Com. v. Mable, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 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
'11
-0 0
0