J-A16024-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA
                         Appellee

                    v.

CARLOS SEBASTIAN

                         Appellant                 No. 1962 MDA 2019


      Appeal from the Judgment of Sentence Entered August 22, 2019
              In the Court of Common Pleas of Adams County
             Criminal Division at No.: CP-01-CR-0000264-2019


BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                      FILED OCTOBER 14, 2020

      Appellant, Carlos Sebastian, appeals from the August 22, 2019

judgment of sentence entered in the Court of Common Pleas of Adams County

(“trial court”), following his jury convictions of multiple counts of sexual

assault against his step-daughter. Upon review, we affirm.

      The facts and procedural history of this case are uncontested.      As

recounted by the trial court:

      Testimony developed at the jury trial held on June 6, 2019
      revealed the following events occurred. Minor Victim N.M.F.
      (Hereinafter “Minor Victim”) testified she is 15 years old, her
      birthday is December 5, 2003, and during the timeframe in
      question she lived at her mother’s residence at 8 East George
      Street in New Oxford, Adams County, Pennsylvania, with her
      mother, two brothers, and her step-father, Appellant.

      Minor Victim testified that she and Appellant are not married and
      Appellant sexually assaulted her on numerous occasions,
      beginning when she was 11 years old and ending when she was
      13 years old.       The sexual assaults included both vaginal
J-A16024-20


       intercourse and oral sex. The first sexual assault occurred when
       Minor Victim was 11 and Minor Victim was watching television in
       the room she shared with her mother and Appellant. Appellant
       rubbed Minor Victim’s shoulders and asked her to go downstairs
       with him. Minor Victim followed Appellant to the living room.
       Minor Victim testified Appellant and Minor Victim had sex on the
       living room couch. Minor Victim testified Appellant took his and
       Minor Victim’s clothes off and Appellant’s penis touched the inside
       of her vagina. Minor Victim testified the sex lasted longer than a
       minute and ended when Appellant ejaculated.

       Minor Victim testified Appellant had vaginal intercourse with her
       multiple times in several different locations throughout the house,
       including the living room, older brother’s room, and in the
       bedroom she shared with her little brother, mother, and Appellant.
       Minor Victim testified Appellant had sex with her on the living
       room couch more than ten times, on the couch in her brother’s
       room more than ten times, and in the shared bedroom more than
       ten times. Minor Victim testified the last time Appellant sexually
       abused her was when she was 13 years old and it occurred in her
       older brother’s room. Minor Victim testified she was in the living
       room when [Appellant] motioned for her to follow him up the
       stairs. Minor Victim went upstairs and Appellant engaged in oral
       sex with Minor Victim by putting his mouth and tongue in her
       vaginal area. Minor Victim testified Appellant and Minor Victim
       had engaged in oral sex over twenty times prior to this last
       occurrence. Minor Victim testified Appellant would give her money
       after engaging in sexual acts with her, ranging from five to twenty
       dollars, and Appellant would permit her to go places, like a friend’s
       house, in exchange for the sexual acts.

Trial Court Opinion, 1/3/20, at 1-2.           On June 6, 2019, a jury convicted

Appellant of rape of a child, involuntary deviate sexual intercourse (“IDSI”)

with a child, IDSI with a person less than 16 years of age, statutory sexual

assault, unlawful contact with a minor, and corruption of a minor.1 On August

____________________________________________


118 Pa.C.S.A. §§ 3121(c), 3123(b), 3123(a)(7), 3122.1(b), 6318(a)(1), and
6301(a)(1)(ii), respectively.



                                           -2-
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22, 2019, the trial court sentenced him to an aggregate term of 18 to 36 years

in prison.2 Appellant filed post-sentence motions, which he later amended on

October 30, 2019. On November 21, 2019, the trial court granted in part and

denied in part Appellant’s post-sentence motion.3 Appellant timely appealed.

The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. Appellant complied, raising five assertions of

error spanning 13 pages.          In response, the trial court issued a Pa.R.A.P.

1925(a) opinion.

       On appeal, Appellant presents the following issues for our review, which

we reproduce here verbatim.

       [I.] WHETHER THE EVIDENCE WAS INSUFFICIENT AS A MATTER
       OF LAW TO SUSTAIN THE GUILTY VERDICTS OF RAPE OF A CHILD
       AND THE OTHER SEXUAL OFFENSES FOR SEVERAL REASONS,
       INCLUDING THAT THE PROSECUTRIX’S TESTIMONY WAS
       INHERENTLY UNRELIABLE, CONTRADICTORY, CONFLICTING AND
       AT ODDS WITH THE PHYSICAL EVIDENCE SUCH THAT GUILTY
       VERDICTS BASED UPON IT CAN AMOUNT TO NO MORE THAN
       SURMISE AND CONJECTURE?

       [II.] WHETHER THE JURY’S GUILTY VERDICTS FOR RAPE OF A
       CHILD AND THE OTHER SEXUAL OFFENSES WERE AGAINST THE
       WEIGHT OF THE EVIDENCE AND WERE SHOCKING TO THE
       JUDICIAL CONSCIENCE FOR SEVERAL REASONS, INCLUDING
       THAT THE PROSECUTRIX’S TESTIMONY WAS INHERENTLY
       UNRELIABLE, CONTRADICTORY, CONFLICTING AND AT ODDS
       WITH THE PHYSICAL EVIDENCE SUCH THAT GUILTY VERDICTS

____________________________________________


2 Appellant was sentenced to 10 to 20 years for rape of a child and a
consecutive sentence of 8 to 16 years for IDSI with child.
3 The motion was granted to the extent the trial court failed to merge for
sentencing purposes IDSI with a child and IDSI with a person less than 16
years of age.

                                           -3-
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     BASED UPON IT CAN AMOUNT TO NO MORE THAN SURMISE AND
     CONJECTURE?

     [III.] WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND
     ERRED BY SUSTAINING THE PROSECUTOR’S OBJECTION TO THE
     ANSWER OF THE PROSECUTRIX’S MOTHER IN WHICH SHE
     CHARACTERIZED HER DAUGHTER (THE PROSECUTRIX) AS A
     LIAR, WHICH NEGATIVE REPUTATION EVIDENCE IN THE
     COMMUNITY WAS HIGHLY RELEVANT AND ADMISSIBLE (AND
     TRIAL COUNSEL FAILED TO DEVELOP THIS TESTIMONY AND
     OFFER PROOF THEREOF AT TRIAL AND THE TRIAL COURT ERRED
     IN REFUSING TO CONSIDER THIS INEFFECTIVENESS CLAIM ON
     THE MERITS)?

     [IV.] WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
     TO ESTABLISH AND EXPLOIT CONTRADICTIONS IN THE
     COMPLAINANT’S TESTIMONY AT TRIAL AND THE TRIAL COURT
     ERRED IN REFUSING TO CONSIDER THIS INEFFECTIVENESS
     CLAIM ON THE MERITS?

     [V.] WHETHER THE, TRIAL COURT ABUSED ITS DISCRETION AND
     ERRED BY SUSTAINING THE PROSECUTOR’S OBJECTION TO THE
     ANSWER OF APPELLANT WHEN HE WAS ASKED TO EXPLAIN HIS
     DISCIPLINING THE COMPLAINANT (AND FURTHER TO THE
     EXTENT THAT THIS ISSUE WAS NOT ADEQUATELY ADDRESSED
     BY TRIAL COUNSEL, TRIAL COUNSEL WAS INEFFECTIVE AND THE
     TRIAL COURT ERRED IN REFUSING TO CONSIDER THIS CLAIM ON
     THE MERITS)?

     [VI.] WHETHER THE SENTENCING COURT ABUSED ITS
     DISCRETION AND IMPOSED A MANIFESTLY EXCESSIVE
     SENTENCE AND TOO HARSH A PUNISHMENT BY SENTENCING
     APPELLANT TO AN AGGREGATE SENTENCE OF 18 TO 36 YEARS
     OF    IMPRISONMENT   DESPITE   THE  FACT  THAT   THE
     COMMONWEALTH ITSELF (AND THE DEFENSE) HAD ASKED THAT
     THE COURT IMPOSE ONLY THE 10-YEAR MANDATORY MINIMUM
     SENTENCE FOR RAPE OF CHILD, WHICH RECOMMENDATION THE
     COURT WRONGLY DISREGARDED?


Appellant’s Brief at 10-11. We address them in turn.




                                   -4-
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        Preliminarily, we point out that Appellant’s first two issues are related,

as they implicate the weight, rather than the sufficiency, of the evidence. 4

Here, Appellant argues that the principal evidence against him at trial—the

testimony of Minor Victim—was unreliable, contradictory and at odds with the

physical evidence.      In other words, Appellant essentially attacks the jury’s

weight and credibility determination, and invites us to accept his proffered

version of the facts. We decline the invitation. It is settled that we may not

substitute our judgment for that of the factfinder—whether a jury or the trial

court—because it is the province of the factfinder to assess the credibility of

the witnesses and evidence. See Commonwealth v. DeJesus, 

860 A.2d 102

, 107 (Pa. 2004); Commonwealth v. Johnson, 

668 A.2d 97

, 101 (Pa.

1995) (“an appellate court is barred from substituting its judgment for that of

____________________________________________


4   As this Court has explained:
        On this issue, our role is not to consider the underlying question
        of whether the verdict was against the weight of the evidence.
        Rather, we are to decide if the trial court palpably abused its
        discretion when ruling on the weight claim. When doing so, we
        keep in mind that the initial determination regarding the weight
        of the evidence was for the factfinder. The factfinder was free to
        believe all, some or none of the evidence. Additionally, a court
        must not reverse a verdict based on a weight claim unless that
        verdict was so contrary to the evidence as to shock one’s sense of
        justice.
Commonwealth v. Habay, 

934 A.2d 732

, 736-37 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 

954 A.2d 575

(Pa. 2008). “[A]
trial court’s denial of a post-sentence motion ‘based on a weight of the
evidence claim is the least assailable of its rulings.’” Commonwealth v.
Sanders, 

42 A.3d 325

, 331 (Pa. Super. 2012) (quoting Commonwealth v.
Diggs, 

949 A.2d 873

, 880 (Pa. 2008)).

                                           -5-
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the finder of fact.”); Commonwealth v. Forbes, 

867 A.2d 1268

, 1273 (Pa.

Super. 2005) (stating that “[t]he weight of the evidence is exclusively for the

finder of fact[,] who is free to believe all, part, or none of the evidence and to

determine the credibility of witnesses. An appellate court cannot substitute

its judgment for that for the finder of fact.”). Moreover, it is settled that the

uncorroborated testimony of a sexual assault victim, if believed, alone is

sufficient to support a sex offense conviction.         See Commonwealth v.

Izurieta, 

171 A.3d 803

, 807 (Pa. Super. 2017); see also 18 Pa.C.S.A. § 3106

(“The credibility of a complainant of an offense under this chapter shall be

determined by the same standard as is the credibility of a complainant of any

other crime . . . . [and it] need not be corroborated in prosecutions under this

chapter.”). Here, in convicting Appellant of the various sex crimes, the jury

chose to believe the testimony of Minor Victim. Thus, Appellant is not entitled

to relief.

       We next address Appellant’s third and fifth issues because they implicate

the trial court’s evidentiary rulings. It is settled:

       [a]dmission of evidence is within the sound discretion of the trial
       court and will be reversed only upon a showing that the trial court
       clearly abused its discretion. 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.

Commonwealth v. Tyson, 

119 A.3d 353

, 357-58 (Pa. Super. 2015) (internal

citations omitted). Moreover, an appellant bears a “heavy burden” to show



                                        -6-
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that the trial court has abused its discretion. Commonwealth v. Christine,

125 A.3d 394

, 398 (Pa. 2015).       “[A]n appellate court may affirm a valid

judgment based on any reason appearing as of record, regardless of whether

it is raised by appellee.” Commonwealth v. Moore, 

937 A.2d 1062

, 1073

(Pa. 2007) (citation omitted).

      In his third issue, Appellant argues that the trial court abused its

discretion in excluding the introduction of negative reputation evidence

proffered by Minor Victim’s mother against Minor Victim. Specifically, the trial

transcript reveals the following exchange.

           Q. So if [Minor Victim] were to spend money, would you be
      aware of her spending money?

            A. If it was done behind my back then I wouldn’t know, no.

            Q. Would you be aware if she brought things into the home
      that she had purchased?

            A. Yes. I would be aware if I would see it, yes.

            Q. And would you inquire as to the source of the funding for
      those matters, for those things?

            A. I would ask where she got it from or who gave it to her.

           Q. Did you ever have a time that you are aware of that
      [Minor Victim] purchased something that you did not know where
      she got the money?

            A. There was times, yes, but she wouldn’t never tell the
      truth about it. She lies.

            ATTORNEY MARGETAS: Objection, Your Honor. I’m going
      to ask that that –

            THE COURT: Sustained. The jury will disregard that answer
      please.


                                     -7-
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N.T. Trial, 6/6/19, at 109 (emphasis added).

     Here, as the foregoing excerpt from the trial transcript indicates, the

Commonwealth timely objected to mother’s opinion testimony that Minor

Victim lies. Pa.R.E. 103(a) provides:

     A party may claim error in a ruling to admit or exclude evidence
     only:

     (1) if the ruling admits evidence, a party, on the record:

           (A) makes a timely objection . . .; and

           (B) states the specific ground, unless it was apparent
           from the context; or

     (2) if the ruling excludes evidence, a party informs the court of its
     substance by an offer of proof, unless the substance was apparent
     from the context.”).


Pa.R.E. 103(a).   It was apparent from the record that the basis for the

Commonwealth’s objection was anchored in Pa.R.E. 608(a). Appellant claims

that the trial court abused its discretion under Rule 608(a) by disallowing

Minor Victim’s mother from testifying about Minor Victim’s reputation for

truthfulness. Rule 608 provides in pertinent part:

     A witness’s credibility may be attacked or supported by testimony
     about the witness’s reputation for having a character for
     truthfulness or untruthfulness. But evidence of truthful character
     is admissible only after the witness’s character for truthfulness has
     been attacked.      Opinion testimony about the witness’s
     character for truthfulness or untruthfulness is not
     admissible.




                                     -8-
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Pa.R.E. 608(a) (emphasis added).               The comment accompanying Rule 608

further highlights that “[u]nder Pa.R.E. 608(a), opinion testimony is not

admissible.”

Id., cmt. Instantly, based

upon our review of the record, we cannot conclude that

the trial court abused its discretion. As the trial court reasoned:

       It is clear that, in the context of the question, the statement made
       by [Minor Victim’s mother] that ‘[Minor Victim] lies’ is [Minor
       Victim’s mother’s] opinion and therefore inadmissible.           The
       witness did not testify concerning Minor Victim’s reputation for
       untruthfulness in the community, but rather attempted to testify
       concerning specific acts of untruthfulness. As such, this testimony
       is inadmissible and Appellant’s claim is meritless.

Trial Court Opinion, 1/3/20, at 8. Accordingly, Appellant is due no relief.5

       We now turn to Appellant’s fifth issue. Appellant argues that the trial

court abused its discretion in disallowing Appellant from testifying about his

disciplining Minor Victim. The trial transcript reveals the following:

       Q. Now, in your relationship in the home with [Minor Victim], did
       you ever scold her or discipline her?

       A. I didn’t like scold her, but when she did things on her cell phone,
       she would do all sorts of bad things. Like for example –

       ATTORNEY MARGETAS: Objection, Your Honor.

       THE COURT: Sustained.

N.T., Trial, 6/6/19, at 123 (emphasis added).


____________________________________________


5 To the extent Appellant asserts an ineffectiveness claim predicated on trial
counsel’s failure to advance additional reasons for why the trial court should
not have sustained the Commonwealth’s objection to mother’s testimony or
trial counsel’s failure to make an offer of proof at trial, such claim may be
pursued without prejudice on collateral review, as explained infra.

                                           -9-
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      Here, again, it is clear on the face of the record that the Commonwealth

asserted an objected under Pa.R.E. 404(b), relating to prior bad acts. See

Pa.R.E. 103(a). Appellant, however, argues that “[t]his was an entirely proper

line of questioning designed to probe for indications of bias, motivation to

implicate falsely, etc. on the part of [Minor Victim].” Appellant’s Brief at 58.

Rule 404(b), relating to character evidence, crimes and other acts, provides

in relevant part:

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person’s character in order to show that
      on a particular occasion the person acted in accordance with the
      character.

      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent, preparation,
      plan, knowledge, identity, absence of mistake, or lack of accident.
      In a criminal case this evidence is admissible only if the probative
      value of the evidence outweighs its potential for unfair prejudice.

      (3) Notice in a Criminal Case. In a criminal case the prosecutor
      must provide reasonable notice in advance of trial, or during trial
      if the court excuses pretrial notice on good cause shown, of the
      general nature of any such evidence the prosecutor intends to
      introduce at trial.


Pa.R.E. 404(b)(1), (2), and (3).       In addition, other crimes evidence is

admissible “where the acts were part of a chain or sequence of events that

formed the history of the case and were part of its natural development.”

Commonwealth v. Green, 

76 A.3d 575

, 583 (Pa. Super. 2014), appeal

denied, 

87 A.3d 318

(Pa. 2014). When offered for one of these legitimate

purposes, prior bad act evidence is admissible if its probative value outweighs

its potential for “unfair prejudice.” Commonwealth v. Hairston, 

84 A.3d

10 -
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657 (Pa. 2014); see also Pa.R.E. 404(b)(3).          Unfair prejudice means “a

tendency to suggest decision on an improper basis or to divert the jury’s

attention away from its duty of weighing the evidence impartially.”

Commonwealth v. Tyson, 

119 A.3d 353

, 360 (Pa. Super. 2015) (en banc).

       Instantly, upon reviewing the record, we conclude that the trial court

did not abuse its discretion in determining that Appellant was prohibited under

Rule 404(b) from introducing evidence of Minor Victim’s prior bad acts, i.e.,

wrong use of cell phone. Appellant’s claim fails.6

____________________________________________


6 Appellant argues that his trial counsel was ineffective for failing to create a
record—making an offer of proof—or to list additional reasons for why his
testimony was relevant and admissible. See Pa.R.E. 103(a). As explained,
infra, he must await collateral review to pursue, without prejudice, this issue.
In his brief, Appellant points out that if the trial court had allowed him to
testify, he would have stated:

          That in his parental capacity as [Minor Victim’s] stepfather, he
           would monitor [Minor Victim’s] cell phone use, in particular her
           use of social media, including Facebook, Instagram, Snapchat,
           and texting.

          That [he] did this in part because he was more familiar with
           the uses of social media than [Minor Victim’s] mother.

          That when [he] found items of concern on social media on
           [Minor Victim’s] cell phone, he would bring this to the attention
           of [Minor Victim’s] mother.

          That [he] discovered through looking at [Minor Victim’s] cell
           phone, that she was communicating with a young man known
           as T.B.R., whom [Minor Victim] met through her friend S.

          That Appellant found on [Minor Victim’s] cell phone pictures of
           genitals purported to be those of T.B.R.




                                          - 11 -
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         We next address Appellant’s fourth issue concerning ineffective

assistance of counsel. In this regard, Appellant contends that trial counsel

was ineffective in failing to (1) develop a record for challenging the trial court’s

evidentiary rulings, set forth at issues 3 and 5, and (2) establish and exploit

“numerous contradictions in [Minor Victim’s] trial testimony.” Appellant’s Brief

at 53.

         In Commonwealth v. Holmes, 

79 A.3d 562

(Pa. 2013), our Supreme

Court reaffirmed its prior holding in Commonwealth v. Grant, 

813 A.2d 726

(Pa. 2002), that, absent certain circumstances, claims of ineffective assistance

of counsel should be deferred until collateral review under the Post Conviction

Relief Act. 

Holmes, 79 A.3d at 576

. The Court explained in a later decision:

         We recently held in Holmes that claims of ineffective assistance
         of counsel litigated after our decision in Grant are not generally a
         proper component of a defendant’s direct appeal. In Holmes, this
         Court reaffirmed the general rule of deferral established in Grant,
         and disapproved of expansion of the so-called Bomar[7] exception,
         which allowed for the presentation of ineffectiveness claims on
____________________________________________


            That [Minor Victim] was permitted by her mother to visit over
             the weekend with her friend S. but when Appellant discovered
             that T.B.R. would be going with [Minor Victim] for this
             weekend, [Minor Victim] was not permitted to go and she was
             grounded; and

            That [Minor Victim] was angry with Appellant for checking her
             cell phone, her Facebook, her Snapchat accounts and was
             angry at him for sharing information with her mother and
             objecting to her activities with T.B.R.
Appellant’s Brief at 58-59. As noted, we cannot consider these additional
reasons at this juncture because they were not offered at trial.
7   Commonwealth v. Bomar, 

826 A.2d 831

(Pa. 2003).

                                          - 12 -
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     direct appeal if the trial court held an evidentiary hearing and
     disposed of the ineffectiveness claims in its opinion. This Court in
     Holmes limited the Bomar exception to its pre-Grant facts. We
     further recognized two exceptions to the Grant deferral rule, both
     falling within the discretion of the trial court. First, we held that
     trial courts retain discretion, in extraordinary circumstances,
     to entertain a discrete claim of trial counsel ineffectiveness if the
     claim is both apparent from the record and meritorious, such
     that immediate consideration best serves the interest of justice.
     Second, we held that trial courts also have discretion to entertain
     prolix claims of ineffectiveness if there is a good cause shown and
     the unitary review thus permitted is accompanied by a knowing
     and express waiver by the defendant of the right to pursue a
     first PCRA petition.

Commonwealth v. Arrington, 86 A.d 831, 856-57 (Pa. 2014) (emphasis

added). An example of “good cause” would be where the defendant is serving

a sentence so short as to be deprived of an opportunity to seek collateral

review of his or her conviction. See 

Holmes, 79 A.3d at 578

(noting that

unitary review offers defendants who receive shorter prison sentences or

probationary sentences the prospect of litigating their constitutional claims

sounding in trial counsel ineffectiveness; for many of these defendants, post-

appeal PCRA review may prove unavailable.”); see also 42 Pa.C.S.A. §

9543(a)(1)(i).   Before a trial court may permit such unitary review, the

defendant’s accompanying PCRA waiver must make clear and certain that any

further collateral attack is subject to the PCRA’s time-bar restrictions, as

detailed in Section 9545(b).

Id. at 579

(explaining that “the accompanying

PCRA waiver must embrace more than exhaustion of the defendant’s first

PCRA petition, but instead must make clear that any further collateral attack




                                    - 13 -
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is subject to the time-bar restrictions of Section 9545(b).”) (Emphasis in

original).

       Here, Appellant’s claim fails for several reasons. At the core, Appellant

seeks review of his PCRA claims because he vehemently disagrees with Minor

Victim’s credibility and the weight accorded to it by the jury. Appellant has

not established the existence of any extraordinary circumstances or that his

claim of ineffectiveness are both apparent from the record and meritorious.

Indeed, Appellant has not established that his ineffectiveness claim is capable

of being reviewed on the existing record. Appellant’s ineffectiveness claim

may require additional evidentiary hearings.       Moreover, Appellant has not

shown good cause to seek unitary review.           The record is bereft of any

indication that Appellant executed a knowing and express waiver of the right

to pursue a first PCRA petition. Accordingly, under the circumstances of this

case, the trial court did not abuse its discretion in concluding that Appellant

must raise any ineffectiveness claims in a timely petition on collateral review.

       Lastly, we address Appellant’s challenge to the discretionary aspects of

his sentence.8     It is well-settled that “[t]he right to appeal a discretionary


____________________________________________


8 When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. An abuse of discretion is
      more than just an error in judgment and, on appeal, the trial court
      will not be found to have abused its discretion unless the record



                                          - 14 -
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aspect of sentence is not absolute.” Commonwealth v. Dunphy, 

20 A.3d 1215

, 1220 (Pa. Super. 2011). Rather, where an appellant challenges the

discretionary aspects of a sentence, an appellant’s appeal should be

considered as a petition for allowance of appeal. Commonwealth v. W.H.M.,

932 A.2d 155

, 162 (Pa. Super. 2007). As we stated in Commonwealth v.

Moury, 

992 A.2d 162

(Pa. Super. 2010):

       An appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction by satisfying a four-part test:
          [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).

Id. at 170

(citing Commonwealth v. Evans, 

901 A.2d 528

(Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis. See Commonwealth v. Kenner, 

784 A.2d 808

, 811 (Pa. Super.

2001), appeal denied, 

796 A.2d 979

(Pa. 2002).


____________________________________________


       discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bowen, 

55 A.3d 1254

, 1263 (Pa. Super. 2012) (quoting
Commonwealth v. Cunningham, 

805 A.2d 566

, 575 (Pa. Super. 2002)),
appeal denied, 

64 A.3d 630

(Pa. 2013).



                                          - 15 -
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       Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.

2119(f) statement in his brief.9           We, therefore, must determine only if

Appellant’s sentencing issues raise a substantial question.

       The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 

925 A.2d 825

,

828 (Pa. Super. 2007).         We have found that a substantial question exists

“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 process.” Commonwealth v. Phillips, 

946 A.2d 103

, 112

(Pa. Super. 2008) (citation omitted), appeal denied, 

964 A.2d 895

(Pa.

2009). “[W]e cannot look beyond the statement of questions presented and

the prefatory [Rule] 2119(f) statement to determine whether a substantial

question exists.” Commonwealth v. Christine, 

78 A.3d 1

, 10 (Pa. Super.

2013), affirmed, 

125 A.3d 394

(Pa. 2015).

       It is settled that this Court does not accept bald assertions of sentencing

errors. See Commonwealth v. Malovich, 

903 A.2d 1247

, 1252 (Pa. Super.

2006). When we examine an appellant’s Rule 2119(f) statement to determine
____________________________________________


9 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

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whether a substantial question exists, “[o]ur inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying the

appeal, which are necessary only to decide the appeal on the merits.”

Commonwealth v. Ahmad, 

961 A.2d 884

, 886-87 (Pa. Super. 2008)

(quoting Commonwealth v. Tirado, 

870 A.2d 362

, 365 (Pa. Super. 2005)).

A Rule 2119(f) statement is inadequate when it “contains incantations of

statutory    provisions     and    pronouncements   of   conclusions   of   law[.]”

Commonwealth v. Bullock, 

868 A.2d 516

, 528 (Pa. Super. 2005) (citation

omitted).

       Here, Appellant asserts in his Rule 2119(f) statement that (1) his

sentence is excessive and “too harsh,” because the trial court imposed

consecutive sentences,10 and (2) the court did not take into account mitigating

factors, which he does not identify. Based on Appellant’s 2119(f) statement,

we conclude that he has failed to raise a substantial question.        Appellant’s

excessiveness claim is premised on his argument that the trial court imposed

consecutive sentences and failed to consider his mitigating circumstances.

Specifically, Appellant claims that, because the trial court ordered his

sentences to run consecutively, his aggregate sentence of 18 to 36 years in

prison was excessive. We consistently have recognized that excessiveness

____________________________________________


10 Appellant does not argue that his sentences were inconsistent with the
sentencing guidelines. Rather, he notes that because he is facing deportation
to Mexico, he should have been sentenced only for rape of a child, which
carried a 10-year mandatory minimum, and not for IDSI with a child (8 to 16
years).

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claims premised on imposition of consecutive sentences do not raise a

substantial question for our review. See Commonwealth v. Caldwell, 

117 A.3d 763

, 769 (Pa. Super. 2015) (en banc) (stating, “[a] court’s exercise of

discretion in imposing a sentence concurrently or consecutively does not

ordinarily raise a substantial question[.]”), appeal denied, 

126 A.3d 1282

(Pa. 2015); see also Commonwealth v. Ahmad, 

961 A.2d 884

, 887 n.7

(Pa. Super. 2008); Commonwealth v. Pass, 

914 A.2d 442

, 446-47 (Pa.

Super. 2006).     Additionally, Appellant claims that the trial court failed to

consider his mitigating circumstances, which he does not identify for us. In

this regard, we have “held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.”    Commonwealth v. Disalvo, 

70 A.3d 900

, 903 (Pa. Super.

2013) (quoting Commonwealth v. Downing, 

990 A.2d 788

, 794 (Pa. Super.

2010)); see also Commonwealth v. Berry, 

785 A.2d 994

(Pa. Super. 2001)

(explaining allegation that sentencing court failed to consider certain

mitigating    factor   generally   does   not   raise   a    substantial    question);

Commonwealth v. Cruz-Centeno, 

668 A.2d 536

, 545 (Pa. Super. 1995)

(“[a]n allegation that a sentencing [judge] ‘failed to consider’ or ‘did not

adequately consider’ certain factors does not raise a substantial question that

the sentence was inappropriate,”), appeal denied, 

676 A.2d 1195

(Pa.

1996); Commonwealth v. Bershad, 

693 A.2d 1303

, 1309 (Pa. Super. 1997)

(finding absence of substantial question where appellant argued the trial court

failed   to   adequately   consider   mitigating   factors    and   to     impose   an

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individualized sentence). Consistent with the foregoing cases, we conclude

that Appellant failed to raise a substantial question with respect to his

excessiveness claim premised on the imposition of consecutive sentences and

claim for inadequate consideration to mitigating factors.

      Even if we were to find a substantial question, Appellant still would not

have been entitled to relief. Where, as here, the sentencing court had the

benefit of a presentence investigation report, we can assume the sentencing

court was aware of relevant information regarding the defendant’s character

and weighed those considerations along with mitigating statutory factors. See

Commonwealth v. Griffin, 

65 A.3d 932

, 937 (Pa. Super. 2013) (citations

and internal quotation marks omitted), appeal denied, 

76 A.3d 538

(Pa.

2013).

      Furthermore, as the trial court thoroughly explained:

      [T]he sentence imposed was under the statutory maximum
      allowed by law. Additionally, as statutorily required, this court
      stated on the record its reasons for the sentence imposed. As set
      forth in 42 Pa. C.S.A. § 9721(b), the sentence in this case took
      into account “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.” As set forth in 42 Pa. C.S.A. § 9781(d),
      this court took into account (1) the nature and circumstances of
      the offense and the history and characteristics of Appellant; (2)
      the opportunity of the sentencing court to observe Appellant,
      including any presentence investigation; (3) the findings upon
      which the sentence was based; and (4) the guidelines
      promulgated by the Commission. This court was the trial judge in
      this jury trial and therefore heard and observed all of the
      testimony and evidence presented, including the testimony of the
      Minor Victim and Appellant. This court also had the opportunity
      to observe Appellant throughout the trial. This court reviewed and

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     considered the presentence investigation and the comments of
     counsel and Appellant during the sentencing hearing. This court
     also reviewed the report prepared by the Sexual Offender
     Assessment Board which opined the Appellant was a sexually
     violent predator. This court took into account the severity of the
     crime, that the rape and involuntary deviate sexual intercourse of
     a child under the age of 13 was ongoing for a number of years
     and involved at least 50 separate sexual assaults against Minor
     Victim. This court considered the gravity of the offense as it
     relates to the impact on the life of Minor Victim, specifically that
     Minor Victim has no contact with her immediate family, including
     her mother, who has sided with Appellant in this case and testified
     on his behalf and against Minor Victim. In essence, the Minor
     Victim has lost her immediate family as a result of the actions of
     Appellant. This court observed the testimony of Appellant at trial
     and took into account Appellant’s comments during sentencing.
     [Appellant did not present any factors in favor of mitigation.]
     Through this court’s observations of Appellant at trial and during
     the sentencing hearing, and through this court’s review of the
     presentence investigation and Sexual Offender Assessment Board
     report, this court took into account the history and characteristics
     of Appellant and his rehabilitative needs.

           ....

     Appellant, a 25 to 26 year old man, who was the stepfather of
     Minor Victim and in a position of authority, vaginally and orally
     raped a child under the age of 13 at least 50 times over multiple
     years. It was this court’s intention to impose separate consecutive
     sentences against Appellant based, in part, on the specific type of
     sexual assault Appellant committed against Minor Victim, wherein
     Appellant both vaginally and orally raped Minor Victim. Although
     Appellant sexually assaulted Minor Victim at least 50 times over
     multiple years, this Court structured a sentence based around the
     specific type of sexual assault Appellant committed on Minor
     Victim and not based on the total number of assaults. Therefore,
     this court’s decision to impose consecutive sentences for the
     vaginal rape and oral rape of a child under the age of 13 is not
     manifestly excessive in light of the Appellant’s criminal conduct in
     this case. Therefore, Appellant’s challenges to the discretionary
     aspect of sentencing are meritless.




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Trial Court Opinion, 1/3/20, at 10-12 (unnecessary capitalizations and

footnote omitted). Discerning no abuse of discretion by the trial court, we

would not disturb Appellant’s sentences on appeal.

      In sum, Appellant’s first two issues challenging the weight and credibility

determinations lack merit.       The trial court did not abuse its discretion in

excluding Minor Victim’s mother from testifying that Minor Victim lies.

Similarly, the court did not abuse its discretion in disallowing Appellant from

testifying   about   his   disciplining    Minor   Victim.     Appellant’s   claim   of

ineffectiveness cannot be reviewed at this stage.            Finally, his discretionary

aspects of sentencing challenge fails for want of a substantial question.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2020




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