J-S27043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TONY L. WILLIAMS,

                            Appellant                    No. 701 EDA 2016


          Appeal from the Judgment of Sentence November 23, 2015
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0012448-2013


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 04, 2017

        Appellant, Tony L. Williams, appeals from the judgment of sentence

imposed after his bench conviction of unlawful contact with a minor,

corruption of minors, and indecent assault without consent.1 We affirm.

        The trial court opinion aptly sets forth the pertinent facts as follows:

              On March 10, 2013, around 3:00 a.m., the complainant
        (“Z.H.”) was at her aunt’s father’s house on the 6800 block of
        Dyer Street in the City and County of Philadelphia, PA. Z.H. was
        sleeping in the living room area of the house when [Appellant],
        who is Z.H.’s cousin, physically woke her up. [Appellant] asked
        her to touch his private parts and Z.H. refused. [Appellant] then
        touched Z.H. on her vagina, over her clothes two times.
        [Appellant] then attempted to grab Z.H.’s waist. [Appellant] told
        her that “if [she] wanted anything [she] could get it.” The
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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6318(a)(1), 6301(a)(1)(i), and 3126(a)(1), respectively.
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       incident occurred for twenty to thirty minutes. At the time of the
       assault, Z.H. was thirteen years old. Z.H. reported the incident
       to police the next day and gave a statement.

(Trial Court Opinion, 10/11/16, at 2-3) (record citations omitted).

       On January 23, 2015, after a bench trial, the court convicted Appellant

of the foregoing offenses. The court deferred sentencing for the preparation

of a presentence investigation report (PSI) and an assessment by the Sexual

Offender Assessment Board (SOAB).                On November 23, 2015, after a

hearing, the court found that the Commonwealth proved by clear and

convincing evidence that Appellant is a sexually violent predator (SVP). The

same day, Appellant was sentenced to a term of not less than one-and-one-

half nor more than five years’ incarceration on the unlawful contact with a

minor charge, followed by five years of sex offender probation.       Appellant

filed a post-sentence motion on November 28, 2015 that the court denied on

February 3, 2016. On February 26, 2016, Appellant timely appealed.2

       Appellant raises three questions for this Court’s review:

       I.    Whether the weight of the evidence was against
       Appellant’s convictions for unlawful contact with a minor,
       corruption of minors, and indecent assault without consent?


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2
  On April 26, 2016, this Court granted Appellant’s petition for remand on
the basis of counsel’s per se ineffectiveness in failing to file a court-ordered
statement of errors complained of. See Pa.R.A.P. 1925(c)(3). On the same
date, Appellant filed his statement of errors complained of on appeal nunc
pro tunc. See Pa.R.A.P. 1925(b). The trial court filed an opinion on October
11, 2016. See Pa.R.A.P. 1925(a).



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       II.   Whether the evidence was insufficient to convict Appellant
       of unlawful contact with a minor, corruption of minors, and
       indecent assault without consent?

       III. Whether the trial court abused its discretion when it
       classified Appellant as [an SVP] and given [sic] an excessively
       punitive sentence of one and a half [] to five [] years’
       incarceration on the unlawful contact with a minor charge[?]

(Appellant’s Brief, at 8) (unnecessary capitalization and Crimes Code

citations omitted).

       In his first issue, Appellant maintains that “[t]he weight of the

evidence is against [his] convictions.” (Id. at 17).3 Specifically, he argues

that “[t]he sum of ZH’s prior statements and in court testimony is an

implausible narrative, resulting in a failure of the Commonwealth to meet its

burden of proof beyond a reasonable doubt.” (Id. at 18). We disagree.

              When we review a weight-of-the-evidence challenge, we
       do not actually examine the underlying question; instead, we
       examine the trial court’s exercise of discretion in resolving the
       challenge. This type of review is necessitated by the fact that
       the trial judge heard and saw the evidence presented. Simply
       put, [o]ne of the least assailable reasons for granting or denying
       a new trial is the lower court’s conviction that the verdict was or
       was not against the weight of the evidence and that a new trial
       should be granted in the interest of justice. A new trial is
       warranted in this context only when the verdict is so contrary to
       the evidence that it shocks one’s sense of justice and the award
       of a new trial is imperative so that right may be given another
       opportunity to prevail.
              Of equal importance is the precept that, [t]he finder of fact
       . . . exclusively weighs the evidence, assesses the credibility of

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3
 Appellant raised this issue in his post-sentence motion. See Pa.R.Crim.P.
607(A)(3).



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      witnesses, and may choose to believe all, part, or none of the
      evidence.

Commonwealth v. Rayner, 153 A.3d 1049, 1056 (Pa. Super. 2016)

(citations and quotation marks omitted).

      In this case, we decline Appellant’s invitation to re-weigh the evidence.

The trial court presided over Appellant’s trial as the finder of fact and found

Z.H.’s testimony that Appellant asked her to touch his private parts, touched

her vagina above her clothes twice, and told her “if [she] wanted anything

that [she] could get it[,]” to be credible.   (Trial Ct. Op., at 3 (citing N.T.

Trial, 1/23/15, at 10)). The verdict is not shocking to this Court’s sense of

justice and the trial court did not abuse its discretion in denying Appellant’s

motion for a new trial.   See Rayner, supra at 1056.       Therefore, his first

issue does not merit relief.

      In his second claim, Appellant argues that the evidence was

insufficient to support his conviction. (See Appellant’s Brief, at 18-19). This

issue is waived and would not merit relief.

            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).


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       Here, Appellant’s Rule 1925(b) statement argues only that “[t]he

Commonwealth presented insufficient evidence to sustain a conviction

beyond a reasonable doubt. There were simply too many people in the room

for this event to have occurred according to the complainant.” (Appellant’s

Rule 1925(b) Statement, at 1 ¶ 2). This statement does not identify which

element     or   elements     of   the    crimes,   or   even   which   crimes,   the

Commonwealth allegedly failed to prove.              Therefore, Appellant’s second

issue is waived.4 See Freeman, supra at 1248.

       Moreover, it would not merit relief. It is well-settled that:

              In reviewing the sufficiency of the evidence, we must
       determine whether the evidence admitted at trial, and all
       reasonable inferences drawn from that evidence, when viewed in
       the light most favorable to the Commonwealth as verdict winner,
       was sufficient to enable the fact finder to conclude that the
       Commonwealth established all of the elements of the offense
       beyond a reasonable doubt. The Commonwealth may sustain its
       burden by means of wholly circumstantial evidence. Further, the
       trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Reese, 2017 WL 750789, at *5 (Pa. Super. filed Feb.

27, 2017) (citation omitted).            Further, it is well-settled that, “under

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4
   Appellant’s brief is similarly deficient. His entire “argument” regarding
sufficiency of the evidence is approximately one page long, cites only
boilerplate law on the standard of review of a sufficiency of the evidence
claim, and his “discussion” merely consists of a recitation of the facts in the
light most favorable to him, without any analysis of how those facts failed to
establish the elements necessary for a conviction of unlawful contact with a
minor, corruption of minors, and indecent assault. (See Appellant’s Brief, at
18-19). Therefore, we deem Appellant’s issue to be waived on this basis as
well. See Pa.R.A.P. 2101, 2119(a)-(b).



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prevailing Pennsylvania law, the uncorroborated testimony of a sexual

assault victim, if believed by the trier of fact, is sufficient to convict a

defendant[.]” Commonwealth v. Trippett, 932 A.2d 188, 201 (Pa. Super.

2007) (citation and internal quotation marks omitted).

       In this case, the trial court convicted Appellant of unlawful contact with

a minor, corruption of minors, and indecent assault without consent.                 To

sustain a conviction for unlawful contact with a minor as charged in this

case, the Commonwealth must prove beyond a reasonable doubt that the

defendant intentionally contacted a minor, for the purpose of engaging in a

prohibited sexual offense.       See 18 Pa.C.S.A. § 6318(a)(1). Section 6301,

corruption of minors, states, in relevant part that, “whoever, being of the

age of [eighteen] years and upwards, by any act corrupts or tends to corrupt

the morals of any minor less than [eighteen] years of age . . . commits a

misdemeanor of the first degree.”              18 Pa.C.S.A. § 6301(a)(1)(i).5   Finally,

section 3126 of the Crimes Code provides, in pertinent part, that a person is

guilty of indecent assault if, without the complainant’s consent, “the person

has indecent contact with the complainant [or] causes the complainant to

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5
  “In deciding what conduct can be said to corrupt the morals of a minor,
[t]he common sense of the community, as well as the sense of decency,
propriety and the morality which most people entertain is sufficient to apply
the statute to each particular case, and to individuate what particular
conduct is rendered criminal by it.” Commonwealth v. Decker, 698 A.2d
99, 101 (Pa. Super. 1997), appeal denied, 705 A.2d 1304 (Pa. 1998)
(citations and quotation marks omitted).



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have indecent contact with the person . . . for the purpose of arousing

sexual desire in the person or the complainant[.]”           18 Pa.C.S.A. §

3126(a)(1).

      Here, at the time of the incident, Appellant was over the age of

eighteen, and his cousin, Z.H., was thirteen years’ old. (See N.T. Trial, at

8). Z.H. testified that Appellant woke her up at approximately three a.m.,

asked her to touch his private parts, touched her on her vagina over her

clothes twice, and tried to grab her waist.   (See id. at 8-10). During the

twenty to thirty minute incident, Appellant told Z.H. that “if [she] wanted

anything[,] [she] could get it.” (Id. at 10). Z.H. reported the incident to

the police the next day. (See id. at 17-18). Based on the foregoing, we

conclude that the trial court properly found that this evidence was sufficient

to sustain Appellant’s convictions.     See Reese, supra at *5; see also

Trippett, supra at 201; 18 Pa.C.S.A. §§ 3126(a)(1), 6301(a)(1)(i),

6318(a)(1). Appellant’s second issue would not merit relief, even if properly

raised in his Rule 1925(b) statement.

      In his third issue, Appellant makes two arguments, that he “was

incorrectly sentenced as [an SVP]” and that he “[was] given an excessively

punitive sentence[.]”   (Appellant’s Brief, at 19) (unnecessary capitalization

omitted). Appellant’s issue does not merit relief.

      We address Appellant’s SVP challenge first. Appellant argues that “the

Commonwealth did not meet their [sic] burden of clear and convincing


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evidence that Appellant is [an] SVP.”      (Id. at 21).   Although this claim

challenges the sufficiency of the evidence, Appellant’s Rule 1925(b)

statement again fails “[to] state with specificity the element or elements

upon which the appellant alleges that the evidence was insufficient.”

Freeman, supra at 1248 (citation omitted).       Therefore, this argument is

waived. Moreover, it would not merit relief.

            If a person appeals an SVP designation and contends the
      evidence supporting that designation was insufficient, our
      standard of review is clear. We do not weigh the evidence
      presented to the sentencing court and do not make credibility
      determinations.   Instead, we view all the evidence and its
      reasonable inferences in a light most favorable to the
      Commonwealth. We will disturb an SVP designation only if the
      Commonwealth did not present clear and convincing evidence to
      enable the court to find each element required by the SVP
      statutes.

Commonwealth v. Feucht, 955 A.2d 377, 381-82 (Pa. Super. 2008),

appeal denied, 963 A.2d 467 (Pa. 2008) (citations omitted).

      In this case, Dr. Thomas F. Haworth, Ph.D., testified at the sentencing

hearing that, in his expert opinion, Appellant met the criteria for designation

as an SVP.     (See N.T. Sentencing, 11/23/15, at 25).        He reached this

conclusion after reviewing, inter alia, the SOAB investigator’s report,

Pennsylvania Justice Network (JNET) photo searches, the affidavit of

probable cause, the criminal complaint, Appellant’s mental health evaluation,

and the PSI.    (See N.T. Sentencing, at 8; see also SVP Assessment,

4/10/15, at 1-2). He considered all of the factors required for conducting an

SVP assessment and concluded that Appellant suffers from antisocial

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personality disorder, which is associated with increased recidivism in sexual

offenders.   (See N.T. Sentencing, at 10-25).      Doctor Haworth noted that

Appellant’s criminal history includes a prior crime of sexual violence against

a thirteen-year-old, and that he has a pattern of callous indifference toward

the impact his exploitation of others has on them. (See id. at 20, 23). He

concluded that, due to this mental abnormality, Appellant has a likelihood of

engaging in predatory sexually violent offenses because his “antisocial

strivings [override] his volitional control.”   (Id. at 24; see id. at 24-25).

The doctor concluded, to a reasonable degree of professional certainty, that

Appellant meets the criteria for designation as an SVP. (See id. at 25).

      Based on the foregoing and our independent review of the record, we

conclude that the trial court did not abuse its discretion in finding that “the

Commonwealth [presented] clear and convincing evidence to enable [it] to

find each element required by the SVP statutes.”       Feucht, supra at 382

(citation omitted).   Appellant’s argument in this regard would not merit

relief, even if it were not waived.

      Next, Appellant claims that the trial court abused its discretion when it

sentenced him to “an excessively punitive sentence of one and a half [] to

five [] years[’] incarceration on the unlawful contact with a minor charge.”

(Appellant’s Brief, at 10). He maintains that the sentence “was above the

guidelines [and] without sufficient explanation on the record[.]” (Id. at 26).




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        This issue challenges the discretionary aspects of Appellant’s sentence,

which    “should    be    considered     a     petition   for   allowance   of   appeal.”

Commonwealth v. Hicks, 151 A.3d 216, 226 (Pa. Super. 2016) (citation

omitted).

              An appellant challenging the discretionary aspects of his
        sentence must invoke this Court’s jurisdiction by satisfying a
        four-part test:

                    [W]e 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, [see] 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, [see] 42
              Pa.C.S.A. § 9781(b).

Id. (case citation omitted).

        In the case before us, Appellant’s Rule 2119(f) statement claims that

“the trial court abused its discretion when it imposed a manifestly excessive

sentence . . . of one and a half [] to five [] years’ incarceration for unlawful

contact with a minor[] . . . without putting its reasons on the record.”

(Appellant’s Brief, at 10) (unnecessary capitalization omitted).6 However, in

his post-sentence motion, although Appellant iterated the terms of his
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6
   Appellant also improperly includes his SVP claim in the Rule 2119(f)
statement. (See Appellant’s Brief, at 10). As already discussed, this
allegation challenges the sufficiency of the evidence, not the discretionary
aspects of sentencing.



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sentence, he did not allege that it was excessive or that the court failed to

support it by placing its reasons on the record. (See Post-Sentence Motion,

11/28/15, at unnumbered page 1 ¶ 4).           Therefore, Appellant failed to

preserve his discretionary aspects of sentence issue. See Commonwealth

v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008), appeal denied, 972 A.2d 521

(Pa. 2009) (“[F]or any claim that was required to be preserved, this Court

cannot review a legal theory in support of that claim unless that particular

legal theory was presented to the trial court.”) (citation omitted).

      Moreover, although his claim does raise a substantial question, see

Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super. 2006), it would

not merit relief.

      It is well-settled that “[s]entencing 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.”            Commonwealth v.

Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal denied, 95 A.3d

275 (Pa. 2014) (citation omitted).       Importantly, “[w]here pre-sentence

reports exist, we shall . . . presume that the sentencing judge was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.        A pre-sentence

report constitutes the record and speaks for itself.”     Id. at 761 (citation

omitted).

      In this case, before sentencing Appellant, the court stated:


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      In fashioning its sentence, the [c]ourt has considered that the
      sentence imposed should call for confinement that is consistent
      with the protection of the public, the gravity of the offense as it
      relates to the impact on the life of the victim and the
      community, and the rehabilitative needs of [Appellant].

            The [c]ourt has also considered the [PSI], the SOAB
      report,  the    Commonwealth’s   sentencing   memorandum,
      argument of counsel, testimony from [Appellant’s] mother [],
      and [Appellant’s] allocution.

(N.T. Sentencing, at 52).

      Based on the foregoing, particularly the fact that the trial court had

the benefit of a PSI, which “constitutes the record and speaks for itself[,]”

we conclude that the court provided sufficient reasons for imposing

Appellant’s sentence and that it did not abuse its discretion.      Antidormi,

supra at 761 (citation omitted); see id. at 760. Therefore, this argument

would not merit relief, even if it had been properly raised with the trial court.

      For all of the foregoing reasons, Appellant is not entitled to relief on

his three issues.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2017




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