J-S68002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MICHAEL WILLIAM EDMONSON, Appellant No. 940 WDA 2015

Appeal from the Judgment of Sentence May 15, 2015 In the Court of Common Pleas of Bedford County Criminal Division at No(s): CP-05-CR-0000148-2014

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 20, 2017

Appellant, Michael William Edmonson, appeals from the judgment of sentence entered following his conviction of multiple counts of crimes related to his repeated sexual assault on his three minor daughters. We affirm.

We summarize the procedural history of this case as follows. In an information filed on July 9, 2014, Appellant was charged with a total of 250

counts of sex crimes committed between January 1, 2002, and February 22, 2014.1 Appellant filed a motion in limine on January 22, 2015. In an order

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* Retired Senior Judge assigned to the Superior Court. 1 Specifically, the Commonwealth charged Appellant with fourteen counts of rape of a child; fourteen counts of involuntary deviate sexual intercourse; eighteen counts of involuntary deviate sexual intercourse with a victim under the age of sixteen; eighteen counts of incest; eighteen counts of rape by (Footnote Continued Next Page)

J-S68002-16 dated January 22, 2015, the trial court granted in part and denied in part

Appellant’s motion in limine. In addition, the trial court’s order stated that multiple charges listed in the criminal information were nol prossed.2 On

January 22, 2015, a jury convicted Appellant of all charges that had not

been nol prossed, for a total of ninety-six separate convictions. On May 15, 2015, the trial court, after determining that a multitude of Appellant’s

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threat of forcible compulsion; eighteen counts of statutory sexual assault where the victim is under the age of sixteen and the perpetrator is more than eleven years older than the victim; eighteen counts of statutory sexual assault where the victim is under the age of sixteen and the perpetrator is four years older but less than eight years older than the victim; fourteen counts of aggravated indecent assault of a person less than thirteen years of age; eighteen counts of aggravated indecent assault where the victim is less than sixteen years of age; fourteen counts of incest of a minor; eighteen counts of corruption of minors graded as a first-degree misdemeanor; eighteen counts of corruption of minors graded as a third-degree felony; eighteen counts of endangering the welfare of children; fourteen counts of indecent assault of a person less than thirteen years of age; and eighteen counts of indecent assault of a person less than sixteen years of age. 2 The following charges remained after multiple counts were nol prossed: six counts of rape of a child; two counts of involuntary deviate sexual intercourse; eight counts of involuntary deviate sexual intercourse with a victim under the age of sixteen; eighteen counts of incest; eighteen counts of rape by threat of forcible compulsion; five counts of statutory sexual assault where the victim is under the age of sixteen and the perpetrator is more than eleven years older than the victim; thirteen counts of statutory sexual assault where the victim is under the age of sixteen and the perpetrator is four years older but less than eight years older than the victim; twelve counts of aggravated indecent assault where the victim is less than sixteen years of age; six counts of incest of a minor; three counts of corruption of minors graded as a first-degree misdemeanor; three counts of endangering the welfare of children; one count of indecent assault of a person less than thirteen years of age; and one count of indecent assault of a person less than sixteen years of age.

J-S68002-16 convictions merged for sentencing purposes, sentenced Appellant to serve

an aggregate term of incarceration of ninety-nine to 200 years. In addition, after a hearing, the trial court determined that Appellant should be classified as a sexually violent predator (“SVP”). This timely appeal followed. Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

On November 18, 2015, Appellant filed with this Court an “application

for relief to file post sentence motion nunc pro tunc.” On November 23, 2015, this Court entered an order that granted Appellant’s motion and remanded this matter to the trial court for the filing and disposition of the requested post-sentence motion nunc pro tunc, and we retained jurisdiction.

Appellant filed a post-sentence motion nunc pro tunc with the trial court on

December 3, 2015. On December 11, 2015, the trial court denied

Appellant’s post-sentence motion and returned the record to this Court.

Appellant now presents the following issues for our review:

I. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSES OF RAPE OF A CHILD LESS THAN THIRTEEN, 18 Pa.C.S.A. § 3121 (c), INVOLUNATARY [sic] DEIVAT [sic] SEXUAL INTERCOURSE LESS THAN THIRTEEN, 18 Pa.C.S.A. § 3123 (b), INVOLUNTARY DEVIATE SEXUAL INTERCOURSE LESS THAN SIXTEEN, 18 Pa.C.S.A. § 3123 (a)(7), RAPE THREAT OF FORCIBLE COMPULSION, 18 Pa.C.S.A. § 3121 (a)(2), STATUTORY SEXUAL ASSAULT, 18 Pa.C.S.A. § 3122.1, AGGRAVATED INDECENT ASSAULT LESS THAN SIXTEEN, 18 Pa.C.S.A. § 3125 (a)(8), INCEST OF A MINOR, 18 Pa.C.S.A. § 4302 (b), INDECENT ASSAULT LESS THAN THIRTEEN, 18 Pa.C.S.A. § 3126 (a)(7), INDECENT ASSAULT LESS THAN SIXTEEN, 18 Pa.C.S.A. 3126 (a)(8), AS THE EVIDENCE AT TRIAL FAILED TO PROVE IN EACH COUNT THE AGES OF THE VICTIMS AT THE TIME OF EACH OFFENSE WITH SUFFICIENT SPECIFICITY.

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II. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF ALL COUNTS, AS THE EVIDENCE ADDUCED AT TRIAL FAILED TO PROVE: (a) CAUSATION, NAMELY, THAT APPELLANT COMMITTED ANY ACT OF SEXUAL VIOLATION AND/OR ASSAULT AGAINST ANY OF THE ALLEGED VICTIMS AND, (b) INTENT, NAMELY, THAT APPELLANT INTENDED TO ASSAULT THE ALLEGED VICTIMS IN THIS MATTER. III. APPELLANT ASSERTS THAT THE JURY’S VERDICT ON ALL COUNTS WAS AGAINST THE WEIGHT OF THE EVIDENCE INASMUCH AS NO CREDIBLE TESTIMONY WAS PRESENTED TO SUPPORT THE ALLEGATIONS THAT APPELLANT SEXUALLY VIOLATED THE ALLEGED VICTIMS IN ANY MANNER. IV. APPELLANT ASSERTS THAT THE TRIAL COURT ERRED WHEN IT DENIED HIS MOTION IN LIMINE REQUESTING THE DISMISSAL OF COUNTS 83 THROUGH 118 AS SET FORTH IN PARAGRAPHS 14, 15 16 AND 17 OF SAID MOTION, FILED OF RECORD ON JANUARY 22, 2015, RELATING TO THE STATUTORY SEXUAL ASSAULT COUNTS AS IMPROPERLY CHARGED AS THESE CHARGES PERTAIN TO ALL THREE ALLEGED VICTIMS IN THE INSTANT MATTER FRO [sic] OFFENSES THAT ALLEGEDLY OCCURRED BETWEEN THE YEARS OF 2002 THROUGH 2014, THE MARJORITY [sic] OF WHICH OCCURRED BEFORE THE FEBRUARY 21, 2012 EFFECTIVE DATE OF THE CURRENT FORM OF 18 Pa.C.S.A. § 3122.1. V. APPELLANT ASSERTS THAT THE TRIAL COURT ERRED WHEN IT DENIED HIS MOTION IN LIMINE REQUESTING A PRECLUSION OF EVIDENCE PRESENTED BY THE COMMONWEALTH PERTAINING TO HIS USE OF CONTROLLED SUBSTANCES PURSUANT TO Pa.R.E. 404(b) AS THE PREJUDICE CAUSED TO APPELLANT BY THE ADMISSION OF SAID EVIDENCE GREATLY OUTWEIGHED THE PROBATIVE VALUE AND WAS NOT BEING OFFERED BY THE COMMONWEALTH TO PROVE, MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN, KNOWLEDGE, IDENTITY, ABSENCE OF MISTAKE OR LACK OF ACCIDENT. VI. WHETHER THE TRIAL COURT ERRED WHEN IT RULED THAT THE COMMONWEALTH DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT APPELLANT IS A SEXUALLY VIOLENT PREDATOR.

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VII. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE SENTENCES FOR COUNTS 30 AND 36 WITH THE SENTENCES IMPOSED ON COUNTS 1 THROUGH 6 PERTAINING TO RAPE OF A CHILD AS THE ELEMENTS OF THE OFFENSES INCLUDED IN COUNTS 30 AND 36 MERGE WITH THE RAPE OF A CHILD COUNTS. VIII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT IMPOSED AN EXCESSIVE SENTENCE OF NOT LESS THAN NINETY-NINE (99) YEARS NOR MORE THAN TWO HUNDRED (200) YEARS AS THE APPELLANT’S PRIOR RECORD SCORE WAS ZERO (0). Appellant’s Brief at 9-12. Appellant first argues that there was insufficient evidence to support his convictions. Appellant’s Brief at 17-26. Specifically, Appellant contends that the Commonwealth failed to prove the necessary ages of the victims at the times of the various offenses. With regard to victim S.E., Appellant states: Given [her] testimony, which was inconsistent with prior testimony given at the preliminary hearing and prior statements given to law enforcement, her testimony as to her age at the time of the alleged offenses cannot be sufficient as the sole evidence presented by the Commonwealth to substantiate the age elements of the offenses related to S.E. Appellant’s Brief at 21. With regard to victim T.W., Appellant avers the following: As to the assertion that T.W. was under the age of sixteen at the time of the offenses, given T.W.’s lack of clarity as to her age at the time the offenses began, her assertion as to her age at the time the offenses ended cannot be trusted. T.W. testified that she was fifteen when the abuse ended at which time she stopped visiting with Appellant. (Trial T. 211). T.W. also testified that she and B.E. are only eleven months apart in age.

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(Trial T. 220). B.E. also testified that the abuse she allegedly suffered ended when she was fifteen years of age. (Trial T. 166). Given the extreme closeness of the two victims’ ages, their assertions that they were both fifteen at the time the abuse against each of them ended is completely untrustworthy.

Appellant’s Brief at 24-25.

Concerning victim B.E., Appellant states the following:

As with T.W.’s testimony, B.E. could not specifically state the age at which the abuse occurred. Further, just as T.W., B.E. claimed that the abuse ended when she was fifteen. Given the fact that T.W. testified that she and B.E. are only eleven months apart, it is near impossible that both women could be correct that they were both under the age of sixteen when the abuse ended. (Trial T. 220).

Appellant’s Brief at 25. Thus, in actuality, Appellant’s argument is challenging whether the testimony offered by the victims was credible and reliable.

We observe that we analyze arguments challenging the sufficiency of the evidence under the following parameters:

Our standard when reviewing the sufficiency of the evidence is whether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all elements of the offense beyond a reasonable doubt. We may not weigh the evidence or substitute our judgment for that of the fact-finder. Additionally, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant’s guilt unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. When evaluating the credibility and weight of the evidence, the fact-finder is free to believe all, part or none of the evidence. For purposes of our review under these principles, we must review the entire record and consider all of the evidence introduced.

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Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super. 2006)). However, a sufficiency of the evidence review does not include an assessment of the credibility of the testimony. Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa. Super. 2003). Such a claim is more properly characterized as a weight of the evidence challenge. Id. A challenge to the weight of the evidence questions which evidence is to be believed. Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006). Indeed, claims challenging the weight of the evidence and sufficiency of the evidence are clearly distinct. See Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000) (discussing the distinctions between a claim challenging the sufficiency of the evidence and a claim that the verdict is against the weight of the evidence). “A true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed.” Charlton, 902 A.2d at 561 (quoting Commonwealth v. Galindes, 786 A.2d 1004, 1013 (Pa. Super. 2001)). Appellant has failed to preserve a challenge to the weight of the evidence for our review. Pa.R.Crim.P. 607 and its comment instruct that in order to preserve a claim that a verdict is against the weight of the evidence, the issue must be raised with the trial judge in a motion for a new trial either orally or in writing prior to sentencing, or in a post-sentence J-S68002-16 motion. Pa.R.Crim.P. 607. Here, Appellant never filed with the trial court an oral or written motion for a new trial prior to sentencing, or a post-sentence motion which challenged the weight of the evidence.^[3] Accordingly, the issue challenging the weight of the evidence is waived. Pa.R.Crim.P. 607;

Commonwealth v. Butler, 729 A.2d 1134, 1140 (Pa. Super. 1999)

(holding that a challenge to the weight of the evidence is waived for failure to present the issue first to the trial court).

Appellant next purports to argue that there was insufficient evidence to support all of his convictions because the Commonwealth failed to prove causation and intent. Appellant’s Brief at 26-30. Appellant begins his argument in this regard as follows:

The Commonwealth’s case rested upon the credibility of the alleged victims all of whom were the children of Appellant each having a difficult and estranged relationship. All three victims gave versions of events that call their credibility into question. While credibility is not cited in the sufficiency standard, the credibility of the witnesses is a part of “all reasonable inferences” deducted from the evidence they provided. Given the problems with the credibility of each victim’s version of events, the Commonwealth’s reliance on their testimony as the primary evidence in the matter cannot provide any type of reasonable basis for a finding of guilt beyond a reasonable doubt.

Appellant’s Brief at 27. Appellant concludes his argument with the following sentence:

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Appellant argues that the lack of credible evidence that he sexually assaulted the three victims even viewed in a light most favorable to the Commonwealth as the verdict winner cannot support any finding or reasonable inference of guilt beyond a reasonable doubt as the versions of events supplied by all three alleged victims are too bizarre and nonsensical to be sufficient to support the convictions against Appellant.

Appellant’s Brief at 29.

Again, we are constrained to conclude that Appellant’s issue, which

assails the credibility of the victims’ testimony, is actually a challenge to the weight of the evidence. As such, we must conclude that the issue is not

preserved due to Appellant’s failure to present a proper challenge to the weight of the evidence to the trial court. Therefore, we find that this issue attacking the weight of the evidence is waived. Pa.R.Crim.P. 607; Butler, 729 A.2d at 1140.

Appellant next argues that the jury’s verdict was against the weight of the evidence. Appellant’s Brief at 30-31. Appellant contends that the jury’s verdicts of guilty as to all counts was against the weight of the evidence because there was no credible testimony that he “sexually violated the alleged victims in any manner.” Id. at 30.

As we previously stated, in order to preserve for appellate review a claim that a verdict is against the weight of the evidence, the claim must first be raised before the trial court. Specifically, the issue must be raised

with the trial judge in a motion for a new trial either orally or in writing prior to sentencing, or in a post-sentence motion. Pa.R.Crim.P. 607. Butler, 729

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A.2d at 1140. As we observed, our review of the record reflects that

Appellant failed to raise any challenge to the weight of the evidence before the trial court. Accordingly, this issue is waived.

In his fourth issue, Appellant argues that the trial court erred in denying his motion in limine, which requested the dismissal of statutory

sexual assault charges. Appellant’s Brief at 31-35. In his motion to dismiss, Appellant explained that the statutory sexual assault charges brought against Appellant were for offenses committed during the years 2002

through 2014. Motion in Limine, 1/22/15, at 3. However, the statute for statutory sexual assault was amended and its current form became effective on February 21, 2012, which was while the offenses were ongoing. Id. As

Appellant observes, the trial court never formally ruled on the motion to dismiss the charges. Appellant’s Brief at 33.

Before we address the merits of this issue, we must determine whether Appellant preserved this claim for appeal. Pursuant to Pennsylvania

Rule of Appellate Procedure 302, issues that are not raised in the lower court are waived and cannot be raised for the first time on appeal. Pa.R.A.P.

302(a). Moreover, we have long held that “[a] claim which has not been raised before the trial court cannot be raised for the first time on appeal.”

Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa. Super. 2000). Even issues of constitutional dimension cannot be raised for the first time on appeal. Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008);

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Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super. 2006) (noting that “[a] theory of error different from that presented to the trial jurist is

waived on appeal, even if both theories support the same basic allegation of error which gives rise to the claim for relief.”). Thus, only claims properly presented in the trial court are preserved for appeal. In addition, it is an appellant’s obligation to demonstrate which appellate issues were preserved for review. Pa.R.A.P. 2117(c), 2119(e).

Our review of the record reflects that Appellant sought dismissal of the statutory sexual assault charges in his motion in limine filed immediately prior to trial. Motion in Limine, 1/22/15, at 3. The trial court heard oral

argument on Appellant’s request immediately prior to trial. N.T., 1/22/15, at 5. During the pretrial discussion, Appellant’s attorney explained to the trial court the intervening change in the statute, and the Commonwealth

requested permission to amend the information. Id. at 5-8. During the discussion with the trial court, the Commonwealth recommended addressing

any changes in the law on the verdict slip and explaining the situation to the jury prior to its deliberations. Id. at 8-10. Specifically, the Commonwealth suggested the following:

If that makes sense? And I’ll break down what, after the testimony comes in, Your Honor, I’ll break down the charges I believe we’ve provided testimony for, and then prepare the verdict slip accordingly. But I think the verdict slip should say: This charge, this victim, this date. And then the jury can say “guilty” or “not guilty” to that, to that charge as it is written.

- 11 - J-S68002-16 Id. at 10. The trial court then asked defense counsel whether she had a problem with the Commonwealth’s suggestion, and Appellant’s counsel specifically stated: No. I’m satisfied, Your Honor. The follow -- *** Yes, I think that addresses the issue. Id. The trial court then explained that it was, indeed, granting the Commonwealth’s motion to amend the information with regard to the charges of statutory sexual assault. Id. at 11-13. Because Appellant’s counsel acquiesced to the amendment of the information as proposed by the Commonwealth, Appellant cannot now argue that the trial court erred in permitting the amendment to the criminal information. Consequently, we are left to conclude that Appellant failed to preserve this issue for appellate review. In his fifth issue, Appellant again argues that the trial court erred in denying a portion of his motion in limine. Appellant’s Brief at 35-38. In particular, Appellant contends that the trial court erred in failing to preclude evidence presented by the Commonwealth pertaining to Appellant’s alleged use of controlled substances, to which Appellant admitted in a telephone conversation with one of the victims. It is well settled that “[t]he admission of evidence is within the sound discretion of the trial court, and will be reversed on appeal only upon a - 12 - J-S68002-16 showing that the trial court clearly abused its discretion.” Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc) (citing Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)). Abuse of discretion requires a finding of misapplication of the law, a failure to apply the law, or judgment by the trial court that exhibits bias, ill-will, prejudice, partiality, or was manifestly unreasonable, as reflected by the record. Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009). A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003). The basic requisite for the admissibility of any evidence in a case is that it be competent and relevant. Id. A trial court should find evidence admissible if it is relevant, that is “if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding a material fact.” Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006) (quoting Commonwealth v. Stallworth, 781 A.2d 110, 117-118 (Pa. 2001)). Pennsylvania Rule of Evidence 4024 expressly provides that “[a]ll relevant evidence is admissible, except as otherwise provided by law[,]” and ____________________________________________