J-S32038-25
2025 PA Super 282
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN LEWIS KRAMER : : Appellant : No. 306 MDA 2025
Appeal from the Judgment of Sentence Entered August 5, 2022 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001360-2020
BEFORE: LAZARUS, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: DECEMBER 18, 2025
Appellant John Lewis Kramer appeals from the judgment of sentence
entered by the Court of Common Pleas of Lackawanna County after a jury
convicted Appellant of Rape of a Child, Involuntary Deviate Sexual Intercourse
(complainant less than 16 years of age) (“IDSI”), Statutory Sexual Assault,
Unlawful Contact with a Minor, Aggravated Indecent Assault of a Child, Incest,
and Endangering the Welfare of a Child (“EWOC”).1 We vacate the judgment
of sentence in part and remand with instructions.
Appellant was charged with the aforementioned offenses in connection
with allegations that he had repeatedly sexually assaulted his biological
daughter, E.K., for an extended period of time. Appellant proceeded to a jury
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* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 3121(c), 3123(a)(7), 3122.1(b), 6318(a)(1), 3125(b), 4302(b)(2), and 4304(a)(1), respectively. J-S32038-25
trial which was held on February 14-17, 2022, at which the following factual
background was developed.
E.K. testified that her father, Appellant, had sexually assaulted her
starting when she was twelve years old until Appellant was arrested, at which
time E.K. was fifteen years old. Notes of Testimony (N.T.), 2/14/22, at 43,
52.2,3 E.K. described the assaults in detail, specifying that her father required
her to engage in oral, vaginal, and anal sex. Id. at 50-51. E.K. indicated that
the sexual assaults would occur at their family home in Scranton or at
Lutheran Academy, a school associated with a church where Appellant was
involved in cleaning. Id. at 52-54. As Appellant was scheduled to clean at
Lutheran Academy on Fridays, he would take E.K. with him there and sexually
assault her in the basement. Id. at 56.
E.K. recalled instances in which her father would tie her up and blindfold
her during the sexual assaults. Id. at 50-51. E.K. suspected that Appellant
would take pictures during the assaults as she could see flashes through her
blindfold. Id. at 70. After Appellant took a video of her engaged in a sex act,
2 The certified record contains two transcripts of the jury trial proceedings held
on February 14, 2022. The first transcript filed on April 13, 2022 is incomplete. We cite to the second transcript filed on May 10, 2023, which appears to be the complete record of the February 14, 2022 trial proceeding. 3 At trial, E.K. was asked to identify Appellant in the courtroom but was unable
to do so. N.T., 2/14/22, at 42. We note that Appellant’s wife testified at trial that Appellant was “quite a bit thinner” since his arrest in March 2020. Id. at 106. Detective Christian Gowerty testified at trial that Appellant’s physical appearance had changed dramatically since his arrest, noting that Appellant had lost “a large amount of weight” and was wearing eyeglasses and a mask. N.T., 2/15/22 (p.m.), at 15.
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she asked Appellant to delete the video. Id. E.K. testified that Appellant
provided condoms and cream to avoid impregnating her; E.K. indicated that
Appellant would keep these contraceptives in a lockbox. Id. at 59-64.
Further, E.K. shared that Appellant made her sign two “sex contracts,” which
attempted to require her to have extra vaginal, oral, or anal sex with him if
she violated the contractual terms which included the prohibition of telling
anyone about the assaults. Id. at 64-73.
E.K. testified that she did not tell anyone about the abuse as she was
afraid that Appellant would hurt her. Id. at 49. She was also afraid that the
revelation of the abuse would destroy her family and cause her family
members to “hate” her. Id. at 70. E.K. only disclosed assaults when her
mother confronted E.K. with pictures that she had found on Appellant’s phone
that depicted E.K. naked and tied up. Id. at 47-48.
Terry Kramer, Appellant’s wife and E.K.’s mother, testified that she was
reviewing Appellant’s email account in March 2020 on the family computer
when she found a contract listing sexual acts that Appellant was requiring of
a certain individual and consequences if those acts were not done. Id. at 110-
12. Mrs. Kramer indicated that the contract did not refer to her and was
signed with an “E.” Id. at 112-13. Mrs. Kramer’s suspicions caused her to
investigate Appellant’s phone (a Samsung Galaxy S10e) after which she
discovered that Appellant’s Google Photos contained a picture of E.K. engaged
in a sexual act with Appellant while both were naked. Id. at 114-18. She
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immediately went and showed the picture to E.K., who became visibly upset
and started to cry. Id. at 118.
Mrs. Kramer called the police to report that she had evidence that her
husband, Appellant, was raping her daughter. Id. at 118-21. Officers
directed her to leave her home for her safety and meet at a nearby Turkey
Hill.4 Id. Mrs. Kramer had sent the photos from Appellant’s phone to her
personal email to preserve them and gave Appellant’s phone to the officers.
Id. at 121; N.T., 2/15/22 (a.m.), at 18. At the direction of the responding
officers, Mrs. Kramer picked up her other children and then took E.K. to the
Children’s Advocacy Center where E.K. underwent a forensic interview. N.T.,
2/14/22, at 122. E.K. also submitted to a rape kit medical examination.
Mrs. Kramer sent the photos to detectives that evening. Id. In addition,
Mrs. Kramer provided police with Appellant’s lockbox because E.K. indicated
that Appellant kept contraceptives in there. Id. at 125. Mrs. Kramer indicated
she and Appellant did not use contraception when having sexual intercourse.5
A subsequent search of the lockbox revealed that it contained condoms, ____________________________________________
4 Officer Nick Philbin of the Scranton Police Department indicated that at the
time of the initial report of Appellant’s abuse in March 2020, citizens were not permitted to go into the police station to make a report given that it was the height of the COVID-19 pandemic and corresponding lockdown. N.T., 2/15/22 (a.m.), at 15. 5 Mrs. Kramer also testified that after Appellant had been taken into custody,
Appellant sent her a sealed letter through his mother, which indicated that Mrs. Kramer “crossed a line, and it is going to cost you in the end one way or another and nothing will stop it.” N.T., 2/14/22, at 133. Appellant threatened that if he was convicted of the relevant charges, he would seek to have Mrs. Kramer indicted for 11 unnamed crimes and petition to have his children removed from her care and placed in the foster system. Id.
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spermicide, and a second “sex contract” similar to the one that Mrs. Kramer
found in Appellant’s email. N.T., 2/15/22 (a.m.), at 54-59.
Appellant submitted to an interview with detectives during which he
admitted that he had vaginal, anal, and oral sex with E.K. both at his home
and at the Lutheran Academy. N.T., 2/15/22 (p.m.), at 10-16. Appellant also
admitted to blindfolding his daughter during the acts and taking photos and
videos of such acts, but indicated that he deleted the videos. Id. at 15-16.
Appellant’s cell phone was provided to the FBI to conduct a forensic
examination. FBI Agent Eric Bailey testified that the search revealed multiple
videos of E.K. performing oral sex on an adult male whose face was not shown.
N.T. 2/15/22 (a.m.), at 87-90. Agent Bailey indicated that after he discovered
the videos, he went to the Lutheran Academy and was able to conclusively
identify the location of the assault taking place in the videos as being at the
Lutheran Academy. Id. at 91-93. The prosecution admitted for the jury’s
review an excerpt of the video and photographs Agent Bailey took at the
Lutheran Academy for comparison. Id.
At the conclusion of the trial, the jury convicted Appellant on all charges.
At Appellant’s sentencing hearing held on August 5, 2022,6 Appellant
stipulated to his status as a Sexually Violent Predator (SVP) and his
requirement to submit to lifetime registration under the Sexual Offender
6 The cover sheet of the sentencing transcript lists the sentencing hearing date
as September 5, 2022. However, the sentencing order and dockets show that Appellant was sentenced on August 5, 2022.
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Registration and Notification Act (SORNA); Appellant submitted to a colloquy
in which he waived his right to have an SVP hearing. N.T., 8/5/22, at 2-6.
The trial court expressed its intention to impose the following sentences on
the record at the sentencing hearing:
Count 1 (Rape): 10–20 years’ imprisonment
Count 2 (Statutory Sexual Assault): 3-10 years’ imprisonment
Count 3 (IDSI): 10-20 years’ imprisonment
Count 4 (Unlawful Contact with a Minor): 6-12 years’ imprisonment
Count 5 (Aggravated Indecent Assault): 3-10 years’ imprisonment
Count 6 (Incest): 3-10 years’ imprisonment
Count 7 (EWOC): 1-2 years’ imprisonment
Id. at 32-36.7 The trial court indicated that Counts 1, 3, 4, 5, and 7 would
run consecutively and Counts 2 and 6 would run concurrently. Id. The trial
court also stated that Appellant would be subject to three years’ mandatory
probation. Id. At sentencing, the trial court incorrectly calculated Appellant’s
aggregate sentence to be 30-60 years’ imprisonment. 8 Id.
On the same day, the trial court entered a sentencing order which listed
Appellant’s sentences as follows:
7 At the sentencing hearing, the trial court incorrectly identified the incest charge as Count 5, when it had been brought at Count 6. 8 The trial court also provided that Appellant’s sentence in this case would run
consecutively to the term of imprisonment imposed in his federal prosecution. N.T., 8/5/22, at 39. In 2022, Appellant was sentenced to 360 months’ imprisonment in federal court for his convictions for production of child pornography and attempted witness tampering.
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Count 4 (Unlawful Contact with a Minor): 6-12 years’ imprisonment
Count 5 (Aggravated Indecent Assault): 3-10 months’ imprisonment,
Count 6 (Incest): 3-10 months’ imprisonment
Count 7 (EWOC): 1-2 years’ imprisonment.
Sentencing Order, 8/5/22, at 1 (emphasis added). The sentencing order
states that only Counts 1, 3, 4, and 7 would run consecutively and Counts 2,
5, and 6 would run concurrently. Id. at 2. The order sets Appellant’s
aggregate sentence at 27-54 years’ imprisonment to be followed by three
years’ mandatory probation. Id.
On August 22, 2022, Appellant filed an untimely post-sentence motion.
On October 4, 2022, the trial court entered an order purporting to deny the
post-sentence motion. Appellant did not file a direct appeal.
On August 23, 2023, Appellant filed a PCRA petition, arguing inter alia
that his trial counsel was ineffective in failing to file a direct appeal. On April
11, 2024, the trial court entered an order granting the petition in part by
reinstating Appellant’s right to file a direct appeal nunc pro tunc.
Appellant filed an appeal (docketed at 666 MDA 2024) that was
ultimately dismissed by this Court on July 22, 2024 due to Appellant’s failure
to comply with Pa.R.A.P. 3517. On January 23, 2025, Appellant filed another
PCRA petition again seeking to reinstate his direct appeal rights. On February
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18, 2025, the PCRA court again reinstated Appellant’s direct appeal rights
nunc pro tunc. This appeal followed.
During the pendency of this appeal, after Appellant had filed his
appellate brief, on June 24, 2025, the trial court entered a “corrected”
sentencing order in which it made several changes to its original sentencing
order that was entered on August 5, 2022. The corrected sentencing order
reflected the sentences announced by the trial court in open court at
Appellant’s sentencing hearing and also increased the mandatory consecutive
probation term from three years to fifteen years. Thereafter, on June 26,
2025, Appellant filed in this Court an “Application for Remand and Stay,”
claiming the trial court had no jurisdiction to amend its sentencing order nearly
three years after the entry of its original judgment of sentence.
Before we reach the merits of the claims raised in Appellant’s appellate
brief, we will first address Appellant’s contention that the trial court had no
jurisdiction to enter the corrected sentencing order.
Trial courts have the power to alter or modify a criminal sentence within thirty days after entry, if no appeal is taken.” Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235, 1238 (1994), appeal dismissed as improvidently granted, 544 Pa. 183, 675 A.2d 711 (1996). See also 42 Pa.C.S.A. § 5505 (stating except as otherwise provided or prescribed by law, court upon notice to parties may modify or rescind any order within 30 days after its entry, notwithstanding prior termination of any term of court, if no appeal from such order has been taken or allowed). Nevertheless, once the thirty-day period expires, the trial court usually loses the power to alter its orders. Quinlan, supra. An exception to this general rule exists to correct “clear clerical errors.” [Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa.Super. 2011) (en banc).] “This exception to the general rule
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of Section 5505 cannot expand to swallow the rule.” Commonwealth v. Holmes, 593 Pa. 601, 617, 933 A.2d 57, 66 (2007). Thus, the court's inherent authority to correct patent errors is a “limited judicial power.” Id. at 618, 933 A.2d at 67.“[A]n alleged error must qualify as a clear clerical error (or a patent and obvious mistake) in order to be amenable to correction.” Borrin, supra at 473.
This Court's case law has addressed the situations where...the terms of a defendant's sentence as stated at the sentencing hearing conflict (or are deemed incompatible) with the terms of the defendant's sentence as stated in the sentencing order.
In these circumstances, for a trial court to exercise its inherent authority and enter an order correcting a defendant's written sentence to conform with the terms of the sentencing hearing, the trial court's intention to impose a certain sentence must be obvious on the face of the sentencing transcript. ... Stated differently, only when a trial court's intentions are clearly and unambiguously declared during the sentencing hearing can there be a “clear clerical error” on the face of the record, and the [signed] sentencing order subject to later correction.
If, on the other hand, a trial court's stated intentions during the sentencing hearing are ambiguous, then the terms of the sentence in the [signed] sentencing order control, and the trial court cannot correct its perceived mistake. See Commonwealth v. Isabell, 503 Pa. 2, [12,] 467 A.2d 1287, 129[2] (1983) ([stating:] “Generally, the signed sentencing order, if legal, controls over oral statements of the sentencing judge not incorporated into the signed judgment of sentence”); .... This is because the alleged error in the sentencing transcript is not a “clear clerical error,” but rather, is an ambiguity that must be resolved by reference to the written sentencing order.
Id. (some internal citations omitted).
Commonwealth v. Kremer, 206 A.3d 543, 548 (Pa.Super. 2019). To
summarize, the jurisdictional time limits set forth in Section 5505 do not
“impinge on the time-honored inherent power of courts” to correct patent and
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and obvious errors even in the absence of traditional jurisdiction. Holmes,
593 Pa. at 615, 933 A.2d at 65.
Further, Section 5505 does not limit a trial court from “sua sponte
correct[ing] an illegal sentence, even after the defendant has begun serving
the original sentence.” Commonwealth v. Baio, 898 A.2d 1095, 1099
(Pa.Super. 2006) (citing Commonwealth v. Santone, 757 A.2d 963
(Pa.Super. 2000); Commonwealth v. Quinlan, 639 A.2d 1235, 1239
(Pa.Super. 1994) (recognizing respective challenges of an illegal, patently
contradictory, or fraudulently procured sentence as excepted from the
jurisdictional time limit imposed by Section 5505)).
In this case, the trial court’s corrected sentencing order changes
portions of the original sentencing order that were incompatible with the
sentence that the trial court imposed in open court. The trial court clearly
stated at the sentencing hearing that 1) the sentence on Count 4 – Unlawful
Contact with a Minor was for 6-12 years’ imprisonment, not 6-12 months’
imprisonment, 2) the sentence on Count 5 – Aggravated Indecent Assault of
a Child was for 3-10 years’ imprisonment, not 3-10 months’ imprisonment,
and 3) the sentence on Count 5 – Aggravated Indecent Assault was to run
consecutively with Counts 1, 3, 4 and 7, not concurrently. N.T., 8/5/22, at
32-36. As the trial court’s stated intentions at the sentencing hearing were
clearly and unambiguously declared, the trial court was permitted to resolve
these clerical errors in its corrected order to reflect the sentence it entered in
open court.
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The trial court’s corrected order also attempted to recalculate
Appellant’s aggregate sentence based on the corrected individual sentences.
This modification would also qualify as a clear clerical error that would be
subject to later correction. However, while the corrected order lists
Appellant’s aggregate sentence of imprisonment as 30-60 years’
imprisonment, his aggregate sentence is actually 30-64 years’ imprisonment.9
Upon remand, the trial court is directed to enter a corrected sentencing order
to accurately reflect Appellant’s aggregate sentence of imprisonment.
Appellant also challenges the fact that the trial court’s corrected order
indicates that Appellant’s aggregate term of incarceration is to be followed by
fifteen years’ probation instead of only three years’ probation. The trial court
did not set forth reasoning as to why it increased the probationary tail of the
sentence.
Sections 9718.5 and 9799.14(d) of the Sentencing Code require a trial
court to impose a mandatory term of probation for certain sexual offenses.
Section 9718.5(a) provides:
§ 9718.5 Mandatory period of probation for certain sexual offenders
(a) Mandatory probation supervision after release from confinement. -- A person who is convicted in a court of this Commonwealth of an offense under section 9799.14(d) (relating ____________________________________________
9 As noted above, Appellant received the following individual consecutive sentences of imprisonment: Count 1 (Rape): 10–20 years’ imprisonment, Count 3 (IDSI): 10-20 years’ imprisonment, Count 4 (Unlawful Contact with a Minor): 6-12 years’ imprisonment, Count 5 (Aggravated Indecent Assault): 3-10 years’ imprisonment, and Count 7 (EWOC): 1-2 years’ imprisonment.
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to sexual offenses and tier system) shall be sentenced to a mandatory period of probation of three years consecutive to and in addition to any other lawful sentence issued by the court.
42 Pa.C.S.A. § 9718.5(a) (emphasis added). Section 9718.5(c) also clarifies
that a trial court has “no authority in a court to impose on an offender to which
this section is applicable a lesser period of probation than provided for under
subsection (a). Sentencing guidelines promulgated by the Pennsylvania
Commission on Sentencing shall not supersede the mandatory period of
probation provided under this section.” 42 Pa.C.S.A. § 9718.5(c).
Section 9718.5 limits the three-year mandatory probation period to only
apply to those convicted of one of the offenses enumerated in subsection
9799.14(d), which are deemed to be Tier III sexual offenses. See 42
Pa.C.S.A. § 9799.14(d). Pursuant to Section 9799.14(d), five of Appellant’s
convictions qualify as Tier III offenses: Rape, Statutory Sexual Assault, IDSI,
Aggravated Indecent Assault, and Incest. See 42 Pa.C.S.A. § 9799.14(d)(2),
(3), (4), (7), and (9).
From our review of the record, it appears that the trial court included a
three-year probationary tail in the original judgment of sentence based on a
belief that Appellant, who had multiple Tier III convictions, was only subject
to a single three-year term of probation pursuant to Section 9718.5. The trial
court subsequently attempted to amend its original sentencing order to
replace the single three-year term of probation with five consecutive three-
year probation periods (fifteen years’ consecutive probation) given that
Appellant has five Tier III offense convictions.
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However, we cannot find that the trial court’s original imposition of a
single three-year term of probation for an offender with multiple Tier III
convictions constituted a patent and obvious error. Section 9718.5 does not
expressly require that a defendant with multiple Tier III convictions receive
separate, consecutive periods of probation after release from confinement.
We are not aware of any case law that has interpreted Section 9718.5 to
require consecutive periods of probation for offenders with multiple Tier III
convictions. Although we agree with the trial court’s assessment that a
fifteen-year term of probation was warranted pursuant to Section 9718.5, we
cannot find the trial court had the inherent authority to make this change to
its original sentencing order more than thirty days after its entry.
Accordingly, while the trial court properly exercised its inherent
authority to issue a corrected sentencing order to reflect the correct individual
and aggregate sentences of incarceration, the trial court had no jurisdiction to
increase the probationary tail of Appellant’s sentence more than thirty days
after the entry of sentence, absent a patent and obvious error in the
probationary term. As a result, we vacate the judgment of sentence in part
and direct the trial court to correct its sentence to accurately reflect the correct
aggregate term of imprisonment and impose the original three-year term of
probation after release from confinement.10
10 In his “Application to Remand and Stay” filed on June 26, 2025, Appellant
claims he is entitled to a remand for the trial court to conduct a hearing on (Footnote Continued Next Page)
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Appellant has set forth the following issues for review on appeal:
I. Whether the trial court abused its discretion in denying [Appellant’s] request for a new trial based on the weight of the evidence being so contrary to the verdict that it would shock one’s sense of justice?
II. Whether the sentence imposed by the trial court is contrary to the fundamental norms of the sentencing process and sentencing guidelines, and unreasonable when it sentenced [Appellant] to 10 to 20 years for Involuntary Deviate Sexual Intercourse of Person less than 16 which sentence was 4½ years above the standard range and 3½ years above the aggravated range sentence?
III. Whether the trial court failed to consider applicable mitigating factors as well as Appellant’s character, age, lack of criminal history, and rehabilitative needs at the time of sentencing, which resulted in the imposition of a manifestly excessive and unduly harsh aggregate sentence being imposed?
IV. Whether the court abused its discretion and/or erred, as a matter of law, when it precluded Appellant’s counsel from impeaching the credibility of the Commonwealth’s witness with prior inconsistent testimony?
Appellant’s Brief, at 5 (renumbered for review).
Appellant challenges the weight of the evidence supporting his
convictions in this case. However, to raise such a claim on appeal, “[a] weight
of the evidence claim must be preserved either in a post-sentence motion, by
a written motion before sentencing, or orally prior to sentencing.” ____________________________________________
post-sentence motions that he filed after the trial court entered its corrected sentencing order on June 24, 2025 sua sponte. Given our conclusions that the trial court had inherent authority to correct certain patent errors in its sentencing order sua sponte and our decision to grant Appellant relief by vacating the trial court’s increased probationary tail, we deny the Application to Remand and Stay.
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Commonwealth v. Rivera, 238 A.3d 482, 497 (Pa.Super. 2020) (citing
Pa.R.Crim.P. 607) (other citation omitted). “An untimely post-sentence
motion does not preserve issues for appeal.” Commonwealth v. Wrecks,
931 A.2d 717, 719-720 (Pa.Super. 2007). Further, this Court has held that a
defendant’s failure to properly preserve a weight of the evidence claim in the
trial court will result in waiver, even if the trial court addresses the claim on
appeal. Rivera, 238 A.3d at 497 (citing Commonwealth v. Sherwood, 603
Pa. 92, 982 A.2d 483, 494 (2009)).
In this case, while Appellant was sentenced on August 5, 2022,
Appellant did not file a post-sentence motion until August 22, 2022. Thus,
Appellant’s post-sentence motion was untimely. See Pa.R.Crim.P. 720 (“a
written post-sentence motion shall be filed no later than 10 days after
imposition of sentence”).
Nevertheless, Appellant asserts that his post-sentence motion was
timely filed on August 22, 2022 as he asserts a certified copy of the corrected
sentencing order was placed on the docket on August 22, 2022 which reported
his aggregate sentence. Appellant’s Brief at 7-8. However, this Court has
held that:
for purposes of Pa.R.Crim.P. 720(A)(1), regardless of the date the sentence was entered on the docket, a written post-sentence motion must be filed no later than 10 days after the date of imposition of sentence. If for some reason, the sentence was not entered on the docket the day the sentence was imposed, a defendant who wishes to file a post-sentence motion must still do so no later than 10 days after the date of imposition of sentence. This interpretation comports with the plain language of Pa.R.Crim.P. 720(A)(1).
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Commonwealth v. Green, 862 A.2d 613, 617 (Pa.Super. 2004) (en banc).
In other words, “the beginning of the ten-day [deadline for the filing of post-
sentence motion] refers to the date of imposition of sentence and not
necessarily the date the sentence was entered on the docket.” Id. at 616.
“The date of imposition of sentence is the date the trial court pronounces the
sentence. It is implausible to argue that the date on which the trial court
pronounces the sentence is not the date on which sentence is imposed.” Id.
at 619.
As the judgment of sentence was imposed on August 5, 2022,
Appellant’s post-sentence motion was to be filed no later than August 15,
2022. Appellant’s untimely post-sentence motion filed on August 22, 2022
did not preserve his challenge to the weight of the evidence for appeal. As
such, we conclude that this issue is waived.
Appellant also raises various challenges to the trial court’s sentencing
discretion in arguing that the trial court (1) imposed an unreasonable
individual sentence for IDSI that exceeded the aggravated range of the
sentencing guidelines and (2) failed to consider applicable mitigating factors
and Appellant’s rehabilitative needs.
These arguments which relate to the discretionary aspects of sentence
were required to be raised before in the trial court at sentencing or in a timely
filed post-sentence motion. “[I]ssues challenging the discretionary aspects of
a sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
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efforts, an objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018) (citation
omitted); Pa.R.A.P. 302(a). Further, as noted above, “[a]n untimely post-
sentence motion does not preserve issues for appeal.” Wrecks, 931 A.2d at
719-720.
As Appellant failed to raise his challenges to the discretionary aspects of
his sentence at sentencing or in a timely post-sentence motion, he has waived
these claims on appeal. We decline to review these issues further.
Lastly, Appellant asserts that the trial court abused its discretion in
precluding defense counsel from impeaching the credibility of FBI Agent Bailey
with an alleged instance of prior inconsistent testimony at Appellant’s
prosecution on federal charges.
In reviewing Appellant’s challenge to the trial court’s evidentiary ruling,
we are guided by an abuse of discretion standard of review.
When we review a trial court ruling on admission of evidence, we must acknowledge that decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law. In addition, for a ruling on evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party.
An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.
Commonwealth v. Reed, 292 A.3d 601, 605 (Pa.Super. 2023) (quoting
Commonwealth v. Talley, 236 A.3d 42, 55 (Pa.Super. 2020)). Further, “[a]
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trial court has discretion to determine both the scope and permissible limits
of cross-examination[; t]he trial judge's exercise of judgment in setting those
limits will not be reversed in the absence of a clear abuse of that discretion,
or an error of law.” Commonwealth v. Briggs, 608 Pa. 430, 501-502, 12
A.3d 291, 335 (internal citation omitted)).
During a third round of re-cross examination of Agent Bailey, defense
counsel asked Agent Bailey if he had testified at Appellant’s federal trial that
he was unable to determine the make and model of the cell phone that took
five particular photographs referred to by the prosecution. N.T., 2/15/22, at
126-33. The Commonwealth objected to line of questioning, arguing that it
was beyond the scope of the re-direct examination and that this question could
have been raised previously on cross examination. Id. The trial court
sustained the objection. Id. at 133.
This argument involves the five photos that Mrs. Kramer sent to police
through email after making her initial report. As noted above, Mrs. Kramer
testified that after discovering the concerning photos of sexual assault on
Appellant’s phone stored in Google Photos, she had emailed the photos to her
personal email from Appellant’s phone to preserve them as evidence. Mrs.
Kramer then gave Appellant’s phone to police when she reported the abuse.
For reasons not explained, the photos were not able to be extracted from
Appellant’s phone.
Appellant asserts on appeal that the trial court abused its discretion in
refusing to permit defense counsel on the third re-cross examination to ask
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Agent Bailey whether he testified at Appellant’s federal trial that the forensic
extraction did not include information as to the make and model of the phone
that took the five images in question. Appellant argues that he was not the
individual who took the five images in question which did not show the face of
the male perpetrator. Instead, Appellant alleges that his wife submitted these
photos to police as she believed Appellant was cheating on her.
Regardless of whether Appellant’s proposed line of questioning on his
third re-cross examination was proper, we find that Appellant has utterly failed
to show how this evidentiary decision caused him prejudice given the
overwhelming evidence of his guilt. The Commonwealth did not seek to admit
into evidence the five photographs in question, but were able to present other
extensive evidence that corroborated E.K.’s testimony that she had been
assaulted by her father. Not only did E.K. testify in detail about the
devastating sexual assaults she suffered at the hands of Appellant, the
prosecution presented multiple videos of E.K. being sexually assaulted at the
Lutheran Academy, where Appellant would take E.K. every Friday evening.
These videos were extracted from Appellant’s cell phone. The prosecution
also corroborated E.K.’s testimony by presenting items contained in
Appellant’s lockbox, including contraceptives he used and the second “sex
contract” he had made E.K. sign that was similar to the first contract found in
his email account. Further, Appellant gave a statement admitting that he had
vaginal, oral, and anal sex with his juvenile daughter. Accordingly, Appellant
has failed to show that he is entitled to any relief on this claim.
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For the foregoing reasons, we vacate the judgment of sentence in part
for the limited purpose of the trial court correcting the calculation of the
aggregate sentence and returning Appellant’s probationary tail to its original
three years. In all other respects, we affirm the judgment of sentence.
Judgment of sentence vacated in part and remanded with instructions
consistent with this opinion. “Application to Remand and Stay” denied.
Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 12/18/2025
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