Com. v. Blake, C.

• Court: Superior Court of Pennsylvania
• Decided: November 4, 2015
• Docket: 657 WDA 2015
• Status: Unpublished

Opinion

J-S62035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CHRISTOPHER WALTON BLAKE

Appellant No. 657 WDA 2015

Appeal from the Judgment of Sentence January 22, 2015 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0001506-2013

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 4, 2015

Appellant, Christopher Walton Blake, appeals from the judgment of

sentence entered in the Mercer County Court of Common Pleas, following his

jury trial convictions for two counts each of rape of a child, involuntary

deviate sexual intercourse (“IDSI”) with a child, aggravated indecent assault

of a child, unlawful contact with a minor (sexual offenses), unlawful contact

with a minor (obscene and other sexual materials), corruption of minors,

and indecent assault (victim less than 13 years of age).1 We affirm.

The trial court opinion set forth the relevant facts of this case as

follows: ____________________________________________

1 18 Pa.C.S.A. §§ 3121(c); 3123(b); 6318(a)(1); 6318(a)(4); 6301(a)(1); 3126(a)(7), respectively.

_____________________________

*Retired Senior Judge assigned to the Superior Court. J-S62035-15

On September 17, 2014, a jury found [Appellant] guilty of two (2) counts of each of the following: Rape of a Child, [IDSI] with a child, Aggravated Indecent Assault of a child, Unlawful Contract with a Minor—Sexual offenses, Unlawful Contact with a Minor—Obscene and other explicit sexual materials, Corruption of a Minor, and Indecent Assault. The basis of these charges is that from approximately June 2008 to October 2009, [Appellant] performed numerous sexual acts on two minor children who were under his care at the time. These acts included [Appellant] penetrating the child victims’ genitals and anuses (both with his penis and digitally), [Appellant] performing oral sex on the children, [Appellant] forcing the children to perform oral sex on [Appellant], and [Appellant] showing the children sexually explicit materials. The two children were approximately 5 and 6 years old during this period.

Prior to sentencing, this [c]ourt ordered the Sexual Offender’s Assessment Board (“SOAB”) to conduct an assessment to determine if [Appellant] could be sentenced as a Sexually Violent Predator (“SVP”). At the SVP hearing, this [c]ourt found that the Commonwealth met its burden of proving [Appellant] a SVP by clear and convincing evidence. The [c]ourt sentenced [Appellant] to a total of 67 to 134 years of incarceration the same day.[2] The [c]ourt sentenced [Appellant] within the standard range for each offense and ran consecutively the two sentences each of Rape of a Child, [IDSI], and Aggravated Indecent Assault of a child.1 1 The sentences for the remaining offenses were also within the standard guidelines and ran concurrently to the other sentences imposed.

Before and during trial, this [c]ourt denied several of [Appellant’s] motions that formed the basis of his Post- Sentence Motion. …

* * * ____________________________________________

2 The record makes clear the court did not impose any mandatory minimum sentences for any of Appellant’s convictions.

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[A]t the initiation of trial, the [c]ourt overruled [Appellant’s] objection to permitting the Commonwealth to provide evidence of [Appellant’s] 2011 Theft by Unlawful Taking conviction should [Appellant] testify at trial. The [c]ourt overruled the objection because it found that the conviction was per se admissible under Pa.R.E. 609(a) because it was crimen falsi and was less than 10 years old. Further, the [c]ourt took care to instruct the jury in this case to consider the conviction solely for impeachment purposes.

Finally, during the trial, this [c]ourt permitted the Commonwealth to introduce expert testimony from Kimberly Duffy, a Program Development Specialist within the Department of Social Work at the University of Pittsburgh.3 After a brief hearing regarding Ms. Duffy’s qualifications, training, education, and experience, the [c]ourt found that she was an expert with respect to behavioral response patterns of child victims in sexual assault cases. In so finding, the [c]ourt ruled that this testimony involved an area that would be beyond the normal understanding of the general public, especially because the General Assembly has specifically permitted this type of expert testimony. The [c]ourt also found that a Frye[3] hearing was not necessary in this case because the General Assembly has said that this type of testimony is proper and because the testimony given is not “novel” science. Finally, in an abundance of caution, the [c]ourt did hold a brief Frye hearing and determined that the methodology used by Ms. Duffy is generally accepted by practitioners in the relevant field. 3 Ms. Duffy also testified that she has over 17 years of experience in the Child Welfare System, including working with the Adams County and York County Children’s Advocacy Centers.

Ms. Duffy was not provided any background information on the case, and she was instructed to testify only as to her ____________________________________________

3 Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).

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general experience with child responses (including reasons why children may delay in reporting) in sexual assault cases. Counsel for [Appellant] took part in the questioning of Ms. Duffy’s credentials.

(Trial Court Opinion, filed June 10, 2015, at 2-5).

Procedurally, on January 22, 2015, the court deemed Appellant a SVP

and sentenced him to an aggregate term of sixty-seven (67) to one hundred

and thirty-four (134) years’ imprisonment. Appellant timely filed a post-

sentence motion on January 30, 2015.4 On March 31, 2015, the court

denied relief. Appellant timely filed a notice of appeal on April 23, 2015. On

April 27, 2015, the court ordered Appellant to file a concise statement of

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

Appellant timely filed on May 8, 2015.

Appellant raises three issues for our review:

SHOULD…THE COURT HAVE ADMITTED A 2011 THEFT CONVICTION AS CRIMEN FALSI IMPEACHMENT EVIDENCE AGAINST [APPELLANT?]

DID THE TRIAL COURT ERR IN PERMITTING THE COMMONWEALTH TO USE KIMBERLY DUFFY AS AN EXPERT WITNESS?

WAS THE SENTENCE OF 67-134 YEARS IMPOSED UPON [APPELLANT] MANIFESTLY UNFAIR AND EXCESSIVE?

(Appellant’s Brief at 10).

After a thorough review of the record, the briefs of the parties, the ____________________________________________

4 Appellant filed a supplemental post-sentence motion on March 10, 2015, without leave of court.

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applicable law, and the well-reasoned opinion of the Honorable Robert G.

Yeatts, we conclude Appellant’s first issue merits no relief. The trial court’s

opinion comprehensively discusses and properly disposes of this question.

(See Trial Court Opinion at 11-13) (finding: Appellant’s prior theft conviction

is less than ten years old;5 crimen falsi convictions which are less than 10

years old are per se admissible; court was not required to perform balancing

test in considering admission of conviction; cases on which Appellant relies

are not dispositive, as neither case represents current law regarding

introduction of crimen falsi convictions which are less than ten years old;

additionally, court instructed jury to consider 2011 conviction for

impeachment purposes only; Appellant did not object to court’s instructions

and does not argue instructions were improper; no relief is due). Therefore,

with respect to Appellant’s first issue on appeal, we affirm on the basis of

the trial court’s opinion.

Regarding Appellant’s second issue on appeal, we initially observe:

“[W]here an appellate brief fails to provide any discussion of a claim with

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

____________________________________________

5 Appellant’s 2011 theft conviction constitutes a crimen falsi crime. See Commonwealth v. Cascardo, 981 A.2d 245 (Pa.Super. 2009), appeal denied, 608 Pa. 652, 12 A.3d 750 (2010) (stating term crimen falsi involves element of falsehood and includes everything which has tendency to injure administration of justice by introduction of falsehood and fraud; discussing theft by unlawful taking as crime of dishonesty, constituting crimen falsi offense).

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meaningful fashion capable of review, that claim is waived.”

Commonwealth v. Johnson, 604 Pa. 176, 191, 985 A.2d 915, 924 (2009),

cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010). See

also Pa.R.A.P. 2119(a) (stating argument shall be divided into as many

parts as there are questions to be argued, followed by such discussion and

citation of authorities as are deemed pertinent).

Instantly, Appellant’s entire argument as to his second issue on appeal

is as follows: “The [c]ourt permitted Ms. Duffy to testify as an expert witness

over defense counsel’s objection, reasoning that her qualifications were

piggybacked by 42 Pa.C.S. § 5920. Appellant wishes to preserve this issue

pending the Supreme Court’s decision in Commonwealth v. Olivo, 106

[Berks] 429 (August 27, 2013).” (Appellant’s Brief at 15). Appellant’s

severely undeveloped claim purporting merely to preserve his issue for later

review constitutes waiver of his claim (or abandonment of it) for purposes of

this appeal. See Johnson, supra.

Moreover, the court permitted Ms. Duffy’s testimony pursuant to 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).

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(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 dynamic of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.

(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 (internal footnote omitted). See also Commonwealth

v. Carter, 111 A.3d 1221 (Pa.Super. 2015) (holding expert’s testimony was

“clearly admissible” under Section 5920, where expert testified it is common

for child sexual abuse victims to delay reporting and explained some reasons

why child sexual abuse victims might delay in reporting; expert did not

testify regarding specific victim in case, render opinion on whether alleged

sexual incidents actually occurred, or offer opinion regarding specific victim’s

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credibility). Additionally, “Section 5920 is really a rule regarding the

admissibility of evidence, not a procedural rule. Furthermore, it is not in

direct conflict with any existing rule of the Pennsylvania Supreme Court.”

Id. at 1224. Thus, Section 5920 does not violate the separation of powers

doctrine. Id.

Instantly, after a thorough review of the record, the briefs of the

parties, the applicable law, and the well-reasoned trial court opinion, we

conclude that even if Appellant had developed his second issue on appeal, it

would still be waived for failure to preserve it before the trial court, and in

any event, would merit no relief. The trial court’s opinion comprehensively

discusses and properly disposes of this question. (See Trial Court Opinion at

13-17) (finding: Section 5920 specifically governs scope of expert testimony

permitted in sex abuse cases; Ms. Duffy testified only generally about her

experience with children’s responses in sexual assault cases; Ms. Duffy was

not privy to facts of this particular case, and she did not testify regarding

either specific victim in this case; Ms. Duffy’s testimony regarding general

child victim responses and behavior following sexual assault was admissible

under Section 5920; Appellant’s claim implicating Olivo (Berks County Court

of Common Pleas case holding Section 5920 is unconstitutional because it

violates separation of powers doctrine and rulemaking authority of

Pennsylvania Supreme Court) is waived because Appellant raised this claim

for first time in post-sentence motion and failed to cite to Olivo during or

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before trial; moreover, Olivo relied on pre-Section 5920 case law; Olivo is

currently pending before Pennsylvania Supreme Court; in Carter, this Court

expressly held expert testimony is permissible under Section 5920, and

Section 5920 does not violate separation of powers doctrine). Therefore,

Appellant’s second issue is waived (or abandoned) as undeveloped on

appeal; moreover, even if Appellant had developed this claim, we would

affirm based on the trial court’s opinion.

In his third issue, Appellant argues the court ignored his rehabilitative

needs in fashioning its sentence. Appellant asserts the court also failed to

consider that Appellant was twenty-six years old at the time of sentencing,

suffers from mental illness, was sexually and physically abused as a child,

and sought mental health treatment as a juvenile. Appellant claims there

was no evidence at trial of physical damage or injury to either child victim.

Appellant contends the child victims are leading normal lives in school, riding

the bus, and performing adequately in school. Appellant insists the court’s

sentence of sixty-seven (67) to one hundred and thirty-four (134) years’

imprisonment amounts to a virtual life sentence. Appellant acknowledges

that the court imposed standard range sentences, but he claims the

cumulative effect of the sentences renders application of the guidelines

clearly unreasonable. Appellant emphasizes the court imposed a sentence

even harsher than the Commonwealth’s recommendation. Appellant

submits his aggregate sentence is essentially equivalent to a sentence for

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first-degree murder. Appellant suggests courts should reserve imposing life

sentences for only the most heinous and brutal crimes for depraved

offenders who have repeatedly committed crimes. Appellant posits the

registration requirements he faces as a SVP are essentially meaningless

given his virtual life sentence. Appellant concludes the trial court imposed a

manifestly excessive and clearly unreasonable sentence, and this Court must

vacate and remand for resentencing. As presented, Appellant’s claims

challenge the discretionary aspects of sentencing. Commonwealth v.

Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is

manifestly excessive challenges discretionary aspects of sentencing);

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining

complaint that court ignored defendant’s rehabilitative needs upon

sentencing implicates court’s sentencing discretion).

A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979

(2001). Prior to reaching the merits of a discretionary sentencing issue:

[W]e conduct a four-part 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).

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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

What constitutes a substantial question must be evaluated on a case-

by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa.Super.

2007). A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.”

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal

citation omitted).

Generally, “[a]n allegation that a sentencing court failed to consider or

did not adequately consider certain factors does not raise a substantial

question that the sentence was inappropriate.” Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653,

676 A.2d 1195 (1996) (internal citation and quotation marks omitted). See

also Berry, supra (explaining allegation that sentencing court failed to

consider specific mitigating factor generally does not raise substantial

question; claim that sentencing court ignored appellant’s rehabilitative needs

failed to raise substantial question).

A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Commonwealth v. Mouzon, 571

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Pa. 419, 430, 812 A.2d 617, 624 (2002). Bald allegations of excessiveness,

however, do not raise a substantial question to warrant appellate review.

Id. at 435, 812 A.2d at 627. Rather, a substantial question will be found

“only where the appellant’s Rule 2119(f) statement sufficiently articulates

the manner in which the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process….” Id.

“Generally, Pennsylvania law affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011). See Commonwealth v. Hoag, [665 A.2d 1212, 1214 (Pa.Super. 1995)] (stating an appellant is not entitled to a “volume discount” for his crimes by having all sentences run concurrently). In fact, this Court has recognized “the imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super. 2012) (en banc)[, appeal denied, 621 Pa. 677, 75 A.3d 1281 (2013)]. That is “in our view, the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in this case.” Prisk[, supra at 533].

Commonwealth v. Austin, 66 A.3d 798, 809 (Pa.Super. 2013), appeal

denied, 621 Pa. 692, 77 A.3d 1258 (2013) (some internal citations and

quotation marks omitted) (holding appellant’s challenge to aggregate

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sentence of 35-70 years’ imprisonment for appellant’s 96 offenses of sexual

abuse of children did not raise substantial question; appellant’s convictions

stemmed from appellant’s possession of 96 images of child pornography,

which depicted numerous different children, majority of whom were engaged

in sex acts with adult men and women; appellant was also depicted in some

images having sex with child; trial court did not impose consecutive

sentences for every count; court imposed concurrent sentences for 49 of 96

counts; trial court’s exercise of discretion in this case did not result in

sentence that is grossly disparate to appellant’s conduct or patently

unreasonable).6 But see Commonwealth v. Dodge, 957 A.2d 1198

(Pa.Super. 2008), appeal denied, 602 Pa. 662, 980 A.2d 605 (2009)

(holding consecutive, standard range sentences on thirty-seven counts of

theft-related offenses for aggregate sentence of 58½ to 124 years’

imprisonment constituted virtual life sentence and was so manifestly

excessive as to raise substantial question).

On appeal, this Court will not disturb the judgment of the sentencing

court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d ____________________________________________

6 An earlier panel of this Court in Austin vacated and remanded for resentencing following the appellant’s original sentence of 72-192 years’ imprisonment, where the trial court had initially imposed consecutive periods of incarceration at the top end of the standard range for each of the appellant’s 96 counts of possession of child pornography. Given the appellant’s age of twenty-five (25) at sentencing, the prior panel of this Court concluded the sentence amounted to a virtual life sentence under the facts and circumstances of the case. See id. at 801.

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843 (Pa.Super. 2006).

[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. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007)

(internal quotation marks and citations omitted). “Where the sentencing

court imposes a sentence within the guideline range, we must review to

determine whether the trial court’s sentence is ‘clearly unreasonable.’”

Dodge, supra at 1200 (citing 42 Pa.C.S.A. § 9781(c)(2)).

Instantly, Appellant did not raise in his Rule 1925(b) statement his

complaints that the court ignored his rehabilitative needs or failed to

consider specific mitigating factors, so those claims are waived. See

Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (holding

issues not raised in Rule 1925(b) statement are waived on appeal).

Appellant’s excessiveness claim that the court imposed a virtual life

sentence appears on the surface to raise a substantial question.

Nevertheless, we also recognize that the jury found Appellant guilty of

fourteen (14) counts of sexual abuse against two young children, spanning a

period of fifteen (15) months while Appellant was engaged in a relationship

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with the victims’ mother and acted in a parental role. Significantly, the court

imposed standard range sentences for each conviction and did not impose

consecutive sentences for every count. At the same time, Appellant was not

entitled to a “volume discount” for his multiple offenses. See Austin,

supra; Hoag, supra.

Additionally, the court set forth on the record, at great length, its

reasons for the sentence imposed. (See N.T. Sentencing Hearing, 1/22/15,

at 101-114; 121-22; R.R. at 381a-394a; 401a-402a) The court stated it

considered Appellant’s pre-sentence investigation (“PSI”) report, which

detailed Appellant’s background, prior abuse as a child, mental health

issues, and treatment history. See Commonwealth v. Fowler, 893 A.2d

758 (Pa.Super. 2006) (stating where sentencing court had benefit of PSI

report, we can presume it was aware of relevant information regarding

defendant’s character and weighed those considerations along with

mitigating statutory factors). The court also reviewed an inmate adjustment

summary rating Appellant’s treatment while incarcerated. Further, the court

considered the impact of Appellant’s crimes on the victims, victim impact

statements, letters from Appellant’s family and friends, and Appellant’s

rehabilitative needs. As well, the court specifically weighed the factors

delineated in 42 Pa.C.S.A. § 9721(b) (setting forth general sentencing

standards). The court further considered Appellant’s testimony at trial,

denying his guilt, and his general lack of remorse for his crimes. The court

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noted it found the victims’ testimony at trial credible and commented on the

fifteen-month span in which Appellant had abused the child victims. After

imposing sentence, the court stated:

Now, [Appellant], when one hears these numbers of years, and that’s all one hears, [he] may say that’s a long, long sentence. But, [Appellant], I want you, your family, your friends, and I want the victims and our community to understand that while the sentence is chronologically long, when you consider each act which you perpetrated on these very young children, when you look at the different interests and protections of the victims, when you look at each social wrong that needs to be addressed by each criminal act you committed, when you look at the horror, harm, and trauma you caused that each of these crimes address, and when you look at them separately, and when you factor in the ages of the victim[s], the fact that you were in a position of a parental figure who’s responsible to look after and protect these young children, when you assaulted them—sexually assaulted them instead, that when you threatened them, that there was great victim impact; that after six years of placement and treatment, you never once sought help or counseling to address your sexual issues, but rather continued to pray upon and sexually assault these young children. When you put all this together, it’s clear that this is an appropriate sentence to address what occurred and to protect society.

(N.T., 1/22/15, at 121-22; R.R. at 401a-402a). We accept the court’s

analysis and decline to deem the aggregate sentence imposed “clearly

unreasonable” in light of the violent nature of the criminal conduct at issue.

See Prisk, supra (holding appellant’s challenge to discretionary aspects of

sentence warranted no relief where court sentenced appellant to aggregate

term of 633-1,500 years’ imprisonment for 314 acts of sexual abuse of his

stepdaughter on almost daily basis over course of six years; court did not

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impose consecutive sentences for every count, and appellant was not

entitled to volume discount for his offenses; appellant’s aggregate sentence

was not excessive in light of violent criminal conduct at issue). Therefore,

Appellant’s challenge to the discretionary aspects of his sentence merits no

relief. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/4/2015

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IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANI CRIMINAL

COMMONWEALTH OF PENNSYLVANIA, No. 1506 Criminal 2013 v.

CHRJSTOPHER WALTON BLAKE, Defendant.

1925 OPINION

Defendant Christopher Walton Blake has appealed to the Superior Court of

Pennsylvania this Court's March 31, 2015 Order denying Defendant's Post-Sentence

Motion. Defendant has raised five (5) issues in Defendant's Statement of Errors

Complained of on Appeal:

1. The Honorable Court erred in not granting Defendant's pre-trial Motion to Dismiss all charges in the criminal information after trial commenced more than 3 65 days after the criminal complaint was filed, in violation of Pa. R. Crim. P. 600(A)(2)(a). 2. The Honorable Court erred in permitting the Commonwealth to amend the criminal information on the eve of trial to add Rape and IDSI charges. 3. The Honorable Court erred in ruling that the Commonwealth would be permitted to offer Defendant's criminal conviction of March 30, 2011, Theft by Unlawful Taking, as a crime of falsity to Circulated 10/13/2015 11:03 AM

impeach Defendant's credibility if Defendant chooses to testify at trial. 4. The Honorable Court erred in permitting the Commonwealth to introduce the testimony of Kimberly Duffy as an expert to testify regarding the response patterns of child victims in sexual assault cases. 5. The sentence imposed by the Honorable Court is manifestly unfair and excessive.

(Defendant's Statement of Errors Complained of on Appeal, 11 1 - 5).

Background

On September 17, 2014, a jury found Defendant guilty of two (2) counts of each

of the following: Rape of a Child, Involuntary Deviate Sexual Intercourse with a child,

Aggravated Indecent Assault of a child, Unlawful Contact with a Minor - Sexual

offenses, Unlawful Contact with a Minor - Obscene and other explicit sexual materials,

Corruption of a Minor, and Indecent Assault. The basis of these charges is that from

approximately June 2008 to October 2009, Defendant performed numerous sexual acts on

two minor children who were under his care at the time. These acts included the

Defendant penetrating the child victims' genitals and anuses (both with his penis and

digitally), the Defendant performing oral sex on the children, the Defendant forcing the

children to perform oral sex on the Defendant, and the Defendant showing the children

sexually explicit materials. The two children were approximately 5 and 6 years old during

this period.

Prior to sentencing, this Court ordered the Sexual Offender's Assessment Board

("SOAB") to conduct an assessment to determine if the Defendant could be sentenced as

a Sexually Violent Predator ("SVP"). At the SVP hearing, this Court found that the

Commonwealth met its burden of proving the Defendant a SVP by clear and convincing

2 Circulated 10/13/2015 11:03 AM

evidence. The Court sentenced the Defendant to a total of 67 to 134 years of incarceration

the same day. The Court sentenced the Defendant within the standard range for each

offense and ran consecutively the two sentences each of Rape of a Child, Involuntary

Deviate Sexual Intercourse, and Aggravated Indecent Assault of a child. 1

Before and during trial, this Court denied several of Defendant's motions that

formed the basis of his Post-Sentence Motion. The first was a motion to dismiss all

charges, arguing that the Commonwealth violated Pa.R.Crim.P. 600 by failing to initiate

Defendant's trial within 365 days of the criminal complaint being filed. In this case, the

Commonwealth filed the criminal complaint on August 08, 2013, and trial began on

September 15, 2014, or some 403 days later. However, during a hearing on September

12, 2014, the Honorable Judge St. John found that there was a 47-day period (from

August 29, 2013 to October 15, 2013) excludable from the time limit, meaning the trial

began 356 days from the filing of the criminal complaint as calculated under Rule 600.

The testimony from that hearing established that Defendant, through his counsel at the

time, consented to the continuance on August 29, 2013. Further, Defendant's counsel

waived Rule 600 at that time. Accordingly, Judge St. John entered an Order denying

Defendant's Motion to Dismiss all of the charges.

Next, on September 12, 2014 (the eve of trial), this Court overruled Defendant's

objection to the Commonwealth amending its criminal information by adding two (2)

counts each of Rape of a Child and Involuntary Deviate Sexual Intercourse. The

information was originally filed on December 16, 2013, and contained six (6) counts of

Aggravated Indecent Assault and two (2) counts of Aggravated Indecent Assault of a

I The sentences for the remaining offenses were also within the standard guidelines and ran concurrently to the other sentences imposed.

3 Circulated 10/13/2015 11:03 AM

child.2 In the Aggravated Indecent Assault charges listed in the original information, the

Commonwealth averred facts that the Defendant placed his penis in the mouth and/or

anus of each child, that he penetrated the genitals or anus of each child, and that this was

not done for good faith medical, hygienic, or law enforcement purposes. This Court

found that the new charges added to the information arose from the same set of events

already plead in the information, and that the Defendant was effectively on notice of the

Rape of a child and IDSI charges that could be brought against him. Further, the

Defendant received ample time to discuss the amendment with counsel and Defendant

informed the Court that he was ready to proceed with the trial, without need of a

continuance. Therefore, this Court permitted the Commonwealth leave to amend the

information.

Next, at the initiation of trial, the Court overruled Defendant's objection to

permitting the Commonwealth to provide evidence of Defendant's 2011 Theft by

Unlawful Taking conviction should Defendant testify at trial. The Court overruled the

objection because it found that the conviction was per se admissible under Pa.R.E. 609(a)

because it was crimen falsi and was less than 10 years old. Further, the Court took care to

instruct the jury in this case to consider the conviction solely for impeachment purposes.

Finally, during the trial, this Court permitted the Commonwealth to introduce

expert testimony from Kimberly Duffy, a Program Development Specialist within the

Department of Social Work at the University of Pittsburgh.3 After a brief hearing

regarding Ms. Duffy's qualifications, training, education, and experience, the Court

2 Two of the counts of Aggravated Indecent Assault were in violation of I 8 Pa.C.S. § 3125(a)(]), two were in violation of 18 Pa.C.S. § 3125(a)(7), and two were in violation of I 8 Pa.C.S. § 3125(a)(8}. 3 Ms. Duffy also testified that she has over 17 years of experience in the Child Welfare System, including working with the Adams County and York County Children's Advocacy Centers.

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found that she was an expert with respect to behavioral response patterns of child victims

in sexual assault cases. In so finding, the Court ruled that this testimony involved an area

that would be beyond the normal understanding of the general public, especially because

the General Assembly has specifically permitted this type of expert testimony. The Court

also found that a Frye hearing was not necessary in this case because the General

Assembly has said that this type of testimony is proper and because the testimony given

is not "novel" science. Finally, in an abundance of caution, the Court did hold a brief

Frye hearing and determined that the methodology used by Ms. Duffy is generally

accepted by practitioners in the relevant field.

Ms. Duffy was not provided any background information on the case, and she was

instructed to testify only as to her general experience with child responses (including

reasons why children may delay in reporting) in sexual assault cases. Counsel for the

Defendant took part in the questioning of Ms. Duffy's credentials.

Discussion

Defendant Christopher Blake raises five points of error in his Statement of Errors

Complained of on Appeal. For the reasons discussed below, the Superior Court should

reject Defendant's arguments and affirm this Court's Order denying Defendant Post-

Sentence Motion.

A. There was no violation of Pa.R.Crim.P. 600(A)(2)(a)

Defendant's first issue raised claims that the Court erred in not dismissing all charges

against the Defendant because the Defendant was brought to trial more than 365 days

after the filing of the criminal complaint, in violation of Pa.R.Crim.P. 600(A)(2)(a). In his

Order denying Defendant's motion to dismiss, the Honorable Judge St. John determined

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that the period from August 29, 2013 to October 15, 2013 (the date of the preliminary

hearing in this matter) constituted 47 days that are excludable under Pa.R.Crim.P.

600(C)(l) from the 365-day limit. The Defendant argues that at least twelve (12) days of

the 47-day period is attributable to the Commonwealth's lack of due diligence, and

therefore should not be excludable under the rule. Defendant argues that if these twelve

(12) days are in fact attributable to the Commonwealth, then the Commonwealth has

violated Rule 600.

Judge St. John entered his Order regarding the Rule 600 motion after a hearing.

The testimony from that hearing established that Defendant, through his counsel at the

time, consented to a continuance on August 29, 2013. Further, Defendant's counsel

waived Rule 600 at that time. This continuance cannot be held against the

Commonwealth. However, Defendant reasserts his argument that there are stretches of

time within the 4 7-day period that are either court delay or delay caused by the lack of

due diligence by the Commonwealth. Examples cited include the Commonwealth's lack

of due diligence in not acting to reschedule the Preliminary Hearing and its lack of due

diligence by delaying in the filing of its motion under 42 Pa.C.S.A. § 5981, et seq.

Defendant does not argue exactly how any of these periods involved the

Commonwealth's lack of due diligence; Defendant merely asserts that they are so. These

same arguments were heard and rejected by the Judge St. John during the Rule 600

hearing. This Court agrees with Judge St. John that any time of the 47-day period should

not be excluded for purposes of Rule 600.

Therefore, Defendant is not entitled to relief on this claim.

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B. It was not improper to permit the Commonwealth to amend the criminal information to add Rape of a Child and IDSI charges

Defendant next argues that the Court erred in allowing the Commonwealth to amend the

criminal information on September 12, 2014, the eve of trial. Specifically, Defendant

argues that he was prejudiced by the addition of the two Rape and IDSI charges, which

would drastically increase Defendant's minimum and maximum sentences, if convicted.

Further, Defendant argues that he was not on notice of the added Rape and IDSI charges

and that these contained new elements for which a defense was not prepared.

Concerning amendment of the criminal information, the Superior Court has

stated:

Rule of Criminal Procedure 564 governs the amendment of a criminal information. The purpose of this rule is to "ensure that a defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed." When a challenge is raised to an amended information, the salient inquiry is [ w ]hether the crimes specified in the original ... information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended ... information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.

Com. v. Samuel, 102 A.3d 1001, 1008-09 (Pa. Super. 2014) (internal citations omitted).

Further, "relief is warranted only when the amendment to the information prejudices a

defendant." Com. v. Page, 965 A.2d 1212, 1224 (Pa. Super. 2009). Factors to be

considered when determining whether Appellant was prejudiced by the Commonwealth's

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amendment include "whether the amendment changes the factual scenario; whether new

facts, previously unknown to appellant, were added; whether the description of the

charges changed; whether the amendment necessitated a change in defense strategy; and

whether the timing of the request for the amendment allowed for ample notice and

preparation by appellant." Id.

The original information in this case contained six (6) counts of Aggravated

Indecent Assault and two (2) counts of Aggravated Indecent Assault of a child. In the

Aggravated Indecent Assault charges listed in the original information, the

Commonwealth averred facts that the Defendant placed his penis in the mouth and/or

anus of each child, that he penetrated the genitals or anus of each child, and that this was

not done for good faith medical, hygienic, or law enforcement purposes. To prove Rape

of a Child, 18 Pa.C.S. § 3121 ( c ), the Commonwealth must prove that Defendant

"engage] d] in sexual intercourse with a complainant who is less than 13 years of age." To

prove IDSI, 18 Pa.C.S. § 3123(b), the Commonwealth must prove that Defendant

"engage[ d] in deviate sexual intercourse with a complainant who is less than 13 years of

age." "Deviate sexual intercourse" is defined as sexual intercourse "per os or per anus

between human beings and any form of sexual intercourse with an animal. The term also

includes penetration, however slight, of the genitals or anus of another person with a

foreign object for any purpose other than good faith medical, hygienic or law

enforcement procedures." 18 Pa.C.S. § 3103.

Here, Defendant was clearly put on notice by the original information of the

factual situation and potential Rape and IDSI charges that could be brought against him.

Both Rape of a Child and the IDSI charges require intercourse with victims who are

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under 13 years of age, and IDSI is also met when there is intercourse per anus. As stated

above, the Commonwealth alleged all of these facts in the Aggravated Indecent Assault

charges within the original information. Therefore, the Commonwealth pled all of the

facts sufficient to implement Rape of a Child and IDSI charges.

Further, Defendant's defense was not nullified or affected by the amendment of

the charges. Defendant's defense at trial was to deny completely any inappropriate

contact with the victims, and to discredit the testimony of the victims through any

inconsistencies. This defense did not become any less effective with the addition of the

Rape of a Child and IDSI charges. The defense was in no way tailored towards

distinguishing Aggravated Indecent Assault versus Rape of a Child or IDSI; this defense

would not have been effective because of the facts pled by the Commonwealth in the

original information.

Similarly, Defendant was not prejudiced by the timing of the amending of the

information. Even though the information was amended immediately prior to trial, this

Court gave Defendant ample time to speak with his counsel regarding the new charges

and potential sentence. Additionally, the Court informed Defendant, through his counsel,

that the Court would do its best to accommodate Defendant if he needed additional time

to discuss defense strategies. Defendant never moved for a continuance, and after

speaking with his counsel for approximately one-half hour, informed the Court that he

was ready to proceed with trial.

In his memorandum of law supporting his Post-Sentence Motion, Defendant cited

several cases where the appellate courts found that amendment of charges was improper;

however, these cases are distinguishable. In Com. v. Brown, 727 A.2d 541, 545 (Pa.

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1999), the Pennsylvania Supreme Court held that it was error for the trial court to allow

the Commonwealth to amend the criminal information immediately prior to

commencement of trial to include charges of Rape and IDSI with an unconscious person,

when original information only included charges of Rape and IDSI by forcible

compulsion. Considering then Pa.R.Crim.P. 229 (now Pa.R.Crim.P. 564), the Supreme

Court determined that the amendment prejudiced the defendant primarily because it

rendered null the primary defense prepared against the original charges. Id. at 544. As

discussed above, that did not happen in this case.

In Com. v. Gray, 4 78 A.2d 822, 825 (Pa. Super. 1984 ), the Superior Court held

that the trial court improperly permitted the information, charging defendant with

criminal trespass, to be amended at the close of Commonwealth's case. The Court ruled

so because the defendant lacked notice of prosecutor's intent to prosecute him for forcible

entry rather than surreptitious or deceptive entry, and the amendment raised the grade of

the crime from third to second-degree felony, subjecting the defendant to a more severe

penalty. Id. In so ruling, the Superior Court emphasized the timeliness of the amendment

(distinguishing it from cases where information was amended at beginning of trial) and

the fact that the elements materially changed. Id.

Again, Gray is distinguishable from this case because the Commonwealth's

motion to amend the information was made before trial began, and further, the original

information already pied all of the facts sufficient to bring charges of Rape of a Child and

IDSI against the Defendant.

Although the new charges here did threaten the Defendant with a longer sentence,

Defendant was not prejudiced by the amendment because he was put on notice of the

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factual situation pled against him and his available defenses were not diminished or

affected. The Superior Court has never held that threat of a longer sentence, by itself:

amounts to prejudice to the defendant for purposes of amendment to the information. On

the contrary, the Superior Court has emphasized that prejudice to the defendant requires

factors such as an amendment that would change or nullify a defense, an amendment that

affords the defendant no time to prepare a new defense, and whether new facts were

plead in the amendment. See Com. v. Page, 965 A.2d 1212, 1224 (Pa. Super. 2009).

None of these factors applicable here.

Therefore, Defendant is not entitled to relief upon this claim.

C. This Court did not err in permitting testimony of Defendant's crimen falsi theft conviction

Defendant next argues that this Court erred in granting the Commonwealth permission to

introduce evidence of Defendant's 2011 Theft by Unlawful Taking conviction to impeach

his credibility, should he testify at trial. Specifically, Defendant argues that the Court

admitted the crimen falsi conviction merely because Pa.R.E. 609(a) authorizes its

admission without any reasoned determination or balancing, as required by Pa.R.E. 403.

In his Post-Sentence Motion, Defendant also cited two cases" standing for the proposition

that there is no per se rule of admissibility of a defendant's prior crimen falsi conviction.

Finally, Defendant argues that the Commonwealth offered no reason or justification for

offering the conviction other than the fact that the conviction was for crimen falsi and

was less than 10 years old.

4These cases are Com. v. Bighum, 307 A.2d 255 (Pa. 1973) and Com. v. Roots, 393 A.2d 364 (Pa. 1978), which are briefly addressed below.

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The admissibility of evidence is within the sound discretion of the trial court, and

will not be reversed absent an abuse of discretion. Com. v. Hoover, 107 A.3d 723, 729

(Pa. 2014). Abuse of discretion is not found merely when an appellate court might have

reached a different conclusion; instead, abuse of discretion requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to

be clearly erroneous. Id. In relevant part, Pa.RE. 609 states "(a) In General. For the

purpose of attacking the credibility of any witness, evidence that the witness has been

convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be

admitted if it involved dishonesty or false statement." Finally, the Superior Court has

stated "[ w ]here the date of conviction or last date of confinement is within ten years of

the trial, evidence of the conviction of a crimen falsi is per se admissible." Com. v.

Trippet, 932 A.2d 188, 199 (Pa. Super. 2007). The Trippet Court held that, regarding a

crimen falsi conviction that is less than ten years old, the Court need not discuss potential

prejudice to the defendant before admitting it. Id. at 200.

Here, there is no dispute that Defendant's prior conviction of Theft by Unlawful

Taking is less than 10 years old. As per Trippet and Rule 609, Defendant's conviction

was per se admissible. The Court was not required to perform any balancing test in

considering the admission of the conviction. Defendant's reliance upon both Bighum and

Roots is misplaced, as neither case represents the current law regarding the introduction

of crimen falsi convictions that are less than IO years old in the Commonwealth. While

Defendant correctly states that convictions for crimen falsi are not to be automatically

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admitted if the conviction is more than 10 years old,5 the same is not true for convictions

that are less than 10 years old.

Additionally, the Court here made sure to instruct the jury to properly consider the

conviction for impeachment purposes only. Defendant never objected to these

instructions, and he does not argue that they were in any way improper. Therefore,

Defendant is not entitled to relief upon this claim.

D. The Commonwealth was permitted to use Kimberly Duffy as an expert witness

Defendant next argues that the Court erred in permitting Kimberly Duffy to testify as an

expert regarding typical behavior patterns of children in sexual assault cases. Defendant

argues that this is impermissible because it infringes on the Defendant's right to have the

credibility of witnesses determined by the jury without expert testimony influence.

Defendant also relies on Com. v. Olivo, 106 Berks 429 (Aug. 27, 2013), to argue that 42

Pa.C.S. § 5920, which permits such expert testimony, is unconstitutional as a violation of

the separation of powers. Finally, Defendant argues that the testimony was inadmissible

because the Commonwealth did not establish that Ms. Duffy's methodology was

generally accepted in the relevant scientific fields of behavioral science, as required by

Frye.

The testimony given by Ms. Duffy is governed by 42 Pa.C.S. § 5920, which

states:

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

5 "If more than ten years have elapsed, the evidence may be used only after written notice and the trial judge's determination that its probative value substantially outweighs its prejudicial effect." Pa.R.E. 609, Comment; see also Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326, 1328-29 (1987). Randall ultimately adopted the balancing approach that Defendant relies upon for crimen falsi convictions that are more than 10 years old. As stated above, the Randall balancing factors do not apply to crimen falsi convictions that are less than 10 years old. Com. v. Trippet, 932 A.2d 188, 199-200 (Pa. Super. 2007).

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(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. (2) Ifqualified as an expert, the witness may testify tofacts 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.

(Emphasis added). This statute explicitly gives the Commonwealth the right to introduce

expert testimony regarding victim response and behaviors after sexual assault.

Regarding Defendant's Frye argument, a hearing is necessary when "a trial judge

has articulable grounds to believe that an expert has not applied accepted scientific

methodology in a conventional fashion in reaching his or her conclusions." Betz v.

Pneumo Abex, LLC, 44 A.3d 27, 53 (Pa. 2012). Further, this Court notes that scientific or

technical evidence that has been approved by statute is not subject to the "general

acceptance" test. See Com. v. Dengler, 890 A.2d 372, 383 (Pa. 2005) (holding that expert

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testimony regarding Sexually Violent Predator status does not require a Frye hearing

because the factors to be considered have been specifically enumerated by the General

Assembly). In enacting 42 Pa.C.S. § 5920, the Pennsylvania General Assembly

specifically authorized the use of expert testimony regarding victim responses in sexual

assault cases. Therefore, this Court was not required to hold a Frye hearing regarding Ms.

Duffy's testimony.6

Defendant next relies on the Com. v. Olivo, 106 Berks 429 (Aug. 27, 2013), a case

from the Court of Common Pleas of Berks County, where the trial court held that 42

Pa.C.S. § 5920 is unconstitutional because it violates the Separation of Powers Doctrine

and the rulemaking authority of the Pennsylvania Supreme Court.7 The trial court in

Olivo relied on Com. v. Dunkel, 602 A.2d 830 (Pa. 1992), a pre-Section 5920 case that

held testimony very similar to that offered here was impermissible. The Dunkel Court

ruled that the testimony was impermissible because it attempted to explain "Child Sexual

Abuse Syndrome," it did not meet general acceptance within the field, and it did not

entail knowledge beyond what the layperson possesses. Dunkel, 602 A.2d at 177, 181.

6 Prior to trial, the Court found that Ms. Duffy was an expert with regard to the response of children in sexual assault cases. In so finding, the Court ruled that this testimony involves an area that would be beyond the normal understanding of the general public, especially because the General Assembly has specifically permitted this type of expert testimony. The Court also found that a Frye hearing was not necessary in this case because the General Assembly has said that this type of testimony is proper and because the testimony given is not "novel" science. In an abundance of caution, the Court did, in fact, hold a brief Frye hearing immediately before the beginning of trial. The Court determined that the methodology used by the expert is generally accepted by practitioners in the relevant field. 7 Defendant challenged the constitutionality of 42 Pa.C.S. § 5920 on the basis of separation of powers for

the first time in his post-sentence motion. Defendant failed to raise this argument or to cite to Olivo during or before trial. Therefore, this argument is waived. See Pa.R.C.P. 227 .1 (b ). See also Com. v. Gordon, 528 A.2d 631, 63 8 (Pa. Super. 1987) (holding that defendant's argument regarding suppression of evidence waived when presented for the first time in post-trial motions). This Court believes that waiver applies even if the Defendant is challenging the constitutionality ofa statute. See Com. v. Howe, 842 A.2d 436, 441 (Pa. Super 2004) ("Constitutional issues, even sentencing issues based upon the constitution, are waived if not properly raised in the trial court") (internal citation omitted). Nonetheless, the Court addresses the merits of Defendant's argument in the event that waiver is not found.

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After the trial court reached its decision in Olivo, the Commonwealth appealed; the case

is currently in front of the Pennsylvania Supreme Court.8

Despite the fact that Olivo is currently before the Pennsylvania Supreme Court,

the Superior Court has recently ruled directly on this issue in Com. v. Carter, 111 A.3d

1221 (Pa. Super. 2015). There, the Commonwealth called Carol Haupt as an expert to

testify "that it is common for child sexual abuse victims to delay in reporting." Id. at

1223. Ms. Haupt also "expounded upon some of the reasons why a child sexual abuse

victim may delay in reporting." Id. However, she did not testify regarding the particular

victim in the case or whether the alleged incidents actually occurred. Id. Ms. Haupt did

not offer any opinion regarding the victim's credibility. Id. The Superior Court held that

this was a permissible use of 42 Pa.C.S. § 5920.

Ms. Duffy's testimony in this case was identical to the expert testimony

introduced in Carter. As stated above, Ms. Duffy testified only generally as to her

experience with children's responses in sexual assault cases. She was not privy to any of

the facts in this particular matter, and she did not testify as to either of the child victims

particularly. Since there is no material distinction in the testimony between this case and

Carter, the testimony was clearly permissible.

With respect to Defendant's separation of powers argument, the Carter Court held

that "Section 5920 is really a rule regarding the admissibility of evidence, not a

procedural rule. Furthermore, it is not in direct conflict with any existing rule of the

Pennsylvania Supreme Court." Carter, 111 A.3d at 1224. Relying on other precedent, the

8 Upon appeal, the case first went to the Pennsylvania Superior Court. The Superior Court did not decide this case, but rather the court's Prothonotary transferred it to the Supreme Court pursuant to Pa.R.A.P. 751 on October 21, 2014.

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Court held that the statute is constitutional. Id In doing so, the Court distinguished its

case from that of Dunkle by stating that "Dunkle predates Section 5920 and was not

based on constitutional grounds but on existing case law and rules of evidence. As such,

we determine that Section 5920 does not violate separation of powers." Id

This new binding precedent clearly permitted the Commonwealth to introduce the

testimony of Kimberly Duffy as an expert witness. Further, Defendant is incorrect in

arguing that 42 Pa.C.S. § 5920 is unconstitutional. Therefore, Defendant is not entitled to

relief on this claim.

E. Defendant's sentence is not manifestly unfair or excessive

Defendant finally argues that the aggregate sentence of 67 to 134 years of imprisonment

is manifestly unfair and excessive.

In reviewing a challenge to the discretionary aspects of sentencing, the Superior

Court "evaluate[s] the court's decision under an abuse of discretion standard." Com. v.

Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013). Additionally, "[the Superior] Court's

review of the discretionary aspects of a sentence is confined by the statutory mandates of

42 Pa.C.S. § 978l(c) and (d)." Com. v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009).

Section 9781(c) reads:

(c) Determination on appeal.-The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

( 1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously; (2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

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(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

Finally, the Pennsylvania Supreme Court has held that standard range consecutive

sentences are not clearly unreasonable where the trial court relies on the defendant's prior

history and a finding that he was a high risk to re-offend. See Com. v. Klueber, 904 A.2d

911 (Pa. 2006).

Here, Defendant was found guilty of 14 charges that were perpetuated against two

minor victims. The Court sentenced the Defendant within the standard guidelines for all

of the charges and chose to run consecutively the two sentences each of Rape of a Child,

Involuntary Deviate Sexual Intercourse, and Aggravated Indecent Assault of a child.

Collectively, this resulted in a sentence of 67 to 134 years of incarceration. In imposing

this sentence, the Court considered all of the relevant factors, including the Defendant's

prior criminal history, the safety of the community, and the Defendant's high likelihood

of offending again. Under the circumstances, application of the standard guidelines was

not clearly unreasonable and this Court did not abuse its judicial discretion.

For the above reasons, Defendant is not entitled to relief upon this claim.

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Accordingly, the Superior Court should reject Defendant Christopher Blake's

appeal and uphold this Court's Order denying Defendant's Post-Sentence Motion.

BY THE COURT,