J-S03010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

    DEREK JONES,

                             Appellant               No. 818 EDA 2018


       Appeal from the Judgment of Sentence Entered December 15, 2017
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004692-2015

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 09, 2019

        Appellant, Derek Jones, appeals from the judgment of sentence 1 of an

aggregate term of 20 to 40 years’ imprisonment, imposed after he was

convicted of one count each of rape of a child,2 involuntary deviate sexual




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1 Appellant purports to appeal from the judgment of sentence imposed on
December 15, 2017 and the denial of his post-trial motions on February 5,
2018. However, “when timely post-sentence motions are filed, an appeal
properly lies from the judgment of sentence made final by the denial of the
post-sentence motions.” Commonwealth v. Bradley, 69 A.3d 253, 254 (Pa.
Super. 2013). We have adjusted the caption accordingly.

2   18 Pa.C.S. § 3121(c).
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intercourse with a child,3 sexual assault,4 endangering the welfare of a child,5

and corruption of minors.6 Appellant challenges the sufficiency of the evidence

to sustain his convictions and alleges the verdict is against the weight of the

evidence. Appellant also asserts that his sentence is excessive and an abuse

of the trial court’s discretion. We affirm.

        A detailed account of the facts which led to Appellant’s convictions is set

forth by the trial court in the following portion of its Pa.R.A.P. 1925(a) opinion:

               In early 2014, then 12-year-old J.T. lived with her dad,
        Damione Jones, her brother, and her then 9-year-old half-sister,
        K.J.[,] at 416 North Gilmore Street in Allentown, Lehigh County,
        Pennsylvania. During this time, [Appellant] – Damione’s brother
        and J.T.’s uncle – was staying at the residence. One morning, J.T.
        and her sister wanted to go to [t]he Dollar Tree, and [Appellant]
        offered to give them a ride. Before leaving, Damione gave J.T. an
        Access Card, which she placed in the pocket of her sweater.

               [Appellant] drove the girls in his truck, with J.T. in the front
        seat and K.J. in the backseat. When they arrived at [t]he Dollar
        Tree, [Appellant] told K.J. to go shopping in the Dollar Tree and
        stated that he and J.T. were going to go get pizza at Big Woody’s.
        K.J. entered the store, and [Appellant] and J.T. drove off in the
        direction of Big Woody’s. [Appellant] drove past Big Woody’s and
        went to a large parking lot. [Appellant] asked J.T. if she “wanted
        to do grown-up things.” J.T. said “no.” [Appellant] then grabbed
        J.T. by the hair, pushed her head down towards his penis, and
        forced her to “suck on his private parts.”

              [Appellant] then ordered J.T. to take her pants off and pulled
        her by her hair over to the driver’s seat. [Appellant] pushed J.T.’s
____________________________________________


3   18 Pa.C.S. § 3123(b).

4   18 Pa.C.S. § 3124.1.

5   18 Pa.C.S. § 4304(a)(1).

6   18 Pa.C.S. § 6301(a)(1)(ii).

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      underwear to the side and “put[] his private part inside [her]
      private part.” [Appellant] moved J.T.’s hips, which caused the
      Access Card to fall out of J.T.’s pocket. [Appellant] got angry, and
      asked J.T. why she did not give the card to K.J. [Appellant] then
      told J.T. he would beat her to death if she told anyone what
      happened. [Appellant] pushed J.T. back to the passenger seat.
      J.T. put her clothes back on, and the two drove back to the Dollar
      Tree. K.J. was outside the store. J.T. went inside with K.J. to pay
      for the items, and then they all drove back home.

             The next morning, J.T. was asleep in her room. [Appellant]
      came in the room, grabbed J.T. by the hair, and pulled her
      downstairs to the couch. [Appellant] said, “We’re going to do this
      again.” Once on the couch, [Appellant] again grabbed J.T.’s hair,
      pulled her head down, and forced J.T. to perform oral sex on him.
      Afterwards, he pulled her on top of him and rape[d] her again.
      [Appellant] heard something outside and pushed J.T. off of him.
      J.T. ran upstairs.

             Sometime in July [of] 2014, after [Appellant] had moved to
      North Carolina, J.T. told Damione what happened. The next day,
      Damione and J.T. went to the Allentown Police and reported what
      happened. J.T. gave a written statement to police, and was
      subsequently examined by Debra Esernio-Jenssen, M.D., Medical
      Director of the Child Advocacy Center and Child Protection Team.
      J.T. reported to Dr. Esernio-Jenssen that following each incident
      she had pain and pain on urination. There were no physical
      findings indicating abuse, but Dr. Esernio-Jenssen concluded that
      a normal exam is the most common finding in child sexual abuse
      cases. Indeed, the most common symptoms reported are pain
      and pain on urination.

Trial Court Opinion (“TCO”), 5/21/18, at 2-3 (citations to record and footnote

omitted).

      Based on the foregoing evidence presented at a jury trial, on December

15, 2017, Appellant was found guilty of the crimes stated supra, and was

sentenced to 20 to 40 years’ imprisonment and ordered to register as a Tier

III Sexual Offender pursuant to 42 Pa.C.S. § 9799.10, et seq. On December

26, 2017, Appellant filed post-trial motions, which were denied by the trial


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court on February 5, 2018. On March 6, 2018, Appellant filed a timely notice

of appeal, followed by a timely court-ordered Rule 1925(b) statement of errors

complained of on appeal.

      Herein, Appellant presents the following issues for our review:

      1. Whether the trial court erred by concluding that the evidence
         was sufficient to support the verdict where that evidence was
         the uncorroborated testimony of the juvenile victim that was
         impermissibly bolstered through the testimony of Deborah
         Esernio-Jenssen, M.D.[?]

      2. Whether the trial court erred in admitting, over objection, the
         irrelevant and prejudicial testimony of Deborah Esernio-
         Jenssen, M.D., permitting the Commonwealth to bolster the
         credibility of the juvenile witness improperly[?]

      3. Whether the trial court erred by concluding that the verdict was
         not against the weight of the evidence where [Appellant] was
         convicted by the uncorroborated testimony of the juvenile
         victim, where there was a lack of any corroborating physical
         evidence or uninterested testimonial evidence combined with
         the juvenile’s inconsistent and contradictory versions of events
         in important particulars which should shock one’s
         conscience[?]

      4. Whether the trial court erred in not modifying the sentence
         where the minimum sentences were set at the upper limit of
         the standard guideline range and resulted in a sentence where
         the minimum and maximum sentence is excessive and an
         abuse of the court’s discretion considering all the factors and
         mitigating circumstances given for this particular [Appellant?]

Appellant’s Brief at 6.

      Initially, we are compelled to note that Appellant failed to properly

preserve his sufficiency claim, due to a lack of specificity in his Rule 1925(b)

statement. In order to preserve a challenge to the sufficiency of the evidence

on appeal, Appellant’s Rule 1925(b) statement must state with specificity “the


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element     or   elements   upon   which   the   evidence   was   insufficient.”

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009).                “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.” Id.

     Here, Appellant’s Rule 1925(b) statement merely states that the trial

court erred in concluding “that the evidence was sufficient to support the

verdict where that evidence was the uncorroborated testimony of the juvenile

victim that was impermissibly bolstered through the testimony of Deborah

Esernio-Jenssen, M.D.”      Pa.R.A.P. 1925(b) Statement, 3/28/18, at 1.

Appellant fails to state with any specificity whatsoever which element(s)

relating to which crime(s) he believes the Commonwealth failed to establish.

Thus, we are compelled to conclude that Appellant’s sufficiency claim is

waived.

     Nevertheless, even if Appellant had properly preserved his claim, we

would deem it to be meritless.

            In reviewing a sufficiency of the evidence claim, we must
     determine whether the evidence admitted at trial, as well as all
     reasonable inferences drawn therefrom, when viewed in the light
     most favorable to the verdict winner, are sufficient to support all
     elements of the offense. Additionally, we may not reweigh the
     evidence or substitute our own judgment for that of the fact
     finder. The evidence may be entirely circumstantial as long as it
     links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).


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      In support of its finding that the Commonwealth presented sufficient

evidence to sustain the verdict, the trial court succinctly stated:

      J.T. testified that when she was 12 years old, [Appellant] forced
      her to perform oral sex on him and forcibly penetrated her on two
      separate occasions. Additionally, J.T. reported pain and pain on
      urination following both incidents, a common finding in child
      sexual abuse cases. Accepting as true this evidence, as well as
      any reasonable inferences arising from it, it was sufficient in law
      to prove beyond a reasonable doubt that [Appellant] is guilty of
      the crimes for which he was convicted.

TCO at 4. After careful review, we would agree.

      To the extent that Appellant argues that the evidence is insufficient

because J.T.’s testimony was uncorroborated, we note that:

      [T]he 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.             If the
      factfinder reasonably could have determined from the evidence
      adduced that all of the necessary elements of the crime were
      established, then that evidence will be deemed sufficient to
      support the verdict.

Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006) (internal

citations and quotation marks omitted). The jury found J.T. to be a credible

witness and believed her version of the events. See TCO at 5. “It is axiomatic

that [we] must defer to the credibility determinations of the … fact finder, as

the   [fact-finder]   observes     the   witnesses’    demeanor       first-hand.”

Commonwealth v. O’Bryon, 820 A.2d 1287, 1290 (Pa. Super. 2003).

      Next, Appellant asserts that the trial court erred in admitting “the

irrelevant and prejudicial testimony of Deborah Esernio-Jenssen, M.D.,

permitting the Commonwealth to bolster the credibility of the juvenile witness


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improperly.” Appellant’s Brief at 6. We deem Appellant’s claim to be wholly

without merit.

      The standard of review for a trial court’s evidentiary rulings, such as the

admission of expert testimony, is narrow.

      The admissibility of evidence is solely within the discretion of the
      trial court and will be reversed only if the trial court has abused
      its discretion. 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. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation

omitted).

      Dr. Esernio-Jenssen was recognized by the trial court as an expert

witness in the fields of general pediatrics and child abuse pediatrics. N.T. Trial

(Volume III), 10/26/17, at 12.      We acknowledge that, in general, “expert

testimony cannot be used to bolster the credibility of a witness.” Mendez, 74

A.3d at 262. However, “testimony regarding conduct or behavior of victims

of sexual assaults … is appropriate for expert testimony because the physical

condition of a sexual assault victim is not a matter that is typically within the

knowledge of average jurors….” Id. (quoting Commonwealth v. Minerd,

753 A.2d 225, 228 (Pa. 2000)).

      Instantly, Dr. Esernio-Jenssen testified regarding her findings of the

examination she performed on J.T., and rendered an opinion, based on her

training and experience, that her findings were consistent with that of a typical

child sexual abuse case. See N.T. Trial (Volume III) at 21-34. She stated

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that during the course of obtaining a history from J.T., J.T. disclosed the

incidents to her and reported pain at the time of the incidents, as well as pain

upon urination afterwards.    Id. at 24-25.    J.T. also informed Dr. Esernio-

Jenssen of other symptoms that emerged after the incidents, i.e., a decline in

grades, sadness and depression, cutting herself, difficulty sleeping, and fear

of going to locations where Appellant had gone.       Id. 25-26.    Dr. Esernio-

Jenssen explained that such symptoms are common in victims of child sexual

assault.   Id. at 26.   Additionally, Dr. Esernio-Jenssen testified to “normal

findings” from her physical examination of J.T., and she explained that normal

findings during a physical exam are common in child sexual abuse cases. Id.

at 30-33. The trial court found this testimony to be “highly relevant.” TCO at

6.

      It is well-established that “[a] physician is permitted to testify that his

or her findings following examination are consistent with a victim’s allegations

of abuse.” Commonwealth v. Fink, 791 A.2d 1235, 1247 (Pa. Super. 2002)

(citing Commonwealth v. Hernandez, 615 A.2d 1337, 1343 (Pa. Super.

1992)). Moreover, in a sexual assault prosecution, “the Commonwealth may

… offer the testimony of an expert that the absence of physical trauma is

nevertheless consistent with alleged sexual abuse[.]” Id. (citing Minerd, 753

A.2d at 227). See also 42 Pa.C.S. § 5920(b)(2) (providing that in a criminal

proceeding for sexual offenses under 18 Pa.C.S. Ch. 31, an expert “may testify

to facts and opinions regarding specific types of victim responses and victim




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behaviors”). Based on the foregoing, we discern no abuse of discretion in the

trial court’s decision to allow the expert testimony of Dr. Esernio-Jenssen.

      Next, we address Appellant’s challenge to the weight of the evidence to

support his convictions.

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;
      it does not answer for itself whether the verdict was against the
      weight of the evidence. It is well settled that the jury is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses, and a new trial based on a weight of
      the evidence claim is only warranted where the jury’s verdict is so
      contrary to the evidence that it shocks one’s sense of justice. In
      determining whether this standard has been met, appellate review
      is limited to whether the trial judge’s discretion was properly
      exercised, and relief will only be granted where the facts and
      inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Appellant preserved his weight of the evidence claim in his post-

sentence motion and in his Rule 1925(b) statement. Nevertheless, we deem

this claim to be waived on appeal due to Appellant’s failure to fully develop it

in his brief. See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.

Super. 2007) (noting failure to adequately develop an argument in an

appellate brief may result in waiver of the claim under Pa.R.A.P. 2119). Other

than a single citation of a general rule of law regarding weight of the evidence

claims, Appellant’s argument consists solely of the following broad statement:

“Here, the uncorroborated and self-contradictory testimony of the juvenile



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would be insufficient by itself and the improper use of the expert, Dr. Esernio-

Jenssen, to make up for the deficiencies of the Commonwealth’s case is such

that one’s sense of justice should be shocked.       The judgment should be

reversed.” Appellant’s Brief at 13. Appellant provides no legal argument or

support whatsoever to develop his claim.

      Even if Appellant had developed a proper challenge to the weight of the

evidence, the claim provides no basis for relief. When the challenge to the

weight of the evidence is predicated on the credibility of trial testimony, our

review of the trial court’s decision is extremely limited. Commonwealth v.

Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009). Generally, unless the evidence

is so unreliable or contradictory as to make any verdict based thereon pure

conjecture, these types of claims will be rejected on appellate review.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007).

      Moreover, the trial court opined:

      [Appellant] first argues that there was no medical evidence to
      support J.T.’s claim. However, Dr. Esernio-Jenssen credibly
      testified that normal findings are common in child sexual abuse
      cases. She further testified that the most common symptoms
      reported are pain and pain on urination, which J.T. did report.
      [Appellant] also argues that J.T. gave inconsistent and
      contradictory testimony. First, [the court] find[s] the testimony
      of N.T. [sic] to be credible. Second, her testimony was very
      consistent in regards to what happened to her, how many times it
      happened, where it happened, and who the perpetrator was. If
      there were minor inconsistencies in some of the details, it was up
      to the jury to consider all the evidence and make credibility
      determinations. The jury evidently found J.T. to be credible and
      believed her version of the events. In doing so, they rendered a
      verdict consistent with the weight of the evidence.



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TCO at 5. “On issues of credibility and weight of the evidence, an appellate

court defers to the findings of the trial [court], who has had the opportunity

to   observe   the    proceedings    and      demeanor   of   the   witnesses.”

Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 202). After

careful review, we ascertain no abuse of discretion by the trial court.

      Finally, we address Appellant’s claim that his sentence is excessive.

Appellant avers that the trial court abused its discretion in imposing the

statutory limit and that it failed to consider any mitigating factors prior to

sentencing. We note that Appellant’s allegations relate to the discretionary

aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant challenging
      the discretionary aspects of his sentence must invoke this Court’s
      jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly preserved
         at sentencing or in a motion to reconsider and modify
         sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
         brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
         there is a substantial question that the sentence appealed
         from is not appropriate under the Sentencing Code, 42
         Pa.C.S.[] § 9781(b).

      Objections to the discretionary aspects of a sentence are generally
      waived if they are not raised at the sentencing hearing or in a
      motion to modify the sentence imposed.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and internal quotations omitted).




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       Here, the record clearly reflects that Appellant filed a timely notice of

appeal, properly preserved his claim in his post-sentence motion, and included

a separate, concise Rule 2119(f) statement in his appellate brief in compliance

with the Pennsylvania Rules of Appellate Procedure.             Thus, we proceed to

determine whether Appellant has raised a substantial question to meet the

fourth requirement of the four-part test outlined above.

       Appellant notes that the imposition of concurrent sentences resulted in

an aggregate sentence of 20 to 40 years’ imprisonment.7 He baldly asserts

that “the minimum and maximum sentence is excessive and an abuse of the

court’s discretion considering all the factors and mitigating circumstances

given for this particular defendant because the court imposed the statutory

limit.” Appellant’s Brief at 14. Appellant fails to cite any specific reasons why

he believes his sentence is excessive, nor does he state which mitigating

factors he believes the court failed to consider.

       There is ample precedent to support a determination that Appellant’s

claim fails to raise a substantial question. “Under 42 Pa.C.S.[] § 9721, the

court has discretion to impose sentences consecutively or concurrently and,

ordinarily, a challenge to this exercise of discretion does not raise a substantial

question.”    Moury, 992 A.2d at 171.              Moreover, “[a] bald assertion that

____________________________________________


7 Appellant was sentenced to the following: 20 to 40 years’ imprisonment for
rape of a child; 20 to 40 years for involuntary deviate sexual intercourse of a
child; sexual assault (merged for sentencing purposes); 12 to 84 months for
endangering the welfare of a child; and 12 to 84 months for corruption of
minors.

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Appellant’s sentence was excessive, devoid of supporting legal authority …

does not present a substantial question,” and therefore, is not reviewable by

this Court. Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).

This Court has also held on numerous occasions “that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.”   Commonwealth v. DiSalvo, 70 A.3d 900, 903 (Pa. Super.

2013) (internal citation omitted). See also Commonwealth v. Mobley, 581

A.2d 949, 952 (Pa. Super. 1990) (holding that a claim that the sentencing

court failed to take into consideration the defendant’s rehabilitative needs and

was manifestly excessive did not raise a substantial question where the

sentence was within the statutory limit and the sentencing guidelines).

      Even if we were to find that Appellant’s claim did raise a substantial

question, the underlying allegation is meritless.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

                                      ***

      When imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In particular, the court should refer to the defendant’s
      prior criminal record, his age, personal characteristics and his
      potential for rehabilitation. Where the sentencing court had the
      benefit of a presentence investigation report (“PSI”), we can
      assume the sentencing court was aware of relevant information
      regarding the defendant’s character and weighed those

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      considerations along with mitigating statutory factors. Further,
      where a sentence is within the standard range of the guidelines,
      Pennsylvania law views the sentence as appropriate under the
      Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (internal

citations and quotation marks omitted).

      The record belies Appellant’s assertion that the trial court failed to

consider mitigating factors. The court expressly stated that it “took into

account all the information available to [the court] at the time of sentencing,

including the [pre-sentence investigation] report, testimony and letters

received from [Appellant’s] family, testimony from [Appellant], and the

arguments of counsel.”    TCO at 6.    Additionally, the trial court noted that

“[Appellant’s] minimum sentences were within the standard range, and the

maximum sentences were within the statutory limits.” Id.

      After careful review of the record, we are satisfied that the trial court

gave appropriate consideration to the relevant factors before issuing

Appellant’s sentence and ascertain no abuse of discretion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/9/19




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