J-S10007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JAMES HUSSEY,

                         Appellant                 No. 1701 EDA 2016

     Appeal from the Judgment of Sentence Entered January 11, 2016
             In the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0001919-2014


BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED MARCH 20, 2017

      Appellant, James Hussey, appeals from the judgment of sentence of an

aggregate term of 4 to 8 years’ incarceration, imposed after a jury convicted

him of various sexual offenses committed against a minor female victim.

Appellant raises seven claims on appeal, including challenges to evidentiary

decisions by the trial court, as well as the legality of his sentence.   After

careful review, we affirm.

      Briefly, Appellant’s convictions stemmed from his touching the victim,

his niece, in a sexually inappropriate manner on two different occasions.

Following a jury trial, Appellant was convicted of two counts each of the

following offenses: indecent assault of a person less than 13 years of age,

18 Pa.C.S. § 3126(a)(7); endangering the welfare of a child (EWOC), 18

Pa.C.S. § 4304(a)(1); and corruption of a minor (COM), 18 Pa.C.S. § 6301.

On January 11, 2016, Appellant was sentenced to consecutive terms of 1 to
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2 years’ incarceration for each count of indecent assault and EWOC for which

he was convicted, totaling an aggregate term of 4 to 8 years’ incarceration.

Appellant’s two counts of COM merged for sentencing purposes.

       Appellant filed a timely post-sentence motion and the trial court

conducted a hearing on that motion on February 23, 2016.          On April 28,

2016, the court issued an order and an accompanying opinion denying

Appellant’s post-sentence motion. Appellant filed a timely notice of appeal,

and he also timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. On June 20,

2016, the trial court issued a Rule 1925(a) opinion.1

       On appeal, Appellant presents seven claims for our review:

       1. Whether, prior to trial, the [t]rial [c]ourt committed an error
       of law when it denied [Appellant’s] proffer of expert testimony
       on the phenomenon of false confessions in general, and where
       the    trial court’s     ruling     substantially  agreed     with

____________________________________________


1
  Therein, the trial court states that all of the issues raised by Appellant in
his Rule 1925(b) statement were addressed in its April 28, 2016 opinion
denying his post-sentence motion.         The record belies the trial court’s
conclusion. In his Rule 1925(b) statement, Appellant presented seven
issues for this Court’s review; only one of those issues, a challenge to
Appellant’s sentence, was addressed by the court in its April 28, 2016
opinion. The lack of a trial court opinion regarding Appellant’s remaining
issues makes our review of his claims more difficult; however, it does not
impede us from meaningfully assessing his arguments, as the reasons for
the trial court’s challenged rulings are evident in the record. Thus, while we
could remand this case for the court to file an appropriate responsive
opinion, we decline to do so.




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      Com[monwealth] v. Alicia, 625 Pa. 429[, 92 A.3d 753] (Pa.
      2014) (disallowing testimony on false confessions in general)?

      2. Whether, prior to trial and under Crawford v. Washington,
      541 U.S. 36 (2004), the [t]rial [c]ourt committed an error of law
      when it allowed the admission of the hearsay statements of the
      minor victim … made to Dr. Horn-Alsberge?

      3. Whether, prior to trial, the [t]rial [c]ourt abused its discretion
      when it permitted the victim’s mother … and Dr. Horn-Alsberge,
      to testify to the hearsay statements of the minor victim … and
      where the statements were redundant, needlessly cumulative,
      and unduly prejudicial?

      4. Whether, prior to trial, the [t]rial [c]ourt abused its discretion
      when it permitted the introduction of … a “Story Book” compiled
      under the supervision of Dr. Horn-Alsberge containing an
      additional recitation of the minor victim’s statement hand-
      illustrated by the minor victim and where this exhibit was
      needlessly cumulative and unduly prejudicial?

      5. Whether, during trial, the [t]rial [c]ourt abused its discretion
      when it failed to apply the Business Records Exception and
      sustained the Commonwealth’s objection to the testimony of
      Anna Parys of Monroe County Children and Youth?

      6. Whether, during trial, the [t]rial [c]ourt committed an error of
      law when it limited [Appellant’s] expert witness[’s] testimony on
      the topic of false reports?

      7. Whether, at sentencing, the [t]rial [c]ourt committed an error
      of law when it found that counts one and two, Indecent Assault,
      did not merge for sentencing purposes with counts three and
      four, [EWOC]?

Appellant’s Brief at 9.

      Appellant’s first six issues challenge evidentiary rulings made by the

trial court.

      The standard of review employed when faced with a challenge to
      the trial court's decision as to whether or not to admit evidence
      is well settled.     Questions concerning the admissibility of
      evidence lie within the sound discretion of the trial court, and a
      reviewing court will not reverse the trial court's decision absent a


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      clear abuse of discretion. Abuse of discretion is not merely an
      error of judgment, but rather where the judgment is manifestly
      unreasonable or where the law is not applied or where the record
      shows that the action is a result of partiality, prejudice, bias or ill
      will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations

omitted).

      In Appellant’s first issue, he challenges the trial court’s decision to

preclude him from presenting expert testimony regarding “the phenomenon

of false confessions….” Appellant’s Brief at 18. Appellant acknowledges that

our Supreme Court has held that this specific type of expert testimony

“constitutes an impermissible invasion of the jury’s role as the exclusive

arbiter of credibility.”   Id. (citing Alicia, 92 A.3d at 764).          Appellant

contends, however, that Alicia “should be overturned as violating []

Appellant’s right to Due Process.” Id.

      This Court has no authority to overrule Alicia.          Our Supreme Court

has declared that “the intermediate appellate courts are duty-bound to

effectuate   [our   Supreme]    Court’s   decisional   law.”     Walnut    Street

Associates, Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa.

2011). The Court has also declared that “[i]t is beyond peradventure that

the Superior Court must follow [the Supreme] Court’s mandates, and it

generally lacks the authority to determine that [the Supreme] Court’s

decisions are no longer controlling.” Id. (citing Commonwealth v. Jones,

554 A.2d 50, 51-52 (Pa. 1989)). Accordingly, this Court cannot overturn our

Supreme Court’s decision in Alicia.       As Appellant concedes that the trial


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court followed Alicia in refusing to admit the at-issue expert testimony, his

challenge to the court’s decision in that regard is meritless.

      Next, Appellant contends that his Confrontation Clause rights were

violated   because   of    how   the   Commonwealth   presented   the   victim’s

testimony in this case. The entirety of Appellant’s argument is as follows:

             Here, the victim did not testify face to face, but testified
      via [a] contemporaneous alternative method.           This is not
      problematic in itself, but was compounded by the fact that the
      victim was excused after her testimony and then her statements
      were re-introduced through other figures who could not then be
      cross-examined on the victim’s statements to any meaningful
      effect.   As such, the jury was presented with reinforced
      statements by the victim which were in no way meaningfully
      challenged by cross-examination.        The prior opportunity to
      cross-examine, in such circumstances, cannot be deemed
      ‘adequate.’

Appellant’s Brief at 19.

      Appellant’s argument lacks citation to, let alone discussion of, any

pertinent legal authority. This Court has stated:

             When briefing the various issues that have been
      preserved, it is an appellant’s duty to present arguments that
      are sufficiently developed for our review. The brief must support
      the claims with pertinent discussion, with references to the
      record and with citations to legal authorities.       Citations to
      authorities must articulate the principles for which they are
      cited.

            This Court will not act as counsel and will not develop
      arguments on behalf of an appellant. Moreover, when defects in
      a brief impede our ability to conduct meaningful appellate
      review, we may dismiss the appeal entirely or find certain issues
      to be waived.




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Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007), appeal

denied, 940 A.2d 362 (Pa. 2008) (citations omitted).

      Even if Appellant’s undeveloped argument was adequate to permit our

meaningful review of his claim, he has nevertheless waived this issue by

failing to cite to where in the record he objected to the Commonwealth’s

decision to call the victim to the stand first, and then excuse her before

calling its other witnesses. Appellant indicates that this issue was raised in a

pretrial motion filed on September 14, 2015.        See Appellant’s Brief at 10,

19.   However, our review of that motion reveals that Appellant did not

specifically assert this claim therein.   Additionally, he did not object when

the Commonwealth called the victim as its first witness at trial, nor when the

victim’s mother took the stand after the victim had testified. See N.T. Trial,

10/27/15, at 33, 74. Appellant also did not object when the victim’s mother

testified about statements made to her by the victim. See id. at 78, 81-83.

Consequently, without Appellant’s specifying where in the record he

preserved the claim that his Confrontation Clause rights were violated by the

victim’s testifying first in this case, he has waived this claim for our review.

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).

      In Appellant’s third issue, he argues that the trial court abused its

discretion by admitting the testimony of the victim’s mother and Dr. Michelle

Horn-Alsberge, a psychologist who counseled the victim in this case.




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According to Appellant, these witnesses’ testimony should have been

excluded under Pa.R.E. 403, which states:

      The court may exclude relevant evidence if its probative value is
      outweighed by a danger of one or more of the following: unfair
      prejudice, confusing the issues, misleading the jury, undue
      delay, wasting time, or needlessly presenting cumulative
      evidence.

Pa.R.E. 403.

      Appellant’s entire argument regarding why the testimony of the

victim’s mother and Dr. Horn-Alsberge should have been excluded under

Rule 403 is as follows:

            The testimony of [the victim’s mother] and Dr. Horn-
      Alsberge was needlessly repetitive of the victim’s own testimony.
      Nothing testified to by either witness added anything to the trial
      beyond vouching for the victim’s credibility. This testimony also
      unfairly prejudiced [] Appellant by supplanting the jury’s role of
      judging the victim’s credibility with judging other witness[es]’
      credibility who were not witnesses to the alleged criminal act.
      The danger of the jury[’s] improperly relying upon the credibility
      of the victim’s mother and doctor to establish that the sexual
      assault [occurred] … far outweighed the probative value of their
      testimony.

Appellant’s Brief at 20.

      Again, Appellant has presented this Court with an undeveloped

argument that is insufficient to permit our meaningful review of his claim.

Appellant does not cite to any case law to support his assertion that these

witnesses’ testimony should have been excluded under Rule 403.             More

problematic, however, is Appellant’s total failure to point to any specific

testimony by these witnesses that was cumulative or allegedly impeded the



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jury’s credibility determinations. Consequently, we deem this claim waived

for our review. See Hardy, 918 A.2d at 771.

     We reach the same conclusion for Appellant’s fourth issue, in which he

provides only one sentence of argument: “Given the similar bases for

appeal, the discussion of issue three (3) above, suffices for a discussion of

the admission of the ‘Story Book’ as well.” Appellant’s Brief at 21. Because

Appellant’s argument in support of his third issue was insufficient to avoid

waiver of that claim, his fourth issue is waived as well.   See Hardy, 918

A.2d at 771.

     In Appellant’s fifth issue, he asserts that the trial court abused its

discretion by not permitting him “to introduce a Children and Youth

[Services (CYS)] report containing statements by the victim and her

mother,” which, according to Appellant, “implicated a different person … in

the sexual assault at issue in this case.” Appellant’s Brief at 22. At trial,

defense counsel attempted to admit this report through the testimony of

Anna Parys, a CYS employee who supervised the case regarding the victim’s

allegations of sexual abuse.     See N.T. Trial, 10/28/15, at 34.        The

Commonwealth objected to the admission of the CYS report arguing, inter

alia, that it contained hearsay. See id. at 35. In response, defense counsel

argued that the report was admissible under the ‘business record’ exception

to the rule precluding hearsay. The court agreed that the business record

exception applied to admit the statements made in the report by the CYF

employee who drafted it.    See id. at 40.   However, the court found that

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there were “multiple layers of hearsay” in the report, and that defense

counsel had not demonstrated an exception applied to each of those levels

of hearsay. Id. at 42-43.

      We ascertain no abuse of discretion in the court’s decision. “‘Hearsay’

is defined as “a statement that (1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).

Hearsay is not admissible, unless one of the exceptions set forth in Pa.R.E.

803 applies. See Pa.R.E. 802. One such exception is the ‘business record’

exception, which is set forth in Rule 803(6), as follows:

      (6) Records of a Regularly Conducted Activity. A record
      (which includes a memorandum, report, or data compilation in
      any form) of an act, event or condition if:

         (A) the record was made at or near the time by--or from
         information transmitted by--someone with knowledge;

         (B) the record was kept in the course of a regularly
         conducted activity of a “business”, which term includes
         business, institution, association, profession, occupation,
         and calling of every kind, whether or not conducted for
         profit;

         (C) making the record was a regular practice of that
         activity;

         (D) all these conditions are shown by the testimony of the
         custodian or another qualified witness, or by a certification
         that complies with Rule 902(11) or (12) or with a statute
         permitting certification; and

         (E) the opponent does not show that the source of
         information or other circumstances indicate a lack of
         trustworthiness.

Pa.R.E. 803(6).

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      Here, the parties do not dispute that the CYF employee’s statements in

the report were admissible under the business record exception. However,

the report also contained statements made to the CYF employee by the

victim, the victim’s mother, and another family member. Appellant contends

that these statements do not constitute hearsay because they “were not

being offered to prove the truth of the matter” asserted, i.e., “that [another

individual] committed the sexual assault[.]”       Appellant’s Brief at 23.

According to Appellant, “the statements were offered to prove that the

victim was not telling the truth that [] Appellant committed the assault or

that she was so confused about the sexual assault that she should not be

credited by the jury.” Id.

      Appellant essentially argues that the report was admissible for

impeachment purposes.        However, at trial, defense counsel repeatedly

stated that the report was not being offered as impeachment evidence;

instead, counsel declared that she was seeking to admit the report as

substantive evidence to prove the truth of the matter asserted therein,

namely the truth of the statements made to the CYF employee by the victim,

her mother, and another family member. See N.T. Trial, 10/28/16, at 38-

41.   Therefore, Appellant’s argument that the statements contained within

the CYS report were not being admitted to prove the truth of what they

asserted was waived by counsel below.

      Moreover, we agree with the trial court that the CYS record was

hearsay itself, and that it contained layers of hearsay statements within it.

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Specifically, the report discussed statements made by the victim, her

mother, and another family member.               Thus, Appellant was required to

demonstrate that each of those layers of hearsay was covered by an

exception to the rule precluding hearsay.         See Hreha v. Benscoter, 554

A.2d 525, 529 (Pa. Super. 1989) (“Where a business record contains

multiple levels of hearsay … it is admissible only if each level falls within a

recognized exception to the hearsay rule.”). In this vein, defense counsel at

trial only briefly argued that the victim’s statements in the report fell within

the ‘party opponent’ exception. See Pa.R.E. 803(25); N.T. Trial, 10/28/15,

at 43. The Commonwealth countered that the victim was not a party in this

case; rather, Appellant and the Commonwealth were the parties. N.T. Trial,

10/28/15, at 43. The trial court rejected defense counsel’s attempt to admit

the victim’s statement under the ‘party opponent’ exception, and Appellant

makes no argument on appeal that it erred in that regard.

      In sum, Appellant’s argument fails to demonstrate that the trial court

abused its discretion in precluding the admission of the CYS report.           The

report itself, while    admissible      under    the   business   record exception,

contained multiple layers of hearsay statements by the victim, her mother,

and another family member. Defense counsel stated that she was seeking

to admit those statements to prove the truth of what they asserted, yet

counsel failed to demonstrate the applicability of any exception to the rule

precluding the admission of those hearsay statements.                  Accordingly,

Appellant’s fifth issue is meritless.

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      In Appellant’s next claim, he argues that the trial court abused its

discretion by precluding certain testimony by his expert witness, Dr. Frank

M.   Dattilio.   Dr.   Dattilio   was    admitted,   without   objection   by   the

Commonwealth, “as an expert in the field of clinical and forensic psychology,

specifically in the area of treatment of abuse victims.” N.T. Trial, 10/28/15,

at 11. The court clarified, prior to the doctor’s taking the stand, that “his

testimony will be limited to the general behavioral characteristics of victims

of sexual assault pursuant to Title 42 [Pa.C.S.] § 5920.” Id. That statute

states:

      § 5920. Expert testimony in certain criminal proceedings

      (a) Scope.--This section applies to all of the following:

          (1) A criminal proceeding for an offense for which
          registration is required under Subchapter H of Chapter 97
          (relating to registration of sexual offenders).

          (2) A criminal proceeding for an offense under 18 Pa.C.S.
          Ch. 31 (relating to sexual offenses).

      (b) Qualifications and use of experts.--

          (1) In a criminal proceeding subject to this section, a
          witness may be qualified by the court as an expert if the
          witness has specialized knowledge beyond that possessed
          by the average layperson based on the witness's
          experience with, or specialized training or education in,
          criminal justice, behavioral sciences or victim services
          issues, related to sexual violence, that will assist the trier
          of fact in understanding the dynamics of sexual violence,
          victim responses to sexual violence and the impact of
          sexual violence on victims during and after being
          assaulted.




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          (2) If qualified as an expert, the witness may testify to
          facts and opinions regarding specific types of victim
          responses and victim behaviors.

          (3) The witness's opinion regarding the credibility of any
          other witness, including the victim, shall not be admissible.

          (4) A witness qualified by the court as an expert under this
          section may be called by the attorney for the
          Commonwealth or the defendant to provide the expert
          testimony.

42 Pa.C.S. § 5920 (footnote omitted).

     During Dr. Dattilio’s testimony, he was asked - without objection by

the Commonwealth - if he could provide reasons “why a child would make a

false allegation[]” of sexual abuse. N.T. Trial, 10/28/15, at 14. The doctor

opined:

     [Dr. Dattilio:] Well, there’s actually four clinical subtypes. The
     first and most common is when there is a custody issue or
     there’s intra[-]familial strife, one way or the other, a dispute
     between adults or family members. We find that 50 percent of
     false allegations come from that domain and is most common.

            And the second may be because there was a mental
     illness, could be a delusional disorder, a paranoid disorder, or
     could be some drugs involved; usually with older individuals,
     teenage, 15, 16, 17, that age.

          The third is when there may be conscious manipulation for
     reasons of secondary gain, to fabricate them.

     …

             And then the last is what we call iatrogenic….

     [Defense Counsel:] And what would that be?

     [Dr. Dattilio:] Literally, doctor or professional induced. And that
     can be deliberate, but it also can be non-deliberate by virtue of
     the fact that the individuals who investigate may be doing a less
     than adequate job in ferreting out the truth. And there can be a
     lot of reasons for that.

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            You know, law enforcement, they’re inundated with cases.
     … They’re busy, they don’t have a lot of time, they do the best
     that they can, but sometimes it’s harried. They do quicker
     interviews, and sometimes it may be induced by virtue of leading
     questions. And there’s stopgaps that help that. There’s certain
     structured programs that are empirically weighted, they’re
     designed. We train child advocacy programs and investigators
     to use them so that they don’t mislead and they protect the
     alleged victim, as well as the alleged perpetrator, so that it’s
     legally and dutifully bound.

Id. at 14-17.

     Defense counsel then asked the following question of Dr. Dattilio:

     [Defense Counsel:] Now, are there generally accepted or is there
     a method that’s preferable when interviewing children that are
     making these allegations so as to prevent any leading, tainted or
     the iatrogenic results that you’re talking about?

Id. at 17. The Commonwealth objected to this question, and a sidebar was

held, at which the Commonwealth argued as follows:

     [The Commonwealth:] Judge, the basis for the objection is if
     there’s a false report, that’s actually a crime. The person’s not a
     victim.

           This specifically covers victim[s] of sexual abuse and
     sexual violence. This is delving into false reports and false
     allegations.   I don’t think it’s covered by the statute.    …
     [B]ecause if someone makes a false report of rape, they end up
     getting charged and they’re a criminal, not a defendant.

     [Defense Counsel:] We’re not putting [the victim] in the seat of
     defendant.

     [The Court:] But it sounds like what you’re getting into is the
     area -- is law enforcement and investigative tactics, as opposed
     to behavioral characteristics of a sexual assault victim. So I’m
     going to sustain the objection.

Id. at 17-18.




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      Now, on appeal, Appellant argues that the court erred by sustaining

the Commonwealth’s objection to defense counsel’s question, which he

submits was a proper attempt to elicit Dr. Dattilio’s expert testimony about

“a victim’s response based upon varying methods used to question that

victim either by law enforcement or counselors.”       Appellant’s Brief at 25.

Characterizing the issue before us as one of statutory interpretation,

Appellant contends that section 5920 must be read as permitting the type of

testimony he sought to elicit from Dr. Dattilio. He reasons that “[a]n expert

cannot opine on what a victim’s response would be if the expert cannot also

discuss what the victim is responding to, i.e. the various methods of

questioning by police and counselors.” Id. at 26. Appellant further argues

that “[t]he statute specifically provides that responses ‘after being assaulted’

are a subject of the testimony, which would naturally include the questions

to which the victim is responding.       That the expert had concluded that

certain methods of questioning by police or counselors produce false

information from victims is also a ‘type’ of response that [] Appellant had a

statutory right to elicit from his expert.” Id.

      Preliminarily, we disagree with Appellant that, based on the record

before us, we can assess the entire scope of section 5920.          The record

makes clear that the trial court placed a limit on Dr. Dattilio’s testimony by

explicitly ruling that he could only opine about “the general behavioral

characteristics of victims of sexual assault pursuant to 42 [Pa.C.S.] § 5920.”

N.T. Trial, 10/28/15, at 11.    Appellant at no point objected to the court’s

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constraint.     We also point out that when the Commonwealth lodged its

objection to the at-issue question, Appellant did not present any of the

arguments he now raises on appeal, regarding the scope of section 5920;

instead, defense counsel simply stated, “We’re not putting [the victim] in the

seat of defendant.”      Id. at 18.   When the court ultimately sustained the

Commonwealth’s objection, it did so on the basis that the testimony sought

to be elicited did not pertain to “behavioral characteristics of a sexual assault

victim[,]” referring to the limit it had set on the scope of the doctor’s

testimony. Id. at 18. Consequently, because Appellant never argued before

the trial court that section 5920 allows the testimony he sought to elicit from

Dr. Dattilio, and he did not lodge any objection to the limit the court placed

on the doctor’s testimony, we cannot assess whether the statute, as a

whole, permits the sort of testimony Appellant attempted to elicit in this

case. Instead, we must limit our review to whether the trial court abused its

discretion in concluding that the desired testimony would violate its ruling

that   the    doctor’s   testimony must   be     limited   to   ‘general behavioral

characteristics of victims of sexual assault.’

       In conducting this assessment, we find it pertinent that in the question

to which the Commonwealth objected, defense counsel asked Dr. Dattilio to

opine on the preferred method for interviewing a child who was only then

alleging sexual abuse, but who had not yet been determined to be a victim

of such abuse. Given the precise language of the at-issue question, we are

not convinced that the doctor’s answer to that question would have been

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within the scope of the trial court’s limitation on his expert testimony.       In

other words, we ascertain no abuse of discretion in the trial court’s

conclusion that the testimony sought to be elicited from Dr. Dattilio -

regarding how to interview a child who may, or may not, have been sexually

abused    -   did     not   constitute   testimony    about   ‘general   behavioral

characteristics of a sexual assault victim.’         Accordingly, Appellant’s sixth

issue is meritless.

      In Appellant’s seventh and final issue, he contends that his sentences

for indecent assault are illegal because those offenses should have merged,

for sentencing purposes, with his convictions for EWOC.          Preliminarily, our

Supreme Court has stated:

      Whether Appellant's convictions merge for sentencing is a
      question implicating the legality of Appellant's sentence.
      Consequently, our standard of review is de novo and the scope
      of our review is plenary.

                                         ***

      Section 9765 provides:

         § 9765. Merger of sentences

         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.

      The statute's mandate is clear. It prohibits merger unless two
      distinct facts are present: 1) the crimes arise from a single
      criminal act; and 2) all of the statutory elements of one of the
      offenses are included in the statutory elements of the other.

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Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

      Here, Appellant claims that indecent assault is a lesser-included

offense of EWOC.       The indecent assault crime for which Appellant was

specifically convicted is defined as follows:

      (a) Offense defined.--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).      The offense of EWOC is defined in the Crimes

Code as follows:

      (a) Offense defined.--

          (1) A parent, guardian or other person supervising the
          welfare of a child under 18 years of age, or a person that
          employs or supervises such a person, commits an offense
          if he knowingly endangers the welfare of the child by
          violating a duty of care, protection or support.

18 Pa.C.S. § 4304(a)(1).

      Appellant concedes that each of these offenses requires a different

intent element. See Appellant’s Brief at 29 (“The mens rea for each crime

differ[s].”).   More specifically, he acknowledges that “[i]ndecent [a]ssault

requires an intent to arouse sexual desires, while [EWOC] requires [a]

knowing violation of a duty of care.”     Id. at 29 (citing 18 Pa.C.S. § 3126

(defining indecent assault and requiring the offense be committed “for the

purpose of arousing sexual desire in the person or the complainant”) and

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Commonwealth v. Cottam, 616 A.2d 988, 1005 (Pa. Super. 1992) (stating

that the mens rea for the crime of EWOC “is a knowing violation of a duty of

care”)). Appellant argues, however, that “our Supreme Court’s decision in

[Commonwealth v.] Jones[, 912 A.2d 815 (Pa. 2006),] strongly supports

merger despite this difference in the mens rea.”      Appellant’s Brief at 29.

According to Appellant, Jones establishes that in conducting a merger

analysis, the court must not only consider the statutory definitions of the

offenses, but it must also assess “the actual allegations involved.” Id.

      Appellant’s reliance on Jones is unconvincing.      Initially, he fails to

recognize that Jones is a plurality opinion, with “a ‘lead opinion’ approach to

merger and a ‘dissenting opinion’ approach to merger.” Commonwealth v.

Williams, 920 A.2d 887, 889 (Pa. Super. 2007). As our Supreme Court has

clarified, plurality decisions have “no precedential weight….” Baldwin, 985

A.2d at 835.   In any event, we recognize that, consistent with Appellant’s

argument, the lead opinion in Jones did adopt a “practical, hybrid approach”

that requires an evaluation of “the statutory elements [of each crime], with

an eye to the specific allegations leveled in the case.” Jones, 912 A.2d at

822. However, that approach has since been rejected by our Supreme Court

in Baldwin, where the Court held that “[a] plain language interpretation of

Section 9765 reveals the General Assembly’s intent to preclude the courts of

this Commonwealth from merging sentences for two different offenses that

are based on a single criminal act unless all of the statutory elements of one

of the offenses are included in the statutory elements of the other.”

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Baldwin, 985 A.2d at 837 (footnote omitted).          Because in this case,

Appellant acknowledges that the statutory definition of indecent assault has

at least one element that is not included in the definition of EWOC - i.e., an

intent to arouse sexual desire - his reliance on Jones does not demonstrate

that those two crimes should have merged for sentencing purposes.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017




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