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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA

                 v.


    SHANE MUSSELMAN

                         Appellant              :    No. 336 WDA 2019

          Appeal from the Judgment of Sentence Entered June 26, 2017
      In the Court of Common Pleas of Cambria County Criminal Division at
                        No(s): CP-11-CR-0000761-2016


BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                              FILED AUGUST 09, 2019

        Shane Musselman (Musselman) appeals from the judgment of sentence

entered by the Court of Common Pleas of Cambria County (trial court) after

his   jury conviction of     Rape by Forcible Compulsion, Sexual Assault, and

Indecent Assault.' We affirm.

        Musselman's case returns to this Court for the third time after being

remanded twice for his failure to file      a   brief.   We recite only the pertinent

procedural history and facts necessary for our review.            On June 26, 2017,

after   a   jury convicted Musselman of the foregoing charges, the court
sentenced him to not less than four nor more than ten years' incarceration on




'   18 Pa.C.S. §§     3121(a)(1), 3124.1, 3126(a)(2), respectively.




      Retired Senior Judge assigned to the Superior Court.
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the rape conviction.2 On July 19, 2017, Musselman appealed pro se and, on

March 13, 2018, this Court dismissed the appeal for his failure to file               a   brief.

On March 29, 2018,             after Musselman filed   a   pro se petition pursuant to the

Post Conviction Relief Act (PCRA)3 seeking leave to file            a   post -sentence motion

and notice of appeal nunc pro tunc, and after the court appointed PCRA

counsel, the parties agreed to the reinstatement of Musselman's post -

sentence and appellate rights. Musselman filed               a   counseled notice of appeal

on June 11, 2018, which we dismissed on October 26, 2018, for Musselman's

failure to file   a   brief.

        After the record was returned to the trial court, on December 21, 2018,

Musselman filed        a   "Nunc Pro Tunc Motion to Reinstate Appellate Rights" which

the trial court granted and reinstated Musselman's right to appeal nunc pro

tunc.       The trial court restored Musselman's rights only to the single issue

raised in the July 5, 2018 statement of matters complained of on appeal, i.e.,

his challenge to the weight of the evidence. On February 6, 2019, Musselman

filed   a   counseled Post -Sentence Motion to Set -Aside Verdict.                Within this

motion, Musselman raised the issue of the weight of the evidence and/or the

sufficiency of the evidence.             (See POST -TRIAL MOTION TO SET ASIDE




2The court found that the other two convictions were merged for sentencing
purposes.

3   42 Pa.C.S. §§ 9541-9546.


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VERDICT, 2/06/19).         The trial court again granted Musselman's request for

the reinstatement of his appeal rights nunc pro tunc and he now timely

appeals.

           When the trial court granted the motion, it also ordered Musselman to

file   a   concise statement of matters complained of on appeal.             However, no

concise statement was ever filed by Musselman.             Nonetheless, the trial court

issued      a   Rule 1925(a) Opinion where it only addressed the weight of the

evidence issue, the only issue raised in the July 5, 2018 statement of matters

complained of on appeal, finding that it had been waived because it was not

raised before the trial court in post -sentence motions. See Pa.R.Crim.P. 607.

Musselman attempted to file an Amended Statement of Matters Complained

of on Appeal, which the lower court declined to address, as it found that it

exceeded the scope of its order reinstating Musselman's direct appeal rights.

           Here, Musselman raises   a   sufficiency of the evidence issue that   is   waived

on two bases.         First, the court ordered Musselman to file         a   Rule 1925(b)

statement in support of this third appeal and he failed to do so.

                 Our jurisprudence is clear and well -settled, and firmly
           establishes that: Rule 1925(b) sets out a simple bright -line rule,
           which obligates an appellant to file and serve a Rule 1925(b)
           statement, when so ordered; any issues not raised in a Rule
           1925(b) statement will be deemed waived; the courts lack the
           authority to countenance deviations from the Rule's terms; the
           Rule's provisions are not subject to ad hoc exceptions or selective
           enforcement; appellants and their counsel are responsible for
           complying with the Rule's requirements[.]         .  [I]n order to
                                                                 .   .


           preserve their claims for appellate review, [a]ppellants must
           comply whenever the trial court orders them to file a Statement
           of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925.

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        Any issues not raised in   a   Pa.R.A.P. 1925(b)statement will be
        deemed waived.

Commonwealth v. Hill,       16 A.3d 484, 494 (Pa. 2011) (quotation marks and

citation omitted); see also Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in

the Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.").

        Additionally, even if we were to consider Musselman's July 5, 2018 Rule

1925(b) statement as fulfilling the mandate of Rule 1925(b), since the court

limited him to the issue raised therein, it did not include   a   sufficiency of the

evidence allegation. For both of these reasons, Musselman's sufficiency of the

evidence issue is waived on appeal. See Hill, supra at 494. However, even

if his claim were properly preserved, it would not merit relief.

        Musselman argues that the evidence was insufficient because "the

testimony of the alleged victim was completely unsupported by any variety of

physical or medical evidence, and her actions following the alleged crimes

were in stark contrast to her testimony." (Musselman's Brief, at 5).4

        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



4  Musselman's claim arguably goes to the weight of the evidence, not the
sufficiency of the evidence, which is a challenge that the Commonwealth failed
to prove a specific element of a particular crime. See Irvin, infra at 75-76.
However, any weight claim would be waived for Musselman's failure to raise
it in the trial court. See Pa.R.Crim.P. 607(A); Pa.R.Crim.P. 607, cmt ("The
purpose of this rule is to make clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.").
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                 a  reasonable doubt.        [T]he trier 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. Irvin, 134 A.3d 67, 75-76                                                (Pa. Super. 2016) (citation

omitted).

                 Pursuant to Section 3121(a)(1) of the Crimes Code, "[a] person commits

a       felony of the first degree when the person engages in sexual intercourse

with         a   complainant              .   .   .   [b]y forcible compulsion." 18 Pa.C.S.           §   3121(a). "[A]

person commits [sexual assault] when that person engages in sexual

intercourse or deviate sexual intercourse with                                           a   complainant without the

complainant's consent." 18 Pa.C.S.                                        §   3124.1. Finally, "[a] person   is   guilty of

indecent assault if the person has indecent contact with the complainant                                               .   .   .




for the purpose of arousing sexual desire in the person or the complainant and

.   .    .   the person does so without the complainant's consent[.]" 18 Pa.C.S.                                               §


3106(a)(2).

                 It       is    well -settled that "the uncorroborated testimony of the complaining

witness                        is   sufficient         to       convict       a   defendant    of   sexual   offenses."

Commonwealth v. Lyons, 833 A.2d 245, 258                                                  (Pa. Super. 2003), appeal

denied, 879 A.2d 782 (Pa. 2005) (citation omitted); see also 18 Pa.C.S.                                                        §


3106 ("The credibility of                               a   complainant of an offense under this subchapter

shall be determined by the same standard as is the complainant of any other

crime.                .         .   The testimony of                a   complainant need not be corroborated by

prosecutions under this chapter.").


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        Here, the victim testified that Musselman forcibly removed her pants

and forced her to engage in sexual relations with him after she told him to

stop. (See N.T. Trial, 2/27/17, at 20-67). This testimony alone was sufficient

to convict Musselman of the sexual crimes of which he was charged.                  See

Lyons, supra at 258; 18 Pa.C.S.           §     3106.   However, the Commonwealth

additionally provided corroborating testimony from an individual           in   whom the

victim confided after the assault, and evidence in the form of text messages

and online conversations between Musselman and the victim. (See N.T. Trial,

at 129-67; Commonwealth's Exhibits 1-6).

        Although Musselman maintained that he did not rape the victim and the

Commonwealth concedes that it did not provide DNA evidence, (see N.T. Trial,

at 190-97; Commonwealth's Brief, at 11-12), this was not fatal to the

Commonwealth's case.        It    was for the   jury to pass   on the credibility of the

witnesses and it was free to believe all, some or none of the evidence, and

the Commonwealth was not required to provide corroborating DNA evidence.

See    Irvin, supra   at 75-76; Lyons, supra at 258.

        Accordingly, even if Musselman had properly preserved his claim, it

lacks merit and we affirm his judgment of sentence. After our independent

review of the certified record and viewing the evidence in the light most

favorable to the Commonwealth, as verdict winner, we conclude that it was

sufficient to prove each element of the crimes beyond             a   reasonable doubt.

See    Irvin, supra   at 75-76.


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        Judgment of sentence affirmed.

Judgment Entered.




J   seph D.
Prothonotary
              Seletyn,r
                    Es




Date: 8/9/2019




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