that he acted inappropriately with another minor,
         [Friend].

             This evidence is before you for a limited purpose; that
         is, for the purpose of tending to show the circumstances
         under which [Victim] first revealed [Appellant’s] alleged
         conduct and the circumstances under which the
         investigations against [him] commenced.

            This evidence must not be considered by you in any
         other way other than for the purpose I just stated, and you
         must not regard this evidence as showing that [Appellant]
         is a person of bad character or criminal tendencies from
         which you might infer or might be inclined to infer guilt.

Id. at 370 (emphasis added).

      At the conclusion of the court’s instructions to the jury, there was a

discussion at sidebar. Appellant’s counsel brought it to the court’s attention

that it “substituted the word admitted for attempted” in the charge

regarding evidence of other offenses as substantive proof of guilt.16   Id. at

387-88 (emphasis added).          Following the sidebar discussion, the court

instructed the jury as follows:

         I just want to reread a portion of the charge regarding
         evidence of other offenses as substantive proof of guilt.

            You heard evidence tending to prove that [Appellant]
         was guilty of improper conduct for which he is not on trial.
         I’m speaking of the testimony to the effect that [Appellant]
         attempted to sexually assault his stepdaughter,

16
   We note, however, the trial court’s initial cautionary instruction is the
subject of a separate challenge in this appeal.



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         [Sister], and that he acted inappropriately with another
         minor, [Friend].

            This evidence is before you for a limited purpose.
         That is for the purpose of tending to show
         circumstances under which [Victim] revealed
         [Appellant’s] alleged conduct and the circumstances
         under which the investigations against [him]
         commenced. This evidence must not be considered by
         you in any way other than for the purpose I just stated.
         You must not regard this evidence as showing
         [Appellant] is a person of bad character or criminal
         tendencies from which you might be inclined to infer
         guilt.

Id. at 389-90 (emphases added).

      Following our review, we agree with the trial court “that to the extent

[Appellant] believes he was prejudiced by the admission of the subject

evidence, any prejudice was outweighed by [the] probative value, and as

such, [Appellant] has failed to establish a basis for” his claim.   Trial Ct. Op.

at 9; see Green, 76 A.3d at 583-84; Weakley, 972 A.2d at 1191.

Specifically, the court’s rulings that Appellant’s actions towards Victim,

Sister, and Friend shared sufficient similarities to evince a common plan and

absence of mistake was not unreasonable. Lastly, as discussed below, the

court ultimately instructed the jury on the proper consideration of Sister’s

and Friend’s testimony. Because we discern no abuse of discretion to upset

the court’s evidentiary rulings, no relief is due. See Green, 76 A.3d at 583.

      Appellant next claims “the trial court committed reversible error when

it erroneously instructed the jury that [Appellant] ‘admitted to sexually

assaulting his stepdaughter [Sister].’” Appellant’s Brief at 18. He avers that


                                     - 13 -
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“[n]o corrective instruction was given to explain that the court misspoke.”

Id.   Appellant contends he is entitled to a new trial. Id. at 19.

      This Court has stated:

         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 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.

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

(citation omitted).

      As a prefatory matter, we consider whether Appellant has waived this

claim. “Even where a defendant objects to specific conduct, the failure to

request a remedy such as a mistrial or curative instruction is sufficient to

constitute waiver.”   Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa.

Super. 2008).

      As discussed supra, following the charge to the jury, defense counsel

brought the error to the court’s attention, and the court reread the jury

instruction.   N.T., 6/6/12, at 389-90.       The court stated: “Anything else,

counsel?” Id. at 390. Counsel for Appellant responded: “Nothing else, Your

Honor.” Id.     The jury was then discharged. Id. at 391.




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         After objecting and receiving a corrected instruction, Appellant failed

to request a mistrial. The trial court found Appellant waived the issue based

upon defense counsel’s failure to ask for any further relief. Trial Ct. Op. at

12. We agree. See Strunk, 953 A.2d at 579.

         Third, Appellant contends the trial court erred in seating juror number

16 because she “admitted that she worked with students who [were]

emotionally disturbed and victims of sex crimes.”        Appellant’s Brief at 17.

He avers the court erred in seating juror number 21 because the juror knew

the prosecutor. Id. He claims he was denied his constitutional right to an

impartial jury. Id. Initially, we consider whether Appellant has waived this

issue.

         In Commonwealth v. Wholaver, 989 A.2d 883 (Pa. 2010), the

defendant

           contend[ed] the trial court violated his right to a fair trial
           and impartial jury by excusing for cause a venireman who
           expressed conscientious or religious objections to the
           death penalty, without any record proof or finding this
           potential juror would be substantially impaired in
           performing his duties.          Following the venireman’s
           statement that he could not impose the death penalty
           under any circumstances because of his religious beliefs,
           the prosecutor moved to excuse him for cause, and
           defense counsel did not object—understandably,
           because the potential juror had just stated he would not be
           able to follow the law. As no objection was posed, this
           issue was not preserved and is waived. See Pa.R.A.P.
           302(a) (issues not raised in lower court are waived and
           cannot be raised for first time on appeal)[.]

Id. at 892 (emphases added).



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      During the voir dire Juror number 16 stated:

         A Juror: No. 16. I just want the Court to know that I work
         with students who are emotionally disturbed who have
         been abused by parents sexually, physically abused, and
         emotionally abused. I’ve been working in the school for 30
         years, private school that deals with kids with emotional
         problems, learning disabilities. So I just want the Court to
         know that.

         [The Commonwealth]: Do you think you can be fair?

         A Juror: I think I can be fair.

         [The Commonwealth]: Thank you, sir, for coming forward.

         [Defense Counsel]: Thank you, sir.

         The Court: Okay?

         [Defense counsel]: I don’t have any questions.

         The Court: Thank you, sir.

N.T., 6/4/12, at 40-41 (emphasis added).

      Juror number 21 indicated that she knew the prosecutor. Id. at 11-

12. The court asked defense counsel if he had any questions and he replied:

“I don’t have any questions except of you. And that would be if we do have

occasion to strike for cause, do we do that immediately, or do you want to

do that later.”   Id. at 14.   The court responded: “Normally we just take

notes and then we’ll convene after.” Id.

      At the conclusion of the voir dire, the court reviewed the list of jurors

as follows:

         The Court: The challenges for cause: No. 1, 10, 11, 15,
         20, 25, 34.


                                      - 16 -
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        [Defense Counsel] How about 29?

        The Court: I’m sorry, 29 is hardship. . . . 30 is cause, 34,
        38, 41, 49.

        [Defense Counsel]: Seven?

        The Court: I’m sorry, 47, 49, 51, 53, that’s it.

        [Defense Counsel]: Okay.

        The Court: So there’s 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
        13, 14. 14 for cause and then one hardship being No. 29.
        Okay? We have strikes No. 1, 10, 11, 15, 20, 25. Now 29
        is a hardship. 30 is cause, 34, 38, 41, 47, 49, 51, and 53.

           So by my calculation, the first 12 jurors will be selected
        through No. 35. Correct? And then the two alternates
        through─would be 36, 37, 39, and 40. Do we all agree?

        [Defense counsel]: Yes.

Id. at 67 (emphases added).

     In the case sub judice, the trial court opined:

           In the instant case, juror number 16 admitted during
        voir dire that he worked with emotionally disturbed
        students and victims of sex crimes. Juror number 21
        indicated that she knew the prosecutor. Both jurors were
        further colloquied. . . .    Defense counsel did not
        question either juror further, nor did he move to
        strike them for cause.

                                 *     *      *

        [Appellant] raised no objection to the seating of
        either juror.

Trial Ct. Op. at 10 (citations to record omitted and emphases added).




                                     - 17 -
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      The trial court found Appellant, having failed to raise an objection

during the voir dire to juror number 16 and juror number 21, “waive[d] the

right to raise a later objection.”   Trial Ct. Op. at 10.   We agree.   Having

failed to object, Appellant cannot raise the issue on appeal. See Pa.R.A.P.

302(a); Wholaver, 989 A.2d at 892.

      Next, Appellant avers the trial court erred in not merging the

sentences for rape and sexual assault.17 Appellant claims “[w]here, as here,

the sexual intercourse with another person was committed through the

indecent contact of the defendants and victims intimate parts, these two

crimes should have merged.” Appellant’s Brief at 21. He contends the trial

court also erred by not merging the sentences for statutory assault and

indecent assault. Appellant states “[a]gain, the ‘indecent contact’ was the

sexual intercourse and therefore these crimes should have merged for

sentencing purposes.” Id.


17
   We note that despite raising five issues in his brief, Appellant divides his
argument section into only four parts, thus violating Pa.R.A.P. 2119(a),
which mandates that “argument shall be divided into as many parts as there
are questions to be argued.” See Pa.R.A.P. 2119(a); Commonwealth v.
Briggs, 12 A.3d 291, 343 (PA. 2011) (“The briefing requirements
scrupulously delineated in our appellate rules are not mere trifling matters of
stylistic preference; rather, they represent a studied determination by our
Court and its rules committee of the most efficacious manner by which
appellate review may be conducted so that a litigant's right to judicial review
as guaranteed by Article V, Section 9 of our Commonwealth’s Constitution
may be properly exercised.”)        In two and one-half pages, Appellant
comingled his discretionary aspect of sentencing claim with his illegal
sentence claim. Appellant’s Brief at 19-21. We address the legality of the
sentence and the discretionary aspects of Appellant’s sentence separately.



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            Whether . . . convictions merge for the purposes of
         sentencing is a question implicating the legality of his
         sentence. As such, our standard of review is de novo and
         the scope of our review is plenary.

            Section 9765 of the Pennsylvania Sentencing Code
         provides as follows regarding the merger of crimes for
         sentencing purposes:

            No crimes shall merge for sentencing purposes unless
            the crimes arise from a single criminal act and all of
            the statutory elements of one offense are included in
            the statutory elements of the other offense. Where
            crimes merge for sentencing purposes, the court may
            sentence the defendant only on the higher[-]graded
            offense.

         42 Pa.C.S. § 9765. Accordingly, merger is appropriate
         only when two distinct criteria are satisfied: (1) the crimes
         arise from a single criminal act; and (2) all of the statutory
         elements of one of the offenses are included within the
         statutory elements of the other. Id.

Commonwealth v. Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014) (some

citations and footnote omitted) (emphasis added).

     The trial court opined that rape and sexual assault did not merge, nor

did the crimes of statutory sexual assault and indecent assault. Trial Ct. Op.

at 15-16. The court reasoned: “In the instant case, the evidence in support

of [Appellant’s] conviction revealed that he had engaged in sexual

intercourse with the victim on numerous occasions. As such, the crimes of

which he was convicted did not arise from a single criminal act.”

Id. at 15. We agree.

     Instantly, Appellant was charged for crimes occurring “on numerous

occasions” when Victim stayed at his home.           Aff. of Probable Cause,


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10/26/11. At trial, Victim stated her father raped her. N.T., 6/5/12, at 150.

She testified, inter alia, as follows:

         [The Commonwealth]: Q: Now, we’re going to have to talk
         about the bad stuff. . . . Where did that bad stuff happen?

         [Victim]: At my dad’s house.

                                    *      *      *

         Q: And who was he living with?

         A: By himself.

         Q: And why were you at his house?

         A: Because I would go there every weekend.

         Q: Did you go with anyone?

         A: My brother [M. P.] and [Sister].

                                    *      *      *

         Q: And when you went over there to visit with your
         brother  and  [Sister], what were   the    sleeping
         arrangements?

         A: Sometimes I’d sleep in my room, and sometimes I’d
         sleep in my dad’s room.

                                    *      *      *

         Q: And could you describe the bedrooms for us?

         A: Well, me and [Sister] and brother shared a room, and
         there was a bunk bed. And in my dad’s room, there was a
         bed.

                                    *      *      *

         Q: And when you went there to sleep, which of the rooms
         did you sleep in all the time?


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       A: Sometimes I’d sleep in my room.

                               *      *      *

       Q: . . . Did you sometimes sleep other places?

       A: Yeah.

       Q: Why?

       A: Because my dad made me.

       Q: And where did you sleep . . . .

       A: In my dad’s room.

       Q: You were in your dad’s room. Where in that room did
       you sleep?

       A: On the bed.

                               *      *      *

       Q: Who was in the bed with you?

       A: My dad.

                               *      *      *

       Q: Did anything happen to your clothes?

       A: They came off.

       Q: Why did they─how did they come off?

       A: I had to take them off.

       Q: You had to take them off? Well, what clothes did you
       have to take off?

       A: All my clothes.

       Q: And why did you have to take your clothes off?


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        A: My dad made me.

        Q: So when your clothes─when your dad made you take
        your clothes off, what happened then?

        A: He would get on top of me.

        Q: Then what happened?

        A: He would rape me.

                                 *     *      *

        Q: How often did this happen?

        A: Almost every weekend.

Id. at 150-51, 152-54, 155 (emphasis added).

     We agree with the trial court that the crimes of rape and sexual

assault did not merge and the crimes of statutory sexual assault and

indecent assault did not merge because Appellant’s convictions did not arise

from a single criminal act. See Jenkins, 96 A.3d at 1056.

     Lastly, Appellant contends the trial court abused its discretion in

imposing aggravated range consecutive sentences which, when aggregated,

resulted in a manifestly excessive sentence.

     This Court has stated:

           Challenges to the discretionary aspects of sentencing
           do not entitle an appellant to appellate review as of
           right. Prior to reaching the merits of a discretionary
           sentencing issue:

               [W]e conduct a four part analysis to
               determine: (1) whether appellant has filed a
               timely notice of appeal, see Pa.R.A.P. 902 and


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               903; (2) whether the issue was properly
               preserved at sentencing or in a motion to
               reconsider    and     modify    sentence,    see
               Pa.R.Crim.P. [720]; (3) whether appellant’s
               brief has a fatal defect, Pa.R.A.P. 2119(f); and
               (4) whether there is a substantial question that
               the sentence appealed from is not appropriate
               under the Sentencing Code, 42 Pa.C.S.A. §
               9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some

citations and punctuation omitted).

     Instantly, Appellant timely appealed, preserved his issue in his post

sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.

See id.     Accordingly, we ascertain whether Appellant has presented a

substantial question. Id.     He avers that the sentencing court’s reasons for

the consecutive aggravated range sentence did not justify the sentence it

imposed.

     This Court has stated:

          [T]here is no absolute right to appeal when challenging the
          discretionary aspect of a sentence. Rather, an [a]ppeal is
          permitted only after this Court determines that there is a
          substantial question that the sentence was not appropriate
          under the sentencing code.

          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. . . .
          Further, on appeal, a defendant must provide a separate
          statement specifying where the sentence falls in the
          sentencing guidelines, what provision of the sentencing
          code has been violated, what fundamental norm the
          sentence violates, and the manner in which it violates the
          norm.


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                                 *     *      *

            In determining whether a substantial question exists,
         this Court does not examine the merits of whether the
         sentence is actually excessive. Rather, we look to whether
         the appellant has forwarded a plausible argument that the
         sentence, when it is within the guideline ranges, is clearly
         unreasonable.    Concomitantly, the substantial question
         determination does not require the court to decide the
         merits of whether the sentence is clearly unreasonable.

Commonwealth v. Dodge, 77 A.3d 1263, 1268-69, 1270 (Pa. Super.

2013) (quotation marks, citations and footnote omitted), appeal denied, 91

A.3d 161 (Pa. 2014).

      In Dodge, the defendant contended the imposition of consecutive

sentences was disproportionate to his crimes. Id. at 1271. This Court has

“determined that such an assertion, in combination with allegations that a

sentencing court did not consider the nature of the offenses or provide

adequate reasons for its sentence, presents a plausible argument that the

length of the sentence violates fundamental sentencing norms.”          Id. at

1271-72.    Moreover, the “fail[ure] to state on the record sufficient reasons

for imposing an aggravated range sentence” raises a substantial question.

Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super. 2006).

      We find that Appellant’s Rule 2119(f) statement presents a substantial

question.   See id.    Therefore, we will review the merits of Appellant’s

challenge to the discretionary aspects of his sentence.

         Our standard of review is as follows:



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J. S36043/14


          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. An abuse of discretion is more than just
          an error in judgment and, on appeal, the trial court
          will not be found to have abused its discretion unless
          the record discloses that the judgment exercised was
          manifestly unreasonable, or the result of partiality,
          prejudice, bias, or ill-will.

       More specifically, 42 Pa.C.S.A. § 9721(b) offers the
       following guidance to the trial court’s sentencing
       determination:

          [T]he sentence imposed should call for confinement that
          is consistent with the protection of the public, the
          gravity of the offense as it relates to the impact on the
          life of the victim and on the community, and the
          rehabilitative needs of the defendant.

       42 Pa.C.S.A. § 9721(b).

       Furthermore,

          section 9781(c) specifically defines three instances in
          which the appellate courts should vacate a sentence
          and remand: (1) the sentencing court applied the
          guidelines erroneously; (2) the sentence falls within
          the guidelines, but is “clearly unreasonable” based
          on the circumstances of the case; and (3) the
          sentence falls outside of the guidelines and is
          “unreasonable.” 42 Pa.C.S. § 9781(c). Under 42
          Pa.C.S. § 9781(d), the appellate courts must review
          the    record   and    consider    the   nature    and
          circumstances of the offense, the sentencing court’s
          observations of the defendant, the findings that
          formed the basis of the sentence, and the sentencing
          guidelines. The weighing of factors under 42 Pa.C.S.
          § 9721(b) is exclusively for the sentencing court,
          and an appellate court could not substitute its own
          weighing    of   those    factors.      The    primary
          consideration, therefore, is whether the court
          imposed an individualized sentence, and whether the
          sentence     was   nonetheless     unreasonable     for


                                  - 25 -
J. S36043/14


           sentences falling outside the guidelines, or clearly
           unreasonable for sentences falling within the
           guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)

(alterations and some citations omitted).

     Our Supreme Court has stated:

        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 are
        under no compulsion to employ checklists or any extended
        or systematic definitions of their punishment procedure.
        Having been fully informed by the pre-sentence
        report, the sentencing court’s discretion should not
        be disturbed. This is particularly true, we repeat, in
        those circumstances where it can be demonstrated that
        the judge had any degree of awareness of the sentencing
        considerations, and there we will presume also that the
        weighing process took place in a meaningful fashion. . . .

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

     “Long standing precedent of this Court recognizes that 42 Pa.C.S.A.

section 9721 affords the sentencing court discretion to impose its sentence

concurrently or consecutively to other sentences being imposed at the same

time or to sentences already imposed.”      Commonwealth v. Gonzalez-

Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010).




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      In the case sub judice, prior to sentencing, the court ordered a

presentence investigation, a Sexual Offender’s Assessment Board evaluation

and a psychosexual evaluation. N.T., 6/7/12, at 418.

      The trial court opined:

            In the instant case, the [c]ourt reviewed a great deal of
         information.    The [c]ourt reviewed the results of a
         presentence investigation, which in part, detailed
         [Appellant’s] prior criminal history. It also reviewed a
         psychosexual evaluation of [Appellant], indicating a high
         propensity to reoffend.          Additionally, the [c]ourt
         considered facts [sic] of the case, a statement from a
         family member as to the impact of the crime on the victim
         and the family unit, the arguments of counsel and a
         statement by [Appellant]. Upon consideration of all the
         information adduced therefrom, the [c]ourt sentenced
         [Appellant] as set forth supra, finding it necessary and
         appropriate to sentence him in the aggravated range on
         each crime, and to run his sentences consecutively, in
         order to satisfactorily protect the public, address the
         rehabilitative needs of [Appellant], and to sufficiently
         account for the gravity of the offense and its impact on the
         victim and the community.

Trial Ct. Op. at 13-14.

      At sentencing, the court opined:

            To the extent that the sentences I impose exceed the
         standard range as determined in the sentencing guidelines,
         the reason that those sentences will exceed the standard
         range are for several reasons and I will read those into the
         record. First, as it’s well known, the victim in this case
         was in your care and trust.

            Secondly, the victim was particularly vulnerable due to
         her youth. As your record indicates, you’re a repeat
         criminal. And in this instance there are multiple current
         convictions. And finally, while you’ve expressed sorrow to
         the family today for putting them through this, you’ve
         shown no remorse for the victim of this crime, and I


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        believe only someone with a depraved heart and deranged
        mind would take that position given what’s happened to
        this young lady, the scars she will carry with her for the
        rest of her life.

           In terms of sentence, and as I indicated, the
        aggravated reasons which I’ve just placed on the record
        apply to any sentence I’ve imposed that is beyond the
        standard range.

N.T., 8/1/13, at 53-54.

     Accordingly, after examining the record as a whole, we find that the

trial court’s sentence was not manifestly excessive. See Devers, 546 A.2d

at 18; Gonzalez-Dejusus, 994 A.2d at 598.        We discern no abuse of

discretion. See Bricker, 41 A.3d at 875-76.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/20/2015




                                  - 28 -
