J-S22028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    ROSE LIMULI

                             Appellant               No. 2099 EDA 2017


          Appeal from the Judgment of Sentence Entered June 5, 2017
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0004644-2016


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JULY 09, 2018

        Appellant Rose Limuli appeals from the June 5, 2017 judgment of

sentence entered in the Court of Common Pleas of Montgomery County (“trial

court”), following her jury convictions on two counts of institutional sexual

assault, 18 Pa.C.S.A. § 3124.2(a.2)(1). Upon review, we affirm.

        The facts and procedural history of this case are undisputed.      As

recounted by the trial court:

               On April 18 2016, the Upper Dublin police department took
        a statement from a male student who was at the time a senior
        attending the school. The victim recounted having a sexual
        relationship with [Appellant], an English teacher in the Upper
        Dublin School District in exchange for benefits such as food,
        money, and presents. The victim stated that starting in November
        or December of 2015, Appellant would give the victim rides home
        from school and in doing so, stop at local, isolated places and
        perform oral sex on the victim. The victim reported that these
        acts occurred semi-regularly, and that he received oral sex from
        Appellant on at least ten occasions between November 2015 and
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*   Retired Senior Judge assigned to the Superior Court.
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     March 2016. According to the victim, Appellant also went to the
     victim’s house and engaged in sexual intercourse on one occasion.
     In return for his participation and discretion, the victim received
     gifts such as sneakers, clothing, cash, and a dirt bike. Appellant
     was charged with 12 counts of Institutional Sexual Assault (11
     count indecent contact, one count of deviate sexual intercourse).

           On September 23, 2016, Appellant filed a Petition for Writ
     of Habeas Corpus on the grounds that no evidence existed to
     establish a prima facie case against Appellant. The Honorable
     Thomas P. Rogers presided over Appellant’s habeas corpus
     hearing, during which time the victim testified to the multiple
     occasions on which Appellant performed oral sex on the victim,
     one occasion on which Appellant grabbed victim’s groin area, and
     one occasion on which Appellant and victim engaged in sexual
     intercourse. Pursuant to this hearing, Judge Rogers denied
     Appellant’s petition for writ of habeas corpus.
           On February 21, 2017, the undersigned presided over
     Appellant’s three day trial.      After hearing from both the
     Commonwealth and the defense, the jury found Appellant guilty
     of two counts of Institutional Sexual Assault (one count deviate
     sexual intercourse and one count indecent contact). Appellant
     deferred sentencing following a pre-sentence investigation report
     and a sexually violent predator assessment.

            Prior to sentencing, the undersigned received and reviewed
     a sexual offender assessment report, a psychosexual evaluation
     report, and pre-sentence investigation report. Defense counsel
     provided a memorandum in aid of sentencing which included
     eleven statements of character.         At Appellant’s sentencing
     hearing, Appellant’s brother and three of Appellant’s friends
     [testified] on her behalf. All four individuals testified as to her
     giving nature and close relationship with her son, for whom she
     cares. Additionally, Appellant allocuted and emphasized her
     regret for putting her family through any pain and suffering, and
     requested the court allow her [to] remain at home and tend to her
     son. The undersigned sentenced Appellant to 2-12 months of
     incarceration on both charges to run concurrently, followed by 3
     years’ probation to run concurrently with parole. Appellant was
     also ordered to have no contact of any kind with the victim or the
     victim’s family.

Trial Court Opinion, 8/23/17, at 1-3 (footnotes omitted) (citations omitted).

On June 15, 2017, Appellant filed a post-sentence motion, challenging the

discretionary aspects of her sentence and the weight of the evidence. On June

23, 2017, the trial court denied Appellant’s post-sentence motion. Appellant



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timely appealed to this Court.         The trial court directed Appellant to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant,

complied, raising several assertions of error.         In response, the trial court

issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant was not entitled

to relief.

          On appeal, Appellant raises four issues for our review:

     I.      Did the trial court err in sentencing Appellant to a sentence that
             included a term of incarceration when Appellant is the primary
             caretaker for a young child and had no prior convictions and
             when the commonwealth acknowledged that, if Appellant had
             pled guilty, her sentence would have been probationary?

    II.      Did the trial court err in failing to initially dismiss the charges
             under petition for habeas corpus since no evidence was
             presented at that hearing that specified a date of the incidents
             and, even within the limited scope of that habeas corpus
             hearing, the victim demonstrated his complete inability to tell
             the truth and that witness was the sole witness at the hearing?

   III.      Did the trial court err in failing to grant Appellant’s post-
             sentence motion as to the Commonwealth’s failure to
             specifically delineate dates upon which crimes occurred in the
             bills of information?

   IV.       Was the evidence presented at trial of sufficient weight and
             credibility that would support a conviction of [Appellant] in that
             no expert testified as to the manner by which phone logs were
             created or what the proper time coding should have been for
             various call or chat logs and the only other evidence presented
             was that of the less than credible adult victim?

Appellant’s Brief at 5-6 (unnecessary capitalizations omitted).

          We address Appellant’s claims seriatim. Appellant first argues that the

trial court abused its discretion in imposing upon her a mitigated sentence of

imprisonment when she had no prior convictions and was the primary

caretaker for her young child.             Appellant’s claim implicates only the

discretionary aspects of his sentence. In this regard, we note that it is well-

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settled that “[t]he right to appeal a discretionary aspect of sentence is not

absolute.”   Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.

2011). Rather, where an appellant challenges the discretionary aspects of a

sentence, the appeal should be considered as a petition for allowance of

appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).

As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

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

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a

case-by-case basis.   See Commonwealth v. Kenner, 784 A.2d 808, 811

(Pa. Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

     Here, Appellant has satisfied the first three requirements of the

four-part Moury test. Appellant filed a timely appeal to this Court, preserved

the issue on appeal through her post-sentence motions, and included a




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Pa.R.A.P. 2119(f) statement in her brief.1 We, therefore, must determine only

if Appellant’s sentencing issues raise a substantial question.

       An appellant must raise “a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code” in order to

challenge the discretionary aspects of sentencing.         Commonwealth v.

Swope, 123 A.3d 333, 338 (Pa. Super. 2015).          In the matter sub judice,

Appellant claims that the trial court did not consider the mitigating

circumstances in this case.

       The determination of what constitutes a substantial question must
       be evaluated on a case-by-case basis. A substantial question
       exists only when the appellant advances a colorable argument
       that the sentencing judge’s actions were either: (1) inconsistent
       with a specific provision of the Sentencing Code; or (2) contrary
       to the fundamental norms which underlie the sentencing process.

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting

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

we have “held on numerous occasions that a claim of inadequate consideration

of mitigating factors does not raise a substantial question for our review.” Id.

at 903 (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super.

2010)). Thus, Appellant’s claim does not raise a substantial question for our

review. Accordingly, the claim fails.



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1 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his 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).

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      We now turn our attention to Appellant’s second issue that the trial court

erred in dismissing her habeas corpus petition wherein she argued that the

Commonwealth failed to establish a prima facie case. It is well settled that

when, at trial, the Commonwealth proves the offense beyond a reasonable

doubt, any pretrial defects regarding the sufficiency of the evidence is

considered harmless. Commonwealth v. Ricker, 120 A.3d 349, 353 (Pa.

Super. 2015).     Thus, because Appellant was convicted, she cannot now

challenge the trial court’s pretrial denial of her habeas petition alleging that

the Commonwealth had failed to present a prima facie case.                    See

Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995) (noting when a case

goes to trial and results in a guilty verdict, any claim that the Commonwealth

failed to establish a prima facie case is moot).

      We next address Appellant’s contention that the trial court erred in

failing to grant her post-sentence motion as to the Commonwealth’s failure to

specifically delineate dates upon which crimes occurred in the bill of

information.    Appellant’s Brief at 24.     Specifically, Appellant argues that

“[t]here are twelve allegations of criminality set forth in the bills, all of which

are identical and which took place ‘between Tuesday, the 1st day of December

2015 and Thursday, the 31st day of March 2016.’” Id. In essence, Appellant




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argues that the Commonwealth should have, but failed to, specify in the bill

of information the exact dates when the crimes at issue occurred.2

       Preliminarily, we note that Appellant has failed to preserve this issue for

our review because, based on our review of the record, she did not seek to

quash or object to any alleged deficiencies in the bill of information either prior

to or during trial. See Commonwealth v. Martin, 694 A.2d 343, 344 (Pa.

Super. 1997) (“A request to quash an information must be made in an

omnibus pretrial motion for relief or it is considered waived.”) (citation

omitted).    Even if this issue were preserved, Appellant still would not be

entitled to relief.

       Pennsylvania Rules of Criminal Procedure 560 provides in pertinent part:

       (B) The information shall be signed by the attorney for the
       Commonwealth and shall be valid and sufficient in law if it
       contains:

        ....

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2  To the extent Appellant challenges the jury instructions with respect to
specific dates, the trial court’s failure to poll the jury, and the admission at
trial of snapchat logs and text messages, such challenges, based on our review
of the trial transcripts, are waived because Appellant failed to preserve them
in the trial court. See Moury, 992 A.2d at 178 (“A specific and timely
objection must be made to preserve a challenge to a particular jury
instruction.”); see Commonwealth v. Pacini, 307 A.2d 346, 347 (Pa. Super.
1973) (noting that Appellant must exercise timely his right to poll the jury);
Pa.R.Crim.P. 648(G) (“Before a verdict, whether oral or sealed, is recorded,
the jury shall be polled at the request of any party.”); see Commonwealth
v. Radecki, 180 A.3d 441, 455 (noting that to preserve issue for appellate
purposes, party must make timely and specific objection to ensure trial court
has opportunity to correct alleged error); Pa.R.E. 103(a) (providing that an
“[e]rror may not be predicated upon a ruling that admits or excludes evidence
unless . . . a timely objection . . . appears of record.”).

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        (3) the date when the offense is alleged to have been committed
        if the precise date is known, and the day of the week if it is an
        essential element of the offense charged, provided that if the
        precise date is not known or if the offense is a continuing one,
        an allegation that it was committed on or about any date
        within the period fixed by the statute of limitations shall be
        sufficient[.]

Pa.R.Crim.P. 560(b)(3) (emphasis added). In Commonwealth v. Einhorn,

911 A.2d 960 (Pa. Super. 2006), appeal denied, 920 A.2d 831 (Pa. 2007)

we held that exact date of an offense is unnecessary to provide sufficient

notice, where the date is not an essential element of the offense. Einhorn,

911 A.2d at 978.

        Here, it is uncontested that the dates are not an element of institutional

sexual assault. See 18 Pa.C.S.A. § 3124.2(a.2)(1). (2). It also is uncontested

that “Appellant and the victim had multiple interactions with each other,

sexual and other, over a period of several months” sufficient to constitute a

continuing offense under Rule 560(b)(3). See Trial Court Opinion, 8/23/17,

at 7.    Furthermore, it is uncontested that the Commonwealth brought this

action within the applicable statute of limitation, which is two years. See 42

Pa.C.S.A. § 5552(a). As a result, based on Rule 560(b)(3) and consistent with

Einhorn, we agree with the trial court’s conclusion that the bill of information

was not defective. Accordingly, Appellant’s third issue fails.




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       Lastly, Appellant argues that the verdict was against the weight of the

evidence.3 As this Court has explained:

       On this issue, our role is not to consider the underlying question
       of whether the verdict was against the weight of the evidence.
       Rather, we are to decide if the trial court palpably abused its
       discretion when ruling on the weight claim. When doing so, we
       keep in mind that the initial determination regarding the weight
       of the evidence was for the factfinder. The factfinder was free to
       believe all, some or none of the evidence. Additionally, a court
       must not reverse a verdict based on a weight claim unless that
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3  To the extent Appellant challenges the sufficiency of the evidence with
respect to her convictions for institutional sexual assault, such claim is not
preserved for review. Appellant’s statement of questions involved is devoid
of a sufficiency-of-the-evidence claim. See Pa.R.A.P. 2116(a) (“No question
will be considered unless it is stated in the statement of questions involved or
is fairly suggested thereby.”). Even if Appellant’s Rule 2116 contained a
sufficiency claim, we would not be able to review it because she failed to
specify in her Rule 1925(b) statement the element or elements upon which
the evidence was insufficient. See Commonwealth v. Garang, 9 A.3d 237,
246 (Pa. Super. 2010) (“[W]hen challenging the sufficiency of the evidence
on appeal, the Appellant’s 1925 statement must specify the element or
elements upon which the evidence was insufficient in order to preserve the
issue for appeal.”) (quotations and citation omitted). Finally, even if Appellant
had preserved her sufficiency claim for our review, we still would be unable to
review it because Appellant failed to specify in her argument section the
element or elements of the crime upon which the evidence is insufficient.
Rather, Appellant appears to challenge the trial court’s evidentiary rulings and
its credibility determinations. Challenges to credibility go to the weight of the
evidence, not the sufficiency of the evidence. See Commonwealth v.
W.H.M., Jr., 932 A.2d 155, 160 (Pa. Super. 2007) (claim that jury should
have believed appellant’s version of event rather than that of victim goes to
weight, not sufficiency of evidence); Commonwealth v. Wilson, 825 A.2d
710, 713–14 (Pa. Super. 2003) (review of sufficiency of evidence does not
include assessment of credibility of testimony; such claim goes to weight of
evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super.
1997) (credibility determinations are made by finder of fact and challenges to
those determinations go to weight, not sufficiency of evidence). Accordingly,
even if it had been properly preserved, Appellant’s sufficiency claim would lack
merit.



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       verdict was so contrary to the evidence as to shock one’s sense of
       justice.

Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007)

(internal citations omitted), appeal denied, 954 A.2d 575 (Pa. 2008). “[A]

trial court’s denial of a post-sentence motion ‘based on a weight of the

evidence claim is the least assailable of its rulings.’”        Commonwealth v.

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

Diggs, 949 A.2d 873, 880 (Pa. 2008)).

       In support of her weight of the evidence claim, Appellant looks to the

inconsistent and incredible testimony of the victim.4 Appellant’s Brief at 29.

It is within the province of the jury to make credibility determinations and this

Court will not reweigh credibility determinations on appeal. “Conflicts in the

evidence and contradictions in the testimony of any witnesses are for the fact

finder to resolve.”      Sanders, 42 A.3d at 331 (citing Commonwealth v.

Tharp, 830 A.2d 519, 528 (Pa. 2003)).              “A jury decision to credit certain

evidence and reject other testimony is appropriate; therefore, the trial court

did not abuse its discretion in concluding that its sense of justice was not

shocked by the verdict.” Id. Based upon our review, we find no abuse of


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4 Appellant did not challenge in the trial court the lack of expert testimony
regarding the preparation of text message logs. Thus, insofar as she seeks to
do so for the first time on appeal, we decline to entertain it. See 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.”). Even if this claim was preserved, Appellant still
would not obtain relief because her expert witness argument, spanning barely
five lines, is devoid of any meaningful analysis or citation to any legal authority
in violation of Pa.R.A.P. 2119(a)-(b).

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discretion on the part of the trial court for concluding its sense of justice was

not shocked by the verdict. Appellant’s final issue, therefore, fails.

      In sum, we conclude that Appellant’s issues either are not preserved or

lack merit.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/18




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