J. S15035/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
JONATHAN COX,                            :         No. 3551 EDA 2016
                                         :
                        Appellant        :


         Appeal from the Judgment of Sentence, October 19, 2016,
           in the Court of Common Pleas of Montgomery County
             Criminal Division at No. CP-46-CR-0006302-2015


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 03, 2018

      Jonathan Cox appeals from the October 19, 2016 judgment of

sentence entered in the Court of Common Pleas of Montgomery County

following his conviction in a jury trial of one count of rape of a child, three

counts of statutory sexual assault (complainant under 16 years of age), and

one count each of aggravated indecent assault (complainant less than

16 years of age), indecent assault (complainant less than 13 years of age),

endangering the welfare of children, corruption of minors, and indecent

assault (complainant less than 16 years of age).1 The trial court sentenced

appellant to an aggregate term of incarceration of 30 years and 6 months to

76 years. We affirm.


118 Pa.C.S.A. §§ 3121(c), 3122.1(b), 3125(a)(8), 3126(a)(7), 4304(a)(1),
6301(a)(1)(ii), 3126(a)(8), respectively.
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     The trial court set forth the following:

           The victim, N.B., and three of her younger siblings
           began living with [appellant] and his family in
           Norristown, Montgomery County, after being
           removed from their mother’s house on March 25,
           2014.[Footnote 1] N.B. was 12-years-old at the
           time. Her family knew [appellant] because he was
           the bishop at their church, the Greater Refuge
           Temple of Deliverance, and he agreed to act as a
           foster parent.

                 [Footnote 1] The parties stipulated at
                 trial that N.B. was in [appellant’s] care
                 from March 25, 2014, to May 20, 2014.

           On April 4, 2014, at approximately 12:15 p.m.,
           [appellant] signed N.B. out of school for a doctor’s
           appointment.[Footnote 3] He subsequently told N.B.
           that the appointment had been cancelled and took
           her to his house in Norristown.

                 [Footnote 3] [Appellant] has not raised a
                 challenge to the weight or sufficiency of
                 the evidence against him.

           The two were alone in the house, sitting on the
           couch watching television, when [appellant] began to
           hug N.B. and kiss her on the face. N.B. moved to
           the floor, but [appellant] followed her. He put his
           hand inside her skirt and underwear and touched her
           vagina. [Appellant] eventually stopped and told N.B.
           not to tell anyone what had happened or the police
           would come and get them.

           On another occasion prior to May 4, 2014, N.B. and
           her three younger sisters were asleep at night on
           mattresses in the dining room of [appellant’s] house
           when N.B. awoke to find [appellant] putting his
           hands inside her pajama pants and underwear. N.B.
           pretended to be asleep because she was scared.
           [Appellant] again touched N.B.’s vagina.




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          A fire damaged [appellant’s] house on May 4, 2014,
          and he and his family had to find alternate living
          accommodations. Either that same night, or the
          evening of the following day, N.B. and her three
          younger sisters were staying at the church with
          [appellant], awaiting a call from [appellant’s] wife
          about a possible hotel room. While N.B.’s sisters
          were asleep, [appellant] told N.B. to go into the
          bathroom.      He pulled down N.B.’s pants and
          underwear and put his penis inside her vagina. He
          had vaginal intercourse with N.B. until he ejaculated.
          [Appellant’s] hands also touched the outside of
          N.B.’s vagina.

          On a fourth occasion, sometime before May 19,
          2014, [appellant], N.B. and her three younger
          siblings were at the church at night when [appellant]
          called for N.B. to come into his office. [Appellant]
          pulled down her pants and underwear, had her lean
          on a chair and he put his penis inside her vagina.
          [Appellant] ejaculated inside N.B. and had her touch
          his penis before sending her out of the office to
          check on her sisters.

          On May 19, 2014, [appellant] signed N.B. out of
          school for a doctor’s appointment at approximately
          1:20 p.m.        [Appellant] later told N.B. the
          appointment had been cancelled. He took her to a
          hotel room in King of Prussia, Montgomery County,
          that his family had rented after the fire. With the
          two alone in the room, he pulled up her shirt, pulled
          down her pants, kissed her breasts and engaged in
          vaginal intercourse with her.     He stopped after
          ejaculating inside N.B. Before leaving the room,
          [appellant] took a photograph on his cellular phone
          of N.B. with her shirt unbuttoned and her pants
          slightly pulled down. He also told N.B. not tell
          anyone what had happened or the police would come
          and get them.

          The following day, N.B. and her three younger sisters
          went to live with their uncle, E.D., and his wife in
          Philadelphia because [appellant’s] family no longer
          had the means to care for them.[Footnote 4] In


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          January the following year, E.D. had a discussion
          with the children about appropriate behavior after
          learning that one of N.B.’s younger sisters had been
          masturbating in the bathroom. He mentioned during
          the discussion that if anyone tried to touch the girls
          inappropriately, they should report it. N.B.
          approached E.D. after the discussion and disclosed to
          him that [appellant] had touched her and had sex
          with her when she was living with him.

                [Footnote 4] E.D. and has wife have
                since been granted permanent legal
                custody of N.B. and her younger sisters
                and the children continue to reside with
                them.

          [Appellant] was arrested following an investigation
          and the case proceeded to a three-day jury trial. The
          jury found [appellant] guilty of one count of rape of
          a child, three counts of statutory sexual assault, one
          count of aggravated indecent assault of a person less
          than 16 years of age, one count of indecent assault
          of a person less than 13 years old, one count of
          endangering the welfare of minor, one count of
          corruption of minors and one count of indecent
          assault of a person less than 16 years of age. This
          court later sentenced [appellant] to prison terms of
          20 to 40 years for rape of a child, 2 to 10 years each
          for    two    of  the    statutory    sexual   assault
          offenses,[Footnote 5] 3 1/2 to 7 years aggravated
          indecent assault, 1 to 3 years for indecent assault of
          a person less than 13, 1 to 3 years for endangering
          the welfare of a child offense and 1 to 3 years for
          corruption of minors.[Footnote 6] The sentences
          aggregated to 30.5 to 76 years.

                [Footnote 5] The remaining conviction
                for statutory sexual assault merged with
                the rape offense for purposes of
                sentencing.

                [Footnote 6] The court imposed no
                further penalty on the remaining
                convictions.


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           [Appellant] did not file a post-sentence motion. He
           filed a pro se notice of appeal. This court appointed
           the Public Defender’s Office to represent [appellant]
           and subsequently granted appointed counsel’s
           request for a 90-day extension of time to file a
           [Pa.R.A.P.] 1925(b) statement of errors. [Appellant]
           filed the Rule 1925(b) statement on April 24, 2017.

Trial court opinion, 5/18/17 at 1-5 (citations to notes of testimony omitted;

footnote 2 omitted).

     Appellant raises the following issues for our review:

           I.     Did the trial court erroneously sustain the
                  Commonwealth’s       objection    to    defense
                  questions regarding whether the [victim] had
                  ever observed her biological parents having
                  sex, where the defense had a constitutional
                  right to explore whether the child [victim] had
                  an alternative source of premature knowledge
                  about adult sexuality?

           II.    Did the trial court erroneously permit a
                  detective to offer an opinion as to whether the
                  signatures on various documents were those of
                  [a]ppellant, where the detective had no
                  expertise in the field of handwriting analysis
                  and where his opinion usurped the role of the
                  jury to determine the facts of the case?

           III.   Did the trial court erroneously permit a
                  detective to offer an opinion as to whether the
                  child [victim’s] “disclosures were credible[,”]
                  where the introduction of this opinion usurped
                  the role of the jury to determine the ultimate
                  issue of fact?

           IV.    Did the court impose a clearly unreasonable
                  sentence which was manifestly excessive under
                  the circumstances of the case and which
                  violated both 42 Pa.C.S.[A.] §9781(c) and the



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                    fundamental norms underlying the sentencing
                    process?

Appellant’s brief at 4-5.

      Appellant first complains that the trial court violated his constitutional

right to confront witnesses against him when it prevented him from

cross-examining the forensic interviewer who interviewed the victim as to

whether the victim had ever observed her biological parents having sex.

(Appellant’s brief at 17.)

             The Sixth Amendment guarantees a criminal
             defendant the right to confront witnesses against
             him, which includes the right to cross-examine
             witnesses. However, it is well settled that it is within
             the discretion of the trial court to determine the
             scope and limits of cross-examination and that an
             appellate court cannot reverse those findings absent
             a clear abuse of discretion or an error of law.

Commonwealth v. Whiting, 668 A.2d 151, 157 (Pa.Super. 1995)

(citations and internal quotations omitted).         Although “the allowance or

disallowance of questions on cross-examination is normally left to the sound

discretion of the trial judge[,] where limitations imposed by the court upon

cross-examination are such as plainly inhibit the ability of the accused to

obtain   a   fair   trial,   the   general   rule   is   manifestly   inapplicable.”

Commonwealth v. Spiewak, 617 A.2d 696, 702 (Pa. 1992).

      Here, during appellant’s cross-examination of the forensic interviewer,

the following took place:

             Q.     In this case, did you -- were you provided with
                    any background?


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            A.    So it is protocol for myself, as the interviewer,
                  to meet with the team before the family even
                  comes to Mission Kids [Child Advocacy
                  Center2].

                  In that pre-team meeting, as we call it, the
                  team -- anyone that knows the child in any
                  way lets me know about any communication or
                  developmental challenges that the child has.
                  Anything that I need to know in terms of how
                  to best communicate with the child.

                  If there has been an allegation said by the
                  child, I am informed about that.

            Q.    Okay. You are told what basically the factual
                  basis of the allegation is?

            A.    I am told that.

            Q.    This is what is being alleged against this
                  person, right?

            A.    Uh-huh.

            Q.    Okay. And are you -- if there are any medical
                  records, are you provided with those to review,
                  or they are not really part of your --

            A.    No.

            Q.    You don’t get involved in that, right?

            A.    Not typically.

            Q.    Children & Youth was there that day, correct?
                  Someone from Children & Youth was present?

2The forensic interviewer testified that Mission Kids Child Advocacy Center is
a nonprofit organization that serves Montgomery County by facilitating and
providing the forensic interview of a child whenever there is an allegation of
child abuse within the county. (Notes of testimony, 5/24/16 morning
session at 31.)


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            A.    I don’t remember exactly, but that is our
                  protocol.

            Q.    So typically they would be?

            A.    Yes.

            Q.    And were you provided with any background
                  regarding their family -- [the victim’s] family
                  history and situation?

            A.    I don’t remember. So no.

            Q.    There was an indication that the children --
                  [the victim] and her siblings had been exposed
                  to their biological parents having sex in front of
                  them?

            [THE COMMONWEALTH]: Objection.

            [DEFENSE COUNSEL]: Were you aware of that?

            THE COURT: Sustained.

            BY [THE DEFENSE]:

            Q.    You took notes with regard to this interview; is
                  that right?

Notes of testimony, 5/24/16 morning session at 47-49.

      The record demonstrates that after the trial court sustained the

Commonwealth’s objection, appellant did not request a sidebar or otherwise

act to preserve his current claim that his constitutional right to confrontation

was violated when the trial court sustained this objection.            Rather, the

record reflects that appellant continued cross-examination by pursuing

another line of questioning.    Additionally, appellant failed to preserve the



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issue he now attempts to raise in a post-trial motion. Therefore, appellant

waives this issue on appeal. 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);

see also Commonwealth v. Sanchez, 82 A.3d 943, 969 (Pa. 2013)

(same).

      Even assuming arguendo that appellant properly preserved this issue,

appellant fails to demonstrate how the trial court, in sustaining this

objection, limited appellant’s cross-examination of the forensic interviewer

so as to plainly inhibit appellant’s ability to obtain a fair trial. Moreover, the

record supports the trial court’s conclusion that:

            [appellant] also provided no factual foundation for
            the question, saying simply that “there was an
            indication” that N.B. and her siblings had been
            exposed to their parents having sex in front of them.
            While a defendant has a Sixth Amendment right to
            confront Commonwealth witnesses with “verifiable”
            facts, the right does not permit “fishing expeditions.”
            See [Commonwealth v.] Rosser, 135 A.3d
            [1077,] 1088-1089 [Pa.Super. 2016] (“the Sixth
            Amendment does not entitle the defendant to
            cross-examine a Commonwealth witness on a
            subject for which the defendant cannot provide a
            factual foundation.).

Trial court opinion, 5/18/17 at 8-9.

      Therefore, even if appellant had properly preserved this claim for our

review, it would fail, not only because the question lacked a factual

foundation, but also because appellant has entirely failed to demonstrate




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how the trial court inhibited his ability to obtain a fair trial by sustaining this

objection.

      Appellant next complains that the trial court abused its discretion when

it permitted Police Corporal James Angelucci to testify that the signature on

the victim’s April 4, 2014; April 30, 2014; and May 19, 2014 school sign-out

sheets matched the signature on appellant’s vital statistics form.3

      “On appeals challenging an evidentiary ruling of the trial court, our

standard of review is limited.    A trial court’s decision will not be reversed

absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d

1181, 1184 (Pa.Super. 2010) (citations omitted). “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.” Id. at 1184-

1185 (citations omitted). Where there is a question as to any writing, the

opinions of any person acquainted with the handwriting of the supposed

writer is deemed relevant. 42 Pa.C.S.A. § 6111(a)(1).

      Here, Corporal Angelucci first testified that he is familiar with

appellant’s handwritten signature. (Notes of testimony, 5/24/16 afternoon

session at 27.)    Over appellant’s objection, the trial court then permitted

Corporal Angelucci to testify that the signatures on the April 5, 2014;


3  Corporal Angelucci testified that when a person is arrested, he or she must
fill out a vital statistics form. (Notes of testimony, 5/24/16 afternoon
session at 27.)


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April 30, 2014; and May 19, 2014 school sign-out sheets matched the

signature on appellant’s vital statistics form.            (Id. at 28-31.)       Because

Corporal Angelucci testified that he is familiar with appellant’s handwritten

signature prior to testifying that the signatures on the school sign-out sheets

and the signature on the appellant’s vital statistics form match, we discern

no abuse of discretion. We further note that our review of the record reveals

that appellant testified that he took the victim out of school on April 5, 2014;

April 30, 2014; and May 19, 2014. (Notes of testimony, 5/25/16 morning

session     at   56-64.)     As     such,    appellant’s    testimony       corroborated

Corporal Angelucci’s testimony, as the purpose of the latter was to

demonstrate that appellant took the victim out of school on those dates.

Therefore, this claim lacks merit.

      Appellant next complains that the trial court abused its discretion by

permitting Corporal Angelucci to vouch for the credibility of the victim.

(Appellant’s brief at 26-27.) To bolster this claim, appellant compares the

corporal’s testimony to the misconduct of a prosecutor when that prosecutor

assures the jury that a witness is credible based on either the prosecutor’s

personal opinion or other information contained outside of the record. (Id.

at 25-26.) The record belies appellant’s claim.

      The    record   reflects    that   Corporal    Angelucci      testified   on    direct

examination,      without   objection,      that    the    school     sign-out       records

corroborated the disclosures that the victim made to the police in her



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statement.    (Notes of testimony, 5/24/16 afternoon session at 30.)          The

following then took place:

             Q.   Did you do anything else to corroborate what
                  [the victim] had disclosed in her statement?

             A.   Yes. I did a follow-up with her healthcare
                  provider.

             Q.   Why did you do that?

             A.   To ensure that she wasn’t taken out of school
                  on obvious days for legitimate purposes.

Id.

      Corporal Angelucci then testified as to the details of the follow-up

investigation that he conducted with respect to records that he had received

from the victim’s healthcare provider.    (Id. at 31-34.)      After this detailed

explanation, the following took place:

             Q.   So at this point you have the school records
                  and you have the dental records and you have
                  the records from Delaware Valley. What do
                  you think at this point?

             A.   That [the victim] --

             [DEFENSE COUNSEL]: Objection as to -- isn’t that
             the ultimate question here?

             [THE COMMONWEALTH]:              It   is   part   of   his
             investigation, Your Honor.

             THE COURT:      Overruled.      You can answer that
             question.

             [OFFICER ANGELUCCI]: That [the victim] was -- her
             disclosures were credible.



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                                     –––

            BY [THE COMMONWEALTH]:

            Q.    In what way?

            A.    In the dates that she was taken out of school
                  which coincide with -- she stated that she was
                  taken out of school two specific dates and that
                  those dates she did not go to the doctor’s, that
                  she was sexually assaulted.

            Q.    And your investigation revealed that how many
                  dates were unaccounted for?

            A.    Two.

            Q.    And then there are two others where she went
                  to the doctor’s?

            A.    Correct.

Id. at 34-35.    Appellant’s claim that Corporal Angelucci testified that the

witness was credible based on the corporal’s personal opinion or other

information contained outside of the record lacks record support. Contrary

to appellant’s claim, the record demonstrates that the corporal testified as to

the details of his investigation of documentary evidence that corroborated

the victim’s version of events. Therefore, this claim necessarily fails.

      Appellant finally challenges the discretionary aspects of his sentence.

            [T]he proper standard of review when considering
            whether    to    affirm   the    sentencing    court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the    judgment       exercised    was      manifestly
            unreasonable, or the result of partiality, prejudice,


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            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted; brackets in original).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [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 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).

Moury, 992 A.2d at 170 (citation omitted; brackets in original).




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      Here, although appellant filed a timely notice of appeal, he failed to

properly preserve his sentencing challenge because he neither raised the

challenge at sentencing nor filed a post-sentence motion to reconsider and

modify sentence. Therefore, appellant has failed to invoke our jurisdiction.4

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/3/18




4 We note that even if appellant had invoked our jurisdiction, it is obvious
that appellant would have failed to raise a substantial question. Appellant
argues that “after considering all of these [mitigating] factors, the court
imposed consecutive life sentences totaling a minimum of 30.5 to a
maximum of 76 years – the functional equivalent of a life sentence for a
54 year old man with major medical issues.” (Appellant’s brief at 29;
footnote 3 omitted.) Just as we have noted that an appellant is not entitled
to a volume discount when a court imposes consecutive sentences for
multiple crimes, we note that an appellant is neither entitled to a seasonal
discount when he commits his crimes in the autumn of his life nor a health
discount when he commits his crimes while infirm. See Commonwealth v.
Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995) (noting that a defendant is
not entitled to a “volume discount” for multiple crimes by having all
sentences run concurrently).


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