J-S39040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOHN HENRY SNYDER,                      :
                                         :
                   Appellant             :       No. 1756 MDA 2017

        Appeal from the Judgment of Sentence September 20, 2017
            in the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0002081-2015

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED JULY 25, 2018

     John Henry Snyder (“Snyder”) appeals from the judgment of sentence

imposed following his convictions of aggravated indecent assault of a child,

aggravated indecent assault (complainant less than thirteen years old),

indecent assault (complainant less than thirteen years old), unlawful contact

with a minor, and corruption of minors.      See 18 Pa.C.S.A. §§ 3125(b),

3125(a)(7), 3126(a)(7), 6318(a), 6301(a)(1). We affirm.

     In October 2014, the victim, A.M., told her mother about a series of

sexual encounters that Snyder had initiated with A.M. when A.M. was

approximately six years old.   During the sexual encounters, Snyder would

enter A.M.’s bedroom around 2:00 a.m. and demand that she undress and lay

on her bed. Snyder would lay on top of A.M. and insert his fingers into her

genitals. Snyder also attempted to put his penis inside of A.M.’s vagina. If

A.M. attempted to cry or scream, Snyder would put his hand over A.M.’s
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mouth and tell A.M. that he would kill her mother if she told anyone of the

abuse.     A.M. subsequently described the events to an interviewer at the

Harrisburg Children Resource Center (“CRC”). A physical examination was

also conducted; however, the doctor did not find definitive evidence of sexual

abuse.

     Snyder was arrested and charged with numerous crimes. In June 2017,

a jury convicted Snyder of the above-mentioned crimes. On September 20,

2017, the trial court sentenced Snyder to an aggregate term of thirteen to

twenty-six years in prison. Snyder filed a timely Post-Sentence Motion, which

was denied. Thereafter, Snyder filed a timely Notice of appeal and a court-

ordered Concise Statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

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

     I.      [Whether] the trial court erred in denying [Snyder’s] Post-
             Sentence Motion contesting the sufficiency of the evidence
             and testimony used to convict [Snyder] of count five (5),
             unlawful contact with a minor, in that no contact, as defined
             by the statute, occurred[?] The victim in the above-
             captioned case denied that any such contact took place; she
             testified that [Snyder] said nothing prior to allegedly
             engaging in any acts with her[.]

     II.     Whether the trial court abused its discretion in denying
             [Snyder’s] Post-Sentence Motion because the jury verdict
             was so contrary to the weight of the evidence as to shock
             one’s sense of justice where the Commonwealth failed to
             prove beyond a reasonable doubt that [Snyder]
             intentionally, knowingly, or recklessly sexually assaulted the
             victim in this case?




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Brief for Appellant at 5 (internal citation and some capitalization omitted;

questions reordered).

      In Snyder’s first claim, he alleges that the evidence was insufficient to

sustain his conviction of unlawful contact with a minor. Id. at 14. Snyder

claims that A.M.’s statements to a CRC forensic interviewer prior to trial

contradicted A.M.’s testimony at trial. Id. at 16-17. Snyder claims that the

evidence demonstrates that he and A.M. were clothed during the series of

abuses, and the only thing said by Snyder was for A.M. to keep quiet. Id. at

17.

      We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

      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
      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.




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Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      The Crimes Code defines unlawful contact with a minor as follows:

      (a)   A person commits an offense if he is intentionally in contact
            with a minor, or a law enforcement officer acting in the
            performance of his duties who has assumed the identity of
            a minor, for the purpose of engaging in an activity prohibited
            under any of the following, and either the person initiating
            the contact or the person being contacted is within this
            Commonwealth:

                                     ***

      (1)   Any of the offenses enumerated in Chapter 31 (relating to
            sexual offenses).

18 Pa.C.S.A. § 6318(a)(1).

      The elements of unlawful contact with a minor “consist of intentionally,

either directly or indirectly, contacting or communicating with a minor for the

purpose of engaging in a sexual offense[.]” Commonwealth v. Morgan, 913

A.2d 906, 910 (Pa. Super. 2008) (emphasis omitted). “The communication

may take place in person, on the telephone, via a computer, or in other ways.”

Commonwealth v. Rose, 960 A.2d 149, 153 (Pa. Super. 2008) (emphasis

added). “[O]nce [the defendant] contacts or communicates with the minor

for the purpose of engaging in the prohibited activity, the crime of unlawful

contact with a minor has been completed.”         Morgan, 913 A.2d at 910

(emphasis omitted). “[T]he actor need not be successful in completing the

purpose of his contact or communication with the minor.” Id. at 911.




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      Here, A.M. testified that Snyder engaged in sexual encounters with her

over a course of five to seven days. N.T., 6/12/17, at 32. A.M. stated that

Snyder walked into her bedroom around 2:00 a.m., verbally demanded, and

physically motioned, for her to go to the bathroom and undress. Id. at 23-

24, 28, 29. A.M. testified that Snyder told her to get onto her bed and lay on

her stomach.    Id. at 29-30.    A.M. further testified that, on at least one

occasion, Snyder was naked, pushed her to the bed, got on top of her, and

put his hand over A.M.’s mouth when she tried to scream. Id. at 30-31. A.M.

stated that Snyder threatened to spank her and kill her mom if she said

anything about the encounters. Id. at 29-30.

      Viewing this evidence in a light most favorable to the Commonwealth,

Snyder made unlawful contact with A.M. when he told her to undress and to

lay on her bed on her stomach. See Commonwealth v. Leatherby, 116

A.3d 73, 80 (Pa. Super. 2015) (holding that defendant unlawfully contacted a

minor where he hugged victim, tried to pull her skirt up while saying “how the

hell you get this thing up,” and rubbed victim’s buttocks and private areas

while asking her if it felt good). While Snyder claims that A.M.’s testimony

contradicted her statements to the CRC, this does not render the evidence

insufficient to support the unlawful contact conviction. See Commonwealth

v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (citation omitted) (stating

that the “[existence] of inconsistencies in the testimony of a witness does not

alone render evidence insufficient to support a verdict.”); Commonwealth v.


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Cruz, 919 A.2d 279, 281-82 (Pa. Super. 2007) (stating that “[t]he finder of

fact is the exclusive judge of the weight of the evidence[,] as the fact finder

is free to believe all, part, or none of the evidence presented[,] and determines

the credibility of the witnesses.”); see also Commonwealth v. Bishop, 742

A.2d 178, 189 (Pa. Super. 1999) (stating that “the uncorroborated testimony

of the complaining witness is sufficient to convict a defendant of sexual

offenses.”). Thus, Snyder’s first claim is without merit.

      In his second claim, Snyder argues that the verdict was against the

weight of the evidence presented at trial because the Commonwealth failed to

prove beyond a reasonable doubt that Snyder had intentionally, knowingly, or

recklessly sexually assaulted A.M. Brief for Appellant at 12. Snyder claims

that he was unable to commit the above-mentioned crimes, because he was

in prison during the time that A.M. said that the abuses had occurred. Id. at

12-13.

      “As an initial matter, a challenge to the weight of the evidence must be

preserved either in a post-sentence motion, by a written motion before

sentencing, or orally prior to sentencing.” Commonwealth v. Jones, 2018

PA Super 173, at *3 (Pa. Super. 2018) (citing Pa.R.Crim.P. 607(A)(1)-(3)).

“The purpose of this rule is to make it clear that a challenge to the weight of

the evidence must be raised with the trial judge or it will be waived.” Jones,

2018 PA Super 173, at *3 (citing Pa.R.Crim.P. 607, cmt.). “Further, … issues

not presented in a court-ordered Pa.R.A.P. 1925(b) statement are deemed


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waived on appeal.”      Jones, 2018 PA Super 173, at *3 (citing Pa.R.A.P.

1925(b)(4)(vii)). “[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.” Commonealth v. Seibert, 799 A.2d 54, 62 (Pa.

Super. 2002) (citation omitted); see also id. (stating that “[w]hen the trial

court has to guess what issues an appellant is appealing, that is not enough

for meaningful review.”) (citation omitted).

      Here, Snyder did not raise the claim that it was factually impossible for

him to have committed the crimes because he was in prison in either his Post-

Sentence Motion or his Rule 1925(b) Concise Statement. Indeed, Snyder’s

Post-Sentence Motion and 1925(b) Concise Statement make no mention of

the conviction that he is appealing, or the reasons for appealing that

conviction. Instead, Snyder vaguely claims that the evidence failed to prove

the mens rea for sexual assault, which prevented the trial court from analyzing

the specific issue. See Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa.

Super. 2002) (holding that appellant’s claims were waived, because he did not

raise them specifically in his Pa.R.A.P. 1925(b) statement and the trial court

did not address the claims in its opinion). Thus, because Snyder raises new

legal arguments for the first time on appeal, his weight claim is waived. See

Jones, 2018 PA Super 173, at *4 (stating that “since [a]ppellant failed to

raise his particular new weight theories before the trial court and the trial court




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did not, therefore, review the new theories and weigh the evidence according

to it, there is no discretion for this Court to review.”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/25/2018




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