Com. v. Morrison, R.

J-S37004-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RAHEEM MORRISON :

:

Appellant : No. 2054 EDA 2022

Appeal from the Judgment of Sentence Entered June 22, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0006606-2021

BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 26, 2024

Raheem Morrison, Appellant, appeals from the judgment of sentence of

15 to 30 years’ incarceration and a consecutive period of three years’

probation, imposed following a bifurcated, two-day bench trial before the

Honorable Kai Scott.1 Appellant was convicted of ten crimes, all of which

related to the sexual abuse of his biological daughter. We affirm.

The victim, K.W., was 11 years old at the time of trial. She testified

that she was not close to Appellant growing up, but began visiting him on

____________________________________________

1 Judge Scott did not file a formal written opinion as she was appointed to the

United States District Court for the Eastern District of Pennsylvania. On

January 13, 2023, Judge Scott filed a letter brief following her confirmation,

but prior to President Biden’s signing her commission, which was expected to

be within days of the filing. We appreciate the trial court’s diligence and will

refer to this document, which is rather comprehensive given the

circumstances, as the Trial Court Opinion (TCO).

J-S37004-23

weekends beginning in October of 2021, when she was 10 years old.2 The

abuse began shortly thereafter. The first incident that she could recall

occurred in Appellant’s car. Appellant asked K.W. if she wanted to drive and

put her on his lap. He then unzipped her pants and put his finger on her

vagina. In another incident, Appellant called her into a room and asked if she

wanted to “see his private part[.]” N.T., 2/23/22, at 26. K.W. was too scared

to say no. Appellant then told her to put her mouth on his penis. On another

occasion, Appellant waited for K.W. to finish showering and told her to come

to his bedroom. He then took her towel, placed her on the ground, and began

licking her vagina. K.W. disclosed the abuse to her mother3 via text message

on January 14, 2021.

Mother and Appellant had an antagonistic relationship. Mother testified

that she began allowing K.W. to visit Appellant in October of 2020, partly due

to pressure from her boyfriend and her family members. See id. at 79 (“But

I had my grandmom and I had my boyfriend in my ear saying if [Appellant]

want[s] to be a father, allow him to be a father….”). She described the text

message from K.W. as saying “dad[’s] been touching me.” Id. at 80. Mother

consulted her mother, D.W., and then drove home to speak to K.W., who

disclosed more details. K.W. stated that she wanted to go to the police, and

____________________________________________

2 K.W. testified that the visits began in October of 2021. As discussed

elsewhere, other witnesses testified that those visits began in 2020, and

authorities were informed of the abuse in January of 2021.

3 K.W.’s mother’s first name also begins with K. To avoid confusion, we will

refer to her as Mother.

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Mother transported her to the local police station. Subsequently, K.W. was

given a medical examination and later sat for a forensic interview with Jillian

Shainman, a forensic interviewer employed by Philadelphia Children’s Alliance.

The Commonwealth introduced a videotape of that interview into evidence.

Appellant was convicted of all charges and sentenced on June 22, 2022,

to the term previously stated. On July 5, 2022, he filed a timely post-sentence

motion.4 Following the denial of the motion, Appellant filed a timely notice of

appeal and complied with the court’s order to file a concise statement pursuant

to Pa.R.A.P. 1925(b). The trial court filed its opinion, see footnote 1, supra,

and the matter is ready for review of Appellant’s eight claims:

1. Whether the verdict of guilty of all ten convicted offenses … is

based on insufficient evidence where there is a lack of evidence to

show beyond a reasonable doubt that there was any sexual or

other criminal activity between Appellant and [K.W][.]

2. Whether the verdict in this matter was against the weight of

the evidence where there was a lack of physical evidence in a case

where physical evidence would have been present; there was

evidence of adult manipulation by … [M]other of [K.W.] and her

motive for doing so given her bias against Appellant; and the

credibility concerns of [K.W.,] including her inability to recall key

details[.]

3. Whether the [c]ourt erred and abused its discretion by

sustaining the Commonwealth’s relevance objection when defense

asked the complaining witness on cross-examination whether she

knew [Appellant] did not have a license to drive[.]

____________________________________________

4 The tenth day was Saturday, July 2. Monday, July 4, was a legal holiday.

The filing is therefore timely. 1 Pa.C.S. § 1908 (“Whenever the last day of

any such period shall fall on Saturday or Sunday, or on any day made a legal

holiday by the laws of this Commonwealth or of the United States, such day

shall be omitted from the computation.”).

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4. Whether the [c]ourt erred and abused its discretion by

overruling … [Appellant]’s hearsay and relevance objection

regarding prior statements made by [K.W][.]

5. Whether the [c]ourt erred and abused its discretion by

sustaining the Commonwealth’s relevance objection when defense

attempted to elicit testimony regarding the parenting of [Mother.]

6. Whether the [c]ourt erred and abused its discretion by

admitting a copy of the forensic interview from Philadelphia

Children’s alliance into evidence, over defense objection[.]

7. Whether the [c]ourt erred and abused its discretion during

sentencing by failing to adequately consider the mitigating

characteristics and cooperative nature of Appellant in fashioning a

sentence[.]

8. Whether the [c]ourt erred and abused its discretion during

sentencing by considering remarks by the Commonwealth and

making remarks itself that the complaining witness’ behavior was

consistent with that of a sexual abuse victim[.]

Appellant’s Brief at 11-13.

I.

Sufficiency of the evidence

Appellant initially challenges the sufficiency of the evidence with respect

to all ten convictions. The trial court concluded that Appellant failed to

preserve this issue. We agree. Appellant’s original Rule 1925(b) statement

stated, with respect to his sufficiency challenge, that the Commonwealth failed

to “prove some or all of the elements of the ten charges….” Concise

Statement, 8/12/22, at 1 (unpaginated). Appellant then sought permission

to amend the statement, explaining that, while his “contention is that no

sexual assault took place, undersigned counsel feels it would be best to amend

the statement to discuss the specific relevant element from each of the ten

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counts….” Motion for Permission to Amend, 8/29/22, at 3-4 (unpaginated).

The trial court granted the request, and opines that the amendment did not

cure the defect, as it merely separated “all ten of [Appellant]’s convictions into

11 separate paragraphs, noting only that ‘there was insufficient evidence to

show that [Appellant] [insert criminal conduct here].’” TCO, 1/13/23, at 2

(third bracketing in original). We agree with the trial court that this “is no

more specific than saying that the evidence was insufficient for his conviction.”

Id. Indeed, Appellant’s brief carries forward that defect, as illustrated by his

argument in support of this claim:

With regards to the charge of Rape of a Child under 18 [Pa.]C.S.

§ 3121(c), there was insufficient evidence to prove beyond a

reasonable doubt that sexual intercourse occurred between the

complaining witness and Appellant. With regards to the charge of

Involuntary Deviate Sexual Intercourse under 18 [Pa.]C.S. §

3123(b), there was insufficient evidence to prove beyond a

reasonable doubt that deviate sexual intercourse occurred

between the complaining witness and Appellant. With regards to

the charge of Statutory Sexual Assault under 18 [Pa.]C.S. §

3122.1(b), there was insufficient evidence to prove beyond a

reasonable doubt that sexual intercourse occurred between the

complaining witness and Appellant. With regards to the charge of

Sexual Assault under 18 [Pa.]C.S. § 3124.1, there was insufficient

evidence to prove beyond a reasonable doubt that sexual

intercourse or deviate sexual intercourse occurred between the

complaining witness and [Appellant]. With regards to the charge

of Incest under 18 [Pa.]C.S. § 4302(a), there was insufficient

evidence to prove beyond a reasonable doubt that sexual

intercourse occurred between the complaining witness and

Appellant. With regards to the charge of Endangering Welfare of

Children - Parent/Guardian/Other Commits Offense under 18

[Pa.]C.S. § 4304(a)(1), there was insufficient evidence to prove

beyond a reasonable doubt that … Appellant endangered the

welfare of a child, i.e.[,] the complaining witness. With regards

to the charge of Corruption of Minors by Defendant Age 18 or

Above under 18 [Pa.]C.S. § 6301(a)(1)(ii), there was insufficient

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evidence to prove beyond a reasonable doubt that a course of

conduct in violation of Chapter 31 (relating to sexual offenses)

occurred between … Appellant and the complaining witness. With

regards to the charge of Indecent Exposure under 18 [Pa.]C.S. §

3127(a) – Indecent Exposure, there was insufficient evidence to

prove beyond a reasonable doubt that Appellant exposed his

genitals. With regards to the charge of Indecent Assault on Person

Less than 13 Years of Age under 18 [Pa.]C.S.[]§ 3126(a)(7), there

was insufficient evidence to prove beyond a reasonable doubt that

any indecent contact took place between Appellant and the

complaining witness. With regards to the charge of Recklessly

Endangering Another Person under 18 [Pa.]C.S. § 2705, there was

insufficient evidence to prove beyond a reasonable doubt that

Appellant recklessly endangering the complaining witness and/or

put her in danger of death or serious bodily injury.

Appellant’s Brief at 22-24.

To preserve a sufficiency challenge, the concise statement must offer

more than a boilerplate assertion that the evidence was insufficient to convict.

In Commonwealth v. McCree, 857 A.2d 188 (Pa. Super. 2004), the

appellant’s concise statement “raise[d] a sufficiency of the evidence claim by

stating that ‘[t]here was insufficient evidence to sustain the verdict of guilt

beyond a reasonable doubt.’” Id. at 192 (quoting concise statement; second

bracketing in original). We stated that “such language is too vague to permit

review.” Id. However, we declined to find that the issue was waived because

the appellant was convicted of only one count of possessing drugs with the

intent to deliver, and as he did not contest physical possession, it was obvious

from the proceedings that he challenged only one element. We explained

that, “[b]ecause the trial court was aware the issue of intent was the only

issue that [the] appellant could possibly appeal, we [found] that [the]

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appellant’s statement sufficiently identified the issue involved." Id. at 192-

93.

Unlike McCree, Appellant was convicted of several crimes, and it is not

obvious what element(s) he wishes to challenge. For example, Appellant

challenges the Rape of a Child conviction on the grounds that “there was

insufficient evidence to prove beyond a reasonable doubt that sexual

intercourse occurred between the complaining witness and Appellant.”

Appellant’s Brief at 22. We note that the crime is defined as “engag[ing] in

sexual intercourse with a complainant who is less than 13 years of age.” 18

Pa.C.S. § 3121(c). The phrase “sexual intercourse” is defined as: “In addition

to its ordinary meaning, includes intercourse per os or per anus, with some

penetration however slight; emission is not required.” 18 Pa.C.S. § 3101. We

observe that the term “per os” does not include digital penetration, but does

include oral intercourse. Commonwealth v. Kelley, 801 A.2d 551, 555 (Pa.

2002). It is not this Court’s duty to go through each crime, examine applicable

caselaw, and determine whether the Commonwealth’s evidence satisfied the

elements. Appellant’s amended statement did not discuss the

Commonwealth’s evidence, and he fails to argue why the evidence, when

viewed in light most favorable to Commonwealth as the verdict winner, was

insufficient. We therefore agree with the trial court that Appellant failed to

preserve any sufficiency challenge.

II.

Weight of the evidence

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Appellant’s second claim challenges the weight of the evidence. Our

standard of review is well-settled:

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 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) (footnote

and citations omitted).

Appellant’s argument in support of finding an abuse of discretion claims

“there was: (i) overwhelming evidence to show the complaining witness was

coached by her mother to bring these allegations against Appellant; and (ii)

there were credibility concerns of the complaining witness given

inconsistencies in her testimony and an inability to recall key details.”

Appellant’s Brief at 25.

Appellant offers little more than an argument that we should review the

testimony de novo. He argues that Mother “made clear during her testimony

she harbored animosity towards Appellant.” Id. He also cites K.W.’s

testimony that she had only recently begun using the word “coochie” to refer

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to her vagina, which, in his view, suggests coaching. Finally, Appellant points

to Mother’s testimony that K.W.’s initial disclosures were “in stark contrast to

the graphic allegations K.W. would later report….” Id. at 25-26. Appellant

argues that Mother “may have influenced her daughter’s claim to be more

egregious and criminal.” Id. at 26.

As our Supreme Court has observed, “[o]ne of the least assailable

reasons for granting or denying a new trial is the lower court’s determination

that the verdict was or was not against the weight of the evidence and that

new process was or was not dictated by the interests of justice.”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).

Additionally, in ruling on the weight claim, the trial judge does “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.” Widmer, supra at 752. We acknowledge that this concept is

difficult to apply in a bench trial, where the judge served as the jury.

Commonwealth v. Banniger, 303 A.3d 1085, 1095 (Pa. Super. 2023)

(“Although weight of the evidence claims have been addressed in non-jury

cases, there is a logical inconsistency in asking a trial judge to conclude that

his non-jury decision shocked his own conscience.”). However, Appellant

must still show an abuse of discretion. Id.

Presently, Appellant fails to explain how the trial court abused its

discretion pursuant to the relevant standards of review. Instead, Appellant

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merely relitigates the underlying question of whether the weight of the

evidence supports the verdict and invites us to make a credibility

determination. Our decision in Commonwealth v. Rogers, 259 A.3d 539

(Pa. Super. 2021), which involved a weight claim in a non-jury proceeding,

establishes that, even in non-jury cases, we may not act as the thirteenth

juror.

Rather than claim an abuse of discretion, Rogers argues to us de

novo that the verdicts were against the weight of the evidence,

i.e., that the witnesses lacked credibility, and that the trial court’s

verdicts were highly speculative. Accordingly, Rogers does not

contend, much less persuade us, that the trial court overrode the

law; made a manifestly unreasonable decision; or was motivated

by bias, prejudice, or ill will.

Id. at 541-42 (internal quotation marks and citation omitted).

The same point applies here. Appellant simply asks us to override the

trial court’s credibility determinations, which we cannot do. He therefore fails

to show that the trial court abused its discretion in declining to find its verdict

shocked its own conscience.

In any event, we observe that the trial court cogently explained why

Mother’s animosity towards Appellant did not detract from K.W.’s credibility.

While we would not have the benefit of these findings in a jury case, the trial

court’s findings and the inferences drawn therefrom clearly establish that the

trial court did not abuse its discretion in rejecting Appellant’s weight claim.

When delivering its verdict, the trial court explained why it disagreed with

Appellant’s “custody” theory, as follows:

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And I understand [Appellant]’s position as it relates to the motive,

or at least the motive that they’re suggesting may lie here with

[Mother], and that there is this … custody issue. But, frankly, I

don’t buy it.

....

[I]t was very clear that there was no love lost between [Mother]

and [Appellant]. [D.W.] also testified about how they were oil and

water, but despite what [Mother] felt about him, apparently she

listened to her mom – and listened to her daughter, more

importantly, who wanted to spend time with [Appellant], wanted

to spend time with her siblings, and allowed, despite her feelings,

her daughter to spend time with [Appellant]. And, so, if she

wanted to keep [K.W.] away from her dad, she simply would not

have reached out to him to begin with, and would not have allowed

her to go visit him, but she did.

N.T., 3/18/22, at 96-97. Thus, based on the foregoing, Appellant’s weight

challenge lacks merit.

III.

Evidentiary rulings

Appellant’s third through sixth claims all involve evidentiary rulings.

Our standard of review with respect to evidentiary rulings has

been long established: The trial court’s rulings will not be

disturbed absent an abuse of discretion. See Commonwealth v.

Thompson, 779 A.2d 1195, 1200 (Pa. Super. 2001). The trial

court abuses its discretion if “it misapplies the law or [rules] in a

manner lacking reason.” Commonwealth v. Rega, 856 A.2d

1242, 1244 (Pa. Super. 2004) (citation omitted).

Commonwealth v. Einhorn, 911 A.2d 960, 967 (Pa. Super. 2006) (citation

omitted; bracketing in original).

Appellant’s first evidentiary challenge concerns a ruling during cross-

examination of K.W. Appellant asked K.W. if she was aware that Appellant’s

driver’s license was suspended. The trial court agreed with the

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Commonwealth that this question was irrelevant, as lacking a license does not

preclude someone from driving.

Appellant argues that the trial court abused its discretion because the

question was relevant to his defense, since K.W. testified that Appellant

fondled her in a vehicle after driving. Thus, in terms of relevancy principles,

the fact that Appellant did not have a driver’s license would make it more

likely that he would not have been driving, which in turn suggests that K.W.

was not a credible witness. Pa.R.E. 401(a) (defining relevant evidence as

evidence that “has any tendency to make a fact more or less probable than it

would be without the evidence”). We agree with the trial court that Appellant’s

licensing status was irrelevant with respect to K.W.’s testimony. Whether she

knew or did not know of his status makes no difference. Had K.W. testified

that Appellant showed her his driver’s license, this line of impeachment would

be relevant. But K.W.’s testimony did not address, in any way, whether

Appellant was licensed to drive. She merely stated that Appellant sexually

abused her while she was a passenger and Appellant was the driver. The trial

court therefore correctly sustained the Commonwealth’s objection to

relevancy.5

Appellant’s next evidentiary challenge, set forth in his fourth issue on

appeal, asserts that the trial court erred in admitting a statement from K.W.

____________________________________________

5 The trial court agreed that the evidence itself was relevant, just not K.W.’s

knowledge thereof. The trial court permitted Appellant to introduce the fact

his license was suspended through the testimony of his wife.

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to her grandmother, D.W. Over objection, D.W. testified that sometime in

December of 2020, K.W. approached D.W. “in the kitchen, and she says,

[‘]Grandmom, my daddy touched my butt.[’]” N.T., 3/18/22, at 10. D.W.

asked, “[‘]Was it, like, in a nasty, flirtatious way?[’] She said, [‘]Yes. He

thought I was sleeping.[’]” Id.

The Commonwealth argued that the statements were admissible as a

prompt complaint, and the trial court agreed. On the record before us, we do

not agree that this disclosure qualified as a prompt complaint. However, we

agree that the evidence was admissible as a prior consistent statement, which

forms the basis for the “prompt complaint” exception and affirm on that

alternative basis. Commonwealth v. Edwards, 903 A.2d 1139, 1157 n.19

(Pa. 2006) (“We may affirm a trial court’s evidentiary ruling if we deem it to

have been correct on grounds other than those specified by the court itself,

particularly where the additional reason is apparent from the record.”).

Pennsylvania Rule of Evidence 613 governs the admission of prior

consistent statements, which are admissible for purposes of rehabilitation and

not the truth of the matter asserted therein. In relevant part, Rule 613

provides:

(c) Witness’s Prior Consistent Statement to Rehabilitate.

Evidence of a witness’s prior consistent statement is admissible to

rehabilitate the witness’s credibility if the opposing party is given

an opportunity to cross-examine the witness about the statement

and the statement is offered to rebut an express or implied charge

of:

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(1) fabrication, bias, improper influence or motive, or faulty

memory and the statement was made before that which has

been charged existed or arose…[.]

Pa.R.E. 613(c)(1).

“Ordinarily, that one has always said the same thing is subsumed in

their testimony and need not be buttressed by evidence of prior consistency,

unless that consistency, by allegation of recent fabrication is challenged.”

Commonwealth v. Hutchinson, 556 A.2d 370, 372 (Pa. 1989). Thus, prior

consistent statements are not ordinarily admissible in the Commonwealth’s

case-in-chief. A “prompt complaint” is an exception to this rule. “The

rationale behind prompt complaint is that a rape victim would complain at the

first opportunity where she felt safe.” Commonwealth v. Bryson, 860 A.2d

1101, 1104 (Pa. Super. 2004) (en banc). A “prompt complaint” is admissible

prior to any impeachment because of the expectation that “[h]ue and cry …

follow rape like smoke follows fire.” Commonwealth v. Freeman, 441 A.2d

1327, 1332 (Pa. 1982). Thus, an “unexplained lack of evidence of hue and

cry that one might expect to ensue from rape casts doubt on the existence of

the rape itself.” Id. Therefore, the prosecution may admit such evidence in

its case-in-chief.

However, the “prompt complaint” subset of the prior-consistent-

statements exception typically applies to a discrete incident, such as when a

rape victim seeks help from a bystander. Moreover, the contents of the

statements cannot “exceed[ ] the permissible limits” of the exception. Id.

Thus, the Commonwealth cannot introduce statements that go into “great

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details” of the crime, nor does the exception apply if a long period of time has

elapsed. Id. (“Fresh complaints of rape, undetailed, are a particular form of

hue and cry that provides significant circumstantial support for the alleged

victim’s subsequent testimony that she was raped.”).

Here, it is unclear how much time elapsed between Appellant’s groping

K.W.’s buttocks and when K.W. disclosed the incident, as D.W. testified only

that the conversation occurred sometime in December of 2020. In

Commonwealth v. Bryson, 860 A.2d 1101 (Pa. Super. 2004), we held that

a disclosure made 30 hours after the attack was admissible as a prompt

complaint. The rape victim was “a mentally disabled young woman” and did

not disclose the incident until the next day. We noted that “the determination

of whether or not a complaint was prompt is entirely dependent on the facts

of the individual case.” Id. at 1105. While K.W.’s age is certainly a relevant

factor in this assessment, the lack of any detail concerning when the

underlying groping occurred precludes admission of the prompt complaint

exception.6

However, we affirm the trial court’s ruling on the alternative basis that

the prior statements were admissible to rehabilitate K.W. in light of Appellant’s

impeachment. As demonstrated by Appellant’s first two issues, he asserted

that Mother influenced K.W. to make the allegations against Appellant due to

Mother’s animosity towards him. As Appellant states in his brief, he alleges

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6 At trial, K.W. stated that she did not recall Appellant’s fondling her buttocks

and did not testify to this conversation.

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that Mother, who first became aware of the allegations on January 14, 2021,

influenced K.W. between that date and subsequent interviews with the

authorities. Thus, K.W.’s disclosures in December of 2020, which preceded

Mother’s knowledge in January of 2021, arose before the alleged motive to

fabricate. Commonwealth v. Handfield, 34 A.3d 187, 209 (Pa. Super.

2011) (“[A] prior consistent statement is admissible only if it is made before

the declarant has a motive to fabricate.”). As Appellant raised a motive to

fabricate based on Mother’s alleged interference, the statements by K.W. to

D.W. preceding the existence of that motive were admissible to rehabilitate

her credibility pursuant to Rule 613(c).7

In Appellant’s next evidentiary issue, he contends that the trial court

erred in sustaining the Commonwealth’s objections to questions concerning

the parenting of K.W. We quote in full Appellant’s argument:

During [D.W.]’s testimony, she was asked about [Mother]’s

parenting of K.W. [N.T., 3/18/22,] at 20. Initially, the witness

was given latitude by the [c]ourt to discuss this issue. Id. The

witness testified that she was concerned about [Mother’s] not

allowing Appellant to see K.W. and even supported Appellant in

getting partial custody of K.W. in December 2020. Id. at 20-22.

____________________________________________

7 Appellant’s brief addresses matters beyond the scope of his limited trial

objection. The initial objection concerned D.W.’s testifying to a conversation

in December of 2020. Later, the Commonwealth asked D.W. about

conversations between herself and K.W. that took place on January 14, 2021,

after K.W. disclosed the abuse to Mother. Appellant’s brief argues that D.W.’s

response improperly discussed K.W.’s stating that Appellant, among other

things, told her to perform oral sex. Appellant did not object to those

statements, and thus he has waived any argument as to those conversations.

Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot

be raised for the first time on appeal.”).

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However, during the end of the witness’ cross, the [c]ourt, by

sustaining Commonwealth’s relevance objections, decided to cut

off any additional testimony regarding [Mother]’s parenting of

K.W. Id. at 26-27. All of this evidence goes directly to support

the defense’s theory that [Mother] harbored animosity towards

Appellant, that she was scared he was going to get partial custody,

and, as a result, [she] manipulated … K.W. into making these

allegations. Any evidence of unfit parenting would go directly to

support that motive argument and should have been considered

by the [c]ourt.

Appellant’s Brief at 30-31.

In the cited pages of the transcript, Appellant asked D.W. on cross-

examination, “were you unhappy with the way that [Mother] was parenting

[K.W.]?” N.T., 3/18/22, at 20. The trial court overruled the Commonwealth’s

objection, and D.W. replied that she was concerned with Mother’s not

permitting K.W. to see Appellant, expressing the view “that a dad should be a

part of every child’s life.” Id. Later, Appellant asked, “Was there an issue

where [Mother] was leaving her children at home alone?” Id. at 26. The trial

court sustained the Commonwealth’s relevancy objection. Appellant then

asked, “Did you have any other issues with how [Mother] was parenting?” Id.

at 27. The Commonwealth again objected, which was sustained. Appellant

did not further probe the issue.

The trial court opinion states that “it was abundantly clear to the [c]ourt

from the first full day of testimony that the defense theory at trial was that

[Mother] influenced [K.W.] to make up lies about [Appellant] … based on her

ongoing issues with [Appellant].” TCO at 5. The trial court stated it “did not

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need to hear additional[,] third[-]hand information about those issues through

[D.W].” Id.

We agree that D.W.’s opinion of Mother’s parenting was irrelevant. We

accept that the fear of a potential custody action initiated by Appellant would

supply a motive for Mother to influence K.W. However, Appellant does not

explain why D.W.’s opinions on Mother’s parenting would be relevant to that

point. We therefore affirm on the alternative basis that the evidence was

irrelevant.8

The final evidentiary issue challenges the trial court’s decision to permit

the Commonwealth to introduce and play the videotaped interview between

K.W. and a forensic interviewer from the Philadelphia Children’s Alliance.

Appellant argues that the trial court’s ruling conflicts with Commonwealth v.

Bond, 190 A.3d 664 (Pa. Super. 2018). We conclude that Bond is

distinguishable.

As necessary context for resolving this claim, the Commonwealth filed

on July 20, 2021, a notice of intent to introduce the video under the Tender

Years Hearsay Act, 42 Pa.C.S. § 5985.1. That statute permits the introduction

of hearsay statements, such as the ones contained on the videotaped forensic

interview at issue here, “made by a child victim or witness, who at the time

____________________________________________

8 The trial court opinion implicitly accepts that Mother’s opinion was relevant,

as it “did not need to hear” additional evidence on that point. Thus, the trial

court opinion alludes to the evidence being relevant but excludable on other

grounds. See Pa.R.E. 403 (“The court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following …

wasting time, or needlessly presenting cumulative evidence.”).

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the statement was made was 16 years of age or younger,” provided that the

trial court “finds, in an in camera hearing, that the evidence is relevant and

that the time, content and circumstances of the statement provide sufficient

indicia of reliability[.]” 42 Pa.C.S § 5985.1(a)(1)(i-ii). Those statements are

admissible for their substance.

In Bond, we held that the trial court erred by permitting the

Commonwealth to introduce a forensic interview as a prior consistent

statement, which, as previously stated, are admissible only for rehabilitative

purposes. Consistent with our discussion supra, the Bond Court held that the

videotaped interview in that case was not a prior consistent statement, as the

interview took place after the authorities were informed of the allegations. We

observed, “[w]hile the [i]nterview [v]ideo antedated [the c]hild’s cross-

examination at trial, it did not antedate the alleged motive to lie, which … [the

a]ppellant claims arose before she first complained of the assault. Put simply,

[the c]hild’s statements in the [i]nterview [v]ideo were not ‘made before’ the

alleged fabrication, as Rule 613(c)(1) expressly requires.” Id. at 670.

Appellant is correct that the forensic interview would not be admissible

under Rule 613, as it too was made after the asserted motive to lie arose.

However, Appellant fails to recognize that Bond explicitly did not discuss the

Tender Years Hearsay Act. Id. at 669 n.3 (“The Commonwealth did not rely

on the Tender Years Act in this case.”). Bond is thus inapposite, and Appellant

did not raise any objection to the admission of the evidence under Section

5985.1.

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IV.

Sentencing issues

Appellant’s final two claims concern the discretionary aspects of his

sentence, which are not appealable by right. Commonwealth v. Sierra, 752

A.2d 910, 912 (Pa. Super. 2000). Appellant must satisfy each of the following

four criteria:

(1) whether [the] 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 [the] appellant’s

brief has a fatal defect, 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, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

The Commonwealth contends that Appellant failed to present a

substantial question. We agree. Whether an appellant raises a substantial

question is evaluated on a case-by-case basis. See Commonwealth v.

Marts, 889 A.2d 608, 612 (Pa. Super. 2005). Appellant cites two reasons his

argument constitutes a substantial question. First, Appellant claims that his

sentence is “unreasonable and manifestly excessive given that the

[s]entencing [c]ourt failed to adequately account for the history and

characteristics of [Appellant].” Appellant’s Brief at 32. Separately, Appellant

contends that the trial court “made findings that [K.W.]’s behavior was

consistent with that of a sexual abuse victim absent any evidence on the

record supporting such a conclusion.” Id. at 32-33.

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Generally, an appellant “must show actions by the sentencing court

inconsistent with the Sentencing Code or contrary to the fundamental norms

underlying the sentencing process” to present a substantial question.

Commonwealth v. Pass, 914 A.2d 442, 446 (Pa. Super. 2006). To

determine whether Appellant has presented a substantial question that the

trial court’s sentence was inconsistent with the Sentencing Code or contrary

to fundamental norms, we begin by comparing the sentence to the applicable

guidelines. See Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super.

2010) (holding that the appellant’s claim of failure to consider aggravated

mitigating circumstance did not present substantial question because, in part,

the sentence fell within the low end of the standard range). Appellant received

a period of incarceration of 10 to 20 years’ for Rape of a Child, and a

consecutive period of 5 to 10 years’ incarceration for Involuntary Deviate

Sexual Intercourse.9 Rape of a Child under thirteen years of age carries an

offensive gravity score of 14. When paired with Appellant’s prior record score

of 5, the standard guidelines called for a sentence of 192 months (16 years)

at the low end. Appellant’s aggregate sentence is thus in the mitigated range.

Therefore, Appellant’s sentence is not inconsistent with the Sentencing

Code or fundamental sentencing norms, especially considering the severity of

the crimes involved. His aggregate sentence is in the mitigated range for

Rape of a Child, and the trial court could have imposed consecutive periods of

____________________________________________

9 At all other counts, Appellant received either concurrent probation or no

further penalty.

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incarceration at other counts. Appellant’s claim that the trial court did not

take into account mitigating factors is belied by the fact the court stated that

it considered, inter alia, the pre-sentence report, arguments of counsel, and

Appellant’s rehabilitative needs. N.T., 6/22/22, at 43. Therefore, as in

Moury, Appellant’s complaint is simply that he disagrees with the trial court’s

weighing of the factors. However, “[t]hat the court refused to weigh the

proposed mitigating factors as [the a]ppellant wished, absent more, does not

raise a substantial question.” Moury, 992 A.2d at 175.10

Turning to the second attempt to raise a substantial question, Appellant

argues that the court violated sentencing norms by remarking that K.W.’s

behavior was consistent with that of a sexual abuse victim. Appellant

misconstrues the nature of those comments. The relevant exchange occurred

shortly after the parties finished their arguments at sentencing:

And so, [Commonwealth], while you spoke about, of course, what

the details were, I also looked at my notes to review the details

that – that I wrote down. And as I said, at the time of – the time

I gave my verdict in this case, the child, [K.W.], I found to be

extremely credible, her details, what she talked about, what she

said about what happened to her, the consistency in the details

that she gave to me, as well as to law enforcement.

It was clear to me, or at least in my findings, it’s my belief that

she had experienced this. And based on what I heard now from

[Mother] and the after[-]effects, it’s even more clear to me based

____________________________________________

10 The trial court concluded that Appellant waived this claim because his post-

sentence motion merely stated that the court “failed to adequately consider

the characteristics and cooperative nature of [Appellant] in fashioning a

sentence” instead of citing specific mitigating factors. Post-Sentence Motion,

7/5/22, at 4 (unpaginated). We agree that Appellant failed to preserve this

issue and therefore failed to invoke our jurisdiction for this reason, as well.

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on the feelings of the child who now feels isolated or is isolated

herself. Some of the behavior that she’s engaging in, which is

consistent with individuals who have been sexually abused, and

all that she’s unfortunately going through.

I’m glad to hear, [Mother], that you are putting her in therapy. I

wish it had happened, frankly, even closer to the time of these

incidents, closer to the time of arrest, because she could benefit

from it. And, hopefully, you’ll keep her in therapy as long as

necessary for her to get the full benefit of that therapy, no matter

how long that is.

N.T., 6/22/22, at 39-40.

It is clear from this context that the trial court was simply summarizing

the history of the case. The trial judge merely expressed, in an offhand

fashion, that K.W. was experiencing ongoing, adverse consequences due to

Appellant’s criminal acts. Even if we credit the notion that the trial court is

precluded from considering the effects of Appellant’s crimes regardless of

whether they were consistent with sexual abuse victims in general, but see

42 Pa.C.S. § 9721 (specifying that the trial court shall consider “the gravity of

the offense as it relates to the impact on the life of the victim”), the fact

remains that nothing in this exchange establishes that the trial court did so.

Appellant has therefore failed to present a substantial question regarding his

sentence, and has failed to invoke our jurisdiction.

Judgment of sentence affirmed.

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Date: 2/26/2024

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