J-S44042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
:
v. :
:
TERRANCE WILLIAMS, :
:
Appellant : No. 3498 EDA 2015
Appeal from the Judgment of Sentence October 19, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0015640-2013
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 31, 2017
Terrance Williams (“Williams”) appeals from the judgment of sentence
imposed following his conviction of rape of a child and unlawful contact with
a minor.1 We affirm.
In its Opinion, the trial court set forth the relevant factual and
procedural history, which we adopt for the purpose of this appeal. See Trial
Court Opinion, 6/30/16, at 1-3.
On appeal, Williams raises the following issues for our review:
1. Whether the verdict was contrary to the law based on the
elements not being proven[?]
2. Whether [Williams’s] sentence was unduly harsh and
unreasonable[?]
3. Whether the [trial] court erred in not allowing prior sexual
complaints by the [victim] into evidence[?]
1
See 18 Pa.C.S.A. §§ 3121(c), 6318(a)(1).
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4. Whether the [trial] court erred in not allowing testimony from
[victim’s] landlord[?]
5. Whether there was prosecutorial misconduct during direct
examination of [Williams?]
Brief for Appellant at 8 (capitalization omitted, issues renumbered for ease
of disposition).
In his first issue, Williams contends that the evidence was insufficient
to establish, beyond a reasonable doubt, all of the elements of the crime of
rape of a child. Id. at 16-17. Specifically, Williams claims that the
Commonwealth failed to prove that he had intercourse with the victim. Id.
at 17. Williams argues that “the Commonwealth’s only evidence to support
the alleged rape was testimony from the victim, as well as family members
and a friend who did not witness the incident.” Id. Williams asserts that no
evidence of penetration was introduced at trial. Id.
With respect to his conviction of unlawful contact with a minor,
Williams claims that the Commonwealth did not establish that unlawful
contact occurred between Williams and the victim. Id. at 19. Williams
argues that the only evidence offered by the Commonwealth, to support the
allegedly unlawful contact, was the victim’s testimony that Williams came to
her door and asked about her friend who was sleeping over. Id. Williams
contends that this communication was not for the purpose of engaging in an
unlawful act, and, therefore, does not establish the first element of the crime
of unlawful contact with a minor. Id.
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In its Opinion, the trial court addressed Williams’s first issue, set forth
the relevant law, and determined that the issue lacks merit. See Trial Court
Opinion, 6/30/16, at 4-6. We agree with the reasoning of the trial court,
and affirm on this basis as to Williams’s first issue. See id.2
In his second issue, Williams contends that his sentence was unduly
harsh and unreasonable. Brief for Appellant at 19. Williams asserts that his
previous record score was zero, and the offense gravity score for his
convictions was fourteen. Id. Williams claims that the sentence range for
his offenses was 72 months, plus or minus 12 months. Id. Williams claims
that his aggregate sentence of seven to fourteen years in prison exceeds the
recommended guidelines for the offenses, and is unduly harsh. Id. Williams
argues that, when imposing sentence, the trial court failed to consider his
background and lack of criminal history. Id.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
2
Williams also argues that the victim’s testimony was not credible because
she testified that she was wearing basketball shorts on the night in question,
but had told the Special Victims Unit that Williams had pulled her zipper
down before he raped her. Brief for Appellant at 17. However, this claim
challenges the weight of the evidence, which claim Williams has abandoned
on appeal. See Brief for Appellant at 8 n.1 (wherein Williams indicates
that”[a]fter further review, the issue of weight of evidence will not be
argued.”).
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[this Court conducts] a four[-]part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
In its Opinion, the trial court addressed Williams’s second issue, and
determined that the issue is waived because Williams failed to preserve his
discretionary sentencing claim by raising it at sentencing or in a post-
sentence motion. See Trial Court Opinion, 6/30/16, at 7. We agree with
the reasoning of the trial court, and affirm on this basis as to Williams’s
second issue. See id.3
In his third issue, Williams contends that the trial court erred by
precluding Williams from introducing at trial evidence of the victim’s prior
claim of sexual abuse. Brief for Appellant at 21. Williams asserts that,
“[b]ecause the two incidents shared so many similarities, it should have
been let into evidence to show that it is [the victim’s] modus operandi.” Id.
Williams claims that the probative value of the evidence outweighed any risk
3
Even if Williams had preserved the issue for our review, we would have
concluded that the claim lacks merit, as the trial court had the benefit of a
presentence investigation report (“PSI”) when it sentenced Williams. See
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(holding that, where a sentencing court is informed by a PSI, “it is presumed
that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.”).
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of prejudice. Id. at 21-22. Williams also claims that introduction of this
evidence would have impacted the victim’s credibility, and created
reasonable doubt in the eyes of the jury. Id. at 22.
In its Opinion, the trial court addressed Williams’s third issue, set forth
the relevant law, and determined that the issue lacks merit. See Trial Court
Opinion, 6/30/16, at 7-9. We agree with the reasoning of the trial court,
and affirm on this basis as to Williams’s third issue. See id.
In his fourth issue, Williams contends that the trial court erred by
excluding the testimony of the victim’s landlord regarding threats that the
victim’s mother had made to him. Brief for Appellant at 23. Williams
asserts that the victims’ mother told the landlord that, if he ever tried to
evict her, that she would have her daughter (i.e., the victim) claim that the
landlord had raped her. Id. Williams claims that the landlord’s testimony
bore upon the credibility of both the victim and her mother, and would have
created reasonable doubt in the eyes of the jury. Id. at 24.
In its Opinion, the trial court addressed Williams’s fourth issue, set
forth the relevant law, and determined that the issue lacks merit. See Trial
Court Opinion, 6/30/16, at 8, 9. We agree with the reasoning of the trial
court, and affirm on this basis as to Williams’s fourth issue. See id.
In his fifth issue, Williams contends that the Commonwealth engaged
in prosecutorial misconduct by requesting a sidebar, when Williams was on
the witness stand, to discuss the introduction of prison tapes that the trial
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court had already ruled were inadmissible. Brief for Appellant at 22.
Williams asserts that the prosecutor knew that the tapes were inadmissible
because they had not been provided to the defense until trial. Id. Williams
claims that, after the prosecutor had requested a sidebar, Williams became
upset, and was unable to recover his demeanor for the remainder of his time
on the witness stand. Id. at 22-23. Williams argues that the prosecutor’s
only purpose in requesting a sidebar was to upset Williams during his
testimony. Id. at 23. Williams contends that “[t]he prosecutor acted in bad
faith in an attempt to harass and distress [Williams].” Id. Williams asserts
that the prosecutor’s actions infringed on his right to a fair trial, thereby
entitling Williams to a new trial. Id.
In its Opinion, the trial court addressed Williams’s fifth issue, set forth
the relevant law, and determined that the issue lacks merit. See Trial Court
Opinion, 6/30/16, at 9-10. We agree with the reasoning of the trial court,
and affirm on this basis as to Williams’s fifth issue. See id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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Circulated 07/07/2017 03:54 PM