J-S09023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RAYMOND GRAVELY,

                            Appellant                No. 1144 WDA 2014


           Appeal from the Judgment of Sentence February 25, 2014
            In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0003249-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 24, 2015

        Raymond Gravely appeals from a mandatory judgment of sentence of

twenty-five to fifty years incarceration imposed by the trial court after a jury

found him guilty of unlawful contact or communication with a minor, criminal

solicitation to commit involuntary deviate sexual intercourse (“IDSI”) with a

child, dissemination of sexually explicit material to a minor, corruption of a

minor, and indecent assault.1 After careful review, we affirm.

        The victim in this case, thirteen at the time of trial, testified that

Appellant, who is his uncle and was his next door neighbor, repeatedly asked

him if Appellant could perform fellatio on him.       Additionally, the victim

maintained that Appellant frequently inquired if he could see the victim’s
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1
    The jury deadlocked on one count of indecent exposure.
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penis. The victim indicated that Appellant repeatedly would urinate in front

of him and his siblings and one time commented on the size of the victim’s

penis while the victim was going to the bathroom outside.        Appellant also

grabbed the victim’s genitalia while the victim was trying to urinate outside

in the woods. In addition, the victim testified that Appellant showed him a

pornographic movie inside Appellant’s workshop. The victim described the

movie as depicting a woman performing oral sex on a man while a second

male had sex with the woman.       During this incident, Appellant asked the

victim if he was hard and Appellant fondled himself.

       The allegations came to light, on May 16, 2012, after the victim told

his younger sister that he had a secret. The victim did not tell his sister, but

she told her mother that the victim had a secret. The victim’s mother asked

about the secret, and the victim informed her of Appellant’s activities. The

victim’s mother then confronted Appellant and telephoned police that same

day.   The events occurred over approximately two years, while the victim

was eleven and twelve years old.

       Additionally, the Commonwealth introduced, over objection, evidence

that Appellant was previously convicted of criminal solicitation to commit

IDSI with a minor, corruption of a minor, and indecent exposure in 1993.

The victim in that case was approximately ten to eleven years of age. That

victim, thirty-six at the time of trial, testified that Appellant had been his

stepfather.   During a five year period, Appellant asked the victim on four


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occasions if he could perform oral sex on the victim.          Further, Appellant

often urinated in front of that victim, showed him pornography in a

basement workshop and would masturbate and touch himself in front of the

then child.    The jury verdict slip instructed the jury to determine whether

Appellant had been convicted of the criminal solicitation and corruption of a

minor charges in 1993, which it did.2            Following the jury’s verdict, on

February 25, 2014, the court sentenced Appellant to a mandatory minimum

sentence of twenty-five to fifty-years incarceration under 42 Pa.C.S. §

9718.2(A)(1). Appellant filed a timely post-sentence motion contesting the

weight of the evidence on the dissemination of sexually explicit material to a

minor count and the admission of the prior convictions.

       The trial court denied those motions and issued an opinion in support

of that denial. This timely appeal ensued. Appellant raises three issues for

our review.

       I.     Whether the mandatory sentence imposed in Gravely’s
              case is unlawful[?]

       II.    Whether the trial court erred when it allowed evidence of
              Gravely’s prior conviction.

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2
  The trial court and parties were both aware of Alleyne v. United States,
133 S.Ct. 2151 (2013), and discussed at length whether the jury should
determine beyond a reasonable doubt whether the Commonwealth
established that Appellant was previously convicted of the crimes it
introduced into evidence.       Although Appellant initially contested the
admissibility of the prior crimes, he argued that the jury should have to
determine their existence beyond a reasonable doubt.



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          III.   Whether the verdict of guilty on count three (dissemination
                 of sexually explicit materials, 18 Pa.C.S. § 5903(c)(1)) was
                 against the weight of the evidence.

Appellant’s brief at 3.

          Appellant’s initial claim is based on Alleyne v. United States, 133

S.Ct. 2151 (2013), and Commonwealth v. Newman, 99 A.3d 86

(Pa.Super. 2014) (en banc). Alleyne held that the Sixth Amendment jury

trial right requires any fact, except for prior convictions, that mandatorily

increases a defendant’s minimum sentence, to be submitted and found

beyond a reasonable doubt by the fact-finder. See e.g. Commonwealth v.

Watley, 81 A.3d 108, 117 (Pa.Super. 2013) (en banc); cf. Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury and proved

beyond a reasonable doubt.”).

          Newman found that Pennsylvania mandatory minimum statutes,

unrelated to prior convictions, allowing a judge to sentence a defendant to a

mandatory minimum based on facts determined by a preponderance of the

evidence, are unconstitutional as a whole. However, since the mandatory at

issue falls within the exception to those cases, Appellant is entitled to no

relief.      Specifically, Appellant was subject to an increased mandatory

sentence based on a prior conviction.




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       In Almendarez–Torres v. United States, 523 U.S. 224 (1998), the

Supreme Court held that prior convictions do not have to be proven beyond

a reasonable doubt to enhance a sentence.           Our Supreme Court has

determined that the Pennsylvania Constitution does not afford greater

protections. Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004).

       Although compelling arguments have been advanced that the Sixth

Amendment jury trial right requires disputed prior convictions to be proven

beyond a reasonable doubt,3 Appellant does not allege that his Sixth

Amendment or Pennsylvania jury trial rights were violated; indeed, he

argues that it was error to allow the jury to consider his prior convictions.4

Further, Appellant’s jury trial rights were not infringed since the jury did

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3
  Apprendi v. New Jersey, 530 U.S. 466 (2000) (Thomas, J., concurring);
Harris v. United States, 536 U.S. 545 (2002) (Thomas, J., dissenting);
Almendarez–Torres v. United States, 523 U.S. 224 (1998) (Scalia, J.,
dissenting) (opining that where prior convictions result in a sentence that
otherwise exceeds the statutory maximum, a jury determination of the prior
convictions is required); but compare Commonwealth v. Aponte, 855
A.2d 800 (Pa. 2004); see also Aponte, supra (Saylor, J., concurring).
4
  Contradictorily, Appellant argues on appeal that the prior conviction in
question violates Alleyne, but asserts that the Commonwealth was not
permitted to introduce evidence of the prior conviction to the jury. Appellant
cannot have it both ways. It is untenable to permit a defendant to contest
introduction of prior convictions at the trial level and then argue that the
failure to prove those prior convictions to the jury warrants a differing
sentence and/or violates his jury trial rights. Here, the Commonwealth
requested that the jury be instructed to determine the prior conviction
beyond a reasonable doubt to overcome any potential Alleyne-based issue
and Appellant actually set forth that it would “be safer to submit it to them.”
N.T., 11/7/13, at 496, 502. The trial court granted that request.



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determine the prior conviction beyond a reasonable doubt. Finally, until the

United States Supreme Court revisits Almendarez–Torres or our Supreme

Court reexamines Aponte, Appellant is entitled to no sentencing relief.

       In his second issue, Appellant maintains that the trial court erred in

admitting     evidence    regarding     prior   convictions   for    similar   behavior.5

Specifically, criminal solicitation to commit involuntary deviate sexual

intercourse with a minor and corruption of a minor. Evidence of bad acts is

inadmissible to prove that a defendant has bad character or a criminal

propensity. See Pa.R.E. 404(b). However, bad acts evidence is admissible

for a host of reasons including to prove motive, intent, knowledge, absence

of mistake, common scheme, to establish identity, and as part of the chain

of   events    that   form    the    history    of   the   case.    Pa.R.E.    404(b)(2);

Commonwealth v. Brown, 52 A.3d 320 (Pa.Super. 2012). Here, the trial

court admitted the evidence to show a common scheme.                     The probative

value of the bad acts evidence must also outweigh its prejudicial impact in

order to be admissible.        Commonwealth v. Powell, 956 A.2d 406, 419

(Pa. 2008).     In considering whether the probative value of the bad acts

evidence outweighs its prejudicial nature, this Court has opined that:



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5
  Appellant also pled guilty to sexually abusing his stepdaughter from the
age of seven or eight to eleven or twelve. The facts of these crimes were
not introduced at trial.



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      courts must consider factors such as the strength of the “other
      crimes” evidence, the similarities between the crimes, the time
      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.” McCormick, Evidence § 190 at 811 (4th
      ed. 1992). See also Commonwealth v. Frank, 395 Pa.Super.
      412, 577 A.2d 609 (1990) (enumerating balancing test factors,
      including ability for limiting instruction to reduce prejudice).

Brown, supra at 326-327.       We consider the admission of such evidence

under an abuse of discretion standard. Commonwealth v. Patterson, 91

A.3d 55, 68 (Pa. 2014).

      Appellant argues that “the circumstances of the prior conviction lacks

the very high level of similarity to the present case[.]” Appellant’s brief at

12. According to Appellant, the Commonwealth merely demonstrated “that

the present case involves the same general class of crime as the prior case.”

Id.   He maintains that the similarities between this case and his prior

conviction are “common elements found in most cases where child sexual

abuse is alleged.”   Id. at 13.   Appellant adds that the prior convictions

occurred almost twenty years before the underlying offenses herein. In his

view, the previous crime was too remote in time to be relevant.

      The Commonwealth responds that because Appellant claimed that he

only urinated in front of the victim herein and the case was based solely on

the testimony of the child, evidence that he acted similarly toward a male

child of the same age was “relevant to prove motive, intent, absence of

mistake and common scheme.” Commonwealth’s brief at 14. It points out


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that the trial court determined similarities based on the conduct, both

victims had a familial relationship to Appellant, and the boys were the same

race, age, and sex.

      In addition, the Commonwealth refutes that the time lapse in this

matter compels reversal. Repeating the discussion of the trial court, it notes

that the time a defendant spends incarcerated is also a factor in considering

the remoteness of the previous conviction. The Commonwealth submits that

Appellant was incarcerated from 1993 until 2004 and absconded from his

probation in 2008. Considering these facts, it asserts that the time between

the crimes was not significant, especially where the similarity between the

crimes was significant.

      We find that the trial court did not abuse its discretion in admitting

evidence regarding Appellant’s prior convictions.        The previous victim

testified regarding the facts underlying the prior convictions. At the time of

the crimes, both victims were young white males, close in age. The victim in

the prior case was the son of Appellant’s former spouse. Instantly, Appellant

is the victim’s uncle, and lived next door. In both instances, Appellant pulled

out his penis in front of the boys, urinated in front of them, asked the

victims if they wanted to perform fellatio, showed the young boys

pornographic material in a workshop, and touched his penis in front of them.

Based on Appellant’s claim that he merely urinated in front of the victim, we

find that this evidence’s probative value outweighed its prejudicial impact.


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The evidence refuted any suggestion that Appellant accidently or mistakenly

exposed the victim to sexually explicit materials and inadvertently urinated

in front of the victims. It demonstrated that Appellant intended to show the

victim pornography for purposes of Appellant’s own arousal.

      The strength of the other crimes evidence was also considerable since

Appellant was found guilty of the previous behavior. Contrary to Appellant’s

representations, as discussed above, the similarities between the pervious

behavior and what transpired herein is substantial. The time lapse between

the crimes is mitigated by Appellant’s nine year period in jail and his

subsequent parole, and the fact that Appellant began his behavior within a

year of moving next door to the victim. Further, the alternative proof in this

matter was limited to the testimony of the victim and Appellant attempted to

attack that credibility. Finally, the court provided a cautionary instruction to

the jury. Admission of the prior convictions in this case was appropriate.

      Appellant’s remaining challenge is to the weight of the evidence

regarding the charge of dissemination of sexually explicit material to a

minor. A weight claim must be preserved in a timely post-sentence motion.

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012).

“Appellate review of a weight claim is a review of the exercise of discretion,

not of the underlying question of whether the verdict is against the weight of

the evidence.”   Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)

(emphases removed). Accordingly, “[o]ne of the least assailable reasons for


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granting or denying a new trial is the lower court's conviction that the

verdict was or was not against the weight of the evidence and that a new

trial should be granted in the interest of justice.” Id.

      A trial judge should not grant a new trial due to “a mere conflict in the

testimony or because the judge on the same facts would have arrived at a

different conclusion.”    Id.   Instead, the trial court must examine whether

“‘notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.’” Id. Only where the jury verdict “is so contrary to the evidence as

to shock one's sense of justice” should a trial court afford a defendant a new

trial. Id. A weight of the evidence issue concedes that sufficient evidence

was introduced.      Commonwealth v. Charlton, 902 A.2d 554, 561

(Pa.Super. 2006).

      Appellant preserved his weight claim in his post-sentence motion, and

was not directed to file a Pa.R.A.P. 1925(b) concise statement.            He now

argues that there was no physical evidence to support the victim’s “vague

description” of the pornographic video.        Appellant’s brief at 15.   Appellant

maintains, in a sufficiency of the evidence styled argument, that the victim’s

testimony about the video did not “establish the elements of Section 5903.”

He adds that since police did not uncover any such DVD when they searched

Appellant’s residence and workshop, the weight of the evidence does not

support his conviction.


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      Initially, we remind Appellant that challenges to the weight and

sufficiency of the evidence are distinct. Appellant’s weight claim is merely a

sufficiency of the evidence issue in disguise.    Appellant repeatedly asserts

that the victim’s testimony did not establish the elements of the crime. This

is an attack on the sufficiency of the evidence, which Appellant has waived

by not including it within his statement of questions. Pa.R.A.P. 2116(a). To

the extent that the Commonwealth did not discover the pornographic DVD,

such absence does not compel reversal under the weight of the evidence

paradigm. A weight claim requires the trial court to weigh evidence that was

introduced, not consider the lack of evidence.      Here, there is not even a

conflict in the evidence. Nor were there facts introduced that are so clearly

of greater weight that to ignore them or to give them equal weight with all

the facts would be to deny justice.

      The victim described the video as showing a female engaged in fellatio

on a male, while another male was having sex with the woman. The jury

was free to conclude that this testimony was credible and find Appellant

guilty of dissemination of sexually explicit material to a minor.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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