In the Int. of: S.S., a Minor ( 2022 )

J-A28006-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.S., A MINOR :
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: No. 408 MDA 2021
Appeal from the Dispositional Order Entered February 17, 2021
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-JV-0000398-2020
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED: FEBRUARY 15, 2022
S.S., a minor, appeals1 from the dispositional order, entered in the Court
of Common Pleas of York County, adjudicating him delinquent on one count
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* Former Justice specially assigned to the Superior Court.
1 S.S. purports to appeal from the order denying his post-dispositional motion.
However, “[i]n a criminal action, [an] appeal properly lies from the judgment
of sentence made final by the denial of post-sentence motions.” See In the
Interest of J.D., 798 A.2d 210, 211 n.1 (Pa. Super. 2002) (in juvenile
matters appealable order is dispositional order, which is equivalent of
judgment of sentence in criminal matters); see also Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (“In a
criminal action, [an] appeal properly lies from the judgment of sentence made
final by the denial of post-sentence motions.”).
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each of involuntary deviate sexual intercourse (IDSI)2 and indecent assault.3
Upon review, we affirm.
K.H., the victim, lived with her Mother, sister, stepfather, and two
stepsiblings, one of whom was S.S.4 While they lived together, K.H. and S.S.
would play in S.S.’s room. During some of these playtimes, S.S. would make
K.H. touch her mouth to his penis. These “touchings” were always skin-to-
skin contact, but K.H. could not recall whether S.S. had clothing on during the
events. See N.T. Denial Hearing, 8/14/20, at 31.5 Sometimes, S.S. would
insert his penis inside of K.H.’s anus. When K.H. tried to leave these
encounters, S.S. would grab her arm and prevent her from exiting the room.
These events occurred until K.H. and her Mother moved to a new home in
February 2017, in York county.
After moving, K.H. adamantly refused to attend any outings with her
stepsiblings. K.H. became more reclusive and preferred to be alone in her
bedroom. In September 2018, K.H. and her mother saw a teenage girl who
was visibly pregnant. The next day, K.H. asked her mother how girls get
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2 18 Pa.C.S.A. § 3123(b).
3 18 Pa.C.S.A. § 3126(a)(7).
4These offenses took place between 2014 and 2017. During this time, K.H.
aged from 4 years old to 7, and S.S. aged from 11 years old to 14.
5 We note that this hearing is referred to as a “denial hearing” throughout
the record by the trial court and parties. However,
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pregnant. Mother, after some discussion, explained how pregnancy occurs.
The next day, K.H. told her mother that K.H. thought she was pregnant. K.H.
told her mother about the above-described events with S.S. K.H. then told
her stepfather as well.
The York County Child Advocacy Center (CAC) conducted two forensic
interviews of K.H. in October 2018 and October 2019. At the first interview,
K.H. indicated that she was not prepared to speak with the interviewers, and
the interview ended. However, at the second interview, K.H., who was nine
years old at the time, spoke with Kimberly Hine, a forensic interviewer with
CAC. During the interview, Hine conducted a “truth/lie” process to determine
whether K.H. could understand and speak the truth, which K.H. successfully
completed.6
On May 4, 2020, S.S. was charged with the above-mentioned offenses,
and, on August 14, 2020, the trial court conducted a denial hearing. On
September 1, 2020, S.S. filed a motion for post-adjudicatory relief, in which
he argued that the Commonwealth violated Brady7 by failing to disclose
Mother’s 25-year-old summary retail theft conviction prior to trial. The
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6 Ultimately, Hine was qualified as an expert at the denial hearing, and her
report was entered into evidence. N.T. Denial Hearing, 8/14/20, at 14, 18.
S.S. did not object to Hine’s qualifications nor to the admittance of her report.
Id.
7 Brady v. Maryland, 373 U.S. 83 (1963).
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Commonwealth filed a response, and, on October 13, 2020, the trial court
conducted a hearing on S.S.’s motion. On October 15, 2020, the court filed
an order denying S.S.’s motion.
On February 12, 2021,8 the court conducted a dispositional hearing via
Zoom, after which the court entered its dispositional order, which adjudicated
S.S. delinquent, provided that he would be placed on probation, and detailed
a list of fines, costs, and restitution he was ordered to pay. Subsequently,
S.S. filed a timely post-dispositional motion, in which he argued that the
Commonwealth had failed to present sufficient evidence for his convictions,
that K.H. was not competent to testify, and that the adjudication was against
the weight of the evidence. On March 15, 2021, the trial court denied S.S.’s
motion.
S.S. filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. On appeal, S.S.
raises the following issues for our review:
[1.] Did the [t]rial [c]ourt err when it denied [S.S.]’s request for
a new trial when [S.S.] was deprived [of] a fair adjudication
hearing and prejudiced by not having [Mother]’s crimen falsi
conviction and with enough notice prior to trial for [S.S.] to notify
the Commonwealth of his intent to use the conviction pursuant to
Pa.R.E. 609(b)(2)?
[2.] Did the [t]rial [c]ourt err when it denied [S.S.]’s request for
a new trial when [S.S.] was not afforded due process and deprived
[of] a fair adjudication hearing as a result of the Commonwealth’s
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8 The court’s dispositional order was not filed with the clerk of courts until
February 17, 2021.
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failure to turn over Brady material because the Commonwealth
was aware that the complainant made statements during one or
more interviews prior to trial that [S.S.] performed oral sex on the
complainant and failed to provide those statements to [S.S.],
which resulted in the inability of [S.S.] to present a complete
defense as a result of the Commonwealth’s violation of mandatory
disclosure rules and the evidence was material to guilt and
punishment?
[3.] Did the [t]rial [c]ourt err when it sustained the
Commonwealth’s objection to [S.S.]’s attempt to call an identified
character witness for the relevant character traits of [S.S.]’s
reputation[,] who was available and willing to testify on [S.S.]’s
behalf?
[4.] Did the [t]rial [c]ourt err when it considered the unsworn
testimony of the complainant and only fact witness presented by
the Commonwealth and thereafter accepted [the complainant’s]
inadmissible testimony in support of the findings made by the
[t]rial court that [S.S.] committed the acts of IDSI and [indecent
assault]?
[5.] Did the [t]rial [c]ourt err when it failed to make a searching
judicial inquiry as to mental capacity and competency of the
complainant, who was ten (10) years of age and testifying about
an incident that occurred no less than three (3) years and nine (9)
months prior, and thereafter accepted her inadmissible testimony
in support of the findings made by the [t]rial [c]ourt finding [that
S.S.] committed the acts of IDSI and [indecent assault]?
[6.] Did the [t]rial [c]ourt err when it denied [S.S.]’s request for
a new trial challenging the weight of the evidence because the
evidence presented was so tenuous, vague, and uncertain that the
adjudication of delinquency shocked the conscience when,
notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts denies justice?
[7.] Did the [t]rial [c]ourt err when it found that the delinquent
acts of IDSI and [indecent assault] were supported by sufficient
evidence that [S.S.] committed the act of putting his penis in the
complainant’s mouth and the act of putting his penis on the
complainant’s butt beyond a reasonable doubt when there was no
testimony or competent evidence that [S.S.]’s penis penetrated
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the complainant’s mouth or that [S.S.]’s penis touched the
complainant’s butt for the purpose of arousing sexual desire of
[S.S.] and/or complainant?
Brief for Appellant, at 1-2.9
In S.S.’s first claim, S.S. contends that he was deprived of a fair trial
because the Commonwealth failed to provide him with sufficient notice of
Mother’s prior crimen falsi conviction. Brief for Appellant at 5-7. S.S. argues
that the Commonwealth only gave him with 24-hours’ notice of Mother’s prior
conviction, which did not provide S.S. with enough time to serve the
Commonwealth with the mandatory prior notice of his intent to use Mother’s
prior conviction for impeachment purposes. Id. at 6.
“Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
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9 Preliminarily, we observe that the Commonwealth has objected to S.S.’s brief
as deficient for failure to include a statement of the factual history of this
appeal, and for raising an “extraordinary” number of claims. See
Commonwealth’s Brief at 24-27. We disagree. As discussed infra, not all of
S.S.’s claims are waived for deficient briefing. Rather, we conclude that
almost all of his waived claims are waived for failure to properly preserve
those claims before the trial court. While the absence of a statement of factual
history is a hindrance, it does not, on its own, wholly preclude appellate
review. See Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super.
1998) (“The lack of factual background and citation to the record, coupled
with the anemic state of the argument portion of [a]ppellant’s brief, represent
serious deviations from the briefing requirements of the Rules of Appellate
procedure.”). Furthermore, seven claims is not an extraordinary number of
claims to raise on appeal. Cf. Estate of Lakatosh, 656 A.2d 1378, 1379-80
(Pa. Super. 1995) (appellant’s 31 issues constituted “extraordinary” number
of claims, but this Court declined to quash on this basis). Accordingly, we
decline to quash S.S.’s appeal.
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its discretion.” Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.
2002). “An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias, prejudice, ill-will[,] or
partiality, as shown by the evidence of record.” Commonwealth v. Harris,
884 A.2d 920, 924 (Pa. Super. 2005).
Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). Pursuant to Pa.R.E.
401, evidence is relevant if “(a) it has the tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Pa.R.E. 401. “Evidence is relevant
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.” Drumheller, 808 A.2d at 904. “All
relevant evidence is admissible, except as otherwise provided by law.
Evidence that is not relevant is not admissible.” Pa.R.E. 402. “The court may
exclude relevant evidence if its probative value is outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Pa.R.E. 403.
Pa.R.E. 609 provides as follows:
(a) In General. For the purpose of attacking the credibility of
any witness, evidence that the witness has been convicted of a
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crime, whether by verdict or by plea of guilty or nolo contendere,
must be admitted if it involved dishonesty or a false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed since
the witness’s conviction or release from confinement for it,
whichever is later. Evidence of the conviction is admissible only
if:
(1) its probative value substantially outweighs its prejudicial
effect; and
(2) the proponent gives an adverse party reasonable written
notice of the intent to use it so that the party has a fair
opportunity to contest its use.
Pa.R.E. 609 (a)-(b).
When making this determination, the court must determine “the degree
to which the commission of the prior offense reflects upon the veracity of the
[witness],” the age and circumstances of the witness, the need for the
evidence to make the case, and any alternative means of attacking the
witness’s credibility. Commonwealth v. Palo, 24 A.3d 1050, 1057 (Pa.
Super. 2011)
Instantly, K.H.’s mother was convicted of summary retail theft 10 25
years prior to the instant appeal. See Order, 10/15/20, at 2. On October 13,
2020, the trial court conducted a hearing on whether the Commonwealth had
failed to promptly disclose Mother’s prior conviction, and on October 15, 2020,
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10 Summary retail theft is categorized as a crimen falsi offense for purposes
of Rule 609 impeachment. See Commonwealth v. Howard, 823 A.2d 911,
913 (Pa. Super. 2003).
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it issued an order in which it concluded that Mother’s prior conviction would
not have been admissible. See id. at 1-7. The trial court’s order states:
The primary witness for the Commonwealth, outside of the victim,
was the victim’s mother. The victim’s mother has a summary
conviction for retail theft . . . [which] was committed while the
victim’s mother was a juvenile[. The conviction] was 25 years old
as of the date of the denial hearing. [The] Commonwealth
provided 24 hours’ notice of the [mother’s] criminal record.
[S.S.’s] counsel complained that the notice was insufficient.
It should first be noted that this issue was not raised during the
denial hearing. In any case, the conviction was for a matter that
was so remote in time as to be of no consequence. The [c]ourt
found that the victim’s testimony as to two sexual acts
perpetrated upon her by [S.S. was] credible. Cross-examination
of the victim’s mother as to the retail theft would have made no
ultimate difference in the [c]ourt’s findings.
See id. at 2-3. The trial court then concluded that the probative value was of
“no consequence.” Id.
Our review of the record reveals that S.S. did not attempt to admit
evidence of Mother’s summary retail theft conviction until after the trial.11 As
highlighted above, the trial court reviewed the parties’ respective motions
regarding this claim, took evidence and exhibits, and concluded that Mother’s
25-year-old conviction had no probative value and would not have changed
its conclusion regarding S.S.’s culpability. See Order, 10/15/20, at 1-4.
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11 S.S. claims that he did not receive notice of the conviction, but concedes
in his argument that the Commonwealth provided notice of Mother’s
conviction. See Brief for Appellant, at 6.
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Based upon the foregoing, we discern no abuse of discretion on behalf of the
trial court in denying S.S.’s motion. See Drumheller, supra; Harris, supra.In S.S.’s second claim, he contends that he was deprived of a fair trial
because the Commonwealth violated Brady when it did not provide S.S. with
evidence favorable to his defense. Brief for Appellant at 7-8. In particular,
S.S. asserts that, in her CAC interviews, K.H. had stated S.S. performed oral
sex on her. Id. S.S. argues that this statement was not contained in any
discovery and could not have been obtained through the exercise of due
diligence, because it was made during an interview between K.H. and agents
of the Commonwealth. Id. S.S. claims that he suffered prejudice from this
non-disclosure, because K.H.’s credibility was of the utmost importance in this
case, and knowledge of this statement would have changed his approach in
cross-examining K.H. and Mother. Id. at 8.
Our Supreme Court has explained that
in order to establish a Brady violation, a defendant must show
that: (1) the evidence was suppressed by the state, either willfully
or inadvertently; (2) the evidence was favorable to the defendant
either because it was exculpatory or because it could have been
used for impeachment; and (3) the evidence was material in that
its omission resulted in prejudice to the defendant. However, the
mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome of
the trial, does not establish materiality in the constitutional sense.
Rather, evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confident in the outcome.
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Commonwealth v. Williams, 168 A.3d 97, 109 (Pa. 2017) (citations,
quotation marks, and brackets omitted).
Preliminarily, we disagree that this statement was favorable to S.S.’s
defense. Indeed, this statement goes directly against S.S.’s interests and his
defense at trial, because it details a third sexual offense allegedly perpetrated
by S.S. against K.H. Moreover, S.S. provided no discussion as to how
knowledge of this statement would have “changed” his cross-examination
approach in any way, let alone how it would have impacted K.H.’s credibility.
Thus, S.S. has failed to demonstrate how the evidence was favorable to him,
and what prejudice he suffered. See Williams, supra. Accordingly, this
claim lacks merit.
In S.S.’s third claim, he contends that the trial court erred in sustaining
the Commonwealth’s objection to S.S.’s character witness. Brief for Appellant,
at 8-10. S.S. asserts that, at trial, he had a character witness ready to testify
to his traits of peacefulness, nonviolence, and chastity. Id. at 9. S.S. argues
that the Commonwealth improperly objected that S.S. had not provided notice
of this witness. Id. S.S.’s asserts that the trial court erred in sustaining the
Commonwealth’s objection, because he is not required to provide notice to
the Commonwealth under Pa.R.E. 404. Brief for Appellant, at 8-10.
Preliminarily, we observe that S.S. has failed to preserve this claim
before the trial court and, thus, has waived it for our review. Our review of
the record reveals that S.S. attempted to introduce a character witness, and
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the Commonwealth objected. N.T. Denial Hearing, 8/14/20, at 114. The trial
court sustained the Commonwealth’s objection. Id. Immediately afterwards,
the following exchange occurred:
The Court: . . . I’m not going to allow the witness. Yeah. I don’t
see that his testimony adds to the fact if [S.S.] – I think we can
agree [S.S.] does not have a juvenile delinquency.
* * *
The Court: So[,] I would accept [that S.S.] has no juvenile
delinquency background, has no history of juvenile delinquency
with the system. The [c]ourt will accept that as a matter of fact
that that’s the case.
[Defense Counsel]: That’s fair
Id. at 115.
Pennsylvania Rule of Evidence 103 provides, in relevant part, as follows:
(a) Preserving a Claim of Error. A party may claim error in a
ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or motion in
limine; and
(B) states the specific ground, unless it was apparent from
the context
(b) Not Needing to Renew an Objection or Offer of Proof.
Once the court rules definitively on the record—either before or at
trial—a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.
Pa.R.E. 103 (a)-(b). Additionally, Pa.R.A.P. 302 provides that “[i]ssues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). “The absence of a contemporaneous objection
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below constitutes a waiver” of the claim on appeal. Commonwealth v.
Powell, 956 A.2d 406, 423 (Pa. 2008).
Based upon the foregoing, we conclude that S.S. has waived this claim
for our review. While S.S. initially sought to introduce the character witness,
the Commonwealth objected, and the trial court sustained that objection. N.T.
Denial Hearing, 8/14/20, at 112-15. The court then placed its rationale on
the record and S.S. did not voice any objections to the court’s ruling. Rather,
S.S. acquiesced to and accepted the court’s ruling as “fair.” Id. at 115.
Accordingly, S.S. has waived this claim.12 See Pa.R.E. 103; Pa.R.A.P. 302(a).
We will address S.S.’s fourth and fifth claims together, as he does so in
his brief. In his fourth claim, S.S. asserts that the trial court erred by
accepting K.H.’s testimony without swearing her in. Brief for Appellant, at 10.
In his fifth claim, S.S. contends that the trial court erred by failing to inquire
as to K.H.’s mental capacity and competency, where K.H. was 10 years old at
the time of the trial. Id. at 10-12. In support of this claim, S.S. contends
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12 Furthermore, we observe that S.S. does not assert, nor demonstrate, how
the trial court’s ruling prejudiced him. See Brief for Appellant, at 8-10.
Rather, he generally asserts that good character evidence is always
admissible, and baldly claims that the trial court erred in preventing his
character witness from testifying. See id. at 9-10. This too, is grounds for
waiver. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(“[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
meaningful fashion capable of review, that claim is waived.”).
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that K.H.’s alleged incompetency is evidenced by her inconsistent statements
at his trial. Id.A party who challenges the competency of a minor witness must prove
by clear and convincing evidence that the witness lacks “the minimal capacity
. . . (1) to communicate, (2) to observe an event and accurately recall that
observation, and (3) to understand the necessity to speak the truth.”
Commonwealth v. Delbridge, 855 A.2d 27, 40 (Pa. 2003). Generally,
“[c]ompetency of a witness is presumed, and the burden falls on the objecting
party to demonstrate incompetency.” Commonwealth v. D.J.A., 800 A.2d
965, 969 (Pa. Super. 2002). “A competency hearing is not concerned with
credibility. Credibility involves an assessment of whether or not what the
witness says is true; this is a question for the fact finder.” Delbridge, 855
A.2d at 40 (citation omitted). Additionally, “[a]n allegation that the witness’s
memory of the event has been tainted raises a red flag regarding competency,
not credibility.” Id. (emphasis added). Thus, it must be demonstrated that
a witness’s memory has been affected so that her recall of events may not be
dependable. Id.
Preliminarily, we observe that both of these claims are waived for failure
to preserve them before the trial court. With regard to K.H.’s competency,
the record reflects that S.S. made no objection throughout the trial, and had
an extensive opportunity to cross-examine K.H. See Pa.R.A.P. 302(a)
(“Issues not raised in the trial court are waived and cannot be raised for the
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first time on appeal.”); Commonwealth v. Williams, 900 A.2d 906, 909 (Pa.
Super. 2006) (“including an issue in a [Rule 1925(b) c]oncise [s]tatement
does not revive issues that were waived in earlier proceedings”).
With regard to his claim that K.H. was not sworn in at trial, S.S.’s brief
is entirely deficient in establishing this claim. See Johnson, 985 A.2d at 924
(“[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
meaningful fashion capable of review, that claim is waived”). “It is not the
role of this Court to formulate [an a]ppellant’s arguments for him.” Id. at
925. Additionally, the record is devoid of any timely objection regarding an
alleged failure to swear in K.H. See Pa.R.E. 103(a); Pa.R.A.P. 302(a).
Moreover, S.S. has not cited any authority that would render K.H.’s testimony
incompetent due to the alleged failure to swear in K.H. See Johnson, supra;
Pa.R.A.P. 2119(a) (requiring “discussion and citation of authorities as are
deemed pertinent”). Accordingly, both of these claims are waived.
Nevertheless, even if S.S. had not waived his challenge to K.H.’s
competency, we would conclude that it lacks merit. Initially, S.S.’s argument
hinges on perceived inconsistences in K.H.’s testimony, which is not
persuasive and mischaracterizes our competency analysis. Indeed,
inconsistencies in a witness’s statements generally go to the witness’s
credibility, not the witness’s competency. See Delbridge, supra.
Additionally, S.S. has not alleged that any taint occurred, nor has he
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demonstrated that K.H.’s testimony or memory was tainted. Moreover, we
observe that the trial court highlighted its consistent and repeated findings of
K.H.’s competency and credibility in its opinion. See Trial Court Opinion,
5/5/21, at 9-10, 12 (trial court highlighting previous orders and on-the-record
findings of K.H.’s competency and credibility). Accordingly, even if S.S. had
not waived this claim, we would conclude that it lacks merit.
In S.S.’s sixth claim, he contends that the verdict was against the weight
of the evidence. Brief for Appellant, at 12-14. In particular, S.S. contends
that the trial court found K.H. to be lacking in credibility and, therefore,
improperly considered K.H.’s testimony in rendering its verdict. Id. at 13-14.
S.S. argues that the trial court “cherry-picked” the testimony it chose to
believe from K.H. Id. at 14.
Our standard of review related to a challenge to the verdict as against
the weight of the evidence is well settled.
The weight of the evidence is exclusively for the finder of fact[,]
who is free to believe all, part, or none of the evidence and to
determine the credibility of witnesses. An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, we
may only reverse the . . . verdict if it is so contrary to the evidence
as to shock one’s sense of justice.
Commonwealth v. Small, 741 A.2d 666, 672-73 (Pa. 1999). Additionally,
where the trial court has ruled on the weight claim, an appellate court’s role
is not to consider the underlying question of whether the verdict is against the
weight of the evidence; rather, our appellate review is limited to whether the
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trial court abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).
The trial court addressed S.S.’s weight claim as follows:
Having carefully considered both the testimony presented to the
[c]ourt and the exhibits admitted into evidence at the denial
hearing, the Court finds that [S.S.]’s adjudications are not against
the weight of the evidence. As stated previously, the [c]ourt
concluded that [K.H.] was able to supply credible and sufficient
detail. . . . In particular, [K.H.]’s testimony was credible as to at
least one incident of [S.S.] inserting his penis into her mouth and
rubbing his penis against her naked buttocks.
While there was no physical evidence presented in this case as to
the delinquent acts committed by [S.S.], there does not need to
be such evidence. . . . [T]he [c]ourt does not find that the
adjudications of [S.S.] are so contrary to the evidence as to shock
one’s sense of justice.
Trial Court Opinion, 5/5/21, at 12-13 (citations omitted).
Our review of the record confirms that the trial court did not abuse its
discretion when it concluded that the verdict was not against the weight of the
evidence. See Champney, supra. Moreover, this Court will not reweigh
evidence. See id.; see also Commonwealth v. Koch, 39 A.3d 996, 1001
(Pa. Super. 2011) (reiterating it is not position of this Court to “reweigh the
evidence or substitute our own judgment for that of the factfinder”).
Additionally, as we highlighted above, the trial court repeatedly found K.H. to
be credible, despite S.S.’s bald assertion to the contrary. See Trial Court
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Opinion, 5/5/21, at 9-10, 12. Discerning no abuse of discretion, this claim
fails.13
In S.S.’s seventh claim, he contends that the trial court erred in
concluding that the Commonwealth had presented sufficient evidence of IDSI
and indecent assault. Brief for Appellant, at 14-17. S.S. asserts that, as
argued in his fifth claim, K.H. was not competent to testify and, thus, the trial
court erred in relying on her testimony. Id. at 15-16. Additionally, S.S.
argues that the inconsistencies in K.H.’s testimony made it unreliable and
incapable of supporting the facts underlying his convictions. Id. at 16-17.
Our standard of review when reviewing a challenge to the sufficiency of
the evidence is as follows:
[W]hether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for a fact-finder.
In addition, we note that the facts and circumstances established
by the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder 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. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence received must be considered.
Finally, the [trier] of fact[,] while passing upon the credibility of
____________________________________________
13 To the extent that S.S. claims, again, that the trial court relied on
incompetent or unsworn testimony, as we discussed above, he has waived
these challenges by failing to preserve them in a timely and contemporaneous
objection at trial. See Williams, supra.- 18 -
J-A28006-21
witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation
omitted).
At the outset we note that S.S. has made no specific challenges to either
crime, or, more importantly, to any of the elements of either crime of which
he was convicted. Indeed, both his Rule 1925(b) concise statement and his
appellate brief are devoid of these required specifications. See
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (defendant
waived sufficiency claim by failing to specify which elements he was
challenging in concise statement and appellate brief, and by failing to cite to
legal authority other than general standard of review); see also Johnson,
supra (same). Additionally, we note that S.S.’s brief includes only a citation
to the standard of review. Accordingly, S.S. has waived this claim. See
Johnson, supra.14
Order affirmed.
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14 Even if S.S. had not waived this claim, we would conclude that S.S.’s claim
lacks merit. S.S.’s entire sufficiency argument hinges on whether K.H. was
competent to testify, and that K.H.’s testimony was inconsistent. As discussed
above, S.S. has waived his challenge to K.H.’s competency. Additionally,
S.S.’s contention regarding K.H.’s credibility sounds in a challenge to the
weight of the evidence, which we have already addressed above. See Smith,
supra.
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J-A28006-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/15/2022
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