Com. v. Mancuso, D.

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2026 PA Super 70

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DAMIEN MANCUSO :

:

Appellant : No. 247 MDA 2024

Appeal from the Judgment of Sentence Entered July 21, 2023

In the Court of Common Pleas of Lackawanna County

Criminal Division at No: CP-35-CR-0001822-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SEAN DAVID MANCUSO :

:

Appellant : No. 280 MDA 2024

Appeal from the Judgment of Sentence Entered July 21, 2023

In the Court of Common Pleas of Lackawanna County

Criminal Division at No: CP-35-CR-0001774-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RIAN DANA MANCUSO :

:

Appellant : No. 432 MDA 2024

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Appeal from the Judgment of Sentence Entered July 21, 2023

In the Court of Common Pleas of Lackawanna County

Criminal Division at No: CP-35-CR-0001773-2020

BEFORE: BOWES, J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY STABILE, J.: FILED APRIL 10, 2026

Three brothers, Appellants Damien Mancuso (“Damien”), Sean Mancuso

(“Sean”), and Rian Dana Mancuso (“Rian”), were tried together and were

convicted of various sexual offenses against a single complainant, B.P. The

court sentenced each appellant to a term of imprisonment. Because

Appellants are brothers who were tried together, we decide their appeals in a

single opinion for ease of disposition. We reverse Damien’s judgment of

sentence on due process grounds pursuant to Commonwealth v. Devlin,

333 A.2d 888 (Pa. 1975), as a result of the Commonwealth’s failure to specify

the date of his offense with sufficient particularity. We reverse Rian’s

judgment of sentence and remand for a new trial because (1) the court abused

its discretion by consolidating his trial with Damien’s trial, and (2) the

Commonwealth made prejudicial comments during closing argument that

encouraged the jury to find Rian guilty by association with his brothers.

Finally, we affirm Sean’s convictions but remand for resentencing because the

trial court erred by failing to merge his convictions for involuntary deviate

sexual intercourse (“IDSI”) and indecent assault for purposes of sentencing.

____________________________________________

* Former Justice specially assigned to the Superior Court.

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The trial court summarized the evidence adduced during Appellants’ trial

as follows:

The victim, B.P., was a minor at the time of the above-mentioned

incidents, but at the time of trial she was thirty-three (33) years

of age. B.P. testified that in the year 2003, at a time when she

was fourteen (14) years old, she began to frequent a business

known as Adventure Games, located on Route 6, in Lackawanna

County. B.P. indicated that the business consisted of a retail store

as well as a place for individuals to gather socially and play

card/board games and video games, such as Dance Dance

Revolution (DDR).

B.P. stated that Adventure Games was located in the former K-

Mart plaza and that the inside of the business consisted of two

rooms. The left side contained computers and an area to purchase

supplies and snacks. The right-hand side was separated from the

left and could only be accessed through an exterior door on the

front of the building. B.P. indicated that the right-hand side of the

business was known as the DDR room.

B.P. stated that Adventure Games became a big part of her life

because at that time she did not have many friends and Adventure

Games was where her friends were and where she could be

herself. B.P. testified that she frequented Adventure Games

“[a]pproximately three or four times a week.” She also testified

that she learned that Sean Mancuso was the owner of Adventure

Games when he introduced himself to her and showed her around

the establishment. B.P. further testified that after patronizing the

business for some time, she met Damien as well as Rian Mancuso

and learned that Rian and Sean were brothers of Damien. B.P.

stated that both Damien and Rian were both adults as opposed to

minors and frequented Adventure Games at the times that she

did.

B.P. further testified that she received special treatment from

Damien, Sean and Rian. She indicated that she turned fourteen

years old on August 25, 2003, and after this time an inappropriate

interaction took place with Rian. B.P. explained that while she

was sitting in the DDR room when Rian joined her and they began

engaging in conversation. She testified that Rian commented as

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to her appearance and maturity related to her age. B.P. further

stated that the conversation turned to the topic of her menstrual

cycle and the notion of having sexual intercourse with females

during their period. B.P. testified that

During the course of that conversation he took my

hand, and he placed it over his pants on his now erect

penis. I-I froze at first, and then I kind of jumped up,

stood up. And that’s when he lifted — I was wearing

a dress. That’s when he lifted my skirt to place his

face to my genital region or my underwear and

inhaled.

B.P. further testified that when Rian did this, he pressed his nose

and mouth against her vaginal area. She stated that after she

froze, she “let out a yelp, a shout[,]” after which Sean entered the

DDR room and asked her to wait outside while he spoke to Rian.

B.P. indicated that she left the DDR room via the front door, which

led out to the parking lot where she waited for Sean. She stated

that Sean joined her outside and asked her to walk with him and

that they needed to have a discussion. B.P. testified that Sean

“explained to [her] that girls like [her] could get guys like his

brother, Rian, in trouble. And that it was [her] responsibility to

make sure that [she] didn’t put [herself] in positions where good

men could be in trouble.”

B.P. further stated that she and Sean walked around to the rear

of the building. B.P. testified while at the rear of the building,

Sean “explained to [her] that just like [she] could get his brother

in trouble he needed to have something on [her] that he could use

to get [her] in trouble. And that was fair, fair is fair.” B.P. stated

that she informed Sean that she “would do anything.” B.P.

testified that Sean stated, “You’re going to have to give me some

kisses.” B.P. stated that she assumed Sean wanted her [to] kiss

his face and when she tried to comply, Sean stated, “That’s not

what we’re talking about. That’s not what I meant.” B.P. stated

that Sean “undid his jeans and exposed his penis, and he

instructed [her] that [she] was to kiss him.” B.P. testified that

she was “instructed to kiss the tip and the shaft.”

B.P. indicated that she complied with Sean’s request and kissed

his now erect penis “five or six times[,]” as he directed her as to

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how and where to kiss him. B.P. stated that after Sean told her

she could stop, he “smooshed the end—the tip of his penis into

[her] lips.” After which, B.P. testified that Sean explained to her

“that now he has something because he would tell everybody

[she] was a slut[]” and “that everybody would find out that [she]

was gross, and that [she] would lose [her] friends and [her]

hangout spot[.]”1

B.P. stated that after her encounter with Sean she believed, as a

fourteen-year-old child, that all things were even and at that time

other individuals her age began to appear at Adventure Games,

so she stayed to interact with those individuals.

B.P. further testified that she continued to frequent Adventure

Games as Sean instructed her to do so to avoid any suspicion and

because it’s the place that her friends socialized, and that social

aspect mattered to her at the time because she “didn’t have

anything else.”

During her testimony, B.P. stated that she continued to frequent

Adventure Games. B.P. testified that she also had an encounter

with Damien, roughly two years later, when she was sixteen years

old. She stated that at the time she was sixteen years old [and]

resided with her grandmother in Peckville, Pennsylvania. B.P.

testified that while living with her grandmother, her grandmother

imposed a curfew on her, which she attempted to regularly abide

by.

B.P. testified that on one occasion she was at Adventure Games,

and she made a request to the group of individuals there for a ride

home. B.P. stated that Damien offered to drive her home that

evening and she accepted that offer. B.P. testified that, on that

evening, Damien drove, what she described as a boxy, four-door

car. She further testified that she sat in the front passenger seat

as Damien drove.

B.P. testified that the two departed from Adventure Games and

drove towards Peckville, but Damien detoured to the area of the

____________________________________________

1 We note that B.P. added that Sean told her that “if anybody ever found out

[about this incident] he’d have to kill me.” N.T., 10/17/22, at 63. B.P.

believed him. Id.

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vacant Walmart and Wegman’s grocery store near Route 6 in

Dickson City, Pennsylvania. She testified that she said to Damien,

“Hey, I don’t live at Wegmans.” B.P. then testified that Damien

pulled into the parking lot of the vacant Walmart.

B.P. testified that after Damien parked in the lot of the vacant

Walmart, he told her that she needed to pay for the ride and that

she should have known that. She testified that she [was told she]

could pay for the ride with “[a]ss, cash, or grass.” B.P. informed

Damien that she did not have anything and was confused since

Damien agreed to drive her home. She testified that Damien

became angry and when she noticed his mood had changed, she

attempted to exit the vehicle. B.P. stated that as she did this,

Damien pulled her back into the vehicle, closed the car door, held

her by the neck and throat, and undid his pants.

B.P. testified that [Damien] told her, “You’re either going to suck

my dick or I’m going to fucking kill you.” She stated that she was

afraid for her safety because Damien was larger and much

stronger than her and already held her by her neck. B.P. testified

that after he threatened her, he began to pull her head down

toward his now exposed penis. B.P. testified that she proceeded

to perform oral sex on Damien until completion, wherein she

indicated that he ejaculated into her mouth. She stated that once

this occurred, Damien pushed her off him and she quickly exited

the vehicle. B.P. testified that at that point she spit Damien’s

semen onto the ground and proceeded into the Wegman’s grocery

store where she rinsed out her mouth and purchased a Gatorade.

She testified that she immediately started to walk to her

grandmother’s house and when she arrived she was admonished

for breaking her curfew.

B.P. testified that she did not inform her grandmother as to what

occurred with Damien. However, she stated that she did inform

Sean. B.P. testified that in response, Sean stated, “Of course

[Damien] was going to expect some kind of payment for a ride.

There’s no such thing as a free lunch.” B.P. further testified that

Sean insinuated that she created the situation and directed her to

keep the situation private, as before with himself and Rian.

Pa.R.A.P. 1925 Opinion, Commonwealth v. Damien Mancuso, 10/8/24, at

3-8 (citations omitted; cleaned up).

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In October 2019, well over a decade after the events in question, B.P.

reported the incidents to Detective Michelle Mancuso2 of the Lackwanna

County District Attorney’s Office. N.T., 10/18/22 (PM), at 20-21. In 2020,

the Commonwealth filed informations against Appellants alleging that they

committed their offenses over a five-year period between January 1, 2003,

through December 31, 2007.

The original information against Damien charged him with IDSI and

corruption of minors. The original information against Rian charged him with

corruption of minors and indecent assault under 18 Pa.C.S.A. § 3126(a)(1)

and (a)(8). Each of the charges against Rian alleged that he forcefully lifted

B.P.’s skirt and smelled her vagina.

On November 24, 2020, the Commonwealth filed an amended

information against Damien charging him with committing IDSI, sexual

assault, corruption of minors and indecent assault against B.P. between

January 1, 2003 and December 31, 2007.

The court ordered all pretrial motions to be filed on or before February

1, 2021. On February 3, 2021, Damien filed a pretrial motion to dismiss the

charges against him. His motion asserted that B.P. reported to the police that

Damien had assaulted her on one occasion “in the fall after her sixteenth

____________________________________________

2 Detective Mancuso is not related to Appellants. N.T., 10/18/22 (PM), at 20.

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birthday.” Omnibus Pretrial Motions, 2/3/21, at 4 (cleaned up). Damien

objected to the Commonwealth’s inability to specify the date during the five-

year period alleged in the amended information in which he allegedly

assaulted B.P. Id. at 9, 14. Due to this lack of specificity, Damien continued,

he could not present an alibi defense or present witnesses in support of an

alibi, thus violating his due process rights under the United States and

Pennsylvania Constitutions. Id. Damien and Rian also moved to sever the

charges against them from the charges against their other brothers.

On March 3, 2021, the Commonwealth filed a second amended

information against Damien charging him with committing IDSI, sexual

assault, corruption of minors and indecent assault against B.P. “between

Thursday, the 25th day of August, 2005 and Thursday, the 24th day of August,

2006,” a one-year period in which B.P. was sixteen years old. Second

Amended Information, Commonwealth v. Damien Mancuso, 3/3/21.3

On April 30, 2021, the court convened a hearing on Appellants’ pretrial

motions. During the hearing, Damien acknowledged that the second amended

____________________________________________

3 The Commonwealth also filed amended informations against Sean and Rian

alleging that their offenses took place over a one-year period between August

25, 2003, and August 24, 2004, when B.P. was fourteen.

The Commonwealth ultimately proceeded to trial against Rian on the charges

of corruption of minors and indecent contact under 18 Pa.C.S.A. § 3126(a)(1).

As to each of these charges, the Commonwealth made the same allegation

that it made in the original information—Rian forcefully lifted B.P.’s skirt and

smelled her vagina.

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information reduced the date range of his alleged offenses from five years to

one year. N.T., 4/30/21, at 5-6. He argued, however, that the one-year

timeframe was still overly broad and made it impossible for him to pursue a

potential alibi defense. Id. at 6-9. Damien noted that B.P. was no longer a

minor4 and therefore should be able to identify the date or date range with

better specificity. Id.

On December 3, 2021, the court denied Damien’s motion for dismissal.

Order, 12/3/21, at n.1 (declining to dismiss on ground that Commonwealth

did not provide precise date of assault; concluding that Damien’s reliance on

Devlin, supra, was “misplaced”). The court also denied Damien’s and Rian’s

motions for severance. Id.

On October 11, 2022, the Commonwealth filed a third amended

information against Damien in which it withdrew two charges previously

alleged against Damien, sexual assault and indecent assault. The third

amended information alleged that the remaining two charges, IDSI and

corruption of minors, took place “between Thursday, the 25th day of August,

2005 and Thursday, the 24th day of August, 2006.” Third Amended

Information, Commonwealth v. Damien Mancuso, 10/11/22. The third

amended information, like the second amended information, alleged that

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4 At the time of the pretrial hearing, B.P. was either 31 or 32 years old. As

stated above, she was 33 years old at the time of trial.

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Damien’s offenses took place during a one-year period in which B.P. was

sixteen years old. Id.

Following a three-day trial, a jury convicted (1) Damien of IDSI and

corruption of minors, (2) Sean of IDSI, corruption of minors, and indecent

assault, and (3) Rian of corruption of minors and indecent contact. The court

sentenced Damien to 5-10 years’ imprisonment, Sean to 96-194 months’

imprisonment, and Rian to 6-12 months’ imprisonment.

TIMELINESS OF APPEALS

Before proceeding with the merits of these appeals, we examine

whether each appeal is timely.

On July 21, 2023, the court sentenced all three appellants. On July 30,

2023, Damien filed timely post-sentence motions within ten days after

sentencing raising, inter alia, a motion for judgment of acquittal due to the

Commonwealth’s failure to specify the date of Damien’s offense with a

sufficient degree of particularity. On January 29, 2024, the clerk of the trial

court entered an order denying the post-sentence motions by operation of

law. On February 13, 2024, Damien appealed to this Court. Both Damien and

the trial court complied with Pa.R.A.P. 1925.

Similarly, on July 28, 2023, Rian filed timely post-sentence motions

within ten days after sentencing. On February 27, 2024, the clerk of the trial

court entered an order denying the post-sentence motions by operation of

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law. On March 22, 2024, Rian appealed to this Court. Both Rian and the trial

court complied with Pa.R.A.P. 1925.

Both Damien’s and Rian’s appeals are timely. A notice of appeal must

be filed within 30 days of the entry of the order being appealed. Pa.R.A.P.

903(a). If the defendant files a timely post-sentence motion, the notice of

appeal shall be filed within 30 days of the entry of the order deciding the

motion. Pa.R.Crim.P. 720(A)(2)(a). The trial court has 120 days to decide a

post-sentence motion, and if it fails to decide the motion within that period,

the motion is deemed denied by operation of law. Pa.R.Crim.P. 720(B)(3)(a).

When the motion is deemed denied by operation of law, the clerk of courts

shall enter an order deeming the motion denied on behalf of the trial court

and serve copies on the parties. Pa.R.Crim.P. 720(B)(3)(c). A court

breakdown occurs, however, when the clerk fails to enter an order within the

120-day period deeming post-sentence motions denied by operation of law

pursuant to Rule 720(B)(3)(c). See Commonwealth v. Patterson, 940 A.2d

493, 498-99 (Pa. Super. 2007) (citing Commonwealth v. Perry, 820 A.2d

734, 735 (Pa. Super. 2003)). When such a breakdown occurs, an appeal filed

within 30 days of an order entered outside the 120-day window is timely.

Commonwealth v. Braykovich, 664 A.2d 133, 137-38 (Pa. Super. 1995).

Here, the 120-day period for decision on Damien’s post-sentence motion

expired on November 27, 2023, but the clerk of courts failed to enter an order

deeming the motion until January 29, 2024. Since Damien filed his notice of

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appeal on February 13, 2024, within thirty days of the order, his appeal is

timely. Braykovich, 664 A.2d at 137-38.

Similarly, the 120-day period for decision on Rian’s post-sentence

motion expired on Monday, November 26, 2023, but the clerk of courts failed

to enter an order deeming the motion until February 27, 2024. Since Rian

filed his notice of appeal on March 22, 2024, within thirty days of the order,

his appeal is timely. Id.

The facts relating to Sean’s appeal are somewhat different. On July 21,

2023, the court sentenced Sean. On August 1, 2023, the court entered an

“Order Granting Motion for Extension of Time” purporting to grant Sean’s

motion for extension of time and giving him until August 25, 2023 to file any

post-sentence motions, even though no motion for extension appears on the

trial court docket or in the record. On August 18, 2023, Sean filed counseled

post-sentence motions. On January 24, 2024, the court entered an order

denying Sean’s post-sentence motions by operation of law. On February 20,

2024, Sean filed a notice of appeal. Both Sean and the trial court complied

with Pa.R.A.P. 1925.

Procedurally, Sean’s August 18, 2023 post-sentence motions were

untimely and did not toll the 30-day appeal period, since he did not file post-

sentence motions within 10 days after sentencing, and there is no motion in

the record seeking an extension of time within which to file post-sentence

motions. See Pa.R.Crim. 720(B)(3)(b) (upon motion within the 120-day

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period, the judge may grant one 30-day extension). Nevertheless, the August

1, 2023 order advised that Sean had until August 25, 2023 to file post-

sentence motions. In our view, a breakdown occurred in the operation of the

court because it granted an extension despite the absence of a timely filed

motion for an extension. This breakdown excuses Sean’s untimely motions.

Cf. Patterson, supra.

The 120-day period for decision on Sean’s post-sentence motions

expired on Monday, December 18, 2023, but the clerk of courts failed to enter

an order deeming the motion until January 20, 2024. Since Sean filed his

notice of appeal on February 20, 2024, within 30 days of the order, his appeal

is timely. Id. Both Sean and the trial court complied with Pa.R.A.P. 1925.

Having determined that each of these three appeals are timely, we now

may proceed to address the merits of each of them.

DAMIEN’S APPEAL

Damien raises the following issues in his appeal, which we re-order for

purposes of convenience:

I. Whether the trial court erred in finding sufficient evidence and

rejecting [Damien’s] due process challenge where the

complainant alleged that [Damien] assaulted her one time

approximately fifteen years before the accusation and she could

not narrow the date of the incident down to anything more specific

than a one-year range, thereby making it impossible for Appellant

to defend against the allegations.

II. Whether the trial court erred in granting the Commonwealth’s

motion to consolidate [Damien’s] case with the cases of his co-

defendants given that the cases had nothing in common other

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than the location of the alleged assaults and the last names of the

defendants, the two isolated incidents were separated by

approximately two years, and the consolidation of the charges

resulted in overwhelming prejudice and guilt by association in an

otherwise extremely weak case.

III. Whether the trial court should have granted the post-sentence

motion for a new trial because the verdict was against the weight

of the evidence.

Damien’s Brief at 5.

Because we find Damien’s first issue has merit and is dispositive of his

appeal, we do not address his second and third issues.

Damien argues that the court erred in finding the evidence sufficient to

convict him of IDSI and corruption of minors due to the Commonwealth’s

failure to prove the date of his alleged assault on B.P. with sufficient

particularity. Relying on Devlin, Damien contends that the Commonwealth

deprived him of his due process right to present a defense by alleging in the

second and third amended informations that the assault took place over a

one-year period and failing to narrow this time period during trial.5

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5 We observe that Damien filed pretrial motions raising his due process

argument on February 3, 2021, two days after the February 1, 2021 deadline

ordered by the trial court. The trial court reviewed Damien’s untimely motions

on the merits, as it had the discretion to do. See Commonwealth v.

Westlake, 295 A.3d 1281, 1286-87 (Pa. Super. 2023). The Commonwealth

did not object to Damien’s tardiness in the trial court or in this Court.

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With respect to this issue, we summarize the due process responsibilities

shouldered by the Commonwealth both in its charging instrument against the

defendant and during trial:

The United States Supreme Court held in Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that the Due

Process Clause as incorporated by the Fourteenth Amendment

requires that all convictions be supported by “sufficient proof —

defined as evidence necessary to convince a trier of fact beyond a

reasonable doubt of the existence of every element of the

offense.” Id. at 316, 99 S.Ct. 2781. We follow that approach, as

stated in Commonwealth v. Brown, 617 Pa. 107, 52 A.3d 1139

(2012):

First, our standard of review, like the Jackson

standard, recognizes the proper regard an appellate

court must give to the fact-finder's evaluation of all of

the evidence received at trial and, therefore, requires

scrutiny of the totality of that evidence in the light

most favorable to the Commonwealth, as verdict

winner, and to draw all reasonable inferences in favor

of the Commonwealth. Further, our Court’s

determination of the ultimate question of evidentiary

sufficiency parallels the central inquiry under the

Jackson standard, namely, whether any rational trier

of fact could have found the essential elements of the

crime beyond a reasonable doubt.

Id. at 1164 (citations, internal quotation marks, and footnote

omitted).

The Jackson decision protects due process in a particular way: it

operates as a check on the quality of the government’s evidence

in proving the crimes. Separately, due process requires that the

Commonwealth give fair notice in the charging instrument. “In

criminal ... matters, the United States Supreme Court has

discerned a due process requirement that alleged misconduct

must be identified with particularity in the essential notice

conferred.” In re R.M., 567 Pa. 646, 790 A.2d 300, 305 (2002).

The criminal information “sets the stage for trial and what the

Commonwealth intends to prove.” Commonwealth v. King, 660

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Pa. 482, 234 A.3d 549, 563 (2020). This implicates basic due

process protections. “No principle of procedural due process is

more clearly established than that notice of the specific charge,

and a chance to be heard in a trial of the issues raised by that

charge, if desired, are among the constitutional rights of every

accused in a criminal proceeding in all courts, state or federal.”

Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644

(1948). These due process protections are linked to the due

process protections encompassed by a sufficiency-of-the-

evidence claim. The charging document puts the defendant on

notice of what the Commonwealth intends to prove, and, in turn,

the evidence presented at trial must be of sufficient quality to

enable a rational fact-finder to conclude that the Commonwealth

has proved the crimes specified within the information beyond a

reasonable doubt.

Commonwealth v. Martin, 323 A.3d 807, 817 (Pa. Super. 2024).

Our Supreme Court has further observed:

Just as it requires a criminal statute to give fair warning of the

conduct proscribed, see, e.g., Commonwealth v. Magliocco,

584 Pa. 244, 883 A.2d 479, 487 (2005), due process requires that

the criminal information provide fair notice of every crime of which

a criminal defendant is accused, see Commonwealth v. Khorey,

521 Pa. 1, 555 A.2d 100, 108 (1989) … To comport with due

process, the notice provided must be sufficiently specific so as to

allow the defendant to prepare any available defenses should he

exercise his right to a trial. Commonwealth v. Little, 455 Pa.

163, 314 A.2d 270, 273 (1974). Such notice ensures that, if the

Commonwealth prevails at trial, the defendant’s conviction is not

arbitrary or oppressive. See Commonwealth v. Kratsas, 564

Pa. 36, 764 A.2d 20, 27 (2001) (noting that the fundamental

fairness embodied in the Due Process Clauses of the United States

and Pennsylvania Constitutions entitles “every individual to be

free from arbitrary or oppressive government conduct”).

Commonwealth v. Sims, 591 Pa. 506, 919 A.2d 931, 939-40 (2007).

To implement these due process principles, the Rules of Criminal

Procedure require an information to contain “the date when the offense is

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alleged to have been committed if the precise date is known … provided that

if the precise date is not known or if the offense is a continuing one, an

allegation that it was committed on or about any date within the

period fixed by the statute of limitations …” Pa.R.Crim.P. 560(B)(3).

(emphasis added).

With these due process principles in place, we turn to our Supreme

Court’s decision in Devlin. There, the defendant was accused of sodomizing

a 22-year-old victim “who had the mental ability of a first or second grade

child and the emotional stability of an even younger child.” Id., 333 A.2d at

889. The defendant worked for a social agency and one of his roles was to

supervise the victim’s earnings and distribute them to the victim. This

required the victim to visit the defendant’s home twice a day for funds for

lunch and dinner. One evening, the victim approached two police officers and

stated that the defendant had perpetrated acts of sodomy upon him. This

assault occurred on only one visit to the defendant’s home. The victim

testified that “‘it was real dark outside’” during this visit, but he “could not

give any indication as to the time of year, the month, day, or date when the

crime occurred.” Id. at 889.

The indictment alleged that the defendant committed sodomy on or

about April 16, 1972, even though the victim had reported the incident to the

police two days earlier, on April 14, 1972. The only proof at trial was that the

crime took place sometime between February 1971 to April 1972. During

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cross-examination, the defense attempted to discredit the victim’s testimony

by showing that two of his friends encouraged him to lodge a false accusation

against the defendant so that the victim would receive more of his own funds

from the defendant. The victim’s testimony during cross-examination was

“highly uncertain and contradictory,” id. at 890, but he reasserted that the

defendant had sodomized him. At the close of the Commonwealth’s case, the

defendant demurred to the prosecution’s evidence on the ground that the

Commonwealth had not fixed the date of the crime with sufficient particularity,

and thus the charge was impossible to defend. Id. at 890. The trial court

denied the demurrer, id., and a jury found the defendant guilty of sodomy.

This Court affirmed in a per curiam order. Commonwealth v. Devlin,

225 Pa. Super. 138, 310 A.2d 310 (1973). The majority did not issue an

opinion despite two dissenting opinions. Judge Hoffman, joined by another

judge, dissented on the ground that, inter alia, “It would be an impossible

burden for the defendant to offer an alibi for a fourteen month period.” Id.,

310 A.2d at 312. Judge Spaeth concurred in Judge Hoffman’s dissent but

added:

However, I believe it should be expressly stated that in reaching

this result I do not wish to imply that when dealing with a victim

who is a young child or who has no greater mental and emotional

capacity than a young child the Commonwealth must always prove

the actual date of the crime …

[Instead,] [n]o fixed rule should be applied. Rather, in fact that

the victim is emotionally young and confused should be weighed

against the right of the defendant to know for what period of time

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he may be called upon to account for his behavior. The fact that

the victim cannot set a date for the crime should not necessarily

be fatal to the Commonwealth's case, thus making the assailant

virtually immune from prosecution. In the present case, this

balance tips against the Commonwealth, for it does not appear

why the Commonwealth could not have fixed the time of the

incident by evidence other than by the testimony of the victim.

Id. at 312-13.

The Supreme Court granted allocatur. Id., 333 A.2d at 889. The Court

stated that “[t]he sole issue in this case is whether the Commonwealth proved

the date of the crime with sufficient particularity to uphold the conviction,”

where “[t]he only proof at trial was that the crime occurred some time within

a fourteen month period from February 1971 to April 1972.” Id. The Court

reversed the defendant’s conviction on the ground that the failure to prove

the date with sufficient particularity denied the defendant his due process right

to an adequate opportunity to defend. Id. at 891.

The Court began by holding that this Court’s decision in

Commonwealth v. Levy, 146 Pa. Super. 564, 23 A.2d 97 (1941), stated the

applicable rule of law. Devlin, 333 A.2d at 890. In Levy, an appeal from a

sodomy conviction, the victim, an eleven-year-old boy, was unable to fix the

date of the offense except to state that it occurred sometime in August or

September of 1939. Other Commonwealth witnesses provided no assistance

in fixing a more particular date. This Court reversed the conviction, stating:

‘It may be conceded that in the prosecution of crimes of the kind

here involved the Commonwealth is not required to prove their

commission on the date laid in the indictment, but, failing in that,

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we think it has the burden, in order to sustain a conviction, of

proving their commission upon some other date, fixed with

reasonable certainty and being within the prescribed statutory

period . . ..

In other words, where a particular date or day of the week is not

of the essence of the offense, the date laid in the indictment is not

controlling, but some other reasonably definite date must be

established with sufficient particularity to advise the jury and the

defendant of the time the Commonwealth alleges the offense was

actually committed, and to enable the defendant to know what

dates and period of time he must cover if his defense is an alibi…’

‘We do not understand the rule of the cases to be that the

Commonwealth need not prove any date at all, but can sustain a

conviction merely by proving that the offense must have been

committed upon some unshown date within the statutory period.

Our attention has not been called to any case so holding.’

Devlin, 333 A.2d at 890 (citing Levy, 23 A.2d at 99).

Turning to the facts in Devlin, the Court reasoned that

the rule announced in Levy [requires that] the date of the

commission of the offense must be fixed with reasonable

certainty. We do not feel that the Commonwealth’s proof to the

effect that the crime was committed on any single day within a

fourteen-month period meets the ‘sufficient particularity’ standard

. . . To hold otherwise would violate the notions of fundamental

fairness embedded in our legal process …

Id. at 890-91. The Court emphasized that this holding was “required by the

Fourteenth Amendment Due Process Clause of the United States Constitution

and by Article I, Section 9 of the Pennsylvania Constitution.”6 Id. at 891.

____________________________________________

6 Article I, Section 9 of the Pennsylvania Constitution provides, “In all criminal

prosecutions the accused hath a right to be heard by himself and his counsel,

to demand the nature and cause of the accusation against him . . . . nor can

(Footnote Continued Next Page)

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Under the federal Constitution, “if the opportunity to defend is inadequate, the

defendant is denied due process of law.” Id. The Pennsylvania Constitution

“is violated where the defendant is substantially denied an opportunity to

present a defense.” Id.

The Court found the defendant’s conviction unconstitutional because

“[t]o defend against a charge of conduct occurring anywhere within a

fourteen-month period was, for this appellant, a fundamentally unfair burden.”

Id. The Court elaborated:

[W]e cannot sustain the contention that the date of the crime

must be fixed with reasonable certainty only in situations where

the defendant notifies the prosecution of, and attempts to prove,

an alibi defense. Two reasons support our rejection of that

proposition: First, although an alibi defense is the most obvious

reason for the rule, the lack of a sufficiently particular date in the

prosecution’s proof can hamstring the defense in other ways. In

this trial, for instance, the credibility of the victim was a serious

issue. The appellant, because he did not have a sufficiently

particular period of time to defend, was precluded from further

attacking the credibility of the victim by showing (1) behavior of

the victim after the incident which was inconsistent with the

extremely severe conduct to which the victim was allegedly

subjected, and (2) the physical and emotional trauma which would

have necessarily resulted therefrom. Nor could the defendant

attempt to prove that the victim did not visit his house on the date

in question because there was no date or limited period of time

asserted by the Commonwealth.

Secondly, notification of an alibi defense was a futile gesture in

this case because the date laid in the indictment was obviously an

arbitrary one; the date in the information and indictment was April

16, but the crime had been reported on April 14. Moreover, it

____________________________________________

he be deprived of his life, liberty, or property, unless by the judgment of his

peers or the law of the land.” Id. at 891.

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would have been an impossible burden for the appellant to offer

an alibi defense for a fourteen-month period.[2]

[2]

See dissenting opinion of Hoffman, J., below, Commonwealth v. Devlin, 225 Pa. Super. 138,

310 A.2d 310 (1973).

Here, as elsewhere, the pattern of due process is picked out in the

facts and circumstances of each case. Due process is not

reducible to a mathematical formula. Therefore, we cannot

enunciate the exact degree of specificity in the proof of the date

of a crime which will be required or the amount of latitude which

will be acceptable. Certainly the Commonwealth need not always

prove a single specific date of the crime. Any leeway permissible

would vary with the nature of the crime and the age and condition

of the victim, balanced against the rights of the accused.[3] Here,

the fourteen-month span of time is such an egregious

encroachment upon the appellant’s ability to defend himself that

we must reverse.

[3]

See dissenting opinion of Spaeth, J., below, Commonwealth v. Devlin, 225 Pa. Super. 138,

141, 310 A.2d 310, 312 (1973).

Id. at 891-92 (citations and footnote omitted).7

____________________________________________

7 Notably, the New York Court of Appeals, the highest court in New York, has

analyzed this issue in a manner similar to Devlin. See People v. Keindl, 68

N.Y.2d 410, 419-20, 502 N.E.2d 577, 581, 509 N.Y.S.2d 790, 794 (1986). In

Keindl, the Court of Appeals held that the trial court erred by denying the

defendant’s motion to dismiss multiple counts of an indictment alleging sexual

abuse against three children over periods of ten, twelve and sixteen months,

respectively. The victims were between eight and thirteen years of age during

the time of the offenses and thus capable of “discerning, if not exact dates, at

least seasons, school holidays, birthdays and other events which could

establish frame of reference to narrow the alleged time spans.” Id., 502

N.E.2d at 581. Thus, the periods of ten, twelve and sixteen months alleged

in the indictment were “so excessive on their face that they are unreasonable.”

Id. Although Keindl did not expressly refer to due process principles, it relied

heavily on another decision involving a similar issue, People v. Morris, 61

N.Y.2d 290, 473 N.Y.S.2d 769, 461 N.E.2d 1256 (1984), which grounded its

analysis on due process principles.

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Devlin places the burden of proof on the Commonwealth to “fix” the

date of the offense with “reasonable certainty.” Id. at 890. The defendant’s

claim in Devlin that the Commonwealth failed to satisfy this burden

constituted a “demurrer” to the sufficiency of the evidence. Id. Devlin

reversed the defendant’s conviction by holding that the Commonwealth failed

to satisfy its burden by failing to narrow the timeframe during its case-in-

chief, thus making it “impossible” for the defendant to present an alibi

defense. Id. at 892.

Subsequent to Devlin, this Court held that “for purposes of a Devlin

claim, the Commonwealth must be allowed a reasonable measure of flexibility

when faced with the special difficulties involved in ascertaining the date of an

assault upon a young child.” Commonwealth v. Groff, 548 A.2d 1237, 1241

(1988) (affirming conviction for one sexual assault on seven-year-old child at

unspecified point over three-month period). Further, the Commonwealth

“must be afforded broad latitude when attempting to fix the date of offenses

which involve a continuous course of criminal conduct.” Commonwealth v.

Benner, 147 A.3d 915, 921 (Pa. Super. 2016). “[T]he due process concerns

of Devlin are satisfied where the victim [ ] can at least fix the times when an

ongoing course of [abuse] commenced and when it ceased.”

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa. Super. 2007); see

also Benner, 147 A.3d at 921.

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Despite these and other post-Devlin cases8 that afford the

Commonwealth a “reasonable degree of flexibility” in ascertaining the date of

a sexual assault, the present case fails to satisfy the due process standards

articulated in Devlin and the mandates under Rule 560(B)(3) due to the

Commonwealth’s failure to specify, on or about any date, when Damien

committed the alleged assault within the one-year period alleged in the second

and third amended informations.

Significantly, Damien repeatedly placed the Commonwealth on notice of

his due process argument. The original and amended informations against

Damien charged him with assaulting B.P. over a five-year period. Damien

filed pretrial motions raising a due process objection to the five-year

timeframe in the amended information. The second and third amended

informations accused Damien of committing a single assault over a one-year

period between August 25, 2005, and August 24, 2006, when B.P. was sixteen

years old. In response, Damien argued at the hearing on pretrial motions

that the one-year timeframe was still too broad for him to pursue a potential

alibi defense. Despite Damien’s objections, the Commonwealth either failed

or was unable to file further amendments that narrowed the time of the

alleged assault.

____________________________________________

8 We discuss and distinguish post-Devlin decisions on pages 31-36, infra.

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Even more problematic was the Commonwealth’s failure during trial to

narrow the time of the alleged assault in a manner that enabled Damien to

present his defense. B.P. gave no testimony that narrowed the timeframe to

less than one year. Since she was age sixteen at the time of the alleged

assault, long past childhood, she should have been able to identify some

event—e.g., the season, the weather, whether school was in session, her

birthday, Keindl, supra n.7—that narrowed the time span to less than one

year.9 She was perceptive enough to provide many other details with

specificity, such as what she and Damien said and did during the incident, the

location in which it took place, the features of Damien’s car, and what she did

after leaving the car. N.T., 10/17/22, at 66-72; N.T., 10/18/22 (a.m.), at 65-

67. Despite this multitude of detail on other subjects, she failed to provide

testimony that narrowed the timeframe of the offense. She testified that the

incident took place on a “normal” day, N.T., 10/17/22, at 65, a vague

statement that fails to distinguish the date of the incident from any other day

during the one-year period alleged in the information. She also stated that

____________________________________________

9 The affidavit of probable cause that the Commonwealth filed at the time of

Damien’s arrest in 2020 asserted that Damien’s offenses took place “during

the fall months” after B.P.’s sixteenth birthday. Affidavit of Probable Cause,

2/18/2020, at 3. At trial, however, B.P. did not testify that Damien assaulted

her during the fall months after she turned sixteen. Nor was the affidavit of

probable cause admitted into evidence. We express no opinion whether

testimony that Damien assaulted B.P. during fall months would have satisfied

Devlin, especially given the fact that she was well past childhood at the time

of the alleged assault.

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the parking lot where the incident took place was adjacent to an abandoned

Walmart that had been closed but not yet demolished, id. at 67-68, but no

witness gave any further testimony concerning the dates the Walmart closed

or was demolished.

Further complicating the matter, B.P. did not report the alleged assault

to the police until October 2019, over thirteen years after the end of the one-

year period, thus further prejudicing Damien’s ability to find witnesses or other

evidence that could corroborate an alibi or some other defense. Arguably, this

delay made it even more difficult for Damien to prepare his defense than the

defendant in Devlin, where there was little or no delay between the end of

the time period in which the assault allegedly occurred (April 1972) and the

victim’s report to the police (April 14, 1972).

Devlin concluded that the Commonwealth failed to satisfy its burden of

proof because it was “an impossible burden for the appellant to offer an alibi

defense for a fourteen-month period.” Id. at 892. Here, as well, the one-

year timeframe in the informations, in conjunction with B.P.’s failure to narrow

the timeframe during her testimony, made it impossible for Damien to offer

an alibi defense.

The Commonwealth argues unconvincingly that Dustin Siniawa’s

testimony remedied any Devlin problem. Siniawa testified that Damien

Mancuso suggested to him that he had “popped B.P.’s cherry” and that this

conversation occurred in late 2005 or early 2006. Commonwealth Brief In

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Opposition To Damien’s Appeal, at 19 citing (N.T., 10/18/22 (p.m.) at 14).10

This testimony, the Commonwealth contends, indicates that Damien’s assault

must have occurred sometime after August 25, 2005 but prior to or during

early 2006. Construed in the light most favorable to the Commonwealth,

Siniawa’s testimony does not rescue the Commonwealth’s case. While it might

have compressed the timeframe to approximately half a year at best, this

period still spanned too many months to establish the date of the offense with

sufficient particularity. As in Devlin, it was “impossible” for Damien “to offer

an alibi defense” to a time period this long. Id. at 892.

The Commonwealth does not attempt to rebut Damien’s argument with

Detective Mancuso’s testimony,11 but even if the Commonwealth did, the

detective’s testimony failed to narrow the timeframe of Damien’s offense.

Detective Mancuso testified that she interviewed “other people” about

Damien’s alleged assault, but “there [were] no eyewitnesses to that assault.

So there was nobody that I would talk to that would give me any information

regarding … that assault in the car that evening.” N.T., 10/18/22 (PM), at 36.

____________________________________________

10 We note Damien’s statement that he “popped B.P.’s cherry” relates to

vaginal intercourse, a different kind of sexual act than that charged in the

criminal informations (IDSI) or testified to by B.P.

11 The Commonwealth only analyzes Detective Mancuso’s testimony in

response to Sean’s and Rian’s appeals. See pp. 66-71, infra.

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Although the detective references an “evening”, her testimony did nothing to

establish a date for that “evening”.

The Commonwealth also claims that this case is distinguishable from

Devlin in two respects. The Commonwealth lays the foundation for this

argument in the following passage:

Although the date of the crime must be fixed with reasonable

certainty when the defendant notifies the prosecution and

attempts to prove an alibi defense, there are also other

considerations. [Devlin, 333 A.2d] at 891. For instance, in

Devlin, the credibility of the victim was a serious issue. Id. The

court in Devlin found that, there, ‘the appellant, because he did

not have a sufficiently particular period of time to defend, was

precluded from further attacking the credibility of the victim by

showing (1) behavior of the victim after the incident which was

inconsistent with the extremely severe conduct to which the victim

was allegedly subjected, and (2) the physical and emotional

trauma which would have necessarily resulted therefrom.’ Id.

In Devlin, it was also significant that the date reflected in the

indictment was obviously an arbitrary one; the date in the

information and the indictment was April 16, but the crime had

been reported on April 14. Id. at 892. Moreover, the Court found,

it would have been an impossible burden for the appellant to offer

an alibi defense for a fourteen-month period. Id.

Commonwealth’s Brief In Opposition To Damien’s Appeal, at 20-21. According

to the Commonwealth, the first distinction between the present case and

Devlin is that the defense attorneys herein were able to attack B.P.’s

credibility during her testimony, while defense counsel in Devlin was not due

to the victim’s mental impairment. Defense counsel herein cross-examined

B.P. about her post-assault behavior and lack of trauma, factors that the

victim in Devlin could not be cross-examined about. Counsel elicited B.P.’s

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admission that she continued to visit Adventure Games after the alleged

assaults. This demonstrated that her behavior was inconsistent with the

conduct to which she subjected, and that while she was not comfortable and

was upset with what Sean and Rian were doing to her, she continued to visit

Adventure Games. Id. at 21-22.

In our view, this distinction is immaterial. Devlin makes clear that the

primary purpose for the rule to fix the date of the offense with reasonable

certainty is to allow the defense to present any available alibi defense. Devlin

makes this point repeatedly. See id. at 890-91 (“We do not feel that the

Commonwealth’s proof to the effect that the crime was committed on any

single day within a fourteen-month period meets the ‘sufficient particularity’

standard of Levy. To hold otherwise would violate the notions of fundamental

fairness embedded in our legal process”); id. at 891 (“an alibi defense is the

most obvious reason for the rule”) (emphasis added); id. at 892 (“it would

have been an impossible burden for the appellant to offer an alibi defense for

a fourteen-month period”). The same requirement is codified in Pa.R.Crim.P.

560(B)(3)’s rule that when the precise date of the offense is not known, the

information must state that the offense occurred “on or about” some date.

Thus, even though defense counsel was able to cross-examine B.P. on

subjects that counsel in Devlin could not explore with the victim in that case,

this does not override the facts that (1) the twelve-month timeframe in the

informations against Damien made it impossible for him to prepare an alibi

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defense, and (2) the Commonwealth failed to narrow this timeframe during

its case-in-chief at trial.

The second distinction advanced by the Commonwealth is immaterial as

well. The Commonwealth observes that the indictment in Devlin was illogical

on its face because the alleged date of the offense was two days after the

victim’s report to the police. In the present case, there was no logic error in

the informations. Once again, however, this distinction does not excuse the

Commonwealth’s failure to provide a timeframe in the informations that

comports with due process or to narrow this timeframe during trial in its case-

in-chief.

As in Devlin, there are no circumstances here that may excuse the use

of a one-year timeframe in the amended informations which failed to identify

the date of Damien’s alleged assault “with reasonable certainty,” id., 333 A.2d

at 890, or the Commonwealth’s failure to narrow this timeframe during trial.

B.P. was not a young child at the time of the offense, so she should have been

able to describe when the offense occurred within the one-year time frame.

She failed to do so, and the Commonwealth did not remedy this omission with

evidence from an alternative source. Nor did this case involve a continuing

course of conduct that made it impossible to pinpoint the date of the offense.

It was the Commonwealth’s burden to provide a reasonably certain timeframe,

and it failed to satisfy this burden. We therefore are constrained to reverse

Damien’s judgment of sentence because it runs afoul of due process principles

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articulated in Devlin and embodied within the United States and Pennsylvania

Constitutions.

The parties refer us to several post-Devlin decisions in which we found

Devlin distinguishable and affirmed convictions for sexual assault against

young children who were unable to provide specific dates in which they

suffered the assaults. See Commonwealth v. Niemetz, 422 A.2d 1369 (Pa.

Super. 1980); Groff, supra; Commonwealth v. Jette, 818 A.2d 533 (Pa.

Super. 2003). Our own research reveals several other such decisions. See

Commonwealth v. Renninger, 269 A.3d 548 (Pa. Super. 2022) (en banc);

Benner, supra; G.D.M., Sr., supra; Interest of K.E.N., 2024 WL 2858397

(Pa. Super., Jun. 6, 2024) (non-precedential).12 The present case, however,

is far closer to Devlin than it is to any of these decisions.

Five of these decisions involve an ongoing course of conduct against one

or more victims. See Niemetz, Renninger, Benner, G.D.M., Sr., and Jette,

supra. We discuss each in turn.

In G.D.M., Sr., the defendant repeatedly assaulted a six-year-old child

over approximately seven months. The victim himself identified three

different occasions on which he was abused during that period, and he clearly

revealed to an investigating detective that there were several more such

____________________________________________

12 In another decision, Martin, supra, we held that the trial court improperly

explored whether the evidence satisfied Devlin because the defendant did not

raise this issue in his post-sentence motions. Id., 323 A.3d at 815-19.

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incidents. The victim remembered when the abuse began because it was

contemporaneous with him beginning kindergarten, and he remembered that

it terminated when the defendant was arrested. This Court held:

Under these circumstances, we find that the due process concerns

of Devlin are satisfied where the victim, as here, can at least fix

the times when an ongoing course of molestation commenced and

when it ceased. A six-year-old child cannot be expected to

remember each and every date upon which he was victimized,

especially where those events are numerous and occur over an

extended period of time. Unlike adults, the lives of children,

especially pre-school children or those who have only started

school, do not revolve around the calendar, except to the extent

that they may be aware of their birthday or Christmas, or the day

a favorite television show airs. To require young children to

provide such detail would be to give child predators free rein.

Instantly, we find that the dates of the incidents were proven with

sufficient specificity to satisfy due process.

G.D.M., Sr., 926 A.2d at 990. In the present case, unlike in G.D.M., Sr.,

there was only one alleged assault, and the victim, B.P., clearly was old

enough to remember dates on the calendar as well as other temporal details

that would isolate the date of the assault. Ironically, the six-year-old victim

in G.D.M., Sr. narrowed the timeframe of the defendant’s repeated assaults

with greater specificity than B.P. did herein.

In Niemetz, the defendant repeatedly committed sexual assaults

against the victim over a five-year period between 1972 and 1977 when the

victim was between eleven and sixteen years old. We held that the evidence

identified the time of the offenses with sufficient particularity, even though

the victim could not identify specific dates on which she was assaulted. Id.,

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422 A.2d at 442-43. The evidence, however, furnished several dates that

permitted the jury to ascribe a “reasonably certain” date to the alleged

offenses. For example, on April 5, 1976, the victim gave birth to a child

fathered by the defendant, and on May 14, 1977, she had an abortion

arranged and financed by the defendant. Id. at 443. These details distinguish

Niemetz from Devlin and the present case, in which the victim failed to

provide any details that isolated specific dates, or even specific months, within

the lengthy time period alleged in the charging documents.

In Renninger, one victim alleged that the defendant assaulted her four

times between 1997 and 2002, when she was between eight and twelve years

old. Another victim alleged that the defendant assaulted her once during

warm-weather months of 2000 when she was seven years old. An en banc

panel of his Court properly rejected the defendant’s Devlin claim. Id., 269

A.3d at 558. As to the first victim, the Commonwealth satisfied Devlin by

fixing the times when the defendant’s multiple assaults began and ended

against a young, prepubescent child. As to the second victim, the

Commonwealth satisfied Devlin by narrowing the time of the assault against

a seven-year-old child to a period of several months. In contrast, Damien’s

case involves only one alleged assault over a one-year period against a victim

who was considerably older than the victims in Renninger but who failed to

provide any additional details about the time of the assault.

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Benner and Jette are distinguishable from the present case for much

the same reasons as in G.D.M., Sr., Niemetz and Renninger. See Benner,

147 A.3d at 920-21 (multiple instances of sexual abuse against fourteen-year-

old girl, who testified that abuse began in July 2002 and ended in September

2004); Jette, 548 A.2d at 534-35 (two-year period of assaults that began

when victim was eight years old).

The remaining two decisions cited above, Groff and Interest of K.E.N.,

involve only one assault (the same situation as Damien’s case), but other

critical distinctions render Groff and K.E.N. inapplicable. In Groff, a decision

that the Commonwealth relies upon heavily in its brief, 13 a seven-year-old

child testified to a sexual assault that occurred “on only one occasion” when

she was six years old. Id. at 1239. Applying Devlin, we held that the

Commonwealth “should ... come forward with any evidence which indicates

when the alleged crime is most likely to have taken place.” Id. at 1241. We

held that the defendant’s due process rights were not violated because the

Commonwealth presented other evidence narrowing the timeframe down to a

three-month period in the summer of 1985, when the victim’s grandmother

and stepmother noticed changes in the victim’s behavior.

We explained:

We note that the Commonwealth would clearly prevail if appellant

had been convicted of repeatedly abusing the victim during the

____________________________________________

13 See Commonwealth’s Brief in Damien’s appeal at 24-26.

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summer of 1985. Case law has established that the

Commonwealth must be afforded broad latitude when attempting

to fix the date of offenses which involve a continuous course of

criminal conduct. The instant case is more difficult because the

evidence indicates that appellant did not abuse the victim more

than once. We find, however, that in light of “the nature of the

crime and the age and condition of the victim”, the prosecution’s

proof as to the time of the criminal acts was constitutionally

adequate.

When a young child is the victim of a crime, it is often impossible

to ascertain the exact date when the crime occurred. He or she

may have only a vague sense of the days of the week, the months

of the year, and the year itself. If such children are to be

protected by the criminal justice system, a certain degree of

imprecision concerning times and dates must be tolerated.

The instant case concerns offenses which were directly observed

by only two people: the perpetrator and the victim. The victim

was at most six at the time she was sexually abused; at the age

of seven she was placed under the strain of testifying as to the

details of this traumatic event in open court. This witness

obviously did not have the same capacity to recall times and dates

which one might reasonably expect from an adult or from a

somewhat older child. Moreover, this case may be distinguished

from [Devlin]: in Devlin, the prosecution simply alleged that a

crime had taken place sometime within a fourteen month period;

in this case, the prosecution made a conscientious effort to

present evidence as to the date of the crime from witnesses other

than the victim, and to restrict the date of the crime to sometime

within the final summer that appellant lived with the victim and

her family.

Id., 548 A.2d at 1242-43.

Groff is different from Damien’s case in two critical respects. First,

unlike the six-year-old victim in Groff, B.P. was sixteen at the time of

Damien’s alleged offense, and therefore B.P. had the “capacity to recall times

and dates which one might reasonably expect from … a somewhat older child.”

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Id. at 1243. Second, the Commonwealth in Groff presented evidence from

witnesses other than the victim that narrowed the date of the incident to a

three-month period, the summer of 1985. Here, the Commonwealth

presented the testimony of B.P. and Siniawa, but their testimony did not

narrow the time period of the offense sufficiently to permit Damien to prepare

an alibi defense. Thus, Groff does not support the Commonwealth’s argument

in support of affirming Damien’s conviction.

In K.E.N., a juvenile was charged with a single assault against a four-

year-old child “on or about March 2022.” Id., 2024 WL at 2858397, *5. The

witnesses’ testimony established that the offense could have taken place over

a six-week period between mid-February and the end of March. We held that

this was sufficiently specific to defeat the juvenile’s Devlin claim, given the

young age of the victim and the juvenile’s degree of access to the victim. Id.

(six-week timeframe “was sufficiently narrow to give Appellant notice to

enable him to mount a defense”). The present case stands in sharp contrast

to K.E.N. because the timeframe was significantly longer and the evidence did

not narrow the timeframe in a manner that enabled Damien to prepare a

defense.

Based on our analysis of Devlin and careful review of relevant caselaw,

we conclude that Damien’s Devlin argument is meritorious, and that his

judgment of sentence must be reversed. We do not make this decision lightly

in view of the serious nature of the charges, but in view of the deficiencies in

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the evidence and the similarities between this case and Devlin, we are

compelled to reach this result.

Based on our decision to reverse on the Devlin issue, we need not

review the two remaining issues in Damien’s brief: an argument that the court

erred by failing to sever his trial from his brothers,14 and a challenge to the

weight of the evidence.

RIAN’S APPEAL

Rian raises the following issues in his appeal, which we have reordered

for purposes of convenience:

1. Whether the evidence at trial was insufficient to support

Appellant’s convictions on all counts?

2. Whether the Trial Court should have granted Appellant’s Motion

for Arrest of Judgment and/or Judgment of Acquittal and/or

Motion for New Trial because the trial Court denied Appellant’s

request for severance thereby forcing him to undergo jury trial at

the same times as his brothers which was a manifest abuse of

discretion, prejudicial and clear injustice to Appellant’s rights?

3. Whether the Trial Court should have granted Appellant’s Motion

for Arrest of Judgment and/or Judgment of Acquittal and/or

Motion for New Trial because the Trial Court allowed Dustin

Siniawa to testify to Appellant’s non-verbal conduct in or about

2006, which was not relevant or material to any criminal charge,

and constituted inadmissible character evidence thereby depriving

Appellant of a fair jury trial?

____________________________________________

14 In a submission after oral argument, Damien asked us to consider our

Supreme Court’s recent decision in Commonwealth v. Walker, —Pa.—, —

A.3d—, 2026 WL 247429 (Jan. 28, 2026), in connection with his argument

that the court erred by failing to sever his trial from his brothers. We need

not consider Walker in view of our decision to reverse Damien’s convictions

under Devlin.

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4. Whether the Trial Court should have granted Appellant’s Motion

for Arrest of Judgment and/or Judgment of Acquittal and/or

Motion for New Trial because the Trial Court’s reading of

Pennsylvania Standard Jury Instruction § 3.19 was an error of law

and/or an abuse of discretion?

5. Whether the Trial Court should have granted Appellant’s Motion

for Arrest of Judgment and/or Judgment of Acquittal and/or

Motion for New Trial because the Commonwealth withheld the

statements and/or interviews of third party witnesses and/or

patrons of Adventure Games, and failed to disclose those

witnesses’ statements in discovery?

6. Whether the Trial Court should have granted Appellant’s Motion

for Arrest of Judgment and/or Judgment of Acquittal and/or

Motion for New Trial because of the variance between the charges

set forth in the Criminal Information and all subsequently

Amended Criminal Informations versus the evidence, testimony

and arguments presented by the Commonwealth at the time of

Appellant’s jury trial, which resulted in trial surprise for Appellant?

7. Whether the jury’s verdict was against the weight of the

evidence?

Rian’s Brief at 6-8.

We first address Rian’s challenge to the sufficiency of the evidence

underlying his convictions for corruption of minors and indecent contact.

When the defendant challenges the sufficiency of the evidence, our standard

of review is

whether viewing all the evidence admitted at trial in the light most

favorable to the verdict winner, there is sufficient evidence to

enable the fact-finder to find every element of the crime beyond

a reasonable doubt. In applying the above test, we may not weigh

the evidence and substitute our judgment for the fact-finder. In

addition, we note that the facts and circumstances established by

the Commonwealth need not preclude every possibility of

innocence. Any doubts regarding a defendant’s guilt may be

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resolved by the fact-finder unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be

drawn from the combined circumstances. The Commonwealth

may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial

evidence. Moreover, in applying the above test, the entire record

must be evaluated and all evidence actually received must be

considered. Finally, the finder of fact, while passing upon the

credibility of witnesses and the weight of the evidence produced

is free to believe all, part or none of the evidence.

Commonwealth v. Smith, 206 A.3d 551, 557 (Pa. Super. 2019).

An individual is guilty of corruption of minors when he, “being of the age

of 18 years and upwards, by any act corrupts or tends to corrupt the morals

of any minor less than 18 years of age, or . . . aids, abets, entices or

encourages any such minor in the commission of any crime.” 18 Pa.C.S.A. §

6301(a)(1)(i).

Here, B.P. testified that when she was fourteen, she and Rian had a

conversation in the DDR room at Adventure Games which turned toward how

pretty B.P. was for her age, how mature she was, and how surprised Rian was

that boys at school had not taken more of an interest in her. N.T., 10/17/22,

at 56. During this conversation, Rian took B.P.’s hand and placed it over his

pants on his erect penis. Id. at 57. B.P. froze at first, then jumped and stood

up. Id. Rian then lifted the skirt of B.P.’s dress to place his face to her genital

area, over her underwear, and inhaled. Id. B.P. froze at first and then let

out a yelp. Id. at 59. This evidence was sufficient to sustain Rian’s conviction

for corruption of minors. See Commonwealth v. Kelly, 102 A.3d 1025,

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1032 (Pa. Super. 2014) (act of grabbing minor victim’s genitals constituted

corruption of minors).

The jury found Rian guilty of indecent assault under 18 Pa.C.S.A. §

3126(a)(8), under which an individual is guilty of indecent assault if he “has

indecent contact with the complainant, causes the complainant to have

indecent contact with the person . . . and . . . the complainant is less than 16

years of age and the person is four or more years older than the complainant

and the complainant and the person are not married to each other.” Id.

“Indecent contact” means “[a]ny touching of the sexual or other intimate parts

of the person for the purpose of arousing or gratifying sexual desire, in any

person.” 18 Pa.C.S.A. § 3101. The evidence demonstrates that Rian caused

B.P. to have indecent contact by taking her hand and placing it on his erect

penis.15

According to Rian, the evidence demonstrates that B.P.’s testimony was

false. He argues that the evidence shows: (1) in the fall of 2003, when his

crimes allegedly took place, he was enrolled at Penn State University and was

living in State College, Pennsylvania; and (2) the site of his alleged crimes,

the DDR room at Adventure Games, did not exist until the winter of 2004,

____________________________________________

15 Neither the trial court nor the Commonwealth directs us to any evidence

that demonstrates that Rian and B.P. were not married to each other at the

time of the offense. Nevertheless, this element of indecent contact is not at

issue. Rian does not contend in his appellate brief that he was married to B.P.

at the time of the offense.

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thus belying B.P’s accusation that he assaulted her in the fall of 2003. He

admitted during his testimony, however, that he came home from college “a

handful of times” in the fall of 2003 on breaks or on weekends. N.T.,

10/18/22, at 131-32; see id. at 136 (same). These arguments do not satisfy

the demanding standard for a challenge to the sufficiency of the evidence. As

noted above, the jury is free to believe all, part, or none of the evidence while

passing upon the credibility of witnesses and the weight of the evidence

produced. Smith, 206 A.3d at 557. Applying this standard, we conclude that

the jury found B.P.’s testimony credible and rejected Rian’s claims that the

DDR room did not exist in the fall of 2003 and that he was away at State

College at that time. We cannot reweigh the evidence adduced during trial

and substitute our judgment for the jury on these issues. Id.

Next, we reach what we believe to be the central issue in Rian’s appeal:

whether the trial court erred in denying his motion to sever his case from

Sean’s and Damien’s cases for purposes of trial. We review the decision to

deny a motion to sever for abuse of discretion. Commonwealth v. O’Neil,

108 A.3d 900, 905 (Pa. Super. 2015). We conclude that it was permissible to

try Rian and Sean together, but the court abused its discretion by declining to

sever Rian’s trial from Damien’s trial. The Commonwealth also prejudiced

Rian during closing argument by repeatedly referring to the three brothers as

a group, thus creating the inference that Rian was guilty by association.

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Pennsylvania Rule of Criminal Procedure 582 provides the framework

for deciding severance issues. Rule 582 reads in pertinent part

(A) Standards

(1) Offenses charged in separate indictments or informations may

be tried together if:

(a) the evidence of each of the offenses would be admissible in a

separate trial for the other and is capable of separation by the jury

so that there is no danger of confusion; or

(b) the offenses charged are based on the same act or transaction.

(2) Defendants charged in separate indictments or informations

may be tried together if they are alleged to have participated in

the same act or transaction or in the same series of acts or

transactions constituting an offense or offenses.

Id.

Rule 582 governs two scenarios. The first is when the Commonwealth

charges a single defendant in multiple criminal informations and seeks to join

the informations for trial. The second is when the Commonwealth seeks to

try multiple defendants in one trial, e.g., Rian’s case. Judicial analysis of one

scenario can provide guidance in analyzing the other scenario. See O’Neil,

108 A.3d at 906 (“The conjoining of the analyses for the separate situations

... is the direct result of a long line of case law”). In both situations, pursuant

to Pennsylvania Rule of Criminal Procedure 583, “[t]he court may order

separate trials of offenses or defendants, or provide other appropriate relief,

if it appears that any party may be prejudiced by offenses or defendants being

tried together.” Id.

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Consolidation of defendants and charges raises two principal concerns

with respect to prejudice that may result from improperly joining charges

and/or defendants. First:

The traditional justification for permissible joinder of offenses or

consolidation of indictments appears to be the judicial economy

which results from a single trial. The argument against joinder or

consolidation is that where a defendant is tried at one trial for

several offenses, several kinds of prejudice may occur: (1) [t]he

defendant may be confounded in presenting defenses, as where

his defense to one charge is inconsistent with his defenses to the

others; (2) the jury may use the evidence of one of the offenses

to infer a criminal disposition and on the basis of that inference,

convict the defendant of the other offenses; and (3) the jury may

cumulate the evidence of the various offenses to find guilt when,

if the evidence of each offense had been considered separately, it

would not so find.

Commonwealth v. Hamilton, 303 A.3d 823, 833 (Pa. Super. 2023).

Second:

[T]he saving of judicial time can never be given preference over

the integrity of the factfinding process. When it is concluded that

the evidence of the one crime would not be admissible in the

separate trial for the other, we are in effect saying that the

evidence is irrelevant and prejudicial in the second trial. To allow

irrelevant and prejudicial evidence to influence a verdict in the

name of judicial economy is abhorrent to our sense of justice.

Additionally, defendants in joint trials are treated differently from

those who receive separate trials as a result of the lack of

uniformity in the admission in the joint trial of evidence which

would have been inadmissible in one of the single trials had there

been no joinder.

Id.

Our Supreme Court’s analysis of the res gestae doctrine in

Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988), informs our analysis of

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whether it was proper to join Rian and Sean for trial. The defendant in Lark

was charged with murdering a robbery victim to avoid prosecution, terroristic

threats against the assistant district attorney who successfully prosecuted him

for the robbery, and kidnapping hostages to prevent his apprehension for prior

offenses. The defendant moved to sever these charges on the ground that

they were separate and distinct offenses that should not be tried together.

The trial court denied the defendant’s motion for severance, and the jury

found the defendant guilty of all charges. Our Supreme Court affirmed the

defendant’s judgment of sentence, reasoning:

[E]vidence of other crimes may be relevant and admissible …

where such evidence was part of the chain or sequence of events

which became part of the history of the case and formed part of

the natural development of the facts. This special circumstance,

sometimes referred to as the “res gestae” exception to the general

proscription against evidence of other crimes, is also known as the

“complete story” rationale, i.e., evidence of other criminal acts is

admissible “to complete the story of the crime on trial by proving

its immediate context of happenings near in time and place.”

In the instant case, the evidence of each of the offenses—murder,

terroristic threats, and kidnapping—would have been admissible

in a separate trial for the others. Each of these offenses were

interwoven in a tangled web of threats, intimidation and criminal

activity which arose from the robbery in 1978 of Tae Bong Cho,

and were relevant to prove motive, intent, identity (such a logical

connection between the crimes that proof of one naturally tends

to show that the accused committed the other), and to “complete

the story” by demonstrating the history and natural development

of the facts.

Id. at 497-98.

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Under res gestae principles, it was permissible to join Rian and Sean for

trial. B.P. alleged that on a single day in 2003 or 2004, (1) Rian assaulted

her by smelling her underwear in the DDR room at Adventure Games, (2)

Sean told B.P. to leave the DDR room so he could speak with Rian, (3) Sean

then took B.P. to another location in the building and directed her to kiss his

penis, and (4) Sean warned B.P. not to tell anybody about any of these events.

These acts formed the basis for the charges against Rian and Sean. The

evidence of one brother’s alleged acts would have been admissible in a

separate trial against the other brother, and since the entire chain of acts took

place on the same day, they were “near in time and place” and part of the

“natural development of the facts.” Lark, 543 A.2d at 497-98.

On the other hand, the court abused its discretion by joining Damien’s

trial with Sean’s and Rian’s trial. Our recent decision in Commonwealth v.

Hamilton, 303 A.3d 823 (Pa. Super. 2023), is instructive. There, three men

tried to rob Hamilton who was armed with a gun that he had stolen several

days earlier. Hamilton shot two of the assailants, killing one of them.

Hamilton was charged in one case with theft of the stolen gun and in a second

case with murder, attempted murder, and other charges relating to the

shooting. The Commonwealth moved to join the cases for trial on the ground

that the stolen gun was involved in both cases. Trial counsel failed to object

to joinder. At trial, the Commonwealth repeatedly referred to Hamilton as a

thief instead of as a robbery victim. Hamilton argued self-defense. He was

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acquitted of murder but found guilty of other charges relating to the shooting.

His judgment of sentence was affirmed on direct appeal. Hamilton filed a

petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, contending that trial counsel was ineffective for failing to object to

joinder of the theft charge with the charges relating to the shooting. The

PCRA court denied that portion of his petition.

This Court reversed and remanded for a new trial. We held, inter alia,

that evidence that the gun was stolen was irrelevant to the sole issue in the

shooting case, which was whether Hamilton acted in self-defense. Id., 303

A.3d at 832-33. We also concluded that Hamilton suffered prejudice from trial

counsel’s failure to object to joinder, because the Commonwealth was able to

paint the defendant as a thief rather than as a victim, making it more likely

that he would get convicted.

Guided by Hamilton, we hold that the trial court abused its discretion

by denying Rian’s motion to sever his trial from Damien’s trial. Hamilton

held that severance of the charges against the defendant was necessary,

because even though there was some overlapping evidence between the

charges (the gun involved in the theft charge was also used to shoot the

victims), the evidence that the defendant stole the gun was irrelevant and

prejudicial to his defense against the shooting charges. Analogously, in the

present case, there is some overlapping evidence between Sean, Rian and

Damien: B.P. interacted with all three brothers at Adventure Games and Sean

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told B.P. not to tell anyone about any of the brothers’ alleged offenses. Other

than these few common strands, however, Damien’s alleged offense was

irrelevant to both Sean’s and Rian’s alleged offenses.

Rian’s alleged offense, which took place when B.P. was around fourteen

years old, was pulling up B.P.’s dress and smelling her underwear. Damien

had nothing to do with this incident. Damien’s alleged offense, forcing B.P. to

perform oral sex in a deserted parking lot, took place two years after Rian’s

alleged offense. Rian had nothing to do with this incident. Whereas the

charges against Rian and Sean involved a single chain of events on the same

day, the charges against Rian and Damien involved separate events that took

place in different locations, involved different types of conduct, and occurred

far apart in time. Nor was there any conspiracy or corrupt organization charge

alleging that the charges against Rian and Damien fit within an ongoing

scheme.

Joinder of Rian and Damien enabled the Commonwealth to introduce

testimony by Dustin Siniawa into Rian’s trial that was only admissible against

Damien but not against Rian. Siniawa testified that in late 2005 or early 2006,

he was sitting at a table inside Adventure Games with Damien. N.T., 10/18/22

(p.m.), at 12-14. He said that B.P. came up in conversation, and that Damien

claimed he “popped her cherry.” Id. at 13. Siniawa testified that he

expressed disbelief to Damien’s assertion. Id. In response, Damien screamed

Rian’s name across the room to get Rian’s attention. Id. Rian was working

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across the room but was not sitting at the table or participating in the

conversation between Damien and Siniawa. Id. Rian looked at Damien from

across the room, stuck his tongue out and made a panting sound. Id.

Notably, the trial court appears to concede that Siniawa’s testimony was only

relevant against Damien but not against Rian:

It is apparent from the [r]ecord that the Commonwealth did not

elicit said testimony for the purpose of admitting evidence of

[Rian’s] character, character trait, or his propensity for

committing bad acts. Nor did the Commonwealth elicit such

testimony to prove that [Rian] committed any offenses between

August 25, 2005 and August 24, 2006, rather it is apparent that

the Commonwealth elicited such testimony to prove that [Rian’s]

[c]o-defendant, Damien, committed the crimes charged against

him, not [Rian].

Pa.R.A.P. Opinion, 10/8/24, at 13. Likewise, the Commonwealth only argues

that this evidence was relevant against Damien, not Rian:

[B]oth Damien and Rian Mancuso were on trial for sexually

assaulting B.P. Rian Mancuso’s reaction to his brother yelling out

B.P.’s name to him was relevant to the charges against Damien

Mancuso in that it provided acknowledgement of potential sexual

conduct on the part of Damien Mancuso. The Commonwealth

presented this testimony to demonstrate that Damien Mancuso

committed the crimes charged against him.

Commonwealth’s Brief In Opposition To Rian’s appeal, at 19. For the same

reasons, we conclude that Siniawa’s testimony was not relevant against Rian.

Rian suffered prejudice from joinder of his trial with Damien’s trial. The

Commonwealth tainted Rian’s trial with evidence that only was relevant to

Damien, such as Damien’s alleged assault against B.P. and Siniawa’s

testimony. Given that Rian was related by blood to Damien and both brothers

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were charged with sexual offenses, the evidence of Damien’s sexual offenses

smeared Rian in the eyes of the jury.

Additionally, the prosecutor prejudiced Rian by repeatedly lumping him

together with his brothers during closing argument. The prosecutor called the

brothers “three aggressors” and argued that B.P. had to come forward

because “they still have the store” and “they” still had power over other

people” who came to the store. N.T., 10/19/22, at 62, 91. This was

misleading because Rian did not own the store; only Sean did.16 The

prosecutor also suggested that B.P. had to testify three separate times with

three separate defense attorneys, as if they were all ganging up on her and

working together unfairly. Id. at 71. The prosecutor argued that “these three

men got to sit here and watch her relive all of the sexual abuse,” suggesting

that they planned their criminal acts together and collectively derived pleasure

by making B.P. testify about it in court. Id. at 76. The prosecutor likened

Rian and his brothers to organizations such as the Catholic Church and Boy

Scouts, which had been widely known to have protected sexual abusers

among their ranks. Id. at 100. All of these remarks encouraged the jury to

find Rian guilty by association with his brothers.

____________________________________________

16 See also id. at 75 (prosecutor echoing same theme by arguing that “[l]ittle

nerdy girls are still going [to Adventure Games] for sexy costume parties and

for sleepovers with adults. Now, that’s why [B.P.] is here. She’s doing the

right thing for the next crop of inexperienced naive teenage girls who think

they found their refuge at Adventure Games”).

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We acknowledge that the trial court instructed the jury not to consider

the evidence against Damien or Sean while deliberating on the charges against

Rian. Id. at 116-17 (“Each one of the defendants [is] here separately and

each one of the counts is separate, such that you are determining, when you

look over the jury slip, each count against each defendant in a separate

manner and form as to whether or not the Commonwealth has proved them

each separately in regard to the crimes”). This instruction, however, does not

preclude our determination that Rian suffered prejudice. As Judge Bowes

aptly reasoned in O’Neil, if jury instructions could cure prejudice in a case

where the court erroneously joins defendants for trial, “there would be little

grounds for ever severing co-defendants for trial. In virtually every jointly-

tried case, the court can and does instruct the jury that it cannot consider

exclusive evidence against one defendant as evidence that a co-defendant is

guilty.” Id., 108 A.3d at 912.

For these reasons, we reverse Rian’s judgment of sentence and remand

for a new trial.

Although we grant Rian a new trial, we address several of his other

arguments because these issues might recur in the next trial. Rian contends

that the trial court erred by allowing Siniawa’s testimony that Damien bragged

about having sex with B.P., testimony that we summarized above in our

discussion about the court’s failure to sever Rian’s trial from Damien’s trial.

We review the court’s evidentiary rulings for abuse of discretion.

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Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010). For the

reasons given above, we hold that Siniawa’s testimony was irrelevant to the

charges against Rian and that Rian suffered prejudice from this testimony.

Accordingly, on remand, the court shall preclude the Commonwealth from

offering this testimony during Rian’s trial.

Next, Rian contends that the trial court’s decision to give Standard Jury

Instruction 3.19 was an abuse of discretion. We disagree.

Standard Jury Instruction 3.19 provides:

§3.19 DATE OF CRIME: PROOF OF DATE ALLEGED NOT

ESSENTIAL

[The indictment alleges that the crime was committed on [date].]

You are not bound by the date alleged in the [indictment]

[information]. It is not an essential element of the crime charged.

You may find the defendant guilty if you are satisfied beyond a

reasonable doubt that [he] [she] committed the crime charged [in

and around] [on or about] the date charged in the [indictment]

[information] even though you are not satisfied that [he] [ she]

committed it on the particular date alleged in the [ indictment]

[information].

See Pennsylvania Suggested Standard Criminal Jury Instructions No. § 3.19.

The trial court gave the following instruction relating to § 3.19:

The criminal information for Sean Mancuso alleges that the crimes

were committed between Monday, August 25, 2003, and Tuesday,

August 24, 2004. The criminal information for Damien Mancuso

alleges the crimes were committed again on Thursday, August 25,

2005, through Thursday, August 24, 2006. The criminal

information for Rian Mancuso alleges that the crimes were

committed between Monday, August 25, 2005, through Tuesday,

August 24, 2005. You are not bound by the dates alleged in this

information. It is not an essential element of the crime charged.

You may find the Defendants guilty if you are satisfied beyond a

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reasonable doubt that they committed the crime charged on or

about the dates charged in the information even though you’re

not satisfied that they committed it on a particular date alleged in

the information.

N.T., 10/19/22, at 126-27.

Rian argues that this instruction allowed the jury to disregard the time

frames and dates set forth in the criminal informations and those testified to

by B.P., thereby rendering all of the defense testimony and evidence at trial

irrelevant in the eyes of the jury.17 According to Rian, B.P. testified that Rian

committed his offense between August 25, 2003 and December 25, 2003.

Rian contends that defense testimony established that this was not possible,

since the room where the alleged offense occurred did not exist until March of

2004. He asserts that the instruction negated the probative value of this

defense evidence and allowed the jury to disregard the discrepancies in the

Commonwealth’s evidence.

We review challenges to jury instructions for an abuse of discretion or

an error of law. Commonwealth v. Rush, 162 A.3d 530, 540 (Pa. Super.

2017). We must consider the charge as a whole, not as isolated fragments.

Id. We examine the entire instruction “against the background of all evidence

____________________________________________

17 Unlike Damien’s due process challenge under Devlin, neither Rian nor Sean

challenge the sufficiency of evidence due to the Commonwealth’s inability to

more precisely identify the date(s) of their alleged offenses. Rather, both

challenges only attack the viability of the § 3.19 jury instruction.

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presented, to determine whether error was committed.” Commonwealth v.

Grimes, 982 A.2d 559, 564 (Pa. Super. 2009).

“A jury charge is erroneous if the charge as a whole is inadequate,

unclear, or has a tendency to mislead or confuse the jury rather than clarify a

material issue.” Rush, 162 A.2d at 540. A charge will be found adequate

unless the issues are not made clear to the jury or the jury was probably

misled by what the trial judge said. Id. Furthermore, “[o]ur trial courts are

invested with broad discretion in crafting jury instructions, and such

instructions will be upheld so long as they clearly and accurately present the

law to the jury for its consideration.” Id.

“Where the trial court’s instructions track the Pennsylvania Suggested

Standard Criminal Jury Instructions, it is presumed such instructions are an

accurate statement of the law.” Commonwealth v. Akhmedov, 216 A.3d

307, 321 (Pa. Super. 2019). We have held that “[t]he Commonwealth is not

bound by the date laid in the bill of indictment but can show any date within

the statutory period and prior to the finding of the indictment, except in cases

where time is of the essence of the offense.” Commonwealth v. Boyer, 264

A.2d 173, 175 (Pa. Super. 1970). In Boyer, the complaint expressly made

time of the essence because “Thursday” was inserted as the day of the crime

in the complaint form, which contained the words “insert only if day of week

is essential element of offense.” Id. The date alleged in the indictment was

December 28, and in reliance on that date, the defendant filed his formal

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notice of alibi “for the night of December 28.” Id. We held that the existence

of an alibi defense made the alleged time material to the defendant’s case.

Id. at 176. We also reasoned that since there was no proof that the crime

was committed on that date, it was error to submit the case to the jury and

refuse the defendant’s motion to quash the indictment. Id. at 177. The trial

court erred by permitting the jury to determine the date of the commission of

the offense when the evidence fixed the time as the night of December 27,

thus depriving the defendant of his alibi defense. Id.

Boyer is inapplicable to this case for two reasons. First, no definitive

date was alleged either in the information or at trial. Second, although Rian

raised an alibi defense during trial by testifying that he was away at college

during the time period of his alleged offense (except for several weekends),

Rian’s brief does not argue that his alibi rendered the jury instruction invalid.

See Rian’s Brief at 25-29 (argument concerning jury instruction 3.19). His

brief only argues that the instruction was improper because the evidence

showed that the room that B.P. alleged was the site of the assault did not

exist at the time of the assault. Id. Thus, the general rule stated in Boyer

applied: the Commonwealth was not bound by the date laid out in the

information but could show any date within the statutory period and prior to

the finding of the information. Id., 264 A.2d at 175. The jury instruction at

issue properly stated that the jury was not bound by the date alleged in the

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information because it was not an essential element of the crime charged.18

The discrepancies in the evidence concerning the room where the alleged

assault took place only go to the weight of the evidence. The jury, as

factfinder, passed upon the credibility and weight of each witness’s testimony

and was free to believe all, part or none of the evidence. Commonwealth v.

Ramtahal, 613 Pa. 316, 33 A.3d 602, 607 (2011). We can find no case, nor

does Rian cite any, in which such discrepancies rendered a jury instruction

invalid.

Rian argues next that under Brady, he is entitled to a new trial based

upon the Commonwealth’s failure to provide witness statements obtained by

Detective Mancuso from other patrons of Adventure Games in the course of

investigating B.P.’s allegations. We address this issue in detail with respect

to Sean’s appeal below. We need not do so here, since we have granted Rian

a new trial, and he will have the opportunity to request witness statements, if

any, from the Commonwealth on remand pursuant to Pa.R.Crim.P. 573.

In his penultimate issue, Rian argues that he suffered prejudice because

the evidence at trial was different from the allegations in the original and

amended informations. The original and amended informations only alleged

that Rian forcefully lifted B.P.’s skirt and smelled her vagina. At trial, however,

____________________________________________

18We do not mean to imply that this instruction would be dispositive of a

Devlin issue. As stated, neither Rian nor Sean raised a Devlin issue, so we

do not address that issue in the context of Sean’s or Rian’s appeals.

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the Commonwealth introduced evidence not mentioned in the original and

amended informations—specifically, that Rian forced B.P.’s hand over his

pants onto his erect penis. See Rian’s Brief at 19 (citing several pages in trial

transcript). Based on the Commonwealth’s reference to this evidence during

its opening statement, Rian asked for a mistrial, which the court denied. N.T.,

10/17/22, at 28-31. Rian now asks us to vacate his conviction or award him

a new trial on this ground. Rian’s Brief at 20. Since we have already granted

Rian a new trial, we need only address whether Rian is entitled to dismissal of

the charges against him with prejudice. We conclude that such relief is not

warranted.

In Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268 (Pa. 2006),

a first-degree murder case, our Supreme Court considered whether the

defendant’s due process rights were violated because the criminal

informations against him failed to allege that he harbored specific intent to

kill. The Court held that the omission did not violate the defendant’s

constitutional rights. Id. at 289. The Jones court observed that

“[i]ndictments must be read in a commonsense manner, and are not to be

construed in an overly technical sense.” Id. The Court further stated that it

had upheld criminal indictments possessing a flaw and found them to be

constitutional because they put the defendant on notice of the charge against

him. Id. (citing Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979))

(upholding indictment that charged defendant with possession of heroin when

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controlled substance in fact was methamphetamine, because defendant was

well advised of nature of offense charged). Jones held that the informations

gave the defendant adequate notice of the charges against him by accusing

him of violating the statutory section for first-degree murder and by stating

that he did “feloniously, willfully, and of his malice aforethought kill and

murder.” Id., 912 A.2d at 289. Jones further held that “a purported variance

will not be deemed fatal unless it could mislead the defendant at trial, involves

an element of surprise prejudicial to the defendant’s efforts to prepare his

defense, precludes the defendant from anticipating the prosecution’s proof, or

impairs a substantial right.” Id. (cleaned up). The variance in Jones did not

hinder the defendant’s ability to prepare a defense or impair a substantial

right. Id.

Guided by Jones, we hold that the introduction of evidence that Rian

forcefully placed B.P.’s hand on his erect penis does not require dismissal of

the charges against him. The affidavit of probable cause filed at the beginning

of this case stated that Rian “grabbed B.P.’s hand and forced it on his erect

penis over his pants. B.P. said she was confused and pulled her hand away

from his erect penis, & [Rian] then forced her skirt up and pressed his face

into her genital region and inhaled deeply.” Affidavit of Probable Cause,

2/12/20, at page 3 of 4. Thus, Rian was on notice of this evidence from the

outset of the case and was not prejudiced by its introduction during trial. See

Jones, supra (variance between information and evidence presented during

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trial is not fatal when it does not hinder defendant’s ability to prepare defense

or impair substantial right).

Furthermore, despite its omission from the informations, this evidence

was admissible as part of the res gestae or “history of the case” exception to

Pa.R.E. 404(b), which permits the admission of other crimes or bad acts to

tell the complete story.” Commonwealth v. Carter, 320 A.3d 140, 149 (Pa.

Super. 2024). “Other acts evidence is admissible under the res gestae

exception where it formed a part of a chain, or was one of a sequence of acts,

or became part of the history of the event on trial, or was part of the natural

development of the facts.” Id. Rian’s act of placing B.P.’s hand on his erect

penis was admissible as res gestae evidence because it was part of the history

that led up to the charged conduct of lifting her dress and placing his face into

her vaginal area.

Finally, Rian argues that he deserves a new trial because the verdict

was against the weight of the evidence. We need not address this argument

because of our decision above to grant him a new trial.

SEAN’S APPEAL

Sean raises the following issues in his appeal, which we as well have

reorganized for purposes of convenience:

1. Whether the testimony presented was so inconsistent that that

the evidence should be declared insufficient to convict the

Appellant?

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2. Whether the trial court abused its discretion in failing to grant

a new trial since the verdict was against the weight of the

evidence?

3. Whether [a] mistrial should have been [granted] after it was

disclosed that the Commonwealth committed a Brady19 violation

when it withheld statements and interviews of third-party

witnesses and/or patrons of Adventure Games and failed to

disclose that they even existed until trial?

4. Whether the trial court abused its discretion by issuing

Pennsylvania Suggested Standard Jury Instruction § 3.19 since

which failed to state a particular date, but instead allowed the jury

to consider any time it believed the crime occurred to be

sufficient?

5. Whether the trial court imposed an illegal sentence when it

failed to merge the IDSI conviction and Indecent Assault of Person

less than 16 years of age conviction since the crimes arose from

a single criminal act and all statutory elements of one offense are

included in the other?

6. Whether the trial court imposed a manifestly unreasonable and

excessive sentence in violation of the Sentencing Code and

contrary to the fundamental norms which underlie the sentencing

process?

Sean’s Brief at 6-7.

In his first argument, Sean contends that the testimony presented was

so inconsistent that that the evidence was insufficient to convict him. We

have summarized the standards for challenging the sufficiency of the evidence

in connection with Rian’s appeal above. Applying these standards, we

conclude that Sean’s argument lacks merit.

____________________________________________

19 Brady v. Maryland, 373 U.S. 83 (1963).

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Sean was convicted of corruption of minors, IDSI and indecent assault.

The amended criminal information alleged that these crimes occurred between

August 25, 2023, and August 24, 2004.

An individual is guilty of corruption of minors when he, “being of the age

of 18 years and upwards, by any act corrupts or tends to corrupt the morals

of any minor less than 18 years of age, or . . . aids, abets, entices or

encourages any such minor in the commission of any crime.” 18 Pa.C.S.A. §

6301(a)(1)(i).

B.P. testified that during an uncomfortable conversation with Rian at

Adventure Games, Rian took B.P.’s hand and placed it over his pants on his

erect penis. N.T., 10/17/22, at 57. B.P. froze at first, then jumped and stood

up. Id. Rian then lifted the skirt of B.P.’s dress to place his face to her genital

area, over her underwear, and inhaled. Id. B.P. again froze at first and then

let out a yelp. Id. at 59. After she yelped, Sean entered the room and told

B.P. to wait outside while he talked to his brother. Id. When he joined her,

they walked to the back of the building, id. at 60, where Sean explained to

B.P. that “girls like her” could get guys like his brother, Rian, “in trouble.” Id.

He said that it was her responsibility to make sure she did not put herself in

positions where “good men” could be “in trouble.” Id. Sean told B.P. that

just like she could get his brother in trouble, he needed to have something on

her that he could use to get her in trouble. Id. at 60-61.

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Sean said, “You’re going to have to give me some kisses,” which B.P.

assumed meant on his face. Id. at 61. She tried to comply, but Sean told

her that this was not what he meant. Id. Sean then undid his jeans and

exposed his penis and instructed B.P. that she was to kiss him. Id. He

specifically instructed her to kiss the tip and the shaft. Id. B.P. explained

that when Sean exposed his penis, it was becoming erect at that point. Id.

at 62. After B.P. repeatedly kissed his penis with him directing her how to do

it, he smooshed the tip of it into B.P.’s lips. Id. Sean then explained to B.P.

that he now had something on her because he would tell everyone she was a

slut. Id. at 63.

B.P. explained that this would be something serious for a 14-year-old

girl. Id. Sean told B.P. that everyone would find out she was “gross,” and

that she would lose her friends and her hangout spot. Id. Sean also told B.P.

that if anybody ever found out he would have to “kill” her. Id. She believed

him. Id. A week or two later, when B.P. had ceased going to Adventure

Games as often, Sean told her to keep her attendance because her act of

changing her habits in regard to going there would be suspect. Id. at 64.

This evidence satisfies all elements of corruption of minors against Sean.

The jury found Sean guilty of IDSI under 18 Pa.C.S.A. § 3123(a)(7),

which provides that an individual is guilty of IDSI when he engages in “deviate

sexual intercourse with a complainant . . . who is less than 16 years of age

and the person is four or more years older than the complainant and the

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complainant and person are not married to each other.” Id. The Crimes Code

defines “deviate sexual intercourse” as, inter alia, “sexual intercourse per os

or per anus between human beings[.]” 18 Pa.C.S.A. § 3101.

The evidence summarized above demonstrates that when B.P. was 14

years of age, Sean ordered her outside of Adventure Games after his brother,

Rian, assaulted her. When he came outside and walked to the back of the

building with B.P., Sean undid his jeans and exposed his penis and instructed

B.P. that she was to kiss him. He specifically instructed her to kiss the tip

and the shaft of his penis. B.P. explained that when Sean exposed his penis,

it was becoming erect at that point. After B.P. repeatedly kissed his penis

with him directing her how to do it, he pressed the tip of it into B.P.’s lips.

Detective Mancuso testified that Sean’s date of birth was April 16, 1970, so

he was clearly four or more years older than B.P.20 This evidence is sufficient

to sustain Sean’s conviction for IDSI.

The jury next found Sean guilty of indecent assault under 18 Pa.C.S.A.

§ 3126(a)(8), which provides that an individual is guilty of indecent assault if

he “has indecent contact with the complainant, causes the complainant to

have indecent contact with the person . . . and . . . the complainant is less

____________________________________________

20 Neither the trial court nor the Commonwealth directs us to any evidence

that demonstrates that Sean was not married to B.P. at the time of the

offense. Nevertheless, this element of IDSI is not at issue, because Sean does

not contend in his appellate brief that he was married to B.P. at the time of

the offense.

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than 16 years of age and the person is four or more years older than the

complainant and the complainant and the person are not married to each

other.” Id. “Indecent contact” means “[a]ny touching of the sexual or other

intimate parts of the person for the purpose of arousing or gratifying sexual

desire, in any person.” 18 Pa.C.S.A. § 3101.

The evidence discussed above demonstrates that Sean undid his jeans

and exposed his penis, which was rapidly becoming erect, and instructed B.P.,

then fourteen years old and more than four years younger than Sean, how to

kiss the tip and the shaft of it. After B.P. repeatedly kissed his penis at Sean’s

direction, he pressed the tip of it into B.P.’s lips. This evidence is sufficient to

sustain Sean’s conviction for indecent assault.

Sean argues that the evidence against him was insufficient because

B.P.’s testimony was inconsistent and in conflict with the testimony presented

by the defense. Sean contends that (1) B.P. testified that the incident with

Rian in the DDR room took place between August and December of 2003, but

the defense demonstrated that the DDR room did not exist until 2004, and (2)

there was no evidence that B.P. was at Adventure Games in 2003. The jury,

however, was free to believe all, part, or none of B.P.’s testimony. Moreover,

the “[e]xistence of inconsistencies in the testimony of a witness does not alone

render evidence insufficient to support a verdict.” Commonwealth v. Lyons,

833 A.2d 245, 258 (Pa. Super. 2003). Under these principles, Sean’s attempt

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to point out flaws or omissions in B.P.’s testimony falls short of demonstrating

that the evidence against him was insufficient.

Sean also argues B.P. was the only witness who testified about his

sexual assault. A solitary witness’s testimony, however, may establish every

element of a sexual offense. 18 Pa.C.S.A. § 3106 (in prosecutions under

Chapter 31 of Crimes Code, entitled Sexual Offenses, “[t]he testimony of a

complainant need not be corroborated in prosecutions under this chapter”);

see also Commonwealth v. Johnson, 180 A.3d 474, 480 (Pa. Super. 2018)

(citing Section 3106).

For these reasons, Sean’s challenge to the sufficiency of the evidence

fails.

Next, Sean argues that the trial court abused its discretion by refusing

to grant a new trial as the verdict was against the weight of the evidence. We

disagree.

The following legal principles apply to a trial court’s consideration of a

challenge to the weight of the evidence supporting a conviction:

A motion for new trial on the grounds that the verdict is contrary

to the weight of the evidence concedes that there is sufficient

evidence to sustain the verdict. Thus, the trial court is under no

obligation to view the evidence in the light most favorable to the

verdict winner. An allegation that the verdict is against the weight

of the evidence is addressed to the discretion of the trial court. A

new trial should not be granted because of a mere conflict in the

testimony or because the judge on the same facts would have

arrived at a different conclusion. A trial judge must do more than

reassess the credibility of the witnesses and allege that he would

not have assented to the verdict if he were a juror. Trial judges,

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in reviewing a claim that the verdict is against the weight of the

evidence do not sit as the thirteenth juror. Rather, the role of the

trial judge is to determine that notwithstanding all the facts,

certain facts are so clearly of greater weight that to ignore them

or to give them equal weight with all the facts is to deny justice.

Thus, to allow an appellant to prevail on a challenge to the weight

of the evidence, the evidence must be so tenuous, vague and

uncertain that the verdict shocks the conscience of the [trial]

court.

Commonwealth v. Juray, 275 A.3d 1037, 1046-47 (Pa. Super. 2022). “One

of the least assailable reasons for granting or denying a new trial is the lower

court’s conviction that the verdict was or was not against the weight of the

evidence and that a new trial should be granted in the interest of justice.”

Commonwealth v. Best, 120 A.3d 329, 345 (Pa. Super. 2015).

Sean argues that the evidence should have shocked the court’s

conscience because there was no physical evidence of crime, B.P.’s testimony

was inconsistent and refuted by defense evidence, and there was no

corroborating testimony by any other eyewitness. The trial court reasoned,

however, that B.P.’s testimony was credible and reliable enough to allow the

jury to return a guilty verdict on all of the offenses charged against Sean.

Opinion at 21. The court stated, “B.P. testified with enough specificity

concerning the sexual encounter with Appellant as it relates to Appellant’s

actions and the location of said encounter.” Id. The trial court concluded

that, as was within its province, the jury believed that Sean engaged in

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nonconsensual indecent contact with victim, B.P., who was a minor at the

time. Id.

In addition to B.P.’s testimony, Detective Mancuso testified that B.P.

contacted her about her involvement with some men that B.P. had in the past.

N.T. 10/18/22 p.m., at 21. When the two met, B.P. discussed the assaults

between the Mancuso brothers and her that had occurred in the past. Id. at

22. Detective Mancuso let B.P. tell the story from beginning, middle, to end,

with the detective only interjecting when something was not clear. Id. at 23.

The two spoke for quite a while about the incidents. Id. at 25. Detective

Mancuso then gave B.P. a victim statement form, which B.P. took home to fill

out and later returned to the detective. Id. at 25-26.

Sean argues, as he did concerning the sufficiency of the evidence, that

the DDR room did not open until 2004, and that there was no record that B.P.

was at Adventure Games in 2003 when she was 14 years old. We agree with

the trial court that these perceived flaws in B.P.’s testimony do not warrant a

new trial. As the court observed, “[t]he jury was within its province to decide

how much weight to give all the evidence presented at trial.” Opinion at 22.

B.P. testified with sufficient specificity to overcome Sean’s objection to the

weight of the evidence. The court acted within its discretion in denying Sean

a new trial.

Sean next argues that the court should have granted him a mistrial

because the Commonwealth violated Brady by withholding interviews of

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third-party witnesses taken by Detective Michelle Mancuso. We find no merit

in this contention.

Detective Mancuso testified that she interviewed B.P. in the course of

investigating the accusation against Damien. On cross-examination, she

testified that she also spoke with “other people” about these accusations.

N.T., 10/18/22 (PM), at 36. Counsel for Damien then cross-examined the

detective as follows:

Q. Who was -- who was that that you talked to with relation to the

accusations against Damien Mancuso specifically?

A. Well, there was no eyewitnesses to that assault. So there was

nobody that I would talk to that would give me any information

regarding … that assault in the car that evening.21

Q. [B.P.] testified there were other people at the store the night

that Damien gave her a ride; correct?

A. That’s correct.

Q. Did you talk to anyone who would have been at the store that

time to see if they recalled [B.P.] getting a ride from Damien?

A. Nobody recalled them leaving the store then at that time that

I spoke to -- no, there were a few people that I did speak to, but

there weren’t any eyewitnesses to them leaving the store

together.

Q. Who was it that you spoke to?

A. I believe it was Kayla Regan. There was a few names of people

that I did if I -- I don’t have the reports in front of me.

____________________________________________

21 As discussed above in our analysis of Damien’s appeal, Detective Mancuso

did not specify the date of “that evening.”

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Q. Well, you’ll agree with me, did you do reports regarding those

interviews?

A. Yes, they were -- there were reports done.

Q. And would they have been turned over in discovery? Do you

have those reports with you?

A. I don’t have them with me now. No, I don’t. There were

interviews done. Yes, I did do interviews.

Id. at 36-37. (Emphasis added). Shortly after this testimony, Detective

Mancuso’s testimony concluded, and the Commonwealth rested its case-in-

chief. Id. at 46.

At that point, counsel for Sean made the following motion:

I make a motion to dismiss for a violation of Brady, specifically

Detective Mancuso just testified that she authored reports of

interviews with witnesses, and that those witnesses testified that

they did not see the things she was asking which would have

corroborated the victim’s version of events. In that manner those

reports are exculpatory. They were never turned over, never

mentioned to anybody until [the detective] took the stand.

Id. at 47. The court denied the motion on the ground that Detective Mancuso

never said that the persons in question were there that night. Id. at 48.

In Brady, the Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused…violates due process where

the evidence is material either to guilt or to punishment….” Brady, 373 U.S.

at 87. Favorable evidence is material and constitutional error results from its

suppression “if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been

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different.” Commonwealth v. Hutchinson, 25 A.3d 277, 310 (Pa. 2011).

To constitute a Brady violation, the undisclosed evidence must meet three

criteria. Specifically, “[t]he evidence at issue was favorable to the accused,

either because it is exculpatory, or because it impeaches; the evidence was

suppressed by the prosecution, either willfully or inadvertently; and prejudice

ensued.” Id.

In response to Brady, our Supreme Court promulgated a rule of

discovery, Pa.R.Crim.P. 305, now renumbered as Pa.R.Crim.P. 573.

Commonwealth v. Sullivan, 820 A.2d 795, 802 (Pa. Super. 2003) (noting

that Rules 305 (and 573) promulgated in response to Brady). Rule 573

provides in relevant part:

(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.

(a) Any evidence favorable to the accused that is material either

to guilt or to punishment, and is within the possession or control

of the attorney for the Commonwealth . . .

(E) REMEDY

If at any time during the course of the proceedings it is brought

to the attention of the court that a party has failed to comply with

this rule, the court may order such party to permit discovery or

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inspection, may grant a continuance, or may prohibit such party

from introducing evidence not disclosed, other than testimony of

the defendant, or it may enter such other order as it deems just

under the circumstances.

Pa.R.Crim.P. 573.

Decisions involving discovery in criminal cases lie within the trial court’s

discretion, and its rulings will not be reversed absent abuse of this discretion.

Commonwealth v. Renninger, 269 A.3d 548, 565 (Pa. Super. 2022).

Although not expressly included in Rule 573(E)’s list of remedies, the trial

court has the discretion to dismiss the charges, but only for the most extreme

and egregious violations. Commonwealth v. Hemingway, 13 A.3d 491,

502 (Pa. Super. 2011). In most cases where there is a discovery violation,

“ordering a continuance will be an adequate remedy.” Commonwealth v.

Smith, 955 A.2d 391, 395 (Pa. Super. 2008). Where there is no evidence

that the Commonwealth intended to provoke the defendant into seeking a

mistrial or deprive him of a fair trial, and the evidence is otherwise admissible,

the proper remedy for the Commonwealth’s failure to disclose exculpatory

materials should be less severe than dismissal. Id. If the only prejudice to

the defendant is surprise, a continuance is appropriate, and preclusion of the

evidence is an abuse of discretion. Id.

Detective Mancuso’s testimony indicates that she interviewed

individuals who stated that they did not recall seeing B.P. leave Adventure

Games with Damien on the night of the incident. In our view, these interviews

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arguably constituted impeachment evidence under Brady because they cast

doubt on B.P.’s version of the events pertaining to Damien’s assault. Contrary

to the trial court’s ruling, the detective’s testimony suggests that these

individuals were present at Adventure Games on the night of the incident

concerning Damien:

Q. Did you talk to anyone who would have been at the store

that time to see if they recalled [B.P.] getting a ride from

Damien?

A. Nobody recalled them leaving the store then at that time

that I spoke to -- no, there were a few people that I did speak to,

but there weren’t any eyewitnesses to them leaving the store

together.

N.T., 10/18/22 (PM), at 36 (emphasis added).

Even if the interviews constituted impeachment testimony, the trial

court properly exercised its discretion by denying Sean’s motion for dismissal.

Dismissal is only appropriate for the most extreme and egregious discovery

violations. Hemingway, 13 A.3d at 502. The alleged violation here was

neither extreme nor egregious because it was not exculpatory as to Sean. It

only was (arguably) exculpatory as to Damien. The lone remedy that Sean

requested, dismissal, was inappropriate for the Commonwealth’s failure to

provide evidence that was at most collateral to Sean’s defense.22

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22 Although we affirm for a different reason than the ground given by the trial

court, here where the result is correct, we may affirm a lower court’s decision

on any ground whether or not relied upon by that court. Commonwealth v.

Lehman, 275 A.3d 513, 520 n.5 (Pa. Super. 2022).

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Next, Sean, like Rian, objects to the court’s Section 3.19 jury instruction

that it could find him guilty if he committed the charged offenses on or about

the period between August 25, 2003, and August 24, 2004. According to

Sean, since B.P. testified that the offenses took place in 2003, it was error to

permit the jury to find him guilty if it determined the offenses occurred in

2004. Like Rian, Sean assails the instruction as negating the probative value

of defense evidence that undermined B.P.’s credibility. For the reasons we

explained above in Rian’s appeal, we find no merit to this issue in Sean’s

appeal.

Sean next argues, relying on Commonwealth v. Tighe, 184 A.3d 560

(Pa. Super. 2018), that the court imposed an illegal sentence by declining to

merge his convictions for IDSI and indecent assault for purposes of

sentencing. Upon this ground, we agree.

Whether certain criminal offenses merge for sentencing is a question of

law. Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). Our

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

Commonwealth v. Williams, 920 A.2d 887, 889-890 (Pa. Super. 2007).

Our legislature has prescribed, “No crimes shall merge for sentencing

purposes unless the crimes arise from a single criminal act and all of the

statutory elements of one offense are included in the statutory elements of

the other offense.” 42 Pa.C.S.A. § 9765. Baldwin explains that “[Section

9765’s] mandate is clear. It prohibits merger unless two distinct facts are

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present: 1) the crimes arise from a single criminal act; and 2) all of the

statutory elements of one of the offenses are included in the statutory

elements of the other.” Id., 985 A.2d at 833. “The merger doctrine developed

to prevent punishing a defendant more than once for one criminal act.”

Commonwealth v. Gatling, 807 A.2d 890, 894 (Pa. 2002).

There is no dispute that Sean’s crimes all arose from a single criminal

act—his assault on B.P. in the rear of the Adventure Games building. We thus

turn to the second element of merger, whether all statutory elements of

indecent assault are included in the statutory elements of IDSI. We hold that

they are.

As stated above, Sean was convicted of IDSI under 18 Pa.C.S.A. §

3123(a)(7), which provides that an individual is guilty of IDSI when he

engages in “deviate sexual intercourse with a complainant . . . who is less

than 16 years of age and the person is four or more years older than the

complainant and the complainant and person are not married to each other.”

Id. The Crimes Code defines “deviate sexual intercourse” as, inter alia,

“sexual intercourse per os or per anus between human beings….” 18 Pa.C.S.A.

§ 3101. Sean also was convicted of indecent assault under 18 Pa.C.S.A. §

3126(a)(8), which prescribes that an individual is guilty of indecent assault if

he “has indecent contact with the complainant, causes the complainant to

have indecent contact with the person . . . and . . . the complainant is less

than 16 years of age and the person is four or more years older than the

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complainant and the complainant and the person are not married to each

other.” Id. “Indecent contact” means “[a]ny touching of the sexual or other

intimate parts of the person for the purpose of arousing or gratifying sexual

desire, in any person.” 18 Pa.C.S.A. § 3101.

We held in Tighe that the defendant’s conviction for indecent assault

under Section 3126(a)(8) merged with his conviction for IDSI under Section

3123(a)(7). After reciting the definitions of “deviate sexual intercourse” and

“indecent contact,” id. at 584-85, we held, “Proof of the ‘deviate sexual

intercourse’ element requirement of § 3123(a)(7) satisfies the ‘indecent

contact’ element of § 3126(a)(8). Thus, proof of [IDSI] with a person under

sixteen necessarily proved indecent assault of a person under sixteen. Thus,

the convictions merge for sentencing purposes.” Id. at 585. Tighe is directly

on point with the present case and requires us to conclude that Sean’s

convictions for IDSI and indecent contact merge for sentencing purposes.

The Commonwealth claims that merger is unnecessary, pointing to our

unpublished memorandum decision in Commonwealth v. Knight, 2022 WL

17755659 (Pa. Super., Dec. 19, 2022). Knight held that the offenses of

sexual assault23 and indecent assault did not merge for sentencing purposes

because each statute contains an element not in the other. Id., 2022 WL

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23 A person is guilty of sexual assault “when that person engages in sexual

intercourse or deviate sexual intercourse with a complainant without the

complainant’s consent.” 18 Pa.C.S.A. § 3124.1.

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17755659, at *8 (“a conviction of Sexual Assault requires proof of sexual

intercourse or deviate sexual intercourse, whereas Indecent Assault requires

only “indecent contact”). Based on Knight, the Commonwealth argues that

the element of deviate sexual intercourse in Section 3123(a)(7) is distinct

from the element of indecent contact in Section 3126(a)(8), and therefore

Tighe was wrongly decided. Tighe, however, is a precedential published

opinion, whereas Knight is a non-precedential memorandum. Accordingly,

we must follow Tighe instead of Knight. See Commonwealth v. Ealy, 2023

WL 8923515, *3-4 (Pa. Super., Dec. 27, 2003) (rejecting defendant’s reliance

on unpublished memorandum decision that conflicted with published opinion

in Commonwealth v. Holt, 270 A.3d 1230 (Pa. Super. 2022)).

Sean’s sentences for IDSI, corruption of minors and indecent assault all

ran consecutively. Because our determination of merger upsets this

sentencing scheme, we vacate Sean’s judgment of sentence and remand for

resentencing. Tighe, 184 A.3d at 585.

Finally, since we are remanding for resentencing, we need not consider

Sean’s final argument, a claim that his sentence was excessive and

unreasonable.

In 280 MDA 2024, Sean Mancuso’s convictions are affirmed. Case

remanded for resentencing.

In 432 MDA 2024, Rian Mancuso’s judgment of sentence is reversed.

Case is remanded for a new trial.

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In 247 MDA 2024, Damien Mancuso’s judgment of sentence is reversed.

Jurisdiction relinquished.

Judge Bowes joins the opinion.

President Judge Emeritus Stevens files a concurring statement.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 04/10/2026

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