J-S18033-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                  Appellee                :
                                          :
                  v.                      :
                                          :
ROBERT CARL YEAGER,                       :
                                          :
                  Appellant               :      No. 1097 MDA 2015

            Appeal from the Judgment of Sentence May 27, 2015
               in the Court of Common Pleas of York County,
            Criminal Division, at No(s): CP-67-CR-0002953-2014

BEFORE:     BOWES, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED APRIL 13, 2016

      Robert Carl Yeager (Appellant) appeals from the judgment of sentence

entered following his conviction for rape of a child, kidnapping, burglary,

indecent assault, terroristic threats, and corruption of minors. We affirm.

      The trial court summarized the relevant factual and procedural history

of this case as follows.

             In the early morning hours of June 24, 2013, officers from
      the Northern York County Regional Police were dispatched to a
      trailer park in Paradise Township, York County, in response to a
      report of a sexual assault. The victim, 7 year old, I.L., reported
      that earlier in the evening, an unknown man pulled her through
      her living room window, covered her eyes and mouth, carried
      her inside an unknown residence, and anally raped her. The man
      told I.L. that he would kill her mom, sister, and grandma if she
      reported him. Shortly thereafter, the man returned I.L. to her
      home, where she promptly woke up her grandmother and told
      her what just occurred.

           On July 5, 2013, I.L. positively identified tattoos belonging
      to [] Appellant from a photo line-up. On March 25, 2014,

*Retired Senior Judge assigned to the Superior Court.
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     Detective Michael Hine received a DNA report confirming that
     DNA found recovered from sperm sample obtained from I.L.’s
     [rape kit] swabs was consistent with DNA taken from []
     Appellant.

           A jury trial was held from January 12 to January 14, 2015.
     The jury found [] Appellant guilty of [the aforementioned
     offenses].

Trial Court Opinion, 11/3/2015, at 1-2.

     On May 27, 2015, Appellant was sentenced to an aggregate term of

28-to-58 years’ incarceration.   On June 25, 2015, Appellant timely filed a

notice of appeal to this Court. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

     Appellant raises three issues for our review.

     1. Whether the Commonwealth failed to present sufficient
     evidence in order to convict Appellant of kidnapping, because the
     Commonwealth failed to prove beyond a reasonable doubt that
     Appellant was the individual who remove[d] the victim from her
     home?

     2. Whether the Commonwealth failed to present sufficient
     evidence in order to convict Appellant of burglary, because the
     Commonwealth failed to prove that Appellant was the individual
     who entered the victim’s residence with the intent of committing
     a crime?

     3. Whether the trial court’s sentence is illegal because [] it is
     based off of a mandatory minimum sentencing statute declared
     unconstitutional?

Appellant’s Brief at 6 (suggested answers and footnote omitted).




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      Because    Appellant’s   first   two   issues   purport   to   challenge   the

sufficiency of the evidence presented to support his convictions, we address

them together.

      Appellant was convicted of, inter alia, kidnapping a minor and

burglary. With respect to both offenses, Appellant argues that the evidence

is insufficient to sustain his convictions because I.L. made a number of

“conflicted and contradictory statements” during the course of trial that

called into question her identification of Appellant. Appellant’s Brief at 12.

      It is well-established that a claim that a witness’s testimony should not

be credited by the fact-finder because it is inconsistent goes to the weight,

not the sufficiency of the evidence. Commonwealth v. W.H.M., 932 A.2d

155, 160 (Pa. Super. 2007) (holding that the jury should have believed

Appellant’s version of the event rather than that of the victim goes to the

weight, not the sufficiency of the evidence); Commonwealth v. Wilson,

825 A.2d 710, 713-14 (Pa. Super. 2003) (holding that review of the

sufficiency of the evidence does not include an assessment of the credibility

of testimony; such a claim goes to the weight of the evidence).              Thus,

Appellant’s asserted sufficiency-of-the-evidence claim is, in fact, a weight-of-

the-evidence claim.

      A weight-of-the-evidence claim “must be preserved either in a post-

sentence motion, by a written motion before sentencing, or orally prior to

sentencing. Failure to properly preserve the claim will result in waiver, even



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if the trial court addresses the issue in its opinion.” Commonwealth v.

Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012) (citations omitted). Appellant

did not raise a weight of the evidence claim before the trial court in either a

pre- or post-sentence motion, nor did he address the issue orally prior to

sentencing. Accordingly, the claim is waived.1




1
 Assuming, arguendo, that Appellant’s weight-of-the-evidence claim is not
waived, it would not entitle him to relief.

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review. Moreover, where the trial court
      has ruled on the weight claim below, an appellate court’s role is
      not to consider the underlying question of whether the verdict is
      against the weight of the evidence. Rather, appellate review is
      limited to whether the trial court palpably abused its discretion in
      ruling on the weight claim.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007)
(citations and quotations omitted).

       Appellant assails the minor inconsistencies in the victim’s testimony.
However, reconciling inconsistencies in the testimony was within the
province of the fact-finder. Commonwealth v. Simmons, 662 A.2d 621,
630 (Pa. 1995) (“After examining the evidence in this case, we find that
appellant’s assertion that the inconsistencies in the witnesses’ testimony
rendered them incredible to have no merit since the inaccuracies claimed are
only minor and a witness’s credibility is solely for the [fact-finder] to
determine.”). Appellant has failed to convince us that the trial court abused
its discretion in holding that the verdict was not against the weight of the
evidence.



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          We note that even if Appellant had presented and preserved his

sufficiency-of-the-evidence claims properly, he would not be entitled to

relief.

          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 a reasonable doubt. In applying the above test, we
          may not weigh the evidence and substitute our judgment for the
          fact-finder. In addition, we note that the facts and circumstances
          established by the Commonwealth need not preclude every
          possibility of innocence. Any doubts regarding a defendant’s guilt
          may be resolved by the fact-finder unless the evidence is so
          weak and inconclusive that as a matter of law no probability of
          fact may be drawn from the combined circumstances. The
          Commonwealth may sustain its burden of proving every element
          of the crime beyond a reasonable doubt by means of wholly
          circumstantial evidence. Moreover, in applying the above test,
          the entire record must be evaluated and all evidence actually
          received must be considered. Finally, the 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.

          Further, in viewing the evidence in the light most favorable to
          the Commonwealth as the verdict winner, the court must give
          the prosecution the benefit of all reasonable inferences to be
          drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted).


          At trial, “the jury watched a previously recorded child services

interview [with the victim] and heard testimony from the victim, the police,

lab technicians, and sexual assault nurses.” Trial Court Opinion, 9/3/2015, at




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3. The victim’s testimony, N.T., 1/13-14/2015, at 89-125, established that

Appellant entered her home while she was sleeping, took her to his own

home, and raped her in his bedroom.        Importantly, the victim stated that

the man who assaulted her was the same man who took her from her home.

N.T., 1/13-14/2015, at 107. Further, the victim was able to identify her

assailant based on his arm tattoos. Id. at 195.      This evidence, which was

believed by the factfinder, is sufficient to sustain Appellant’s convictions.

Accordingly, his challenge fails.

      In his final issue, Appellant challenges the legality of the 20-to-40 year

sentence imposed for his rape of a child conviction. Appellant’s Brief at 22-

23. Specifically, Appellant contends that his sentence is illegal because the

mandatory     minimum     invoked   by   the   Commonwealth     was    declared

unconstitutional in light of Alleyne v. United States, 133 S. Ct. 2151

(2013), by this Court in Commonwealth v. Wolfe, 106 A.3d 800 (Pa.

Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015).2

      Our standard of review is as follows:

      A challenge to the legality of a sentence … may be entertained
      as long as the reviewing court has jurisdiction. It is also well-
      established that [i]f no statutory authorization exists for a
      particular sentence, that sentence is illegal and subject to
      correction. An illegal sentence must be vacated. Issues relating
      to the legality of a sentence are questions of law[.] Our standard

2
  Instantly, Appellant admits that he did not raise this issue in his 1925(b)
statement, Appellant’s Brief at 6, n.1; however, “legality of sentence
questions are not waivable and may be raised sua sponte by this Court.”
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013).


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      of review over such questions is de novo and our scope of review
      is plenary.

Wolfe, 106 A.3d at 801-02 (citations omitted).

      Our review of the record shows that, despite his protestations to the

contrary, Appellant was not sentenced pursuant to any mandatory minimum

provision. While it is true the Commonwealth timely filed notice of its intent

to seek a mandatory minimum sentence under 42 Pa.C.S. § 9718(a)(3), the

Commonwealth conceded at sentencing that this Court had “struck down”

mandatory sentences in light of Alleyne and expressed its understanding

that the mandatory could not be imposed. N.T., 5/27/2015, at 1-2. Further,

there is nothing in the record, either at the sentencing hearing or in the

sentencing order itself, to demonstrate that the trial court applied an illegal

mandatory minimum sentence. Accordingly, Appellant’s claim fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2016




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