J-S53009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

ANTOINE JAMES MABLE,

                           Appellant                  No. 3211 EDA 2016


        Appeal from the Judgment of Sentence Entered May 23, 2016
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0000723-2015


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 01, 2018

      Appellant, Antoine James Mable, appeals from the judgment of sentence

of an aggregate term of 30-60 months’ incarceration, imposed following his

conviction for promoting prostitution, conspiracy to promote prostitution, and

transporting a prostitute. After careful review, we affirm on the basis set forth

in the trial court’s opinion.

      The trial court set forth a summary of the facts adduced at trial in its

Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion (TCO), 12/19/17, at 11-

13. Briefly, the Commonwealth’s evidence demonstrated that Appellant and

his codefendant coaxed the victim to travel from Scranton to Monroe County,

promising her protection in exchange for a share of her earnings as a

prostitute.   The codefendant then transported the victim from Scranton to

Monroe County, picking up Appellant along the way. When the trio arrived at
J-S53009-17



a trailer home in Monroe County, the victim began to express reservations

about the arrangement. In response, Appellant and the codefendant abused

the victim, and detained her against her will overnight.    The Commonwealth

presented expert testimony that Appellant and his codefendant were members

of a gang known for engaging in human trafficking for the purposes of

prostitution.

      The Commonwealth charged Appellant with rape, 18 Pa.C.S. § 3121;

conspiracy (promoting prostitution), 18 Pa.C.S. § 903; involuntary deviate

sexual intercourse, 18 Pa.C.S. § 3121; aggravated indecent assault, 18

Pa.C.S. § 3125; promoting prostitution (encouragement), 18 Pa.C.S. §

5902(b)(3); unlawful restraint, 18 Pa.C.S. § 2902; indecent assault, 18

Pa.C.S. § 3126; and promoting prostitution (transportation), 18 Pa.C.S. §

5902(b)(6).     On March 9, 2016, a jury convicted Appellant of all the

prostitution-related offenses (conspiracy, encouraging prostitution, and

transporting a prostitute), but “was hopelessly deadlocked on the remaining

charges[,]” leading the trial court to declare a mistrial with respect to the

remaining counts. Post-Sentence Motion Opinion, 9/19/16, at 1. On May 23,

2016, the court sentenced Appellant to consecutive terms of 15-30 months’

incarceration for conspiracy and encouraging prostitution, and to a concurrent

term of 6-12 months’ incarceration for transporting a prostitute. On June 2,

2016, Appellant filed a timely post-sentence motion.       The trial court held a

post-sentence motion hearing on July 13, 2016. The trial court ultimately

denied the motion in an opinion and order dated September 19, 2016.

                                    -2-
J-S53009-17



       Appellant filed a timely notice of appeal and a timely, court-ordered

Pa.R.A.P. 1925(b) statement. However, it appeared to this Court that the trial

court issued neither a Rule 1925(a) opinion, nor a statement in lieu thereof,

in response to Appellant’s Rule 1925(b) statement; accordingly, this Court

remanded for the trial court to issue its Pa.R.A.P. 1925(a) opinion by

Judgment Order dated October 10, 2017.1 The trial court complied, filing its

Rule 1925(a) opinion on December 19, 2017. Accordingly, this appeal is now

ripe for our review.

       Appellant presents the following questions for our review:

        I.    Whether the Commonwealth should have been precluded
              from relying on expert testimony regarding gang affiliation,
              any reference to gang affiliation and/or activity and
              statements made by [Appellant] regarding said affiliation[?]
              Further, testimony from a “gang expert” and any mention
              of gang affiliation by any witness is irrelevant, more
              prejudicial than probative, and inherently inadmissible
              pursuant to Pa.R.E. 404(b).

       II.    Did the trial court err in denying [Appellant]’s omnibus
              pretrial motion seeking, inter alia, to preclude the
              conclusory term of “victim” when referencing the
              complaining witness[?]

      III.    Whether Appellant[’]s convictions are contrary to the weight
              and sufficiency of the evidence presented where the
              Commonwealth’s complaining witness testified in an
____________________________________________


1 The trial court claims it issued a Rule 1925(a) statement on November 10,
2016. For whatever reason, that statement, if it exists, was not available to
this Court at the time we remanded this matter, although the trial court docket
does reflect that such a statement was filed. How, why, or where a breakdown
in inter-court communication occurred is now a moot point, as the trial court
has provided this Court with a comprehensive Rule 1925(a) opinion.



                                           -3-
J-S53009-17


              inconsistent manner and there was insufficient evidence
              presented that [Appellant] was involved in a conspiracy to
              commit or engaged in any overt act to promote
              prostitution[?]

Appellant’s Brief at 10.

        After a thorough review of the record, Appellant’s brief,2 the applicable

law, and the comprehensive and well-reasoned opinion of the trial court, we

conclude that there is no merit to Appellant’s claims on appeal, and do so

based on the reasons set forth in that opinion. See TCO at 3-9 (rejecting

Appellant’s first claim, concerning the court’s decision to permit expert

testimony regarding his gang affiliation); at 9-10 (rejecting Appellant’s second

claim, regarding the Commonwealth’s use of the term “victim” during his

trial); at 10-17 (rejecting Appellant’s third claim, as it pertains to the

sufficiency of the evidence); at 17-18 (concluding that Appellant’s third claim,

as it pertains to the weight-of-the-evidence, has been waived due to his failure

to raise it before the trial court).

        Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/1/18

____________________________________________


2   The Commonwealth did not file a brief in this matter.

                                           -4-
                                                                                     Circulated 01/17/2018 11:59 AM



                                                                                          Mable, 723 CR 2015


                         COURT OF COMMON PLEAS OF MONROE COUNTY
                               FORTY-THIRD JUDICIAL DISTRICT
                             COMMONWEALTH OF PENNSYLVANIA

    COMivIONWEALTH OF PENNSYLVANIA                                            723 CR2015

                    v.
                                                                             3211 EDA 2016


    ANTOINE JAMES MABLE,                                                     APPEAL
                   Defendant


                           STATEMENT PURSUANT TO Pa. R.A.P. 1925(a)


            We submit this second l.925(a) statement in response to the Superior Court's request that

    we address issues raised by Antoine James Mable (hereinafter "Appellant") in his brief. The

    issues come before the Court on Appellant's appeal of his judgment of sentence. The factual and

    procedural history of this case is as follows:


           On March 9, 2016, after trial by jury, Appellant was convicted of two counts of

Promoting Prostitution and one count of Conspiracy to Commit Promoting Prostitution in

relation to the transportation of Jessica Kishbaugh to Monroe County for the purposes of

becoming a prostitute. The jury was hopelessly deadlocked on the remaining charges and this

Court declared a mistrial on those charges for manifest necessity. 1 The Commonwealth has not

pursued further prosecution or otherwise disposed of those charges.


           A PSI was prepared and on May 23, 2016, this Court sentenced Defendant to 15 to 30

months incarceration for the Conspiracy charge, 15 to 30 months incarceration for the felony

Promoting Prostitution charge, and 6 to 12 months incarceration for the misdemeanor Promoting
I
  The jury was hung on the following charges: Rape--Threat by Forcible Compulsion, Involuntary Deviate Sexual
Intercourse-Forcible Compulsion, Aggravated Indecent Assault-Without Consent, Unlawful Restraint, and
Indecent Assault-Without Consent.

                                                       1
\'·
                                                                                             Mable, 723 CR 2015

      /·
           Prostitution charge. The sentences on Conspiracy and felony Promoting Prostitution were

           ordered to run consecutively while the misdemeanor Promoting Prostitution was ordered to run

           concurrently, giving Defendant a total aggregate sentence of 30 to 60 months incarceration.

           Defendant received a time credit of 417 days.

                   On June 2, 2016; Defendant filed post-sentence motions which were denied by Opinion

           and Order dated September 19, 2016. On October 17, 2016, Appellant filed his timely Notice of

           Appeal. We received Appellant's timely concise statement on November 8, 2016. In his concise

           statement, Appellant raised the following issues on appeal: ( 1) whether this Court erred in

           denying Appellant's Motion in Limine regarding gang affiliation; (2) whether this Court erred in

           denying Appellant's pre-trial motions regarding gang expert testimony, a psychological or

           psychiatric examination of the complaining witness, and preclusion of the Commonwealth's use

           of the term "victim;" (3) whether this Court erred in denying Appellant's post-sentence motions

           regarding his sentence; and (4) whether this Court erred in denying Appellant's post-sentence

           motion regarding sufficiency of the evidence.

                  On November 10, 2016 We issued a 1925(a) statement addressing all issues raised by

           Appellant in his l 925(b) statement. On October 11, 2017 the Pennsylvania Superior Court

           remanded for this court to file another l 925(a) statenent. The Superior Court requested we

           specifically address "claims as set forth in Appellant's brief." Com. v. Mable, 3211 EDA 2016,

           2 (Pa. Super. Ct. 2017). However, under the rule announced in Com. v. Lord, when a notice

           of appeal is filed and the trial court orders the Appellant to file a Statement of Matters

           Complained of on Appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in the 1925(b)

           statement will be deemed waived. Therefore any issues raised in a brief and not defendant's

           1925(b) are waived and would not be addressed in this Court's statement.


                                                             2
)

                                                                                                    Mable, 723 CR 2015


               Nevertheless, the Superior Court has asked us to address three specific claims:


                I) Whether the Commonwealth should have been precluded from relying on
               expert testimony regarding gang affiliation, any reference to gang affiliation
               and/or activity and statements made by [appellant] regarding said affiliation?
               Further, testimony from a "gang expert" and any mention of gang affiliation by
               any witness is irrelevant, more prejudicial than probative, and inherently
               inadmissible pursuant to Pa.RE. 404(b);
               2) Did the trial court ell' in denying Appellant's omnibus pretrial motion seeking,
               inter alia, to preclude the conclusory term of "victim" when referencing the
               complaining witness;
              3) Whether Appellant's conviction is contrary to the weight and sufficiency of the
              evidence presented where the Commonwealth's complaining witness testified in
              an inconsistent manner and there was insufficient evidence presented that
              Appellant was involved in a conspiracy to commit or engage in any overt act to
              promote prostitution.
        Com. v. Mable, 3211 EDA 2016, 2-3 (Pa. Super. Ct. 2017).

              We have previously addressed all of the issues requested by Opinion and Order. We

    addressed Appellant's first and second issue in our Omnibus Opinion and Order dated2 August

    26, 2015 page 18-24.3 Similarly, we addressed Appell�t's third issue in our Opinion and Order

    dated September 19, 2016 page 3-10 deciding appellants post-sentence motions. See both

    opinions attached hereto.

              However, in order to stem any further confusion, We will address those issues again,

    below:


                  J. Request to bar expert testimony 011 gangs, in particular the Black Is-Stones

              Appellant asked this Court to bar the testimony of an expert on gangs. First, Appellant


    2
      We note that the Order for our Omnibus Opinion is dated August 2, 2015, however, the docket reflects that it was
    filed August 26, 2015. We are unaware of the source of this discrepancy, however, we will hereinafter refer to this
    Opinion and Order by its docketing date for ease of reference.
    3
      We further note that Appellant's first issue concerns his Motion in Limine regarding gang affiliation, however, in
    our Order dated December 4, 20 I 5, denying said motion, we relied on our reasoning in our Omnibus Opinion and
    Order dated August 26, 2015, and continue to do so. Again, we note the August 2/August 26 dating discrepancy
    with regard to our reference in the December 4, 2015, Order.

                                                              3
,,'

                                                                                        Mable. 723 CR 2015


      argued that such testimony is irrelevant, particularly in his case, because there is no evidence in

      discovery that he is a part of the Black P-Stones. Appellant also posits that even if expert

      testimony on gangs is relevant, it is highly prejudicial and its admission would violate

      Pennsylvania Rules of Evidence 401, 402, and 403. Appellant also states that an expert on gang

      activity would not be allowed under Rule 702 because gangs are not outside the knowledge of

      the average lay person.

              The Commonwealth responded that its proposed gang expert, Trooper William Patton,

      met the qualifications under Rule 702. Furthermore, the Commonwealth argued that testimony

      on gang activity is highly relevant because of the original conspiracy charges. Lastly, the

      Commonwealth agreed that Appellant should have known evidence of gang activity would be at

      issue because the affidavit of probable cause contains Appellant's street name.

             The Appellant identified three issues regarding evidence of gang activity: the relevance

      of evidence of Appellant's alleged gang affiliation, the admissibility of such evidence on grounds

      of prejudice and Rule 404(b), and the admissibility of Trooper Patton's proposed testimony as an

      expert on gangs. Because relevance is a threshold determination, we will address that issue first.

             "All relevant evidence is admissible, except as otherwise provided by law. Evidence that

      is not relevant is not admissible." Pa.R.E. 402. Relevant evidence is defined as evidence that

      "has any tendency to make a fact more or less probable than it would be without the evidence ...

      and ... the fact is of consequence in determining the action." Pa.R.E. 401. The admissibility of

      evidence on relevance grounds is a threshold determination. Com. v. Cook, 952 A.2d 594, 602

      (Pa. 2008). Furthermore, admission of evidence is within the sound discretion of the trial court.

      Com. v. Collins, 888 A.2d 564, 577 (Pa. 2005).

             The main argument Appellant advanced with regard to relevance is that, at that time, he



                                                       4
,.                                                                                   Mable, 723 CR 2015


     had not been charged with crimes that had anything to do with gang activity. Appellant argued

     that the Commonwealth's theory that these charges were indicative of a larger scheme among the

     gang to traffic humans, was not relevant to the events as charged. Appellant had only been

     charged with sexual assault crimes at that time and, according to Appellant, none of the charges

     reflected the Commonwealth's theory of human trafficking.

             Subsequently, Appellant's Criminal Information was amended to include two counts of

     Promoting Prostitution and one count each of Conspiracy. Proof of Promoting Prostitution under

     subsection (b)(3) requires a showing that a person "encouragejed], induc[ed], or otherwise

     intentionally caus]ed] another to become or remain a prostitute." 18 Pa. C.S.A. § 5902(b)(3).

     Under subsection (b)(6), the Commonwealth must prove a person "transport[ed] a person into or
                                                                                           'I

     within this Commonwealth with intent to promote the engaging in prostitution by that person, or

     procur[ed] or pay[ecl] for transportation with that intent." § 5902(b)(6). Proof of Conspiracy

     under subsection (a)(I) requires a showing that a person intends to promote or facilitate the

     commission of a crime and "agrees with [another] person or persons that they or one or more of

     them will engage in conduct which constitutes such crime or an attempt or solicitation to commit

     such crime." § 903(a)(l). Appellant's gang involvement made it more probable that he

     conspired to promote another to engage in prostitution and transported that person with the intent

     to promote prostitution than if they had only done these things of their own accord. See Com. v.

     Gwalh1ey, 422 A.2d 236, 241 (Pa. 1982) (holding trial court did not err in admitting gang

     affiliation evidence because such activity was relevant to the charge of conspiracy). Thus,

     evidence of gang involvement is relevant.

            Appellant argued that ifwe found the gang evidence relevant, then the admission of such

     evidence would be unfairly prejudicial and thus violate Pa.R.E. 403. The Commonwealth did



                                                      5
                                                                                  Mable, 723 CR 2015


not address prejudice but did relate that to suppress evidence of gang activity "would be to

severely hamper the prosecution and to take away from the jury the ability to view all the

evidence an<l weigh[} the credibility of each witness as to the Defendants' role in the events of

that evening." Commonwealth's Br. in Opp'n to Defs.' Omnibus Pretrial Mots., p. 19.

        Pennsylvania Rule of Evidence 403 mandates that a court must "exclude relevant

evidence if its probative value is outweighed by a danger of ... unfair prejudice." Pa.R.E. 403.

Unfair prejudice is defined as "a tendency to suggest decision on an improper basis or to divert

the jury's attention away from its duty of weighing the evidence impartially." Rule 403, cmt.

All evidence against a defendant in a criminal case will be prejudicial. Com. v. Peer, 684 A.2d

1077, 1083 (Pa. Super. 1996). Our determination must be whether evidence is unfairly

prejudicial. Id.; see also Rule 403. While the trial court must exclude relevant but unfairly

prejudicial evidence, we are "not required to sanitize the trial to eliminate all unpleasant facts

from the jury's consideration where those facts form part of the history and natural development

of the events and offenses with which (a] defendant is charged." Com. v. Owens, 929 A.2d

1187, 1191 (Pa. Super. 2007) (quotation omitted). In order for it to be excluded, relevant

evidence must be "so prejudicial that it would inflame the jury to make a decision based upon

something other than the legal propositions relevant to the case." Id. (quotation omitted).

Additionally, the Supreme Court has instructed "that Rule 403 is a trial-oriented rule" and that

pre-trial rulings weighing probative value and prejudice are best decided at trial, not pretrial.

Com. v. Hicks, 91 A.3d 47, 53 (Pa. 2014).

       There is evidence that Appellant was associated with the Black P-Stones gang. There is

also evidence that one of the criminal enterprises of this gang is promoting prostitution.

Appellant's affiliation with a gang that is known to engage in the crimes for which he has been



                                                  6
                                                                                            Mable, 723 CR 2015


    charged is highly probative to the case at bar, Such evidence "forms part of the history and

    natural development of the events and offenses" at issue. Furthermore, the Superior Court has

    commented that a jury can be instructed not to assume guilt simply because of gang affiliation ..

    See Com. v. Whitfield, 419 A.2d 27, 29 (Pa. Super. 1980). Based on the information available to

    us, we found that evidence of gang affiliation was more probative than prejudicial.

           Appellant also argued that evidence of gang affiliation would violate Pa.RE. 404(b) in

    that gang affiliation would be an inadmissible "prior bad act." The Commonwealth argues that

    evidence of gang activity is relevant to Appellant's plans as they relate to the charge of
                  4
    Conspiracy.

           Pennsylvania Ru1e of Evidence 404(b) prohibits admitting evidence of a prior "crime,

wrong, or other act" when such evidence is admitted to "show that on a particular occasion the

person acted in accordance with the character" required to commit such crime, wrong, or other

act. Pa.RE. 404(b)(l). Such evidence may be admitted to show "motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Rule 404(b)(2 ).

The Pennsylvania Supreme Court has held that admission of gang affiliation is proper when the

Commonwealth alleges conspiracy as such evidence is highly probative of the crime of

conspiracy and goes to prove "motive, intent, plan, design," ill will or malice." Gwaltney, 442

A.2d at 241.

          Here, Appellant was charged with Conspiracy and Promoting Prostitution. The

Commonwealth alleges that part of the conspiracy entails Appellant's involvement with the

Black P�Stones and the gang's activities regarding prostitution. While evidence of gang

4
 The Commonwealth also stated that Com. v. Fragassa, 122 A. 88 (Pa. 1923 ), allows the introduction of evidence of
gang membership. Since Appellant did not challenge this evidence on the grounds relevant in Fragassa, see
Fragassa, 122 A. at 89 (holding that a defendant's membership in a society is assumed to continue unless proven
otherwise), and because we find such evidence is admissible on other grounds, we did not further address this
argument.

                                                        7
                                                                                Mable, 723 CR 2015


 affiliation may be considered a prior bad act, such evidence was not being offered to show

 Appellant acted in accordance with the character associated with gang members. Instead, such

evidence is highly probative of the Appellant's Conspiracy charges, motive, and his intent and

plans to commit crimes involving prostitution. Thus, evidence of gang affiliation is admissible

under Rule 404(b).

        Having found that evidence of gang affiliation is properly admissible in this case, we turn

to Trooper Patton and his proposed expert testimony. Appellant's only argument with regard to

the admissibility of Trooper Patton's testimony under Rule 702 is that gang activity is not

outside the knowledge of the average layperson. The Commonwealth responds that Trooper

Patton's expertise and knowledge regarding gangs, in particular the Black P-Stones, is well

beyond the knowledge of an average layperson and that Trooper Patton meets all the criteria

under Rule 702 to testify as an expert.

       Rule 702 states that a qualified expert may testify if the expert's specialized knowledge

"is beyond that possessed by the average layperson." Pa.R.E. 702(a). Appellant cites to Burton

v. Hom & Harda1i Bakinll Co., 88 A.2d 873 (Pa. 1952) for the contention that "[e]xpert

testimony is inadmissible when the matter can be described to the jury and the condition

evaluated by them without the assistance of one claiming to possess special knowledge upon the

subject." Id. at 875. Appellant further cites Dooner v. Delaware & H. Canal Co., 30 A. 269 (Pa.

1894): "The jury still have [sic] some duties to perform. Inferences drawn from the ordinary

affairs of life ought not to be drawn for them, and turned over under oath from the witness

stand." Id. at 271-72.

       Burton and Dooner was analyzed in the criminal context by the Pennsylvania Supreme

Court in Com. v. Seese, 517 A.2d 920 (Pa. 1986). In Seese, the Supreme Court held the trial



                                                8
                                                                                                   Mable, 723 CR 2015
e.



         court erred when it admitted expert testimony on the credibility of children witnesses. Id. at 922.

         The Court held that verac�ty is not a subject "beyond the facility of the ordinary juror." Id.

         However, in the present case, Trooper Patton testified to the inner workings of a complex

         criminal organization. His professional experience as a police officer and member of various

         gang task forces as well as his numerous trainings on gang-related subjects shows that the

         knowledge he possess about gangs would be far beyond that of the average layperson.

         Inferences regarding gang activity are simply not "drawn from the ordinary affairs of life."

     Thus, Trooper Patton possessed specialized knowledge that is beyond that possessed by the

         average layperson and is able to testify as an expert under Rule 702.

                For the foregoing reasons, Defendants' request to bar expert testimony on gangs, in

     particular the Black P-Stones, was denied.

                    2. Request to preclude references to "gangs" or "gang activity"

                As we have found evidence of gang activity to be relevant and admissible Defendants,

     request to preclude any references to "gangs" or "gang activity" was denied.

                    3. Request to bar lite use of the term "victim"

                Appellant asked this Court to bar the Commonwealth and its witnesses from using the

     term "victim" to describe Ms. Kishbaugh as it is conclusory and assumes a crime has been

     committed. It is well-established in Pennsylvania "that attorneys' statements or questions at trial

     are not evidence." Com. v. Freeman, 827 A.2d 385, 413 (Pa. 2003). Furthermore, "[a]n opinion

     [from a witness) is not objectionable just because it embraces an ultimate issue." Pa.RE. 704.

     We understand that Appellant argues the term "victim" has been barred in other jurisdictions,

     however, use of the term "victim" in a criminal case in Pennsylvania is not objectionable. 5 Thus,


     5
      A trial court's use of language such as "victim" is not reversible error unless the contested language unduly
     prejudiced the defendant. Com. v. Parente, 440 A.2d 549, 555 (Pa. Super. Ct. 1982) (holding trial court's use of

                                                              9
<·
                                                                                                   Mable, 723 CR 2015


      Appe1lant's Motion was denied.

                   4. Sufficiency of the Evidence

               Appellant argues that the evidence produced at trial was insufficient for the jury to find

      him guilty of Promoting Prostitution because there was no evidence presented that Appellant was

      "engaged in the business of prostitution." Def. 's Br., p. 4. Similarly, Appellant argues that there

      was insufficient evidence to find him guilty of Conspiracy because the Commonwealth presented

     no evidence that Appellant entered into an agreement with Co-Defendant Klement, or any other

     person, to transport Ms. Kishbaugh to Monroe County for the purposes of promoting her

     prostitution. Def.'s Br., p. 9.

              The Commonwealth, having failed to file a brief or make argument at that hearing, had

     no response.

              In reviewing the sufficiency of the evidence, we must determine whether the evidence,

     and all reasonable inferences derived therefrom, when viewed in the light most favorable to the

     Commonwealth as verdict winner, supports the jury's finding of all of the elements of the

     offense beyond a reasonable doubt. Com. v. Eichinger, 915 A.2d 1122, 1130 (Pa. 2007); Com.

     v. Spotz, 759 A.2<l l 280, 1283 (Pa. 2000). "This standard is equally applicable to cases where

     the evidence is circumstantial rather than direct so long as the combination of the evidence links

     the accused to the crime beyond a reasonable doubt." Com. v. Antidormi, 84 A.3d 736, 756 (Pa.

     Super. 2014) (quoting Com. v. Sanders, 627 A.2d 183, 185 (Pa. Super. 1993)). Moreover, the

     facts and circumstances need not be absolutely incompatible with the Appellant's innocence.

     See Com. v. Cruz-Centeno, 668 A.2d 536, 539 (Pa. Super. 1995). The question of any doubt is



     word "victim" during trial was not so prejudicial to defendant as to warrant new trial). Any prejudice that might
     arise from the use of"victim" language is insignificant when the court gives jury instructions on the defendant's
     presumption of innocence, the Commonwealth's burden of proof, and the court's general role as impartial arbitrator.
     Id.

                                                              10
                                                                                          Mable, 723 CR 2015


    for the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no

    probability of fact can be drawn from the combined circumstances. See id.

           To be found guilty of Promoting Prostitution under subsection (b)(3)� the Commonwealth

    had to prove beyond a reasonable doubt that Appellant encouraged, induced, or otherwise

    intentionally caused another to become or remain a prostitute. 18 Pa. C.S.A. § 5902(b)(3).

    Similarly, to be found guilty of Promoting Prostitution under subsection (b)(6), the                         L.

    Commonwealth had to prove beyond a reasonable doubt that Appellant transported a person into

or within the Commonwealth with the intent to promote the engaging in prostitution by that

person, or procuring or paying for transportation with that intent. § 5902(b)(6).

           The evidence presented at trial, viewed in the light most favorable to the Commonwealth,

establishes the following:

           In June of 2014, Appellant and Co-Defendant Klement contacted Ms. Kishbaugh, asking

if she would like to make money as a prostitute in Monroe County. Notes of Testimony, Jury

Trial 3/7/16, pp. 54-56 [hereinafter ''N.T., Day I, p. _."). Over the course of several

conversations with Appellant and Co-Defendant Klement, Ms. Kishbaugh was informed that the

two men would be her pimps and that they would pick her up from Scranton and transport her to

Monroe County. N.T., Day 1, pp. 56-58. Additionally, Ms. Kishbaugh understood that as part

of this arrangement, Appellant and Co-Defendant Klement would protect her in exchange for

half of the money she made as a prostitute. N.T., Day 1, pp. 58-59. Ms. Kishbaugh agreed to

this arrangement and Co-Defendant Klement picked Ms. Kishbaugh up from her home in

Scranton on June 24, 2014. N.T., Day 1, pp. 59, 69-70. On the way from Scranton to Monroe

County, Co-Defendant Klement also picked up Appellant, and the group went to a trailer home.6


6
  Through testimony other than Ms. Kishbaugh's, the Commonwealth presented evidence that this trailer home was
in Polk Township, Monroe County, See N.T., Day 1, pp. 153, 155-160.

                                                      11
                                                                                                Mable, 723 CR 2015


N.T., Day 1, p. 60. While at this home, Appellant and Co-Defendant Klement sexually assaulted

Ms. Kishbaugh.7 N.T., Day 1, pp. 65-69, 77-79. Co-Defendant Klement forced Ms. Kishbaugh

to perform oral sex on him and Appellant forced Ms. Kishbaugh to receive oral sex from him and

to have vaginal sex with him. N.T., Day 1, pp. 65-69, 77-79. These assaults were in response

to Ms. Kishbaugh changing her mind about the arrangement, making Appellant angry that he had

put time and effort in to bringing Ms. Kishbaugh to Monroe County to make money as a

prostitute. See N.T., Day 1, p. 65.

         Through the night of the 24th and into the morning of the 25th, Appellant and Co-

Defendant Klement did not permit Ms, Kishbaugh to leave the trailer home, despite her

continued insistence that she had changed her mind. N.T., Day 1, pp. 70-74. Appellant and Co-

Defendant Klement hit Ms. Kishbaugh and restricted access to her cell phone in attempts to

make her stay in the home. N.T., Day 1, pp. 73-74. Finally, Trooper William Patton testified as

a gang expert, presenting evidence that Appellant and Co-Defendant Klement were members of a

gang, the Black P-Stones, that participated in an activity known as "gorilla pimping," wherein

young, impressionable girls would be lured into prostitution by gang members and not permitted

to leave either by force, threat of force, or promise of drugs, while the gang members earned
                                                     8
money, through the girls' prostitution, for the gang. Notes of Testimony, Jury Trial 3/8/16, pp.


7 We understand that the jury did not find Appellant guilty of the alleged sexual assaults, however, in viewing the
evidence in the light most favorable to the Commonwealth on the charges the jury did find beyond a reasonable
doubt, we do not decide the issue of Ms. Kishbaugh's credibility and consider the sexual activity as forced, per her
testimony. See Cruz-Centeno, 668 A.2d at 539. ("It is the province of the trier of fact to pass upon the credibility of
witnesses and the weight to be accorded the evidence produced." (quotation omitted)).
8
  Appellant avers in his brief that the jury rendered guilty verdicts solely on the basis of Trooper Patton's testimony
regarding Defendant's gang activity. Def. 's Br., p. 6. We are cognizant that this evidence cannot form the basis of a
guilty verdict on the grounds that Defendant has the propensity to commit crime, as such a conclusion would be
against the Rules of Evidence. See Pa.R.E. 404(b). However, as we stated in our Omnibus Opinion in this case, such
evidence can be used to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident." Omnibus Opinion, 8/26/15, p. 22 (quoting Rule 404(b)(2)). Furthermore, the jury was
instructed to view such evidence only in this limited manner during the jury charge. Notes of Testimony, 3/9/16, pp.
82-83 [hereinafter "N.T., Day 3, p. _."]. We presume the jury followed our instrnctions, see Corn. v. Jones, 668
A.2d 49 J, 503--04 (Pn. 1995), and we now view the evidence of Appellant's gang membership in the same way.

                                                          12
                                                                                               Mable, 723 CR 2015


  105-06, 112-13 [hereinafter "N.T., Day 2, p. �·"].

           The above evidence, viewed in the light most favorable to the Commonwealth,

 establishes, beyond a reasonable doubt, that Appellant committed both charges of Promoting

 Prostitution. Appellant's knowledge of and involvement in transporting Ms. Kishbaugh to the

 trailer home where she was subsequently forced to stay and perform sexual acts is sufficient to

 support such a conviction and is not so weak and inconclusive that, as a matter of law, no

 probability of fact can be drawn from the combined circumstances. See Crnz-Centeno, 668 A.2d

 al   539. These convictions are further supported by the evidence of Appellant's gang

 membership in that his actions in promoting Ms. Kishbaugh's prostitution were motivated by

 such membership, thereby also indicating his intent to engage in such promotion, his lack of

 mistake in doing so, and his knowledge that such promotion was occurring. We are satisfied that

the evidence was sufficient to convict Appellant of both counts of Promoting Prostitution.9

          We further find the evidence was sufficient to convict Appellant of Conspiracy to commit

Promoting Prostitution. "A conviction for criminal conspiracy is sustained where the

Commonwealth establishes that the defendant entered an agreement to commit or aid in an

unlawful act with another person or persons with a shared criminal intent and an overt act was

done in furtherance of the conspiracy." Com. v. Lambert, 795 A.2d 1010, 1016 (Pa. Super.

2002) (citing 18 Pa. C.S,A. § 903). In this case, Appellant was charged with Conspiracy,

generally, but the jury found him guilty only of Conspiracy to commit Promoting Prostitution.

Thus, the only agreement we need to consider would be an agreement between Appellant and

another person to commit the crime of Promoting Prostitution.


� Additionally, although Appellant did not physically drive the vehicle that transported Ms. Kishbaugh, he can still
be guilty of the misdemeanor Promoting Prostitution charge through accomplice liability. See Com. v. Lambert, 795
A.2d IO JO, 1016 (Pa. Super. 2002). However, in any event, Appellant's individual participation in arranging for Ms.
Kishbaugh's transportation, for the purposes of prostitution, makes him guilty of Promoting Prostitution. See 18 Pa.
C.S.A. § 5902(b)(6).

                                                         13
                                                                                  'Mable, 723 CR 2015


        When presenting evidence to show a defendant made a criminal agreement with another,

the Commonwealth will typically not have direct evidence of such agreement, and thus, H[a]

conspiracy is almost always proven through circumstantial evidence." Id. The Superior Court

has established four factors for courts to consider when deciding whether the evidence

establishes that a conspiratorial agreement was formed: "(I) an association between alleged

conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the

crime; and (4) in some situations, participation in the object of the conspiracy." Id. (quoting

Com. v. Olds, 469 A.2d 1072, 1075 (Pa. Super. 1983)). "The presence of such circumstances

may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable

doubt when viewed in conjunction with each other and in the context in which they occurred."

Id. Additionally, "[o'[nce there is evidence of a conspiracy, conspirators are liable for acts of co-

conspirators committed in furtherance of the conspiracy." Id.

        In the present case, the evidence presented showed "an association between alleged

conspirators." Not only did co-defendant Klement pick up and drive Appellant to the trailer

home, N.T., Day l, pp. 69-70, but the two had gone to the same high school> N.T., Day 1, p. 52,

82, seemed to live in the same home, N.T., Day 1, p. 75, and were known to be members of the

same gang. N.T., Day 1, p. 83. Furthermore, both Appellant and co-defendant Klement had

been in contact with Ms. Kishbaugh about the same plan to bring her to Monroe County for

prostitution. N.T., Day 1, pp. 54-56. The evidence also showed Appellant had "knowledge of

the commission of the crime." Appellant was involved in the initial communications with Ms.

Kishbaugh and explained his role as a pimp. N.T., Day 1, pp. 54-59. Indeed, in his brief,

Appellant emphasizes that Ms. Kishbaugh was clear that her intentions upon arrival in Monroe

County were to become a prostitute, Def.'s Br., p. 7, and Ms. Kishbaugh candidly testified to the



                                                  14
                                                                                  Mable, 723 CR 2015


 same at trial. N.T., Day 1, pp. 57-58. Further, the evidence at trial clearly established, and

 Appellant does not deny, see Def.'s Br., pp. 8-10, his "presence at the scene of the crime."

 Lastly, the evidence showed Appellant's "participation in the object of the conspiracy." By

arranging for transportation, not allowing Ms. Kishbaugh to leave, and forcing her to perform

sexual acts, with the ultimate goal that she become a prostitute, Appellant participated in the

conspiracy to promote Ms. Kishbaugh's prostitution.

        We understand that Appellant emphatically argues "mere presence at the scene of an

incident involving purported criminal activity is insufficient to demonstrate an individual's

guilt." Def.'s Br., p. 10. While we agree with that statement generally, see Lambert, 795 A.2d at

I 016, the evidence in Appellant's case, as discussed above, shows much more than his "mere

presence." The case Appellant cites to support this argument, Com. v. Mills, 478 A.2d 30 (Pa.

Super. 1984), is readily distinguishable.

        In Mills, the defendant was charged with conspiring with his co-defendant, William Gola,

to sell methamphetamine to a Confidential Informant (''CI") and an undercover agent from the

Bureau of Narcotics Investigation ("agent"). Mills, 478 A.2d at 31. When Mills arrived at

Gola's apartment, the CI and agent were already there and had spoken with Gola about procuring

methamphetamine from a man named "Karl." Id. When "Karl" could not be reached, Mills

offered to sell the two men methamphetamine from the shipment he was to receive later that

evening, but the offer was declined and the CI and agent returned to their car. Id. at 32. At the

agent's request, the CI reentered Gola's apartment and asked him to come to the car. Id. When

Gola came outside, Mills came with him and the four men proceeded to drive around looking for

"Karl" and a quantity of methamphetamine, Id. No drugs or money were exchanged, however,

Mills and Gola were both charged with Conspiracy approximately one month later. Id. at 31-32.



                                                 15
                                                                                Mable, 723 CR 2015


        The Superior Court found that Mills could not be found guilty of Conspiracy because

 "the Commonwealth's evidence, direct and circumstantial, failed to prove the existence of a

 conspiracy between (Mills] and Gola." Id. at 33 (emphasis added). The Superior Court noted

 that the evidence showed Mills was aware the Cl and agent were seeking methamphetamine and

 that Mills was willing to independently sell- this substance to them. Id. However, the Court

 could not conclude from the evidence before it that Mills and Gola had formed an agreement to

sell the methamphetamine together or were working to accomplish that conunon goal. Id. The

Court also noted that there was no evidence of prior dealings between Mills and the CI, no

statements from Mills or Gola that they were, or had ever, worked together, and no evidence that

Mills would participate or profit from the transaction between Gola and the CI and agent. Id.

        Appellant's case is distinguishable. While there may not have been direct evidence of

statements indicating Appellant and co-defendant Klement were working together to accomplish

a common, criminal goal, the circumstantial evidence indicates that these two men had an

agreement. Appellant and co-defendant Klement were members of the same gang and engaged

together in activity that correlated with the gang's methods of "gorilla pimping." See N.T., Day

1, pp. 54-59; N.T., Day 2, pp. 105-06, 112-13. Both Appellant and co-defendant Klement were

in contact with Ms. Kishbaugh to settle details of the arrangement. N.T., Day 1, pp. 54-56.

Both men reassured Ms. Kishbaugh that they would protect her and expect a cut of her profits in

return. N.T., Day I, p. 58-59. Finally, both men accompanied Ms. Kighbaugh to the trailer

home where she was subsequently assaulted and kept from leaving. N.T., Day I, pp. 59-60, 67.

In Mills, there was no evidence, direct or circumstantial, that showed any connection between

Mills and Gola. Mills, 478 A.2d at 33. Where the Superior Court in Mills faced a record devoid

of connection between co-defendants, we face a very different scenario here. Thus, Mills is



                                                16
                                                                                               Mable, 723 CR 2015


 distinguishable and Appellant's argument in reliance thereon fails.

          Appellant also alleges the Commonwealth cannot rely on his "purported gang affiliation"

 to establish the existence of an agreement sufficient to support a conviction for Conspiracy.

 Def. 's Br., p. 11.10 However, this argument has no merit as the four factors in Lambert were

 supported by independent, non-gang related evidence, which we have discussed above, at length.

See Lambert, 795 A.2d at 1016. Despite Appellant's insistence, evidence of his gang affiliation

was not the only evidence presented against him.

         For the reasons stated above, Appellant's Motion for a New Trial or Jud�ment of

Acquittal based on insufficiency of the evidence was denied.

             5. Weight of the Evidence

         Finally, the Superior Court specifically requested we address Appellant's weight-of-the-

evidence claim.11 This Court, however, was unaware of any weight-of-the-evidence claim on the

part of the Appellant. "A claim that the verdict was against the weight of the evidence must be

raised with the trial judge in a motion for a new trial by one of the following: orally, on the

record, at any time before sentencing, by written motion at any time before sentencing, in a post-

sentence motion." Pa.R.Crim.P. 607 (A). At no time did Appellant raise a weight-of-the-

evidence claim. A review of the transcript does not reveal any oral motions. See N.T., Trial,

3/9/16. Further, Appellant filed a written motion only challenging the sufficiency of the

evidence. See Def s Motion for Mod. Of Sentence, p. 8 (In addition to the above, [Appellant]

avers that the jury verdict was not based on sufficient evidence to substantiate same.).

Appellant's challenge to only the sufficiency of the evidence is further supported by the


10
   Again, we note that the jury was instructed to view the evidence of Defendant's gang activity not us evidence that
he committed a crime, but as evidence that his gang _affiliation may show his intent, motive, knowledge, etc.
11
   The Superior Court requests we preliminarily determine whether Appellant adequately preserved that matter in his
post-sentence motion.

                                                         17
                                                                                               Mable, 723 CR 2015


 Appellant's own brief in support of his post-sentence motions. See Def. 's Br. in Sup. Post Sent.

Motions. Under the section titled "Issue" Defendant states:

         Was the evidence presented at trial sufficient to find beyond a reasonable doubt
         that the defendant, Antione Mable, was engaged in the business of prostitution
         and/or encouraged, induced, or caused the complaining witness to become a
         prostitute? ...
         Was all the evidence presented at trial, direct and circumstantial, sufficient to
         prove the elements of a conspiracy in that there was no proof that there existed an
         agreement between the defendant and his alleged co-conspirator?

Def. 's Br. in Sup. Post Sent. Motions, p. 4.

         Challenges to the sufficiency of the evidence and the weight of the evidence are separate

and distinct. Boilerplate motions asserting either type of challenge will not warrant appellate

review. Challenges to a verdict on weight of the evidence grounds must state with particularity

why the verdict was against the weight of the evidence. Com. v. Holmes, 461 A.2d 1268 (Pa.

Super. Ct. 1983). Challenges to the weight of the evidence are distinct from sufficiency
                                                                              12
challenges and must be raised separately. See Pa.R.Crim.P. 607


determined at this time.




cc: District Attorney
    Thomas P. Sundmaker, Esq.
    Antoine James Mable, Defendant
    Clerk of Courts
    Prothonotary=-Superior Court
     MPW2017--060



12
   Unlike a sufficiency challenge, a challenge to the weight of the evidence requires the trial judge to assess the
credibility of the testimony offered by the Commonwealth. For this reason, such challenges may not be raised for
the first time on appeal but must always be raised initially with the trial judge. Com. v. Widmer, 744 A.2d 745 (Pa.
2000); Com. v. Tapper, 675 A.2d 740 (Pa. Super. Ct. 1996). See also Com. v. Hodge, 658 A.2d 386 (Pa. Super. Ct.
1995); Com. v. Widmer, 689 A.2d 211 (Pa. l997)(distinguishing Commonwealth v. Hodge).


                                                          18
                          COURT OF COMMON PLEAS OF MONROE COUNTY
                                FORTY-THIRD JUDICIAL DISTRICT
                              COMMONWEALTH OF PENNSYLVANIA



    COMMONWEALTH OF PENNSYLVANIA                            : NO. 723 CR 2015

                    vs.

ANTOINE JAMES MABLE,

                                   Defendant                : Omnibus Pre-Trial Motions


                                            OPINION

           This matter comes before the Court on the Omnibus Pre-Trial Motions of Antoine James

Mable and Christopher John Klement (hereinafter "Defendants"), Defendant Mable and

Defendant Klement, docketed separately at case number 1376 CR 2014, have been joined for

trial. AJl charges arise out of the alleged sexual assault of Jessica Kishbaugh on June 24-25,
                                                                                                    i
2014. Defendant Mable has been charged by Amended Criminal Information with one count of            l.

Rape, 1 one count of Conspiracy.' one count oflnvoluntary Deviate Sexual Intercourse ('�1osr 3
                                                                                            1),




one count of Aggravated Indecent Assault," two counts of Promoting Prostltution.' one count of

Unlawful Restraint," and one count of Indecent Assault.7 Defendant Klement has been charged

by Amended Criminal Information with two counts ofJDSI,8 one count of Conspiracy,9 two

counts of Aggravated Indecent Assault, 10 two counts of Promoting Prostitution, 11 one count of ·


1
  18 Pa. C.S.A. § 312l(a)(2).
1
  § 903(a)(I ).
3
  § 3123(aXI ).
4
  § 3125(aXI).
s § 5902(b)(3), (6).
6
  § 2902(aX2)
1
  §-3126(aXI).
8
  §3123(aXl).
9
  § 903(a)(l). ·
10
     § 3125(aX2).
 Unlawful Restraint, 12 two counts of Indecent Assault, 13 one count of Simple Assault, 14 and two

 counts of Harassment." The facts according to the Commonwealth are as follows:
                                                                                                     ;.


            Ms. Kishbaugh was picked up at her residence on June 24, 2014 by Defendant Mable and

 another male friend. Ms. Kishbaugh knew both of these men as they had all previously attended

the same school. The male friend was dropped off at an unknown location and Defendant

Klement was picked up. Ms. Kishbaugh voluntarily went with Defendants because they had

promised Ms. Kishbaugh work as a waitress in the Pocono Mountains region.

            When the group arrived at their final destination, a residence in Monroe County,

Defendants informed Ms. Kishbaugh that she would not be working as a waitress but as a

· prostitute. Ms. Kishbaugh objected to this arrangement and was struck twice in the face by

Defendant Klement. At this time, Ms. Kishbaugh's cell phone was taken from her. Defendant

Klement then took Ms. Kishbaugh into the bathroom and forced her to perform oral sex on him.

Thereafter, Defendant Mable forced Ms. Kishbaugh to have sexual intercourse with him in the

shower. Ms. Kishbaugh was then locked in a bedroom overnight with Defendant Klement and

was not allowed to leave the residence.

           The following morning, June 25, 2015, Defendant Klement again forced Ms. Kishbaugh

to perfonn oral sex on him. While she was attempting to get dressed, Defendant Mable sexually

assaulted her a second time. Ms. Kishbaugh then indicated to Defendants that if she was not

allowed to use her cell phone to. call her sister, her sister would become suspicious. Under the

guise of seeking cell phone reception, Ms. Kishbaugh exited the residence and fled to a

neighboring house where she promptly called 911.

II   § 5902(b)(3), (6).
12
     § 2902(aX2).
13
     § 3126(aXI).
14
     § 2101(aXl).
u § 2709(aXI).

                                                    2
                                                                       6         ulated 01A         S3 PM
                        66" 3 col       /1
          Pennsylvania State Police Trooper Brin K. Cawley responded to the 911 call
                                                                                     at
  approximately 2:30 p.m. on June 25, 2014. Ms. Kishbaugh was immediately
                                                                          transported to
  Pocono Medical Center. While at the hospital, a sexual assault
                                                                 examination was performed and
  Ms. Kishbaugh related the above events to Trooper Cawley.

          Charges were filed against Defendant Klement on June 28, 2014 and
                                                                            he was arrested the
  same day. Charges were filed against Defendant Mable on July 24,
                                                                   2014 and an arrest warrant
  was issued the same day, Defendant Mable, however, was not
                                                             arrested until December 13, 2014.

         On May 29, 2015, a detective from the Monroe County District
                                                                      Attorney's Office went to
 the Monroe County Correctional Facility for the purpose   of talcing photos of Defendant Mablo's
 tattoos. While there, the detective initiated questioning regarding
                                                                     Defendant Mable's alleged
 gang activity and Defendant Mable answered those questions. There is no
                                                                         evidence that the
 detective informed Defendant Mable of his right have an attorney present for
                                                                              questioning, nor is
 there evidence Defendant Mable spontaneously waived that right.

        After other pre-trial matters, both Defendants separately filed the present
                                                                                    Omnibus Pre -
Trial Motions and each Defendant has joined in the Motions of the other. A
                                                                           hearing on said
Motions was held on July 28, 2015. After review of the record, counsels' briefs, and
                                                                                     argument at
the hearing, we are ready to dispose of these motions.


                                             DISCUSSION

           1.   Requestfor involuntary psychiatric evaluation ofhis. Kishbaugh and
                                                                                       disclosure
                of her medical records, or, in the alternative, a competency evaluation by the
                court

       Both Defendants have asked this Court to order an involuntary
                                                                     psychiatric evaluation    of
Ms. Kishbaugh in order to determine her competency to testify at trial,
                                                                        Defendants aver that
while at Pocono Medical Center, Ms. Kishbaugh related to the medical staff that
                                                                                she suffers from



                                                3
   schizophrenia and was under the influence of marijuana
                                                          and alcohol during the events that led to
   the alleged sexual assault. Defendants argue that
                                                     many of the symptoms       of schizophrenia could
   cause Ms. Kishbaugh to falsely perceive and then
                                                    report sexual assault, Furthermore, Defendants
  aver that her alleged mental condition coupled with
                                                      admitted substance abuse would also render
  Ms. Kishbaugh incapable of being a competent witness.

          Defendants also argue that, minimally, this Court should order the
                                                                             disclosure of Ms.
  Kishbaugh's mental health and medical records, or conduct an in
                                                                  camera review of these
  records, so that a defense expert can evaluate whether Ms,
                                                             Kishbaugh's mental condition,
  substance abuse, and/or relevant medications could have had an effect on
                                                                           her ability to perceive
  events accurately and to tell the truth. Defendants ask, in the
                                                                  alternative, for the Court to observe
 Ms. Kishbaugh's testimony and evaluate competency.

         The Commonwealth strongly opposes a psychiatric or
                                                            psychological evaluation of Ms.
 Kisbbaugh. The Commonwealth represents in its brief that a
                                                            psychological evaluation of and/or
 the disclosure   of mental health records for Ms. Kishbaugh would serve to re -victimize her as
 well as contravene the Pennsylvania Rules of Evidence and
                                                           relevant case law. The

 Commonwealth also argues that nothing in discovery indicates that Ms.
                                                                       Kishbaugh's mental
health affected her ability to relate events that occurred in connection
                                                                         with these crimes.
        In Pennsylvania, witnesses are generally assumed to be
                                                               competent to testify, regardless of
mental condition, "unless [their testimony} contributes nothing at all
                                                                       because the witness is
wholly untrustworthy." Commonwealth v. Anderson, 552 A.2d
                                                          1064, 1067 (Pa. I 988)(citation

omitted). Pennsylvania Rule of Evidence 601 enumerates the conditions
                                                                      under which a witness
could be rendered incompetent to testify:

                  A person is incompetent to testify if the court finds that
                                                                             because   of
                  a mental condition or immaturity the person:


                                                    4
                        (1) is, or was, at any relevant time, incapable of perceiving
                        accurately;
                        (2) is unable to express himself or herself so as to be
                        understood either directly or through an interpreter;
                        (3) has an impaired memory; or
                        (4) does not sufficiently understand the duty to tell the
                        truth.

 Pa.R.E. 601(b). "Mt is incumbent upon the party challenging the testimony to establish

 incompetence," Anderson, 552 A.2d at 1067, and the standard of proof is by clear and

 convincing evidence. Commomvealth      v.   Boich, 982 A.2d 102, 110 (Pa. Super. 2009). "A court -

 ordered, involuntary psychiatric or psychological examination should never be the starting point

 for a competency evaluation [of a witness]." Id. (quotation omitted)(emphasis added).

Furthermore, substance abuse and use of antidepressant drugs at any relevant time are typically

reserved for jury consideration as to witness credibility, not competency.     Id   at 111.

        Before a psychiatric or psychological evaluation is ordered, the Court should have an

opportunity to observe the witness and continue to doubt the witness's competency, Anderson,

552 A.2d at 1067. Indeed, we "don not have the duty to order any investigation into a witness'

competency unless the court has some doubt after observing the witness." Commonwealth                   v.


Henkel, 938   lad 433, 440 (Pa. Super. 2007) (emphasis added) (holding the trial court did not
err in denying a request for psychological examination of a witness and production            of that
witness's psychiatric records after the court observed the witness and found him competent). The

Superior Court has suggested that a competency hearing should be held when the record reflects

the witness would meet one or more    of the factors under Rule 601 that would render that witness

incompetent to testify. See Commonwealth       v.   Alston, 864 A.2d 539, 551 (Pa. Super. 2004)

(finding that "prior allegations of abuse, which appear to be false, raise[d] concerns about [the

victim's] ability to tell the truth, and a hearing to explore competency certainly [was]



                                                      5
    warranted"). "A decision on the necessity of a
                                                   competency hearing is addressed to the                   discretion
    of the trial court." Commonwealth v. Delbridge,
                                                    855 A.2d 27, 39 (Pa. 2003).

             We find that Defendants have not met their
                                                        burden with respect to Ms, Kishbaugh's
    alleged mental health issues affecting her ability to
                                                          competently testify. First, the allegation of
   substance abuse is an issue of credibility properly
                                                       reserved for the jury and we will not consider
   such alleged abuse in a competency evaluation. See Boich,
                                                             982 A.2d at 111. Second, based on
   the evidence before us, we do not doubt Ms.
                                               Kishbaugh's ability to testify competently. Ms.
   Kishbaugh's reiteration of events has been consistent in the
                                                                police reports and affidavits that
  have been attached as exhibits to the various filings.
                                                         There is no evidence to suggest she has, at
  any point, expressed an inability to remember. Nor
                                                     have any of the reports indicated Ms.
  Kishbaugh is difficult to understand or to speak with,
                                                         indicating she is able to adequately express
  herself. Furthermore, we have not been directed to any
                                                         portion of Ms. Kishbaugh's testimony at
 the preliminary hearings in these matters that would
                                                      raise a question as to her competency.16

          While Ms. Kishbaugh has self-reported a diagnosis of
                                                               schizophrenia, Defendants have
 only offered a list of typical symptoms to show that
                                                      Ms. Kishbaugh is unable to perceive

 accurately or to tell the truth. There is no evidence before us to indicate Ms.
                                                                                 Kishbaugh suffers
 from the symptoms Defendants claim would affect her
                                                     competency (e.g. delusions and
 hallucinations). On the information before us in affidavits and
                                                                 police reports, we are not
convinced that Ms. Kishbaugh suffers from these particular symptoms.
                                                                     The police officers and
medical professionals, while documenting a diagnosis of
                                                        schizophrenia, have not commented
that this diagnosis has affected Ms. Kishbaugh as it relates
                                                             to this case in any way.


16 While Defendant Mable asks
                                  this Court to conduct a competency hearing "Instead of
transcripts front the preliminary hearing," Def.'s Mem. on Def.'s
                                                                                          relying simply on the
                                                                   Omnibus Pre -Tr. Mots., p. 19, he has not pointed
us to specific portions of the preliminary hearings that
                                                         would establish a question as to Ms. Kishbaugh's
competency. See Alston, 864 A.2d at 551.


                                                          6
            We also understand Defendants aver the only way
                                                            to determine Ms. Kishbaugh's

   medication regimen as it relates to her competency would be
                                                               disclosure or an in camera review
   of her mental health records. We disagree. We are under no duty            to   order any investigation into a
  witness's competency unless we first doubt his or her competency and
                                                                       then continue to doubt his
  or her competency after observation. See Henkel, 938 A.2d
                                                            at 440. Defendants have not met their
  burden with respect to Ms. Kishbaugh's competency and, thus,
                                                               we have no reason to doubt she is

  able to competently testify. Therefore, a competency hearing
                                                               would be inappropriate.11

          Based on the foregoing reasons, Defendants' request for a competency
                                                                               hearing of Ms.
  Kishbaugh is DENIED. Defendants' requests for an involuntary psychiatric or
                                                                              psychological
  evaluation and for disclosure of Ms. Kishbaugh's mental health records are also
                                                                                  DENIED.
              2.   Requestfor expert fees

          Both Defendants have asked for fees to hire an expert to evaluate Ms.
                                                                                Kishbaugh and to
 counter the Commonwealth's § 5920 expert." The Commonwealth only
                                                                  opposes these fees as
 they relate to an involuntary evaluation of Ms. Kishbaugh. The
                                                                appointment of an expert to assist
 an indigent defendant in the preparation       of his defense is within the sound discretion of the trial
 court. Connnomvealth      v.   Gelormo, 475 A.2d 765, 769 (Pa. Super. 1984). While "[Om state has

an affirmative duty to furnish indigent defendants the same
                                                            protections accorded those
financially able to obtain them," "Where must be some showing as to the
                                                                        content and relevancy
of the proposed testimony before such a request will be granted.'-'
                                                                                                v.   Curnutte,
871 A.2d 839, 842 (Pa. Super. 2005)(citations and          quotations omitted).

        As we are denying Defendants' motions for an involuntary
                                                                 psychiatric evaluation of Ms.



 "Moreover, the Commonwealth attached to its brief a document from discovery that clearly
                                                                                          lists Ms. Kishbaugh's
medications as -trazadone" and "lexapro." See Commonwealth Exhibit A.
18 42 Pa. C.S.A. § 5920.




                                                       7
        Kishbaugh,19 Defendants' motions for
                                             fees are DENIED for that purpose.
                                                                               However, as we are
       similarly denying Defendants' motions to
                                                bar the testimony of the Commonwealth's
                                                                                        § 5920
       expert,2° the motions for fees are
                                          GRANTED for the purpose of addressing
                                                                                the Commonwealth
       expert's opinions.

                      3.   Request to bar expert testimony on
                                                              Commonwealth's § 5920 expert or, in the
                           alternative, a Frye hearing

              Both Defendants request that the
                                                 Commonwealth be barred from offering an
                                                                                                expert under
      42 Pa. C.S.A. § 5920. Defendants first argue
                                                       that § 5920 is unconstitutional.
                                                                                        Defendants further
      argue that even if § 5920 is constitutional,
                                                   the expert's testimony should still be barred
                                                                                                  because
      the subject matter on which she will testify
                                                    is not outside the understanding of
                                                                                         the jury and
      would only serve to bolster the
                                      Commonwealth's main witness, Ms. Kishbaugh. Lastly,
     Defendants state that if the Court is inclined to
                                                         allow the testimony of a § 5920 expert, they
     would request a Frye21 hearing to determine
                                                     whether the science on which the expert will
                                                                                                    rely is
     generally accepted.

             The Commonwealth intends to call Shea
                                                   Rhodes, Esquire, as an expert under                         §   5920. In
     its brief, the Commonwealth responds to the
                                                 Defendants' arguments regarding the
     constitutionality of       §   5920 with the holding in Commonwealth
                                                                              v.   Carter,   I   1 1   A.3d 1221 (Pa,
 Super. 2015). Furthermore, the Commonwealth
                                             avers that Attorney Rhodes possesses knowledge
 and expertise beyond the average layperson that would
                                                       assist the trier of fact in this case and that
 such knowledge and expertise is clear from her
                                                curriculum vitae. Additionally, the

Commonwealth argues that if an expert meets the qualification
                                                              criteria in § 5920, such an expert
cannot be challenged in              a   Frye hearing because the science used by
                                                                                  such an expert is not novel
19
     SCC, supra,   Section 1.
10 See, infra, Section 3.
21 Frye v. United States,
                          293 F. 1013 (D.C. Cir. 1923) adopted in
                                                                  Pennsylvania by Commonwealth v. Topa, 369
A.2d 1277, 1281 (Pa. 1977) and reaffirmed in Grady v.
                                                        Frito-Lay, Inc., 839 A,2d 1038, 1043-44
                                                                                                         (Pa. 2003).

                                                              8
   and has been, to an extent, legislatively
                                             adopted.

              The Pennsylvania Rules of Evidence
                                                 "govern proceedings in all courts          ... except as
  otherwise provided by law." Pa.R.E, 101(a). Under these
                                                          Rules,
                       [a] witness who is qualified as an expert by
                                                                       knowledge, skill,
                       experience, training, or education may testify in the
                                                                              form of an opinion
                       or otherwise if:
                           (a) the expert's scientific, technical, or other
                                                                             specialized
                            knowledge is beyond that possessed by the average
                                                                                    layperson;
                            (b) the expert's scientific, technical, or other
                                                                             specialized
                            knowledge will help the trier of fact to understand the
                                                                                       evidence or
                            to determine a fact in issue; and
                            (c) the expert's methodology is generally
                                                                         accepted in the relevant
                            field.

 Pa.R.E. 702. Thus, an expert must first be qualified based
                                                            on particular knowledge or skill and
 then offer testimony that is outside the understanding of
                                                           laypeople, would be helpful to a jury,
 and is based on generally accepted science. In
                                                other words, the qualifications of an expert and the

 parameters of the testimony to be offered are distinct issues that
                                                                    must be addressed separately.
 The burden rests on the proponent to show his or her
                                                      expert meets the criteria under Rule 702,

 Common wealth         v.   Walker, 92 A.3d 766, 790 (Pa. 2014).

        Preliminarily, we must note that we will not address
                                                             Defendants' arguments that              §   5920
is unconstitutional as the Superior Court has
                                              specifically upheld § 5920 as constitutionally sound

in the face   of the same arguments raised by Defendants. Carter,          111 A.3d at 1224.

       Section 5920 enumerates specific types of educational
                                                             and experiential qualifications for
an expert offered under this section. 42 Pa. C.S.A. §
                                                      5920(b). A witness may be qualified as an

expert under    §   5920

                    if the witness has specialized knowledge beyond that
                                                                             possessed by the
                    average layperson based on the witness's experience with,
                                                                                  or
                    specialized training or education in, criminal justice,
                                                                            behavioral
                    sciences or victim services issues, related to sexual
                                                                          violence, that will
                    assist the trier of fact in understanding the dynamics of
                                                                              sexual


                                                        9
                          violence, victim responses to sexual violence and
                                                                            the impact of sexual
                          violence on victims during and after being
                                                                     assaulted.
    §   5920(b)(0. According to this rule, an expert's educational
                                                                   and experiential                qualifications must
    be "beyond that possessed by the average
                                             layperson" and "will assist the trier of fact." Id. These

   factors are two of the three testimonial standards required
                                                               in Rule 702, See Pa,R.E. 702(a), (b).
   Section 5920 does not specifically overrule or
                                                  replace any Rules of Evidence, Thus, we will read
   Rule 702 and       §   5920 in conjunction with one another. See Pa.R.E.
                                                                            101(a), (b), cmt.
          The Commonwealth argues that if an expert meets the
                                                                 qualifications under § 5920, then
  that expert's testimony is consequently admissible and,
                                                          thus, cannot be challenged in a Frye
  hearing. Reading § 5920 and Rule 702 together, we disagree.

               In support of their argument, the Commonwealth
                                                              cites to Commonwealth v. Dengler, 890
  A,2d 372 (Pa. 2005). In Dengler, the Supreme Court of
                                                        Pennsylvania held that an expert's
  testimony as to Dengler's Sexually Violent Predator ("SVP")
                                                              status could not be challenged in a
  Frye hearing because the science involved is not novel. Id
                                                             at 383. In so holding, the Supreme

 Court analyzed, inter alia, 42 Pa. C.S.A. § 9795.4(b)22
                                                         which enumerates the specific areas an
 expert must assess when determining a defendant's SVP status.
                                                               Id. at 374-75. We disagree with

 the Commonwealth's contention that the holding in Dengler
                                                           is applicable to the present case

 because § 9795.4 and § 5920 are not analogous. Section 9795.4
                                                               enumerates a lengthy and very
 specific set of factors to be analyzed by an expert determining
                                                                 SVP status. See id. at 374-75

(quoting 42 Pa. C.S.A.         §   9795.4(b)(I)-(4)). Moreover, the State Sexual Offenders Assessment

Board is directed to "establish standards for evaluations and
                                                              for evaluators conducting the
assessments." Id. at 374 (quoting 42 Pa. C.S.A. § 9795.4(b)). The
                                                                  Supreme Court stated that the
science at issue in Dengler "is responsive to, indeed is a direct
                                                                  byproduct of, a specific
n Section 9795.4    expired in December of 2012 but was replaced by § 979924.
                                                                                    See 42 Pa.C.S.A. § 9799.41.
However,   §   9799.24 is essentially identical to the portions of § 9795.4
                                                                            quoted by the Court in Dengler.

                                                            10
   legislatively -adopted scheme which sets forth the
                                                      relevance and contours of the challenged
   evidence." Id. at 383. Furthermore, the Supreme Court
                                                         reasoned that "[bjecause the legislature
   provided the framework for assessing whether an
                                                   offender is an SVP, expert testimony tracking
   that framework, by definition, should be deemed
                                                   generally accepted in the community of

  professionals who conduct SVP assessments." Id. at 383.

            Section 5920 does not contain a "framework" for
                                                            assessment of victims of sexual
  violence nor does the statute direct a "Board" to establish
                                                              standards for such evaluations. Section
  5920 merely enumerates the qualifications an expert must
                                                           possess in order to testify regarding
  "dynamics of sexual violence, victim responses to sexual
                                                           violence and the impact of sexual
  violence on victims during and after being assaulted." 42 Pa.
                                                                C.S.A. § 5920(b)(1). Nothing in §
  5920 alters the factors for determining the
                                              admissibility of testimony under the Pennsylvania

 Rules of Evidence.

        In reviewing Attorney Rhodes' curriculum vitae, she
                                                            appears to meet the educational and
 experiential qualifications under § 5920 as she has served in
                                                               multiple capacities dealing with
 criminal justice and victim services issues. Attorney Rhodes
                                                              will be subject to voir dire at the
time of trial, however, for purposes of this Motion, on the
                                                            curriculum vitae presented, she meets
the qualifications. Our inquiry, however, cannot end there.
                                                            We must determine whether the

testimony to be offered by Attorney Rhodes meets the standards under
                                                                     the Pennsylvania Rules of
Evidence.

       The first criterion in Rule 702 is that "the expert's
                                                             scientific, technical, or other
specialized knowledge is beyond that possessed by the average
                                                              layperson." Pa.R.E. 702(a).
Section 5920 also addresses this factor. 42 Pa. C.S.A.   §   5920(b)(1). Attorney Rhodes has an
extensive background in victim advocacy, particularly in sexual
                                                                exploitation, prostitution, and



                                                 11
   human trafficking cases. She has worked as an Assistant District
                                                                    Attorney, prosecuting cases
   involving sexual abuse and violence and working closely with
                                                                victims in that capacity. She has
  also worked as an attorney for various victim assistance
                                                           programs, providing assistance to

  victims of sexual assault, rape, and stalking. Furthermore, Attorney
                                                                       Rhodes has obtained relevant
  certifications, including a completion certificate from the "Pennsylvania
                                                                            Coalition Against Rape,
  Human Trafficking in PA Conummitie,s: Indicators, Outreach and
                                                                 Response" and certification as
  a Human Trafficking Instructor through the "Municipal Police
                                                               Officers Education and Training

  Commission." Her knowledge of the dynamics of sexual violence in certain types of
                                                                                    cases and
 the effect of sexual violence on victims appears to be well beyond what
                                                                         the average layperson
 possesses. Therefore, Attorney Rhodes meets the first standard under
                                                                      Pa.R.E. 702 and continues
 to qualify as an expert under    §   5920.

        The second criterion is that "the expert's scientific, technical, or
                                                                             other specialized
 knowledge will help the trier of fact to understand the evidence or to determine a fact
                                                                                         in issue."
 Pa.R.E. 702(b). Again,   §   5920 also addresses this factor. 42 Pa: C.S.A.    §   5920(b)(1). Defendants
have alleged that any testimony Attorney Rhodes may offer as a        §   5920 expert would not help

the trier of fact because it would impermissibly encroach on the exclusive
                                                                           credibility -
determining function of the jury. Defendants cite to Commonwealth          v.   Gallagher, 547 A.2d 355
(Pa. 1988), to support this argument. In Gallagher, the Supreme Court held
                                                                           that an expert

witness's testimony on "rape trauma syndrome" (RTS) was impertrtissible because such

testimony encroached on the credibility-determining function of the jury. Id. at 358-59.

       Gallagher can be distinguished from the present case. The Supreme Court found in

Gallagher that the expert's testimony was offered solely "to enhance the credibility of the

victim." Id. The expert in Gallagher testified not only to generalSyriiptoinatid
                                                                                 -reactions



                                                   12
   associated with RTS but also that the victim in that case
                                                             suffered from RTS and thus acted in
   accordance with the various symptoms.       Id.   at 356-57. hi the present case, an expert under   §   5920
  is expressly prohibited from commenting on "the
                                                  credibility of any other witness, including the
  victim" and thus cannot be offered to testify that a particular
                                                                  victim acted in accordance with
  general victim responses to sexual violence. 42 Pa. C.S.A.
                                                             § 5920(b)(3). Furthermore, the

  Supreme Court of Pennsylvania has recently noted that "use of
                                                                expert testimony in appropriate
  cases would permit jurors to make credibility
                                                determinations with full awareness [of a relevant
  issue] and, thus, assist the trier of fact in understanding evidence."
                                                                         Commonwealth v. Walker, 92
 A.3d 766, 789 (Pa. 2014) (holding that expert testimony as
                                                            to general eyewitness identifications
 is no longer per se inadmissible as an abridgement
                                                    of the jury's credibility -determining
 function). Thus, a   §   5920 expert may testify to educate the jury as to general
                                                                                    victim responses to
 sexual violence, but may not testify as the expert did in
                                                                Gallagher-to a specific victim's actions
 and whether that victim acted in accordance with general
                                                          victim behavior.
        We have already determined that Attorney Rhodes
                                                        possesses specialized knowledge
concerning the dynamics of sexual violence and the effects of such
                                                                   violence on sexual assault
victims. Her testimony about these dynamics and effects, generally, would
                                                                          help the July to
understand evidence introduced by the Commonwealth, specifically,
                                                                  concerning Ms. Kishbaugh
and her reactions to the alleged assaults against her. Such
                                                            testimony by Attorney Rhodes would
not usurp the jury's credibility-determining function, as
                                                          Attorney Rhodes cannot comment on
Ms. Kishbaugh's credibility, but would merely educate and
                                                          inform the jury generally regarding

victims of sexual assault and their reactions. Thus, Attorney Rhodes'
                                                                      proffered testimony meets
the second standard   of Pa.R.E. 702 and she continues to qualify under § 5920.

       Lastly, we must determine whether "the expert's methodology is
                                                                      generally accepted in



                                                      13
    the relevant field." Pa.R.E. 702(c). Section
                                                 5920 does not address this factor. To
                                                                                       meet the burden
   imposed in subsection (c) of Rule 702, the
                                                proponent must show the expert's methodology
                                                                                                 meets
   the standard under Frye v. United States,
                                               293 F. 1013 (D.C. Cir. 1923). See Grady
                                                                                        v. Frito-Lay,

   Inc., 839 A.2d 1038, 1044 (Pa. 2003).
                                         However, a proponent will only be required to
                                                                                       make a
   showing under bye when the court is convinced
                                                  the expert's relied-upon methodology is
                                                                                          novel.
  Dengler, 890 A.2d at 382 ("This Court has made it
                                                       clear that Frye is not implicated every time
  science comes into the courtroom; rather, it
                                               applies only to proffered expert testimony
                                                                                           involving
  novel science."). The Superior Court has
                                           described the Frye test as

                a two-step process. First, the party
                                                     opposing the evidence must show
                that the scientific evidence is 'novel' by
                                                           demonstrating that there is a
                legitimate dispute regarding the reliability of the
                If the moving party has identified novel scientificexpert's conclusions.
                                                                    evidence, then the
                proponent of the scientific evidence must show thatthe expert's
                methodology has general acceptance in the relevant
                                                                   scientific
                community despite the legitimate dispute.

 Commonwealth v. Foley, 38 A.3d 882, 888 (Pa. Super. 2012)
                                                           (quotations omitted) appeal denied
 Commonwealth    v.   Foley, 38 A.3d 882 (Pa. 2013). The
                                                         Supreme Court has held that "a
 reasonably broad meaning should be ascribed to the term
                                                         'novel' and a Frye hearing is warranted
 when a trial judge has articulable grounds to
                                               believe that an expert witness has not applied
 accepted scientific methodology in a conventional
                                                   fashion in reaching his or her conclusions."
Walker, 92 A.3d at 790 (quotations omitted).

        Defendants cite to Commonwealth     v.   Dunkie, 602 A.2d 830 (Pa. 1992), for the
                                                                                          contention
that the science on which Attorney Rhodes likely
                                                 relies has previously been deemed
                                                                                   unreliable
and inadmissible by our Supreme Court. The Court in
                                                    Dunkle held that expert witness testimony
on general victim behavior in a child sexual
                                             abuse case was impermissible because the science

behind "Child Sexual Abuse Syndrome" was not generally
                                                       accepted in the scientific community.



                                                   14
  Id. at 832, 835.

          Dunkle can be distinguished from the present case for several
                                                                        reasons. First, we note that
  Dunkle was decided in 1992. The Supreme Court of Pennsylvania has
                                                                    recognized that "[w]hat
  constitutes novel scientific evidence has historically been decided on a case
                                                                                -by -case basis, and
  there is some fluidity in the analysis; indeed, science deemed novel at
                                                                          the outset may lose its

  novelty and become generally accepted in the scientific community at a later date."
                                                                                      Dengler, 890
  A.2d at 382. Second, the particular testimony at issue in Dunkle was on "Child
                                                                                 Sexual Abuse
 Syndrome." Dunkle, 602 A.2d at 832, While there has been alleged sexual abuse in the
                                                                                      present
 case, Ms. Kishbaugh is not a child. Thus, "Child Sexual Abuse Syndrome" is not
                                                                                relevant to the
 present case and neither is the science pertaining to that syndrome, Lastly, the
                                                                                  Superior Court has
 specifically commented that "Dunkle predates [§] 5920 and was                    based on
                                                                      .   .   .              existing case
 law and rules of evidence," Carter, 111 A.3d at 1224.

        In the present case, Defendants argue that the science they
                                                                    assume Attorney Rhodes

 utilizes is outdated, has been recently critiqued, and, thus, is not generally accepted in
                                                                                            the
relevant field. The determination we must make before ordering a Frye hearing is
                                                                                 whether
Attorney Rhodes has "applied accepted scientific methodology in a conventional fashion."

Defendants have not claimed that the studies they referenced at the hearing in this matter were

conducted using methodologies that are novel to the relevant scientific community.
                                                                                   Instead,

Defendants argued the application of those studies to the present context has recently been

critiqued. Such an argument is not the subject of a Frye hearing as the science
                                                                                involved is not
novel. The Pennsylvania Supreme Court has stated that disputed conclusions are not
                                                                                   subject to
the Frye test. See Commonwealth     v.   Puksar, 951 A.2d 267, 276 (Pa. 2008) ("Frye does not

operate to bar disputed conclusions      of an expert, so long as the methodology employed is not



                                                    15
        novel.").

               Furthermore, Attorney Rhodes need not rely
                                                          on any scientific studies to render an
                                                                                                 expert
       opinion. A witness may be qualified as an expert
                                                        due to their "knowledge, skill,    experience,
       training, or education." Pa.R.E. 702
                                             (emphasis added); see also Commonwealth v.
                                                                                              Smith, 808
       A.2d 215, 227 (Pa. Super. 2002) (quoting
                                                  Commonwealth v. Sport, 756 A.2d 1139, 1160 (Pa.
       2000)) ("A witness may testify as an expert
                                                    provided that he or she possesses a 'reasonable
      pretension to specialized knowledge on the
                                                   subject matter in question.' It is well settled
                                                                                                   and
      established in this Commonwealth that expertise
                                                         can be acquired though occupational
                                                                                                 experience
      as well as by scientific study."). As we
                                               have said, Frye is only implicated
                                                                                   when an expert relies
      on novel scientific evidence to form an
                                               opinion.

             For the reasons stated above, a Frye hearing is
                                                             inappropriate at this time?)
             Raving found that Attorney Rhodes meets all
                                                         criteria under Pa.R.E. 702 and 42 Pa.
     C.S.A. § 5920 to testify as an expert,
                                            Defendants' Motion to conclusively bar her testimony
                                                                                                 is
     DENIED. Furthermore, Defendants not having
                                                presented sufficient                evidence which would give
     us articulable grounds that the science, if
                                                 any, on which Attorney Rhodes relies is
                                                                                         novel,
     Defendants' request for a Frye hearing is DENIED.

                4.   Request to compel an expert report from the expert
                                                                        on sexual violence
           Both Defendants request that Attorney Rhodes be
                                                           required to produce an expert report
 pursuant to Pa.R.E, 573(B)(2)(b) so that the Defendants
                                                         may be fully prepared in their defense.
Currently, the only documentation that has been turned over
                                                            to Defendants is Attorney Rhodes'
curriculum vitae. Defendants aver that an expert under §
                                                         5920 is a fairly new type of expert in
Pennsylvania and, specifically, in Monroe County.
                                                   Furthermore, Defendants argue that they are

13We recognize that Defendants have
                                        not yet had the benefit of an expert report from
receipt of a report from Aftomey Rhodes,                                                 Attorney Rhodes. If, upon
                                            Defendants continue to contend her methodology Is
petition this Court for a Frye hearing.                                                          novel, they may again


                                                          16
 unable to determine what the substance of this expert's testimony will be at trial based solely on

 her curriculum vitae. Defendants explain that they simply need more information regarding this

 expert's testimony and the science on which she bases her opinions.

        The Commonwealth has represented that its expert, Attorney Rhodes, will only be

 testifying to general victim behavior in sexual assault cases, is not permitted under § 5920 to

 conduct an evaluation of Ms. Kishbaugh, and, thus, will not be preparing a report.

        As discussed above,   § 5920   mandates specific qualifications for an expert called to testify

 generally about victim behavior in certain types of criminal cases. 42 Pa.      C.S.A. § 5920.   Section

 5920 does not mention anything about reports from these types of experts. However, elsewhere

 in Pennsylvania law, we find instructive rules regarding expert discovery material.

        Pa.R.E. 573(13)(2)(b) states that, at the discretion   of the trial court, where a
Commonwealth expert has not previously prepared "a report of examination or tests," we may

               order that the expert prepare, and that the attorney for the
               Commonwealth disclose, a report stating the subject matter on which
               the expert is expected to testify; the substance of the facts to which the
               expert is expected to testify; and a summary of the expert's opinions
               and the grounds for each opinion.

Pa.R.E. 573(B)(2)(b). This rule does not require an expert to conduct examinations or tests in

order to prepare a report regarding his or her testimony. In fact, the Rule contemplates that a

report under this section will be ordered in the absence of examinations or tests. Thus, regardless

of whether Attorney Rhodes may or may not evaluate Ms. Kishbaugh under             § 5920,   we may still

order her to prepare a report under Rule 573, Even an expert testifying to general behaviors in

certain contexts can produce a report which states the subject matter of their testimony and the

grounds for any opinions they may offer.

       We find that Defendants have shown a reasonable need for a report from Attorney



                                                  17
  Rhodes. Therefore, Defendants' Motions for an expert report
                                                              are GRANTED. Attorney Rhodes

  shall prepare a report pursuant to Pa.R.E. 573(B)(2)(b)
                                                          and the attorney for the Commonwealth
  shall promptly disclose such report to defense counsel.

             5.    Request to bar the use of the term "victim"

          Both Defendants have asked this Court to bar the Commonwealth
                                                                        and its witnesses from
  using the term "victim" to describe Ms. Kishbaugh as it is conclusory
                                                                        and assumes a crime has
  been committed. This Motion was denied from the bench at
                                                           the hearing in this matter. However,
 by way   of further explanation, it is well -established in Pennsylvania "that
                                                                                attorneys' statements
 or questions at trial are not   evidence." Commonwealth   v.   Freeman, 827 A.2d 385, 413 (Pa.
 2003). Furthermore, "[a]n opinion [from a witness] is not objectionable
                                                                         just because it embraces
 an ultimate issue." Pa.R.E. 704. We understand that Defendants
                                                                argue the term "victim" has been

 barred in other jurisdictions, however, use of the term "victim" in a
                                                                       criminal case in
 Pennsylvania is not objectionable. Thus, Defendants' Motion is DENIED.

            6.    Request to bar expert testimony on gangs, in particular the Black P-Stones

        Both Defendants have asked this Court to bar the testimony of an
                                                                         expert on gangs. First,
Defendants argue that such testimony is irrelevant. Defendant Mable argues
                                                                           that gang evidence
is especially irrelevant in his case because there is no evidence
                                                                  in discovery that he is a part   of
the Black P -Stones. Defendants also posit that even if expert testimony
                                                                         on gangs is relevant, it is

overly prejudicial and its admission would violate Pennsylvania Rules of
                                                                         Evidence 401, 402, and
403. Defendants also state that an expert on gang activity would not be
                                                                        allowed under Rule 702
because gangs are not outside the knowledge of the average lay person.

       The Commonwealth responds that its proposed gang expert, Trooper
                                                                        William Patton,
meets the qualifications under Rule 702. Furthermore, the Commonwealth
                                                                       states that it has



                                                 IS
 provided all requisite notices to the defense and has no duty to disclose its theory   of the case.
 The Commonwealth also argues that testimony on gang activity is highly relevant because of the

 original conspiracy charges. Lastly, the Commonwealth avers that Defendants should have

 known evidence of gang activity would be at issue for both      of them because the affidavits of
 probable cause for arrest contain Defendants' street names.

          The parties have identified three issues in regard to evidence of gang activity: the

 relevance of evidence of Defendants' alleged gang affiliation, the admissibility of such evidence

 on grounds of prejudice and Rule 404(b), and the admissibility of Trooper Patton's proposed

 testimony as an expert on gangs. Because relevance is a threshold determination, we will address

that issue first.

          "All relevant evidence is admissible, except as othenvise provided by law, Evidence that

is not   relevant is not admissible." Pa.R.E. 402. Relevant evidence is defined as evidence that

"has any tendency to make a fact more or less probable than it would be without the evidence           .   .




and   ... the fact is of consequence in determining the action." Pa.R.E. 401. The admissibility of
evidence on relevance grounds is a threshold determination, Commonwealth v. Cook, 952 A.2d

594, 602 (Va. 2008). Furthermore, admission of evidence is within the sound discretion of the

trial court. Commonwealth     v.   Collins, 888 A.2d 564, 577 (Pa. 2005),

         At the time Defendants submitted their briefs, the Criminal Informations had not been

amended. The main argument Defendants advanced with regard to relevance is that, at that time,

neither Defendant had been charged with crimes that had anything to do with gang activity.

Defendants argued that the Commonwealth's theory that these charges were indicative of a

larger scheme among the gang to traffic humans, was not relevant to the present events.

Defendants had only been charged with sexual assault crimes at that time and, according to



                                                    19
   Defendants, none of the charges reflected the
                                                 Commonwealth's theory of human trafficking.
          As of the date of this Opinion, Defendants' Criminal
                                                               Informations have been amended to
   include two counts each of Promoting Prostitution and one
                                                             count each of Conspiracy. Proof of
  Promoting Prostitution wider subsection (b)(3) requires a
                                                            showing that a person "encourage[ed],
  induc[ed], or otherwise intentionally caused] another to
                                                           become or remain a prostitute." 18 Pa.
  C.S.A. § 5902(b)(3), Under subsection (b)(6), the Commonwealth
                                                                 must prove a person
  "transport[ed] a person into or within this Commonwealth with
                                                                intent to promote the engaging in
 prostitution by that person, or procur[ed] or pay[ed] for
                                                           transportation with that intent."   §

 5902(b)(6). Proof of Conspiracy under subsection (a)(1) requires a
                                                                    showing that a person intends
 to promote or facilitate the commission of a crime
                                                    and "agrees with [another] person or persons

 that they or one or more of them wilt engage in conduct which
                                                               constitutes such crime or an
 attempt or solicitation to commit such crime."   §    903(a)(1). Defendants' gang involvement would

 make it more probable that they conspired to promote another
                                                              to engage in prostitution and

 transported that person with the intent to promote prostitution than if
                                                                         they had only done these
things of their own accord. See Commonwealth          v.   Gwaltney, 422 A.2d 236, 241 (Pa. 1982)

(holding trial court did not err in admitting gang affiliation evidence
                                                                        because such activity was
relevant to the charge of Conspiracy). Thus, evidence of gang
                                                              involvement is relevant.
        Defendants argue that if we find gang evidence is relevant, then the
                                                                             admission of such
evidence would be unfairly prejudicial and thus violate Pa.R.E. 403.
                                                                     The Commonwealth does
not address prejudice but does relate that to suppress
                                                       evidence of gang activity "would be to

severely hamper the prosecution and to take away from the jury the
                                                                   ability to view all the
evidence and weigh[] the credibility of each witness as to the
                                                               Defendants' role in the events of
that evening." Commonwealth's Br. in Opp'n to Defs.'
                                                     Omnibus Pretrial Mots., p. 19.



                                                  20
            Pennsylvania Rule of Evidence 403 mandates that a court must "exclude relevant

     evidence if its probative value is outweighed by a danger       of... unfair prejudice." Pa.R.E. 403,
 Unfair prejudice is defined as "a tendency to suggest decision on an improper basis or to divert

 the jury's attention away from its duty       of weighing the evidence impartially." Rule 403, cmt. All

 evidence against a defendant in a criminal case will be prejudicial. Commonwealth v. Peer, 684

 A.2d 1077, 1083 (Pa. Super. 1996). Our determination must be whether evidence is unfairly

 prejudicial. Id.; see also Rule 403. While the trial court must exclude relevant but unfairly

 prejudicial evidence, we are "not required to sanitize the trial to eliminate all unpleasant facts

 from the jury's consideration where those facts form part          of the history and natural development
 of the events and offenses with which [a] defendant is charged," Commonwealth v. Owens, 929

 A.2d 1187, 1191 (Pa. Super. 2007) (quotation omitted). In order for it to be excluded, relevant

 evidence must be "so prejudicial that it would inflame the jury to make a decision based upon

 something other than the legal propositions relevant to the case." Id. (quotation omitted).

Additionally, the Supreme Court has instructed "that Rule 403 is a trial -oriented rule" and that

pre-trial rulings weighing probative value and prejudice are best decided at trial, not pretrial.

Commonwealth v. Hicks, 91 A.3d 47, 53 (Pa. 2014).

           There is evidence that Defendants were associated with the Black P -Stones gang.24 There

is also evidence that one     of the criminal enterprises of this gang is promoting prostitution.

Defendants' affiliation with a gang that is known to engage in the crimes for which they have

been charged is highly probative to the case at bar. Such evidence "forms part of the history and

natural development of the events and offenses" at issue. Furthermore, the Superior Court has



24 We understand that Defendant Klement avers there is no evidence to show he is associated with the Black P.
Stones. However, a police report attached as Exhibit F to the Commonwealth's Brief indicates that Ms. Kishbaugh
related that Defendant Klement, aka "Trillz," and Defendant Mable, aka "Ace," are alleged members of the Black 13 -
Stones. Thus, evidence does exist to show both Defendants are members of this gang.

                                                        21
  commented that a jury can be instructed not to assume guilt simply because of gang affiliation.

  See Commonwealth v. Whitfield, 419 A.2d 27, 29 (Pa. Super, 1980). Based on the
                                                                                 information
  presently available to us, we find that evidence of gang affiliation, at this juncture, is more

  probative than prejudicial. However, this issue may, and possibly should, be raised again at trial

  pursuant to the Supreme Court's holding in Hicks.

          Defendants have also argued that evidence of gang affiliation would violate Pa.R.E.

  404(6) in that gang affiliation would be an inadmissible "prior bad act." The Commonwealth

 argues that evidence of gang activity is relevant to Defendant's plans as they relate to the charge

 of Conspiracy,25

         Pennsylvania Rule of Evidence 404(b) prohibits admitting evidence of a prior "crime,

 wrong, or other act" when such evidence is admitted to "show that on a particular occasion the

 person acted in accordance with the character" required to commit such crime, wrong, or other

 act. Pa.R.E. 404(b)(1). Such evidence'may be admitted to show "motive, opportunity, intent,

 preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Rule 404(b)(2).

 The Pennsylvania Supreme Court has held that admission            of gang affiliation is proper when the
 Commonwealth alleges conspiracy as such evidence is highly probative of the crime of

conspiracy and goes to prove "motive, intent, plan, design, ill will or malice." Gwaltney, 442

A.2d at 241.

         Here, both Defendants have been charged with Conspiracy and Promoting Prostitution.

The Commonwealth alleges that part of the conspiracy entails Defendants' involvement with the

Black P -Stones and the gang's activities regarding prostitution. While evidence of gang


"The Commonwealth also states that
                                     Commonwealth v. Fragassa, 122 A. 88 (Pa. 1923), allows the introduction of
evidence of gang membership. Since Defendants have not challenged this evidence on the grounds relevant in
Fragassa, see Fragassa, 122 A. at 89 (holding that a defendant's membership in a society is assumed to continue
unless proven otherwise), and because we find such evidence is admissible on other grounds, we will not further
address this argument.

                                                      22
      affiliation may be considered a prior bad act, such evidence is not being offered
                                                                                        to show

      Defendants acted in accordance with the character associated with gang
                                                                             members. Instead, such
      evidence is highly probative of the Defendants' Conspiracy charges, motive for
                                                                                     committing a
     conspiracy, and their intent and plans to commit crimes involving prostitution.
                                                                                     Thus, evidence of
     gang affiliation is not excludable under Rule 404(b).

            Having found that evidence of gang affiliation is properly admissible in this case, we turn

     to Trooper   Patton and his proposed expert testimony. Defendants' only argument with regard to

     the admissibility of Trooper Patton's testimony under Rule 702 is that gang activity is not

     outside the knowledge of the average layperson.26 The Commonwealth responds that Trooper

     Patton's expertise and knowledge regarding gangs, in particular the Black P -Stones, is well

     beyond the knowledge of an average layperson and that Trooper Patton meets all the criteria

 under Rule 702 to testify as an expert.

            Rule 702 states that a qualified expert may testify if the expert's specialized knowledge

 "is beyond that possessed by the average layperson." Pa.R.E. 702(a). Defendants cite to
                                                                                         Burton
 v.   Horn & Hardart Baking Co., 88 A.2d 873 (Pa. 1952) for the contention that "[e]xpert

 testimony is inadmissible when the matter can be described to the jury and the condition

 evaluated by them without the assistance of one claiming to possess special knowledge upon the

 subject." Id. at 875. Defendants further cite Dooner v. Delaware & H. Canal Co., 30 A. 269 (Pa.

 1894): "The jury still have [sic) some duties to perform. Inferences drawn from the ordinary

affairs of life ought not to be drawn for them, and turned over under oath from the witness

stand." Id. at 271-72.

26 We note Defendant Klement also argues that Trooper Patton's expert testimony with regard to Defendant
Klement's alleged involvement in the Black P -Stones would not be based on sufficient facts or data in
                                                                                                       violation of
Pa.R.E. 703. Defendant Klement avers the only evidence linking him to the Black P -Stones Is Trooper
                                                                                                       Patton's own
belief that he is a member. See Def 's Br. in Support of Omnibus, p. 22. As we discussed above, see supra
                                                                                                           n.23,
independent evidence exists to show Defendant Klement is associated with the Black P -Stones as Ms.
                                                                                                      Kishbaugh
has related the same to police. Thus, Defendant Klement's argument regarding Rule 703
                                                                                        holds no merit.

                                                        23
             The cases Defendants cite were analyzed more recently in the
                                                                          criminal context by the
  Pennsylvania Supreme Court in Commonwealth v. Seese, 517 A.2d
                                                                920 (Pa. 1986). In Seese, the
  Supreme Court held the trial court erred when it admitted expert
                                                                   testimony on the credibility of
  children witnesses. Id. at 922. The Court held that veracity is not a
                                                                        subject "beyond the facility of
  the ordinary juror." Id. However, in the present case;
                                                         Trooper Patton will be testifying to   the
  inner workings of a complex criminal organization. His professional
                                                                      experience as a police
  officer and member of various gang task forces as well as his numerous
                                                                         trainings on gang -related
  subjects shows that the knowledge he possess about gangs would be far
                                                                        beyond that of the
  average layperson. Inferences regarding gang activity are simply not
                                                                       "drawn from the ordinary
 affairs   of life." Thus, Trooper Patton possesses specialized knowledge that is beyond that

 possessed by the average layperson and is able to testify as an expert under Rule
                                                                                   702.

           For the foregoing reasons, Defendants' request to bar expert testimony
                                                                                  on gangs, in
 particular the Black P -Stones, is DENIED.

              7.    Request to preclude references to "gangs" or "gang activity"

           As we have found evidence of gang activity to be relevant and
                                                                         admissible at this juncture,
see, supra, Section 6, Defendants' request to preclude any references to
                                                                         "gangs" or "gang
activity" is DENIED.

              8.   Requests to suppress statements made by Defendant Mable to police

       Defendant Mable avers that the statements he made to the detective who questioned him

on May 29, 2015 at Monroe County Correctional Facility should be
                                                                 suppressed because the
statements were obtained in violation of his constitutional rights. At the hearing in this
                                                                                           matter,
the Commonwealth agreed that the statements made by Defendant Mable on May 29,
                                                                               2015
would be appropriately suppressed and represented that those statements will not
                                                                                 be used against



                                                  24
                                                                                      CirculatecrOVIV2' 018 02:13 PM




  Defendant Mable at trial. In its brief, the Commonwealth reserved the
                                                                        right to use the statements
  on rebuttal, if necessary.

         Defendants enjoy the right to an attorney and to have that attorney present for any and
                                                                                                 all
  custodial interrogation. See Commonwealth v. Petrino, 480 A.2d 1160, 1165-66 (Pa,
                                                                                    Super.
  1984) (citing Miranda v. Arizona, 384 U.S. 436 (1966)).         If a defendant asserts this right, such
 protections exist unless and until the defendant later waives such right. Id. at 1166-67.
                                                                                           The
 remedy for statements obtained in violation of this right is suppression of those
                                                                                   statements at
 trial. Commonwealth    v.   Abbas, 862 A.2d 606, 609 (Pa. Super. 2004) (citing United States v.

 Patane, 542 U.S. 630 (2004)). When a defendant alleges that evidence was obtained in
                                                                                      violation
 of Miranda, the burden is on the Commonwealth to prove the defendant knowingly and

 voluntarily waived his right. Commonwealth      v.   Kunkle, 79 A.3d 1173, 1180 (Pa. Super. 2013).

 Additionally, statements that have been suppressed, but are otherwise voluntary, may be used by

the Commonwealth on rebuttal. See Commonwealth             v,   Busanet, 54 A.3d 35, 39-40 (Pa. 2012)

(citing PA. CONST. Art. 1, § 9). However, statements made absent a warning against
                                                                                   self-

incrimination are presumptively involuntary. Commonwealth             v.   DiStefano, 782 A.2d 574, 579

(Pa. Super. 2001).

        There is no question or dispute that Defendant Mable was under custodial interrogation

when he was questioned at Monroe County Correctional Facility. See Commonwealth v.
                                                                                   Chacko,
459 A.2d 311, 314 (Pa. 1983) (stating that an incarcerated individual is "in custody" for purposes

of Miranda). At the hearing, the Commonwealth conceded that Defendant Mable had previously

invoked his right to an attorney but that his attorney was not present during the questioning. At

no time has the Commonwealth alleged that the detective advised Defendant Mable of his

Miranda rights or obtained a waiver of the same. Under these circumstances, any statements



                                                      25
  made by Defendant Mable during that meeting should be suppressed
                                                                   and the Commonwealth
  will not be permitted to use them during its case -in -chief. Furthermore, the
                                                                                 Commonwealth has
  also failed to allege and prove that despite a lack      of Miranda warnings, Defendant Mable's
  statements were still voluntary. Statements made absent a warning against
                                                                            self-incrimination are
  presumptively involuntary and the Pennsylvania Constitution only allows for the use of

  suppressed voluntary statements on rebuttal. The Commonwealth, therefore, may not
                                                                                    use the
  statements made by Defendant Mable on rebuttal.

         Defendant Mable also seeks to suppress the photographs taken during the interrogation

 on May 29, 2015. Defendant Mable avers the same argument regarding violation of
                                                                                 his Miranda
 rights applies and requires the suppression of the photographs. The Commonwealth argues
                                                                                         that
 the photographs could have been obtained with a search warrant and thus
                                                                         suppression would be

 inappropriate.

        By arguing his Miranda rights have been violated by the taking of these
                                                                                photographs,
 Defendant is essentially invoking his right against self-incrimination under the Fifth
                                                                                        Amendment
of the United States Constitution and Article    1,   Section 9 of the Pennsylvania Constitution. See

Commonwealth      v.   Hayes, 674 A.2d 677, 679 (Pa. 1996). Only evidence that is testimonial in

nature receives these constitutional protections. ld. (quoting Schmerber      v.   California, 384 U.S.
757 (1966)). After a diligent search, we are unable to find any precedent within Pennsylvania

that addresses whether photographs      of tattoos are testimonial evidence subject to constitutional
protections. But see Commonwealth v. Cousar, 928 A.2d 1025, 1040 (Pa. 2007) (finding

photographs of gang tattoos were admissible on other grounds).

       However, Pennsylvania has determined that "the Fifth Amendment protection against

self-incrimination is a bar against 'communications' or 'testimony,' not physical evidence which



                                                      26
       the accused is compelled to produce, even if that
                                                         physical evidence incriminates the accused." Id.
       at 679 (emphasis added). Furthermore, there is
                                                      persuasive authority from other jurisdictions that
      have relied on this rationale, inter alia, to hold
                                                         photographs of tattoos are not testimonial
      evidence. See, e.g., State        Tiner, 135 P.3d 305, 311-12 (Or. 2006)
                                   v.
                                                                                  Mille state and federal
      privileges apply to only testimonial evidence-the
                                                        communication of a person's belief,
      knowledge; or state of mind-but not to [a] defendant's
                                                             physical characteristics, such as identity,
      appearance, and physical condition." (citations omitted)); People v.
                                                                           Slavin, 807 N.E.2d 259, 263
      (N.Y. 2004) ("Indeed, it is a settled proposition that a
                                                               person may be required to produce specific
     documents in response to a subpoena even though they contain
                                                                  incriminating assertions of fact or
     belief because the creation of those documents was not `compelled'
                                                                        within the meaning of the
     privilege." (quotations omitted)).

            Without guidance from mandatory authority on this issue, we
                                                                        find the analysis from our
     sister states persuasive and agreeable with the law the Pennsylvania
                                                                          Supreme Court has adopted.
     Thus, we hold that the photographs taken of Defendant Mable's tattoos
                                                                           were not testimonial
     evidence and thus not subject to constitutional protections against
                                                                         self-incrimination. Therefore,
 the fact that Defendant Mable was not read Miranda warnings prior
                                                                   to his tattoos being

 photographed does not render the photographs inadmissible at trial."

           For the foregoing reasons, Defendant Mable's Motion to
                                                                  Suppress is GRANTED in part
and DENIED in part. Any and all statements made by Defendant
                                                             Mable to the detective on May
29, 2015 are suppressed and are not available to the
                                                     Commonwealth in its case -in -chief or on

rebuttal. The photographs taken by the detective of Defendant Mable are
                                                                        not suppressed.



27
  We do not address the Commonwealth's argument that a
                                                          search warrant could have been obtained for the
photographs because such an argument involves Fourth Amendment
                                                                   privileges, see U.S. CONST. amend. IV; PA.
CONST. art. I, § 8, which Defendant Mable has not raised.


                                                        27
               9.        Request to suppress information from Defendant
                                                                        Mable's Facebook page
            Defendant Mable asserts that a search warrant was executed
                                                                       for all information regarding
  his Facebook page. Defendant Mable maintains that this search
                                                                warrant was unconstitutionally
  broad in content and timeframe. Specifically, Defendant Mable
                                                                alleges that the search warrant
  was overly broad due to the following language describing the
                                                                items to be seized: "basic
  subscriber information, user photos, group information, private
                                                                  messages, IP logs and any other
  content included on the Facebook profile." Def. 's Mem. on Def.
                                                                  's Omnibus Pre-Trial Mots., p.
  15   (quoting Aff. of Probable Cause, May     1,   2015, ¶ 13), Furthermore, Defendant Mable avers

 there was no probable cause to seize any information from his
                                                               Facebook page because the only
 reason given in the affidavit of probable cause was that the
                                                              information "will greatly assist in this
 investigation." Id. (quoting Aff, of Probable Cause, May 1, 2015,1i 13).

          The Commonwealth responds that digital discovery rules have not
                                                                          yet been fully
 developed in Pennsylvania. The Commonwealth avers the only
                                                            information it had with regard to
Facebook was that Ms. Kishbaugh communicated with Defendants via
                                                                 Facebook. The
Commonwealth argues that in order to obtain the precise information it seeks on a
                                                                                  personal
website like Facebook, "the Commonwealth is constrained to request
                                                                   enough to ferret through
the information and find where the hidden messages may be or
                                                             where the different forms of

communication are stored." Commonwealth's Br. in Opp'n to Deis.' Omnibus Pretrial
                                                                                  Mots., p.
21.

         Search and seizure law as it pertains to digital information is still
                                                                               developing in
Pennsylvania. See Commonwealth v. Orie, 88 A.3d 983, 1009 n.43 (Pa. Super. 2014).
                                                                                  Currently,
courts continue to rely on traditional constitutional rules when
                                                                 analyzing digital data. See, e.g.,
Commonwealth        v.   Sodomsky,     A.3d ---, 2015 WL 3533863, *6 (Fa. Super. 2015) (using



                                                      28
 traditional rules regarding the definition of a search to conclude that the digital data stored on a

 computer is subject to constitutional protections); Orie, 88 A.3d at 1008-09 (ruling that a search

 warrant was overbroad due to traditional search and seizure jurisprudence where the items to be

 seized were, inter alio, "any contents contained [in a USB drive], including all documents,

 images, recordings, spreadsheets or any other data stored in digital format"); Commonwealth v.

 Dougalewicz, 113 A.3d 817, 827 (Pa. Super. 2015) (relying on "fundamental rule[s] of law" in

 analyzing whether a search warrant for information from a cell phone was overbroad);

 Commonwealth v. Proetto, 771 A.2d 823, 830 (Pa. Super. 2001) (holding that, based on existing

 case law regarding reasonable expectation of privacy, chatroom conversations between a

defendant and victim did not invoke constitutional protections).

       Generally, search warrants "must name or describe with particularity the property to be

seized and the person or place to be searched." Dougalewicz, 113 A.3d at 827 (quoting Orie, 88

A.3d at 1002-03). "Particularity" under the Pennsylvania Constitution means that "a warrant

must describe the items as specifically as is reasonably possible." Id. (quoting Orie, 88 A.3d at

1002-03). When a court is presented with a challenge to a search warrant for being overly broad,

"[it] must initially determine for what items probable cause existed. The sufficiency of the

description must then be measured against those items for which there was probable cause. Any

unreasonable discrepancy between items for which there was probable cause and the description

in the warrant requires suppression." Id. (quoting Orie, 88 A.3d at 1002-03). "Probable cause

[for a search warrant] exists where the facts and circumstances within the affiant's knowledge

and of which he has reasonably trustworthy information are sufficient in themselves to warrant a

man of reasonable caution in the belief that a search should be conducted." Commonwealth         v,


Jones, 988 A.2d 649, 655 (Pa. 2010) (quoting Commonwealth         v.   Thomas, 292 A.2d 352, 357 (Pa.



                                                  29
  1972)), Determining the existence of probable cause is a totality of the circumstances
                                                                                         test where
  the reviewing court views the affidavit "in a common-sense, non -technical manner."
                                                                                      Id.

           The affidavit for the search warrant in the present case states that Ms. Kishbaugh gave

 police information regarding alleged sexual assaults by Defendants. Aff. of Probable
                                                                                      Cause, May
 1,   2015, ¶ 12. Furthermore, Ms. Kishbaugh related to police that she was in contact with

 Defendant Mable via "Facebook messenger" prior to and after the alleged sexual assaults. Id.

 While Ms. Kishbaugh indicated that she was in the physical presence of Defendant Mable from

 approximately the evening of June 24, 2015 until the early afternoon of June 25, 2015, she

 relayed that her communications with Defendant Mable began and continued beyond that time

frame. Aff. of Probable Cause, May I, 2015, $12, 5, 9, 10, 12. The search warrant was

authorized for   lap account information from the Facebook profile of Antoine James MABLE."
Appl. for Search Warrant and Authorization, May 1, 2015, p.      1   (emphasis in original).

          Based upon the affidavit of probable cause, we find that probable cause existed only for

Facebook messenger communications between Defendant Mable and Ms. Kishbaugh. The

information available to the affiant was that when Ms. Kishbaugh communicated with Defendant

Mable via Facebook, it was only through the Facebook messenger service, Aff, of Probable

Cause, May 1, 2015, ¶ 12. Furthermore, according to the affidavit, Ms. Kishbaugh had contact

with Defendant Mable via Facebook messenger "both prior to this crime occurring and after this

crime occurred." Id. Such information would lead a person of reasonable caution to conclude

that a search of the private messages between Defendant Mable and Ms. Kishbaugh should be

conducted. There is no indication in the affidavit of probable cause that Ms. Kishbaugh

communicated with Defendant Mable in any other manner on Facebook except via the

messenger service.



                                                 30
       Furthermore, while we understand Defendant Mable avers the timeframe is also overly

broad, we disagree. A warrant must contain descriptions that are "as specifien as is reasonably

possible?' Given the information the afliant gleaned from Ms. Kishbaugh, we find that a

description of all private messages between Defendant Mable and Ms. Kishbaugh would be "as

specific[] as is reasonably possible" under these circumstances. According to the information

given by Ms. Kishbaugh as contained in the affadavit, she could have had relevant

communications with Defendant Mable days or weeks prior to the alleged crimes. Thus, a

tailored timeframe would be inappropriate.

       For the foregoing reasons, Defendant Mable's Motion to Suppress is GRANTED in part

and DENIED in part. All information obtained from Defendant Mable's Facebook page is

suppressed except for any and all Facebook messenger communications between Defendant

Mable and Ms. Kishbaugh.

       Having addressed all issues before us, we enter the following order:




                                               31
                       COURT OF COMMON PLEAS OF MONROE COUNTY
                             FORTY-THIRD JUDICIAL, DISTRICT
                           COMMONWEALTH 01? PENNSYLVANIA



COMMONWEALTH OF PENNSYLVANIA                                   :   NO. 723 CR 2015

                 vs.

ANTOINE JAMES MABLE,

                                   Defendant                   :   Omnibus Pre -Trial Motions


                                             ORDER

       AND NOW, this 2th day of August, 2015, upon review of Defendant Antoine James

Mable's Omnibus Pre -Trial Motions, and in consideration of the record, the evidence presented

at the hearing on said motions, and the parties' subsequent briefings:

       1.    Defendant's "Motion to Bar 42 Pa. C.S.A.   §   5920 Expert Testimony" is DENIED.

       2.    Defendant's "Motion to Compel Expert Report" is GRANTED. Attorney Rhodes

            shall prepare and submit to the attorney for the Commonwealth a report pursuant to

            Pa.R.E. 573(13)(2)(b) and the attorney for the Commonwealth shall provide that report

            to defense counsel on or before September 15, 2015.

       3.   Defendant's "Motion in Limine" to preclude reference to "Gang Affiliation" is

            DENIED.

      4.    Defendant's "Motion to Suppress Statements Made by Defendant" to the detective

            from the Monroe County District Attorney's Office is GRANTED in part and            ,


            DENIED in part. All statements made by Defendant Mable on May 29, 2015 are

            hereby suppressed and may not be used by the Commonwealth in its case -in -chief or

            on rebuttal. Any photographs taken on May 29, 2015 are not subject to suppression.


                                               32
       5,   Defendant's "Motion to Bar Gang Expert Testimony" is DENIED.

      6.    Defendant's "Motion to Suppress-Facebook" is GRANTED in part and DENIED

            in part. All information obtained from Defendant Mable's Facebook page is hereby

            suppressed except for any and all Facebook messenger communications between

            Defendant Mable and Ms. Kishbaugh.

      7.    Defendant's "Motion for Involuntary Psychiatric or Psychological Examination and

            to Compel Disclosure   of Psychiatric and Psychological Treatment Records" is

            DENIED.

      8.    Defendant's "Petition for Fees for Expert" is GRANTED. Defendant Mable is

            entitled to expert fees for the purpose of hiring a forensic psychologist. These fees

            have been granted by separate Order.

      9.    Defendant's "Motion in Liming to Preclude Use of the Conclusory Term 'Victim' is

            DENIED.

                                              B
                                                                                     ry
                                                                                     G-7)
                                                                                     cn      C>


                                                                                             7)

                                                                                     co TON, P,J,
                                                                                            -0
Cc:   Julieane Frey, Esq., ADA                                                        17
                                                                                            c_,
      Hillary A. Madden, Esq., Counsel for An     James Mable                               c:
      Holly B. Conway, Esq., Counsel for Christopher John Klement              '17
      turw2015-o026




                                                  33
0




                             COURT OF COMMON PLEAS OF MONROE COUNTY
                                   FORTY-THIRD JUDICIAL DISTRICT
                                 COMMONWEALTH OF PENNSYLVANIA



      COMMONWEALTH OF PENNSYLVANIA                                       :   NO. 723 CR 2015

                       vs.

     ANTOINE JAMES MABLE,

                                             Defendant                   :   Post-Sentence Motion


                                                       OPINION

             This matter comes before the Court on Antoine James Mable's ("Defendant") Post-

     Sentence Motion. Defendant has filed one motion titled "Motion for Modification of Sentence"

     but seeks multiple forms of relief Defendant has asked for modification of his sentence,'

     redaction of his Presentence Investigation Report ("PSI"), and a judgment of acquittal or new

     trial. The facts and procedural history is as follows:

             On March 9, 2016, after trial by jury, Defendant was convicted of two counts of

    Promoting Prostitution2 and one count of Conspiracy to Commit Promoting Prostitution3 in

    relation to the transportation of the victim, Jessica Kishbaugh, to Monroe County for the

    purposes of becoming a prostitute.4 The jury was hopelessly deadlocked on the remaining

    charges and this Court declared      a   mistrial on those charges for manifest necessity.5 As of the date

    of this Opinion, the Commonwealth has not pursued further prosecution or otherwise disposed of

      In his brief, Defendant withdrew the issue of an incorrect Prior Record Score, and thus no longer offers an
    argument for modification of his sentence on that ground.
    2 18 Pa. C.S.A. §§ 5902(6)(3) (felony), (b)(6) (misdemeanor).

      § 903(a)(1).
      Defendant's case was joined with CoDefendant Christopher Klement, 1376 CR 2014, however, Co -Defendant
    Klement entered a guilty plea in this case on October 5, 2015.
    5 The jury was hung on the following
                                           charges: Rape-Threat by Forcible Compulsion (§ 3121(a)(2)), Involuntary
    Deviate Sexual Intercourse-Forcible Compulsion (§ 3123(a)(I)), Aggravated Indecent Assault-Without Consent
    (§ 3125(a)(1)), Unlawful Restraint (§ 2902(a)(2)), and Indecent Assault-Without Consent (§
                                                                                                    3126(a)(1)).
                                                                                                 Mable, 723 CR 2015


     those charges.

              A PSI was prepared and on May 23, 2016, this Court sentenced Defendant to 15 to 30

     months incarceration for the Conspiracy charge, 15 to 30 months incarceration for the felony

     Promoting Prostitution charge, and 6 to 12 months incarceration for the misdemeanor Promoting

     Prostitution charge. The sentences on Conspiracy and felony Promoting Prostitution were

    ordered to run consecutively while the misdemeanor Promoting Prostitution was ordered to run

    concurrently, giving Defendant a total aggregate sentence of 30 to 60 months incarceration.

    Defendant received a time credit of 417 days.

             On June 2, 2016, Defendant filed the present Post -Sentence Motion. We held a hearing

    on July 13, 2016, wherein no evidence was presented by either party. Counsel made argument

    and we directed briefs to be filed within 30 days. We allowed the Commonwealth an additional

    14   days to file a response.6 Defendant filed his brief a week late, on August 19, 2016. As of the

    date of this Opinion, the Commonwealth has failed to file a responsive brief.

             In his brief, Defendant breaks down his argument into the following issues: (1) whether

    the evidence was sufficient to find Defendant guilty of Promoting Prostitution; (2) whether the

    evidence was sufficient to find Defendant guilty of Conspiracy; (3) whether Defendant's PSI

    should be redacted; and (4) whether this Court should grant a judgment of acquittal or order a

new trial on the charges of which Defendant was found guilty. As Defendant's first, second, and

fourth issues are interrelated, we will address them together. We note that Defendant did not

brief any argument with regard to modification of his sentence, however, as that request was

included in his Post -Sentence Motion, we will address            it   last.



6 We note that Defendant's brief was necessary in order for this Court to render an informed decision for the same
reasons we gave the Commonwealth an additional 14 days to respond: Defendant's Motion was too vague to
determine the specific relief Defendant sought, particularly with regard to Defendant's request to redact the PSI.
Moreover, defense counsel was not able to sufficiently clarify any of the issues at the hearing.
                                                                                             Mable, 723 CR 2015


           1.      Sufficiency of the Evidence

           Defendant argues that the evidence produced at trial was insufficient for the jury to find

  him guilty of Promoting Prostitution because there was no evidence presented that Defendant

  was "engaged in the business of prostitution." Def.'s Br., p. 4. Similarly, Defendant argues that

  there was insufficient evidence to find him guilty of Conspiracy because the Commonwealth

  presented no evidence that Defendant entered into an agreement with Co -Defendant Klement, or

  any other person, to transport Ms. Kishbaugh to Monroe County for the purposes of
                                                                                    promoting
  her prostitution. Def.'s Br., p. 9.

         The Commonwealth, having failed to file a brief or make argument at the hearing, has no

 response.

         In reviewing the sufficiency of the evidence, we must determine whether the evidence,

 and all reasonable inferences derived therefrom, when viewed in the light most favorable to
                                                                                             the
 Commonwealth as verdict winner, supports the jury's finding of all of the elements of the

offense beyond a reasonable doubt. Commonwealth            v.   Eichinger, 915 A.2d 1122, 1130 (Pa.

2007); Commonwealth         v.   Spotz, 759 A.2d 1280, 1283 (Pa. 2000). "This standard is equally

applicable to cases where the evidence is circumstantial rather than direct so long as the

combination of the evidence links the accused to the crime beyond a reasonable doubt."

Commonwealth      v.   Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (quoting Commonwealth v.

Sanders, 627 A.2d 183, 185 (Pa. Super. 1993)). Moreover, the facts and circumstances need
                                                                                          not
be absolutely incompatible with the defendant's innocence. See Commonwealth             v.   Cruz-Centeno,

668 A.2d 536, 539 (Pa. Super. 1995). The question of any doubt is for the fact finder
                                                                                      unless the

evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be
                                                                                             drawn
from the combined circumstances. See         W.




                                                      3
                                                                                                     Ntable, 723 CR 2015


             To he found guilty of Promoting Prostitution under
                                                                subsection (b)(3), the Commonwealth
    had to prove beyond a reasonable doubt that Defendant
                                                          encouraged, induced, or otherwise

    intentionally caused another to become or remain a prostitute.           18   Pa. C.S.A.   §    5902(b)(3).
    Similarly, to be found guilty of Promoting Prostitution under subsection
                                                                             (b)(6), the
    Commonwealth had to prove beyond a reasonable doubt that Defendant
                                                                       transported a person into
   or within the Commonwealth with the intent to promote the
                                                             engaging in prostitution by that
   person, or procuring or paying for transportation with that intent.            §   5902(6)(6).
            The evidence presented at trial, viewed in the light most
                                                                      favorable to the Commonwealth,
   establishes the following:

            In June   of 2014, Defendant and     Co -Defendant Klement contacted Ms. Kishbaugh, asking

  if she would like to make money as a prostitute in
                                                     Monroe County. Notes                   of Testimony, Jury
  Trial 3/7/16, pp. 54-56 [hereinafter "NT., Day           1, p.      ."]. Over the course of several

  conversations with Defendant and Co -Defendant Klement, Ms. Kishbaugh
                                                                        was informed that the
  two men would be her pimps and that they would pick her up
                                                             from Scranton and transport her to

 Monroe County. N.T., Day        1, pp.    56-58. Additionally, Ms. Kishbaugh understood that as part of

 this arrangement, Defendant and Co -Defendant Klement would
                                                             protect her in exchange for half
 of the money she made as a prostitute.        NJ., Day     1, pp.   58-59. Ms. Kishbaugh agreed to this

 arrangement and Co -Defendant Klement picked Ms. Kishbaugh up from
                                                                    her home in Scranton
on June    24,2014. N.T., Day     1, pp.   59,69-70. On the way front Scranton to Monroe County, Co -
Defendant Klement also picked up Defendant, and the group went to
                                                                  a trailer home.' N.T., Day
1, p.   60. While at this home, Defendant and Co -Defendant Klement
                                                                    sexually assaulted Ms.




 Through testimony other than Ms. Kishbaugh's, the Commonwealth
                                                                presented evidence that this trailer home was
in Polk
      Township, Monroe County See N.T., Day 1, pp. 153, 155-160.

                                                       4
                                                                                                      Mable, 723 CR 2015


   Kishbaugh.s N.T., Day I, pp. 65-69,77-79. Co -Defendant Klement forced Ms. Kishbaugh to

   perform oral sex on him and Defendant forced Ms. Kishbaugh to receive oral sex from him and

   to have vaginal sex with him. N.T., Day             1,   pp.   65-69,77-79. These assaults were in response to
   Ms. Kishbaugh changing her mind about the arrangement, making Defendant angry that he had

   put time and effort in to bringing Ms. Kishbaugh to Monroe County to make money as a

  prostitute. See N.T., Day       1, p. 65.


           Through the night of the 24th and into the morning of the 25th, Defendant and Co -

  Defendant Klement did not permit Ms. Kishbaugh to leave the trailer home, despite her

  continued insistence that she had changed her mind. N.T., Day                  1,   pp. 70-74. Defendant and Co -

 Defendant Klement hit Ms. Kishbaugh and restricted access to her cell phone in attempts to

 make her stay in the home. N.T., Day            1,   pp. 73-74. Finally, Trooper William Patton testified as a

 gang expert, presenting evidence that Defendant and Co -Defendant Klement were members of a

 gang, the Black P -Stones, that participated in an activity known as "gorilla pimping," wherein

 young, impressionable girls would be lured into prostitution by gang members and not pemiitted

 to leave either by force, threat      of force, or promise of drugs, while the gang members earned

 money, through the girls' prostitution, for the gang.9 Notes of Testimony, Jury Trial 3/8/16, pp.

 105-06,112-13 [hereinafter "N.T., Day                2, p.


   We understand that thejury did not find Defendant guilty of the alleged sexual assaults, however, in viewing
                                                                                                                     the
 evidence in the light most favorable to the Commonwealth on the charges the jury did find beyond a reasonable
 doubt, we do not decide the issue of Ms. Kishbaugh's credibility and consider the sexual activity as forced, per her
 testimony. See Cruz -Centeno, 668 A.2d at 539. ("It is the province of the trier of fact to pass upon the
                                                                                                           credibility of
 witnesses and the weight to be accorded the evidence produced." (quotation omitted)).
 9 Defendant avers in his brief that the jury
                                              rendered guilty verdicts solely on the basis of Trooper Patton's testimony
 regarding Defendant's gang activity. Def 's Br., p. 6. We are cognizant that this evidence cannot form the basis of a
 guilty verdict on the grounds that Defendant has the propensity to commit crime, as such a conclusion would be
 against the Rules of Evidence. See Pa.R.E.404(b). However, as we stated in our Omnibus Opinion in this case, such
 evidence can be used to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
 mistake, or lack of accident." Omnibus Opinion, 8/26/15, p. 22 (quoting Rule 404(b)(2)). Furthermore, the jury was
 instructed to view such evidence only in this limited manner during the jury charge. Notes of Testimony, 3/9/16, pp.
 82-83 [hereinafter "NJ., Day 3, p.            We presume the jury followed our instructions, see Commonwealth v.
Jones, 668 A.2d 491,503-04 (Pa. 1995), and we now view the evidence of Defendant's gang membership in tlIC
MC way.

                                                                  5
                                                                                                   lvlable, 723 CR 2013


             The above evidence, viewed in the light most favorable to the Commonwealth,

      establishes, beyond a reasonable doubt, that Defendant committed both counts of Promoting

      Prostitution. Defendant's knowledge of and involvement in transporting Ms. Kishbaugh to the

     trailer home where she was subsequently forced to stay and perform sexual acts is sufficient to

     support such a conviction and is not so weak and inconclusive that, as a matter of law, no

     probability of fact can be drawn from the combined circumstances. See Cruz -Centeno, 668 A.2d

     at 539. These convictions are further supported by the evidence of Defendant's gang
                                                                                         membership
     in that his actions in promoting Ms. Kishbaugh's prostitution were motivated
                                                                                  by such

     membership, thereby also indicating his intent to engage in such promotion, his lack of mistake

     in doing so, and his knowledge that such promotion was occurring. We are satisfied that the

     evidence was sufficient to convict Defendant of both counts of Promoting Prostitution.1°

            We further find the evidence was sufficient to convict Defendant of Conspiracy to

 commit Promoting Prostitution. "A conviction for criminal conspiracy is sustained where the

 Commonwealth establishes that the defendant entered an agreement to commit or aid in an

 unlawful act with another person or persons with a shared criminal intent and an overt act was

 done in furtherance of the conspiracy." Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.

 Super. 2002) (citing 18 Pa. C.S.A.       §   903). In this case, Defendant was charged with Conspiracy,

generally, but the jury found him guilty only of Conspiracy to commit Promoting Prostitution.

Thus, the only agreement we need to consider would be an agreement between Defendant and

another person to commit the crime of Promoting Prostitution.

          When presenting evidence to show          a   defendant made a criminal agreement with another,


I°Additionally, although Defendant did not physically drive the vehicle that transported Ms. Kishbaugh, he can
                                                                                                               still
be guilty of the misdemeanor Promoting Prostitution charge through accomplice liability. See Comniomvealtb v.
Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002). However, in any event, Defendant's individual participation in
arranging for Ms. Kishbaugh's transportation, for the purposes of prostitution, makes him guilty of Promoting
Prostitution. See 18 Pa. C.S.A. § 590.2(6)(6).


                                                          6
                                                                                        Mable, 723 CR 2015


   the Commonwealth will typically not have direct evidence of such
                                                                    agreement, and thus, "[a]
   conspiracy is almost always proven through circumstantial evidence." Id.
                                                                            The Superior Court has
   established four factors for courts to consider when deciding whether the
                                                                             evidence establishes
   that a conspiratorial agreement was formed: "(t) an association between
                                                                           alleged conspirators; (2)
   knowledge of the commission of the crime; (3) presence at the scene of
                                                                          the crime; and (4) in
  some situations, participation in the object of the conspiracy." Id. (quoting
                                                                                Commonwealth v.
  Olds, 469 A.2d 1072,1075 (Pa. Super. 1983)). "The presence of such
                                                                     circumstances may furnish
  a web of evidence linking an accused to an alleged conspiracy
                                                                beyond a reasonable doubt when
  viewed in conjunction with each other and in the context in which they
                                                                         occurred." Id.
  Additionally, "[o]nce there is evidence of a conspiracy, conspirators are liable
                                                                                   for acts of co-
 conspirators committed in furtherance of the conspiracy." Id.

         In the present case, the evidence presented showed "an
                                                                association between alleged
 conspirators." Not only did Co -Defendant Klement pick up and drive
                                                                     Defendant to the trailer
 home, N.T., Day I, pp. 69-70, but the two had gone to the same high school, N.T., Day
                                                                                                  1, p.   52,
 82, seemed to live in the same home, N.T., Day I, p. 75, and were
                                                                   known to be members of the

same gang. N.T., Day    1,   p. 83. Furthermore, both Defendant and Co -Defendant Klement had

been in contact with Ms. Kishbaugh about the same plan to bring her to
                                                                       Monroe County for

prostitution. N.T., Day 1, pp. 54-56. The evidence also showed Defendant had
                                                                             "knowledge of
the commission of the crime." Defendant was involved in the initial
                                                                    communications with Ms.

Kishbaugh and explained his role as a pimp. N.T., Day     1,   pp. 54-59. Indeed, in his brief,

Defendant emphasizes that Ms. Kishbaugh was clear that her intentions upon arrival in
                                                                                      Monroe
County were to become a prostitute, Def.'s Br., p. 7, and Ms. Kishbaugh
                                                                        candidly testified to the
same at trial. N.T., Day I, pp. 57-58. Further, the evidence at trial clearly
                                                                              established, and



                                                  7
                                                                                     Mable, 723 CR 2015


   Defendant does not deny, see Def's Br., pp. 8-10, his "presence at the scene of the
                                                                                       crime."
  Lastly, the evidence showed Defendant's "participation in the object of the
                                                                              conspiracy." By
  arranging for transportation, not allowing Ms. Kishbaugh to leave, and forcing
                                                                                 her to perform

  sexual acts, with the ultimate goal that she become a prostitute, Defendant
                                                                              participated in the
  conspiracy to promote Ms. Kishbaugh's prostitution.

         We understand that Defendant emphatically argues "mere presence at
                                                                            the scene of an

  incident involving purported criminal activity is insufficient to demonstrate an individual's

 guilt." Def.'s Br., p. 10. While we agree with that statement generally, see Lambert, 795
                                                                                           A.2d at

 1016, the evidence in Defendant's case, as discussed above, shows much more than his
                                                                                      "mere
 presence." The case Defendant cites to support this argument, Commonwealth v. Mills, 478
                                                                                          A.2d
 30 (Pa. Super. 1984), is readily distinguishable.

        In Mills, the defendant was charged with conspiring with his co-defendant,
                                                                                   William Gola,
 to sell methamphetamine to a Confidential Informant ("CI") and an undercover
                                                                              agent from the

 Bureau of Narcotics Investigation ("agent"). Mills, 478 A.2d at 31. When Mills arrived at Gola's

apartment, the CI and agent were already there and had spoken with Gola about procuring

methamphetamine from a man named "Karl."        Id.   When "Karl" could not be reached, Mills

offered to sell the two men methamphetamine from the shipment he was to receive later that

evening, but the offer was declined and the CI and agent returned to their car. Id. at 32, At the

agent's request, the CI reentered Gola's apartment and asked him to come to the car. Id. When

Gola came outside, Mills came with him and the four men proceeded to drive around looking for

"Karl" and a quantity of methamphetamine. Id. No drugs or money were exchanged, however,

Mills and Gola were both charged with Conspiracy approximately one month later. Id. at 31-32.

       The Superior Court found that Mills could not be found guilty of Conspiracy because



                                                 a
                                                                                        ?viable, 723   CR 2015


      "the Commonwealth's evidence, direct and circumstantial, failed to
                                                                         prove the existence of a
      conspiracy between (Mills] and Gola." Id. at 33 (emphasis added). The
                                                                            Superior Court noted that
      the evidence showed Mills was aware the CI and agent were
                                                                seeking methamphetamine and that
      Mills was willing to independently sell this substance to them. Id.
                                                                          However, the Court could not
      conclude from the evidence before it that Mills and Cola had formed an
                                                                             agreement to sell the
  methamphetamine together or were working to accomplish that common goal. Id. The
                                                                                   Court also
  noted that there was no evidence of prior dealings between Mills and the CI, no
                                                                                  statements from
  Mills or Cola that they were, or had ever, worked together, and no evidence
                                                                              that Mills would
  participate or profit from the transaction between Gola and the CI and agent. Id.

            Defendant's case is very different, While there may not have been direct
                                                                                     evidence of
  statements indicating Defendant and Co -Defendant Klement were working
                                                                         together to
 accomplish a common, criminal goal, the circumstantial evidence indicates these
                                                                                 two men had an
 agreement. Defendant and Co -Defendant Klement were members of the same
                                                                         gang and engaged
 together in activity that correlated with the gang's methods of "gorilla pimping." See
                                                                                        NT., Day
 1,   pp. 54-59; N.T., Day 2, pp. 105-06,112-13. Both Defendant and Co
                                                                       -Defendant Klement
 were in contact with Ms. Kishbaugh to settle details    of the arrangement. N.T., Day   1, pp.   54-56.
Both men reassured Ms. Kishbaugh that they would protect her and expect a
                                                                          cut of her profits in

return. N.T., Day    1, p.   58-59. Finally, both men accompanied Ms. Kighbaugh to the trailer home

where she was subsequently assaulted and kept from leaving. N.T., Day
                                                                            1, pp.   59-60,67. In
Mills, there was no evidence, direct or circumstantial, that showed any
                                                                        connection between Mills
and Gola. Mills, 478 A.2d at 33. Where the Superior Court in Mills
                                                                   faced a record devoid of

connection between co-defendants, we face a very different scenario here.
                                                                          Thus, Mills is

distinguishable and Defendant's argument in reliance thereon fails.



                                                    9
                                                                                                     Mable, 723 CR 2015



               Defendant also alleges the Commonwealth cannot rely on his "purported gang affiliation"

      to establish the existence     of an agreement sufficient     to   support a conviction for Conspiracy.

      Def.'s Br., p.   11.11   However, this argument has no merit as the four factors from Lambert were

      supported by independent, non -gang related evidence, which we have discussed above, at length.

     See Lambert, 795 A.2d at 1016. Despite Defendant's insistence, evidence of his gang affiliation

     was not the only evidence presented against him.

              For the reasons stated above, Defendant's Motion for a New Trial or Judgment of

     Acquittal based on insufficiency of the evidence is DENIED.

             II.       Redact Defendant's PSI

             Defendant argues there are certain portions of his PSI that should be redacted because

 they are prejudicial. Def.'s Br., pp. 15-16. In his Motion, Defendant alleges prejudice would

 come in the form of forced sexual offender treatment wherein he would have to "admit" to

 certain actions before he could be cleared as successfully completing the treatment. Def.'s Post -

 Sentence Mot., ¶ 16(e). Defendant argues that Pennsylvania Rule of Criminal Procedure 703(E)

 would allow this Court to redact these portions of his PSI so that he will not suffer any prejudice

 when said report is forwarded to the Department of Corrections. Def.'s Post -Sentence Mot.,

 16(d). The Commonwealth, having failed to file a brief or make argument at the hearing, has no

response.

            Rule 703 governs the disclosure of PSIs. Pa.R.Crim.Pro. 703. This Rule states that PSIs

are not     of public record and that they shall be disclosed            to limited parties, under narrow

circumstances. Id. Rule 703 further allows for a defendant or the Commonwealth to allege

factual inaccuracies contained within the report and requires that the sentencing judge order any



     Again, we note that the jury was instructed to view the evidence of Defendant's gang activity not
                                                                                                       as evidence that
he   committed a crime, but as evidence that his gang affiliation may show his intent, motive, knowledge, etc.


                                                            I0
                                                                                                         Mable, 723 CR 2015


     necessary corrections. Rule 703(B). Subject to any corrections made
                                                                         at the time of sentencing,
     PSIs are subsequently forwarded to relevant correctional
                                                              institutions and departments of

    probation and parole. Rule 703(C). The confidentiality and non-public
                                                                          nature of these reports
    remains throughout their dissemination. Id. Subsections (D) and
                                                                    (E) of the Rule allow for the

    sentencing judge to impose additional disclosures or confidentiality
                                                                         measures, as necessary. Rule
    703(D), (E). Specifically, subsection (E) states that           Itjhe sentencing judge         may at any time
   impose further conditions of confidentiality on a person or agency
                                                                      receiving a report" pursuant to
   Rule 703. Rule 703(E).

            We do not find that Defendant has provided sufficient evidence
                                                                           to warrant alteration                       of
  his PSI pursuant to Rule 703. At his sentencing hearing, Defendant and
                                                                         his counsel were given
  the opportunity to make any corrections to the PSI or to object to
                                                                     any portion of it. See Rule

  703(B). No corrections were requested nor any objections lodged and
                                                                      we imposed sentence.12
  The plain text of subsection (E) allows for this Court to "impose
                                                                    further conditions of
  confidentiality on a person or agency," not on the PSI document itself.
                                                                          Rule 703(E).
 Furthermore, Defendant has presented no evidence of the alleged prejudice he
                                                                              would suffer
 should his PSI remain unredacted, save for his own averments and
                                                                  counsel's "experience in the
 past." Def.'s Post-Sentence Motion, ¶ 16(e). Whatever "sexual
                                                               offender treatment" Defendant

 alleges will be imposed by the Department of Corrections remains
                                                                  unknown. Defendant states
 that he "will likely be ordered to attend and complete sexual
                                                               offender treatment by the DOC,"
Def.'s Post -Sentence Mot., ¶ 16(e) (emphasis added), but has provided no
                                                                          proof that such
treatment has been or will be ordered.

12 Defense counsel did indicate
                                 at sentencing that Defendant had an issue with one of the
                                                                                              adult offenses listed in his
PSI: the offense from October 21,2009, in Brodheadsville,
                                                             Pennsylvania. Defendant indicated at sentencing that he
did not believe that was an accurate record. Defense
                                                      counsel indicated on the record that he would check into that
offense and that if there was a problem, he would address it in his post
                                                                         -sentence motions. As no such objection or
correction was raised in Defendant's PostSentence Motion, we do not
                                                                          consider this issue to be a requested
correction.
                                                                                                   Mabie, 723 CR 2015


              According to our Sentencing Order, we have not required Defendant to
                                                                                   participate in or
  complete any treatment offered by the Department of Corrections. See
                                                                       Sentencing Order,
  5/23/16. Furthermore, Defendant's incarceration, as far as this Court is
                                                                           concerned, is not
  contingent on the successful completion of any such treatment. Id. Lastly,
                                                                             Defendant's
  convictions do not carry a statutory requirement of sexual offender treatment, or
                                                                                    even Megan's
  Law registration. See 42 Pa. C.S.A.      §   9718.1(a)(5) (requiring sexual offender treatment "if the

 person is incarcerated in a State institution for        ...      [p)rostituti on, as defined in section 5902   .   .   if
 the offense involved a minor under 18 years            of age" (emphasis added)); § 9799.14(c)(2)
 (requiring Tier II registration only for Promoting Prostitution under subsection (b.1),
                                                                                         relating to
 prostitution of minors).

         To the extent that the Department of Corrections and/or Board of Probation
                                                                                    and Parole

 has imposed, or will impose, additional requirements on Defendant, he must take
                                                                                 those issues up
with the appropriate authority. See, e.g., Johnson            v.   Pennsylvania Board of Probation and

Parole, 532 A.2d      SO,   53-54 (Pa. Cmwtth. 1987) (holding "a prisoner may not obtain judicial

review of a Board order denying a parole application" but must instead follow the
                                                                                  procedures
established by the Board); Commonwealth            v.   Danysh, 833 A.2d 151, 152-53 (Pa. Super. 2003)

(holding that civil actions, actions in equity, actions in mandamus, and petitions for
                                                                                       review of
governmental determinations, specifically those involving the Department of Corrections, fall

within the exclusive subject matter jurisdiction of the Commonwealth Court).

       Accordingly, Defendant's Motion to redact his Pre -Sentence Investigation Report is

DENIED.

       III.       Modification of Sentence

       Defendant offers two reasons this Court should modify his sentence: (1) this Court



                                                         12
                                                                                              Mabte, 723 CR2015


    improperly relied on Defendant's conduct while incarcerated
                                                                and out on bail as aggravating

   circumstances and (2) even if we properly considered Defendant's
                                                                    conduct while incarcerated
   and out on bail, such aggravating circumstances were
                                                        greatly outweighed by mitigating

   circumstances. Defendant avers that     in   properly weighing the aggravating and mitigating

   circumstances, he should have received a lesser minimum sentence.
                                                                     The Commonwealth, having
   failed to file a brief or make argument at the hearing, has no
                                                                  response.

          Sentencing is within the sound discretion of the trial court and will
                                                                                not be disturbed on
  appeal absent a manifest abuse of discretion. Commonwealth           v.   McAfee, 849 A.2d 270, 275 (Pa.
  Super. 2004). Abuse of discretion will be found if the sentence is
                                                                     "manifestly unreasonable, or
  the result of partiality, prejudice, bias or ill -will." Id. When
                                                                    fashioning a sentence, the trial court
  is directed by statute to consider certain factors.
                                                      These factors are: (1) protection      of the public;
 (2) "the gravity of the offense as it relates to the impact on
                                                                the life of the victim and on the

 community;" and (3) Defendant's rehabilitative needs. 42 Pa. C.S.A.            §   9721(b). A sentence can
 be invalid if the sentencing court "relied in whole or in
                                                           part on an impermissible factor."

 Commonwealth     v.   Berrigan, 535 A.2d 91, 105 (Pa. Super. 1987). Furthermore, when
                                                                                       imposing a
sentence for a misdemeanor or felony, the sentencing court must
                                                                state on the record its reasons

for the sentence imposed. 42 Pa. C.S.A.         §   9721(b). The sentencing judge may order a PSI report

which must "include information regarding
                                          the_circumstances of the offense and the character of
the defendant sufficient to assist the judge in determining
                                                            sentence." Pa.R.Crim.Pro. 702(A).
        A PSI was prepared by Probation Officer Kim Borger,
                                                            wherein the following aggravating

circumstances were listed: (I) Defendant was arrested, pleaded guilty, and
                                                                           was sentenced for
Public Drunkeness while on bail in this case; (2) Defendant
                                                            has had numerous disciplinary

infractions in the Monroe County Correctional Facility while
                                                             incarcerated in this case, resulting



                                                        13
                                                                                           Mable, 723 CR 2015


    in his confinement to the Restrictive Housing Unit
                                                       on two occasions; and (3) Defendant was

   arrested, pleaded guilty, and was sentenced for Assault by a
                                                                Prisoner and Simple Assault while
   incarcerated in this case. On May 23, 2016, we sentenced Defendant
                                                                      to 15 to 30 months
   incarceration for the Conspiracy charge,       15 to 30   months incarceration for the felony Promoting

   Prostitution charge, and 6 to 12 months incarceration for the
                                                                 misdemeanor Promoting
  Prostitution charge. The two felony sentences were run
                                                         consecutively and the misdemeanor
  sentence was run concurrently for a total, aggregate sentence of 30 to 60
                                                                            months incarceration.
          On the record at Defendant's sentencing hearing, we adopted
                                                                      the aggravating

  circumstances contained in the PSI. Defendant avers we improperly relied
                                                                           on irrelevant
  aggravating circumstances, namely, Defendant's behavior on bail
                                                                  and while incarcerated. As the

 Sentencing Court, we must consider not only the impact of a specific
                                                                      offense upon a specific
 victim and a specific community, but we must also consider the
                                                                general protection of the public
 from a defendant and a defendant's individual
                                               rehabilitative needs. 42 Pa. C.S.A.         §   9721(b). By
 including Defendant's behavior while on bail as an aggravating circumstance,
                                                                              we were
 considering the general protection of the public. Defendant was clearly
                                                                         unable to conform his
behavior to the laws which apply to all citizens or to the additional
                                                                      rules and regulations imposed
upon him as conditions of his bail. Thus, our consideration of his
                                                                   behavior while on bail in this
case was appropriate. Similarly, when we considered the
                                                        numerous disciplinary infractions and
criminal charges incurred by Defendant while he was incarcerated in this
                                                                         case, we were
considering his rehabilitative needs. Such    a   lengthy disciplinary record while incarcerated for

little over a year shows that Defendant had not yet reached a
                                                              point within that year where

incarceration was having   a   rehabilitative effect. Even as late as December of 2015, Defendant

was still getting into fights and unable to conform his
                                                        behavior to the rules and regulations of the
                                                                                                    Mable, 723 CR 2015


   Monroe County Correctional Facility. Thus, our consideration of Defendant's disciplinary

   history while incarcerated was appropriate.

            Having found that we relied on proper aggravating circumstances, we move on to address

   whether we should have found that said aggravating circumstances were outweighed by the

   mitigating circumstances.'3 On the record at Defendant's sentencing hearing, while we did not

  specifically state Defendant's age was a mitigating circumstance, we did consider Defendant's

  young age -25 years       old-when we imposed sentence. Further, we considered that, prior to his
  adoption at 8 years old, Defendant had a troubled childhood:4 Nevertheless, we stated that the

  recommendations contained in the PSI were entirely appropriate for this case, given the

 aggravating and mitigating circumstances. Accordingly, we imposed aggravated range sentences

 on all three crimes.15 We clearly and concisely stated our reasons for imposing aggravated range

 sentences on the record and we have not been presented with any new or additional information

 that would warrant a different decision. Accordingly, Defendant's Motion to Reconsider

 Sentence is DENIED.

          Having addressed all issues before us, we enter the following order:




 "The PST did not list any mitigating circumstances nor did defense counsel argue for any such circumstances at
sentencing.
 14 We did note, however, that while
                                     Defendant may have had a rough life prior to his adoption, his life after adoption
was markedly more stable and that from then on, Defendant had a good childhood.
IS The Sentencing Guideline ranges for Defendant's
                                                      Conspiracy and felony Promoting Prostitution charges were
identical: with an Offense Gravity Score of 5, the standard range was to 12 months, with an
                                                                       1                       aggravated range of
plus or minus 3. The standard Sentencing Guideline range for Defendant's misdemeanor Promoting
                                                                                                      Prostitution
charge, with an Offense Gravity Score of 3, was restorative sanctions to 6 months, with an aggravated range of plus
or minus 3. These calculations were provided correctly in the PSI, given that Defendant had a
                                                                                               Prior Record Score of
I. Additionally, Defendant does not seem to dispute these calculations, but instead
                                                                                    challenges our discretion in
imposing aggravated range sentences. See Def.'s Post -Sentence Mot., ¶'J 10-15.

                                                          IS
                         COURT OF COMMON PLEAS OF MONROE
                                                           COUNTY
                               FORTY-THIRD JUDICIAL DISTRICT
                             COMMONWEALTH OF PENNSYLVANIA



      COMMONWEALTH OF PENNSYLVANIA                                :   NO.723 CR 2015
                   vs.

      ANTOINE JAMES MAIILE,

                                     Defendant                :       Post-Sentence Motion


                                               ORDER
          AND NOW, this 19th day of September, 2016,
                                                     upon review of Defendant's Post -
  Sentence Motion, and in consideration of the record
                                                      and the parties' subsequent briefings,

 Defendant's motion is DENIED.

          Defendant is advised that he has thirty (30) days from the date
                                                                          of this Order within
 which to file an appeal with the Superior Court of
                                                    Pennsylvania.

                                                         COURT




                                                                                    HINGTON, P.J.


cc:      Julieane Frey, Esq., ADA
         Thomas Sundmaker, Esq., Counsel fo                                             rn
                                                                                        --0
                                                                                              1:41
                                                 efendant
         Clerk of Courts
        MPW2016-0038                                                                   (.0    di
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