J-S25005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GEORGE RATHY, JR.,

                            Appellant                 No. 438 WDA 2014


            Appeal from the Judgment of Sentence October 15, 2013
               In the Court of Common Pleas of Lawrence County
              Criminal Division at No(s): CP-37-CR-0000463-2011


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 09, 2015

        George Rathy, Jr. appeals from the judgment of sentence of fourteen

to twenty-eight years’ incarceration, imposed October 15, 2013, following a

bench trial resulting in his conviction for rape of a child, attempted rape of a

child, involuntary deviate sexual intercourse with a child, attempted

involuntary deviate sexual intercourse with a child, and indecent assault.1

We affirm.

        We adopt the following statement of facts:

        This case arose following allegations of sexual molestation made
        by the eight-year-old daughter of [Appellant’s] girlfriend. The
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Respectively, 18 Pa.C.S. §§ 3121(c), 901(a), 3123(b), 901(a), and
3126(a)(7).
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     victim testified that while she and her mother were living with
     [Appellant], [Appellant] had sexual intercourse with her on one
     occasion in December of 2008.

     …

     At trial, the victim testified that in December 2008[,] she lived in
     a three[-]bedroom trailer located at 5354 Wallace Road, North
     Beaver Township in Lawrence County with [Appellant], her
     mother[,] and her brother. The victim testified that one night
     over Christmas break [Appellant] came home to the trailer with
     a brown paper bag containing beer. The victim stated that she
     was in her pajamas and on her way to bed when she saw
     [Appellant] walk into the house with the bag and take it into the
     kitchen. After [Appellant] put the bag down in the kitchen he
     walked into the victim’s room and asked her to give him a hug.
     She refused, stating that she was tired. The victim stated that
     [Appellant] then walked to the kitchen and got a glass of cold
     water. He then walked back to the victim’s room and poured the
     glass of water over her head, again asking her for a hug. When
     the victim refused for a second time, he told her to come with
     him into the living room. In the living room, [Appellant] told her
     to remove all her clothes. The victim walked back into her
     bedroom and took off all her clothes except her underwear, then
     walked back into the living room. [Appellant] told her to remove
     her underwear and go to her brother’s bedroom. Her brother
     was not home at the time because he was spending the night at
     his grandparents’ house. The victim explained that her brother’s
     bedroom was on the other side of the trailer right next to [the]
     bedroom [Appellant] shared with her mother. According [to] the
     victim’s testimony, her mother was home and asleep in her
     bedroom at the time of the sexual assault. The victim testified
     that [Appellant] told her to lie on the bed in her brother’s room.
     She proceeded to get on the bed and sat with her head down on
     the bed and her knees bent underneath her so that her butt was
     up in the air. She stated that [Appellant] approached her from
     behind wearing only his boxer shorts and inserted his penis into
     her anus. The victim stated that after [a while] [Appellant] left
     to go into the bathroom and then came back into the bedroom
     and again inserted his penis into her anus. The victim testified
     that it hurt when [Appellant] forcibly placed his penis into [her]
     anus. After [Appellant] finished having sexual intercourse with
     the victim, he told her to put her clothes back on. They then
     went into the living room to lie on the couch and watch a movie.

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        The victim stated that they fell asleep during the movie and
        woke up the next morning on the couch.

        The victim testified that she first told her mother about the
        sexual assault in February of 2010, after her mother had ended
        her relationship with [Appellant] and decided to move to Florida.
        … She did not tell her mother about the sexual assault at that []
        time because she was afraid of [Appellant], having witnessed
        [Appellant] physically abuse her mother on a number of
        occasions.

Trial Court Post-Sentence Motion Opinion, 02/12/2014, at 2-4.

        A bench trial commenced in November 2012.         Thereafter, Appellant

was convicted of all charges against him. Following a lengthy delay due in

large part to numerous continuances filed by Appellant, the trial court

sentenced Appellant in October 2013, solely on the rape conviction.2

Appellant timely filed post-sentence motions, including a challenge to the

weight of the evidence.           His motions were denied by the trial court.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

        Appellant raises the following issues:

        [1.] Whether the trial court erred in denying [Appellant’s] post-
        sentence motion that the verdict was against the weight of the
        evidence.

        [2.] Whether the trial court erred in rendering a guilty verdict
        on counts [for] which [Appellant] was found guilty of rape as
        well as attempted rape; involuntary deviate sexual intercourse
        as well as attempted involuntary deviate sexual intercourse all
        resulting from one alleged incident.
____________________________________________


2
    All other charges merged for sentencing purposes.



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      [3.] Whether the [trial] court erred in permitting the last minute
      amendment of [the criminal] information immediately preceding
      the trial on November 13, 2012.

Appellant’s Brief at 15.

      In his first issue, Appellant challenges the weight of the evidence

against him.     Appellant contends that the victim’s testimony was not

credible, noting that she failed to report her rape for approximately fourteen

months, recanted her allegations against Appellant to others, and testified

inconsistently regarding whether her rape was painful.                Appellant also

challenges the victim’s mother’s credibility, asserting that she took actions

that were inconsistent with a mother whose child was allegedly raped. See

Appellant’s Brief at 17, 19-22.

      A trial court’s decision to deny a post-sentence motion challenging the

weight   of    the   evidence   is   “the   least   assailable   of    its   rulings.”

Commonwealth v. Nypaver, 69 A.3d 708, 717 (Pa. Super. 2013) (internal

quotation omitted).

      [W]e may only reverse the lower court's verdict if it is so
      contrary to the evidence as to shock one's sense of justice.
      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. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)); see also

Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006)

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(“[Q]uestions concerning inconsistent testimony … go to the credibility of

witnesses. This Court cannot substitute its judgment for that of the jury on

issues of credibility.”) (citations omitted).

        We have reviewed the evidence           and the trial court’s opinion

addressing Appellant’s weight claim. According to the trial court:

        [T]he victim’s testimony was credible and believable. In fact,
        the testimony of the victim was clear and unambiguous. She
        gave a clear account of [Appellant] having forced sexual
        relations upon her after pouring a glass of water on her head
        and ordering her to remove her clothes and lie on her brother’s
        bed while he engaged in sexual acts upon her by force and
        against her consent and will at a time when she was under the
        age of thirteen years. … Appellant has set forth no facts … so
        clearly of greater weight that to ignore them would deny justice.

        Furthermore, all of the foregoing arguments raised by
        [Appellant] with respect to [the victim’s mother’s] testimony
        may affect [the mother’s] credibility, but none of the arguments
        raised affect the credibility of the victim. A conviction may be
        based on the testimony of the victim alone, if believed; it is not
        necessary for the victim’s testimony to be corroborated.

Trial   Court   Post-Sentence   Motion    Opinion   at   12   (citing   in   support

Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (“[T]he

uncorroborated testimony of the complaining witness is sufficient to convict

a defendant of sexual offenses.”)).

        We agree with the trial court’s analysis. The verdict does not shock

one’s sense of justice, and we discern no abuse of the court’s discretion in

rejecting Appellant’s weight claim. No relief is due Appellant.

        In his second issue, Appellant baldly contends that he should not have

been found guilty of the inchoate crimes of attempted rape and attempted

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involuntary deviate sexual intercourse, because he was also found guilty of

completing those crimes.   Appellant’s argument is incoherent and cites no

authority in support of this contention.   Accordingly, we deem it waived.

See McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639, 647 (Pa. Super. 2011)

(finding waiver where the appellant failed to develop an argument “capable

of review”); Pa.R.A.P. 2119 (discussing requirements of an appellate brief’s

argument section).

     Absent waiver, and to the extent Appellant raises a sentencing issue,

we note that all convictions merged into Appellant’s rape conviction for

sentencing purposes. Thus, we discern no error in that regard.

     In his third issue, Appellant contends that the trial court erred in

permitting   the   Commonwealth    to   amend    the   criminal   information,

immediately preceding trial, to include attempted rape and attempted

involuntary deviate sexual intercourse.    According to Appellant, the last

minute additions undermined his trial strategy and resulted in prejudice to

him, citing in support Commonwealth v. Bricker, 882 A.2d 1008 (Pa.

Super. 2005).

     Appellant failed to challenge the amendment before the trial court. To

the contrary, when the trial court specifically inquired whether Appellant

objected to the amendment, Appellant declined:

     [Trial Court]:     There’s an amended information.        For the
     record, I take it there’s no objection to the amended information
     being filed?


                                   -6-
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      [Appellant’s Counsel]: No, Your Honor.

Notes of Testimony (N.T.), 11/13/2012, at 14.

      Accordingly, we deem this issue waived.     Pa.R.A.P. 302 (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

      Absent waiver, we state our agreement with the legal basis of

Appellant’s argument: a criminal information may be amended only to the

extent that “a defendant is fully apprised of the charges” and incurs no

prejudice by “the last minute addition of alleged criminal acts of which the

defendant is uninformed.”     Bricker, 882 A.2d at 1019 (discussing the

purpose of Pa.R.Crim.P. 564).    Nevertheless, the record does not support

Appellant’s claim of prejudice. According to Appellant’s counsel:

      We [i.e., Appellant and counsel] had talked – if I may clarify for
      the [c]ourt, we talked about the Commonwealth adding the
      attempts, but he [i.e., Appellant] had not seen the information
      at that point, but we were informed by their office[,] and we
      discussed that.

N.T. at 18-19.

      Thus, the transcript demonstrates that Appellant was informed prior to

trial that the Commonwealth may add the attempt charges and discussed

the possibility with his counsel. Accordingly, we discern no prejudice.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2015




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