The opinion
J-A06031-20
2020 PA Super 80
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RODNEY MCGHEE :
:
Appellant : No. 1986 EDA 2018
Appeal from the Judgment of Sentence Entered April 25, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007992-2015
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MARCH 31, 2020
Appellant Rodney McGhee appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County on April 25,
2018. Following our review, we affirm.
The trial court set forth the relevant facts and procedural history herein
as follows:
FACTS
[Victim] [D.R][1]
was seven years old when she and her two
siblings moved in with her aunt, [A.R.] and her daughter.[2]
03/31/17 N.T. at 31-33; 04/03/17 N.T. at 33-34.1 Sometime
around 2002, Appellant moved into the home as well after
beginning a relationship with [A.R.]. 03/31/17 N.T. at 34;
04103/17 NJ. at 35. [Victim]'s aunt worked long hours during the
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* Former Justice specially assigned to the Superior Court.
1 In order to protect the privacy of the Victim, we have replaced her name and
that of family members who share her last name with initials.
2 D.R. was born in November of 1991. The record reveals that when she was
seven years old, her father was incarcerated, and her mother passed away.
N.T., 4/3/17 at 32-33.
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night as a CNA. 03/31/17 N.T. at 35. While [Victim]'s aunt was at
work, Appellant would occasionally watch the children. 04/03/17
N.T. at 36-37.
When the [Victim] was nine, Appellant began tickling the
[Victim] on her vagina outside of her clothing. 04/03/17 N.T. at
38. Appellant later began instructing the [Victim] to come into his
bedroom. Id. at 39. On one occasion, [Victim] and Appellant were
watching a movie and eating food when Appellant began to touch
her breasts, buttocks, and vaginal areas. Id. N.T. at 39-40.
Appellant lubricated his penis with baby oil and penetrated
[Victim] Id. at 41. After this occurrence, sexual acts between
[Victim] and Appellant continued for a couple of years. Id. at 41-
42. Appellant also made [Victim] perform oral sex on him, and he
also performed oral sex on her. Id. at 44 45. Appellant told
[Victim] that her aunt never cared about her or her siblings and
that her aunt wouldn't believe the allegations if she ever told her.
Id. at 47.
When [Victim] was thirteen, Appellant became jealous that
she was talking to younger guys, which made [Victim] no longer
interested in having sexual relations with him. Id. at 47-48. At this
point, [Victim] made up a lie to her aunt so Appellant could be
removed from the home. Id. at 48. In 2015, [Victim] confessed to
her aunt about her sexual relationship with Appellant after her
aunt tricked her into thinking he had already disclosed the
information to her. Id. at 51. [Victim]'s aunt became suspicious of
their relationship when Appellant began calling her home years
after they had broken up. 03/31/17 N.T. at 40. After [Victim]
confessed, the police were called and she was taken to the Special
Victims Unit. 04/03/17 N.T. at 53.
____
1N.T. refers to the Notes of Testimony taken at the jury trial before
the Honorable Gwendolyn N. Bright on March 30 - April 4, 2017.
Trial Court Opinion, filed 12/21/18, at 1-2.
Following a jury trial, on April 4, 2017, Appellant was convicted of Rape
of a Minor, Unlawful Contact with a Minor, Involuntary Deviate Sexual
Intercourse (IDSI), Statutory Sexual Assault, Endangering Welfare of
Children, and Indecent Assault. On April 25, 2018, Appellant was sentenced
to an aggregate term of six (6) years to twelve (12) years in prison, to be
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followed by seventeen (17) years of probation and lifetime registration.
Appellant filed his Motion for Reconsideration of Sentence on May 6, 2018,
wherein he challenged, inter alia, the weight of the evidence to sustain his
convictions. See ¶ 4. The trial court denied Appellant’s post sentence motion
in its Order entered on May 9, 2018.
Appellant filed a timely appeal on May 11, 2018, and the trial court
issued its Order pursuant to Pa.R.A.P. 1925 on August 1, 2018. Appellant
filed his six-page concise statement of matters complained of on appeal on
August 21, 2018. Therein, Appellant raised seven (7) allegations of error,
several of which included subissues.3 The trial court issued its Rule 1925(a)
Opinion wherein it found no merit to any of the claims on December 21, 2018.
____________________________________________
3 We remind Appellant that where a Rule 1925(b) Statement does not identify
sufficiently the issues raised on appeal, this Court has found waiver of all
issues on appeal and explained as follows:
In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1999),
the Pennsylvania Supreme Court specifically held that “from this
date forward, in order to preserve their claims for appellate
review, Appellants must comply whenever the trial court orders
them to file a Statement of Matters Complained of on Appeal
pursuant to [Pa.R.A.P.] 1925.” Lord, 719 A.2d at 309. “Any issues
not raised in a 1925(b) statement will be deemed waived.” Id.
This Court explained in Riley v. Foley, 783 A.2d 807, 813
(Pa.Super. 2001), that Rule 1925 is a crucial component of the
appellate process because it allows the trial court to identify and
focus on those issues the parties plan to raise on appeal. This
Court has further explained that “a Concise Statement which is
too vague to allow the court to identify the issues raised on appeal
is the functional equivalent to no Concise Statement at all.”
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super.
2001). “Even if the trial court correctly guesses the issues
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In his appellate brief, Appellant presents the following Statement of the
Questions Involved:
1. Whether the trial court judge abused her discretion by
exercising a judgment that was not only erroneous, but was also
manifestly erroneous in the court’s ruling that:
____________________________________________
Appellants raise[ ] on appeal and writes an opinion pursuant to
that supposition the issues [are] still waived.” Commonwealth
v. Heggins, 809 A.2d 908, 911 (Pa.Super. 2002).
Kanter v. Epstein, 866 A.2d 394, 400 (Pa.Super. 2004), appeal denied, 584
Pa. 678, 880 A.2d 1239 (2005), cert. denied, Spector, Gadon & Rosen, P.C.
v. Kanter, 546 U.S. 1092, 126 S.Ct. 1048, 163 L.Ed.2d 858 (2006). We have
further stated:
When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review. When an
appellant fails adequately to identify in a concise manner the
issues sought to be pursued on appeal, the trial court is impeded
in its preparation of a legal analysis which is pertinent to those
issues.
In other words, a Concise Statement which is too vague to
allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all. While
[Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)]
and its progeny have generally involved situations where an
appellant completely fails to mention an issue in his Concise
Statement, for the reasons set forth above we conclude that Lord
should also apply to Concise Statements which are so vague as to
prevent the court from identifying the issue to be raised on
appeal....
Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa.Super. 2006) (quoting
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001)).
Herein, Appellant’s voluminous concise statement made it challenging
to discern whether he raised therein the issues he presents in his appellate
brief. Notwithstanding, Appellant did include in his concise statement the
first two claims he develops on appeal; therefore, we decline to find those
issues waived.
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A) The Department of Health Services (DHS) records of
the Victim’s incarceration were not to be produced and
reviewed or that the [c]ourt was to proceed without the
production of those records.
B) By permitting a Philadelphia Police Detective to give
expert opinion testimony as to the concept of “grooming”
when that officer was never qualified to be an expert witness;
C) By not permitting defense counsel to cross examine’
[sic] the Victim’s aunt and the Victim as to when a child
molester who had recently been released from prison was
allowed to reside at the same residence; and
D) By not permitting defense counsel to examine the
Victim’s aunt and the Victim to explore the fact that men were
sneaking into their residence through the Victim’s window.
2. The verdict rendered against the Appellant was against the weight
of the evidence especially where defense counsel brought out so
many falsehoods that the Victim’s aunt engaged in through
trickery and deception in order to manipulate the Victim into
telling the story that she did about [Appellant].
3. The Pennsylvania Supreme Court is in the process of ruling on the
constitutionality of the Sexual Offender’s Registration and
Notification Act (SORNA) as a result may rule that the ten (10)
year period of supervision that [Appellant] was sentenced to after
his period of incarceration has ended is also unconstitutional,
thereby requiring [Appellant] to be remanded to the trial court
level for resentencing.
Appellant’s Substitution Brief at 4-5.
Appellant’s first issue presents numerous challenges to the trial court’s
exercise of its discretion pertaining to evidentiary issues. Specifically,
Appellant avers the trial court abused its discretion in failing to review and
rule upon the admissibility of the victim’s purported DHS mental health
records, in allowing a detective to provide what Appellant deems to be an
expert opinion, and in sustaining two objections made by the Commonwealth
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in response to defense counsel’s questioning. See Brief for Appellant at 11-
31.
In reviewing evidentiary challenges, we note:
[o]ur standard of review regarding the admissibility of evidence is
an abuse of discretion. The admissibility of evidence is a matter
addressed to the sound discretion of the trial court and ... an
appellate court may only reverse upon a showing that the trial
court abused its discretion. An abuse of discretion is not a mere
error in judgment but, rather, involves bias, ill will, partiality,
prejudice, manifest unreasonableness, or misapplication of law.
Commonwealth v. Collins, 70 A.3d 1245, 1251-1252 (Pa.Super. 2013),
appeal denied, 80 A.3d 774 (2013) (citations and quotations omitted).
In his concise statement, Appellant averred the trial court had erred in
failing to allow the defense to produce any DHS records and that such evidence
“would have been relevant to helping the trier of fact determine whether those
records were helpful in determining whether [Appellant] was guilty or
innocent.” See Defendant’s Statement of Matters Complained of on Appeal
Pursuant to Rule 1925(B) of the Rules of Appellate Procedure statement at 4,
¶ 3(d). (unnumbered). In his appellate brief, Appellant asserts he had been
prejudiced by the trial court’s failure to require the production of those
documents.
A review of the record reveals that when the trial court asked defense
counsel to produce the records from DHS he sought to have reviewed, counsel
indicated he did not have them because he “pulled [the] subpoena” although
he “might send the subpoena back.” N.T., 3/30/17, at 12. The trial court
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responded, “That’s up to you. But at this point I really don’t have anything
[to] evaluate.” Id. at 13. Thus, Appellant’s assertion the trial court “refused”
to review DHS records pertaining to the victim is refuted by the record.
Moreover, it was not the job of the trial court to require Appellant to submit
records for its review when it did not foreclose counsel from doing so;
therefore, any resulting prejudice from counsel’s failure to do so cannot be
attributed to the trial court.
Appellant next baldly argues Detective Carol Farrell provided an expert
opinion on the concept of “grooming” a victim, despite the trial court’s prior
ruling that she would not be proffering an expert opinion. The relevant
testimony is as follows:
BY MS. RUDOPH:
Q. Now, detective, have you received during the course of
your time in Special Victims Unit and the course of your training,
have you received information on the concept called grooming?
A. Yes.
Q. All right. And can you just describe generally what
grooming is?
MR. CAPONE: Objection, again, Your Honor.
MS. RUDOLPH: Your Honor, I think this was addressed in
our motion.
THE COURT: Overruled.
BY MS. RUDOLPH:
Q. You can answer the question, detective.
A. Okay. Grooming is when a predator identifies a child who
is a potential victim, gains their trust, and then he essentially
begins the assault.
Q. Are there any specific things that are involved in
grooming?
A. First, generally, they like to identify a potential victim. So
depending on where they go on their -
THE COURT: I'm going to sustain as to this.
MR. CAPONE: Thank you, Your Honor.
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MS. RUDOLPH: That's fine. Your Honor.
THE COURT: Even though there's no objection, based on
previous discussions. So that's stricken.
MS. RUDOLPH: Yes, Your Honor. Those are all the questions
I have for the detective. Thank you.
THE COURT: All right. You may cross-examine.
MR. CAPONE: Thank you, Your Honor. Can you instruct the
jury when you strike something, Your Honor. I don't know if they
know what that means.
THE COURT: I instructed them during the preliminary
instructions[.]
MR. CAPONE: Okay.
N.T. 3/31/17, at 24-25; see also Brief for Appellant at 21-22.
In the single page of argument Appellant devotes to this issue in his
appellate brief, he posits that the aforementioned testimony constituted an
impermissible expert opinion in that “it gave the Commonwealth a kind of
authoritativeness that an expert can give to the prosecution.” Brief of
Appellant at 24. We disagree, for Detective Farrell’s one sentence definition
of “grooming” was in response to a request for her to provide a “general”
description of the concept. Significantly, the trial court prevented any further
discussion pertaining to more “specific things.” As the trial court observes:
Appellant also alleges that the [c]ourt erred in “permitting
Detective Carol Farrell of the Sex Offender Unit (SVA) to testify to
the concept of ‘grooming’ [], all of which constituted expert
testimony.” The [c]ourt did not allow the detective to form an
expert opinion on grooming. In fact, that testimony was
specifically prohibited. Pennsylvania Rule of Evidence 701 outlines
what constitutes opinion testimony by lay witnesses. “If the
witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are rationally based on the perception of the
witness, and helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.” Pa.R.E. 701.
The detective was only permitted to testify as to what the term
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means, she was not permitted to opine that grooming had
occurred in this case. The jury was able to make the ultimate
determination based on the detective's testimony, but the
detective did not opine that Appellant groomed the Complainant.
Trial Court Opinion, filed 12/21/18, at 7-8.
Appellant next contends the trial court committed reversible error in
refusing to permit the jury to hear testimony that “what Appellant believed to
be a convicted child molester” had been residing in her home prior to the time
in which Appellant resided there. Appellant argues such information “would
have been relevant to demonstrating the kind of household that [Victim] grew
up in, prior to [Appellant’s] arrival.” Brief for Appellant at 26. The trial court
found that such evidence was irrelevant as it pertained to the Victim’s
allegations against Appellant and that it “would simply be used to either
assassinate the character of the [Victim] or to confuse the issues with the
jury.” Trial Court Opinion, filed 12/21/18, at 7. We agree.
In general, relevant evidence, i.e., evidence that 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, is admissible. However,
relevant evidence may be excluded if its probative value is
outweighed by the likelihood of unfair prejudice. Admission of
evidence rests within the sound discretion of the trial court, which
must balance evidentiary value against the potential dangers of
unfairly prejudicing the accused, inflaming the passions of the
jury, or confusing the jury. A trial court's ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.
Commonwealth v. Wilson, 147 A.3d 7, 15 (Pa.Super. 2016) (citations
omitted).
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We begin by noting that Appellant’s brief contains no citations to case
law in support of his contention that evidence of an alleged convicted child
molester’s residence in A.R.’s home should have been admitted to counter the
Victim’s testimony pertaining the Appellant’s contact with her. Where an
appellant does not include citation to pertinent case law or other authority in
support an argument, he or she waives the claim. Id. (citing Commonwealth
v. Hernandez, 39 A.3d 406, 412 (Pa.Super. 2012).
Moreover, even if Appellant had not waived this claim, we would discern
no abuse of discretion on the trial court’s part in concluding that the effect of
the testimony would have been more prejudicial than probative and may have
confused the jury. Appellant proffered no evidence that the “convicted child
molester,” in fact, existed, and in his appellate brief he refers to this individual
as one “whom he believed to be a convicted child molester.” Id. at 25
(emphasis added). While A.R. testified that her ex-husband’s brother had
resided in her home for approximately one week following his release from jail
but prior to the time Appellant began living there, no evidence was presented
as to why he had been imprisoned. N.T., 4/3/17, at 7-78.
Absent such evidence, testimony regarding this individual’s residence
only would have led to speculation on the part of the jury and detracted from
the issues before it which concerned the victim’s allegations against Appellant.
Moreover, this evidence was properly excluded because it was not relevant.
This Court has held that a witness may not be contradicted on a collateral
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matter such as an allegation that a victim previously had been sexually abused
by another individual, for such allegation does bear directly on whether or not
the appellant sexually abused that victim. Commonwealth v. Holder, 815
A.2d 1115, 1119 (Pa.Super. 2003), appeal denied, 573 Pa. 703, 827 A.2d 430
(2003). Accordingly, this claim would garner Appellant no relief.
In the final subpart of his first issue, Appellant asserts defense counsel
should have been permitted to cross-examine the Victim regarding the fact
that young men had been sneaking into her bedroom window at night when
her aunt was not at home. Appellant claims the Victim’s prior sexual activity
was not prohibited by the Rape Shield Law4 because, “it was relevant to the
____________________________________________
4 The relevant statute reads as follows:
§ 3104. Evidence of victim's sexual conduct
(a) General rule.--Evidence of specific instances of the alleged victim's
past sexual conduct, past sexual victimization, allegations of past sexual
victimization, opinion evidence of the alleged victim's past sexual conduct,
and reputation evidence of the alleged victim's past sexual conduct shall
not be admissible in prosecutions of any offense listed in subsection (c)
except evidence of the alleged victim's past sexual conduct with the
defendant where consent of the alleged victim is at issue and such
evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.--A defendant who proposes to offer
evidence of the alleged victim's past sexual conduct, past sexual
victimization, allegations of past sexual victimization, opinion evidence of
the alleged victim's past sexual conduct and reputation evidence of the
alleged victim's past sexual conduct pursuant to subsection (a) shall file a
written motion and offer of proof at the time of trial. If, at the time of trial,
the court determines that the motion and offer of proof are sufficient on
their faces, the court shall order an in camera hearing and shall make
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kind of activity that was going on at the Victim’s house and that [Appellant]
tried to put a stop to it.” Brief for Appellant at 30-31. In disposing of this
issue, the trial court determined that such an attempt by the defense to
impugn the Victim's character would have had a more prejudicial than
probative effect. Trial Court Opinion, filed 12/21/18, at 7.
We will reverse a trial court's ruling on the admissibility of
evidence of the sexual history of a sexual abuse complainant only
where there has been a clear abuse of discretion. An abuse of
discretion is not merely an error of judgment. An abuse of
discretion occurs where the record shows that the trial court, in
reaching a conclusion, overrides or misapplies the law, or
exercises its judgment in a manifestly unreasonable manner or as
the result of partiality, prejudice, bias, or ill will.
____________________________________________
findings on the record as to the relevance and admissibility of the proposed
evidence pursuant to the standards set forth in subsection (a).
(c) Applicability.--This section shall apply to prosecutions of any of the
following offenses, including conspiracy, attempt or solicitation to commit
any of the following offenses, enumerated in this title:
Chapter 27 (relating to assault).
Chapter 29 (relating to kidnapping).
Chapter 30 (relating to human trafficking).
Chapter 31 (relating to sexual offenses).
Section 4302 (relating to incest).
Section 4304 (relating to endangering welfare of children), if the offense
involved sexual contact with the victim.
Section 6301(a)(1)(ii) (relating to corruption of minors).
Section 6312(b) (relating to sexual abuse of children).
Section 6318 (relating to unlawful contact with minor).
Section 6320 (relating to sexual exploitation of children).
18 Pa.C.S.A. § 3104.
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Commonwealth v. Fink, 791 A.2d 1235, 1240 (Pa.Super. 2002) (citation
omitted).
In summarizing prior caselaw pertaining to the admissibility of evidence
under the Rape Shield Law, the Fink Court stated:
• The Rape Shield Law bars prior instances of sexual conduct,
except those with the defendant where consent of the victim is at
issue and the evidence is otherwise admissible. 18 Pa.C.S.A. §
3104(a).
• If the prior sexual conduct was a prior sexual assault, then the
Rape Shield Law does not apply and the evidence is evaluated
under the general evidentiary rules.
• If the prior sexual conduct does not involve the defendant or
involves the defendant but consent is not an issue, then it must
be relevant to show bias against the defendant or to attack the
credibility of the victim. A three-part test for admissibility applies
in such a case.
• If the offer of proof shows only that others in addition to
the defendant had sexual contact with the victim, but does
not show how the evidence would exonerate the
defendant, evidence of prior sexual activity is inadmissible
under the Rape Shield Law.
• Evidence of a prior sexual assault by another man is not
admissible to show knowledge by the child victim of sexual
techniques or nomenclature unless the evidence exonerates the
defendant.
• Proffers under the Rape Shield Law cannot be vague,
conjectural, or speculative.
Commonwealth v. Fink, 791 A.2d 1235, 1242–43 (Pa.Super. 2002) (case
citations omitted) (boldface emphasis added).
Appellant sought to introduce testimony that the Victim may have been
engaging in sexual activity with young men her own age around the time in
which Appellant was sexually abusing her. In light of the foregoing, this is
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precisely the type of evidence that is inadmissible under the Rape Shield Law.
See 18 Pa. C.S.A. § 3104(a).
In addition, Appellant’s suggestion that the evidence would have been
relevant to show her allegations against him were in response to his attempts
to stop the Victim’s relationships with young men is belied by the fact that she
did not report the abuse until more than a decade later, when she was twenty-
five (25) years old. N.T., 4/3/17 at 31, 50. Also, as the Commonwealth
observes, Appellant himself testified that on one occasion he observed “three
or four big guys” leaving the Victim’s room and smelled marijuana emanating
therefrom. Commonwealth’s Brief at 17 (citing N.T. 4/3/17, at 104). Thus,
the jury heard testimony that the Victim had boys in her bedroom. Therefore,
our review of the record reveals no trial court error abuse of discretion.
Appellant next argues the verdict was against the weight of the
evidence. His challenge is grounded in what he deems to be the “incredible”
testimony of A.R., and he stresses that “we do not convict people on the basis
of such suspicions.” He likens A.R.’s testimony to that of “‘rogue cops’ who
coerce confessions from defendants in their custody” and claims that A.R.
obtained information about the improper contact between Appellant and the
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Victim only after she “engaged in trickery and deception.” Brief for Appellant
at 31-34.2.5
When considering this challenge, we apply the following standard of
review:
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
reviewing a trial court's determination that the verdict is
against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial is
the lower court's conviction that the verdict was or was
not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
This does not mean that the exercise of discretion by the trial court
in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In describing
the limits of a trial court's discretion, we have explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
____________________________________________
5 We note that in his concise statement of matters complained of on appeal,
Appellant lists additional reasons why he deems the verdicts had been against
the weight of the evidence; however, he does not develop an argument with
regard to these claims in his appellate brief. Therefore, those undeveloped
claims are waived. Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa.
Super. 2018).
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pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055
(2013) (internal citations omitted).
Commonwealth v. McClelland, 204 A.3d 436, 447 (Pa.Super. 2019) appeal
denied, 217 A.3d 214 (Pa. 2019).
In rejecting Appellant’s challenge to the weight of the evidence, the trial
court reasoned as follows:
Appellant lists a myriad of reasons why the verdict was
against the weight of the evidence. First, Appellant points out
[Victim’s] lack of prompt complaint. [Victim] did not go to the
police until thirteen years after she alleges the initial incident to
have happened. [Victim] clearly was unable to discern between
right and wrong during her sexual relationship with Appellant.
[Victim] testified that she enjoyed the relationship and that the
fondling and sex made her feel good. It was not until she was
older that she realized the relationship was wrong, and even at
that time she still did not tell her aunt what truly happened.
Instead, she made up a lie that would make her aunt want
Appellant to leave the house. The [c]ourt found this to be plausible
and so did the jury.
The remainder of Appellant's reasons of why the verdict was
against the weight of the evidence deal with various issues
Appellant has with [Victim’s] aunt, some of which was not
evidence presented at trial. Appellant points out that [Victim] and
her aunt have discrepancies with dates, years, and the age of
[Victim] when the events occurred. However, the incidents
occurred over thirteen years ago, and it was clear from the
testimony that the [V]ictim and the witness were unable to recall
the exact time frame on the stand. It was also clear to the [c]ourt
that Appellant was more interested in attacking [A.R.’s] character
based on the numerous statements made by him during trial as
well as during sentencing. Instead of showing remorse, Appellant
took his time to address the [c]ourt during sentencing as an
opportunity to continue to attack [A.R.’s] character. [Victim]
testified as to what happened to her and regardless of any alleged
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motive of her aunt, [Victim] testified on her own will based on her
memory of what happened. The jury was free to believe her
testimony. There was nothing shocking about the verdict. No relief
is necessary.
Trial Court Opinion, 12/21/18, at 5.
Following our review, we find that the trial court's assessment enjoys
record support. For this reason, we conclude that the trial court properly
exercised its discretion in denying Appellant's motion for a new trial based on
the weight of the evidence. Thus, this issue lacks merit.
Appellant’s final claim relates to the Pennsylvania Supreme Court’s
alleged pending review of SORNA6 in an unrelated matter. Specifically,
Appellant refers to “Commonwealth v. Torsillieri,” a matter in which a decision
allegedly was issued on August 31, 2019, in the Court of Common Pleas of
Chester County, and which Appellant indicates is on appeal before our
____________________________________________
6 Sex Offender Registration and Notification Act, 42 Pa.C.S.A. §§ 9799.10-
9799.41 (SORNA I) Act of Dec. 20, 2011, P.L. 446, No. 111, amended as, 42
Pa.C.S.A. §§ 9799.10-9799.41, as amended and replaced by 2018, Feb. 21,
P.L. 27, No. 10, § 19, immediately effective. Reenacted 2018, June 12, P.L.
140, No. 29, § 14, immediately effective. 42 Pa.C.S.A. §§ 9799.51-9799.75
(SORNA II). Act 10 (now Act 29 (2018), Feb. 21, P.L. 27, No.10, § 6, imd.
Effective. Reenacted 2018, June 12, P.L. 140, No. 29, § 4, imd. Effective
(referred to collectively as Act 10). Act 10 was enacted in response to
Commonwealth v. Muniz, 640 Pa. 669, 164 A.3d 1189 (2017) and
Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017), appeal granted,
190 A.3d 581 (Pa. 2018) (Table) (concluding challenge to appellant’s
increased registration requirements under SORNA implicated legality of
sentence imposed). Essentially, Act 10 sought to eliminate SORNA’s
“punitive” effects. We note that the issue of whether Act 10 (now Act 29) is
unconstitutional in light of Muniz is also before the Pennsylvania Supreme
Court. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).
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Supreme Court. Appellant has neither provided a citation to this case nor
affixed a copy of it to his appellate brief for this Court’s review.
Initially, we note that while Appellant did not raise this claim in his
concise statement, to the extent it can be construed as a challenge to the
legality of his sentence, such challenge cannot be waived, so long as a court
has jurisdiction to address it. See Commonwealth v. Adams-Smith, 209
A.3d 1011, 1021 (Pa.Super. 2019). On April 25, 2018, the trial court
sentenced Appellant to an aggregate term of six years to twelve years'
imprisonment to be followed by seventeen years of probation. Appellant was
determined not to be a sexually violent predator under SORNA, but he is
subject to a lifetime registration requirement as a result of his conviction of
rape of a child. See 42 Pa.C.S.A. § 9799.55(b)(2)(i)(A).
Appellant has failed to specify how he deems the issues Torsillieri
apparently raised on appeal may be relevant to the instant matter. To the
contrary, a similar constitutional claim to the one allegedly asserted in
Torsillieri is not properly before us because Appellant was not subjected to
current SORNA registration and reporting requirements below.
Significantly, Appellant has not specifically challenged herein the
legality of his sentence or the registration requirements to which he will be
subjected going forward. Instead, Appellant simply notes at the conclusion of
his argument that “a decision by the Pennsylvania Supreme Court in the
matter of Commonwealth v. Torsillieri is not expected until approximately
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early 2020. It is possible that that decision could have a major impact on the
instant matter and require that this case be remanded back to the trial court
for re-sentencing.” Brief for Appellant at 45. Should Torsillieri or another
matter provide a future basis upon which Appellant may rely to show his
sentence is illegal, Appellant may raise a claim at that time. See Adams-
Smith, supra. Until then, this Court will not attempt to predict the future of
decisions of this or the Supreme Court.
Judgment of sentence affirmed.
Judge Stabile joins the Opinion.
Judge King concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2020
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