J-S22031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

THOMAS D. TYSON, SR.,

                            Appellant                  No. 1697 MDA 2016


             Appeal from the Judgment of Sentence August 2, 2016
                 in the Court of Common Pleas of Union County
               Criminal Division at No.: CP-60-CR-0000255-2015


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED AUGUST 16, 2017

        Appellant, Thomas D. Tyson, Sr., appeals from the judgment of

sentence imposed following his jury conviction of aggravated indecent

assault of a person less than thirteen years of age and indecent assault of a

person less than thirteen years of age.1 We affirm.

        The trial court set forth the relevant background of this case as follows

in its November 15, 2016 opinion filed pursuant to Pennsylvania Rule of

Appellate Procedure 1925(a). See Pa.R.A.P. 1925(a).

              On October 7, 2015[,] the Commonwealth filed an
        information charging [Appellant] with aggravated indecent
        assault of a child less than thirteen (13) years of age, a felony of
        the second degree and indecent assault of a person less than
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3125(a)(7) and 3126(a)(7), respectively.
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     thirteen (13) years of age, a misdemeanor of the first degree.
     [Appellant] pled not guilty and the matter was scheduled for trial
     on March 17, 2016. The allegations stem from an incident that
     occurred on September 13—September 14, 2014 in Kelly
     Township, Union County.        The Commonwealth alleged that
     [Appellant] was at his home with his son and granddaughter,
     [S.T.]. [S.T.] was five (5) years of age at the time.

            The testimony revealed that [Appellant] and his son were
     outside at [Appellant’s] residence consuming beer and listening
     to a football game.        At some point during the evening
     [Appellant’s] son went into the house and fell asleep in a chair in
     the living room. [S.T.], the victim in this matter, fell asleep on a
     loveseat/couch in the same living room.

          The Commonwealth alleged that at some point in the
     evening [Appellant] came into the house and sat down on the
     couch next to [S.T.].

           While on the couch [Appellant] licked his finger and
     fondled and penetrated [S.T.’s] vagina.

           At trial, the jury convicted [Appellant] of both counts.

           After the preparation of a pre-sentence investigation and
     an evaluation by the Pennsylvania Sexual Offender Assessment
     Board [Appellant] was sentenced on August 2, 2016 to a period
     of incarceration on the aggravated indecent assault to three (3)
     years to ten (10) years and a concurrent five (5) year probation
     on the indecent assault charge.

           [Following the court’s denial of his timely post-sentence
     motion, Appellant] filed a [timely] notice of appeal on October
     13, 2016 and, pursuant to [the] court’s order, filed [a]
     statement of matters complained of on appeal on November 8,
     2016. [See Pa.R.A.P. 1925(b).]

(Trial Court Opinion, 11/15/16, at 1-2) (some capitalization omitted).

     Appellant raises the following issues for our review:

     1. Did error occur when Appellant was convicted despite the jury
     indicating they had reasonable doubt?



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      2. Did error occur when Appellant was convicted despite the fact
      that the verdict was against the weight of the evidence, as the
      jury had reasonable doubt?

      3. Did error occur in jury instructions regarding testimony of the
      alleged victim?

(Appellant’s Brief, at 8).

      Appellant first challenges the sufficiency of the evidence supporting his

conviction, arguing that the evidence, at best, “encompassed two of the

three elements of aggravated indecent assault and one of the two elements

of indecent assault.” (Appellant’s Brief, at 12; see id. at 11) (capitalization

omitted). This issue is waived.

      Pennsylvania Rule      of Appellate   Procedure   1925(b) provides, in

pertinent part: “Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”

Pa.R.A.P. 1925(b)(4)(vii). Further,

            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
      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. Freeman, 128 A.3d 1231, 1248 (Pa. Super. 2015)

(citations and quotation marks omitted).

      Here, in his Rule 1925(b) statement, Appellant did not identify which

elements he was challenging, did not specify for which crime, nor did he

even use the term “sufficiency.” (See Appellant’s Rule 1925(b) Statement,


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11/08/16, at ¶ 1).       Instead, he appears to have conflated his sufficiency

claim with his jury instruction challenge, stating: “[Appellant] respectfully

submits that error occurred when [he] was convicted despite the jury

indicating they had reasonable doubt.” (Id.); (see also Appellant’s Brief, at

11).2 The trial court therefore did not address the subject of the sufficiency

of the evidence in its opinion. (See Trial Ct. Op., at 3-5). Thus, Appellant

has waived his challenge to the sufficiency of the evidence. See Pa.R.A.P.

1925(b)(4)(vii); Freeman, supra at 1248.

       Appellant next challenges the weight of the evidence supporting his

conviction.3 (See Appellant’s Brief, at 12-13). This issue is also waived.

       . . . It is well settled that the argument portion of an appellate
       brief must be developed with pertinent discussion of the issue,
       which includes citations to relevant authority.          Pa.R.A.P.
       2119(a). See Commonwealth v. Genovese, 450 Pa. Super.
       105, 675 A.2d 331, 334 (1996) (stating that “[t]he argument
       portion of an appellate brief must be developed with a pertinent
       discussion of the point which includes citations to the relevant
       authority”).

                                       *       *   *

       . . . This Court is neither obliged, nor even particularly equipped,
       to develop an argument for a party. To do so places the Court in
       the conflicting roles of advocate and neutral arbiter. When an

____________________________________________


2
  We note that we address Appellant’s jury instruction claim as presented in
his third issue, infra.
3
 Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).



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      appellant fails to develop his issue in an argument and fails to
      cite any legal authority, the issue is waived.

Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012), appeal

denied, 69 A.3d 601 (Pa. 2013) (some case citations omitted).

      In the instant case, in his four-sentence argument on this issue,

Appellant improperly incorporates his sufficiency discussion by reference,

while incongruously recognizing the separate nature of the issues and “the

inherent   contradiction   between   sufficiency    and   weight   arguments[.]”

(Appellant’s Brief, at 12). Save a single bare reference to the standard of

review for weight claims, he fails to provide this Court with any discussion of

legal authority pertinent to his claim, nor does he provide any citation to the

certified record.   See Pa.R.A.P. 2119(c) (requiring references to record in

argument).     This lack of analysis precludes meaningful appellate review.

Thus, Appellant’s second issue is waived. See Knox, supra at 748.

      Finally, Appellant contends that the trial court erred by issuing an

inaccurate and inadequate jury instruction regarding the victim’s testimony

during jury deliberations. (See Appellant’s Brief, at 13). This issue is also

waived, for his failure to object to the challenged instruction.

      “In order to preserve a claim that a jury instruction was erroneously

given,   the   Appellant   must   have   objected   to    the   charge   at   trial.”

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014), appeal

denied, 117 A.3d 296 (Pa. 2015) (citations omitted). “The pertinent rules . .

. require a specific objection to the charge or an exception to the trial court’s



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ruling on a proposed point to preserve an issue involving a jury instruction.”

Id. (citations omitted).

        Here, the record reflects that, during jury deliberations, the trial court

received a question from the jury, stating: “There is reasonable doubt over

the evidence, but we believe the child’s testimony. Which conclusion weighs

more?” (N.T. Trial, 3/17/16, at 174). The court conducted an on-the-record

discussion with counsel, out of the presence of the jury, advising that it

would re-read the portions of its initial charge pertinent to the jury’s

question. (See id. at 174-75; see also Trial Ct. Op., at 3-5). The court

then reviewed the instruction with counsel and asked for their thoughts, and

both attorneys agreed that it “sound[ed] fair[.]”       (N.T. Trial, 3/17/16, at

175).    The court proceeded to instruct the jury as proposed, without any

objection from counsel.      (See id. at 175-77).      Thus, because Appellant

assented to the instruction, his claim seeking to challenge it on appeal is

waived. See Parker, supra at 29. Accordingly, we affirm the judgment of

sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2017


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