J-S67014-14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 

*Former Justice specially assigned to the Superior Court. 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

 Appellee :

:

 v. :

:

MIRAUM MIRANDIS BEY, :

:

 Appellant : No. 269 WDA 2014 

Appeal from the Judgment of Sentence January 6, 2014, 

Court of Common Pleas, Allegheny County, 

Criminal Division at No. CP-02-CR-0007338-2013 

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ. 

MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 25, 2014 

 Miraum Mirandis Bey (“Bey”) appeals from the January 6, 2014 

judgment of sentence entered by the Allegheny County Court of Common 

Pleas. On appeal, Bey raises two evidentiary challenges and further claims 

that his sentence is illegal. Upon review, we conclude that the alleged 

evidentiary errors do not entitle him to a new trial but agree that his 

sentence is illegal. We therefore vacate the judgment of sentence and 

remand for resentencing. 

 The record reflects the following information adduced at trial. On 

March 28, 2013, 16-year-old B.G. (“the victim”) went with her 17-year-old 

sister, B.G., to Julia Vidal’s house to drink alcohol. There were between five 

and eight other teenagers and young adults there. After consuming several 

shots of alcohol, the victim remembered being on the steps of the house, 
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sitting on Bey’s lap and kissing him. She felt intoxicated. The next thing 

she remembered was waking up naked and alone on the floor in a third-floor 

bedroom of the house. She did not remember undressing. There was a 

mattress on the floor next to her and vomit on her clothing, which were on 

the floor. 

 According to B.G., she walked into the third-floor bedroom and saw 

the victim laying on the mattress on her back with Bey on top of her 

“thrusting” “like when you have sex.” N.T., 10/23-24/13, at 81. She heard 

the victim “screaming.” Id. at 82. B.G. yelled at Bey and tried to pull him 

off her sister without success. She then retrieved several young men who 

were at the party to help her. They went upstairs, pulled Bey off the victim, 

and took him to a second-floor room, where they beat up Bey until Vidal 

intervened and stopped the fight. 

 The victim’s mother received a call from a family friend whose children 

were also at the party informing her that the victim had been raped. She 

went to Vidal’s house, picked up the victim and then called the police. When 

the police officers arrived at the house, they observed the victim to be crying 

and shaking. She did not respond to questions asked by one of the officers 

who initially responded to the call. B.G. gave police a summary of what 

occurred, during which the victim began to become more upset and cry 

harder. The responding officers contacted the police department’s sexual 

assault unit, which took over the investigation of the case. 
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 Following the advice of the police, the victim’s mother then took her to 

the hospital where a sex assault kit was utilized. Swabs of her vagina, 

rectum, cervix and labia all tested positive for the presence of “seminal 

material.” Id. at 221. Bey’s sperm was found on the victim’s labia. “[H]e 

could not be excluded as a contributor” of the seminal material found in the 

other swabbed areas. Id. at 228-29. 

 The victim met with Detective Tamara Hawthorne of the City of 

Pittsburgh’s Sex Assault Unit. Prior to interviewing the victim, Detective 

Hawthorne observed the victim in the waiting room – she was curled up on a 

chair coloring with crayons in a coloring book as a toddler or young child 

would. She testified that she is not a trained psychologist, but based on her 

observations she believed the victim was “mentally delayed.” Id. at 245. 

She described the victim as “child-like” during the interview, and Detective 

Hawthorne used techniques to build a rapport with her that she usually used 

with young children. 

 Detective Hawthorne testified at trial, detailing her investigation of the 

sexual assault against the victim. The information she obtained during her 

interviews with some of the witnesses differed in some respects. One such 

difference that is of particular relevance to this appeal is that although B.G. 

did not testify that Bey said anything when he was pulled him off the victim, 

she reportedly told Detective Hawthorne he said: “Man, I didn’t bust a nut in 

her. I didn’t bust a nut in her.” Id. at 254. 
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 The victim’s mother testified that the victim is diagnosed with both 

Asperger’s Syndrome and Attention Deficit Hyperactivity Disorder (“ADHD”). 

She takes medication to manage her diagnoses and sees a therapist 

monthly. According to her mother, the victim is not mentally incompetent or 

mentally challenged, but requires things to be explained slowly and in more 

detail when you are talking to her. 

 The victim’s mother further testified that the victim has never had a 

boyfriend or brought a boy to her house. Her mother has only heard her say 

that a boy is “cute,” but nothing more. Id. at 302. The victim and her 

mother reportedly talked a lot, and her mother believed the victim was very 

open with her. The victim has never spoken with her mother about sex or 

dating. 

 Bey testified in his own defense. He stated that he was socializing 

with the victim that night and although she was drinking, he did not think 

that she was drunk. He testified that she sat on his lap and they talked for 

15 to 20 minutes, and then started kissing on the steps. When someone 

suggested that they go upstairs, Bey said the victim wanted to and led him 

by the hand upstairs. Bey admitted that they had sex, but testified that it 

was consensual. He recalled B.G. coming upstairs, but stated he and the 

victim were no longer having sex at that time and denied that she tried to 

pull him away from the victim. According to Bey, B.G. was angry about him 

being with her sister and started calling for people. The victim asked him to 
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stay, but Bey did not want to be in the middle of anything. He said he went 

downstairs to the second floor, where multiple people beat him up, and then 

he left the house. 

 After three days of testimony, the jury returned a verdict convicting 

Bey of unlawful contact with a minor and corruptions of minors.1 The jury 

acquitted him of rape by forcible compulsion, rape of an unconscious person 

and sexual assault.2 On January 6, 2014, the trial court sentenced Bey to 9 

to 18 years of incarceration for his conviction of unlawful contact with a 

minor. It imposed no additional penalty for his corruption of minors 

conviction. Bey filed a timely motion to modify his sentence on January 10, 

2014, challenging, inter alia, the grading of his unlawful contact with a minor 

conviction as a first-degree felony instead of a third-degree felony. The trial 

court denied the motion on January 14, 2014. Bey filed a timely notice of 

appeal, followed by a concise statement of errors complained of on appeal. 

The trial court filed a written opinion pursuant to Pa.R.A.P. 1925(a) on May 

29, 2014. 

 Bey raises two issues on appeal for our review: 

1. Was the 9-to-18 year confinement sentence imposed 

on [Bey] on [his corruption of minors conviction] an 

illegal sentence that must be vacated given that (A) 

[Bey] was acquitted of Felony I Forcible Rape, Felony 

I Rape of an Unconscious Person, and Felony II 

 

1

 18 Pa.C.S.A. §§ 6318(a)(1), 6301(a)(1)(i). 

2

 18 Pa.C.S.A. §§ 3121(a)(1), (3), 3124.1. 
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sexual Assault; (B) 18 Pa.C.S. § 6138(b) and 

Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010), 

provide that an Unlawful Contact conviction is in 

such a circumstance to be graded as a Third[-

]Degree Felony; and (C) the most severe 

punishment that can be imposed for such a felony is, 

pursuant to 18 Pa.C.S. § 1103(3) and 42 Pa.C.S. § 

9756(b)(1), a sentence of 31⁄2-to-7 years of 

imprisonment? 

2. Did the [t]rial [c]ourt err when it permitted 

Pittsburgh Police Detective Tamara Hawthorne to 

testify (A) that the complainant was, in her 

estimation, ‘mentally delayed,’ and (B) that 

prosecution witness B.G. had told her that [Bey] had 

said ‘I didn’t bust a nut in her’ (referring to the

complainant), rather than saying no words at all, 

immediately after he was pulled off of the 

complainant (with the former statement being 

inadmissible as lay opinion testimony, and the latter 

statement being precluded since, inter alia, the 

witness was never asked about the alleged prior 

inconsistent statement)? 

Bey’s Brief at 3. 

 Beginning with the first issue raised, it is uncontested by both the trial 

court and the Commonwealth that Bey’s sentence for his conviction of 

unlawful contact with a minor is illegal. See Trial Court Opinion, 5/29/14, at 

2-3; Commonwealth’s Brief at 6. We agree.3

 The unlawful contact with a minor statute provides that a conviction 

shall be graded as either “(1) an offense of the same grade and degree as 

 

3

 The proper grading of [a] convicted offense is an issue of statutory 

interpretation by which we determine the lawfulness of the sentence 

imposed. As it is purely a question of law, our scope of review is plenary, 

and our standard is de novo. Commonwealth v. Reed, 9 A.3d 1138, 1142 

(Pa. 2010). 
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the most serious underlying offense in subsection (a) for which the 

defendant contacted the minor; or (2) a felony of the third degree; 

whichever is greater.” 18 Pa.C.S.A. § 6318(b). As stated above, the jury 

acquitted Bey of all of the Chapter 31 crimes for which he was charged – 

rape by forcible compulsion, rape of an unconscious person, and sexual 

assault. See Verdict Slip, 10/23/13. Pursuant to the corruption of minors 

statute and our Supreme Court’s holding in Commonwealth v. Reed, his 

conviction must therefore be graded as a third-degree felony. 18 Pa.C.S.A. 

§ 6318(b); Reed, 9 A.3d at 1147-48. The maximum sentence for a thirddegree felony is seven years of imprisonment. 18 Pa.C.S.A. § 1103(3). As 

such, his sentence of 9 to 18 years of imprisonment is illegal. See 

Commonwealth v. Spruill, 80 A.3d 453, 461 (Pa. 2013) (“The classic 

instance of an illegal sentence is where the term imposed exceeds the 

statutory maximum[.]”). “An illegal sentence must be vacated.” 

Commonwealth v. Melvin, __ A.3d __, 2014 WL 4100200, *40 (Pa. Super. 

Aug. 21, 2014) (citation omitted). We therefore vacate the judgment of 

sentence and remand the case for resentencing. 

We turn now to Bey’s second issue challenging two evidentiary rulings 

made by the trial court. The trial court asserts that because the sentence 

issued is illegal, “[the evidentiary challenges] need not be addressed until an 

appeal, if any, of the resentence.” Trial Court Opinion, 5/29/14, at 3. Bey 

asserts that this Court should review his second issue at this juncture, as his 
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success on these claims would warrant a new trial, rendering a resentencing 

hearing unnecessary. Bey’s Brief at 31-32. Bey is correct, and thus, in the 

interest of judicial economy, we will review Bey’s second issue.4

We review a trial court’s decision to admit or exclude evidence 

according to the following well-settled standard: 

Admission of evidence is a matter within the sound 

discretion of the trial court, and will not be reversed 

absent a showing that the trial court clearly abused 

its discretion. Not merely an error in judgment, an

abuse of discretion occurs 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 

on record. 

Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014) (citation 

omitted). 

 Bey first argues that the trial court abused its discretion by overruling 

his objection to Detective Hawthorne’s testimony that she believed the 

victim was “mentally delayed.” Bey’s Brief at 41-45; see N.T., 10/23-24/13, 

at 245. Bey asserts that Pennsylvania Rule of Evidence 701, concerning 

opinion testimony by lay witnesses, bars this testimony, as she “not only 

testified about the behaviors that she saw the complainant exhibit, but also 

the medical conclusion that should be drawn from them – i.e., that she was 

‘mentally delayed.’” Bey’s Brief at 41, 44. 

 

4

 Because the trial court’s reasoning for overruling Bey’s objections to the 

complained-of testimony appears in the record, we need not remand for the 

filing of a supplemental trial court opinion. 
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The record reflects that Detective Hawthorne testified to her first 

encounter with the victim, which occurred in the waiting room of the police 

station. She observed the teen curled upon a chair, coloring with crayons in 

a coloring book. N.T., 10/23-24/13, at 243. She stated that this reminded 

her of the behavior of a toddler or a six-year-old child. Id. The victim did 

not make eye contact with the detective when she spoke with her, and only 

when Detective Hawthorne told her she could bring the coloring materials 

with her into the interview room did she comply with the detective’s request 

to accompany her there, grabbing the entire box of crayons and the coloring 

book to bring with her. Id. at 243-44. According to Detective Hawthorne, 

The victim was “delighted” and “thrilled” to be able to bring the coloring 

supplies. Id. at 244. 

Detective Hawthorne indicated that this interaction occurred before 

she knew of the victim’s diagnoses, and testified that although she is not a 

“trained psychologist,” she believed “this child was mentally delayed.” Id.

at 245. Counsel for Bey objected to this statement as “expert testimony,” 

which the trial court overruled, finding that Detective Hawthorne was 

“testifying as to her observations, not as an expert.” Id. Detective 

Hawthorne then continued with her testimony, describing the victim’s 

behaviors and affect during the interview as “child-like.” Id. at 248, 250. 

Rule 701 provides: 
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If a witness is not testifying as an expert, testimony 

in the form of an opinion is limited to one that is: 

(a) rationally based on the witness’s perception; 

(b) helpful to clearly understanding the witness’s 

testimony or to determining a fact in issue; and 

(c) not based on scientific, technical, or other 

specialized knowledge within the scope of Rule 702.

Pa.R.E. 701. 

 We agree with the trial court that this was not expert testimony and 

that Detective Hawthorne was simply testifying to her impression of the 

victim upon seeing her in the waiting room. Detective Hawthorne expressly 

couched her testimony as her lay impression, prefacing her comment by 

stating that she was not a psychologist. The testimony she provided 

thereafter further confirmed the trial court’s finding that Detective 

Hawthorne was testifying to her impression of the victim, as the victim 

continued to behave in a “child-like” manner during the interview. 

As Bey acknowledges, Detective Hawthorne’s testimony that the victim 

appeared to her to be “mentally delayed” is “a lay person’s form of 

expression, not being one that a medical expert would use[.]” Bey’s Brief at 

44. Although Bey goes on to state his belief that the testimony nonetheless 

“state[s] a medical and/or psychological conclusion of mental abnormality 

and mental deficiency,” he fails to recognize the context in which the 

testimony was provided. As stated above, Detective Hawthorne clearly 
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testified in terms of an observation, her perception, rationally based upon 

seeing the 16-year-old victim behave in such a child-like manner in the 

waiting room. Indeed, the victim’s mother testified that the victim is not 

mentally incompetent or mentally challenged in any respect, but that “she 

doesn’t act like an average 16[]year old” and is more child-like. N.T., 

10/23-24/13, at 287-88, 289, 300. 

Detective Hawthorne’s testimony also provided context for the jury to 

explain the detective’s methods of interviewing the witness in a more childfriendly manner than might have been expected for a 16 year old. The 

detective testified that she permitted the victim to bring her coloring 

materials into the interview room, and when the victim did not initially 

respond to Detective Hawthorne’s interview questions, the detective began 

to color along with the victim in an attempt to build a rapport with her, much 

as you would with a young child. See id. at 246-47. 

Detective Hawthorne further testified that in her ample experience 

interviewing children, she has found that they “always have trouble with 

time. When you have a child victim, they can blend events on top of each 

other. That is so common. It is like a day lasts forever.” Id. at 250. Based 

upon her observations of the victim and her difficulty describing the 

timeframe of when the alleged sexual assault occurred, Detective Hawthorne 

testified that in her experience, this was not surprising because of the 

victim’s “child-like [...] mental capacity.” Id. at 249-50. 
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Detective Hawthorne’s testimony of her belief that the victim was 

“mentally delayed” was rationally based on her perception of the victim, 

helpful for the jury to understand Detective Hawthorne’s testimony, and was 

not based on knowledge reserved for an expert. See Pa.R.E. 701. In the 

context in which it was presented, the testimony was not stated as a medical 

diagnosis or conclusion, nor could it be viewed as such from this witness. 

Thus, we find no abuse of discretion in the trial court’s decision to overrule 

Bey’s objection and permit the testimony. 

 The second evidentiary challenge advanced by Bey is based upon 

Detective Hawthorne’s testimony that B.G., during her interview with 

Detective Hawthorne, stated that when Bey was pulled off the victim, he 

said: “Man, I didn’t bust a nut in her. I didn’t bust a nut in her.” Bey’s Brief 

at 45; see N.T., 10/23-24/13, at 254. The trial court overruled his objection 

to this testimony, finding that it was admissible as a prior inconsistent 

statement made by B.G. N.T., 10/23-24/13, at 253-54. Bey asserts that 

this was an abuse of discretion, as B.G. was not asked during her testimony 

about this prior statement or provided with the opportunity to adopt, deny, 

or explain the statement. Bey’s Brief at 45. Rather, when B.G. testified that 

Bey said nothing when he was pulled off the victim, the Commonwealth did 

not confront her with this prior statement, which was not made under oath, 

written and adopted by B.G., or recorded by any means, and thus 

inadmissible through Detective Hawthorne as hearsay. Id. at 45-52. 
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 Pennsylvania Rule of Evidence 802 precludes the admission of 

hearsay, which Rule 801 defines as “a statement that (1) the declarant does 

not make while testifying at the current trial or hearing; and (2) a party 

offers in evidence to prove the truth of the matter asserted in the 

statement.” Pa.R.E. 801, 802. B.G.’s out of court statement to Detective 

Hawthorne that Bey said that he did not “bust a nut,” which the 

Commonwealth sought to introduce for the truth that B.G. previously made 

that statement, is clearly hearsay. 

Although the trial court permitted Detective Hawthorne to testify to 

B.G.’s statement as a prior inconsistent statement made by B.G., we agree 

with Bey that it was inadmissible on that basis. There are two rules of 

evidence that govern the use of prior inconsistent statements in 

Pennsylvania – Rule 803.1(1) and Rule 613(a) and (b). Rule 803.1(1) 

provides: 

The following statements are not excluded by the 

rule against hearsay if the declarant testifies and is 

subject to cross-examination about the prior 

statement: 

(1) Prior Inconsistent Statement of DeclarantWitness. A prior statement by a declarant-witness 

that is inconsistent with the declarant-witness's 

testimony and: 

(A) was given under oath subject to the penalty of 

perjury at a trial, hearing, or other proceeding, or in 

a deposition; 
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(B) is a writing signed and adopted by the declarant; 

or 

(C) is a verbatim contemporaneous electronic, 

audiotaped, or videotaped recording of an oral 

statement. 

Pa.R.E. 803.1(1). The record reflects that B.G. did not make the statement 

to Detective Hawthorne under oath, in a writing adopted by her, or on any 

recording. Thus, this Rule is inapplicable. 

 Rule 613(a) and (b) states, in relevant part: 

(a) Witness’s Prior Inconsistent Statement to 

Impeach. A witness may be examined concerning a 

prior inconsistent statement made by the witness to

impeach the witness's credibility. The statement 

need not be shown or its contents disclosed to the 

witness at that time, but on request the statement or 

contents must be shown or disclosed to an adverse 

party's attorney. 

(b) Extrinsic Evidence of a Witness’s Prior 

Inconsistent Statement. Unless the interests of 

justice otherwise require, extrinsic evidence of a 

witness’s prior inconsistent statement is admissible 

only if, during the examination of the witness, 

(1) the statement, if written, is shown to, or if not 

written, its contents are disclosed to, the witness; 

(2) the witness is given an opportunity to explain or 

deny the making of the statement; and 

(3) an adverse party is given an opportunity to 

question the witness. 

Pa.R.E. 613(a)-(b). The record reflects that when the Commonwealth asked 

B.G. if Bey said anything as he was being pulled off the victim and beaten 
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up, she said “No.” N.T., 10/23-24/13, at 89. B.G. was never confronted 

with her prior statement to Detective Hawthorne that would have 

contradicted this testimony, and thus Rule 613 does not permit the 

admission of the prior inconsistent statement through Detective Hawthorne. 

This does not end our inquiry, however, as we must now determine 

whether this error by the trial court was harmless. Commonwealth v. 

Petroll, 738 A.2d 993, 1005 (Pa. 1999) (stating once it has been 

determined that evidence should have been excluded, it must be determined 

whether the error was harmless). An error will be deemed harmless if: 

(1) the error did not prejudice the defendant or the 

prejudice was de minimis; (2) the erroneously 

admitted evidence was merely cumulative of other 

untainted evidence which was substantially similar to 

the erroneously admitted evidence; or (3) the 

properly admitted and uncontradicted evidence of 

guilt was so overwhelming and the prejudicial effect 

of the error was so insignificant by comparison that 

the error could not have contributed to the verdict. 

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (citation 

omitted). 

 In his brief on appeal, Bey concedes that it is likely the admission of 

this testimony itself “did the defense no harm[] since it admitted no crime.” 

Bey’s Brief at 56. Instead, Bey contends that he was prejudiced because 

“the statement’s meaning was never explained to the jurors, thus leaving 

them free to attach all manner of sinister constructions to it.” Id. The 

record reflects, however, that Bey never raised that concern or complaint 
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below, nor did he attempt to elicit testimony defining or explaining the 

phrase. He objected only to the admission of the statement itself, which 

was not prejudicial and was cumulative of other, properly admitted evidence. 

As Bey agrees, his statement that he did not “bust a nut in [the victim]” 

meant that he did not ejaculate inside of her. Bey’s Brief at 56. In his 

testimony, Bey admitted having sex with the victim and further testified that 

he did not ejaculate inside the victim. N.T., 10/28-29/13, at 12, 30-31. As 

the trial court’s admission of B.G.’s prior inconsistent statement was 

harmless, we conclude that Bey is not entitled to a new trial. 

In summary, the alleged evidentiary errors do not entitle Bey to a new 

trial. Based upon our conclusion that the trial court gave Bey an illegal 

sentence, however, we vacate the judgment of sentence and remand the 

case for resentencing. 

 Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 11/25/2014