J-A18043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                    Appellee               :
                                           :
              v.                           :
                                           :
ROBERT LEIGHTON CALLOWAY,                  :
                                           :
                    Appellant              :          No. 1166 MDA 2014

       Appeal from the Judgment of Sentence entered on February 7, 2014
                  in the Court of Common Pleas of York County,
                 Criminal Division, No. CP-67-CR-0007774-2012

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 28, 2015

        Robert Leighton Calloway (“Calloway”) appeals from the judgment of

sentence imposed following his conviction of three counts each of rape of a

child and statutory sexual assault, and one count of corruption of minors.1

We affirm.

        On October 8, 2013, a jury convicted Calloway of the above-mentioned

crimes, which he committed on J.B., a minor, when she was twelve-years-

old.    On February 7, 2014, the trial court sentenced Calloway to serve an

aggregate sentence of nine to eighteen years in prison. Calloway filed post-

sentence Motions, which the trial court denied.       Calloway filed a timely




1
    See 18 Pa.C.S.A. §§ 3121(c), 3122.1, 6301(a)(1)(ii).
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Notice of Appeal and a court-ordered “Statement of Matters Complained of”

on appeal.2

      On appeal, Calloway raises the following questions for our review:

      1. Whether the trial court committed reversible error and an
         abuse of discretion by denying [Calloway’s] request for a new
         trial or failing to dismiss [Calloway] on the basis that the
         evidence was insufficient for each charge and [the] testimony
         was so inherently unreliable that a verdict based on it is no
         more than surmise or conjecture?

      2. Whether the trial court committed reversible error and an
         abuse of discretion by finding that the verdict on each offense
         was not against the weight of the evidence in light of
         [Calloway’s] character and background evidence?

      3. Whether the trial court committed reversible error and an
         abuse of discretion by admitting hearsay for the truth of the
         matter asserted from the Commonwealth witnesses[,] which
         was prejudicial and exceeded probative value[, and] which
         contributed to [Calloway’s] wrongful conviction?

Brief for Appellant at 4 (capitalization omitted).

      In his first issue, Calloway contends that the evidence was insufficient

to establish penetration beyond a reasonable doubt.      Id. at 20.   Calloway


2
   Notably, in his Statement of Matters Complained of, Calloway failed to
identify the issues he raises with sufficient specificity. See Trial Court
Opinion, 10/21/14, at 2, 3, 6. “A Concise Statement which is too vague to
allow the court to identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all.” Commonwealth v. Dowling,
778 A.2d 683, 686-87. “When a court has to guess what issues an appellant
is appealing, that is not enough for meaningful review.” Id. at 686 (citation
omitted). This Court may find waiver where a concise statement is too
vague. See Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.
2011). Although Calloway’s Statement of Matters Complained of is too
vague and warrants waiver of his claims on appeal, we decline to find
waiver, and will address his claims to the extent that the trial court was able
to discern the issues he raises.


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argues that J.B.’s testimony is incapable of supporting a guilty verdict

because it “was so inherently unreliable and contradictory that it makes the

fact[-]finder’s choice to believe that evidence an exercise of pure conjecture,

bias and speculation.” Id. at 19. Calloway claims that “J.B. did not make a

prompt complaint,” “[t]here was no physical or medical evidence showing

that J.B. was sexually active or had any damage to her hymen,” and “J.B.

kept denying abuse until her physically assaultive mother kept pressuring

her.” Id. at 19-20. Calloway asserts that J.B. did not report the assaults to

her friends, schoolmates, teachers, relatives or Calloway’s wife at the time

that the assaults occurred. Id. at 20.

            [O]ur standard of review of sufficiency claims requires that
      we evaluate the record in the light most favorable to the verdict
      winner[,] giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it establishes each
      material element of the crime charged and the commission
      thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty.         [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant’s innocence. Any doubt about
      the defendant’s guilt is to be resolved by the fact[-]finder unless
      the evidence is so weak and inconclusive that, as a matter of
      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations

and quotation marks omitted).




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      “A person commits the offense of rape of a child, a felony of the first

degree, when the person engages in sexual intercourse with a complainant

who is less than 13 years of age.”         18 Pa.C.S.A. § 3121(c).         A person

commits the offense of statutory sexual assault, “a felony of the second

degree[,]   when     that   person   engages   in   sexual   intercourse    with   a

complainant to whom the person is not married who is under the age of 16

years and that person is ... four years older but less than eight years older

than the complainant.” Id. § 3122(a)(1). The testimony of a complainant

need not be corroborated in prosecutions under this chapter.         Id. § 3106.

Further, a person commits the offense of corruption of minors, a felony of

the third degree, when

      being of the age of 18 years and upwards, by any course of
      conduct in violation of Chapter 31 (relating to sexual offenses)[,]
      corrupts or tends to corrupt the morals of any minor less than 18
      years of age, or who aids, abets, entices or encourages any such
      minor in the commission of an offense under Chapter 31 ….

Id. § 6301(a)(1)(ii).

      Here, the record demonstrates that J.B. testified at trial that, on at

least three occasions when she was twelve-years-old, Calloway came into

her room at night, removed her clothes from the waist down, put on a

condom, inserted his penis into her vagina, and had sex with her.             N.T.,

10/7/13, at 71-76.

      Although Calloway contends that the evidence in the case was

insufficient because the only evidence of the assaults came from J.B.’s



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uncorroborated testimony, “the uncorroborated testimony of the complaining

witness   is   sufficient   to   convict   a   defendant   of   sexual   offenses.”

Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. 1999); see

also Commonwealth v. Davis, 650 A.2d 452, 455 (Pa. Super. 1994)

(stating that the uncorroborated testimony of sexual assault victim, if

believed by the trier of fact, is sufficient to support convictions, even if the

defense presents countervailing evidence); Commonwealth v. Trimble,

615 A.2d 48, 50 (Pa. Super. 1992) (stating that the testimony of a child

victim is alone sufficient to support a conviction for sex offenses). Moreover,

the jury was free to believe J.B.’s version of the events and to disbelieve the

character testimony of Elizabeth Smith (“Smith”), the sole witness presented

by Calloway. See Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super.

2012) (stating that the fact-finder is free to believe all, part, or none of the

evidence presented).

      Based on the evidence presented at trial, viewed in a light most

favorable to the Commonwealth, we conclude that the evidence was

sufficient to support the jury’s determination that Calloway committed the

crimes of rape of a child, statutory sexual assault, and corruption of minors.

      In his second claim, Calloway contends that the trial court improperly

weighed the character testimony of Smith, who testified that Calloway has a

reputation for integrity and good morals. Brief for Appellant at 23. Calloway

also contends that the trial court improperly weighed J.B.’s testimony and



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the text and email exchanges between Calloway and J.B., which the trial

court believed to be inappropriate. Id. at 23-24. Calloway asserts that the

character testimony “is so clearly of greater weight that to ignore it[,] or

give it equal weight with all the facts[,] is to deny [Calloway] justice.” Id. at

24.

      Our standard of review for challenges to the weight of the evidence is

as follows:

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

Karns, 50 A.3d at 165 (citation and brackets omitted).

      While our review of J.B.’s testimony reveals some inconsistencies, her

above-referenced trial testimony demonstrated that Calloway raped her on

at least three occasions.   The jury was free to disbelieve J.B.’s testimony,

but it chose to believe her. See id. (stating that the fact-finder is free to

believe all, part, or none of the evidence presented). Similarly, the jury was

free to disbelieve Smith’s character testimony. Accordingly, the trial court




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did not abuse its discretion in denying Calloway’s challenge to the weight of

the evidence.

      In his third issue, Calloway contends that the trial court committed

reversible error in allowing inadmissible hearsay testimony from Dearrea

King (“King”) regarding statements made to her by J.B. Brief for Appellant

at 26.    Calloway asserts that King’s hearsay testimony was admitted as

substantive evidence for the purpose of bolstering J.B.’s testimony that

Calloway had raped her, resulting in prejudicial error. Id. at 27. Calloway

claims that J.B.’s statements, as related by King, “were not admissible as a

prior consistent statement as an exception to the hearsay rule.” Id. at 26.

Relying   on    Pa.R.E.   613(c)   (Witness’s   Prior   Consistent   Statement   to

Rehabilitate), Calloway contends that J.B.’s prior consistent statements were

not admissible because his “trial counsel did not question J.B. about

fabrication, bias, improper influence or motive, or faulty memory, nor did he

raise with J.B. an inconsistent statement.” Brief for Appellant at 26-27.

      Our review of the record discloses that King testified at trial regarding

two separate statements made to her by J.B.             N.T., 10/7/13, at 125-27.

Whereas the first statement was inconsistent with J.B.’s trial testimony that

Calloway raped her on at least three occasions, the second statement was

consistent with such testimony. See id.

      Regarding the first (inconsistent) statement, King testified that J.B.

told her that Calloway had kissed her. N.T., 10/7/13, at 125. When King



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began to testify that she thereafter questioned J.B. as to whether anything

else had occurred between Calloway and J.B., Calloway’s counsel objected.

See id. The trial court conducted a sidebar conference, at which Calloway’s

counsel indicated that he would “be fine with” King’s forthcoming testimony

if it related a prior inconsistent statement made by J.B. See id. at 126; see

also id. (wherein Calloway’s counsel limited his hearsay objection to King’s

forthcoming testimony to the extent that it related a prior consistent

statement made to King by J.B.). Immediately thereafter, King testified that

J.B. initially denied that anything other than a kiss had occurred between

herself and Calloway). See id. at 127.

       Because Calloway’s counsel had indicated that he would “be fine with”

King’s    testimony    regarding   J.B.’s    prior    contradictory    statement,        no

contemporaneous objection was made to King’s testimony regarding the first

(inconsistent) statement.      See Commonwealth v. Thoeun Tha, 64 A.3d

704,     713   (Pa.   Super.   2013)    (stating     that   the   failure   to   raise    a

contemporaneous objection to the evidence at trial waives that claim on

appeal). Thus, Calloway’s claim in this regard is waived.

       Moreover, Calloway’s claim on appeal relates solely to King’s testimony

regarding a prior consistent statement made by J.B.                Our review of the

record discloses that King was further questioned regarding subsequent

conversations with J.B.        During this questioning, King testified, without

objection, that on a separate occasion, J.B. told her pastor and King that



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Calloway had raped her on three occasions.          N.T., 10/7/13, at 127.

However, Calloway’s trial counsel failed to object to King’s subsequent

testimony regarding J.B.’s second statement. See id. Accordingly, Calloway

has waived any claim pertaining to King’s testimony regarding the second

(consistent) statement made to her by J.B. See Thoeun Tha, 64 A.3d at

713.

       However, even assuming that the initial objection lodged by Calloway’s

counsel was sufficient to extend to King’s subsequent testimony, Calloway

improperly relies on Pa.R.E. 613(c) in support of his claim. Rule 613(c) is

inapplicable to the instant case, as it would only apply to the admission of a

prior consistent statement made by King to rehabilitate King’s credibility,

and not as substantive evidence.        See Pa.R.E. 613, cmt.    Here, King’s

credibility was not placed in issue, and the Commonwealth introduced King’s

testimony as substantive evidence that Calloway raped J.B.              Thus,

Calloway’s reliance on Rule 613(c) is misplaced.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2015




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