J-S52027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

OMALI A. MCKAY

                            Appellant                 No. 221 WDA 2015


           Appeal from the Judgment of Sentence January 30, 2015
            In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0002739-2013


BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 15, 2015

       Appellant, Omali A. McKay, appeals from the judgment of sentence

entered on January 30, 2015, following his jury convictions for two counts of

aggravated indecent assault of a child and one count each of criminal

solicitation - involuntary deviate sexual intercourse (IDSI) by forcible

compulsion, indecent assault of a complainant less than 13 years of age, and

indecent exposure.1 Upon review, we affirm.

       We briefly summarize the facts and procedural history of this case as

follows.    The Commonwealth filed the aforementioned charges against

Appellant as the result of several incidents of sexual misconduct committed

against the five-year-old niece of his girlfriend. The trial court held a three-

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1
    18 Pa.C.S.A. §§ 3125(b), 902(a), 3126(a)(7), and 3127(a), respectively.
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day jury trial commencing on June 3, 2014. At trial, the then eight year-old

victim testified to a number of instances wherein Appellant digitally

penetrated her vagina.       The victim also recalled an incident wherein

Appellant exposed himself to her, digitally penetrated her, and told her to

open her mouth.     On that occasion, the victim stated that she closed her

mouth immediately, because she feared Appellant would insert his penis into

it. Thereafter, the victim testified that Appellant ejaculated on a bed.

Moreover, based on pretrial argument, the trial court allowed evidence of

Appellant’s prior bad acts under Pa.R.E. 404(b). Specifically, the trial court

allowed the victim’s mother to testify that she feared Appellant in order to

explain her failure to report the incidents to police promptly.

      At the conclusion of the trial, the jury convicted Appellant of the

aforementioned crimes.      On August 28, 2014, the trial court sentenced

Appellant to concurrent terms of 10 to 20 years of incarceration for the two

counts of aggravated assault, plus a consecutive term of five to 10 years of

incarceration for criminal solicitation.   The trial court imposed no further

sentence on the remaining convictions. Accordingly, Appellant received an

aggregate term of 15 to 30 years of incarceration. On September 5, 2014,

Appellant filed a post-sentence motion. He filed an amended post-sentence

motion on September 19, 2014. Following a hearing, the trial court denied




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relief by order, and accompanying opinion, dated January 30, 2015.          This

timely appeal resulted.2

       On appeal, Appellant presents the following issues for our review:

         I.     Whether the Commonwealth’s evidence was against
                the weight of the evidence as to the count of criminal
                solicitation – involuntary deviate sexual intercourse
                (IDSI) forcible compulsion[?]

         II.    Whether the evidence presented at trial was sufficient
                to prove Appellant guilty as to the crime of criminal
                solicitation – IDSI forcible compulsion[?]

         III.   Whether the trial judge erred by abusing his discretion
                in allowing testimony of [] Appellant’s prior bad
                acts[?]

         IV.    Whether the trial judge erred by abusing his discretion
                in allowing testimony of the alleged victim who was
                not capable to perceive events accurately or express
                herself[?]

Appellant’s Brief at vii (complete capitalization omitted).

       Initially, we note that Appellant did not cite any legal authority for

issues I, III, and IV as presented on appeal. We find those issues waived for

the following reasons:



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2
  Appellant filed a notice of appeal on February 5, 2015. That same day, the
trial court entered an order pursuant to Pa.R.A.P. 1925(b) directing
Appellant to file a concise statement of errors complained of on appeal.
Appellant complied timely on February 24, 2015. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on March 3, 2015, relying upon its
January 30, 2015 opinion.




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         It is well settled that the argument portion of an appellate
         brief must be developed with pertinent discussion of the
         issue, which includes citations to relevant authority.
         Pa.R.A.P. 2119(a). See Commonwealth v. Genovese,
         675 A.2d 331, 334 (Pa. Super. 1996) (stating that “[t]he
         argument portion of an appellate brief must be developed
         with a pertinent discussion of the point which includes
         citations to the relevant authority”).

         In Commonwealth v. B.D.G., 959 A.2d 362, 371–372 (Pa.
         Super. 2008), a panel of this Court offered the following
         relevant observation regarding the proper formation of the
         argument portion of an appellate brief:

              In an appellate brief, parties must provide an
              argument as to each question, which should include
              a discussion and citation of pertinent authorities.
              Pa.R.A.P. 2119(a). This Court is neither obliged, nor
              even particularly equipped, to develop an argument
              for a party. Commonwealth v. Williams, 782 A.2d
              517, 532 (Pa. 2001) (Castille, J., concurring). To do
              so places the Court in the conflicting roles of
              advocate and neutral arbiter. Id. When an appellant
              fails to develop his issue in an argument and fails to
              cite any legal authority, the issue is waived.
              Commonwealth v. Luktisch, 680 A.2d 877, 879
              (Pa. Super. 1996).

Commonwealth           v.   Knox,     50   A.3d   732,   748   (Pa.   Super.   2012).

Accordingly, we are constrained to find Appellant’s issues I, III, and IV

waived.3

       In his second issue presented, Appellant contends the Commonwealth

failed to present sufficient evidence at trial to convict him of criminal
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3
  In fact, Appellant cites only one legal decision in his entire brief that sets
forth the standard of review for his second issue presented. Despite the
limited argument, we shall address that issue since Appellant provided some
authority and we are able to decipher the claim presented.



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solicitation - IDSI by forcible compulsion. Appellant’s Brief at 5. He argues

the Commonwealth failed to prove “he commanded, encouraged or

requested [the victim], by making verbal and/or nonverbal command, to

perform oral sexual intercourse upon him[.]”      Id.   Appellant contends the

victim “testified that when [A]ppellant walked into the room he did not say

anything, he laid on the floor and he did not touch her.” Id.

      The following standard governs our review of a challenge to the

sufficiency of the evidence:

         As a general matter, our 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. Rahman, 75 A.3d 497, 500–501 (Pa. Super. 2013).

      “A person is guilty of solicitation to commit a crime if with the intent of

promoting or facilitating its commission he commands, encourages or

requests another person to engage in specific conduct which would

constitute such crime or an attempt to commit such crime[.]” 18 Pa.C.S.A.

§ 902.


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      “A person commits a felony of the first degree when the person

engages in deviate sexual intercourse with a complainant [] by forcible

compulsion[.]”     18 Pa.C.S.A. § 3123(a).      Section 3101 defines the terms

deviate sexual intercourse and forcible compulsion, in pertinent part, as

follows:

           “Deviate sexual intercourse.” Sexual intercourse per os
           or per anus between human beings [].

           “Forcible compulsion.” Compulsion by use of physical,
           intellectual, moral, emotional or psychological force, either
           express or implied.

18 Pa.C.S.A. § 3101. Accordingly, “[t]he crime of involuntary deviate sexual

intercourse occurs when the actor, by physical compulsion or threats

thereof, coerces the victim to engage in acts of anal and/or oral

intercourse.”     Commonwealth v. Zingarelli, 839 A.2d 1064, 1070 (Pa.

Super. 2003).

      Here, the trial court concluded:

           The victim testified that [Appellant] walked out of the
           bathroom, dropped a towel from around his waist, exposed
           his penis, and told her to open her mouth. She opened her
           mouth, then clamped it shut; and [Appellant] then
           ejaculated. This is sufficient evidence to support a finding
           that [Appellant] solicited the victim to engage in oral sexual
           intercourse.

Trial Court Opinion, 1/30/2015, at 3.

      We agree.      Viewing the evidence in the light most favorable to the

Commonwealth, as our standard requires, the following testimony was

adduced at trial. The victim testified that while she was asleep in her aunt’s


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bedroom, Appellant came out of the bathroom, dropped his towel and told

the victim to open her mouth.     N.T., 6/3/2014, at 171-172.     When asked

what she did in response, the victim physically “opened her mouth wide and

then closed it[,] clicking her teeth.”   Id. at 173-174.   The victim further

stated, “[a]fter he asked [her] to open [her] mouth,” Appellant “peed on the

bed.” Id. 174-175. The “pee” came out of Appellant’s “private.” Id. at 192.

She described the “pee” as looking like “soda,” more specifically, like

“Sprite.” Id. at 175. As a result, there was a wet spot on the bed. Id. at

187.   The victim’s mother testified similarly that, immediately following this

incident, the victim told her:

         [The victim] was asleep in the bedroom and that [Appellant]
         came in and woke her up and he had just a towel on and
         she said he exposed himself to her and that he put his
         finger in her private and rubbed back and forth real hard.
         And she also said that he told her to open her mouth, but
         then she closed it immediately, and she said that she closed
         it because she knew that he was trying to put his pee pee in
         her mouth.

Id. at 133.

       Based upon the foregoing, we conclude that the evidence was

sufficient to permit the jury to infer Appellant intended to promote or

facilitate the victim’s engagement in the act of oral intercourse by

commanding, encouraging, or requesting her to open her mouth while

exposing himself and subsequently ejaculating.       Accordingly, Appellant’s

second claim lacks merit.

       Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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