J-S11013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

W.P.,

                         Appellant                   No. 691 WDA 2016


         Appeal from the Judgment of Sentence of December 10, 2015
              In the Court of Common Pleas of Clearfield County
             Criminal Division at No(s): CP-17-CR-0000879-2014

BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                             FILED APRIL 17, 2017

        Appellant, W.P.,1 appeals from the judgment of sentence entered on

December 10, 2015, as made final by the denial of his post-sentence motion

on April 11, 2016. We affirm.

        The factual background and procedural history of this case are as

follows. Appellant is married to a registered nurse, J.P. (“Wife”). Appellant

and Wife have five children, including three children they adopted from

China.    One of the adopted children, F.P., has a medical condition which




1
  A minor witness testified regarding the sexual abuse of his sister in this
case. Since that witness shares the same name as Appellant, we use
Appellant’s initials to protect the child’s identity.


* Retired Justice specially assigned to the Superior Court
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requires her to use a catheter. Another of the children adopted from China

is A.P. (“Victim”).2

      When Victim was seven years old, Appellant began rubbing lotion on her

chest. Thereafter, Appellant rubbed Victim’s genitals approximately two or

three times a week. This rubbing sometimes involved digital penetration of

Victim’s labia. On one occasion, Appellant inserted a catheter into Victim’s

urethra. These assaults continued for a period of two to three years.

        On January 13, 2015, the Commonwealth charged Appellant via

criminal information with 30 counts of aggregated indecent assault of a

child,3 30 counts of indecent assault of a child,4 30 counts of corruption of a

minor,5 and involuntary deviate sexual intercourse with a child (“IDSI”).6

Jury selection occurred on June 18, 2015. During jury selection, Appellant

moved to strike two jurors (Juror 15 and Juror 26) for cause. The trial court

denied the motions to strike and Appellant exhausted his preemptory strikes

prior to the empanelment of the jury.



2
  We remind counsel of 42 Pa.C.S.A. § 5988, which makes it a criminal
offense to include Victim’s full name in an unsealed filing with this Court.
We seal Appellant’s brief and the Commonwealth’s reproduced record
pursuant to that statutory provision.
3
    18 Pa.C.S.A. § 3125(b).
4
    18 Pa.C.S.A. § 3126(a)(7).
5
    18 Pa.C.S.A. § 6301(a)(1)(ii).
6
    18 Pa.C.S.A. § 3123(b).


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        On August 13, 2015, the jury convicted Appellant on all 91 charges.

On December 10, 2015, the trial court designated Appellant a sexually

violent predator and sentenced him to an aggregate term of 25 to 50 years’

imprisonment.      On Monday, December 21, 2015, Appellant filed a post-

sentence motion.      On April 11, 2016, the trial court denied the post-

sentence motion. This timely appeal followed.7

        Appellant presents six substantive issues for our review:

     1. [Whether there was sufficient evidence to convict Appellant of
        IDSI?

     2. Whether the trial court erred in denying Appellant’s motions to
        strike two jurors for cause?

     3. Whether the trial court erred in denying Appellant’s motion for
        mistrial based upon the Commonwealth’s reference to the impact
        of the crime on Victim?

     4. Whether the trial court erred in not instructing the jury on the
        difference between penetration and touching?

     5. Whether Appellant’s convictions for aggravated indecent assault
        should merge with his convictions for indecent assault?

     6. Whether the trial court abused its discretion when sentencing
        Appellant?]

Appellant’s Brief at 6-7.8


7
  On May 16, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On June 1, 2016, Appellant filed his concise statement.
On July 11, 2016, the trial court stated that the reasons for its rulings
appeared as of record in its opinion denying Appellant’s post-sentence
motion. All of Appellant’s issues were included in his concise statement.
8
    We have re-numbered the issues for ease of disposition.


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       In his first issue, Appellant argues that the evidence was insufficient to

convict him of IDSI.        “Whether sufficient evidence exists to support the

verdict is a question of law; our standard of review is de novo and our scope

of review is plenary.” Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.

Super. 2016), appeal denied, 470 EAL 2016 (Pa. Feb. 23, 2017) (citation

omitted).        “In   assessing    Appellant’s   sufficiency    challenge,    we   must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that the Commonwealth proved

[each] element of the crime beyond a reasonable doubt.” Commonwealth

v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016) (citation omitted).                  “The

evidence need not preclude every possibility of innocence and the fact-finder

is   free   to   believe   all,   part,   or   none   of   the   evidence     presented.”

Commonwealth v. Ford, 141 A.3d 547, 552 (Pa. Super. 2016) (citation

omitted).

       In order to convict Appellant of IDSI, the Commonwealth was required

to prove that: (1) Victim was less than 16 years old; (2) Appellant was four

or more years older than Victim; (3) Appellant penetrated Victim’s genitalia

with a foreign object; and (4) that penetration was for a purpose other than

good faith medical, hygienic, or law enforcement procedures.                     See 18

Pa.C.S.A. §§ 3101, 3123(a)(7), and 3123(b). Appellant concedes that the

evidence was sufficient to prove the first three elements of the offense. He



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argues, however, that the penetration was for a good faith medical

procedure.

      F.P., Victim’s younger sister, has a medication condition which requires

the use of the catheter. On one occasion, Appellant demonstrated how to

use the device by inserting a catheter into F.P.’s urethra.            Victim was

present because she sometimes assisted F.P. in inserting a catheter.

Appellant proceeded to insert a catheter into Victim’s urethra. He stopped

when Victim complained about the pain.

      Appellant contends that the insertion of the catheter into Victim’s

urethra was a good faith medical procedure. Specifically, he argues that the

insertion of the catheter into Victim’s urethra was meant to teach F.P. how

to insert a catheter into her urethra.          The Commonwealth, on the other

hand, argues that this is post hac rationalization for a criminal act.

      We conclude that there was sufficient evidence for the jury to infer

that Appellant’s insertion of the catheter was not done as part of a good

faith medical procedure.     First, there was significant testimony regarding

Appellant’s   other   assaults   of   Victim.     Second,   Victim   testified   that

demonstrating use of the catheter on her was unnecessary as she and F.P.

were able to see the process when Appellant inserted the catheter into F.P.’s

urethra. N.T., 8/12/15, at 69. Wife, a registered nurse, testified that she

teaches patients how to insert catheters.          She further testified that she

“never” taught someone how to insert a catheter by demonstrating the



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procedure on a third-party. Id. at 119. Although Appellant argued at trial

that he inserted the catheter into Victim’s urethra as part of a good faith

medical procedure, the jury chose to believe the circumstantial evidence

which pointed towards the act not being a good faith medical procedure. Cf.

Nevada v. Solander, 2016 WL 1601078, *4 (Nev. Apr. 19, 2016)

(Insertion of a catheter can constitute sexual assault “because, while a

catheter has a medical purpose, it does not necessarily follow that it was

used for legitimate medical purposes. The reasons why a catheter was used,

and the manner in which it was used, are questions of fact for the jury, not

the court, to decide.”). Accordingly, we conclude that there was sufficient

evidence to convict Appellant of ISDI.

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

denying his motions to strike Juror 15 and Juror 26 for cause during voir

dire. “[T]he jury selection process is crucial to the preservation of the right

to an impartial jury as guaranteed by Article I, § 9 of the Pennsylvania

Constitution.”   Commonwealth v. Buford, 101 A.3d 1182, 1191 (Pa.

Super. 2014), appeal denied, 114 A.3d 415 (Pa. 2015) (citation omitted).

As this Court has explained:

      There are two types of situations in which challenges for cause
      should be granted: (1) when the potential juror has such a close
      relationship, be it familial, financial or situational, with parties,
      counsel, victims, or witnesses, that the court will presume the
      likelihood of prejudice; and (2) when the potential juror’s
      likelihood of prejudice is exhibited by his conduct and answers to
      questions at voir dire. . . . In the latter situation, much depends
      upon the answers and demeanor of the potential juror as


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     observed by the trial judge and therefore reversal is appropriate
     only in case of palpable error.

Commonwealth v. Kelly, 134 A.3d 59, 61–62 (Pa. Super. 2016), appeal

denied, 2016 WL 5400621 (Pa. Sept. 27, 2016).

     As to Juror 15, the following examination occurred:

     [Defense Counsel]: Thank you, Your Honor. You heard this case
     does involve fairly young girls. Any member of the panel feel as
     though, and given the nature of the case that they were, that
     you will have feelings of sympathy towards her and you might
     feel that it’s your role to protect her? Any member of the panel
     feel like they might approach the case that way, that they would
     have sympathy for the girl and that might affect how you view
     the case, you might feel like you have a role -- it would be your
     role as a protector of her? Any member of the panel feel that
     might happen to them? [Juror 15] is that right?

     JUROR NO. 15: Yes.

     [Defense Counsel]: Okay. Do you think that circumstance might
     arise with you, [Juror 15]?

     JUROR NO. 15: I have two daughters, and I’m in the school
     system as well. And so, it’s likely that I could have some
     sympathy.

     [Defense Counsel]: Do you think in this type of case that you - -
     that those circumstances might influence how you view the
     evidence and how you would evaluate it?

     JUROR NO. 15: It’s possible. I don’t know.

     [Defense Counsel]: Okay. So you’re not able to tell us for --

     JUROR NO. 15: Right.

     [Defense Counsel]: -- that you would be fair. And I appreciate
     you telling us that, because that’s the purpose of jury selection
     today, to be sure that we have jurors who can be fair. So
     there’s no shame in that, and I appreciate you telling me that,



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     because that’s pretty honest.    Your Honor, I think a strike for
     cause would be appropriate.

     THE COURT: Ma’am, let me ask you this: This Defendant comes
     into court presumed to be innocent, and that presumption of
     innocence stays with him throughout the entire trial, and the
     only way he can lose that presumption is if the Commonwealth
     . . . proves to the jury’s satisfaction guilt beyond a reasonable
     doubt. That’s not guilt beyond all doubt, not guilt to a
     mathematical certainty.

     Can you put aside the fact that you have two girls at home and
     you’re in the education system and base your decision solely
     upon the facts and testimony that is presented during the course
     of trial, take the law as the Court gives it to you, apply that law
     to the facts as you, as a member of the jury, find them to be
     and arrive at a fair and impartial verdict, in other words, leave
     all outside influences out there and base your decision solely
     upon what was -- everything that is said and done while we are
     at trial?

     JUROR NO. 15: i would have to base it on whatever is given.

     THE COURT: All right. So you’re able to do that?

     JUROR NO. 15: Yes.

N.T., 6/18/15, at 29-31.

     Appellant relies heavily on Commonwealth v. Penn, 132 A.3d 498

(Pa. Super. 2016), in support of his argument that the trial court erred in

denying his motion to strike Juror 15 for cause.         Penn, however, is

distinguishable from the case at bar. In Penn, the juror expressed an actual

bias when originally questioned. Specifically, the juror in Penn stated that

she would be more likely to believe a police officer than a civilian witness

because of her romantic relationship with a police officer and her prior

experience working for a police department.    See id. at 500-501.     It was


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only after the Commonwealth attempted to rehabilitate the juror that she

stated that she could decide the case based upon the evidence presented.

See id. at 501.

      In the case sub judice, Juror 15 never said that she would believe

Victim’s testimony over that of another witness. Moreover, Juror 15 never

said that she would be partial and/or unfair when evaluating the evidence.

Instead, Juror 15 merely stated that she would have sympathy for Victim.

This is a natural reaction. An 11-year-old girl testified that she was sexually

abused by her father.    She was either telling the truth, in which case she

deserved sympathy because of the abuse, or she was lying, in which case

she deserved sympathy because an underlying psychological issue led her to

falsely accuse her father of sexually abusing her. When directly questioned

by the trial court, Juror 15 immediately answered that she could be fair and

impartial and decide the case based solely upon the evidence presented at

trial. Unlike Penn, in which the prospective juror explicitly stated she would

be partial to the Commonwealth, this is a case in which Juror 15 expressed a

natural feeling of sympathy for a troubled 11-year-old child but stated that

she could be fair and impartial.

      Appellant also relies upon Commonwealth v. Johnson, 445 A.2d 509

(Pa. Super. 1982), in support of his argument that the trial court erred in

denying his motion to strike Juror 15 for cause.       Johnson, however, is

distinguishable for similar reasons.     In Johnson, a prospective juror’s



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daughter had been the victim of a robbery and sexual assault. During voir

dire, he stated that he broke down during the trial of his daughter’s

assailant.   See id. at 512.   Upon further examination, he stated that he

thought it would be difficult to be fair because of the visceral emotional

reaction he had during his daughter’s assailant’s trial. See id. It was only

after the trial court exerted substantial pressure that the potential juror said

he could be fair. See id. at 512-513.

      Unlike the prospective juror in Johnson, Juror 15 did not reluctantly

profess impartiality after lengthy questioning by the trial court.     Instead,

Juror 15 stated she could be fair the first time she was asked by the trial

court. As noted above, Juror 15 merely stated a natural inclination to feel

sympathy for a child sex abuse victim or a child falsely accusing her father of

sexual abuse.

      We find instructive our Supreme Court’s decision in Commonwealth

v. Ingber, 531 A.2d 1101 (Pa. 1987).          In Ingber, a prospective juror

stated that she was related to several police officers and that she would

likely believe a police officer’s testimony over that of a civilian.        The

defendant moved to strike the juror for cause and the trial court denied the

motion.      This Court affirmed; however, our Supreme Court reversed,

concluding that the trial court erred in denying the motion to strike the juror

for cause. Our Supreme Court explained that:

      The [challenged juror] clearly expressed her predisposition to
      credit the testimony of a police officer over that of a civilian


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      witness. There is no indication in the record that this juror
      was questioned as to whether she would be able to put
      aside her feelings and evaluate the evidence in
      accordance with the court’s instructions. Such an inquiry
      was clearly necessary in order to determine this juror’s
      qualification to serve.

Id. at 1103-1104 (footnote omitted; emphasis added).

      This passage indicates that an initial expression of sympathy or

predisposition   toward    one    party    does     not   automatically         require

disqualification. Instead, the trial court has the option of further examining

the potential juror to determine if he or she would be able to put aside those

feelings and fairly evaluate the evidence presented at trial.           In Johnson,

this Court held that such examination cannot be prolonged in an attempt to

get the desired answer; however, Ingber indicates that disqualification is

not required if a juror immediately indicates that he or she is willing to fairly

adjudicate the case.      That is what happened in this case.              Juror 15

immediately stated that she        could   fairly   deliberate   this    case    when

questioned by the trial court. The trial court witnessed Juror 15’s responses

to the questions set forth above and determined that she could be fair and

impartial.   We discern no abuse of discretion in the trial court’s denial of

Appellant’s motion to strike Juror 15 for cause.

      As to Juror 26, the following examination occurred:

      [Defense Counsel: T]he fact that you have a child or a
      grandchild about [ten years old], do you think that would have
      any influence on the way that you would evaluate the testimony
      and the evidence in this case, that it would have any influence



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     on what sort of verdict you might render? Do you think you
     could set that aside?

                                   ***

     JUROR NO. 26: I’m not sure.

     [Defense Counsel]: You’re not sure.      Okay.   That’s a fair
     response. The Judge is going to tell you that you’ll need to
     divorce yourself from, you know, whatever life experiences you
     have as far as how you evaluate the evidence.

     Do you think that you would be able to – I appreciate you have
     either have a child or a grandchild about that age. The fact that
     you have a child or a grandchild, could you tell us for certain
     that that would have no influence on how you evaluate the
     evidence?

     JUROR NO. 26: No, I can’t say for sure.

                                   ***

     THE COURT: Sir, let me ask you the same thing. Can you put
     the fact aside that you have a child or a grandchild similar in age
     to the alleged victim in this case, can you put that aside and, if
     you are selected as a juror, base your decision solely upon the
     facts and testimony that’s presented during the course of trial
     and don’t have any outside influences but solely on the facts and
     testimony and, of course, the law as the Court gives you, apply
     that law to the facts as you find them to be and arrive at a fair
     and impartial verdict?

     JUROR NO. 26: Yeah.

N.T., 6/18/15, at 32-33.

     Juror 26 never said that he would believe Victim’s testimony over that

of another witness. Moreover, Juror 26 never said that he would be partial

and/or unfair when evaluating the evidence.       Instead, Juror 26 merely

stated that he wasn’t 100% certain that he could ignore the fact that he had



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a child or grandchild approximately the same age as Victim.         This is an

understandable answer in light of Appellant’s counsel’s phrasing of the

question. There are few things that humans are “certain” about, particularly

when it comes to a new experience like serving on a jury empaneled to

determine whether a father sexually abused his daughter.        When directly

questioned by the trial court, Juror 26 immediately answered that he could

be fair and impartial and decide the case based solely upon the evidence

presented at trial.   Unlike Penn, in which the prospective juror explicitly

stated she would be partial to the Commonwealth, this is a case in which

Juror 26 expressed a natural degree of uncertainty regarding his duty as a

juror but unequivocally declared his ability to impartially consider the

evidence.

      Similarly, unlike the situation in Johnson, Juror 26 did not repeatedly

proclaim his bias and then reluctantly pledge impartiality after prolonged

questioning by the trial court. Juror 26 stated he could be fair the first time

he was asked by the trial court. As noted above, Juror 26 merely stated a

natural reservation about his duty as a juror.

      Moreover, as noted above, Ingber indicates that disqualification is not

required if a juror immediately indicates that he or she is willing to fairly

adjudicate the case.     Juror 26 immediately stated that he could fairly

evaluate the evidence presented at trial when questioned by the trial court.

The trial court believed Juror 26’s response and determined that he could be



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fair and impartial.      We discern no abuse of discretion in the trial court’s

denial of Appellant’s motion to strike Juror 26 for cause.             Accordingly,

Appellant is not entitled to relief on his second allegation of error.

          In his third issue, Appellant argues that the trial court erred in denying

his motion for a mistrial during the Commonwealth’s closing argument. He

contends that the Commonwealth improperly referenced the impact the

crime had on Victim during its closing argument.

          “We review the denial of a motion for mistrial under the abuse of

discretion standard. A mistrial is an extreme remedy that is required only

where the challenged event deprived the accused of a fair and impartial

trial.”     Commonwealth v. Smith, 131 A.3d 467, 474–475 (Pa. 2015)

(internal quotation marks and citations omitted).            “[W]e will find that

comments by a prosecutor constitute reversible error only where their

unavoidable effect is to prejudice the jury, forming in their minds a fixed

bias and hostility toward the defendant such that they could not weigh the

evidence objectively and reach a fair verdict.”        Commonwealth v. Cash,

137 A.3d 1262, 1273 (Pa. 2016) (internal alteration, quotation marks, and

citation omitted). Furthermore,

          [w]ith specific reference to a claim of prosecutorial misconduct in
          a closing statement, it is well settled that [i]n reviewing
          prosecutorial remarks to determine their prejudicial quality,
          comments cannot be viewed in isolation but, rather, must be
          considered in the context in which they were made. Our review
          of prosecutorial remarks and an allegation of prosecutorial
          misconduct requires us to evaluate whether a defendant
          received a fair trial, not a perfect trial.


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Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa. Super. 2012),

appeal denied, 69 A.3d 600 (Pa. 2013) (internal alteration and citation

omitted).

     During his closing argument, the District Attorney stated that:

     I mean, she’s an eleven year old kid. What child should have to
     come into the courtroom, sit here and explain to people what
     was going on to her at her own home by her dad? I argue to
     you that, those events, that’s something that’s going to live with
     her for the rest of her life. She’s going to have those memories,
     those thoughts until the day she dies. [Defense counsel] wants
     to say that’s not fair, that’s not fair to my client. Think about
     [A.P.]

N.T, 8/13/15, at 54. Appellant immediately moved for a mistrial based upon

those comments. The trial court denied the motion.

     We believe that the outcome of this claim is controlled by this Court’s

decision in Commonwealth v. Judy, 978 A.2d 1015 (Pa. Super. 2009). In

that case, during his closing argument, the prosecutor stated that

     Sadly for child, this abuse that she suffered at the hands of her
     beloved Uncle Mike Judy is going to remain with her for the rest
     of her life. All of the king’s horses and all of the king’s men can’t
     fix that.    Finding Mike Judy guilty of the crimes that he
     committed won’t completely fix that but your decision today
     while it can't completely fix it, potentially could make it a lot
     worse.

Id. at 1028 (internal alteration and citation omitted). The defendant moved

for a mistrial and the trial court denied the motion.     This Court affirmed,

concluding that

     the comments of the assistant district attorney represented
     permissible oratorical flair framed expressly with the


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      prosecutor's admonition that the case hinged on a credibility
      determination. A prosecutor is permitted latitude to make
      argument with oratorical flair. The prosecutor was not diverting
      the jury from deciding the case on the evidence; rather he was
      imploring the jury to do so. No relief is warranted.

Id. (internal citation omitted).

      The District Attorney’s comments in this case closely mirror those of

the assistant district attorney in Judy. In both cases, the prosecutor noted

the lifetime impact of the sexual abuse committed by a close family

member.      Moreover, in the case sub judice, the context of the District

Attorney’s comments is important.      They were made in the middle of his

argument relating to the 30 corruption of minors charges.              He was

attempting to explain to the jury that Appellant’s actions tended to corrupt

Victim’s morals for the remainder of her life.           Thus, like in Judy, we

conclude that the District Attorney’s statements in this case were permissible

oratorical flair.   See Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa.

2005). The comments attempted to direct the jury’s attention to an element

of corruption of minors – not divert the jury’s focus or play upon the jury’s

sympathy.     Accordingly, we conclude that the trial court did not abuse its

discretion in denying Appellant’s motion for mistrial.

      In his fourth issue, Appellant argues that the trial court erred in not

instructing the jury on the difference between penetration and touching.

This argument is waived.     To preserve a claim that a jury instruction was

erroneous, a defendant must object to           the   charge at trial.     See



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Commonwealth v. Spotz, 84 A.3d 294, 318 n.18 (Pa. 2014) (citations

omitted); Pa.R.A.P. 302(b) (“A general exception to the charge to the jury

will not preserve an issue for appeal.   Specific exception shall be taken to

the language or omission complained of.”); Pa.R.Crim.P. 647(B) (“No

portions of the charge nor omissions from the charge may be assigned as

error, unless specific objections are made thereto before the jury retires to

deliberate.”). As this Court has explained:

     The pertinent rules, therefore, require a specific objection to the
     charge or an exception to the trial court’s ruling on a proposed
     point to preserve an issue involving a jury instruction. Although
     obligating counsel to take this additional step where a specific
     point for charge has been rejected may appear counterintuitive,
     as the requested instruction can be viewed as alerting the trial
     court to a defendant’s substantive legal position, it serves the
     salutary purpose of affording the court an opportunity to avoid
     or remediate potential error, thereby eliminating the need for
     appellate review of an otherwise correctable issue.

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014), appeal

denied, 117 A.3d 296 (Pa. 2015) (citations omitted).

     In this case, at the conclusion of the jury charge, the trial court asked

counsel if there were “any exceptions to the charge.” N.T., 8/13/15, at 87.

Appellant’s attorney responded in the negative. Id. at 88. As Appellant did

not object to the instructions prior to the jury retiring to deliberate, his

fourth issue is waived. See Parker, 104 A.3d at 29.

     In his fifth issue, Appellant argues that the trial court erred in finding

that his convictions for aggravated indecent assault of a child did not merge

with his convictions for indent assault of a child. “A claim that convictions


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merge for sentencing is a question of law; therefore, our standard of review

is de novo and our scope of review is plenary.”            Commonwealth v.

Kimmel, 125 A.3d 1272, 1275 (Pa. Super. 2015) (en banc), appeal denied,

136 A.3d 980 (Pa. 2016) (citation omitted).

      Merger in Pennsylvania is governed by section 9765 of the Sentencing

Code. Section 9765 provides:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S.A. § 9765.     “Accordingly, merger is appropriate only when two

distinct criteria are satisfied: (1) the crimes arise from a single criminal act;

and (2) all of the statutory elements of one of the offenses are included

within the statutory elements of the other.” Commonwealth v. Raven, 97

A.3d 1244, 1249 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014)

(citation omitted).

      This Court has held that all of the statutory elements of indecent

assault of a child are not included within the statutory elements of

aggravated indecent assault of a child and vice versa. Commonwealth v.

Allen, 856 A.2d 1251, 1253–1254 (Pa. Super. 2004), appeal denied, 870

A.2d 319 (Pa. 2005).     Accordingly, the trial court correctly concluded that

Appellant’s aggravated indecent assault of a child convictions did not merge

with his indent assault of a child convictions.


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        In his final issue, Appellant argues that his sentence is excessive. This

argument is waived.        At the time Appellant filed his notice of appeal,

Pennsylvania Rule of Appellate Procedure 1911(a) provided that, “The

Appellant shall request any transcript required under this chapter in the

manner and make any necessary payment or deposit therefor in the amount

and within the time prescribed by Rules 5001.1 et seq. of the Pennsylvania

Rules of Judicial Administration (court reporters).”        Pa.R.A.P. 1911(a). 9

“When the appellant [] fails to conform to the requirements of Rule 1911,

any claims that cannot be resolved in the absence of the necessary

transcript or transcripts must be deemed waived for the purpose of appellate

review.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en

banc), appeal denied, 916 A.2d 632 (Pa. 2007) (citation omitted).

        In this case, Appellant failed to file a transcript request for the

sentencing hearing when he filed his notice of appeal. For that reason, the

transcript of the sentencing hearing is not included in the certified record.10

As such, we cannot evaluate whether the trial court abused its discretion in

sentencing Appellant to an aggregate term of 25 to 50 years’ imprisonment.

Accordingly, Appellant waived his discretionary aspects claim.

        Appellant’s Brief and Commonwealth’s Reproduced Record sealed.

Judgment of sentence affirmed.

9
    Rule 1911 has since been amended. See 46 Pa.B. 7801 (Dec. 17, 2016).
10
    It is similarly not included in the Commonwealth’s reproduced record nor
is it cited in Appellant’s brief.


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J-S11013-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2017




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