J-S60041-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
VINCENT ANTHONY CATRONE,                  :
                                          :
                 Appellant                :     No. 1371 MDA 2017

           Appeal from the Judgment of Sentence April 11, 2014
             in the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0004713-2008

BEFORE:     SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JUNE 28, 2019

      Vincent Anthony Catrone (Appellant) appeals from the April 11, 2014

judgment of sentence imposed after a jury convicted him of, inter alia, three

counts of involuntary deviate sexual intercourse (IDSI) for acts committed

against his stepdaughter, A.M. On January 10, 2019, we remanded the case

for the trial court to rule on Appellant’s weight-of-the-evidence claim under

the appropriate standard and to write a supplemental opinion within 30

days. The trial court filed its supplemental opinion on April 18, 2019, and

the remainder of Appellant’s case is now ready for disposition. Upon review,

we affirm in part and vacate in part.

      By way of background, in our January 10, 2019 memorandum opinion

we detailed the underlying facts and procedural history of this case.




*Retired Senior Judge assigned to the Superior Court.
J-S60041-18


     When A.M. was 10 years old, Appellant began to digitally fondle
     and penetrate A.M.'s vagina during her bathtime. This continued
     on a near-monthly basis. When she was 12 years old, Appellant
     additionally began attempting to insert small objects, such as a
     cucumber, into A.M.'s vagina during bathtime. When she was 14
     years old, these bathtime assaults escalated further, with
     Appellant groping A.M.'s breasts, having vaginal intercourse with
     A.M., and having A.M. perform oral sex on Appellant. Following
     the vaginal intercourse and oral sex, Appellant would ejaculate
     onto A.M.'s face or chest. Appellant threatened A.M. with harm
     to her, her mother (Mother), and her half-brother, V.C.,1 if she
     reported these assaults.
           ______
           1 V.C. is the son of Appellant and Mother.



        When A.M. was approximately 15 years old, Appellant
     temporarily moved out of the house and the monthly assaults
     ceased. However, on one occasion when A.M. was visiting her
     stepfather at his new residence with V.C., Appellant subjected
     A.M. to vaginal intercourse in his bedroom while he
     simultaneously watched a pornographic video. Appellant
     thereafter moved back in with Mother. A.M. moved out of her
     Mother's house when she was 17 years old. Following that, only
     two incidents with Appellant occurred, both when A.M. was 18
     years old. On the first occasion, Appellant attempted to have
     A.M. perform oral sex on him when she visited Mother's home,
     but she was able to leave the residence without doing so. The
     next time she went to Mother's home, A.M. was subjected to
     performing oral sex on Appellant.

           Following the last incident, A.M., realizing that the abuse
     would not stop, confided the years of abuse to Mother and filed a
     report with the state police in Hazelton a few days later, in
     October 2008. Appellant was charged with two counts of rape,
     four counts of IDSI, one count of unlawful contact with a minor,
     two counts of aggravated indecent assault, one count of
     statutory sexual assault, one count of indecent assault, and one
     count of corruption of minors.

           Appellant proceeded to a jury trial on October 13-15,
     2009. Prior to trial, Appellant made an oral motion in limine to
     preclude the Commonwealth from asking Mother about
     Appellant's sexual activity preferences, including that he watched


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     pornographic videos and used objects during intercourse, and
     preferred to ejaculate on Mother's face and chest following
     intercourse or oral sex. Finding that testimony to be more
     prejudicial than probative, and protected by marital privilege,
     the trial court prohibited the Commonwealth from pursuing that
     line of testimony. N.T., 10/14/2009, at 16-17. The next day, the
     jury found Appellant not guilty of the two charges of rape, but
     was unable to reach a unanimous verdict on the remaining
     charges. N.T., 10/13-15/2009, at 333-34. Ultimately, the trial
     court declared a mistrial on the deadlocked charges. Id. at 336.

           Thereafter, the Commonwealth timely appealed the trial
     court's ruling on Appellant's motion in limine because it
     handicapped the Commonwealth's re-prosecution of Appellant.
     On appeal, this Court reversed the trial court's ruling, finding
     that the evidence was relevant, highly probative, and not
     protected    by     marital  privilege. Commonwealth          v.
     Catrone (Catrone I), 24 A.3d 451 (Pa. Super. 2011)
     (unpublished memorandum at 19).

             Appellant appeared for a second jury trial on the
     deadlocked charges on September 24, 2012. Prior to this second
     trial, Appellant argued that because Appellant was found not
     guilty of rape by forcible compulsion, trying him again as to the
     remaining ten charges would “twice put him in jeopardy from
     similar or the same offenses[.]” N.T., 9/24/2012, at 7. The trial
     court denied Appellant's motion, and he proceeded to
     trial. Id. at 9. The aforementioned facts were developed, along
     with testimony from Mother about Appellant's sexual
     preferences, as well as character witnesses regarding A.M. and
     Appellant. Additionally, Appellant presented evidence in support
     of his defense that A.M. fabricated the sexual assault claims
     because she believed that Appellant was attempting to take part
     of her settlement proceeds resulting from a car accident
     involving Appellant, A.M., and V.C.

           At the conclusion of the trial, Appellant was found guilty of
     three counts of IDSI, two counts of aggravated indecent assault,
     and one count each of unlawful contact with a minor, statutory
     sexual assault,     and indecent assault. On April              11,
     2014,2 Appellant was found to be a sexually violent predator
     (SVP) and was sentenced to an aggregate term of incarceration
     of 23 years and 5 months to 46 years and 10 months. Due to


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     Appellant's IDSI conviction and SVP designation, he is required
     to register as a sex offender for his lifetime.
           ______
           2 The reason for this delay was due in part to a sexual

           offender assessment and a motion for extraordinary relief
           filed by Appellant that was subsequently withdrawn.

            Appellant timely filed a post-sentence motion.3 The trial
     court denied the motion on August 14, 2017, and this timely-
     filed appeal followed.

          ______
          3 Initially, Appellant did not file a post-sentence motion or

          direct appeal. Appellant twice petitioned the trial court to
          file a direct appeal nunc pro tunc, which the trial court
          denied. On appeal from the second denial, this Court
          treated Appellant's petition as one filed under the Post
          Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,
          reversed the trial court order, and remanded for the
          reinstatement of Appellant's post-sentence and direct
          appeal rights. Commonwealth v. Catrone (Catrone II),
          153 A.3d 1114 (Pa. Super. 2016) (unpublished
          memorandum at 3).

                 Thereafter, on September 29, 2016, Appellant filed a
          post-sentence motion alleging, inter alia, that his
          mandatory minimum sentences for IDSI were illegal. The
          trial court set a briefing schedule and Appellant complied;
          the Commonwealth did not. Over 120 days passed; the
          trial court failed to rule on the motion and the clerk of
          courts failed to deny the motion by operation of law. The
          trial court purported to schedule a resentencing hearing on
          the IDSI counts for May 23, 2017, but subsequently
          directed the clerk of courts on May 25, 2017 to enter an
          order reflecting that the motion had been denied by
          operation of law. The clerk of courts failed to do so. On
          June 7, 2017, Appellant again sought reinstatement of his
          post-sentence rights, which the trial court granted on June
          9, 2017.




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Commonwealth v. Catrone (Catrone III), ___ A.3d ___, 2019 WL

1645683 (Pa. Super. 2019) (unpublished memorandum at 1-5) (footnote

omitted).
      Prior to remanding, we addressed Appellant’s double jeopardy claim

and found no trial court error. Id. (unpublished memorandum at 5-7). In

light of our determination that the trial court utilized the wrong standard to

address Appellant’s weight claim, we declined to dispose of Appellant’s other

claims and remanded with instructions for the trial court to file a

supplemental opinion. We now address Appellant’s remaining claims.

      We begin with Appellant’s evidentiary claims.      First, we address his

claim that the trial court abused its discretion when it denied his two mistrial

motions. Appellant’s Brief at 20. Specifically, Appellant argues that the trial

court should have granted his motions for mistrial, and that the curative

instructions given by the trial court were inadequate to cure the “proverbial

skunk in the jury box.” Appellant’s Brief at 23, 25 (internal quotation marks

omitted).

      We review such claims mindful of the following.

         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

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          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.

       The remedy of a mistrial is an extreme remedy 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. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (internal

quotation marks and citations omitted). Regarding curative instructions, we

note   that   juries   are   presumed    to   follow   the   court’s   instructions.

Commonwealth v. Roney, 79 A.3d 595, 640 (Pa. 2013).

       During Appellant’s jury trial, he twice objected to testimony and

moved for a mistrial. The first objection and motion followed Trooper James

Curto’s testimony that police did not contact A.M.’s gynecologist as part of

its investigation because, inter alia, in his experience in these cases, “more

often than not, [there is no] trauma to the victim.” N.T., 9/24/2012, at 206.

The second objection and motion followed the rebuttal character testimony

of Frederick Kobrick, who stated that Appellant’s reputation in the

community for moral character was “vile.” Id. at 285.           In both instances,

the trial court sustained the objection, struck the testimony, denied the



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motion for mistrial, and offered a curative instruction. Id. at 206-11, 285-

90. Appellant did not object to either curative instruction.

      On appeal, Appellant argues that the trial court should have granted

the mistrial motions because the jury’s “credibility assessment was skewed

by the Commonwealth’s presentation of irrelevant and prejudicial witness

testimony.”   Appellant’s Brief at 21.   In its Pa.R.A.P. 1925(a) opinion, the

trial court explained that it denied the mistrial motions because the

objected-to remarks were very brief and the court’s curative instructions

cured any prejudice to Appellant.    See Trial Court Opinion, 3/29/2018, at

17, 24.

      Upon review, we agree with the trial court and find no abuse of

discretion in the trial court’s conclusion. See Commonwealth v. Jones,

668 A.2d 491, 504 (Pa. 1995) (finding trial court did not abuse its discretion

in denying motion for mistrial where trial court offered curative instruction

that jury is presumed to follow and to which defendant did not object at

trial, and under the circumstances the challenged evidence did not deny

defendant of a fair and impartial trial). Accordingly, the trial court did not

abuse its discretion in denying Appellant’s motions for mistrial.

      We next turn to Appellant’s claim that the cumulative effect of the trial

court’s “individual erroneous evidentiary rulings… prejudice[d] the jury

against [Appellant] …, thus requiring a new [t]rial[.]”    Appellant’s Brief at

11, 25. Our standard of review for the admission of evidence is well-settled.


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      The admission of evidence is solely within the discretion of the
      trial court, and a trial court’s evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion. An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather occurs where the court has reached a conclusion
      that overrides or misapplies the law, or where the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias or ill-will. To constitute reversible error, an
      evidentiary ruling must not only be erroneous, but also harmful
      or prejudicial to the complaining party. [A]n evidentiary error of
      the trial court will be deemed harmless on appeal where the
      appellate court is convinced, beyond a reasonable doubt, that
      the error could not have contributed to the verdict.

Commonwealth v. Manivannan, 186 A.3d 472, 479–80 (Pa. Super. 2018

(citations and quotation marks omitted).

      Though Appellant frames this claim as one of cumulative error, see

Appellant’s Brief at 11, in his argument section he actually contends that

each individual claim of error warranted a new trial.1       Id. at 26-27, 29.

Specifically, Appellant argues that the trial court erred in admitting (1)

1 In the heading for this argument, Appellant also challenges the trial court’s
denial of his objection to Trooper Curto’s opinion testimony, Kobrick’s
rebuttal reputation testimony, and Mother’s testimony regarding Appellant’s
sexual preferences. Appellant’s Brief at 25. However, Appellant abandons
these claims within the argument and fails to develop them in any
meaningful way. Accordingly, we find them waived. See Commonwealth
v. Delvalle, 74 A.3d 1081, 1086–87 (Pa. Super. 2013) (“Rule 2119(a) of
the Pennsylvania Rules of Appellate Procedure provides that ‘[t]he argument
shall ... have ... the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.’ Pa.R.A.P.
2119(a). Failure by the appellant to discuss pertinent facts or cite legal
authority will result in waiver. Commonwealth v. Rhodes, 54 A.3d 908,
915 (Pa. Super. 2012).”). Even if not waived, the trial court sustained
Appellant’s objections as to Trooper Curto’s opinion testimony and Kobrick’s
rebuttal reputation testimony, as discussed supra, and this Court previously
held that Mother’s testimony about Appellant’s sexual preferences was
relevant. See Catrone I, 24 A.3d 451 (unpublished memorandum at 7-8).


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A.M.’s testimony about Appellant’s violent character because he was

acquitted of rape by forcible compulsion at the first trial, Appellant’s Brief at

25-26; (2) V.C.’s testimony about Appellant’s role in a car accident involving

A.M. and V.C., id. at 26-27; and (3) rebuttal testimony from John Trotsky

that Appellant’s moral character was “terrible[,]” id. at 27-28. We address

each claim of error individually.

      In its opinion, the trial court offered the following explanation for its

ruling on A.M.’s testimony about Appellant’s propensity for violence. 2

             A.M. began to testify that [Appellant] was a violent person.
      [Appellant’s] counsel objected and was initially overruled. A
      side[]bar then occurred in which the allowance of the testimony
      of [Appellant’s] propensity for violence and whether or not it
      violated the rules of evidence was discussed. An agreement was
      made between the Commonwealth and [Appellant’s c]ounsel
      wherein it was noted that A.M. could testify to her own personal
      relationship with [Appellant] and her own observations. A.M.
      testified that she actually observed [Appellant] yelling and
      getting angry and that she was scared of him. As such, no
      inadmissible testimony was heard by the jury, therefore no relief
      is warranted.

Trial Court Opinion, 3/29/2018, at 15 (citations to notes of testimony

omitted). A review of the applicable transcript, see N.T., 9/24/2012, at 61-

65, confirms that Appellant agreed to allow A.M. to testify about her


2 As part of his argument, Appellant claims the trial court erred in permitting
A.M. to testify about Appellant brandishing a firearm during the sexual
abuse. Appellant’s Brief at 26. Appellant did not object to this testimony at
trial. “We have long held that [f]ailure to raise a contemporaneous objection
to the evidence at trial waives that claim on appeal.” Commonwealth v.
Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (citations and quotation
marks omitted). Therefore, that portion of this claim is waived.


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personal observations of Appellant’s violence, which was relevant to explain

A.M.’s delayed reporting, an issue on which Appellant thoroughly cross-

examined her. Accordingly, we find no abuse of discretion.

      We next address Appellant’s claim regarding testimony about the car

accident. We note initially that the trial transcript is replete with references

to this car accident by both the Commonwealth and Appellant, particularly

during V.C.’s testimony. See, e.g., N.T., 9/24/2012, at 235-36 (on direct

examination of V.C.), 244-45 (on cross examination of V.C.), 251-52 (on re-

direct examination of V.C.), 252-256 (on re-cross examination of V.C.), 256

(on re-direct examination of V.C.).     In his Pa.R.A.P. 1925(b) statement,

Appellant referenced specifically pages 234 to 235 as the location in the

transcript for the objected-to testimony.     In its 1925(a) opinion, the trial

court reviewed those pages, and determined that Appellant failed to

preserve this claim for appeal because he did not lodge an objection on the

referenced pages.

      On appeal, Appellant directs this Court to pages 252 to 255 of the trial

transcript for the testimony he contends was admitted erroneously.         See

Appellant’s Brief at 27. Within that section, Appellant did raise an objection,

which the trial court overruled based on its conclusion that Appellant had

opened the door to that line of inquiry.        N.T., 9/24/2012, at 252-53.

Because of Appellant’s misleading Pa.R.A.P. 1925(b) statement, the trial

court was unable to review this allegation of error, and this Court could find


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this claim waived. See Commonwealth v. Dowling, 778 A.2d 683, 686-

87 (Pa. Super. 2001) (finding waiver when a concise statement does not

permit the trial court to identify the issue raised on appeal).

      However, we decline to find waiver and will address the merits of

Appellant’s claim. Upon review, we hold that the trial court did not abuse its

discretion in permitting testimony about Appellant’s involvement in the car

accident.   Throughout the trial, several references were made to A.M.’s

potential ulterior motive of filing a false report of sexual abuse because

Appellant sought a portion of the car accident settlement or wanted to

prevent A.M. from receiving a lump settlement. Accordingly, Appellant’s role

in the car accident was relevant to disproving Appellant’s allegations

regarding A.M.’s ulterior motive, and we find that the trial court did not

abuse its discretion in admitting testimony to provide the jury with a broader

context regarding the referenced car accident.

      As to Appellant’s third argument, when rebuttal witness John Trotsky

was asked if he knew Appellant’s reputation in the community for truth-

telling, he responded, “Terrible.”     N.T., 9/24/2012, at 277.        Appellant

objected, and a sidebar discussion was held. At the conclusion of the

discussion, Appellant’s counsel stated, “I’ll let it be. I don’t think it needs a

curative instruction. I think we’ll just go back.”      Id. at 280.     Because

Appellant was satisfied after the sidebar discussion and withdrew the

objection, the trial court did not rule on the objection.         Therefore, as


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correctly noted by the trial court, “there is no error or relief due because

[Appellant] was satisfied with the response to the question.”        Trial Court

Opinion, 3/29/2018, at 23.

      Based on the foregoing, we find no merit to Appellant’s argument that

any of these individual claims of error warranted a new trial. Thus, we also

conclude that there was no cumulative error, and therefore Appellant is not

entitled to relief. See Commonwealth v. Jones, 811 A.2d 994, 1007 (Pa.

2002) (citation omitted) (finding that because the trial court did not err

individually, there can be no prejudicial trial court error to cumulate).

      We next turn to Appellant’s claim that the trial court erred in denying

his post-sentence motion where he asserted that the verdict was against the

weight of the evidence.    Appellant’s Brief at 29.   “A verdict is against the

weight of the evidence ‘where certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.’”   Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super.

2017) (quoting Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super.

2003)). We examine challenges to the weight of the evidence according to

the following standard.

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. When a trial
      court considers a motion for a new trial based upon a weight of
      the evidence claim, the trial court may award relief only when


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      the jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so
      that right may be given another opportunity to prevail. The
      inquiry is not the same for an appellate court. Rather, when an
      appellate court reviews a weight claim, the court is reviewing the
      exercise of discretion by the trial court, not the underlying
      question of whether the verdict was against the weight of the
      evidence. The appellate court reviews a weight claim using an
      abuse of discretion standard.

Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and

quotation marks omitted).

      Here, Appellant argues that the trial court’s alleged evidentiary errors

addressed supra were highly prejudicial to Appellant’s credibility.         He

contends they caused the jury to accord more than due weight to the

aforementioned challenged evidence instead of focusing on A.M.’s delayed

reporting, the lack of physical evidence of sexual intercourse, and A.M.’s

alleged ulterior motive for filing a false report to prevent Appellant from

commandeering her car accident settlement. According to Appellant, these

errors resulted in a verdict based solely on the inconsistent testimony of

A.M. Appellant’s Brief at 31-32.

      In its supplemental opinion, the trial court determined that any

inconsistencies in testimony went to credibility, and the jury made credibility

determinations in favor of the Commonwealth’s witnesses and against

Appellant’s version of events. Trial Court Supplemental Opinion, 4/18/2019,

at 3-4. After reviewing the record and being in a position to observe and




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listen to the witnesses’ testimony during trial, the trial court “was anything

but shocked by the jury’s verdict.” Id. at 4.

        As discussed supra, the trial court actually sustained several of

Appellant’s     objections    and   struck    that     testimony   from    the     record.

Additionally, “[a]t trial, the jury was the ultimate fact-finder and the sole

arbiter of the credibility of each of the witnesses.”            Jacoby, 170 A.3d at

1080.      “A    jury   is   entitled   to   resolve    any    inconsistencies     in   the

Commonwealth’s evidence in the manner that it sees fit.”                  Id.    Appellant

cross-examined A.M. extensively regarding her delayed reporting and

possible ulterior motives. The jury was permitted to credit the testimony of

A.M. notwithstanding some inconsistencies. It also was permitted to credit

the Commonwealth’s witnesses instead of Appellant’s witnesses. Assessing

all of the evidence according to the governing principles cited above, we

conclude that the trial court did not abuse its discretion when it denied

Appellant’s weight claim, and therefore Appellant is not entitled to relief.

        We now turn to Appellant’s sentencing claims. First, Appellant claims

that the trial court abused its discretion in fashioning his sentence for

statutory sexual assault because the court applied the wrong sentencing

guidelines.      Appellant’s Brief at 19.            Such a claim challenges the

discretionary aspects of Appellant’s sentence.                See Commonwealth v.

Archer, 722 A.2d 203, 211 (Pa. Super. 1998). Thus, we consider this claim

mindful of the following.


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      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right.            An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see Pa.R.Crim.P. 720; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the
         sentence appealed from is not appropriate under the
         Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

      Although Appellant has satisfied the aforementioned requirements,3 his

claim is belied by the record. Appellant’s counsel requested clarification at

the sentencing hearing to ensure the trial court was aware of the correct

sentencing guidelines for statutory sexual assault. The trial court confirmed

that it was aware of the correct standard-range sentencing guidelines, 6 to

14 months of inarceration, and applied a standard-range sentence of 14 to




3 Appellant has timely filed a notice of appeal and preserved this claim in a
post-sentence motion, and a claim that the sentencing guidelines were
misapplied raises a substantial question. See Archer, 722 A.2d at 211.
While Appellant failed to include a Pa.R.A.P. 2119(f) statement in his brief,
because the Commonwealth does not object, it is not a fatal defect.
Commonwealth v. Stewart, 867 A.2d 589 (Pa. Super. 2005) (declining to
find waiver of sentencing claim due to lack of Pa.R.A.P. 2119(f) statement
where Commonwealth did not object). Accordingly, we address Appellant’s
discretionary-aspects-of-sentencing claim.


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28 months of incarceration. N.T., 4/11/2014, at 14, 79-80. Accordingly, we

find no abuse of discretion.

      Appellant next claims that the mandatory minimum sentences imposed

at his IDSI convictions must be vacated because they are unconstitutional

pursuant to Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).

Appellant’s Brief at 17. In Wolfe, our Supreme Court reviewed 42 Pa.C.S.

§ 9718, which provides for a mandatory minimum sentence of 10 years of

incarceration for individuals convicted of IDSI when the sentencing court

determines by a preponderance of the evidence that the victim is less than

16 years old.   Based on Alleyne v. United States, 570 U.S. 99 (2013),

which held that “any fact that, by law, increases the penalty for a crime

must be treated as an element of the offense, submitted to a jury rather

than a judge, and found beyond a reasonable doubt[,]” our Supreme Court

found section 9718 unconstitutional.           Wolfe, 140 A.3d at 653 (citing

Alleyne, 570 U.S. at 115-16).

      Appellant’s claim implicates the legality of his sentence.       “Issues

relating to the legality of a sentence are questions of law[.] ... Our standard

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

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)

(citations and quotations omitted).

      Appellant was convicted of three counts of IDSI at 18 Pa.C.S.

§ 3123(a)(7).   To be convicted under this subsection, the factfinder must


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have found, beyond a reasonable doubt, that Appellant engaged in deviate

sexual intercourse with A.M. when A.M. was less than 16 years of age,

Appellant was four or more years older than A.M., and A.M. and Appellant

were not married to each other. Id. In defining the elements of this crime,

the trial court instructed the jury that it must find that A.M. was less than 16

years of age in order to find Appellant guilty of IDSI. N.T., 9/24/2012, at

360-62.   Following deliberations, the jury found Appellant guilty of three

counts of IDSI “with a person less than 16 years of age[.]” Id. at 376-77.

At sentencing, the trial court applied the version of section 9718 that was

applicable at the time Appellant committed IDSI, which mandated that a

person convicted of IDSI when the victim is less than 16 years old be

sentenced to a minimum term of imprisonment of five years.          42 Pa.C.S.

§ 9718(a)(1) (effective 11/30/2004 to 12/31/2006).4

      Upon review, we find no error.          Appellant was convicted of IDSI

pursuant to 18 Pa.C.S. § 3123(a)(7), which requires proof that the victim

was less than 16 years of age.      Therefore, because Appellant received a

mandatory minimum sentence based solely on the subsection of IDSI for

which he was convicted, no aggravating fact needed to be proven to subject

Appellant to the mandatory minimum sentence.           Moreover, because the

version of section 9718 under which Appellant was sentenced did not


4 This prior version did not specify how the fact of the victim’s age must be
proven.


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delegate the fact-finding of age to the trial court by a preponderance of the

evidence, and because the jury determined beyond a reasonable doubt that

the aggravating factor of age existed, Appellant’s sentence does not violate

the principles set forth in Alleyne.    Accordingly, we find that Appellant’s

mandatory-minimum sentence is legal.

     Finally,   Appellant   claims   that     his   designation   as   an   SVP   is

unconstitutional under Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017),5 and Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017),6

appeal granted, 190 A.3d 581 (Pa. 2018). Appellant’s Brief at 18.

     The Pennsylvania General Assembly passed SORNA on December 20,

2011, with an effective date of December 20, 2012. A recent en banc panel

of this Court vacated a defendant’s SVP designation imposed after SORNA’s

effective date for crimes committed before SORNA’s effective date because

the trial court “designated [the defendant] as an SVP without making the

required factual findings beyond a reasonable doubt.”         Commonwealth v




5 In Muniz, our Supreme Court held that certain registration provisions of
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) are
punitive and retroactive application of those provisions violates the ex post
facto clauses of the Pennsylvania and United States constitutions.

6 In Butler, this Court, applying Muniz and Alleyne, held that SORNA’s SVP
procedure violates the federal and Pennsylvania constitutions “because it
increases the criminal penalty to which [a defendant] is exposed without the
chosen fact-finder making the necessary factual findings beyond a
reasonable doubt.” 173 A.3d at 1218.


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J-S60041-18


Lippincott, ___ A.3d. ___, 2019 WL 1612677 at *9 (Pa. Super. 2019) (en

banc).7

      Here, Appellant committed the underlying offenses before both

SORNA’s enactment date and effective date.        Appellant was convicted on

September 26, 2012, between SORNA’s enactment date and effective date.

The Sexual Offender Assessment Board (SOAB) prepared a report for

Appellant’s pending SVP hearing on December 7, 2012, before SORNA’s

effective date. However, due to delays from a sexual offender assessment

and motion for extraordinary relief, Appellant’s SVP hearing was not held

until April 11, 2014, after SORNA’s effective date.

      It is unclear from the record whether the trial court conducted the SVP

hearing pursuant to Megan’s Law, which was applicable at the time Appellant

committed his offenses, or SORNA, which became effective prior to the SVP

hearing. Of note, during the SVP hearing, the Commonwealth indicated to

the trial court that it need only find the statutory SVP criteria by clear and

convincing evidence. N.T., 4/11/2014, at 54. Additionally, at the conclusion


7 The author of this memorandum disagrees with Lippincott’s holding that
“application of SORNA to sex offenders for offenses committed before its
effective date violates the ex post facto clauses of the United States and
Pennsylvania constitutions.” Lippincott, supra at *6 (emphasis added).
In Lippincott, some of Lippincott’s offenses occurred between SORNA’s
enactment date and SORNA’s effective date. This author avers that once
SORNA was enacted, Lippincott received fair notice of the potential penalties
he could face under SORNA. Nonetheless, this distinction is not relevant to
this disposition because Appellant’s offenses all occurred before both
SORNA’s enactment date and effective date.


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of the hearing, the trial court found that Appellant met the criteria to be

designated an SVP and ordered Appellant “to comply with Megan’s Law and

Adam Walsh SORNA requirements[.]” Id. at 81. As such, it appears that

the trial court employed, at least in part, SORNA’s unconstitutional statutory

mechanism for designating Appellant an SVP.          Because the trial court

designated Appellant as an SVP without making the required factual findings

beyond a reasonable doubt, we are compelled to vacate Appellant’s SVP

status in light of Lippincott.8

      Portion of Appellant’s sentencing order designating him as an SVP

vacated. Judgment of sentence affirmed in all other respects.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2019




8  We note that pursuant to Appellant’s IDSI conviction, he is still subject to
lifetime registration. Some other penalties under SORNA are more severe
than under Megan’s Law.


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