Com. v. Ross, E.

J-S18036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD ROSS :
:
Appellant : No. 1772 EDA 2022

Appeal from the Judgment of Sentence Entered May 16, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001450-2020

BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 18, 2023

Edward Ross appeals from the May 16, 2022 aggregate judgment of

sentence of 28 to 66 years’ imprisonment, followed by 8 years’ probation,

imposed after a jury found him guilty of rape of a child, endangering the

welfare of children, indecent assault of a person less than 13 years old,

unlawful contact with a minor, attempted aggravated indecent assault,

corruption of minors, and five counts of involuntary deviate sexual intercourse

with a child (“IDSI”).1 Appellant was also ordered to undergo lifetime

registration under revised Subchapter H of the Sex Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.10-9799.42. After careful

review, we affirm in part, vacate in part, and remand with instructions.
____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3121(c), 4304(a), 3126(a)(7), 6318(a)(1), 3121(a),
6301(a)(I)(ii), and 3123(b), respectively.
J-S18036-23

The trial court summarized the relevant facts of this case as follows:

[On March 28, 2020,] Victim, who at the time of trial
was twelve years old, while spending time with her
cousin, revealed a big secret. She told her cousin
Appellant did bad things to her and put his private part
in her mouth and made her do things she didn’t want
to do; she had never told anyone before because she
was scared after Appellant warned her she would get
in trouble by him if she did tell. She told her cousin
not to tell anybody but the next morning at her first
opportunity the cousin told her mother.

On April 3, 2020 Victim was interviewed at the
Children’s Advocacy Center by Crystal Gray. Victim
stated, her mom’s boyfriend TJ (Appellant), made her
do “bad things” with him on more than one occasion.
Victim stated in the beginning Appellant would “ask”
Victim if she wanted to do it; Victim would say no but
Appellant still made her do it. Victim said she would
hide in her closet, under her bed, or under the covers,
but he would always find her, grab her, and make her
do it. Appellant would wait for her mom to leave for
work, and then come for her, and they would go into
her mother and Appellant’s room. Victim described he
forced her to “suck his private part” twice a day.
Victim said she was five years old when the assaults
began and they continued for a few years. Victim said
Appellant would take his clothes off and lay in the bed
and tell her to get on the bed and do it. Victim said
she could see Appellant’s private parts, chest, and
legs. Appellant would make her suck on his private
part. If Victim didn’t do what Appellant said, he would
scream at her and this would upset her. Victim said
she would use her hands or her mouth and Appellant
would yell at her if he could feel her teeth. Victim
described Appellant’s private part like a bottle with
two circles at the bottom and it was dark brown.
Victim described white stuff would gush out from a
hole on Appellant’s private part, and sometimes it
would gush into her mouth and Appellant told her to
hold it in; also sometimes it would get on her hands
and it was gooey. Victim said she would have to rub

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J-S18036-23

his private parts and it was Appellant’s idea. Victim
said Appellant would be lying on the bed looking at his
phone and there would be moaning sounds coming
from the phone. Victim said Appellant promised
rewards, but she didn’t want them; Victim just wanted
it to stop. Once, Appellant gave her a dollar and some
candy and Appellant told her to keep the game a
secret. Victim stated Appellant would give her a high
score the faster she would go, and she knew she
would get a high score when he would scream out yes
three times and she would get a reward. Victim also
said Appellant “tried to go into her butt but it wouldn’t
fit” and she was crying because it “was wiggling and
it hurt” and Appellant yelled “you stupid girl, it didn’t
fit.” Victim said Appellant had his phone, a silver
Samsung, and held it like he was recording. Victim
said Appellant did these things when her mother was
at work and she tried to tell her mom but Appellant
would interfere; Victim said she tried to write a note
and put it in the mail. Victim recalled these assaults
went on for years.

Trial court opinion (redacted), 10/31/22 at 1-3 (paragraph break added).

The pertinent procedural history, as gleaned from the certified record,

is as follows: Appellant was subsequently arrested and charged with rape of

a child, IDSI, and a litany of related offenses. A search warrant executed at

Appellant’s residence resulted in the recovery of various electronic devices

whose search history revealed visits to over 200 pornography websites related

to father-daughter or stepfather-stepdaughter sex. Notes of testimony,

1/26/22 at 189-224. On January 24, 2022, Appellant filed a motion in limine

to preclude any evidence extracted from these electronic devices. The trial

court denied Appellant’s motion that same day.

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J-S18036-23

On January 24, 2022 jury selection commenced. During jury selection,

prospective juror number 42 indicated that her former brother-in-law had

been convicted of “a similar crime” against her niece. The trial court denied

Appellant’s motion to strike prospective juror number 42 for cause, and

Appellant utilized a peremptory strike. Notes of testimony, 1/24/22 at 129-

133.

On January 25, 2022, Appellant proceeded to a jury trial before the

Honorable Richard M. Cappelli. Following a three-day trial, Appellant was

found guilty of rape of a child, endangering the welfare of children, indecent

assault of a person less than 13 years old, unlawful contact with a minor,

attempted aggravated indecent assault, corruption of minors, and five counts

of IDSI. Following the completion of Sexual Offender Assessment Board

evaluation, the trial court sentenced Appellant to an aggregate term of 28 to

66 years’ imprisonment, followed by 8 years’ probation, on May 16, 2022.

Appellant subsequently filed a timely post-sentence motion that was denied

by the trial court on June 1, 2022.

Thereafter, on June 30, 2022, Appellant filed a timely notice of appeal.

On July 22, 2022, the trial court ordered Appellant to file a concise statement

of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).

Appellant was granted an extension and ultimately filed his timely concise

statement on September 1, 2022. The trial court filed a comprehensive, 54-

page Rule 1925(a) opinion on October 31, 2022.

-4-
J-S18036-23

Appellant raises the following issues for our review:

I. Whether the trial court erred in denying
Appellant’s motion to strike for cause
Prospective Juror #42, since the panelist is
closely related to the victim of a crime similar to
those alleged herein and could not commit to
being fair and impartial?

II. Whether the trial court erred in denying
Appellant’s motion in limine and permitting the
prosecution to admit evidence allegedly
extracted from his electronic devices, including
internet search terms and web history, since the
evidence is irrelevant, constitutes inadmissible
character or other act evidence, and any
probative value is outweighed by the danger of
unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time,
and needlessly presenting cumulative evidence?

III. Whether the sentencing court’s imposition of
sexual offender registration is illegal and
Appellant is entitled to less restrictive
Subchapter I requirements, since the jury never
made any offense date findings, and in any
event, Subchapter H’s more restrictive
provisions are unconstitutional?

Appellant’s brief at 7.

I. Motion to Strike Juror

Appellant first argues that the trial court abused its discretion in denying

his motion to strike prospective juror number 42 for cause. Id. at 21.

The decision whether to disqualify a prospective juror
is to be made by the trial judge based on the juror’s
answers and demeanor and will not be reversed
absent a palpable abuse of discretion. Appellate
courts defer to the trial court’s assessment of a
prospective juror’s answers during voir dire because

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J-S18036-23

the trial court is in the best position to assess the
[prospective juror’s] credibility and fitness to serve[.]

Most importantly, we should give great weight to the
trial court judge’s decision about striking jurors
because the trial court judge not only hears the words
that the potential juror speaks, but also the manner
in which the juror says those words and is in a better
position than an appellate court to evaluate the
significance of any hesitancy of a potential juror[.]

Commonwealth v. Delmonico, 251 A.3d 829, 839 (Pa.Super. 2021)

(citation omitted; some brackets in original), appeal denied, 265 A.3d 1278

(Pa. 2021).

II. Motion in Limine & Admissibility of Evidence

Appellant next argues that the trial court abused its discretion in denying

his motion in limine and permitting the Commonwealth to admit evidence

“extracted from his electronic devices, including search terms, web history,

legal inquiries, and detailed pornographic title list.” Appellant’s brief at 27.

A motion in limine is used before trial to obtain a
ruling on the admissibility of evidence. It gives the
trial judge the opportunity to weigh potentially
prejudicial and harmful evidence before the trial
occurs, thus preventing the evidence from ever
reaching the jury. A motion in limine differs from a
suppression motion in that a suppression motion is
designed to preclude evidence that was obtained in
violation of a defendant’s constitutional rights, while a
motion in limine precludes evidence that was
constitutionally obtained but which is prejudicial to the
moving party.

Commonwealth v. Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (citation

omitted).

-6-
J-S18036-23

“Questions concerning the admissibility of evidence lie within the sound

discretion of the trial court, and a reviewing court will not reverse the court’s

decision on such a question absent a clear abuse of discretion.”

Commonwealth v. Crosley, 180 A.3d 761, 768 (Pa.Super. 2018) (citation

omitted), appeal denied, 195 A.3d 166 (Pa. 2018). “An abuse of discretion

may not be found merely because an appellate court might have reached a

different conclusion, but requires a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.” Id.

Following a thorough review of the record, including the briefs of the

parties, the applicable law, and the well-reasoned opinion of the trial court, it

is our determination that Appellant’s first two claims on appeal warrant no

relief. In its extensive 54-page opinion, the trial court comprehensively

discussed each Appellant’s first two allegations of error and concluded that

they are without merit. We find that the trial court’s conclusions are supported

by competent evidence and are clearly free of legal error.

Specifically, we agree with the trial court that Appellant’s motion to

strike prospective juror number 42 for cause was properly denied, as the

record demonstrated that this juror could be fair and impartial. Trial court

opinion (redacted), 10/31/22 at 30-33. We further agree with the trial court

that its decision to deny Appellant’s motion in limine and admit the evidence

extracted from his electronic devices was warranted, as this evidence was

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J-S18036-23

both relevant to the charges at hand and its probative value outweighed any

unfair prejudice to Appellant. Id. at 33, 36-41. Accordingly, we adopt those

relevant portions of the trial court’s October 31, 2022 opinion as our own for

purposes of this appellate review.

III. SORNA Registration

In his final claim, Appellant challenges the legality of the SORNA lifetime

registration requirements imposed on him pursuant to Subchapter H.

Appellant contends that he should be subject to the requirements of

Subchapter I because “the jury never made any determinations regarding the

alleged offense dates” nor specifically found that the offenses occurred after

December 20, 2012. Appellant’s brief at 33. Upon review, we are constrained

to agree.

A challenge to the legality of a sentence “presents pure question of law.

Our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Succi, 173 A.3d 269, 284 (Pa.Super. 2017) (citations

omitted), appeal denied, 188 A.3d 1121 (Pa. 2018).

The General Assembly enacted SORNA II in response to the

determination that aspects of SORNA I were unconstitutional in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and Commonwealth

v. Butler, 173 A.3d 1212 (Pa.Super. 2017). 42 Pa.C.S.A. § 9799.51(b)(4).

As relevant to Appellant’s claims, the General Assembly revised Subchapter H

to apply only to individuals who committed a sexually violent offense on or

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J-S18036-23

after December 20, 2012. Id. § 9799.12 (defining “sexually violent offense”).

The General Assembly also added Subchapter I, 42 Pa.C.S.A. §§ 9799.51-

9799.75, to address those who committed designated offenses prior to

December 20, 2012, if the offender was subject to registration requirements

on that date. Id. § 9799.52.

Our Supreme Court has recognized that the registration requirements

of Subchapter H, which are based on SORNA I, are more onerous than those

under Subchapter I. Commonwealth v. Lacombe, 234 A.3d 602, 607 n.4,

626 (Pa. 2020) (declaring the Subchapter I registration requirements to be

non-punitive). Nevertheless, based upon his convictions, Appellant would be

subject to lifetime registration under either Subchapter. 42 Pa.C.S.A.

§§ 9799.15(a)(3); 9799.55(b).

Instantly, the record reflects that Victim testified that Appellant’s sexual

abuse of her began when she was around eight years old, or in approximately

2017. Notes of testimony, 1/25/22 at 70. Additionally, Victim’s father

confirmed at trial that she lived at his residence until she was five years old,

meaning the sexual abuse could not have happened any earlier than 2014.

Id. at 139, 164-165. Based on the foregoing, Appellant clearly committed the

aforementioned offenses at some point after the triggering date for

Subchapter H, December 20, 2012. 42 Pa.C.S.A. § 9799.11(c).

Appellant, however, contends that pursuant to this Court’s holding in

Commonwealth v. Alston, 212 A.3d 526 (Pa. 2019), he should be subject

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J-S18036-23

to the requirements of Subchapter I because the jury did not specifically find

that the offenses occurred after December 20, 2012. Appellant’s brief at 34-

35. Aston involved a defendant whose offenses occurred between May 28,

2009 to May 1, 2013, and the jury did not determine the dates of the offenses.

Alston, 212 A3d at 530. Relying upon Alleyne v. United States, 570 U.S.

99 (2013), and Muniz, the Alston Court held that absent “a specific finding

by the chosen factfinder of when the offenses occurred, [an offender] is

entitled to the lowest punishment.” Id. Thus, the Alston Court remanded

the case for imposition of the lesser restrictive requirements of Subchapter I.

Id.

Similarly, in the instant matter, although Victim’s testimony clearly

supports that conclusion that Appellant sexually abused her after Subchapter

H’s triggering date of December 20, 2012, the jury’s January 27, 2022 verdict

is silent as to any offense dates. Accordingly, we are constrained to apply the

holding of Alston to the instant case and conclude that Appellant is subject

to Subchapter I. See id. at 529 n.4 (stating, “this Court is bound by existing

precedent and continues to follow controlling precedent unless it is overturned

by our Supreme Court[.]” (citation omitted)).

Based on the foregoing, we vacate the portion of Appellant’s sentence

imposing registration requirements under Subchapter H and remand for the

trial court to amend the sentencing order and to instruct Appellant as to the

- 10 -
J-S18036-23

requirements under Subchapter I. Appellant’s May 16, 2022 judgment of

sentence is affirmed in all other respects.

Judgment of sentence affirmed in part and vacated in part; case

remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2023

- 11 -
 1_Opinion
Circulated dated
07/23/2023 10-31-22
01:33 PM

ORIGINAL
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF CP-23-CR-1450-2020
PENNSYLVANIA
VS.

EDWARD ROSS 1772 EDA 2022

Kelly Wear, Attorney for the Commonwealth
Steven M. Papi, Attorney for Appellant

OPINION

CAPPELLI, J. October 31, 2022

Appellant appeals from the May 16, 2022 Judgment of Sentence. This appeal

lacks merit and should be dismissed.

I. BACKGROUND AND PROCEDURAL HISTORY

On April 6, 2020 following a report of sexual assault on Child Victim,

Appellant was arrested and charged with 155 violations of the Crimes Code,

including inter alia: 18 Pa.C.S. § 3121 Rape of Child (Felony 1); 18 Pa.C.S. § 6301

Corruption of Minors ( Defendant age 18 or above) (Felony 3); 18 Pa.C.S.§ 3125

Aggravated Indecent Assault ( Felony 1); 18 Pa.C.S. § 4304 Endangering Welfare of

Children ( Felony 3); 18 Pa.C.S. § 3126 Indecent Assault of Person under 13 years

(Misdemeanor 1); 18 I'a.C.S. § 6318 Unlawful Contact with Minor (Felony 1).

Victim, who at the time of trial was twelve years old, while spending time

with her cousin, revealed abig secret. She told her cousin Appellant did bad things
to her and put his private part in her mouth and made her do things she didn't want

to do; she had never told anyone before because she was scared after Appellant

warned her she would get in trouble by him if she did tell. She told her cousin not to

tell anybody but the next morning at her first opportunity the cousin told her mother.

On April 3, 2020 Victim was interviewed at the Children's Advocacy Center by

Crystal Gray. Victim stated, her mom's boyfriend TJ (Appellant), made her do "bad

things" with him on more than one occasion. Victim stated in the beginning

Appellant would " ask" Victim if she wanted to do it; Victim would say no but

Appellant still made her do it. Victim said she would hide in her closet, under her

bed, or under the covers, but he would always find her, grab her, and make her do it.

Appellant would wait for her mom to leave for work, and then come for her, and

they would go into her mother and Appellant`s room. Victim described he forced her

to "suck his private part" twice aday. Victim said she was five years old when the

assaults began and they continued for afew years. Victim said Appellant would take

his clothes off and lay in the bed and tell her to get on the bed and do it. Victim said

she could see Appellant's private parts, chest, and legs. Appellant would make her

suck on his private part. If Victim didn't do what Appellant said, he would scream at

her and this would upset her. Victim said she would use her hands or her mouth and

Appellant would yell at her if he could feel her teeth. Victim described Appellant's

private part like abottle with two circles at the bottom and it was dark brown. Victim

2
described white stuff would gush out from ahole on Appellant's private part, and
i
sometimes it would gush into her mouth and Appellant told her to hold it in; also

sometimes it would get on her hands and it was gooey. Victim said she would have

to rub his private parts and it was Appellant's idea. Victim said Appellant would be

lying on the bed looking at his phone and there would be moaning sounds coming

from the phone. Victim said Appellant promised rewards, but she didn't want them;

Victim just wanted it to stop. Once, Appellant gave her adollar and some candy and

Appellant told her to keep the game asecret. Victim stated Appellant would give her

ahigh score the faster she would go, and she knew she would get ahigh score when

he would scream out yes three times and she would get areward. Victim also said

Appellant "tried to go into her butt but it wouldn't fit" and she was crying because it

"was wiggling and it hurt" and Appellant yelled "you stupid girl, it didn't fit". Victim

said Appellant had his phone, asilver Samsung, and held it like he was recording.

Victim said Appellant did these things when her mother was at work and she tried

to tell her mom but Appellant would interfere; Victim said she tried to write anote

and put it in the mail. Victim recalled these assaults went on for years.

The pretrial procedural history of this case is lengthy and extensive due to the

amount of litigation which occurred. On April 6, 2022, acriminal complaint was

filed and asearch warrant executed at Appellant's home; Appellant was arrested and

bail was set at $500,000.00 cash. Appellant did not post bail and was confined at the

3
George W. Hill Correctional Facility. On May 28, 2020 following apreliminary
i
hearing, the case was bound for trial and bail was reduced to $ 100,000.00 cash. A

review of the record shows the issuing authority required inter alia Appellant "must

have Psycho-Sexual evaluation prior to release". On June 4, 2020 Appellant posted

bail; however Appellant was not released from confinement. The record does not

show the evaluation had occurred as of June 4, 2020. On June 8, 2020 the

Commonwealth filed amotion to increase bail. On June 19, 2020 following ahearing

on the motion, Honorable Anthony D. Scanlon who was assigned miscellaneously

to hear the motion increased bail to $200,000.00 cash.

On June 24, 2020 Appellant was arraigned.

On July 20, 2020 Appellant filed aPetition for Specialized Review of the June

18, 2020 order increasing bail, 82 EDM 2020. On August 7, 2020 Superior Court

entered an order directing the court to file astatement of consideration in support of

the June 19, 2020 order increasing Appellant's bail. On August 19, 2022 Judge

Scanlon filed aresponse to the,order. On September 1, 2020 the Superior Court

entered an order denying the petition for specialized review. On September 3, 2020

Appellant filed aPetition for Allowance of Appeal to the Supreme Court, 484 MAL

2020. On January 25, 2021 the Supreme Court denied Appellant's petition.

On July 22, 2020 Appellant filed an Omnibus Pretrial Motion. On August 7,

2020 the Commonwealth filed a Motion in Limine to Introduce Out of Court

4
Statements of the Complainants. On August 25, 2020 ahearing on the motions were
i
held. On October 5, 2020 this court entered an order denying Appellant's motion to

quash filed as part of the omnibus pretrial motion, denied Appellant's motion to

reinstate bail, and granted for purposes' of establishing a prima facie the

Commonwealth's motion in limine to introduce hearing out of court statements of

the complainants. On October 30, 2020 Appellant filed an Application for

Amendment of Interlocutory Order. On December 18, 2020 Appellant filed a

Petition .for Permission to Appeal in Superior Court, 142 EDM 2021. On January 5,

2021 Superior Court denied the petition. On January 15, 2021 Appellant filed a

Petition for On Allowance of Appeal in the Pennsylvania Supreme Court, 26 MAL

2021. On December 15, 2021 Pennsylvania Supreme Court denied the petition.

On December 3, 2020 Appellant filed a Motion to Release Defendant

Immediately on Nominal Bail pursuant to Rule 600 and ahearing was scheduled for

December 20, 2020. On December 14, 2020 the case rescheduled until January 4,

2020 1.The motion was held while the appellate courts were deciding issues raised

by Appellant and on January 20, 2022 the motion was denied.

Wthough the record is abit confusing, at this particular point of time in the case, this trial court judge had taken
extended medical leave due to unforeseen consequences of the COVIDI9 pandemic; and given the procedural history
and number of pre-trial motions and petitions filed in the appellate courts, Honorable James P. Bradley, Judge of the
Court of Common Pleas of Delaware County, who was assisting with coverage during the leave deemed it appropriate
to relist the case. This judge returned from medical leave to full-time duty during fall 2021.

5
 On July 22, 2021 Appellant filed aSupplemental Omnibus Pretrial Motion

and included a motion to reinstate bail and a motion to quash based on

Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2021). On August 31, 2021

Appellant filed a Motion to Quash/Petition for Writ of Habeas Cofpus. On

September 29, 2021 the motion/petition was denied.

On November 8, 2021 ahearing on the Commonwealth Tender Years Motion

was held and on November 17, 2021 the motion was granted.

On January 5, 2022 Appellant filed aPetition for Writ of Habeas Corpus.

On January 20, 2022 Appellant's motion to quash informations and motion for

nominal bail were denied.

On January 24, 2022 Appellant filed aMotion in Limine to Preclude Evidence

of Electronic Device Extraction and the motion was denied.

On January 24, 2022 jury selection commenced. On January 27, following a

three-day jury trial, Appellant was convicted of Rape of Child, Involuntary Deviate

Sexual Intercourse with aChild, Endangering Welfare of Children, Indecent Assault

of Child, Unlawful Contact with Minors, Aggravated Indecent Assault and

Corruption of Minors. Bail was revoked and asentencing hearing was scheduled for

March 29, 2022. On February 1, 2022 an Assessment/Sexual offenders

board/Megan's Law evaluation was ordered. The sentencing hearing was

rescheduled for May 16, 2022 following a request for continuance in order for

6
complete the sexual offender assessment board evaluation to be completed. On May
i
16, 2022 this court imposed judgment of sentence upon Appellant to inter alia

confinement in astate correction institution for aminimum term of 28 years to a

maximum term of 66 years, followed by 8years of state probation2:

Rape of Child Felony 1 18 Pa.C.S. § 3121(c) 10 years — 30 years
confinement
OGS

Involuntary Felony 1 31 Pa.C.S. § 3123(b) 6years — 12 years
Deviate Sexual confinement;
OGS
Intercourse with a consecutive to
Child Rape of Child
sentence and each
other
Endangering Felony 3 18 Pa.C.S. § 43Q4(a) 6 months — 12
Welfare of months
OGS
Children confinement;
concurrent with
Involuntary
Deviate Sexual
Intercourse with a
Child
Indecent Assault Misdemeanor 1 18 Pa.C.S. § 3126(a)(7) 6 months — 12
of Child months concurrent
OGS
with Involuntary
Deviate Sexual
Intercourse with a
Child
Unlawful Contact Felony 1 18 Pa.C.S. § 6318(a)(1) 8 years probation
With Minors consecutive to
OGS
parole

'Additional requirements: Lifetime registration under SORNA; no contact with victim; comply with rules and
regulations governing Probation and/or Parole; Submit to DNA Testing; not RRRI eligible; pay costs of prosecution.

7
Aggravated Felony 2 1;8 Pa.C.S. § 1 year — 2 years
Indecent Assault concurrent with
OGS i
3121(a) Involuntary
Deviate Sexual
Intercourse with a
Child
Corruption of Felony 3 18 Pa.C.S. § 6months — 12
6301(a)(I)(ii) months concurrent
OGS
Minors with Involuntary
Deviate Sexual
Intercourse with a
Child

On May 23, 2022 Appellant filed "Post-Sentence Motion". On June 2, 2022

Appellant's Post-Sentence Motion was denied. On June 30, 2022 Appellant filed a

Notice of Appeal.

On September 1, 2022 following the July 22, 2022 Order directing Appellant

to file aConcise Statement of Matters Complained of on Appeal and August 5, 2022

Order enlarging the time for filing the statement as directed by this Court Appellant

filed a Statement of Matters Complained of on Appeal in which he raises the

following issues:

1. The court erred and misapplied controlling law of the Pennsylvania Supreme
Court in Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020) when it
concluded the prosecution established aprima facie case to hold Mr. Ross for
trial, even though at the preliminary stage the prosecution never presented the
complainant as awitness and relied solely upon hearsay.

2. The court erred in denying Mr. Ross' motion to strike for cause prospective
Juror 442, where the panelist was related to the victim of asimilar crime and
could not commit to being fair. The trial court's refusal to remove for cause a
prospective juror who could not be impartial prejudiced Mr. Ross, since he
 was forced to use apreemptory challenge to eliminate the unsuitable panelist
and exhausted his peremptory strikes in the process. The error resulted in
violations of Mr. Ross' rights to due process and afair trial by an impartial
jury, as guaranteed by the state and federal constitutions, including PA. CONST.
Art. 1 § 9and U.S. CONST. Amends. V, VI, XIV.

3. The court erred in denying Mr. Ross' motion in limine and permitting the
prosecution to admit evidence allegedly extracted from Mr. Ross' electronic
devices, some of which the prosecution did not provide to the defense until
one day prior to trial, since that evidence constitutes mandatory discovery
under Pa.R.Crim.P. 573(B)(1), and its introduction violated Mr. Ross' state
and federal constitutional rights, including PA. CONST. Art. 1 § 9 and U.S.
CONST. Amends. V, VI, XIV.

4. The court erred in denying Mr. Ross' motion in limine and permitting the
prosecution to introduce evidence allegedly extracted from his electronic
devices, including internet search terms and history. The evidence is
irrelevant, constitutes impermissible character or other evidence, and any
probative value is outweighed by the danger of unfair prejudice, confusing the
issues, and misleading the jury, especially where the prosecution could not
establish who entered the information. See e.g. Pa.R.E. 401-404. The court's
decision to admit this cumulative evidence also caused undue delay, wasted
time, and violated Mr. Ross's state and federal constitutional rights, including
PA. CONST. Art. 1 § 9and U. S.CONST. Amends. V, VI, XIV.

5. The court erred in admitting the transcript and audio recording of the
complainant's " forensic" interview (Exhibits C7-C7A) since it does not
qualify as aprior consistent statement under Pa.R.E.613 (c) do not fit within
any exceptions to the rule against hearsay, are unduly prejudicial, and
improperly bolster the complainant's testimony. The court's decision to admit
this evidence also violated Mr. Ross' state and federal constitutional rights,
including PA. CONST. Art. 1 § 9and U.S. CONST. Amends. V, VI, XIV.

6. The court erred in admitting the complainant's notes and drawings (Exhibits
C22 A-C) since they do not qualify as prior consistent statements pursuant to
Pa.R.E. 613(c), do not fit within any exceptions to the rule against hearsay,
are unduly prejudicial, and improperly bolster the complainant's testimony.
The court's decision to admit this evidence also violated Mr. Ross' state and
federal constitutional rights, including PA. CONST. Art. 1 § 9and U.S. CONST.
Amends. V, VI, XIV.

9
 7. The court erred in denying Mr. Ross' request for aprompt complaint jury
instruction pursuant to Pa. SSJI (Crim) 4.13A, where the complainant's
delayed reporting removes assurances of credibility and is arelevant factor
for the jury to consider when determining the believability of the allegations.
The court's error also violated Mr. Ross' state and federal constitutional rights,
including PA. CONST. Art. 1 § 9and U.S. CONST. Amends. V, VI, XIV.

8. The court imposed an aggregate total sentence (including twenty-eight to
sixty-six years' confinement plus eight years' probation) that is manifestly
excessive, contrary to fundamental norms underlying the sentencing process,
based on impermissible factors, and disproportionate to the allegations. The
court failed to supply sufficient reasons in support of the penalty, adequately
consider Mr. Ross' background, character, rehabilitative needs, or properly
account for individualized sentencing.

9. The sentence imposing Act 29 sexual offender registration is illegal. It
violates Mr. Ross' substantive and procedural due process rights under the
Pennsylvania Constitution and his procedural due process rights under the
United States Constitution. It constitutes adisproportionate criminal penalty
and violates the separation of powers doctrine by usurping exclusive judicial
adjudicatory and sentencing authority. It contravenes U.S. Const. Amends. V,
VI, XIV, and the Pennsylvania Constitution's corresponding protections that
require ajury must fiend beyond areasonable doubt every fact necessary to
support the imposition of mandatory or enhanced punishment. It should be
stayed pending resolution of Commonwealth v. Totsilieri, 232 A.3d 567 (Pa.
2020) (awaiting further appeal to Pennsylvania Supreme Court after recent
Chester County decision finding Subchapter H unconstitutional).

II. TRIAL SUMMARY

The record of the jury trial in this matter reveals the Commonwealth presented

aclear, compelling, and succinct case for Appellant's guilt and convictions and the

evidence in the case overwhelmingly supports the conviction. The Commonwealth

presented credible testimony from: the child Victim; Kenan Leigh Aldridge,

Victim's father; Octavia Leigh and Aniah Leigh who were notified by Victim of the

10
would get trouble at, id. at 72; Appellant told her about the body parts and the names
i
i
-- bird penis and dick --, id. at 72-73; the first time something like this happened,

Victim wlked home from school and knocked on Appellant's door to tell him she

was home, and Appellant told her if she did s
him afavor she would get some candy,
i
id. at 73; "he took his clothes off, laid them on the bed and showed me how to suck

his penis" and she doesn't remember whether Appellant gave her candy, id.; one

time Appellant tried to put his penis in her but " but it didn't work" and it was painful

on the inside and the outside, id. at 74-75; during this time she was like adownward

dog and Appellant was on top of her, id. at 75; Appellant had told her to put her

pants and underwear on the floor or she would get in trouble, id.; when it didn't work

Appellant became frustrated and he told her to get dressed and get out, id. at 76;

Appellant told her not to tell anybody and to "keep it as asecret" or she would get

in trouble, id. at 76, 79; Victim was scared and Appellant would do alot of scary

things to her, id. at 80; she tried to tell her mom but Appellant always was around

and she was afraid, id. at 81; she tried to write anote to her mom but she threw it

away, id.; this all stopped after she told her cousin about it when they were playing

truth or dare, id. at 82; the next day she told her aunt and then the police and then

her father, id. at 84-85; Victim recalled they wouldn't allow her mother and

Appellant to pick her up and it sounded like fighting and Victim thought she was

going to get in trouble, id. at 85; when the bad things were happening, Victim would

13
hide in her closet, try to climb out of the window, id. at 86; Victim had drawn a
i

family picture including afigure Victim calls her monster friend, an imaginary friend

who would watch her most of the time when she was with Appellant, and Victim

made some notes and the messages in the notes are about Appellant (Commonwealth

exhibits A-C), id. at 94; Victim identified Appellant, id. at 96.

On cross-examination, Victim testified: she would frequently visit her father

and Appellant would not be there, id. at 97-98; after Victim told her cousin, she

learned from her aunt "what he was doing was wrong and that he shouldn't be

touching me that way", id. at 99; Victim's dad also told her the difference between a

good touch and abad touch after she told her cousin, id. at 100; Victim's mom

worked as an Uber driver and at an old person's home but she does not know for how

long, id. at 101-102; Victim did not tell her dad, id. at 103; Victim's mom washed .

her clothes and helped with homework, id. at 104; Victim never did tell her mom

but she tried to tell her, id.; Victim thinks she was living with her mom from second

through fourth grade but does not remember the name of her school in second grade,

id. at 105; Victim does know her school was in Chester, id.; Victim had access to a

phone and her mother's phone number and her father's phone number, id. at 106;

Victim had akey to the house and Appellant's mother had aboyfriend, and she

worked, Appellant worked, and Victim's mother worked, id. at 109; sometimes

Victim would go trips with Appellant's mother, and sometimes the boyfriend of

14
 i
Appellant`s grandmother and the boyfriend's son would come along on the trips, id.

at 110; Victim and appellant's mother shared abedroom, id.; Victim's dad also lived

with her Aunt Tay, her cousin James, Aunt Teen, Aniyah, Zamire, and Marquain,

id. at 111-112; Zamire and Marquain are her aunts sons, and they are alittle older

than Victim, id. at 112; Victim does not remember the name of her teachers in

second, third, or fourth grade, id. at 114; Victim never told her teachers about the

assaults, id. at 115; Victim does not remember too much from the time before she

was living with her mom full-time, id. at 115-117; Victim remembers before she

lived with Appellant's mother she also lived with her mom, Appellant, and

Appellant's father and stepmother, and th6 baby, id. at 116-117; Appellant's mother

also had another boyfriend, id. at 117; Victim doesn't remember the date or day of

the week when Appellant started doing inappropriate things to her but she thinks he

was wearing awife beater and shorts, id. at 118-119; Victim remembers the first

time happened in her parent's room and thinks it was the summer but doesn't

remember if it ever happened anywhere else or whether the door was open or who

went into the room first or whether the door was locked or whether the windows

were open, id. at 119-120; the bad behavior stopped after Victim asked Appellant if

he could get her something to eat and he said if she was hungry to suck his penis and

she said no and ran out, and this is when it stopped, id. at 121; Victim thinks she told

her cousin around 6months later, id. at 121-123; Victim told her cousin but she

15
didn't mention about Appellant trying to put his penis in her butt, or him trying to

touch her vagina with his fingers, how many times it happened, about making it a

game with rewards, or when it stopped, id. at 124; when Victim did tell her aunt she

didn't say anything about Appellant trying to put his penis in her butt but she did tell

her about Appellant trying to touch her vagina and make agame, id. at 127-128;

Victim said the she doesn't know where or when the drawings were found, but she

remembers drawing them and she put them in her drawer, id. at 128; Victim

remembered talking about moving but not where, id. at 129-130.

3. Testimony ofKeenan Leigh Aldridge

Witness Aldridge testified he is Victim's father and when she was born he was

with her mother Marjorie Welsh, id. at 138.139; Victim's mother and he split when

Victim was one year old and he lived with Victim until she was around 5years old,

id. at 139; Witness was told by his cousin Cynthia Fry about the abuse on March 29,

2020, id. at 141, 161; Victim has lived with him since then, id. at 142-143; Victim

said she didn't tell him because she was afraid " what Iwas going to do", id. at 146;

Victim's mother came to his house yelling to "give me my daughter" and Appellant

was in the car, id. at 146, 172; Victim on numerous occasion would not want to go

back to her mother's house after visiting Aldridge, id. at 149, 153, 155; after Victim

told about what was happening, she seemed down and depressed and wasn't as

playful or chipper, id. at 153; Victim sees atherapist and has supervised visitation

16
with her mother, id. at 154; Appellant had met two boyfriend's of Victim's mother

before he met Mr. Ross, id. at 157; witness Aldridge's aunt lives at the house where

he lives, and his cousin Octavia are her three children also lived there, id. at 159; on

July 30, 2020 Detective Bellis came and Witness Aldrige and Octavia Leigh each

gave astatement which was tape recorded, id. at 160; Detective Bellis afew times

has contacted Witness Aldridge to update him on the case, id. at 161; Victim's

mother and Witness Aldrige had an ongoing child custody case in Philadelphia and

had been to court several times but since the time of the accusation, Victim has lived

with Witness Aldridge, id. at 162-164.

4. Testimony ofAniyah .Leigh

Witness A. Leigh testified she and Victim are close in age, January 25, 2022

Notes of Testimony at p. 10; they were playing agame and she asked Victim what

is her biggest secret, and Victim answered she never told this to anyone because

she was scared to tell and then Victim told her what Appellant did to her, id. at 11,

27; Witness A. Leigh said Victim Appellant put his private part in Victim's mouth

and he said if she told she would get in trouble, id. at 11; Victim told her not to tell

anybody but the next morning witness A. Leigh told her mother Octavia Leigh, id.

at 12; Victim was brought over to the house and she told her mother Octavia Leigh

and Victim was crying, id. at 13; her mom, her grandmother, Victim, and Witness

A. Leigh went to police station, id. at 16, 31; she told even though Victims said not

17
to "because that's the right thing to do", id. at 17; Victim and Victim's dad came to

stay with her for awhile, id. at 20.

On cross-examination, Witness A. Leigh also testified no one discussed what

was going on in the trial, id. at 22; she doesn't exactly remember when Victim told

her, id. at 24, 25; Victim said her mother walked in one time, but he stopped, id. at

27; Victim was afraid to get in trouble by Appellant, id. at 28; Victim said this started

happening when she was 5or 6years old, id. at 31.

S. Testimony of Octavia Leigh

Witness O. Leigh testified in relevant part: on March 29, 2020 her daughter

told her about what Victim said Appellant was doing to her, id. at 36; Witness O.

Leigh called Victim's mom and asked if she could come for Victim and she went to

Chester, id. at 38; Witness O. Leigh identified Appellant, id.; she picked up Victim,

id.; she and Victim's mother did not have any kind of relationship, id. at 39; Witness

O. Leigh was anxious, id. at 39, 40; Witness O. Leigh was able to get Victim tell her

about what Appellant was making her do, id. at 40,41; Victim told Witness O. Leigh

she was afraid to tell about Appellant and she had tried to tell her mother, id. at 42;

Victim said she wrote aletter and gave it to her mom but Appellant snatched it and

ripped it up, id.; Vitim was crying and shaking when she told Witness O. Leigh about

this, id.; Witness O. Leigh called her sister who is aLieutenant for the Philadelphia

Police Department, and then took Victim to the police station, id. at 43; Victim's

18
mother came to the house and was yelling, sand Appellant was in the car, id. at 49.

52; Witness O. Leigh would not allow Victim to leave, id.; Witness O. Leigh

described a raucous situation and Appellant started knocking on the door and

eventually Appellant and Victim's went back out and then Victim's father went

outside, id. at 53, 54; Victim went into therapy, id. at 62; Witness gave recorded

statement to Sergeant Bellis, id. ;

On cross-examination Witness O. Leigh testified: Victim had told her when
I
she asked Appellant for something to eat, Appellant said he had something for to

chew on, id. at 76; Victim told her Appellant would have his phone out, id.; Victim

said this started when she was around 5and ended when she was around 8, id. at 77 3.

6. Testimony ofBarbara Chaiyachati

Witness testified she is an attending physician at Children's Hospital of

Philadelphia and specializes in child abuse pediatrics, id. at 91; Witness examined

Victim and the findings were normal, id. at 98, 99; Witness explained it is possible

no injury would be visible, id. at 100; Witness stated there are many reasons achild

might not tell right away, id. at 101; Witness stated delayed disclosures are common

in children, id.; Witness stated a normal examination can result even after

penetration of the vagina, id. at 101-107.

'There was considerable discussion on the record during the examination concerning Witness O.
Liegh's previous testimony about when the assaults began and when they ended.

19
 7. Testimony of Sergeant Kenneth Bellis
l
Witness Bellis testified he works' for the Delaware County Criminal

Investigation Division, id. at 117; he is the sergeant in charge of the interne crimes

against children unit and forensics lab, id.; he executed a search warrant on

Appellant's home, id. at 120; the search warrant was for electronic devices at the

home and on Appellant including computers, cell phones, id. at 121; Victim's

mother, Appellant, and Appellant's mother were home when the warrant was

executed, id.; Appellant's cell phone was retrieved, id. at 122; Detective Christopher

Tankelewicz examined the phone for its contents, id. at 123; aDell computer was

taken from ahallway closet, id.; Detective Tankelewicz examined the computer for

its contents, id.; another cell phone was found of the .floor of Appellant's bedroom,

id.; this cell phone was examined for content by Detective Tankelewicz, id. at 124;

Witness Bellis testified he documented Appellant's home with photographs and

testified to the photographs and their descriptions, id. at 124-131; Witness Bellis

testified based on what was seen on the phone seized from Appellant, asearch

warrant for google was requested, id. at 131; the gmail account from this phone was

for S1oanKetlerl@gmail.com, and this address was linked to the Dell laptop and the

other phone, id. at 134; Witness Bellis testified concerning additional photographs

and asubpoena for the dropbox account linked to Appellant's phone, id. at 138;

20
witness Bellis took arecorded statement of Victim's father Keenan Aldridge and her

aunt Octavia Leigh, id. at 139.

On cross-examination, witness Bellis testified: concerning the asubpoena for

Drop Box and Google, and the content results of the search, id. at 141-44; several

law enforcement officers were present when the search warrant was executed on

Appellant's residence, id. at 144; alaptop was retrieved form ashelf in the closet, id.

at 144-145; he was not present for the April 4, 2020 Child Advocacy Interview but

he has seen the recording, id. at 145; concerning the law enforcement officers

involved in the preparation of the arrest warrant and search warrants in the case, id.

at 147; concerning his work for the Internet Crimes against Children task force, id.

at 148; no evidence of child pornography was found on Appellant's devices but he

cannot comment on whether the websites on the devices depicted child pornography,

id. at 149; many of the internet websites indicated " daddy/daughter, daughter, stuff

like that, but Idon't know what the actual video depicts", id. at 150; nothing

affirmatively suggests the links lead to child pornography and ageneral back and

forth about pornography searches, id. at 150-153; about his testimony at the May 20,

2020 preliminary hearing, id. at 154; when the search warrant was executed, law

enforcement only seized Appellant's devices, id. at 157; he tried to speak with

Victim's mother Marjorie Welsh but she wasn't cooperative, id. at 159-161; he was

21
aware there was custody litigation, id. at 166; he doesn't remember details

concerning whether disturbing notes being left or found in the house, id. at 167.

On re- cross, Witness Bellis testified: there was evidence of deletions on

Appellant's electronic devices, id. at 168; he documented in Excel spreadsheets the

websites visited and the searches, id. at 169; he was involved with the execution of

the warrant at Appellant's home and he found the corroborating letters, id. at 172; he

cannot comment on when the deletions occurred, id. at 174.

8. Testimony of Christopher Tankelewicz

Witness Tankelewicz was accepted as an expert in digital forensics and

testified: he was involved in the execution of the search warrant at Appellant's home,

examined the seized electronic devices, and made areport, id. at 186; he analyzed

the Samsung phone, laptop, ANS cell phone found in the bedroom, and other items,

id. at 187-190; the first 3devices contained evidentiary value concerning this case,

id. at 189-190; concerning the examination of and recovery of evidence from the

devices, id. at 190-195; to the websites visited including but definitely not limited to

"my daughters suck my dick in the mall bathroom Xvideos.com" visited on

1/2/2020, " feeding my daughter Xvideos" visited on 1/8/2020, "my daughter riding

my on crotch cream pie tight pussy Xvideos.com" visited on 1/8/2020, "teen step-

daughter can be family fucked by step-dad whenever he wants after mom cheats"

visited on 1/11/2020, " daughter asked to suck my dick" visited on 1/20/2020, "my

22
daughter asked if she could taste the cum that made her" and " my daughter blowing
I
me so proud of her" visited on 1/21/2020, id. at 196-210, 221-223; there were on

March 31, 2020 several Google searches including but not limited to "Is there jail

time for sexual abuse on achild", "where do Ifind the trash on my phone", if accused

of child abuse and the claims are found unsubstantiated what happen", " does child

abuse have to be proven", id. at 214-216; everything he testified to was within a

reasonable degree of technical and scientific certainty at January 27, 2022 Notes of

Testimony at p. 6.

On cross-examination Witness Tankelewicz testified: he did not find any child

pornography in the searches, id. at 8; to searches made before and after the report to

police and Appellant's arrest, id. at 9-13; the user accounts are on each of Appellant's

searched electronic devices, id. at 15; nothing connected Appellant to the user

account, id.; there were over 71,000 images found on the Samsung phone, and more

than 1,800 could not be viewed but they were moved from the phone to the Google

icloud account, id. at 16-17; nothing illegal was found, id. at 18; there were pictures

of Appellant and Victim, id. at 19-23; he tagged 373 websites but there were more

than 14,000 items of web history on the phone, id. at 23; the web history is connected

to whoever possessed the phone at the time of searches, id. at 24; the laptop had not

been used since 2013, id. at 26; there were images on the ANS phone moved to the

23
accused of committing an offense and she has never testified on behalf of someone

who was accused, id. at 57-58.

B. Appellant did not present any witnesses.

III. DISCUSSION

A. This court's determination the prosecution established aprima,
facie case against Appellant is correct.

Appellant contends this court erred and misapplied controlling law of the

Pennsylvania Supreme Court in Commonwealth v. McClelland, 233 A.3d 717 (Pa.

2020) when it concluded the prosecution established aprima facie case to hold

Appellant for trial, even though at the preliminary stage the prosecution never

presented the complainant as a witness and relied solely upon hearsay' The

evidentiary sufficiency of the Commonwealth's prima facie case for acharged crime

is aquestion of law and the standard of review is de novo and the scope of review is

plenary. Commonwealth v. Wroten, 257 A.3d 734 (Pa. Super. 2021).

In McClelland the Supreme Court of Pennsylvania was clear when it

determined hearsay evidence alone was insufficient to establish prima facie case at

'Appellant raised this issue several times before trial in motions to quash and
petitions for habeas corpus. On October 5, 2020 this court denied Appellant's
motion, and Appellant filed aPetition for Specialized Review in Superior Court.
When the Petition was denied in Superior Court, Appellant filed aPetition for
Permission to Appeal in Supreme Court, which also was denied. And on January 5,
2022 Appellant filed another motion to quash, denied on January 20, 2022 by this
court.

25
preliminary hearing. The Court reiterated the primary reason for the preliminary

hearing is to protect an individual's right against unlawful arrest and detention.

Importantly, the court noted the preliminary hearing seeks to prevent aperson from

being imprisoned or required to enter bail for acrime which was never committed,

or for a crime with which there is no evidence of his connection. The Court

recognized their precedents make clear the :full panoply of trial rights do not apply

at apreliminary hearing, but the hearing is nevertheless a critical stage of the

proceedings, and is intended under Pa.R.Crim.P. 542 to be more than a mere

formality. Due process clearly attaches, but due process is a flexible concept,

incapable of precise definition. In McClelland's preliminary hearing, the

Commonwealth relied exclusively and only on evidence the Commonwealth could

not present at trial.

In Appellant's case, the preliminary hearing occurred on May 28, 2020, before

the Supreme Court's McClelland decision was issued, and at that hearing the

Commonwealth's prima facie case against Appellant was determined sufficient to

hold the charges for trial. On July 22, 2020 in response to the Supreme Court's July

21, 2020 McClelland decision Appellant filed an " Omnibus Pretrial Motion" and

included a Motion to Quash/Petition for Habeas Corpus claiming the

Commonwealth relying on only hearsay did not present asufficient primafacie case

at the preliminary hearing, and this violated Appellant's due process rights under the

26
federal and state constitutions, and right to -cross-examine. On August 7, 2020 the

Commonwealth filed a " Motion in Limine to Introduce Out of Court Statements of

the Complainant".

On August 25, 2020 this court held ahearing on inter alia both the Motion to

quash and the Motion in limine. August 25,'2020 Notes of Testimony generally. On

October 5, 2020 this court denied Appellant's Motion to Quash and granted the

Commonwealth's Motion in Limine to Introduce Out of Court Statements of the

Complainants. The issue was raised by Appellant immediately following

McClelland, and this court determined in the interests ofjustice and fairness, and for

judicial economy, the Commonwealth should be afforded the opportunity to

supplement the record using legally competent and admissible evidence, and this

evidence was presented to this court in the form of notes and pictures and arecording

of the forensic interview of the child Victim, admissible under the Tender Years

Statute and an exception to rule against hearsay. Exceptions to the rule against

hearsay are not excluded by the rule against hearsay and constitute admissible

evidence, and this court ultimately concluded aprima facie case was established.

Not content to take no for an answer, on October 30, 2020 Appellant filed an

"Application for Amendment of Interlocutory Order" from the order denying the

motion to quash to include language rendering the order interlocutory. Due to

unforeseen circumstances relating to complications arising from the COVID 19

27
pandemic, this court did not rule on the motion' and the motion was deemed denied

by operation of law. On December 18, 2020 Appellant filed aPetition for Permission

to Appeal in Superior Court 142 EDM 2020 which was denied on January 5, 2021.

Then on January 15, 2021 Appellant fled' aPetition for Allowance of Appeal to

Pennsylvania Supreme Court 26 MAL 2021 which was denied on December 15,

2021. An allegation concerning charges not fully proved at apreliminary hearing
I
does not establish exceptional circumstances justifying immediate appellate review

of the denial of adefendant's pretrial notion to quash/petition for habeas corpus as

such a claim is subterfuge on the sufficiency of the evidence, and this type of

assertion does not come within the ambit of the exceptional circumstance criterion.

Commonwealth v. Burkett, 507 A.2d 1266 (Pa. Super. 1986).

Still not taking no for an answer on August 31, 2021 Appellant filed another

Petition for Writ of Habeas Corpus. On September 29, 2021 the motion and petition

were denied. On January 5, 2022 Appellant filed another Petition for Writ of Habeas

Corpus following the Superior Court January 3, 2022 decision in Commonwealth v.

Harris, 269 A.3d 534 (Pa. Super. 2022). On January 20, 2022 this court, finding

Harris inapplicable to the present case because the evidence presented by the

Commonwealth was admissible, denied the petition.

'If this court had ruled on the motion, the motion would have been denied.

28
 Contrary to Appellant's claim, this court did not commit error and misapply

controlling law of the Pennsylvania Supreme Court in Commonwealth v.

McClelland, 233 A.3d 717 (Pa. 2020) when it concluded the prosecution established

aprimafacie case to hold Appellant for trial. Appellant also argues at the preliminary

stage the prosecution never presented the complainant as awitness and relied solely

upon hearsay.

The facts in Appellant's case are different than McClelland, and the

recognized fault in McClelland, i. e., the Commonwealth used the testimony of astate

trooper concerning "what he heard during child victim's interview with child

specialist to establish prima facie case at preliminary hearing to bind over defendant

for trial and Commonwealth relied solely and exclusively on evidence that would be

inadmissible at trial", was cured by this Court's order granting the Tender Years'

motion and permitting, as recognized exceptions to the hearsay rule, evidence of the

child Victim's statements to the forensic interviewer and the Victim's pictures and

notes. Appellant's arrest and detention were not unlawful and there was evidence of

Appellant's connection to the crimes.

Appellant's interpretation of and argument concerning McClelland is incorrect

and has been exhausted by the copious proceedings in this case, and Appellant's

claim should be quashed.

29
B. The jury selection process was fair and the jury was fair.

Appellant contends the " court erred in denying Mr. Ross' motion to strike for

cause prospective Juror # 42, where the panelist was related to the victim of asimilar

crime and could not commit to being fair". Appellant's September 1, 2022 Statement

of Matters Complained of on Appeal. Additionally, Appellant argues the "trial

court's refusal to remove for cause aprospective juror who could not be impartial

prejudiced Mr. Ross, since he was forced to use apreemptory challenge to eliminate

the unsuitable panelist and exhausted his peremptory strikes in the process". Id.

Appellant concludes the " error resulted in violations of Mr. Ross' rights to due

process and afair trial by an impartial jury, as guaranteed by the state and federal

constitutions, including PA. CONST. Art. 1 § 9 and U.S. CONST. Amends. V, VI,

XIV". Id.

Appellant is wrong in his characterization of the jury selection process as it

pertains to Juror #42 and his conclusion the court erred in not granting Appellant's

motion to strike resulting in violations of Appellant's rights to due process and afair

trial under the U.S. and Pennsylvania constitutions. When ajuror meets statutory

qualifications the determination whether achallenge for cause should be allowed

rests squarely on the discretion of the trial court and the ruling will not be disturbed

unless the trial court clearly has abused discretion. Commonwealth v. Merrick, 488

A.2d 1 (Pa. Super. 1985). The test for determining whether aprospective juror

30
should be disqualified is whether the juror is willing and able to eliminate the

influence of any scruples and render averdict according the evidence, and this is

answered on an evaluation of the juror's answers to the questions and the juror's

demeanor ... it must be determined whether any biases or prejudices can be set aside

on proper instruction of the court. Commonwealth v. Briggs, 12 A.3d 291 (2011). To

prevail on a claim the trial court erred when it denied a challenge for cause, a

defendant must demonstrate the court's rulings affected the defendant's rights to a

fair and impartial jury, and an incompetent juror was forced upon the defendant. A

complaint is baseless when aparty argues they were compelled to use aperemptory

challenge when their challenge for cause properly is overruled.' The right to an

impartial jury may not even be found to be violated when there is an erroneous denial

of achallenge to ajuror for cause.

The January 24, 2022 Notes of Testimony are clear juror number 42 raised

the issue concerning her ability to be fair and impartial in view of her family

experience of the abuse of her niece at the hands of her ex-brother-in-law. She stated

she,would try to be fair and impartial. 1/24/2020 N.T. at p. 130. When questioned

by the court, as well as the attorneys in the case, the juror did not equivocate in her

answers to the court and clearly stated it was possible she would assess the facts of

6It is error for atrial court to force aparty to use aperemptory challenge on aprospective juror whom the trial court
should have excused for cause. .

31
this case on an individual basis. Juror #42 relayed this case might be triggering but

she would hope she would listen to everything that was said but she didn't " want to

say automatically Iwouldn't be more sympathetic'for the victim". Juror #42 agreed

she would hear the testimony of the various parties and then weigh the testimony

and the believability and determine whether the Commonwealth made its case. Juror

#42 stated despite her prior experience she would attempt to separate those issues

from the case and would do her best to be fair and impartial.

Appellant raised achallenge for cause to juror #42. Based on the exchange,

this court concluded Juror #42 could and would follow the court's instructions and

evaluate the facts and evidence in the case, and be afair juror. This court's ruling did

not result in the seating of ajuror who should have been dismissed for cause. The

fact this case is of asensitive nature and the juror's niece was avictim in acase does

not render Juror #42 incompetent to serve, especially when she credibly asserted she

would weigh the evidence and the believability of the testimony. Additionally, even

though Appellant had the opportunity to question Juror #2concerning her particular

biases, Appellant did not probe the nature of the relationship between the juror and

her niece nor whether and what any long term effects of these events had on her.

This court did not restrict the scope of the voir dire of juror #42 and the fact the juror

was related to an individual who was an alleged victim without more is not agrounds

for acause challenge. Admittedly, juror #42 stated it might be somewhat challenging

32
 1

but she admitted she would do her best to be fair and impartial and follow the court's

instructions and she definitely did not express afixed or definite opinion concerning

Appellant's guilt or any predisposition concerning the case generally. Juror #42 was

not in this court's view demonstrating she would be incompetent as ajuror. Appellant

doesn't have to like the decision but the motion itself was not based on the law as it

applies to the jury selection process. And the fact Appellant used all his peremptory

strikes is not of consequence when in actuality the denial of the motion to strike was

proper. Additionally, Appellant failed to show any harm or prejudice. Appellant's

right to exercise peremptory challenges was not impaired by this court. This court's

decision to deny Appellant's motion to strike #42 did not constitute error and this

court did not abuse discretion when it denied Appellant's motion to strike for cause

juror #42. The ruling was not in error because Juror#42 could " commit to being fair"

and was a " suitable panelist". This court's denial of Appellant's motion to strike for

cause prospective Juror #42 was proper and did not result in any prejudice;

Appellant's claim should be quashed.

C. The court's decision to deny Appellant's motion in limine admit
evidence extracted from Appellant's electronic devices at trial was
proper.

On January 24, 2022 Appellant filed "Defendant's Motion in Limine to

Preclude Evidence of Electronic Device Extraction" alleging the Commonwealth

had provided awritten summary and digital analysis of the extractions from the

33
Samsung and ANS phones, adesktop computer, and 3compact discs seized from

Appellant's home during the investigation of this case. The examiner indicated 373

items were identified as important and 11 search terms were found in Google search

history. On January 23, 2023 the Commonwealth sent to Appellant acurriculum

vitae of Detective Christopher Tankelewicz of Delaware Conty Criminal

Investigations Division and a 12 page Forensic Examination report created by

Detective Tankelewicz and 20 pages of spreadsheets associated with the extractions.

Appellant also alleged the Commonwealth had not provided notice of its intent to

call Detective Tankelewicz as an expert during trial. When atrial court's ruling on a

motion in limine is challenged, the standard of review is whether the court committed

abuse odiscretion. Commonwealth v. Stokes, 78 A.3d 644 (Pa. Super. 2013).

1. Discovery

Appellant claims this court erred in denying Mr. Ross' motion in limine and

permitting the prosecution to admit evidence allegedly extracted from Mr. Ross'

electronic devices, " some of which the prosecution did not provide to the defense

until one day prior to trial, since that evidence constitutes mandatory discovery under

Pa.R.Crim.P. 573(B)(1), and its introduction violated Mr. Ross' state and federal

constitutional rights, including PA. CONST. Art. 1 § 9and U.
S.CONST. Amends. V,

VI, XIV".

Pa.R.Crim.P. 573(B)(1) provides in relevant part:

34
(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant, and
subject to any protective order which the Commonwealth might obtain
under this rule, the Commonwealth shall disclose to the defendant's
attorney all of the following requested items or information, provided
they are material to the instant case. The Commonwealth shall, when
applicable, permit the defendant's attorney to inspect and copy or
photograph such items.

(e) any results or reports of scientific tests, expert opinions, and
written or recorded reports of polygraph examinations or other
physical or mental examinations of the defendant that are within
the possession or control of the attorney for the Commonwealth;

Appellant claimed the Commonwealth did not provide notice of its intent to

call or qualify Detective Tankelewicz as an expert witness or advise Appellant

concerning the nature of the expert testimony.

On January 24, 2022 this court held ahearing on AppeIlanfs motion in limine.

During the hearing, Appellant argued he has only been presented several

spreadsheets he had never received before, and he does not know who created them

and they reveal search history results. He also argued this contravenes Pa.R.Crim.P.

573 mandatory disclosure provisions. The Commonwealth responded Appellant was

given all discovery, aphysical extraction of all the devices was provided to counsel

in summer 2021, and an outline concerning the results of the search was provided

and specifically referenced at the preliminary hearing (Commonwealth exhibit C18)

and Detective Tankelewicz is identified in the report as the author, and he is an

35
expert in the field of forensic extractions, and counsel had it. This chain of events

significantly predates trial and serves as adequate notice. The " demonstratives" are

spreadsheets indicating the searches and date they were made. "It's the exact material

taken from the report that was previously provided, as well as the physical

extraction" and the Commonwealth is under no obligation to provide its

demonstratives in advance of trial and we did it as acourtesy. Id. at 9.

Additionally, prior to the hearing and during the hearing, the Court provided

an opportunity to Appellant to continue the trial if Appellant requested, and

Appellant declined. This court having read the motions and listened to argument,

agreed with the Commonwealth the Appellant had adequate notice and denied the

motion in limine concerning discovery. This court did not err or abuse discretion

when it denied Appellant's motion in limine.

2) Relevance

Appellant claims the court erred in denying Appellant's motion in limine and

permitting the prosecution to introduce evidence allegedly extracted from his

electronic devices, including internet search terms and history. Appellant also

contends the evidence is irrelevant, constitutes impermissible character or other

evidence, and any probative value is outweighed by the danger of unfair prejudice,

confusing the issues, and misleading the jury, especially where the prosecution could

not establish who entered the information. See e.g. Pa.R.E. 401-404. "The court's

36
decision to admit this cumulative evidence also caused undue delay, wasted time,

and violated Mr. Ross's state and federal constitutional rights, including PA. CONST.

Art. 1 § 9and U.S. CONST. Amends. V, VI, XIV".

The first question to consider is whether the evidence sought to be excluded

is relevant, and whether the probative value of the evidence outweighs any unfair

prejudice. If it is determined the evidence was admitted in error the question

becomes whether the error is harmless, i.e., is the admitted evidence unfairly

prejudicial. In order to constitute reversible error, and evidentiary ruling must not

only be erroneous, but also unfairly prejudicial to the complaining party.

Commonwealth v. Robinson, 721 A.2d 344 (Pa. 1998), cert. denied, 528 U.S. (2000).

The rules governing whether evidence is relevant are set forth in the

Pennsylvania Rules of Evidence. Pa.R.E. 401 provides evidence is relevant i£

(a) it has any tendency to make afact more or less probable than it
would be without evidence; and

(b) the fact is of consequence in determining the action.

The " Official Commentary" to Pa.R.E. 401 provides in relevant part: whether

evidence has a tendency to make a given fact more or less probable is to be

determined by the court in the light of reason, experience, scientific principles and

the other testimony offered in the case.

Pa.R.E. 402 (
General Admissibility of Relevant Evidence) provides:

Allrelevant evidence is admissible, except as otherwise provided by law. Evidence

37
that is not relevant is not admissible. The " Official Commentary" to Pa.R.E. 402

provides in relevant part: Relevant evidence may be excluded by operation of law,

by statute, by these rules, by other rules promulgated by the Supreme Court or by

rules of evidence created by case law.

Pa.R.E. 403 (Exclusion of Relevant Evidence on Grounds of Prejudice,

Confusion, Waste of Time, or other Reasons" provides in relevant part: The court

may exclude relevant evidence if its probative value is outweighed by adanger of

one or more of the following: unfair prejudice ... The rule defines " unfair prejudice"

as " atendency to suggest decision on an improper basis or to divert the jury's

attention away from its duty of weighing the evidence impartially". Pa.R.E. 403.

Pa.R.E. 404 (b) Character Evidence; Crimes of Other Acts provides in

relevant part:

(1) Prohibited Uses. Evidence of acrime, wrong, or other act is not
admissible to prove aperson's character in order to show that in a
particular occasion the person acted in accordance with the character.

(2) Permitted Uses. The evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of amistake, or lack of accident. In a
criminal case this evidence is admissible only if the probative value of
the evidence outweighs its potential for unfair prejudice.

(3) Notice in aCriminal Case. In acriminal case the prosecutor must
provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of
any such evidence the prosecutor intends to introduce at trial.

38
 Appellant also alleged this evidence and any testimony concerning the search

terms and google search history is not relevant evidence and contravenes Pa.Rs.R.E.

401-401. Appellant argued Appellant's search and viewing of legal adult

pornography has no relevance to this case in which Appellant was charged with

sexually assaulting the child Victim and actually would not assist the jury in

determining whether the allegations are more probable or less probable without the

evidence. Appellant argued the search terms and Google history listed in the

spreadsheets relate to adult pornography and have no relevance to the charges.

Appellant argued they are hearsay and not subject to any exception to the rule against

hearsay, and the Commonwealth is unable to establish who entered the information

of the searches into the devices. Finally Appellant argued the probative value of this

evidence is outweighed by the danger of unfair prejudice and would confuse the jury

and divert its attention away from determining whether the Commonwealth has

presented credible evidence of the crimes. Appellant at the January 24, 2022 hearing

on the motion in limine, and again during trial on January 26, 2022 (see Notes of

Testimony at pp. 175-183) reiterated the same points.

The Commonwealth responded Victim in the forensic interview stated

Appellant would use his phone view pornography during the incidents of abuse and

she could hear moaning from the device, and this corroborates her testimony.

January 24, 2022 Notes of Testimony at p. 9. Additionally, Commonwealth argued

39
the defendant's videos and fantasies are related to child rape and although the actors

in the video may be adults the intent behind it is not changed: the videos are daddy

daughter rape scenarios, daughter giving blow jobs, etc. The Commonwealth argued

Appellant was supposed to be acting as astep-father to Victim, and he watched these

videos at the same time the abusive acts were occurring; evidence can be detrimental

without being unfairly prejudicial, and it does not need to be sanitized; this evidence

is relevant and corroborates Victim's testimony, and it goes to Appellant's motive

and intent, scheme and desire. The Commonwealth pointed out the fact the

Commonwealth was and is intending to use this evidence is not asecret, and it has

been discussed at several previous hearings including all the bail hearings. Id. at 11.

The trial court has broad discretion with regard to the admissibility of

evidence, and it is not required to exclude all evidence that may be prejudicial or

detrimental to Appellant. The standard to be considered by the court is unfairly

prejudial. Appellant does not have to like the fact the court made adecision against

him. The court did not abuse discretion by denying Appellant's motion and making

the determination the Commonwealth could introduce evidence of the electronic

device extraction and the results of the extraction, and Appellant did not suffer unfair

prejudice as aresult of the trial court's decision. Although the testimony/evidence

may have been detrimental to Appellant, even prejudicial, it had probative value and

was not so unfairly prejudicial to warrant exclusion. Additionally, prior to the

40
hearing and during the hearing, the Court provided an opportunity to Appellant to

continue the trial if Appellant requested, and Appellant declined. This court having

read the motions and listened to argument, agreed with the Commonwealth and

denied the motion in limine.

This court did not commit any error, and even if it did, the error is harmless:

no unfair prejudice resulted to Appellant. Appellant's claim should be quashed.

D. The court's decision to admit the transcript and audio recording of
the Victim's forensic interview and Victim's notes and drawings was
proper.

Appellant claims the court erred in admitting the " transcript and audio

recording of the complainant's " forensic" interview (Exhibits C7-C7A)" and "notes

and drawings (Exhibits C22 A-C)" " since they do not qualify as aprior consistent

statement under Pa.R.E.613(c) do not fit within any exceptions to the rule against

hearsay, are unduly prejudicial, and improperly bolster the complainant's testimony.

The court's decision to admit this evidence also violated Mr. Ross' state and federal

constitutional rights, including PA. CONST. Art. 1 § 9and U.
S.CONST. Amends. V,

VI, XIV", Although Appellant timely objected to these items, Appellant is wrong:

these items are admissible as an exception to the rule against hearsay under the

Tender Years Act.

41
 An appellate court generally reviews a trial court's decisions concerning

admissibility of evidence for an abuse of discretion standard. Even if it is deemed

not proper, the error is harmless.

Pa.R.E. 613(c) concerning witness's prior consistent statement to rehabilitate

provides:

Evidence of a witness's prior consistent statement is admissible to
rehabilitated the witness's credibility if the opposing party is given an
opportunity to cross-examine the witness about the statement and the
statement is offered to rebut an express or implied charge of:

(1) fabrication, bias, improper influence or motive, or faulty memory
and the statement was before that which has been charged existed or
arose; or

(2) having made aprior inconsistent statement, which the witness has
denied or explained, and the consistent statement supports the witness's
denial or explanation.

Admission of achild's out-of-court statement is admissible under the Tender

Years' Act, 42 Pa.C.S. § 5985.1 which provides for the admissibility of such evidence

as an exception to the rule against hearsay when certain conditions are satisfied. The

statute provides in relevant part:

General rule. An out-of-court statement made by a child victim or
witness, who at the time the statement was made was 12 years of age
or younger, describing physical abuse, indecent contact or any of the
offenses enumerated in Pa.C.S. Ch. 31 (relating to sexual offenses)
performed with or on the child by another, not otherwise admissible by
statute or rule of evidence, is admissible in evidence in any criminal or
civil proceeding if:

42
 (1) the court finds, in an in camera hearing, that the evidence is relevant
and that the time, content and circumstances of the statement provide
sufficient indicia of reliability; and

(2) the child either;

(i) testifies at the proceeding; or

(ii) is unvailable as awitness.

42 Pa.C.S. § 5985.1.

The law recognizes the fragile nature of young victims of sexual abuse. In

evaluating whether the statements are reliable, the court must consider inter alia the

spontaneity and consistent repetition, mental state of person who made the

statement, terminology, lack of motive to fabricate, suggestive interrogation.

Commonwealth v. Hanawalt, 615 A.2d 432 (Pa. 1992), Commonwealth v. Bean, 677

A.2d 842 (Pa. Super. 1996).

On November 8, 2021 this court held aTender Years Hearing. See November

8, 2021 Notes of Testimony generally. In the present case, this court weighed these

considerations determined the out of court statements, i. e., statements made by

Victim to her cousin Aniyah Leigh and her aunt Octavia Leigh, the video and

transcript and notes and drawings, were admissible at trial. Additionally, in this case

Victim was available to testify, and did testify at trial, and was subject to cross-

examination. This court determined the evidence 1) was admissible under the Tender

Years statute as an exception to the rule against hearsay and 2) did not violate

43
Appellant's constitutional rights. Crawford v. Washington, 541 U.S. 36 (2004). On

November 17, 2021 this court entered an order granting the Commonwealth's

Motion in limine to Introduce Out-of-Court Statements of the Complainant including

the transcript and audio recording of the complainant's forensic interview with

Crystal Gray from the Children's Advocacy Center and notes and drawings. In view

of the court's considerations concerning the admissibility of these items and the

abuse of discretion standard of review in this case, this court's decision to admit these

items was proper, and even if Superior Court deems the admission not proper, the

error is harmless. Appellant's complaint should be quashed.

E. This court did not commit error when it denied Appellant's request
for the prompt complaint jury instruction.

Appellant complains this " court erred in denying Mr. Ross' request for a

prompt complaint jury instruction pursuant to Pa. SSJI (Grim) 4.13A, where the

complainant's delayed reporting removes assurances of credibility and is arelevant

factor for the jury to consider when determining the believability of the allegations.

The court's error also violated Mr. Ross' state and federal constitutional rights,

including PA. CONST. Art. 1 § 9and U.
S.CONST. Amends. V, VI, XIV. Standard of

review is abuse of discretion".

Commonwealth v. Spoke, 580 A.2d 295 (Pa. 1990) addresses whether acourt

is required to instruct a jury for failing to disclose an alleged assault until

significantly later than the time of the assault(s). In Snoke, the issue specifically

44
concerned afive-year-old victim's failure to disclose the alleged assault upon her by

her father until approximately 5 months after the event. The premise of the

contention is the delay in disclosure is of such significance necessitating aspecific

instruction on the lack of aprompt complaint. Under common law the promptness

of a complaint or the "hue and cry" was considered an element for the jury to

consider when weighing the truthfulness of acomplainant. The principle on which

this was based is the victim of aviolent assault would be expected to complain of

the assault at the first safe opportunity, and if acomplaint promptly is made then it

is less likely the victim has had time to fabricate the story and the story is credible.

When acomplaint is delayed substantially without any reasonable explanation, an

inference can be drawn regarding the credibility of that complaint and against

whether the incident in fact occurred. As time progressed, the court recognized

consideration should be given to factors inherent in cases involving minor victims

which may explain adelay without unfavorably reflecting on the minor witnesses'

credibility. The Snoke court stated when "no physical force is used to accomplish

the reprehensible result, achild victim would have no reason to promptly complain

of the wrong-doing, particularly where the person involved is in aposition of

confidence". When a minor victim is involved, a lack of complaint does not

necessarily justify an inference of fabrication.

45
 I

In this case, this court properly denied Appellant's request for an instruction
i

concerning the delay in making acomplaint to be given the jury. This case did not

necessitate the specific instruction on delay, and this court did instruct the jury

thoroughly upon the general subject of credibility in accordance with the suggested

instruction for witness credibility, and these instructions provided the jury with he

factors properly considered in ascertaining witness credibility and under the facts of

this case this was sufficient to permit the jury to ascertain the truthfulness of the

testimony offered by the minor witness as well as of others who testified in this trial.

Victim was younger than 10 years, had made several attempts to notify her mother,

attempts which were thwarted by defendant, made drawings and notes.

This court did not abuse discretion when it denied Appellant's request to have

aprompt complaint instruction for Victim's delay in making acomplaint. Appellant's

claim should be quashed.

F. This court did not manifestly abuse discretion when it imposed
judgment of sentence and the sentence is not manifestly excessive.

Appellant claims the court imposed an aggregate total sentence (including

twenty-eight to sixty-six years' confinement plus eight years' probation) that is

manifestly excessive, contrary to fundamental norms underlying the sentencing

process, based on impermissible factors, and disproportionate to the allegations. The

court failed to supply sufficient reasons in support of the penalty, adequately

46
consider Mr. Ross' background, character, rehabilitative needs, or properly account

for individualized sentencing.

The scope of review when considering a claim the sentence imposed is

manifestly excessive is an abuse of discretion. In Pennsylvania, imposition of a

proper sentence is amatter vested in the sound discretion of the trial court whose

determination is to be respected unless it constitutes amanifest abuse of discretion.

In deciding the proper disposition of the offender, the sentencing court must not

overlook pertinent facts, disregard the force of the evidence, commit an error of law,

or inflict punishment which exceeds the statutory maximum. The sentencing court

must accord weight to the character of the defendant and the particular circumstances

of the offense in light of the sentencing guidelines, and then impose asentence

consistent with the protection of the public, the seriousness of the offense, and the

rehabilitative needs of the defendant. A sentence is not excessive as amatter of law

unless the sentence exceeds the statutory maximum or is manifestly excessive so as

to inflict too severe apunishment. A court also has discretion to determine whether

to make asentence concurrent with or consecutive to other sentences being imposed.

The. court even has determined asentence outside the guideline was reasonable in

view of the sentencing court's findings concerning the age of victim (7years), the

defendant was in aposition of trust and responsibility, victim was defendant's

47
granddaughter, and defendant characterized his assaults as accidents.

Commonwealth v. Walls, 926 A.2d 957 (
Pa. 2007).

In the present case, this court's reasons for imposing sentence were neither

improper, impermissible, or unreasonable. The record supports this court's reasons

for the sentence. 42 Pa.C.S. § 9721 requires the court to consider certain factors

when determining sentence. This court has adeep understanding of the facts of this

case and the legal proceedings which have occurred since Appellant's arrest. This

court entertained many pretrial motions, presided over the jury trial, and imposed

sentence.

In preparation for Appellant's sentencing hearing, this court reviewed and

recalled the facts and legal proceedings, including the evidence presented and

admitted during the jury trial, read and reviewed the February 15, 2022 Psychiatric

Evaluation report submitted by Dr. Olu Fakiyesi M.D., the February 17, 2022

Psychosexual Evaluation report submitted by Catherine Surbeck Ph.D., the March

9, 2022 Psychological Evaluation report submitted by Gail Martin, Psy.D., the

March 15, 2022 Presentence Investigation report submitted by Avery Singleton-

Keyes, Presentence Investigator and Jeff Roney Deputy Director, both from

Delaware County Adult Probation and Parole Services, the March 25, 2022

Substance Abuse Evaluation report submitted by Jennifer Ma7.7oni O'Connor, M.S.

Drug and Alcohol Evaluator from the George W. Hill Correctional Facility

48
Department of Diagnostic Services, and read and reviewed the Commonwealth's
i
May 11, 2022 Sentencing Memorandum and Appellant's May 13, 2022 Sentencing

Memorandum. This court considered the assessment from the Sex Offender

Assessment Board, and noted was not determined to be asexually violent predator.

Id.

During the sentencing hearing, this court listened to the attorney for the

Commonwealth concerning the reasons for the sentence recommendation including

the gravity of the offenses involved and the period of time over which the criminal

activities occurred and highlighted Victim's tender age at the time of the offenses.

This court also listened to the statement of Victim and the Commonwealth's

presentation of the sentiments of Victim's aunt who was present in the courtroom

and instrumental in notifying Victim's mother and made areport to police. Id. at. 8.

This court also listened to the comments from Appellant's counsel,

highlighting factors for the court's consideration concerning Appellant's age, lack of

criminal history, no previous arrests, work history and education, mental health

issues and issues with marijuana, good behavior while confined, and " the testimony

we heard at trial was that this was one continuing criminal episode". Id. at 14. This

court also considered Appellant's fervent denial of the charges, and the statement

advanced by Appellant for him " to ever be paroled from astate facility he will have

to make certain admissions as far as the truth of the allegations here. So, that's
another factor Ithink that should be considered. If we impose asentence of 37 to 70

years Ithink at that point we're looking at almost ade facto life sentence and there's

very little incentive there for an individual to really take full advantage of any

treatment opportunities, make admissions, things like that. Whereas if we, you know,

if there's, in situations where the court can place alight at the end of the tunnel I

think that the likelihood of an individual being rehabilitated and the unlikelihood of

them reoffending Ithink can truly take place. So, again, that's why Ithink the

concurrent time is appropriate in this case and that's why Ithink that a10 to 20 with

a probationary tail is certainly sufficient to satisfy the interests of the

Commonwealth, as well as Mr. Ross' rehabilitative needs." Id. at 17.

To be clear, this court takes offense at Appellant's implications 1) these many

separate assaults on Victim at the hands of Defendant constitute one continuing

criminal episode and 2) the sentence imposed would be tantamount to ade facto life

sentence in the scenario where Appellant could not make parole if he did not make

"certain admissions as far as the truth of the allegations ", i.e., that he repeatedly over

the course of at least 2 years sexually assaulted a child. Appellant's argument

absolutely is unpersuasive with this court. The law regarding sentencing and parole

is not based on hope; it is, rather, based on the sentencing guidelines and the

sentencing statute for the crimes on which aperson was convicted, and it requires

the sentencing court to consider inter alia the protection of the public and the victim,

50
the impact on the victim, and Appellant's rehabilitative needs. This system is

intended to be punitive, and it actually requires Appellant take responsibility and

accountability for the role he played in the case and the decisions he made. This is

not arun of the mill car theft or drug case and the fact of the absolute victimization

of Victim at the hands of Appellant is not overlooked by this court. Moreover,

speculation does not belong in the law. The sentencing statute requires alot but for

sure aside from aminimum term of confinement it does not require speculation on

the part of the court concerning when adefendant might be paroled. The law also

does not require adefendant be happy with the outcome of his case or the sentence

imposed.

Conforming to 42 Pa.C.S. § 9721 this court considered the sentence for total

confinement of 28-66 years was consistent with 42 Pa.C.S. §9725 and the protection

of the public, the gravity of the offense as it relates to the impact on the life of the

victim and the community, the rehabilitative needs of Appellant. This court

considered the sentencing guidelines and stated these reasons for the sentence

imposed. May 16, 2022 Notes of Testimony at p. 4. The sentence imposed by this

court was within the guidelines, and under the totality of the circumstances and the

facts of record in this case, the sentence was not excessive and it was proportionate

to the allegations. Contrary to Appellant's claim, the punitive aspect of the sentence

is appropriate; the sentence is not manifestly excessive, contrary to fundamental

51
norms underlying the sentencing process, based on impermissible factors, or

disproportionate to the allegations. The court on the record provided sufficient

reasons in support of the penalty, adequately considered Appellant's background,

character, and rehabilitative needs, and properly accounted for individualized

sentencing. There was no abuse of discretion. Appellant's claim is erroneous and is

contrary to the record, and should be quashed.

G. This court's requirement for Appellant's lifetime registration
underAct 29 Sexual Offender Registration Notification Act (SORNA)
is legal.

Appellant claims the sentence imposing Act 29 sexual offender registration is

illegal. He argues the requirement violates Appellant's substantive and procedural

due process rights under the Pennsylvania Constitution and his procedural due

process rights under the United States Constitution and constitutes adisproportionate

criminal penalty and violates the separation of powers doctrine by usurping

exclusive judicial adjudicatory and sentencing authority. Appellant also alleges this

contravenes U.S. Const. Amends. V, VI, XIV, and the Pennsylvania Constitution's

corresponding protections that require ajury must find beyond areasonable doubt

every fact necessary to support the imposition of mandatory or enhanced

punishment. Finally Appellant urges this court to stay the registration requirement

pending resolution of Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020).

52
Appellant's claim concerning the legality of his sentence is flawed as it applies to

registration under SORNA.

Challenges to the constitutionality of Subchapter H under the Eighth

Amendment of the US Constitution can be raised for the first time on appeal.

Commonwealth v. Thorne, 276 A.3d 1192 (Pa. 2022). Sex offender registration

requirements are characterized as collateral consequences of aconviction and their

imposition does not implicate the legality of sentence. Commonwealth v. Strafford,

194 A.3d 168 (Pa. Super. 2018). A legislative act is presumed constitutional and the

court will only find it unconstitutional if it clearly palpable and plainly violates the

constitution. Commonwealth v. Killinger, 888 A.2d 592 (Pa. 2005). At the present

time, revised Subchapter H's registration provisions have not been declared

unconstitutional. Commonwealth v. Torsieleri, 232 A.3d 567 (Pa. 2020).

Appellant was assessed by the Sexual Offender Assessment Board and on

April 20, 2022the assessment was submitted to the Office of the District Attorney.

Appellant was convicted of more than one crime satisfying the Act 29 statutory

requirement for lifetime registration. Additionally Appellant's registration

requirements in this case are considered aconstitutional, non-punitive, collateral

consequence of his conviction, and his claim presented only as achallenge to the

legality of his sentence fails. Appellant's argument the Pennsylvania Constitution's

protections requiring a jury must find beyond a reasonable doubt every fact

53
necessary to support the imposition of mandatory or enhanced punishment is not

applicable. This court's requirement mandating in this case Appellant's lifetime

registration under SORNA is not illegal, does not violate or contravene any

constitutional rights, and should not be stayed based on the present state of

Pennsylvania law, and Appellant's claim should be dismissed.

IV. CONCLUSION

This court did not commit error or abuse discretion concerning: the

determination the Commonwealth established aprima facie case against Appellant;

the decision not to strike Juror #42 for cause; the denial of Appellant's motion in

limine to prohibit admissibility of the forsensic interview recording and transcript or

the notes and drawings; the denial of Appellant's request for aprompt complaint jury

instruction. Additionally this court conformed to the sentencing statute 42 Pa.C.S.

9721 and did not impose a manifestly excessive sentence. Finally this court
vC— N

requiring Appellant's lifetime registration under SORNA did not imposAlgillegkt
--

sentence. This appeal should be quashed and judgment of sentence; ; tld cye

affirmed.' a

BY THE COURT: R
k

li f

RICHARD M. CAPftLLI, J.

cc: Kelly Wear, Assistant District Attorney, Law and Appeals Unit ( via email)
Erica Bellino, Law and Appeals Unit Coordinator (via email)
Steven M. Papi, Esquire, Attorney for Defendant (via email)

54