J-S10009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EVEROL DAVID BRACKETT                      :
                                               :
                      Appellant                :   No. 1053 EDA 2017

            Appeal from the Judgment of Sentence February 8, 2017
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0002057-2015,
                            CP-15-CR-0003027-2015


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                                   FILED JULY 10, 2018

        Everol David Brackett appeals from the aggregate judgment of

sentence of four to eight years incarceration followed by ten years probation

imposed following his conviction of six counts of institutional sexual assault,

three counts of unlawful contact with a minor, three counts of sexual abuse

of children (child pornography), and one count of corruption of minors. We

affirm.

        We summarize the facts underlying the instant appeal based on our

independent review of the record.1 On April 9, 2015, Dan Eichelberger, the


____________________________________________


1 We note with disapproval that Appellant failed to comply with Pa.R.A.P.
2117(a)(4), which required him to include in his appellate brief “[a] closely
condensed chronological statement, in narrative form, of all the facts which
(Footnote Continued Next Page)
J-S10009-18


program director at the Devereux Mapleton Facility (“Devereux”) in Chester

County, was alerted by a student that her sixteen-year-old roommate,

C.K.T., was having a sexual relationship with a facility employee, who had

provided C.K.T. with an Apple iPhone so that they could talk and text. As

cell phones were prohibited at the facility, Mr. Eichelberger located and

confiscated C.K.T.’s phone.         He thereafter contacted police regarding a

possible sexual relationship between C.K.T. and Appellant, a forty-two-year-

old employee at the facility. Mr. Eichelberger turned over to police C.K.T.’s

cell phone, and indicated that sexually explicit texts and naked images of

C.K.T. had been exchanged with the telephone number listed as (267) 357-

9916, which Mr. Eichelberger identified as belonging to Appellant.        That

number was labeled in C.K.T.’s cell phone as “Ebd.”       Mr. Eichelberger also

identified Appellant as the individual in photographs sent to C.K.T. from that

telephone number.

      The police executed a search warrant for C.K.T.’s cell phone, and

discovered texts between C.K.T. and “Ebd” which indicated that they were in

a romantic relationship, as well as naked images of C.K.T. sent to “Ebd” and

photographs of Appellant sent by “Ebd” to C.K.T.. C.K.T. confirmed that she

(Footnote Continued) _______________________

are necessary to be known in order to determine the points in controversy,
with an appropriate reference in each instance to the place in the record
where the evidence substantiating the fact relied on may be found.”
Appellant’s brief is devoid of any statement of the facts underlying his
convictions with appropriate references to the record.



                                          -2-
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sent texts and naked photos of herself to Appellant, and that Appellant knew

that she was under the age of eighteen. C.K.T. further confirmed that, in

March of 2015, Appellant had digitally penetrated her genitals in a van

owned by Devereux on the grounds of the facility.             This incident is

mentioned in a March 30, 2015 text exchange between C.K.T. and “Ebd.”

See Affidavit of Probable Cause, 4/14/ 15, at 2-3.

      Also on April 9, 2015, Appellant was contacted by C.K.T. (from another

phone) to advise him that her cell phone had been found by Devereux. On

that same date, Appellant was placed on administrative suspension by

Devereux. Between April 9, 2015, and April 12, 2015, Appellant conducted

several internet searches on his cell phone for, inter alia, attorneys, criminal

defense attorneys, sex crimes attorneys and legislation regarding sex

crimes. See Trial Court Opinion, 6/16/17, at 17.

      On April 14, 2015, Appellant was arrested and police found on his

person a Samsung cell phone.       When police dialed (267) 357-9916, the

number for “Edb” that had been communicating with C.K.T., Appellant’s

Samsung cell phone rang, indicating that this was the cell phone that was

used to communicate with C.K.T. See Affidavit of Probable Cause, 4/14/15,

at 2-3. The police obtained a warrant to search the Samsung cell phone.

      Two months later, C.K.T. contacted police to report that additional

sexual encounters with Appellant had taken place in her bedroom at the

facility. She reported that they had sexual intercourse on one occasion, and,


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on at least five different occasions, Appellant performed other sexual acts on

her, including digital penetration and oral sex. Affidavit of Probable Cause,

7/10/15, at 1.

      On September 14, 2016, a jury convicted Appellant of the above-

described crimes. On February 8, 2017, the trial court sentenced Appellant

to an aggregate term of four to eight years incarceration followed by ten

years probation.    Appellant filed a post-sentence motion, which the trial

court denied.    Appellant thereafter filed a timely notice of appeal and a

court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal. The trial court then issued its Pa.R.A.P. 1925(a) Opinion.

      Appellant raises the following claims for our review:

      I.     Was evidence of institutional sexual assault insufficient for
             a verdict of guilty?

      II.    Was the judge’s admission of evidence that Appellant’s
             search on the internet seeking an attorney after
             complainant contacted him regarding the confiscation of
             her cell phone a violation of his right to due process, a
             violation of his right to seek counsel, and an abuse of
             discretion as more prejudicial than probative in labeling his
             exercise of constitutional rights a “consciousness of
             guilt[?]”

      III.   Was it an abuse of discretion and/or error of law for the
             trial judge to refuse to allow new counsel at sentencing, a
             continuance to acquire the trial notes of testimony and
             ultimately a violation of Appellant’s right to due process[?]

      IV.    Pursuant to Pa.R.A.P. 2119, was Appellant’s sentence
             excessively harsh and contrary to the fundamental norms
             which underlie the sentencing process?

Appellant’s brief at 8 (unnecessary capitalization omitted).

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      In his first issue, Appellant challenges the sufficiency of the evidence

supporting his convictions of institutional sexual assault.   Our standard of

review of sufficiency claims is well-settled:

      we evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it establishes each
      material element of the crime charged and the commission
      thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty.       [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant’s innocence. Any doubt about
      the defendant’s guilt is to be resolved by the fact finder unless
      the evidence is so weak and inconclusive that, as a matter of
      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa.Super. 2013) (citations

and quotation marks omitted).

      The crime of institutional sexual assault of a minor is defined by

statute as follows:

      A person who is an employee or agent of the Department of
      Corrections or a county correctional authority, youth
      development center, youth forestry camp, state or county
      juvenile detention facility, other licensed residential facility
      serving children and youth or a mental health or a mental
      retardation facility or institution commits a felony of the third
      degree when that person engages in sexual intercourse, deviate
      sexual intercourse or indecent contact with an inmate, detainee,
      patient or resident who is under 18 years of age.

18 Pa.C.S. § 3124.2(a.1)

      Appellant contends that, to prove a claim of institutional sexual

assault, the Commonwealth was required to prove that Devereux was a


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“licensed residential facility serving children and youth.”          According to

Appellant, the evidence supporting his convictions was insufficient because

the Commonwealth failed to prove that the facility is licensed.        Appellant’s

brief at 10-12.

          Appellant’s first claim is meritless. Although the record is silent as to

whether Devereux is a licensed facility, the application of section 3124.2

application is not limited to “licensed residential facility serving children and

youth.”       Rather, the statute applies to a broad range of non-licensed

facilities, including “a mental health or a mental retardation facility.”      Id.

Notably, at the inception of his employment at Devereux, Appellant signed a

statement confirming his understanding that Devereux is a mental health

facility, and that sexual abuse of its residents would be inappropriate:

          Devereux Pennsylvania is dedicated to the care, treatment and
          rehabilitation of Individuals with Mental Health, Developmental
          Disibilities & Physical Disabilities. As such, it supports the
          philosophy that emotional or physical abuse/neglect, sexual
          abuse, or harassment . . . are never appropriate while working
          with individuals we serve.

Commonwealth Trial Exhibit 11 (Devereux Pennsylvania Client Abuse

Statement), 7/24/12, at unnumbered 1. As Devereux was, at a minimum, a

mental health facility, it fell within the purview of section 3124.2, regardless

of whether it was licensed. Accordingly, Appellant’s first claim warrants no

relief.

          In his second claim, Appellant contends that the trial court erred by

admitting evidence, over his objection, of the on-line searches he conducted


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after he became aware that he was the subject of a police investigation.2

Specifically, the Commonwealth introduced Appellant’s internet searches for

“sex crimes lawyers,” “corruption of minors lawyer,” and “criminal defense

lawyers.”     N.T. Trial, 9/14/16, at 99, 101.       Appellant argues that the

admission of his internet searches violated his rights to due process and to

counsel, and constituted an abuse of discretion.

       Our standard of review is well-settled:

       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.

Commonwealth v. Witmayer, 144 A.3d 939, 949 (Pa.Super. 2016)

(citation omitted).

       Here, the trial court rejected Appellant’s evidentiary claim, explaining

as follows:

             Exhibit C-27 shows the internet searches Appellant made
       on his Samsung cell phone from April 9, 2015, through April 12,
       2015. Exhibit C-27 was admitted by the court over Appellant’s
       objection. The web searches to which Appellant objected ranged
       from general searches for attorneys in the Philadelphia area, to
       criminal defense attorneys, to sex crimes attorneys in Chester
____________________________________________


2 Appellant does not claim that the search of his Samsung phone or the
retrieval of his search history data was illegal or that the data was
inadmissible; rather, he challenges only the prejudicial impact of their
admission.



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     County, to legislation, and then particular legislation regarding
     sex crimes.      (Exhibit C-27).   Appellant submits that the
     admission of Exhibit C-27 violated [his] right to due process and
     his right to seek an attorney, as well as his right to investigate
     possible future criminal charges. We disagree.

            We find the searches themselves are not protected by any
     privilege or special right to privacy. Thus, the only questions to
     be answered are (1) whether Appellant’s web searches are
     relevant (Pa.R.E. 401)[;] and (2) whether the probative value
     outweighs the prejudicial impact on Appellant. (Pa.R.E. 402,
     403).     Relevant evidence can be excluded only when its
     probative value is substantially outweighed by the danger of
     unfair prejudice.

            We found that Exhibit C-27 was relevant. We determined
     that the time period the searches were made, from April 9 to
     April 12, 2015, was significant. It was on April 9, 2015[,] that
     the unauthorized mobile [iP]hone in [C.K.T.’s] possession was
     found by Devereux and that Appellant was informed he was
     being placed on administrative suspension.         [C.K.T.] also
     testified that she called Appellant from another phone the day
     her i[P]hone was confiscated. Appellant was taken into custody
     on April 14, 2015. As a result, Exhibit C-27 makes two facts
     more probable: (1) that [A]ppellant] knew evidence of his
     inappropriate contact with [C.K.T.] was recorded on the phone
     found in [C.K.T.’s] room[;] and (2) that he knew his contact was
     not only inappropriate, but very possible criminal. These facts
     go to [Appellant’s mens rea which is of consequence in
     determining [his] guilt. (Pa.R.E. 401).

           We next examined whether the probative value of Exhibit
     C-27 was substantially outweighed by unfair prejudice against
     Appellant. Appellant did not claim Exhibit C-27 confused the
     issues, misled the jury, caused undue delay, wasted time, or
     needlessly presented cumulative evidence. As a result, any
     objection on these grounds is waived. (Commonwealth v.
     Duffy, 832 A.2d 1132 (Pa.Super. 2003)[)]; (Pa.R.E. 401).

            All evidence has the potential to be prejudicial. The court
     is not required to “sanitize a trial to eliminate all unpleasant
     facts from the jury’s consideration where those facts are relevant
     to the issues at hand and form a part of the history and natural
     development of the events and offenses for which the defendant
     is charged.” Commonwealth v. Page, 965 A.2d 1212, 1220


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      (Pa.Super. 2009), (citing Commonwealth v. Dillon, 925 A.2d
      131, 141 (Pa. 2007)).

            The central issue raised by Appellant is the prejudicial
      nature of the web searches that focused on how to obtain legal
      representation in the defense of charges related to sexual crimes
      against a minor. We considered the fact that searching for an
      attorney and seeking info[rmation] relating to the elements of a
      sex crime . . . against the probative value of the evidence of
      Appellant’s internet activity. We found that the probative value
      was twofold: (1) the searches began on the same day [C.K.T.’s]
      phone, a gift from Appellant, was found by Devereux; and (2)
      the context of the web searches relate to [Appellant’s] concerns
      regarding his sexual contact with [C.K.T.]. As a result, the web
      searches do not suggest to the jury a specific decision on an
      improper basis or divert the jury’s attention away from its duty
      of weighing the evidence impartially. Therefore, we found the
      probative value of Exhibit C-27 outweighed any prejudice against
      Appellant and continue to find no error in admitting Exhibit C-27.

Trial Court Opinion, 6/16/17, at 17-19 (some citations and footnotes

omitted).

      Upon review, we agree with the trial court that the cellular evidence

provided insight as to Appellant’s state of mind in the hours and days

following his initial notification from C.K.T. that the cell phone Appellant had

provided to her had been confiscated by Devereux.              The jury could

reasonably infer from the content of the cellular evidence that Appellant was

concerned about inculpatory evidence being recovered from C.K.T.’s cell

phone, i.e., text messages exchanged between them indicating a romantic

relationship, and the naked images of C.K.T. that she sent to Appellant. Nor

was the cellular evidence merely cumulative; it provided the jury with a

temporal and physical nexus between the initial notification to Appellant that

C.K.T.’s cell phone had been confiscated and Appellant’s knowledge of the

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incriminating materials that would be discovered on her phone, prompting

the internet searches.          As we discern no manifest unreasonableness,

partiality, prejudice, bias, or ill-will, overriding or misapplication of the law,

or such lack of support for the trial court’s ruling so as to be clearly

erroneous, we conclude that the trial court did not abuse its discretion in

admitting the evidence. See Witmayer, supra.

       In his third claim of error, Appellant contends that the trial court erred

in denying his requests for a second continuance of the sentencing hearing.3

According to Appellant, he requested the second continuance because his

counsel had asked Appellant’s family to help counsel pay the sum of $1,800

for the trial notes of testimony. Appellant adds that his new counsel, who

did not attend the jury trial, needed additional time to pay for and review

the trial transcripts in order to prepare for the sentencing hearing. Appellant

argues that the trial court abused its discretion in denying a second

continuance because his new counsel did not review the trial transcripts

prior to the sentencing hearing. Appellant’s brief at 19.

       Our standard of review is well-established:

             The grant or denial of a motion for a continuance is within
       the sound discretion of the trial court and will be reversed only
       upon a showing of an abuse of discretion. An abuse of discretion
____________________________________________


3 The trial court granted Appellant’s first request for a continuance of the
sentencing hearing, due to Appellant’s retention of new counsel following the
jury trial, and rescheduled the initial sentencing hearing from December 19,
2016, to February 8, 2017.



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        is not merely an error of judgment; rather discretion is abused
        when the law is overridden or misapplied, or the judgment
        exercised is manifestly unreasonable, or the result of partiality,
        prejudice, bias, or ill will, as shown by the evidence or the
        record. Moreover, a bald allegation of an insufficient amount of
        time to prepare will not provide a basis for reversal of the denial
        of a continuance motion. An appellant must be able to show
        specifically in what manner he was unable to prepare for his
        defense or how he would have prepared differently had he been
        given more time. We will not reverse a denial of a motion for
        continuance in the absence of prejudice.

Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa.Super. 2014)

(internal citations, quotation marks, and brackets omitted). In reviewing a

denial of a continuance, the appellate court must have regard for the orderly

administration of justice, as well as the right of the defendant to have

adequate time to prepare a defense. Commonwealth v. Hansley, 24 A.3d

410, 418 (Pa.Super. 2011).

        Our review indicates that trial commenced on September 12, 2016,

and concluded on September 14, 2016.            Sentencing was scheduled for

December 19, 2016. On December 13, 2016, the trial court was contacted

by Appellant’s new counsel, who indicated that he had just been retained

and requested a continuance of the sentencing hearing.          See Trial Court

Opinion, 6/16/17, at 22.      The trial court acquiesced, and granted a two-

month continuance, rescheduling the sentencing hearing to February 8,

2017.     On February 1, 2017, and again on February 4, 2017, Appellant’s

counsel submitted written requests for a continuance of the sentencing

hearing, citing delays in securing the funds to obtain the notes of testimony.



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Id. At the sentencing hearing, counsel orally requested a continuance. Id.

The trial court denied all such requests, reasoning as follows:

      [Appellant’s counsel] admitted to the court that although he did
      not have the notes of testimony to review, he did have all of the
      discovery and had thoroughly reviewed all the evidence.
      ....

      Appellant does not have a right to re-litigate the evidence
      presented at trial. The case, as accepted by the jury to be
      proven beyond a reasonable doubt, was straightforward; a child
      in the case of a . . . mental health facility employing Appellant
      was sexually assaulted by Appellant on multiple occasions.
      Appellant did not testify or present evidence at trial. Thus, there
      is very little information in the notes of testimony which would
      impact Appellant’s sentence regarding Appellant’s character,
      rehabilitation, or other factors to be considered at sentencing.
      Additionally, the court was in receipt of numerous character
      letters and a Pre-sentence Investigation Report. We saw no
      reason to further delay sentencing to allow for the transcription
      of the trial notes of testimony. Further, at the time of the
      sentencing hearing, Appellant presented character witnesses and
      his own statement for the court’s consideration. We find it was
      not an abuse of discretion to proceed with the sentencing
      hearing after having the matter delayed for almost 5 months.

Trial Court Opinion, 6/16/17, at 23 (footnote omitted).

      We discern no abuse of discretion. Upon new counsel’s request, the

trial court granted a two-month continuance of the sentencing hearing.

Appellant does not claim that the two-month continuance was an insufficient

time in which his new counsel could have obtained and reviewed the trial

notes of testimony. Further, although Appellant’s new counsel received the

trial notes of testimony two weeks after the sentencing hearing, Appellant’s

brief is devoid of any assertion that specific information in the trial notes of

testimony, if known to his new counsel, could have been used at sentencing.


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As noted above, Appellant must show specifically in what manner his new

counsel was unable to prepare for the sentencing hearing or how counsel

would have prepared differently had he been given more time to review the

trial notes of testimony. See Antidormi, supra. Having failed to articulate

how he was prejudiced, Appellant’s third claim of error amounts to a “bald

allegation” of insufficient time to prepare.       Id.   Accordingly, it merits no

relief.

          In his final claim, Appellant contends that his sentence his harsh and

excessive “in light of the number of people in the community [who] came to

testify on his behalf and a lifetime of achievements and years without any

arrests” and because he “is a minister with a prior record score of ‘0.’”

Appellant’s brief at 22.4

          Appellant challenges the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa.Super. 2010).          Prior to reaching the merits of a discretionary

sentencing issue, this Court conducts
____________________________________________


4 Appellant also claims that his sentence is excessive in comparison to the
sentence imposed after another Devereux employee was convicted of similar
charges in 2012. However, Appellant failed to preserve this argument in his
post-sentence motion or at sentencing. Therefore, it is waived. See
Commonwealth v. Oree, 911 A.2d 169, 172-73 (Pa.Super. 2006)
(explaining that challenges to the discretionary aspects of sentencing must
be raised in a post-sentence motion or during sentencing proceedings, and
that absent such efforts, such claims are waived.).



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       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, [see]
       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, [see] 42 Pa.C.S. § 9781(b).

Moury, supra at 170 (citation omitted).

       When an appellant challenges the discretionary aspects of his

sentence, we must consider his brief on this issue as a petition for

permission to appeal.       Commonwealth v. Dawson, 132 A.3d 996, 1005

(Pa.Super. 2015); see also; 42 Pa.C.S. § 9781(b).

       In the instant case, Appellant filed a timely notice of appeal and

preserved his claims in a timely post-sentence motion. However, he did not

include in his appellate brief a separate Pa.R.A.P. 2119(f) statement.5   An

appellant who seeks to challenge the discretionary aspects of the sentence

imposed must provide a separate statement, pursuant to Rule of Appellate

Procedure 2119(f), specifying where the sentence falls in relation to the

Sentencing Guidelines and what particular provision of the Sentencing Code

has been violated.         Commonwealth v. Pollard, 832 A.2d 517, 525

____________________________________________


5 Rule 2119(f) provides, in relevant part: “An appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall set forth in a
separate section of the brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of a
sentence.” Pa.R.A.P. 2119(f) (emphasis added).




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(Pa.Super. 2003). Similarly, the Rule 2119(f) statement must specify what

fundamental norm the sentence violates and the manner in which it violates

that norm.     Id.   If the Commonwealth objects to a 2119(f) omission, this

Court is precluded from reviewing the merits of the claim and the appeal

must be denied.         See Commonwealth v. Kiesel, 854 A.2d 530, 533

(Pa.Super. 2004). As Appellant failed to include in his brief a separate Rule

2119(f) statement and the Commonwealth has objected, we are precluded

from reviewing his discretionary sentencing claim.6,   7



____________________________________________


6 Even if Appellant had preserved the issue for our review by complying with
Rule 2119(f), we would have concluded that he failed to advance a colorable
argument that the trial judge’s actions were: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process. See Pollard, supra. Appellant does
not identify which of the twelve sentences imposed he is challenging. Nor
does he allege that any of his sentences are in the aggravated range of the
sentencing guidelines, or outside of the statutory maximum sentence. He
also fails to point to any specific provision of the Sentencing Code that the
trial court ostensibly violated in imposing the sentences. Accordingly, the
arguments included in his brief do not raise a substantial question. See
Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa.Super. 2006) (holding
that an allegation that a sentencing court failed to consider or did not
adequately consider certain mitigating factors does not raise a substantial
question that the sentence was inappropriate. Finally, the trial court had the
benefit of a pre-sentence investigation report (“PSI”). See Commonwealth
v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009) (holding that, where a
sentencing court is informed by a PSI, “it is presumed that the court is
aware of all appropriate sentencing factors and considerations, and that
where the court has been so informed, its discretion should not be
disturbed.”).
7 Although not raised or addressed by Appellant, the trial court noted in its
Pa.R.A.P. 1925(a) opinion a disparity between the instructions provided to
the jury and the verdict slip. In short, Appellant was charged with three
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.




(Footnote Continued) _______________________

counts of unlawful contact with minor. The criminal informations indicated
that the Commonwealth would proceed under 18 Pa.C.S. § 6318(a)(1), and
that the three counts of unlawful contact with minor would be supported by
an underlying sexual offense conviction under Chapter 31; specifically,
institutional sexual assault under 18 Pa.C.S. § 3124.2(a.1).         Prior to
instructing the jury, the trial court was orally advised by the Commonwealth
that it intended to proceed under 18 Pa.C.S. § 6318(a)(5), and support the
three counts of unlawful contact with minor with three counts of sexual
abuse of children under 18 Pa.C.S. § 6312(d), which were also included in
the criminal informations.

The jury was charged according to the Commonwealth’s indicated change in
strategy.     Appellant lodged no objection to the jury instructions.
Notwithstanding, the verdict slip was not amended to reflect the change, and
mirrored the criminal informations. As the verdict slip was consistent with
the criminal informations, and the three convictions of unlawful contact with
minor were properly supported by three convictions of institutional sexual
assault, we find no defect in Appellant’s convictions for unlawful contact with
minor.

Nevertheless, the trial court purports to raise a non-waivable illegality of
sentence concern because its jury instructions regarding the unlawful
contact with minor counts were inconsistent with the criminal informations
and the verdict slip insofar as they advised the jury that the three counts of
unlawful contact with minor would be supported by the three counts of
sexual abuse of children. This does not implicate the legality of the sentence
imposed on Appellant’s proper convictions. Rather, it implicates a waivable
challenge to jury instructions. However, as Appellant failed to object to the
jury instructions, any claim of defect was not preserved for our review. See
Pa.R.A.P. 302 (“[i]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”); see also Commonwealth v.
Olsen, 82 A.3d 1041, 1050 (Pa.Super. 2013) (“A specific and timely
objection must be made to preserve a challenge to a particular jury
instruction. Failure to do so results in waiver.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/18




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