J-S58001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD J. FEHIR, JR.                      :
                                               :
                       Appellant               :   No. 1355 WDA 2018

          Appeal from the Judgment of Sentence Entered April 24, 2018
                 In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0000434-2016


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.:                 FILED DECEMBER 20, 2019
    Richard J. Fehir, appeals from the judgment of sentence entered on April

24, 2018, in the Court of Common Pleas of Beaver County, following his

conviction of multiple counts of rape,1 involuntary deviant sexual intercourse

(IDSI),2 sexual assault,3 aggravated indecent assault,4 indecent assault,5




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1   18 Pa.C.S.A. §§ 3121(a)(1), (2) and (c).

2   18 Pa.C.S.A. §§ 3123(a)(1), (2), (7), and (b).

3   18 Pa.C.S.A. § 3124.1.

4   18 Pa.C.S.A. §§ 3125(a)(1), (2), (3), (7), and (b).

5   18 Pa.C.S.A. §§ 3126(a)(1), (2), (3), (4), (7), and (8).
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indecent exposure,6 unlawful contact with a minor,7 corruption of a minor,8

and endangering the welfare of a child.9 On appeal, Fehir claims the evidence

was insufficient to sustain his conviction for rape of a child and the trial court

erred in allowing the Commonwealth to re-open its case-in-chief, after Fehir

moved for a judgment of acquittal, to allow formal identification of him as the

perpetrator. After review, we affirm.

        The trial court summarized the facts behind Fehir’s conviction as

follows.

        On January 16, 2018, [Fehir] proceeded to a jury trial in this
        matter. . . . The Commonwealth called [the Victim] to testify. [The
        Victim] testified that she is familiar with Richard Fehir because he
        was her stepfather. Testimony by [the Victim] provided that
        Richard Fehir “raped and molested [the Victim] for ten years”
        beginning when she was “about five.”. . .

                                         ****

        [The Victim] testified that [ ] Fehir would come into her room at
        night and watch her while she was sleeping or pretending to sleep.
        [ ] Fehir would touch [the Victim] inappropriately, he would
        massage “down [her] back to [her] butt and then [her] thighs[;]”
        this is where it started. [The Victim] further indicated that
        eventually, [ ] Fehir would pull down her pants and “put his mouth
        on [her] vagina[.]” The Victim testified that [ ] Fehir would
        perform these acts “[a]t least a few times a month when he would
        go out[.]”. . .


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6   18 Pa.C.S.A. § 3127(a).

7   18 Pa.C.S.A. § 6318(a).

8   18 Pa.C.S.A. § 6301(a)(1).

9   18 Pa.C.S.A. § 4304(a)(1).

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     When [the Victim] was seven or eight years old, she testified that
     things got worse,

           [i]t went from [Fehir] putting his mouth on [her]
           vagina, he would put his hands on it. Then he would
           come in his boxers and he would take his penis out
           and he would rub it on [her] vagina.

     [The Victim] testified that she would try to prevent this from
     happening by “locking the door, but there was a key to [her] door,
     so he would just open it.” The Victim indicated that, during the
     times when [ ] Fehir would put his mouth on her vagina, there
     was penetration with his tongue. [The Victim] further provided
     that “[Fehir], would rub his penis on [her] vagina with [her] pants
     pulled down and [] he accidently went inside [her].” As a result
     of [ ] Fehir’s penis entering the Victim’s vagina, “[she] bled” and
     [ ] Fehir told her she “should get cleaned up, so [she] had to go
     take a shower.” According to [the Victim], she told her mother
     that she was bleeding but didn’t say why; this occurred “before
     [she] hit puberty” and “[she] might have been 15.” [The Victim]
     also testified about a time when she was six or seven years old
     when [ ] Fehir was rubbing his penis on her and there was
     penetration. This incident likewise caused the Victim to bleed.
     The Victim stated that [ ] Fehir caused penetration with his penis
     as well as contact with his semen when she was about fourteen or
     fifteen years old, testifying as follows:

           [h]e took me to his bedroom. While I pretended to
           sleep, he carried me in, and he was rubbing his penis
           on my vagina without clothes. My pants were pulled
           down. He had accidentally went all the way inside of
           my vagina with his penis, and he ejaculated onto me,
           onto my vagina. That’s when he told me that I should
           probably go get cleaned up, and I cried in the shower.

     The Victim testified that once she hit puberty, [ ] Fehir was more
     careful about his actions in that “[h]e would make sure not to go
     inside [her] with his penis.”

                                  ****

     After the Commonwealth rested its case, the [d]efense made a
     motion for judgment of acquittal on two bases: 1) that none of
     the witnesses made an in-court identification of [ ] Fehir, and 2)

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       that in viewing the evidence in the light most favorable to the
       Commonwealth, no reasonable juror could find [Fehir’s] guilt
       beyond a reasonable doubt. With respect to the first basis for the
       motion, counsel for [Fehir] stated that during the course of the
       testimony by the three lay witnesses, [the Victim], [her friend,
       J.W.], and [her cousin, K.J.], and by the law enforcement officers
       . . . there had at no time been an in-court identification of [Fehir]
       as the perpetrator. Further, while he had been referenced by
       name, the defense argued that there was not a single occasion
       where [Fehir] was identified in court as the perpetrator of the
       crimes, and that the Commonwealth had not proven [Fehir] was
       the person who committed these offenses. Thereafter, there was
       a discussion on the record, in chambers as follows:

              [The Commonwealth]: Your Honor, my recollection is
              there was a stipulation to his identification. I was
              relying on that. I was not aware that that was an issue
              that would be brought up by defense. If that is the
              issue, and he wishes to address it, I would ask to recall
              a witness.

              [The Defense]: Well, Your Honor, they have rested
              their case, and I have never stipulated to his
              identification. I have done that in the past. Once they
              said, do you see him in the courtroom and can you
              describe what he is wearing, where he is sitting,
              something to that effect. It never occurred. I never
              made that stipulation because the issue never came
              up.

              THE COURT: Never had that one.

              [The Commonwealth]: In this case, Judge, we have
              his voice and we have his voice, identified[10] and we
              have multiple victims coming into the courtroom and
              describing their relationship with him. I can tell you
              that there were times in the trial that [the Victim]
              referred to him by gesturing in the courtroom and that
              she did in the courtroom during her testimony and
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10During trial, the parties stipulated to the admission of a tape-recorded
conversation between the Victim and Fehir, which they played for the jury
while the Victim testified. See Trial Court Opinion, 11/16/18, at 7-8.

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          that she answered my questions in the affirmative. To
          me that seems to be more of a technicality than
          anything else. If it’s a technicality that needs to be
          corrected, I would ask leave of the Court to correct it.

          [The Defense]: Well, Your Honor, whether it’s a
          technicality or not I can’t speak to that, but I mean
          there is a reason that we have lineups and other forms
          of in person identification so that we can establish that
          the person who is at defense table is the person who
          is accused of the crime and committed the crime. If
          you read that transcript, whether somebody nodded,
          gestured, passively alluded, there is not a single
          indication in this record that that person sitting in the
          courtroom is the person who committed these
          offenses.

          [The Defense]: Even in opening statements counsel
          referred to his client, Mr. Fehir, who was charged with
          these crimes, who is here. I, I am astounded, Judge.
          I don't understand the nature of that.

          THE COURT: Insofar as the audio stipulation, I am
          going to try to recall however that went. I know we
          stipulated to the authentication of it.

          [The Defense]: I stipulated to the admission of the
          recording. That’s it. I never stipulated that that was
          his voice on the recording. I simply didn’t require that
          the officer come in to authenticate the recording itself.
          That’s it.

          THE COURT: Well, certainly I’ve been involved in
          cases where the Commonwealth is permitted to re-
          open their case after having closed. So I think maybe
          given all of the circumstances, witnesses making
          reference to him, nodding towards, pointing towards
          him as the [d]efendant, given those circumstances in
          order to make the record abundantly clear l am going
          to allow the Commonwealth to re-open and call a
          witness. I don’t know where it goes from there.

     After conducting a colloquy of [Fehir] for purposes of whether he
     intended to testify on his own behalf, the [trial court] permitted

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        the Commonwealth to re-open its case and recall [the Victim] to
        testify. At that time, [the Victim] testified that, “throughout [the]
        hearing [she had] been testifying about Richard J. Fehir, Jr.[,]”
        and that he was seated in the courtroom wearing “[a] blue shirt,
        [and] a green-blue tie.” At that point, the Commonwealth
        requested that the record reflect that [Fehir] had been identified
        by the witness, and the [trial court] directed that the record reflect
        the same.

        Following deliberations in the case, the jury rendered a verdict of
        guilty as to twenty-three (23) of the twenty-four (24) counts set
        forth in the amended [i]nformation.[11] The [trial court] held a
        sentencing hearing on April 24, 2018[,] at which time [Fehir] was
        sentenced, by [o]rder on the same date, to an aggregate sentence
        of not less than 306 months or 25 and 1/2 years to not
        more than 612 months or 51 years of total confinement with a
        consecutive term of probation of three years. The [o]rder further
        provided that [Fehir] is to comply with the registration
        requirements of 42 Pa. C.S.A. §§ 9799.1 et seq, and that he is
        required to remain registered with the Pennsylvania State Police
        for the remainder of his life.

Trial Court Opinion, 11/16/18, at 3-5, 8-10 (record citations omitted).

        On May 1, 2018, Fehir filed a post-sentence motion, which the trial court

denied on August 28, 2018.            The instant, timely appealed followed.     On

September 28, 2018, the trial court ordered Fehir to file a concise statement

of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b). Fehir filed a timely Rule 1925(b) statement on October

10, 2018; the trial court filed an opinion on November 16, 2018.




____________________________________________


11   The Commonwealth had withdrawn count 15 of the information during trial.

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      In his first issue on appeal, Fehir challenges the sufficiency of the

evidence supporting his conviction for rape of a child. Fehir’s Brief, at 8. We

find Fehir has waived this issue.

      “[W]here an appellant wishes to preserve a claim that the evidence was

insufficient, his Rule 1925(b) statement must specify the element or elements

upon which the evidence was insufficient so this Court can then analyze the

element or elements on appeal.” Commonwealth v. Roche, 153 A.3d 1063,

1072 (Pa. Super. 2017), appeal denied, 169 A.3d 599 (Pa. 2017). If a Rule

1925(b) statement does not specify the unproven element, the appellant has

waived the sufficiency on appeal. See Commonwealth v. Tyack, 128 A.3d

254, 260 (Pa. Super. 2015).

      Here, Fehir’s Rule 1925(b) statement states, “Was the evidence

presented by the Commonwealth insufficient to support the jury’s guilty

verdicts?” Concise Statement of Errors Complained of on Appeal Pursuant to

Pa.R.A.P. 192b(b), 10/10/18, at 1. Thus, not only did Fehir fail to specify any

element for which the evidence was insufficient, he failed to delineate which

conviction he meant to challenge. It is evident from the trial court’s lengthy

and detailed Rule 1925(a) opinion, it had no idea that Fehir was challenging

solely the sufficiency of the evidence underlying the age element for rape of

a child. In any event, the presence of a trial court opinion evaluating Fehir’s

sufficiency claim is of no moment to our analysis, “because we apply Pa.R.A.P.

1925(b) in a predictable, uniform fashion, not in a selective manner dependent


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on an appellee’s argument or a trial court's choice to address an unpreserved

claim.” Tyack, supra at 261. Fehir has failed to preserve this issue for our

review.12

       In any event, had we addressed Fehir’s claim on the merits, we would

have determined the Commonwealth presented sufficient evidence to sustain

his conviction for rape of a child for the reasons set forth in the trial court’s

opinion. See Trial Court Opinion, 11/16/18, at 13, 15.

       In his second and final claim, Fehir maintains the trial court erred when

it allowed the Commonwealth to reopen the case to allow the Victim to identify

him as the perpetrator. See Fehir’s Brief, at 9. We disagree.

       This Court has stated that we review a trial court’s decision to reopen a

case for an abuse of discretion. See Commonwealth v. Best, 120 A.3d 329,

347 (Pa. Super. 2015). “Under the law of this Commonwealth a trial court

has the discretion to reopen a case for either side, prior to the entry of final




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12 Even if Fehir had filed an adequate Rule 1925(b) statement, we would still
find he had waived this claim. His argument on this issue consists of a single
page. Within that argument, he fails to cite to the record. He does not discuss
the evidence. He does not even explain why the evidence was insufficient to
sustain a conviction for rape of a child because the Commonwealth failed to
prove age, while apparently conceding the evidence was sufficient to sustain
the age of elements of some for his convictions for IDSI, aggravated indecent
assault, and indecent assault. Thus, we find Fehir waived his sufficiency
argument for this reason as well. See Commonwealth v. Liston, 941 A.2d
1279, 1285 (Pa. Super. 2008) (en banc), affirmed in part and vacated in part,
977 A.2d 1089 (Pa. 2009); Pa.R.A.P. 2101.

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judgment, in order to prevent a failure or miscarriage of justice.”             Id.

(citations omitted). Further, our Supreme Court has stated,

      [w]here the discretion exercised by the trial court is challenged on
      appeal, the party bringing the challenge bears a heavy burden. In
      this respect, it is not sufficient to persuade the appellate court that
      it might have reached a different conclusion . . . Rather, one must
      go further and show an abuse of the discretionary power. [A]n
      abuse of discretion is not merely an error of judgment, but if in
      reaching a conclusion the law is overridden or misapplied, or the
      judgment exercised is manifestly unreasonable, or the result of
      partiality, prejudice, bias or ill-will, as shown by the evidence or
      the record, discretion is abused.

Commonwealth v. Safka, 141 A.3d 1239, 1248-49 (Pa. 2016) (quotation

marks and citations omitted).

      Here, Fehir has not met this heavy burden. His argument, apart from

boilerplate and a brief explanation of what occurred below, consists of two

sentences wherein he baldly contends the trial court’s decision to reopen the

case was both erroneous and prejudicial. Fehir’s Brief, at 9. Fehir does not

cite to any precedent to support his claim of legal error. Moreover, Fehir does

not explain how the decision was prejudicial given this was a case where

identity was not an issue because the Victim and both of the other fact

witnesses had long-standing relationships with him.          Moreover, he never

addresses how the trial court abused its discretion.

      In any event, after a thorough review of the record, we agree with the

argument the Commonwealth made at trial. In particular, we agree the Victim

had clearly identified Fehir by name and relationship and the lack of a formal

in-court identification of Fehir was, at worst, at technicality, particularly since

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Fehir stipulated to the admissibility of the audiotaped conversation between

himself and the Victim. See N.T. Trial, 1/18/18, at 512-14. Moreover, in its

Rule 1925(b) opinion, the trial court thoroughly addressed its reasons for

permitting the Commonwealth to reopen the case. See Trial Court Opinion,

11/16/2018, at 11-13. Because we discern no abuse of discretion or error of

law, we adopt its reasoning. See id. Fehir’s second claim does not merit

relief.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




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