J-S35021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THOMAS CALEB,

Appellant No. 1883 EDA 2014

Appeal from the Judgment of Sentence June 2, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): 

CP-51-CR-0006440-2012

CP-51-CR-0006441-2012

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 20, 2016

Appellant, Thomas Caleb, appeals from the judgment of sentence of 

121⁄2 to 25 years’ incarceration, followed by 10 years’ probation, imposed 

after a jury convicted him of involuntary deviate sexual intercourse (IDSI), 

incest, endangering the welfare of a child, and indecent assault. After 

careful review, we conclude that all of Appellant’s issues are meritless, 

except for his challenge to the legality of a mandatory minimum sentence 

imposed under 42 Pa.C.S. § 9718 (Sentences for offenses against infant 

persons). Accordingly, we vacate Appellant’s judgment of sentence and 

remand for resentencing.

The trial court summarized the facts of Appellant’s offenses as follows:

On May 14, 2012, Appellant was arrested for committing 

sexual acts with his half-sister, R.M., age fourteen at the time of 
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the incident, and his niece, S.G., age twelve at the time of the 

incident. In April of 2012, Appellant performed oral sex on R.M. 

and forced R.M. to reciprocate. On another spring day in 2012, 

Appellant performed oral sex on S.G., attempted to have 

intercourse with her, and showed her a video on his phone of 

him receiving oral sex from his girlfriend. That same day, S.G. 

reported the sexual abuse to her mother’s boyfriend who, at 

S.G.’s request, did not inform anyone of this report until one 

week later when he told S.G.’s mother that she needed to speak 

with her daughter and niece[, R.M.] The mother immediately 

spoke with S.G., learned of the abuse, and took both girls to the 

detective division to make formal statements.

Trial Court Opinion (TCO), 5/18/15, at cover page.1

As noted by the trial court, Appellant was arrested on May 14, 2012, 

and charged with the above-stated offenses. A jury trial was conducted in 

November of 2013, at the close of which Appellant was convicted of each of 

those crimes. On June 6, 2014, the court sentenced Appellant to an 

aggregate term of 121⁄2 to 25 years’ imprisonment, which included a 

mandatory term of 10 to 20 years’ incarceration for Appellant’s IDSI offense 

pursuant to 42 Pa.C.S. § 9718. Appellant also received a consecutive term 

of 21⁄2 to 5 years’ imprisonment for his incest offense, and an aggregate 

term of 10 years’ probation for his remaining crimes. 

Appellant filed a timely notice of appeal, as well as a timely Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. Herein, he 

raises four claims for our review:

____________________________________________

1 The trial court’s opinion begins numbering on the second page, leaving the 

first page of the opinion (from which this excerpt was quoted) unnumbered.
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1. Did the lower court err in denying [A]ppellant’s motion in 

limine to allow [A]ppellant to present evidence that he had 

argued with one of the complainants over her relationship with 

an older man, where the evidence was relevant to establish that 

the complainant had a motive to lie and [Appellant] did not seek 

to introduce evidence of [the] victim’s sexual activity?

2. Did the lower court abuse its discretion in allowing the 

Commonwealth to elicit testimony from two detectives that it 

was common in their experience for child victims to disclose 

information over time?

3. Did the lower court err in requiring [A]ppellant to testify with 

a sheriff standing behind him on the witness stand?

4. Is [A]ppellant’s mandatory minimum sentence 

unconstitutional in light of Alleyne v. United States, 133 S.Ct. 

2151 (2013)?

Appellant’s Brief at 3.

Appellant’s first issue challenges the court’s decision to preclude him 

from presenting certain evidence. 

The admissibility of evidence is solely within the discretion of the 

trial court, and a trial court's evidentiary rulings will be reversed 

on appeal only upon abuse of discretion. An abuse of discretion 

will not be found merely because an appellate court might have 

reached a different conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or 

such lack of support so as to be clearly erroneous. Moreover, an 

erroneous ruling by a trial court on an evidentiary issue does not 

necessitate relief where the error was harmless beyond a 

reasonable doubt.

Commonwealth v. Travaglia, 28 A.3d 868, 873–74 (Pa. 2011) (citation 

omitted). 

By way of background, Appellant filed a motion in limine in January of 

2013, and a hearing was conducted on that motion on January 14, 2013. 

There, Appellant argued that he should be permitted to admit evidence that 
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one of his victims, R.M., had been involved in a relationship with an older, 

married man and, when Appellant had discovered the relationship, he and 

R.M. had argued. N.T. Hearing, 1/14/13, at 13-14. During the argument, 

Appellant threatened to reveal R.M.’s relationship to her family and, shortly 

after that argument, R.M. alleged that Appellant had sexually abused her. 

Id. at 14. Appellant contended that evidence of R.M.’s relationship with the 

older man, and the argument that occurred between her and Appellant, 

should be admitted to demonstrate R.M.’s “motive to fabricate or lie and 

make up allegations against [Appellant].” Id. 

The Commonwealth argued that the court should deny Appellant’s 

motion because presenting the evidence of R.M.’s relationship with the older 

man would violate the Rape Shield Law, 18 Pa.C.S. § 3104.2 Ultimately, the 

trial court agreed, and issued an order denying Appellant’s motion in limine.

____________________________________________

2 The Rape Shield Law states:

(a) General rule.--Evidence of specific instances of the alleged 

victim's past sexual conduct, opinion evidence of the alleged 

victim's past sexual conduct, and reputation evidence of the 

alleged victim's past sexual conduct shall not be admissible in 

prosecutions under this chapter except evidence of the alleged 

victim's past sexual conduct with the defendant where consent of 

the alleged victim is at issue and such evidence is otherwise 

admissible pursuant to the rules of evidence.

(b) Evidentiary proceedings.--A defendant who proposes to 

offer evidence of the alleged victim's past sexual conduct 

pursuant to subsection (a) shall file a written motion and offer of 

proof at the time of trial. If, at the time of trial, the court 

determines that the motion and offer of proof are sufficient on 

(Footnote Continued Next Page)
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However, new counsel entered his appearance on Appellant’s behalf in 

October of 2013, and at a jury voir dire proceeding conducted on November 

14, 2013, that attorney presented an oral motion in limine, again requesting 

that the court admit evidence of R.M.’s relationship with the older man. At 

the hearing, defense counsel explained that upon further investigation, he 

discovered that Appellant had discovered R.M.’s relationship with the older 

man, and that three to four weeks prior to R.M.’s making abuse allegations 

against Appellant, Appellant had directed R.M. to end the relationship or he 

was “going to kill [the] guy.” N.T. Hearing, 11/14/13, at 9. Defense counsel 

claimed that 

[a]t that point, the relationship between [Appellant] and [R.M.] 

soured. It completely fell apart. There was a breakdown in 

communication. She refused to talk to him anymore. They were 

at odds with one another, and they lived in the same house. 

Three to four weeks later, RM makes these accusations, and 

[Appellant is] arrested and he’s taken out of the house. And 

from what I have from [R.M.’s] Facebook page with this [older 

man], she continues on [with her relationship with him].

Id. at 9-10.

The Commonwealth again argued that the Rape Shield Law precluded 

this evidence, noting that the court had already ruled as much in January of 

(Footnote Continued) _______________________

their faces, the court shall order an in camera hearing and shall 

make findings on the record as to the relevance and admissibility 

of the proposed evidence pursuant to the standards set forth in 

subsection (a).

18 Pa.C.S. § 3104.
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2013. Id. at 15-16. In response, defense counsel maintained that evidence 

regarding the context of Appellant’s argument with R.M., i.e., R.M.’s 

relationship with the older man and Appellant’s threat to her to end it, did 

not violate the Rape Shield Law. Id. at 17. Counsel explained:

[Defense Counsel]: The attorney for the Commonwealth keeps 

saying this violates rape shield, this violates rape shield. The 

Rape Shield [Law] was created in order to prevent testimony 

regarding the sexual activity of the complainant that showed this 

person who is the victim or alleged victim of a crime had had sex 

before and therefor she was unchaste. ... I’m not asking to have 

any of that type of information admitted, to her lack of chastity, 

to her sexual relationship with any man whatsoever. In fact, in 

my argument a little while ago, I didn’t even bring out the fact 

that she might have had a sexual relationship with this older 

man. I don’t want any of that to come in. My argument is 

limited to the notion of motive for retribution. And there has to -

- that motive for retribution, it didn’t happen inside of a bubble. 

There’s a larger world that it did happen within, and now there’s 

corroborating evidence [i.e., R.M.’s Facebook postings,] that 

does show a motive for actual retribution based upon real-world 

facts.

Id. at 17-18. The trial court ultimately ruled that Appellant could offer 

evidence that R.M. and he had engaged in an argument shortly before her 

allegations of abuse, but denied Appellant’s request to present evidence 

regarding the argument being about R.M.’s relationship with an older man. 

Id. at 16.

Now, on appeal, Appellant challenges the trial court’s decision, arguing 

that “the lower court was obligated, at a minimum, to conduct an in camera 

hearing, hear[] the proffered testimony, and determine whether the 

probative value of the information outweighed any prejudice. Having been 
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denied that hearing, [A]ppellant is entitled to a new trial.” Appellant’s Brief 

at 11-12. Notably, however, Appellant at no point requested, at the 

November 14, 2013 hearing or at the hearing in January of 2013, that the 

court conduct an in camera hearing to consider R.M.’s testimony. While the 

Rape Shield Law requires the trial court to conduct such a hearing if it 

“determines that the motion and offer of proof are sufficient on their faces,” 

Appellant explicitly argued at the hearing that the Rape Shield Law did not 

apply to the evidence he sought to admit. Thus, Appellant cannot now 

contend that the court erred by not holding an in camera hearing when 

Appellant did not request that the court do so.

Nevertheless, Appellant does argue that the evidence regarding R.M.’s 

relationship with another man should not have been precluded. In this vein, 

Appellant discusses several cases wherein this Court held that evidence of a 

victim’s prior sexual activity was admissible to demonstrate his/her motive 

in making abuse allegations against the defendant. See Appellant’s Brief at 

9-11 (discussing Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 

1985), Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. 1992), and 

Commonwealth v. Eck, 605 A.2d 1248 (Pa. Super. 1992)). 

In Black, the appellant was convicted of molesting his thirteen-yearold daughter in a case that turned on a battle of credibility between Black 

and his victim. At trial, Black was prevented from introducing evidence of 

the victim’s sexual conduct with one of her brothers, despite the following 

facts:
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While the sexual incident was found to have occurred 

during Christmas, 1979, testimony indicated that [the victim]'s 

complaints began to surface almost three months later, near the 

end of March, 1980. These complaints coincided with violent 

arguments between [Black] and prosecutrix' fifteen-year-old 

brother, which culminated in the brother leaving home and 

separating from the family, including prosecutrix. [The victim] 

admitted wanting her brother back in the home, and other 

testimony indicated that as soon as [Black] was arrested and 

removed, the fifteen-year-old brother contacted the family and 

sought to return home. In his defense, [Black] offered to show 

through cross-examination that [the victim] had maintained an 

ongoing, consensual sexual relationship with this brother, which 

ended when the brother left home. [Black] contends that the 

true extent of prosecutrix' bias against him could only be 

revealed by showing the abnormal, sexual relationship which she 

had with her brother and which had been terminated by [Black]'s 

dispute with her brother. Specifically, [Black] urges that [the 

victim]'s testimony can only be weighed fairly when measured 

against her desire, first, to punish [Black] for his interference 

with her sexual relationship with her brother, and, second, to 

remove [Black] from the home so that her brother might return 

and resume the relationship.

Black, 487 A.2d at 398.

In Black, the trial court excluded this evidence under the Rape Shield 

Law. This Court reversed and remanded for the trial court to hold an in 

camera hearing, with the following instructions:

At this hearing, the trial court should determine the following as 

a matter of record to be preserved for appellate review: (1) 

whether the proposed evidence is relevant to show bias or 

motive or to attack credibility; (2) whether the probative value 

of the evidence outweighs its prejudicial effect; and (3) whether 

there are alternative means of proving bias or motive or to 

challenge credibility.

Id. at 401. 

Although superficially analogous to the instant case, Black is 

distinguishable. The appellant in Black was denied the ability to present 
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any evidence pertaining to the victim’s relationship with her brother. As was 

evident from the instructions we gave to the trial court in Black, its blunt 

application of the Rape Shield Law prevented critical inquiries into the 

probative versus prejudicial effect of the proffered evidence, and gave no 

consideration to ‘alternative means’ of introducing the evidence so as to 

minimize Rape Shield concerns. 

Here, by contrast, the trial court implicitly acknowledged that the 

evidence in question was probative of a legitimate purpose: the victim’s 

motive to lie. But, in a compromise reflecting both the probative value of 

this evidence and legitimate Rape Shield concerns, the trial court permitted 

Appellant to present evidence of his argument with the victim, but did not 

permit him to implicate the victim’s sexual relationship with another man. 

Thus, the trial court here did precisely what the trial court in Black did not 

do: it considered the probative and prejudicial value of the evidence in 

question, and arrived at a solution that ostensibly maximized both 

Appellant’s interest in proving the victim’s motive to lie and the 

Commonwealth’s interest in avoiding the defense’s exploitation of the 

victim’s sexual history. 

Appellant believes the trial court’s ruling went too far. Appellant 

“sought to introduce evidence that R.M. had been involved in a relationship 

with an older man with a criminal record, and that [A]ppellant had 

threatened to kill that man if R.M. did not terminate the relationship.” 

Appellant’s Brief at 11. Appellant contends that the court’s limiting the 
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evidence to “vague testimony of an argument is simply not of the same 

caliber to explain the bias or basis for retribution.” Id. Appellant also 

maintains that the court’s decision was an abuse of discretion in light of the 

fact that he “attempted to limit the prejudice to R.M. by refraining from any 

mention of a physical relationship and merely focusing on the argument.” 

Id. 

There is at least some theoretical merit to this claim. We agree that 

the mere mention of a fight between siblings is significantly less impactful of 

a reason to fabricate charges of this severity. All siblings argue and fight, 

but not all siblings threaten to kill the adult paramour of an underage sibling. 

Moreover, it should be possible to identify the nature of the argument 

between Appellant and R.M. without exposing unnecessary details about the 

nature of R.M.’s relationship with the other man. 

Nevertheless, we decline to grant Appellant a new trial based on his 

assertion that he was not able to present a full defense regarding R.M.’s 

motive to fabricate her allegations, where Appellant himself did not develop 

this defense to the fullest extent possible in his own testimony.

Appellant did testify regarding the argument. After indicating that he 

had a great relationship with R.M., the following direct examination took 

place:

Q At some point did that relationship change? 

A Yes, it did.
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Q Okay. And what was the event that caused that 

relationship to change?

A About a month and a half, about two months before I was 

arrested, we had a real big argument, not just like a regular 

argument that you would normally have back and forth with your 

sibling, but it was a big blowup and our relationship went sour.

...

A Well, the end result of the argument resulted in me and 

her not really speaking anymore. We were just a hi-bye basis, 

or say hello to each other in passing, like what’s up or so. But at 

the very end of the argument she told me she hated me. 

N.T., 11/19/14, at 156-57. 

However, when asked if he could think of “one reason” why R.M. and 

S.G. “would come forward and say that [he] did these things to them[,]” 

Appellant replied, “I don’t understand why they would say this, and I don’t 

know a reason they have for saying this.” N.T. Trial, 11/19/14, at 212. Yet, 

the court’s ruling did not preclude Appellant from testifying that he had an 

argument with R.M. that was so severe that R.M. chose to fabricate sexual 

abuse allegations against him. Appellant took the stand and chose not to 

offer that defense consistently throughout his testimony. Instead, after 

defense counsel questioned him about this heated argument with R.M., 

Appellant went on throughout the remainder of his direct- and crossexaminations to repeatedly testify that he had no idea why R.M. was alleging 

the abuse. 

Specifically, defense counsel asked him “why would two girls make up 

a story like this about you?” to which Appellant replied, “I have no idea. I 

don’t know why they would do something like this. This is my family, and to 
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me it’s just disgusting and I don’t know why.” N.T. Trial, 11/19/14, at 181. 

Later, defense counsel asked him if he had “[a]ny idea why [R.M.] would 

make something up like [the abuse allegations],” and Appellant replied, “No, 

I do not have any idea why she would make something up like that, and I’m 

trying to get to the bottom of it now....” Id. 194. On cross-examination, 

after the Commonwealth noted that Appellant “already testified on multiple 

occasions that there’s not one reason [he] can think of for why these girls 

would come forward and say that [he] did these things to him,” Appellant 

once again reiterated that that was “[c]orrect” and said, “I don’t understand 

why they would say this, and I don’t know a reason they have for saying 

this.” Id. at 222. 

We also find notable that on cross-examination, Appellant downplayed 

the damaging impact of the fight that he previously testified had ‘soured’ his 

relationship with R.M. In that exchange, the Commonwealth asked 

Appellant, “And aside from this one fight that you had talked about, you and 

[R.M.] had a great relationship, right?” Id. at 212. Appellant answered: 

“Yes. We had our regular differences as far as brother-sister -- little sibling 

arguments, but just that one big incident, and that was all. It was a good 

relationship.” N.T. Trial, 11/19/14, at 212.

Appellant’s testimony indicates that he chose not to fully pursue the 

defense that R.M. had a motive to lie or fabricate the charges against him. 

This cannot be explained by the court’s ruling, as the court permitted 

Appellant to present evidence that he and R.M. had argued, and that after 
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the argument their “relationship went sour” and R.M. told Appellant “she 

hated [him].” Id. at 156-57. Had the court totally precluded evidence 

regarding Appellant’s and R.M.’s argument, Appellant could contend that the 

court prohibited him from presenting this defense. However, the court 

permitted Appellant to testify about his argument with R.M., yet Appellant 

chose not to pursue that defense to the fullest degree possible under the 

trial court’s ruling. He cannot now claim that he was prejudiced by the 

omission of that defense. 

We are further convinced that any error in the exclusion of this 

evidence was harmless by the fact that there were multiple victims in this 

case. Here, R.M.’s accusations were corroborated by the fact that Appellant 

was also sexually abusing S.G. This was not the case in Black, which pitted 

only one victim’s word against the defendant in that case, rendering motiveto-lie evidence in that case far more probative than in the instant matter. 

Moreover, R.M. did not even come forward until after S.G. made her own 

allegations, making it even more doubtful that R.M.’s claims were 

manufactured as a direct response to her argument with Appellant.

 Wall is also distinguishable from the instant case. In Wall, the 

defendant had

filed a motion in limine seeking to introduce evidence that the 

victim had been removed from her mother's home and placed in 

foster care after being sexually assaulted by her mother's 

paramour. Defense counsel argued in an in camera hearing on 

this issue that evidence of the victim's previous participation in 

the successful prosecution of an adult male who had sexually 

abused her was relevant to his defense of fabrication because it 
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tended to show that the victim may have been peculiarly aware 

of the fact that such a sexual abuse claim could lead to her 

removal from her aunt's home. Defense counsel urged that in 

view of the fact that there existed otherwise admissible evidence 

of the victim's desire to leave her aunt's home because of the 

strict discipline that her aunt often imposed, the evidence of the 

victim's prior participation in a materially similar prosecution was 

logically necessary to complete the fabrication theory. The trial 

court denied this motion, however, based on the Pennsylvania 

Rape Shield law, and allowed only the introduction of evidence 

that the victim resided with appellant and his wife because there 

was a “problem” at her mother's home. 

Wall, 606 A.2d at 452 (footnote omitted).

Relying on Black, the Wall Court reversed the trial court’s decision, 

noting first that:

Here, the excluded evidence established that the victim had, 

three years before this charge, alleged that her mother's 

paramour had sexually molested her. This, in and of itself, is not 

significant. Far more important, however, is the fact that the 

proffer also established that the victim participated in the 

successful prosecution of her former abuser, and that 

participation ultimately lead to her removal from her mother's 

house. From this, the jury could have inferred that the victim 

had, at the time she alleged that appellant had sexually abused 

her, labored under the impression that the making of another 

sexual abuse claim could result in her removal from her aunt and 

uncle's house. The victim's peculiar knowledge of the content 

and of the potential consequences of a sexual abuse claim was 

thus relevant to establish why the victim might have chosen to 

fabricate a specific type of claim, one of sexual abuse against an 

adult male in the house in which she lived and wanted to leave.

Id. at 462. 

Thus, the Wall court concluded as follows:

In sum we find that in light of the evidence that the victim 

wanted to leave her aunt's home and harsh discipline, the 

specific proffer of uncontested evidence that the victim had been 

previously removed from a home in which she had successfully 

alleged that she had been sexually abused was relevant, non-
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cumulative and more probative than prejudicial. To have 

excluded such evidence, under these peculiar circumstances, 

was to frustrate the truth-determining process by preventing 

consideration of exculpatory evidence to the defense.

Id. at 466 (footnoted omitted) (emphasis added). 

Notably, as was the case in Black, the critical issue in Wall was the 

weighing of the credibility of a single victim against the credibility of the 

defendant. Moreover, the Wall court stressed that it was the “peculiar” 

facts of that case that permitted evidence of the victim’s prior, successful 

sexual abuse allegations, evidence which fit squarely within the defense’s 

fabrication theory.3 Id. Here, however, when afforded the opportunity to 

do so, Appellant repeatedly professed to have no knowledge of why R.M. 

would fabricate charges against him. Thus, we conclude that Wall also does 

not support reversal in this case. 

Finally, in Eck, a twenty-three-year-old defendant was accused of 

performing oral sex on his fifteen-year-old foster brother, T.H. The defense 

sought, by motion in limine, to admit evidence of T.H.’s juvenile record, 

which would have demonstrated that T.H. had performed that same act on 

his five-year-old brother in a different foster home. Eck argued that this 

evidence would substantiate his claim that T.H. had fabricated his accusation 

____________________________________________

3

In Wall, other admitted evidence, derived from the victim’s own 

testimony, demonstrated that the victim had repeatedly acted out in other 

ways in her efforts to escape her aunt’s home, such that the sexual abuse 

accusations appeared to be an escalation of those efforts. 
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against Eck. The trial court denied Eck’s motion in limine as barred under 

the Rape Shield Law. 

On appeal, this Court reversed that decision. Again, like Black and 

Wall, we were confronted with a case where the credibility of the defendant 

was at odds with the credibility of a single victim. At the time he made his 

accusations, Eck’s victim was facing the prospect of violating his probation 

for underage drinking. The theory of the defense was that the victim had 

fabricated the charges against Eck in order to elicit sympathy for himself, 

because, “as the perpetrator of a sexual offense, T.H. learned that victims 

receive more favorable treatment than do perpetrators.” Eck, 605 A.2d at 

1255. In reversing, we remanded, as we did in Black, for “an in camera

hearing to perform the requisite balancing” of probative versus prejudicial 

value of that evidence. Id.

Eck also does not compel reversal. Instantly, the trial court 

performed the ‘requisite balancing’ that was lacking in Eck. And, although 

we conclude that the trial court likely erred by excessively circumscribing the 

evidence Appellant could admit regarding R.M.’s relationship with an older 

man, we still conclude that error was harmless in the specific circumstances 

of this case. Again, Appellant failed to exploit what latitude he was given to 

present the contested evidence, and the evidence had a diminished 

probative value given the corroboration provided by S.G., and the fact that 

R.M.’s allegations followed S.G.’s. Accordingly, for all the aforementioned 
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reasons, we conclude that Appellant is not entitled to relief on this claim, as 

whatever evidentiary error occurred was harmless. 

Next, Appellant claims the trial court erred when it permitted the 

Commonwealth to elicit testimony from two detectives that it was common 

in their experience for child victims to disclose information over time. 

Appellant complains that “[b]ecause testimony about common behaviors of 

child victims of sexual assault to explain why they may have divulged 

information over time was inadmissible to [A]ppellant’s case and, in any 

event, was not given by a qualified expert, the trial court abused its 

discretion in allowing the Commonwealth to elicit the testimony. As such, he 

is entitled to a new trial.” Appellant’s Brief at 13. 

Appellant refers to the following incidents at trial. First, during the 

testimony of Detective Gregory Meissler, the following transpired:

[Prosecutor:] Calling your attention to your statement from 

[S.G.], and as counsel told you on cross-[examination], she has 

disclosed additional behavior from [Appellant], is it common in 

your experience for children to --

[Defense counsel]: Objection. This calls for speculation.

[Prosecutor]: in the detective’s experience, counsel opened 

the door based on his question.

THE COURT: Let me hear the question.

[Prosecutor]: Okay. 

[Prosecutor:] In your experience is it common for children to 

give additional disclosures after the first interview?

[Defense counsel]: I renew my objection.
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THE COURT: That’s sustained. Can you rephrase or 

something?

[Prosecutor]: Yes.

[Prosecutor:] Have you ever experienced a child giving 

additional disclosures after the first interview. 

[Defense counsel]: I renew my objection.

THE COURT: Overruled.

[Detective Meissler:] Yes. 

N.T., 11/19/14, at 59-60.

Next, during the testimony of Detective Thomas Brown, the following 

exchange occurred:

[Prosecutor:] In – have you been made aware that [R.M.] has 

provided that additional disclosure that she had provided oral 

sex to [Appellant]?

[Detective Brown:] No. 

[Prosecutor:] Okay. Approximately how many interviews with 

children have you conducted in your career?

[Defense counsel]: Objection to relevance.

THE COURT: Noted. But overruled. Go ahead.

[Detective Brown]: I’d put it in the thousands. 

[Prosecutor:] And, in your experience have you had children give 

additional disclosures --

[Defense counsel]: I renew my objection. Irrelevant. 

THE COURT: Noted. Overruled. Go ahead. 

[Detective Brown]: Yes.

[Prosecutor:] Is that something that only happened once or 

substantial times?

[Detective Brown:] I think it’s happened quite a few times. 
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Id. at 90-91.

With regard to Detective Meissler, it is clear that the trial court 

sustained Appellant’s objection as it was presented: that the Commonwealth 

had called for mere speculation. The question was then rephrased to elicit 

the detective’s direct knowledge of such instances. Appellant now presents 

us with a claim that the trial court erred by permitting speculative testimony 

about ‘common behaviors of child victims of sexual assault.’ No such 

response was permitted with respect to Detective Meissler; therefore, 

Appellant’s claim lacks a foundation in the record. To the extent that 

Appellant now claims that the testimony elicited from Detective Meissler was 

inadmissible because it was not given by a qualified expert, Appellant waived 

that claim by not raising it before the trial court. “Issues not raised in the 

lower court are waived and cannot be raised for the first time on appeal.” 

Pa.R.A.P. 302(a). 

With regard to Detective Brown, the Commonwealth did not even ask 

a question eliciting speculation from the witness regarding ‘common 

behaviors of child victims of sexual assault.’ Thus, Appellant’s claim is 

meritless with respect to his testimony as well. Similarly, any claim 

regarding the admissibility of the testimony given by Detective Brown based 

on the argument that he was not a qualified expert witness was similarly 

waived. Pa.R.A.P. 302(a). 

Next, Appellant argues that the trial court erred when it required him 

to either testify before the jury from counsel’s table, or, if he were to take 
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the stand, that he would have to do so with a sheriff standing behind him. 

Appellant argues that, “[b]y not allowing [him] to take the witness stand 

free of a visible security presence and testify like every other witness, the 

trial court sent a clear message to the jury that he was dangerous and 

deprived him of his right to the presumption of innocence.” Appellant’s Brief 

at 14. Ultimately, Appellant did take the stand with the sheriff standing 

behind him, and the trial court instructed the jury that “[A] defendant in a 

criminal case is always escorted by the sheriff. Don’t think anything of it. 

That’s his job being here in a criminal case.” N.T., 11/19/13, 143. 

Appellant cites a single case to support his argument, 

Commonwealth v. Mayhugh, 336 A.2d 379 (Pa. Super. 1975). In 

Mayhugh, a juror inadvertently observed Mayhugh being restrained by two 

sheriffs, one of whom was grasping Mayhugh’s arm, as Mayhugh was 

brought into the courtroom. Defense counsel requested a mistrial, which 

was denied by the trial court. We affirmed. Nevertheless, we recognized 

the following principles: 

Due process of law guarantees respect for those personal 

immunities which are ‘so rooted in the traditions and conscience 

of our people as to be ranked as fundamental,’ Snyder v. 

Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 

674 (1934), or are ‘implicit in the concept of ordered liberty.’ 

Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 

82 L.Ed. 288 (1937). See Rochin v. California, 342 U.S. 165, 

72 S.Ct. 205, 96 L.Ed. 183 (1952). Fundamental to the concept 

of due process is the principle that every person who stands 

accused of a crime is entitled to a fair and impartial trial. 

Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135 

(1954); Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 
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1595 (1942). Our courts long ago recognized that an essential 

ingredient of a fair trial is the presumption of innocence with 

which an accused is clothed. ‘The principle that there is a 

presumption of innocence in favor of the accused is the 

undoubted law, axiomatic and elementary, and its enforcement 

lies at the foundation of the administration of our criminal law.’ 

Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 

39 L.Ed. 481 (1895).

‘The presumption of innocence,’ as noted by the court in 

Eaddy v. People, 115 Colo. 488, 492, 174 P.2d 717, 718 

(1946), ‘requires the garb of innocence;’ and the defendant is 

entitled to all the physical indicia consistent with innocence. 

Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973), cert. 

denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). 

Thus, from the earliest days of the common law a defendant in a 

criminal trial had the right to appear in court free of restraint. 

State v. Roberts, 86 N.J.Super. 159, 206 A.2d 200 (1965) 

(tracing the history of this rule from 1678); See Kranskopf, 

Physical Restraint of the Defendant in the Courtroom, 15 St. 

Louis U.L.J. 351 (1971). This right can be abrogated only in 

exceptional circumstances, such as where necessary to prevent 

escape, to protect those persons in the courtroom, and to 

maintain order during the trial. See, e.g., Commonwealth v. 

Cruz, 226 Pa.Super. 241, 311 A.2d 691 (1973); Woodards v. 

Cardwell, 430 F.2d 978 (6th Cir. 1970), cert. denied, 401 U.S. 

911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971).

The rule is stated in the A.B.A. Project on Standards for 

Criminal Justice, Standards Relating to Trial by Jury s 4.1(c) 

(Approved Draft, 1968): ‘Defendants and witnesses should not 

be subjected to physical restraint while in court unless the trial 

judge has found such restraint reasonably necessary to maintain 

order.’ The comments explain that physical bonds may create 

prejudice in the minds of the jury against the accused. ‘(T)he 

jury must necessarily conceive a prejudice against the accused, 

as being in the opinion of the judge a dangerous man, and one 

not to be trusted, even under the surveillance of officers.’ State 

v. Kring, 64 Mo. 591, 593 (1877) Quoted in Kennedy v. 

Cardwell, supra at 106. ‘It offends not only judicial dignity and 

decorum, but also that respect for the individual which is the 

lifeblood of the law.’ Illinois v. Allen, 397 U.S. 337, 350-51, 

90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970).

Mayhugh, 336 A.2d at 381-82. 
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We rejected Mayhugh’s claim that he had been deprived of the cloak of 

innocence because 1) he was not seen physically restrained with handcuffs, 

and 2) the restraint observed, if observed at all, was minimal. Thus, on its 

face, Mayhugh does not directly compel reversal here, as no relief was even 

granted in that case.

Nevertheless, Appellant was not restrained in this case at all: the 

sheriff was only standing near him as he testified. Appellant fails to cite any 

authority which suggests that the presence of a sheriff or similar security 

official in the vicinity of a testifying defendant implicates that defendant’s 

due process right to be cloaked in the presumption of innocence. Thus, 

Appellant’s claim lacks merit. 

In any event, at the beginning of Appellant’s testimony, and in 

response to Appellant’s concerns, the trial court instructed the jury not to 

take any adverse inference against Appellant from the presence of the 

sheriff, in an effort to mitigate any potential prejudice the presence of the 

sheriff might cause. N.T., 11/19/13, 143. Appellant did not object at trial 

that the instruction was insufficient to remedy any potential prejudice 

resulting from the sheriff’s presence, nor does he argue now why that 

instruction was insufficient to cure any resulting prejudice. On this basis, 

even if we were to find that the trial court erred, we would deem that error 

harmless as it was adequately remedied by the trial court’s instruction.

Finally, Appellant asserts that he was illegally sentenced under 18 

Pa.C.S. § 9718, as that statute violated the rule set forth in Alleyne, 133 
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S.Ct. 2151 (holding any fact that increases mandatory minimum sentence 

for crime is an element of an aggravated crime, not a mere sentencing 

factor of the lesser, that must be submitted to jury and proven beyond a 

reasonable doubt). See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. 

Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015). In Wolfe, this 

Court applied Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) 

(en banc), to find 18 Pa.C.S. § 9718 unconstitutional under Alleyne. The 

trial court agrees, noting that “[b]ecause Alleyne ..., ... Newman, and now 

... Wolfe render mandatory minimum sentences pursuant to Section 9718 

unconstitutional, Appellant’s sentence should be vacated and remanded.” 

TCO, at 16.

We agree with Appellant and the trial court. Appellant’s IDSI sentence 

was unconstitutional under the Alleyne/Newman/Wolfe line of decisions.4 

Moreover, because we believe this may affect the trial court’s overall 

____________________________________________

4 The Commonwealth suggests that we hold this matter pending our 

Supreme Court’s consideration of the Commonwealth’s appeal in Wolfe. 

See Commonwealth’s Brief, at 19-21. We are well-aware that Wolfe

presents a unique challenge to the Newman line of cases, as the 

Commonwealth aptly describes in its brief. Id. Nevertheless, Wolfe is 

clearly the law of this Commonwealth at the moment, and must therefore be 

dutifully applied by this Court. However, nothing in our decision today 

precludes the Commonwealth from seeking review in the Supreme Court of 

our decision to remand based on Wolfe. Indeed, because the Supreme 

Court is currently considering (or reconsidering) this Court’s decision in 

Wolfe, we believe the Supreme Court is the appropriate venue in which to 

seek a stay of resentencing if, indeed, the Commonwealth believes justice 

requires such relief. With regard to the propriety of granting such a stay, we 

express no opinion. 
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sentencing scheme, as Appellant received consecutive sentences, we vacate 

Appellant’s judgment of sentence in its entirety and remand for 

resentencing. See Commonwealth v. Williams, 997 A.2d 1205, 1210–

1211 (Pa. Super. 2010) (stating that “if a correction by this Court may upset 

the sentencing scheme envisioned by the trial court, the better practice is to 

remand [for resentencing]”) (internal quotations, citations, and corrections 

omitted).

In sum, we conclude that all of Appellant’s trial- and pretrial-related 

claims either lack merit or constitute harmless error. Thus, we do not 

disturb his conviction. However, because Appellant was illegally sentenced 

pursuant to an unconstitutional statute, 18 Pa.C.S. § 9718, we vacate his 

judgment of sentence in its entirety and remand for resentencing consistent 

with the Alleyne/Newman/Wolfe line of decisions. 

Judgement of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/20/2016