J-S53038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JACK EMERY GIRARDI

Appellant No. 364 MDA 2016

Appeal from the Judgment of Sentence January 13, 2016

in the Court of Common Pleas of Lycoming County Criminal Division

at No(s): CP-41-CR-0001977-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 15, 2016

Appellant, Jack Emery Girardi, appeals from the judgment of sentence 

entered in the Lycoming County Court of Common Pleas following a jury trial 

and his convictions for rape of a child,1statutory sexual assault,2

aggravated indecent assault of child,

3 unlawful restraint of minor by parent─ 

risk of serious bodily injury,4incest of minor─complainant under 13 years,5

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3121(c).

2 18 Pa.C.S. § 3122.1(b).

3 18 Pa.C.S. § 3125(b).

4 18 Pa.C.S. § 2902(c)(1).

5 18 Pa.C.S. § 4302(b)(1).
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endangering welfare of children,6corruption of minors,7and indecent 

assault─complainant under 13 years.8 Appellant challenges the sufficiency 

of the evidence, the denial of his motion for a mistrial, and the admission of 

a prior recorded interview of Child, his minor daughter, as substantive 

evidence. We affirm. 

On August 21, 2014, Child was interviewed at the Child’s Advocacy 

Center (“CAC”).9 R.R. at 85a.10 The police and Children & Youth Services 

request that CAC conduct interviews. Id. at 249a. Sherry Moroz was “a 

forensic interviewer at the [CAC] of the Central Susquehanna Valley.” Id. at 

244a. Her job was “to conduct an interview of any child who [was] an 

alleged victim of or a witness to sexual abuse, physical abuse or violent 

crime.” Id. She interviewed Child on August 21, 2014. Id. 

 

6 18 Pa.C.S. § 4304(a)(1).

7 18 Pa.C.S. § 6301(a)(1)(ii).

8 18 Pa.C.S. § 3126(a)(7).

9 The interview was recorded and transcribed. See R.R. at 85a-137a. We 

note that the transcript of the interview was not included in the certified 

record on appeal. Where the accuracy of a transcript is undisputed, this 

Court can consider it even though it was not in the record transmitted to this 

Court. Commonwealth v. Barnett, 121 A.3d 534, 545 n.3 (Pa. Super. 

2015), appeal denied, 128 A.3d 1204 (Pa. 2015). In the case sub judice, 

the Commonwealth chose not to file a brief. Thus, the accuracy of the 

transcript of the interview is undisputed. Therefore, we can consider it. See 

id. 

10 For the parties’ convenience, we refer to the reproduced record where 

applicable.
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She explained that:

the CAC is a facility-based program that offers a multidisciplinary-team approach to the investigation of child 

abuse. So in order to have a child come to the CAC there 

needs to be some sort of an allegation.

 * * *

And at the CAC we provide several services. We 

provide an interview. We provide counseling. We provide 

medical exams. And we provide a place for─a childfriendly place, not the most formal place, but a childfriendly-place, for a team together to determine what the 

allegations truly are and what services or actions need to 

be taken to assure and maintain the safety and health and 

well being of the child.

Id. at 248a. 

One copy of the recording of the interview “is retained as part of the 

child’s medical record at the CAC, and the other one is released to law 

enforcement.” Id. at 250a. The DVD was played for the court. Id. at 252a.

At the time of the interview, Child stated she was seven years old and 

starting second grade the following day.11 Id. at 87a. She lives with her 

mother and her five-year old brother. Id. at 92a. 

[Sherry Moroz]: . . . Is someone worried that something 

happened to you?

A: Some things did.

 * * *

Q: Okay. So what kinds of things happened?

 

11 Mother stated that Child was a year ahead in school. R.R. at 32a.
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A: He was touching me.

Q: Okay. Who was touching you?

A: My dad was touching me─

 * * *

Q: Yeah, did you tell your mom?

A: I told my mom . . . .

 * * *

Q: Okay. Tell me─like start at the beginning and tell me 

everything you can think of.

 * * *

Q: I remember that he was trying to make me sit on his 

thing.

Q: Okay.

A: But he was trying to force me to do it.

Q: Uh─huh.

 

A: And he was touching my butt with the lotion and in 

between it.

Q: Uh─huh.

A: And my thing in the front.

Id. at 96a, 98a. She testified that “[e]very single time [it happened] her 

mommy was at work and [her brother] was sleeping.” Id. at 100a.

A: And daddy kept taking me every time in the middle of 

the night─

Q: Uh-huh.
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A: ─after he gives me a bath─

Q: Uh-huh.

A: He takes me right in the back bedroom.

 * * *

Q: Okay, so what would he do when it was bath time?

A: That’s when he would always make me try to sit on his 

thing.

Q: Okay.

A: And he was forcing me to.

Q: Okay.

A: And I was saying no, but he wouldn’t stop.

Q: Okay. All right. So when─when he was wanting you to 

sit on his thing, like, where was he?

A: He was in the bathtub with me.

 * * *

Q: Okay. Where did his thing go?

A: In my butt.

 * * *

Q: Okay. All right. Okay, so you said that sometimes 

things would happen in the bathroom in the tub.

A: Or in the back bedroom.

Q: Or the back bedroom, okay. The stuff that happened in 

the tub, okay, did it happen in the tub one time or more 

than one time?

A: More than one time.
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 * * *

Q: . . . Tell me about what would happen in the bedroom.

A: He would do that stuff, like, either rub my ladybug or 

belly with that lotion─

 * * *

A: He puts his thing in my front thing.

Q: Uh-huh.

A: I tell him no but he won’t stop.

Q: Okay. What does that feel like?

A: I don’t like it when he does it.

Q: Un-huh.

A: Because he hurts me.

Q: Un-huh.

 * * *

Q: Okay. And you said that this was happening in 1st 

grade?

A: Yeah, when I first started 1st grade.

Q: Okay. All right. Now, what happened that you decided 

to tell mommy.

A: I told her what he was doing to me.

 * * *

Q: . . . Does anything come out of his thing?

A: No.
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 * * *

Q: So I have these picture [sic] so what I’m going to do is 

I’m going to put this here. I’m going to circle body parts 

and if you could tell me what you call me [sic] those parts, 

okay, so I know what you’re talking about for sure. What 

do you call right there?

A: Neck

Q: Neck. What do you call that part?

A: Chest.

 * * *

A: Ladybug.

 * * *

A: Manbug.

 * * *

Q: . . . What made you decide to tell?

A: Because it was really bothering me.

 * * *

Q: . . . [I]t was just kind of bothering you when you 

needed to tell your mom?

A: Uh-huh.

Q: So tell me what you told your mom.

A: I told her the same things that I just told you.

 * * *

A: I told her what I told you because I didn’t remember 

anything else.
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Q: Okay. Do you think more stuff happened that you don’t 

remember?

A: More stuff did happen and I just don’t remember it.

 * * *

Q: Uh-huh. Did you ever tell your mom before that?

A: (Shakes head back and forth).

Q: No.

A: Because he wouldn’t let me up and she was already at 

work.

Q: Uh-huh. What do you mean he wouldn’t let you up?

A: He was on me and he wouldn’t let me up.

Q: What did that feel like with him on you?

A: He was hurting me and I couldn’t breath[e].

Q: Where was─where were you hurting?

A: He was hurting me on the chest because I couldn’t 

breath[e], and I couldn’t breath[e] because he was hurting 

me.

Q: Okay.

A: I couldn’t scream because I couldn’t breath[e].

Q: Uh-huh. And tell me, like, did he have any like─like 

names that he called you or anything that he would tell 

you when that was─when he was doing those things?

A: He was, um─calling me some names─

Q: Uh-huh.

A: ─that he calls mommy when he gets angry.
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Q: Like what?

A: Um, could I just write them down on the paper?

Q: If you want to. Can you write─okay.

A: I really don’t know how to spell the words.

Q: Okay. I think your [sic] spelling bitch?

A: Uh-huh.

Q: Okay, when would he say that to you?

A: He was doing that because I wouldn’t stay still because 

I was trying to get up and he kept calling me that word 

that I just spelled and some other names, like─he was 

saying─he was saying that word.

Q: Okay.

A: And saying to stay still and the end he said this.

Q: Okay. So he was saying─he was saying fuck?

A: He was saying that word─

 * * *

Q: [W]hat body parts were involved?

A: He was using.

Q: His manbug, you’re point [sic] to?

A: On my─

Q: On your ladybug?

A: Uh─huh.

Q: So when he was doing that, like, where were you 

and─like, how was your body and how was his body?
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A: He was on top of me. I was like this laying down on the 

mattress.

Q: Un-huh.

A: And he was like this.

Q: Like─okay.

A: Laying forward on me like this.

Q: Okay. All right, and where was his manbug going?

A: In my thing.

Q: In the front?

A: Uh-huh.

Q: Yeah? And what did that feel like?

A: It felt hard.

Q: Uh-huh.

A: Rusted wood or bark─

Q: Okay.

A: Bark on a tree.

Q: Okay.

A: And it was really hurting me and I told him to stop and he 

wouldn’t stop.

Q: Okay. Did you ever see, like any─anything, like, left on your 

body when he was finished?

A: Nu-huh.

 * * *

Q: . . . So when you were six you told mommy everything?
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A: Yeah.

 * * *

Q: And daddy left?

A: Uh-huh.

Q: Did daddy come back then?

A: Nope. . . .

Id. at 100a, 102a, 105a, 107a, 109a-10a, 113a-15a, 122a, 124a-27a, 130a.

On March 23, 2015, a hearing was held to address Child’s competency 

to testify at trial. At the hearing, Child testified that she was turning eight 

years old. R.R. at 206a.

The Court: Okay. Now, in this case, okay, meaning why 

we’re here, you said that your dad did something to you.

[Child]: (Nods head.)

The Court: Right?

[Child]: Yes.

 * * *

The Court: . . . [H]ow long ago did this stuff happen?

[Child]: When I was in first grade.

The Court: . . . So how many years ago was that . . . ?

[Child]: . . . A year ago.

The Court: . . . How old were you when it happened? Do 

you remember?

[Child]: Six.
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The Court: Six?

[Child]: Actually seven, because it was near the end of the 

year.

 * * *

The Court: . . . And how many times did it happen?

[Child]: Three times.

The Court: Three times?

[Child]: Or more, I don’t remember.

 * * *

The Court: So tell me about the times. Tell me will [sic] 

happened.

[Child]: One time I was sleeping and I woke up because I 

had to go to the bathroom, and I woke up, and when I was 

done my dad told me to get undressed, and he told me to 

get in the bath, and while I was getting a bath he got 

undressed and got in with me.

The Court: Okay.

[Child]: And while we were waiting for the water I was 

being so loud because I was trying to get my mom up, but 

then at last I noticed that my mom wasn’t there and my 

brother was the one that woke up.

The Court: Okay.

[Child]: And my dad got dressed really quick.

 * * *

The Court: And what happened to you when you were in 

the tub with your dad?

[Child]: He was trying to make me sit on his man bug.
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The Court: Okay, what’s that?

[Child]: His front private.

 * * *

The Court: . . . He tried to make you sit on it?

[Child]: (Nods head).

The Court: What part of you?

Child: The─my butt.

 * * *

The Court: . . . And how did he try to make you sit on it?

[Child]: He was forcing me, he was like pushing me down.

 * * *

The Court: [H]ow many times did it happen before you 

told your mom?

[Child]: Three times.

 * * *

And I couldn’t scream or anything like that when he was 

on top of me because he was so heavy, and he was going 

like this on my mouth. And I could barely breath because 

he─

 * * *

The Court: . . . Was this the second time or the third time?

[Child]: The second time it was the bathtub, the first time 

it was this, then the last time it was also this.

 * * *
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The Court: [S]o tell me about those.

 * * *

[Child]: He would always get undressed, and he would 

take my clothes off when I’m sleeping. I know it because I 

always feel it, and then he would get on top of me and do 

this, like cover my nose so I can’t scream or breathe or 

anything, then I pass out, and when he did this a little bit 

later I wake up from him doing this.

 * * *

The Court: What did he do with you before you passed 

out?

[Child]: He would like get on top of me, unzip his pants 

and take then off, take his underwear off, then put his 

front private in my front private.

 * * *

It would feel like hard, and it would go into my front 

private, and it would always be hard─harder, feel like a 

piece of metal.

Id. at 213a-16a.

On October 13, 2015, a hearing was held on the Commonwealth’s 

motion to admit the recorded interview with Child at the CAC as substantive 

evidence pursuant to 42 Pa.C.S. § 5985.1. R.R. at 233a-54a. On October 

14, 2015, the court granted the Commonwealth’s motion. Order, 10/14/15. 

On October 19, 2015, Child testified at the jury trial. She identified 

Appellant as her father. R.R. at 8a. 

[The Commonwealth]: . . . Did something happen with 

your dad . . . that had to do with a bathroom?

 * * *
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[Child]: He would tell me to get undressed, get undressed 

while he was getting undressed. Tell me─he would get in 

the tub, and he would tell me to get in the tub. He would 

tell me to stand up and tell me to sit on his man-bug, but I 

wouldn’t. And he was─he had his hands on my shoulders 

forcing me to sit down on his man-bug.

 

Id. at 9a. Child testified that her mom worked at night and she was home 

with Appellant and her brother. Id. at 10a. Appellant would carry Child 

from her bedroom into the back bedroom. Id.

[The Commonwealth]: . . . What happened in the back 

bedroom?

[Child]: He would tell me to get undressed. He was 

getting undressed, and he told me to get undressed. He 

told me to lay down on my back, so I did. Then he would 

lay down over top of me with his belly facing me. And he 

would lay down on me, and his man-bug would go into my 

lady-bug.

 * * *

Q: What would happen when he did that?

A: He would have my mouth covered, so I couldn’t scream 

out loud.

Q: With what?

A: His hand.

Q: Did you want to scream out loud?

A: Yes. And I was trying to.

Q: . . . What would he do when he would be on top of you 

like that?

A: He would move up and down.
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Q: And you said his man-bug was in your lady-bug?

A: Yes.

Q: And do you remember was it actually inside you?

A: Yes.

Q: And you said he would move up and down?

A: Yes.

Q: And your lady-bug, where on you is your lady-bug?

A: My front private.

Q: And what about you said man-bug, where is a manbug?

A: On a man’s front private.

Q: [W]hat did that feel like when he would have it inside 

your lady-bug?

A: It would hurt.

Q: And you said you tried to scream?

A: Yes.

 * * *

Q: Could you tell him to stop or anything like that?

A: He had my mouth covered, so I couldn’t.

Q: Do you remember how many times this happened in 

the back bedroom?

A: Twice.

Id. at 10a-11a. 
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On October 20, 2015, the jury found Appellant guilty. On January 13, 

2016, Appellant was sentenced to an aggregate term of eighteen to forty 

years’ imprisonment. Appellant filed a post-sentence motion, which was 

denied. This timely appeal followed. Appellant filed a court-ordered 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and the trial 

court filed a responsive opinion.

Appellant raises the following issues for our review:

A. The Commonwealth failed to present sufficient evidence 

to support a conviction for the offenses of rape, statutory 

sexual assault, aggravated indecent assault and incest 

when the Commonwealth’s sole witness failed to offer 

consistent testimony regarding what occurred, when it 

occurred, how many times it occurred, whether it actually 

occurred at all, testified she knows it occurred despite 

sleeping through it because her underwear was inside out 

and demonstrated she does not understand the meaning of 

penetration.

B. The Commonwealth failed to present sufficient evidence 

to support the trial court’s holding that Appellant should be 

classified as a sexually violent predator.

C. The Commonwealth failed to present sufficient evidence 

to support a conviction for the offense of unlawful restraint 

of a minor in accordance with 18 Pa.C.S.A. § 2902(c)(1) 

by failing to offer any evidence that Appellant placed 

[Child] in actual danger of a substantial risk of death or 

serious bodily injury.

D. The trial court erred by denying Appellant’s motion for 

mistrial due to the attorney for the Commonwealth’s 

statements during opening remarks revealing inadmissible 

evidence to the jury which in turn deprived Appellant of a 

fair trial by preventing the jury from weighing and 

rendering a true verdict.
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E. The trial court erred in permitting the Commonwealth to 

admit [Child’s] prior recorded interview as substantive 

evidence in accordance with 42 Pa.C.S.A. § 5985.1.

Appellant’s Brief at 5.

First, Appellant contends that:

the Commonwealth failed to present sufficient evidence to 

support a conviction for the offenses of rape, statutory 

sexual assault, aggravated indecent assault and incest 

when the Commonwealth’s sole witness failed to offer 

consistent testimony regarding what occurred, when it 

occurred, how many times it occurred, whether it actually 

occurred at all, testified she knows it occurred despite 

sleeping through it because her underwear was inside out 

and demonstrated she does not understand the meaning of 

penetration.

 * * *

The inconsistencies within [Child’s] trial testimony and 

her previous testimony are too numerous to detail in full 

without a reading of the entire record. However, there are 

key points necessary to support a conviction that simply 

were not present in the Commonwealth’s case due to 

[Child’s] inconsistent and therefore, unreliable 

testimony.

Id. at 11-12. 

Our review of a sufficiency of the evidence is governed by the following 

principles:

[O]ur scope of review is plenary. Our standard of review is 

de novo. Scope of review refers to the confines within 

which an appellate court must conduct its examination. . . 

. In other words, it refers to the matters (or what) the 

appellate court is allowed to examine. In contrast, 

standard of review refers to the manner in which (or ‘how’) 

that examination is conducted. A standard of review is the 

degree of deference given by the reviewing court to the 

decision under review. In other words, it is the power of 
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the lens through which the appellate court looks at the 

issue in a particular case. 

[T]he critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction . . . does not 

require a court to ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable 

doubt. Instead, it must determine simply whether the 

evidence believed by the fact-finder was sufficient to 

support the verdict. [A]ll of the evidence and any 

inferences drawn therefrom must be viewed in the light 

most favorable to the Commonwealth as the verdict 

winner.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007) 

(quotation marks and citations omitted).

As a prefatory matter, we consider whether Appellant has waived this 

sufficiency of the evidence claim. The issue presented in Appellant’s Rule 

1925(b) statement is as follows: “The evidence presented at trial by the 

Commonwealth was insufficient to support a conviction on Count One, Rape, 

Count Two, Statutory Sexual Assault and Count Three, Aggravated Indecent 

Assault.” Appellant’s Pa.R.A.P. 1925(b) Statement, 3/16/16, at 1. 

[W]hen challenging the sufficiency of the evidence 

on appeal, the [a]ppellant’s 1925 statement must 

“specify the element or elements upon which the 

evidence was insufficient” in order to preserve the 

issue for appeal. Such specificity is of particular 

importance in cases where, as here, the [a]ppellant 

was convicted of multiple crimes each of which 

contains numerous elements that the Commonwealth 

must prove beyond a reasonable doubt. Here, [the 

a]ppellant . . . failed to specify which elements he 

was challenging in his 1925 statement . . . . While 

the trial court did address the topic of sufficiency in 

its opinion, we have held that this is “of no moment 

to our analysis because we apply Pa.R.A.P.1925(b) in 
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a predictable, uniform fashion, not in a selective 

manner dependent on an appellee’s argument or a 

trial court’s choice to address an unpreserved claim.” 

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 

2009) [ ].

Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (some 

citations omitted). 

Analogously, in the instant case, Appellant’s 1925(b) statement fails to 

“specify the element or elements upon which the evidence was insufficient” 

and failed to specify which convictions he was challenging. See id. Thus, 

we could find the issue is waived. See id. We decline to find waiver on this 

basis. 

We consider whether Appellant raises a sufficiency of the evidence 

claim but argues the weight of the evidence. Appellant contends that Child’s 

testimony was inconsistent and unreliable. Appellant’s Brief at 12. In 

Commonwealth v. DeJesus, 860 A.2d 102 (Pa. 2004), our Pennsylvania 

Supreme Court opined:

The [a]ppellant’s claim challenges the weight, not the 

sufficiency, of the evidence. The weight of the evidence is 

exclusively for the finder of fact, which is free to believe 

all, part, or none of the evidence, and to assess the 

credibility of the witnesses. Questions concerning 

inconsistent testimony . . . go to the credibility of the 

witnesses. This Court cannot substitute its judgment for 

that of the jury on issues of credibility.

 * * *

As we will not disturb the jury's credibility determinations, 

this claim fails.
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Id. at 107 (citations omitted and emphasis added). Analogously, Appellant’s 

claim challenges the weight of the evidence.12 See id. We cannot 

substitute our judgment for that of the jury. See id. This claim fails. See 

id. 

Next, Appellant avers that the Commonwealth failed to present 

sufficient evidence to support the trial court’s holding that Appellant should 

be classified as a sexually violent predator (“SVP”). He contends that “the 

report issued by psychologist C. Townsend Velkoff and the testimony offered 

by the Commonwealth prior to sentencing on January 13, 2016[,] reveals 

the Commonwealth failed to meet their burden in several respects.” 

Appellant’s Brief at 17. Appellant argues that Velkoff “failed to adequately 

consider the best evidence available to establish the nature and 

circumstances of the offense” pursuant to 42 Pa.C.S. § 9795.4. Id. at 18. 

He claims Velkoff’s testimony ignored the statutory criteria for establishing a

mental abnormality. Id. Velkoff “ignored the definition of predator set forth 

in 42 Pa.C.S.A. § 9792.” Id. at 19.

A challenge to a determination of SVP status requires us to 

view the evidence

in the light most favorable to the Commonwealth. 

The reviewing court may not weigh the evidence or 

substitute its judgment for that of the trial court. 

 

12 We note that Appellant did not raise the issue of the weight of the 

evidence to support a conviction for rape, statutory sexual assault or 

aggravated indecent assault in his Rule 1925(b) statement. 
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The clear and convincing standard requires evidence 

that is so clear, direct, weighty and convincing as to 

enable [the trier of fact] to come to a clear 

conviction, without hesitancy, of the truth of the 

precise facts [at] issue.

The scope of review is plenary. [A]n expert’s opinion, 

which is rendered to a reasonable degree of professional 

certainty, is itself evidence.

A challenge to the sufficiency of the evidence to support 

an SVP designation requires the reviewing court to accept 

the undiminished record of the case in the light most 

favorable to the Commonwealth. The reviewing court 

must examine all of the Commonwealth’s evidence without 

consideration of its admissibility. A successful sufficiency 

challenge can lead to an outright grant of relief such as a 

reversal of the SVP designation, whereas a challenge to 

the admissibility of the expert’s opinion and testimony is 

an evidentiary question which, if successful, can lead to a 

new SVP hearing. 

Commonwealth v. Prendes, 97 A.3d 337, 355-56 (Pa. Super.) (citations 

and quotation marks omitted), appeal denied, 105 A.3d 736 (Pa. 2014). 

The basis for a determination that an individual is a SVP is statutory. Id. at 

357. 

Therefore, the salient statutory inquiry for SVP 

designation:

[I]s identification of the impetus behind the 

commission of the offense; that is, whether it 

proceeds from a mental defect/personality disorder 

or another motivating factor. The answer to that 

question determines, at least theoretically, the 

extent to which the offender is likely to reoffend, and 

[S]ection [9799.24] provides the criteria by which 

such likelihood may be gauged.

To deem an individual a sexually violent predator, the 

Commonwealth must first show [the individual] has been 
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convicted of a sexually violent offense as set forth in 

[section 9799.14]. . . . See also 42 Pa.C.S.A. § 

9799.12.[13] Secondly, the Commonwealth must show that 

the individual has a mental abnormality[14] or personality 

disorder that makes [him] likely to engage in predatory 

sexually violent offenses. When the Commonwealth meets 

this burden, the trial court then makes the final 

determination on the defendant’s status as an SVP. 

Id. at 357-58 (quotation marks and some citations omitted). 

Section 9799.24 provides:

(b) Assessment.─Upon receipt from the court of an order 

for an assessment, a member of the board as designated 

by the administrative officer of the board shall conduct an 

assessment of the individual to determine if the individual 

should be classified as a sexually violent predator. The 

board shall establish standards for evaluations and for 

evaluators conducting the assessments. An assessment 

shall include, but not be limited to, an examination of the 

following:

(1) Facts of the current offense, including:

(i) Whether the offense involved multiple victims.

(ii) Whether the individual exceeded the means 

necessary to achieve the offense.

 

13 An SVP is defined as a person “who, on or after the effective date of this 

subchapter, is determined to be a sexually violent predator under section 

9799.24 (relating to assessments) due to a mental abnormality or 

personality disorder that makes the individual likely to engage in predatory 

sexually violent offenses.” 42 Pa.C.S. § 9799.12. 

14 Mental abnormality is defined as a “congenital or acquired condition of a 

person that affects the emotional or volitional capacity of the person in a 

manner that predisposes that person to the commission of criminal sexual 

acts to a degree that makes the person a menace to the health and safety of 

other persons.” 42 Pa.C.S. § 9799.12.
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(iii) The nature of the sexual contact with the victim.

(iv) Relationship of the individual to the victim.

(v) Age of the victim.

(vi) Whether the offense included a display of 

unusual cruelty by the individual during the 

commission of the crime.

(vii) The mental capacity of the victim.

(2) Prior offense history, including:

(i) The individual's prior criminal record.

(ii) Whether the individual completed any prior 

sentences.

(iii) Whether the individual participated in available 

programs for sexual offenders.

(3) Characteristics of the individual, including:

(i) Age.

(ii) Use of illegal drugs.

(iii) Any mental illness, mental disability or mental 

abnormality.

(iv) Behavioral characteristics that contribute to the 

individual's conduct.

(4) Factors that are supported in a sexual offender 

assessment field as criteria reasonably related to the 

risk of reoffense.

42 Pa.C.S. § 9799.24. 

In Commonwealth v. Brooks, 7 A.3d 852 (Pa. Super. 2010), this 

Court opined:
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[W]ith regard to the various assessment factors 

listed in Section 9795.4,[15]there is no statutory 

requirement that all of them or any particular 

number of them be present or absent in order 

to support an SVP designation. The factors are 

not a check list with each one weighing in some 

necessary fashion for or against SVP designation. 

Rather, the presence or absence of one or more 

factors might simply suggest the presence or 

absence of one or more particular types of mental 

abnormalities.

Thus, while the Board is to examine all the factors 

listed under Section 9795.4, the Commonwealth 

does not have to show that any certain factor is 

present or absent in a particular case. Rather, the 

question for the SVP court is whether the 

Commonwealth’s evidence, including the Board’s 

assessment, shows that the person convicted of a 

sexually violent offense has a mental abnormality or 

disorder making that person likely to engage in 

predatory sexually violent offenses. Having 

conducted a hearing and considered the evidence 

presented to it, the court then decides whether a 

defendant is to be designated an SVP and thus made 

subject to the registration requirements of 42 

Pa.C.S.A. § 9795.1(b)(3).

Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. 

Super. 2008) (citations omitted). In discussing the 

absence of certain statutory factors and discussing the 

facts of other cases, [the a]ppellant is essentially asking 

this Court to reweigh them. This we cannot do. See 

generally, Commonwealth v. Meals, [ ] 912 A.2d 213 

([Pa.] 2006) (holding that this Court erred in reweighing 

the SVP evidence presented to the trial court; “the 

Superior Court stepped beyond its authority when it 

reweighed the evidence, giving more weight to the ‘absent’ 

 

15 We note that 42 Pa.C.S. § 9795.1 and § 9795.4 expired on December 20, 

2012. See 42 Pa.C.S. § 9799.41. Section 9799.24 is virtually identical to 

Section 9795.4.
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factors than those found and relied upon by the trial 

court”).

Id. at 863 (some citations omitted and emphasis added).

C. Townsend Velkoff, a licensed psychologist, testified at the hearing 

on January 13, 2016, as to the following. He: 

was provided with material from the assessment board 

investigator that included the Pennsylvania state police 

incident report and investigative report, the criminal 

charges and complaint, the affidavit of probable cause, the 

Lycoming County Child Protective Services record, the 

Childline report.[16] It included a protection from abuse 

order, and it also included information about [Appellant’s] 

prior offense from New York State. There was an incident 

report of that from New York State.

R.R. at 68a. In making a SVP assessment, he considered whether Appellant 

“display[ed] a personality disorder, a mental abnormality disorder and also 

whether he has displayed predatory behavior.” Id. at 69a. He indicated 

there are fourteen factors that are considered. Id.

[I]f an individual has offended a child or has a pattern of 

offending behavior related to prepubescent children, that’s 

significant with regard to risk for re-offense because the 

literature is very clear that individuals who display sexual 

interest in children have a much higher risk of re-offense 

than those that do not have that interest.

 

16 The Childline report is referred to by Trooper Tyson Havens of the 

Pennsylvania State Police. He testified that he had very little information 

when he interviewed Appellant on August 19, 2014. The information he had 

“was on the fax from Children & Youth which was basically what the aunt 

had told the Childline or Children & Youth caller when─I think it’s [Mother’s] 

aunt made the initial call.” R.R. at 51a.
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Id. He testified that Appellant molested his prepubescent seven-year-old17

daughter. Id. The age of the child is related “in a very significant way” to 

mental abnormality. Id. 

[W]ith regard to finding mental abnormality [he] 

considered whether [Appellant met] any diagnostic criteria 

from the Diagnostic and Statistical Manual of Mental 

Disorders that would document whether he displays or 

meets diagnostic criteria for one of the paraphilias. And in 

this case, because he was molesting his daughter for well 

more than six months, he met diagnostic criteria for 

pedophilic disorder which support the conclusion that he 

has a mental abnormality. 

 * * *

[Appellant] does display pedophilic disorder and the 

mental abnormality aspect of the definition of sexually 

violent predator, it’s assumed then that [he] displays a 

lifetime condition and that this condition overrode his 

emotional and volitional control, thus resulting in the 

offending behavior.

 * * *

There was evidence of predatory behavior as described in 

the file material with respect to him waiting until his wife 

was out of the home before initiating this behavior with his 

daughter . . . . 

Id. at 69a-70a.

Appellant had prior criminal offenses, both sexual and non-sexual. Id.

at 69a. He had driving offenses and he was charged with forceable 

 

17 We note that the docket indicates the date of the offense was July 1, 

2013. Child testified she was six years old when she told her mom what had 

happened. R.R. at 130a. Child testified on October 19, 2015 that she was 

eight years old. R.R. at 7a.
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touching in New York for fondling his sister-in-law. Id. His overall 

professional opinion was that Appellant met the criteria to be classified as an 

SVP. Id. at 70a. This opinion was rendered within a reasonable degree of 

professional certainty. Id. 

Appellant was not using illegal substances. Velkoff considered this fact 

in the assessment.

[T]he fact that he wasn’t using illegal substances during 

the commission of these offenses would mean that he’s 

acting from a sober state. In other words, it can’t be 

argued that he was acting impulsively because he was 

impaired. Instead he was acting impulsively because of 

some erotic urge. So in terms of my assessment of him 

based on the file material, I would see the lack of use of 

illegal substances as slightly more risky.

Id. at 75a.

The trial court opined:

As far as the finding that [Appellant] is a sexually 

violent predator, such was based on evidence offered by 

the Commonwealth at a hearing on January 13, 2016, 

specifically the expert opinion of [Velkoff] who was 

qualified by the court as an expert in this area. Of special 

significance to Mr. Velkoff’s opinion were the facts that the 

victim was seven years old, which supported his conclusion 

that there was a high risk of re-offense, and that the 

offenses took place over a period of more than six months, 

which supported a finding of pedophilic disorder, a mental 

abnormality. He also considered that [Appellant] had a 

prior conviction involving a sexual offense, and that he 

displayed predatory and manipulative behavior.

Trial Ct. Op., 3/17/16, at 4-5.

Velcoff considered whether Appellant displayed a personality disorder, 

a mental abnormality disorder, and also whether he displayed predatory 
J-S53038-16

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behavior. See Prendes, 97 A.3d at 357-58. He opined that Appellant had 

a high risk of re-offense. See id. He considered the statutory factors. See

42 Pa.C.S. §§ 9799.12, 24; Brooks, 7 A.3d at 863. Velcoff concluded that 

Appellant met the criteria to be classified as an SVP. See 42 Pa.C.S. § 

9799.24; Brooks, 7 A.3d at 863. Viewing the evidence in the light most 

favorable to the Commonwealth, we find the evidence was sufficient to 

support Appellant’s SVP designation. See Prendes, 97 A.3d at 355-56.

Third, Appellant contends “the Commonwealth failed to present 

sufficient evidence to support a conviction for the offense of unlawful 

restraint of a minor in accordance with 18 Pa.C.S.A. § 2902(c)(1) by failing 

to offer any evidence that Appellant placed [Child] in actual danger of a 

substantial risk of death or serious bodily injury.” Appellant’s Brief at 20.

As noted above, the standard of review for a challenge to the 

sufficiency of the evidence is de novo. Ratsamy, 934 A.2d at 1235.

Section 2902(c)(1) of the Crimes Code provides:

(c) Unlawful restraint of minor where offender is 

victim's parent.─If the victim is a person under 18 years 

of age, a parent of the victim commits a felony of the 

second degree if he knowingly:

(1) restrains another unlawfully in circumstances 

exposing him to risk of serious bodily injury[.]

18 Pa.C.S. § 2902(c)(1). Serious bodily injury is defined as “[b]odily injury 

which creates a substantial risk of death or which causes serious, permanent 
J-S53038-16

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disfigurement, or protracted loss or impairment of the function of any bodily 

member or organ.” 18 Pa.C.S. § 2301.18

The trial court opined:

The Commonwealth argues that the evidence that 

[Appellant’s] body weight on top of [Child’s] body during 

the intercourse caused [Child] to not be able to breathe 

and thus exposed her to the risk of suffocation, was 

sufficient to support the charge. The court agrees. [Child] 

testified that “I couldn’t scream or anything like that when 

he was on top of me because he was so heavy, and he was 

going like this on my mouth. And I could barely breathe,” 

and that [Appellant] “would get on top of me and do this, 

like cover my nose so I can’t scream or breathe or 

anything, then I pass out, and when he did this a little bit 

later I wake up from him doing this.” She also stated in an 

interview, a videotape of which was shown to the jury, that 

she couldn’t breathe because her father was hurting her, 

and she couldn’t scream because she couldn’t breathe. 

The evidence that [Appellant’s] restraint of [Child] with his 

body weight and by covering her mouth caused her to pass 

out is clearly sufficient to support a finding that there was 

an “actual danger of harm.”

Trial Ct. Op., 2/22/16, at 2 (citations and footnote omitted). 

Appellant exposed Child to the risk of suffocation that creates a 

substantial risk of death or serious bodily injury. See 18 Pa.C.S. § 

2902(c)(1). We find the evidence was sufficient to support a conviction for 

unlawful restraint of a minor. See 18 Pa.C.S. § 2902(c)(1); Ratsamy, 934 

A.2d at 1235.

 

18 We note that Appellant cites 18 Pa.C.S. § 2602 for the definition of serious 

bodily injury. Chapter 26 refers to “Crimes Against Unborn Child.” 
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In his fourth issue, Appellant claims the trial court erred in denying his 

motion for a mistrial due to the Commonwealth’s statement during the 

opening argument that revealed inadmissible evidence to the jury, viz., that 

Child’s mother got a protection from abuse act (“PFA”) order against 

Appellant. Appellant’s Brief at 22. Appellant contends that this reference to 

the PFA “strongly suggests the jurors would conclude a prior court or even a 

prior jury had already determined Appellant committed these offenses.” Id.

at 23. 

Our standard of review of a trial court’s refusal to grant a request for a 

mistrial is well established:

The decision to declare a mistrial is within the sound 

discretion of the court and will not be reversed 

absent a flagrant abuse of discretion. A mistrial is 

an extreme remedy . . . [that] . . . must be granted 

only when an incident is of such a nature that its 

unavoidable effect is to deprive defendant of a fair 

trial. A trial court may remove taint caused by 

improper testimony through curative 

instructions. Courts must consider all surrounding 

circumstances before finding that curative 

instructions were insufficient and the extreme 

remedy of a mistrial is required. The circumstances 

which the court must consider include whether the 

improper remark was intentionally elicited by the 

Commonwealth, whether the answer was responsive 

to the question posed, whether the Commonwealth 

exploited the reference, and whether the curative 

instruction was appropriate. 

Commonwealth v. Bracey, 831 A.2d 678, 682-83 (Pa. Super. 2003) 

(emphasis added and quotation marks and citations omitted).

During opening remarks to the jury, the Commonwealth stated:
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Finally, [Child will] tell you that when she had had 

enough, because it was really bothering her, she went to 

her mom . . . . She went to her mother while her mother 

was cooking breakfast, and she said I don’t want daddy 

sleeping with me anymore. Why not? Because daddy is 

touching me. You’ll hear that [Mother] immediately threw 

[Appellant] out of the house. You’ll hear that she got a 

PFA. [Appellant] eventually was arrested.

Now, you’re going to see the interview with Trooper 

Havens of when [Appellant] was arrested; and you’re 

going to hear he doesn’t exactly come out and admit what 

happened because he can’t bring himself to say what he 

did to his daughter. You’re not going to hear the words I 

did such and such from him.

But you’re going to have to listen to the words carefully, 

and you will realize the words he does say exactly convey 

that message. Not only those words, but the words that 

he said to Children & Youth worker Elizabeth Spagnuolo 

when she called him on the phone to talk to him about the 

allegations, the words that he said to Sheriff’s Deputy 

Brian Rockwell when he served the PFA to [Appellant], and 

the words and notes that he left behind for the children 

after he moved out and they came back to the home that 

were found by her mother. 

Now, more importantly, during the trial today you’re 

going to hear the words of [Child], the eight-year-old little 

girl. You’re going to hear her testimony today, and you’re 

also going to see her testimony from when she was 

interviewed by a forensic interviewer at the Children’s 

Advocacy Center in Northumberland County right after this 

happened.

And keep in mind, ladies and gentlemen, this is an 

eight-year-old testifying. She may not say things in the 

terms that you and I would because obviously we’re using 

adult terms. I’m just asking you to carefully listen to her, 

as you will all witnesses; and in the end you will be 

convinced beyond a reasonable doubt that [Appellant] is 

guilty. And I’ll be coming back and asking you to render 

that verdict. Thank you. 
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R.R. at 3a.

The court held an on-the-record sidebar discussion, out of the 

presence of the jury. Defense counsel objected to the Commonwealth’s 

mention of the PFA and asked for a mistrial. Id. The court denied the 

request and stated it would give a curative instruction. Id. The court gave 

the following instruction:

Ladies and gentlemen, during her opening statement 

[the Commonwealth] mentioned to you that there was a 

PFA. A PFA is what they call a Protection From Abuse Act. 

It is a civil proceeding and perhaps has nothing to do with 

this case directly, and no negative inferences can be taken 

against [Appellant] as a result of the PFA. And you are 

instructed that you are to give that no weight other than 

the fact that it was one of the things in the succession of 

events that occurred with respect to the actions of 

[Appellant’s] wife.

R.R. at 4a.

Child’s mother testified at trial and the Commonwealth did not 

reference the PFA. The Commonwealth asked Mother what she did after 

Child made “a complaint concerning what this trial is about[.]” R.R. at 29a. 

[The Commonwealth]: And what did you do when she 

came to you and told you that?

A: I went and confronted [Appellant].

 * * *

I went and confronted him about it, and he tried to deny it 

at first.

Q: Well, what did you say?
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A: I asked him what he had been doing to our daughter. 

And then he said that he inappropriately touched her, but 

it wouldn’t happen again. I told him to get out, that he 

was supposed to be her father, not doing those things to 

her. He was supposed to be protecting her.

Q: Now, subsequently you would have─you would have left 

the house with the children?

A: I did.

Q: And at some point did you come back when he was no 

longer staying there?

A: I did.

R.R. at 29a-30a.

The trial court opined:

As it turns out, the Commonwealth did not subsequently 

introduce any evidence of the PFA, but elicited from 

[Child’s] mother only that she “told him to get out” and 

that she left the house with the children and returned only 

after [Appellant] was no longer staying there. Thus, in 

light of the court’s prior instruction to the jury that the 

statements and arguments of counsel are not evidence, 

the court believes the jury did not consider the matter at 

all, let alone give it undue weight. The statement was 

insignificant in the context of a consideration of all of the 

evidence, and clearly did not deprive [Appellant] of a fair 

trial.

Trial Ct. Op., 2/22/16, at 6-7 (footnote and citation omitted).

The trial court gave a curative instruction to the jury that removed any 

possible taint by the prosecutor’s reference to the PFA. See Bracey, 831 

A.2d at 682-83. We discern no abuse of discretion by the trial court in 

denying the motion for a mistrial. See id.
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Lastly, Appellant contends “the trial court erred in permitting the 

Commonwealth to admit [Child’s] prior recorded interview as substantive 

evidence in accordance with 42 Pa.C.S.A. § 5985.1.” Appellant’s Brief at 24. 

Appellant avers that “[t]he statements in question, and [Child’s] statements 

in general, do not possess consistency in repetition and further suggest the 

mental state of the declarant is that of someone who is incapable of 

understanding the truth.” Id. at 26.

On October 14, 2015, the trial court granted the Commonwealth’s 

motion to admit the recorded interview. The trial court opined:

Here [Child] testified at trial and thus the only issue 

presented by the motion was whether there were sufficient 

indicia of reliability. . . .

 

The interview was conducted by Sherry Moroz in a room 

at the Children’s Advocacy Center and was videotaped, 

although it appears that [Child] was unaware that she was 

being taped. Ms. Moroz usually asked rather general 

questions like, “is someone worried that something has 

happened with you?”, “What kinds of things happened?”, 

“do you remember what happened?”, and “tell me about 

that”. And when she did ask a more specific question, 

such as (in response to [Child] stating “he was touching 

me”), “who was touching you?”, she never suggested an 

answer. While the statements were not spontaneous in 

the sense of being blurted out for no apparent reason, they 

were given in response to such vague prompts that the 

court finds spontaneity sufficient to support reliability.

[Child] was consistent in repetition. . . . While she

stated at other times, in court hearing, that more things 

happened than she talked about in the interview, at that 

interview she told Ms. Moroz that she knew other things 

had happened but could not remember what they were. 

Her statement was thus consistent with even other 

statements given subsequently. 
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[Child’s] mental state during the interview was calm; 

her demeanor was very matter-of-fact and she was not 

emotional. While she expressed hesitation to say certain 

things out loud or at all, preferring to write them down 

(the word “sex” and two “swear words”), this did not seem 

to upset her. She described other events (which have 

been described by others and thus provide a basis to 

conclude they are accurate) with clarity and accuracy and 

thus indicated that her mental state was clear and 

unaffected.

[Child] used terms expected to be used by children her 

age, such as “ladybug” and “manbug” rather than correct 

anatomical terms. This suggests that she was describing 

the events in her own words and that she had not been 

coached.

Finally, there was no evidence of any motive to 

fabricate.

Therefore, the court believes it correctly admitted the 

interview as substantive evidence under section 5985.1, 

and [Appellant] is not entitled to a new trial on that basis.

Trial Ct. Op., 2/22/16, at 8-9. 

Our review is governed by the following principles:

An appellate court’s standard of review of a trial court’s 

evidentiary rulings, including rulings on the admission of 

hearsay and determinations of witness competency, is 

abuse of discretion. However, issues of statutory 

interpretation are questions of law, over which our 

standard of review is de novo and our scope of review is 

plenary. 

Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. Super. 2014) (citations 

omitted).19

 

19 We note that the Pennsylvania Supreme Court in Walter
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Section 5985.1 provides:

(a) General rule.─An out-of-court statement made by a 

child victim or witness, who at the time the statement was 

made was 12 years of age or younger, describing any of 

the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to 

criminal homicide), 27 (relating to assault), 29 (relating to 

kidnapping), 31 (relating to sexual offenses), 35 (relating 

to burglary and other criminal intrusion) and 37 (relating 

to robbery), not otherwise admissible by statute or rule of 

evidence, is admissible in evidence in any criminal or civil 

proceeding if:

(1) the court finds, in an in camera hearing, that the 

evidence is relevant and that the time, content and 

circumstances of the statement provide sufficient indicia 

of reliability; and

(2) the child either:

(i) testifies at the proceeding; or

(ii) is unavailable as a witness.

 

Consider[ed] whether the Superior Court erred in holding 

the trial court was required to determine that the child 

victim was competent to testify under Pa.R.E. 601 prior to 

admitting her out-of-court statements into evidence 

pursuant to the Tender Years Hearsay Act (“TYHA”), 42 

Pa.C.S.A. § 5985.1. We hold that a determination of a 

child’s competency pursuant to Rule 601 is not a 

prerequisite to the admission of hearsay statements under 

the TYHA, and, therefore, we reverse the decision of the 

Superior Court and remand for further proceedings.

Id. at 444-45. We note that in the case sub juice there was a competency 

hearing. See R.R. at 205a-224a.
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42 Pa.C.S. § 5985.1(a)(1)-(2)(i-ii).

The Walter Court opined:

the TYHA concerns the admissibility of out-of-court 

statements made by a child victim or witness to third 

parties. The admissibility of this type of hearsay is 

determined by assessing the particularized guarantees of 

trustworthiness surrounding the circumstances under 

which the statements were uttered to the person who is 

testifying. To determine whether a child’s out-of-court 

statements are admissible under the TYHA,

a trial court must assess the relevancy of the 

statements and their reliability in accordance with 

the test enunciated in Idaho v. Wright, [497 U.S. 

805 (1990)]. Although the test is not exclusive, the 

most obvious factors to be considered include 

the spontaneity of the statements, consistency 

in repetition, the mental state of the declarant, 

use of terms unexpected in children of that age 

and the lack of a motive to fabricate.

Walter, 93 A.3d at 451 (quotation marks and some citations omitted and 

emphasis added). “The tender years statute creates an exception to the 

hearsay rule in recognition of the fragile nature of young victims of sexual 

abuse.” Commonwealth v. Curley, 910 A.2d 692, 697 (Pa. Super. 2006) 

(quotation marks and citation omitted).

In the case sub judice, Child testified at trial. Therefore, as the trial 

court found, the only issue was whether the Walter test was satisfied. The 

record substantiates the trial court’s findings of sufficient spontaneity, Child 

was consistent in repetition, her mental state was calm, Child used terms 

expected of children her age, and there was no evidence of a motive to 
J-S53038-16

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fabricate. We discern no abuse of discretion or error of law. See Walter, 

93 A.3d at 449; Curley, 910 A.2d at 697.

For all of the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/15/2016