J. S48023/16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

 : 

 v. : 

 : 

ALLEN MICHAEL YORK, : 

 Appellant : 

 : No. 1671 WDA 2015 

 

Appeal from the Judgment of Sentence February 11, 2013 

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 February 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 Assault Person Less than 16 

years of Age.2 We affirm the convictions, but remand for resentencing. 

The facts, as gleaned from the trial transcript, are as follows. On June 

25, 2011, when he was 15 years old, D.B. (“the Victim”) 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 Sentence on February 6, 

2013, but entered an amended Judgment of Sentence on 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 played video games in C.A.’s 

bedroom, before turning out the lights to sleep. There 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. Appellant then told the 

Victim to come into the bed with him and demanded oral 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 happened, but C.A. told him to 

report the incident to the police. C.A. did not hear 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 written statement. The 

audio recording of the interview was subsequently lost and, thus, not 

produced to either Appellant or the Commonwealth. 

The Commonwealth charged Appellant with the above crimes on March 

5, 2012.3 The trial court appointed Appellant counsel on May 31, 2012. 

 

3

 The Commonwealth also charged Appellant with nine other crimes related 

to the events of June 25, 2011. The trial court dismissed those charges 

upon Appellant’s motion during his trial. 
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At Appellant’s October 18, 2012 Pre-Trial Conference, 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 Services (“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 records 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 23, 2012, Appellant filed a 

“Motion to Consider and[/]or Se[]cond Request to Reconsider 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 Victim’s recorded statement, 

and the police had been unable to find it. 

 

4

 Appellant represents in his Motion for Reconsideration that his Motion to 

Continue “was denied on the record at the Pre-[T]rial Conference held [on 

October 18, 2012].” Mot. to Recons., 10/22/2012, at 1 (unpaginated). The 

certified record does not contain a transcript of Appellant’s October 18, 2012 

Pre-Trial Conference. 
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The trial court denied these Motions, noting that it had “resolved the 

issue of the release of witness/victim juvenile records 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 precluded as irrelevant 

the information contained in C.A.’s CYS and Juvenile Probation records. 

However, the trial court released C.A.’s juvenile dockets with instructions 

that the parties hold them in the “strictest confidence” and not divulge their 

contents to any other person or in any manner to the 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 nor CYS had any records 

related to the Victim. 

Trial began on October 23, 2012. Before the commencement of 

proceedings that day, Appellant filed a written “Motion in Limine and to 

Dismiss” in which he argued that, because the police or the Commonwealth 

lost the recording of the Victim’s statement, the court should preclude the 

Victim’s from testifying at trial and dismiss the charges 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. 
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At trial, the Victim, C.A., and three Pennsylvania State Troopers, Lance 

Schimp, Michael Britton, and Corporal Timothy Lencer, testified on behalf of 

the Commonwealth. Appellant presented the testimony of two witnesses: 

Shannon York (Appellant’s father) and Wendy Vancise. 

On the second day of trial, October 24, 2012, Appellant submitted a 

Proposed Jury Instruction addressing the Commonwealth’s failure to produce 

the recording of the Victim’s police interview. The trial court rejected 

Appellant’s request for an adverse instruction. 

Following the two-day trial, the jury convicted Appellant of Involuntary 

Deviate Sexual Intercourse and Indecent Assault. The Sexual Offenders 

Assessment Board assessed Appellant and determined that he was not a 

sexually violent predator. The trial court sentenced Appellant to a term of 

ten to twenty years’ incarceration on the Involuntary 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 February 4, 2013, in which 

he, inter alia, challenged the weight the jury gave to the Commonwealth’s 

evidence, and asserted a claim for credit for time served on a separate and 

unrelated offense. The Motion was denied by operation 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. 
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Appellant did not file a direct appeal. However, on May 28, 2014, 

Appellant filed a timely petition pursuant to the Post 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 court 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 been 

provided with names and contact information of several 

potential witnesses, and was requesting additional time to 

interview and investigate these witnesses; when there had 

been no prior continuances of the trial by either side; when 

one intended defense witness was unavailable on the day 

of trial and when the information presented by these 

witnesses would have been exculpatory to [Appellant]. 

2. Did the trial court err in denying discovery regarding (a) 

the release of the juvenile files of the minors C.A. and 

D.B., including court-mandated psychological evaluation 

and other information, citing lack of consent by the 

juveniles to the release of this information when such 

information was prepared for purposes of [c]ourt and not 

as part of individual treatment, and when such information 

would have been exculpatory to [Appellant]; and (b)

Juvenile Probation and Children and Youth Services records 

concerning C.A. and [the Victim’s] alleged involvement in 

two incidents related to the instant matter, one involving 

damage to tangible property and another involving an 

alleged sexual offense by C.A., and information concerning 

the investigation of the instant matter, when such 
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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 introduction 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 would 

have shown that the juveniles had a motive to fabricate 

and would have been exculpatory to [Appellant]. 

4. Did the trial court err in admitting into evidence, over 

objection, the testimony of the alleged victim because the 

audio recording of an interview of the alleged victim was 

not produced in discovery, despite numerous requests for 

same, when testimony was adduced at trial that the 

recording was made and lost and, as such, [Appellant] was 

deprived of his right to a fair trial, right to confront 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 the jury with 

the “missing evidence instruction” on the failure of the 

Commonwealth to produce the recording of the interview 

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 such an 

extent as to shock 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 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 days 

elapsed between the alleged incident and any interview 

with the police; when the alleged victim had to be 

reminded to tell anyone; and when the alleged victim’s 

testimony was so wholly lacking in credibility that no 

reasonable jury could have found him credible. 
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7. Is the guilty verdict for Indecent Assault against the 

weight of the evidence to such an extent as to shock 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 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 days elapsed between the alleged incident 

and any interview with the police; when the alleged victim 

had to be reminded to tell anyone; and when the alleged 

victim’s testimony was so wholly lacking in credibility 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 from 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 applied to 

any other sentence of [Appellant]; and (b) the mandatory 

minimum sentencing scheme under which [Appellant] was 

sentenced has been held unconstitutional by the Superior 

Court of Pennsylvania? 

Appellant’s Brief at 6-7. 

 Appellant first challenges the trial court’s denials of his multiple 

requests for a continuance. Appellant’s Brief at 26. Appellant argues that 

the trial court abused its discretion in denying Appellant’s requests because 

he had recently learned about the identities and whereabouts of two 

witnesses and, only five days before the commencement of trial, had been 

given the names of three additional, allegedly exculpatory, witnesses. Id. 

 The decision to grant or deny a motion for continuance is within the 

discretion of the trial court. Commonwealth v. Hansley, 24 A.3d 410, 418 
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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 requests 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 permission 

for [Appellant] to conduct a fishing expedition. [Appellant 

did] not provide any offer of proof as to how the testimony 

of said witnesses could be probative not even as to

whether they could be found. The court, in its discretion[,] 

could find that there was no basis to continue a trial based 

on such vague speculation. 

Trial Ct. Op. at 4. The trial court further opined: 

[Appellant’s] first motion to continue the trial was filed on 

October 18, 2012, approximately five days before trial on 

October 23, 2012. On October 22, 2012, [Appellant] filed 

a Motion to Reconsider Motion to Continue Trial. The court 

denied this request on October 22, 2012 after the court 

determined that the availability of a tape of a witness 

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 trial was 

scheduled to commence. In sum, a motion to continue 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 unjustified 
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fishing expedition. We agree with the trial court, and conclude that it 

properly exercised its discretion in denying Appellant’s motions for 

continuance. 

 In his second issue, Appellant avers that the trial court erred in 

denying his request for discovery of the Victim’s and C.A.’s records from 

Juvenile Probation and CYS. Appellant’s Brief at 16. 

 Our standard of review of a discovery order is well-settled: “Generally, 

on review of an order concerning discovery, an appellate 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 court opined as follows: 

After a Motion for Reconsideration by [Appellant] and in 

light of the holding [of the] U.S. Supreme Court [in] 

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 reviewed by 

trial court to determine whether it contained information 

that probably would have changed the outcome of trial, 

and (2) defense counsel was not entitled to examine

confidential information in Children and Youth Services file. 

Id. In the court’s Order of October 22, 2012, the court 

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 [Appellant] 

in his jury trial. Neither Children and Youth Services nor 

Juvenile Probation had any records related to [the Victim]. 
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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 the 

strictest confidence by the attorney of the Commonwealth 

and the attorney for [Appellant], not to be shown nor 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 juvenile 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 Appellant’s contention, the trial 

court did not refuse to permit discovery of the records 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 Probation nor CYS had any 

records related to the Victim. Thus, the court did not deny Appellant’s 

discovery requests. The trial court followed the proper procedure in 

reviewing the records of CYS and in providing the relevant adjudications 

from Juvenile Probation. Therefore, Appellant is not entitled to relief on this 

issue. 

 Appellant also argues that the trial court erred in refusing Appellant’s 

request to admit into evidence the information contained in these records. 

Appellant’s Brief at 18. He avers that this information would have 

demonstrated that the Victim and C.A. had motives to lie, and that Appellant 
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could have used the contents of the records to impeach the credibility of the 

Victim and C.A. Id. at 16, 18. 

 “[O]ur standard of review for the admission of evidence 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 admission of C.A.’s juvenile 

record, after reviewing the record, the trial court concluded that it contained 

“no material [that] could be admissible for [Appellant’s] defense.” Trial Ct. 

Op. at 3. We have reviewed C.A.’s Juvenile Probation record and we agree 

with the trial court’s conclusion because the records were neither relevant 

nor usable for impeachment purposes. 

 Appellant also claims that the trial court erred in not admitting 

evidence that the day before the incident, the Victim had damaged a car. 

With respect to this evidence, the trial court opined, 

The defense attorney also sought to introduce testimony of 

an alleged unproven bad act of the victim, i.e. that 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 evidence 

before the [c]ourt that there was any connection, 

whatsoever, between that act and [the] charges being 

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 because he 

had unrelated charges against him, would fabricate a story 

of being victimized by [Appellant] for the sole purpose of 

taking the pressure off himself on the juvenile charge. The 

[c]ourt rightfully determined that to be immaterial to 

issues before the court, and, therefore, not admissible. 
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Trial Ct. Op. at 3-4. We agree with the trial court’s analysis that the 

unproven bad act of the Victim has no probative value. Accordingly, we 

conclude that Appellant is not entitled to relief on this claim. 

 In his third issue, Appellant again purports to challenge the trial 

court’s refusal to permit Appellant to introduce evidence 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 excluded 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] testimony at trial and at the 

preliminary hearing, it is likely that the recording of the police interview 

would have revealed valuable evidence for impeaching [the Victim’s] 

testimony[,]” and that “this evidence would have yielded exculpatory 

evidence.” Id. at 20. Appellant contends that since the Commonwealth did 

not release the recording during discovery, the trial 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). 
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evidence that the Commonwealth possesses and does not release, not 

evidence the Commonwealth loses. 

As our Supreme Court has noted, “[t]he law governing alleged Brady

violations is well-settled.” Commonwealth v. Lambert, 884 A.2d 848, 853 

(Pa. 2005). It is a violation of a defendant’s right to due process for the 

Commonwealth to “withhold[] evidence that is favorable to the defense and 

material to the defendant’s guilt or punishment.” Smith v. Cain, 132 S. Ct. 

627, 630 (2012) (citation omitted). 

To prevail on a claim that the Commonwealth has committed a Brady 

violation, “an appellant must prove three elements: (1) the evidence at issue 

is favorable to the accused, either because it is exculpatory or because it 

impeaches; (2) the evidence was suppressed by the prosecution, either 

willfully or inadvertently; and (3) prejudice ensued.” Commonwealth v. 

Weiss, 81 A.3d 767, 783 (Pa. 2013) (citations omitted). 

 In the instant case, Appellant alleged that the Commonwealth’s failure 

to produce the Victim’s recorded police interview implicated Brady, supra. 

 It is undisputed, however, that the audio recording 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. Here, because the 
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Commonwealth did not possess the audio recording, there 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 Appellant’s due process rights 

when it denied Appellant’s request to preclude the Victim’s testimony 

because the Commonwealth failed to preserve the recording. See Arizona 

v. Youngblood, 488 U.S. 51, 56 (1988) (noting that, where evidence was 

not preserved, any due process violation “must be because of some 

constitutional duty over and above that imposed by cases such 

as Brady[.]”). When raising a due process claim based on the 

Commonwealth’s failure to preserve evidence, an appellant must 

demonstrate that the Commonwealth acted in bad faith. 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 show 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 locate the audio recording of 

the Victim’s police interview. We conclude, therefore, that the trial court did 

not violate Appellant’s due process rights in denying his request to preclude 

the Victim’s trial testimony. 
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 In his fifth issue, Appellant claims that the trial court improperly 

denied his request for a “missing evidence instruction” relating to the audio 

recording of the Victim’s police interview. Appellant asked the court to 

instruct the jury that it could draw an adverse inference from the 

Commonwealth’s failure to produce the recording of the interview. 

Appellant’s Brief at 21. He claims that he was prejudiced by the court’s 

denial of this request. Id. 

 The trial court’s decision to give an adverse inference instruction to the 

jury that an unfavorable inference may be drawn from 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 case is 

within the control of the party in whose interest it would 

naturally be to produce it, and, without satisfactory 

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 appropriate where a witness or 

evidence is equally available or unavailable to both 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 the 
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evidence would be “unimportant, cumulative or inferior to evidence already 

presented.” Id. 

 The record herein reveals that the trial court properly considered 

Appellant’s request that the trial court give the jury a “missing evidence 

instruction,” and supported its decision to deny the request. After 

considering Appellant’s proposed instruction, the court concluded that: (1) 

because the recording was not available to either Appellant or the 

Commonwealth, Appellant could not demonstrate prejudice; and (2) that the 

information contained in the recording would be cumulative of other written 

and testimonial evidence. Trial Ct. Op. at 8-9. We 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 evidence, we apply 

the following precepts: 

The weight of the evidence is exclusively for the finder of 

fact[,] who is free to believe all, none or some of the 

evidence and to determine the credibility of witnesses. 

Appellate review of a weight claim is a review of the 

exercise of discretion, not the underlying question of 
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whether the verdict is against the weight of the evidence. 

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 weight of the 

evidence. One of the least assailable reasons for granting 

or denying a new trial is the lower court’s conviction that 

the verdict was or was not against the weight of the 

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 of the evidence, the 

evidence must be so tenuous, vague and uncertain that 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 challenges, the trial 

court opined as follows: 

[Appellant] claims that the [V]ictim and the other 

juvenile’s testimony were inconsistent with the remaining 

evidence presented at trial. There was testimony given 

both by the victim and the other juvenile as to what 

happened in the bedroom which the trier of fact found 

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 find 

them not to be indicative of any false testimony. 

Trial Ct. Op. at 12. 

 As the trier of fact, the jury was free to determine which testimony to 

credit. Upon consideration of the evidence presented at trial, including the 
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inconsistencies between the Victim’s preliminary hearing 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 credibility 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 Appellant’s weight of the 

evidence claims. 

 In his final issue, Appellant claims that the trial 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 charges. Appellant’s Brief at 

25. 

 A claim that the trial court failed to award credit 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: 
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(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 against 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 not 

been credited against another sentence. 

42 Pa.C.S. § 9760(4). 

 Section 9760(4) is inapplicable in the instant case. It is axiomatic that 

“a defendant shall be given credit for any days spent 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, however, 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 was incarcerated for 

39 days (before the Commonwealth dismissed the charges against him) was 

separate and distinct from the offenses for which he is now incarcerated. As 

such, we conclude Appellant is not entitled to credit 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 minimum 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 a 
J.S48023/16 

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 Appellant received a ten-year mandatory minimum sentence for his 

Involuntary Deviate Sexual Intercourse conviction pursuant 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 resentencing. 

Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/26/2016 

 

 

defendant’s Judgment of Sentence became final before Alleyne was 

decided. See Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super. 

2015). However, because the PCRA court reinstated Appellant’s direct 

appeal rights on September 28, 2015, more than two years after Alleyne 

was decided, Appellant’s Judgment of Sentence is not yet final.