J-A19017-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN EUGENE PATRICK, III 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1631 MDA 2017

Appeal from the Judgment of Sentence July 10, 2017

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

No(s): CP-01-CR-0000873-2016

BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 13, 2019

Appellant John Eugene Patrick, III, appeals from the judgment of 

sentence following his convictions involuntary deviate sexual intercourse 

(IDSI), statutory sexual assault, unlawful contact with a minor, corruption of 

minors, and indecent assault.1 Appellant asserts that his conviction was 

against the weight of the evidence, his sentence is excessive in light of the 

gravity of the offenses and his rehabilitative needs, and the trial court erred 

in admitting evidence obtained in violation of the Pennsylvania Wiretap Act.

2

 

We affirm.

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1 18 Pa.C.S. §§ 3123(a)(7), 3122.1(b), 6318(a)(1), 6301(a)(1)(ii), and 

3126(a)(8), respectively.

2 18 Pa.C.S. §§ 5701-5782.
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The trial court summarized the relevant factual background to this 

matter as follows:

During the time period at issue in trial (September 2015 to 

January 2016) B.A. (hereinafter “Victim”) was 14 to 15 years old, 

and lived with her adoptive mother, her twin sister, and Appellant 

(her adopted brother) . . . in Gettysburg, Adams County, 

Pennsylvania. 

On January 20, 2016, [Victim] testified she remained home from 

school because her mouth was sore from having braces put on. 

[Victim] testified Appellant came into her room that morning and 

woke her up. She testified Appellant asked her to have sex with 

him and she agreed. Appellant and [Victim] went to the living 

room where Appellant removed his and [Victim]’s clothes. 

Appellant had [Victim] perform oral sex on him[,] which, she 

explained, meant Appellant’s penis was inside her mouth. Next, 

Appellant performed oral sex on [Victim] where his tongue went 

inside her vagina. Appellant then had Victim stand up and turn 

around so she was facing away from him. Appellant “[went] 

behind [[Victim]] and put his penis in [her] vagina.” [Victim]

testified Appellant did not ejaculate inside of her but on a nearby 

towel. After the assault, [Victim] put her pink underwear back on. 

[Victim] testified after the incident occurred she went back to bed. 

[Victim] showered at about 6:00 p.m.

At approximately 8:00 p.m., [Victim] testified she “decided that 

[she] couldn’t stay anymore” and “packed her bags and . . . went 

to [her] neighbor’s house.” Her neighbor, Keith Klinefelter 

(“Klinefelter”) testified [Victim] came to his residence and told him 

“[s]he needed help.” Klinefelter testified [Victim] told him “her 

stepbrother . . . was sexually assaulting her.” While [Victim] was 

at Klinefelter’s house, Appellant and [Victim]’s sister arrived at 

Klinefelter’s residence looking for her.

Klinefelter took [Victim] to the Cumberland Township police 

station where she spoke to Detective Stephen Higgs (“Detective 

Higgs”) at approximately 8:30 p.m. [Victim] told Detective Higgs 

what Appellant did to her and gave him the pink underwear she 

put on after the assault. Next, [Victim] went to Gettysburg 

Hospital for a forensic sexual assault examination. Allison 

Arrowood (“Nurse Arrowood”), a [Sexual Assault Nurse Examiner] 

at Gettysburg Hospital[,] performed an examination of [Victim]. 
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Nurse Arrowood collected as evidence the underwear [Victim]

wore when she came in for the exam and vaginal swabs[,] which 

she provided to the police. [Nurse Arrowood also noted an 

abnormal reddened area at Victim’s vaginal opening.] Detective 

Higgs sent [Victim]’s pink underwear and the sexual assault kit to 

the Pennsylvania State Police crime lab for testing.

At trial, [Victim] also testified Appellant assaulted her prior to the 

January 20, 2016 incident. Specifically, that between September 

2015 and January 2016[,] Appellant had sexual intercourse with 

her “almost daily, but not every day.” She testified the incidents 

occurred “in the living room, on the other side of the kitchen, in 

the basement.” During that time frame, [Victim] also testified she 

performed oral sex on Appellant and he performed oral sex on her. 

She testified this occurred “usually in the basement[,]” which 

[was] Appellant’s bedroom. When asked why she did not report 

the incidents prior to January 20, 2016, [Victim] explained 

Appellant threatened “he would tell [her] mom and blame it on 

[her] and make it seem like [she] was the one who wanted 

everything to happen.”

Mary Ayres was called as a witness for Appellant and on direct 

examination she testified that she is the mother of [Victim] and 

Appellant and both lived in her household during the relevant time 

period. [Victim] slept in a first floor bedroom with her sister next 

to Mary Ayres’ bedroom and Appellant slept in the basement. 

When asked about [Victim]’s sleeping situation[,] Mary Ayres 

testified that she “always locked their bedroom from the time they 

were five years old.” Mary Ayres further testified that on January 

20, 2016, “I woke up about just a little bit before 7:00 [a.m.], 

because I remember the incident very well because [Victim’s 

sister] had climbed up to [Victim] and took her socks off, and we 

were laughing about that that morning, and [Victim] stayed home 

because she had an orthodontist appointment that day.” Mary 

Ayres further testified that “[she] got up and [Victim] made [her] 

coffee, [Victim] made herself a cup of tea, and then [Victim’s 

sister] left for school and [she and Victim] sat around talking in 

the kitchen for a little while and then in the living room until it was 

time to go to the orthodontist around 1:00. When asked where 

Appellant was on January 20, 2016, Mary Ayres testified “[h]e was 

usually in the basement playing his guitar.” Mary Ayres also 

testified that when [Victim] and her sister were home they were 

never out of her sight and she never heard any problem between 

Appellant and [Victim].
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On cross-examination Mary Ayres testified that Appellant left her 

residence the evening of January 20, 2016[,] and never returned 

to her residence. Between January 20, 2016[,] and June 28, 

2016[,] Mary Ayres had telephone conversations with Appellant. 

Mary Ayres advised Appellant that Detective Higgs had been to 

the house and spoke with Mary Ayres and Mary Ayres testified 

concerning her conversation with Appellant[:] “but we just 

discussed that, yeah, there was a problem, and it had to be 

resolved,” referring to the sexual assault allegations by [Victim]

against Appellant.

The Commonwealth also questioned Mary Ayres about a recorded 

confrontation between her and [Victim] on March 20, 2016.[3] The 

Commonwealth cross-examined Mary Ayres concerning the 

following statements[4] Mary Ayres made to [Victim] during the 

March 20, 2016 recorded confrontation: “you fucking ruined 

someone’s life. All because you let him fuck you and that ruined 

his life.” “He should have known better than to fuck a 15-yearold that’s going to be vindictive, you are a vindictive little bitch, 

that’s what you are.” “[L]et a 46-year-old man do you, uh, that’s 

gross, I never though you would have done something like that.” 

“You know better than to say yes to a man but you didn’t.” “Oh, 

you’re disgusting, shut the fuck up, shut the fuck up, because I 

don’t want to hear anything come out of your mouth because it’s 

all fucked up, your way of talking, shut up, I don’t want to hear 

you, shut the fuck up, he shouldn’t have asked, then [Victim] 

wouldn’t have said yes, you’re fucked up with that way of 

thinking.” “[I]t was consensual, it was consensual, consensual.” 

After Mary Ayres was confronted with each quote, she either 

denied having said it or did not remember saying it. She did agree 

that if she said those things they would have been contained in 

the recording. Mary Ayres testified that as a result of the 

confrontation with [Victim] on March 20, 2016[,] she entered 

pleas of guilty on December 15, 2016[,] to endangering the 

welfare of a child and terroristic threats.

Suppl. Trial Ct. Op., 11/21/18, at 1-6 (footnotes and citations omitted).

____________________________________________

3 Victim recorded the argument on her cellphone. 

4 The Commonwealth questioned Mary Ayres about the statements and the 

trial court permitted Detective Higgs to read the statements into the record 

during rebuttal. The trial court did not allow the recorded statements to be 

played for the jury. See N.T., 4/13/17, at 318.
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At the conclusion of the trial, the jury found Appellant guilty of the 

aforementioned offenses. On July 10, 2017, the trial court sentenced 

Appellant to an aggregate sentence of twenty-four to forty-eight years’

incarceration, including consecutive standard range sentences of eight to 

sixteen years for both counts of IDSI and one count of unlawful contact with 

a minor, graded as a felony of the first degree. Appellant also received 

concurrent sentences of four to eight years’ incarceration for statutory sexual 

assault and two to four years’ incarceration for one count of unlawful contact 

with a minor, graded as a felony of the third degree, and corruption of a 

minor.5 Appellant filed a timely post-sentence motion challenging the 

excessiveness of his sentence and alleging that the court failed to consider his 

rehabilitative needs properly. The trial court denied Appellant’s post-sentence 

motion on October 6, 2017.

Appellant filed a timely notice of appeal on October 11, 2017. On 

October 30, 2017, the trial court directed Appellant to file a concise statement 

of errors complained of on appeal under Pa.R.A.P. 1925(b) within twenty-one 

days. Appellant did not file a Rule 1925(b) concise statement until December 

11, 2017. 

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5 Appellant did not receive a separate sentence for indecent assault because 

it merged with the IDSI and statutory sexual assault convictions.
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Meanwhile, the trial court filed an initial Pa.R.A.P. 1925(a) opinion on 

December 8, 2017, before receiving Appellant’s concise statement. As a 

result, we remanded this matter for the trial court to file a supplemental Rule 

1925(a) opinion.6 The trial court filed a supplemental Rule 1925(a) opinion 

on November 21, 2018.

On appeal, Appellant raises three issues, which we have reordered as 

follows:

1. Whether the trial court erred in denying Appellant’s [p]ost-

[s]entence [m]otion where his convictions were against the 

weight of the evidence so as to shock one’s sense of justice 

where Appellant was never shown to have committed the 

crimes alleged[.]

2. Whether the trial court erred in denying Appellant’s [p]ost-

[s]entence [m]otion where Appellant’s sentence is excessive 

and unreasonable and constitutes too severe a punishment in 

light of the gravity of the offense, Appellant’s rehabilitative 

needs, and what is needed to protect the public[.]

3. Whether the trial court erred in admitting illegally obtained 

evidence in violation of the Pennsylvania Wiretap Act[,] 18 

Pa.C.S. § 5721.1(a)(1)[,] during the Commonwealth’s cross 

examination of a defense witness and whether the probative 

value of such evidence was outweighed by its prejudicial effect.

Appellant’s Brief at 6.

In his first issue, Appellant asserts that his convictions were against the 

weight of the evidence. Id. at 33. However, a claim that the verdict was 

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6 See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en 

banc) (holding that where there has been an untimely filing of a Rule 1925(b) 

statement, “this Court may decide the appeal on the merits if the trial court 

had adequate opportunity to prepare an opinion addressing the issues being 

raised on appeal. If the trial court did not have an adequate opportunity to 

do so, remand is proper”). 
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against the weight of the evidence must be raised in the trial court orally or 

in writing before sentencing or in a post-sentence motion. See Pa.R.Crim.P. 

607(A) (“A claim that the verdict was against the weight of the evidence shall 

be raised with the trial judge in a motion for a new trial”); Commonwealth 

v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding that although the 

appellant “included an issue challenging the verdict on weight of the evidence 

grounds in his 1925(b) statement and the trial court addressed [the 

appellant’s] weight claim in its Pa.R.A.P 1925(a) opinion, [he] did not preserve 

his weight of the evidence claim for appellate review in the absence of an 

earlier motion.” (citations omitted)).

Here, our review reveals that Appellant did not challenge the weight of 

the evidence before sentencing or in his post-sentence motion. Therefore, we 

are constrained to conclude that Appellant has waived the issue. See

Sherwood, 982 A.2d at 494.

Next, Appellant raises a discretionary aspects of sentencing claim. 

Appellant argues that his sentence was excessive and did not take into 

consideration his rehabilitative needs and the lack of danger he poses to the 

community. Appellant’s Brief at 35. Appellant asserts that “[t]here was never 

any testimony that [Appellant] was violent or that he presented an untenable 

danger to society. His sentence of 24-48 years [of incarceration is] excessive 

given . . . Appellant’s rehabilitative needs and the danger he poses to the 

community.” Id.
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We note that an appeal challenging the discretionary aspects of 

sentencing is not an appeal as of right. Commonwealth v. Dunphy, 20 A.3d 

1215, 1220 (Pa. Super. 2011). 

To determine whether an appellant has properly preserved the 

discretionary aspects of sentencing for appellate review, we must 

conduct the following four part analysis: (1) whether appellant has 

filed a timely notice of appeal;(2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify 

sentence;(3) whether appellant’s brief has a fatal defect;and (4) 

whether there is a substantial question that the sentence appealed 

from is not appropriate under the Sentencing Code.

Id. (footnotes and citation omitted).

Here, Appellant filed a timely notice of appeal, the issue of whether 

Appellant’s sentence was excessive and whether the court failed to consider 

his rehabilitative needs was preserved in a post-sentence motion, and

Appellant’s brief includes a Pa.R.A.P. 2119(f) statement of the reasons relied 

upon for allowance of appeal. Accordingly, we turn to whether a substantial 

question exists in this matter.

We note that “an excessive sentence claim—in conjunction with an 

assertion that the court failed to consider mitigating factors—raises a 

substantial question.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. 

Super. 2015) (en banc) (citation omitted). Accordingly, Appellant presents a 

substantial question in this appeal.

Where a sentence is imposed within the guidelines, we may only reverse 

the trial court if we find that the circumstances of the case rendered the 

application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). 
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Our review of the reasonableness is based upon the factors contained in 42

Pa.C.S. § 9781(d),

7 and the trial court’s consideration of the general 

sentencing standards contained in 42 Pa.C.S. § 9721(b).8 

In fashioning a sentence, the trial court is required to consider the 

particular circumstances of the offense and the character of the defendant. 

See 42 Pa.C.S. § 9721(b); Commonwealth v. Ventura, 975 A.2d 1128,

1135 (Pa. Super. 2009). “[W]here the sentencing judge had the benefit of a 

pre-sentence investigation report [(PSI)], it will be presumed that he or she 

was aware of the relevant information regarding the defendant’s character 

and weighed those considerations along with mitigating statutory factors.” 

Ventura, 975 A.2d at 1135 (citation omitted). 

____________________________________________

7 Section 9781(d) includes the following:

(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. § 9781(d).

8 Section 9721(b) provides that the court must follow the general principal 

that “the sentence imposed should call for confinement that is consistent with 

the protection of the public, the gravity of the offense as it relates to the 

impact on the life of the victim and on the community, and the rehabilitative 

needs of the defendant.” 42 Pa.C.S. § 9721(b).
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In this matter, Appellant’s sentence for each conviction fell within the 

guideline range. The trial court was well aware of the nature and 

circumstances of the crimes involved, particularly since it had access to a PSI. 

See id. At sentencing, the trial court stated:

The aggregate sentence imposed in this case is a sentence of 24 

years to 48 years. This [c]ourt has imposed this sentence based 

on the fact that [Appellant] in this case engaged in an ongoing 

course of sexual conduct with [Victim] for a period of up to five 

months. This ongoing course of conduct included numerous 

sexual encounters involving sexual intercourse with [Victim], 

[Appellant] having [Victim] perform oral sex on himself and 

[Appellant] performing oral sex on [Victim]; the fact that 

[Appellant] was living under the same roof as [Victim] during this 

ongoing course of sexual conduct and [Appellant] exerted 

psychological influence on [Victim] to ensure she would not report 

these sexual assaults; the fact that [Appellant] was 45 to 46 years 

old at the time he committed these offenses and [Victim] was 15 

years old; the [c]ourt has taken into account the substantial 

impact that these crimes have had on [Victim]. [Victim] has lost 

her family and she has lost relationships with her stepmother and 

most importantly has lost the relationship with her twin sister; the 

[c]ourt has taken into account the emotional impact that these 

crimes have had on the victim; the [c]ourt has taken into 

consideration [Appellant’s] testimony at trial. [Appellant] lied 

under oath while testifying at trial; and this [c]ourt takes into 

account that [Appellant] has shown no remorse whatsoever for 

his actions in this case and the impact on [Victim].

* * *

As a condition of [Appellant’s] sentence he shall have no contact 

with [Victim]. A further condition will be that [Appellant] 

participate in sexual offender treatment and programming at the 

designated state correctional institution.

Order, 7/10/17, at 4-5.

Accordingly, a review of the record reveals no basis to conclude that the 

trial court failed to consider or inappropriately weighed the lack of physical 
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violence associated with Appellant’s offense or Appellant’s rehabilitative needs 

in light of the gravity of the offense and the impact on Victim. On this basis, 

we cannot conclude that the sentence imposed was “clearly unreasonable.” 

See 42 Pa.C.S. § 9781(c). Therefore, Appellant’s discretionary aspects of 

sentencing claim entitles him to no relief.

In his final issue, Appellant asserts that 

[i]t is uncontested that the prosecution cross-examined defense 

witness Mary Ayres about oral communications that she made to 

[Victim] while they were both in Mary Ayres’ home. [Victim] used 

her cellphone to record those statements without Mary Ayres’ 

consent. Such actions were undertaken in violation of the 

Pennsylvania Wiretap Act and the fruits of this illegal act should 

have been suppressed.

Appellant’s Brief at 20. Specifically, Appellant argues that Victim “recorded a 

private conversation between herself and Mary Ayres [in violation of 18 

Pa.C.S. § 5703], and that this recording does not meet any of the exceptions 

delineated in the Pennsylvania Wiretap Act[.]” Id. at 28. Appellant further 

argues that the probative value of the contents of the conversation was 

substantially outweighed by the prejudice to Appellant of permitting the 

contents to be introduced into evidence. Id. at 31.

Here, the trial court’s decision to permit cross-examination of Mary 

Ayres based upon the recorded oral conversation implicates the construction 

and application of the Wiretap Act’s provisions. Accordingly, 

our review is guided by the rules set forth in the Statutory 

Construction Act of 1972 (“SCA”). 1 Pa.C.S.A. § 1501 et seq. The 

SCA instructs that “the object of all interpretation and construction 

of statutes is to ascertain and effectuate the intention of the 

General Assembly. Every statute shall be construed, if possible, to 
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give effect to all its provisions.” 1 Pa.C.S.A. § 1921(a). Further, 

“[w]hen the words of a statute are clear and free from all 

ambiguity, the letter of it is not to be disregarded under the 

pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). When, 

however, the words of the statute are not explicit, the intention of 

the General Assembly may be ascertained by considering other 

matters. 1 Pa.C.S.A. § 1921(c).

Under the SCA, “[w]ords and phrases shall be construed according 

to the rules of grammar and according to their common and 

approved usage[.]” 1 Pa.C.S.A. § 1903(a). If the General 

Assembly defines words that are used in a statute, those 

definitions are binding. A court may presume that in drafting the 

statute, the General Assembly intended the entire statute to be 

effective. 1 Pa.C.S.A. § 1922(2). Thus, when construing one 

section of a statute, courts must read that section not by itself, 

but with reference to, and in light of, the other sections.

Commonwealth v. Deck, 954 A.2d 603, 606-07 (Pa. Super. 2008) (some 

citations omitted).

We note the following regarding the Wiretap Act’s framework:

As a general rule, in Section 5703, the Act prohibits the 

interception, disclosure or use of any wire, electronic or oral 

communication. 18 Pa.C.S.A. § 5703. In Section 5704, however, 

the Act sets forth several exceptions to Section 5703’s prohibitions 

and allows for the interception of a wire, electronic or oral 

communication in designated circumstances. 18 Pa.C.S.A. § 5704. 

In Section 5721.1, the Act provides a statutory exclusionary rule 

that authorizes the suppression of interceptions that were not 

carried out in compliance with Section 5704’s exceptions. 18 

Pa.C.S.A. § 5721.1(b); Commonwealth v. Spangler, 809 A.2d 

[234, 238 & n.7 (Pa. 2002)].

Deck, 954 A.2d at 607.

As to the Wiretap Act’s specific provisions, we begin with Section 5703, 

which provides:

Except as otherwise provided in this chapter, a person is guilty of 

a felony of the third degree if he:
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(1) intentionally intercepts, endeavors to intercept, or procures 

any other person to intercept or endeavor to intercept any wire, 

electronic or oral communication;

(2) intentionally discloses or endeavors to disclose to any other 

person the contents of any wire, electronic or oral 

communication, or evidence derived therefrom, knowing or 

having reason to know that the information was obtained 

through the interception of a wire, electronic or oral 

communication; or

(3) intentionally uses or endeavors to use the contents of any 

wire, electronic or oral communication, or evidence derived 

therefrom, knowing or having reason to know, that the 

information was obtained through the interception of a wire, 

electronic or oral communication.

18 Pa.C.S. § 5703. Subject to certain exclusions not pertinent here, the 

Wiretap Act defines “oral communication” as “[a]ny oral communication 

uttered by a person possessing an expectation that such communication is not 

subject to interception under circumstances justifying such expectation.” 18 

Pa.C.S. § 5702.

One exception to Section 5703 is set forth in Section 5704, which

permits

[a]ny victim, witness or private detective . . . to intercept the 

contents of any wire, electronic or oral communication, if that 

person is under a reasonable suspicion that the intercepted party 

is committing, about to commit or has committed a crime of 

violence and there is reason to believe that evidence of the crime 

of violence may be obtained from the interception.

18 Pa.C.S. § 5704(17).

The statutory exclusionary rule in Section 5721.1 provides that evidence 

may be disclosed by

[a]ny person who has obtained knowledge of the contents of any 

wire, electronic or oral communication, or evidence derived 
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therefrom, which is properly subject to disclosure under section 

5717 (relating to investigative disclosure or use of contents of 

wire, electronic or oral communications or derivative evidence) 

may also disclose such contents or evidence in any matter relating 

to any criminal, quasi-criminal, forfeiture, administrative 

enforcement or professional disciplinary proceedings in any court, 

board or agency of this Commonwealth or of another state or of 

the United States or before any state or Federal grand jury or 

investigating grand jury. Once such disclosure has been made, 

then any person may disclose the contents or evidence in any such 

proceeding.

18 Pa.C.S. § 5721.1(a)(2). However,

[a]ny aggrieved person who is a party to any proceeding in any 

court, board or agency of this Commonwealth may move to 

exclude the contents of any wire, electronic or oral 

communication, or evidence derived therefrom, on . . . the 

following grounds:

(1) Unless intercepted pursuant to an exception set forth in 

section 5704 (relating to exceptions to prohibition of 

interception and disclosure of communications), the 

interception was made without prior procurement of an order 

of authorization under section 5712 (relating to issuance of 

order and effect) or an order of approval under section 5713(a) 

(relating to emergency situations) or 5713.1(b) (relating to 

emergency hostage and barricade situations).

18 Pa.C.S. § 5721.1(b)(1). An “aggrieved person” is “[a] person who was a 

party to any intercepted wire, electronic or oral communication or a person 

against whom the interception was directed.” 18 Pa.C.S. § 5702.

Instantly, the aggrieved person was Mary Ayres. Appellant was not an 

aggrieved person since his oral communication was not intercepted nor was 

the interception directed at him. See 18 Pa.C.S. § 5702. Accordingly, 

Appellant was not an aggrieved person who was also a party to the proceeding 

in which he attempted to exclude the contents of the conversation between 
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Mary Ayres and Victim, as required by Section 5721.1(b). See 18 Pa.C.S. §

5721.1(b). Therefore, Appellant did not have standing under the Wiretap Act 

to seek to exclude the contents of the conversation from being introduced into 

evidence during his trial. See id. For the foregoing reasons, the trial court 

did not violate the Wiretap Act in permitting the contents of the conversation 

between Mary Ayres and Victim from being introduced into evidence.9

Appellant also argues that the probative value of the contents of Mary 

Ayres’ wiretapped conversation with the Victim was outweighed by the 

____________________________________________

9

In any event, we agree with the trial court that Victim’s recording of the 

conversation with Mary Ayres falls under an exception to the prohibition of 

intercepting and disclosing communications. Under 18 Pa.C.S. § 5704(17), it 

is not unlawful and court approval is not required for

[a]ny victim, witness or private detective . . . to intercept the 

contents of any wire, electronic or oral communication, if that 

person is under a reasonable suspicion that the intercepted party 

is committing, about to commit or has committed a crime of 

violence and there is reason to believe that evidence of the crime 

of violence may be obtained from the interception.

18 Pa.C.S. § 5704(17). For purposes of the Wiretap Act, a “crime of violence” 

includes, among other things, intimidation of a witness or victim under 18 

Pa.C.S. § 4952, retaliation against a witness or victim under 18 Pa.C.S. § 

4953, and any equivalent offense. See 18 Pa.C.S. § 5702. Here, Victim was 

under a reasonable suspicion that Mary Ayres was committing or about to 

commit a crime of violence, because Mary Ayres was berating her in a manner 

consistent with intimidation of witnesses. As an indication that Mary Ayres’ 

behavior rose to the level of criminal behavior justifying a wiretap, we note 

that Mary Ayres was later charged and pled guilty to intimidation in a child 

abuse case based on the conversation Victim recorded. Because intimidation 

in a child abuse case is an equivalent offense to intimidation under Section 

4952, see 18 Pa.C.S. § 4958(a), it qualifies as a crime of violence under the 

Wiretap Act and Victim was justified in recording the conversation with Mary 

Ayres on March 20, 2016.
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prejudice of the contents to him. Appellant asserts that this provides an 

alternative basis under which the trial court should have excluded the 

evidence.

In considering Appellant’s issue, we note that 

[a]dmissibility of evidence is within the sound discretion of the 

trial court and will not be disturbed absent an abuse of discretion. 

An abuse of discretion is not merely an error of judgment, but is 

rather the overriding or misapplication of the law, or the exercise 

of judgment that is manifestly unreasonable, or the result of bias, 

prejudice, ill-will or partiality, as shown by the evidence of record.

Commonwealth v. Lynn, 192 A.3d 165, 169 (Pa. Super. 2018) (citations 

and internal quotation marks omitted).

We note that under Pa.R.E. 401, evidence is relevant if “(a) it has any 

tendency to make a fact more or less probable than it would be without the 

evidence; and (b) the fact is of consequence in determining the action.” 

Pa.R.E. 401. In general, “relevant evidence is admissible, except as otherwise 

provided by law. Evidence that is not relevant is not admissible.” Pa.R.E. 

402. “The credibility of a witness may be impeached by any evidence relevant 

to that issue, except as otherwise provided by statute or these rules.” Pa.R.E. 

607; see also Pa.R.E. 613(a) (“A witness may be examined concerning a prior 

inconsistent statement made by the witness to impeach the witness’s 

credibility.”). As is pertinent in this matter, relevant evidence may be 

excluded if its probative value is outweighed by the danger of unfair prejudice, 

among other things. Pa.R.E. 403. Because all relevant Commonwealth 

evidence is meant to prejudice a defendant, exclusion of evidence is limited 
J-A19017-18

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to evidence so prejudicial that it would “inflame the jury’s sensibilities with 

reference to matters other than the legal propositions relevant to the case.” 

Commonwealth v. Gonzalez, 112 A.3d 1232, 1238 (Pa. Super. 2015)

(quotation marks and citations omitted).

Here, the court permitted the contents of the conversation to be read to 

the jury but did not permit the recorded conversation to be played:

I will allow you, in rebuttal, to actually have the detective take the 

stand, and he can say what is on the recording. I’m not playing 

the recording itself. I think the prejudice outweighs any probative 

value [by playing the recording], but he can say on the recording 

what she specifically said in rebuttal.

N.T., 4/13/17, at 318. As the trial court noted in its supplemental Rule 

1925(a) opinion, 

[i]t is clear from Mary Ayres’ testimony that she was called as a 

fact witness by Appellant to show that Appellant was not in a 

position to have committed a sexual assault against [Victim] on 

January 20, 2016[,] or in the months preceding January 20, 2016. 

The statements of Mary Ayres made to [Victim] during the 

recorded confrontation on March 20, 2016[,] are clearly relevant, 

given the direct testimony provided by Mary Ayres at trial, 

because her statements tend to make a fact at issue more or less 

probable or support a reasonable inference or presumption 

regarding a material fact, that is that the Appellant sexually 

abused [Victim]. Such statements are also admissible to impeach 

or rebut Mary Ayres’ direct testimony. Furthermore, the probative 

value of these statements clearly outweighs any unfair prejudice 

to Appellant, as they go directly to whether the sexual abuse 

occurred in this matter. As such, the recorded statements of Mary 

Ayres of March 20, 2016[,] are relevant and the probative value 

outweighs any danger of unfair prejudice to Appellant.

Suppl. Trial Ct. Op., 11/21/18, at 11-12.
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We agree with the trial court that the probative value of Mary Ayres’ 

statements was not outweighed by the potential of unfair prejudice to 

Appellant. The statements were relevant as they went to Mary Ayres’ 

credibility and demonstrated her belief that Appellant had committed the 

sexual offenses charged in this matter. See Gonzalez, 112 A.3d at 1238. 

Additionally, Mary Ayres actually denied making certain statements on the 

recording, see N.T., 4/13/17, at 314, 376, which permitted the 

Commonwealth to introduce evidence of those statements as prior 

inconsistent statements. See Pa.R.E. 613(a). Thus, the trial court did not 

abuse its discretion in permitting the Commonwealth to cross-examine Mary 

Ayres regarding the statements and in allowing the statements to be read to 

the jury during rebuttal. See Lynn, 192 A.3d at 169.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/13/2019