J-S24037-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     Appellee             :
                                          :
           v.                             :
                                          :
H.C.,                                     :
                                          :
                     Appellant            :     No. 3378 EDA 2017

                Appeal from the Judgment of Sentence April 10, 2017
                 in the Court of Common Pleas of Delaware County
                Criminal Division at No(s): CP-23-CR-0006886-2015

BEFORE:         BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED AUGUST 07, 2020

        H.C. (Appellant) appeals from the April 10, 2017 judgment of sentence

entered after a jury found Appellant guilty of aggravated indecent assault of

a child, indecent assault of a person less than 13 years of age, and

endangering the welfare of a child (EWOC). Upon review, we vacate

Appellant’s judgment of sentence and remand for resentencing.

        We provide the following background.

        Appellant was arrested on January 27, 2015 in connection with
        the sexual abuse of J.H., who at the time was six years old.[1] []
        Appellant’s actions came to light when J.H. told [S]tepmother[]
        that Appellant had “touched her private parts.”         J.H. was
        subsequently interviewed by various experts, including Dr. June



1 At that time, biological mother (Mother) split custody 50-50 with biological
father (Father). Stepmother resided in the house where Father lived.
Appellant, Mother’s paramour, resided with Mother and was akin to a
stepfather.

*Retired Senior Judge assigned to the Superior Court.
J-S24037-20


      Elcock-Messam, who testified       that   J.H.   had   sustained   a
      laceration to her genitals.

Trial Court Opinion, 8/15/2019, at 2 (citation omitted).         Appellant was

charged with one count each of aggravated indecent assault, indecent

assault, EWOC, corruption of minors, and disorderly conduct.

      On August 12, 2015, a hearing was held on the Commonwealth’s

motion to allow J.H. to testify by alternative means, pursuant to 42 Pa.C.S.

§ 5985 (testimony by contemporaneous alternative method). On November

16, 2015, the trial court granted the motion to allow J.H. to testify via

closed-circuit television at trial.2

      Following several continuances, Appellant proceeded to a jury trial on

January 10-13, 2017.3 The Commonwealth presented testimony from J.H.




2 In this order, the trial court also granted the Commonwealth’s petition to
admit out-of-court statements made by J.H. to Stepmother; Portia Nicholson
from Delaware County Children and Youth Services; and Jodi Kaplan, a child
forensic interview specialist from Delaware County Children’s Advocacy
Center, pursuant to 42 Pa.C.S. § 5985.1 (tender years hearsay exception),
and denied Appellant’s petition for a competency hearing. None of the
motions disposed of in this order appears in the certified record.
3  The Commonwealth proceeded to trial on the first three counts:
aggravated indecent assault, indecent assault, and EWOC. On the first day
of trial, the trial court granted the Commonwealth’s request to amend the
information as follows:

     Amend count one, aggravated indecent assault, 18 Pa.C.S.
       § 3125(a)(1), to aggravated indecent assault of a child, 18 Pa.C.S.
       § 3125(b);

(Footnote Continued Next Page)

                                       -2-
J-S24037-20

(via live video from another room); Stepmother; Nicholson; Kaplan; and Dr.

Elcock-Messam, an expert in the fields of general pediatrics and child abuse

pediatrics, who examined J.H.                The jury heard audio recordings of J.H.’s

interviews with Nicholson (12/12/2014) and Kaplan (12/17/2014 and

1/2/2015), wherein J.H. disclosed details surrounding Appellant’s kissing of

her face and body, and his reaching inside her pants to penetrate her

digitally, scratching her genitals with his fingernail in the process.                Dr.

Elcock-Messam testified that J.H. suffered a genital laceration that was

consistent with J.H.’s account of Appellant’s actions. In defense, Appellant

and Mother testified that Appellant was never alone with J.H.                     At the

conclusion of the trial, the jury found Appellant guilty as indicated above.

      Prior to sentencing, the trial court ordered Appellant to undergo

psychological and psychosexual evaluations, as well as an assessment by the

Sexual Offenders Assessment Board.                     On April 10, 2017, the trial court

sentenced Appellant to a term of 78 to 156 months of incarceration for

aggravated indecent assault of a child, 16 to 32 months for indecent assault

of a person less than 13 years of age, and 16 to 32 months for EWOC. All


(Footnote Continued)   _______________________

     Amend count two, indecent assault, 18 Pa.C.S. § 3126(a)(1) (without
       consent), to subsection (a)(7) (complainant less than 13 years of
       age); and

     Amend the offense date from December 17, 2014 to between
       November 30, 2014 and December 17, 2014.

See N.T., 1/10/2017, at 9-11.

                                                 -3-
J-S24037-20

sentences were set to run consecutively, for a total aggregate sentence of

110 to 220 months of incarceration.4 Appellant was also required to register

as a sex offender for life.

      On April 19, 2017, Appellant filed a post-sentence motion challenging,

inter alia, the weight and sufficiency of the evidence. 5       On September 8,

2017, the trial court denied Appellant’s post-sentence motion.

      This timely-filed notice of appeal followed.6        On appeal, Appellant

raises five issues, which we have reordered for ease of disposition.           See

Appellant’s Brief at 7-8.



4 This converts roughly to an aggregate term of 9.16 to 18.33 years of
incarceration.
5 Appellant sought leave to file a supplemental motion following transcription
of the notes of testimony. The relevant transcripts were filed by May 9,
2017. However, Appellant did not file a supplemental motion.

      Because it was approaching the 120-day deadline pursuant to
Pa.R.Crim.P. 720(B)(3), the trial court granted Appellant’s oral request for a
30-day extension to decide Appellant’s post-sentence motion.           Order,
8/8/2017.
6 We note our displeasure with the delays holding up this Court’s review.
This case originated in 2015 and did not proceed to trial until 2017 due to
several continuances. Following the filing of Appellant’s notice of appeal,
Appellant timely filed his ordered Pa.R.A.P. 1925(b) statement on October
18, 2017. However, the trial court inexplicably did not file its Pa.R.A.P.
1925(a) opinion until August 16, 2019, almost two years later. Once this
Court finally received the trial court’s opinion and the record was
transmitted, our review was again delayed by Appellant twice seeking an
extension of time to file his brief. Despite our granting these requests,
Appellant filed his brief six days late. Pursuant to Pa.R.A.P. 2188, “If an
appellant fails to file his ... brief ... within the time prescribed by these rules,
or within the time as extended, an appellee may move for dismissal of the
(Footnote Continued Next Page)

                                       -4-
J-S24037-20

                       J.H.’s Closed-Circuit Television Testimony

      We first address Appellant’s claim that the trial court erred in allowing

J.H. to testify by closed-circuit television, thereby denying Appellant his right

to face his accuser.         Id. at 7, 26.        We review this claim mindful of the

following.

      Section 5985 of the Judicial Code governs testimony by a
      contemporaneous alternative method:

             (a) Contemporaneous alternative method.—
             Subject to subsection (a.1), in any prosecution or
             adjudication involving a child victim [], the court
             may order that the testimony of the child victim []
             be taken under oath or affirmation in a room other
             than the courtroom and transmitted by a
             contemporaneous alternative method. Only the
             attorneys    for   the   defendant   and    for    the
             Commonwealth, the court reporter, the judge,
             persons necessary to operate the equipment and any
             person whose presence would contribute to the
             welfare and well-being of the child victim [],
             including persons designated under section 5983
             (relating to rights and services), may be present in
             the room with the child during his testimony. The
             court shall permit the defendant to observe and hear
             the testimony of the child victim [] but shall ensure
             that the child cannot hear or see the defendant. The
             court shall make certain that the defendant and
             defense counsel have adequate opportunity to
             communicate for the purposes of providing an
             effective    defense.   Examination     and     cross-
             examination of the child victim [] shall proceed in
             the same manner as normally permitted.


(Footnote Continued)   _______________________

matter.” The Commonwealth filed its brief after one extension, and did not
move for dismissal based upon Appellant’s late-filed brief. While we do not
dismiss this appeal, we caution all parties against such unnecessary and
significant delays in the future.

                                                 -5-
J-S24037-20


           (a.1) Determination.—Before the court orders the
           child victim [] to testify by a contemporaneous
           alternative method, the court must determine, based
           on evidence presented to it, that testifying either in
           an open forum in the presence and full view of the
           finder of fact or in the defendant’s presence will
           result in the child victim [] suffering serious
           emotional distress that would substantially impair
           the child victim’s [] ability to reasonably
           communicate. In making this determination, the
           court may do all of the following:

                 (1) Observe and question the child victim [],
                 either inside or outside the courtroom.

                 (2) Hear testimony of a parent or custodian or
                 any other person, such as a person who has
                 dealt with the child victim [] in a medical or
                 therapeutic setting.

     42 Pa.C.S.[] § 5985(a), (a.1).

     In Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa. Super.
     2006), [] the Commonwealth presented the expert testimony of
     the child victim’s treating psychotherapist. The psychotherapist
     testified that the victim suffered depression, suicidal thoughts,
     and post-traumatic stress disorder[,] which likely would impact
     her ability to testify effectively. Likewise, the psychotherapist
     testified that the defendant’s presence in the courtroom would
     send the victim “into an emotional tailspin.” Id. Given this
     testimony, we found no error in the trial court’s decision to
     permit the victim to testify via closed[-]circuit television. Id.

     Similarly, in Commonwealth v. Torres–Kuilan, 156 A.3d
     1229, 1230 (Pa. Super. 2017), the victim, seven years old at the
     time of trial, broke down and cried and refused to enter the
     courtroom to testify. The trial court conducted an in camera
     hearing to determine whether to permit the child to testify via
     closed[-]circuit television. The court heard testimony from the
     victim and a woman who had been keeping the victim company
     that morning and ultimately decided to permit the victim to
     testify remotely. Id. We affirmed, reasoning that the trial court’s
     observations are a sufficient basis for permitting remote
     testimony under § 5985(a.1)(1).

                                      -6-
J-S24037-20



Commonwealth v. Tyrrell, 177 A.3d 947, 951-52 (Pa. Super. 2018) (some

quotation marks and citations omitted).

     We note that “[f]ew published decisions address § 5985, and those

that do have not announced a standard for reviewing the trial court’s

decision. In Torres–Kuilan, this Court employed the principles of statutory

construction to determine whether the Commonwealth’s proffer complied

with § 5985’s terms.” Tyrrell, 177 A.3d at 952 (citation omitted).

     Instantly, the trial court held a hearing on August 12, 2015 to address

the Commonwealth’s request pursuant to section 5985. The Commonwealth

presented testimony from Stepmother, Nicholson, and Kaplan, all of whom

testified about J.H.’s demeanor when speaking about the incident.       When

J.H. disclosed to Stepmother in early December 2014, J.H. slouched and

covered her face. N.T., 8/12/2015, at 12.      Nicholson interviewed J.H. on

December 12, 2014, and noted that during the interview J.H. said she was

afraid, and was shaking with tears in her eyes throughout the interview. Id.

at 34-35.   During Kaplan’s December 17, 2014 interview, J.H. appeared

frightened prior to the interview after Mother and Mother’s sister-in-law were

yelling in the waiting area. Id. at 39. When Kaplan questioned J.H. about

Appellant, J.H. covered her face and began shaking and crying. Id. at 40.

During Kaplan’s second interview on January 2, 2015, J.H. shook less and

appeared less frightened, which J.H. attributed to her not having seen



                                    -7-
J-S24037-20

Appellant     recently.    Id.     The   Commonwealth      introduced     audiotape

recordings of Nicholson’s interview and Kaplan’s two interviews.

      Additionally, Stepmother testified that J.H. misses Appellant, is

anxious about him being in trouble, and expresses that she wants things to

go back to normal as long as Appellant does not do what he did again. Id.

at 16. According to Stepmother, “to go in front of [Appellant] and to know

that he’s in trouble is just going to be too much for her. She’s already going

through separation anxiety.” Id. at 15. Stepmother also testified regarding

J.H.’s change in behavior; prior to the incident J.H. was very neat and

organized, but after the incident she began to rip apart her room. Id. at 14.

      The trial court took the matter under advisement, and on November

16,   2015,    granted    the    Commonwealth’s   motion    for   J.H.    to   testify

contemporaneously by alternative means. In its Rule 1925(a) opinion, the

trial court explained that in light of the testimony presented at the August

12, 2015 hearing, it concluded that “forcing J.H. to testify in court in front of

her abuser would undoubtably [sic] cause her to suffer serious emotional

distress.” Trial Court Opinion, 8/16/2019, at 3. Specifically, the trial court

credited J.H.’s behavior change, demeanor of crying and shaking during

interviews, and stating that she could not speak to Nicholson because she

was afraid due to her “mom’s boyfriend [being] dangerous.”               Id. (record

citations and internal quotation marks omitted).




                                         -8-
J-S24037-20

      Although framed as a challenge to the trial court’s permitting J.H. to

testify by closed-circuit television pursuant to section 5985, Appellant’s

argument on appeal is slightly different.         In the argument section of his

brief, Appellant argues that the trial court erred in permitting J.H. to testify

via closed-circuit television “without conducting a hearing to make any

determination as to whether [J.H.] was incompetent to testify, due to her

capacity to communicate being overwhelmed by serious emotional distress.”

Appellant’s Brief at 27.     According to Appellant, the failure to test J.H.’s

competency violated Appellant’s “constitutional right to confront his accuser”

under the United States and Pennsylvania constitutions.             Id.     Thus,

Appellant’s arguments on appeal focus on (1) the lack of a competency

hearing, and (2) an alleged violation of the Confrontation Clause due to

J.H.’s testifying by closed-circuit television.

      We begin with Appellant’s argument that the trial court erred in failing

to conduct a competency hearing prior to granting the Commonwealth’s

request to permit J.H. to testify by contemporaneous alternative means,

mindful of the following.     “A decision on the necessity of a competency

hearing is addressed to the discretion of the trial court.” Commonwealth

v. Delbridge, 855 A.2d 27, 39 (Pa. 2003) (citation omitted).

      Although competency of a witness is generally presumed,
      Pennsylvania law requires that a child witness be examined for
      competency. See [] Delbridge, []855 A.2d at 39 (citing Rosche
      v. McCoy, [] 156 A.2d 307, 310 ([Pa.] 1959) and Pa.R.E.
      601).8 As we have recently reiterated, “this Court historically has
      required that witnesses under the age of fourteen be subject to

                                       -9-
J-S24037-20


      judicial inquiry into their testimonial capacity.” Commonwealth
      v. Ali, 10 A.3d 282, 300 n. 11 (Pa. 2010). “A competency
      hearing of a minor witness is directed to the mental capacity of
      that witness to perceive the nature of the events about which he
      or she is called to testify, to understand questions about that
      subject matter, to communicate about the subject at issue, to
      recall information, to distinguish fact from fantasy, and to tell
      the truth.” Delbridge, supra at 45. In Pennsylvania,
      competency is a threshold legal issue, to be decided by the trial
      court.
             ______
             8 Pa.R.E. 601(a) provides as follows:



                  General Rule. Every person is competent to
                  be a witness except as otherwise provided by
                  statute or in these Rules.

            The Comment to Rule 601 expressly states that Pa.R.E.
            601 “is intended to preserve existing Pennsylvania law.”

            In Rosche [], this Court stated that, under the prevailing
            rule, competency was presumed when the witness was
            over 14 years of age; however, when the witness was
            under 14 years of age, “there must be judicial inquiry as to
            mental capacity, which must be more searching in
            proportion to chronological immaturity.”

Commonwealth v. Hutchinson, 25 A.3d 277, 289-90 (Pa. 2011).

      Before reaching the merits, we must address whether Appellant has

preserved this issue for our review. In Appellant’s Rule 1925(b) statement,

he asserted that “[t]he trial court erred in not allowing [Appellant] to face

his accuser and permitting the victim to testify at trial by video television.”

Pa.R.A.P. 1925(b) Statement, 10/18/2017, at ¶ 1. Completely absent is any

reference to the trial court’s failure to conduct a competency hearing for J.H.

See Commonwealth v. Scott, 212 A.3d 1094, 1112 (Pa. Super. 2019)

(observing that “issues not raised in a Rule 1925(b) statement will be

                                    - 10 -
J-S24037-20

deemed waived for review”) (citation omitted).       Accordingly, this issue is

waived.

      As to Appellant’s Confrontation Clause argument, the current version

of section 5985 was specifically amended to comport with the Confrontation

Clause after the prior version was found to violate it.

      [Sections 5984 and 5985] were deemed unconstitutional
      because they allowed the use of a child’s videotaped depositions
      or testimony by closed-circuit television if the court approved
      their usage upon “good cause shown.” This standard was
      deemed insufficient to afford an accused his or her constitutional
      guarantees to confront a witness “face to face” as provided for
      by the Pennsylvania Constitution.4 Accordingly, the statutes
      were amended to require the trial court to find that “testifying
      either in an open forum in the presence and full view of the
      finder of fact or in the defendant’s presence will result in the
      child victim [] suffering serious emotional distress that would
      substantially impair the child victim’s [] ability to reasonably
      communicate.” 42 Pa.C.S.[] §§ 5984(b) and 5985(a.1).
            ______
            4 In 2003, the citizens of this Commonwealth voted to

            amend Article 1, Section 9 of the Pennsylvania
            Constitution. The amendment changed the right of an
            accused to confront his accuser “face to face” to the right
            “to be confronted with the witnesses against him.”

Commonwealth v. Kriner, 915 A.2d 653, 660 (Pa. Super. 2007).

      Based on the hearing testimony discussed above, we discern no error

in the trial court’s conclusion that J.H.’s testifying in Appellant’s presence

would result in J.H. suffering serious emotional distress that would impair

substantially her ability to communicate reasonably.      Having satisfied this

standard, Appellant’s right to confront the witnesses against him was not

violated by J.H.’s closed-circuit television testimony, as Appellant had the


                                     - 11 -
J-S24037-20

opportunity to observe and hear J.H., confer with counsel regarding his

defense, and the examination and cross-examination of J.H. occurred as if

she were in the courtroom. Accordingly, the trial court’s decision to permit

J.H. to testify by closed-circuit television pursuant to section 5985 did not

violate the Confrontation Clause, and Appellant is not entitled to relief on

this claim.

                                 Expert testimony

      We next review Appellant’s claim that the trial court erred in allowing

the Commonwealth’s expert witness to testify “that Appellant had committed

a sexual assault of the alleged victim, where that testimony went to the

ultimate issue in the case and invaded the province of the jury[.]”

Appellant’s Brief at 7.      Specifically, Appellant argues that Dr. Elcock-

Messam’s      statement   that   the   laceration   was   consistent   with   J.H.’s

description of Appellant’s conduct was a determination that could have been

made by the jurors based on their “common sense assessment of the facts,

without the aid of expert testimony.” Appellant’s Brief at 32.

      We review this claim mindful of the following.

      The admissibility of evidence is within the sound discretion of the
      trial court, and this Court will not reverse a trial court’s decision
      concerning admissibility of evidence absent an abuse of the trial
      court’s discretion. An abuse of discretion will not be found based
      on a mere error of judgment, but rather exists where the court
      has reached a conclusion which overrides or misapplies the law,
      or where the judgment exercised is manifestly unreasonable, or
      the result of partiality, prejudice, bias or ill-will. To the extent
      that this case presents a question of law, our standard of review
      is de novo, and our scope is plenary.

                                       - 12 -
J-S24037-20



Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014) (citations omitted).

     Pennsylvania courts permit expert testimony as an aid to the
     jury when the subject matter is distinctly related to a science,
     skill, or occupation beyond the knowledge or experience of the
     average layman. Conversely, expert testimony is not permitted
     on matters of common knowledge.              Commonwealth v.
     Hernandez, [] 615 A.2d 1337, 1343 ([Pa.         Super.]      1992).
     Expert testimony may not be used to bolster the credibility of
     witnesses because witness credibility is solely within the province
     of the jury.

     In determining the admissibility of expert testimony on matters
     related to sexual assaults, our courts have distinguished
     between testimony regarding physical facts and testimony
     regarding the behavior of victims. Generally, the conduct or
     behavior of victims has been held not to be a proper subject for
     expert testimony because such testimony tends to encroach
     upon the jury's function of evaluating witness credibility.
     Testimony regarding physical facts, however, has been held to
     be admissible.

     For example, in Hernandez, a panel of this Court held that “a
     pediatrician ..., qualified as a medical expert, may testify that
     the physical facts observed and reported by the treating
     physician were consistent with the allegation of anal
     sodomy.” Id. [] at 1343. In making this determination, we did
     not expressly state whether the pediatrician testified regarding
     the absence of evidence of physical trauma or the presence of
     such evidence. We also concluded that this testimony concerned
     a matter that was not within the common knowledge of an
     average juror. Id. Further, because the witness was informing
     the jury about objective and verifiable physical facts, we
     concluded     that   his    testimony    did   not    impermissibly
     withdraw “the issue of witness credibility from the jury.” Id. In
     other words, because the witness was testifying about the
     physical condition of the victim, the purpose of his testimony
     was not simply to bolster the credibility of the victim. Likewise,
     in Commonwealth v. Seigrist, [] 385 A.2d 405, 410 n. 7 ([Pa.
     Super.] 1978), we concluded that an expert medical witness
     could testify that the physical condition of an alleged rape victim
     was consistent with her rape allegations.


                                   - 13 -
J-S24037-20

Commonwealth v. Johnson, 690 A.2d 274, 276 (Pa. Super. 1997).

      At trial, Dr. Elcock-Messam testified on direct examination and redirect

examination that the laceration was consistent with J.H.’s proffered history

of Appellant’s conduct, i.e., digital penetration of J.H.’s genitalia.     N.T.,

1/12/2017, at 31, 44. Specifically, the following exchanges occurred.

      [ASSISTANT DISTRICT ATTORNEY (ADA)]: Within a reasonable
      degree of medical certainty is that scratch consistent with a
      fingernail?

      [DR. ELCOCK-MESSAM]: That scratch could be consistent with a
      fingernail.

      [ADA]: And within a reasonable degree of medical certain[t]y is
      that scratch consistent with digital penetration of the genitalia?

      [DR. ELCOCK-MESSAM]: Of the genitalia yes.

      [ADA]: And with a reasonable degree of medical certainty,
      doctor, is that scratch consistent with the history that [J.H.]
      gave you, what [J.H.] says happened to her?

      [DR. ELCOCK-MESSAM]: It is consistent with that history.

                                     ***

      [ADA]: So the labial adhesions were something else you found,
      but to keep our eye on the ball is the laceration consistent or
      inconsistent with digital penetration of the genitalia?

      [DR. ELCOCK-MESSAM]: It is consistent with digital penetration.

Id.

      Appellant’s counsel did not object to this testimony at the time of trial.

“We have long held that [f]ailure to raise a contemporaneous objection to

the evidence at trial waives that claim on appeal.”       Commonwealth v.


                                    - 14 -
J-S24037-20

Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (citations and quotation

marks omitted).     Because Appellant’s counsel failed to object at trial, this

claim is waived.7

                            Weight of the evidence

      We next review Appellant’s claim that the trial court erred in denying

his post-sentence motion challenging the weight of the evidence for his

convictions because “the Commonwealth presented [Stepmother] who

clearly perjured herself, and there were glaring inconsistencies in the

account of [J.H.]” Appellant’s Brief at 7.

      “A verdict is against the weight of the evidence ‘where certain facts are

so clearly of greater weight that to ignore them or to give them equal weight

with all the facts is to deny justice.’”     Commonwealth v. Williams, 176

A.3d 298, 312 (Pa. Super. 2017) (quoting Commonwealth v. Lyons, 833

A.2d 245, 258 (Pa. Super. 2003)). We examine challenges to the weight of

the evidence according to the following standard.

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. When a trial
      court considers a motion for a new trial based upon a weight of
      the evidence claim, the trial court may award relief only when
      the jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so

7Even if not waived, it was clearly the type of testimony that is permissible
by an expert witness in a sexual abuse case. See Johnson, 690 A.2d at
276. Accordingly, Appellant would not be entitled to relief on this claim.

                                     - 15 -
J-S24037-20


      that right may be given another opportunity to prevail. The
      inquiry is not the same for an appellate court. Rather, when an
      appellate court reviews a weight claim, the court is reviewing the
      exercise of discretion by the trial court, not the underlying
      question of whether the verdict was against the weight of the
      evidence. The appellate court reviews a weight claim using an
      abuse of discretion standard.

Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and

quotation marks omitted).

      Instantly, Appellant raised boilerplate weight challenges in his post-

sentence motion, arguably preserving this issue for appeal.                See Post-

Sentence Motion, 4/19/2017, at ¶¶ 5(VII), 5(VIII), 5(VIX).                 However,

Appellant failed to raise a weight issue in his Rule 1925(b) statement. See

Scott, 212 A.3d at 1112 (observing that “issues not raised in a Rule 1925(b)

statement   will   be   deemed   waived       for   review”)   (citation    omitted).

Accordingly, this issue is waived.

                          Sufficiency of the Evidence

      We next review Appellant’s claim challenging the sufficiency of the

evidence to sustain his EWOC conviction. Appellant’s Brief at 8.

      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 [that of] the fact-finder. In addition, we note that
      the facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubts
      regarding a defendant’s guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined

                                     - 16 -
J-S24037-20


      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. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Johnson, 192 A.3d 1149, 1155 (Pa. Super. 2018)

(citation omitted).

      Instantly, the trial court found this issue waived because Appellant

failed to specify which elements of which crimes he intended to challenge on

appeal in his Rule 1925(b) statement. See Trial Court Opinion, 8/16/2019,

at 5; Pa.R.A.P. 1925(b) Statement, 10/18/2017, at ¶ 4 (“The evidence

presented at trial was insufficient as a matter of law to support the

convictions of the defendant on the charges of Aggravated Indecent Assault

of Child, Indecent Assault Person Less than 13 Years of Age, Endangering

Welfare of Children, Parent/Guardian/Other Commits Offense[.]”).

      We have repeatedly held that [i]n 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 appellant alleges that the evidence
      was insufficient. … Therefore, when an appellant’s 1925(b)
      statement fails to specify the element or elements upon which
      the evidence was insufficient[,] ... the sufficiency issue is waived
      on appeal.

Commonwealth v. Ellison, 213 A.3d 312, 320-21 (Pa. Super. 2019)

(citations and quotation marks omitted). Thus, we agree with the trial court

that Appellant has waived any sufficiency claim he attempted to raise in his

Pa.R.A.P. 1925(b) statement.

                                     - 17 -
J-S24037-20

       However, Appellant’s purported sufficiency claim on appeal is actually

a challenge to the grading of his EWOC conviction. See Appellant’s Brief at

33. “[A] claim that the court improperly graded an offense for sentencing

purposes implicates the legality of a sentence. [A] challenge to the legality

of sentence is never waived and may be the subject of inquiry by the

appellate court sua sponte.” Commonwealth v. Hoffman, 198 A.3d 1112,

1123    (Pa.    Super.   2018)   (citations     and   quotation   marks   omitted).

Accordingly, Appellant’s challenge to the grading of his EWOC conviction is

properly before us, and we sua sponte review the grading of his convictions

for aggravated indecent assault and indecent assault, as well. “Our standard

of review is de novo, and the scope of our review is plenary.” Id. (citation

omitted).

       Instantly, Appellant was charged with EWOC pursuant to 18 Pa.C.S.

§ 4304(a), as a felony of the third degree. The version of the EWOC statute

applicable from the time of Appellant’s conduct until his sentencing provided

as follows.

       (a) Offense defined.--

               (1) A parent, guardian or other person supervising the
               welfare of a child under 18 years of age, or a person that
               employs or supervises such a person, commits an offense
               if he knowingly endangers the welfare of the child by
               violating a duty of care, protection or support.

               (2) A person commits an offense if the person, in an
               official capacity, prevents or interferes with the making of
               a report of suspected child abuse under 23 Pa.C.S. Ch. 63
               (relating to child protective services).

                                       - 18 -
J-S24037-20



              (3) As used in this subsection, the term “person
              supervising the welfare of a child” means a person other
              than a parent or guardian that provides care, education,
              training or control of a child.

        (b) Grading.--An offense under this section constitutes a
        misdemeanor of the first degree. However, where there is a
        course of conduct of endangering the welfare of a child, the
        offense constitutes a felony of the third degree.

18 Pa.C.S. § 4304 (effective 1/29/2007 to 8/27/2017).8



8   The current version of the statute altered subsection (b) as follows.

        (b) Grading.--

              (1) Except as provided under paragraph (2), the following
              apply:

                    (i) An offense under this section constitutes a
                    misdemeanor of the first degree.

                    (ii) If the actor engaged in a course of conduct of
                    endangering the welfare of a child, the offense constitutes
                    a felony of the third degree.

                    (iii) If, in the commission of the offense under subsection
                    (a)(1), the actor created a substantial risk of death or
                    serious bodily injury, the offense constitutes a felony of
                    the third degree.

                    (iv) If the actor’s conduct under subsection (a)(1) created
                    a substantial risk of death or serious bodily injury and was
                    part of a course of conduct, the offense constitutes a
                    felony of the second degree.

              (2) The grading of an offense under this section shall be
              increased one grade if, at the time of the commission of the
              offense, the child was under six years of age.

18 Pa.C.S. § 4304 (effective 8/28/2017).

                                       - 19 -
J-S24037-20

         According to Appellant, the evidence could not support a finding of

course of conduct required for a third-degree-felony grading because the

allegations comprised a single event, and thus he could only be charged and

convicted of EWOC as a misdemeanor of the first degree. Appellant’s Brief

at 33.

         In Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004),
         we addressed this issue. In that case, Popow was charged with
         various offenses including endangering the welfare of a child,
         following an altercation between him, his ex-girlfriend, and
         others. Id. at 15. At one point during the altercation, Popow
         picked up his four-year-old daughter, and when his ex-girlfriend
         and others tried to retrieve the child from him, Popow fell down
         a flight of stairs while holding the child. Id. Popow was convicted
         and sentenced on the endangerment charge graded as a
         felony. Id. On appeal, he challenged the legality of his sentence,
         asserting (1) neither the information nor the evidence made out
         a course of conduct that would raise the charge from a
         misdemeanor to a felony and (2) the jury was not instructed to
         make a finding on course of conduct. Id. We agreed, concluding
         that “in order to be graded as a third-degree felony, the
         Commonwealth must allege in the information and present
         evidence at trial of the additional factor of ‘course of conduct,’
         and the jury must be instructed on such.” Id. at 18. We thus
         remanded for resentencing. Id. at 18.

Hoffman, 198 A.3d at 1123-24.

         Here, Appellant proceeded to trial on charges of aggravated indecent

assault of a child, indecent assault, and EWOC based on allegations of a

single event wherein Appellant kissed J.H. and digitally penetrated her

genitalia.    At trial, the Commonwealth presented evidence of that single

event.     The Commonwealth did not request, and the trial court did not

provide, a jury instruction on course of conduct related to any of Appellant’s


                                       - 20 -
J-S24037-20

charges. As such, we conclude that the trial court erred when it sentenced

Appellant for EWOC as a felony of the third degree. See id.

      As noted supra, Appellant’s charge for indecent assault was amended

at trial to indecent assault of a child pursuant to 18 Pa.C.S. § 3126(a)(7),

graded as a felony of the third degree.        The indecent assault statute

provides, in pertinent part, as follows.

      (b) Grading.--Indecent assault shall be graded as follows:

                                      ***

            (3) An offense under subsection (a)(7) is a misdemeanor
            of the first degree unless any of the following apply, in
            which case it is a felony of the third degree:

                  (i) It is a second or subsequent offense.

                  (ii) There has been a course of conduct of indecent
                  assault by the person.

                  (iii) The indecent assault was committed by touching
                  the complainant’s sexual or intimate parts with
                  sexual or intimate parts of the person.

                  (iv) The indecent assault is committed by touching
                  the person’s sexual or intimate parts with the
                  complainant’s sexual or intimate parts.

18 Pa.C.S. § 3126(b). The record does not support a finding that this was a

second or subsequent offense, a course of conduct, or that Appellant’s

sexual or intimate parts came into contact with J.H.’s. Accordingly, the trial

court erred in sentencing Appellant for indecent assault as a felony of the

third degree.



                                     - 21 -
J-S24037-20

      Based on the foregoing, we vacate the judgment of sentence imposed

for   EWOC    and   indecent   assault   and    remand   for   resentencing   with

consideration of the Sentencing Guidelines for those charges graded as

misdemeanors of the first degree.        See Hoffman, 198 A.3d at 1125; 18

Pa.C.S. § 4304; 18 Pa.C.S. § 3126(b).           Because the trial court ordered

Appellant’s sentences to run consecutively, we remand for resentencing on

all counts,9 as our ruling may upset the court’s overall sentencing scheme.10

Id. (citing Commonwealth v. Serrano, 61 A.3d 279, 287-88 (Pa. Super.

2013)).

      Judgment of sentence vacated.            Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/20




9 In doing so, we observe that Appellant’s amended charge of aggravated
indecent assault of a child was graded properly as a felony of the first
degree. See 18 Pa.C.S. § 3125(c)(2) (“An offense under subsection (b) is a
felony of the first degree.”).
10 In light of our disposition, Appellant’s discretionary-aspects-of-sentencing
claim is moot. See Commonwealth v. Tanner, 61 A.3d 1043, 1046 n.3
(Pa. Super. 2013).

                                     - 22 -
