J-S65045-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                               :             PENNSYLVANIA
                                               :
               v.                              :
                                               :
    BRIAN CHARLES WINTER,                      :
                                               :
                     Appellant                 :            No. 3545 EDA 2016

            Appeal from the Judgment of Sentence October 14, 2016
              in the Court of Common Pleas of Delaware County,
              Criminal Division, No(s): CP-23-CR-0006660-2014

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 21, 2017

        Brian Charles Winter (“Winter”) appeals from the judgment of sentence

imposed following his convictions of two counts each of corruption of minors

and indecent assault (complainant less than 16 years of age).1 We affirm.

        In its Opinion, the trial court set forth the relevant factual and procedural

background, which we adopt for the purpose of this appeal. See Trial Court




1
    See 18 Pa.C.S.A. §§ 6301(a)(1)(ii), 3126(a)(8).
J-S65045-17


Opinion, 5/1/17, at 1-9.2

     On appeal, Winter raises the following issues for our review:

     1. Was the verdict against the weight and sufficiency of the
        evidence where the Commonwealth did not meet its burden of
        proof to establish a course of conduct for the two (2) counts of
        corruption of minors, as the night in question was not a “course
        of conduct[]” [because] both alleged victims testified that the
        allegations of the night in question were an isolated event and
        not a course of conduct[,] which is an essential element of 18
        Pa.C.S.A. § 6301[(a)(1)(ii)]?

     2. Was the verdict against the weight and sufficiency of the
        evidence where the Commonwealth did not meet its burden of
        proof that there was indecent contact[,] as required for the two
        (2) counts of indecent assault of a person less than 16 years of
        age under 18 Pa.C.S.A. §[]3126[(a)(8)], where the girls’
        testimony was directly in conflict with each other and with their
        own prior recorded statements, and where the girls did not
        establish any actual indecent contact?

     3. Was the verdict against the weight and sufficiency of the
        evidence where the testimony of the alleged victims was so in
        conflict with each other, and with their own prior recorded
        statements, that the same cannot be the grounds for guilt
        beyond a reasonable doubt on any of the charges?

     4. Did the trial court abuse its discretion and/or err as a matter of
        law by precluding [Winter’s] expert from interviewing victim
        K.J., notwithstanding that the same is required by the code of
        ethics governing experts testifying to psychiatric matters, and

2
  As noted by the trial court in its Opinion, Winter’s Concise Statement of
matters complained of on appeal was untimely. See Trial Court Opinion,
5/1/17, at 9 n.1. While we could find waiver based on the untimeliness of the
Concise Statement, we decline to do so, as the trial court addressed Winter’s
issues. See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super.
2012) (declining to find waiver because the trial court had addressed the
issues raised in the untimely concise statement); see also Commonwealth
v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc) (holding that
“[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial
court has addressed those issues[,] we need not remand and may address the
merits of the issues presented.”).


                                  -2-
J-S65045-17


         by limiting the expert testimony to such a degree that
         [Winter’s] expert was incapable of ethically rendering an expert
         opinion to a reasonable degree of medical certainty at trial?

      5. Did the trial court abuse its discretion and/or err as a matter of
         law by excluding from evidence the Facebook profile of victim
         M.M., which showed a strikingly different persona of the victim
         than what was presented at court, as well as excluding a
         specific photograph/post posted on the Facebook profile of one
         of the victims, M.M., shortly before her testimony at trial,
         directly indicating that she would cover up a crime scene for a
         friend[?]

Brief for Appellant at 4-5 (some capitalization omitted).

      In his brief, Winter combines his sufficiency of the evidence and weight

of the evidence arguments, as raised in his first three issues, with respect to

each of his convictions.3   However, sufficiency of the evidence claims are

distinct from weight of the evidence claims, as there are different standards

of review, as well as separate remedies. See Commonwealth v. Birdseye,

637 A.2d 1036, 1039 (Pa. Super. 1994).

            [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

3
  Pursuant to Pa.R.A.P. 2119, Winter was required to divide his argument “into
as many parts as there are questions to be argued ….” Pa.R.A.P. 2119(a).
Although Winter failed to follow Rule 2119 by combining his first three issues
in the Argument section of his brief, we decline to find waiver.


                                   -3-
J-S65045-17


      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).

             Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court's determination that the verdict is against the weight of the
      evidence. One 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.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal

citations omitted).

      “[W]hile a challenge to the sufficiency of the evidence can be legally

distinguished from a challenge to the weight of the evidence, where the

evidence is legally sufficient, it generally meets the test for weightiness.”

Commonwealth v. Shaffer, 722 A.2d 195, 200 (Pa. Super. 1998).

      With regard to Winter’s corruption of minors convictions, he contends

that, under 18 Pa.C.S.A. § 6301(a)(1)(ii), the Commonwealth was required to

prove that he engaged in a “course of conduct” comprised of more than one

act. Brief for Appellant at 15. Winter asserts that, because both girls testified

that “this was an isolated act, which had not happened before, the

Commonwealth has not established a pattern of conduct sufficient to support

a conviction under this statute.” Id. at 16.


                                   -4-
J-S65045-17


      Winter’s argument addresses only his claim that the evidence was

insufficient to support his corruption of minors convictions.4 In its Opinion,

the trial court addressed Winter’s challenge to the sufficiency of the evidence

supporting his convictions of corruption of minors, set forth the relevant law,

and determined that the challenge lacks merit.      See Trial Court Opinion,

5/1/17, at 10-12. We agree with the reasoning of the trial court, and affirm

on this basis at to Winter’s challenges to the weight and sufficiency of the

evidence supporting his convictions of corruption of minors. See id. at 10-

12.

      With regard to Winter’s indecent assault convictions, he contends that

“there were numerous inconsistencies in the trial testimony of both alleged

victims, as well as their prior statements.” Brief for Appellant at 16. Winter

asserts that K.J. told police that they “went on an adventure and [Winter] let

them drive his car,” but claims that M.M. “expressly denies ever even going

to the parking lot[,] and says when they asked to drive his car[,] he said it

was not a good idea.” Id. Winter further argues that, whereas M.M. stated


4
   In his brief, Winter makes no argument regarding his claim that his
corruption of minors convictions are against the weight of the evidence.
Accordingly, this issue is waived. See Pa.R.A.P. 2119(a) (stating that the
parties’ briefs must include a discussion of each question raised on appeal and
a “citation of authorities as are deemed pertinent.”); see also
Commonwealth v. Murchinson, 899 A.2d 1159, 1160 (Pa. Super 2006)
(deeming appellant’s claims waived under Pa.R.A.P. 2119(a) because he did
not develop meaningful argument with specific references to relevant caselaw
and to the record to support his claims). Even if Winter had not waived this
issue, we would have concluded that it lacks merit for the reasons expressed
by the trial court in its Opinion. See Trial Court Opinion, 5/1/17, at 13-15.


                                  -5-
J-S65045-17


that he had touched K.J.’s vaginal area, K.J. stated that “he only humped her

leg.” Id. Winter claims that these inconsistencies “make it impossible for a

jury to glean the truth, and his conviction is a shock to one’s sense of justice.”

Id. at 17 (emphasis in original).

      Winter’s argument addresses only his claim that his indecent assault

convictions are against the weight of the evidence.5 The trial court addressed

Winter’s challenge to the weight of the evidence supporting his indecent

assault convictions, set forth the relevant law, and determined that the

challenge lacks merit. See Trial Court Opinion, 5/1/17, at 13-15. We agree

with the reasoning of the trial court, and affirm on this basis at to Winter’s

challenges to the weight of the evidence supporting his indecent assault

convictions. See id. at 13-15.

      In his fourth issue, Winter contends that the trial court erred by denying

his request that K.J. submit to an independent psychiatric evaluation by

Winter’s expert. Brief for Appellant at 18. Winter asserts that, after reviewing

K.J.’s psychiatric records, his expert concluded that “K.J. was either severely

delusional, or had been embellishing her psychiatric symptoms and misleading

her treating physicians for several years.” Id. Winter argues that he sought




5
  In his brief, Winter makes no argument regarding his claim that the evidence
was insufficient to support his indecent assault convictions. Accordingly, this
issue is waived. See Pa.R.A.P. 2119(a); see also Commonwealth v.
Murchinson, supra. Even if Winter had not waived this issue, we would have
concluded that it lacks merit for the reasons expressed by the trial court in its
Opinion. See Trial Court Opinion, 5/1/17, at 12-13.


                                    -6-
J-S65045-17


to present expert testimony that K.J. was incompetent to testify at trial. Id.

Winter claims that, even if K.J. “was determined to be competent to testify,

the expert opinion sought would have been highly probative impeachment

evidence.” Id. Winter contends that, as a result of the trial court’s ruling, he

“was stripped of the opportunity to introduce probative and crucial information

which may have seriously impacted the verdict ….” Id. at 18-19.

      In its Opinion, the trial court addressed Winter’s fourth issue, set forth

the relevant law, and determined that the issue lacks merit. See Trial Court

Opinion, 5/1/17, at 15-16. We agree with the reasoning of the trial court, and

affirm on this basis as to Winter’s fourth issue. See id.

      In his fifth issue, Winter contends that the trial court abused its

discretion by precluding him from introducing into evidence numerous

Facebook postings by M.M. Brief for Appellant at 19. Winter asserts that the

postings “taken as a whole, showed a vastly different person than the victim

purported to be on the stand.” Id. Winter claims that “[p]ortraying such a

different image on the stand versus social media is, in itself, a form of

deception and relevant for jury consideration.” Id. Winter argues that the

postings were not barred by the Rules of Evidence, were more probative than

prejudicial, and that it was manifestly unreasonable for the trial court to

exclude them. Id.

      In its Opinion, the trial court addressed Winter’s fifth issue, set forth the

relevant law, and determined that the issue lacks merit.         See Trial Court



                                   -7-
J-S65045-17


Opinion, 5/1/17, at 16-18. We agree with the reasoning of the trial court, and

affirm on this basis as to Winter’s fifth issue. See id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2017




                                  -8-
