Com. v. Shero, B. ( 2015 )


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  • J-A30017-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    BERNARD G. SHERO
    Appellant                 No. 2164 EDA 2013
    Appeal from the Judgment of Sentence June 12, 2013
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0003529-2011
    BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
    MEMORANDUM BY MUNDY, J.:                              FILED MARCH 24, 2015
    Appellant, Bernard G. Shero, appeals from the June 12, 2013
    aggregate judgment of sentence of eight to 16 years’ imprisonment,
    followed by five years’ probation, after he was found guilty of one count
    each of rape of a child, involuntary deviate sexual intercourse (IDSI),
    endangering the welfare of a child (EWOC), corruption of minors, and
    indecent assault.1 After careful review, we affirm.
    The trial court summarized the relevant facts and procedural history of
    this case as follows.
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    18 Pa.C.S.A. §§ 3121(c), 3123(b), 4304(a)(1), 6301(a)(1)(i), and
    3126(a)(7), respectively.
    J-A30017-14
    The victim’s parents, J.G. (hereinafter “Father”) and
    S.G. (hereinafter “Mother”) married in 1981 and had
    two sons, J.G., Jr. (hereinafter “Brother”) and the
    victim “D.G.” The victim and his family resided in
    the northeast section of Philadelphia. Father was a
    police sergeant, and Mother was a nurse. Both
    parents had attended Catholic school and wanted to
    provide their sons with a similar education. They
    enrolled D.G. and Brother at St. Jerome’s School, the
    Archdiocese parochial school located within walking
    distance of their home.
    D.G. began attending St. Jerome’s School in
    kindergarten. Physically, D.G. was small for his age.
    Despite this, D.G. was very active in school sports
    and he participated in many extra-curricular
    activities at St. Jerome’s, including serving as altar
    boy. Mother recalled that D.G. was an active and
    rambunctious young boy.         D.G.’s classmate and
    fellow altar boy, [J.S.P.], remembered D.G. as a
    “happy kid [who] was always joking.”
    When D.G. was in seventh and eighth grades
    at St. Jerome’s, however, some of his friends noticed
    a marked change in D.G.’s demeanor. According to
    [J.S.P.], D.G. became “real dark,” and secluded
    himself from everybody.         Another friend and
    classmate, [R.B.], confirmed this change in D.G.’s
    personality, testifying that D.G. became a “loner”
    and “did not talk to too many people.” During this
    same time period, D.G. complained of testicular pain.
    D.G. was examined by a pediatrician and a urologist
    but the cause of the pain was never determined.
    According to Mother, around this time D.G.’s appetite
    diminished and he lost weight. Defense witnesses,
    including St. Jerome’s teachers, testified that they
    did not recall any change in D.G.’s behavior.
    After graduating from St. Jerome’s, D.G.
    attended Archbishop Ryan High School where his
    behavior quickly spiraled out of control.   D.G.
    became a heavy drug abuser and was expelled from
    Archbishop Ryan for possession of drugs and
    weapons. After his expulsion, D.G. attended the
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    International Christian High School where he became
    good friends with fellow student [L.H.]. Early in their
    friendship, D.G. and [L.H.] were socializing in D.G.’s
    basement when D.G. confided to [L.H.] that two
    priests and a teacher had sex with him when he was
    in the 5th and 6th grades. [L.H.] was stunned by
    this revelation, but D.G. did not want to discuss
    further details of the incident at that time.
    [L.H.] testified that there was a teacher at the
    International Christian High School whom neither he
    nor D.G. liked because the teacher was “really
    touchy, feely” and because of “weird vibes that came
    from him all the time, weird sexual-type vibes.”
    Shortly after the conversation in D.G.’s basement,
    D.G. and [L.H.] were in a classroom at school when
    the teacher exhibited what they deemed “creepy”
    behavior. On this occasion, D.G. again mentioned
    the prior sexual abuse to [L.H.].
    D.G.’s high school years were a nightmare for
    D.G. and his parents. According to Mother, D.G. cut
    his wrists, drew images of a gun to his head, and
    wrote suicide notes. He obtained psychiatric help at
    an in-patient psychiatric facility, but the treatment
    did not help and “things continued to get worse and
    worse.”     D.G.’s drug addiction worsened as he
    continued to use drugs including marijuana,
    Percocet, Oxycontin, LSD, and ultimately became a
    “full blown heroin addict.” Over the years, D.G. was
    treated at over twenty drug rehabilitation clinics.
    During this same time period D.G. was arrested
    several times for offenses including retail theft and
    possession of drug paraphernalia.         D.G.’s most
    recent arrest for possession of heroin occurred in
    November 2011.
    D.G.’s parents could not understand the
    complete change in their son’s behavior and
    personality and became concerned that there were
    serious issues at the root of the problem. Mother
    and Father pleaded with D.G. to open up to them but
    D.G. refused. When D.G. was eighteen or nineteen
    years old, however, he suddenly confessed to his
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    parents that a priest had sexually abused him. After
    that revelation, D.G. immediately “shut down” again
    and refused to discuss it further with his parents. It
    was apparent to Mother and Father that D.G. was
    not ready or willing to reveal his entire story. Out of
    concern for D.G.’s fragile and agitated state, and
    fearing that he would disappear and overdose on
    drugs, Mother and Father decided not to report this
    revelation to the police.
    The underlying issues driving D.G.’s self-
    destructive behavior finally began to emerge in detail
    in January 2009, when D.G. was approximately 20
    years old. While undergoing treatment for his heroin
    addiction at a drug rehabilitation facility called SOAR,
    D.G. broke down during a group therapy session and
    revealed to his drug counselor the fact that he had
    been sexually abused while a young student at St.
    Jerome’s.       On January 30, 2009, with the
    encouragement of his drug treatment counselor,
    D.G. called the Philadelphia Archdiocese hotline to
    officially report the abuse. That day, D.G. spoke
    with Louise Hagner, the victim assistance coordinator
    for the Archdiocese.        Hagner’s duties included
    receiving reports from victims alleging sexual abuse
    and working to begin providing services to the
    victims.
    D.G.’s initial phone call to the Archdiocese
    hotline ultimately led to investigations by the
    Philadelphia District Attorney’s Office and Grand
    Jury.    These investigations brought to light the
    details of the sexual abuse of D.G. at the hands of
    Appellant, a lay teacher at St. Jerome’s, and two St.
    Jerome’s priests, Charles Engelhardt and Edward
    Avery. All three men were indicted and warrants
    were issued for their arrests.
    Appellant had agreed to surrender himself to
    police immediately following the issuance of his
    arrest warrant. When Appellant failed to surrender
    himself to authorities as planned, Police Detective
    Drew Snyder and other members of law enforcement
    went to Appellant’s apartment to apprehend him.
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    Detective Snyder found the Appellant in his home
    under the influence of what was described as
    sleeping pills.     During a search of Appellant’s
    apartment, no prescription bottle or other evidence
    was found to indicate what type of pills Appellant
    had taken. However, Detective Snyder found an
    envelope addressed to Appellant’s parents that
    contained a letter, a cashier’s check, and cash. This
    letter was determined to be a suicide note in which
    Appellant apologized to his parents for the “burden
    [his] situation” had caused. The letter also described
    the location of Appellant’s various assets and
    personal effects.        An ambulance transported
    Appellant to the hospital for medical treatment and
    observation. After a few hours of observation in the
    hospital’s emergency department, Appellant was
    released into police custody.
    D.G.’s accounts of the sexual abuse committed
    by Appellant and the priests varied at different
    stages of the investigations. A large portion of the
    jury trial consisted of the defense presenting
    witnesses      and     evidence    highlighting     the
    inconsistencies and generally attacking D.G.’s
    credibility. The prosecution provided evidence and
    witnesses to account for the inconsistencies and
    corroborate D.G.’s allegations. The jury, as fact-
    finders    [sic],  ultimately   made     a   credibility
    determination in favor of D.G. and found Appellant
    guilty.    The following description of Appellant’s
    sexual abuse of D.G. reflects D.G.’s consistent sworn
    testimony before the Grand Jury and during the jury
    trial.
    One afternoon during the spring of his 6th
    grade year, D.G. was serving school detention.
    Appellant was the detention supervisor that day and
    offered to give D.G. a ride home. D.G. got into the
    car with Appellant and told him where he lived.
    Appellant, however, drove in the opposite direction
    to a secluded parking lot in Pennypack Park in
    northeast Philadelphia. Appellant parked, and D.G.
    recalled that they “sat there and [Appellant] talked
    to [D.G.] for a minute” and asked if “[he] ‘messed’
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    with girls.” Appellant urged D.G. into the back seat
    of the car and Appellant joined him. Once in the
    backseat, Appellant started to rub D.G.’s back and
    undress him.     They both began to caress each
    other’s legs and genitals, and D.G. testified that
    Appellant had D.G. “give [him] a hand job.”
    Appellant next had D.G. perform oral sex on him and
    then attempted to have anal sex with D.G. D.G.
    screamed and struggled when Appellant attempted
    to have anal sex, at which point Appellant had D.G.
    continue to perform oral sex on him instead.
    Appellant ultimately ejaculated on the floor and
    demanded that D.G. get dressed, get out of the car,
    and walk home. No other incidents of sexual abuse
    occurred between Appellant and D.G. beyond this
    one incident.
    Trial Court Opinion, 12/17/13, at 2-6 (internal citations and footnotes
    omitted).
    On April 12, 2011, the Commonwealth filed an information, charging
    Appellant with the above-mentioned offenses, as well as one count each of
    aggravated indecent assault and criminal conspiracy.2 On January 14, 2013,
    Appellant proceeded to a lengthy, joint jury trial with Charles Englehardt.3
    At the conclusion of which, on January 30, 2013, the jury found Appellant
    guilty of one count each of rape of a child, IDSI, EWOC, corruption of
    minors, and indecent assault. The aggravated indecent assault charge was
    ____________________________________________
    2
    18 Pa.C.S.A. §§ 3125(a)(7) and 903, respectively.
    3
    Engelhardt’s appeal is currently pending before this Court at 2040 EDA
    2013. As discussed infra, Avery pled guilty to certain charges in exchange
    for a lighter sentence. Appellant agreed to be tried jointly with Engelhardt.
    Commonwealth’s Brief at 5 n.2.
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    J-A30017-14
    nolle prossed, and the criminal conspiracy charge was quashed. On June 12,
    2013, the trial court imposed an aggregate sentence of eight to 16 years’
    imprisonment, followed by five years’ probation.4          On June 19, 2013,
    Appellant filed a timely motion for modification of sentence, which the trial
    court denied without a hearing on July 9, 2013. On July 11, 2013, Appellant
    filed a timely notice of appeal.5
    On appeal, Appellant raises the following six issues for our review.
    I.     Did the trial court abuse its discretion in
    allowing the Commonwealth to present
    evidence of Appellant’s inappropriate behavior
    with other school children?
    II.    Did the trial court abuse its discretion in
    allowing the jury to hear a doctor testify that
    the victim’s testicular pain was consistent with
    sexual abuse?
    III.   Did the [trial] court abuse its discretion in
    refusing to grant relief to [] Appellant from
    claims of prosecutorial misconduct in the
    [Commonwealth]’s closing speech to the jury?
    IV.    Did the trial court abuse its discretion in
    allowing the [Commonwealth] to cross-
    ____________________________________________
    4
    Specifically, the trial court sentenced Appellant to eight to 16 years’
    imprisonment for rape of a child, eight to 16 years’ imprisonment for IDSI,
    three-and-one-half to seven years’ imprisonment for EWOC, five years’
    probation for corruption of minors, and five years’ probation for indecent
    assault. The terms of imprisonment were to run concurrently to each other.
    The two probationary terms were to run concurrently to each other, but
    consecutive to the aggregate term of imprisonment.
    5
    Appellant and the trial court have complied with Pennsylvania Rule of
    Appellate Procedure 1925.
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    J-A30017-14
    examine Father Edward Avery with references
    to other student victims in order to paint Avery
    as a serial child offender and overcome Avery’s
    denial of guilt as to D.G.?
    V.     Did the [trial] court abuse its discretion in
    imposing a sentence of 8 to 16 [years’]
    imprisonment upon Appellant?
    VI.    Should Appellant’s motion for remand to [the
    trial] court based upon newly discovered
    evidence be granted?
    Appellant’s Brief at 3.        In Appellant’s supplemental brief, he raises the
    following additional issue.6
    [Whether this] Court should remand this matter to
    the [trial court] to allow an evidentiary hearing
    because the prosecution denied him the due process
    of law to which [] Appellant was entitled under the
    federal and state constitutions by reason of the
    Commonwealth’s failure to inform his trial counsel
    that Judy Cruz-Ransom, whom we now know (from
    her deposition) had been interviewed by the
    prosecutors prior to the criminal trial, had provided
    information which was material and favorable to the
    defense, to wit, that the testimony provided by social
    worker Louise Hagner regarding her interview with
    complainant D.G. on January 30, 2009 was
    corroborated and confirmed by another witness, i.e.,
    Judy Cruz-Ransom[?]
    Appellant’s Supplemental Brief at 4-5.           Appellant’s first, second, and fourth
    issues pertain to the trial court’s evidentiary rulings during the trial.         We
    ____________________________________________
    6
    On July 29, 2014, this Court accepted Appellant’s “Application … to Amend
    Brief and Reproduced Record for Appellant” as a supplemental brief.
    Superior Court Order, 7/29/14, at 1.
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    begin by noting our well-settled standard of review regarding evidentiary
    issues.
    The admissibility of evidence is at the discretion of
    the trial court and only a showing of an abuse of that
    discretion, and resulting prejudice, constitutes
    reversible error. An abuse of discretion is not merely
    an error of judgment, but is rather the overriding or
    misapplication of the law, or the exercise of
    judgment that is manifestly unreasonable, or the
    result of bias, prejudice, ill-will or partiality, as
    shown by the evidence of record. Furthermore, if in
    reaching a conclusion the trial court over-rides or
    misapplies the law, discretion is then abused and it is
    the duty of the appellate court to correct the error.
    Commonwealth v. Fischere, 
    70 A.3d 1270
    , 1275 (Pa. Super. 2013) (en
    banc) (internal quotation marks and citations omitted), appeal denied, 
    83 A.3d 167
    (Pa. 2013).
    In his first issue, Appellant avers that the trial court abused its
    discretion when it admitted evidence that “Appellant had engaged in
    inappropriate behavior with other school children at the different schools
    where he was a parochial school teacher.”         Appellant’s Brief at 11.       The
    Commonwealth counters that said evidence became admissible when
    Appellant “opened the door” by “put[ting] the issues of his relationship with
    … other children and his reasons for leaving St. Jerome’s at issue[.]”
    Commonwealth’s Brief at 13.
    Pennsylvania   Rule     of   Evidence   404(b)   governs   admissibility    of
    evidence of prior bad acts.
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    Generally, evidence of prior bad acts or
    unrelated criminal activity is inadmissible to
    show that a defendant acted in conformity with
    those past acts or to show criminal propensity.
    Pa.R.E. 404(b)(1). However, evidence of prior
    bad acts may be admissible when offered to
    prove some other relevant fact, such as
    motive, opportunity, intent, preparation, plan,
    knowledge, identity, and absence of mistake or
    accident. [Id. at] 404(b)(2). In determining
    whether evidence of other prior bad acts is
    admissible, the trial court is obliged to balance
    the probative value of such evidence against
    its prejudicial impact.     Commonwealth v.
    Powell, 
    956 A.2d 406
    , 419 (2008).
    [Commonwealth v. Sherwood, 
    982 A.2d 483
    , 497
    (Pa.   2009),    cert.  denied,    Sherwood      v.
    Pennsylvania, 
    559 U.S. 1111
    (2010)].           The
    Commonwealth must prove beyond a reasonable
    doubt that a defendant has committed the particular
    crime of which he is accused, and it may not strip
    him of the presumption of innocence by proving that
    he    has    committed     other   criminal   acts.
    Commonwealth v. Stanley, 
    398 A.2d 631
    , 633
    ([Pa.]1979); Commonwealth v. Constant, 
    925 A.2d 810
    , 821 (Pa. Super. [2006]), appeal denied,
    
    932 A.2d 1285
    (2007).
    Commonwealth v. Ross, 
    57 A.3d 85
    , 98-99 (Pa. Super. 2012) (en banc)
    (parallel citations omitted), appeal denied, 
    72 A.3d 603
    (Pa. 2013).
    In this case, the Commonwealth filed a motion in limine seeking to
    admit evidence at trial concerning Appellant’s alleged inappropriate behavior
    towards other students at St. Jerome’s and other schools in which he was
    employed as a teacher. The trial court denied the Commonwealth’s motion,
    but with a caveat that said evidence would become admissible if Appellant
    opened the door. Specifically, the evidence at issue was the following.
    - 10 -
    J-A30017-14
    Several examples of Appellant’s inappropriate
    behavior were presented to rebut, and possibly
    explain why students may have harassed Appellant.
    [R.B], one of D.G.’s friends from St. Jerome’s
    testified that he recalled Appellant giving girls back
    rubs and snapping one girl’s bra straps. The parent
    of a student at Nazareth Academy, where Appellant
    previously    taught,    testified  to   being    very
    uncomfortable and prohibiting her son from
    associating with Appellant after Appellant invited her
    son and his friends into his home. The parent of a
    student at Saint Michael’s School in Levittown,
    Pennsylvania, where Appellant also previously
    taught, testified to observing Appellant allowing
    female students to touch his belt buckle and tie and
    taking pictures of female students in the recess yard.
    Trial Court Opinion, 12/17/13, at 8 (citations omitted).
    At trial, Appellant gave the following opening statement to the jury.
    We will present witnesses who will testify as to the
    reputation of both of these [d]efendants and those
    reputation witnesses will say that they have good
    reputations, excellent reputations for being peaceful
    and law-abiding people.
    …
    Now the [Commonwealth] may suggest that
    [Appellant] left Saint Jerome’s because he had been
    involved in some nasty behavior with [D.G.] but no
    allegation was made then. No allegation was made
    in 2009.
    Why did he leave? He left because the kids were
    bullying him. He couldn’t take it anymore. His mom
    bought a house in the neighborhood so he wouldn’t
    have to drive because he did have a car and we will
    show you the car and he has a license. He can drive
    but it is not too good because of his vision. He is
    legally blind in one eye. The other eye is severely
    afflicted.
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    J-A30017-14
    So they got him a house and he moves into the
    house and in a space of three or four months, he
    can’t stay there anymore. Why? Because the kids
    from Saint Jerome’s come to his house at night and
    throw rocks at his house.
    He sees a job advertised at the end of the school
    year in another Catholic school and he leaves, not
    because he is guilty of a crime, no crime has been
    alleged, and is this the kind of guy who would do the
    things that [D.G.] alleges?
    N.T., 1/14/13, at 113, 119-121. Appellant also presented his mother as a
    witness in his own defense, who testified, consistent with Appellant’s
    opening statement, that he left St. Jerome’s due to kids throwing rocks at
    his home and making him feel uncomfortable. N.T., 1/22/13, at 108, 113.
    The trial court concluded that the Commonwealth’s evidence regarding
    Appellant’s alleged inappropriate behavior with other students became
    relevant based on the following.
    During his opening arguments, and throughout
    the trial, Appellant’s attorney presented Appellant as
    a hapless and non-violent victim of aggressive
    students. For example, Appellant’s mother testified
    that Appellant told her that the children were
    harassing him and throwing rocks at his home.
    However, portraying Appellant as a victim was only
    part of the picture as it failed to also show how
    Appellant’s inappropriate and bizarre behavior
    towards the young students may have precipitated
    this unwelcome attention from the students.
    Appellant attempted to show that he was victimized
    by students, but the evidence presented by the
    Commonwealth         demonstrates     that  Appellant
    victimized the students. Such victimization is clearly
    a pertinent trait considering the nature of the
    charges against Appellant of victimizing and abusing
    D.G. in this case.
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    …
    It is also important to note that [the trial
    c]ourt originally granted Appellant’s pretrial motion
    in limine to exclude the [] evidence of Appellant’s
    inappropriate behavior with other students and
    parents’ concerns. However, once Appellant opened
    the door by presenting Appellant’s character as the
    victim of bullying and ostracism, and in fact made it
    one of the showpieces of his defense, this Court
    determined that Appellant’s strange behavior with
    other young students was relevant and admissible as
    rebuttal evidence by the Commonwealth.
    Trial Court Opinion, 12/17/13, at 7-8 (internal citations omitted; emphasis in
    original).
    After careful review of the certified record, we conclude the trial court
    did not abuse its discretion. As noted by the trial court, Appellant directly
    put his relationship with students at issue from the very beginning of the
    trial. The Commonwealth was permitted to rebut Appellant’s evidence, at a
    minimum, to give the jury a possible explanation for the harassment he had
    received from other students.          See, e.g., Commonwealth v. Constant,
    
    925 A.2d 810
    , 819-820 (Pa. Super. 2007) (evidence of prior confrontation
    with officer admissible to rebut defendant’s theory that subsequent shooting
    was accidental), overruled on other grounds, Commonwealth v. Minnis,
    
    83 A.3d 1047
    , 1053 (Pa. Super. 2014) (en banc)7; Commonwealth v.
    ____________________________________________
    7
    We note Constant has since received federal habeas relief in the Western
    District of Pennsylvania on grounds unrelated to the Rule 404(b) issue
    (Footnote Continued Next Page)
    - 13 -
    J-A30017-14
    Days, 
    784 A.2d 817
    , 821 (Pa. Super. 2001) (evidence of prior conviction
    properly admitted to rebut defendant’s evidence that he was a non-violent
    person).
    Although Appellant avers that the Commonwealth’s evidence was
    inadmissible because he did not take the stand at trial, this Court has not
    found such a distinction meaningful in the past.          See Commonwealth v.
    DuPont, 
    730 A.2d 970
    , 980-981 (Pa. Super. 1999) (evidence of defendant’s
    prior   bad   acts     admissible     to   rebut    defense   expert’s   testimony);
    Commonwealth v. Gelber, 
    594 A.2d 672
    , 679-680 (Pa. Super. 1991)
    (evidence of prior bad acts admissible to rebut claim of self-defense in
    defendant’s written confession), appeal denied, 
    605 A.2d 332
    (Pa. 1992).
    To the extent Appellant argues that the Commonwealth’s evidence
    should not have been admitted under Rule 403 because its prejudicial effect
    outweighed its probative value, we reject this argument as well. Generally,
    Rule 403 will exclude otherwise admissible evidence where the “probative
    value is outweighed by a danger of one or more of the following: unfair
    prejudice, confusing the issues, misleading the jury, undue delay, wasting
    time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
    In the case sub judice, as noted above, Appellant first introduced
    evidence and argued to the jury that he left St. Jerome’s due to the students
    _______________________
    (Footnote Continued)
    discussed in this Court’s opinion. Constant v. Pa. Dep’t of Corr., 912 F.
    Supp. 2d 279, 308 (W.D. Pa. 2012).
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    J-A30017-14
    vandalizing his home and harassing him. The Commonwealth’s evidence to
    rebut Appellant’s theory was highly relevant. Based on these considerations,
    we conclude Appellant is not entitled to relief on his first issue.        See
    
    Fischere, supra
    .
    In his second issue on appeal, Appellant avers that the trial court
    abused its discretion when it permitted Dr. Gerald Margiotti, D.G.’s
    pediatrician, to testify that D.G.’s complaint of testicular pain was consistent
    with sexual abuse. Appellant’s Brief at 5. The Commonwealth makes two
    arguments in response.     First, the Commonwealth urges us to summarily
    reject Appellant’s arguments, as said evidence was only admitted against
    Engelhardt, not Appellant.    Commonwealth’s Brief at 18.      Second, even if
    this Court were to consider Appellant’s claim, the trial court did not abuse its
    discretion. 
    Id. Our Supreme
    Court has held that a defendant cannot complain about
    evidence admitted only against a co-defendant.
    Pennsylvania has long permitted the limited
    admission of evidence only as to one party or for one
    purpose. See Pa.R.E. 105 (“When evidence which is
    admissible as to one party or for one purpose but not
    admissible as to another party or for another
    purpose is admitted, the court upon request shall, or
    on its own initiative may, restrict the evidence to its
    proper scope and instruct the jury accordingly.”);
    Commonwealth v. Updegrove, 
    198 A.2d 534
    , 537
    ([Pa.]1964) (evidence that “is admissible for one
    purpose … is not inadmissible because it does not
    satisfy the rules applicable to some other capacity or
    even because the jury might consider it in the latter
    capacity”) (citation omitted); Commonwealth v.
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    J-A30017-14
    Wright, 
    323 A.2d 349
    , 351-52 ([Pa. Super. 1974)
    (“Evidence which is admissible for one purpose does
    not become inadmissible merely because it would be
    inadmissible if offered for another purpose.”)
    (citation omitted). In fact, it is “common” in joint
    trials that “evidence is admissible against one co-
    defendant but inadmissible against another.”
    Commonwealth v. Travers, 
    768 A.2d 845
    , 847
    ([Pa.] 2001).       See also Commonwealth v.
    Patterson, 
    546 A.2d 596
    , 601 ([Pa.] 1988)
    (possible prejudicial effect of introduction of evidence
    against only one of two defendants in joint trial was
    no “more harmful than the prejudicial effect …
    habitually tolerate[d] in joint trials where evidence is
    introduced against only one of the defendants”). A
    party generally cannot vicariously litigate the claims
    of another party.
    Commonwealth v. McCrae, 
    832 A.2d 1026
    , 1034 (Pa. 2003) (parallel
    citations omitted), cert. denied, McCrae v. Pennsylvania, 
    543 U.S. 822
    (2004).
    In this case, Dr. Margiotti testified that D.G. complained of testicular
    pain in 1999.   N.T., 1/22/13, at 39-40.      This was one year before D.G.
    suffered abuse from Appellant, as D.G. testified that the incident with
    Appellant took place in the Spring of 2000.       N.T., 1/15/13, at 242.   Dr.
    Margiotti’s testimony was only relative to incidents involving Engelhardt.
    Appellant is not permitted to argue that the trial court abused its discretion
    in admitting testimony against Engelhardt. See Commonwealth v. Bond,
    
    652 A.2d 308
    , 314 (Pa. 1995) (summarily rejecting the appellant’s argument
    that “the codefendant’s mother testified that her son had called her from jail
    and said ‘Mom, they arrested me for another murder[]’” prejudiced him
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    J-A30017-14
    where our Supreme Court held “[a]ny prejudice arising from the testimony
    of the co[-]defendant’s mother could only attach to the co[-]defendant, not
    appellant[]”). Based on these considerations, we conclude Appellant is not
    entitled to relief on this issue. See 
    McCrae, supra
    .
    In his fourth issue, Appellant avers that the trial court abused its
    discretion when it permitted the Commonwealth to cross-examine Edward
    Avery about other boys Avery had allegedly molested. Appellant’s Brief at
    39-40.    The Commonwealth counters that the evidence was admissible to
    impeach Avery’s credibility and even if it was improper, Appellant did not
    suffer any prejudice as a result. Commonwealth’s Brief at 37.
    At trial, the Commonwealth called Avery during its case-in-chief.
    Avery previously pled guilty to IDSI and criminal conspiracy and was
    sentenced to two-and-one-half to five years’ imprisonment. N.T., 1/17/13,
    at 140-141.      Relevant to this appeal, during its direct examination, the
    Commonwealth read into the record the recitation of the facts from Avery’s
    guilty plea hearing.8 Specifically, the factual basis for Avery’s guilty plea to
    IDSI was that “sometime during the spring of 1999, [Avery] was 57 years
    old at the time. While he was serving as a priest at Saint Jerome’s Parish,
    he engaged in oral sexual intercourse with 10-year-old [D.G.]” 
    Id. at 156-
    157. Avery acknowledged he knew those were the facts to which he pled
    ____________________________________________
    8
    Appellant did not object to the relevance of this testimony when Avery took
    the stand at trial, nor does Appellant raise such a challenge on appeal.
    - 17 -
    J-A30017-14
    guilty. 
    Id. at 157.
    However, during questioning by the Commonwealth at
    trial, Avery asserted his innocence, despite his guilty plea, and stated that
    “[he] had no contact whatever [sic] with [D.G.]”      
    Id. at 161.
       Avery also
    testified that he only pled guilty to get a better sentence. 
    Id. at 160.
    Avery
    repeated these assertions on cross-examination. 
    Id. at 177,
    180-181. On
    redirect examination, the Commonwealth questioned Avery about six other
    complainants, R.F., R.C., H.A., M.M., G.F., and S.L., all of whom had made
    claims of sexual abuse against Father Avery. 
    Id. at 208-209.
    Avery denied
    these allegations. 
    Id. at 210.
    It is this testimony that Appellant objects to,
    arguing that it was impermissible under Rule 404 and unfairly bolstered
    D.G.’s credibility. Appellant’s Brief at 40.
    However, before we may address the merits of this claim, we must
    first ascertain whether Appellant has preserved it for our review.         It is
    axiomatic that “[i]ssues not raised in the lower court are waived and cannot
    be raised for the first time on appeal.”       Pa.R.A.P. 302(a).    In addition,
    Pennsylvania Rule of Evidence 103 permits a party to challenge the
    admission of evidence if the party timely objects and “states the specific
    ground, unless it was apparent from the context[.]” Pa.R.E. 103(a)(1)(B).
    This Court has consistently held that “[i]f counsel states the grounds for an
    objection, then all other unspecified grounds are waived and cannot be
    raised for the first time on appeal.” Commonwealth v. Bedford, 50 A.3d
    - 18 -
    J-A30017-14
    707, 713 (Pa. Super. 2012) (en banc) (citations omitted), appeal denied, 
    57 A.3d 65
    (Pa. 2012).
    In the case sub judice, Appellant did not object on the basis of Rule
    404, or improper bolstering grounds at trial. Rather, the only objection that
    was made was that the question pertaining to R.C. “was outside the scope of
    everything.”    N.T., 1/17/13, 208.   Although the trial court responded that
    “[i]t is absolutely proper impeachment at this time[,]” Appellant did not note
    any additional basis for his objection, despite having the opportunity to do
    so. 
    Id. As Appellant
    may not raise a Rule 404 argument for the first time
    on appeal, we deem this issue waived. See 
    Bedford, supra
    .
    In his third issue, Appellant avers that the trial court abused its
    discretion when it denied his request for a mistrial after he objected to two
    instances in the Commonwealth’s summation that he believes amounted to
    prosecutorial misconduct.    Appellant’s Brief at 25.   Specifically, Appellant
    alleges the Commonwealth made an improper remark when it implied that
    there were more charges to come against Engelhardt. 
    Id. at 32.
    Appellant
    also avers the Commonwealth misstated that D.G. was absent for three-and-
    one-half days from school during the fourth quarter of the school year in
    2000.     
    Id. at 25.
      Appellant argues this was critical to defense strategy
    because Appellant “attempted to show that such a dramatic event was not
    likely to have occurred since [D.G.]’s report card for that time period showed
    - 19 -
    J-A30017-14
    [D.G.] had not missed a single day of school during that reporting period.”
    
    Id. Our standard
    of review for a claim of
    prosecutorial misconduct is limited to whether the
    trial court abused its discretion. In considering this
    claim, our attention is focused on whether the
    defendant was deprived of a fair trial, not a perfect
    one.      Not every inappropriate remark by a
    prosecutor    constitutes    reversible error.      A
    prosecutor’s statements to a jury do not occur in a
    vacuum, and we must view them in context. Even if
    the prosecutor’s arguments are improper, they
    generally will not form the basis for a new trial
    unless the comments unavoidably prejudiced the
    jury and prevented a true verdict.
    
    Bedford, supra
    at 715-716.
    First, as to the Commonwealth’s reference that no other accusations
    had been made against Engelhardt “yet,” the Commonwealth made the
    following statements to the jury during its summation.
    [Engelhardt’s c]ounsel told you Engelhardt’s picture
    was everywhere. You heard him choose his words
    carefully, not one child, not one student has come
    forward. He picked his words carefully. Sometimes
    the subtle is more powerful than the obvious. What
    he also didn’t tell you was no child, no student has
    come forward yet. No child, no student has had the
    courage that [D.G.] has because what he did takes
    some guts[.]
    N.T., 1/25/13, at 142.
    In this case, it is not disputed that this portion of the Commonwealth’s
    closing argument was directed at Engelhardt.      As noted above, Appellant
    cannot vicariously litigate claims of another party.     See 
    McCrae, supra
    .
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    J-A30017-14
    Although Appellant “joined” in Engelhardt’s motion for a mistrial on this
    issue, it does not alter the fact that Appellant cannot be prejudiced by
    remarks that were directed at Engelhardt and not at him, when they did not
    implicate Appellant in any way. See id.; 
    Bond, supra
    .
    As to D.G.’s absences, in its summation the Commonwealth stated
    that D.G. was absent from school for three-and-one-half days during the
    fourth quarter of the 1999-2000 school year.           N.T., 1/25/13, at 90, 122,
    125-126. The Commonwealth acknowledges that this is not correct.                  See
    Commonwealth’s Brief at 40 (stating, “the prosecutor was mistaken as to
    which quarter of the 1999-2000 school year included the victim’s absences
    from school[]”). However, the Commonwealth also argues that Appellant is
    not entitled to a new trial as he was not prejudiced by this mistake of fact in
    the Commonwealth’s closing argument. 
    Id. Without evidence
         that   the   Commonwealth’s       misstatement     was
    intentional,     Appellant’s     argument     cannot    succeed.         See,     e.g.,
    Commonwealth v. Simmons, 
    662 A.2d 621
    , 639 (Pa. 1995) (concluding a
    new trial was not warranted where, “a review of the record does not show
    that   the   prosecutor’s      paraphrasing   or   misquotation    of   [a   witness]’s
    testimony was deliberate[]”) (citation omitted), cert. denied, Simmons v.
    Pennsylvania, 
    516 U.S. 1128
    (1996); Commonwealth v. Mollett, 
    5 A.3d 291
    , 311 (Pa. Super. 2010) (stating, “[a] prosecutor’s declaration[s] during
    an opening or closing statement constitutes reversible error only if the
    - 21 -
    J-A30017-14
    prosecutor deliberately attempts to destroy the objectivity of the jury[]”)
    (emphases added), appeal denied, 
    14 A.3d 826
    (Pa. 2011).
    In addition, the trial court also carefully instructed the jury regarding
    closing arguments as follows.
    Please keep in mind … that you are not bound by
    [counsels’] recollection of the evidence nor by their
    perspective of what the evidence shows. It is your
    recollection of the evidence and your recollection
    alone that must guide your deliberations.
    …
    If, in my instructions to you, I refer to some
    particular evidence, it is your recollection of that
    evidence and yours alone that governs. You are not
    bound by recollection of the facts nor by the
    recollection of Counsel in their arguments to you nor
    are you to conclude that any evidence which I call to
    your attention or which Counsel has called to your
    attention is the only evidence which you should
    consider. It is your responsibility to consider all of
    the evidence that you end up thinking is relevant in
    deliberating upon your verdict.
    N.T., 1/25/13, at 2-3, 160-161.
    It is axiomatic that “[t]he jury is presumed to follow the [trial] court’s
    instructions.”   Commonwealth v. Roney, 
    79 A.3d 595
    , 640 (Pa. 2013)
    (citation omitted), cert. denied, Roney v. Pennsylvania, 
    135 S. Ct. 56
    (2014). Furthermore, our Supreme Court has held that courts may deem a
    prosecutorial misstatement cured by the trial court instructing the jury that
    arguments of counsel are not evidence as it did here. Commonwealth v.
    Smith, 
    995 A.2d 1143
    , 1164 (Pa. 2010) (citation omitted), cert. denied,
    - 22 -
    J-A30017-14
    Smith v. Pennsylvania, 
    131 S. Ct. 518
    (2010).         As the trial court gave
    such an instruction in this case, we conclude the trial court did not abuse its
    discretion in this instance. See 
    Bedford, supra
    .
    In his fifth issue, Appellant avers that the trial court imposed a
    sentence which is “excessive and unreasonable[.]” Appellant’s Brief at 43.
    Specifically, Appellant avers that the trial court’s sentence was especially
    unreasonable given that the trial court imposed a sentence that was above
    even the aggravated range of the sentencing guidelines. 
    Id. At the
    outset, we note that this issue on appeal pertains to the
    discretionary aspects of his sentence.        It is axiomatic that in this
    Commonwealth “[t]here is no absolute right to appeal when challenging the
    discretionary aspect of a sentence.”    Commonwealth v. Tobin, 
    89 A.3d 663
    , 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards
    an argument pertaining to the discretionary aspects of the sentence, this
    Court considers such an argument to be a petition for permission to appeal.
    Commonwealth v. Buterbaugh, 
    91 A.3d 1247
    , 1265 (Pa. Super. 2014)
    (en banc) (citation omitted), appeal denied, 
    104 A.3d 1
    (Pa. 2014). “[A]n
    [a]ppeal is permitted only after this Court determines that there is a
    substantial question that the sentence was not appropriate under the
    sentencing code.” Commonwealth v. Cartrette, 
    83 A.3d 1030
    , 1042 (Pa.
    Super. 2013) (en banc) (internal quotation marks and citation omitted).
    - 23 -
    J-A30017-14
    Prior to reaching the merits of a discretionary sentencing issue, this
    Court is required to conduct a four-part analysis to determine whether a
    petition for permission to appeal should be granted.                Commonwealth v.
    Trinidad, 
    96 A.3d 1031
    , 1039 (Pa. Super. 2014) (citation omitted), appeal
    denied, 
    99 A.3d 925
    (Pa. 2014).            Specifically, we must determine the
    following.
    (1) [W]hether appellant has filed a timely notice of
    appeal, Pa.R.A.P. 902, 903; (2) whether the issue
    was properly preserved at sentencing or in a motion
    to reconsider and modify sentence, Pa.R.Crim.P.
    [708]; (3) whether 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.A.] § 9781(b).
    
    Id. In the
    case sub judice, we note that Appellant filed a timely notice of
    appeal.      We further observe that Appellant has included a Rule 2119(f)
    statement      in   his   brief.   Appellant     also   filed   a   timely   motion   for
    reconsideration of sentence in the trial court.            Therefore, we proceed to
    determine whether Appellant has raised a substantial question for our
    review.
    “The determination of what constitutes a substantial question must be
    evaluated on a case-by-case basis.” See Commonwealth v. Edwards, 
    71 A.3d 323
    , 330 (Pa. Super. 2013) (citations omitted), appeal denied, 
    81 A.3d 75
    (Pa. 2013).        “A substantial question exists only when the appellant
    - 24 -
    J-A30017-14
    advances a colorable argument that the sentencing judge’s actions were
    either: (1) inconsistent with a specific provision of the Sentencing Code; or
    (2) contrary to the fundamental norms which underlie the sentencing
    process.” 
    Id. (citations omitted).
    “Additionally, we cannot look beyond the
    statement of questions presented and the prefatory 2119(f) statement to
    determine whether a substantial question exists.”       Commonwealth v.
    Provenzano, 
    50 A.3d 148
    , 154 (Pa. Super. 2012) (citation omitted).
    In his Rule 2119(f) statement, Appellant argues “the sentencing court
    concentrated solely on the nature of the offense and disregarded mitigating
    and statutory factors[.]” Appellant’s Brief at 10. Appellant also argues that
    the sentence is unreasonable because it is outside the guidelines. 
    Id. at 9.
    We have stated that a failure to consider the required sentencing factors
    under 42 Pa.C.S.A. § 9721(b) raises a substantial question.       See, e.g.,
    Commonwealth v. Coulverson, 
    34 A.3d 135
    , 143 (Pa. Super. 2011)
    (stating, “to the extent that [Appellant]’s claim impugns the trial court’s
    failure to offer specific reasons for the sentence that comport with the
    considerations required in section 9721(b) … we conclude that it raises a
    substantial question of the court’s justification in extending standard range
    sentences to the statutory maximum[]”).        In addition, this Court has
    concluded that a substantial question is presented for our review when a
    defendant complains of an excessive sentence that was above the
    guidelines.   Commonwealth v. Griffin, 
    804 A.2d 1
    , 7 (Pa. Super. 2002)
    - 25 -
    J-A30017-14
    (citation omitted), appeal denied, 
    868 A.2d 1198
    (Pa. 2005), cert. denied,
    Griffin v. Pennsylvania, 
    545 U.S. 1148
    (2005).          As a result, we grant
    Appellant’s petition for permission to appeal the discretionary aspects of his
    sentence, and we proceed to address the merits of his claims.
    We begin by noting our well-settled standard of review.
    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. Raven, 
    97 A.3d 1244
    , 1253 (Pa. Super. 2014)
    (citations omitted), appeal denied, 
    105 A.3d 736
    (Pa. 2014).
    As noted above, Appellant argues that the trial court imposed an
    excessive sentence that exceeded even the aggravated range of the
    sentencing guidelines.   Appellant’s Brief at 43.   Appellant also argues that
    the trial court failed to give consideration to certain sentencing factors
    mandated by Section 9721(b) of the Sentencing Code. 
    Id. at 45.
    Section 9721(b) addresses the factors that a sentencing court must
    consider and provides, in relevant part, as follows.
    § 9721. Sentencing generally
    …
    - 26 -
    J-A30017-14
    (b) General standards.--In selecting from the
    alternatives set forth in subsection (a), the court
    shall follow the general principle that the sentence
    imposed should call for confinement that is
    consistent with the protection of the public, the
    gravity of the offense as it relates to the impact on
    the life of the victim and on the community, and the
    rehabilitative needs of the defendant. The court
    shall also consider any guidelines for sentencing ….
    In every case in which the court imposes a sentence
    for a felony or misdemeanor … the court shall make
    as a part of the record, and disclose in open court at
    the time of sentencing, a statement of the reason or
    reasons for the sentence imposed. In every case
    where the court imposes a sentence or resentence
    outside the guidelines adopted by the Pennsylvania
    Commission on Sentencing under sections 2154 …
    the court shall provide a contemporaneous written
    statement of the reason or reasons for the deviation
    from the guidelines to the commission, as
    established under section 2153(a)(14) (relating to
    powers and duties).       Failure to comply shall be
    grounds for vacating the sentence for resentence
    and resentencing the defendant.
    42 Pa.C.S.A. § 9721(b). We note that “a sentencing judge may satisfy [the]
    requirement of disclosure on the record of his reasons for imposition of a
    particular sentence without providing a detailed, highly technical statement.”
    Commonwealth v. Hunzer, 
    868 A.2d 498
    , 514 (Pa. Super. 2005) (citation
    omitted), appeal denied, 
    880 A.2d 1237
    (Pa. 2005).
    In this case, the trial court noted that for rape of a child and IDSI, the
    guidelines called for a standard range sentence at 54 to 60 months’
    imprisonment, with the aggravated and the mitigated range being plus or
    minus 12 months. N.T., 6/12/13, at 26. For EWOC, corruption of minors
    and   indecent   assault,   the   guidelines   standard   guideline   range   was
    - 27 -
    J-A30017-14
    restorative sanctions to nine months’ imprisonment, with the aggravated
    and mitigated range being plus or minus three months. 
    Id. at 26-27.
    The trial court gave the following reasons before imposing sentence.
    And it’s [the trial court’s] job to weigh the
    aggravating and mitigating factors for each of you in
    determining what would be an appropriate
    punishment.       As far as mitigating factors, I do
    understand that [Appellant has] no prior record, no
    other arrests, [he has] been gainfully employed in
    [his life], no histories of violence, except as it relates
    to these convictions[.]
    When [the trial court] take[s] into account the
    nature of these offenses and for the purposes of
    sentencing, it’s not just what’s good for [Appellant].
    [The trial court has] other considerations, and those
    considerations include, in determining the purposes
    of sentencing, is punishment; what would be
    appropriate deterrents, rehabilitation.
    And in weight the aggravating and mitigating
    factors and the aggravating factors are just, in and
    of itself, the nature of the offenses, it is [the trial
    court’s] determination that the standard range
    guidelines do not … adequately address the serious
    nature of these offenses, the irreparable harm done
    to the victims and their families in this case, and nor
    would the standard guidelines do anything to
    adequately deter others from committing similar
    offenses.
    …
    We cannot allow adults in positions of trust, power
    and authority, with whom we entrust the care and
    well-being of our children, to abuse that trust and
    destroy lives without serious and meaningful
    consequences.
    N.T., 6/12/13, at 96-98.
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    J-A30017-14
    Based on the trial court’s remarks at sentencing, the trial court did not
    solely rely on the seriousness of the offense as Appellant claims but rather,
    noted that it was the only aggravating factor it considered.    See 
    id. The trial
    court explicitly listed several mitigating factors it considered when
    arriving at what it believed to be an appropriate sentence. In our view, the
    trial court’s statement adequately complies with the dictates of Section
    9721(b). It does not follow that the trial court gave the mitigating factors
    described above “little or no consideration,” as Appellant claims, simply
    because the trial court concluded the seriousness of the offense warranted a
    higher sentence, outside the sentencing guidelines.         Based on these
    considerations, we conclude the trial court did not abuse its discretion in
    sentencing. See 
    Raven, supra
    ; 
    Hunzer, supra
    .
    In his sixth issue, Appellant argues that this case should be remanded
    to the trial court for a hearing on a claim of after-discovered evidence.
    Appellant’s Brief at 47.   Pennsylvania Rule of Criminal Procedure 720(C)
    provides that “[a] post-sentence motion for a new trial on the ground of
    after-discovered evidence must be filed in writing promptly after such
    discovery.”   Pa.R.Crim.P. 720(C).    In addition, the comment to Rule 720
    states that “after-discovered evidence discovered during the direct appeal
    process must be raised promptly during the direct appeal process, and
    should include a request for a remand to the trial judge[.]” 
    Id. at cmt.
    We
    - 29 -
    J-A30017-14
    note that in order to satisfy a claim of after-discovered evidence, a
    defendant must satisfy the following four-pronged test.
    To obtain relief based on after-discovered evidence,
    appellant must demonstrate that the evidence: (1)
    could not have been obtained prior to the conclusion
    of the trial by the exercise of reasonable diligence;
    (2) is not merely corroborative or cumulative; (3)
    will not be used solely to impeach the credibility of a
    witness; and (4) would likely result in a different
    verdict if a new trial were granted.
    Commonwealth v. Perrin, --- A.3d ---, 
    2015 WL 138963
    , at *2 (Pa.
    Super. 2015) (citation omitted).
    In this case, Appellant highlights “copies of documents that have been
    discovered regarding medical and drug treatment records regarding D.G.”
    Appellant’s Brief at 48. These were discovered during the discovery phase of
    the civil case filed against Appellant. 
    Id. The Commonwealth
    counters that
    the records disclosed in the criminal trial would not have been admissible, as
    they are statutorily privileged and would only have served as impeachment
    evidence. Commonwealth’s Brief at 51-52.
    Our Supreme Court has consistently reminded courts that claims of
    after-discovered evidence cannot succeed where the proffered evidence
    would only serve the purpose of impeaching the credibility of a trial witness.
    Commonwealth v. Chamberlin, 
    30 A.3d 381
    , 414-415 (Pa. 2011), cert.
    denied,   Chamberlain     v.   Pennsylvania,    132   S.   Ct.   2337     (2012);
    Commonwealth v. Randolph, 
    873 A.2d 1277
    , 1283-1284 (Pa. 2005), cert.
    denied, Randolph v. Pennsylvania, 
    547 U.S. 1058
    (2006).               In addition,
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    J-A30017-14
    our Supreme Court recently concluded that this rule applies regardless of the
    degree of impeachment the evidence would allegedly inflict.
    We must reject as well [the defendant]’s suggestion
    the trial court erred in finding the third prong of the
    test was not met; he does so because of the degree
    of impeachment he anticipates he would inflict. Even
    if his impeachment would “destroy and obliterate” a
    witness, it is still impeachment, and the rule does
    not quantify the degree of impeachment beyond
    which the rule no longer applies.
    Commonwealth v. Castro, 
    93 A.3d 818
    , 827 n.13 (Pa. 2014).
    In the case sub judice, Appellant avers that D.G.’s records will serve to
    show that D.G.’s trial testimony “was part of a fantasy of sexual abuse and a
    pattern of false statements made by D.G., perhaps to excuse his acts of bad
    behavior       and   criminal   misconduct,   including   selling   illegal   drugs[.]”
    Appellant’s Brief at 51. Appellant requests a new trial because a second jury
    “will more clearly understand that the testimony of [D.G.] in this case
    incriminating … Appellant[] does not support a guilty verdict.”                    
    Id. Assuming, without
    deciding, that the aforementioned records would be
    generally admissible and not privileged, we conclude that Appellant’s own
    argument reveals that their sole purpose would be to impeach D.G.’s
    credibility.    See 
    id. Therefore, we
    further conclude that Appellant is not
    entitled to remand to the trial court for a hearing on his claim of after-
    discovered evidence. See Perrin, supra.
    - 31 -
    J-A30017-14
    In his seventh issue, Appellant avers that the Commonwealth
    committed a Brady9 violation when it withheld that Judy Cruz-Ransom, an
    investigator with the Archdiocese of Philadelphia was interviewed by the
    Commonwealth and provided the Commonwealth with information that was
    favorable to Appellant.           Appellant’s Supplemental Brief at 4.       The
    Commonwealth counters that Cruz-Ransom was known to the defense, and
    therefore, the Commonwealth withholding her interview with police from the
    defense cannot amount to a Brady violation. Commonwealth’s Brief at 53.
    “Under Brady, the State violates a defendant’s right to due process if
    it withholds evidence that is favorable to the defense and material to the
    defendant’s guilt or punishment.”              Smith v. Cain, 
    132 S. Ct. 627
    , 630
    (2012) (citation omitted).          “Thus, to establish a Brady violation, an
    appellant must prove three elements: (1) the evidence at issue is favorable
    to the accused, either because it is exculpatory or because it impeaches; (2)
    the evidence was suppressed by the prosecution, either willfully or
    inadvertently; and (3) prejudice ensued.”            Commonwealth v. Weiss, 
    81 A.3d 767
    , 783 (Pa. 2013) (citations omitted). The Supreme Court has held
    that evidence is material under Brady when “the likelihood of a different
    result is great enough to ‘undermine[ ] confidence in the outcome of the
    trial.’” 
    Smith, supra
    , quoting Kyles v. Whitley, 
    514 U.S. 419
    , 434 (1995).
    ____________________________________________
    9
    Brady v. Maryland, 
    373 U.S. 83
    (1963).
    - 32 -
    J-A30017-14
    Pursuant to Brady and its progeny, the
    prosecutor has a duty to learn of all evidence that is
    favorable to the accused which is known by others
    acting on the government’s behalf in the case,
    including the police.      Kyles[, supra at 437].
    Pursuant to Kyles, “the prosecutor’s Brady
    obligation clearly extends to exculpatory evidence in
    the files of police agencies of the same government
    bringing the prosecution.”       Commonwealth v.
    Burke, 
    781 A.2d 1136
    , 1142 ([Pa.] 2001).
    Moreover, there is no Brady violation when the
    defense has equal access to the allegedly withheld
    evidence. See Commonwealth v. Spotz, 
    896 A.2d 1191
    , 1248 ([Pa.] 2006) (“It is well established that
    no Brady violation occurs where the parties had
    equal access to the information or if the defendant
    knew or could have uncovered such evidence with
    reasonable diligence[]” (internal citation omitted)).
    
    Id. (parallel citations
    omitted).
    In this case, Appellant raises a Brady violation on the basis of the
    following evidence purportedly obtained by the Commonwealth from Cruz-
    Ransom.
    The Superior Court should remand this matter to the
    [trial court] to allow an evidentiary hearing because
    the [Commonwealth] denied him the due process of
    law to which the Appellant was entitled under the
    federal and state constitutions by reasons of the
    Commonwealth’s failure to inform his trial counsel
    that Judy Cruz-Ransom, whom we now know (from
    her deposition) had been interviewed by the
    [Commonwealth] prior to the criminal trial, had
    provided information which was material and
    favorable to the defense, to wit, that the testimony
    provided by social worker Louise Hagner regarding
    her interview with … D.G. on January 30, 2009 was
    corroborated and confirmed by another witness, i.e.,
    Judy Cruz-Ransom.
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    J-A30017-14
    (a)   Ms. [Cruz-]Ransom testified at the
    deposition of April 9, 2014 at pages 11-
    13 that she had spoken with [the
    Commonwealth], along with her own
    attorney … prior to the criminal trial in
    this case.
    (b)   In said deposition, Ms. [Cruz-]Ransom
    testified that she was present with Louise
    Hagner on January 30, 2009 when they
    interviewed … D.G. regarding his
    allegations of sexual abuse while a
    student at St. Jerome’s Elementary
    School in Philadelphia. Her deposition
    testimony directly corroborated and
    supported the trial testimony of Louise
    Hagner to the effect that [D.G.]’s
    demeanor seemed normal, that [D.G.]
    was not actually crying and that [D.G.]
    did not appear in any way to be under
    the influence of drugs or alcohol at the
    time of the interview.
    (c)   Ms. [Cruz-]Ransom further testified at
    the deposition that [D.G.] had in fact
    directed her, as the person who was
    driving the automobile, to drive to the
    location at which Appellant … allegedly
    assaulted [D.G.], to wit, a “dumpster” in
    front of an apartment building (not in
    Pennypack Park as was testified to at
    trial by [D.G.]).      Ms. Ransom also
    recalled     that  [D.G.]   stated    that
    [Appellant] had “choked” D.G. “with a
    seatbelt”, a fact which [D.G.] also denied
    at the trial.
    Appellant’s Supplemental Brief at 5-6.
    Assuming arguendo that the Commonwealth was required to disclose
    the above statements from Cruz-Ransom, we conclude Appellant has not
    established that said statements were material for the purposes of Brady.
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    J-A30017-14
    Appellant’s supplemental brief on its face acknowledges that the bulk of
    Cruz-Ransom’s statements were merely cumulative evidence, as they would
    serve to corroborate Hagner’s testimony.     See 
    id. at 5.
       In addition, the
    statements would highlight more inconsistencies in D.G.’s accounts of the
    abuse, which were already well-established to the jury by defense counsel
    through Hagner’s testimony.    See, e.g., N.T., 1/23/13, at 49, 56 (Hagner
    testifying that D.G. told her that Appellant’s incident of abuse took place “by
    a dumpster[]” and it “was not Pennypack Park[]”); Commonwealth v.
    Santiago, 
    654 A.2d 1062
    , 1082 (Pa. Super. 1994) (stating, “[s]ince
    cumulative evidence is not ‘material to either guilt or punishment,’ the
    unavailability of cumulative evidence does not deprive the defendant of due
    process[]”), quoting United States v. Sanchez, 
    917 F.2d 607
    , 618 (1st Cir.
    1990), cert. denied, Santiago v. Pennsylvania, 
    516 U.S. 995
    (1995).
    Based on these considerations, we conclude Appellant’s due process rights
    were not violated in this case. See 
    Smith, supra
    ; 
    Weiss, supra
    .
    Based on the foregoing, we conclude all of Appellant’s issues are either
    waived or devoid of merit.     Accordingly, the trial court’s June 12, 2013
    judgment of sentence is affirmed.
    Judgment of sentence affirmed.
    - 35 -
    J-A30017-14
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/24/2015
    - 36 -