Com. v. Mitchell, F.

J-S67026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

FRED AUGUSTA MITCHELL

Appellant No. 578 WDA 2014

Appeal from the Judgment of Sentence April 3, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001539-2013

BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JANUARY 22, 2015

Appellant, Fred Augusta Mitchell, appeals from the April 3, 2014

aggregate judgment of sentence of 40 to 80 years’ imprisonment imposed

after he was found guilty by a jury of rape by forcible compulsion, rape of a

child, involuntary deviate sexual intercourse (IDSI) by forcible compulsion,

IDSI with a complainant who is less than sixteen years of age, aggravated

indecent assault by forcible compulsion, aggravated indecent assault against

a complainant who is less than thirteen years of age, indecent assault

against a complainant who is less than thirteen years of age, and indecent

____________________________________________

*
Former Justice specially assigned to the Superior Court.
J-S67026-14

assault by forcible compulsion1. After careful review, we are constrained to

vacate Appellant’s sentence and remand for resentencing. We affirm

Appellant’s conviction on all other bases.2

We summarize the relevant factual and procedural background of this

case as follows. On February 24, 2012, M.N, then four years old, went to

the doctor for a routine checkup. N.T., 1/9/14, at 53. While in the doctor’s

office, she informed Joyce Ames, her paternal grandmother, that her

“cookie” hurt. Id. She indicated that she was referring to her genital area.

Id. She also referred to her anus as “celery.” Id. She continued to

expound that Appellant put his “peanut” in her “cookie,” and she explained

that “Fred” told her about those terms. Id. 53-54. The doctor instructed

Ames to take M.N. to Children’s Hospital for an evaluation. Id. at 54.

On March 13, 2012, M.N. was interviewed at A Child’s Place at Mercy

by Sara Gluzman, a forensic interviewer trained in evaluating and

interviewing children who are suspected victims of abuse. Id. at 90-91.

During the course of the interview, Gluzman asked M.N. if there are places

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1
18 Pa.C.S.A. §§ 3121(a)(1), 3121(c), 3123(a)(1), 3123(a)(7), 3125(a)(2),
3125(a)(7), 3126(a)(7), and 3126(a)(2), respectively.
2
We also order the record in this case be sealed. See 42 Pa.C.S.A.
§ 5988(a) (providing that, in cases involving sexual or physical abuse of
minors, “any records revealing the name of the minor victim shall not be
open to public inspection[]”).

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people are not supposed to touch.3 Id. at 101. M.N., in response, drew a

picture and told Gluzman it was a “boob” and people are not supposed to

touch it. Id. Gluzman showed M.N. an anatomical depiction of the human

body, which she uses with all children she interviews, and asked M.N. what

she called different areas of the body. Id. at 102. M.N. used the term

“coochie.” When Gluzman asked what she uses “coochie” for, M.N.

explained her mother called it “peachie” and that it is used “to pee.” Id.

M.N. told Gluzman that Appellant put his “part” in her “peachie” and “butt.”

Id. at 106. M.N. also said it happened “[m]ore than one time.” Id.

Following the interview, Dr. Mary Carrasco, the director of A Child’s Place at

Mercy, performed an examination of M.N., which did not reveal physical

evidence of abuse.4

On September 16, 2013, the Commonwealth filed an information

charging Appellant with the aforementioned offenses. Criminal Information,

9/16/13, at 1-2. A three-day jury trial commenced on January 8, 2014.

M.N., Ames, M.N.’s mother, Gluzman, and Dr. Carrasco testified on behalf of

____________________________________________

3
The interview was recorded and played during the trial. The exchange
between M.N. and Gluzman during the interview is included in the transcript
of the trial.
4
Dr. Carrasco testified at trial as an expert in pediatric child abuse.
N.T.,1/9/14, at 119. She testified that the lack of physical findings “does
not mean nothing occurred. … [M]ost of the time, that is 94% of the time,
there will be no physical evidence of sexual abuse.” Id. at 120-121.

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the Commonwealth. After the Commonwealth rested, two defense witnesses

testified. On January 10, 2014, the jury found Appellant guilty of all charged

offenses.

Following the guilty verdicts, the Commonwealth filed its notice of

intention to seek mandatory sentences pursuant to 42 Pa.C.S.A. § 9718(a).5

The trial court conducted a sentencing hearing on April 3, 2014 and imposed

the mandatory minimum sentences sought by the Commonwealth.6

Appellant did not file post-sentence motions. On April 11, 2014, Appellant

filed the instant timely appeal.7

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5
Section 9718 provides for mandatory minimum sentences of, inter alia, not
less than ten years’ imprisonment for rape of a child and not less than ten
years’ imprisonment for any conviction under § 3123 (relating to IDSI),
when the victim is less than sixteen years of age. 42 Pa.C.S.A. § 9718(a).
6
Specifically, the trial court imposed sentences of twenty to forty years’
imprisonment on count two, rape of a child; ten to twenty years’
imprisonment on count three, IDSI by forcible compulsion; and ten to
twenty years’ imprisonment on count four, IDSI against a complainant who
is less than sixteen years of age, with each sentence to run consecutively.
The trial court determined count one merged with count two for the purpose
of sentencing, and no further penalty was imposed on the remaining counts.
Appellant was also sentenced to abide by the lifetime registration
requirements pursuant to Section 9799.23 of the Pennsylvania Sexual
Offender Registration and Notification Act.
7
Contemporaneously with filing the notice of appeal, though not directed by
the trial court, Appellant filed a concise statement of matters complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
Thereafter, on April 21, 2014, the trial court ordered Appellant to file a
statement of matters complained of on appeal within twenty-one days of the
order. Trial Court Order, 4/21/14. No further statement was filed by
Appellant. However, the trial court issued its Rule 1925(a) opinion on July
(Footnote Continued Next Page)

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On appeal, Appellant raises the following issues for our review.

I. Whether the evidence was legally and factually
insufficient to show that [Appellant] committed the
crimes of Rape, Forcible Compulsion, Rape of a
Child, IDSI Forcible Compulsion, IDSI Person Less
than 16 years of Age, beyond a reasonable doubt[?]

II. Whether the trial judge committed reversible
error in permitting [M.N.] to testify on the lap of her
grandmother, Joyce Ames, despite a sequestration of
witnesses and over defense counsel’s objection[?]

III. Whether the trial judge committed reversible
error in permitting the drawing made by [M.N.] and
the drawing by Forensic Interviewer, Sara Gluzman,
to come into evidence and to be viewed in the jury
deliberations, despite defense counsel’s objection, as
it was not provided in discovery by the
Commonwealth[?]

IV. Whether the trial judge committed reversible
error in failing to instruct the jury about improper
prosecutor remarks during a closing when
[Appellant] was called a “monster” and a “snake in
the grass,” despite an objection from counsel on the
basis of Commonwealth v. Joyner [365 A.2d 1233
(Pa. 1976)][?]

V. Whether the trial judge committed reversible
error in failing to instruct the jury on the failure to
make prompt complaint in certain sexual offenses,
when defense counsel specifically requested that the
jury instruction be given[?]

Appellant’s Brief at 6.

_______________________
(Footnote Continued)

1, 2014 and reproduced, verbatim, the issues raised in the statement of
errors complained of on appeal filed on April 11, 2014. See Trial Court
Opinion, 7/1/14, at 2.

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Our standard of review regarding challenges to the sufficiency of the

Commonwealth’s case is well settled. “In reviewing the sufficiency of the

evidence, we consider whether the evidence presented at trial, and all

reasonable inferences drawn therefrom, viewed in a light most favorable to

the Commonwealth as the verdict winner, support the jury’s verdict beyond

a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.

2014) (citation omitted). “The Commonwealth can meet its burden by

wholly circumstantial evidence and any doubt about the defendant’s guilt is

to be resolved by the fact finder unless the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn

from the combined circumstances.” Commonwealth v. Watley, 81 A.3d

108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation

omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we

must review “the entire record … and all evidence actually received[.]” Id.

(internal quotation marks and citation omitted). “Any doubts regarding a

defendant’s guilt may be resolved by the fact-finder unless the evidence is

so weak and inconclusive that as a matter of law no probability of fact may

be drawn from the combined circumstances.” Commonwealth v. Kearney,

92 A.3d 51, 64 (Pa. Super. 2014) (citation omitted), appeal denied, 101

A.3d 102 (Pa. 2014). “[T]he trier of fact while passing upon the credibility

of witnesses and the weight of the evidence produced is free to believe all,

part or none of the evidence.” Id. (citation omitted). “Because evidentiary

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J-S67026-14

sufficiency is a question of law, our standard of review is de novo and our

scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,

135 S. Ct. 145 (2014).

Appellant argues the evidence is insufficient because “[t]here are no

eyewitness accounts of the alleged events, other then [sic] that of [M.N.].”

Appellant’s Brief at 9. However, before we may address the merits of

Appellant’s claim, we must first address whether Appellant has preserved

this issue for review. Pennsylvania Rule of Appellate Procedure 1925(b)

requires Rule 1925(b) statements to “concisely identify each ruling or error

that the appellant intends to challenge with sufficient detail to identify all

pertinent issues for the judge.” Pa.R.A.P. 1925(b)(ii). Any issue not raised

in accordance with Rule 1925(b) is waived. Pa.R.A.P. 1925(b)(vii). Our

Supreme Court has clarified that Rule 1925(b) is a bright-line rule.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). Additionally, with

regard to claims pertaining to the sufficiency of the Commonwealth’s

evidence, we have stated as follows.

In order to preserve a challenge to the sufficiency of
the evidence on appeal, an appellant’s Rule
1925(b) statement must state with specificity
the element or elements upon which the
appellant alleges that the evidence was
insufficient. Such specificity is of particular
importance in cases where, as here, the appellant
was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.

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Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal

quotation marks and citations omitted; emphasis added).

In the instant case, Appellant’s challenge to the sufficiency of evidence

in his Rule 1925(b) statement asserted, “[t]he evidence was legally and

factually insufficient to show that [Appellant] committed the crimes of rape

forcible compulsion, rape of child, IDSI forcible compulsion, IDSI person less

than 16yrs [sic] of age, beyond a reasonable doubt.” Appellant’s Rule

1925(b) Statement, 4/11/14.8

Based on our cases, we are constrained to conclude that Appellant has

not complied with Rule 1925(b) because his concise statement fails to

specify which elements of the listed offenses the Commonwealth did not

prove beyond a reasonable doubt. See Garland, supra (concluding that

Garland’s bald Rule 1925(b) statement that “[t]he evidence was legally

insufficient to support the convictions[]” was non-compliant with Rule

1925(b)); Commonwealth v. Williams, 959 A.2d 1252, 1256 (Pa. Super.

2008) (concluding that Williams’ bald Rule 1925(b) statement that “[t]here

was insufficient evidence to sustain the charges of Murder, Robbery, VUFA

no license, and VUFA on the streets … [t]hus [Appellant] was denied due

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8
We note Appellant failed to append the Rule 1925(a) opinion of the trial
court as well as his Rule 1925(b) statement of matters complained of on
appeal to his brief, as required by Pa.R.A.P. 2111(b)(d).

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J-S67026-14

process of law[]” was non-compliant with Rule 1925(b)). Accordingly, this

claim is waived.9

Appellant next contends that the trial court committed reversible error

by permitting M.N. to testify on the lap of her grandmother, over defense

counsel’s objection, despite the trial court’s sequestration order. Appellant’s

Brief at 10. After, careful review, we conclude this argument is without

merit.

We are guided by the following principles when examining a challenge

to a sequestration order. “[Our] standard of review for a trial court’s

decision on sequestration of witnesses is abuse of discretion.”

Commonwealth v. Stevenson, 894 A.2d 759, 767 (Pa. Super. 2006)

(citation omitted), appeal denied, 917 A.2d 846 (Pa. 2007). Moreover, in

order for this Court to afford relief, an appellant must demonstrate that the

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9
We observe that had Appellant properly preserved this issue, he would not
be entitled to relief. In support of this claim, Appellant asks this court to
reweigh the evidence presented at trial. See Appellant’s Brief at 9.
Specifically, Appellant recounts, “[t]he defense presented two witnesses,
both of which testified that this could have been a scheme devised by
[M.N.’s mother]….” The jury in this case was free to credit M.N.’s testimony
and disregard the speculative testimony proffered by the defense. See
Kearney, supra. Moreover, “it is well-established that the uncorroborated
testimony of the complaining witness is sufficient to convict a defendant of
sexual offenses.” Commonwealth v. Castelhun, 889 A.2d 1228, 1232
(Pa. Super. 2005) (citations and quotation marks omitted). Therefore,
viewing the evidence in the light most favorable to the Commonwealth,
sufficient evidence was presented to find Appellant guilty of the charged
offenses beyond a reasonable doubt. See Patterson, supra.

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J-S67026-14

sequestration order challenged caused actual prejudice to him or her. Id.

(citation omitted).

We note, initially, Appellant cites this Court’s decision in Stevenson,

supra for the proposition that “[an] [a]ppellant must demonstrate that he or

she was actually prejudiced by a trial judge’s sequestration order before any

relief may be ordered.” Appellant’s Brief at 10 quoting Stevenson, supra

at 767. However, despite this correct observation of his burden, Appellant’s

argument is wholly lacking in any suggestion that actual prejudice resulted

in this decision of the trial court. See Appellant’s Brief at 10.

It is long established, “when briefing the various issues that have been

preserved, it is an appellant’s duty to present arguments that are sufficiently

developed for our review. The brief must support the claims with pertinent

discussion, with references to the record and with citations to legal

authority.” Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010),

appeal denied, 29 A.3d 796 (Pa. 2011) (citation omitted); Pa.R.A.P. 2119.

Likewise, “where an appellate brief fails to provide any discussion of a claim

with citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) cert. denied,

Johnson v. Pennsylvania, 131 S. Ct. 250 (2010). Appellant’s brief cites

one case in this argument, but Appellant fails to develop any pertinent

discussion applying the legal authority cited to the facts of the instant case.

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J-S67026-14

See Appellant’s Brief at 10; see Kane, supra. Nevertheless, we decline to

find waiver and will address Appellant’s argument.

Herein, the Commonwealth moved for the trial court to permit M.N.

to testify while seated on her grandmother’s lap. N.T., 1/9/14, at 6.10 The

defense argued in opposition to the motion that permitting this manner of

testimony would be “in direct opposition to the sequester rule ….” Id. at 12.

The trial court ultimately decided to grant the Commonwealth’s motion and

created an exception to its sequestration order to allow M.N. to testify while

seated on her grandmother’s lap. Id. at 15.

As noted, Appellant’s brief fails to specify how this exception to the

sequestration order resulted in prejudice. See Appellant’s Brief at 10.

However, Appellant correctly observes that he must prove actual prejudice in

order to receive relief. Id. Furthermore, “the purpose of sequestration is to

prevent a witness from molding his testimony with that presented by other

witnesses.” Stevenson, supra at 767 (citation omitted); see also Pa.R.E.

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10
The Commonwealth cited Commonwealth v. Pankraz, 554 A.2d 974
(Pa. Super. 1989), appeal denied, 563 A.2d 997 (1989) in support of its
motion. N.T., 1/8/14-10/14, at 6. On appeal, this Court did not find error
with a trial court’s decision to allow a child to testify while seated on her
grandmother’s lap. Pankraz, supra at 980. Specifically, this Court stated,
“[g]iven the trial court’s broad discretion, the tender age of the child, and
the nature of her testimony, we cannot say that it was an abuse of the trial
court’s discretion to permit the child to sit in her grandmother’s lap while
giving testimony.” Id.

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615 (stating a party, or the court, may order sequestration to prevent

witnesses from hearing the testimony of others).

Prior to the Commonwealth presenting its case, the trial court

conducted an in camera hearing of Ames to determine the substance of her

testimony. N.T., 1/9/14, at 27-30. Following the in camera hearing, the

Commonwealth called M.N. as its first witness.11 Id. at 30. Ames testified

next for the Commonwealth. Id. at 50. On cross-examination, Appellant’s

counsel asked Ames if she recalled the earlier testimony of M.N. Id. at 58.

Ames replied, “[n]o, I wasn’t paying attention. I was just, because I was

told to be just a chair and not move.” Id.

It is abundantly clear from our review of the transcripts that the trial

court took careful and appropriate action to ensure no prejudice occurred as

a result of the exception to the sequestration order. By conducting an in

camera hearing prior to M.N.’s testimony, the trial court was able to

determine if Ames molded her testimony to conform to her granddaughter’s.

Ames’ testimony at trial was consistent with her in camera testimony, and

therefore, Appellant cannot demonstrate that the exception to the general

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11
We note the trial court also gave Ames specific instructions with regard to
her presence during M.N.’s testimony to prevent any influence on M.N.’s
testimony. N.T., 1/9/14, at 31. “[Y]ou are not permitted to not only answer
any question for her but suggest to her in any way possible what the answer
should be.” Id. At the conclusion of M.N.’s testimony, the trial court noted
Ames did not make any verbal or nonverbal suggestions to M.N. during
M.N.’s testimony. Id. at 49.

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sequestration order resulted in prejudice to him. See Stevenson, supra at

767.

Accordingly, we conclude the trial court did not abuse its discretion

by making an exception to the general sequestration order, and Appellant

has failed to demonstrate that he was prejudiced by the exception. See id.

Therefore, Appellant’s claim is without merit.

Appellant’s third claim of error is a challenge to the admission of a

drawing done by M.N. and the anatomical depiction used by Gluzman during

her interview of M.N. into evidence on the basis that they were not provided

to Appellant in discovery. See Appellant’s Brief at 11.

We employ a narrow standard of review on challenges to the

admissibility of evidence. Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.

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

[I]n reviewing a challenge to the admissibility of
evidence, we will only reverse a ruling by the trial
court upon a showing that it abused its discretion or
committed an error of law. … To constitute
reversible error, an evidentiary ruling must not only
be erroneous, but also harmful or prejudicial to the
complaining party.

Id.

Appellant argues the admission of the drawings was error because,

“[b]ut for those pictures, the jury would have never known where the

alleged victim, [M.N.], was referring to when she used the words ‘cookie’

and ‘peach.’” Appellant’s Brief at 11. Appellant’s argument continues,

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“[M.N.] never told the Forensic Interviewer, Sara Gluzman, what those

terms, ‘cookie’ and ‘peach’ meant, or what body parts they referred to, other

then [sic] the two drawings.” Id.

It is well-settled that “the failure to raise a contemporaneous

objection to the evidence at trial waives that claim on appeal.”

Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013)

(emphasis added, citation omitted). In addition, “to preserve a claim of

error for appellate review, a party must make a specific objection to the

alleged error before the trial court in a timely fashion and at the appropriate

stage of the proceedings; failure to raise such objection results in waiver of

the underlying issue on appeal.” Commonwealth v. Akbar, 91 A.3d 227,

235 (Pa. Super. 2014) (citation omitted).

At trial, the Commonwealth presented testimony from Gluzman as well

as her videotaped interview with M.N. See N.T., 1/9/14, at 90-115. Prior to

playing the video of the interview, the Commonwealth asked Gluzman about

drawings that were produced and used throughout the interview. Id. at 92.

Counsel for Appellant objected on the basis that the drawings had not been

provided to the defense in discovery. Id. Counsel conceded that she had

notice of the recorded interview months before trial but argued she did not

have notice of the drawings because she had not viewed the video until the

morning of trial. Id. at 93. The trial court directed the Commonwealth to

stop its direct examination of Gluzman and play the video for the jury. Id.

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at 93-94. The trial court reserved its ruling on the objection until after the

video was played. Id. At the conclusion of the video, the trial court ruled

the witness could explain the drawings. Id. at 107. When the

Commonwealth moved to admit the drawings into evidence, Appellant’s

counsel did not object. Id. at 111.

[Commonwealth]: Okay, and Your Honor, I would
move for the admission of Commonwealth’s #1, #2,
and #3 [video recording of interview, drawing M.N.
produced during interview, and anatomical depiction
of body used by Gluzman during interview] into the
record.

[Trial court]: [Counsel for Appellant], any objection at
this time?

[Counsel for Appellant]: No, Your Honor.

[Trial court]: Okay. We’ll grant your motion and
admit #1, #2, and #3.

N.T., 1/9/14, at 111.

Though Appellant initially objected to the Commonwealth’s

demonstrative use of the drawings during the testimony of Gluzman, there

was no contemporaneous objection to the admission of the drawings into

evidence. Therefore, because Appellant failed to object at the appropriate

stage of the proceedings, this claim has not been preserved, and the issue is

waived. See Thoeun Tha, supra; Akbar, supra.12

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12
We recognize, however, that had the issue been properly preserved, it is
without merit. Appellant’s claim that the jury would be unaware of what the
(Footnote Continued Next Page)

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Appellant’s fourth claim of error contends the trial court “committed

reversible error in failing to instruct the jury about improper remarks during

a closing when [Appellant] was called a ‘monster’ and a ‘snake in the grass,’

despite an objection from counsel ….” Appellant’s Brief at 12. The record

does not support this argument.

It has long been established “that to preserve for appellate review an

objection relating to the opening or closing of opposing counsel, the

objection must be specific and brought to the trial judge’s attention as soon

as is practical.” Commonwealth v. Sanchez, 82 A.3d 943, 969-970. (Pa.

2013) (citations omitted), cert. denied, 135 S. Ct. 154 (2014). Here,

Appellant timely objected during the Commonwealth’s closing argument, and

the relevant exchange occurred.

[Counsel for Appellant]: Objection, Your Honor. May
we approach?

[Trial Court]: Yes.

[Counsel for Appellant]: Your Honor,
Commonwealth v. [Joyner], 469 Pa. 433[, 365
A.2d 1233 (Pa. 1976)], in a closing there are
objectionable areas that a prosecutor is not allowed
to state in a courtroom. He’s calling, one of those
objections are improper expressions of personal
belief. He’s calling my client a monster, Your Honor,
_______________________
(Footnote Continued)

terms “cookie” and “peach” refer to is belied by the record. The record is
replete with testimony clarifying to what M.N. was referring when she used
those terms. See, e.g. N.T., 1/9/14, at 28, 53-54, 102. Therefore, even
assuming, arguendo, the admission of the drawings into evidence was error,
Appellant cannot demonstrate prejudice resulted. See, Lopez, supra.

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that’s his personal belief. It is not for him to
determine whether or not my client is a child
molester, a predator, a snake in the grass, any of
these things. It’s up to the jury to determine and
there should be some testimony presented.

[Commonwealth]: Your Honor, he’s a monster to
[M.N.], and that’s my argument, because monsters
wake little kids up at night.

[Counsel for Appellant]: That’s an improper
argument.

[Trial court]: I’ll give a cautionary instruction to the
jury, we’ll sustain with a cautionary instruction and
ask you [Commonwealth] to keep the inferences a
little more amenable so as to not prejudice the jury.

N.T., 1/10/14, at 15-16. Following the discussion at sidebar, the trial court

instructed the jury as follows.

[Trial court]: [Counsel for Appellant], we will sustain
your objection at this time and ladies and gentleman
of the jury, in my charge I’m going to give you an
instruction regarding arguments of counsel, but I’ll
do it very briefly now as well since there has been an
objection.

The arguments of counsel are not part of the
evidence and you should not consider them as such,
but we, of course, ask you to weigh each of the
arguments of counsel as they are required to make
that in a light most favorable to each side, but keep
in mind that you are the sole triers of the facts, and
nothing that either counsel says or that I say is a
fact. You are to determine the facts of this case, and
I’ll expand a little bit more on that instruction in my
final charge. So, we’ll sustain your objection at this
time and [Commonwealth] we’ll ask you to move
forward.

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Id. at 16. The Commonwealth proceeded to finish its closing argument. No

further objection was made.

Our rules of appellate procedure are clear that “[a] general exception

to the charge to the jury will not preserve an issue for appeal. Specific

exception shall be taken to the language or omission complained of.”

Pa.R.A.P. 302(b). In the instant case, Appellant objected to the remarks of

the Commonwealth during closing argument. N.T., 1/10/14, at 15.

Immediately, the trial court ruled in Appellant’s favor and gave a curative

instruction. Id. at 16-17. Indisputably, Appellant received the requested

relief at trial when the trial court sustained his objection and no further

objection to the Commonwealth’s argument was made. Id. Accordingly,

this issue is without merit.

In Appellant’s final issue, Appellant argues the trial court “committed

reversible error in failing to instruct the jury on the failure to make prompt

complaint in certain sexual offenses, when [counsel for Appellant]

specifically requested that the jury instruction be given.” Appellant’s Brief at

13.

In reviewing such a challenge, we are guided by the following

principles.

In reviewing a challenge to the trial court’s
refusal to give a specific jury instruction, it is
the function of this Court to determine whether
the record supports the trial court’s decision.
In examining the propriety of the instructions a
trial court presents to a jury, our scope of

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review is to determine whether the trial court
committed a clear abuse of discretion or an
error of law which controlled the outcome of
the case. A jury charge will be deemed
erroneous only if the charge as a whole is
inadequate, not clear or has a tendency to
mislead or confuse, rather than clarify, a
material issue. A charge is considered
adequate unless the jury was palpably misled
by what the trial judge said or there is an
omission which is tantamount to fundamental
error. Consequently, the trial court has wide
discretion in fashioning jury instructions. The
trial court is not required to give every charge
that is requested by the parties and its refusal
to give a requested charge does not require
reversal unless the Appellant was prejudiced
by that refusal.

Commonwealth v. Thomas, 904 A.2d 964, 970
(Pa. Super. 2006) (internal citations, quotation
marks, and brackets omitted).

The premise for the prompt complaint
instruction is that a victim of a sexual assault would
reveal at the first available opportunity that an
assault occurred. See id. The instruction permits a
jury to call into question a complainant’s credibility
when he or she did not complain at the first available
opportunity. See Commonwealth v. Prince, 719
A.2d 1086, 1091 (Pa. Super. 1998). …

“The propriety of a prompt complaint
instruction is determined on a case-by-case basis
pursuant to a subjective standard based upon the
age and condition of the victim.” Thomas, 904 A.2d
at 970. For instance, “[w]here an assault is of such
a nature that the minor victim may not have
appreciated the offensive nature of the conduct, the
lack of a prompt complaint would not necessarily
justify an inference of fabrication.” Commonwealth
v. Jones, 449 Pa.Super. 58, 672 A.2d 1353, 1357 n.
2 (1996).

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Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013), appeal

denied, 81 A.3d 77, 835 (Pa. 2014).

In such an assessment the witness’ understanding of
the nature of the conduct is critical. Where the
victim did not comprehend the offensiveness of the
contact at the time of its occurrence, the absence of
an immediate complaint may not legitimately be
used to question whether the conduct did in fact
occur.

Commonwealth v. Snoke, 580 A.2d 295, 298-299 (Pa. 1990) (citations

omitted).

Appellant advances the argument that the failure to give the

instruction was improper because the Advisory Committee Note to

Pennsylvania Suggested Standard Jury Instruction 4.13A “does not state

that anytime there is an alleged victim that is a child, this instruction is

improper. Instead, it states that only if they do not have the mental

infirmity, then the instruction is improper.” Appellant’s Brief at 13

(emphasis in original).

The trial court explained its rationale, “[i]n reliance upon the Advisory

Committee Note and after review of Snoke, the [c]ourt denied Appellant’s

motion to read that instruction.” Trial Court Opinion, 7/1/14, at 21, citing

N.T., 1/10/14 at 165.

In the instant case, M.N. was four years old during the relevant time

period, and she reported the incident at a doctor’s visit using terms that

were taught to her by Appellant to reference her sexual organs. Further, the

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evidence revealed M.N. was scared to tell her mother because Appellant told

her she was not allowed. See N.T., 1/9/14 at 53-54. Based on the young

age and condition of M.N. at the time, we conclude the record supports the

trial court’s decision, and we discern no abuse of discretion in the trial

court’s refusal to instruct the jury on M.N.’s delay in reporting the offense.

See Sandusky, supra.

Moreover, the testimony of Ames strongly implies M.N. reported the

incident prior to the disclosure at the doctor’s office. Ames testified, in

camera, that when M.N. told her that her “cookie” hurt in the doctor’s office,

she initially believed M.N. meant she wanted a cookie.

I thought she wanted a cookie, because when she
was at my house, she would get up during the night,
don’t touch my cookie. … And then when we was
[sic] at the doctor’s after the doctor checked her and
she went and she said her cookie hurt, and I said,
your cookie? You don’t have a cookie. And she said,
yeah, and pointed to her private, her vagina area.

N.T., 1/9/14, at 28. She further testified on cross-examination before the

jury, “she would just get up in the night crying her cookie hurt. … I thought

she was talking about chocolate chip cookies. … She cried and said that her

cookie, she didn’t want nobody touching her cookie.” Id. at 58.

Consequently, the trial court would have been within its discretion in

refusing the instruction had it determined that M.N. had indeed reported the

incident at the first available opportunity, rendering the requested

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instruction inapt. See Sandusky, supra; Snope, supra.13 Thus,

Appellant’s final claim is without merit.

Although we have concluded all of Appellant’s issues on appeal are

either waived or devoid of merit, we proceed to consider the legality of

Appellant’s sentence, sua sponte. We begin by observing the following

principles regarding waiver on appeal. Relevant to the instant case, “where

application of a mandatory minimum sentence gives rise to illegal sentence

concerns, even where the sentence is within the statutory limits, such

legality of sentence questions are not waivable.” Commonwealth v.

Valentine, 101 A.3d 801, 809 (Pa. Super. 2014) (citation, brackets, and

quotation marks omitted). “Legality of sentence questions … may be raised

sua sponte by this Court.” Commonwealth v. Watley, 81 A.3d 108, 118

(Pa. Super. 2013 (en banc), appeal denied, 95 A.3d 277 (Pa. 2014) (citation

omitted). Finally, “a challenge to a sentence premised upon [the Supreme

Court’s decision in] Alleyene [v. United States, 133 S.Ct. 2151 (2013)]

likewise implicates the legality of the sentence and cannot be waived on

____________________________________________

13
We conclude the trial court was acting within its discretion in refusing the
requested instruction based on the Advisory Committee notes to the
Suggested Standard Jury instructions. However, we also observe, “[t]he
Suggested Standard Jury Instructions themselves are not binding and do not
alter the discretion afforded the trial judges in crafting jury instructions;
rather, as their title suggests, the instructions are guides only.”
Commonwealth v. Simpson, 66 A.3d 253, 285, n. 24 (Pa. 2013).

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J-S67026-14

appeal.” Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014)

(en banc). Therefore, we address the issue of Appellant’s sentence.

In examining the legality of a sentence on appeal, this Court employs

the following standard of review.

A challenge to the legality of a sentence … may be
entertained as long as the reviewing court has
jurisdiction. It is also well-established that if no
statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated.
Issues relating to the legality of a sentence are
questions of law[.] … Our standard of review over
such questions is de novo and our scope of review is
plenary.

Commonwealth v. Cardwell, --- A.3d ---, 2014 WL 6656644, *1 (Pa.

Super. 2014) (citations omitted).

As noted, Appellant was sentenced pursuant to the mandatory

minimum statute at Section 9718.

§ 9718. Sentences for offenses against infant
persons

(a) Mandatory Sentence.—

(1) A person convicted of the following offenses
when the victim is less than 16 years of age shall be
sentenced to a mandatory term of imprisonment as
follows:

…

18 Pa.C.S. § 3123 (relating to involuntary deviate
sexual intercourse)—not less than ten years.

…

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J-S67026-14

(3) A person convicted of the following offenses shall
be sentenced to a mandatory term of imprisonment
as follows:

18 Pa.C.S. § 3121(c) and (d)—not less than ten
years.

…

(c) Proof at sentencing.—The provisions of this section
shall not be an element of the crime, and notice of the
provisions of this section to the defendant shall not be
required prior to conviction, but reasonable notice of the
Commonwealth’s intention to proceed under this section
shall be provided after conviction and before sentencing.
The applicability of this section shall be determined at
sentencing. The court shall consider any evidence
presented at trial and shall afford the Commonwealth and
the defendant an opportunity to present any necessary
additional evidence and shall determine, by a
preponderance of the evidence, if this section is applicable.

42 Pa.C.S.A. § 9718.

“In Alleyne, the [United States] Supreme Court held that facts that

increase the mandatory minimum sentences must be submitted to the jury

and must be found beyond a reasonable doubt.” Commonwealth v. Miller,

--- A.3d ---, 2014 WL 4783558, *4 (Pa. Super. 2014) (citation and quotation

marks omitted). In light of Alleyne, this Court in Newman, concluded that

the mandatory minimum provision set forth at Section 9712.1 “could no

longer pass constitutional muster.” Newman, supra at 98. The Newman

Court concluded that the entire mandatory minimum statute at Section 9712

is unconstitutional. Id. at 103. In Valentine, this Court determined that

the mandatory minimum sentences imposed pursuant to Sections 9712 and

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J-S67026-14

9713 were unconstitutional even if the facts that trigger the mandatory

minimum sentence are submitted to a jury and found beyond a reasonable

doubt instead of by the trial court by a preponderance of evidence at

sentencing. Valentine, supra at 811-812. In so concluding, the Court

recognized that our decision in Newman held “that the unconstitutional

provisions of § 9712(c) and § 9713(c) are not severable … and that the

statutes are therefore unconstitutional as a whole.” Id.

The logic of Newman and Valentine was subsequently applied in

Commonwealth v. Fennel, --- A.3d ---, 2014 WL 6505791 (Pa. Super.

2014). In Fennell, the appellant stipulated at trial to the fact that would

increase the mandatory minimum pursuant to Section 7508. Fennel, supra

at *5. This Court concluded the stipulation did not cure the constitutional

defect.

[W]e see no meaningful difference, for the
purposes of Newman and Valentine between
submitting the element to jury and accepting a
stipulation from a defendant. … Both Newman
and Valentine unequivocally state that
creating a new procedure in an effort to
impose a mandatory minimum sentence is
solely with the province of the legislature.

Id. at *6. Finally, in Commonwealth v. Wolfe, --- A.3d. ---, (Pa. Super.

2014) this Court addressed the constitutionality of Section 9718 in light of

this Court’s decisions in Newman and Valentine. In Wolfe, the appellant

received a mandatory minimum sentence following his conviction of two

counts of IDSI pursuant to Section 9718(a)(1). Wolfe, supra at *2. We

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acknowledged that Section 9718 differs from the mandatory minimum

statutes struck down in Newman and Valentine because the fact

triggering the mandatory minimum sentence pursuant to Section 9718, i.e.

that the victim is less than sixteen years of age, was an element of the IDSI

statute under which the appellant was convicted. Id. at *10-*11; see 18

Pa.C.S.A. §3121(1)(7)(a). Therefore, in order for the jury to convict the

appellant in Wolfe, they were required to find, beyond a reasonable doubt,

that the victim was less than 16 years old. Wolfe, supra at 11.

Nevertheless, we concluded that this Court’s decision in Newman “stands

for the proposition that mandatory minimum sentences … of this format are

void in their entirety.” Wolfe, supra at *13 (citations omitted).

Consequently, Section 9718 is facially void. See Wolfe, supra at *14.

In the instant case, Appellant received mandatory minimum sentences

for his convictions of rape of a child, IDSI by forcible compulsion, and IDSI

against a complainant who is less than sixteen years of age pursuant to

Section 9718, the same sentencing statute that we struck down as facially

void in Wolfe. Therefore, we are constrained to conclude Appellant’s

sentence is unconstitutional.

Based on the foregoing, we conclude the trial court imposed an illegal

sentence when it sentenced Appellant pursuant to Section 9718.

Accordingly, we vacate the April 3, 2014 judgment of sentence and remand

to the trial court, with instructions to resentence Appellant without

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consideration of the mandatory minimum sentence at Section 9718,

consistent with this memorandum. In all other aspects, we affirm.

Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Record sealed. Jurisdiction relinquished.

Judge Donohue joins the memorandum.

Justice Fitzgerald concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2015

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