J-S81040-18

2019 PA Super 83

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* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 554 MDA 2018

Appeal from the Judgment of Sentence February 20, 2018

In the Court of Common Pleas of Lackawanna County Criminal Division at 

No(s): CP-35-CR-0000119-2017

BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED MARCH 20, 2019

Appellant John Smith appeals the judgment of sentence entered by the 

Court of Common Pleas of Lackawanna County after a jury convicted Appellant 

of indecent assault of a minor less than 13 years of age, corruption of minors, 

simple assault, and endangering the welfare of a child (EWOC).

1

 After careful 

review, we affirm.

The lower court summarized the factual background of this case as 

follows:

The charges in this case arose between September 1, 2016 

and January 2017. The victim in this case began taking karate 

lessons at [Appellant’s] karate studio when he was four or five 

years old. In September of 2016, the victim, who was then nine 

years old, began taking private archery lessons from [Appellant] 

as well. During these lessons, [Appellant] played truth or dare 

with the child. On some occasions when the child chose dare, 

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1 18 Pa.C.S.A. §§ 3126(a)(7), 6301(a)(1)(ii), 2701(a)(1), and 4304(a)(1), 

respectively. The charges of indecent assault, corruption of minors, and 

EWOC were all graded as third-degree felonies.
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[Appellant] had him remove all of his clothing and when the victim 

was naked, [Appellant] spanked his bare buttocks while he 

climbed a metal pole. When [Appellant] spanked the child, he 

gave the child the option of choosing 10 hard or 50 soft spankings, 

but told him that if he chose hard, it would make him tougher. 

This occurred numerous times. [Appellant] told the victim not to 

tell his parents because they were not a part of the karate 

brotherhood.

Trial Court Opinion, 6/6/18, at 1-2.

On November 14, 2017, a jury convicted Appellant of the 

aforementioned charges. On February 20, 2018, the trial court sentenced 

Appellant to one to three years’ imprisonment for the indecent assault charge, 

11⁄2 to 4 years’ imprisonment for the corruption of minors charge, 6 months 

to 2 years’ imprisonment for the simple assault charge, and 31⁄2 to 7 years’

imprisonment for the EWOC charge. As all sentences were consecutive, 

Appellant received an aggregate sentence of 61⁄2 to 16 years’ imprisonment. 

On February 27, 2018, Appellant filed a post-sentence motion, which 

the lower court subsequently denied. Appellant filed a timely appeal and 

complied with the lower court’s direction to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues on appeal:

1. Did the Commonwealth fail to present sufficient evidence to 

establish, beyond a reasonable doubt, that Appellant caused 

bodily injury, as defined in 18 Pa.C.S.A. § 2301, or possessed 

the mens rea on the charge of simple assault?

2. Did the trial court err or abuse its discretion in admitting the 

testimony of Ms. Fortney in finding her qualified to testify as an 

expert in the dynamics of and a victim’s response to sexual 

abuse, over the objection of counsel on her qualifications and 

to testify in a manner which included an opinion or bolstered 
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the credibility of the complainant, in violation [of] 42 Pa.C.S.A. 

§ 5920(b)(3)?

3. Did the trial court err or abuse its discretion in striking juror 

#1, after the jury had been sworn and impaneled and 

testimony had commenced, based upon an equivocal and nondisqualifying juvenile adjudication?

4. Did the trial court err or abuse its discretion in restricting the 

direct examination of a witness, Lisa Kiernan, on whether, as a 

parent, she observed anything regarding the karate classes or 

conduct of Appellant which caused her to be suspicious?

5. Did the trial court impose an illegal sentence on the charge of 

corruption of minors, graded as a felony of the third degree, 

where the jury was not instructed on the element of “course of 

conduct” and could not find all elements of the offense to be 

proven beyond a reasonable doubt?

6. Did the trial court abuse its discretion by imposing manifestly 

excessive sentences within and, also, beyond the aggravated 

range of the Pennsylvania Sentencing Guidelines, by failing to 

consider the relevant sentencing criteria, considering factors 

already accounted for in the charged crimes and the 

Pennsylvania Sentencing Code and Guidelines, considering 

inaccurate information, failing to consider mitigating 

circumstances and, as a result, failing to place sufficient 

reasons on the record to justify the sentences imposed?

Appellant’s Brief, at 3.

We first review Appellant’s challenges to the sufficiency of the evidence 

supporting his simple assault conviction. Our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant's guilt may be 
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resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the finder of fact [,] while passing upon the 

credibility of witnesses and the weight of the evidence produced 

is free to believe all, part or none of the evidence.

Commonwealth v. Davison, 177 A.3d 955, 957 (Pa.Super. 2018) (quoting 

Commonwealth v. Talbert, 129 A.3d 536, 542–43 (Pa.Super. 2015)).

Appellant was charged under Section 2701(a)(1) of the Crimes Code, 

which provides that a person may be convicted of simple assault if he 

“attempts to cause or intentionally, knowingly, or recklessly causes bodily 

injury to another.” 18 Pa.C.S.A. § 2701(a)(1). Specifically, Appellant claims 

there was insufficient evidence to show he caused the victim bodily injury.2

This Court set forth a thorough discussion of the definition of “bodily 

injury” in Commonwealth v. Marti, 779 A.2d 1177 (Pa.Super. 2001):

In [Commonwealth v.] Wertelet, [696 A.2d 206 

(Pa.Super. 1997),] we noted that the Crimes Code definition of 

bodily injury as “impairment of physical condition or substantial 

pain,” 18 Pa.C.S.A. § 2301, “is worded rather generally and does 

not provide a great deal of guidance.” Wertelet, 696 A.2d at 

210. We further recognized the lack of cases attempting to define 

the term. Id. In attempting to define the term, the panel 

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2 We note that the trial court instructed the jury that it had to find Appellant 

caused bodily injury to the victim to convict Appellant of simple assault. N.T. 

Trial, 11/14/17 (p.m.), at 60-61. The trial court did not inform the jury that 

it could convict Appellant of simple assault if it found Appellant attempted to 

cause bodily injury under 18 Pa.C.S.A. § 2701(a)(1). However, as discussed 

infra, the Commonwealth presented sufficient evidence to show Appellant 

caused the victim bodily injury.
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compared Wertelet’s actions with those of the defendants in the 

cases of Commonwealth v. Kirkwood, 360 Pa.Super. 270, 520 

A.2d 451 (1987) and Interest of J.L., 327 Pa.Super. 175, 475 

A.2d 156 (1984). In Kirkwood, the defendant was charged with 

simple assault for aggressively fast dancing with a woman. The 

victim testified that she had pleaded with Kirkwood to stop 

because he was hurting her, but that he had continued to swing 

her until her husband intervened. She said the incident lasted 

approximately forty seconds and left her with bruises and cut 

marks on her arms. As a result, she testified she suffered pain in 

her arms and her right knee for a short period of time thereafter. 

We concluded these facts did not constitute sufficient bodily injury 

to sustain a conviction of a simple assault, in that “temporary 

aches and pains brought about by strenuous, even violent, 

dancing are an inadequate basis for imposing criminal liability 

upon a dance partner for assault.” Kirkwood, 520 A.2d at 454. 

We also opined “the assault section of the Crimes Code was 

intended to protect and preserve one’s physical well-being and 

was not intended to prevent temporary hurts resulting from trivial 

contacts which are a customary part of modern day living.” Id. 

In Interest of J.L., supra, we reversed the adjudication of 

delinquency of a sixteen-year-old for simple assault where she 

elbowed her nephew to push him away. We noted “it is difficult 

to attach criminality to the pushing, shoving, slapping, elbowing, 

hair-pulling, perhaps even punching and kicking, that frequently 

occur between siblings or other members of the same family.” Id.

at 157.

Consequently, the Wertelet panel found the actions in 

Kirkwood and J.L. were “on par with the nature of the affront 

committed here by [Wertelet].” The panel reasoned as follows:

There is no evidence that appellant reared back and kicked 

Trooper Funk as hard as she could. Indeed, she kicked him 

with the back of her heel as she was flailing about and 

squirming while the troopers attempted to handcuff her. 

Trooper Funk was not seriously impaired by the kicks, he 

was able to continue working, and he did not report even 

any bruising or swelling. Trooper Funk’s characterization of 

the pain as similar to ‘bumping your shin on a coffee table’ 

aligns the encounter with those described above and does 

not fall within the general connotation of the term ‘injury.’

Wertelet, 696 A.2d at 212, 213 (footnote omitted).
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***

We find further support for our conclusion by examination of 

the cases defining bodily injury in the context of a simple assault. 

In the Interest of M.H., 758 A.2d 1249 (Pa.Super. 2000), 

appeal denied, 564 Pa. 735, 766 A.2d 1250 (2001), we affirmed 

an adjudication of delinquency for simple assault involving the 

reckless infliction of bodily injury to a high school teacher's aide. 

The evidence therein demonstrated M.H. aggressively grabbed the 

victim’s arm and pushed her up against a wall causing bruises on 

her arm that lasted several days. The injury did not require 

medical treatment or cause the victim to miss any work. On 

appeal, M.H. argued the evidence was insufficient to prove simple 

assault because the victim's injury did not constitute “bodily 

injury” under 18 Pa.C.S.A. § 2701(a)(1). After analyzing the 

rationale of Wertelet, we rejected this argument noting:

We are not willing to view this incident as a ‘temporary hurt’ 

resulting from a ‘trivial contact.’ It cannot be viewed as 

contact incident to a struggle as in Wertelet, which the 

officer there described as akin to bumping his shin. It 

cannot be viewed in any sense as social contact as was the, 

albeit aggressive, dancing in Kirkwood. Nor can we view 

this incident as the type of noncriminal contact resulting 

from family stress and rivalries as in Interest of J.L. In

short, we do not consider M.H.’s conduct in any way a 

‘customary part of modern day living.’ Kirkwood, 520 A.2d 

at 454.

In the Interest of M.H., 758 A.2d at 1252. See, e.g., 

Commonwealth v. Jorgenson, 341 Pa.Super. 550, 492 A.2d 2 

(1985) rev. on other grounds, 512 Pa. 601, 517 A.2d 1287 (1986) 

(stating “[a] jury may infer that striking a person across the face 

causes pain;” even if there is no testimony of pain); 

Commonwealth v. Adams, 333 Pa.Super. 312, 482 A.2d 583 

(1984) (affirming conviction for simple assault where victim was 

struck in the head with an object hard enough to almost knock her 

unconscious); Commonwealth v. Richardson, 431 Pa.Super. 

496, 636 A.2d 1195, 1196 (1994) (holding testimony that 

appellant’s punch broke officer’s glasses and caused pain for a few 

days was sufficient to sustain finding of actual bodily injury); 

Commonwealth v. Ogin, 373 Pa.Super. 116, 540 A.2d 549 

(1988) (en banc), appeal denied, 521 Pa. 611, 557 A.2d 343 

(1989) (finding substantial pain may be inferred from the 
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circumstances surrounding the physical force used, even in the 

absence of significant injury).

Marti, 779 A.2d at 1181-82. Given our precedent in In the Interest of M.H, 

Jorgenson, Adams, Richardson, and Ogin, this Court has upheld 

convictions for simple assault where the assaultive behavior in question is 

more clearly criminal in nature.

Likewise, in this case, the prosecution presented sufficient evidence to 

sustain a finding that Appellant caused the victim bodily injury with his 

behavior that was criminal in nature. The evidence established that Appellant 

had his nine-year-old karate student take his clothes off and kneel over 

Appellant’s bent knee. The victim testified that Appellant hit his bare buttocks, 

sometimes up to 50 times, causing him to cry. It was reasonable for the jury 

to infer that Appellant caused the victim pain as his spankings made the victim 

cry and were so hard that the victim asked if Appellant’s spankings had left

red marks on his backside. The victim also indicated that Appellant gave him 

these spankings on multiple occasions.

Despite Appellant’s reliance on Kirkwood, the evidence shows that the 

victim sustained bodily injury in the course of Appellant’s criminal conduct, 

which was neither “trivial in nature,” nor “noncriminal contact resulting from 

family stress and rivalries,” nor a “customary part of modern day living.” 

Kirkwood, supra; Interest of J.L., supra.

We are not persuaded by Appellant’s claim that the Commonwealth was 

required to present evidence that the victim complained of pain, sustained 

marks or bruises, or was in anyway impaired by Appellant’s conduct. This 
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Court has emphasized that “our caselaw does not require a victim to quantify 

the precise level of the pain she sustained to establish that [he or] she 

sustained bodily injury.” Davison, 177 A.3d at 959. Accordingly, we find the 

circumstances in this case supported the jury’s verdict on the charge of simple 

assault.3

Second, Appellant argues that the trial court abused its discretion with 

respect to prosecution expert witness Ms. Janine Fortney on two grounds: (1) 

claiming Ms. Fortney was not qualified to testify as an expert in the dynamics 

of sexual abuse and victim responses to sexual abuse and (2) arguing Ms. 

Fortney improperly bolstered the credibility of the child victim.

In reviewing a challenge to the trial court’s discretion in allowing expert 

testimony, we are guided by the following principles:

The admission of evidence is a matter vested within the sound 

discretion of the trial court, and such a decision shall be reversed 

only upon a showing that the trial court abused its discretion. The 

standard for qualification of an expert witness is a liberal one. The 

test to be applied when qualifying an expert witness is whether 

the witness has any reasonable pretension to specialized 

knowledge on the subject under investigation. If he does, he may 

testify and the weight to be given to such testimony is for the trier 

of fact to determine. A witness does not need formal education 

____________________________________________

3

In Appellant’s issue statement of his appellate brief, he also claims the 

Commonwealth failed to show he demonstrated the mens rea necessary for a 

simple assault conviction. However, Appellant did not provide any further 

development of this claim within his brief. As a result, this issue is waived. 

Commonwealth v. Patterson, 180 A.3d 1217, 1229 (Pa.Super. 2018) 

(quoting Commonwealth v. Johnson, 604 Pa. 176, 985 A.2d 915, 924 

(2009) (finding that “[a]ny claim for which an appellant fails to include 

“citation to relevant authority or fails to develop the issue in any other 

meaningful fashion capable of review” is waived)).
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on the subject matter of the testimony, and may be qualified to 

render an expert opinion based on training and experience. 

Commonwealth. v. Serge, 837 A.2d 1255, 1260 (Pa.Super. 2003), aff'd, 

586 Pa. 671, 896 A.2d 1170 (2006) (citations omitted).

“Expert testimony is permitted as an aid to the jury when the subject 

matter is distinctly related to a science, skill, or occupation beyond the 

knowledge or experience of the average layman. Conversely, expert 

testimony is not admissible where the issue involves a matter of common 

knowledge.” Commonwealth v. Carter, 111 A.3d 1221, 1222 (Pa.Super. 

2015) (citations omitted). Expert testimony in sexual abuse cases is governed 

by 42 Pa.C.S.A. § 5920, which provides:

§ 5920. Expert testimony in certain criminal proceedings

(a) Scope.--This section applies to all of the following:

(1) A criminal proceeding for an offense for which 

registration is required under Subchapter H of Chapter 97 

(relating to registration of sexual offenders).

(2) A criminal proceeding for an offense under 18 Pa.C.S. 

Ch. 31 (relating to sexual offenses).

(b) Qualifications and use of experts.—

(1) In a criminal proceeding subject to this section, a 

witness may be qualified by the court as an expert if the 

witness has specialized knowledge beyond that possessed 

by the average layperson based on the witness's experience 

with, or specialized training or education in, criminal justice, 

behavioral sciences or victim services issues, related to 

sexual violence, that will assist the trier of fact in 

understanding the dynamics of sexual violence, victim 

responses to sexual violence and the impact of sexual 

violence on victims during and after being assaulted.
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(2) If qualified as an expert, the witness may testify to facts 

and opinions regarding specific types of victim responses 

and victim behaviors.

(3) The witness's opinion regarding the credibility of any 

other witness, including the victim, shall not be admissible.

(4) A witness qualified by the court as an expert under this 

section may be called by the attorney for the 

Commonwealth or the defendant to provide the expert 

testimony.

42 Pa.C.S.A. § 5920 (footnote omitted).

In this case, the Commonwealth sought to qualify Ms. Janine Fortney as 

an expert witness on the dynamics of sexual violence and victim responses to

sexual violence pursuant to Section 5920(b)(1). Ms. Fortney earned 

Bachelor’s and Master’s degrees in social work and is certified in Trauma 

Focused Cognitive Behavior Therapy. She serves at the director of the 

Children’s Center of Susquehanna and Wyoming Counties, where she is the 

administrator of children’s advocacy programs and also serves as a forensic 

interviewer of children who have suffered abuse. Ms. Fortney testified to her

twenty years of experience providing therapy and estimated that she has 

treated over 800 individuals, 300 of whom were child sexual abuse victims. 

As such, we conclude that the trial court did not abuse its discretion when it 

qualified Ms. Fortney as an expert witness in the dynamics of sexual violence 

and victim responses to sexual abuse as her education and experience gave 

her a reasonable pretension to specialized knowledge in this area.

We reject Appellant’s argument that Ms. Fortney was unqualified to 

testify as an expert on the dynamics of sexual violence and victim responses 
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to sexual violence based on Appellant’s claim that Ms. Fortney “could not 

enumerate how many [of her child clients] had actually been abused and 

[could not] expound on why they differ from adults in how they reported 

abuse.” Appellant’s Brief, at 21. Further, Appellant asserts that Ms. Fortney 

“could not testify on any statistical analysis or her own experience regarding 

the margin of error about her theories or explanations on how children are 

impacted and may react, respond, and disclose sexual abuse.” Appellant’s 

Brief, at 21. These questions do not relate to Ms. Fortney’s qualifications, but 

rather, the weight the jury was free to give to her opinion. As we will not 

disturb the jury’s credibility findings, Appellant’s claim is meritless.

In addition, there is no evidence in the record to support Appellant’s 

assertion that Ms. Fortney improperly bolstered the victim’s credibility. Our 

Supreme Court has held that “[e]xpert testimony on relevant psychological 

factors ... does not directly speak to whether a particular witness was 

untrustworthy, or even unreliable, as the expert is not rendering an opinion 

on whether a specific witness [testified accurately.] ... Rather, such testimony 

teaches—it provides jurors with education by which they assess for 

themselves the witness's credibility.” Commonwealth v. Walker, 625 Pa. 

450, 480, 92 A.3d 766, 784 (2014). Although the Walker Court was 

discussing the admissibility of expert testimony with respect to witness 

identification, the aforementioned principle is applicable to expert testimony 

on the dynamics of sexual violence and victim responses to sexual violence.
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In this case, Ms. Fortney testified that she had never met the victim and 

had not reviewed any of his records. Consistently with her expert report, Ms. 

Fortney only testified in general terms about the dynamics of sexual violence 

and victim responses to sexual violence and did not discuss any particular 

victim. She explained that each child victim may process abuse differently, 

but generally will experience heightened emotion, fear, confusion, guilt, and 

shame. Recognizing that child victims are often abused by someone they 

know and trust, Ms. Fortney also indicated that victims often have difficulty in 

perceiving whether they are being abused before they realize what conduct is 

right and wrong. 

Ms. Fortney continued to explain that children may not disclose their 

abuse in the same way; child victims may be unwilling or reluctant to share 

details of abuse by a known perpetrator with whom they share a bond. Ms. 

Fortney acknowledged that children may only disclose part of the abuse and 

later may share additional details of abuse. Moreover, when asked if children 

give the exact details each time they give their account of abuse, Ms. Fortney 

indicated that it would be hard for anyone to tell a story with the same words 

multiple times.

Appellant’s reliance on the Supreme Court precedent in 

Commonwealth v. Maconeghy, 642 Pa. 770, 775, 171 A.3d 707, 709–10 

(2017) is unavailing. The Supreme Court ruled that an expert gave 

inadmissible testimony when he opined that the particular child witness had 

been sexually abused, based on her statements to that effect. The Supreme 
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Court affirmed this Court’s conclusion that the expert had improperly opined 

as to whether the victim was telling the truth and “intruded into the jury's 

function to assess the credibility of witnesses.” Id. at 775, 171 A.3d at 709–

10. See also Carter, 111 A.3d at 1223 (finding expert’s testimony admissible 

when she discussed in general terms a child victim’s response to sexual abuse

and “did not offer any opinion regarding the victim’s credibility”). 

In this case, Ms. Fortney did not assess the victim’s credibility or discuss

how this particular victim reacted to being abused. Instead, Ms. Fortney spoke 

generally about the dynamics of sexual violence and victim responses to 

sexual violence, which provided a background against which the jury could 

assess the victim’s credibility. Accordingly, the trial court did not err in 

allowing this expert testimony.

Third, Appellant argues that the trial court improperly discharged Juror 

#1 after Appellant’s trial had commenced. The Commonwealth moved to 

strike the juror after discovering the juror had been adjudicated delinquent 

for indecent assault as a juvenile. Our standard of review is as follows:

“The decision to discharge a juror is within the sound discretion of 

the trial court and will not be disturbed absent an abuse of that 

discretion.” Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 

61, 70 (1994). “This discretion exists even after the jury has 

been [e]mpanelled and the juror sworn.” Id. (emphasis 

added). Our Supreme Court explained that “a finding regarding a 

venireman’s impartiality ‘is based upon determinations of 

demeanor and credibility that are peculiarly within a trial [court]’s 

province. ... [Its] predominant function in determining juror bias 

involves credibility findings whose basis cannot be easily discerned 

from an appellate record.’” [Commonwealth v.] Smith, 540 

A.2d [246, 256 (Pa.Super. 1998)] (quoting Wainwright v. Witt, 
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469 U.S. 412, 428–29, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). It 

is the appellant’s burden to show that the jury was not impartial. 

Commonwealth v. Noel, 629 Pa. 100, 104 A.3d 1156, 1169 

(2014).

***

In Commonwealth v. Briggs, our Supreme Court set forth the 

standard for prospective juror disqualification:

The test for determining whether a prospective juror should 

be disqualified is whether he is willing and able to eliminate 

the influence of any scruples and render a verdict according 

to the evidence, and this is to be determined on the basis of 

answers to questions and demeanor. ... It must be 

determined whether any biases or prejudices can be put 

aside on proper instruction of the court. ... A challenge for 

cause should be granted when the prospective juror has 

such a close relationship, familial, financial, or situational, 

with the parties, counsel, victims, or witnesses that the 

court will presume a likelihood of prejudice or demonstrates 

a likelihood of prejudice by his or her conduct or answers to 

questions.

608 Pa. 430, 12 A.3d 291, 333 (2011) (quoting Commonwealth 

v. Cox, 603 Pa. 223, 983 A.2d 666, 682 (2009)).

Commonwealth v. Rush, 162 A.3d 530, 537 (Pa.Super. 2017) (emphasis in 

original).

In this case, the trial court recognized that a citizen may be disqualified 

from serving as a juror if he “has been convicted of a crime punishable by 

imprisonment for more than one year and has not been granted a pardon or 

amnesty therefor.” 42 Pa.C.S.A. § 4502(a)(3). The trial court reasoned that 

Section 4502 would not automatically disqualify the juror as his juvenile 

adjudication for indecent assault would not be punishable by a sentence of 

imprisonment of more than one year.
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 Nonetheless, the trial court found it problematic that Juror #1 had a 

juvenile adjudication for indecent assault as Appellant was on trial for indecent 

assault in this case. This fact was not discovered during the jury selection 

process as the juror questionnaire did not require the juror to reveal that he 

had the juvenile adjudication. It is reasonable for the trial court to presume 

a likelihood of prejudice given that Juror #1 and Appellant shared the similar 

experience of having to defend themselves against allegations of indecent 

assault. We conclude that the trial court properly exercised its discretion to 

discharge Juror #1 on this basis.

Fourth, Appellant argues that the trial court abused its discretion in 

restricting the direct examination of defense witness, Lisa Kiernan, who was 

the parent of another student at Appellant’s karate school. Ms. Kiernan 

testified that she observed some of her son’s karate classes and was never 

dissuaded from doing so by Appellant. Defense counsel asked Ms. Kiernan 

whether she observed “anything which caused [her] to have any suspicions.” 

N.T. Trial, 11/14/17 (a.m.), at 88. The trial court sustained the 

Commonwealth’s objection to this line of questioning.

It is well-established that “[a] trial court may exclude evidence that is 

irrelevant to the issues presented. Evidence is not relevant ‘unless the 

inference sought to be raised by it bears upon a matter in issue and renders 

the desired inference more probable than it would be without the evidence.’”

Commonwealth v. Elliott, 622 Pa. 236, 288, 80 A.3d 415, 446–47 (2013) 

(quoting Commonwealth v. Vallejo, 532 Pa. 558, 616 A.2d 974, 976 
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(1992)). In this case, it was proper for the trial court to refuse to allow 

defense counsel to evaluate whether another parent had suspicions about 

Appellant’s interactions with her child, as such evidence has no bearing on 

whether Appellant assaulted the child victim in this case. As such, we cannot 

find the trial court abused its discretion in precluding this irrelevant testimony.

Fifth, Appellant claims the trial court imposed an illegal sentence for the 

charge of corruption of minors as a felony of the third degree as he alleges 

that the trial court failed to properly instruct the jury as to the “course of 

conduct” element of the offense, which raised the grading of the charge from 

a first-degree misdemeanor to a third-degree felony. Specifically, Appellant 

argues that “other than a prior conviction, any fact that increases the penalty 

for a crime beyond the prescribed statutory maximum must be submitted to 

a jury and proved beyond a reasonable doubt.” Commonwealth v. Graham, 

799 A.2d 831, 833 (Pa.Super. 2002) (quoting Apprendi v. New Jersey, 530 

U.S. 466, 490, 120 S.Ct. 2348, 2362-63 (2000)).4

Section 6301 defines the offense of corruption of minors and also 

addresses the grading of the offense as follows:

(1)(i) Except as provided in subparagraph (ii), whoever, being of 

the age of 18 years and upwards, by any act corrupts or tends 

to corrupt the morals of any minor less than 18 years of age, 

or who aids, abets, entices or encourages any such minor in 

the commission of any crime, or who knowingly assists or 

____________________________________________

4 We note that the Supreme Court subsequently held in Alleyne v. United 

States, 570 U.S. 99, 111-112, 133 S.Ct. 2151, 2160 (2013) that “Apprendi

applies with equal force to facts increasing [a] mandatory minimum.” 
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encourages such minor in violating his or her parole or any 

order of court, commits a misdemeanor of the first degree.

(ii) Whoever, being of the age of 18 years and upwards, by 

any course of conduct in violation of Chapter 31 (relating to 

sexual offenses) corrupts or tends to corrupt the morals of any 

minor less than 18 years of age, or who aids, abets, entices or 

encourages any such minor in the commission of an offense 

under Chapter 31 commits a felony of the third degree.

18 Pa.C.S.A. §6301(a)(1) (emphasis added). Thus, with respect to a charge 

of corruption of minors as a third-degree felony, the trial court must instruct 

the jury that the Commonwealth must prove that Appellant engaged in a 

“course of conduct.” 18 Pa.C.S.A. § 6301(a)(1)(ii). If the Commonwealth 

cannot show a course of conduct, the corruption of minors offense is graded 

as a first-degree misdemeanor under 18 Pa.C.S.A. § 6301(a)(1)(i). 

As an initial matter, we note that Appellant did not object to the jury 

instruction on the offense of corruption of minors. Our rules of appellate

procedure provide that “[i]ssues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). In addition, 

to properly preserve a challenge to the adequacy or omission of a particular 

jury instruction, the defendant must make a specific objection to the jury 

instruction at trial. Commonwealth v. Hitcho, 633 Pa. 51, 93, 123 A.3d 

731, 756 (2015) (citations omitted); Pa.R.A.P. 302(b) (“A general exception 

to the charge to the jury will not preserve an issue for appeal. Specific 

exception shall be taken to the language or omission complained of”); 

Pa.R.Crim.P. 647(C) (“No portions of the charge nor omissions from the 
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charge may be assigned as error, unless specific objections are made thereto 

before the jury retires to deliberate”).

However, this Court has treated a similar challenge to the grading of an 

offense as raising a question as to the legality of the sentence, which is a nonwaivable issue. Commonwealth v. Popow, 844 A.2d 13, 16 (Pa.Super. 

2004). Nevertheless, even assuming arguendo that Appellant’s claim 

constitutes a non-waivable challenge to the legality of his sentence, his 

argument is meritless.

In Popow, the appellant argued that he was improperly sentenced for 

EWOC as a third-degree felony because the jury was never specifically

instructed to make a finding on “course of conduct.” Similar to the crime of 

corruption of minors, a charge of EWOC constitutes a third-degree felony when 

the defendant engages in a “course of conduct” of endangering the welfare of 

a child. 18 Pa.C.S.A. § 4304(b)(1)(ii). The Popow Court held the following:

in order to be graded as a third-degree felony, the Commonwealth 

must allege in the information and present evidence at trial of the 

additional factor of “course of conduct,” and the jury must be 

instructed on such. Here, “course of conduct” is not an element of 

the offense of endangering the welfare of a child, but it is an 

additional fact, a jury question, that impacts the grading of the 

offense. We cannot merely assume the jury found this additional 

fact when no evidence of it was presented at trial and no mention 

of it was made in the jury's charge.

Id. at 18. As a result, this Court found that the trial court had improperly 

graded the EWOC offense as a felony of the third degree as the criminal 

information and the prosecution’s case at trial did not set forth allegations of
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evidence of a course of conduct. Moreover, the Popow court reasoned that 

it could not conclude that the jury understood that they were making a finding 

on the course of conduct factor without an appropriate instruction.

We find the instant case distinguishable. The criminal information 

charged Appellant with corruption of minors as a third-degree felony alleging 

Appellant engaged in a course of conduct on multiple occasions of using games 

to dare the victim to undress and do various actions, like climb a metal pole, 

jump on a desk, and submit to Appellant’s spankings and touches. Consistent 

with these charges, the Commonwealth presented evidence at trial that 

Appellant engaged in the aforementioned actions on multiple occasions.

We also find that the trial court gave a proper jury instruction on the 

corruption of minors charge. In reviewing the adequacy of the trial court’s 

instruction, we consider the following principles:

In reviewing a challenge to a jury instruction, the entire 

charge is considered, not merely discrete portions thereof. The 

trial court is free to use its own expressions as long as the 

concepts at issue are clearly and accurately presented to the jury. 

It is the policy of this Court to give our trial courts latitude and 

discretion in phrasing instructions.

Commonwealth v. Johnson, 630 Pa. 493, 552, 107 A.3d 52, 87–88 (2014)

(citing Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1138 

(2007)). 

In this case, the trial court’s specific instruction on the corruption of 

minors charge was as follows:
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[Appellant] has been charged with corrupting a minor. To find 

[Appellant] guilty of this offense, you must find that each of the 

following elements has been proved beyond a reasonable doubt. 

First, that the [Appellant] was 18 years of age or older at the time 

of the incident giving rise to the charge. Second, that [the victim] 

was under the age of 18 at the time. And, third, that [Appellant] 

corrupted or tended to corrupt the morals of [the victim] by the 

following alleged conducts: That the said [Appellant] did dare a 9 

year old boy, [the victim] to become unclothed and did engage in 

spanking him on his bare buttocks on numerous occasions. It 

is not necessary for the Commonwealth to prove that the minor’s 

morals were actually corrupted or changed in any way. It is 

sufficient that you find beyond a reasonable doubt that 

[Appellant’s] acts tended to corrupt the morals of a minor. The 

courts of Pennsylvania have held that actions that tend to corrupt 

the morals of a minor are those that would offend the common 

sense of the community and the sense of decency, propriety and 

morality, which most people entertain.

To summarize, if you find beyond a reasonable doubt 

that [Appellant] did the acts alleged, that those acts 

corrupted or tended to corrupt the morals of a minor, that 

he, [Appellant] was over 18 years of age, then you must find 

[Appellant] guilty of the charge of corruption of a minor. And if 

you find that any of those elements have not been proven beyond 

a reasonable doubt, the you must find him not guilty of this 

charge.

N.T. 11/14/18, at 58-60 (emphasis added). 

This instruction, which required the jury to find that Appellant 

committed acts on “numerous occasions” that corrupted or tended to corrupt 

the victim’s morals is consistent with the “course of conduct” requirement, 

which this Court has defined as “multiple acts over time” or “a pattern of 

actions composed of more than one act over a period of time, however short, 

evidencing a continuity of conduct.” Commonwealth v. Kelly, 102 A.3d 

1025 (Pa.Super. 2014). Accordingly, when we view the instructions in their 
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entirety, we find the trial court’s instructions clearly and accurately presented

to the jury the law with respect to his corruption of minors charge.

Sixth, Appellant argues that the trial court abused its discretion by 

imposing manifestly excessive sentences, which fell within and beyond the 

aggravated range of the Pennsylvania Sentencing Guidelines. Appellant 

specifically contends that the trial court failed to consider relevant sentencing 

criteria and mitigating circumstances, considered impermissible factors in 

imposing its sentence, and neglected to place sufficient reasons on the record 

to justify the sentences imposed.

These claims constitute challenges to the discretionary aspects of 

Appellant’s sentence. The following principles apply to our consideration of 

these arguments:

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to an appeal as of right. Prior to reaching the 

merits of a discretionary sentencing issue[, w]e conduct a fourpart analysis to determine: (1) whether appellant has filed a 

timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether 

the issue was properly preserved at sentencing or in a motion to 

reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) 

whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).

When appealing the discretionary aspects of a sentence, an 

appellant must invoke the appellate court’s jurisdiction by 

including in his brief a separate concise statement demonstrating 

that there is a substantial question as to the appropriateness of 

the sentence under the Sentencing Code. The requirement that an 

appellant separately set forth the reasons relied upon for 

allowance of appeal furthers the purpose evident in the 

Sentencing Code as a whole of limiting any challenges to the trial 
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court’s evaluation of the multitude of factors impinging on the 

sentencing decision to exceptional cases.

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018) 

(quotation marks, some citations, and bold omitted).

Although Appellant filed a timely notice of appeal, the only claim he 

preserved in his post-sentence motion and in the Rule 2119(f) statement in 

his appellate brief was his claim that the trial court failed to consider mitigating 

circumstances. Appellant claims for the first time on appeal that the trial court

failed to consider relevant sentencing criteria, considered impermissible 

factors in imposing its sentence, and did not place sufficient reasons on the 

record for its sentence. As noted above, “[i]ssues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302. 

Moreover, “issues challenging the discretionary aspects of sentencing must be 

raised in a post-sentence motion or by raising the claim during the sentencing 

proceedings.” Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 

2003). As Appellant’s failure to properly raise these claims denied the 

sentencing court an opportunity to reconsider his sentence based on 

Appellant’s arguments, these particular issues are waived on appeal.

Thus, we proceed to review Appellant’s claim that the trial court did not 

consider mitigating circumstances in imposing his sentence. We must assess 

whether this claim is a substantial question meriting our discretionary review. 

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. A substantial question 

exists only when the appellant advances a colorable argument 

that the sentencing judge’s actions were either: (1) inconsistent 
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with a specific provision of the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.

Id. (quotation marks and some citations omitted). A claim that the trial court 

erred by “imposing an aggravated range sentence without consideration of 

mitigating circumstances raises a substantial question.” Commonwealth v. 

Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003). 

In reviewing a challenge to the sentencing court’s discretion, we are 

cognizant of the following principles:

We review the trial court's sentencing scheme for abuse of 

discretion. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 

957, 961 (2007). “[A]n abuse of discretion is more than a mere 

error of judgment; thus, a sentencing court will not have abused 

its discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill-will.” Id.

Section 9781(c) of the Sentencing Code directs this Court to 

vacate a sentence and remand to the sentencing court if “the 

sentencing court sentenced outside the sentencing guidelines and 

the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). 

Likewise, § 9781(d) governs our review of the record:

(d) Review of record.—In reviewing the record the 

appellate court shall have regard for:

(1) The nature and circumstances of the offense and 

the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe 

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.A. § 9781(d).
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Our Supreme Court has addressed the § 9781(c)(3) 

“unreasonable” inquiry as follows:

What makes a sentence “unreasonable” is not defined in the 

statute. 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 fluid 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 unreasonableness to be 

inherently a circumstance-dependent concept that is flexible 

in understanding and lacking precise definition.

[W]e decline to fashion any concrete rules as to the 

unreasonableness inquiry for a sentence that falls outside of 

applicable guidelines under Section 9781(c)(3). We are of 

the view, however, that the Legislature intended that 

considerations found in Section 9721 inform appellate 

review for unreasonableness. That is, while a sentence may 

be found to be unreasonable after review of Section 

9781(d)'s four statutory factors, in addition a sentence may 

also be unreasonable if the appellate court finds that the 

sentence was imposed without express or implicit 

consideration by the sentencing court of the general 

standards applicable to sentencing found in Section 9721, 

i.e., the protection of the public; the gravity of the offense 

in relation to the impact on the victim and the community; 

and the rehabilitative needs of the defendant. 42 Pa.C.S. § 

9721(b). Moreover, even though the unreasonableness 

inquiry lacks precise boundaries, we are confident that 

rejection of a sentencing court's imposition of sentence on 

unreasonableness grounds would occur infrequently, 

whether the sentence is above or below the guideline 

ranges, especially when the unreasonableness inquiry is 

conducted using the proper standard of review.
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Walls, 926 A.2d at 963–64 (some citation omitted).

Commonwealth v. Ball, 166 A.3d 367, 370–71 (Pa.Super. 2017).

There is no merit to Appellant’s claim that the trial court failed to

consider mitigating factors before imposing his sentence. The court heard 

statements in mitigation from the father of one of Appellant’s other students 

and as well as from Appellant’s own father. The trial court also considered 

Appellant’s allocution in which Appellant maintained his innocence, asserted 

that he had spent his whole life devoted to helping people, and submitted a 

list of selfless acts he had done for others out of his kindness. 

Defense counsel emphasized that Appellant had opened his karate 

studio in 2011 and had trained approximately 150 students professionally, 

ethically, and morally without incident. Moreover, defense counsel reiterated 

that Appellant has never had substance abuse issues and only had one 

misdemeanor conviction for furnishing alcohol to minors. Defense counsel 

also pointed out that the presentence investigation report indicated that 

Appellant may have suffered physical or sexual abuse as a juvenile from one 

of his mother’s paramours.

Prior to announcing sentence, the trial court expressly stated on the 

record that it had considered the nature and gravity of the offenses, 

Appellant’s rehabilitative needs, and the impact on the community. The trial 

court also indicated that it had closely reviewed the sentencing code and 

guidelines before it formulated Appellant’s sentences. The trial court also 

acknowledged receiving the presentence investigation report. This Court has 
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held that “[w]here the sentencing judge had the benefit of a pre-sentence

report, it will be presumed that he was aware of relevant information 

regarding appellant's character and weighed those considerations along with 

the mitigating statutory factors. Commonwealth v. Fullin, 892 A.2d 843, 

849–50 (Pa.Super. 2006). 

The trial court emphasized that it found the nine-year-old victim’s 

testimony to be credible and heartbreaking, considering Appellant had violated 

the trust of the victim, who had idolized Appellant as a role model. The trial 

court characterized Appellant’s conduct in making the victim climb naked up 

a pole and spanking him as calculated actions directed at grooming the victim 

for sexual advances. The trial court opined that the victim, in addition to 

shame and pain, would have long-term effects in placing trust in adults.

Moreover, the trial court concluded that it was necessary to impose 

sentences in the aggravated range or outside the sentencing guidelines. The 

trial court remarked at Appellant’s cruelty in repeatedly forcing the victim to 

make a choice between 10 hard spankings and 50 light spankings and 

disguising it as a plan of conditioning and toughening of the child. The trial 

court reveled at Appellant’s ability to repeatedly to engage in this course of 

conduct despite the ramifications of his conduct on the child. Noting Appellant 

had been previously charged with corruption of minors and subsequently 

convicted of furnishing alcohol to minors, the trial court admonished Appellant 

for not learning from a situation in which he was punished for acting 

inappropriately in circumstances involving minors. Based on the foregoing 
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reasons, we conclude that the trial court did not abuse its discretion in 

imposing Appellant’s sentence.

Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/20/2019