J-S01018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JASON PATRICK LATSHAW

                            Appellant                No. 648 WDA 2014


            Appeal from the Judgment of Sentence March 11, 2014
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0003585-2012


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                       FILED JANUARY 09, 2015

       Appellant, Jason Patrick Latshaw, appeals from the judgment of

sentence entered in the Erie County Court of Common Pleas, following his

jury trial convictions for criminal solicitation of involuntary deviate sexual

intercourse (“IDSI”), criminal solicitation of indecent assault, corruption of

minors, and endangering the welfare of children.1 After careful review, we

affirm.

       The trial court sets forth the relevant facts and procedural history of

this appeal as follows:

          From February through May of 2012, L.K., J.K., and their
          mother, Tracey Ziegler lived with Appellant’s sister and
          children.2 L.K. and J.K. were ages 5 and 2, respectively,
____________________________________________


1
    18 P.S. §§ 902/3123; 902/3126(a)(7); 6301 (a)(ii); 4304(a)(1),
respectively.
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       when they began living at the residence.3        At times,
       another female and her three children would stay at the
       residence. Ziegler, who periodically dated Appellant since
       2006, would allow Appellant to visit and watch her children
       alone.
         2
           In May of 2012, a protection from abuse (PFA) order
         was entered against Ziegler on behalf of L.K. and J.K.
         From May of 2012 until the time of trial, L.K. and J.K.
         lived with their father.
         3
             J.K. turned three on April 29, 2012.

       On the day in question, while Appellant was alone with L.K.
       and J.K at the residence, he pulled off J.K.’s pants and
       diaper and commanded L.K. to lick and touch J.K.’s penis.4
       Afterwards, Appellant told L.K. she would be grounded if
       she told Ziegler.
         4
           At trial, L.K. testified that the event occurred in the
         summer of 2012. As discussed, infra, this event
         actually occurred earlier that year.

       Michelle Peterson, forensic interviewer at the Children’s
       Advocacy Center (“CAC”), interviewed L.K. on August 31,
       2012. At that time, L.K. told Peterson about the incident.

       On November 20, 2013, following a two-day jury trial,
       Appellant was found guilty of the foregoing offenses. This
       [c]ourt subsequently ordered a sexual violent predator
       (SVP) assessment pursuant to Pennsylvania’s version of
       “Megan’s Law,[”] the Sexual Offender Registration and
       Notification Act, 42 [Pa.C.S.] § 9799.10, et. seq.
       (“SORNA”).

       Appellant’s SVP hearing was held on March 11, 2014. At
       that time, Brenda A. Manno, a licensed clinical social
       worker and board member of the Pennsylvania Sexual
       Offender Assessment Board, testified to a reasonable
       degree of professional certainty that Appellant met the
       statutory criteria for classification as a sexually violent
       predator.   At the conclusion of the SVP hearing, this
       [c]ourt found that Appellant was a sexually violent
       predator.

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        Following the SVP hearing, Appellant was sentenced to the
        following: 8 to 20 years’ imprisonment at Count 1 (IDSI),
        consecutive to his current state sentence; 1 to 5 years’
        imprisonment at Count 2 (indecent assault), concurrent to
        Count 1; 1 to 5 years’ imprisonment at Count 3 (corruption
        of minors), consecutive to Count 1; and, 1 to 5 years’
        imprisonment at Count 4 (endangering welfare of
        children), consecutive to Count 3.

Trial Court Opinion, filed July 21, 2014, at 1-2 (citations to the record

omitted).

     On March 21, 2014, Appellant filed a motion to reconsider sentence,

which the court denied on March 24, 2014. Appellant filed a timely notice of

appeal on April 17, 2014. On April 22, 2014, the court ordered Appellant to

file a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b). After the court granted Appellant’s motion to extend the

time to file a Rule 1925(b) statement to June 13, 2014, Appellant timely

complied with the court’s order on June 12, 2014.

     Appellant raises the following issues for our review:

        [WHETHER] THE EVIDENCE IN THIS CASE WAS
        INSUFFICIENT TO PROVE THAT [APPELLANT] COMMITTED
        THE CRIMES FOR WHICH HE WAS CONVICTED WHEN THE
        VICTIM PROVIDED INCONSISTENT VERSIONS OF THE
        EVENTS AND WHEN THE FATHER OF THE CHILDREN HAD
        INFLUENCE OVER WHAT THEY SAID[?]

        [WHETHER] THE COURT ERRED IN FAILING TO PERMIT A
        CONTINUANCE OF THE TRIAL TO PERMIT [APPELLANT] TO
        CALL A WITNESS FROM THE OFFICE OF CHILDREN AND
        YOUTH AND IN FAILING TO PERMIT BUSINESS RECORDS
        FROM THE OFFICE OF CHILDREN IN YOUTH TO BE
        INTRODUCED AS EVIDENCE[?]


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         [WHETHER]     THE   LOWER    COURT   [COMMITTED]
         REVERSIBLE ERROR IN THAT ITS SENTENCE WAS
         MANIFESTLY EXTREME AND CLEARLY UNREASONABLE,
         AND NOT INDIVIDUALIZED AS REQUIRED BY LAW,
         ESPECIALLY IN ITS CONSECUTIVENESS[?]

Appellant’s Brief at 2.

      In his first issue, Appellant argues the testimony of one of his victims,

L.K., was incredible because she gave conflicting statements about the date

on which the crimes occurred.        Further, Appellant claims L.K.’s father

influenced L.K. to lie about the events.        Appellant concludes that the

Commonwealth presented insufficient evidence to support his convictions.

We disagree.

      When examining a challenge to the sufficiency of the evidence, our

standard of review is as follows:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.            In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [trier] of fact
         while passing upon the credibility of witnesses and the

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         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

      The offenses for which Appellant was convicted are defined by statute

as follows:

         § 902. Criminal solicitation

            (a) Definition of solicitation.--A person is guilty of
         solicitation to commit a crime if with the intent of
         promoting or facilitating its commission he commands,
         encourages or requests another person to engage in
         specific conduct which would constitute such crime or an
         attempt to commit such crime or which would establish his
         complicity in its commission or attempted commission.

18 Pa.C.S. § 902.

         § 3123. Involuntary deviate sexual intercourse

            (a) Offense defined.--A person commits a felony of
         the first degree when the person engages in deviate sexual
         intercourse with a complainant:

                                  *    *    *

                 (7) who is less than 16 years of age and the person
              is four or more years older than the complainant and
              the complainant and person are not married to each
              other.

                                  *    *    *

            (b) Involuntary deviate sexual intercourse with
         a child.—A person commits involuntary deviate sexual
         intercourse with a child, a felony of the first degree, when


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        the person engages in deviate sexual intercourse with a
        complainant who is less than 13 years of age.

18 Pa.C. § 3123.

        § 3126. Indecent assault

           (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.

        § 6301. Corruption of minors

           (a)     Offense defined.--

            (1) (i) Except as provided in subparagraph (ii),
        whoever, being of the age of 18 years and upwards, by
        any act corrupts or tends to corrupt the morals of any
        minor less than 18 years of age, or who aids, abets,
        entices or encourages any such minor in the commission of
        any crime, or who knowingly assists or encourages such
        minor in violating his or her parole or any order of court,
        commits a misdemeanor of the first degree.
                (ii) Whoever, being of the age of 18 years and
        upwards, by any course of conduct in violation of Chapter
        31 (relating to sexual offenses) corrupts or tends to
        corrupt the morals of any minor less than 18 years of age,
        or who aids, abets, entices or encourages any such minor
        in the commission of an offense under Chapter 31 commits
        a felony of the third degree.

18 Pa.C.S. § 6301.




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        § 4304. Endangering welfare of children

        (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.

     Instantly, the Commonwealth presented sufficient evidence to enable

the fact-finder to find every element of Appellant’s crimes beyond a

reasonable doubt. The trial court reasoned as follows:

        L.K. testified that Appellant forced her to lick and touch
        J.K.’s penis. Throughout her trial testimony, she described
        Appellant as the offender and was consistent as to where
        and how it happened. Because L.K. testified via closed-
        circuit television, her testimony, together with her
        mother’s in-court identification, was sufficient to establish
        that Appellant was the perpetrator. See, Commonwealth
        v. Brooks, 7 A.3d 852, 857 (Pa.Super.2010).
        Furthermore, the fact that J.K., who was six-years-old at
        the time of trial, testified that the event occurred in the
        summer of 2012, when it occurred earlier that year, is not
        dispositive. See Commonwealth v. Luktisch, 680 A.2d
        877, 880 (Pa.Super.1996) (the rule that the date of the
        commission of the offense be fixed with reasonable
        certainty is relaxed when the victim is a child);
        Commonwealth v. Groff, 548 A.2d 1237, 1242
        (Pa.Super.1988) (when a young child is a crime victim, it
        is often impossible to ascertain the exact date when the
        crime occurred “because the child may only have a vague
        sense of the days of the week, the months of the year, and
        the year itself. If such children are to be protected by the
        criminal justice system, a certain degree of imprecision
        concerning times and dates must be tolerated.”)

        It was for the jury to determine credibility, and it was
        permitted to believe all, part, or none of L.K.’s

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          testimony.[2]     Commonwealth v. Andrulewicz, 911
          A.2d 162, 166 (Pa.Super.2006), citing Commonwealth v.
          Adams, 882 A.2d 496, 499 (Pa.Super.2005). Clearly, the
          jury believed L.K.’s testimony.          Furthermore, L.K.’s
          testimony established all the elements of the offenses.
          [See] Commonwealth v. Charlton, 902 A.2d 554, 562
          (Pa.Super.2006)(finding that the uncorroborated testimony
          of a sexual assault victim, if believed by the trier of fact, is
          sufficient to convict a defendant).

Trial Court Opinion at 7-8.

       When viewed in the light most favorable to the Commonwealth as

verdict winner, the evidence was sufficient to sustain the jury’s verdict on all

counts. Accordingly, Appellant’s first issue is without merit.

       In his second issue, Appellant claims the court erred in denying his

continuance request. Specifically, Appellant argues that because the court

denied the introduction of the Office of Children and Youth (“OCY”) records,

the court should have allowed a continuance because OCY witness, Gina

Kane, was on medical leave at the time of trial, and therefore unavailable.3

Further, Appellant argues that the OCY records included an employee’s


____________________________________________


2
  The jury was also free to believe L.K.’s testimony, on cross-examination,
that her father did not have to remind her about what to say, and that she
did not talk to her dad about what she was going to say in court.
3
  Appellant does not explain exactly why Ms. Kane’s medical leave made her
“unable to testify.” He states in his brief: “The trial court implied that the
only proper course of action to take in this case would be to find the witness
who was on medical leave from her job and subpoena her to come testify in
court despite that leave.”




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opinion that L.K. and J.K.’s allegations were inconsistent and unfounded and

that the court erred by not admitting them into evidence.4 We disagree.

       Our standard of review regarding a trial court’s determination of a

continuance request is well-settled:

          “The grant or denial of a motion for a continuance is within
          the sound discretion of the trial court and will be reversed
          only upon a showing of an abuse of discretion.”
          Commonwealth v. Boxley, 948 A.2d 742, 746
          ([Pa.]2008) (citing Commonwealth v. Randolph, 873
          A.2d 1277, 1281 (Pa.2005)). “An abuse of discretion is
          not merely an error of judgment; rather discretion is
          abused when the law is overridden or misapplied, or the
          judgment exercised is manifestly unreasonable, or the
          result of partiality, prejudice, bias, or ill will, as shown by
          the evidence or the record[.]” Id. (internal quotation
          marks omitted).

Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa.Super.2014)

appeal denied, 95 A.3d 275 (Pa.2014). Substantively, we observe:


          “[a] bald allegation of an insufficient amount of time to
          prepare will not provide a basis for reversal of the denial of
          a continuance motion.” Commonwealth v. Ross, 57 A.3d
          85, 91 (Pa.Super.2012)[, appeal denied, 72 A.3d 603
          (Pa.2013)] (citing Commonwealth v. Ah Thank Lee, 566
          A.2d 1205, 1206 (Pa.Super.1989)[, appeal denied, 590
          a.2d 756 (Pa.1990)]). “An appellant must be able to show
          specifically in what manner he was unable to prepare for
          his defense or how he would have prepared differently had
          he been given more time. We will not reverse a denial of a
          motion for continuance in the absence of prejudice.” Id.

____________________________________________


4
  For purposes of disposition, we will first address Appellant’s continuance
claim, and then proceed to address Appellant’s evidence claim, both of which
are encompassed in his second issue for review.



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        (quoting Commonwealth v. Brown, 505 A.2d 295, 298
        (Pa.Super.1986)).

Id.

      Although Appellant contends that, if called, Ms. Kane would have

testified about the inconsistent and unclear interview of L.K., he admits in

his brief that he decided not to call Ms. Kane when he had the opportunity to

do so. He explains: “Counsel did not state the reasons on the record, but

the court’s requirement that he attempt to bring her into court, away from

her medical leave, may have played a part in that decision.”        Appellant’s

Brief at 9-10. Further, Appellant states: “No evidence was presented to the

court that the Commonwealth would have been prejudiced had the trial been

continued….”   Id. at 10.     Appellant has confused the standard for a

continuance motion.     We will not reverse a denial of a motion for

continuance in the absence of prejudice to the party requesting the

continuance. See Antidormi, supra. Whether the other party would have

been prejudiced had the motion been granted is of no consequence. Thus,

because Appellant does not show prejudice to himself, the court’s decision to

deny his motion for a continuance was not an abuse of discretion.

      Regarding Appellant’s claim that the court erred by not admitting the

OCY business records:

        Admission of evidence is within the sound discretion of the
        trial court and will be reversed only upon a showing that
        the trial court clearly abused its discretion. Admissibility
        depends on relevance and probative value. Evidence is
        relevant if it logically tends to establish a material fact in

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        the case, tends to make a fact at issue more or less
        probable or supports a reasonable inference or
        presumption regarding a material fact.

Commonwealth v. Levanduski, 907 A.2d 3, 13 (Pa.Super.2006) (en

banc), appeal denied, 919 A.2d 955 ([Pa.]2007) (quoting Commonwealth

v. Drumheller, 808 A.2d 893, 904 ([Pa.]2002), certiorari denied, 539 U.S.

919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003).

     Here, the trial court did not find the OCY records to be relevant, and

explained why it found the evidence inadmissible as follows:

        [The fact] that [the OCY official] may have found the
        accusations unfounded, that does not present admissible
        evidence at trial. I wouldn’t let a founded accusation in
        and her unfounded accusation is not admissible, nor are
        her conclusions that she found the children inconsistent or
        vague. That would be vouching. We’ve prohibited the
        Commonwealth from doing it, as it used to try to do in
        these cases, and we’ll prohibit the defense from doing it.
        We’re not going to get into trying this case by what OCY
        did or letting someone vouch or attack the credibility of the
        witnesses.

Trial Court Opinion, at 5-6 (quoting N.T. Trial, Day 1, 11/19/13, at 9-10).

We find no abuse of discretion in the trial court’s determination that the

evidence was irrelevant, and therefore inadmissible.

     In his final issue, Appellant submits that his sentence was lengthier

than necessary to accomplish the purposes of protecting the public and

rehabilitating the defendant.   Appellant claims the court failed to consider

mitigating factors, such as his lack of any previous conviction for sex crimes

and his rehabilitative potential.    He argues his sentence is manifestly


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excessive and clearly unreasonable, and concludes that we should vacate his

judgment of sentence. We disagree.

      Our standard of review for a discretionary aspects of sentencing claim,

is well-established.

         [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, 169-70 (Pa.Super.2010)

(internal citations omitted).

      Further, we note that challenges to the discretionary aspects of

sentencing do not entitle a petitioner to review as of right. Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011)           An appellant must satisfy

the following four-part test to invoke this Court’s jurisdiction when

challenging the discretion aspects of a sentence:




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        (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.

Allen, supra, at 1064.

     “The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis.” Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)[, appeal denied, 897 A.2d 451

(Pa.2006)]).   A substantial question exists where a defendant raises a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process. Id.

(quoting Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.Super.2003)).

However:

        An allegation that the sentencing court failed to consider
        certain mitigating factors generally does not necessarily
        raise a substantial question.         Commonwealth v.
        McNabb, 819 A.2d 54, 57 (Pa.Super.2003).            Accord
        Commonwealth v. Wellor, 731 A.2d 152, 155
        (Pa.Super.1999) (reiterating allegation that sentencing
        court “failed to consider” or “did not adequately consider”
        certain factors generally does not raise substantial
        question). Compare Commonwealth v. Felmlee, 828
        A.2d 1105, 1107 (Pa.Super.2003) (en banc) (stating
        substantial question is raised, however, where appellant
        alleges sentencing court imposed sentence in aggravated
        range     without   adequately     considering   mitigating
        circumstances).


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                                 *     *      *

         Although Pennsylvania’s system stands for individualized
         sentencing, the court is not required to impose the
         “minimum possible” confinement. [Commonwealth v.
         Walls, 926 A.2d 957, 965 (Pa.2007)]. Under 42 [Pa.C.S.]
         § 9721, the court has discretion to impose sentences
         consecutively or concurrently and, ordinarily, a challenge
         to this exercise of discretion does not raise a substantial
         question. Commonwealth v. Pass, 914 A.2d 442, 446-
         47 (Pa.Super.2006).

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super.2010).

      Here, Appellant filed a timely notice of appeal, and preserved his

issues in a post-sentence motion.       Further, Appellant’s brief includes a

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).       See Appellant’s Brief, p. 5.   However,

Appellant’s sentence was well within the statutory limits, and his allegations

that the court improperly imposed consecutive sentences and failed to

consider mitigating factors do not raise a substantial question. See Moury,

supra.

      Even if Appellant had raised a substantial question, the trial court

reasoned:

         Nevertheless, before imposing sentence, this [c]ourt
         considered the following:          (1) the pre-sentence
         investigative report; (2) Pennsylvania Sentencing Code
         and all its factors; (3) the Pennsylvania Sentencing
         Guidelines (4) the sexual violent predator expert report;
         (5) letter written by Appellant; (6) statements made by
         counsel and Appellant at time of sentencing; (7)
         Appellant’s history of being a victim of sexual abuse; and
         (8) the trial testimony.


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                                *     *      *

        The sentence was tailored to Appellant’s individual
        situation and the reasons for the sentence imposed were
        clearly set forth on the record. Any lesser sentence would
        have depreciated the nature of the offense.        Because
        Appellant’s sentence was within the statutory limits and
        not manifestly excessive, there was no sentencing error.

Trial Court Opinion at 11-12.

     The court acted within its discretion and Appellant’s final issue is

without merit. Accordingly, we affirm.

     Judgment of Sentence Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2015




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