J-A25016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALEXANDER BRENGLE                          :
                                               :
                       Appellant               :   No. 539 EDA 2017

            Appeal from the Judgment of Sentence January 6, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009233-2014


BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY PANELLA, J.:                               FILED APRIL 22, 2019

       Appellant, Alexander Brengle, appeals from the judgment of sentence

following his jury conviction of involuntary deviate sexual intercourse,

unlawful contact with a minor, and related charges. His chief claim challenges

the sufficiency of the evidence. He also challenges a jury instruction. We

affirm.

       On September 21, 2016, a jury convicted Appellant of involuntary

deviate sexual intercourse, 18 Pa.C.S.A. § 3123(a)(7); unlawful contact with

a minor, 18 Pa.C.S.A. § 6318(a)(1); statutory sexual assault, 18 Pa.C.S.A.

§ 3122.1; and sexual assault, 18 Pa.C.S.A. § 3124.1.1 On January 6, 2017,

the court sentenced Appellant to a term of not less than five-and-a-half nor

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1 The jury also found Appellant not guilty of solicitation of minors to traffic
drugs, 18 Pa.C.S.A. § 6319(a).
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more than twelve years of incarceration, followed by twelve years of

probation. Appellant did not file post-sentence motions. This timely appeal

followed.2

       Appellant’s conviction stemmed from a complaint that he had sexual

relations on multiple occasions with a minor student, (fourteen at the time),

whom he had tutored about four years earlier. The victim also testified that

Appellant had furnished him with Klonopin (clonazepam), which the victim

both used himself, and sold to other students at his private school.

       Appellant presents two questions on appeal, which we reproduce

verbatim except for the bracketed insertions and the omission of superfluous

capitalization:

             A. [Was the verdict] against the insufficient (sic) as a matter
       of law where the Commonwealth failed to prove that the Appellant
       committed IDSI and related charges where there was no evidence
       to substantiate the complainant’s contradictory evidence that the
       appellant committed the crimes charged[?]

            B. [Did the court err] in failing to give a standard lack of
       prompt complaint charge[?]

Appellant’s Brief, at 5.

       We are guided by the following standard of review when presented
       with a challenge to the sufficiency of the evidence supporting a
       defendant’s conviction:

          As a general matter, our standard of review of sufficiency
          claims requires that we evaluate the record in the light most
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2 Appellant filed a Rule 1925(b) statement of errors on June 29, 2017. The
trial court filed an opinion on December 22, 2017. See Pa.R.A.P. 1925.


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         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. 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.

         The Commonwealth may sustain its burden by means of
         wholly circumstantial evidence. Accordingly, the fact that
         the evidence establishing a defendant's participation in a
         crime is circumstantial does not preclude a conviction where
         the evidence coupled with the reasonable inferences drawn
         therefrom overcomes the presumption of innocence.
         Significantly, we may not substitute our judgment for that
         of the fact finder; thus, so long as the evidence adduced,
         accepted in the light most favorable to the Commonwealth,
         demonstrates the respective elements of a defendant's
         crimes beyond a reasonable doubt, the appellant’s
         convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013)

(internal quotation marks and citations omitted).

      Here, Appellant’s generalized boilerplate challenge to sufficiency does

not merit relief. Appellant merely posits that the complainant’s testimony was

not substantiated by additional evidence.     See Appellant’s Brief, at 5.    As

noted by the trial court, it is well-settled that the uncorroborated testimony of

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

See Trial Court Opinion, at 6 (citing, inter alia, Commonwealth v. Bishop,

742 A.2d 178, 189 (Pa. Super. 1999).




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       Moreover, Appellant does not identify what element of any specific crime

the Commonwealth failed to prove. Instead, he highlights much of the victim’s

problematic behavioral history and concludes generally that there was “no

credible evidence to support the verdicts of IDSI and related charges[.]”

Appellant’s Brief, at 10 (emphasis added).        He correctly concedes that a

complainant’s testimony does not have to be corroborated, but claims that the

victim’s testimony was “dated and incredible.” Id. at 13.

       Appellant’s credibility claim goes to weight, not sufficiency.

       A sufficiency of the evidence review, however, does not include an
       assessment of the credibility of the testimony offered by the
       Commonwealth. Such a claim is more properly characterized as
       a weight of the evidence challenge. Therefore, we find the
       Appellant has blurred the concepts of weight and sufficiency of the
       evidence. Based upon our review, it appears Appellant is raising
       a weight of the evidence claim. We find this claim is waived for
       failing to raise it first before the trial court. A challenge to the
       weight of the evidence must first be raised in the trial court in
       order for it to be the subject of appellate review.

Commonwealth v. Wilson, 825 A.2d 710, 713–14 (Pa. Super. 2003)

(citations omitted).

       Here, by challenging credibility, Appellant presents a weight claim

improperly categorized as an insufficiency claim.3 Furthermore, the weight

claim was not properly raised and preserved with the trial court.             See

Pa.R.Crim.P. 607(A) (requiring that challenge to weight of evidence must be



____________________________________________


3 We note that Appellant expressly presents his challenge to the evidence as
a weight claim in his brief. See Appellant’s Brief, at 11.

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raised with trial judge); see also Commonwealth v. Lopez, 57 A.3d 74, 80

(Pa. Super. 2012) (failure to raise challenge to weight of evidence with trial

court results in waiver). Accordingly, Appellant’s claim is waived.

      It was the province of the jury sitting as fact-finder to resolve all issues

of credibility, resolve conflicts in evidence, make reasonable inferences from

the evidence, and believe all, none, or some of the evidence presented. See

Bishop, 742 A.2d at 189. “An appellate court cannot substitute its judgment

for that of the jury on issues of credibility.” Lopez, 57 A.3d at 81 (citations

omitted). Appellant’s first claim is waived and would not merit relief.

      In his second claim, Appellant argues that the trial court gave an

improper instruction on the lack of a prompt complaint. See Appellant’s Brief,

at 14-15. Appellant challenges the assumption (conceded at trial) that, as the

victim’s Latin tutor, he was in a “position of authority over the complainant.”

Id. at 15. With no citation to supporting authority, Appellant posits generally

that the victim was under no “threat or duress” and therefore, the jury

instruction was “simply inaccurate.” Id. We disagree.

      Our standard of review is well-settled.

      When reviewing a challenge to part of a jury instruction, we must
      review the jury charge as a whole to determine if it is fair and
      complete. A trial court has wide discretion in phrasing its jury
      instructions, and can choose its own words as long as the law is
      clearly, adequately, and accurately presented to the jury for its
      consideration. The trial court commits an abuse of discretion only
      when there is an inaccurate statement of the law.

                                   *    *    *


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      [I] n reviewing a challenge to the trial court’s refusal to give a
      specific jury instruction, it is the function of this [C]ourt to
      determine whether the record supports the trial court’s decision.
      In examining the propriety of the instructions a trial court presents
      to a jury, our scope of review is to determine whether the trial
      court committed a clear abuse of discretion or an error of law
      which controlled the outcome of the case. A jury charge will be
      deemed erroneous only if the charge as a whole is inadequate, not
      clear or has a tendency to mislead or confuse, rather than clarify,
      a material issue. A charge is considered adequate unless the jury
      was palpably misled by what the trial judge said or there is an
      omission which is tantamount to fundamental error.
      Consequently, the trial court has wide discretion in fashioning jury
      instructions. The trial court is not required to give every charge
      that is requested by the parties and its refusal to give a requested
      charge does not require reversal unless the appellant was
      prejudiced by that refusal.

Commonwealth v. Baker, 963 A.2d 495, 507 (Pa. Super. 2008) (citations

and internal quotation marks omitted).

      Here, on independent review, we conclude that the minor additions to

the standard jury instruction delivered by the trial court were an accurate

explanation of the law, and only served to apply the general legal principles

at issue to the specific facts of the case. Appellant fails to explain how he was

prejudiced.

      Further, in evaluating a victim’s failure to make a prompt complaint, the

jury was entitled to consider the extent to which the accused may have been

in a position of authority over the victim. See Commonwealth v. Ables, 590

A.2d 334, 340 (Pa. Super. 2008). Here, the court merely instructed the jury

to consider “the extent to which [Appellant] may have been in a position of

authority [] as tutor[.]” N.T., Trial, 9/20/16, at 109. Under Ables, this


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instruction was entirely appropriate. Accordingly, Appellant’s challenge to the

jury instruction has no merit. Appellant’s second claim does not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/19




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