J-S44042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :         IN THE SUPERIOR COURT OF
                                            :
              v.                            :
                                            :
TERRANCE WILLIAMS,                          :
                                            :
                    Appellant               :            No. 3498 EDA 2015

            Appeal from the Judgment of Sentence October 19, 2015
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0015640-2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 31, 2017

        Terrance Williams (“Williams”) appeals from the judgment of sentence

imposed following his conviction of rape of a child and unlawful contact with

a minor.1 We affirm.

        In its Opinion, the trial court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal. See Trial

Court Opinion, 6/30/16, at 1-3.

        On appeal, Williams raises the following issues for our review:

        1. Whether the verdict was contrary to the law based on the
           elements not being proven[?]

        2. Whether [Williams’s]    sentence     was    unduly   harsh   and
           unreasonable[?]

        3. Whether the [trial] court erred in not allowing prior sexual
           complaints by the [victim] into evidence[?]




1
    See 18 Pa.C.S.A. §§ 3121(c), 6318(a)(1).
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      4. Whether the [trial] court erred in not allowing testimony from
         [victim’s] landlord[?]

      5. Whether there was prosecutorial misconduct during direct
         examination of [Williams?]

Brief for Appellant at 8 (capitalization omitted, issues renumbered for ease

of disposition).

      In his first issue, Williams contends that the evidence was insufficient

to establish, beyond a reasonable doubt, all of the elements of the crime of

rape of a child.    Id. at 16-17.       Specifically, Williams claims that the

Commonwealth failed to prove that he had intercourse with the victim. Id.

at 17. Williams argues that “the Commonwealth’s only evidence to support

the alleged rape was testimony from the victim, as well as family members

and a friend who did not witness the incident.” Id. Williams asserts that no

evidence of penetration was introduced at trial. Id.

      With respect to his conviction of unlawful contact with a minor,

Williams claims that the Commonwealth did not establish that unlawful

contact occurred between Williams and the victim.        Id. at 19.   Williams

argues that the only evidence offered by the Commonwealth, to support the

allegedly unlawful contact, was the victim’s testimony that Williams came to

her door and asked about her friend who was sleeping over. Id. Williams

contends that this communication was not for the purpose of engaging in an

unlawful act, and, therefore, does not establish the first element of the crime

of unlawful contact with a minor. Id.



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      In its Opinion, the trial court addressed Williams’s first issue, set forth

the relevant law, and determined that the issue lacks merit. See Trial Court

Opinion, 6/30/16, at 4-6.    We agree with the reasoning of the trial court,

and affirm on this basis as to Williams’s first issue. See id.2

      In his second issue, Williams contends that his sentence was unduly

harsh and unreasonable. Brief for Appellant at 19. Williams asserts that his

previous record score was zero, and the offense gravity score for his

convictions was fourteen. Id. Williams claims that the sentence range for

his offenses was 72 months, plus or minus 12 months. Id. Williams claims

that his aggregate sentence of seven to fourteen years in prison exceeds the

recommended guidelines for the offenses, and is unduly harsh. Id. Williams

argues that, when imposing sentence, the trial court failed to consider his

background and lack of criminal history. Id.

      “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).      Prior to reaching the merits of a discretionary

sentencing issue,



2
  Williams also argues that the victim’s testimony was not credible because
she testified that she was wearing basketball shorts on the night in question,
but had told the Special Victims Unit that Williams had pulled her zipper
down before he raped her. Brief for Appellant at 17. However, this claim
challenges the weight of the evidence, which claim Williams has abandoned
on appeal. See Brief for Appellant at 8 n.1 (wherein Williams indicates
that”[a]fter further review, the issue of weight of evidence will not be
argued.”).


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     [this Court conducts] a four[-]part analysis to determine: (1)
     whether appellant has filed a timely notice of appeal, see
     Pa.R.A.P. 902 and 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, [see] 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, [see] 42
     Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

     In its Opinion, the trial court addressed Williams’s second issue, and

determined that the issue is waived because Williams failed to preserve his

discretionary sentencing claim by raising it at sentencing or in a post-

sentence motion.   See Trial Court Opinion, 6/30/16, at 7. We agree with

the reasoning of the trial court, and affirm on this basis as to Williams’s

second issue. See id.3

     In his third issue, Williams contends that the trial court erred by

precluding Williams from introducing at trial evidence of the victim’s prior

claim of sexual abuse.   Brief for Appellant at 21.   Williams asserts that,

“[b]ecause the two incidents shared so many similarities, it should have

been let into evidence to show that it is [the victim’s] modus operandi.” Id.

Williams claims that the probative value of the evidence outweighed any risk

3
  Even if Williams had preserved the issue for our review, we would have
concluded that the claim lacks merit, as the trial court had the benefit of a
presentence investigation report (“PSI”) when it sentenced Williams. See
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(holding that, where a sentencing court is informed by a PSI, “it is presumed
that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.”).


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of prejudice.   Id. at 21-22.   Williams also claims that introduction of this

evidence   would   have   impacted    the   victim’s   credibility,   and   created

reasonable doubt in the eyes of the jury. Id. at 22.

      In its Opinion, the trial court addressed Williams’s third issue, set forth

the relevant law, and determined that the issue lacks merit. See Trial Court

Opinion, 6/30/16, at 7-9.    We agree with the reasoning of the trial court,

and affirm on this basis as to Williams’s third issue. See id.

      In his fourth issue, Williams contends that the trial court erred by

excluding the testimony of the victim’s landlord regarding threats that the

victim’s mother had made to him.         Brief for Appellant at 23.         Williams

asserts that the victims’ mother told the landlord that, if he ever tried to

evict her, that she would have her daughter (i.e., the victim) claim that the

landlord had raped her. Id. Williams claims that the landlord’s testimony

bore upon the credibility of both the victim and her mother, and would have

created reasonable doubt in the eyes of the jury. Id. at 24.

      In its Opinion, the trial court addressed Williams’s fourth issue, set

forth the relevant law, and determined that the issue lacks merit. See Trial

Court Opinion, 6/30/16, at 8, 9. We agree with the reasoning of the trial

court, and affirm on this basis as to Williams’s fourth issue. See id.

      In his fifth issue, Williams contends that the Commonwealth engaged

in prosecutorial misconduct by requesting a sidebar, when Williams was on

the witness stand, to discuss the introduction of prison tapes that the trial



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court had already ruled were inadmissible.         Brief for Appellant at 22.

Williams asserts that the prosecutor knew that the tapes were inadmissible

because they had not been provided to the defense until trial. Id. Williams

claims that, after the prosecutor had requested a sidebar, Williams became

upset, and was unable to recover his demeanor for the remainder of his time

on the witness stand. Id. at 22-23. Williams argues that the prosecutor’s

only purpose in requesting a sidebar was to upset Williams during his

testimony. Id. at 23. Williams contends that “[t]he prosecutor acted in bad

faith in an attempt to harass and distress [Williams].” Id. Williams asserts

that the prosecutor’s actions infringed on his right to a fair trial, thereby

entitling Williams to a new trial. Id.

      In its Opinion, the trial court addressed Williams’s fifth issue, set forth

the relevant law, and determined that the issue lacks merit. See Trial Court

Opinion, 6/30/16, at 9-10. We agree with the reasoning of the trial court,

and affirm on this basis as to Williams’s fifth issue. See id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2017




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