J. S10039/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                     v.                   :
                                          :
P.B.B.,                                   :         No. 1482 MDA 2019
                                          :
                          Appellant       :


          Appeal from the Judgment of Sentence Entered April 17, 2019,
                in the Court of Common Pleas of Lebanon County
                Criminal Division at No. CP-38-CR-0000585-2017


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JUNE 15, 2020

      P.B.B.1 appeals from the April 17, 2019 judgment of sentence entered

in the Court of Common Pleas of Lebanon County after he was convicted in a

jury trial of one count each of involuntary deviate sexual intercourse (“IDSI”)

with a child, indecent assault (complainant less than 13 years of age),

corruption of minors, and endangering welfare of children.2 The trial court

imposed an aggregate sentence of 15 to 30 years of incarceration. We affirm.

      The trial court set forth the following:

              In late August or early September 2017, K.B.
              disclosed to her parents that she had been sexually

1In order to protect the minor victim’s identity, we have redacted the caption
by removing appellant’s name and identifying him only by initials. See
Pa.Super.Ct. I.O.P. 424(A).

2  18 Pa.C.S.A. §§ 3123(b), 3126(7), 6301(a)(1)(i), and 4304(a)(1),
respectively.
J. S10039/20


             abused by her grandfather, [appellant].          K.B.’s
             parents reported the disclosure to Children and Youth
             Services (hereinafter “CYS”). On February 8, 2017,
             CYS went to the home of K.B. At this time, K.B.’s
             parents spoke with their middle child, B.B., about why
             CYS had been at their home.               During this
             conversation, B.B. disclosed to his mother that
             [appellant] had also sexually abused him. B.B.’s
             disclosure was reported to CYS.

             Due to the disclosures of K.B. and B.B., both children
             and their younger brother, S.B., were scheduled for
             forensic interviews at the Children’s Resource Center.
             During these interviews, both K.B. and B.B. disclosed
             being sexually abused by [appellant]. S.B. did not
             make any disclosures. Both K.B. and B.B.’s interviews
             go into detail about the alleged abuse.

             Due to the information disclosed on B.B.’s interview,
             a search warrant was obtained and executed on
             February 27, 2017. At the same time, Detective
             Todd Hirsch prepared and filed the Criminal Complaint
             in this matter. An arrest warrant was issued on
             February 27, 201[7].        On February 28, 2017,
             Detective Hirsch called [appellant] and asked him to
             come into the station for an interview. [Appellant]
             complied and the interview between [appellant] and
             Detective Hirsch was audio and video recorded. At
             the beginning of the interview, Detective Hirsch
             informed [appellant] that he was not under arrest and
             read him his Miranda[3] warnings. When Detective
             Hirsch advised [appellant] that he had the right to
             have an attorney present, [appellant] stated,
             “[B]ased on where this is going now, I am going to
             have a lawyer.” After clarification of this statement
             and another set of Miranda warnings, the interview
             continued.     Detective Hirsch continued to ask
             questions until [appellant] said, “I think I’m done.” At
             this point Detective Hirsch asked [appellant], “So you
             want a lawyer at this time?” [Appellant] replied, “I
             think I’m going to lawyer up.” Detective Hirsch then


3   Miranda v. Arizona, 384 U.S. 436 (1966).


                                      -2-
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          stopped the interview and [appellant] was placed
          under arrest.

          [Appellant] was charged with [the aforementioned
          crimes]. The parties filed various pretrial matters
          including [appellant’s] request to suppress the
          statements made during the interview with
          Detective Hirsch on February 28, 2017. The [trial
          c]ourt denied [appellant’s] motion and decided the
          cases of B.B. and K.B. should be separated and tried
          individually. The first trial with K.B. resulted in a hung
          jury and the [trial c]ourt declared a mistrial.

          Prior to trial, [appellant] filed a Motion in Limine
          regarding the allegations made by K.B.             On
          October 22, 2018, the [trial c]ourt heard argument on
          [appellant’s] motion.        During his argument,
          [appellant] outlined his concerns that B.B.’s first
          disclosure to his mother, [E.B.] (hereinafter
          “Mother”), was a result of [Mother’s] speaking to B.B.
          about CYS visiting the home.

          The [trial c]ourt decided Mother could testify that CYS
          was in the home, but she could not reference why they
          were in the home or anything about the allegations of
          K.B. This was allowed to provide some type of context
          as to why B.B. made a sudden disclosure to [M]other
          about [appellant].     The [trial c]ourt allowed the
          Commonwealth to introduce evidence that: (1) CYS
          was at the home to investigate a complaint;
          (2) Mother explained to B.B. what the complaint was
          about; (3) While doing this, she brought up the
          concepts of good touch and bad touch; (4) That as
          this was occurring, B.B.’s demeanor changed and he
          made a disclosure; and (5) what the actual disclosure
          was. At [t]rial, Mother made the following testimony:

                [CYS] had been to our house in the day
                prior, so we took [B.B.] downstairs to
                make sure he had an understanding of the
                visit, to make sure he understood why it
                was [CYS’s] job to come to the house and
                talk to him . . . [.] It seemed a little out
                of sorts to have a stranger come to the


                                    -3-
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                house and want to speak to you, see your
                room, take your photo, so we just gave
                him an explanation of why it was their job
                to do so. . . [.]

                As I’m talking about the body and your
                body as being your body, his head starts
                to go down. And then I started to hear
                sniffling and nose-snotting, and I say
                “[B.B.], what is going on?       What is
                wrong?” and then he said, you know, his
                Pop-Pop touched him in these ways. . . [.]
                And he said that Pop-Pop would tickle
                him, and lay on top of him and not get off
                of him. And he said he would lay on top
                of him and do what our dog does to our
                leg, which is like a dog-humping motion
                that a dog does to your leg.

          At this point, a sidebar was held and [appellant] made
          an objection to the testimony and requested a mistrial
          due to Mother’s testimony.         The objection was
          overruled, Mother’s testimony was not stricken from
          the record, and no curative instruction was given.

          During the [t]rial, B.B. testified about the abuse that
          occurred. B.B. testified [appellant] would hurt him by
          “putting his front part up my butt” and would use a
          “white lotion on his boy part” that [appellant] would
          get from a desk drawer near where the abuse
          occurred. B.B. also testified that while the abuse had
          occurred more than once until the age of ten, he was
          unable to remember how many times the abuse had
          happened. B.B. was twelve at the time of testimony.

          During deliberations, the [j]ury asked whether CYS
          was in the home of B.B. before disclosure and if so,
          why were they there. The [trial c]ourt informed the
          [j]ury that this was information they could not have
          and that they could not make a determination solely
          based on the trial c]ourt’s decision to not give the
          [j]ury this information. The jury convicted [appellant]
          of all charges. Sentencing was pushed out until 2019
          so the parties could have a second trial involving K.B.


                                   -4-
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             In March 2019, a second trial involving K.B. was held.
             Again, the jury was unable to reach a unanimous
             decision and the [trial c]ourt declared a second
             mistrial. After a discussion with the family, the
             decision was made to dismiss the matter involving
             K.B. and move forward with sentencing for the trial of
             B.B.

Trial court opinion, 8/13/19 at 2-5 (record citations omitted; ellipses in

original).

      Following imposition of sentence, appellant filed post-sentence motions,

which the trial court denied. Appellant then filed a timely notice of appeal.

The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).            Appellant timely

complied. The trial court then filed an order of court stating that it addressed

all of appellant’s claimed errors in the August 13, 2019 opinion that it filed

when it denied appellant’s post-sentence motions. (Order of court, 9/19/19.)

      Appellant raises the following issues for our review:

             [1.]   Did the trial court err in denying [] appellant’s
                    pre-trial motion regarding the suppression of his
                    statements after invoking his right to counsel?

             [2.]   Did the trial court err in overruling [appellant’s]
                    timely objection and request for a mistrial
                    regarding the testimony of [Mother] that [CYS
                    was] in the home of B.B. before his disclosure
                    of these underlying allegations?

             [3.]   Did the jury in this matter err when finding []
                    appellant guilty of all counts without sufficient
                    evidence to support said conviction?




                                       -5-
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            [4.]   Did the jury in this matter err and reach a
                   verdict that was contrary to and against the
                   weight of the evidence?

            [5.]   Did the trial court err when not taking into
                   consideration all the requisite factors when
                   imposing its sentence?

Appellant’s brief at 7 (extraneous capitalization omitted).

      Appellant first complains that the trial court erred when it denied his

motion to suppress statements made to Detective Hirsch. Appellant contends

that when he said, “Based on where this is going, I am going to have a lawyer,”

he invoked his right to counsel, but Detective Hirsch did not cease the

interrogation. (Appellant’s brief at 23.)

      Our standard of review for challenges to the denial of a suppression

motion is as follows:

            [We are] limited to determining whether the
            suppression court’s factual findings are supported by
            the record and whether the legal conclusions drawn
            from those facts are correct.             Because the
            Commonwealth prevailed before the suppression
            court, we may consider only the evidence of the
            Commonwealth and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole.            Where the
            suppression court’s factual findings are supported by
            the record, we are bound by these findings and may
            reverse only if the court’s legal conclusions are
            erroneous.       Where . . . the appeal of the
            determination of the suppression court turns on
            allegations of legal error, the suppression court’s legal
            conclusions are not binding on an appellate court,
            whose duty it is to determine if the suppression court
            properly applied the law to the facts. Thus, the
            conclusions of law of the courts below are subject to
            our plenary review.


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Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).

      “The scope of review from a suppression ruling is limited to the

evidentiary record created at the suppression hearing.” Commonwealth v.

Neal, 151 A.3d 1068, 1071 (Pa.Super. 2016) (citation omitted).         “Once a

motion to suppress evidence has been filed, it is the Commonwealth’s burden

to prove, by a preponderance of the evidence, that the challenged evidence

was not obtained in violation of the defendant’s rights.” Commonwealth v.

Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012) (citations omitted); see also

Pa.R.Crim.P. 581(H).

      At the outset, we note that the trial court determined that appellant was

not in custodial interrogation at the time that he made his statements. (Trial

court opinion, 8/13/19 at 7.) This was legal error.

            Statements made during custodial interrogation are
            presumptively involuntary, unless the accused is first
            advised of . . . Miranda rights. Commonwealth v.
            DiStefano, 782 A.2d 574, 579 (Pa.Super. 2001),
            appeal denied, 569 Pa. 716, 806 A.2d 858 (2002).
            Custodial interrogation is “questioning initiated by law
            enforcement officers after a person has been taken
            into custody or otherwise deprived of [his] freedom of
            action in any significant way.” Miranda, supra at
            444, 86 S.Ct at 1612, 16 L.Ed.2d at 706. “The
            Miranda safeguards come into play whenever a
            person in custody is subjected to either express
            questioning      or   its    functional     equivalent.”
            Commonwealth v. Gaul, 590 Pa. 175, 180, 912 A.2d
            252, 255 (2006), cert. denied, 552 U.S. 939, 128
            S.Ct. 43, 169 L.Ed.2d 242 (2007).                  Thus,
            “Interrogation occurs where the police should know


                                     -7-
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             that their words or actions are reasonably likely to
             elicit an incriminating response from the suspect.”
             Commonwealth v. Ingram, 814 A.2d 264, 271
             (Pa.Super. 2002), appeal denied, 573 Pa. 671, 821
             A.2d 586 (2003). “In evaluating whether Miranda
             warnings were necessary, a court must consider the
             totality of the circumstances . . . .” Gaul, supra.

Commonwealth v. Gonzalez, 979 A.2d 879, 888-889 (Pa.Super. 2009),

quoting Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008)

(en banc).

                   Whether a person is in custody for
                   Miranda purposes depends on whether
                   the person is physically denied of [her]
                   freedom of action in any significant way or
                   is placed in a situation in which [she]
                   reasonably believes that [her] freedom of
                   action or movement is restricted by the
                   interrogation.   Moreover, the test for
                   custodial interrogation does not depend
                   upon the subjective intent of the law
                   enforcement officer interrogator. Rather,
                   the test focuses on whether the individual
                   being interrogated reasonably believes
                   [her] freedom of action is being restricted.

             Commonwealth v. Clayton Williams, 539 Pa. 61,
             74, 650 A.2d 420, 427 (1994) (internal citations
             omitted). See also Commonwealth v. Mannion,
             725 A.2d 196, 202 (Pa.Super. 1999) (en banc)
             (stating whether person is in custody for Miranda
             purposes must be evaluated on case-by-case basis
             with due regard for facts involved); Commonwealth
             v. Peters, 434 Pa.Super. 268, 642 A.2d 1126, 1130
             (1994) (en banc), appeal denied, 538 Pa. 668, 649
             A.2d 670 (1994) (stating: “Among the factors the
             court utilizes in determining, under the totality of the
             circumstances, whether the detention became so
             coercive as to constitute the functional equivalent of
             a formal arrest are: the basis for the detention; the
             duration; the location; whether the suspect was


                                      -8-
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              transferred against [her] will, how far, and why;
              whether restraints were used; the show, threat or use
              of force; and the methods of investigation used to
              confirm or dispel suspicions”; fact that defendant was
              focus of investigation is relevant for determination of
              whether defendant was in “custody” but does not
              require per se Miranda warnings).

Williams, 941 A.2d at 30-31 (brackets in original).

       Here, the record reflects that Detective Hirsch contacted appellant and

asked to meet with him. (Notes of testimony, 10/26/17 at 55.) Appellant

agreed. (Id.) The meeting took place in an office “located a short distance

down the hallway from the [District Attorney’s] office.” (Id. at 56.) The digital

video recording (“DVR”) of the interview, which was admitted into evidence at

the suppression hearing as Commonwealth Exhibit 3, reveals that the room in

which the interview took place was very small, and it appears as though the

door   was    closed   when   the   interview   took   place.   In   addition   to

Detective Hirsch, a caseworker from CYS was present. (Id.) When the three

entered the room, appellant was told to sit down at the table, which he did.

(Id. at 57; see also DVR, Commonwealth Exhibit 3.) Detective Hirsch told

appellant that a microphone and camera were already in the room and asked

if he could audio and video record the interview.          (Notes of testimony,

10/26/17 at 57.) Appellant agreed. (Id.) Detective Hirsch then provided

appellant with Miranda warnings. (Id. at 59; see also DVR, Commonwealth

Exhibit 3.)




                                       -9-
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      Under the totality of the circumstances, the detention was coercive and

the functional equivalent of a formal arrest.4 Therefore, the trial court erred

when it concluded appellant was not in custody at the time he made his

statements.

      We must now determine whether appellant invoked his right to counsel

when he stated, “Based on where this is going now, I am going to have a

lawyer.”

              [W]hen an accused has invoked his right to have
              counsel present during custodial interrogation, a valid
              waiver of that right cannot be established by showing
              only that he responded to further police-initiated
              custodial interrogation even if he has been advised of
              his rights. The [United States Supreme Court has]
              explained that an accused, having expressed his
              desire to deal with the police only through counsel, is
              not subject to further interrogation by the authorities
              until counsel has been made available to him, unless
              the accused himself initiates further communication,
              exchanges, or conversations with the police. The
              purpose behind this rule is to prevent police from
              badgering a defendant into waiving his previously
              asserted Miranda rights.




4 We note that in addition to arguing that he was in custodial interrogation,
appellant also claims that because Detective Hirsch had initiated criminal
proceedings against him prior to the interview, appellant’s Sixth Amendment
right to counsel attached. (Appellant’s brief at 20-27.) In Commonwealth v.
McCoy, 975 A.2d 586 (Pa. 2009), our supreme court affirmed the legal
principle that the Sixth Amendment right to counsel attaches at the initiation
of adversarial judicial proceedings. Adversarial judicial proceedings trigger
when a criminal defendant initially appears before a judicial officer, learns of
the charge against him, and his liberty is subject to restriction. Id. at 590.
Here, although Detective Hirsch had filed a criminal complaint, appellant had
not appeared before a judicial officer, learned of the charges against him, and
his liberties had yet to be restricted.


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           The U.S. Supreme Court has held that in order to
           avoid difficulties of proof and to provide guidance to
           officers conducting interrogations, the determination
           of whether the right to counsel was invoked by the
           accused is an objective inquiry. Effective assertion of
           the Fifth Amendment right to counsel requires, at a
           minimum, some statement that can reasonably be
           construed to be an expression of a desire for the
           assistance of an attorney in dealing with custodial
           interrogation by the police. However, if the accused
           makes an ambiguous or equivocal reference that
           would lead an officer, in light of the circumstances, to
           believe only that the suspect might be invoking the
           right to counsel, police interrogation need not cease.
           The accused must articulate his desire to have counsel
           present sufficiently clearly that a reasonable police
           officer in the circumstances would understand the
           statement to be a request for an attorney.

Commonwealth v. Martin, 101 A.3d 706, 725-26 (Pa. 2014), cert. denied

sub nom. Martin v. Pennsylvania, 136 S.Ct. 201, 193 L. Ed. 2d 155 (2015)

(quotation marks, emphasis, and internal citations omitted).

     Here, the record reflects that at the beginning of the interview,

Detective Hirsch read appellant his Miranda warnings and went over the

Miranda warnings form, which appellant signed.          (Notes of testimony,

10/26/17 at 59; see also DVR, Commonwealth Exhibit 3.) During this time,

appellant stated, “Based on where this is going now, I am going to have a

lawyer.”   (Notes of testimony, 10/26/17 at 67-68; see also DVR,

Commonwealth Exhibit 3.) At that point, Detective Hirsch asked appellant if

he was invoking his right to remain silent or if he wanted the interview to

continue. (DVR, Commonwealth Exhibit 3.) Appellant stated that he would




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continue the interview at which time Detective Hirsch again provided appellant

with his Miranda warnings. (Id.)

      The trial court determined that appellant’s statement, that “based on

where this is going now, I am going to have a lawyer,” was ambiguous because

it “implied that [appellant] would acquire counsel at some point in the future.”

(Trial court opinion, 8/13/19 at 7.) There is support in the record for that

conclusion. (See DVR, Commonwealth Exhibit 3.) We further note that

            In Davis v. United States, 512 U.S. 452, 114 S. Ct.
            2350, 129 L. Ed. 2d 362 (1994), the United States
            Supreme Court explained that, when invoking a right
            to counsel under Miranda, a suspect must do so
            unambiguously. Id. at 459. If a suspect makes a
            statement regarding the right to counsel that is
            ambiguous or equivocal, the police are not required to
            end the interrogation, nor are they required to ask
            questions designed to clarify whether the suspect is
            invoking his Miranda rights. Id. at 461-62. In
            Davis, the Court concluded that the suspect’s
            statement, “Maybe I should talk to a lawyer,” was not
            a request for counsel, and, therefore, law enforcement
            agents were not required to cease questioning. Id. at
            462.

Commonwealth v. Frein, 206 A.3d 1049, 1065 (Pa. 2019).

      Here, when appellant made the statement, “Based on where this is going

now, I am going to have a lawyer,” Detective Hirsch did cease questioning in

an attempt to clarify whether appellant was invoking his Miranda rights.

Appellants’ constitutional right to counsel was not violated.




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      Appellant next complains that the trial court abused its discretion when

it denied his motion for a mistrial after Mother testified that CYS was present

in the family home prior to B.B.’s disclosure of sexual abuse.

            In criminal trials, declaration of a mistrial serves to
            eliminate the negative effect wrought upon a
            defendant when prejudicial elements are injected into
            the case or otherwise discovered at trial. By nullifying
            the tainted process of the former trial and allowing a
            new trial to convene, declaration of a mistrial serves
            not only the defendant’s interest but, equally
            important, the public’s interest in fair trials designed
            to end in just judgments. Accordingly, the trial court
            is vested with discretion to grant a mistrial whenever
            the alleged prejudicial event may reasonably be said
            to deprive the defendant of a fair and impartial trial.
            In making its determination, the court must discern
            whether misconduct or prejudicial error actually
            occurred, and if so, . . . assess the degree of any
            resulting prejudice. Our review of the resulting order
            is constrained to determining whether the court
            abused its discretion. Judicial discretion requires
            action in conformity with the law on facts and
            circumstances before the trial court after hearing and
            consideration. Consequently, the court abuses its
            discretion if, in resolving the issue for decision, it
            misapplies the law or exercises its discretion in a
            manner lacking reason.

Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016) (citations

omitted; brackets in original). The grant of a mistrial is an extreme remedy

that is required “only when an incident is of such a nature that its unavoidable

effect is to deprive the appellant of a fair and impartial tribunal.”

Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa.Super. 1998)

(en banc) (citation omitted).




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      Here, the record reflects that the trial court heard pre-trial oral

argument      on   defense   counsel’s    motion   in   limine   to   preclude   the

Commonwealth from eliciting testimony from Mother that CYS visited the

family home prior to B.B.’s disclosure because it was investigating sexual

abuse allegations lodged against appellant by B.B.’s sister, K.B. (Notes of

testimony, trial, 10/22/18 at 10-25.) Following oral argument, the trial court

ruled that:

              [Mother] can testify that [CYS was] there to
              investigate an allegation, a report, and [Mother] was
              explaining what the deal was and that is when [B.B.]
              broke down and cried. That is when he said what he
              said. . . . I think it gets you to the point that there
              was a complaint made, and no one has to know who
              that was about. . . . You can say there was a
              complaint made with [CYS] and what the complaint
              was. You can say someone made sexual abuse
              allegations and they were there to investigate that.
              We just can’t say that it dealt with [K.B.]

Id. at 24.

      At trial, Mother testified on direct examination as follows:

              Q.    So let’s talk about this disclos[ure]. Can you
                    give the jury an idea of what was going on; like
                    what did [B.B.] tell you, what was happening?

              A.    [CYS] had been to our house in the day prior,
                    so we took [B.B.] downstairs to make sure he
                    had an understanding of the visit, to make sure
                    he understood why it was [CYS’s] job to come
                    to the house and talk to him and --

              Q.    Can I stop you for a second. Was he asking you
                    questions?




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            A.    Not that I recall, just that it seemed a little out
                  of sorts to have a stranger come to the house
                  and want to speak to you, see your room, take
                  your photo, so we just gave him an explanation
                  of why it was their job to do so.

Notes of testimony, trial, 10/23/18 at 102-103.

      At this point, appellant’s counsel requested a sidebar.           At sidebar,

appellant’s counsel objected and advanced the following argument:

            Your Honor, at this point in time I’m going to object
            to the question and the information given. I think it’s
            well within what we talked about yesterday with
            regard to what was going to be disclosed to this jury
            as a result of this disclosure and what was out of
            bounds. I think the line was -- in my opinion, the line
            has been crossed as a result of that, and I think this
            jury has heard too much with regard to why [CYS] was
            at the home. I’m asking for a mistrial as a result of
            that.

Id. at 103-104.

      The record further reflects that the trial court denied appellant’s motion

for mistrial and permitted the Commonwealth to briefly lead the witness to

assure that she did not testify as to the reason why CYS was visiting the home.

(Id. at 104.) Our review of the record demonstrates that the witness never

testified as to the reason CYS was visiting the home.

      Appellant nevertheless contends that the trial court abused its discretion

in denying the motion for mistrial because the jury was “left to wonder why

and how it came that CYS was in the home of [B.B.] before [B.B.] even

disclosed any alleged wrongdoing at the hands of [a]ppellant.” (Appellant’s

brief at 28.) To support his claim that the prejudice may reasonably be said


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to have deprived appellant of a fair and impartial trial, appellant notes that

during deliberations, the jury submitted the following question: “[Was CYS]

in [B.B.’s] home before his disclosure?” and, “[I]f so, why?” (Appellant’s brief

at 29; see also notes of testimony, trial, 10/25/18 at 109.)

      Questions from the jury are common and do not create a presumption

of jury confusion.     Commonwealth v. Weaver, 768 A.2d 331, 335

(Pa.Super. 2001) (citation omitted). Where a jury returns with a question,

the trial court has a duty to provide additional instructions as it deems

necessary for clarification. Id.

      Here, the trial court brought the jury back and answered the question,

as well as two others not relevant to this appeal, as follows:

            Okay folks, we assembled Counsel and I read your
            questions to them. They are now a part of the record.
            The steno is here and took those down.

            And the answer to you simply is this: I can’t help you
            with these questions and I can’t tell you the answers.
            That is the simple answer.

            As it relates to the trial testimony, both counsel made
            objections and some were sustained and overruled,
            that is not [--] they don’t keep a running track of that.
            That is not a win or a lose thing. That is an, is
            evidence relevant thing. And as it relates to some of
            these questions that you gave me, there was a prior
            discussion on should this come in, is this relevant,
            judge you decide. I made a ruling, and it didn’t come
            in. You can’t take anything from that, much like you
            can’t take anything from someone making an
            objection that I either overruled or sustained. You
            can’t read into that.

Id. at 112-113.


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      Our review of the record supports the trial court’s conclusion that

because Mother did not testify as to the reason why CYS was in the home prior

to B.B.’s disclosure of sexual abuse, there was no prejudicial event that

warranted a mistrial. The record also supports the trial court’s conclusion that

when the jury inquired as to whether CYS was in the home prior to

B.B.’s disclosure and, if so, why, the trial court properly instructed the jury

that it could not answer the question and that the jury was not permitted to

“read into that.”    The law presumes that the jury follows the trial court’s

instructions. Commonwealth v. Rush, 162 A.3d 530, 539-540 (Pa.Super.

2017) (citation omitted). We discern no abuse of discretion.

      Appellant next challenges the sufficiency of the evidence to sustain his

convictions.    It is well settled that when challenging the sufficiency of the

evidence on appeal, that in order to preserve that issue for appeal, an

appellant’s Rule 1925(b) statement must specify the element or elements

upon which the evidence was insufficient. Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010)

(citation and internal quotation marks omitted).

      In his Rule 1925(b) statement, appellant frames his sufficiency

challenge as follows: “Based on the testimony and evidence offered by the

Commonwealth, the [j]ury did not have sufficient evidence to convict

[appellant].”   (Appellant’s “statement of matters complained of on appeal

pursuant to 1925(b),” 9/18/19 at 1, ¶ 3 (full capitalization omitted).) Because



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appellant failed to specify the element or elements of the crime or crimes upon

which he now claims the evidence was insufficient, appellant waives this issue

on appeal. See Gibbs, 981 A.2d at 281.

      Nevertheless, a reading of appellant’s brief on this issue reveals that

appellant challenges the credibility of the victim and offers a theory as to how

appellant’s DNA evidence was found on a couch. (Appellant’s brief at 9.) In

so doing, appellant challenges the weight of the evidence, not its sufficiency.

See Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003)

(reiterating that a sufficiency of the evidence review does not include a

credibility assessment; such a claim goes to the weight of the evidence);

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997).

      In his fourth issue, appellant raises a weight of the evidence challenge.

            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.     Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the evidence.
            One of the least assailable reasons for 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted;

emphasis omitted).




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J. S10039/20


            The weight of the evidence is exclusively for the finder
            of fact who is free to believe all, part, or none of the
            evidence and to determine the credibility of the
            witnesses. An appellate court cannot substitute its
            judgment for that of the finder of fact. Thus, we may
            only reverse the . . . verdict if it is so contrary to the
            evidence as to shock one’s sense of justice.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).

      Here, appellant sets forth the same challenges to the victim’s credibility

and offers the same theory as to how appellant’s DNA evidence was found on

a couch that he set forth in his previous challenge. In so doing, appellant

invites this court to assess witness credibility and reweigh the evidence. “The

jury, as fact-finder[, however,] had the duty to determine the credibility of

the testimony and evidence presented at trial.” Commonwealth v. Talbert,

129 A.3d 536, 546 (Pa.Super. 2016) (citation omitted).          Appellate courts

cannot and do not substitute their judgment for that of the fact-finder. See

id. Here, a jury of appellant’s peers weighed the evidence and assessed the

credibility of the witnesses and determined that the Commonwealth’s evidence

proved beyond a reasonable doubt that appellant committed IDSI, indecent

assault, corruption of minors, and endangering the welfare of children. After

carefully reviewing the record, we conclude that the jury’s verdict was not so

contrary to the evidence so as to shock one’s sense of justice. Rather, our

review of the record supports our conclusion that the trial court properly

exercised its discretion in denying appellant’s weight of the evidence claim.




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J. S10039/20

      In his final claim, appellant 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, 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


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J. S10039/20


                  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).

      Here, appellant filed a timely notice of appeal and a motion to reconsider

the sentence.   Appellant’s brief, however, does not include a Rule 2119(f)

statement. Because the Commonwealth did not object, we will proceed to

determine   whether       appellant   raises    a   substantial   question.   See

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004) (reiterating

that “when appellant has not included a Rule 2119(f) statement and the

appellee has not objected, this [c]ourt may ignore the omission and determine

if there is a substantial question that the sentence imposed was not

appropriate, or enforce the requirements of 2119(f) sua sponte, i.e., deny

allowance of appeal.”).

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 A.2d

1013, 1018 (Pa.Super. 2003) (citation omitted). A substantial question exists

“only when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Sierra, 752 A.2d at 912-13.



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J. S10039/20

      Here, appellant concedes that his sentence falls within the sentencing

guidelines range. (Appellant’s brief at 40.) Nevertheless, appellant complains

that “this sentence is in the top end of the standard range and the [trial] court

offered little explanation as to why it chose the sentence it did for a

seventy-four year old man with no prior criminal record and a remarkable

resume of community service.” (Id.)

      Generally, a sentence that falls within the sentencing guidelines fails to

raise a substantial question. See Commonwealth v. Maneval, 688 A.2d

1198, 1199-1200 (Pa.Super. 1997).        Moreover, an argument that the trial

court failed to consider mitigating factors in favor of a lesser sentence does

not   present   a     substantial   question   appropriate   for   our   review.

Commonwealth v. Hanson, 856 A.2d 1254, 1257-1258 (Pa.Super. 2004)

(citation omitted).     Furthermore, the trial court had the benefit of a

pre-sentence investigation report and was certainly aware of all relevant

information and alleged mitigating factors.     “Our Supreme Court has ruled

that where pre-sentence reports exist, the presumption will stand that the

sentencing judge was both aware of and appropriately weighed all relevant

information contained therein.” Commonwealth v. Griffin, 804 A.2d 1, 8

(Pa.Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied,




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J. S10039/20

45 U.S. 1148 (2005). Therefore, appellant has failed to raise a substantial

question for our review.5

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2020




5 Appellant also complains that he is entitled to a lesser sentence because the
trial court imposed sentence when he was 74 years old. (Appellant’s brief
at 40.) Just as we noted in Commonwealth v. Hoag, 665 A.2d 1212, 1214
(Pa.Super. 1995), that a defendant is not entitled to a “volume discount” for
multiple crimes by having all sentences run concurrently, appellant is not
entitled to a seasonal discount because he committed his crimes in the winter
of his life.


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