Com. v. Lowery, W. ( 2019 )

J-S68010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM LOWERY :
:
Appellant : No. 1848 WDA 2017
Appeal from the Judgment of Sentence November 9, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002846-2017
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 24, 2019
Appellant, William Lowery, appeals from the judgment of sentence
entered in the Court of Common Pleas of Allegheny County on November 9,
2017. We affirm.
The trial court summarized the procedural history of this case as follows:
On August 17, 2017, a jury convicted Appellant, William
Lowery, of three counts of Aggravated indecent Assault of a Child,
one count of Criminal Solicitation —Involuntary Deviate Sexual
Intercourse (IDSI) with a Child, three counts of Endangering the
Welfare of a Child (EWOC), three counts of Corruption of Minors,
[three1] counts each of Indecent Assault: Person Less than 13
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1 The trial court opinion references six counts of indecent assault – person
less than 13 years of age. Trial Court Opinion, 2/14/18, at 2. The Sentencing
Order, however, states that for the “offense disposition” of counts 14, 15, and
16, each of which were for indecent assault – person less than 13 years of
age, that the “charge changed.” Sentencing Order, 11/7/17, at 2. Thus, there
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* Former Justice specially assigned to the Superior Court.
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years of age, and an additional three counts of Indecent Assault:
Person Less than 13 years of age (course of conduct).[2] Appellant
was sentenced on November 7, 2017 in the aggregate to 14.5 to
29 years of incarceration with five years of consecutive probation.
This Court denied Post Sentence Motions on November 9, 2017
and Appellant filed a Notice of Appeal on December 7, 2017.
Appellant filed a Statement of Errors Complained of on Appeal on
January 22, 2018.
Trial Court Opinion, 2/14/18, at 2 (footnote omitted).
Appellant presents the following issue for our review: “Did the trial court
err when it denied Appellant’s Motion for Judgment of Acquittal where the
Commonwealth failed to present sufficient evidence to prove beyond a
reasonable doubt that Appellant sexually assaulted any of the victims in this
matter?” Appellant’s Brief at 4. As such, Appellant purports to challenge the
sufficiency of the evidence supporting his convictions.
The standard for evaluating sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of the evidence
is whether 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 the fact-finder[’s].
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
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were only three counts of indecent assault of person less than 13 years of age.
Remaining counts 17, 18, and 19 indicate convictions for indecent assault of
person less than 13 years of age – course of conduct. Id.
2 18 Pa.C.S. §§ 3125(b), 902(a), 4304(a), 6301(a)(1), and 3126(a)(7),
respectively.
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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 actually received must be
considered.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
A person is guilty of aggravated indecent assault of a child if he “engages
in penetration, however slight, of the genitals or anus of a complainant with a
part of the person’s body for any purpose other than good faith medical,
hygienic or law enforcement procedures...without the complainant’s
consent...and the complainant is less than 13 years of age.” 18 Pa.C.S.
§ 3125 (a)(1) and (b). A defendant is guilty of criminal solicitation to commit
a crime “if with the intent of promoting or facilitating its commission he
commands, encourages or requests another person to engage in specific
conduct which would constitute such crime or an attempt to commit such
crime or which would establish his complicity in its commission or attempted
commission.” 18 Pa.C.S. § 902(a). “Involuntary deviate sexual intercourse
with a child” is defined as follows: “A person commits involuntary deviate
sexual intercourse with a child, a felony of the first degree, when the person
engages in deviate sexual intercourse with a complainant who is less than 13
years of age.” 18 Pa.C.S. § 3123(b). Involuntary deviate sexual intercourse
“occurs when the actor, by physical compulsion or threats thereof, coerces the
victim to engage in acts of anal and/or oral intercourse.” Commonwealth v.
Zingarelli, 839 A.2d 1064, 1069 (Pa. Super. 2003).
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Pursuant to 18 Pa.C.S. § 4304(a)(1), a parent, guardian or other person
supervising the welfare of a child under 18 years of age, commits the offense
of EWOC “if he knowingly endangers the welfare of the child by violating a
duty of care, protection or support.” A person is guilty of the offense of
corruption of minors when he engages in any act that “corrupts or tends to
corrupt the morals of any minor less than 18 years of age....” 18 Pa.C.S.
§ 6301(a)(1). A person is guilty of indecent assault of a person less than
thirteen years of age if he “has indecent contact with the complainant [or]
causes the complainant to have indecent contact with [him]” if “the
complainant is less than 13 years of age.” 18 Pa.C.S. § 3126(a)(7). “Indecent
contact” is defined as “[a]ny touching of the sexual or other intimate parts of
the person for the purpose of arousing or gratifying sexual desire, in either
person.” 18 Pa.C.S. § 3101. When there has been “a course of conduct of
indecent assault by the person” the offense is graded as a felony of the third
degree. 18 Pa.C.S. § 3126(b)(3)(ii).
Before considering the merits of Appellant’s claim on appeal, we
consider whether he has preserved it. Upon review, we determine that, for
multiple reasons, Appellant has waived his sufficiency challenge.
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First, Appellant failed to preserve this claim in his Pa.R.A.P. 1925(b)
statement. Appellant included the following allegation in his statement:3
The trial court erred when it denied [Appellant’s] Motion for
Judgement [sic] of Acquittal where the Commonwealth failed to
present evidence sufficient to prove beyond a reasonable doubt
that [Appellant] sexually assaulted any of the victims in this
matter;
Pa.R.A.P. 1925(b) Statement, 1/22/18, at 1. As noted, Appellant was
convicted of numerous counts, all of which related to claims of sexual assault
and involved three different victims. As outlined above, each offense consists
of multiple elements. Here, Appellant failed to identify the conviction(s) or
the specific element(s) of the offense(s) he was challenging as not established
by sufficient evidence. Instead, he made a vague, bald assertion regarding
his challenge to the sufficiency of the evidence.
Our Supreme Court has held that “[a]ny issues not raised in a [Rule]
1925(b) statement will be deemed waived.” Commonwealth v. Hill, 16 A.3d
484, 494 (Pa. 2011) (quoting Commonwealth v. Lord, 719 A.2d 306, 309
(Pa. 1998)). An appellant’s Rule 1925(b) Statement “shall concisely identify
each ruling or error that the appellant intends to challenge with sufficient
detail to identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii).
A Rule 1925(b) statement “which is too vague to allow the court to identify
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3 The second claim of error raised in Appellant’s Pa.R.A.P. 1925(b) statement
challenged his sentence. Appellant has not pursued the sentencing issue on
appeal.
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the issues raised on appeal is the functional equivalent of no [Rule 1925(b)]
Statement at all” and will result in waiver. Commonwealth v. Dowling, 778
A.2d 683, 686–687 (Pa. Super. 2001).
When an appellant challenges the sufficiency of the evidence, this Court
has made clear our requirement that “an appellant’s Rule 1925(b) statement
must state with specificity the element or elements upon which the appellant
alleges that the evidence was insufficient.” Commonwealth v. Garland, 63
A.3d 339, 344 (Pa. Super. 2013). “Such specificity is of particular importance
in cases where, as here, appellant was convicted of multiple crimes each of
which contains numerous elements that the Commonwealth must prove
beyond a reasonable doubt.” Commonwealth v. Gibbs, 981 A.2d 274, 281
(Pa. Super. 2009); see also Commonwealth v. Williams, 959 A.2d 1252,
1257-1258 (Pa. Super. 2008) (sufficiency-of-the-evidence challenge raised in
a Pa.R.A.P. 1925(b) statement, asserting that “[t]here was insufficient
evidence to sustain the charges of Murder, Robbery, [violation of uniform
firearms act (‘VUFA’)] no license, and VUFA on the streets” was inadequate to
preserve appellant’s insufficiency claim.).
Herein, Appellant’s bald assertion in his Pa.R.A.P. 1925(b) statement is
inadequate to preserve his sufficiency claim for review. Thus, Appellant’s
failure to file an adequately specific Pa.R.A.P. 1925(b) statement results in
waiver of his issue.
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Assuming arguendo that Appellant’s claim was not waived on the above-
referenced basis, we would find it waived for failure to develop his sufficiency
claim on appeal. In his brief, Appellant fails to develop any argument
regarding the element or elements of the offense or offenses that the
Commonwealth allegedly failed to establish. Instead, Appellant simply and
broadly, in one paragraph, asserts that there was no corroborating physical
evidence of the assaults and that the testimony of the victims is not credible.
Appellant’s Brief at 10-11. “The failure to develop an adequate argument in
an appellate brief may result in waiver of the claim under Pa.R.A.P. 2119.”
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007)
(internal citation, quotation marks, and brackets omitted). “While this Court
may overlook minor defects or omissions in an appellant’s brief, we will not
act as his or her appellate counsel.” Commonwealth v. Freeman, 128 A.3d
1231, 1249 (Pa. Super. 2015). Thus, Appellant’s failure to develop a sufficient
legal argument in support of his claim results in waiver of this issue.4
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4 Even if Appellant’s sufficiency claim could survive the deficiencies we have
identified, we note that Appellant would not be entitled to relief. Appellant’s
argument that there was no physical evidence corroborating the victims’
statements is of no merit. There is no requirement that physical evidence
exist in order to sustain a conviction. This Court has long-recognized “that
the uncorroborated testimony of a sexual assault victim, if believed by the
trier of fact, is sufficient to convict a defendant, despite contrary evidence
from defense witnesses.” Commonwealth v. Charlton, 902 A.2d 554, 562
(Pa. Super. 2006). Thus, the testimony of the witnesses would have been
sufficient to convict Appellant.
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Moreover, Appellant’s argument challenging the victims’ credibility goes
to the weight of the evidence, not the sufficiency of the evidence. A
sufficiency-of-the-evidence review does not include an assessment of the
credibility of the testimony offered by the Commonwealth. 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. Therefore,
we find the Appellant has blurred the concepts of weight and sufficiency of the
evidence, and in fact, is raising a weight of the evidence claim.
While Appellant presented a weight-of-the-evidence claim in his post-
sentence motion, he failed to present or develop that claim in his appellate
brief. Because Appellant has not raised a weight-of-the-evidence challenge in
his Pa.R.A.P. 1925(b) statement and has not developed an argument
regarding the weight of the evidence on appeal, we find that Appellant has
waived any such contention.5 Thus, for the above-stated reasons, Appellant
has waived his sufficiency of the evidence claim and is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
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5 We further note that “[r]esolving contradictory testimony and questions of
credibility are matters for the finder of fact.” Commonwealth v. Miller, 172
A.3d 632, 642 (Pa. Super. 2017). “It is well-settled that we cannot substitute
our judgment for that of the trier of fact.” Id.-8-
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2019
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