Com. v. Rivera, G. ( 2021 )

J-A04029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GEORGE RIVERA :
:
Appellant : No. 1342 EDA 2020
Appeal from the Judgment of Sentence Entered November 20, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001820-2016
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED: MARCH 29, 2021
Appellant, George Rivera, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas, following
his bench trial convictions for involuntary deviate sexual intercourse with a
child (“IDSI”), unlawful contact with a minor, and corruption of minors
(“COM”).1 We affirm.
In its opinion, the trial court set forth the relevant facts of this case as
follows:
When the complainant herein M.T., who was eighteen years
old when she testified, was some years younger than ten
years old, she lived with her mother, sisters and Appellant
in a residence in Northeast Philadelphia. Appellant was a
friend of her grandmother’s[…] who referred to Appellant as
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3123(b); 6318(a)(1); and 6301(a)(1)(ii), respectively.
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a cousin, in a residence in Northeast Philadelphia. On a day
when there was a small get-together at her house, M.T. and
her two sisters were watching television in their mother’s
bedroom while lying on the bed when Appellant entered the
room and asked the girls if they wanted to play a game.
Appellant then said to M.T. not to look under the covers as
he put his head under them right below where M.T. was
laying.
Once under the blankets, Appellant removed M.T.’s pajama
bottoms and her underpants and began performing
cunnilingus upon her. M.T. did not understand what was
going on and did not tell anyone about it at that time
because she was scared to say anything. Appellant again
engaged in cunnilingus with her a second time when no one
was present inside the residence. This time it happened on
the floor of the same bedroom and Appellant again took off
her pants and underpants. M.T. did not tell anyone about
this incident either for the same reason she did not do so
the first time Appellant molested her.
At some point after the second incident occurred, Appellant
stopped living in the residence and was thereafter
incarcerated. M.T. did not tell anyone about the incidents
after he no longer resided in the residence because she was
still too scared to do so.
When M.T. was fourteen, she told her then boyfriend what
Appellant had done to her. Soon thereafter, she told one of
her little sisters that Appellant had “touched” her without
going into details about the incident. Shortly before M.T.
told her boyfriend and her sister that Appellant touched her,
Appellant reappeared and she saw him often. After relating
what occurred to her to her boyfriend and sister, she spoke
to a Philadelphia Department of Human Services social
worker named Crystal Zuggi and the police about the
incidents. She told Ms. Zuggi that she felt relief when she
finally did tell someone about them.
M.T. admitted that she could not recall how old she was
when the incidents herein occurred. On cross-examination,
she agreed that during Appellant’s first trial, she stated that
she was eight or nine years old when the incidents occurred
and that they could not have occurred prior to 2008 or 2009.
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On redirect examination, she testified that she was not
certain about her estimation of her age concerning when the
incidents occurred.
A.D., M.T.’s[,] sister recalled living together with Appellant
and her family and M.T. informing her that Appellant had
molested her when M.T. was younger. When M.T. told her,
M.T. was crying and upset and said she had not told anyone
about it. A.D. advised her to tell someone about the
incidents but she did not want to so A.D. told her foster
parent what M.T. related to her.
M.R., M.T.’s and A.D.’s mother, knew Appellant, the son of
a friend of M.R.’s mother, since she was a child and
considered him to be a relative even though he was not
biologically related to her. Appellant came to live with her
in 2005 or 2006 in a house on G Street in Northeast
Philadelphia when her daughters were very young after he
was released from prison and did not have a place to live.
[Appellant] resided with them for ten or so months and left
when he was again imprisoned. M.R. [and] [h]er family also
left that residence at that time. M.R. was unaware of
anything occurring between Appellant and M.T.
Appellant reappeared some years thereafter and M.R.
observed that her daughters consciously avoided him by
leaving the room. When M.R. asked M.T. why she did not
want to be around Appellant, she essentially said she just
did not want to.
M.R. first learned about what Appellant did when the police
became involved in the case. M.R.’s mother told her what
M.T. had alleged Appellant did to her.
(Trial Court Opinion, filed September 2, 2020, at 2-4) (internal citations
omitted).
Appellant initially had a jury trial that resulted in a mistrial in June of
2017. On September 4, 2018, Appellant had a retrial, waiving his right to a
jury, and the court convicted him of the above-mentioned crimes on that same
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day. With the benefit of a pre-sentence investigation (“PSI”) report, the court
sentenced Appellant to fifteen to thirty years’ incarceration followed by seven
years’ probation on November 20, 2018. On November 30, 2018, Appellant
timely filed a post-sentence motion, and motion to modify his sentence. In
his post–sentence motion, Appellant challenged the weight of the evidence,
alleging that he was incarcerated on the dates the assaults occurred. In his
motion to modify and reduce his sentence, Appellant requested that the court
reconsider his sentence and impose a sentence within the guidelines or
aggravated range of the sentencing guidelines. Both of these motions were
denied by operation of law on April 2, 2019.
Appellant did not file a direct appeal. On October 18, 2019, Appellant’s
trial counsel filed a timely petition pursuant to the Post Conviction Relief Act
(“PCRA”),2 alleging his own ineffectiveness for failing to file a direct appeal
and requesting reinstatement of Appellant’s direct appeal rights nunc pro tunc.
Appellant filed a pro se amended PCRA petition on November 7, 2019. On
December 14, 2019, current counsel filed a second amended PCRA petition.
The court reinstated Appellant’s direct appeal rights nunc pro tunc on July 14,
2020. On that same day, Appellant filed a timely notice of appeal nunc pro
tunc. On August 25, 2020, Appellant voluntarily filed a concise statement of
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2 42 Pa.C.S.A. §§ 9541-9546.
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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).3
Appellant raises the following issues for our review:
Did the sentencing court abuse its discretion in sentencing
Appellant to 15 to 30 years on the lead charge when the
guideline range was 96 months to the statutory maximum
+/- 12 months?
Did the sentencing court abuse its discretion in denying
Appellant’s post-sentence Motion in relation to the weight of
the evidence because, inter alia, Appellant was incarcerated
when Complainant’s allegations occurred and Appellant
presented alibi evidence to this effect?
Are Appellant’s indictment and associated Bills of
Information defective and, thus, the indictment should be
quashed because the Bills of Information state that the
alleged crimes occurred on 11/9/2015 and Complainant
testified that the criminal activity occurred in 2008 or 2009,
when Appellant was incarcerated, making it impossible for
Appellant to defend himself against the crimes for which he
was actually charged?
Did the trial court err in sustaining the Commonwealth’s
objections relating to animus between Complainant and
Appellant because Appellant gave illegal drugs to
Complainant’s mother because this would have shown, inter
alia, motive to fabricate and drug use by Complainant’s
mother would have likely affected her ability to remember
vital dates?
(Appellant’s Brief at 4).
In his first issue, Appellant argues that the court abused its discretion
when it sentenced him to fifteen to thirty years’ incarceration for his conviction
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3The court states in its opinion that it ordered a “Pa.R.A.P. 1925(b) Statement
of Matters Complained of on Appeal.” (See Trial Court Opinion at 2).
However, neither the docket sheet nor the certified record indicates that the
court issued this order.
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of IDSI with a child. Appellant contends that although this sentence is within
the guidelines, it is nonetheless an excessive sentence because it is beyond
the guideline range of ninety-six months plus or minus twelve months.
Appellant alleges that the court failed to consider that he had no other sex
crime convictions and no previous violent convictions. Further, Appellant
claims that the court ignored his potential for rehabilitation, and his sentence
exceeded the need to protect society. Appellant concludes the court abused
its sentencing discretion, and this Court must vacate and remand for
resentencing. We disagree.
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, 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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a timely-filed post-
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sentence motion. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must also invoke the appellate court’s jurisdiction by, inter alia, including in
his brief a separate concise statement demonstrating that there is a
substantial question as to the appropriateness of the sentence under the
Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812
A.2d 617, 621-22 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Commonwealth v.
Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264,
129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v.
Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis
omitted) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant 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
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process.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790
A.2d 1013 (2001)).
A claim that a sentence is manifestly excessive might raise a substantial
question if the appellant’s Rule 2119(f) statement sufficiently articulates the
manner in which the sentence imposed violates a specific provision of the
Sentencing Code or the norms underlying the sentencing process. Mouzon,
supra at 435, 812 A.2d at 627. Bald allegations of excessiveness, however,
do not raise a substantial question to warrant appellate review. Id. at 435,
812 A.2d at 627. Rather, a substantial question will be found “only where the
appellant’s Rule 2119(f) statement sufficiently articulates the manner in which
the sentence violates either a specific provision of the sentencing scheme set
forth in the Sentencing Code or a particular fundamental norm underlying the
sentencing process....” Id. “An allegation that a sentencing court ‘failed to
consider’ or ‘did not adequately consider’ certain factors does not raise a
substantial question that the sentence was inappropriate.” Commonwealth
v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544
Pa. 653, 676 A.2d 1195 (1996) (quoting Commonwealth v. Urrutia, 653
A.2d 706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873(1995)). As well, where the sentencing court had the benefit of a PSI report,
we can presume the court was aware of and weighed relevant information
regarding a defendant’s character along with mitigating statutory factors.
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Commonwealth v. Tirado, 870 A.2d 362, 366 n.6 (Pa.Super. 2005).
Instantly, Appellant’s motion to modify and reduce sentence did not
include his specific argument that the court imposed a manifestly excessive
sentence, so that particular claim is waived. See Commonwealth v. Griffin,
65 A.3d 932 (Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538(2013) (explaining objections to discretionary aspects of sentence are waived
if they are not raised at sentencing hearing or in timely filed post-sentence
motion). Additionally, although Appellant properly preserved his claim that
the court did not consider his personal history and circumstances, this claim
does not raise a substantial question. See Cruz-Centeno, supra. In any
event, the court had the benefit of a PSI report, (see N.T. Sentencing Hearing,
11/20/18, at 4), so we can presume the court considered the relevant
information and mitigating factors. See Tirado, supra.Moreover, the record shows the parties agreed Appellant’s offense
gravity score was fourteen and Appellant had a prior record score of two.
(N.T., 11/20/18, at 4). The Commonwealth explained that the applicable
guidelines were “96 to the statutory limit plus or minus 12 for IDSI of a child.
The [statutory] max[imum] is 20 to 40 years, indicating that the legislature
takes into account the seriousness of this incident.” Id. at 7. Further, the
court explained its sentencing decision as follows:
Appellant was a repeat offender who took advantage of a
vulnerable child and the sentence reflects the heinousness
of his crime. In addition, a lengthy sentence was deemed
necessary to protect the public from Appellant and his
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inability to live a law-abiding life.
Also, this [c]ourt did consider Appellant’s rehabilitative
needs. During the sentencing hearing, this [c]ourt carefully
listened as Appellant’s counsel set forth mitigating
circumstances calling for a reduced sentence. The [c]ourt
also reviewed the pre-sentence reports, which outlined
Appellant’s life circumstances, before deciding upon the
sentence it imposed. Although this [c]ourt did not parrot
every word in 42 Pa.C.S. § 9721(b), the certified record
reveals it thoroughly considered appropriate factors prior to
imposing sentence. This [c]ourt witnessed appellant during
the guilty plea hearing and properly considered the nature
and circumstances of his offenses, as well as his personal
history and sincere expression of remorse.
Finally, Appellant’s sentence was not excessive in light of
the seriousness of the underlying matters. In fact, in this
[c]ourt’s view the aggregate sentence manifested leniency
given the underlying facts and the importance of protecting
the public from criminal violence. In a case where the
maximum imposable sentence was in excess forty years’
incarceration, it could be said that the sentence was too low
given the facts of the case. In any event, this [c]ourt
considered all relevant factors in deciding upon a sentence.
(Trial Court Opinion at 8-10) (internal citations omitted). Here, the record
confirms the court properly balanced Appellant’s circumstances with the
severity of the offenses and the need to protect the public. Based upon the
foregoing, Appellant is not entitled to relief on his challenge to the
discretionary aspects of sentencing.
In his second issue, Appellant argues the verdict was against the weight
of the evidence because Appellant was incarcerated on the dates which M.T.
stated that the assaults occurred. Specifically, Appellant contends that M.T.
testified that these assaults occurred in 2008-2009, when she was eight or
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nine years old. Appellant reasons that he could not have committed these
assaults because he was incarcerated from February 24, 2007, until December
16, 2011. Appellant concludes that the verdict based upon M.T.’s testimony
shocked the conscience, and therefore, he should be awarded a new trial. We
disagree.
When examining a challenge to the weight of the evidence, our standard
of review is as follows:
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of
the witnesses. As an appellate court, we cannot substitute
our judgment for that of the finder of fact. Therefore, we
will reverse a jury’s verdict and grant a new trial only where
the verdict is so contrary to the evidence as to shock one’s
sense of justice. Our appellate courts have repeatedly
emphasized that one of the least assailable reasons for
granting or denying a new trial is the [trial] court’s
conviction that the verdict was or was not against the weight
of the evidence.
Commonwealth v. Rabold, 920 A.2d 857, 860 (Pa.Super. 2007), aff’d, 597
Pa. 344, 951 A.2d 329 (2008) (internal citations and quotation marks
omitted).
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
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(internal citations omitted).
Instantly, Appellant’s weight claim focuses on M.T.’s testimony that
“Appellant engaged in vaginal touching and oral sex with [M.T.] when [M.T.]
was 8 or 9 years old in 2008 or 2009.” (Appellant’s Brief at 15). Nevertheless,
this testimony took place at Appellant’s first trial. During Appellant’s re-trial,
while M.T. admitted that previously she stated the assaults occurred when she
was eight or nine years old (see N.T., Trial, 9/4/18, at 26-27), she testified
that she did not recall the year, or how old she was when Appellant sexually
assaulted her (see id. at 12, 14, 18).
At Appellant’s re-trial, M.T. testified that the assaults occurred while she
lived at her mother’s residence on G Street in Philadelphia. (Id. at 11-14).
Appellant also lived at that residence with her when the assaults occurred.
(Id. at 14). M.T. stressed that although she did not recall her exact age when
the assaults occurred, she knew that she could not have been more than ten
years old at the time. (Id. at 19). At ten years old, M.T. resided with her
grandmother at a different location. (Id.). M.T. also testified that the assaults
ended when Appellant went to prison. (Id. at 22). M.T.’s mother testified
that Appellant resided with M.T. at the G Street residence between 2005 and
2006. (Id. at 40). According to this timeline, the assaults occurred between
2005 and 2006, when Appellant resided at the G Street residence, at least one
year before Appellant went to prison in 2007.
The trial court addressed Appellant’s challenge to the weight of the
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evidence as follows:
This [c]ourt rejected Appellant’s weight claim because
[M.T.’s] testimony, considered in its entirety, positively
established Appellant did the acts she ascribed to him. This
[c]ourt found her testimony wholly believable despite some
inconsistencies in it. Those inconsistencies were not
weighty enough for this [c]ourt to conclude that [M.T.] lied
about the sexual assaults.
In addition, this [c]ourt considered that [M.T.] previously
indicated that she was sexually assaulted during a period of
time when Appellant was incarcerated but took into
consideration [M.T.’s] age when the incidents occurred
when deciding on the verdict and whether [M.T.] presented
credible testimony. The fact that [M.T.] could not accurately
recall when the incidents occurred is not surprising given
what occurred to her, acts which she certainly did not
understand and which likely caused some shock to her,
shock which could have impeded her ability to remember.
Appellant’s incarceration and [M.T.’s] prior indications about
when the incidents occurred did not shake this [c]ourt’s
credibility determination regarding [M.T.] especially
because [M.T.] indicated that the assaults stopped when
Appellant was incarcerated, she was certain that the
incidents occurred before she and her family moved at a
time when Appellant still resided with her, and she provided
significant detail when describing the incidents.
(Trial Court Opinion at 10, 11) (internal citations omitted). We see no reason
to disturb the trial court’s conclusions and emphasize that the finder of fact is
exclusively responsible for credibility determinations. See Rabold, supra.
On this record, the trial court did not palpably abuse its discretion in ruling on
the weight claim, and Appellant is not entitled to relief on this basis. See
Champney, supra.In his third issue, Appellant argues that the criminal information
incorrectly stated that the criminal conduct occurred on November 9, 2015,
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instead of 2008-2009. Appellant alleges this error made it impossible for him
to defend himself because no evidence supported the timeframe listed in the
information. Appellant contends that his conviction cannot stand based upon
a defective information.4 Appellant insists that although he failed to object to
this error, and such a failure generally leads to waiver, this claim challenges
the legality of his sentence which cannot be waived. Appellant concludes that
this Court should order a new trial based on the defective criminal information.
We disagree.
Preliminarily, to preserve a claim of error for appellate review, a litigant
must make a specific objection before the trial court in a timely fashion and
at the appropriate stage of the proceedings; failure to raise such objection
results in waiver of the underlying issue on appeal. Commonwealth v. May,
584 Pa. 640, 887 A.2d 750 (2005), cert. denied, 549 U.S. 832, 127 S.Ct. 58,
166 L.Ed.2d 54 (2006) (reiterating that absence of specific and
contemporaneous objection to error waives issue on appeal). See also
Pa.R.A.P. 302(a) (stating: “Issues not raised in the [trial] court are waived
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4 Appellant relies on Commonwealth v. Walters, 378 A.2d 993 (Pa.Super.
1977), for the proposition that if an indictment is defective, the conviction
cannot stand. In Walters, the defendant filed a motion to quash the
indictment, because the Commonwealth did not include language referring to
an element of the crime charged. Id. The Walters Court reversed the
defendant’s conviction holding that despite the indictment’s citation to the
applicable statutory section, the indictment was defective where it did not
include all of the statutory elements. Id. Appellant does not allege that the
information in this case failed to include an element of the offenses, so
Walters is not dispositive in this case.
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and cannot be raised for the first time on appeal”); Commonwealth v.
Jackson, 215 A.3d 972, 977-78 (Pa.Super. 2019) (holding appellant waived
challenge to amendment to criminal information where he failed to articulate
specific objection at appropriate stage of proceedings before trial court).
Challenges to the legitimacy of an information must be raised in a pre-
trial motion to quash the information. See Commonwealth v. Kimble, 470
A.2d 1369, 1375 (Pa.Super. 1984) (citing Pa.R.Crim.P. 306 (now Rule 578)).
Failure to file an omnibus pre-trial motion to quash an information results in
waiver. See Commonwealth v. Martin, 694 A.2d 343, 344 (Pa.Super.
1997). See also Commonwealth v. Gemelli, 474 A.2d 294 (Pa.Super.
1984). An exception to the general waiver rules exists, however, in
circumstances implicating the legality of the sentence. Commonwealth v.
Foster, 609 Pa. 502, 522, 17 A.3d 332, 345 (2011).
In Commonwealth v. Spruill, 622 Pa. 299, 80 A.3d 453 (2013)
(plurality), the defendant was charged with several counts of aggravated
assault. The information listed the counts as first-degree felonies (“F1”);
however, “the descriptions in the information encompassed the elements of
both F1 aggravated assault and second-degree felony (‘F2’) aggravated
assault.” Id. at 302, 80 A.3d at 455. The trial court convicted the defendant
of F2 aggravated assault and later sentenced her. At no time did the
defendant raise an objection in the trial court to the grading of her conviction
as a F2. Instead, the defendant first presented that claim in her Rule 1925(b)
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statement after she appealed her judgment of sentence to the Superior Court.
On appeal, the defendant argued that “a claim that the trial court
improperly imposed a sentence on an offense lower than the offense charged
in the criminal information goes to the legality of the sentence, and thus
cannot be waived.” Id. at 305, 80 A.3d at 457 (citation omitted). In its
opinion announcing the judgment of the Court, the Supreme Court disagreed
with the defendant, and concluding that she waived her claim because it
involved the defendant’s underlying conviction—not her sentence. Id. at 312,
80 A.3d at 461.
Instantly, Appellant did not file a pre-trial motion to quash the criminal
information, and advances his current claim for the first time on appeal.
Appellant’s sole claim concerning the deficiency in the information involves
the incorrect date listed for when the crimes occurred. Under these
circumstances, Appellant’s challenge to the information appears to implicate
only his underlying conviction at trial, and not the legality of his sentence.
See id. Therefore, this issue is waived on appeal. See May, supra;Jackson, supra; Pa.R.A.P. 302(a).
Even if Appellant preserved this claim, it would merit no relief.
Pennsylvania Rule of Criminal Procedure 560 provides, in pertinent part:
Rule 560. Information: Filing, Contents, Function
* * *
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(B) The information shall be signed by the attorney for
the Commonwealth and shall be valid and sufficient in law if
it contains:
* * *
(3) the date when the offense is alleged to have been
committed if the precise date is known, and the day of the
week if it is an essential element of the offense charged,
provided that if the precise date is not known or if the
offense is a continuing one, an allegation that it was
committed on or about any date within the period fixed by
the statute of limitations shall be sufficient;
* * *
Pa.R.Crim.P. 560(B)(3).
This Court has long recognized that the purpose of the information is to
put a defendant on notice of the crimes for which he is charged, and to provide
sufficient notice to allow the opportunity to prepare a defense, and to define
the issues for trial. See Commonwealth v. Shamberger, 788 A.2d 408,
419-20 (Pa.Super. 2001), appeal denied, 569 Pa. 681, 800 A.2d 932 (Pa.
2002). It is the duty of the prosecution to “fix the date when an alleged
offense occurred with reasonable certainty.” Commonwealth v. Jette, 818
A.2d 533, 535 (Pa.Super. 2003). However, “[d]u[e] process is not reducible
to a mathematical formula,” and the Commonwealth does not always need to
prove a single specific date of an alleged crime. Commonwealth v. Devlin,
460 Pa. 508, 515–516, 333 A.2d 888, 892 (1975). Additionally, “indictments
must be read in a common sense manner and are not to be construed in an
overly technical sense.” Commonwealth v. Ohle, 503 Pa. 566, 588, 470
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A.2d 61, 73 (1983).
“[T]he Commonwealth must be afforded broad latitude when attempting
to fix the date of offenses which involve a continuous course of criminal
conduct.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa.Super.
2007) (quoting Commonwealth v. Groff, 548 A.2d 1237, 1242 (Pa.Super.
1988)). This is especially true when the case involves sexual offenses against
a child victim. Id. “It is well settled that a purported variance [in the
information] will not be deemed fatal unless it could mislead the defendant at
trial, involves an element of surprise prejudicial to the defendant’s efforts to
prepare his defense, precludes the defendant from anticipating the
prosecution’s proof, or impairs a substantial right.” Commonwealth v.
Jones, 590 Pa. 202, 238, 912 A.2d 268, 289 (2006).
Instantly, the information lists all of the offense dates as “11/09/2015.”
(Information, filed 2/29/16, at 1-2). None of the testimony mentioned any
criminal activity occurring in 2015, thus, the date listed in the information is
incorrect. Approximately one year after the information was filed, Appellant
filed a notice of alibi stating that “[i]f [Appellant] presents [an alibi] defense,
the claim will be that during the time of the alleged offense when the
complainant was 8, 9 or 10 years old, [Appellant] was incarcerated and
serving a state sentence.” (Notice of Possible Alibi Defense, filed 6/23/17).
As indicated by his alibi and his argument at trial, Appellant focused only on
the years from 2007 to 2011, when he was incarcerated. Appellant failed to
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argue or substantiate how the information’s incorrect date of 2015 prejudiced
him or affected his defense. Thus, Appellant had notice of the crimes charged,
and notice to prepare a defense, and to define the issues for trial. See
Shamberger, supra.Further, the trial court explained:
Instantly, it cannot be contested that the dates are not an
element of IDSI and that the Commonwealth filed the
charges within the statute of limitations. Moreover,
although the Bill of Information listed a specific date, it is
clear from reading the Bill of Information that the date listed
was the date when the complainant first brought the
charges and that the incidents occurred well prior thereto
by the inclusion of the charge of IDSI of a child less than
thirteen years of age. By including that charge Appellant
surely was aware that the crimes he was accused of
committing occurred well prior to the date set forth in the
Bills of Information.
(Trial Court Opinion at 13).
Further, this was Appellant’s second trial, the first having resulted in a
hung jury. Thus, at the time of the second trial, Appellant was well aware
that the charges alleged occurred while Appellant lived with M.T. at the G
Street residence. See Jones, supra (holding that challenge to information
fails where defendant and his counsel had actual knowledge of charges).
Consequently, Appellant was aware before trial that the Commonwealth would
be presenting evidence that the assaults happened prior to 2015, the date
listed in the information. The error in the information’s date did not involve
an element of surprise prejudicial to Appellant’s efforts to prepare his defense,
preclude Appellant from anticipating the prosecution’s proof, or impair a
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substantial right. Jones, supra. Our review of the record confirms that
Appellant had sufficient notice to meet the charges and prepare a defense,
which he in fact did present at the bench trial. Thus, Appellant’s third issue
challenging the adequacy of the information lacks merit.
In his fourth issue, Appellant argues the court erred in sustaining the
Commonwealth’s objection during Appellant’s cross-examination of M.T.’s
mother. Specifically, Appellant alleges the court prevented him from
questioning M.T.’s mother about her drug use. Appellant contends that this
evidence would discredit M.T.’s mother’s memory, and elicit M.T.’s bias as a
motive for fabricating her testimony.5 Appellant concludes that this Court
should remand the case for a new trial. We disagree.
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5 To the extent Appellant argues the court failed to issue the “drug usage and
effect” charge, Appellant failed to indicate precisely where in the record he
requested this charge, and he failed to cite any authority supporting his
position. Additionally, Appellant did not preserve this claim in his Rule 1925(b)
statement. Thus, this claim is waived. See Pa.R.A.P. 2119. See also
Pa.R.A.P.1925(b)(4)(vii). Appellant also mentions the Confrontation Clause
with respect to this issue, however, he fails to raise the Confrontation Clause
issue in his Rule 1925(b) statement. Thus, this claim is also waived. See id.
Further, any Confrontation Clause argument is undeveloped. “[I]t is an
appellant’s duty to present arguments that are sufficiently developed for our
review. The brief must support the claims with pertinent discussion, with
references to the record and with citations to legal authorities.”
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super. 2007) (citation
omitted). “This Court will not act as counsel and will not develop arguments
on behalf of an appellant.” Id. If a deficient brief hinders this Court’s ability
to address any issue on review, we shall consider the issue waived. See
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (holding that
appellant waived issue on appeal where he failed to support claim with
relevant citations to case law and record). Appellant failed to include a
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Our standard of review of a trial court's admission or exclusion of
evidence is well established:
Admission of evidence is a matter within the sound
discretion of the trial court, and will not be reversed absent
a showing that the trial court clearly abused its discretion.
Not merely an error in judgment, an abuse of discretion
occurs when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by
the evidence on record.
Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),
cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal
citations and quotation marks omitted). Our scope of review in cases where
the trial court explains the basis for its evidentiary ruling is limited to an
examination of the stated reason. Commonwealth v. Stephens, 74 A.3d
1034, 1037 (Pa.Super. 2013).
Pennsylvania Rule of Evidence 611(b) addresses the scope of cross-
examination, stating: “Cross-examination of a witness other than a party in a
civil case should be limited to the subject matter of the direct examination and
matters affecting credibility; however, the court may, in the exercise of
discretion, permit inquiry into additional matters as if on direct examination.”
Pa.R.E. 611(b). “Cross-examination may be employed to test a witness’ story,
to impeach credibility, and to establish a witness’ motive for testifying. The
____________________________________________
meaningful discussion of his Confrontation Clause argument, and he failed to
include any citations to case law and the record, thus, this claim is waived.
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scope of cross-examination is a matter within the discretion of the trial court
and will not be reversed absent an abuse of that discretion.” Commonwealth
v. Chmiel, 585 Pa. 547, 592, 889 A.2d 501, 527 (2005) (citation and
quotation marks omitted).
Instantly, Appellant’s counsel cross-examined M.T.’s mother as follows:
[APPELLANT’S COUNSEL]: Okay. And were you using
any illegal substances at the time?
[THE COMMONWEALTH]: Objection.
THE WITNESS: No illegal.
THE COURT: All right. She’s answered the
question.
THE WITNESS: Was [Appellant]? Do you want
me answer that?
THE COURT: There’s no question to answer,
ma’am. Proceed, counsel.
[APPELLANT’S COUNSEL]: Okay.
[APPELLANT’S COUNSEL]: Well, when did you begin
using PCP?
[THE COMMONWEALTH]: Objection.
THE COURT: Sustained.
THE WITNESS: I don’t use PCP.
THE COURT: Don’t answer it. I sustained the
objection.
[APPELLANT’S COUNSEL]: Your Honor, it goes to—the
witness has testified that her three daughters did not like
my client because of this alleged incident, him being the
perpetrator of this alleged incident. And there’s other
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evidence to show that the daughters did not like [Appellant]
because there was some drug activity going on between my
client and [M.T.’s] mother.
THE WITNESS: Can I speak on that, please?
THE COURT: No, you can’t. I’ve sustained the
objection.
[APPELLANT’S COUNSEL]: And, ma’am do you understand
that [M.T.’s sister] specifically did not think that [Appellant]
was a very nice person because he would give you drugs?
[THE COMMONWEALTH]: Objection.
THE WITNESS: [M.T.’s sister] doesn’t like
[Appellant] because [Appellant] touched her.
THE COURT: Well, I’m going to overrule that
objection.
THE WITNESS: Y’all got to understand. I don’t
really think I should be sitting here looking at him.
THE COURT: Ma’am you are sitting there. The
question was, did he give you drugs[?]
THE WITNESS: Did he give me drugs?
THE COURT: Yes.
THE WITNESS: No. I’m a grown woman. If I
did, I did [it] on my own. It wasn’t because somebody put—
THE COURT: Very well. That’s your answer.
Thank you.
[APPELLANT’S COUNSEL]: Your Honor, actually the
question—I wanted to know whether she was aware that
[M.T.’s sister], her daughter, did not like my client
because of the drug activity between my client and
the mother.
[THE COMMONWEALTH]: I’m going to renew my objection.
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THE COURT: Objection sustained. There’s
no evidence of that let’s proceed.
[APPELLANT’S COUNSEL]: No further questions.
(N.T. Trial, at 44-46) (emphasis added).
Instantly, in addressing this claim, the trial court explained:
[I]f counsel wanted to elicit testimony indicating that [M.T.]
accused Appellant of assaulting her because he gave drugs
to her mother he should have asked [M.T.] and not her
mother who would have had to engage in speculation
whether or not that was true. [Appellant’s] counsel
produced no evidence and did not lay any foundation
showing that the premise of his question had a factual basis.
Moreover, this [c]ourt permitted the mother to answer a
similar question and it is apparent that [Appellant’s] counsel
did not like the response.
Therefore, the line of questioning sought wholly speculative
testimony and was properly precluded and moreover, this
[c]ourt did permit [Appellant’s] counsel to query [M.T.’s]
mother about her drug use.
(Trial Court Opinion at 16).
Here, M.T.’s mother answered the questions concerning illegal drug use,
and Appellant failed to question M.T. on whether she had animosity toward
Appellant over his alleged drug activity with her mother. We see no reason
to disrupt the trial court’s analysis. See Stephens, supra. Thus, Appellant’s
fourth issue on appeal warrants no relief. See Chmiel, supra. Accordingly,
we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/21
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