J. S55027/16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : v. : : NELSON MARTINEZ : Appellant :

: No. 1337 EDA 2015 Appeal from the Judgm ent of Sentence Entered April 8, 2015 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP - 39 - CR - 0002416 - 2013 BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E. * MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 10, 2016 Appellant seeks review of the Judgm ent of Sentence entered by the Court of Common Pleas of Lehigh County after a jury convicted him of Rape of a Child and related offenses. He challenges the discretionary aspect of his sentence, the sufficiency of the evidence supporting his designation as a sexually violent predator, and certain evidentiary rulings. The Hon. Kelly L. Banach has provided a thorough, well - reasoned Pa.R.A.P. 1925(a) Opinion that properly addresses the issues presented. We adopt that Opinion as our own, and affirm the Judgme nt of Sentence. The trial court has set forth the facts in detail and we need not fully restate them here. See Trial Court Opinion, dated October 20, 2015, at 2 - 8.

* Former Justice specially assigned to the Superior Court.J. S55027/16

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In sum, in the fall of 2012, on at least four occasions, Appellant sexually abused his 11 - year - old step - daughter. Appellant, who was married but estranged from the victim’s mother at the time of the abuse, had known the victim since she was four or five years old. The victim referred to Appellant as “Daddy.” After a three - day trial at whic h both the victim and Appellant testified, the jury found Appellant guilty of one count each of Rape of a Child, Involuntary Deviate Sexual Intercourse with a Child (“IDSI”), Aggravated Indecent Assault of a Child, Sexual Assault, Corruption of Minors, and Indecent Assault of a Child. 1 Appellant underwent a Sexual Offender Assessment Board Evaluation (“SOAB”), and obtained his own independent pre - sentence psychological evaluation. The court requested a pre - sentence investigation (“PSI”). At sentencing, Appellant did not present the results of his independent psychological evaluation. The court stated on the record that it had reviewed, inter alia , the PSI report, which included numerous prior drug offenses, the sentencing guidelines, victim impact state ments from the victim and her mother, the SOAB assessment, and a copy of a memo from the jail that indicated that Appellant had not misbehaved or participated in

1 18 Pa.C.S. § 3121(c); 18 Pa.C.S. 3123(b); 18 Pa.C.S. § 3125(b);18 Pa.C.S. § 3124.1; 18 Pa.C.S. § 6301(a)(1)(ii); and 18 Pa.C.S. § 3126(a)(7), respectively.J. S55027/16

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any programs, activities or employment. See N.T. Sentencing, 4/8/15, at 5. The court found A ppellant to be a sexually violent predator and sentenced him to consecutive statutory maximum sentences, for an aggregate term of incarceration of 431⁄2 years to 87 years. 2 See N.T. Sentencing, 4/8/15, at 52 - 61. After the denial of his Post - sentence Motion , Appellant timely appealed to this Court. Appellant and the trial court complied with Pa.R.A.P. 1925(a). Appellant raises the following issues for our review: 1. Whether the aggregate sentence of forty - three and one - half (43.5) to eighty[ - ]seven (87) years was excessive, unreasonable[,] and unduly harsh, and was an abuse of discretion? 2. Whether the trial court erred in prohibiting the testimony of juvenile witnesses, Noah and Moses Martinez, who would have offered potentially exculpatory material evidence i n contradiction of the victim’s testimony, which prohibition was highly prejudicial to the Defendant? 3. Whether the trial court erred in denying the Defendant’s motion in limine to exclude testimony of Deputy Sheriff, James E. Bonner, pursuant to Pennsylvan ia Rules of Evidence 401 and 403, as such testimony was irrelevant, speculative, conjectural, unsupported by scientific or expert opinion and was far more prejudicial to Defendant that it was probative?

2 Specifically, the court sentenced Appellant to the following terms of incarceration: 20 to 40 years’ incarceration on the rape conviction (count 1); a consecutive term of 20 to 40 years on the IDSI conviction (count 2); two concurrent 5 to 10 year terms for the aggravated indecent assault and sexual assault convictions (to be served concurrently with counts 1 and 2); 31⁄2 to 7 years for the co rruption of minors conviction (consecutive to counts 1 and 2); and 21⁄2 to 5 years for indecent assault of a child (concurrent with corruption of minors sentences).J. S55027/16

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4. Whether the trial court erred in ruling that the Def endant was a sexually violent predator? Appellant’s Brief at 3. In his first issue, Appellant argues that the sentencing court’s imposition of “consecutive statutory maximum sentences of twenty to forty years ... is excessive and indicative of the Court’s ill - will against the Defendant[.]” Id . at 16. He contends that “the court failed to explicitly state adequate reasons on the record or directly address the enumerated sentencing factors.” Id . For the following reasons, we conclude there is no merit to this sentencing challenge. The individual sentences imposed on Appellant are within the permissible statutory maximums and, therefore, clearly are legal sentences. Appellant’s appeal asks us to review the discretionary aspects of his sentence. See , e.g. , Commonwealth v. Gonzalez , 994 A.2d 595, 597 (Pa. Super. 2010) (acknowledging that a claim that an aggregate sentence was excessive after court imposed consecutive sentences challenges the discretionary aspects of a sentence). An appeal from the discreti onary aspects of a sentence is not guaranteed as a matter of right. Commonwealth v. Mastromarino , 2 A.3d 581, 585 (Pa. Super. 2010). Rather, where, as here, the appellant has preserved the sentencing challenge for appellate review by raising it at senten cing or in a timely post - sentence motion, the appellant must (1) “include in his brief a concise statement of the reasons relied upon forJ. S55027/16

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allowance of appeal with respect to the discretionary aspects of a sentence[,]” pursuant to Pa.R.A.P. 2119(f); and (2) “show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code.” Commonwealth v. Hill , 66 A.3d 359, 363 - 64 (Pa. Super. 2013). In the instant case, Appellant filed a timely Notice of Appeal and a timely P ost - Sentence Motion. He also included a Pa.R.A.P. 2119(f) Statement in his appellate brief. Although a court's exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question, where an appellan t avers an excessive sentence due to the court’s reliance on impermissible factors, the appellant has presented a substantial question for our review. Commonwealth v. McNabb , 819 A.2d 54, 56 - 57 (Pa. Super. 2003). See , e.g. , Commonwealth v. Dodge , 77 A.3d 1263, 1273 (Pa. Super. 2013) (holding that a defendant’s challenge to the consecutive nature of his sentence raised a substantial question where the defendant articulated particular reasons why consecutive sentences were unreasonable); Commonwealth v. Spen cer, 496 A.2d 1156, 1164 (Pa. Super. 1985) (vacating and remanding where sentencing judge in a robbery case showed bias in repeatedly referring to sixteen - year - old defendant as an “animal” and stating that it wished it could impose the death penalty becaus e it “would gladly pull the switch on you, Chief.”).J. S55027/16

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Having determined that Appellant’s issue on appeal raises a substantial question for review, we turn to the merits of Appellant’s sentencing challenge, mindful of our standard of review: Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appell ant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Rave n , 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation omitted). “In reviewing a challenge to the discretionary aspects of sentencing, we evaluate the court's decision under an abuse of discretion standard.” Dodge , 77 A.3d at 1274 (citation omitted). Additi onally, “this Court's review of the discretionary aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and (d) .” Id. Section 9781(c) provides, in relevant part, that “[t]he appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds ... (3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable. In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.” 42 Pa.C.S. § 9781(c) . In reviewing the record, we consider: (1) The nature and circumstances of the offense and the history and characteristics of the defendant.J. S55027/16

- 7 - (2) The opportunity of the sentencing court to o bserve the defendant, including any presentence investigation. (3) The findings upon which the sentence was based. (4) The guidelines promulgated by the commission. 42 Pa.C.S. § 9781(d). With respect to reviewing a sentence alleged to be “unreasonable,” the Pennsylvania Supreme Court has recognized that Generally speaking, “unreasonable” commonly connotes a decision that is “irrational” or “not guided by sound judgment.” The Random House Dictionary of the English Language, 2084 (2nd ed.1987); see 1 Pa.C. S. § 1903 (words to be construed according to their common and approved usage). While a general understanding of unreasonableness is helpful, in this context, it is apparent that the General Assembly has intended the concept of unreasonableness to be a flu id one, as exemplified by the four factors set forth in Section 9781(d) to be considered in making this determination. Indeed, based upon the very factors set out in Section 9781(d), it is clear that the General Assembly intended the concept of unreasonabl eness to be inherently a circumstance - dependent concept that is flexible in understanding and lacking precise definition. Commonwealth v. Walls , 926 A.2d 957, 963 (Pa. 2007) We are mindful that where, as here, the trial court has the benefit of a PSI, “i t is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed.” Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009) (discuss ing Commonwealth v. Devers , 546 A.2d 12, 18 - 19 (Pa. 1988)). Thus, if the sentencing court states that itJ. S55027/16

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considered the PSI, the court has properly explained the basis for the sentence that it imposed. Ventura , supra at 1135 (citation omitted). Here, A ppellant concludes that his sentence is “excessive and indicative of the Court’s ill - will against [him].” Appellant’s Brief at 16. In support, he quotes from the sentencing court’s colloquy, throughout which Appellant repeatedly interrupted to state his innocence and to argue with the judge. In particular, Appellant emphasizes the judge’s statements that (1) she was “offended ... at the vile way in which you [Appellant] speak about [the victim’s] mother, about the mother of your other children;” (2) “[y]ou are a vile, heinous, aggressive, dangerous man;” (3) “you are a scary scary, man. You have no regard for anyone other than yourself ... [a]nd I would not want to meet you under other circumstances; and (4) “But you are really climbing to the top of my list of truly despicable human beings.” Appellant’s Brief at 10 - 14 (quoting N.T. Sentencing, 4/8/15, at 51 - 59). Based on our review of the entire record, the briefs of the parties, the applicable law, and the comprehensive and well - reasoned opinion of the t rial court, we conclude that there is no merit to Appellant’s claim that his sentence was unreasonable or the result of the court’s bias. Moreover, contrary to Appellant’s contention, the court stated adequate reasons on the record for imposing the senten ce it did after acknowledging that it had read the PSI report. While some of the court’s language during sentencing may be perceived as harsh, it was not unduly so and did not manifest such “ill -J. S55027/16

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will” so as to render Appellant’s consecutive sentences unre asonable. As the jury determined, Appellant sexually abused his step - daughter and one of her friends; with respect to his step - daughter, he raped her anally several times, fondled and licked her breasts and genitals, and forced her to give him oral sex un der threat of her “getting in trouble,” all while acting in the role of her father. See Trial Ct. Op., dated 10/20/15, at 9 - 13 (reviewing case law and the record before concluding that the “lengthy sentence was justified by the heinous and physical and em otionally damaging acts that [ ] Appellant was found to have committed, the need to protect the public from [ ] Appellant, [ ]Appellant’s serious criminal history, and the [c]ourt’s opinion that total confinement was necessary and proper.”). In light of th e nature and circumstances of the offense, the history and characteristics of Appellant, the opportunity of the sentencing court to observe and interact with Appellant, the presentence investigation, and the jury’s verdict, we cannot conclude the aggregate sentence was unreasonable or, as Appellant contends, the result of “ill - will.” Accordingly, we affirm. Appellant next avers that the trial court should have allowed his two minor sons to testify at trial to present “potentially exculpatory material evid ence to contradict[ ] the victim’s testimony” regarding when and where the abuse occurred. Appellant’s Brief at 16. He contends that by quashing the subpoenas issued to compel the boys’ testimony, the court violated his “[c]onstitutional right to exercis e compulsory process, thereby depriving theJ. S55027/16

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Defense of material witness testimony in the presentation of a defense to the charges.” Id . at 18 - 19. As Appellant notes, the Pennsylvania Constitution guarantees an accused the right “to have compulsory process for obtaining witnesses in his favor.” Pa. Const. art. I, § 9. Our Supreme Court has addressed the right to obtain witness testimony as follows: The right to compulsory process encompasses the right to meet the prosecution's case with the aid of witnes ses, and the right to elicit the aid of the Commonwealth in securing those witnesses at trial, both of which are fundamental to a fair trial. This constitutional right, though fundamental, is not, however, absolute. Evidentiary rules based on legitimate st ate interests which exclude certain witnesses or certain testimony are not inconsistent nor incompatible with the right to compulsory process.[ ] Accordingly, where certain witnesses' testimony would not be admissible at trial, the Constitution does not re quire that a defendant be given the right to secure the attendance of witnesses which he has no right to use. Washington v. Texas , 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Our inquiry is thus directed to the question of the admissibility of the testimony which would have been given by the two witnesses whom appellant requested to be subpoenaed. Commonwealth v. Jackson , 324 A.2d 350, 354 – 55 (Pa. 1974) (internal footnote omitted). It is well - settled that “[q]uestions regarding the admission of evi dence are left to the sound discretion of the trial court, and we, as an appellate court, will not disturb the trial court's rulings regarding the admissibility of evidence absent an abuse of that discretion.” Commonwealth v. Russell , 938 A.2d 1082, 1091 (Pa. Super. 2007) (citation omitted). An abuse of discretion is more than a mere error of judgment; rather, an abuse ofJ. S55027/16

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discretion will be found when “the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill - will, as shown by the evidence or the record.” Commonwealth v. Busanet, 817 A.2d 1060, 1076 (Pa. 2002) (citation and quotation omitted). In the instant case, prior to trial, the court ordered that Appellant’s couns el be allowed to interview the boys. The guardian ad litem conducted the interview by posing questions prepared by Appellant’s attorney. Appellant’s attorney, the children’s caseworker from Children and Youth Services, and Allentown Police Department det ectives observed the interviews. Appellant’s attorney then informed the court that he still wished to subpoena the boys to testify at trial for Appellant, despite the guardian ad litem’s opposition to the subpoena. The court quashed the subpoenas after c oncluding that (1) the boys were unable to determine any dates at all; (2) no solid dates were provided either by the victim or the victim’s friend; and (3) the victim’s mother testified that she and the victim had been staying at Appellant’s residence off and on until November 7, 2012, when they moved out permanently and the victim did not return to Appellant’s apartment. Trial Ct. Op. at 15. Our review of the record indicates that the court’s decision to prohibit the boys’ testimony was not based on pa rtiality, prejudice, bias, or ill - will. The trial court has provided a thorough review of the relevant evidence andJ. S55027/16

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case law, and we affirm based on the trial court’s opinion. See Trial Ct. Op. at 14 - 17 (concluding, inter alia , (1) “the Court was not per suaded that the boys would be able to establish a timeframe either disputing the one testified to by the victim [] or [her mother] due to the fact that they could not recall specific dates or even descriptions of the residence in question;” and (2) “testim ony by the boys, which would be speculative at best, would present a risk of harm to the boys, given the representation from their guardian ad litem that their therapist(s) believed that contact with the Appellant would cause additional trauma.”). Appella nt next argues that the court erred in denying his motion in limine to exclude testimony from Deputy Sheriff James E. Bonner. The testimony at issue pertained to Appellant’s behavior during the preliminary hearing, i.e. , that while the victim was testifyi ng about the abuse, Appellant was “fondling himself” with his pinkies while his hands were shackled at his waist. Appellant’s Brief at 22 - 23, quoting N.T. Trial. Appellant avers that the testimony was “highly and unfairly prejudicial[.]” Appellant’s Bri ef at 21. The trial court has accurately and thoroughly addressed this issue and we affirm on the basis of its opinion. See Trial Ct. Op. at 17 - 19 ((1) noting, inter alia , the Commonwealth’s argument that the testimony was relevant because it tended to s how that Appellant was sexually aroused by the victim, which was the motive behind the alleged abuse, and (2) concluding the prejudice here did not outweigh the probative value of the testimony.).J. S55027/16

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In his final issue, Appellant challenges the sufficiency o f the evidence supporting his designation as a SVP. This Court will review a claim that the trial court relied upon insufficient evidence when designating a defendant as an SVP under the following standard: A challenge to the sufficiency of the evidence is a question of law requiring a plenary scope of review. The appropriate standard of review regarding the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most fa vorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses. As a reviewing court, we may not weigh the evidence and substitute our judgment for that of the fact - finder. Furthermore, a fact - finder is free to believe all, part or none of the evidence presented. At the hearing prior to sentencing the court shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator. Accordingly, in rev iewing the sufficiency of the evidence regarding the determination of SVP status, we will reverse the trial court only if the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element r equired by the statute has been satisfied. Commonwealth v. Haughwout , 837 A.2d 480, 484 (Pa. Super. 2003) (citations and quotations omitted). As our Supreme Court has made clear, this Court is limited to “simply assessing the legal sufficiency” of the evid ence presented; we may neither reweigh the evidence nor require greater proof than is required by the statute. Commonwealth v. Meals , 912 A.2d 213, 214 (Pa. 2005). In assessing the legal sufficiency, this Court must consider the “expert opinionJ. S55027/16

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that, to a reasonable degree of professional certainty, [Appellant] was a pedophile.” Id. at 223. Our role as an appellate court does not permit us to pick apart, on appeal, the merits of that diagnosis. Id. The diagnosis itself is evidence, and any attack on t he underlying merits of the opinion goes to “the weight, and not the sufficiency, of the expert’s evidence.” Id. at 224. In the instant case, Judge Banach has authored a comprehensive, thorough, and well - reasoned Opinion, citing to the record and relev ant case law, and discussing each of the factors considered in an SVP determination. After a careful review of Appellant’s argument and the record, we affirm the trial court’s determination that Appellant is an SVP on the basis of that Opinion. See Trial Court Op. at 19 - 24. The parties are instructed to append a copy of the trial court’s October 20, 2015 Opinion to all future filings. Judgment affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary Date: 11/10/20162 (: , l\'f "'\IU


### . . , ...1·

- · ~ -. 

### . . I" "'· ·' C~> c'.ri C> r t , -·I

1 18 P a .C on .S tat . Ann
. §3 12 1 § § C 2 1 8 P a .Co n . S tat. Ann , § 3 1 23 §§B s 1 8 P a.Con. S tat . Ann, §3 1 25 §§B 4 1 8 Pa .Co n. S tat. Arui. § 3 1 2 4. 1 s 18 P a .Co n . S tat . Ann
. §6 301 §§A lii 6 18 P a.Con
. Stat. Ann §3 l-"2 6 §§A 7 87 years o f in carc er ati o n. s e n ten c e d to s erv e an aggregate se n te n ce of n ot l e ss th an 4 3 l/2 ye ars n or more th an of all c o u n ts o f th e Info rm atio n. O~ Ap ril 8, 201 5 , after a H earin g h e ld b e f o re th e u n d er signe d , the Ap pell an t w as deemed a S e xually V i ole n t Pre dat or and was b e g an o n Au gu s t 4 , 2 0 14 and on Au gu s t 7 , 20 14 , th e j u ry foun d th e App e llan t guil ty In d ecent A ss au l t of a C hild ,s grad ed as a Mi sd eme an or o f th e Fir s t Degree . Ajury tri al Co rru p ti on ofMi n ors ,s grade d as a Fe lo n y o f th e T hird D e gree , and o n e c oun t of cou n t of Sexu al A s sault, 4 gr a ded a s a F e l o ny o f the Se c ond D egre e; o n e co un t of A ggr av ate d In d ec en t As s au lt of a C hil d ,3 gr a d ed a s a Fe l o n y o f the First D e gre e ; o ne I nterco u r s e wi th a C h ild .s grad e d as a Fe lo n y of the First Degre e ; o n e c o u n t of gra ded as a Fe l o ny ofthe Firs t D egree ; o n e co u n t ofl n v o l un t ary D eviate S e xual O n J ul y 7, 20 13 , th e Ap p ellan t w as arr ai gn e d o n o n e c o u nt o f Rap e o f a C h ild. ! KELLY L, BAN A CH

, J .: OPINION N ELS O N M ART INEZ ,

Appell ant N o , 2 416/ 2 013 1 33 7 EDA 2015 

### I I I 

### I I 

### I vs. COMMONWE ALT H O F P ENN S YLVAN IA IN THE COURT OF COMMON PLEAS OF L EfilG H CO U NTY, PENNS

YL VANIA CRIMINAL D M

SIO N Circulated 10/28/2016 11:34 AM3 S U MMARY O F T HE FACTS 

### Iris Martin e z, th e m other o f the vi ctim in 

### this m atter , h a d been in a re lati onshi p with the Appe ll ant since June o f 2006. At that time , th e vic tim, E.B., was fo ur or fiv e y e ars old
. After abou t a year of their re l ationship, E.B. be g an to refer to the Ap pellant as "Dad
. " In th e f all of 201 2 , Ms. Martin ez an d th e Appe llan t were s pen ding tim e bo th in th e same h ouseh ol d as we ll as apart. A s of mid

- October , 201 2 , the Appellan t was re siding at 830 W alnut S treet , Alle n town, Lehigh Coun ty, Pennsylvania , with his 14 y e ar old s on . E. B. and two a d di tional sib lings re sided with M s. Martine z. E .B. w o ul d visit the Appellant at his home on the w eeken ds
. On o ne p arti cu lar we eke nd in mid- Octo ber , 2 012 , E . B. c ame t o 

### visit th e Appellant
. E.B. re f

erred to the Ap pellant as " Dad
. " D u ring he r visit an d whil e they were alone , the Appellant a s ked E . B. if she li ked b oy s and knew h ow t o kiss. She sai d yes an d he d e mon strated by kis sin g h er h and. T he Appe ll an t lau gh~ d an d then a.s ke d if E.B . wan te d to learn h ow t o "real " kiss
. The Appellant too k E . B. to the playroom do wns tair s where h e p ro ce e ded t o kiss h er on the lip~ an d atte mpted t o " Fre n ch" kiss h er by sticking his to ngue in he r m o u th
. . E.B . s toppe d him b y refusin g t o o pen h er mouth
. At that point, the Appellan t pulled down his pant s and underwear , tellin g her that th at w as w hat a boy 's pen is l ooks like. E . B . left the roo m an d w en t ups tair s t o the bathro o m on th e second floor
. O n April 1 7 , 2015, the Appellant filed a Post

- Sente nce Motion
. O n April 28, 201 5, th e Cou rt de n i ed th e Pos t-S ente nc e Mo tion
. On May 7 1 2015, th e Appellant filed a N otice of Appeal in this matter. The Ap pellan t filed a Concis e St atement of R easons Complained of on Ap pe al on Augu s t 5 1 2 0 15. This Opin i on foll o ws.4

the same evening, whil e al one with th e Appell an t in his bedroo m , th e Appell an t started talkin g to E .B . . abou t masturbatin g an d en co ura g e d ~er t o u se th e t oy o n herself
. E. B . ob eyed him be cau se sh e was afrai d 'he would tell h er mo th er . Th e Appel lan t eng age d the vibrati on fu ncti on o n the s e x t oy and move d E .B. ' s h and and fin ger s in c ircle s o n her va gina. Th e App e llant ma sturb ated a s h e watc hed E .B . touch herself
. The App e llant p ut the lotion o n E. B .'s v ag in a an d tol d he r ho w b eau ti ful an d nic e sh e loo ke d
. Th e Appell ant ha d e ja cul ated and sho w ed E. B . th e sem en, tellin g h er "th is is insi de her v a gin a. E . B . co mp lied b ut the s e x toy di d not fi t in sid e o f her v a gina. Later Later th e s ame day, the Ap pe llant an d E . B . were al one wh e n h e a sked 

### if s he kne w about m asturb ation and "cum ." E.B. di d not tell an yon e, in cl uding he r moth er, abou t the in ci den ts becau se she was sc ared of being puni shed. b y he r mother and th e App e llant an d that the Ap pe llant wo uld hi t her. The n ext tim e E . B. vis i ted th e App ellan t, E .B. came d ownst ai rs wh ere the Ap pellant wa s si ttin g on the c ouch, watching te le visio n wi th
. hi s l ap to p o n his l ap . 

### E.B . ' s moth er was in the home , bu t n ot in th e room . Th e Appell an t whi spered t o E . B. th at he wan te d t o sh ow h er so me thin g . E.B . w en t ov er t o the App e llant w h ere h e sho we d her pic ture s an d vid e o s p f n aked girls and b oy s kiss in g and t o uch in g ea ch other. The Appellan t asked if anyo ne had li c ked E . B. 1 s genitals. When s he repli ed no, h e ins tru cte d E. B . to pull down h er pants , an d let h i m try so she cou ld experie nce ho w it fe e l s. E . B . co mpli ed and the Ap pell ant s t arted to li c k E . B . 's v agina, making E . B. fe el dis gus ting
. E.B. did n ot rep o rt thi s i ncident either , s cared th at h er moth er would th ink sh e w a s dirty
. When E
. B. re turned t o the Appellan t's hou se at a l ater date , the Ap pellant showe d he r a s ex t oy and l o tio n . E.B. as ke d w hat 

### it w as and th e Ap pe llant t old her that i t w a s a . se x toy . The Ap p ellant to ld E .B. to take the sex toy and se e i f i t would fit5

At s o m e point i n tim e, the Appell an t to o k E.B. to tw o se x stores , Cupid's Trea su res in Be thl ehe m , Pen n s y lv ania an d an o ther e stab li sh me nt in Allen t own , P enn s y l vania between th e h o urs of midn i gh t an d o ne in the m o rnin g. At Cu p id ' s Trea s ure , th e App e llant ins tru cte d E
. B . to wait in the c ar. Wh en th e Ap p e llan t returned, h e had a bo x of ch o col ate , straw berry, and vanilla p ac kets an d a dild o. The Appellant then to ok E. B . to the sto re in Allento wn . how a boy cums. " Trial Tr. V o l. 1 , 6 5:13 ~ 17 Aug. 

### 5 , 2014. 

### Further, the Appellant discu sse d w i th E . B the i ntim acies of his relati on sh ip with E . B. 's mother. The Ap pell ant als o pu t h is fin gers ins ide of E.B . ' s v a gin a. On ano th er o cc a s i o n , E.B 's be s t friend , K. R. , and E. B. w ere sp en din g tim e at th e Appe ll ant' s ho me . Th e girl s w ere in the livin g roo m wh e n E. B . l eft to go in to th e kitch e n . Th ere , the Appe llan t a s ke d E .B . if sh e th o ught that K. R liked se x toys . E . B . told him th at he w as n o t to to uch K. R., b ut di d agre e to a s k K.R. if she like d se x to ys . K. R s ai d no . Later, after th e g irls w ent upstai rs , th e App e llant comme nted to K. R. ho w much s he ha d gro wn and h ow her b rea st s were de ve lopin g . Th e Ap pe llan t lifted K.R. ' s shi rt u p and t ou che d her breas t . Th e Appell an t then di d the s am e to E .B . The Appe llan t co mme nted ab out E . B . ' s ni p ples an d p u t hi s m o u th o n h er brea s t, st ating that h e was h elp in g th e m g row . E.B . did not s hare this in fo rmation w ith any on e becau s e sh e was s cared and a shamed. K. R di d no t imme diate l y tell any o ne be cause she w a s scared. O n ano th er e v ening, E .B. cri e d to the Ap pell an t th at sh e did n o t want to co ntinue h avin g s e xu al c o n t a ct wi th him
. The App e llant ag re ed , saying th at th ey wo ul d go to H e ll i f the y co n tin u e d
. E . B . th e n fell a s l eep and w hen s h e woke up , h er p ant s and un derw ear were d o wn . Th e Ap pell an t t old her , "y o u c azne fi ve ti m e s . " Id. at 6 8:24
.6

O n y et an o th er occ asio n, the Appellant p laced h is penis in s ide of E . B. 's anu s. Tho u gh she complaine d that it hurt, th e Appellant to l d her that she wo u ld get used t o i t. This h appened tw o or thre e time s. Anoth er tim e, E.B . asked th e Appel lan t if s he could h ave a play piece t o th e g ame M ine craft. H e replie d that sh e had to earn it by ke eping hi s penis in her m o uth fo r o n e minute an d thirty s e con ds
. E.B. initially sai d no, b u t ultim ate ly d i d this three o r four times. E . B. ' s m othe r , Iri s Martin e z , ha d b e en in a re l ationshi p with the Appe llan t sin ce June of 2 006, wh en E.B . was four or five ye ars old. A fter abo u t a year of th eir re lati o n ship, E. B . b e gan to refer to the Ap pe ll ant as " Da d ." I n the fall of 2 0 1 2, M s. Martine z an d th e Appellant w ere sp e nding tim e both in the s ame hous e h o ld as well a s apart. I n N ovemb er o f 20 1 2, M s . Martin e z beg an to no tic e that E . B . was no t as s ocial as she was before. O n J anu ary 29 , 2 013 , E. B . w.as he l p in g th e Ap pellant wrap a present for h er y ounger b rother 's bi rthd ay at E . B . ' s re siden ce. At th at time , the Appell an t remarked th at E.B . 

### 's breas ts w ere de v e l o pin g an d E. B. bec ame angry. The birth day party co ntinu e d u ntil th e Appell an t l eft the resid ence in th e eve nin g. N oticin g that E . B . h a d b e en crying, Ms . M artin e z a s ked h er w hat was wron g. E. B. fin ally tol d · h ~ r moth er th at th e App ellan t ha d been t ouch ing her
. Shortly th ereafter, Ms. M artinez called th e Appellan t and su mmone d h im bac k to her apartmen t. Th e Ap pe llant d eni ed having ev er t ouche d E ,. B . inapp ro p riatel y . . At that ti me, Ms. M artin ez recal led finding a p ink sex toy 

### in the App ellant 's b edroo m clo se t wh il e p u tting laun dry away during the la st we ek o f O c t ober , 201 2. Believin g th at th e Appellan t was us ing it in a relationship with an other wo man, M s. Martine z too k the s e x to y an d b r ought i t b ack to her ap artme n t. Ms . Martin ez w a shed7

the sex to y , and at s ome point later in time, u s e d the s e x toy her se lf and then hid 

### i t in her cl o se t. Sh e di d n o t take i t back ou t o f th e clos e t ag ain u nti l de te c ti v e s c am e to interview E.B. On F ebruary 1 4 , 2 0 13, M s . Martin ez co n ta c ted the au th ori ti e s to repo rt the abuse. M s. Martin e z also arr anged fo r E.B. t o s pend ti m e with a family fri e nd, Kristine Hernan de z , to see if E. B . w o u ld re v e al d et ail s o f th e ab u s e to Ms. Hernan dez
. M s . Hernan d ez met wi th E.B. at Ms. H ernandez' s apartm e nt to spe ak to her a f e w day s after E . B . di s cl ose d th e ab u s e t o her mo the r . E.B ; w a s e xtrem ely u ps e t , and re lated th e abuse w hile crying unco ntr ollably
. Ms. H ernandez su rreptitiously had cal led Ms . Marti nez o n th e telepho n e s o that she cou l d h e ar wh at E. B . was desc ribin g. E . B. det aile d the abuse for M s . Hern an dez
. M s. Hernandez ackn ow l e dg e d that sh e als o us e d the se x to y on o ne occasi o n , p rior to E. B . tellin g her abo ut what h a d occurre d with the Ap p ell an t. On March 5, 2 013 , E.B. rep o rted to th e C hild A dv ocacy Ce nter an d unde rwent a medic al e x amination by M eg an F ai rchild , a p e d iatri c nurse p r acti tioner. The medical ex aminatio n inclu d ed a ph y s i cal ex amin ation and a m edical intervi ew, a s w ell a s takin g photogr ap hs
. Ms. Fai rc h il d authore d a rep ort, w hic h was review ed by Dr . J o hn Van Brakle , an expert in the are a of pe d iatric m edic ine. On Marc h 1 4 , 201 3 , Dr, V an Br akle perf

orme d a phy s ic al ex amin ati o n o f E . B ' s va ginal and rect al are as . H e d etermined there were tw o la ceration s in the re ctal are a, which would b e c onsistent wi th an al p e netr ati o n b y a p e n i s h avi ng taken p l ace in late O ctober or earl y N o v emb er 2 012. R eg arding the vaginal exam, Dr . Van Brakle determined that E.B.' s exam w a s no rmal , w h i ch w ould hav e bee n con sistent wi th th e tim e peri od of abu s e o u tl ine d by E. B.8 1) That th e aggre gate se nte nce i ss ued b y this C o u rt of 43 and % y ear s to 87 y ears was " e xcessiv e , unre asonable and u n duly h ars h, and was an abu se of dis cre tion
. " 2) That th e Court erred b y prohibiting th e testimony of j uv enile witn ess es, N o ah and M os es Martinez , w h o would hav e o ffered potentiall y excu lpato ry material evi de nce ; 3) That th e Court erred in denying the Appellant' s M oti on in L imine to Excl ud e Te stimo n y o f D ep uty S h eriff James E
. B onner p ur s u an t t o Pa.R'Evid, 40 1 an d 403, " as s uch te s timon y was irrelevan t , specul ative, co njectural, unsup po rted b y scie nti fic or exp ert opin ion and was far more p rejudi c i al to Defe n d an t than i t w as pr ob ati v e;" and , Th e Appe ll an t avers th e foll owi ng on Ap peal :

DISC U SSION AND C O N CLU SI ONS 

### OF LAW 87 y e ar s of inc arc er atio n . se nte nce d t o an a ggreg ate s e nten ce o f no t l e ss th an 4 3 an d a· half ye ars n or mo re than App el lant w as foun d to me et the criteria fo r a Sexually Vi ole nt Pred ator and wa s sen te n c ing
. A t th e c o n cl usio n o f th e Se nte ncin g H earing o n April 8, 201 5 , th e The res ults o f th e in depend en t eval uation were not p resente d at th e tim e o f · fund s, 

### had an indepen dent ps ychol ogi cal eval uati o n perfo rm ed by D r . Fr ank Dattili o . as a Sexu all y Vi ol en t Predator
. The App e ll an t, after reque stin g an d b e i n g provi ded Pred ator. Th ereafter , the Common we alth did file a p raecipe to cla ss ify th e defend an t Eval uation , whi ch de termin e d that he doe s me e t the c ri teria for S exual l y V i o lent Upon co n viction, the Appell an t und erw ent a Se xual O ffend er Asse ss ment E.B .'s mother
. w ere th e re sult o f 

### a " w o m an s co rne d , " re f erring to his tumultuous re lati on shi p with E.B . 's friend , K. R. The Appe llant o pined that the a ccus atio ns ma de by E. B. and K . R. use a s ex to y, and sh o wing E. B . hi s g enital s . Fu rthe r , he d e nied hav ing tou ched S pe cifi call y , the Appellan t d en i ed r aping E . B , , touchin g her g e nitals, forcing E . B . t o The Appe llan t de nie d ev er t ouc hin g E . B . inapprop riately. He stated th at h e treate d E.B. as his o wn dau gh ter, h aving r ai sed her since sh e wa s 4 years old.9

without penalty, probation, fine, partial confinement, and total confinement." is authorized to choose one or more of five options as an appropriate sentence - guilt Unless a minimum period of confinement is statutorily required, "the trial court partiality, prejudice, bias or ill-will
.." 

### Commsmioealih u. Smith, 673 A.2d 893, 895 (Pa. l 996)(internal citations omitted). discloses that the judgment exercised was manifestly unreasonable, or the result of the trial court will not be found to have abused its discretion unless the record (2002). ' 1 An abuse of discretion is more than just an error in judgm.ent and, on appeal, statutory limits or be manifestly excessive. Mouzon, 571 Pa. at 419, 812 A.2d at 617 constitute an abuse of discretion, the sentence imposed must either exceed the (1990), citing Commonwealth v. Fries, 362 Pa. Super. 163, 523 A.2d 1134 (1987). To discretion." Commonwealth v. Minott, 395 Pa. Super. 552, SSS, 577 A.2d 928, 929 and a sentence will not be disturbed on appeal absent a manifest abuse of that "Sentencing is a matter vested in the sound discretion of the sentencing judge, by the Court on April 28, 2015. this requirement by filing a Post-Sentence Motion on April 17, 2015, which was denied Commonwealth 

### v. Reeves, 778 A.2d 691 (Pa. Super. 2001}. The Appellant satisfied sentencing proceeding or in a post-sentence motion to modify sentence. See requires that an Appellant first raise specific issues of error either during the 621 (2002). A prerequisite to a challenge of the discretionary aspects of sentencing aspects of a sentence. See Commonwealth v. Mouzon, 571 Pa. 419, 425, 812 A.2d 617, As a preliminary matter, there is no absolute right to appeal the discretionary 

### Harsh and Excessive Sentence App. Concise Stmt., 11-4.

4) That the classification of the Appellant as a Sexually Violent Predator was in error.10

Co mmon wea lth v . Tuladzi ecki, 522 A
. 2 d 17, 20 {P a. l 987)( citin g 4 2 Pa. Cons. Stat. §972 l (a)}
. In general , the s entence "should c all fo r confineme n t that is consistent with the protec tion of the publi c, the gr av i ty of th e o ff ense as it relate s · to the imp act o n th e Iife o f the v ic tim and the commun i ty , and the re hab i li tati v e needs of the [Appellan t] ." · 4 2 Pa.C ons.S tat. §97 2l(b). Se e Com mo nwea lth v . Wal ls, 9 26 A. 2d 957, 

### 962 (Pa. 200 7 )
. Ho w e v er , the s e fac to rs are in no way ex c l u si v e, and a sen tencing court i s e n titled to c onsid er th e tot ality of circ umstan c es when m akin g i ts d ecisi on. "Th e c ou rt s hall als o cons ider any guidelines fo r sen tencing a d opte d by the Pennsy l van i a Co mmi s s i on on Sente ncin g an d 

### taki ng e ffe ct pur suan t to sec tion 2 155 (re l ating to p ublicati o n of guidelin e s for sentencing )
. " Wa lls at 963 (italics adde d ). "Al ong wi th the se general st andards
. . . th e co u rt i s gi ven more speci fic cri teria to consider with respect to e ach of the alternatives. Thus , to tal con fin ement should b e impo s ed if t

he court 

### is of the o

p ini on th at it is ne cessary bec ause of a ris k that the [ Appellant] will c ommi t an o ther crime , becaus e i n stitutionalization would provid e the mo st e ffe c tiv e correc tio nal treatm ent , or be cause anythin g le s s would d epre ciate th e · seriousness o f the
. cri m e. Furth er , the c o urt' s opin i on is t o be gu i d e d by co n siderin g 'the n ature an d circum s tances of th e crime and th e hi story, character and co ndi tion of the [Appellan t]. "'42 Pa.Con s . St at . §9725. Tula dssie c ki at 2 0. Gi ve n th e ge riered outlin e o f considerations provided in 4 2 P a. Cons
. Stat
. § 9 721 and §9725 , it is clear th at the Pen ns ylvania legislatu re h a s v e sted br oad discre tion in th e tri al c o u rt to fa shion a s entence that is appro p riate giv e n the partic ular set of facts an d circ u m s tances for th e in di vidual ca se at bar. Sentencing gu i deline s are con s idered to be non - binding and a dvi sory in nature ,

. al thou gh th ey must be c o nsi dered by th e senten cing c ourt . Se e Commo nw ealth v. Walls } 926 A.2 d 957 > 964 ( P a. 200 7). Therefo re > an app e llant court will "va cate a11 7 The Appellan t and his coun se l receiv ed all of the same attachmen ts , abse nt th e vi ctim impact s tatement s of the vic tim and her mo ther
. The Ap p ellant w as p rovi d ed an op p ortun i ty to review those statements at the time o f the S ente ncing Hearing. abnormality o r condi ti ons e i th er an d that ess enti ally, the co nclu sio n rea che d by Ms. abnormality or c on dition
. He had n ot u n dergon e any 

### treatment fo r any mental App ellan t ' s me d i cal an d c rimin al histo ry di d not in dic ate that he ha d a m e ntal h eal th argu ed that th e Ap pe llant sho uld n ot be c l ass ifie d as a S VP b ase d on th e fact th at the the repo rt, bu t not to th e conte nt or concl u sions contained th erein. Defense c ounsel Cou nse l for the Co mm onw eal th an d fo r th e Appell an t stip u l ated t o the ~d mi ssibility of the concl u s i on that the Appellan t was a S exually V i ole nt Predato r (herein af ter "SVP"). con ducte d by P aula B rus t of th e Sexual Offen der A s sessm ent Bo ard, w hich con tain ed In ad di tion, the Court recei ved a cop y o f th e Se xual O ffend er Eval u ati on obj ectio ns to certain s tatem en ts con t ained within th e PSI an d bro u ght th e Court' s atte nti on t o thos e ob

j ections at th e tim e o f the Sentencing Hearing. victim i mpact st ateme nt fr om th e victi m's mo ther ." Co un se l for the Ap pellant made mi sconduc t s and
. did n ot particip ate in an y pro gr ams, a ctiviti e s or empl oyme nt , and a stateme nt, a c opy of a mem o fr om the jail wh ich indicated th at th e Appell an t had no thereto w ere sen tencing guidelin e s, the affidavit o f probable cause , the victim impact Report p repared b y the Le high C ou nty O ffice of Pr obati on and Par ole. A ttach ed 

### Inform ation
. I n anti cip ation 

### o f sen ten cing , 

### the Co u rt revie we d th e Pre-Sentence I n th e case at bar, the Appe llant was foun d guilty by J u ry of e ach coun t of 

### the 8 95 ; 4 2 

## Pa .c.s · . § 9 78 l(c). app e ll ate c ourt sh all af firm th e s en te nce impo s e d b y th e s enten cin g c o urt. n Sm it h at citing 4 2 P a . C.S. § 978l ( c)(3} 

### ( emphasis a d ded). 

### However, •[i} n all other 

### ca ses the outsi de the se ntenc in g guid e lines an d th e s enten c e is 

### u nreaso na ble.' Sm ith at 8 95, s en tence an d re m and to the sen te n ci n g cou rt if ' the senten cing c ourt sen te n ced12

Brust was based on the findings of fact made by the Jury. The Commonwealth argued that the analysis which led to the Appellant's classification as an SVP was more 

## than
an examination of the facts found to be true by the Jury. Rather, the evaluator considered the fact that over a period of at least six months, the Appellant had recurrent, intense sexually arousing fantasies, sexual urges or behaviors involving sexual activity 

### with a prepubescent child or children generally age 13 or younger, that the Appellant acted on these sexual urges or fantasies, 

### and that the age of 

### the Appellant and his victims were consistent with the criteria for Pedophilic Disorder, which "will cause him to experience an internal drive towards sexual offending and his disorder predisposes him towards committing sexual crimes in the future." See Exhibit C-1, p.9. The evaluator also noted that the presence of multiple victims (E.B. and K:R.} is sufficient but not necessary for the diagnosis. The evaluator highlighted that the Appellant groomed and bribed E.B. and attempted to normalize the sexual activity. E.B. indicated that she was afraid of the Appellant. At the conclusion of the Sentencing Hearing, the Court sentenced the Appellant· to serve an aggregate sentence of no less than 43¥2 years nor more than 87 years of incarceration. The Appellant is unable to show that the sentence constituted an abuse of discretion. The sentence did not exceed the statutory limits and was not "manifestly unreasonable or the result of partiality, prejudice, bias or ill will." Smith at 895. Rather, the Court carefully weighed the sentencing factors, including the · protection of 

### the public, the gravity of the offense on the victim and the community, and the rehabilitative needs of the Appellant. Without question, the crimes the Appellant was convicted of were among the most heinous and despicable. He acted on his 

### own sexual urges and desires, consistent with an individual suffering from Pedophilic Disorder, without regard 

### to the short and long term effect he was having on1 3

The C ourt's le ngth y se n tenc e w as jus tifi e d by th e h eino u s an d ph y s i cally and em otion ally dam aging a cts that th e Ap pe llan t w a s fo und to h ave co mmitted, the need to protect th e pu b l ic from th e Appe llant , the Ap pellant ' s seriou s c riminal history, an d th e Court 's o pin ion th at tot al co n fin e me n t wa s ne ce ssary and p ro per. Wi th ou t e vi denc e of an abus e of di s c re tion, the Appell an t' s clai m of an e x ce ssive an d harsh se n ten ce o u ght to fail
. E , B. and transitiv e l y , on th e lives of his other c hildren
. Anythin g short o f total
co n fin em ent , fo r a s ubstantial am oun t of time , w o ul d d epreciate th e seri o u s ne ss o f th e cri mes committed on the m os t vulnerable of vic tims. While th e Appe llan t h as n o pri o r sexual ass aul t s as part o f h i s c rimin al history, this is m os t certainl y not h is first bru s h with serious c ri minal ac tions. Am ong hi s c o nvi ctio n s are atte mpted burglary , conspirac y to possess i o n with in te n t to d e li ver ,

· an d pos se ssion wi th inten t to deliver
. His crim es in th e p ast were seriou s an d sig n ific an t . The Co urt was also ab l e to ge t a se ns e o f th e Ap pe ll ant ' s c har a cter and co nditio n at the ti me of tri al an d du ring the s e ntencin g h earin g . Althou gh h e is enti tled to m ain tain hi s i nn oce nce ev e n in th e fac e o f overw helming tes timon ial ev idenc e t o the co ntr ary, th e Appellant treate d th e Co urt and th e entire j udicial pro ces s wi th dis d ain and disre s pe ct , co ns t an tly spe aki ng ov er h is atto rn e y , the att orney for the Co mmon we al th , and th e Co urt. He s poke dis para gingl y of th e v i cti m ' s mo ther , hi s wife, cal ling her a liar
. H e a ccu sed th e Di stri ct A ttorne y's Office and th e inv esti gatin g agenci e s of f abric atin g e vi den c e in o rder to e stabli sh high co n v icti o n r ates. H ~ to ok ab sol utely n o respo nsi bility for wh at h app ened to th e 12 y ear old vic tim
.14

T es timony 

## ofJuv e nil e W

i tnesses The Ap pellant n ext av ers that the C o urt erred in pr ohi bitin g the te s timon y of the Appellant's tw o minor childre n, N .M. and M.M. I t i s h i s belief that their te s timon y woul d h ave bee n e xculp at ory in n atu re. B y way of ba ckgr ou nd , the Ap p e ll ant ' s att orne y, Gl en n Go odge , E squ ire, i ssu ed subp o enas to th e ju v e nile s , care of their guardian a d li te m Catherine Ko lle t , E s quire . Atto rne y Koll e t bec am e gu ard ian ad l i tern for the two boy s af ter th e y were p laced in to th e cus t o dy of the Leh i gh C o unty Offic e of C h ildren an d You th Servi ces on M arch 1 2, 2 0 13. Prior to that date , th e bo ys were living with the Appellant, who had so l e l e gal and p hysic al c ustody. On M arch 1 2 , 201 3, it was de termin e d th at the App ellant ha d left the area in th e wake of ch arges b ein g filed in the in st ant m atter . Atto rney G oodge h ad re que ste d to speak with the boys via Atto rn ey Ko ll e t , w h o d e n i ed h im acc ess , statin g that s he di d no t b e lie ve i t wou ld be 

### iri th e bo ys' best in teres t . As they were therefo re "unavailabl e" to the d ef e n se , Att orney Goodge app eale d to th is Cou rt to d etermin e ifhe oug ht to b e permitted t o sp eak t o the b oys as m aterial wi tness e s. A t the tim e , A tt orn e y Goo d ge beli e ved that the boy s wo uld tes tify th at on the date s all e ged, E.B. did no t vis i t the Appellant at the apartmen t at 830 Walnu t Stre et. A ttorn ey Koll e t , during a H earing on August 4, 20 1 4, o n the e v e of Tri al , argu e d that s he ob

jected t o th e b oy s bein g in tervi ewe d b ecau se s he bel ieve d it was no t in th e ir b e st in tere st . She cite d the c onc ept of " tr aum a bon d ," where in the c hil d;ren had experi en c ed "su c h tr auma th at the y are overly attache d 

### and i t would do harm to them to m ake con tact." No tes o f Te stim ony , Au g. 4, 201 4, p.10
. At the c onclu sio n of the he arin g, the Court o rdered that Attorn e y Goo d ge 

## b e p r ovided an oppo rtu nity t o in terview the b oys .1 5

O n Au gust 6 , 201 4 , the boys participated in an in terview whereby Atto rn ey K ollet pose d qu esti o ns prepare d by Attorney Goodge. Atto rn ey Goodge observed the intervie w, a s well as a C hildren an dY ou th C as ewo rker an d Detecti ves J ohn Bu c kwal te r an d Meli ssa Go gel of the All ento wn Po lice D epartm ent , th e affi an ts in this case. After making his observatio n s, A ttorn e y Goodge informe d the C o urt th at he s till wish ed t o subpoena the boys to testify at trial for th e Ap pe llant. He further
represented to th e C ou rt th at Atto rn ey Ko ll e t, as guardian ad li tem fo r th e b o ys , o ppo sed th e su b poen a. While the jury was in rec e ss, th e Court heard from Attorneys Kollet an d Good g e regar ding th e subpoena for the boys' te stimony
. Attorney Goo d g e rep re sented that du ring th e Interv iew , b oth of the b oy s st ate d th at E.B . did n ot visit th e Ap pe llant at 830 W alnut S treet after s he and h er m other m ove d o ut of the re si denc e and fu rthe r stated that K. R. had n ever visite d
. the apartme n t after E.B. and h er mother le ft
. N eith er o f the boy s coul d reme mb er sp ecific d ates no r co ul d e i th er des c ribe the hou se that th ey lived in at the tim e. Atto rne y G oo dge ass erte d that the boy s' be lief that
. n o visits h ad. taken place after E.B. and her mother mo ved o u t was materi al an d relev ant to th e Appellant's case. The Co urt wa s able to r ec all fr om the prev i o us day s' te & tirn ony th at E. B . and K.R. w ere un ab l e to testif y reg arding co ncre te d ate s of th e in cid en ts with th e Appellant. · Further testimony from E.B. 's m other, Iris Martinez, indicated that al th ou gh sh e had se cured another re sid ence, she an d E. B . had b een st aying at the App ellan t's re s i de nc e o ff an d on un til No ve mb er 7 , 20 12, wh e n th ey m ov ed out an d E.B. di d no t return to the Appe ll an t 's apartme nt. Therefo re , bec au se th e boy s were unable to d e termin e any d ates at all, and no solid dates were provided e i ther by E.B. o r by K. R., th e C ourt w as not per sua de d that a cle ar tim e fr ame h ad b ee n e stablish ed16

regarding when the 

### boys stopped seeing 

### E.B. and/or 

### K.R. at the apartment on Walnut Street. In the Court's belief, to compel the boys to testify to facts that were speculative at best presented too great a risk of additional trauma. Hence, the subpoena for the boys to testify was quashed. Under both the Pennsylvania 

### and Federal Constitutions, "a criminal defendant has a right of compulsory process to obtain witnesses in his favor." 

### Commonwealth u. McKenzie, 581 A.2d 655, 657 (Pa. 1990)(citing 

### Commonwealth v. Lahoud, 488 A.2d 307, 310 (Pa.Super. 1985) {allocatur denied}, quoting 

### Commonwealth v. Allen, 462 A.2d 624, 627 (Pa. 1983)). See also 

### Commonwealth v. Jackson, 324 A.2d 350, 354~355 (1974. A criminal defendant "'has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."' McKenzie at 657, citing 

### Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967). "[The] constitutional right, though fundamental, is not, however, absolute." 

### Commonwealth v. Jackson at 355. "In order to compel the attendance ofa witness at trial, it must be shown that the information possessed by the witness is material, Le., capable of affecting the outcome of the trial, and that it is favorable to the defense." McKenzie at 657, citing United States v. Valenzuela--Bemal, 458 U.S. 858, (1982). "When reviewing a court's disposition of a motion to quash a subpoena, [an appellate court will} grant great deference to the factual findings of the trial court. [It] will affirm the court's decision unless [it findsJ that the court abused its discretion or committed an error of law." 

### Commonwealth u. Simmons, 719 A.2d 336, 340 {Pa. Super. 1998). "An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of17

actions of the Appellant as "fondling himself," At the time, the Appellant's hands were numerous times with each time lasting under a minute. The deputy described the 

# . his crotch area and used his two small fingers to rub himself in the crotch area> the Appellant, observed that while ~.B. was testifying, the Appellant reached down to Deputy Bohner, while standing at a 45 degree angle and an arm's length away from · 

## . . Bonner's observations of the Appellant at his preliminary hearing. Specifically, to Appellant than it was probative. The testimony in question refers to Deputy conjectural, unsupported by scientific or expert opinion and was far more prejudicial to Pa.R.Eyid. 401 and 403, in that the testimony was irrelevant, speculative, Motion in Limine to Exclude Testimony of Deputy Sheriff James E. Bonner pursuant Next, the Appellant argues that the Court erred in denying the Appellant's 

### Testimony of

Deputy Sheriff and was not manifestly unreasonable. Therefore, this portion of the Appeal ought to be dismissed. additional trauma. The decision was not based on partiality, prejudice, bias, or ill-will litem that their therapist(s) believed that contact with the Appellant would cause present a risk of harm to the boys, given the representation from their guardian ad Court believed testimony by the boys, which would be speculative at best, would recall specific dates or even descriptions of the residence in question. Further, the the one testified to by E.B.> K.R., or Ms. Martinez due to the fact that they could not not persuaded that the boys would be able to establish a timeframe either disputing Here, the Court did not abuse its discretion. As stated above>the Court was (Pa.Super.2001). partiality, prejudice, bias, or ill-will." Common1:°ealth u. Jackson, 785 A.2d 117, 1181 8

shackle d to his front waist are a. I t continued until the d epu ty m otion e d to the Ap pellant t o sto p.

" [T'[he admis si on o f eviden c e is within th e sound d iscre tion of the tri al c o urt and wi ll b e rev ersed onl y up o n a s ho wi ng th at the tri al co urt clearly abuse d it s disc retio n ." Co mm o nw e alth v. Stutle r, 96 6 A
. 2d 5 9 4 , 5 9 9 (Pa. Su p er .2 009) , citing Com mo n we alth v . Treib er , 8 74 A .2 d 2 6, 31 ( Pa . 200 5 ). "Admi s sib ili ty depends o n re l e vance and prob ati ve 

### v al ue , " Id

. 

### " Evi d en ce is re lev an t if i t l ogi call y 

### tends to e s t abli s h a m aterial fa ct 

### in th e ca se o r te n ds to su pp o rt. a rea so nabl e inf ere n ce re gardin g a m aterial fac t . " Co mmon wea lth v. Fo ley , 3 8 A. 3d 8 82 , 8 9 1 ( Pa . S u per. 2 012). " E vide n ce , e v en if
re lev an t , may be ex cl u ded if it s p ro b ativ e value is outweighed by th e po tential pre ju di ce ." Co mm o nwealth v . Franz e n, 4 2 A. 3 d 1100 , 1 10 6 ( PaSup er . 20 1 2)( ci tin g Commo nw e a lth v

. Pag e, 9 65 A
. 2 d 1 2 12 , 1 22 0 ( Pa. S up er.2.0 0 9 ))
. "D etermin ati on s ab o u t th e a dmi s s ibility o f e vi den c e are entru s ted t o th e so und dis cretio n of th e trial c ourt and wil l b e rev er se d o n ly u pon a s h owing th at th e trial c o urt cl early abu se d i ts disc reti on . " Commo nw ea lth u. P a rke r , 8 82 A
. 2d 4 88, 4 9 2 [ P a. Sup er, 200S)(cit ati on omitte d ). " D iscre ti on is abused w h en the cou r se p ur s ued rep re sen t s no t merel y an err or o fju d gm e nt, b u t w h ere th e j u d gme n t is manife stl y unre a s o nabl e o r where th e l aw is not ap p lie d o r whe re the rec ord s h ows th at the ac ti on is a re sul t o f p arti ali ty, pre ju dice, b ia s or ill will
. " Co mm o nw ea lth 

### v~ Wid mer, 7 4 4 A.2d 745 , 75 3 (Pa. 20 0 0}(ci tin g Co ker v . S
. M. F lick inge r Compa ny

, Inc. , 62 5 A. 2d 1181 , 11 8 5 (Pa
. 19 93 )
. The Ap pe ll an t i s unab l e to s h ow an ab u s e of di screti on. A t th e Mo tio n in Li. min e H e arin g, h e l d on Augu s t 4, 2 0 1 4, cou n s e l fo r th e Ap pe ll ant ar gu ed that Dep uty Bo n ner ' s te s tim on y w a s i rre l e v an t an d h igh ly 

### preju di ci al. H e as serted th at th e pre limi nary hearin g was h el d o v er a ye ar af ter th e all e ge d in ci dents w ere t o hav e taken

## \ 19 p l ace , that there was no expert opin i on regarding whether the Appe ll ant was actually engag ed in sexual aro u sal at the tim e he was observed b y the deputy , o r if h e was mere l y u n c o mfo rt ab le
. Th e Commo n wealth argued that the testimony was re l e v an t in th at i t ten de d to s how th at the Appe ll ant wa s s e xually arou s ed by the v ic tim , E . B . , wh i c h w as th e mo ti v e b e h in d the all eg ed abu s e. Fu rth er , th e C ommonw e alth su gge sted th at th e d epu ty w o uld on ly b e te stifyin g ab ou t h i s ob serv atio n s o f th e Ap pell ant at the p re liminary hearing an d th at oth er reas on s behi n d the Appe ll ant 's be hav io r c oul d be ferre ted o ut on c ros s - e xaminatio n . The C ou rt d e termin e d that the tes tim o ny of th e dep uty w as rel ev an t to sho w that th e Appell an t re a cte d t o E.B .'s te stim on y at th e pre liminary heari ng b y; in th e d eputy ' s obs ervation and analy s is, fo n d lin g h im se lf. De fe nse c ou ns el w a s able to cross e xamine Deputy Bonn er regarding hi s o b serv ation o f 'th e Ap pel lan t and to make argum e nt that the d epu ty ' s o bservati on was erro neous. Whil e every piece of e vid en ce tending t o sho w a defendant' s guilt is prejudicial by its very n ature, the preju di c e here did not o utweigh the pro bative v alue o f the testimony of the deputy. The re co rd cann o t s uppo rt the Appellant's argumen t that the C ourt's d ecision w as based on partiality, b ia s, p re j udice o r ill will. Therefore, the Appellan t' s argument fai l s and this portion o f th e Appeal ought to b e dismissed
. Cl ass ifi ca tio n as a Sexua l

l y V iolent Pr eda t or

" [ Ij n' revi ew ing th e s uffi cie ncy of th e evi d ence reg arding the d e termination of S VP st atu s, we wi ll rev ers e the trial c ou rt only i f th e Co mm o nweal th ha s no t pres e nte d cle ar an d co nvi n cing e vid en c e su ffi cie nt to en abl e the trial co urt to d etermin e that e ach e lem en t re qu ired by th e st atu te ha s b ee n satisfi ed ." Co m mo nw ea lth u . Pl uci ns ki, 868 A.2d 20, 2 5 (P a .Super. 20 0 5){ci t atio ns o mi tte d). " Th e cle ar an d co nvin c in g s t andard re qu ire s e vi d e n c e th at is ' so cle ar, dire c t, w eig h ty and c on vin cin g as t o

### \ 20 enable [ the trier of f

ac t] to co me to a clear co n victi o n , with o ut hesi t ancy, o f the truth of th e pre ci se fa c ts { in] i ss ue . " Plu ci nski at 25, ci tin g Com m onwe alth v. Ma ld o na d o> 838 A
. 2d 7 10 , 7 1~ (2 00 3)( inte m al citati on o mitted). "P e nn s ylvan ia ' s versi on of Me g an's L aw defines an SVP as ' a per son who has b e en convic te d o f a s e xually v iolent o ffe n se a s set forth in se ction 9 79 5 .1 (re l atin g to registr atio n) and w h o is d e termine d to be a s e xu al ly vi olen t p redator under s e c ti o n 9 7 95.4 (rel ating to a ss e ss ment s) du e to a men tal abno rm ality or pers on ality di sorder that makes the pers on like ly t o engage in p red at ory sexually v iole nt offenses. " Com mo nwe a l th v. G eiie r, 92 9 A.2d 6 48 , 64 9

- 650 (P a. Sup er . 2 007)( ci ting 42 Pa .

· Co ns.St at. Ann. § 9792 ). "T h e pr ocess o f d e termining S VP s t atu s is s tatutorily man date d and w el l-d efined. The triggerin g ev en t is a con vic tion for o ne or m ore o ff ens e s s p ec ifie d in 42 P a .C. S.A
. § 979 5
. 1, which , in turn , prompts the trial court to order an SVP as s essment by the {Sexual Off e n d ers Asses s ment B o ard ). " Comm o nwe a lt

h 

### u . D ix o n, 90 7 A. 2d 533 , 5 35 (Pa. S u per 200 6)( citati o ns o mitted)
. " At the core of the exp ert 's as s es s me nt is a d etaile d list of fa c to rs, which are m an d at o ry and are des ign e d a s " cri teri a by wh i ch
... [th e] like lihood [ of reoff e nse] may be gau g e d ." Id. at 5 35-5 36 (citing Com mo nwe a l t h v . B ey, 841 A
. 2d 562 , 566 (P a. Sup er .2 004))
. "The sp ecific que s tion fo r th e S OA B exp ert. a s w e ll as an y o the r e xp ert wh o tes ti fies at an SVP h e aring, is w heth er the d e fendan t sati s fi e d the defini ti on of s e xually vio lent pre d ator s et out in the s t atute, that is, whether h e 

## or she suffers fro m 'a mental abn ormali ty or per so nality di s o rder that makes {him o r h er } like l y to e ng ag e in pre datory se xu ally vio l en t offe nse s . " Dixon at 5 3 6 , ci ting 4 2 Pa . C
. S
. A
. § 9 7 9 2
. Th ere fo re, "the sal ient inquiry
. . . in d etermin in g SVP s tatus is identifi cation o f the i mp etu s b e hind co mmiss i o n of the o ffense, th at is , w heth er it pro c e eds from a mental d ef ec t / p ersonality di s order o r another m o tiv ating fa ctor . The answer to that que stio n2 1

Evaluati o n, which determin e d that h e d oes me et the criteria for S exu ally V iolen t Upo n c o n vi cti on , th e App e ll ant un derw e nt a Sexu al Offender Assess men t S VP de sign atio n." Co m mon we alth u. Feu c ht, 95 5 A.2d 3 77, 3 8 1 [Pa .S uper, 2008)(citin g Com m onwea l t

h
.. v. Meals, 912 A .2d 213, 220

- 22 3 ( 200 6)). are not a c hec klis t wi th ea ch o ne we ighin g in som e ne ces s ary fa shi o n fo r or ag ainst abs e nt in o rder t o support an SVP design ation. Meals, 9 1 2 A.2 d at 22 0- 23
. The fac tor s s tatuto ry re qu ire ment that all of them or an y p articu lar nu mber of them b e pre se nt or ( 1) F act s of th e c urren t offen s e, in cl udin g: ( i) Whe th er th e of

fe ns e inv o l v e d mul tipl e victims
. (ii ) Whether the individual exc ee ded the 

### me an s ne ce ssary t o a c hieve th e off

e nse. ( ii i) Th e n ature of th e sexual contac t wi th th e vic tim
. (iv) R el ation s hip of the in divi dual t o the vic tim
. (v) Age o f the vi c tim. (vi) Whether th e o ffen se in cl uded a di splay of unus ual crue lty by the in dividu al during th e commissio n o f th e · crime
. ( vii ) T h e me n t al c apaci ty of the victim
. ( 2 ) Prior o ffens e histo ry , including: (i) The indiv i dual' s p rior c rimin al reco rd
. (ii) Whether th e indi v i du al co mpl ete d an y pri o r se nte nces . (ii i ) Whether th e indi v idual p artici pated in avail able programs fo r s e xu al o ff e n der s . (3) Ch ar acteris ti c s o f the i n dividual , incl ud ing : (i) Age of the i n dividual
. ( ii) Use of illeg al drug s by th e in di v i dual
. (iii ) Any m en t al illne s s , ment al di sab ility o r men t al ab norm ali ty . ( i v ) Beh avior al ch ar acteris ti cs that c ontri bute t o th e in dividu al ' s conduct
. ( 4 ) Facto r s th at are supp o rte d in a se xu al o ffe n d er a ssess me n t fie ld a s criteri a re a s onabl y re l ated to the ris k of reo ffen s e . . Commonw ea lth v . vVhite, 2014 WL 63 91 088 1 *4 -5 ( Pa. Com.P l. 2 01 4) ) ci tin g 42 P a . C.S
. § 9 799. 24( b ) (1)-(~)
. "[WJith re gard to the variou s a sse ss ment fa cto rs listed in Se c tio n 9 79 5.4 , th ere is no d etermines, at l east theore ti c ally, the e xten t to w hi ch the o ffend er is li ke ly to re offe nd
. " B ey at 566
. Th e ass es s me n t conducted b y the S OAB E v alu ato r s hall includ e , bu t n ot be limite d to, an examinatio n of th e .follo win g:

### 2 2 8 The App e llant , after reques tin g and be ing pro vided fund s, h ad an in depen den t p sych ol ogical evalu ation perf orme d b y Dr. Frank Dattilio
. The results of th e indepen d ent evaluation w ere not p re s en ted at th e time o f sen ten c ing
. of th e o ff

e n se s. Th e Ap pe llan t's D epartme nt o f C orrecti ons (h erein after 1 ' D OC")
re c o rds indicated that he ha s exhibited a Low A v era ge Rang e o fln te lli genc e an d that th e age of 1 9 . It w a s unkn own if the Ap pellan t w as u sing ille g al n arco ti cs at the time n arcotics in th e pas t , he ha s abused mariju an a s ince the ag e of 12 and cocaine sinc e offen d ed against hi s 1 0 y e ar o l d stepd aughter and th at in additi on to se lling ill egal M s. Bru st con sid ere d that the Ap p e ll an t w a s 4 4 ye ar s o l d at the tune he h ad vio l ated pro bationary and parole s e ntence s du e to comp li ance i ssues . I d. at 7 . crimes. Ms. Brust de termin e d that the Ap pe l lan t was a technic al paro l e vi o lat or an d The Ap pell ant ha s s uffered five a du l t co nvi ction s , non e of w hic h w ere se xual cons en ting to the se xual ac t s fo rc ed up on h er . Id. e valuator found th at th e victim w as vulner ab l e due to her age and was n o t cap able of that re lati o nsh i p in order to s atisfy hi s sexu al d e vi an cies." Exhi b it C- 1, p.6. Th e Appe llan t was h er stepfath er, a "relation sh ip o f trust an d depen den cy an d h e twi s ted B rust noted th at th e victim was 10 y ears old at the tim e the o ffense s started and th e her to comply
. Medical e vi d e nce of b l un t pene trating trauma existed as w ell
. Ms . al so no ted th at the Appell an t w as abl e to gro o m. th e v i cti m, bri b e h er, and i nti midate of se xual ac ts an d th eir pro gre ssio n from ki ss in g t o rapin g o n repe ate d o ccas io ns. Sh e crimes did not involve multiple victims , bu t did n ote th e dur atio n and multipl e types that the Ap pellant is
. indeed , an S VP. M s. Bru s t ackn o w le dg e d that th e ins t ant th e R ep ort for c o n sid er ation by th e Co urt . 8 ~fa
. B ru st's report id enti fi ed th e spec ific fa c tors lea di n g t o h er determination Predator (h ere in af

ter " SVP" ). The Evaluation was performed by P au l a B ru st of the Sexual Offender As se ssment B o ard and b o th c o uns e l s ti p ulated to the admi ssibility of23

he exhibited n arcis sis tic an d d elu sio nal qualiti es . Th e DO C record s fo u n d th e Appellant to h ave little or n o respect for so cial standards and that h e is ofte n in direct co n flict wi th soci al val ue s . Aft.er evaluatin g th e available re c o rd s, th e Appe llant was foun d to me et the di agn osti c criteri a for P edo philic Disord er. Specifi cal ly, M s . Bru s t consi dered th e fact th at over a peri od of at l ea st six
m onth s , th e Ap pellan t had recu rren t, in te nse sexually aro u sin g fan tas ie s , s exual urge s or beh aviors involvin g s exual activity with a prepub e s cent c hild or c hildren g en erally a g e 13 or yo ung er, th at th e App e ll an t a cte d on thes e se xu al u rges or fan tasie s , and th at th e ag e o f th e Ap p ellan t an d his v ictim s w ere c o n sistent wi th th e criteria for P e d ophili c Diso rder, whi c h "will c ause him to ex perien ce an internal dri ve towar d s sexu al off

en d ing and hi s di s ord er p red i spo s es h im tow ard s co mmi tting sexu al crimes in th e future . " See Exh ibit C -1 at 9 . The e val uator al so n o te d th at th e prese nce of mu ltiple v i cti ms (E
. B. an d K .R.) i s suffi cie nt bu t n ot n e c es sary for the di agnosis
. The ev al uato r hig hli gh te d th at the App e llan t groome d and bri bed E . B . and attempted to normalize the sexual acti vi ty. E .B. indi cated th at she w a s afraid of th e Appellant
. M~ . Bru s t ul tim ate ly c o ncl uded that the Ap pe llan t m e t th e " full cri te ria fo r Ped oph ilic D iso rder, w hi ch is co n si d ered to b e a cong en i t al an d/ or ac qu ire d condi ti on." E xhi bit C - 1 at 9 . Such d isorder i s con s idered t o be a lifetime d isord e r . In o ff e n ding ag ai n st th e victi m , and be ing aware o f th e p ote n tial co n s e qu en ce s , the Appellant repe atedly s exu ally offen de d a child
. Th e diagn o si s of P e dophili c Dis o rd er will c au se the App ellan t " t o h av e ai:i in tern al dri v e to ward s e xual off endin g and pre dispo se s hi m t owards commi tting s e xual c rimes in the future . " I d
. The Ap pellant ' s action s were predato ry in n ature in th at th ey were " directed at a s tr an ger o r at a p er s o n with w hom a re latio n ship has be en in itiate d , est ab li s hed, main tain ed o r prom o te d , in w hole or in p art , i n o rd er to f acili tate o r su ppo rt

### 24

C ase law e stabli sh es th at " every Comm on weal th e xpert who testifi es that an in dividual is 

### an SVP must ex amine, an d ren d er 

### an opinion on , w hether 

### the individual i s likely t o re-off

e nd
. (H owev e r ], the pre cise m ann er of m e etin g thi s burd en is not analyzed in terms o f a strict, three

- p ro ng tes t." Dixon, 9 07 A.2 d at 539 [re ferring to Co mmonw e a l t

h v . Krouse , 79 9 A
. 2d 8 35, 837 (P a. Sup er.2002))
. " [W]hile the Board is to examine all th e fa ctors li sted und er Secti o n 9 7954
. 4, the C o mmonw e al th does not h av e to sh ow that any certain fac to r is presen t o r abs e nt in a particular cas e." Co mmon w ealth v. B rooks, 7 A.3d 85 2, 863 (Pa.S uper . 2010)(ci ting Feucht at 381)
. A fter careful review of the report submitted by M s. Brus t , the. Court concluded, b y clear and con v in c ing e vi d e nce , th at the Ap pe llant me t the c ri teri a set forth in th e
s tatute to b e cla ssifi ed as a s e..xuall y vi olent pred ator . I n the r ep o rt, sh ~ dis cusse d ne arly al l o f the fac t ors id e n tified in th e Me gan' s Law S tatute and explai ne d ho w the Appellan t fi t int o ea ch catego ry. M s. B rust was able diagnose th e Appellant with · P e doph ilic Disord er an d th at the o ff en ses c o mmi tted were m o ti v ate d b y the di s order
. Further, P edophili c Disorder will m ake the Ap pe llant li kely to re o ffend. G iven the e v iden c e pre sen ted at the time of Se nten cin g, th e C o u rt d i d n ot err in de signating th e Appellan t an SVP
. victimization." Feucht at 3 8 1, citing 42 Pa.C.S
. A. § 97 9 2. The o ff enses d e monstrate d plannin g an d in te n t and s howe d a " d efi n ite p ro gre ssi on o v er time and a s ust ain ed interest in this child. He e ve n bought a sex ' t oy ' for h er and forc e d her to use it inside h er anu s and v a gin a at th e s ame tim e : " Exh ibit C -1 at 10. Furth er , he u se d groo min g te chniques to intimidate her and en s ure secrec y. Id. In Ms. Brust's opini o n, the Appellant wo uld n o t h ave stoppe d his o ffendin g beh avio r h a d the offens es n o t com e to light.

## ' v : 2 5 

### KeliyL.B ac h, J , B y th e Co urt: 

# ~f:ru.@M di smi s s the i n stant Appeal
. For all o f th e fo regoin g reas ons , th e C ourt wo uld u rg e the Su perio r C ourt t o C O NCLU S ION