J-S21002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 VINCENT PARKER                          :
                                         :
                    Appellant            :   No. 1343 WDA 2016

            Appeal from the Judgment of Sentence July 19, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0011435-2015


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                              FILED JULY 11, 2018

      Appellant, Vincent Parker, appeals from the judgment of sentence

entered on July 19, 2016, as made final by the denial of Appellant’s

post-sentence motion on August 11, 2016. We affirm.

      The trial court ably summarized the underlying facts of this case. As

the trial court explained:

        [O]n June 15, 2015, [eight-year-old M.W.] and [11-year-old
        T.W.] were living with [T.W.’s] grandmother, [L.W.], in her
        apartment in the North Side of the City of Pittsburgh.
        [Appellant was L.W.’s] boyfriend [at the time. Appellant]
        lived in the same building [as L.W. and] was always present
        [in L.W.’s] apartment. . . .

        [On the afternoon of June 15, 2015, M.W. and T.W.] had gone
        to the community pool and returned to the apartment, where
        they were listening to music and dancing. [L.W.], who used
        a motorized wheelchair, returned to the apartment at some
        point and went to [lie] down in her bedroom because she had
        been drinking. Shortly thereafter, [Appellant] returned to the
        apartment and sat in a recliner in the room where [T.W. and
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          M.W.] were dancing. The girls soon noticed that [Appellant]
          was touching his penis through his pants and he eventually
          pulled down his pants, exposing his penis to them and began
          to masturbate. He ejaculated, and the girls noticed “white
          sperm” coming out of his penis. . . .

          [Appellant] went to the bathroom and when he returned, he
          took [M.W.’s] pants off, put his mouth on her genital area[,]
          [and] attempted to put his penis inside her vagina. [M.W.]
          kicked him and pulled his hair and was eventually able to free
          herself. [Appellant] then touched and rubbed [T.W.’s] genital
          area with his hand. Thereafter, [Appellant] wanted the girls
          to touch his penis. [M.W.] got maple syrup from the kitchen
          and poured it on his penis and [Appellant] told them to lick
          it, but they did not. Instead[,] the girls got spoons from the
          kitchen and used them to touch his penis. [Appellant] used
          a dish towel from the kitchen to wipe himself and left the
          apartment and the girls went to sleep.

          The next morning, . . . [L.W.’s] home health aide[] came to
          the apartment to provide care [to L.W.] The girls told her
          what had happened, and she insisted that the girls tell their
          grandmother and call the police. She went through the
          garbage and located the syrup-stained dish towel, put it in a
          Giant Eagle bag and gave it to the police when they arrived.
          Upon questioning, [Appellant] agreed to waive his Miranda[1]
          rights and denied all sexual contact with the girls, but stated
          that when he watched them dancing, “he could see it in their
          eyes.”

                                           ...

          [Appellant] was charged with criminal attempt, involuntary
          deviate sexual intercourse with a child, unlawful contact with
          a minor, two [] counts of corruption of minors, two [] counts
          of indecent assault of a person under 13, indecent



____________________________________________


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




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         exposure[,] and two [] counts of endangering the welfare of
         a child.[2] . . .

Trial Court Opinion, 8/31/17, at 1-2 and 17-18 (internal footnotes and

citations omitted) (some internal capitalization omitted).

       Prior to trial, the Commonwealth moved to obtain the trial court’s

permission to ask the following question during voir dire: “Under Pennsylvania

law, a victim’s testimony standing alone, if believed by you, is sufficient proof

to find the defendant guilty in a sexual assault case.       Can you follow this

principle of law if instructed?”           Commonwealth’s Requested Voir Dire

Questions, 4/13/16, at 1 (some internal capitalization omitted).

       Appellant objected to the manner in which the Commonwealth phrased

its proposed question. Specifically, Appellant declared:

         [Appellant] objects to the use of the word "victim" in a
         proposed voir dire question as it is inherently prejudicial. This
         is true especially considering that there is no "victim" in any
         criminal case unless and until the case is proven beyond a
         reasonable doubt to a finder of fact and a verdict is rendered.
         The use of the word "victim" here implies that the Court or
         some other part of the criminal justice system has already
         found a [complainant’s] allegations to be truthful and
         meritorious.

                                           ...

         In the event that the court grants the Commonwealth's
         request for this proposed question, [Appellant] requests that
         the court change the word "victim" to "complainant."


____________________________________________


218 Pa.C.S.A. §§ 901(a), 3123(b), 6318(a)(1), 6301(a)(1)(ii), 3126(a)(7),
3127(a), and 4304(a)(1), respectively.


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         Counsel also objects to this question because its wording
         could leave a potential juror to conclude that, so long as he
         or she believes the complainant, he or she may convict the
         defendant regardless of whether the defendant's guilt has
         been proven beyond a reasonable doubt or regardless of
         whether each and every element of the individual crimes
         charged has been demonstrated.

         If the court allows this question, [Appellant] requests that the
         italicized language be added to the question:            "Under
         Pennsylvania Law, a complainant's testimony standing alone,
         if believed by you, is sufficient proof to find the defendant
         guilty in a sexual assault case, so long as the elements of the
         crimes charged are proven, and the defendant's guilt is
         otherwise established beyond a reasonable doubt. Can you
         follow this principle of law if instructed?"

Appellant’s Response to Commonwealth’s Request for Additional Voir Dire,

4/19/16, at 2-3 (some internal capitalization omitted) (internal paragraphing

omitted) (italicization in original).

      If a transcript exists of the voir dire proceedings, Appellant has not

provided it to this Court. See Pa.R.Crim.P. 631(D) (“Voir dire, including the

judge's ruling on all proposed questions, shall be recorded in full unless the

recording is waived. The record will be transcribed only upon written request

of either party or order of the judge”); see also Commonwealth v. Reed,

971 A.2d 1216, 1219 (Pa. 2009) (“[i]t is an appellant’s duty to ensure that

the certified record is complete for purposes of review”). Nevertheless, the

parties agree that the trial court permitted the Commonwealth to ask the

question it requested, i.e., “[u]nder Pennsylvania law, a victim’s testimony

standing alone, if believed by you, is sufficient proof to find the Defendant




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guilty in sexual assault cases.      Can you follow this principle of law if

instructed?” See Appellant’s Brief at 20; Commonwealth’s Brief at 3.

      Following trial, the jury found Appellant guilty of every charged crime.

N.T. Trial, 4/27/16, at 303-307. However, “on April 28, 2016, [the trial] court

vacated the conviction for involuntary deviate sexual intercourse with a child

sua sponte.” Trial Court Opinion, 8/31/17, at 2; see also N.T. Sentencing

Hearing, 7/19/16, at 2. On July 19, 2016, the trial court sentenced Appellant

to serve two consecutive terms of 50 to 100 months in prison for his criminal

attempt and unlawful contact with a minor convictions, for an aggregate term

of 100 to 200 months’ imprisonment. N.T. Sentencing Hearing, 7/19/16, at

12-13.

      On July 29, 2016, Appellant filed a timely post-sentence motion, where

he raised a number of claims, including that: 1) the trial court abused its

discretion when it imposed a manifestly excessive sentence and 2) the trial

court erred when it permitted the Commonwealth to ask potential jurors the

above-quoted voir dire question. Appellant’s Post-Sentence Motion, 7/29/16,

at ¶¶ 13-29 and 57-59.      The trial court denied Appellant’s post-sentence

motion on August 11, 2016 and Appellant filed a timely notice of appeal to

this Court. Appellant raises two issues on appeal:

         [1.] Did the trial court abuse[] its discretion in allowing the
         following legally incorrect and prejudicial voir dire question:
         “Under Pennsylvania law, a victim’s testimony standing
         alone, if believed by you, is sufficient proof to find the
         Defendant guilty in sexual assault cases. Can you follow this
         principle of law if instructed?”


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        [2.] [Is] the aggregate sentence of 100 to 200 months of
        incarceration manifestly excessive and an abuse of
        discretion?

Appellant’s Brief at 6 (some internal capitalization omitted).

      Appellant first claims that the trial court erred when it permitted the

Commonwealth to ask a particular question during voir dire.

      As the Pennsylvania Supreme Court has explained:

        A criminal defendant's right to an impartial jury is explicitly
        granted by Article 1, Section 9 of the Pennsylvania
        Constitution and the Sixth Amendment of the United States
        Constitution. The jury selection process is crucial to the
        preservation of that right. The purpose of voir dire is to
        provide an opportunity [for] counsel to assess the
        qualifications of the prospective jurors to serve.          It is
        therefore appropriate to use such an examination to disclose
        fixed opinions or to expose other reasons for disqualification.
        It is well settled that the sole purpose of examination of jurors
        under voir dire is to secure a competent, fair, impartial and
        unprejudiced jury. While considerable latitude should be
        permitted on voir dire, the inquiry should be strictly confined
        to disclosing qualifications of a juror and whether the juror
        has formed a fixed opinion or may be otherwise subject to
        disqualification for cause.

Commonwealth v. Ellison, 902 A.2d 419, 423-424 (Pa. 2006) (plurality)

(internal citations omitted).

      “The scope of voir dire rests in the sound discretion of the trial court and

will not be reversed on appeal in the absence of palpable error.”

Commonwealth v. Proctor, 585 A.2d 454, 460 (Pa. 1991). “An abuse of

discretion is not merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by

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the evidence of record.” Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa.

Super. 2013) (internal quotations and citations omitted). Further, “not every

legal mishap prejudices a defendant to the extent that a reversal is necessary.

Rather, if this Court concludes that a trial error was harmless beyond a

reasonable doubt, the conviction will be affirmed regardless of the error.”

Commonwealth v. Rickabaugh, 706 A.2d 826, 838 (Pa. Super. 1997)

(internal citations omitted).

      According to Appellant, the trial court erred when it allowed the

Commonwealth to ask potential jurors the following question during voir dire:

“Under Pennsylvania law, a victim’s testimony standing alone, if believed by

you, is sufficient proof to find the Defendant guilty in sexual assault cases.

Can you follow this principle of law if instructed?” See Appellant’s Brief at 20.

      The appellate claim is composed of four sub-arguments. First, Appellant

declares that the question was inappropriate for voir dire, as “it was not used

to determine if a juror had a fixed opinion or bias, or otherwise could be

subject to disqualification for cause.” Id. at 34. Rather, Appellant claims, the

question “clearly was intended to elicit what the prospective jurors’ impression

or opinion would be or what their attitudes or decisions likely would be under

certain facts which were to be developed in the case.” Id. at 35. Second,

Appellant argues that allowing the question was erroneous because the

question   was   “in   the   nature   of   a   jury   instruction   and,   therefore,

inappropriately intrudes upon the [province] of the court.” Id. at 37. Third,

Appellant argues that the trial court “abused its discretion in refusing to

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change the word ‘victim’ to ‘complainant,’ as ‘victim’ is an inherently

prejudicial word.” Id. at 27 n.1. Finally, Appellant claims that the question

should not have been allowed because it contains a legally inaccurate

statement of the law. Id. at 20. Appellant’s claims on appeal fail.

      Appellant’s first two sub-arguments contend that the trial court erred in

allowing the Commonwealth’s requested voir dire question because the

question was “not used to determine if a juror had a fixed opinion or bias, or

otherwise could be subject to disqualification for cause” and was “in the nature

of a jury instruction.” Id. at 34 and 37. These claims are waived, as Appellant

failed to raise the claims before the trial court. See Appellant’s Response to

Commonwealth’s Request for Additional Voir Dire, 4/19/16, at 2-3; Pa.R.A.P.

302(a) (“[i]ssues not raised in the lower court are waived and cannot be raised

for the first time on appeal”).

      Appellant’s third sub-argument on appeal is that the trial court “abused

its discretion in refusing to change the word ‘victim’ to ‘complainant.’” This

claim is also waived, as Appellant has relegated the claim to a footnote in his

brief and has failed to provide this Court with any case law or argument to

explain why he would be entitled to relief on the claim. See Appellant’s Brief

at 27 n.1; Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1999)

(“[the Pennsylvania Supreme Court] has held that an issue will be deemed to

be waived when an appellant fails to properly explain or develop it in his

brief”). Even if this claim were not waived, Appellant failed to establish how

the use of the word “victim” was inherently prejudicial to Appellant in this

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case.    We do not believe that the trial court abused its discretion in this

instance.

        Finally, Appellant contends that the trial court erred in permitting the

question because “[t]he statement ‘a victim’s testimony standing alone, if

believed by you, is sufficient proof to find the Defendant guilty in a sexual

assault case’ is, at best, an incomplete statement of the law, and, at worst, a

complete misstatement of the law.”       Appellant’s Brief at 28.   As Appellant

notes, a “complainant’s testimony, standing alone, is only sufficient proof to

find a defendant guilty in a sexual assault case if the elements of the crime

charged are proven, and the defendant’s guilt is otherwise established beyond

a reasonable doubt.” Id. at 20.

        We agree that the statement “a victim’s testimony standing alone, if

believed by you, is sufficient proof to find the Defendant guilty in a sexual

assault case” is incomplete and rather inartful. Indeed, it would have been

better if the trial court had accepted Appellant’s modified version of the

question, as Appellant’s version was more comprehensive and legally precise.

However, we fail to see how Appellant was prejudiced in this case, given that

the trial court later instructed the jury: “[t]he law that applies to this case is

contained in these instructions and it is your duty to follow these instructions;”

“the defendant is presumed innocent throughout the trial and unless and until

you conclude based on careful and impartial consideration of the evidence that

the Commonwealth has proved him guilty beyond a reasonable doubt;” “it is

the Commonwealth that always has the burden of proving each and every

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element of the crimes charge[d] beyond a reasonable doubt.                If the

Commonwealth fails to meet its burden, then your verdict must be not guilty;”

and, “[t]he testimony of the victim standing alone, if believed by you, is

sufficient proof upon which to find the defendant guilty in this case. The

testimony of the victim in a case such as this need not be supported by other

evidence to sustain a conviction. Thus, you may find the defendant guilty if

the testimony of the victim convinces you beyond a reasonable doubt that the

defendant is guilty.”    N.T. Trial, 4/25/15, at 285, 286, 287, and 292.

Moreover, the trial court instructed the jury on the definition of “reasonable

doubt” and informed the jury of the elements of every charged crime. Id. at

287-288 and 292-297.

      “The law presumes that the jury will follow the instructions of the [trial]

court.” Commonwealth v. Brown, 786 A.2d 961, 971 (Pa. 2001). Thus,

although the Commonwealth’s voir dire question contained an incomplete

legal statement, the trial court’s later jury instructions provided the jury with

the only instructions the jury was permitted to use, were legally correct, and

cured any potential prejudicial error that could have accrued from the

Commonwealth’s prior, incomplete statement. See, e.g., Commonwealth

v. Smith, 995 A.2d 1143, 1163 (Pa. 2010) (“[t]he prosecutor's explanation

of reasonable doubt, even if erroneous, was cured by the trial court's correct

instruction.   The jury is presumed to follow the trial court's instructions”)

(internal citation omitted); Commonwealth v. Wright, 961 A.2d 119, 153

(Pa. 2008) (where the petitioner claimed that his trial counsel was ineffective

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for “failing to timely object to the prosecutor's voir dire questions which

incorrectly stated the law regarding a diminished capacity defense based on

alcohol consumption,” the Supreme Court held that the claim failed because

“the prosecutor made a misstatement, which the trial court corrected, and the

proper standard was provided during the jury charge. Appellant provides no

proof the jury was confused at trial. In the same vein, appellant offers no

argument how this misstatement prejudiced him”); Commonwealth v. Noel,

104 A.3d 1156, 1172 (Pa. 2014) (plurality) (finding that any error during voir

dire was harmless beyond a reasonable doubt). As such, we conclude that

any error in this case was harmless beyond a reasonable doubt.3 Appellant’s

claim fails.

       For Appellant’s second claim on appeal, Appellant contends that the trial

court imposed a manifestly excessive sentence. Appellant’s claim on appeal

is a challenge to the discretionary aspects of his sentence.

       “[S]entencing is a matter vested in the sound discretion of the

sentencing judge, whose judgment will not be disturbed absent an abuse of

discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.

____________________________________________


3 We further note that the testimony of the victims in this case was sufficient
to find Appellant guilty of the crimes for which he was sentenced and that,
during the jury selection process, the jury members were informed of the
“beyond a reasonable doubt” standard. See Pa.R.Crim.P. 632 (the written
jury information questionnaire asks the question: “Would you have any
problem following the court's instruction that the defendant in a criminal case
is presumed to be innocent unless and until proven guilty beyond a reasonable
doubt?”).


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2001). Moreover, pursuant to statute, Appellant does not have an automatic

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

      As this Court explained:

        [t]o reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify sentence,
        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).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      As our Supreme Court has held, the determination of whether a

substantial question exists must be done prior to – and be divorced from –

the determination of the potential merits of an issue. Commonwealth v.

Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). If it were otherwise, a challenger

would “in effect obtain[] an appeal as of right from the discretionary aspects

of a sentence” – a result that would violate statutory law. Id.

      The trial court sentenced Appellant to serve two consecutive terms of

50 to 100 months in prison for his criminal attempt and unlawful contact with

a minor convictions.   N.T. Sentencing Hearing, 7/19/16, at 12-13. Appellant

acknowledges that these two sentences fall within the mitigated sentencing

range. See Appellant’s Brief at 43. However, Appellant claims that the trial


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court erred when it ran the two sentences consecutively and that his

aggregate sentence of 100 to 200 months’ imprisonment is manifestly

excessive.     This issue does not present a substantial question under the

Sentencing Code.

      Generally, for an appellant to raise a substantial question that his

sentence is inappropriate under the Sentencing Code, an appellant must

“advance a colorable argument that the trial judge’s actions were:            (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to   the   fundamental    norms   which   underlie   the   sentencing   process.”

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000).

      As this Court has held:

           the imposition of consecutive rather than concurrent
           sentences lies within the sound discretion of the sentencing
           court. Long standing precedent of this Court recognizes that
           42 Pa.C.S.A. § 9721 affords the sentencing court discretion
           to impose its sentence concurrently or consecutively to other
           sentences being imposed at the same time or to sentences
           already imposed.       A challenge to the imposition of
           consecutive rather than concurrent sentences does not
           present a substantial question regarding the discretionary
           aspects of sentence. We see no reason why a defendant
           should be afforded a volume discount for his crimes by having
           all sentences run concurrently.

           However, we have recognized that a sentence can be so
           manifestly excessive in extreme circumstances that it may
           create a substantial question. When determining whether a
           substantial question has been raised, we have focused upon
           whether the decision to sentence consecutively raises the

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        aggregate sentence to, what appears upon its face to be, an
        excessive level in light of the criminal conduct in this case.

Commonwealth v. Zirkle, 107 A.3d 127, 133-134 (Pa. Super. 2014)

(internal   quotations,   citations,   and      corrections   omitted);   see   also

Commonwealth v. Radecki, 180 A.3d 441, 468-469 (Pa. Super 2018)

(“[w]e consistently have recognized that excessiveness claims premised on

imposition of consecutive sentences do not raise a substantial question for our

review”).

      In this case, Appellant’s aggregate sentence of 100 to 200 months’

imprisonment does not “appear[ on] its face to be[] an excessive level in light

of the criminal conduct in this case.” Id. Therefore, Appellant has not raised

a substantial question and we may not reach the merits of Appellant’s second

claim on appeal.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2018




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