J. S48023/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
ALLEN MICHAEL YORK,                         :
          Appellant                         :
                                            :     No. 1671 WDA 2015

           Appeal from the Judgment of Sentence February 11, 2013
               In the Court of Common Pleas of McKean County
              Criminal Division No(s): CP-42-CR-0000237-2012


BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY DUBOW, J.:                           FILED OCTOBER 26, 2016

        Appellant, Allen Michael York, appeals from the February 11, 2013

Judgment of Sentence,1 entered in the McKean County Court of Common

Pleas following his jury conviction of Involuntary Deviate Sexual Intercourse

Person Less than 16 Years of Age and Indecent Assault Person Less than 16

years of Age.2 We affirm the convictions, but remand for resentencing.

        The facts, as gleaned from the trial transcript, are as follows. On June

25, 2011, when he was 15 years old, D.B. (“the Victim”) and his friend C.A.,

met up with Appellant, who was 19 years old. After smoking marijuana, the

1
  The trial court initially entered a Judgment of Sentence on February 6,
2013, but entered an amended Judgment of Sentence on the docket on
February 11, 2013.
2
    18 Pa.C.S. § 3123(a)(7) and 18 Pa.C.S. § 3126(a)(8), respectively.
J.S48023/16

three of them went to C.A.’s house, where they played video games in C.A.’s

bedroom, before turning out the lights to sleep.    There were two beds in

C.A.’s bedroom. After the lights were turned out, Appellant asked the Victim

whether he ever thought about being bisexual.        Appellant then told the

Victim to come into the bed with him and demanded oral sex. The Victim

testified that he did as Appellant directed because he was afraid of Appellant

hurting him.

      Appellant then told him not to tell anyone what had happened or he

would hurt the Victim. The Victim tried to forget the incident with Appellant

because, “bad stuff like that I try to forget.” N.T., 10/23/12, at 157, 169.

The Victim did not want to tell anyone what happened, but C.A. told him to

report the incident to the police.   C.A. did not hear or see anything that

happened between the Victim and Appellant. See N.T. at 93-194.

      On July 7, 2011, Corporal Timothy Lencer conducted a recorded

interview of the Victim and obtained the Victim’s written statement.      The

audio recording of the interview was subsequently lost and, thus, not

produced to either Appellant or the Commonwealth.

      The Commonwealth charged Appellant with the above crimes on March

5, 2012.3 The trial court appointed Appellant counsel on May 31, 2012.


3
  The Commonwealth also charged Appellant with nine other crimes related
to the events of June 25, 2011. The trial court dismissed those charges
upon Appellant’s motion during his trial.




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      At Appellant’s October 18, 2012 Pre-Trial Conference, five days before

his trial was scheduled to begin, Appellant filed a “Motion to Continue Back-

Up Jury Selection and Trial,” seeking more time to prepare for trial, which

the trial court denied.4

      Appellant also made an oral motion at the Pre-Trial Conference

requesting the production of the Victim’s and C.A.’s records from Juvenile

Probation and McKean County Children and Youth Services (“CYS”). C The

trial court denied this motion on October 19, 2012, but after Appellant filed a

Motion to Reconsider, the trial court ordered both the Juvenile Probation

department and CYS to provide the court with any records it may have in its

possession with respect to the Victim and C.A. for an in camera review. Trial

Ct. Order, 10/22/2012.

      Also on October 22, 2012, Appellant filed a written “Motion to

Reconsider Motion to Continue Trial.” On October 23, 2012, Appellant filed a

“Motion to Consider and[/]or Se[]cond Request to Reconsider Motion to

Continue Trial.”   In these Motions, Appellant again asserted his need for

more time to prepare for trial by interviewing and locating witnesses, and

noted that the police had not turned over the Victim’s recorded statement,

and the police had been unable to find it.

4
  Appellant represents in his Motion for Reconsideration that his Motion to
Continue “was denied on the record at the Pre-[T]rial Conference held [on
October 18, 2012].” Mot. to Recons., 10/22/2012, at 1 (unpaginated). The
certified record does not contain a transcript of Appellant’s October 18, 2012
Pre-Trial Conference.



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      The trial court denied these Motions, noting that it had “resolved the

issue of the release of witness/victim juvenile records by review of both

[McKean County] Juvenile Probation and Children and Youth in camera; and

[ ] determined [that] the availability of a tape of a witness statement and

the availability of two witnesses is speculative.”       Trial Ct. Order (A),

10/23/2012.

      In a separate order, the trial court specifically precluded as irrelevant

the information contained in C.A.’s CYS and Juvenile Probation records.

However, the trial court released C.A.’s juvenile dockets with instructions

that the parties hold them in the “strictest confidence” and not divulge their

contents to any other person or in any manner to the jury. Trial Ct. Order

(B), 10/23/2012; see also Trial Ct. Op., 1/28/16, at 6-7.      The trial court

noted that neither Juvenile Probation department nor CYS had any records

related to the Victim.

      Trial began on October 23, 2012.        Before the commencement of

proceedings that day, Appellant filed a written “Motion in Limine and to

Dismiss” in which he argued that, because the police or the Commonwealth

lost the recording of the Victim’s statement, the court should preclude the

Victim’s from testifying at trial and dismiss the charges with prejudice. In

the alternative, Appellant asked for a continuance so that he could ascertain

the circumstances surrounding the unavailability of the recording. The trial

court denied the Motion.



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        At trial, the Victim, C.A., and three Pennsylvania State Troopers, Lance

Schimp, Michael Britton, and Corporal Timothy Lencer, testified on behalf of

the Commonwealth.       Appellant presented the testimony of two witnesses:

Shannon York (Appellant’s father) and Wendy Vancise.

        On the second day of trial, October 24, 2012, Appellant submitted a

Proposed Jury Instruction addressing the Commonwealth’s failure to produce

the recording of the Victim’s police interview.       The trial court rejected

Appellant’s request for an adverse instruction.

        Following the two-day trial, the jury convicted Appellant of Involuntary

Deviate Sexual Intercourse and Indecent Assault. The Sexual Offenders

Assessment Board assessed Appellant and determined that he was not a

sexually violent predator. The trial court sentenced Appellant to a term of

ten to twenty years’ incarceration on the Involuntary Deviate Sexual

Intercourse conviction,5 and to lifetime registration pursuant to Sexual

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 9599, et

seq. Appellant filed a Post-Sentence Motion on February 4, 2013, in which

he, inter alia, challenged the weight the jury gave to the Commonwealth’s

evidence, and asserted a claim for credit for time served on a separate and

unrelated offense. The Motion was denied by operation of law on May 30,

2013.


5
 Appellant’s conviction of Indecent Assault merged with the Involuntary
Deviate Sexual Intercourse conviction for purposes of sentencing.



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     Appellant did not file a direct appeal.   However, on May 28, 2014,

Appellant filed a timely petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541, et seq., alleging trial counsel was ineffective

in failing to file a direct appeal as requested by Appellant.   Following the

appointment of counsel and a hearing, the trial court granted Appellant’s

PCRA Petition on September 28, 2015, and reinstated Appellant’s direct

appeal rights nunc pro tunc.    This timely appeal followed on October 23,

2015. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

     Appellant raises the following eight issues for our review, which we

have reordered for ease of disposition:

        1. Did the trial court err in denying [Appellant’s] motions
        to continue trial, when Counsel had very recently been
        provided with names and contact information of several
        potential witnesses, and was requesting additional time to
        interview and investigate these witnesses; when there had
        been no prior continuances of the trial by either side; when
        one intended defense witness was unavailable on the day
        of trial and when the information presented by these
        witnesses would have been exculpatory to [Appellant].

        2. Did the trial court err in denying discovery regarding (a)
        the release of the juvenile files of the minors C.A. and
        D.B., including court-mandated psychological evaluation
        and other information, citing lack of consent by the
        juveniles to the release of this information when such
        information was prepared for purposes of [c]ourt and not
        as part of individual treatment, and when such information
        would have been exculpatory to [Appellant]; and (b)
        Juvenile Probation and Children and Youth Services records
        concerning C.A. and [the Victim’s] alleged involvement in
        two incidents related to the instant matter, one involving
        damage to tangible property and another involving an
        alleged sexual offense by C.A., and information concerning
        the investigation of the instant matter, when such


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       information would have revealed a motive to lie and would
       have been exculpatory to [Appellant] in the instant matter.

       3. Did the trial court err in prohibiting the introduction of
       prior bad acts evidence with respect to a material witness,
       C.A., a minor, and [the Victim], the alleged victim
       concerning their involvement in a criminal mischief incident
       and an alleged sexual assault when such evidence would
       have shown that the juveniles had a motive to fabricate
       and would have been exculpatory to [Appellant].

       4. Did the trial court err in admitting into evidence, over
       objection, the testimony of the alleged victim because the
       audio recording of an interview of the alleged victim was
       not produced in discovery, despite numerous requests for
       same, when testimony was adduced at trial that the
       recording was made and lost and, as such, [Appellant] was
       deprived of his right to a fair trial, right to confront the
       witnesses against him and due process of law under the
       federal and state constitutions.

       5. Did the trial court err in failing to instruct the jury with
       the “missing evidence instruction” on the failure of the
       Commonwealth to produce the recording of the interview
       with the alleged victim, when such instruction was
       warranted by the evidence adduced, and the failure to so
       instruct was unduly prejudicial to [Appellant].

       6. Is the guilty verdict for [Involuntary] Deviate Sexual
       Intercourse against the weight of the evidence to such an
       extent as to shock one’s sense of justice because the
       testimony of both the alleged victim and the other juvenile
       were both internally inconsistent and inconsistent with one
       another, and were also inconsistent with the remaining
       evidence presented at trial, including the alleged victim’s
       and witness’ own prior testimony and statements
       concerning the events; when there was no prompt
       reporting of the alleged incident; when several days
       elapsed between the alleged incident and any interview
       with the police; when the alleged victim had to be
       reminded to tell anyone; and when the alleged victim’s
       testimony was so wholly lacking in credibility that no
       reasonable jury could have found him credible.



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         7. Is the guilty verdict for Indecent Assault against the
         weight of the evidence to such an extent as to shock one’s
         sense of justice because the testimony of both the alleged
         victim and the other juvenile were both internally
         inconsistent and inconsistent with one another, and were
         also inconsistent with the remaining evidence presented at
         trial, including the alleged victim’s and witness’ own prior
         testimony and statements concerning the events; when
         there was no prompt reporting of the alleged incident;
         when several days elapsed between the alleged incident
         and any interview with the police; when the alleged victim
         had to be reminded to tell anyone; and when the alleged
         victim’s testimony was so wholly lacking in credibility that
         no reasonable jury could have found him credible.

         8. Was [Appellant’s] sentence illegal when (a) the trial
         court denied [Appellant] credit for time served from April
         19, 2011 to May 27, 2011, on charges at Docket No. CP-
         42-CR-0000250-2011, when the charges at such docket
         number were dismissed by the Commonwealth and when
         credit for such period of incarceration was not applied to
         any other sentence of [Appellant]; and (b) the mandatory
         minimum sentencing scheme under which [Appellant] was
         sentenced has been held unconstitutional by the Superior
         Court of Pennsylvania?

Appellant’s Brief at 6-7.

      Appellant first challenges the trial court’s denials of his multiple

requests for a continuance. Appellant’s Brief at 26. Appellant argues that

the trial court abused its discretion in denying Appellant’s requests because

he had recently learned about the identities and whereabouts of two

witnesses and, only five days before the commencement of trial, had been

given the names of three additional, allegedly exculpatory, witnesses. Id.

      The decision to grant or deny a motion for continuance is within the

discretion of the trial court. Commonwealth v. Hansley, 24 A.3d 410, 418



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(Pa. Super. 2011). We will reverse the decision of a trial court only for an

abuse of that discretion. Id. “[D]iscretion is abused when the law is over-

ridden or misapplied, or the result of partiality, prejudice, bias, or ill-will[,]

as shown by the evidence or the record.” Id.

      In support of its decision to deny Appellant’s requests for a

continuance, the trial court found that the request for a continuance was

merely a request to conduct a “fishing expedition.”

         The court could not have permitted the testimony of
         specific witnesses except by granting a continuance of the
         trial. The delay would have been essentially a permission
         for [Appellant] to conduct a fishing expedition. [Appellant
         did] not provide any offer of proof as to how the testimony
         of said witnesses could be probative not even as to
         whether they could be found. The court, in its discretion[,]
         could find that there was no basis to continue a trial based
         on such vague speculation.

Trial Ct. Op. at 4. The trial court further opined:

         [Appellant’s] first motion to continue the trial was filed on
         October 18, 2012, approximately five days before trial on
         October 23, 2012. On October 22, 2012, [Appellant] filed
         a Motion to Reconsider Motion to Continue Trial. The court
         denied this request on October 22, 2012 after the court
         determined that the availability of a tape of a witness
         statement and the availability of two witnesses was too
         speculative. Further, [Appellant’s] last motion to continue
         the trial was filed less than one day before the trial was
         scheduled to commence. In sum, a motion to continue is
         within the court’s discretion and the court did not feel that
         a continuance was warranted.

Id. at 14-15.

      In sum, the trial court concluded that Appellant’s eleventh-hour

requests for a continuance amounted to nothing more than an unjustified


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fishing expedition.     We agree with the trial court, and conclude that it

properly    exercised   its   discretion   in   denying   Appellant’s   motions   for

continuance.

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

denying his request for discovery of the Victim’s and C.A.’s records from

Juvenile Probation and CYS. Appellant’s Brief at 16.

      Our standard of review of a discovery order is well-settled: “Generally,

on review of an order concerning discovery, an appellate court applies an

abuse of discretion standard [and] questions of law are afforded full

appellate review . . . .” McNeil v. Jordan, 894 A.2d 1260, 1268 (Pa. 2006)

(citations omitted).

      With respect to Appellant’s argument, the trial court opined as follows:

           After a Motion for Reconsideration by [Appellant] and in
           light of the holding [of the] U.S. Supreme Court [in]
           Pennsylvania v. Ritchie, 107 S.Ct. 989 (1987), the court
           ordered that McKean County Juvenile Probation and
           McKean County Children and Youth Services were to
           provide to the court any records that they may hold on
           D.B. and/or C.A. In Ritchie, the U.S. Supreme Court held
           that: (1) [the] defendant was entitled to have
           Pennsylvania Children and Youth Services file reviewed by
           trial court to determine whether it contained information
           that probably would have changed the outcome of trial,
           and (2) defense counsel was not entitled to examine
           confidential information in Children and Youth Services file.
           Id. In the court’s Order of October 22, 2012, the court
           reviewed in camera the McKean County Children and Youth
           Services records and the McKean County Juvenile
           Probation records of C.A., a minor, and found that no
           material could be admissible for the defense of [Appellant]
           in his jury trial. Neither Children and Youth Services nor
           Juvenile Probation had any records related to [the Victim].


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           Further, the court released the juvenile dockets of the
           adjudications and dispositions of the only charges filed
           against C.A. and said dockets were to be held in the
           strictest confidence by the attorney of the Commonwealth
           and the attorney for [Appellant], not to be shown nor the
           contents divulged to any other person nor revealed in any
           manner to the jury. Therefore, the court followed the
           procedure outlined in Ritchie and properly denied
           [Appellant’s] request for the release of the juvenile files of
           the minors C.A. and [the Victim].

Trial Ct. Op. at 6-7.

         We conclude that the trial court did not abuse its discretion in

rendering its discovery ruling. Contrary to Appellant’s contention, the trial

court did not refuse to permit discovery of the records Appellant sought. In

fact, after the trial court reviewed the records at issue in camera, it did

release the juvenile dockets and dispositions filed against C.A. to the

attorneys for both parties. Neither Juvenile Probation nor CYS had any

records related to the Victim.       Thus, the court did not deny Appellant’s

discovery requests.       The trial court followed the proper procedure in

reviewing the records of CYS and in providing the relevant adjudications

from Juvenile Probation. Therefore, Appellant is not entitled to relief on this

issue.

         Appellant also argues that the trial court erred in refusing Appellant’s

request to admit into evidence the information contained in these records.

Appellant’s Brief at 18.        He avers that this information would have

demonstrated that the Victim and C.A. had motives to lie, and that Appellant



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could have used the contents of the records to impeach the credibility of the

Victim and C.A. Id. at 16, 18.

      “[O]ur standard of review for the admission of evidence looks to

whether the trial court abused its discretion.” Commonwealth v. G.D.M.,

Sr., 926 A.2d 984, 986 (Pa. Super. 2007).

      With respect to Appellant’s claim regarding admission of C.A.’s juvenile

record, after reviewing the record, the trial court concluded that it contained

“no material [that] could be admissible for [Appellant’s] defense.” Trial Ct.

Op. at 3. We have reviewed C.A.’s Juvenile Probation record and we agree

with the trial court’s conclusion because the records were neither relevant

nor usable for impeachment purposes.

      Appellant also claims that the trial court erred in not admitting

evidence that the day before the incident, the Victim had damaged a car.

With respect to this evidence, the trial court opined,

         The defense attorney also sought to introduce testimony of
         an alleged unproven bad act of the victim, i.e. that on the
         day prior to the incident at issue, the victim had damaged
         a car. This would have been testimony as to a “bad act”
         which had not yet been adjudicated. There is no evidence
         before the [c]ourt that there was any connection,
         whatsoever, between that act and [the] charges being
         tried against [Appellant]. The [c]ourt apparently is being
         asked to let in evidence of that act in [Appellant’s] attempt
         to indicate to the jury that the juvenile, just because he
         had unrelated charges against him, would fabricate a story
         of being victimized by [Appellant] for the sole purpose of
         taking the pressure off himself on the juvenile charge. The
         [c]ourt rightfully determined that to be immaterial to
         issues before the court, and, therefore, not admissible.



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Trial Ct. Op. at 3-4.     We agree with the trial court’s analysis that the

unproven bad act of the Victim has no probative value.             Accordingly, we

conclude that Appellant is not entitled to relief on this claim.

      In his third issue, Appellant again purports to challenge the trial

court’s refusal to permit Appellant to introduce evidence of the Victim’s

alleged vandalism of a car.     Id. at 16.    As noted, supra, this issue lacks

merit.6

      In his fourth issue, Appellant, relying on Brady v. Maryland, 373 U.S.

83 (1963), claims the trial court should have excluded the Victim’s testimony

at trial because the Commonwealth failed to produce the audio recording of

his initial interview by police. Appellant’s Brief at 19. Appellant avers that

“given the inconsistencies in [the Victim’s] testimony at trial and at the

preliminary hearing, it is likely that the recording of the police interview

would have revealed valuable evidence for impeaching [the Victim’s]

testimony[,]” and that “this evidence would have yielded exculpatory

evidence.” Id. at 20. Appellant contends that since the Commonwealth did

not release the recording during discovery, the trial court should have

precluded the Victim from testifying at trial Id. We disagree, finding that

Appellant’s reliance on Brady is misplaced, as Brady only addresses


6
  Moreover, even if we had not already addressed and dismissed this issue
on its merits, it would be waived because Appellant failed to develop this
argument within this section of his brief. Commonwealth v. Love, 896
A.2d 1276, 1287 (Pa. Super. 2005).



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evidence that the Commonwealth possesses and does not release, not

evidence the Commonwealth loses.

     As our Supreme Court has noted, “[t]he law governing alleged Brady

violations is well-settled.” Commonwealth v. Lambert, 884 A.2d 848, 853

(Pa. 2005).   It is a violation of a defendant’s right to due process for the

Commonwealth to “withhold[] evidence that is favorable to the defense and

material to the defendant’s guilt or punishment.” Smith v. Cain, 132 S. Ct.

627, 630 (2012) (citation omitted).

     To prevail on a claim that the Commonwealth has committed a Brady

violation, “an appellant must prove three elements: (1) the evidence at issue

is favorable to the accused, either because it is exculpatory or because it

impeaches; (2) the evidence was suppressed by the prosecution, either

willfully or inadvertently; and (3) prejudice ensued.”      Commonwealth v.

Weiss, 81 A.3d 767, 783 (Pa. 2013) (citations omitted).

     In the instant case, Appellant alleged that the Commonwealth’s failure

to produce the Victim’s recorded police interview implicated Brady, supra.

     It is undisputed, however, that the audio recording of the Victim’s

interview with the police was missing.         See N.T. at 217, 220.   Appellant

never claimed that the Commonwealth possessed, but failed to turn over to

him, the audio recording. Brady and its progeny impose an affirmative duty

on the prosecution to produce so-called “Brady material” when it is

possessed by the prosecution during discovery.              Here, because the



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Commonwealth did not possess the audio recording, there was nothing for

the Commonwealth to produce. Therefore, under the facts of this case, the

holding Brady is inapplicable, and Appellant’s claim fails.

      Moreover, the trial court did not violate Appellant’s due process rights

when it denied Appellant’s request to preclude the Victim’s testimony

because the Commonwealth failed to preserve the recording. See Arizona

v. Youngblood, 488 U.S. 51, 56 (1988) (noting that, where evidence was

not preserved, any due process violation “must be because of some

constitutional   duty      over      and    above     that    imposed         by     cases       such

as Brady[.]”).      When          raising   a   due    process      claim      based        on    the

Commonwealth’s          failure     to    preserve    evidence,         an     appellant         must

demonstrate      that     the     Commonwealth         acted       in    bad       faith.        See

Commonwealth v. Coon, 26 A.3d 1159 (Pa. Super. 2011) (analyzing a due

process claim based on unpreserved evidence without reference to Brady

and its progeny, and requiring that the appellant show bad faith on the part

of the Commonwealth to prevail on such a claim).

      Appellant’s   claim         fails   because     he     has   not       alleged    that      the

Commonwealth acted in bad faith in failing to locate the audio recording of

the Victim’s police interview. We conclude, therefore, that the trial court did

not violate Appellant’s due process rights in denying his request to preclude

the Victim’s trial testimony.




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      In his fifth issue, Appellant claims that the trial court improperly

denied his request for a “missing evidence instruction” relating to the audio

recording of the Victim’s police interview.        Appellant asked the court to

instruct the jury that it could draw an adverse inference from the

Commonwealth’s     failure    to   produce   the   recording   of   the   interview.

Appellant’s Brief at 21.      He claims that he was prejudiced by the court’s

denial of this request. Id.

      The trial court’s decision to give an adverse inference instruction to the

jury that an unfavorable inference may be drawn from the failure of a party

to produce some circumstance, witness, or document will not be reversed

absent manifest abuse. Clark v. Philadelphia Coll. of Osteopathic Med.,

693 A.2d 202, 204 (Pa. Super. 1997).

      Generally,

         where evidence which would properly be part of a case is
         within the control of the party in whose interest it would
         naturally be to produce it, and, without satisfactory
         explanation he fails to do so, the jury may draw an
         inference that it would be unfavorable to him.

Id. (citation omitted).

      An adverse inference instruction is not appropriate where a witness or

evidence is equally available or unavailable to both sides of the litigation.

O’Rourke on Behalf of O’Rourke v. Rao, 602 A.2d 362, 364 (Pa. Super.

1992).   Additionally, the rule does not apply where it is unlikely that the




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evidence would be “unimportant, cumulative or inferior to evidence already

presented.” Id.

      The record herein reveals that the trial court properly considered

Appellant’s request that the trial court give the jury a “missing evidence

instruction,” and supported its decision to deny the request.            After

considering Appellant’s proposed instruction, the court concluded that: (1)

because the recording was not available to either Appellant or the

Commonwealth, Appellant could not demonstrate prejudice; and (2) that the

information contained in the recording would be cumulative of other written

and testimonial evidence.    Trial Ct. Op. at 8-9.   We agree with the trial

court’s conclusion.   Accordingly, the trial court’s decision was appropriate

and a proper exercise of its discretion.

      In his sixth and seventh issues, Appellant claims that the jury’s guilty

verdicts for Involuntary Deviate Sexual Intercourse and Indecent Assault

were against the weight of the evidence because the Victim’s testimony at

trial was inconsistent with his previous statements and with C.A.’s trial

testimony. Appellant’s Brief at 22, 23.

      When considering challenges to the weight of the evidence, we apply

the following precepts:

         The weight of the evidence is exclusively for the finder of
         fact[,] who is free to believe all, none or some of the
         evidence and to determine the credibility of witnesses.

         Appellate review of a weight claim is a review of the
         exercise of discretion, not the underlying question of


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         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. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(internal quotation marks and citations omitted). Further, “[i]n order for a

defendant to prevail on a challenge to the weight of the evidence, the

evidence must be so tenuous, vague and uncertain that the verdict shocks

the conscience of the court.”    Id. at 546 (internal quotation marks and

citation omitted).

      In rejecting Appellant’s weight of the evidence challenges, the trial

court opined as follows:

         [Appellant] claims that the [V]ictim and the other
         juvenile’s testimony were inconsistent with the remaining
         evidence presented at trial. There was testimony given
         both by the victim and the other juvenile as to what
         happened in the bedroom which the trier of fact found
         credible. The inconsistencies were of unimportant details
         and the jury was reminded of them in [Appellant’s]
         attorney’s closing argument. The jurors chose to find
         them not to be indicative of any false testimony.

Trial Ct. Op. at 12.

      As the trier of fact, the jury was free to determine which testimony to

credit. Upon consideration of the evidence presented at trial, including the



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inconsistencies between the Victim’s preliminary hearing and his trial

testimony, the jury obviously credited the Victim’s trial testimony, and his

explanation for his inconsistencies. The jury also found C.A.’s testimony to

be credible.   Given that the determination of credibility was exclusively

within the province of the jury as fact-finder, we discern no abuse of

discretion in the trial court’s decision to deny Appellant’s weight of the

evidence claims.

      In his final issue, Appellant claims that the trial court erred when it

denied his request, made at his Sentencing Hearing and in his Post-Sentence

Motion, for 39 days’ credit for time he spent while incarcerated for unrelated

acts occurring prior to his arrest on the instant charges. Appellant’s Brief at

25.

      A claim that the trial court failed to award credit for time served prior

to sentencing is a proper challenge to the legality of the sentence.

Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). “As

long as the Court has jurisdiction over the matter, a legality of sentencing

issue is reviewable and cannot be waived.” Commonwealth v. Musau, 69

A.3d 754, 756 (Pa. Super. 2013) (citation omitted). “Our standard of review

over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012).

      Appellant claims he is entitled to credit for time served on the separate

and unrelated offense pursuant to 42 Pa.C.S. § 9760(4), which provides:



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         (4) If the defendant is arrested on one charge and later
         prosecuted on another charge growing out of an act or
         acts that occurred prior to his arrest, credit against the
         maximum term and any minimum term of any sentence
         resulting from such prosecution shall be given for all time
         spent in custody under the former charge that has not
         been credited against another sentence.

42 Pa.C.S. § 9760(4).

      Section 9760(4) is inapplicable in the instant case. It is axiomatic that

“a defendant shall be given credit for any days spent in custody prior to the

imposition of sentence, but only if such commitment is on the offense for

which sentence is imposed. Credit is not given, however, for a commitment

by reason of a separate and distinct offense.”    Commonwealth v. Clark,

885 A.2d 1030, 1034 (Pa. Super. 2005) (citation and quotation omitted).

      As Appellant concedes, the offense for which he was incarcerated for

39 days (before the Commonwealth dismissed the charges against him) was

separate and distinct from the offenses for which he is now incarcerated. As

such, we conclude Appellant is not entitled to credit on the instant sentence

for time served on separate and unrelated offenses. Accordingly, this issue

does not merit relief.

      Appellant also avers that his ten-year mandatory minimum sentence is

illegal because violates the United States Supreme Court holding in Alleyne

v. U.S., 133 S.Ct. 2151 (2013). See Appellant’s Brief at 25. We agree.7


7
  For purposes of the application of Alleyne to the instant matter, we
acknowledge that the holding in Alleyne does not apply retroactively when a



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      Appellant received a ten-year mandatory minimum sentence for his

Involuntary Deviate Sexual Intercourse conviction pursuant to 42 Pa.C.S. §

9718(a)(1). In Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), our

Supreme Court relied on Alleyne, and determined that Section 9718 was

facially invalid.   Accordingly, we vacate Appellant’s Judgment of Sentence,

and remand for resentencing.

      Judgment of Sentence vacated.           Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2016




defendant’s Judgment of Sentence became final before Alleyne was
decided. See Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super.
2015).     However, because the PCRA court reinstated Appellant’s direct
appeal rights on September 28, 2015, more than two years after Alleyne
was decided, Appellant’s Judgment of Sentence is not yet final.



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