J-S63010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                        Appellee               :
                                               :
                  v.                           :
                                               :
    T.L.                                       :
                                               :
                        Appellant              :       No. 3124 EDA 2018

      Appeal from the Judgment of Sentence Entered September 20, 2018
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003991-2017


BEFORE:         GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.:                         FILED JANUARY 17, 2020

           Appellant, T.L., appeals from the judgment of sentence entered in the

Philadelphia County Court of Common Pleas, following his jury trial convictions

for rape, involuntary deviate sexual intercourse (“IDSI”) with a child, IDSI

with a person less than 16 years old, incest, unlawful contact with a minor,

and endangering the welfare of a child (“EWOC”).1 We affirm in part, vacate

in part, and remand with instructions.

           In its opinion, the trial court correctly sets forth most of the relevant

facts and procedural history of this case.         Therefore, we have no need to

restate them in full. Procedurally, we add that the trial court conducted a pre-

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S.A. §§ 3121(a)(1), 3123(b), 3123(a)(7), 4302(a), 6318(a)(1), and
4304(a)(1), respectively.
J-S63010-19


trial status hearing on June 11, 2018, the day before trial began. During the

hearing, Appellant challenged the proposed testimony of the Commonwealth’s

expert witness, Dr. Marita Lind, a pediatrician who had conducted a physical

exam of Victim several weeks after Victim had reported Appellant’s sexual

abuse.   Specifically, Appellant claimed Dr. Lind could not testify it was

medically possible that Victim had been repeatedly raped, even though her

hymen was intact, because: (i) Dr. Lind was unqualified to render that opinion;

and (ii) Dr. Lind’s expert report did not address the significance of the intact

hymen. Appellant also indicated he believed he needed his own expert to

oppose Dr. Lind’s proposed testimony, but Appellant did not request a

continuance to procure a defense expert. On the day trial began, June 12,

2018, Appellant moved to preclude Dr. Lind’s proposed expert testimony on

the effect of intercourse on the hymen. In the motion, Appellant did not ask

for a continuance to obtain his own expert witness on the subject. The court

denied Appellant’s motion.

      At trial, Appellant sought to challenge Victim’s credibility by cross-

examining her about disciplinary actions her school took against her in the

past. In particular, Appellant wanted to introduce and question Victim about

school records showing her school had sanctioned her in November 2012 and

June 2013.    Appellant asserted he had threatened to transfer Victim to a

different school in light of the school’s disciplinary actions, but Victim did not

want to leave her school, so she allegedly fabricated the allegations against


                                      -2-
J-S63010-19


Appellant. The Commonwealth objected to the school records. The trial court

sustained the objection, reasoning the school records constituted inadmissible

character evidence.

       The trial court sentenced Appellant on September 20, 2018, to an

aggregate term of twenty-two (22) to forty-four (44) years’ incarceration. The

court also notified Appellant of his requirement to register and report for life

as a “Tier III” sex offender under “Megan’s Law.”2

       Appellant raises the following issues for our review:

          WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND
          COMMITTED REVERSIBLE ERROR WHEN THE COURT
          DENIED [APPELLANT]’S REQUEST FOR A CONTINUANCE OF
          THE TRIAL SUCH THAT HE MAY HIRE AN EXPERT
          WITNESS[?]

          WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND
          COMMITTED REVERSIBLE ERROR WHEN THE COURT
          PRECLUDED [APPELLANT] FROM QUESTIONING [VICTIM]
          ABOUT SPECIFIC INCIDENTS, WHICH ESTABLISHED A
          MOTIVE FOR [VICTIM] TO FABRICATE THE TESTIMONY[?]

          WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND
          COMMITTED REVERSIBLE ERROR WHEN THE COURT
          DENIED [APPELLANT]’S POST-SENTENCE MOTION, WHICH
          CHALLENGED THE WEIGHT OF THE EVIDENCE[?]

(Appellant’s Brief at 11).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Susan I.


____________________________________________


2 The Sexual Offender Assessment Board (“SOAB”) concluded Appellant met
the criteria of a sexually violent predator (“SVP”), but the trial court did not
impose SVP status on Appellant.

                                           -3-
J-S63010-19


Schulman, we conclude Appellant’s issues one and three merit no relief. The

trial court opinion comprehensively discusses and properly disposes of

Appellant’s first and third questions presented. (See Trial Court Opinion, filed

April 17, 2019, at 15-18) (finding: (1) in his motion in limine, Appellant

challenged only substance of Dr. Lind’s proposed expert testimony and

requested trial court to preclude her expert testimony; Appellant asserts for

first time on appeal Dr. Lind’s report was untimely and trial court should have

granted continuance to allow Appellant time to procure opposing expert

testimony, although Appellant did not request continuance; therefore,

Appellant’s claim is waived; (3) Appellant’s claim that verdict was contrary to

weight of evidence fails; only “conflict” in case was Victim’s concern her family

would be separated if she reported her father’s sexual abuse; Victim’s

testimony was explicit about her personal “conflict”; jury credited Victim’s

candid testimony; no basis exists to disturb verdict). The record supports the

trial court’s rationale. Accordingly, we affirm on the basis of the trial court

opinion as to Appellant’s first and third issues.

      In his second issue, Appellant argues he sought to introduce Victim’s

school records as part of his defense theory that Victim had a motive to

fabricate her accusations against Appellant, not to impeach Victim’s credibility.

Appellant asserts the trial court incorrectly relied upon Commonwealth v.

Minich, 4 A.3d 1063 (Pa.Super. 2010) and Pa.R.E. 608 to bar admission of

Victim’s school records. Appellant contends the school records constituted


                                      -4-
J-S63010-19


“reverse Rule 404(b) evidence,” admissible under Pa.R.E. 404(b)(2).

Appellant maintains the trial court’s preclusion of the school records violated

his right of confrontation.3 Appellant concludes this Court should vacate the

judgment of sentence and remand for further proceedings. We disagree.

       “The admissibility of evidence is at the discretion of the trial court and

only a showing of an abuse of that discretion, and resulting prejudice,

constitutes reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-

98, 80 A.3d 380, 392 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189

L.Ed.2d 824 (2014).

          The term “discretion” imports the exercise of judgment,
          wisdom and skill so as to reach a dispassionate conclusion,
          within the framework of the law, and is not exercised for the
          purpose of giving effect to the will of the judge. Discretion
          must be exercised on the foundation of reason, as opposed
          to prejudice, personal motivations, caprice or arbitrary
          actions. Discretion is abused when the course pursued
          represents not merely an error of judgment, but where the
          judgment is manifestly unreasonable or where the law is not
          applied or where the record shows that the action is a result
____________________________________________


3  Issues not raised in a Rule 1925(b) concise statement of errors will be
deemed waived. Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d
775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719
A.2d 306, 309 (1998)). “Rule 1925(b) waivers may be raised by the appellate
court sua sponte.” Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484,
494 (2011). The Rule 1925(b) statement must be “specific enough for the
trial court to identify and address the issue [an appellant] wishe[s] to raise on
appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super. 2006),
appeal denied, 591 Pa. 712, 919 A.2d 956 (2007). Instantly, Appellant failed
to raise in his Rule 1925(b) statement any issue regarding the violation of his
right of confrontation. Thus, to the extent Appellant asserts the trial court
violated his right of confrontation when it barred the admission of Victim’s
school records, that claim is waived for purposes of appellate review. See
Castillo, supra.

                                           -5-
J-S63010-19


         of partiality, prejudice, bias or ill will.

Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal

denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party.”       Commonwealth v. Lopez, 57 A.3d 74, 81

(Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).

      As a general rule:

         Cross-examination may be employed to test a witness’
         story, to impeach credibility, and to establish the witness’
         motive for testifying. A witness may be cross-examined as
         to any matter tending to show the interest or bias of that
         witness.    It is particularly important that, where the
         determination of a defendant’s guilt or innocence is
         dependent upon the credibility of a prosecution witness, an
         adequate opportunity [must] be afforded to demonstrate
         through cross-examination that the witness is biased.

Commonwealth v. Hyland, 875 A.2d 1175, 1186 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005).

      Pennsylvania Rule of Evidence 404 provides in part as follows:

         Rule 404. Character Evidence; Crimes or Other Acts

         (a) Character Evidence.

         (1) Prohibited Uses. Evidence of a person’s character or
         character trait is not admissible to prove that on a particular
         occasion the person acted in accordance with the character
         or trait.

         (2) Exceptions for a Defendant or Victim in a Criminal Case.
         The following exceptions apply in a criminal case:

                                      *     *    *


                                          -6-
J-S63010-19


            (B) subject to limitations imposed by statute a
            defendant may offer evidence of an alleged victim’s
            pertinent trait, and if the evidence is admitted the
            prosecutor may:

               (i) offer evidence to rebut it; and

               (ii) offer evidence of the defendant’s same trait; and

                                  *    *    *

         (3) Exceptions for a Witness. Evidence of a witness’s
         character may be admitted under Rules 607, 608, and 609.

                                  *    *    *

         (b) Crimes, Wrongs or Other Acts.

         (1) Prohibited Uses. Evidence of a crime, wrong, or other
         act is not admissible to prove a person’s character in order
         to show that on a particular occasion the person acted in
         accordance with the character.

         (2) Permitted Uses. This evidence may be admissible for
         another purpose, such as proving motive, opportunity,
         intent, preparation, plan, knowledge, identity, absence of
         mistake, or lack of accident. In a criminal case this evidence
         is admissible only if the probative value of the evidence
         outweighs its potential for unfair prejudice.

                                  *    *    *

Pa.R.E. 404(a)(1), (a)(2)(B), (a)(3), (b)(1-2). Pennsylvania Rule of Evidence

405 states in part as follows:

         Rule 405. Methods of Proving Character

                                  *    *    *

         (b) By Specific Instances of Conduct. Specific instances
         of conduct are not admissible to prove character or a trait
         of character, except:


                                      -7-
J-S63010-19


                                  *       *        *

          (2) In a criminal case, when character or a character trait
          of an alleged victim is admissible under Pa.R.E.
          404(a)(2)(B) the defendant may prove the character or
          character trait by specific instances of conduct.

Pa.R.E.   405(b)(2).     “With   regard       to       criminal   cases,   under   Pa.R.E.

404(a)(2)(B), the accused may offer evidence of a pertinent trait of character

of the alleged crime victim.” Pa.R.E. 405 Comment.

     Additionally, “the defense may introduce evidence that someone else

committed a crime that bears a highly detailed similarity to the crime with

which a defendant is charged.” Commonwealth v. Patterson, 625 Pa. 104,

131, 91 A.3d 55, 72 (2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1400, 191

L.Ed.2d 373 (2015).

          Criminal defendants are entitled to offer evidence that some
          other person committed a similar crime at or around the
          same time they are alleged to have committed a crime.
          Evidence to establish this fact is admissible after
          consideration of two distinct factors that coalesce to
          establish its relevance and probative value. Those factors:
          are 1) the lapse of time between the commission of the two
          crimes; and 2) the resemblance between the methodologies
          of the two crimes. Thus, even if the time lapse between
          commission of the crimes is brief…, the evidence is not
          admissible unless the nature of the crimes is so distinctive
          or unusual as to be like a signature or the handiwork of the
          same individual.

Commonwealth v. Palagonia, 868 A.2d 1212, 1216 (Pa.Super.2005),

appeal denied, 584 Pa. 675, 880 A.2d 1238 (2005)) (internal citations and

quotation marks omitted). See also Commonwealth v. Gill, ___ Pa. ___,

___, 206 A.3d 459, 468-74 (2019) (Wecht, J., concurring) (referring to

                                      -8-
J-S63010-19


evidence admitted under rubric set forth in Palagonia, supra as “reverse

404(b)” evidence; stating: “‘Reverse 404(b)’ evidence, as it is has been

labeled (or mislabeled) by courts and commentators alike, is evidence of a

crime committed by a third party that is similar to the crime for which the

defendant stands accused, and that a defendant seeks to admit for the

purpose of establishing that the defendant was not the perpetrator of the

charged offense”) (internal footnotes omitted).

      Pennsylvania Rule of Evidence 608 addresses the admissibility of

evidence relating to a witness’ character for truthfulness or untruthfulness as

follows:

           Rule 608. A Witness’s Character for Truthfulness or
           Untruthfulness

                                  *    *    *

           (b) Specific Instances of Conduct. Except as provided
           in Rule 609 (relating to evidence of conviction of crime),

           (1) the character of a witness for truthfulness may not be
           attacked or supported by cross-examination or extrinsic
           evidence concerning specific instances of the witness’
           conduct; …

                                  *    *    *

Pa.R.E. 608(b)(1) (emphasis added).        In other words, “Pa.R.E. 608(b)(1)

prohibits the use of evidence of specific instances of conduct to support or

attack credibility.” Pa.R.E. 608 Comment.

      In Minich, this Court analyzed the intersection and applicability of Rules

of Evidence 404(a)(2), 405, and 608, where a criminal defendant seeks to

                                      -9-
J-S63010-19


introduce character evidence against a victim who offered testimony against

the defendant:

        [W]hile Pa.R.E. 608 addresses only one character trait
        (truthfulness or untruthfulness), and prohibits the use of
        instances of specific conduct to establish the trait, Pa.R.E.
        404(a) applies to evidence regarding any “pertinent”
        character trait and, through the operation of case law
        codified in Pa.R.E. 405, allows evidence of specific conduct
        to prove the “pertinent” trait.

Minich, supra at 1069-70 (internal footnote omitted) (discussing previous

versions of Pa.R.E. 404(a), 405, and 608, provisions of which germane to

current appeal remain largely unchanged).

        [A] “pertinent” character trait for purposes of Pa.R.E.
        404(a)(2)[] is limited to a character trait of the victim that
        is relevant to the crime or defense at issue in the case.
        Therefore, whenever the accused seeks to offer character
        evidence for purposes of attacking or supporting the
        credibility of a victim who testifies, the admissibility of such
        evidence is governed by Pa.R.E. 608 and proof of specific
        incidents of conduct by either cross-examination or extrinsic
        evidence is prohibited. To hold otherwise would allow the
        phrase “pertinent trait of character” in Pa.R.E. 404(a)(2) to
        modify established case law defining the parameters of
        permissible evidence to impeach or bolster the credibility of
        witnesses.

                                  *     *      *

        In the present case, the Commonwealth sought to preclude
        Minich from introducing evidence of specific instances in
        which the victim of a sexual assault was caught lying in
        school about matters wholly unrelated to the allegations
        against Minich. Based upon its broad interpretation of the
        phrase “pertinent trait of character,” the trial court
        concluded that such evidence was admissible under Pa.R.E.
        404(a)(2)[]. In light of our holding, this determination was
        in error. Minich intends to use this evidence to challenge
        the victim's credibility. As such, its admissibility is governed

                                      - 10 -
J-S63010-19


         by Pa.R.E. 608. Capturing Pennsylvania law, Pa.R.E. 608
         provides that “the character of a witness for truthfulness
         may not be attacked...by cross-examination or extrinsic
         evidence concerning specific instances of the witness’
         conduct.” Pa.R.E. 608(b)(1). As this is the precise purpose
         for which Minich intends to use this evidence, it is not
         admissible.

Id. at 1072- 73 (internal citation to record omitted) (holding Pa.R.E. 608, not

Pa.R.E. 404(a)(2), barred admission of school records showing minor victim

had cheated and lied in school, where criminal defendant was on trial for sex

offenses against minor victim who would testify against defendant at trial;

“evidence of specific instances in which the victim of a sexual assault was

caught lying in school about matters wholly unrelated to the allegations

against [the defendant],” did not exhibit “pertinent trait of character” of victim

under Rule 404(a)(2), but went to victim’s character for truthfulness under

Rule 608; therefore, Rule 608, not Rule 404(a)(2), governed admissibility of

victim’s school records and barred their admission into evidence).

      Instantly, Appellant was charged with multiple sex offenses resulting

from his sexual abuse of Victim, his minor daughter, who testified against

Appellant at trial. On cross-examination of Victim, Appellant tried to introduce

records detailing school disciplinary actions against Victim in 2012 and 2013.

Appellant planned to use the school records in his defense that Victim had

fabricated the allegations in retaliation because Appellant had threatened to

transfer Victim to a different school and she did not want to change schools.

The trial court sustained the Commonwealth’s objection to the school records


                                     - 11 -
J-S63010-19


and explained its rationale on the record as follows:

            THE COURT: In regard to [Appellant]’s motion to use the
            [school] log entries 6/12/13 and 11/19/2012 during cross-
            examination     of   [Victim],  I  am    sustaining   the
            Commonwealth’s objection and said log entries will not be
            permitted as far as impeachment of [Victim] during cross-
            examination.

            The holding of [Minich, supra] is directly on point where
            school records were sought to be introduced by way of
            cross-examination of a victim to challenge that victim’s
            credibility. And based upon Minich and analyzing Rule 608
            as well as Rule 404, both of which govern this issue, …, the
            law as the Superior Court has framed it would prevent the
            character of a witness would hold, rather, that the character
            of a witness for truthfulness may not be attacked by cross-
            examination or extrinsic evidence concerning specific
            instances of the witness’ conduct.

            So, that is my ruling in regard to these log entries. …

(N.T. Motion, 5/14/18, at 76-77). Contrary to Appellant’s assertion, the trial

court correctly relied upon Pa.R.E. 608 and Minich. See Goldman, supra;

Minich, supra.        Additionally, Appellant’s characterization of the school

records as “reverse 404(b)” evidence is misplaced.             See Gill, supra;

Palagonia, supra. The school records did not show some third party had

committed sex offenses similar to the offenses charged against Appellant, and

Appellant did not intend to admit the school records to show someone else,

rather than Appellant, had committed the crimes in this case.           See Gill,

supra; Palagonia, supra. Accordingly, Appellant’s second issue merits no

relief.

          Nevertheless, the written sentencing order in this case includes sex


                                       - 12 -
J-S63010-19


offender conditions, lifetime registration, and compliance with “all Tier III

Megan’s Law requirements.” (See Order of Sentence, 9/20/18, at 1.) This

directive is inherently inconsistent, because Megan’s Law has no “tiers” but

does require lifetime registration for Appellant’s conviction for rape. On the

other hand, SORNA has a Tier III lifetime registration with additional

requirements, which are not included in Megan’s Law.             To the extent

Appellant’s registration requirements implicate SORNA, recent case law has

called into question the validity of applying SORNA registration requirements

to offenses committed before the effective date of SORNA (12/20/12). See

Commonwealth v. Wood, 208 A.3d 131, 140 (Pa.Super. 2019) (en banc)

(holding effective date of SORNA controls for purposes of ex post facto

analysis); Commonwealth v. Lippincott, 208 A.3d 143 (Pa.Super. 2019)

(en banc) (stating same). Consequently, we elect to review the legality of

Appellant’s sentence sua sponte. See Commonwealth v. Randal, 837 A.2d

1211 (Pa.Super. 2003) (en banc) (explaining challenges to illegal sentence

may be raised by this Court sua sponte, assuming jurisdiction is proper; illegal

sentence must be vacated).

      Importantly,

         Our Supreme Court declared SORNA unconstitutional, to the
         extent it violates the ex post facto clauses of both the United
         States and Pennsylvania Constitutions. [Commonwealth
         v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied,
         ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018)]. The
         Muniz court determined SORNA’s purpose was punitive in
         effect, despite the General Assembly’s stated civil remedial
         purpose. SORNA also violates the ex post facto clause of

                                     - 13 -
J-S63010-19


         the Pennsylvania Constitution because it places a unique
         burden on the right to reputation and undermines the
         finality of sentences by demanding more severe registration
         requirements. The effective date of SORNA, December 20,
         2012, controls for purposes of an ex post facto analysis.

                                  *     *      *

         Following Muniz…, the Pennsylvania General Assembly
         enacted legislation to amend SORNA. Act 10 amended
         several provisions of SORNA, and also added several new
         sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-
         9799.75. In addition, the Governor of Pennsylvania signed
         new legislation striking the Act 10 amendments and
         reenacting several SORNA provisions, effective June 12,
         2018. Through Act 10, as amended in Act 29, the General
         Assembly created Subchapter I, which addresses sexual
         offenders who committed an offense on or after April 22,
         1996, but before December 20, 2012.          Subchapter I
         contains less stringent reporting requirements than
         Subchapter H, which applies to offenders who committed an
         offense on or after December 20, 2012.

Commonwealth v. Alston, 212 A.3d. 526, 528-29 (Pa.Super. 2019)

(footnotes and some internal citations omitted). If the defendant’s offenses

occurred before and after the effective date of SORNA, then the defendant “is

entitled to the lower reporting requirements of Subchapter I, absent a specific

finding of when the offenses related to the convictions actually occurred.” Id.

at 530 (emphasis added).

      Instantly, Appellant committed the sex offenses at issue between 2008

and 2017, which time frame straddles the effective date of SORNA.         See

Wood, supra. When the jury convicted Appellant of rape, IDSI with a child,

IDSI with a person less than 16 years old, incest, unlawful contact with a

minor, and EWOC, the jury did not find specific dates when Appellant

                                      - 14 -
J-S63010-19


committed the offenses. Without a specific finding from the chosen factfinder

of when the offenses occurred, Appellant is subject to the less stringent

reporting requirements of Subchapter I of SORNA.        See Alston, supra.

Accordingly, we affirm the judgment of sentence in part but vacate only that

portion of the judgment of sentence regarding Appellant’s sex offender

registration and reporting requirements. Thus, we remand the case to the

trial court to impose the Subchapter I registration and reporting requirements

of SORNA and to instruct Appellant on those requirements.

      Judgment of sentence affirmed in part and vacated in part solely as to

the sex offender registration and reporting requirements; case remanded with

instructions. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/20




                                     - 15 -
                                                                             Circulated 01/07/2020 02:59 PM




               IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
     ZG [ l ,'   ! 7 /\,;\ mR�T JUDICIAL DISTRICT OF PENNSYLVANIA
                      ' ; :. 7'-:" .� :
                                        CRIM�NAL TRlAL DIVISION

COMMONWEALTI{ Q'f..:PENNSYLVANIA                            CP-5l-CR-0003991-2017


                       vs.


                                                            3124 EDA 2018


                                            OPINION

SCHULMAN, S.I., J.

          ·f, Lo          ("Appellant") has appealed the Court's judgment of conviction and

sentence. The Court submits the following Opinion in accordance with the requirements of

Pa.R.A.P. 1925, and for the reasons set forth herein, recommends that its judgment be affirmed.

I.     PROCEDURAL HISTORY

       On June 18, 2018, following a jury trial before this Court, Appellant was convicted of

Rape, Involuntary Deviate Sexual Intercourse (IDSI) with a Child, IDSI with a Victim under 16

years of age, Incest, Unlawful Contact with a Minor, and Endangering the Welfare of a Child.

On September 20, 2018, upon consideration of the presentence investigation report and all

relevant facts and circumstances of this case, the Court sentenced Appellant to an aggregate term

of 22 to 44 years' incarceration.

       On September 28, 2018 Appellant filed a post-sentence motion for reconsideration,

which the Court denied on October 2, 2018. On October 22, 2018, Appellant filed a Notice of

Appeal in the Superior Court. On December 20, 2018, following the appointment of new

counsel, the Court ordered Appellant to file a Concise Statement of� rrirs Complained of on
Appeal in accord with Pa.R.A.P. 1925(b). Per counsel's request, the Court extended the deadline

for filing Appellant's Rule l 925(b) Statement until February 28, 2019. Counsel timely filed

Appellant's Rule 1925(b) Statement on February 12, 2019.

II.    FACTUAL HISTORY

       At trial, the Commonwealth first presented the testimony of Philadelphia Police Officer

Edward Heuser. Officer Heuser testified that on March 31, 2017 at approximately 9:50 p.m., he

was on routine patrol when he received a call from Detective Boston asking for assistance in

serving a Special Victims Unit (SVU) warrant.                                : in Philadelphia.

Upon arrival at that location, a female answered the door with two children sitting inside;

Appellant was not present. Following a conversation with the female, Detective Boston called

Appellant, who stated that he was already at the SVU. Officer Heuser and Detective Boston

drove to the SVU, where they encountered Appellant sitting inside a car in the parking lot.

Officer Heuser escorted Appellant into the building to start processing paperwork, during which

Appellant claimed that his name was"      f V,,
                                             o        r.   (See N.T. 06/12/18 at 55-61).

       The Conunonwealth next called the complainant, C.V., to the stand. C.V. testified that

she was currently 15 years old and living in a foster home. Prior to foster care, she was Jiving

with her father (Appellant), stepmother, and brother, who was six years old. C.V. testified that,

starting when she was six years old, her father began touching her private parts over her clothing.

He did this on a frequent basis, "almost every day." Her father's touching escalated when she

was in fifth grade, on a day she came home with "all good grades" on her report card. Appellant

told her that as a reward for her good grades, he had a present for her. When they got home from

school, Appellant went to his bedroom and lay on the bed. C.V. asked him what her present was,

and Appellant responded that "he was the present". Appellant then removed her school uniform


                                                 2
and underwear, and stuck his penis into her vagina. C.V. started yelling and tried to get away,

but Appellant punched her in the side of the face and told her to be quiet, to calm down, and that

"every girl her age goes through this" with their dad. Appellant held her down and continued

penetrating her until he said "white stuff was going to come out". After he finished, Appellant

told her to go to the bathroom to clean herself up because they were going to pick up her

stepmom from work .. C.V. testified that at the time of the attack, she was in shock, confused and

in pain. (See N.T. 06/13/18 at 15-32).

       C.V. testified that throughout fifth grade, her father continued to do this to her at least

two times per week. Also in fifth grade, Appellant began putting his penis in her butt, telling her

that she could not get pregnant if the white stuff went in her butt. That same year, he also began

using his mouth on her vagina -- not over her clothing but directly on her vagina. (See N.T.

06/13/18 at 32-26).

        C.V. testified that Appellant continued to rape her when she was in sixth and seventh

grade. Specifically, in addition to the family residence, Appellant would do it to her in his car

and at job sites -- anywhere her stepmom was not present. He would make excuses to go to the

store for items, take C.V. along and then rape her in the car. On multiple occasions he would

drive her to the rear of a Laundromat, where he would take her in the back of the car and rape

her. C.V. testified that, whereas in fifth and sixth grade Appellant did this twice per week, in

"seventh and eighth grade it happened more often." (See N.T. 06/13/18 at 3 7-45).

        C. V. testified that when she was in sixth grade, she told her close friend,   A}, ') about
what was going on.     N.   advised her to tell an adult, but C.V. was scared to do so because her

father had warned her that if she told anyone, he would get in trouble and she would be sent to a

 stranger's home where she would be treated much worse. She also testified that she feared being


                                                   3
separated from her little brother, with whom she was very close. C.V. testified that she currently

was in a foster home and does not get to see her brother much, which makes her feel badly:

               It makes me feel really bad and makes me feel that it's my fault
               that it happened.

                       *        *       *
               Because if I would have never said anything, I would still be living
               with my brother and I would get to see him. Instead, now I'm in a
               foster home and I don't get to see my brother at all.

(See N.T. 06/13/18 at 45�49).

       C.V. also testified that Appellant would whip her on the back and thighs with his belt if

she tried to resist his advances; when she needed clothes or money for school, he would not

provide it for her unless he violated her first. C.V. testified that she tried telling her stepmother,

who initially confronted her when she saw marks/ hickies on C.V.'s chest:

               She told me why didn't I tell her anything, why was I keeping my
               mouth shut, why didn't I tell her.

                       Q.       What did you say to her?

                       A.     I told her because I was scared and I didn't know
               what to say or do.

                       Q.       Now, after she saw this, did she call the police?

                       A.       No.

                       Q.       Did this stop? Did your dad stop?

                       A.       No.

                       Q.       Did anything change?

                       A.       No.

                      Q.      Did you ever hear whether or not your dad said
               anything else to her about telling or not telling?


                                                   4
                      A.     No. There was a time my step mom told me the
               reasons why she didn't call the police or anything.

                       Q.       What was the reason?

                      A.       She told me she was scared. She felt threatened
               [by] my dad ....

(See N.T. 06/13/18 at 54·55).

       C.V. further testified that when she was in eighth grade, she told her friend,   &6   1   about

what was happening. She told       E. that she thought she was pregnant, she was scared, and that
she got raped. Initially, she told G:- c, that it was her uncle who raped her because she was

scared, did not want her dad to get arrested, and she did not want to be placed in a foster home.

 E. informed her school counselor. Within two to three days, C.V. opened up completely and

revealed that it was her father. The school counselor spoke with C.V. about it and asked her if

she felt endangered going back home, and she said yes. On the same day, March 31, 20 I 7, two

police officers came to the school and escorted her to Philadelphia Children's Alliance (PCA),

where she was interviewed and told them everything that happened. Later that day, C.V. was

placed in foster care where she has remained ever since. As a result, C.V. no longer has any

communications with her father and his family, which was the only family she had. (See N.T.

06/13/18 at 58-69).

       The Commonwealth next presented the testimony of Carolina Castrano. Ms. Castrano

testified that she is a bilingual forensic interview specialist with PCA -· which is a nonprofit

organization that provides a multidisciplinary response to children and teens who may have

experienced abuse. PCA is co-located with the SVU of the Philadelphia Police Department and

Department of Human Services (DHS), the latter being the department that investigates sex



                                                  5
abuse. Ms. Castrano testified that during a forensic interview, she speaks to a child in a room

while the investigative team -- typically a police detective and someone from DRS -- watches in

a room next door via closed circuit television. The interview, which is video recorded, is

designed to be unbiased. Ms. Castrano explained:

               We start our interviews with open-ended questions and then we
               sort of funnel into more focused questions, depending on what
               they're telling us. So, we don't introduce any information to the
               child. If it's something they haven't brought up, we will not talk to
               them about it. They have to be the one to tell us what's going on.

(See N.T. 06/13/18 at 177).

       Ms. Castrano testified that she conducted one such forensic interview with C.V. on

March 31, 2017. The interview was incorporated into the "Team Interview Summary Report"

along with other components, which she described for the jury. The Commonwealth published

the Team Interview Summary Report to, and played the video of the interview fol', the jury. (See

N.T. 06/13/18 at 178-188; Exhibits "C-10" & "C-11").

       Next, the Commonwealth presented the expert testimony of Dr. Marita Lind. Following

voir dire, during which Dr. Lind testified to her education and training -- including her clinical

experience of seeing 350-400 children for child abuse per year (approximately 300 of which are

for sexual abuse) -- the Court accepted Dr. Lind as an expert in child abuse pediatrics. Dr. Lind

testified that she examined C.V. on April 5, 2017. At the start of the examination, she asked

C.V. why she had come in, and C.V. responded "because of her dad." C.V. then provided a

history of sexual contact from her father starting at age six, which advanced to vaginal and anal

penetration with his penis starting in fifth grade and continuing until the last contact two weeks

prior to the exam. C.V. also reported pain from these encounters, contact with seminal fluid,

being struck on her face, and missing her period for two months. Additionally, C.V. reported


                                                 6
painful urination and vaginal discharge, and expressed concern about suffering from a disease

because her stepmother told her that her father had been with prostitutes. C.V. was able to speak

clearly while providing the history, but at times would become fearful and anxious, and her legs

would shake and she would need to pause. A genital exam was postponed until the following

week because C.V. was in the middle of her menstrual period. (See N.T. 06/14/18 at 6-20).

       Dr. Lind testified that on April 13, 2017, C.V. returned to her office for a genital exam.

Dr. Lind did not obtain a DNA sample because the last sexual contact was several weeks out,

and therefore it was not warranted. Upon examination of the vaginal vestibule, she noted that

C.V. 's hymen was annular in configuration, fimbriated and estrogenized. Dr. Lind noted that in

pre-pubertal girls, the external structures including the hymen are not estrogenized. Dr. Lind

explained:

                       When you become pubertal, the hymen tissue, which before
              puberty is very sensitive and thin, becomes thicker and elastic so
              that it allows for things to enter the vagina. And so, when the
              [t]issue becomes thicker and elastic with puberty, the shape that
              was really easy to see prepuberty becomes less to see because the
              hymen, often there's a lot of tissue there and it-· there's folds and
              there's petals and there's many edges.

                         In [C.V.], she had the kind of hymen that was annular so it
               went around the edge of the opening to the vagina. The edge,
               instead of being smooth or petal-shaped, was fimbriated. That's a
               normal kind of hymen. It means there's lots of edges because it's
               like little fingers all overlining each other. When I examined her, I
               wasn't able to trace the whole outline of the hymen because I
               would have had to take a Q-Tip and run up and down each of these
               little fringes, which, technically, would be difficult.

                      *       *       *
                      Q.       Okay. So based on this visualization on your part
               of her internal and external genitalia, do you have an opinion
               within a reasonable degree of medical certainty whether or not



                                                 7
these findings are consistent with an adult male penis penetrating
her vagina?

       A.      So in a puberal person, and, specifically, with her
examination, there wouldn't be any reason why I couldn't have
examined her with a speculum without causing trauma or any
reason an object of that size such as a penis couldn't have entered
her vagina without trauma at this age.

       Q.     Does that mean it's consistent with the history
provided by [C.V.]?

       A.      It's consistent with the history she provided in that
she never described to me that she was having bleeding or required
any kind of medical intervention or surgical repair, yes.

       Q.    I'd like to speak to you a little bit more generally.
Your examination overall, is it fair to say it reveals a lack of
trauma?                                                        ·

       A.      I didn't see any signs of trauma on my exam.

        Q.     I know we talked about the hymen specifically, but,
overall, can you give us some idea why there may be a lack of
trauma in cases of childhood sexual abuse?

       A.       So, most of the time there is no trauma in child
sexual abuse. Physical findings in children who experience sexual
abuse are rare, and most often there are sexually transmitted
diseases. Or if you see a child soon after sexual abuse, you might
see some abrasions or bruising or superficial injuries. But the
blood supply to that area is really good, and so if you examine the
same child that had some abrasions or bruising of the hymen and
you re-check them, that examination is most often normal.

         So the kinds of trauma that you can see that last over time
is the kind of trauma that would be indicative ofreal damage to the
tissue that would then result in healing and scarring, and we don't
see that very often. It's only about once or twice a year that I have
a child that needs to have -- that presents with a kind of bleeding
and acute trauma that we might have to arrange to have some
suturing or surgical repair of.




                                  8
         Q      Is that -- when you see that, is that a case where
there is a smaller amount of time between the abuse and when you
observe this trauma?

        A.      So for the superficial injuries, that is definitely
time-dependent, the bruising or abrasions. If the child has
experienced a true laceration, especially a laceration internally, like
to the vagina or cervix, that isn't going to heal itself easily. The
time isn't as important then.

         *      *       *
         If I see a child immediately after sexual contact, I can often
find shallow abrasions especially around the posterior fourchette,
which is where the opening of the vagina is, and often some
bruising on the hymen. But if I see them 48 or 72 hours later, I
cannot find those findings.

         *      *       *
       Q.      Understood. Doctor, I've handed you a copy of
[Exhibit] C�19 titled, "General Anatomy in Pregnant Adolescents:
'Normal' Does Not Mean Nothing Happened."

         Are you familiar with this study, Dr. Lind?

         A.     lam.

         Q.     Can you tell us in general what is the finding of this
study?

         A.   This is a study that looked at 36 pregnant
adolescents and only two of them bad physical findings of
penetration.

         Q.    And in your personal experience, have you seen
cases that would be similar to this where you have a pregnant
adolescent yet there's still a lack of physical finding of
penetration?

         A.    Unfortunately, yes. I missed a pregnancy once in a
young girl who was 11. There was a really vague complaint or
concern about sexual contact. She denied the sexual contact and I
didn't do a pregnancy test on her because her exam was



                                   9
               completely normal, and she was pregnant. So, yeah, I have seen
               that happen.

                       Q.      So findings such as the examination, what it
               revealed about [C.V.]'s hymen, a hymen such as [C.V.]'s, would
               that be consistent with somebody who was pregnant, could they
               have a hymen in that condition?

                     A.      I'm sure there are many people pregnant who have
               a hymen such as (C.V.]'s. It's a normal, mature genitalia.

                        Q.      And there is, I believe, sort of a commonly held
               belief among the general public that when somebody has sex for
               the first time, loses their virginity, that a hymen is going to tear,
               and there's blood and the hymen is gone; is that correct based on
               true medical evidence?

                       A.      No. The idea of"popping the cherry" or whatever
               other slang or terms there are for taking virginity are really not
               technically correct. People who have first-time sex can have
               bleeding because of trauma to the hymen and then people who
               have first-time sex cannot have bleeding [at all). And --

                       [DEFENSE COUNSEL]:              Cannot have what?

                       THE WITNESS:            Bleeding.

               [ASSISTANT DISTRICT ATTORNEY]:

                      Q.      So it [is] a normal finding that a hymen is not
               supposed to go away, it will remain with you despite what your
               sexual history may be?

                       A.     Yeah. I think that over time, especially after
               delivering babies, the hymen gets thinner. And the hymen, as it
               experiences trauma, may change or become less, but having sexual
               intercourse does not make your hymen fall off. People don't
               generally pick up their hymen after they have sexual intercourse.
               They sometimes have bleeding they need to wipe up.

(SeeN.T. 06/14/18 at 21-34).

       The Commonwealth next called _5oY Gj,               ··: to the stand. · ·   _5:·<St. · · testified
that she is the principal ofC.V.'s school.                                         As principal,'


                                                  10
 .s·o _G\.   .is a "mandated reporter" in cases of suspected abuse. If she is made aware of a

concern, she normally goes to the school counselor to discuss the concern. In March 2017, a

parent of one of C.V. 's classmates contacted her with regard to C.V. not feeling safe at home.

   j,_@,         . discussed the matter with the school counselor,'. 'J; t41\<;.C.,. . ,, and after speaking

with C.V., they reported the suspected sexual abuse to PCA. __ -5 .� ..              noted that C.V.

initially indicated that she was being sexually abused by "someone her stepmother was seeing,"

but she subsequently clarified that it was her father. (See N.T. 06/15/18 at 6-13).

         Next, the Commonwealth presented the testimony of.            1, McL.          . ;r.· N\ct.
testified that in March 2017, she was employed as a school counselor at            C,, V,   s
                                     During that month, : .     .s. : � ,        apprised her of some

                          __ ! _M.c.C • :' met Wl'th C .V . to get the gist
concerns w1'th C . V . .. .::;:                                         · o f the concern,
                                                                                       · and C .V . was

"very upset and afraid" because "she didn't want to be taken away from the brother ... [and)

afraid of, I think, her family's status within the United States in terms of citizenship." C.V.

initially reported through her friend,      €, ,ihat it was her uncle, but within a day or two C.V.
reported in person that it was her father who raped her, and she was very upset about it. - ·

.:j", ff\c,C, provided the above information to Detective Boston of the Philadelphia Police

Department. (See N.T. 06/15/18 at 20-29).

         Finally, the Commonwealth called Jazmine Torres Valentin to the stand. Ms. Valentin

testified that she is a social worker with Philadelphia DHS, and was involved in C.V. 's case in

March and April 2017. Ms. Valentin testified that the initial report she received was for

"inappropriate discipline", but that report changed to sexual abuse, which was customary in such

cases as more information is gathered from the child. In this case, C.V. reported that her father

"has been raping her continuously over the last three years." Ms. Valentin noted that even after


                                                       11
the initial report came in, C.V. reported that Appellant "came back home and tried to violate

her." After conducting further investigation, including the PCA interview, DHS sought and

obtained an order for protective custody to remove C.V. from the home to ensure her safety. Ms.

Valentin noted that C.V. 's brother also was removed from the home. In that regard, after

interviewing Appellant, Ms. Valentin recorded the following impression: "Father does not

appear to show empathy that [C.V.J is in DHS custody and appears to be only concerned with the

fact that [his son] is in DHS custody." (See N.T. 06/15/18 at 45-59).

          For his case-in-chief, Appellant first called his longtime partner (C.V.'s "stepmom"],
 �
      0   L�    ., to the stand. ·   G,, l-»   testified that she has been living with Appe11ant for 13

years; she shares a son with Appellant, and Appellant' s daughter, C.V., has resided in the home

during that time period as well. � ,           L.o   testified that Appellant worked seven days per week

from 6:30 or 7:00 a.m. until 7:00 p.m., and never came home in between. �, L.i . took the

children to and from school each day except for Wednesdays, which is the one day she worked.

On Wednesdays, one of her sisters would transport C.V. and her brother to/ from school.            G,, L�
          testified that at no point did she ever see any inappropriate contact between Appellant and

C.V., only a father-daughter relationship. According to �, L� , Appellant never took C.V. to

houses that he was working on, although he did take the whole family to job sites from time to

time. Additionally,       �e    L., testified that prior to DHS taking her son and C.V. away,
Appellant took C. V., s cell phone away for getting in trouble at school for calling her boyfriend 's

            house and telling his mother that she wanted to live there. According to         bJ , L ..
C.V. "lies a lot" and previously accused her, � e L, ·, of hitting C.V. in the stomach and head,

but the school saw ho proof of that and C.V. was never taken away from the home for that. Nor

did   c;, Le      ever see Appellant hit C.V.; rather, C.V. suffers from eczema, which would


                                                         12
account for any bruising on her body.              Ch. L,,     further testified that immediately prior to

DHS' involvement, C.V. had been grounded by her father because.                   G,r   Le, found an

electronic cigarette in her room. Finally,           c�   t   L' testified that if c.v. had ever complained to
her about any kind of inappropriate contact from Appellant, she would have called the police, but

C.V. never did so. (See N.T. 06/15/18 at 101-126).

        On cross-examination, .      Q., . f.._,     admitted that she suspected Appellant of cheating on

her, so she planted an audio recorder in his car. Those recordings not only captured Appellant

talking to other women in the car, but also talking to C.V. alone on numerous instances in the

car. On one of these occasions -- which,             G,, L� testified on direct never, ever occurred --
Appellant can be heard stating to C.V., "I want to get some of that." � N.T. 06/15/18 at 126-

150).

        Finally, Appellant took the stand in his own defense. His testimony largely mirrored that

of his partner,   Gi   l   L "' More particularly, Appellant testified that he worked all day long,
every day, and was never home in the middle of the day. He testified that during the time period

in question, he was his own boss and could show up at work any time he liked, but he did not

take C.V. to school (which started at 7:30); instead, either �, L" , one of her sisters, or a

family friend              would take C.V. to school. Appellant also testified that he never put his

hands on C.V. -- he never hit her, touched her inappropriately, or had sexual intercourse with

her. On the contrary, Appellant testified that he had a healthy father-daughter relationship with

C.V., and he was at a total loss as to why she would make up these allegations. As he put it,

"That's a question that really she's the one that would have the best answer for that." Appellant

asserted that prior to his arrest in this case, C.V. was getting in trouble at school and apparently

talking to a boy (whom he knew nothing about). Appellant testified that C.V. contrived these


                                                              13
grave allegations because she was a teenager and wanted freedom to hang outside with her

girlfriends but he would not let her. (See N.T. 06/15/18 at 154-183).

       Upon consideration of all the foregoing evidence, the jury found Appellant guilty of

Rape, IDSI with a Child, IDSI with a Victim under 16 years of age, Incest, Unlawful Contact

with a Minor, and Endangering the Welfare of a Child. Following a comprehensive pre-

sentence investigation, the Court imposed sentence as previously set forth.

Ill.   ISSUES ON APPEAL

       Appellant sets forth the following issue in his Rule 1925(b) Statement:

               1.     This Honorable Cami erred and unfairly prejudiced [Appellant]
                      when the Court denied [Appellant's] Motion in Limine in regards
                      to the testimony of the Commonwealth's expert witness, Dr.
                      Marita Lind. According to Trial Counsel's Motion for
                      Reconsideration, eight days before the jury trial in the above-
                      captioned matter, the Commonwealth alerted Trial Counsel about
                      the expert witness at trial. The Commonwealth's untimely
                      disclosure violated Rule 573. Pretrial Discovery and Inspection.
                      See Pa.R.Crim.P. 573. The Court erred in failing to grant a
                      continuance such that the Defense would have the opportunity to
                      engage its own expert, See Commonwealth v. Belani, 101 A.3d
                       1156 (Pa. Super. 2014).

               2.     This Honorable Court erred and unfairly prejudiced [Appellant]
                      when the Cami precluded Trial Counsel from questioning the
                      complaining witness about several instances, which, according to
                      the theory of the Defense, created a motive for the complainant to
                      fabricate her story. See Notes of Testimony, 06/13/2018 at 75-82.
                      Pursuant to Rule 404(b)(2), the Defense sought to question the
                      complaining witness about the several instances in order to show
                      the complaining witness's bias and motivation to fabricate. See
                      Pa.R.E. 404(b). Commonwealth v. Minich, which the
                      Commonwealth cited, is distinguishable. See Commonwealth v.
                      Minich, 4 A.3d 1063 (Pa. Super. 2010). The issue in that case was
                      proper inquiry into character evidence, not evidence of other acts
                      (a.k.a, "reverse 404(bf). Id.; see also Pa.R.E. 404(b).

               3.      This Honorable Court erred and unfairly prejudiced [Appellant]
                       when the Court denied [Appellant's] Post-Sentence Motion,


                                                 14
                       because the verdict was against the weight of the evidence to prove
                       the charges of: [Rape, IDS! with a Child, IDS! with a Victim
                       under 16 years of age, Incest, Unlawful Contact with a Minor, and
                       Endangering the Welfare of a Child]. The Court should have
                       ordered a new trial because the "verdict [was] so contrary to the
                       evidence as to shock one's sense of justice and the award of a new
                       trial [was] imperative so that right may be given another
                       opportunity to prevail." Commonwealth v. Brown, 648 A.2d 1177,
                       1189 (Pa. 1994). The complaining witness's equivocal and
                       contradictory testimony, which was not supported by independent
                       evidence, rendered the testimony neither credible nor reliable.

               4.      This Honorable Court erred and committed an abuse of discretion
                       when the Court imposed an aggregate sentence of "22 to 44 years
                       confinement." The Court did not weigh the general standards
                       applicable to sentencing found in Section 9721, i.e., the protection
                       of the public; the gravity of the offense in relation to the impact on
                       the victim and the community; and the rehabilitative needs of the
                       defendant. See 42 Pa.CS.[§] 972l(b). Moreover, [Appellant]'s
                       sentence is unreasonable under the standards supplied by 42
                       Pa.C.S. [§] 9781(d). See 42 Pa.CS[§] 978l(d).

(Appellant's Rule 1925(b) Statement, fl 1-4).

IV.    DISCUSSION

       1.      Motion /11, Limine to Preclude the Testimony of Dr. Marita Lind

       Appellant contends that the Court erred by denying his Motion In Limine to Preclude the

expert testimony of Dr. Lind. While it is certainly true that Appellant filed a Motion In Limine to

preclude Dr. Lind's testimony, in said Motion he only challenged the substance of Dr. Lind's

testimony, not the timing of it. In contrast, he now contends for the first time that Dr. Lind's

report was untimely and that "[tjhe Court erred in failing to grant a continuance such that the

Defense would have the opportunity to engage its own expert." The fatal problem with

Appellant's claim of course is that he never requested the relief he now contends the Court

erroneously failed to confer.




                                                  15
         In that regard, it is well settled that in order for an issue to be preserved for appeal, it

must first be presented to the trial court. See Commonwealth v. Baez, 169 A.3d 35, 41 (Pa.

Super. 2017) (citing Commonwealth v. Wanner, 158 A.3d 714, 717 (Pa. Super. 2017) (defendant

waived position that there was an affirmative defense to crime "by failing to rise it before the

trial"); Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.")). "This requirement bars an appellant from raising a new and

different theory of relief for the first time on appeal." Wanner, 158 A.3d at 717 (citation and

quotation marks omitted). As such, Appellant's claim is unavailing.

         2.      Evidentiary Rulings on Prior Bad Acts and Motive to Fabricate

         Appellant next claims that the Court erred by precluding him from questioning C.V.

"about several instances, which, according to the theory of the Defense, created a motive for

[C.V.] to fabricate her story." (Appellant's Rule 1925(b) Statement, ,r 2). This claim is without

merit.

         Preliminarily, it must be observed that the "[ajdmission of evidence is a matter within the

sound discretion of the trial court, and will not be reversed absent a showing that the trial court

clearly abused its discretion." See Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009)

(citation omitted). "Not merely an error in judgment, an abuse of discretion occurs 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 on record." Id.

         Here, Appellant's claim -- that the Court denied him the opportunity to delve into C.V. 's

motive to fabricate -- is wholly refuted by the record. At trial, Appellant sought to introduce

various prior acts of C.V. as evidence of her motive to fabricate. The Court expressly considered

each proposed prior act, and issued its ruling with respect to same on the record. More


                                                     16
specifically, Appellant sought to introduce C.V.'s school records and general log entries dating

as far back to 2012 for impeaching C.V. 's credibility for truthfulness and honesty. The Court

declined to admit those records as they dated too far back and were too tenuous to establish a

motive to fabricate allegations five years later. (See N. T. 06/13/18 at 72�77). The Court did,

however, permit Appellant to introduce various other instances that were close enough in time to

go to motive to fabricate, including: C.V.'s phone call to her boyfriend's mother and the

repercussions for same (having her phone taken away and Appellant threatening to send her to a

private school) (see N.T. 06/13/18 at 77-79); C.V. trying to sneak out of the house to see her

boyfriend and the resultant discipline for same (see N.T. 06/13/18 at 81 ); testimony regarding an

electronic cigarette in C.V. 's room resulting in punishment two to three days before the

allegations came out (see N.T. 06/13/18 at 81-82). Thus, as reflected by the record and contrary

to Appellant's contention, the Court did not deprive him of the opportunity to delve into C.V. 's

motive to fabricate. As such, this claim fails.

       3.      Weight of the Evidence Supporting the Jury's Verdict

       Next, Appellant claims that he is entitled to a new trial on the basis that the jury's verdict

was against the weight of the evidence. For the reasons that follows, this claim fails.

       A challenge to the weight of the evidence is addressed to the discretion of the trial court.

Commonwealth v. Upshur, 764 A.2d 69, 72 (Pa. Super. 2000). It is within the exclusive

province of the trier of fact to assess issues of credibility and accord weight to testimony. See

Commonwealth v. Pirela, 580 A.2d 848, 852 (Pa. Super. 1990). The trial court, sitting as fact

finder, is free to accept all, part, or none of a witness's testimony. Id. A new trial should not be

granted due to a mere conflict in testimony. Commonwealth v. Widmer, 744 A.2d 745, 752.(Pa.

2000). "Additionally, the evidence at trial need not preclude every possibility of innocence, and


                                                  17
the fact-finder is free to resolve any doubts regarding a defendant's guilt unless the evidence is

so weak and inconclusive that as a matter of law no probability of fact may be drawn from the

combined circumstances." Commonwealth v. Patterson, 940 A.2d 493, 500 (Pa. Super. 2007).

"Stated another way, a court may award a new trial because the verdict is against the weight of

the evidence only when the verdict rendered 'is so contrary to the evidence as to shock one's

sense of justice and the award of a new trial is imperative so that right may be given another

opportunity to prevail."? Upshur at 720



       Instantly, having presided over Appellant's jury trial, the Court is confident that the

jury's verdict of guilty was soundly supported by the weight of the evidence. Nonetheless,

Appellant's contention -- that the verdict was "so contrary to the evidence" because C.V.'s

testimony allegedly was "equivocal and contradictory" -- is unavailing. The only "conflict" in

this case stemmed from the fact that Appellant is the biological father of C. V., who as a young

teenager did not want to see her family disintegrate, especially with regard to her six-year-old

brother. In fact, C. V. 's testimony was explicit in this regard. Indeed, it was entirely

understandable for C.V. to take "baby steps" in first reporting the perpetrator as "someone her

stepmom was seeing" before clarifying, once she felt safe, that the perpetrator was her father.

The jury plainly credited C.V.'s candid testimony, and accordingly, there exists no basis for

disturbing its sound verdict.




                                                   18
       4.      Discretionary Aspects of Sentence

       Finally, Appellant claims that the Court abused its discretion by failing to weigh the

pertinent statutory considerations prior to imposing sentence. This claim is refuted by the record.

       It is well settled that sentencing is a matter vested in the discretion of the sentencing court

and will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v.

Gribble, 703 A.2d 426, 43 7. (Pa. 1997). "In this context, an abuse of discretion is not shown

merely by an error in judgment. Rather, the appellant must establish, by reference to the record,

that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of

partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision."

Commonwealth y. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en bane) (citations and internal

quotations omitted).

               When imposing a sentence, the sentencing court must consider the
               factors set out in 42 Pa.C.S. § 9721(b), that is, the protection of the
               public, gravity of offense in relation to impact on victim and
               community, and rehabilitative needs of defendant, and it must
               impose an individualized sentence. The sentence should be based
               on the minimum confinement consistent with the gravity of the
               offense, the need for public protection, and the defendant's needs
               for rehabilitation.

Commonwealth v.Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (citation omitted).

       A reviewing couit must accord great weight to the sentencing court's discretion because

it is in the best position to view a defendant's character, exhibition of remorse, indifference, and

the general nature of the crime. See Commonwealth v. Sierra, 752 A.2d 910, 915 (Pa. Super.

2000); Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en bane).

               Simply stated, the sentencing court sentences flesh-and-blood
               defendants and the nuances of sentencing decisions are difficult to
               gauge from the cold transcript used upon appellate review.
               Moreover, the sentencing court enjoys an institutional advantage to


                                                   19
               appellate review, bringing to its decisions an expertise, experience,
               and judgment that should not be lightly disturbed. Even with the
               advent of the sentencing guidelines, Cl the power of sentencing is a
               function to be performed by the sentencing court. Thus, rather
               than cabin the exercise of a sentencing court's discretion, the
               guidelines merely inform the sentencing decision.

Commonwealth v. Walls, 926 A.2d 957, 961-962 (Pa. 2007) (citations and internal footnote

omitted).

       Here, the record demonstrates that the Court carefully considered all relevant facts and

circumstances, and thoroughly explained its rationale prior to imposing sentence. Specifically,

in addition to Appellant's presentence investigation report and the sentencing guidelines, the

Court considered: the nature of the offenses and the prolonged period of abuse starting when the

C.V. was six years old (see N.T. 09/20/18 at 7); Appellant's prior history -- including the fact

that he impregnated C.V. 's biological mother when she was 12 years old, and he was arrested for

same and deported (see N.T. 09/20/18 at 7-8); Appellant's complete lack of remorse (see N.T.

09/20/18 at 8-9); the profound impact on the victim, his biological daughter (see N.T. 09/20/18 at

10-14); the fact that the Sexual Offender Assessment Board found that Appellant meets the

criteria as a Sexually Violent Predator and the danger he poses to the community (see N.T.

09/20/18 at 14); Appellant's age and higher risk of recidivism (see N.T. 09/20/18 at 15); and the

severity of the crime (see N.T. 09/20/18 at 16), among other things. (See N.T. 09/20/18 at 3A2.)

       Thus, the record demonstrates that the Court duly considered all relevant factors and

circumstances prior to imposing a sentence tailored to this particular defendant. As such,

Appellant is due no relief.




                                                 20
V.       CONCLUSION

         Based on the reasons set forth in the foregoing Opinion, this Court's judgment of

sentence should be affirmed.




DATE:___.�
         ........l-=---'-
                      4 (-'--
                          / _ f'
                                                  ;;eR�
                                                      SUSAN I. SCHULMAN, J.
                                                                                             ..




                                                 21
