J-S04039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GEORGE PALMERO                             :
                                               :
                      Appellant                :   No. 2350 EDA 2015

               Appeal from the Judgment of Sentence May 4, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009089-2013


BEFORE: SHOGAN, OTT and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 31, 2017


       Appellant George Palmero appeals nunc pro tunc the judgment of

sentence entered in the Court of Common Pleas of Philadelphia County on

May 4, 2015, following his convictions of unlawful contact with a minor,

endangering the welfare of a child, corruption of a minor, indecent assault of

a person less than thirteen years of age and indecent exposure.1 We affirm.

       The trial court aptly set forth the relevant facts herein as follows:

             The following is a factual account in the light most
       favorable to the Commonwealth, finding the complainant's
       testimony credible. The complainant moved into her
       grandmother's house, located in Philadelphia, PA with her
       younger brother and mother in October, 2010. Notes of
____________________________________________


*
 Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 6318(a)(1); 4304(a)(1); 6301(a)(1); 3126(a)(7) and
3127(a), respectively.
J-S04039-17


     Testimony ("N.T."), Dec. 19, 2014, at p. 140, 143. At the time,
     the complainant was three and a half years old. Id. At 139.
     [Appellant] also lived in the house. Id. at 140. He was the
     grandmother's paramour. Id. at 139.
            [Appellant] would occasionally watch the complainant and
     her brother at the grandmother's home when no one else was
     home. Id. at 144-145. On more than one of these occasions,
     [Appellant] had inappropriate sexual contact with the
     complainant. This contact happened in the living room and in the
     bedroom that the grandmother and [Appellant] shared. Id. at
     23. On the occasions when the contact happened in the living
     room, the complainant would lie on her back on the sofa, and
     [Appellant] would stand in front of her. Id. at 24-25. He would
     then partially pull down the complainant's pants and underpants,
     remove his penis from his pants, touch his penis to the
     complainant's vagina, and begin "moving [his penis] with his
     hands." Id. at 25-27. The complainant testified that the penile-
     vaginal contact felt "bad" and hurt. Id. at 27.
            [Appellant] had similar contact with the complainant in the
     upstairs bedroom. Id. at 32. The complainant would lie on her
     back on her grandmother's bed and [Appellant] would stand
     against the bed, facing the complainant. Id. at 33. [Appellant]
     would pull down the complainant's pants and underpants, as well
     as his own. Id. at 34. He put his penis against the complainant's
     vagina, skin to skin, and began moving his penis with his hands.
     Id. On at least one occasion, [Appellant] put a "plastic bag" on
     his penis. Id. at 35. During these incidents, [Appellant] told the
     complainant to keep quiet. Id. at 37. The complainant again
     testified that the contact felt "bad" and hurt. Id. 38. The
     complainant could not recall exactly when these incidents
     occurred. She did remember, however, that she was living in her
     grandmother's house and was in school. Id. at 39. [Appellant]
     was approximately between the ages of forty-six and forty-eight.
     N.T., Jan. 6, 2015, at p. 56.
            The complainant, her brother, and mother moved out of
     the grandmother's house in mid-January, 2013. N.T., Dec. 19,
     2014, at p. 140. In April, 2013, while her mother was bathing
     her, the complainant disclosed the abuse. Id. at 152-54. A report
     was subsequently filed with the Philadelphia. Department of
     Human Services on April 19, 2013. Id. at 210-11. The
     complainant was physically examined at the Care Clinic at the
     Children's Hospital of Philadelphia on April 24, 2013. Id. at 212.
     The examination results were normal, neither proving nor
     disproving the allegations of abuse. Id. at 213. Michelle Kline, a

                                   -2-
J-S04039-17


        forensic interviewer with the Philadelphia Children's Alliance,
        interviewed the complainant on May 6, 2013. Id. at 96. During
        that interview, the complainant identified [Appellant] as the
        perpetrator. Id. at 100 and 214.10

        ___
        10
           The complainant’s trial testimony was largely consistent with
        the allegations made during the May 6, 2013 interview at
        Children’s Alliance and with the initial DHS report. The earlier
        accounts, however, referenced [Appellant] having ‘licked” the
        complainant’s vagina. The complainant did not testify to this at
        trial.

Trial Court Opinion, filed 3/22/16, at 2-4.

        After a non-jury trial on December 19, 2014, the trial court convicted

Appellant of the aforementioned offenses and acquitted him of rape of a

child and involuntary deviate sexual intercourse with a child. The trial court

deferred sentencing so that a presentence investigation, mental health

evaluation and a Megan’s Law assessment could be completed. Ultimately,

the trial court sentenced Appellant to an aggregate term of one (1) year to

two (2) years in prison followed by fourteen years of probation to be

supervised by the State Sex Offender Unit.       Appellant did not file a direct

appeal.

        On July 10, 2015, Appellant filed a counseled petition pursuant to the

Post Conviction Relief Act (PCRA)2 wherein trial counsel alleged his own

ineffectiveness for failing to file a direct appeal on Appellant’s behalf and

requested that the trial court reinstate Appellant’s right to file a direct
____________________________________________


2
    42 Pa.C.S.A. §§ 9541-9546.



                                           -3-
J-S04039-17


appeal. Following a hearing on July 29, 2015, at which time the

Commonwealth indicated it did not oppose the reinstatement of Appellant’s

direct appeal rights, the trial court reinstated Appellant’s appeal rights by

agreement. N.T. PCRA Hearing, 7/29/15, at 3.          Appellant filed a notice of

appeal nunc pro tunc on August 3, 2015.3

        In compliance with the trial court’s Pa.R.A.P. 1925(a) Order, Appellant

filed a timely statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b) on August 25, 2015, which reads as follows:

              1.    That [Appellant] is entitled to an arrest of judgment
        as the evidence was insufficient to support the verdict which
        found [Appellant] guilty of unlawful contact with a minor;
        endangering the welfare of a child (EWC); corruption of minors;
        indecent exposure; indecent assault of a minor less than 13
        years.
              The evidence was insufficient as to all charges.        The
        evidence failed to sustain the elements of each and every crime
        and failed to sustain same and, when taken as a whole, was
        grossly unreliable and could lead to a verdict being based on
        surmise and conjecture[.]
              2.    [Appellant] should receive a new trial on all of the
        above-stated charges, as the verdict is against the weight of the
        evidence. In this review, the Court need not grant the
        Commonwealth every inference but may review the evidence
        anew.

        In his brief, Appellant presents the following issues for our review:


        I.   Is [Appellant] entitled to an Arrest of Judgment on all
        charges where the evidence is insufficient to sustain the verdict?


____________________________________________


3
    Trial counsel continues to represent Appellant on appeal.



                                           -4-
J-S04039-17


      II.   Is [Appellant] entitled to a new trial on all charges where
      the verdict is not supported by the greater weight of the
      evidence?

Brief for Appellant at 3.

      In reviewing Appellant’s challenge to the sufficiency of the evidence,

we are guided by our well-settled standard of review:

      [W]e examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.

Commonwealth v. Doughty, ___ Pa. ____, ____, 126 A.3d 951, 958

(2015).

      Recently, this Court reiterated that where an appellant challenging

multiple convictions wishes to preserve a claim that the evidence was

insufficient, his Pa.R.A.P. 1925(b) statement must specify the element or

elements upon which the evidence had been insufficient to enable this Court

to then analyze the element or elements on appeal and ultimately

determined a failure to specify the allegedly unproven elements of the

crimes in a Rule 1925(b) statement resulted in the waiver of the sufficiency

issue. Commonwealth v. Roche, 2017 WL 34931, at *8 (Pa.Super. Jan. 7,

2017).    This Court further noted that waiver results notwithstanding the

Commonwealth’s failure to object to the defective Pa.R.A.P. 1925(b)

statement and the trial court’s addressing of the issue in its Rule 1925(a)

opinion. We found this to be “of no moment to our analysis because we


                                    -5-
J-S04039-17


apply Pa.R.A.P.1925(b) in a predictable, uniform fashion, not in a selective

manner dependent on an appellee's argument or a trial court's choice to

address an unpreserved claim. Thus, we find 1925(b) waiver where

appropriate despite the lack of objection by an appellee and despite the

presence of a trial court opinion.”   Id. (citations omitted).

      Herein, Appellant was convicted of five separate crimes- unlawful

contact with a minor, endangering the welfare of a child, corruption of a

minor, indecent assault of a person less than thirteen years of age and

indecent exposure- each of which was comprised of multiple elements;

however, he did not specify in his Rule 1925(b) statement the specific

element or elements of any crime which he deems the evidence presented at

his nonjury trial failed to establish beyond a reasonable doubt. The fact that

the trial court generally discussed the sufficiency of the evidence submitted

at Appellant’s nonjury trial in its Rule 1925(a) Opinion and that the

Commonwealth did not object to Appellant’s failure to file an appropriate

Pa.R.A.P. 1925(b) statement is of no moment.              See id.   See also

Commonwealth v. Williams, 959 A.2d 1252, 1257-58 (Pa.Super. 2008)

(finding waiver of sufficiency of evidence claim where the appellant failed to

specify in Pa.R.A.P. 1925(b) statement the elements of any particular crime

not proven by the Commonwealth); Commonwealth v. Gibbs, 981 A.2d

274, 281 (Pa.Super. 2009) (finding sufficiency claim waived under Williams




                                      -6-
J-S04039-17


for failure to specify which elements of crimes were not proven beyond a

reasonable doubt).

      Indeed, Appellant has failed to even mention, let alone specify, in his

appellate brief the specific crimes or the specific element or elements thereof

of which he had been convicted which were allegedly not met. To the

contrary, Appellant avers he “is not attacking the ‘elements’ of the offenses;

rather, it is the defense position that [Appellant] simply did not touch the

child in any offensive or illegal manner whatsoever.” Brief for Appellant at

10. Consequently, we conclude Appellant has waived his first issue

presented herein.

      Appellant next avers he is entitled to a new trial because the verdict

was not supported by the weight of the evidence. In this regard, Rule 607

of the Pennsylvania Rules of Criminal Procedure entitled Challenges to the

Weight of the Evidence, states:

      (A) 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).

      Our Supreme Court has held that where the trial court reinstates one’s

direct appeal rights nunc pro tunc for trial counsel’s neglecting to file a

requested   appeal,    the   appellant   is   not   automatically   entitled   to

reinstatement of his or her post-sentence motion rights nunc pro tunc as

                                     -7-
J-S04039-17


well. Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089 (2009). The

Court further observed that:

      [its] holding should not be construed as prohibiting a PCRA court
      from reinstating a defendant's right to file post-sentence motions
      nunc pro tunc. If a defendant successfully pleads and proves that
      he was deprived of the right to file and litigate said motions as a
      result of the ineffective assistance of counsel, a PCRA court is
      free to grant such relief. Presumably, since post-sentence
      motions are optional, see Pa.R.Crim.P. 720(B), rarely will
      counsel be deemed to have been ineffective for failing to file
      them except, for example, when the claim involves the
      discretionary aspects of sentence or a challenge to a verdict on
      weight of the evidence grounds, claims which must be raised in
      the trial court to be preserved for purposes of appellate review.

Liston, supra at 19 n. 9, 977 A.2d at 1094 n. 9. This Court subsequently

relied upon Liston in Commonwealth v. Fransen, 986 A.2d 154

(Pa.Super. 2009), wherein we held that a PCRA petitioner who is granted

reinstatement of his direct appeal rights nunc pro tunc is not entitled to a

subsequent order reinstating his right to file post-sentence motions nunc pro

tunc if he did not request such relief from the PCRA court and if the court did

not hold an evidentiary hearing on that issue.

      When considering Appellant’s challenge to the weight of the evidence

to sustain his convictions, the trial court determined he had waived this

issue for his failure to properly assert and litigate it below.    Trial Court

Opinion, filed 3/22/16, at 10. In the alternative, the trial court stated that

even if Appellant had not waived this claim, it would fail because “[i]n light

of the overwhelming evidence as summarized above, the verdict is not




                                     -8-
J-S04039-17


contrary to the evidence and does not shock one’s sense of justice.” Trial

Court Opinion, filed 3/22/16, at 10-11.

       Initially, we note that upon our review, we cannot discern whether

Appellant raised this issue orally on the record before sentencing because a

transcript of the sentencing hearing was not made part of the certified

record.4 Notwithstanding, the trial court has indicated that Appellant failed

to “submit a post-sentence motion, a written motion prior to sentencing or

putting [sic] an oral motion on the record.”             Trial Court Opinion, filed

3/22/16, at 10.      The record does not contain a written presentence or post-

sentence    motion challenging the             weight of evidence   to   sustain   his

convictions. Furthermore, Appellant did not request nunc pro tunc relief to

file a post-sentence motion in his PCRA petition, and the trial court granted

Appellant’s PCRA petition only with respect to his request to file a direct

appeal nunc pro tunc.        Therefore, Pursuant to Pa.R.Crim.P. 607, Appellant

has not preserved his weight of the evidence claim for purposes of appellate

review, and we cannot reach the merits of this issue because it is waived.5

____________________________________________


4
  Appellant had the responsibility to ensure that the record forwarded to this
Court contained those documents necessary to allow a complete and
judicious assessment of the issues raised on appeal. Commonwealth v.
Walker, 878 A.2d 887, 888 (Pa.Super. 2005).
5
  Even had Appellant properly preserved his challenge to the weight of the
evidence pursuant to the requirements of Rule 607, we would have found he
has waived it for his failure to specify the reasons why the verdicts were
contrary to the weight of the evidence in his Pa.R.A.P. 1925(b) statement.
In Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super. 2015),
(Footnote Continued Next Page)


                                           -9-
J-S04039-17



      Judgment of sentence affirmed.6

      Judge Ott joins the memorandum.

      Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




                       _______________________
(Footnote Continued)

this Court addressed whether an assertion in a Rule 1925(b) statement that
“[t]he verdict of the jury was against the weight of the evidence” was too
imprecise to preserve the issue for review where the appellant had been
convicted of multiple crimes. Because the appellant had failed to specify
which verdict or verdicts were contrary to the weight of the evidence or to
offer specific reasons as to why those verdicts were contrary to the
evidence's weight, we determined that the appellant had waived review of
his weight of the evidence challenge.         In doing so, we reasoned the
appellant’s phrasing of this issue was “too vague to allow the court to
identify the issues raised on appeal” and was “the functional equivalent of no
Concise Statement at all.” Id (citation omitted) citing Commonwealth v.
Seibert, 799 A.2d 54, 62 (Pa.Super. 2002) (holding appellant waived his
challenge to the weight of the evidence where his 1925(b) statement
asserted simply “[t]he verdict of the jury was against the weight of the
credible evidence as to all of the charges”).
6
  Despite the fact that the trial court disposed of Appellant’s sufficiency of
the evidence claim on the merits, we note that “[t]his Court is not bound by
the rationale of the trial court, and we may affirm the trial court on any
basis.” Commonwealth v. Williams, 73 A.3d 609, 617 n. 4 (Pa.Super.
2013), appeal denied, ___ Pa. ____, 87 A.3d 320 (2014).



                                           - 10 -
J-S04039-17




              - 11 -
