J-S44003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KERRY CHARLES SMITH,

                            Appellant                 No. 410 WDA 2013


          Appeal from the Judgment of Sentence November 29, 2012
              In the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-CR-0000303-2011


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 12, 2014

       Kerry Charles Smith appeals from the judgment of sentence of 80 to

195 years’ incarceration, imposed on November 29, 2012, following a jury

trial resulting in his conviction for rape of a child, involuntary deviate sexual

intercourse with a child, aggravated indecent assault on a child, indecent

assault on a child, indecent exposure, corruption of minors, and attempted

indecent assault on a child.1 We affirm.

       We adopt the following statement of facts:




____________________________________________


1
  Respectively, 18 Pa.C.S. §§ 3121(c) (5 counts), 3123(b) (5 counts),
3125(a)(7) (10 counts), 3126(a)(7) (15 counts), 3127(a) (31 counts),
6301(a) (1 count), and 901(a) (2 counts).
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       The charges arose when [Ch.J.],[2] an eleven-year-old girl, told
       her family that [Appellant] had attempted to kiss her and
       touched her chest. Upon hearing this complaint, [Ch.J.’s] older
       sister, [Ca.J.], came forward with allegations that she too had []
       been assaulted by [Appellant] numerous times when she was
       seven[-] to ten[-]years[-]old, several years before. During their
       investigation, the Pennsylvania State Police conducted a
       consensual intercepted phone call between [Appellant] and
       [Ca.J.], in which [Appellant] made several incriminating
       statements.

       …

       [Ca.J.] testified that [Appellant] babysat her from the time she
       was seven years of age to ten years of age. [Ca.J.] narrowed
       the babysitting periods to times when both of her parents were
       working for the night or her father would go out on a fire call.
       She testified that [Appellant] would make her watch
       pornographic movies with him while she sat on [Appellant’s] lap.
       [Appellant] then progressed to maturbating in front of the child,
       and then had [Ca.J.] masturbate him. [Appellant] ejaculated in
       both scenarios.      [Ca.J.] testified that [Appellant] had her
       masturbate him over thirty times. [Ca.J.] testified that the
       masturbation incidents occurred near radio towers close to
       [Appellant’s] home, inside [Appellant’s] home, and on
       motorcycle trips with [Appellant]. [Ca.J.] also testified that
       [Appellant] digitally penetrated her genitals … over ten times.
       [Ca.J.] testified that these incidents occurred in her parents’
       bedroom, on her couch, at [Appellant’s] home, and sometimes
       her bedroom. As she got closer to ten years of age, [Appellant]
       had [Ca.J.] perform oral sex on him and [Appellant] would
       sometimes ejaculate in her mouth. [Ca.J.] testified that the
       incidents of oral sex occurred in her bedroom while [Appellant]
       sat at her desk, and happened at least five times.

       …

       [Ch.J.], who was eleven years of age at the time of trial, testified
       that she visited [Appellant] during the summer of 2011.
____________________________________________


2
 Due to the age of the victims and the nature of the offenses against them,
we will refer to the victims only by their initials.



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      [Appellant] took her to an antenna tower on a nearby mountain
      and attempted to kiss her in what she described as a “boyfriend”
      or “girlfriend” kiss. [Ch.J.] also testified that when she was
      seven[-]years[-]old, [Appellant] came to her home and
      attempted to touch her chest.

      …

      [Ch.J.] testified that while [Appellant] was working on computers
      at her home he tried to make her watch “strange videos” with
      “boys and girls.” She described the videos as “disgusting” and
      “inappropriate.”

Trial Court’s Pa.R.A.P. 1925(a) Opinion, 09/16/2013, at 1-5 (internal

footnotes and citations to record omitted).

      A jury convicted Appellant of all charges brought against him.

Thereafter, the trial court held a hearing to determine whether Appellant

should be classified as a sexually violent predator (“SVP”).           The court

concluded that he was and sentenced him as indicated above.            Appellant

timely filed post-sentence motions, including a challenge to the weight of the

evidence and a claim that the sentence imposed “was totally uncalled for.”

See Appellant’s Post-Trial Motion, at 9. His motions were denied by the trial

court without a hearing. Appellant’s counsel failed to file timely a notice of

appeal.    Appellant   obtained      new   counsel    who   successfully   sought

reinstatement of Appellant’s appellate rights.       Thereafter, Appellant timely

appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial

court issued a responsive opinion.

      Appellant raises the following issues:




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      [1.] The trial court erred when neglecting to rule [Ch.J.]
      competent to testify as well as not permitting [] Appellant to
      challenge competency of [Ch.J.] and allowing her to be
      questioned on competency in the presence of the jury.

      [2.] The trial court erred when limiting the cross[-]examination
      and testimony of [Ca.J.] regarding past sexual offenses
      committed against her.

      [3.] The trial court erred when disallowing cross[-]examination
      and testimony of [Ch.J.] regarding potential taint.

      [4.] The trial court erred in refusing to exclude the recorded
      phone call due to lack of consent of [Ca.J.] and refusing to hold
      a hearing on the admissibility of the recorded phone call
      pursuant to the best evidence rule.

      [5.] The trial court erred when “specially” instructing the jury
      relative to [] Appellant’s expert as well as when using the terms
      “without a restraint” rather than “without hesitation” regarding
      instructions on reasonable doubt and in refusing Appellant’s
      request for a re-instruction on instructions regarding the burden
      of proof.

      [6.] The trial court erred by not finding that the weight of the
      evidence was against the verdicts of guilty.

      [7.] The trial court erred when finding [] Appellant was not
      indigent as well as finding [] Appellant a sexually violent
      predator.

      [8.] The trial court erred when sentencing [Appellant].

Appellant’s Brief, at 34.

      In   his   first   issue,   Appellant   raises   several   challenges   to   the

competency of Ch.J. to testify. Appellant claims: (1) the court failed to rule

expressly that Ch.J. was competent; (2) the court failed to afford Appellant

an opportunity to cross-examine Ch.J. for competency; and (3) such limited

competency questioning as the court did allow improperly occurred in front

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of the jury.    We review a trial court’s competency ruling for an abuse of

discretion. See Rosche v. McCoy, 156 A.2d 307, 310 (Pa. 1959).

       The competency to testify is presumed where the witness is more than

fourteen years of age.        See Rosche, 156 A.2d at 310; see also Pa.R.E.

601(a). However, the presumption does not arise where a child witness is

under age fourteen. Rosche, 156 A.2d at 310. “Under 14 there must be

judicial inquiry as to mental capacity, which must be more searching in

proportion to chronological immaturity.” Id.

       Here, Ch.J. was eleven years of age when she testified to Appellant’s

crimes.    Thus, her competency was not presumed.          Id.   Nevertheless,

Appellant cites no authority obviating his well-settled obligation to object to

“allegedly improper testimony at the proper stage in the questioning of the

witness.” Commonwealth v. Redel, 484 A.2d 171, 175 (Pa. Super. 1984)

(citing Commonwealth v. Berrios, 434 A.2d 1173, 1179 (Pa. 1981)).

Appellant did not seek an express ruling from the trial court, did not seek to

cross-examine Ch.J. on the question of her competency, and, most

importantly, failed to object to her testimony.      Accordingly, we find his

appellate claims regarding her competency waived.3 Id.


____________________________________________


3
  Absent waiver, and in consideration of the discretion afforded the trial
court, we note that the Commonwealth elicited sufficient testimony from
Ch.J. to establish her competency.     See Notes of Testimony (N.T.),
07/26/2012, at 104-06; Rosche, 156 A.2d at 310.



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       In his second issue, Appellant asserts the trial court erred when

limiting the cross-examination of Ca.J. regarding past sexual offenses

committed against her. This claim is without merit.

       Evidence of the sexual history of a sexual abuse complainant is

generally excluded by the rape shield law.          See 18 Pa.C.S. § 3104.

However, such evidence may be admissible subject to one or more

exceptions. See Commonwealth v. Burns, 988 A.2d 684, 690 (Pa. Super.

2009). We review a trial court’s ruling on the admissibility of such evidence

for “a clear abuse of discretion.” Id. at 689.

       Here, the Commonwealth introduced evidence of a prior sexual assault

committed against Ca.J.          See, e.g., N.T., 07/26/2012, at 181-82.   All

parties agreed that the Commonwealth had “opened the door” to cross-

examination of Ca.J. regarding this evidence.       See N.T., 07/26/2012, at

205-16; see also Commonwealth v. Riley, 643 A.2d 1090, 1093 (Pa.

Super. 1994).      Thereafter, Appellant was permitted to do so.   See N.T.,

07/26/2012, at 220-23. Accordingly, we discern no abuse of the trial court’s

discretion.4

____________________________________________


4
  To the extent Appellant now claims he should have been permitted to
cross-examine Ca.J. regarding her relationship with another person, J.J., we
observe that during trial, counsel for Appellant specifically disavowed any
intention of doing so. See N.T., 07/26/2012, at 215 (“Mr. Crawford: I have
no intention to ask her about [J.J.]”). Accordingly, we deem this issue
waived. See, e.g., Commonwealth v. Nunn, 947 A.2d 756, 762 (Pa.
Super. 2008); Pa.R.A.P. 302(a).



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         In his third issue, Appellant asserts the trial court erred by disallowing

cross-examination of Ch.J. regarding potential taint. See Commonwealth

v. Delbridge, 855 A.2d 27, 39-40 (Pa. 2003). Appellant did not raise this

issue before the trial court. We deem it waived.5 See Pa.R.A.P. 302(a).

         In his fourth issue, Appellant asserts the trial court erred in refusing to

exclude from evidence the recorded phone conversation between Appellant

and Ca.J. At trial, Appellant objected to the recording on two grounds.

         First, according to Appellant, the recording violated the best evidence

rule.6    See Pa.R.E. 1002.        Appellant does not develop this argument on

appeal and, thus, risks waiver. See Commonwealth v. Rhodes, 54 A.3d

908, 915 (Pa. Super. 2012); Pa.R.A.P. 2119.             Nevertheless, Appellant’s

contention is without merit.

         The “best evidence” rule, now established in Pa.R.E. 1002, limits
         the method of proving the terms of a writing to the presentation
         of the original writing, where the terms of the instrument are
         material to the issue at hand, unless the original is shown to be
         unavailable through no fault of the proponent. The rule applies
         to the proof of the contents of documents when the contents of
         those documents are material to, rather than mere evidence of,
         the issues at bar. … The rule is not implicated just because
         evidence is relevant; the rule applies where the writing itself is
         necessary to that which must be proved. The best evidence rule
         is controlling only if the terms of a writing must be proved to
         make a case or provide a defense.
____________________________________________


5
  Moreover, Appellant cites no evidence in support of his contention on
appeal that Ch.J.’s memory of her abuse has been tainted. See Delbridge,
855 A.2d at 39. Thus, absent waiver, this issue is devoid of merit.
6
    We address Appellant’s contentions in reverse order for ease of analysis.



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Commonwealth v. Townsend, 747 A.2d 376, 380-81 (Pa. Super. 2000)

(internal citations omitted).

      In Townsend, a police officer secured the written confession of an

assault suspect.   Id. at 378.   At trial, the officer read the confession into

evidence.   Id. at 379.   The suspect was convicted and appealed, claiming

that because the Commonwealth neglected to introduce the written

confession into evidence, the officer’s testimony violated the best evidence

rule. Id. A panel of this Court rejected the appellant’s claim:

      While the contents of appellant's confession makes compelling
      evidence for the Commonwealth's case, the Commonwealth did
      not need to prove those contents in order to establish the
      elements of its case. The contents were not an element of the
      crime; they were part of the evidence the Commonwealth chose
      to present to prove appellant did what was alleged in the
      charging documents.

      This is not a contract, the terms of which are determinative of
      the rights or obligations of the parties. There is no element of a
      writing in the proofs the Commonwealth was obliged to present.
      The statement was a relevant part of the evidence, but it is not a
      necessary part of the proof. It was not necessary for conviction.
      If the crime were forgery, or a written threat, the terms of a
      writing may be necessary proof, but the crimes here are burglary
      and assault. The prosecution had to show entry and the causing
      of the requisite bodily injury with the requisite intent; it did not
      have to prove a confession or any other writing.

Id.

      Similarly here, the contents of the recorded phone conversation

provided compelling evidence of Appellant’s guilt.           See, e.g., N.T.,

07/26/2012, at 182-85. However, as in Townsend, the recording “was a


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relevant part of the evidence, but it [was] not a necessary part of the proof.”

Id. Thus, the best evidence rule does not apply.

       Appellant also contends that the phone conversation was inadmissible

against him because it was recorded in violation of the Wiretapping and

Electronic Surveillance Control Act (Wiretap Act), 18 Pa.C.S.A. § 5701 et

seq.

       To the extent we interpret the Wiretap Act, our review is de novo.

Commonwealth v. Deck, 954 A.2d 603, 606 (Pa. Super. 2008) (citing

Commonwealth v. Bavusa, 832 A.2d 1042, 1052 (Pa. 2003)). However,

Appellant’s objection on this ground is essentially a motion to suppress.

Thus, the following standard also applies:

       In reviewing an order denying a motion to suppress evidence,
       we must determine whether the factual findings of the lower
       court are supported by the evidence of record. In making this
       determination, we may only consider the evidence of the
       Commonwealth witnesses and so much of the witnesses for the
       defendant, as fairly read in the context of the record as a whole,
       which remains uncontradicted. If the evidence supports the
       findings of the lower court, we are bound by such findings and
       may reverse only if the legal conclusions drawn therefrom are in
       error.

Commonwealth v. Donahue, 630 A.2d 1238, 1247 (Pa. Super. 1993)

(identifying this standard in the context of an appellant’s claim that

incriminating evidence should be suppressed based upon violations of the

Wiretap Act) (internal citations omitted).

       Section 5703 of the Wiretap Act prohibits the intentional interception,

recording and disclosure of any wire, electronic or oral communication. See

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18 Pa.C.S. § 5703; Commonwealth v. Deck, 954 A.2d 603, 607 (Pa.

Super. 2008). However, there are exceptions to these prohibitions. See 18

Pa.C.S. § 5704. One such exception occurs where law enforcement suspects

criminal activity, one of the parties to the communication has given prior

consent to an interception, and the local district attorney is satisfied that

consent is voluntary and has given prior approval for the interception. See

18 Pa.C.S. § 5704(2)(ii). This “consent exception” was relied upon by the

Commonwealth in this case.

      The Wiretap Act also provides a statutory exclusionary rule:

      (b) Motion to exclude.--Any aggrieved person who is a party
      to any proceeding in any court, board or agency of this
      Commonwealth may move to exclude the contents of any wire,
      electronic or oral communication, or evidence derived therefrom,
      on any of the following grounds:

      (1) Unless intercepted pursuant to an exception set forth in
      section 5704 (relating to exceptions to prohibition of interception
      and disclosure of communications), the interception was made
      without prior procurement of an order of authorization under
      section 5712 (relating to issuance of order and effect) or an
      order of approval under section 5713(a) (relating to emergency
      situations) or 5713.1(b) (relating to emergency hostage and
      barricade situations).

      …

      (5) With respect to interceptions pursuant to section 5704(2),
      the consent to the interception was coerced by the
      Commonwealth.

18 Pa.C.S. § 5721.1(b). The remedies described in Section 5721.1 are the

exclusive judicial remedies available for “nonconstitutional violations” of the

Wiretap Act. 18 Pa.C.S. § 5721.1(e).

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       Initially, we observe that the Commonwealth argues that Appellant

does not have standing to pursue relief. We disagree. Section 5721.1(b)

provides relief to “any aggrieved person.”          The Wiretap Act defines an

aggrieved person to be: “[a] person who was a party to any intercepted

wire, electronic or oral communication or a person against whom the

interception was directed.” 18 Pa.C.S. § 5702. Here, Appellant was a party

to an intercepted phone call. Accordingly, Appellant has standing to pursue

relief based upon the grounds set forth in Section 5721.1.

       Appellant’s argument implicitly invokes subsection (1), which provides

that in the absence of an applicable exception set forth in Section 5704,

such as the consent exception, an interception may be excluded unless

authorized by prior order of court.7           No order of court authorized the

interception in this case.         Thus, according to Appellant, if Ca.J. were

incapable of consent, the terms of the consent exception could not have

been met, and the interception should be subject to exclusion.8

____________________________________________


7
  An application for an order of court may be submitted by law enforcement
within 48 hours after an interception has occurred in certain emergency
situations not relevant here. See 18 Pa.C.S. § 5713.1(b).
8
  The Commonwealth and the trial court suggest that subsection (5) is the
only possible ground upon which Appellant could base his motion to exclude
the recording. Subsection (5) requires, at a minimum, an allegation that the
Commonwealth coerced a participant’s consent. There is no such allegation
here, and no evidence to support such an allegation. Thus, it does not
apply.




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       At the time of the recording, Ca.J. was not yet eighteen years of age.

According to Appellant, she was not competent to contract, citing in support

In re O’Leary’s Estate, 42 A.2d 624, 625 (Pa. 1945).            Thus, Appellant

concludes, her consent to the recording was a nullity, and the recording

should have been excluded.

       Although we agree with the premise of Appellant’s argument, the facts

of record do not support his claim. The testimony of Ca.J. established that

she lived on her own, was employed, and paid her own bills.          See N.T.,

07/26/2012, at 166-70.           Moreover, she testified that she knowingly and

voluntarily consented to the recording of her phone conversation.        Id. at

167-68. Finally, Ca.J. was over the age of sixteen when she consented. Id.

at 153.      Based upon these facts, the trial court overruled Appellant’s

objection.    Id. at 170. In our view, the record supports the court’s implicit

finding that Ca.J. was capable of consenting.9 We discern no error.


____________________________________________


9
 As noted by the trial court in its Pa.R.A.P. 1925(a) opinion, for public
welfare purposes, an emancipated child is:

    A minor who is aged 16 or over, who has left the parental household
    and has established himself as a separate entity free to act upon his
    own responsibility, and who is capable of acting independently of
    parental control. If the minor again lives with his parents he will no
    longer be considered emancipated unless he remains independent of
    his parents' control.

55 Pa. Code § 145.62; see also Trosky v. Mann, 581 A.2d 177, 181 (Pa.
Super. 1990) (noting that “emancipation” in the context of a support issue is
(Footnote Continued Next Page)


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      In his fifth issue, Appellant raises several challenges to the trial court’s

jury instructions. Each is devoid of merit.

      When reviewing a challenge to part of a jury instruction, we
      must review the jury charge as a whole to determine if it is fair
      and complete. A trial court has wide discretion in phrasing its
      jury instructions, and can choose its own words as long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. The trial court commits an abuse of
      discretion only when there is an inaccurate statement of the law.

Commonwealth v. Baker, 963 A.2d 495, 507 (Pa. Super. 2008) (quoting

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008)).

      According to Appellant, the trial court erred in prepending the words,

“[n]ow I will specially instruct you,” to its cautionary instruction to the jury

regarding the testimony of Appellant’s expert, Dennis Walsh.                 N.T.,

07/30/2012, at 173.10         Appellant cites no legal authority in support of his

contention that the trial court’s transitionary language was prejudicial to

Appellant.    Moreover, Appellant acknowledges that the court’s cautionary

instruction was proper.         See Appellant’s Brief, at 51-52.   We discern no

abuse of discretion.

      According to Appellant, the court erred when it used the words,

“without restraint,” in its definition of reasonable doubt, rather than “without
                       _______________________
(Footnote Continued)

a “question of fact to be determined by the circumstances present in each
case”).
10
   The trial court cautioned the jury to “examine closely” the testimony of
Mr. Walsh. Id. at 173. During his testimony, Mr. Walsh admitted to having
previously lied under oath at another trial. N.T., 07/27/2012, at 82.



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hesitation,” as preferred by Appellant.         N.T., 07/30/2012, at 175, 187.

Appellant cites no authority in support of his contention and acknowledges

that   the   instruction   comports   with     long-standing   precedent.    See

Commonwealth v. Moore, 414 A.2d 362, 364 (Pa. Super. 1979) (citing

Commonwealth v. Young, 317 A.2d 258 (Pa. 1974) (endorsing both the

“restraint” and “hesitation” formulations)); see also Appellant’s Brief, at 53.

We discern no abuse of discretion.

       Appellant also complains that the court failed to instruct adequately

that the reasonable doubt standard applies to “each and every element of

each and every offense.”      See Appellant’s Brief, at 53.      Again, Appellant

cites no authority in support of his contention. We have reviewed the trial

court’s instructions thoroughly and conclude that its instructions on

reasonable doubt were clear, adequate, and accurate. See Baker, 963 A.2d

at 507; see, e.g., N.T., 07/30/2012, at 175 (“[The Commonwealth must

prove] each element of the offenses … beyond a reasonable doubt.”)

(emphasis added). Again, we discern no abuse of its discretion.

       In his sixth issue, Appellant renews his challenge to the weight of the

evidence against him. He makes two arguments: (1) the testimony of Ca.J.




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lacked sufficient temporal specificity; and (2) the testimony of Ch.J. did not

establish criminal activity.11

       A trial court’s decision to deny a post-sentence motion challenging the

weight    of   the    evidence     is   “the     least   assailable   of   its   rulings.”

Commonwealth v. Nypaver, 69 A.3d 708, 717 (Pa. Super. 2013) (internal

quotation omitted).

       [W]e may only reverse the lower court's verdict if it is so
       contrary to the evidence as to shock one's sense of justice.
       Moreover, where the trial court has ruled on the weight claim
       below, an appellate court's role is not to consider the underlying
       question of whether the verdict is against the weight of the
       evidence. Rather, appellate review is limited to whether the trial
       court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)).

       We have reviewed the evidence                 and the trial court’s opinion

addressing Appellant’s arguments.              Regarding the testimony of Ca.J., the

trial court noted the following:

       [Ca.J.] testified about conduct that occurred more than ten years
       ago, when she would have been seven[-] to ten[-]years[-]old.
       While she could not specify the days, weeks, or months of the
       incidents, she did constrain them to when [Appellant] was
       babysitting her. In addition, she testified that the masturbatory
       acts occurred in the beginning with the oral sex occurring closer
____________________________________________


11
   We note that Appellant conflates the weight and sufficiency of the
evidence. See Appellant’s Brief, at 54-55 (setting forth the standard of
review applicable to a sufficiency argument), 55-57 (suggesting that Ch.J.’s
testimony was insufficient to establish a crime). Appellant did not preserve
a sufficiency challenge. Accordingly, we will not review such a claim.



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      in time to when she was ten[-]years[-]old. Moreover, the victim
      gave specific locations of where the different types of acts
      occurred. We believe that such testimony affixes the time
      periods and locations of the offenses with the reasonable
      certainty of the perceptive abilities of a normal seven[-] or ten[-
      ]year-old child.

Trial Court’s Pa.R.A.P. 1925(a) Opinion, 09/16/2013, at 4 (citing in support

Commonwealth v. Groff, 548 A.2d 1237, 1240-41 (Pa. Super. 1988)

(discussing   the   “reasonable     measure     of     flexibility   [afforded    the

Commonwealth] when faced with            the   special    difficulties involved    in

ascertaining the date of an assault upon a young child”)).           Regarding the

testimony of Ch.J., the court concluded:

      [Ch.J. testified that in the summer of 2011] [Appellant] took her
      to an antenna tower on a nearby mountain and attempted to
      kiss her in what she described as a “boyfriend” or “girlfriend”
      kiss.   The victim also testified that when she was seven[-
      ]years[-]old, [Appellant] came to her home and attempted to
      touch her chest. … [Ch.J.] testified that while [Appellant] was
      working on computers at her home he tried to make her watch
      “strange videos” with “boys and girls.” She described the videos
      as “disgusting” and “inappropriate.” While a person’s intentions
      in kissing a seven-year-old child or touching her chest could be
      innocent, the jury’s finding of guilty … given the entirety of the
      testimony considered by the jury cannot be said to shock one’s
      sense of justice.

Id. at 5 (internal citations to the record omitted).

      We agree with the trial court’s analysis.      The jury’s verdict does not

shock one’s sense of justice, and we discern no abuse of the court’s

discretion in rejecting Appellant’s weight claim.

      In his seventh issue, Appellant raises two challenges related to his SVP

hearing. First, Appellant argues that the court erred in declining to find him

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indigent and, thus, refusing to appoint him an expert.      We review a trial

court’s indigency ruling for an abuse of discretion. See Commonwealth v.

Rhodes, 54 A.3d 908, 915 (Pa. Super. 2012) (citing Commonwealth v.

Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008)).

       In [Commonwealth v.] Curnutte[, 71 A.2d 839 (Pa. Super.
       2005)], this Court ruled that 42 Pa.C.S.A. § 9795.4(e)(2)
       provides all defendants with the right to call expert witnesses
       and to an expert assessment other than that conducted by the
       Sexual Offenders Assessment Board. Id. at 842. In so ruling,
       we concluded that it would be fundamentally unfair to afford a
       defendant those rights but then preclude him from exercising
       them simply because he is indigent. Likewise, it would be unfair
       to allow a wealthy defendant those rights but to deny them to
       one who is indigent. In Curnutte, there was no dispute that the
       defendant was indigent, and we further noted that ‘[i]t is true
       that the Commonwealth is not obligated to pay for the services
       of an expert simply because a defendant requests one.’ Id. at
       842.

Rhodes, 54 A.3d at 914 (quoting Cannon, 954 A.2d at 1225).

       In Rhodes, we affirmed the trial court’s finding that the appellant was

not indigent, where the appellant had approximately $1,000.00 dollars in a

checking account, owned a station wagon, and received social security

disability payments. Id. at 915. Moreover, we noted with approval the trial

court’s conclusion that “it was Appellant's choice not to utilize his assets to

obtain an expert, and to instead utilize his assets for other purposes.” Id. at

915.




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       Here, the trial court conducted a hearing on Appellant’s purported

indigency just prior to his SVP hearing.12           Appellant testified.   See N.T.,

11/08/2012, at 14-45.         Following his testimony, the court found Appellant

retained multiple assets, including (1) a prison commissary account with as

much as $600 in it, (2) a checking account with an unknown balance, (3)

two motorcycles, and (4) two vehicles.             Id. at 46-47.   Based upon these

assets, the court concluded that Appellant was not indigent and, therefore,

denied his motion for the appointment of a psychological expert. Id.              We

discern no abuse of the court’s discretion in this regard.

       Appellant also argues that the court improperly determined that he is

an SVP.     Essentially, Appellant challenges the sufficiency of the evidence

against him. “Questions of evidentiary sufficiency present questions of law;

thus, our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006).                   Nevertheless,

our review of the court’s determination is constrained in the following

manner:

       The appellate task requires construing the evidence in the light
       most favorable to the party which prevailed before the
       factfinder[.] … The task of the Superior Court is one of review,
       and not of weighing and assessing evidence in the first instance.
____________________________________________


12
  The late timing of the court’s inquiry was the result of Appellant’s last
minute motion to appoint an expert to testify on his behalf at the SVP
hearing. On October 19, 2012, the trial court issued an order scheduling
Appellant’s SVP hearing for November 8, 2012, at 9 a.m. Appellant filed his
motion to appoint a psychological expert on November 8, 2012, at 9 a.m.



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Id. at 222-23.

       In order to find a defendant to be an SVP, the trial court must find, by

clear and convincing evidence, that (1) the person suffers from mental

abnormality or personality disorder that (2) makes him or her more likely to

engage in predatory sexually violent offenses.            See Commonwealth v.

Morgan, 16 A.3d 1165, 1168-69 (Pa. Super. 2011) (citing Commonwealth

v. Fuentes, 991 A.2d 935, 941–43 (Pa. Super. 2010) (en banc)).

       Here, the Commonwealth presented expert testimony that Appellant

suffers   from    pedophilia.       See    N.T.,    11/08/2012,   at   69-73.   The

Commonwealth also presented expert testimony that Appellant exhibited

predatory behavior. Id. at 73, 77. Viewing this evidence in the light most

favorable to the Commonwealth, we discern no error in the trial court’s

determination that Appellant is an SVP.13

       Finally, in his eighth issue, Appellant challenges the sentence imposed

by the trial court. We do not reach the merits of his claim. It appears that

he seeks to challenge discretionary aspects of his sentence. However, such

appeals “are not guaranteed by right.”             Commonwealth v. Grimes, 982

A.2d 559, 565 (Pa. Super. 2009).
____________________________________________


13
   To the extent Appellant challenges the credibility of the Commonwealth’s
expert witness, we note that the fact-finder, here the trial court, resolves
questions of credibility and “is free to believe all, part, or none of the
evidence.” Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011)
(citing Commonwealth v. Laird, 988 A.2d 618, 624 (Pa. 2010)).



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      Appellant’s   preservation    of    a   discretionary    sentencing   issue   is

deficient.   First, Appellant failed to identify any discretionary sentencing

issue in his post-trial motion, claiming only that his sentence “was totally

uncalled for.” See Grimes, 982 A.2d at 566; see also Appellant’s Post-Trial

Motion, at 9.   Second, Appellant’s question presented fails to identify any

issue relating to discretionary aspects of his sentence, in violation of

Pa.R.A.P. 2116(b) (mandating waiver). See Appellant’s Brief, at 34 (“[8.]

The trial court erred when sentencing [Appellant].”). Third, Appellant’s brief

does not include a statement of the reasons relied upon for an allowance of

appeal regarding discretionary aspects of his sentence, in violation of

Pa.R.A.P. 2119(f). See, generally, Appellant’s Brief.

      Adherence     to   these     procedural     rules   is   mandatory.       See

Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (Pa. 1987) (concluding

that appellate review despite the failure to meet these requirements would

afford an appellant “an appeal as of right from the discretionary aspects of a

sentence”); Grimes, 982 A.2d at 566. As Appellant has failed to preserve

properly a challenge to discretionary aspects of his sentence, we decline to

review his claim.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




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