J. S48023/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COUR T OF : PENNSYLVANIA : v. : : ALLEN MICHAEL YORK, : Appellant : : No. 1671 WDA 2015

Appeal from the Judgment of Sentence February 11, 2 013 In the Court of Common Pleas of McKean County Criminal Division No(s): CP-42-CR-0000237-2012

BEFORE: BOWES, DUBOW, and MUSMANNO, JJ. MEMORANDUM BY DUBOW, J.: FILED OCTOBER 26, 2016 Appellant, Allen Michael York, appeals from the Feb ruary 11, 2013 Judgment of Sentence, 1 entered in the McKean County Court of Common Pleas following his jury conviction of Involuntary Deviate Sexual Intercourse Person Less than 16 Years of Age and Indecent Assau lt Person Less than 16 years of Age. 2 We affirm the convictions, but remand for resente ncing. The facts, as gleaned from the trial transcript, ar e as follows. On June 25, 2011, when he was 15 years old, D.B. (“the Vict im”) and his friend C.A., met up with Appellant, who was 19 years old. After smoking marijuana, the

1 The trial court initially entered a Judgment of Se ntence on February 6, 2013, but entered an amended Judgment of Sentence o n the docket on February 11, 2013.

2 18 Pa.C.S. § 3123(a)(7) and 18 Pa.C.S. § 3126(a)(8 ), respectively.J.S48023/16

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three of them went to C.A.’s house, where they play ed video games in C.A.’s bedroom, before turning out the lights to sleep. T here were two beds in C.A.’s bedroom. After the lights were turned out, Appellant asked the Victim whether he ever thought about being bisexual. Appe llant then told the

Victim to come into the bed with him and demanded o ral sex. The Victim testified that he did as Appellant directed because he was afraid of Appellant hurting him. Appellant then told him not to tell anyone what had happened or he would hurt the Victim. The Victim tried to forget the incident with Appellant because, “bad stuff like that I try to forget.” N. T., 10/23/12, at 157, 169. The Victim did not want to tell anyone what happene d, but C.A. told him to report the incident to the police. C.A. did not he ar or see anything that happened between the Victim and Appellant. See N.T. at 93-194. On July 7, 2011, Corporal Timothy Lencer conducted a recorded

interview of the Victim and obtained the Victim’s w ritten statement. The audio recording of the interview was subsequently l ost and, thus, not produced to either Appellant or the Commonwealth. The Commonwealth charged Appellant with the above c rimes on March 5, 2012. 3 The trial court appointed Appellant counsel on Ma y 31, 2012.

3 The Commonwealth also charged Appellant with nine other crimes related to the events of June 25, 2011. The trial court di smissed those charges upon Appellant’s motion during his trial.J.S48023/16

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At Appellant’s October 18, 2012 Pre-Trial Conferenc e, five days before his trial was scheduled to begin, Appellant filed a “Motion to Continue BackUp Jury Selection and Trial,” seeking more time to prepare for trial, which

the trial court denied. 4 Appellant also made an oral motion at the Pre-Trial Conference requesting the production of the Victim’s and C.A.’ s records from Juvenile Probation and McKean County Children and Youth Serv ices (“CYS”). C The trial court denied this motion on October 19, 2012, but after Appellant filed a Motion to Reconsider, the trial court ordered both the Juvenile Probation department and CYS to provide the court with any re cords it may have in its possession with respect to the Victim and C.A. for an in camera review. Trial Ct. Order, 10/22/2012. Also on October 22, 2012, Appellant filed a written “Motion to

Reconsider Motion to Continue Trial.” On October 2 3, 2012, Appellant filed a “Motion to Consider and[/]or Se[]cond Request to Re consider Motion to Continue Trial.” In these Motions, Appellant again asserted his need for more time to prepare for trial by interviewing and locating witnesses, and noted that the police had not turned over the Victi m’s recorded statement, and the police had been unable to find it.

4 Appellant represents in his Motion for Reconsidera tion that his Motion to Continue “was denied on the record at the Pre-[T]ri al Conference held [on October 18, 2012].” Mot. to Recons., 10/22/2012, a t 1 (unpaginated). The certified record does not contain a transcript of A ppellant’s October 18, 2012 Pre-Trial Conference.J.S48023/16

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The trial court denied these Motions, noting that i t had “resolved the issue of the release of witness/victim juvenile rec ords by review of both [McKean County] Juvenile Probation and Children and Youth in camera ; and [ ] determined [that] the availability of a tape of a witness statement and the availability of two witnesses is speculative.” Trial Ct. Order (A), 10/23/2012. In a separate order, the trial court specifically p recluded as irrelevant

the information contained in C.A.’s CYS and Juvenil e Probation records. However, the trial court released C.A.’s juvenile d ockets with instructions that the parties hold them in the “strictest confid ence” and not divulge their contents to any other person or in any manner to th e jury. Trial Ct. Order (B), 10/23/2012; see also Trial Ct. Op., 1/28/16, at 6-7. The trial court noted that neither Juvenile Probation department no r CYS had any records

related to the Victim. Trial began on October 23, 2012. Before the commen cement of proceedings that day, Appellant filed a written “Mo tion in Limine and to Dismiss” in which he argued that, because the polic e or the Commonwealth lost the recording of the Victim’s statement, the c ourt should preclude the Victim’s from testifying at trial and dismiss the c harges with prejudice. In the alternative, Appellant asked for a continuance so that he could ascertain the circumstances surrounding the unavailability of the recording. The trial

court denied the Motion.J.S48023/16

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At trial, the Victim, C.A., and three Pennsylvania State Troopers, Lance Schimp, Michael Britton, and Corporal Timothy Lence r, testified on behalf of the Commonwealth. Appellant presented the testimon y of two witnesses: Shannon York (Appellant’s father) and Wendy Vancise

. On the second day of trial, October 24, 2012, Appel lant submitted a Proposed Jury Instruction addressing the Commonweal th’s failure to produce the recording of the Victim’s police interview. Th e trial court rejected Appellant’s request for an adverse instruction. Following the two-day trial, the jury convicted App ellant of Involuntary

Deviate Sexual Intercourse and Indecent Assault. Th e Sexual Offenders Assessment Board assessed Appellant and determined that he was not a sexually violent predator. The trial court sentenc ed Appellant to a term of ten to twenty years’ incarceration on the Involunta ry Deviate Sexual Intercourse conviction, 5 and to lifetime registration pursuant to Sexual Offender Registration and Notification Act (“SORNA” ), 42 Pa.C.S. § 9599, et

seq . Appellant filed a Post-Sentence Motion on Februa ry 4, 2013, in which he, inter alia , challenged the weight the jury gave to the Common wealth’s evidence, and asserted a claim for credit for time served on a separate and unrelated offense. The Motion was denied by operat ion of law on May 30,

2013.

5 Appellant’s conviction of Indecent Assault merged with the Involuntary Deviate Sexual Intercourse conviction for purposes of sentencing.J.S48023/16

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Appellant did not file a direct appeal. However, o n May 28, 2014, Appellant filed a timely petition pursuant to the P ost Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541, et seq ., alleging trial counsel was ineffective in failing to file a direct appeal as requested by Appellant. Following the appointment of counsel and a hearing, the trial cou rt granted Appellant’s PCRA Petition on September 28, 2015, and reinstated Appellant’s direct appeal rights nunc pro tunc . This timely appeal followed on October 23, 2015. Both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant raises the following eight issues for our review, which we have reordered for ease of disposition:

1. Did the trial court err in denying [Appellant’s] motions to continue trial, when Counsel had very recently b een provided with names and contact information of seve ral potential witnesses, and was requesting additional time to interview and investigate these witnesses; when the re had been no prior continuances of the trial by either s ide; when one intended defense witness was unavailable on the day of trial and when the information presented by thes e witnesses would have been exculpatory to [Appellant ]. 2. Did the trial court err in denying discovery reg arding (a) the release of the juvenile files of the minors C.A . and D.B., including court-mandated psychological evalua tion and other information, citing lack of consent by th e juveniles to the release of this information when s uch information was prepared for purposes of [c]ourt an d not as part of individual treatment, and when such info rmation would have been exculpatory to [Appellant]; and (b) Juvenile Probation and Children and Youth Services records concerning C.A. and [the Victim’s] alleged involvem ent in two incidents related to the instant matter, one in volving damage to tangible property and another involving a n alleged sexual offense by C.A., and information con cerning the investigation of the instant matter, when suchJ.S48023/16

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- information would have revealed a motive to lie and would have been exculpatory to [Appellant] in the instant matter. 3. Did the trial court err in prohibiting the intro duction of prior bad acts evidence with respect to a material witness, C.A., a minor, and [the Victim], the alleged victim concerning their involvement in a criminal mischief incident and an alleged sexual assault when such evidence wo uld have shown that the juveniles had a motive to fabri cate and would have been exculpatory to [Appellant]. 4. Did the trial court err in admitting into eviden ce, over objection, the testimony of the alleged victim beca use the audio recording of an interview of the alleged vict im was not produced in discovery, despite numerous request s for same, when testimony was adduced at trial that the recording was made and lost and, as such, [Appellan t] was deprived of his right to a fair trial, right to con front the witnesses against him and due process of law under the federal and state constitutions. 5. Did the trial court err in failing to instruct t he jury with the “missing evidence instruction” on the failure o f the Commonwealth to produce the recording of the interv iew with the alleged victim, when such instruction was warranted by the evidence adduced, and the failure to so instruct was unduly prejudicial to [Appellant]. 6. Is the guilty verdict for [Involuntary] Deviate Sexual Intercourse against the weight of the evidence to s uch an extent as to shock one’s sense of justice because t he testimony of both the alleged victim and the other juvenile were both internally inconsistent and inconsistent with one another, and were also inconsistent with the remain ing evidence presented at trial, including the alleged victim’s and witness’ own prior testimony and statements concerning the events; when there was no prompt reporting of the alleged incident; when several day s elapsed between the alleged incident and any interv iew with the police; when the alleged victim had to be reminded to tell anyone; and when the alleged victi m’s testimony was so wholly lacking in credibility that no reasonable jury could have found him credible.J.S48023/16

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- 7. Is the guilty verdict for Indecent Assault again st the weight of the evidence to such an extent as to shoc k one’s sense of justice because the testimony of both the alleged victim and the other juvenile were both internally inconsistent and inconsistent with one another, and were also inconsistent with the remaining evidence prese nted at trial, including the alleged victim’s and witness’ own prior testimony and statements concerning the events; whe n there was no prompt reporting of the alleged incide nt; when several days elapsed between the alleged incid ent and any interview with the police; when the alleged victim had to be reminded to tell anyone; and when the all eged victim’s testimony was so wholly lacking in credibi lity that no reasonable jury could have found him credible. 8. Was [Appellant’s] sentence illegal when (a) the trial court denied [Appellant] credit for time served fro m April 19, 2011 to May 27, 2011, on charges at Docket No. CP42-CR-0000250-2011, when the charges at such docket number were dismissed by the Commonwealth and when credit for such period of incarceration was not app lied to any other sentence of [Appellant]; and (b) the mand atory minimum sentencing scheme under which [Appellant] w as sentenced has been held unconstitutional by the Sup erior Court of Pennsylvania? Appellant’s Brief at 6-7. Appellant first challenges the trial court’s denia ls of his multiple requests for a continuance. Appellant’s Brief at 2 6. Appellant argues that the trial court abused its discretion in denying Ap pellant’s requests because he had recently learned about the identities and wh ereabouts of two witnesses and, only five days before the commenceme nt of trial, had been given the names of three additional, allegedly excu lpatory, witnesses. Id. The decision to grant or deny a motion for continu ance is within the

discretion of the trial court. Commonwealth v. Hansley , 24 A.3d 410, 418J.S48023/16

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(Pa. Super. 2011). We will reverse the decision of a trial court only for an

abuse of that discretion. Id. “[D]iscretion is abused when the law is overridden or misapplied, or the result of partiality, prejudice, bias, or ill-will[,] as shown by the evidence or the record.” Id. In support of its decision to deny Appellant’s req uests for a continuance, the trial court found that the request for a continuance was merely a request to conduct a “fishing expedition.”

The court could not have permitted the testimony of specific witnesses except by granting a continuance of the trial. The delay would have been essentially a per mission for [Appellant] to conduct a fishing expedition. [ Appellant did] not provide any offer of proof as to how the t estimony of said witnesses could be probative not even as to whether they could be found. The court, in its dis cretion[,] could find that there was no basis to continue a tr ial based on such vague speculation. Trial Ct. Op. at 4. The trial court further opined :

[Appellant’s] first motion to continue the trial wa s filed on October 18, 2012, approximately five days before tr ial on October 23, 2012. On October 22, 2012, [Appellant] filed a Motion to Reconsider Motion to Continue Trial. T he court denied this request on October 22, 2012 after the c ourt determined that the availability of a tape of a wit ness statement and the availability of two witnesses was too speculative. Further, [Appellant’s] last motion to continue the trial was filed less than one day before the tr ial was scheduled to commence. In sum, a motion to continu e is within the court’s discretion and the court did not feel that a continuance was warranted.

Id. at 14-15. In sum, the trial court concluded that Appellant’s eleventh-hour requests for a continuance amounted to nothing more than an unjustifiedJ.S48023/16

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fishing expedition. We agree with the trial court, and conclude that it properly exercised its discretion in denying Appell ant’s motions for

continuance. In his second issue, Appellant avers that the tria l court erred in denying his request for discovery of the Victim’s a nd C.A.’s records from Juvenile Probation and CYS. Appellant’s Brief at 1 6. Our standard of review of a discovery order is wel l-settled: “Generally, on review of an order concerning discovery, an appe llate court applies an abuse of discretion standard [and] questions of law are afforded full appellate review . . . .” McNeil v. Jordan , 894 A.2d 1260, 1268 (Pa. 2006) (citations omitted). With respect to Appellant’s argument, the trial co urt opined as follows:

After a Motion for Reconsideration by [Appellant] a nd in light of the holding [of the] U.S. Supreme Court [i n] Pennsylvania v. Ritchie , 107 S.Ct. 989 (1987), the court ordered that McKean County Juvenile Probation and McKean County Children and Youth Services were to provide to the court any records that they may hold on D.B. and/or C.A. In Ritchie , the U.S. Supreme Court held that: (1) [the] defendant was entitled to have Pennsylvania Children and Youth Services file revie wed by trial court to determine whether it contained infor mation that probably would have changed the outcome of tri al, and (2) defense counsel was not entitled to examine confidential information in Children and Youth Serv ices file. Id. In the court’s Order of October 22, 2012, the cou rt reviewed in camera the McKean County Children and Youth Services records and the McKean County Juvenile Probation records of C.A., a minor, and found that no material could be admissible for the defense of [Ap pellant] in his jury trial. Neither Children and Youth Serv ices nor Juvenile Probation had any records related to [the Victim].J.S48023/16

- 11 - Further, the court released the juvenile dockets of the adjudications and dispositions of the only charges filed against C.A. and said dockets were to be held in th e strictest confidence by the attorney of the Commonw ealth and the attorney for [Appellant], not to be shown n or the contents divulged to any other person nor revealed in any manner to the jury. Therefore, the court followed the procedure outlined in Ritchie and properly denied [Appellant’s] request for the release of the juveni le files of the minors C.A. and [the Victim]. Trial Ct. Op. at 6-7.

We conclude that the trial court did not abuse its discretion in rendering its discovery ruling. Contrary to Appell ant’s contention, the trial court did not refuse to permit discovery of the rec ords Appellant sought. In fact, after the trial court reviewed the records at issue in camera , it did release the juvenile dockets and dispositions filed against C.A. to the attorneys for both parties. Neither Juvenile Probat ion nor CYS had any records related to the Victim. Thus, the court did not deny Appellant’s discovery requests. The trial court followed the p roper procedure in reviewing the records of CYS and in providing the r elevant adjudications from Juvenile Probation. Therefore, Appellant is n ot entitled to relief on this

issue. Appellant also argues that the trial court erred i n refusing Appellant’s request to admit into evidence the information cont ained in these records. Appellant’s Brief at 18. He avers that this inform ation would have

demonstrated that the Victim and C.A. had motives t o lie, and that AppellantJ.S48023/16

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could have used the contents of the records to impe ach the credibility of the

Victim and C.A. Id. at 16, 18. “[O]ur standard of review for the admission of evi dence looks to

whether the trial court abused its discretion.” Commonwealth v. G.D.M.,

Sr. , 926 A.2d 984, 986 (Pa. Super. 2007). With respect to Appellant’s claim regarding admiss ion of C.A.’s juvenile record, after reviewing the record, the trial court concluded that it contained “no material [that] could be admissible for [Appell ant’s] defense.” Trial Ct. Op. at 3. We have reviewed C.A.’s Juvenile Probati on record and we agree

with the trial court’s conclusion because the recor ds were neither relevant nor usable for impeachment purposes. Appellant also claims that the trial court erred i n not admitting evidence that the day before the incident, the Vict im had damaged a car. With respect to this evidence, the trial court opin ed,

The defense attorney also sought to introduce testi mony of an alleged unproven bad act of the victim, i.e. tha t on the day prior to the incident at issue, the victim had damaged a car. This would have been testimony as to a “bad act” which had not yet been adjudicated. There is no ev idence before the [c]ourt that there was any connection, whatsoever, between that act and [the] charges bein g tried against [Appellant]. The [c]ourt apparently is being asked to let in evidence of that act in [Appellant’ s] attempt to indicate to the jury that the juvenile, just bec ause he had unrelated charges against him, would fabricate a story of being victimized by [Appellant] for the sole pur pose of taking the pressure off himself on the juvenile cha rge. The [c]ourt rightfully determined that to be immaterial to issues before the court, and, therefore, not admiss ible.J.S48023/16

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Trial Ct. Op. at 3-4. We agree with the trial cour t’s analysis that the unproven bad act of the Victim has no probative val ue. Accordingly, we conclude that Appellant is not entitled to relief o n this claim. In his third issue, Appellant again purports to ch allenge the trial court’s refusal to permit Appellant to introduce ev idence of the Victim’s alleged vandalism of a car. Id. at 16. As noted, supra , this issue lacks

merit. 6 In his fourth issue, Appellant, relying on Brady v. Maryland , 373 U.S. 83 (1963), claims the trial court should have exclu ded the Victim’s testimony at trial because the Commonwealth failed to produce the audio recording of his initial interview by police. Appellant’s Brief at 19. Appellant avers that “given the inconsistencies in [the Victim’s] testim ony at trial and at the preliminary hearing, it is likely that the recordin g of the police interview would have revealed valuable evidence for impeachin g [the Victim’s] testimony[,]” and that “this evidence would have yi elded exculpatory

evidence.” Id. at 20. Appellant contends that since the Commonwe alth did not release the recording during discovery, the tri al court should have precluded the Victim from testifying at trial Id. We disagree, finding that Appellant’s reliance on Brady is misplaced, as Brady only addresses

6 Moreover, even if we had not already addressed and dismissed this issue on its merits, it would be waived because Appellant failed to develop this argument within this section of his brief. Commonwealth v. Love , 896 A.2d 1276, 1287 (Pa. Super. 2005).J.S48023/16

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evidence that the Commonwealth possesses and does n ot release, not

evidence the Commonwealth loses. As our Supreme Court has noted, “[t]he law governin g alleged Brady

violations is well-settled.” Commonwealth v. Lambert , 884 A.2d 848, 853 (Pa. 2005). It is a violation of a defendant’s rig ht to due process for the Commonwealth to “withhold[] evidence that is favora ble to the defense and material to the defendant’s guilt or punishment.” Smith v. Cain , 132 S. Ct. 627, 630 (2012) (citation omitted). To prevail on a claim that the Commonwealth has com mitted a Brady violation, “an appellant must prove three elements: (1) the evidence at issue is favorable to the accused, either because it is e xculpatory or because it impeaches; (2) the evidence was suppressed by the p rosecution, either willfully or inadvertently; and (3) prejudice ensue d.” Commonwealth v.

Weiss , 81 A.3d 767, 783 (Pa. 2013) (citations omitted). In the instant case, Appellant alleged that the Co mmonwealth’s failure to produce the Victim’s recorded police interview i mplicated Brady, supra

. It is undisputed, however, that the audio recordin g of the Victim’s interview with the police was missing. See N.T. at 217, 220. Appellant never claimed that the Commonwealth possessed, but failed to turn over to him, the audio recording. Brady and its progeny impose an affirmative duty on the prosecution to produce so-called “ Brady material” when it is possessed by the prosecution during discovery. Her e, because theJ.S48023/16

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Commonwealth did not possess the audio recording, t here was nothing for the Commonwealth to produce. Therefore, under the facts of this case, the holding Brady is inapplicable, and Appellant’s claim fails. Moreover, the trial court did not violate Appellan t’s due process rights when it denied Appellant’s request to preclude the Victim’s testimony because the Commonwealth failed to preserve the rec ording. See Arizona v. Youngblood , 488 U.S. 51, 56 (1988) (noting that, where eviden ce was not preserved, any due process violation “must be b ecause of some constitutional duty over and above that imposed by cases such

as Brady [.]”). When raising a due process claim based on t he Commonwealth’s failure to preserve evidence, an app ellant must

demonstrate that the Commonwealth acted in bad fait h. See

Commonwealth v. Coon , 26 A.3d 1159 (Pa. Super. 2011) (analyzing a due process claim based on unpreserved evidence without reference to Brady and its progeny, and requiring that the appellant s how bad faith on the part of the Commonwealth to prevail on such a claim). Appellant’s claim fails because he has not alleged that the Commonwealth acted in bad faith in failing to locat e the audio recording of the Victim’s police interview. We conclude, theref ore, that the trial court did not violate Appellant’s due process rights in denyi ng his request to preclude the Victim’s trial testimony.J.S48023/16

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In his fifth issue, Appellant claims that the tria l court improperly denied his request for a “missing evidence instruct ion” relating to the audio recording of the Victim’s police interview. Appell ant asked the court to instruct the jury that it could draw an adverse inf erence from the Commonwealth’s failure to produce the recording of the interview. Appellant’s Brief at 21. He claims that he was pre judiced by the court’s denial of this request. Id. The trial court’s decision to give an adverse infe rence instruction to the jury that an unfavorable inference may be drawn fro m the failure of a party to produce some circumstance, witness, or document will not be reversed

absent manifest abuse. Clark v. Philadelphia Coll. of Osteopathic Med. , 693 A.2d 202, 204 (Pa. Super. 1997). Generally,

where evidence which would properly be part of a ca se is within the control of the party in whose interest i t would naturally be to produce it, and, without satisfacto ry explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him.

Id. (citation omitted). An adverse inference instruction is not appropriat e where a witness or evidence is equally available or unavailable to bot h sides of the litigation.

O’Rourke on Behalf of O’Rourke v. Rao , 602 A.2d 362, 364 (Pa. Super. 1992). Additionally, the rule does not apply where it is unlikely that theJ.S48023/16

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evidence would be “unimportant, cumulative or infer ior to evidence already presented.” Id. The record herein reveals that the trial court pro perly considered Appellant’s request that the trial court give the j ury a “missing evidence instruction,” and supported its decision to deny th e request. After considering Appellant’s proposed instruction, the c ourt concluded that: (1) because the recording was not available to either A ppellant or the Commonwealth, Appellant could not demonstrate preju dice; and (2) that the information contained in the recording would be cum ulative of other written and testimonial evidence. Trial Ct. Op. at 8-9. W e agree with the trial court’s conclusion. Accordingly, the trial court’s decision was appropriate and a proper exercise of its discretion. In his sixth and seventh issues, Appellant claims that the jury’s guilty verdicts for Involuntary Deviate Sexual Intercourse and Indecent Assault were against the weight of the evidence because the Victim’s testimony at trial was inconsistent with his previous statements and with C.A.’s trial testimony. Appellant’s Brief at 22, 23. When considering challenges to the weight of the e vidence, we apply the following precepts:

The weight of the evidence is exclusively for the f inder of fact[,] who is free to believe all, none or some of the evidence and to determine the credibility of witnes ses. Appellate review of a weight claim is a review of t he exercise of discretion, not the underlying question ofJ.S48023/16

- 18 - whether the verdict is against the weight of the ev idence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weigh t of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court’s convict ion that the verdict was or was not against the weight of th e evidence and that a new trial should be granted in the interest of justice.

Commonwealth v. Talbert , 129 A.3d 536, 545-46 (Pa. Super. 2015) (internal quotation marks and citations omitted). Further, “[i]n order for a defendant to prevail on a challenge to the weight o f the evidence, the evidence must be so tenuous, vague and uncertain th at the verdict shocks

the conscience of the court.” Id. at 546 (internal quotation marks and citation omitted). In rejecting Appellant’s weight of the evidence ch allenges, the trial court opined as follows:

[Appellant] claims that the [V]ictim and the other juvenile’s testimony were inconsistent with the rem aining evidence presented at trial. There was testimony g iven both by the victim and the other juvenile as to wha t happened in the bedroom which the trier of fact fou nd credible. The inconsistencies were of unimportant details and the jury was reminded of them in [Appellant’s] attorney’s closing argument. The jurors chose to f ind them not to be indicative of any false testimony. Trial Ct. Op. at 12. As the trier of fact, the jury was free to determi ne which testimony to credit. Upon consideration of the evidence present ed at trial, including theJ.S48023/16

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inconsistencies between the Victim’s preliminary he aring and his trial testimony, the jury obviously credited the Victim’s trial testimony, and his explanation for his inconsistencies. The jury also found C.A.’s testimony to

be credible. Given that the determination of credi bility was exclusively within the province of the jury as fact-finder, we discern no abuse of discretion in the trial court’s decision to deny Ap pellant’s weight of the

evidence claims. In his final issue, Appellant claims that the tria l court erred when it denied his request, made at his Sentencing Hearing and in his Post-Sentence Motion, for 39 days’ credit for time he spent while incarcerated for unrelated acts occurring prior to his arrest on the instant c harges. Appellant’s Brief at

25.

A claim that the trial court failed to award credi t for time served prior to sentencing is a proper challenge to the legality of the sentence.

Commonwealth v. Johnson , 967 A.2d 1001, 1003 (Pa. Super. 2009). “As long as the Court has jurisdiction over the matter, a legality of sentencing

issue is reviewable and cannot be waived.” Commonwealth v. Musau , 69 A.3d 754, 756 (Pa. Super. 2013) (citation omitted). “Our standard of review over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Hawkins , 45 A.3d 1123, 1130 (Pa. Super. 2012). Appellant claims he is entitled to credit for time served on the separate and unrelated offense pursuant to 42 Pa.C.S. § 9760 (4), which provides:J.S48023/16

- 20 - (4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit agai nst the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has n ot been credited against another sentence. 42 Pa.C.S. § 9760(4). Section 9760(4) is inapplicable in the instant cas e. It is axiomatic that “a defendant shall be given credit for any days spe nt in custody prior to the imposition of sentence, but only if such commitment is on the offense for which sentence is imposed. Credit is not given, ho wever, for a commitment by reason of a separate and distinct offense.” Commonwealth v. Clark , 885 A.2d 1030, 1034 (Pa. Super. 2005) (citation and quotation omitted). As Appellant concedes, the offense for which he wa s incarcerated for 39 days (before the Commonwealth dismissed the char ges against him) was separate and distinct from the offenses for which h e is now incarcerated. As such, we conclude Appellant is not entitled to cred it on the instant sentence for time served on separate and unrelated offenses. Accordingly, this issue

does not merit relief. Appellant also avers that his ten-year mandatory m inimum sentence is illegal because violates the United States Supreme Court holding in Alleyne

v. U.S. , 133 S.Ct. 2151 (2013). See Appellant’s Brief at 25. We agree. 7

7 For purposes of the application of Alleyne to the instant matter, we acknowledge that the holding in Alleyne does not apply retroactively when aJ.S48023/16

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Appellant received a ten-year mandatory minimum se ntence for his Involuntary Deviate Sexual Intercourse conviction p ursuant to 42 Pa.C.S. § 9718(a)(1). In Commonwealth v. Wolfe , 140 A.3d 651 (Pa. 2016), our Supreme Court relied on Alleyne , and determined that Section 9718 was facially invalid. Accordingly, we vacate Appellant ’s Judgment of Sentence, and remand for resentencing. Judgment of Sentence vacated. Case remanded for r esentencing. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/26/2016

defendant’s Judgment of Sentence became final befor e Alleyne was decided. See Commonwealth v. Riggle , 119 A.3d 1058 (Pa. Super. 2015). However, because the PCRA court reinstate d Appellant’s direct appeal rights on September 28, 2015, more than two years after Alleyne was decided, Appellant’s Judgment of Sentence is no t yet final.