J-S13026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WILLIAM R. METCALF

                            Appellant               No. 1174 WDA 2014


            Appeal from the Judgment of Sentence March 10, 2014
               In the Court of Common Pleas of Beaver County
             Criminal Division at No(s): CP-04-CR-0001055-2012


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                               FILED APRIL 1, 2015

        Appellant, William R. Metcalf, appeals from the aggregate judgment of

sentence of one year, less one day, to two years, less one day, of

imprisonment followed by 42 months’ probation imposed after a jury

convicted Appellant of indecent assault, endangering the welfare of children,

and corruption of minors.1 After careful review, we affirm.

        We recount the relevant factual and procedural history of this case as

follows. On February 9, 2012, Appellant was living with his fiancé, N.T., her

eight-year-old daughter, D.T., and the couple’s two, young daughters. See

N.T., 11/13/13, at 62-63. That evening, D.T. went into the bedroom that

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1
    18 Pa.C.S.A. §§ 3126(a)(7), 4304(a)(1), and 6301(a)(1), respectively.
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Appellant shared with N.T. and laid down next to her mother, who was

asleep. See id. at 52, 65. Appellant then told D.T. to come to where he

was in the bedroom and touched D.T. “inside” her “private.” Id. at 51-53.

D.T. related that her “private” is “where you go to the bathroom at[]” and

specifically, “peeing.” Id. at 51.

      Appellant then left the room, and D.T. left and went into her sisters’

room. Id. at 53. N.T. awoke and noticed D.T. was acting “funny” and that

D.T.’s underwear was “crooked, sideways” and “twisted.” Id. 66-67. N.T.

then “pulled [D.T.’s] underwear down” and observed that “her private area

was deep red.” Id. at 67. N.T. then called a friend who called the police.

Id. at 68.     Police Officer David Tresky of the White Township Police

Department received the complaint at approximately 9:07 p.m. that evening

and reported to the residence. Id. at 89-90. After speaking with N.T. and

D.T., Officer Tresky transported N.T. and her children to Heritage Valley

Medical Center where the emergency room physician, Dr. Matthew Wheeler,

examined D.T. Id. at 93, 109. Thereafter, on February 21, 2012, D.T. was

interviewed by Dr. Kevin Rau, a forensic interviewer, and examined by Dr.

Mary Carrasco, a pediatrician who specializes in child abuse, at A Child’s

Place at Mercy. Id. at 115, 161-163.




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        On May 7, 2012, the Commonwealth charged Appellant with the

aforementioned offenses as well as aggravated indecent assault.2 Appellant

entered a plea of nolo contendere to aggravated indecent assault on May 7,

2013.      The trial court held a hearing to determine if Appellant was a

sexually violent predator on August 28, 2013.         At that time, counsel for

Appellant informed the trial court that Appellant wished to withdraw his plea,

and the trial court heard testimony and argument on the request.          N.T.,

8/28/13, at 3-46. On August 29, 2013, the trial court granted Appellant’s

motion to withdraw his plea, and the case proceeded to a three-day jury trial

on November 13, 2013.            At the conclusion of the trial, the jury found

Appellant guilty of indecent assault, endangering the welfare of children and

corruption of minors and not guilty of aggravated indecent assault.

        On March 10, 2014, the trial court sentenced Appellant to one year,

less one day, to two years, less one day, of imprisonment followed by 42

months’ probation3 and to comply with the registration requirements

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2
    18 Pa.C.S.A. § 3125(b).
3
  Specifically, the trial court sentenced Appellant to a term of imprisonment
of one year, less one day, to two years, less one day, of imprisonment
followed by three years’ probation for indecent assault. On the conviction
for endangering the welfare of children, the trial court sentenced Appellant
to a term of imprisonment of one year, less one day, to two years, less one
day, of imprisonment followed by three years’ probation. On the conviction
for corruption of minors, the trial court sentenced Appellant to nine to 18
months’ imprisonment followed by 42 months’ probation. The sentences
were imposed to run concurrently.



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pursuant to the Sex Offender Registration and Notification Act, 42 Pa.C.S.A.

§§ 9799.10-9799.41.          Appellant filed a timely post-sentence motion on

March 11, 2014, wherein he challenged the sufficiency of the evidence at

trial and requested bond and credit for time-served. Post-Sentence Motion,

3/11/14, at 1-4 (unnumbered).           He also requested an extension to file an

amended post-sentence motion upon receipt of transcripts. Id. On April 17,

2014, the trial court dismissed his request for bond as moot because

Appellant was released under the supervision of parole on that date and

denied his request for credit for time-served.        Trial Court Order, 4/17/14.

By separate order on April 17, 2014, the trial court ordered Appellant to file

an amended post-sentence motion, if desired, by May 19, 2014. Appellant

filed an amended post-sentence motion on May 14, 2014, wherein he raised

challenges to the weight and sufficiency of the Commonwealth’s evidence.

See Brief in Support of Amended Post-Trial Motion, 5/14/14, at 1-5

(unnumbered).       The trial court denied Appellant’s motion on July 2, 2014,

and Appellant filed the instant timely appeal on July 18, 2014.4

       On appeal, Appellant raises the following two issues for our review.

              I. Whether the Commonwealth presented sufficient
              evidence to convict [] Appellant of indecent assault,
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4
  The trial court ordered Appellant to file a statement of errors complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b),
and Appellant timely filed his statement. In its Rule 1925(a) opinion, the
trial court directs this Court to its July 2, 2014 opinion, denying Appellant’s
post-sentence motion. Trial Court Opinion, 8/19/2014.



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            endangering welfare of children and corruption of
            minors?

            II. Whether the conviction of []Appellant on the
            charges of indecent assault, endangering welfare of
            children and corruption of minors goes against the
            weight of the evidence?

Appellant’s Brief at 6.

      We employ a well-settled standard of review over claims challenging

the sufficiency of the evidence.     “In reviewing the sufficiency of the

evidence, we consider whether the evidence presented at trial, and all

reasonable inferences drawn therefrom, viewed in a light most favorable to

the Commonwealth as the verdict winner, support the jury’s verdict beyond

a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.

2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 2015

WL 731963 (U.S. 2015).      “The Commonwealth can meet its burden by

wholly circumstantial evidence and any doubt about the defendant’s guilt is

to be resolved by the fact finder unless the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn

from the combined circumstances.”    Commonwealth v. Watley, 81 A.3d

108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation

omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we

must review “the entire record … and all evidence actually received[.]” Id.

(internal quotation marks and citation omitted).   “[T]he trier of fact while

passing upon the credibility of witnesses and the weight of the evidence


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produced,   is   free   to   believe   all,   part   or    none    of   the   evidence.”

Commonwealth v. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (citation

omitted), appeal denied, 99 A.3d 925 (Pa. 2014).                  “Because evidentiary

sufficiency is a question of law, our standard of review is de novo and our

scope of review is plenary.”     Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,

135 S. Ct. 145 (2014).

      Appellant argues, “[t]he Commonwealth’s evidence was insufficient to

enable the finder of fact to find that all the elements of the offenses were

established beyond a reasonable doubt.”                   Appellant’s Brief at 9-10.

However, before we may address the merits of Appellant’s claim, we must

first address whether Appellant has preserved this issue for our review.

Pennsylvania Rule of Appellate Procedure 1925(b) requires Rule 1925(b)

statements to “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)(ii). Any issue not raised in accordance with

Rule 1925(b) is waived.       Pa.R.A.P. 1925(b)(vii).        Our Supreme Court has

clarified that Rule 1925(b) is a bright-line rule. Commonwealth v. Hill, 16

A.3d 484, 494 (Pa. 2011). Additionally, with regard to claims pertaining to

the sufficiency of the Commonwealth’s evidence, we have stated as follows.

            In order to preserve a challenge to the sufficiency of
            the evidence on appeal, an appellant’s Rule
            1925(b) statement must state with specificity
            the element or elements upon which the

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            appellant alleges that the evidence was
            insufficient.   Such specificity is of particular
            importance in cases where, as here, the appellant
            was convicted of multiple crimes each of which
            contains numerous elements that the Commonwealth
            must prove beyond a reasonable doubt.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal

quotation marks and citations omitted; emphasis added).

      In the instant case, Appellant was convicted of three, separate

offenses, yet Appellant’s challenge to the sufficiency of evidence in his Rule

1925(b) statement baldly asserted, “[t]he Commonwealth failed to present

sufficient evidence to prove beyond a reasonable doubt all the elements of

the offenses for which [] Appellant was convicted[.]”          Rule 1925(b)

Statement, 8/18/2014, at 2.

      Based on our cases, we are constrained to conclude that Appellant has

not complied with Rule 1925(b) because his concise statement fails to

specify which elements of the listed offenses the Commonwealth did not

prove beyond a reasonable doubt.      See Garland, supra (concluding that

Garland’s bald Rule 1925(b) statement that “[t]he evidence was legally

insufficient to support the convictions[]” was non-compliant with Rule

1925(b)); Commonwealth v. Williams, 959 A.2d 1252, 1256 (Pa. Super.

2008) (concluding that Williams’ bald Rule 1925(b) statement that “[t]here

was insufficient evidence to sustain the charges of Murder, Robbery, VUFA

no license, and VUFA on the streets … [t]hus [Appellant] was denied due




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process of law[]” was non-compliant with Rule 1925(b)). Accordingly, this

claim is waived.5

       Next, Appellant argues, “[t]he [] Appellant’s conviction goes against

the weight of the evidence.” Id. at 10.               We begin by acknowledging that

“[a] true weight of the evidence challenge concedes that sufficient evidence

exists to sustain the verdict but questions which evidence is to be believed.”

Commonwealth v. Thompson, --- A.3d ---, 2014 WL 6948150, at *10

(Pa. Super. 2014) (citation omitted). Our Supreme Court has clarified that,

“[a] motion for a new trial alleging that the verdict was against the weight of

the   evidence     is   addressed      to      the   discretion   of   the   trial   court.”

Commonwealth v. Weathers, 95 A.3d 908, 910-911 (Pa. Super. 2014),

citing Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008). Therefore,

on appeal, the reviewing court “reviews the exercise of discretion, not the

underlying question whether the verdict is against the weight of the

evidence.” Id. Indeed, it is well established that it is for the factfinder to

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5
  We observe Appellant’s argument in support of this issue is also woefully
underdeveloped. Aside from outlining our standard of review, Appellant’s
argument section with regard to his sufficiency claim contains no citations to
legal authority nor does Appellant provide any discussion at all on the crimes
for which Appellant was convicted or any subsumed element.                 See
Appellant’s Brief at 9-10. Accordingly, we could also find waiver on this
basis. See Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super.
2014) (concluding appellant waived his issue on appeal when he failed to
develop his argument with discussion of pertinent facts and authority.);
accord Pa.R.A.P. 2119, 2101.




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determine    the        weight     given       to    the   evidence   produced   at   trial.

Commonwealth v. Ferguson, --- A.3d ---, 2015 WL 49438, at *4-5 (Pa.

Super. 2015) (citation omitted). Because it is the role of the factfinder to

weigh the evidence, an appellant seeking to challenge the weight of the

evidence carries a heavy burden.

             If the factfinder returns a guilty verdict, and if a
             criminal defendant then files a motion for a new trial
             on the basis that the verdict was against the weight
             of the evidence, a trial court is not to grant relief
             unless the verdict is so contrary to the evidence as
             to shock one’s sense of justice.

Id. We also highlight that “[a] new trial is not warranted because of a mere

conflict in the testimony and must have a stronger foundation than a

reassessment       of    the     credibility    of   witnesses.”      Commonwealth       v.

Gonzalez, --- A.3d ---, 2015 WL 252446, at *8 (Pa. Super. 2015). “[O]nly

where the facts and inferences disclose a palpable abuse of discretion will

the denial of a motion for a new trial based on the weight of the evidence be

upset on appeal.” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(emphasis in original; citation omitted).

      Instantly, Appellant argues the verdict is contrary to the weight of the

evidence because “[t]he evidence against [Appellant] is suspect at best.”

Appellant’s Brief at 10.             Specifically, Appellant challenges that “[t]he

Commonwealth attempted to bolster [its] case by the utilization of [Special

Agent] Ambrosini[]” and the admission of a statement he took from

Appellant.   Id.        However, Appellant argues that Special Agent Ambrosini

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“clearly stated that [] Appellant did not see what he had typed onto his

computer[]” before signing the statement.      Id.   Further, Appellant asserts

that “[t]he Commonwealth presented two expert witnesses who both stated

that there was no clear evidence of trauma.”          Id.      Upon review, we

disagree.

     In     denying   Appellant’s   post-sentence    motion,   the    trial   court

summarized the testimony relevant to this weight challenge as follows.

                   Dr. Matthew Wheeler, an assistant medical
             director at Heritage Valley Health System, testified
             that on February 9, 2012, he was working in the
             emergency room department of the Heritage Valley
             Medical Center and examined D.T.           Dr. Wheeler
             performed an external examination and did not find
             any injuries.    He did not perform [an] internal
             examination as he believed it would be too intrusive
             for the child and unlikely to yield evidence.

                   Dr. Kevin Rua, a forensic interviewer at “A
             Child’s Place at Mercy”, testified that he interviewed
             D.T. on February 21, 2012. In the course of the
             interview, D.T. told him that on the date of the
             incident[,] she awoke and went to lie down next to
             her mother; [Appellant] told her not to “mess with”
             the dogs and moved her next to him; [Appellant]
             then put his finger in her “second hole” and it hurt.

                   Special Agent Robert Ambrosini, of the Federal
             Bureau of Investigation, testified that he initially
             explained the allegations, which [Appellant] denied.
             Agent Ambrosini told [Appellant] that he did not
             believe [Appellant’s] denial and suggested the
             possibility that [Appellant] had gotten “turned
             around” in bed and mistook [N.T.] for D.T.
             [Appellant] agreed that was possible and he believed
             that was what happened. Agent Ambrosini traced
             [Appellant’s] hand on a piece of paper and asked
             [Appellant] to draw a line to indicate the length of

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           his penetration into D.T.’s vagina, which [Appellant]
           did.     Agent Ambrosini prepared a written
           statement[.] … [Appellant] and Agent Ambrosini
           signed the statement….

                 Dr. Mary Carrasco, the director of “A Child’s
           Place at Mercy”, testified that she examined D.T. on
           February 21, 2014. Her examination disclosed a
           “notch depression of her [D.T.’s] hymen.”         Dr.
           Carrasco testified that this physical condition could
           have been caused by trauma or penetration but is
           not clear evidence of sexual abuse.

                  Appellant testified he had lived with [N.T.] for
           six and one half years. On February 9, 2012, he
           heard D.T. making noise and attempting to wake up
           her sisters. He instructed her to lie next to [N.T.] on
           the floor of their bedroom. D.T. then began to play
           with their dog and [Appellant] instructed her to lie on
           the floor next to him. D.T. would not lie still and
           [Appellant] “smacked her” and instructed her to go
           back to sleep.

                  Appellant further testified that during his
           interview with Agent Ambrosini[,] he refused to sign
           the proposed statement; [Appellant] signed the
           digital signature pad believing that he was signing a
           waiver for release of information. [Appellant] further
           testified that the outline of his hand was referring to
           a different incident when he was playing with D.T.
           and his two children at a pool, his hand slipped
           picking up D.T. and the pad of his finger touched her
           vagina.”

Trial Court Opinion, 7/2/14, at 5-7. The trial court explicitly noted, “[t]he

[trial c]ourt does not find that the [j]ury’s verdict was so contrary to the

evidence as to shock one’s sense of justice.” Id. at 10.

     In the instant case, D.T. testified Appellant touched her with his finger

inside her private area, where she goes to the bathroom. N.T., 11/13/13, at


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51-53. N.T. testified that following the incident, D.T. acted “funny,” D.T.’s

underwear was twisted, and her genital area appeared red. Id. at 66-67.

The jury, as fact-finder, was free to believe D.T.’s account of the incident

and determine the weight given to all of the evidence produced at trial. See

Ferguson, supra. Moreover, Appellant is not entitled to a new trial based

on a reassessment of the credibility of witnesses.   See Gonzalez, supra.

Therefore, we conclude the trial court properly exercised its discretion in

denying Appellant’s motion for a new trial based on the weight of the

evidence.   See Weathers, supra.      Accordingly, we affirm the March 10,

2014 judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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