Com. v. Joe-Murphy, T.

J-A23012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

THOMAS L. JOE-MURPHY :

:

Appellant : No. 1241 EDA 2019

Appeal from the Judgment of Sentence Entered November 19, 2018,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0001291-2017.

BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 9, 2021

Thomas L. Joe-Murphy appeals the judgment of sentence imposed

following his conviction for endangering the welfare of children and corruption

of minors.1 We affirm.

The trial court set forth the following summary of the factual history

underlying this case.

The complainant (hereafter referred to as O.W.) was

sexually assaulted by [Joe-Murphy], her mother’s boyfriend at the

time, from ages eleven (11) to thirteen (13). O.W. referred to

[Joe-Murphy] as her stepfather and considered him to be a

father[-]figure. [Joe-Murphy] engaged in a course of conduct that

started with grooming behaviors such as: coming into O.W.[’s]

bedroom at night and asking to lay with her; having O.W. come

to the bathroom while he was naked; massaging O.W.’s back and

feet; and touching her about her body, over her clothes.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 4304, 6301.

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[Joe-Murphy’s] sexual advances toward O.W. escalated to

having her touch his penis and ultimately [perform] oral sex on

him. [Joe-Murphy] would also touch O.W.’s buttocks and came

up close behind her so she could feel his penis. This sexual activity

occurred all hours, day and night, several times a week over the

course of a “couple years.” The next phase of [Joe-Murphy’s]

grooming activity occurred with him touching O.W.’s vagina,

inside and out, with his hands. Vaginal intercourse occurred on

Valentine’s Day, when O.W. was age twelve (12) and according to

O.W. “I wanted to do it and then it kind of happened, but it

stopped because it hurt and I was bleeding after that.” The bloody

sheets which were on O.W.’s mother's bed were washed by [Joe-

Murphy]. On another occasion, at the home of O.W.’s

grandfather, O.W.’s grandmother walked in on [Joe-Murphy]

“caressing” O.W. Other than the grandmother telling O.W. to go

downstairs, nothing else occurred from that incident. O.W. was

age twelve (12) to thirteen (13) the last time there was physical,

sexual contact with [Joe-Murphy]. This incident took place in the

kitchen of O.W.’s grandfather’s house, when [Joe-Murphy] “stuck

his penis inside [O.W.’s] vagina and [she] told him to stop.”

Texting on the phone and various other apps provided

another way to engage O.W. in sexually inappropriate behavior.

According to O.W., [Joe-Murphy’s] texts were “more about sexual

things, he would send me pictures of his private parts,” and in

return she would “say sexual things back to him.”

Although O.W. wanted to tell what was occurring with [Joe-

Murphy], he guilted her out of doing so by saying “I feel bad and

kill myself for this.” As a result, [Joe-Murphy] wrote in a journal

about the sexual activity. The journal entry about the Valentine’s

Day intercourse was discovered by O.W.’s grandmother, but was

explained away by O.W. O.W. also delayed disclosure because at

her young age she felt it was her fault because “I didn't say no all

the time.” O.W. also, did not want to tell her mother because

[Joe-Murphy] “was her boyfriend and my little brother’s dad, so I

felt awkward talking to her.” O.W.’s initial effort to disclose to her

mother, counselors and Philadelphia Children’s Alliance

(hereinafter referred to as PCA) did not implicate [Joe-Murphy].

Eventually, in November 2016, O.W. fully disclosed naming [Joe-

Murphy] as the perpetrator.

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Trial Court Opinion, 9/5/19, at 3-4 (unnecessary capitalization, quotation

marks, and citations to the record omitted).

Joe-Murphy was arrested and charged with rape of a child, involuntary

deviant sexual intercourse with a child, aggravated indecent assault of a child,

unlawful contact with a minor, statutory sexual assault, endangering the

welfare of a minor, indecent assault of a person less than 13 years of age, and

indecent exposure. Before trial, the court permitted the Commonwealth to

amend the bill of information to add a charge of corruption of minors. The

matter proceeded to a jury trial in September 2018, at the conclusion of which

the jury found him guilty of endangering the welfare of a child and corruption

of minors.2 On November 19, 2018, the trial court sentenced Joe-Murphy to

an aggregate prison term of three to six years, followed by four years of

probation. Joe-Murphy filed a timely notice of appeal. Both Joe-Murphy and

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

Joe-Murphy raises the following issues for our review:

1. Did the trial court err in permitting improper opinion testimony

by the Commonwealth’s expert witness?

2. Did the trial court err by precluding defense counsel from

impeaching O.W. with contradictory evidence?

3. Did the trial court err by not granting a new trial where the

weight of the evidence should have resulted in an acquittal?

____________________________________________

2 The jury was unable to reach a unanimous verdict on the remaining charges.

As such, the Commonwealth decided to nolle prosse those charges rather than

to retry Joe-Murphy.

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4. Did the trial court abuse its discretion in imposing a sentence

that was manifestly excessive and unreasonable?

Joe-Murphy’s Brief at 5.

In his first issue, Joe-Murphy challenges the trial court’s admission of

expert opinion testimony. Our standard of review is as follows:

The admission of evidence is committed to the sound

discretion of the trial court, and a trial court’s ruling regarding the

admission of evidence will not be disturbed on appeal unless that

ruling reflects manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Benvenisti-Zarom, 229 A.3d 14, 25 (Pa. Super. 2020)

(citation omitted). Further,

Expert testimony is generally admissible if: the witness has

a specialized knowledge beyond that possessed by the average

layperson; such knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue; and the expert’s

methodology is generally accepted in the relevant field.

Commonwealth v. Maconeghy, 6171 A.3d 707, 712 (Pa. 2017) (citing

Pa.R.E. 702).

In cases of sexual assault,

a witness may be qualified by the court as an expert if the witness

has specialized knowledge beyond that possessed by the average

layperson based on the witness’s experience with, or specialized

training or education in, criminal justice, behavioral sciences or

victim services issues, related to sexual violence, that will assist

the trier of fact in understanding the dynamics of sexual violence,

victim responses to sexual violence and the impact of sexual

violence on victims during and after being assaulted.

42 Pa.C.S.A. § 5920(b)(1). Further, an expert witness “may testify to facts

and opinions regarding specific types of victim responses and victim

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behaviors.” Id. § 5920(b)(2). However, a properly qualified expert providing

testimony pursuant to section 5920 may not offer opinions regarding the

credibility of any witness, including the victim. See Commonwealth v.

Jones, No. 24 WAP 2019, 2020 Pa. LEXIS 5622, at *34 (Oct. 30, 2020); 42

Pa.C.S.A. § 5920(b)(3).

In this case, the Commonwealth presented the testimony of Maria

McColgan, M.D., a board-certified, child abuse pediatrician, as an expert in

the fields of sexual abuse and pediatrics. On cross-examination, defense

counsel questioned Dr. McColgan in detail regarding certain behaviors

exhibited by O.W. before she disclosed her sexual abuse by Joe-Murphy,

including O.W.’s consensual sexual activity with her boyfriend, reports from

her mother that O.W. had repeatedly run away from school, and reports that

O.W. had been taken to a residential crisis center for what her mother at that

time believed were false reports of abuse at home. On redirect examination,

the prosecutor elicited testimony from Dr. McColgan that these behaviors were

consistent with child sexual abuse.

Joe-Murphy argues that the trial court erred in permitting Dr. McColgan

to testify on redirect because her opinions regarding O.W.’s behaviors were

beyond the scope of Dr. McColgan’s expertise. Specifically, Joe-Murphy

challenges the following testimony:

Q. Counsel went through with you the history of [O.W.’s] behavior

given to you by her [mother]. Does the history of her behavior

have any effect on your diagnosis or physical findings of [O.W.]?

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A. In some ways, yes.

Q. Can you explain how those ways are?

A. Children who have been sexual abused have acting out

behaviors particularly before they disclose and keeping in the

secret of what’s bothering them.

[Defense Counsel]: Objection. Beyond the qualifications.

THE COURT: Overruled. You may answer.

THE WITNESS: Children who are sexually abused are more likely

to have sexual promiscuous activities, are more likely to have

mental health issues, such as depression, anxiety, suicidal

ideations. Of course, those behaviors are not specific to sexual

abuse, but they are more common in children with sexual abuse.

So the report of those behaviors were not at all surprising to me

that the child who has been having those behaviors eventually

makes a disclosure of previous abuse.

N.T. Trial, 9/7/18, at 33-34.

Joe-Murphy contends that this opinion testimony was not within Dr.

McColgan’s scientific, technical, or other specialized knowledge. He argues

that, as a pediatrician, Dr. McColgan was not qualified to offer an expert

opinion related to behavioral and mental health issues. Joe-Murphy asserts

that the Commonwealth offered no evidence of Dr. McColgan’s education or

experience related to these specific areas, which usually fall under the

expertise of a psychiatrist or therapist.3

____________________________________________

3 Joe-Murphy further argues that Dr. McColgan improperly “opined on O.W.’s

credibility when she testified that [O.W’s] behavioral problems were not

abnormal for someone who had been sexually abused.” Joe-Murphy’s Brief at

15. However, this issue was not preserved for our review. At trial, defense

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The trial court considered Joe-Murphy’s first issue and determined that

it lacked merit. It reasoned:

[Defense] counsel stipulated to the doctor’s expertise, which

qualified her as an expert in the field of child sexual abuse and

pediatrics. This “expert” designation was in recognition of the

doctor as founder and director of the Child Protection Program at

St. Christopher’s Hospital; that she was one of the first board-

certified child abuse pediatricians; that she has performed several

thousand comprehensive evaluations that examine the child’s

history and physical well-being; that she evaluated thousands of

sexual abuse cases; published child sexual abuse review articles

and testified hundreds of times in the area of child sexual abuse.

The objectionable testimony was in fair response on redirect

examination to the extensive cross-examination about the

doctor’s knowledge of O.W.’s acting out behavior prior to

disclosure, such as truancy and running away from home.

[Defense] counsel’s examination opened the door for Dr.

McColgan to offer her expert opinion that “children who have been

sexually abused have acting out behaviors particularly before they

disclose and keeping in the secret of what’s bothering them.”

Trial Court Opinion, 9/5/19, at 7 (citations to the record omitted).

We discern no abuse of discretion by the trial court in determining that

Dr. McColgan was qualified to offer an expert opinion related to behavioral

and mental health issues suffered by victims of child sexual abuse. Dr.

McColgan, a board-certified child abuse pediatrician, clearly had both

____________________________________________

counsel objected to Dr. McColgan’s testimony solely on the basis that her

testimony exceeded her professional qualifications. See N.T. Trial, 9/7/18, at

33-34. No objection was raised on the basis that Dr. McColgan’s testimony

constituted an impermissible opinion regarding O.W.’s credibility. Thus, that

particular challenge is waived. See Pa.R.A.P. 302(a) (providing that issues

not raised in the lower court are waived and cannot be raised for the first time

on appeal).

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specialized training and education in victim services issues related to sexual

violence to children that would assist the trier of fact in understanding the

dynamics of sexual violence to children, child victim responses to sexual

violence and the impact of sexual violence on child victims during and after

being assaulted. See 42 Pa.C.S.A. § 5920(b)(1). Moreover, Joe-Murphy

stipulated at trial that Dr. McColgan was an expert in the fields of sexual abuse

and pediatrics. Accordingly, she was permitted to testify to facts and opinions

regarding specific types of child victim responses and child victim behaviors.

Id. § 5920(b)(2). For these reasons, Joe-Murphy’s first issue merits no relief.

In his second issue, Joe-Murphy contends that the trial court abused its

discretion by precluding defense counsel from impeaching O.W. during her

cross-examination at trial. As stated above, the admissibility of evidence is

within the sound discretion of the trial court and will only be reversed upon a

showing of an abuse of discretion. See Benvenisti-Zarom, 229 A.3d at 25.

Similarly, the scope and limits of cross-examination are within the discretion

of the trial court and will not be disturbed on appeal absent a clear abuse of

that discretion or an error of law. See Commonwealth v. Washington, 63

A.3d 797, 805 (Pa. Super. 2013) (citing In re Lokuta, 11 A.3d 427, 444 (Pa.

2011); Pa.R.E. 611(a)(3) (providing that “[t]he court should exercise

reasonable control over the mode and order of examining witnesses and

presenting evidence so as to: ... protect witnesses from harassment or undue

embarrassment”).

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Generally, the credibility of a witness may be impeached by any

evidence relevant to that issue. See Pa.R.E. 607. Evidence is relevant if it

has “any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would

be without the evidence.” Pa.R.E. 401. However, “[a]lthough relevant,

evidence may be excluded if its probative value is outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Pa.R.E. 403.

Joe-Murphy maintains that, during cross-examination, O.W. testified

that her mother took her to a residential crisis center after she repeatedly ran

away from home, but claimed that she was released the same day because

she was not diagnosed with any condition. Joe-Murphy argues that the trial

court should have granted defense counsel’s request to impeach O.W. with

evidence that, contrary to her testimony, she was diagnosed with oppositional

defiance disorder. Joe-Murphy asserts that O.W.’s mother told Dr. McColgan

that O.W. was diagnosed with oppositional defiance disorder.4 Joe-Murphy

____________________________________________

4 Joe-Murphy also argues that O.W.’s mother told Dr. McColgan that O.W.

was, in fact, involuntarily committed to the crisis center. To the extent that

Joe-Murphy contends that he should have been permitted to impeach O.W. on

this additional matter, he failed to preserve the issue for our review. Defense

counsel only sought to impeach O.W. regarding her diagnosis, not her

commitment. See N.T. Trial, 9/7/18, at 83-84. Further, Joe-Murphy failed to

raise this issue in his concise statement. See Commonwealth v. Lord, 719

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contends that this impeachment evidence was vital because there were no

witnesses or physical evidence to support the sexual abuse allegations, and

the entire prosecution was premised on O.W.’s testimony. Joe-Murphy argues

that the impeachment evidence was relevant to O.W.’s credibility and its

probative value outweighed any danger of unfair prejudice. He contends that

defense counsel should have been permitted to impeach O.W. with this

evidence to support the defense theory that O.W. fabricated sexual abuse to

evade punishment for running away and lying.

Joe-Murphy additionally argues that the impeachment evidence was

necessary to show O.W.’s motive for lying about the sexual abuse. He points

out that O.W. believed that she would have to remain at a residential crisis

center if she were diagnosed with a mental health condition. According to

Joe-Murphy, O.W. feared such placement because she would be separated

from her boyfriend. Joe-Murphy asserts that “[t]he impeachment evidence

was relevant to show O.W.’s motive in alleging sexual abuse when facing her

greatest fear - separation from her boyfriend.” Joe-Murphy’s Brief at 19.

Finally, Joe-Murphy claims that it would be unlikely that the jury would

not believe O.W. solely because she had a mental health diagnosis. He further

____________________________________________

A.2d 306, 309 (Pa. 1998) (holding that if an appellant is directed to file a

concise statement of matters to be raised on appeal pursuant to Pa.R.A.P.

1925(b), any issues not raised in that statement are waived); see also

Pa.R.A.P. 1925(b)(3)(vii) (providing that “issues not included in the [Concise]

Statement … are waived”); Pa.R.A.P. 302(a). Thus, the issue is waived.

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claims that “the trial court could have protected against the danger of unfair

prejudice by limiting defense counsel’s evidence, and argument, to the

permissible reasons, and by giving the jury a cautionary instruction.” Id.5

The trial court considered Joe-Murphy’s second issue and determined

that it lacked merit. The court reasoned as follows:

[Joe-Murphy] argues that he should have been able to attack

O.W.’s credibility as it contradicted prior testimony from Dr.

McColgan that O.W.’s mother . . . told her O.W. had been

diagnosed with oppositional defiance disorder. The court

appropriately determined that the probative value of that line of

questioning outweighed its prejudicial impact, particularly where

as here, [Joe-Murphy’s] counsel engaged in extensive cross-

examination in numerous areas attacking O.W.’s credibility.

Questioning O.W. about her mental health, albeit th[r]ough the

presence or absence of a diagnosis of oppositional defiance

disorder[,] was not necessary to attack her credibility. [Joe-

Murphy’s] counsel was relentless in his questioning about O.W.’s

behavioral issues and served the same purpose for which he

sought this particular line of questioning.

Trial Court Opinion, 9/5/19, at 7-8 (citations to the record and unnecessary

capitalization omitted).

____________________________________________

5 Joe-Murphy additionally argues that the trial court’s ruling constitutes a

violation of the confrontation clauses of the United States and Pennsylvania

Constitutions. However, this particular challenge was not preserved for our

review. At trial, defense counsel objected to the trial court’s ruling solely on

the basis that the impeachment evidence was relevant to O.W’s credibility.

N.T. Trial, 9/7/18, at 83-84. Defense counsel made no reference to the

confrontation clause. See id. Accordingly, this particular issue is waived.

See Commonwealth v. Stays, 70 A.3d 1256, 1264 (Pa. Super. 2013)

(finding waiver of confrontation clause challenge where the defendant

objected to hearsay only); see also Pa.R.A.P. 302(a).

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We discern no abuse of discretion by the trial court in making its

evidentiary ruling. Throughout his cross-examination, defense counsel

confronted O.W. with her prior inconsistent statements regarding the sexual

abuse, including her initial report of sexual abuse in 2015 where she denied

that her abuser was Joe-Murphy, and her subsequent report in 2016 that Joe-

Murphy was her abuser. The character of this extensive impeachment was

such that the trial court could reasonably exercise its discretion to protect

O.W. from harassment or undue embarrassment on the singular issue of

whether she was diagnosed with oppositional defiant disorder. See Pa.R.E.

611(a)(3). Accordingly, Joe-Murphy’s second issue merits no relief.

In his third issue, Joe-Murphy challenges the weight of the evidence

supporting his convictions. The following legal principles apply when a

challenge to the weight of the evidence supporting a conviction is presented

to the trial court:

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, 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

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weight that to ignore them or to give them equal weight with all

the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,

footnotes and quotation marks omitted). 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. Talbert, 129 A.3d 536, 545 (Pa. Super.

2016) (internal citation omitted).

An appellate court’s standard of review when presented with a weight

of the evidence claim is distinct from the standard of review applied by the

trial court:

Appellate review of a weight claim is a review of the exercise

of discretion, not of the underlying question of whether the verdict

is against the weight of the evidence. Because the trial judge has

had the opportunity to hear and see the evidence presented, an

appellate court will give the gravest consideration to the findings

and reasons advanced by the trial judge when reviewing a trial

court’s determination that the verdict is against the weight of the

evidence. 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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in

original).

Joe-Murphy contends that the verdict was contrary to the weight of the

evidence because there were no witnesses to the sexual abuse, which

occurred over a period of four years, and there was no physical evidence of

abuse. Joe-Murphy points out that, although O.W. claimed that they had

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exchanged sexually explicit text messages for years, no such messages were

recovered by police. Joe-Murphy additionally asserts that the medical finding

that O.W.’s hymen had been transected could have been the result of her

consensual intercourse with two other individuals.

Joe-Murphy additionally contends that O.W.’s testimony was

inconsistent and incredible. He points out that, in her 2015 and 2016

interview videos and at the preliminary hearing, O.W. only identified two

locations at which they had oral sex; whereas she identified three additional

locations at trial. He further points out that, in her 2016 interview video and

at the preliminary hearing, O.W. stated that they had sexual intercourse on

one occasion; whereas, at trial, she testified that they had sexual intercourse

on four occasions.

Next, Joe-Murphy asserts that O.W. had a clear motive to fabricate

allegations of sexual abuse in order to evade punishment for running away

from home. Finally, Joe-Murphy contends that he presented four character

witnesses who testified that he was a law-abiding and peaceful person.

Here, the trial court determined that the elements for each conviction

were supported by the record, and concluded that “there is nothing about the

jury’s verdict that would ‘shock one’s sense of justice.’” Trial Court Opinion,

9/5/19, at 11. We discern no abuse of discretion by the trial court in arriving

at its determination that the verdict of guilt did not shock the conscious.

Although there were inconsistencies in O.W.’s testimony, the jury was free to

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believe all, none, or some of her testimony. In the present case, the jury

chose to believe at least some of O.W.’s testimony, despite discrepancies in

the versions she presented. This Court may not re-weigh the evidence or

second-guess the jury’s credibility determinations.

Additionally, the trial court’s discretion was not abused in rejecting Joe-

Murphy’s weight challenge despite the fact that the jury was hung on the most

serious charges against him. That a jury is unable to agree on the defendant’s

guilt or innocence on certain charges does not operate as an acquittal on those

counts. See Commonwealth v. Jones, 166 A.3d 349, 353 (Pa. Super.

2017). Had the Commonwealth opted to retry Joe-Murphy on those counts,

a finding of conviction or acquittal on those charges was equally possible.

Moreover, even if the jury had acquitted Joe-Murphy on the remaining

charges, Pennsylvania courts have long recognized that jury acquittals may

not be interpreted as specific factual findings with regard to the evidence, as

an acquittal does not definitively establish that the jury was not convinced of

a defendant’s guilt. Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa.

2014). As we discern no abuse of discretion by the trial court in arriving at

its determination that the verdict of guilt did not shock the conscious, no relief

is due.

In his final issue, Joe-Murphy challenges the discretionary aspects of his

sentence. “Challenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Moury, 992 A.2d

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162, 170 (Pa. Super. 2010). Rather, when an appellant challenges the

discretionary aspects of his sentence, we must consider his brief on this issue

as a petition for permission to appeal. Commonwealth v. Yanoff, 690 A.2d

260, 267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522

A.2d 17, 18 (Pa. 1987); 42 Pa.C.S.A. § 9781(b). Prior to reaching the merits

of a discretionary sentencing issue, this Court conducts a four-part analysis to

determine:

(1) whether appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly

preserved at sentencing or in a motion to reconsider and modify

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief

has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there

is a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code, [see] 42 Pa.C.S.[A.] §

9781(b).

Id. (citation omitted).

In the instant case, Joe-Murphy filed a timely notice of appeal, preserved

his claims in a timely post-sentence motion, and included in his appellate brief

a separate Rule 2119(f) statement. As such, he is in technical compliance

with the requirements to challenge the discretionary aspects of his sentence.

See Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010). Thus,

we will proceed to review the Rule 2119(f) statement to determine whether

Joe-Murphy has presented a substantial question for our review.

In his Rule 2119(f) statement, Joe-Murphy argues that the trial court

abused its sentencing discretion by relying on (1) conduct for which Joe-

Murphy was not convicted, including anally, vaginally, orally, and digitally

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raping O.W.; and (2) concern for other rape victims who may be too scared

to speak out.

An allegation that the court considered an impermissible sentencing

factor raises a substantial question. See Commonwealth v. Macias, 968

A.2d 773, 776 (Pa. Super. 2009); see also Commonwealth v. Matroni, 923

A.2d 444 (Pa. Super. 2007). Because Joe-Murphy asserts that the trial court

considered impermissible factors in imposing sentence, we find he raises a

substantial question and will address the merits of his discretionary sentencing

claim.

Our standard of review for challenges to the discretionary aspects of

sentencing is as follows:

Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal

absent a manifest abuse of discretion. In this context, an abuse

of discretion is not shown merely by an error in judgment. Rather,

the appellant must establish, by reference to the record, that the

sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.

Commonwealth v. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation

omitted).

Joe-Murphy contends that the trial court improperly relied on the

Commonwealth’s argument that Joe-Murphy anally, vaginally, orally, and

digitally raped O.W., as he was only convicted of corruption of minors and

endangering the welfare of children. According to Joe-Murphy, corruption of

minors and endangering the welfare of children can encompass a multitude of

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conduct, including exchanging sexually explicit text messages.6 He claims

that there is no way to determine the exact conduct on which the jury found

him guilty of these crimes. Joe Murphy additionally contends that the trial

court improperly relied on the Commonwealth’s argument to consider other

rape victims who may be out there and are too scared to speak out. Joe-

Murphy maintains that other victims have no bearing on the sentencing

considerations for Joe-Murphy. Joe-Murphy asserts that the trial court must

have considered these impermissible factors because it overruled defense

counsel’s objections to them at the sentencing hearing.

As noted above, in order to establish an abuse of discretion, Joe-Murphy

“must establish, by reference to the record, that the sentencing court

ignored or misapplied the law, exercised its judgment for reasons of partiality,

prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.”

Conte, 198 A.3d at 1176 (emphasis added).

Here, Joe-Murphy offers no support for his assertion that the trial court

arrived at its sentencing decisions based on the allegations that he anally,

vaginally, orally, and digitally raped O.W. and/or a concern for other rape

victims. While the Commonwealth pointed out that O.W. testified at trial that

Joe-Murphy anally, vaginally, orally, and digitally raped her, and O.W.’s

____________________________________________

6 Notably, at sentencing, defense counsel agreed with the trial court that

corruption of minors and endangering the welfare of children could include

vaginal, digital, and anal rape. N.T. Sentencing, 11/19/18, at 17.

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impact statement expressed a concern for other rape victims, there is no

evidence in the record that the sentencing court based its sentencing decisions

on these factors.

In imposing sentence, the trial court acknowledged the testimony of

Joe-Murphy’s character witnesses regarding the positive impact Joe-Murphy

had made in the lives of other young people as a coach and mentor. N.T.

Sentencing, 11/19/18, at 45. However, the trial court also acknowledged the

pain expressed by O.W., to whom Joe-Murphy was supposed to be a role-

model, mentor, and family member through his relationship with O.W.’s

mother, and Joe-Murphy’s betrayal of these individuals. Id. at 45-46. The

trial court made no reference to the specific conduct supporting the sentence.

Nor did the trial court indicate that its sentencing determination was based on

a concern for other rape victims.

Moreover, the trial court considered Joe-Murphy’s discretionary

sentencing claim and determined that it lacked merit. The trial court detailed

the factors that it considered when imposing sentence upon Joe-Murphy:

The [trial c]ourt imposed a guideline sentence as to both

charges to which [Joe-Murphy] was found guilty. Careful

consideration was given to the sentencing guidelines along with:

presentence reports; the complainant O.W.’s victim impact

statement; the victim impact testimony of O.W.’s mother; the

testimony of [Joe-Murphy’s] character witnesses; [Joe-Murphy’s]

allocution; and arguments of counsel. Before imposing sentence

the [trial c]ourt acknowledged [Joe-Murphy’s] good qualities, and

balanced them against the devastating impact of [Joe-Murphy’s]

sexually inappropriate behaviors upon the child, O.W. [Joe-

Murphy’s] sentencing issues are misleading, inaccurate and not

supported by evidence or fact.

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Trial Court Opinion, 9/5/19, at 10 (citations to the record omitted).

Based upon the record before us, we cannot conclude that that the trial

court considered impermissible factors when imposing its sentence.

Accordingly, Joe-Murphy’s final issue merits no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/09/2021

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