J-S41032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    MICHAEL E. ARNOLD                          :
                                               :
                      Appellant                :       No. 1577 MDA 2016

            Appeal from the Judgment of Sentence August 23, 2016
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0002469-2015


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

MEMORANDUM BY GANTMAN, P.J.:                              FILED JULY 24, 2017

        Appellant, Michael E. Arnold, appeals from the judgment of sentence

entered in the York County Court of Common Pleas, following his jury trial

convictions of aggravated indecent assault of a child, indecent assault of a

person less than 13 years of age, and corruption of minors.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

In 2009 and 2010, Appellant dated M.S., who is the mother of K.M.

(“Victim”).    During this time, Appellant often stayed at M.S.’s home and

sexually abused Victim on numerous occasions.              Specifically, Appellant

digitally penetrated Victim’s vagina and fondled Victim’s breasts during the


____________________________________________


1
    18 Pa.C.S.A. §§ 3125(b), 3126(a)(7), and 6301(a)(1)(i), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S41032-17


incidents of abuse. Victim was about ten years old at the time. Victim told

M.S. about the abuse in October 2014. M.S. subsequently took Victim to the

police station, and Victim reported the abuse on October 13, 2014. Victim

provided specific details to a Child Advocacy Center worker during an

interview on October 23, 2014. A subsequent investigation into the reported

abuse led to Appellant’s arrest.

      On May 15, 2015, the Commonwealth charged Appellant with two

counts of corruptions of minors, and one count each of attempted

involuntary deviate sexual intercourse with a person less than 13 years of

age, aggravated indecent assault of a child, and indecent assault of person

less than 13 years of age. Appellant proceeded to a jury trial on May 16,

2016. At trial, the Commonwealth presented the testimony of Victim, who

detailed specific instances of abuse. The Commonwealth also presented the

testimony of M.S., who explained how she and Victim reported the abuse to

police.   The Commonwealth further presented the testimony of Detective

Michael Hine, who detailed his investigation of the abuse. For the defense,

Appellant testified on his own behalf.     Appellant denied the allegations of

sexual abuse and explained his struggle with alcoholism during the period of

alleged abuse.    The jury ultimately convicted Appellant of aggravated

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

age, and corruption of minors.     The court deferred sentencing pending a

sexually violent predator (“SVP”) assessment by a member of the Sexual


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Offender Assessment Board (“SOAB”), and the preparation of a pre-sentence

investigation (“PSI”) report.

      On August 23, 2016, the Commonwealth abandoned its pursuit of SVP

status. The court subsequently sentenced Appellant to a term of five (5) to

ten (10) years’ imprisonment for the aggravated indecent assault of a child

conviction, a concurrent term of one (1) to two (2) years’ imprisonment for

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

consecutive term of five (5) years’ probation for the corruption of minors

conviction. Appellant timely filed a notice of appeal on September 21, 2016.

On September 22, 2016, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant timely complied on October 13, 2016.

      Appellant raises the following issue for our review:

         WAS THERE INSUFFICIENT EVIDENCE TO CONCLUDE
         THAT…APPELLANT HAD INAPPROPRIATE SEXUAL CONTACT
         WITH [VICTIM]?

(Appellant’s Brief at 7).

      Appellant argues the Commonwealth’s evidence contained so many

inconsistences that it did not establish Appellant’s guilt beyond a reasonable

doubt. Appellant specifically avers the evidence was insufficient to support

his convictions because Victim did not call for help despite the presence of

others during the alleged instances of abuse.       Appellant also claims the

evidence was insufficient to support his convictions due to Victim’s failure to


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report the abuse until almost five years after the alleged incidents.

Appellant finally complains the evidence was insufficient to support his

convictions in light of Victim’s constantly changing story about how the

abuse occurred.    Appellant concludes the Commonwealth failed to present

sufficient, credible evidence for the jury to conclude Appellant had

inappropriate sexual contact with Victim, and this Court should reverse the

verdict or remand for a new trial. We disagree.

      Preliminarily, an argument that the fact-finder should have discredited

a witness’ testimony goes to the weight of the evidence, not the sufficiency

of the evidence.       Commonwealth v. W.H.M., 932 A.2d 155, 160

(Pa.Super. 2007). “A claim that the verdict was against the weight of the

evidence shall be raised with the trial judge in a motion for a new trial: (1)

orally, on the record, at any time before sentencing; (2) by written motion

at any time before sentencing; or (3) in a post-sentence motion.”

Pa.R.Crim.P. 607(A).    A weight claim must be presented to the trial court

while it exercises jurisdiction over a matter because “appellate review of a

weight claim is a review of the exercise of discretion, not the underlying

question of whether the verdict was against the weight of the evidence.”

Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa.Super. 2003).

Failure to raise a weight of the evidence claim in the trial court will result in

waiver of the issue on appeal, regardless of whether the appellant raises the

issue on appeal or the trial court addresses the issue in its Rule 1925(a)


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opinion.    Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009),

cert. denied, 559 U.S. 1111, 130 S.Ct. 2415, 176 L.Ed.2d 932 (2010).

      Here, Appellant claims to challenge the sufficiency of the evidence to

support his convictions, but most of his argument challenges the credit given

to Victim’s testimony by the jury. As such, Appellant raises a challenge to

the weight of the evidence, not the sufficiency of the evidence.             See

W.H.M., supra.        Significantly, Appellant did not raise this weight claim

orally prior to sentencing, by written motion prior to sentencing, or in a

timely filed post-sentence motion.          See Pa.R.Crim.P. 607(A).        Thus,

Appellant’s challenge to the weight of the evidence is waived for purposes of

our review. See Sherwood, supra.

      To the extent Appellant’s issue questions the sufficiency of the

evidence, a sufficiency of the evidence claim implicates the following legal

principles:

           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 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 circumstances. The Commonwealth may sustain
           its burden of proving every element of the crime beyond a
           reasonable doubt by means of wholly circumstantial

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          evidence. Moreover, in applying the above test, the entire
          record must be evaluated and all evidence actually
          received must be considered. Finally, the [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      The Crime Code defines aggravated indecent assault of a child in

relevant part as follows:

          § 3125. Aggravated indecent assault

          (a) Offenses defined.—Except as provided in sections
          3121 (relating to rape), 3122.1 (relating to statutory
          sexual assault), 3123 (relating to involuntary deviate
          sexual intercourse) and 3124.1 (relating to sexual
          assault), a person who engages in penetration, however
          slight, of the genitals or anus of a complainant with a part
          of the person’s body for any purpose other than good faith
          medical, hygienic, or law enforcement procedures commits
          aggravated indecent assault if:

             (1) the person does so without the complainant’s
             consent;

             (2) the person does so by forcible compulsion;

             (3) the person does so by threat of forcible
             compulsion that would prevent resistance by a
             person of reasonable resolution;

             (4) the complainant is unconscious or the person
             knows that the complainant is unaware that the
             penetration is occurring;

             (5) the person has substantially impaired the
             complainant’s power to appraise or control his or her

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            conduct by administering or employing, without the
            knowledge of the complainant, drugs, intoxicants or
            other means for the purpose of preventing
            resistance;

            (6) the complainant suffers from a mental disability
            which renders him or her incapable of consent;

                                  *    *    *

         (b) Aggravated indecent assault of a child.—A
         person commits aggravated indecent assault of a child
         when the person violates subsection (a)(1), (2), (3), (4),
         (5) or (6) and the complainant is less than 13 years of
         age.

18 Pa.C.S.A. §§ 3125(a)(1)-(6), and (b).

      The Crimes Code defines indecent assault of a person less than 13

years of age in relevant part as follows:

         § 3126. Indecent assault

         (a) Offense defined.—A person is guilty of indecent
         assault if the person has indecent contact with the
         complainant, causes the complainant to have indecent
         contact with the person or intentionally causes the
         complainant to come into contact with seminal fluid, urine
         or feces for the purpose of arousing sexual desire in the
         person or the complainant and:

                                  *    *    *

            (7) the complainant is less than 13 years of age;

                                  *    *    *

18 Pa.C.S.A. § 3126(a)(7). Section 3101 defines indecent contact as “[a]ny

touching of the sexual or other intimate parts of the person for the purposes

of arousing or gratifying sexual desire, in any person.” 18 Pa.C.S.A. § 3101.


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      Additionally, the Crimes Code defines corruption of minors in relevant

part as follows:

         § 6301. Corruption of minors

         (a)   Offense defined.—

            (1)(i) Except as provided in subparagraph (ii),
            whoever, being of the age of 18 years and upwards,
            by any act 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 any crime, or who knowingly assists
            or encourages such minor in violating his or her
            parole or any order of court, commits a
            misdemeanor of the first degree.

18 Pa.C.S.A. § 6301(a)(1)(i).     “The statute requires that the knowing,

intentional acts of the perpetrator tend to have the effect of corrupting the

morals of a minor.”     Commonwealth v. DeWalt, 752 A.2d 915, 918

(Pa.Super. 2000).   Actions that tend to corrupt the morals of a minor are

those that “would offend the common sense of the community and the sense

of decency, propriety and morality which most people entertain.” Id.

      Importantly, “when challenging the sufficiency of the evidence on

appeal, [an appellant’s Rule 1925(b)] statement must specify the element or

elements upon which the evidence was insufficient in order to preserve the

issue for appeal.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super.

2009), appeal denied, 607 Pa. 690, 3 A.3d 670 (2010). “Such specificity is

of particular importance in cases where [an appellant] was convicted of

multiple crimes each of which contains numerous elements that the


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Commonwealth must prove beyond a reasonable doubt.” Id.

      Instantly, Appellant failed to raise his sufficiency claim with any

specificity in his Rule 1925(b) statement.         Appellant’s Rule 1925(b)

statement claimed the evidence at trial was insufficient to sustain the jury’s

verdicts of guilt.   Significantly, Appellant’s Rule 1925(b) statement did not

identify which convictions he sought to challenge and which elements of

those convictions the Commonwealth failed to prove beyond a reasonable

doubt.   Thus, Appellant’s challenge to the sufficiency of the evidence is

waived for purposes of our review. See Gibbs, supra.

      Moreover, even if Appellant had properly preserved this claim, the

court reasoned:

         [Victim] testified in this matter. She testified she knew
         [Appellant], that [Appellant] took her pants off and
         “fingered” her by inserting his fingers inside her vagina. At
         the time, [Victim] was about 10 years old. [Victim] also
         testified that “he touched my boobs and butt.”            She
         testified about additional incidents as well.

         The Commonwealth further presented the testimony of
         Detective Michael Hine who testified that during an
         interview of Appellant, Appellant said he might have
         touched [Victim] by “mistake,” which Appellant admitted
         when he testified.   Appellant denied he did anything
         inappropriate.

         The testimony offered by the Commonwealth…satisfies the
         elements necessary to find Appellant guilty of [aggravated
         indecent assault of a child, indecent assault of a person
         less than 13 years of age, and corruption of minors].

         [Victim] was cross[-]examined by trial counsel, and,
         although some of her recollection of events was called into
         question, other questions served to fill in gaps in her

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        testimony.     As [this court previously] said, Appellant
        himself testified.

        The jury was properly instructed concerning the failure to
        complain promptly.    The fact that the jury chose to
        believe…[V]ictim over…Appellant is not grounds for setting
        aside the verdict.

                                *     *      *

        Appellant’s general claims of insufficient evidence to
        support the verdict are without merit. Testimony offered
        by the Commonwealth, if believed, established all of the
        essential elements of the crimes of conviction.      The
        [judgment] of sentence should be affirmed.

(See Trial Court Opinion, filed January 5, 2017, at 3-5) (internal citations

omitted). The record supports the court’s analysis. Accordingly, we affirm

the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2017




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