J-S78032-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :             IN THE SUPERIOR COURT OF
                              :                   PENNSYLVANIA
              Appellee        :
                              :
        v.                    :
                              :
BRIAN KEITH CLEMMER,          :
                              :
              Appellant       :              No. 845 WDA 2017

            Appeal from the Judgment of Sentence June 1, 2017
              in the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0001462-2015

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED FEBRUARY 02, 2018

      Brian Keith Clemmer (Appellant) appeals from the judgment of

sentence entered June 1, 2017, after he was found guilty of involuntary

deviate sexual intercourse (IDSI) with a person unconscious or unaware,

and aggravated indecent assault with a person unconscious or unaware. We

affirm.

      The trial court summarized the pertinent factual history as follows.

             On February 7[, 2015], Appellant, a person [the victim,
      H.N.] had known since her childhood, came to her home.
      Sometime around nightfall, [H.N.] and Appellant left her home in
      his van and went to a bar. After consuming “a few shots and
      one or two mixed drinks[,]” they left the bar around midnight
      and went to several places before going to Appellant’s home.
      [H.N.] was feeling “sick and dizzy” like she had taken “a sleeping
      pill or something.”

           After arriving [at] Appellant’s trailer, [H.N.] became sick
      and vomited. She then went to [Appellant’s] couch to lie down
      and fell asleep. Later, she was awakening [sic], [H.N.] felt


* Retired Senior Judge assigned to the Superior Court
J-S78032-17


        Appellant “pulling his penis” out of her. Her pants were around
        her ankles and[] Appellant was pulling up and buckling his pants.
        She then told him to take her home during which time
        [Appellant] kept saying he was sorry and apologized over and
        over.

              The Commonwealth next called Trooper James L. Garlick of
        the Pennsylvania State Police, [] who [had] been assigned to
        investigate [the] alleged sexual assault, to testify.        After
        interviewing [H.N.] as part of his investigation, [Trooper Garlick]
        went to [Appellant’s residence]. After knocking on the door,
        Appellant answered the door and allowed [Trooper] Garlick to
        enter the residence. During the course of his interview with
        Trooper Garlick, Appellant told him that he had put both his
        finger and tongue into [H.N.’s vagina]. He also admitted that he
        rubbed her crotch area with his hands, put his finger inside her,
        kissed her crotch, and put his tongue inside her vagina. He
        further admitted that [H.N.] was upset with him.

Trial Court Opinion, 7/12/2017, at 2-3 (citations omitted).

        Following a jury trial, Appellant was found guilty of the aforementioned

crimes.1 Appellant filed a post-trial motion, which the trial court denied on

March 31, 2017.      On June 1, 2017, the trial court sentenced Appellant to

four to eight years’ incarceration. This timely-filed appeal followed, wherein

Appellant presents the following inartfully phrased issues for our review,

which we have reordered for ease of disposition.2

        [1.] That the Commonwealth did not produce evidence beyond a
        reasonable doubt as to the charge of involuntary deviate sexual
        intercourse in that the alleged victim gave no testimony of
        vaginal or anal penetration by anything other than a penis.




1
  Appellant was also charged with, but found not guilty of, rape of an
unconscious person.
2
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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      [2.] That the Commonwealth did not prove guilt beyond a
      reasonable doubt that [sic] the elements of aggravated indecent
      assault were not proved through the alleged victim’s testimony
      as the jury did not find her credible and return[ed] a not guilt[y]
      verdict as to the charge of rape.

      [3.] That the [trial] court erred in permitting the Commonwealth
      [to] question[ Appellant] concerning his interview with Trooper
      Garlick as it was outside the scope of direct examination and not
      permiss[i]ble for the Commonwealth to inquire.

Appellant’s Brief at 7 (unnecessary capitalization omitted).

      Appellant’s first two issues challenge the sufficiency of the evidence to

sustain his convictions. Accordingly, we bear in mind the following.

      [O]ur standard of review of sufficiency claims requires that we
      evaluate the record in the light most 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.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotation marks omitted). The Commonwealth may

sustain its burden by means of wholly circumstantial evidence, and we must

evaluate the entire trial record and consider all evidence received against the

defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

      First, Appellant contends the evidence was insufficient to sustain his

conviction because the trial court’s charge defined IDSI “as a person’s



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tongue penetrating a sexual organ of a woman. The testimony of [H.N.] was

that [Appellant] placed his penis in [her vagina]. She never testified that his

tongue came into contact with her [v]aginal area.” Appellant’s Brief at 13.

      A person commits the crime of IDSI with an unconscious person when

“the person engages in deviate sexual intercourse with a complainant: … (3)

who is unconscious or where the person knows the complainant is unaware

that the sexual intercourse is occurring[.]” 18 Pa.C.S. § 3123(a)(3).

      The penetration requirement for involuntary deviate sexual
      intercourse is “penetration however slight.” In addition to its
      ordinary meaning, the term sexual intercourse is defined as
      intercourse per os or per anus, with some penetration however,
      slight.

            Therefore, in order to sustain a conviction for
            involuntary    deviate      sexual    intercourse,  the
            Commonwealth must establish the perpetrator
            engaged in acts of oral or anal intercourse, which
            involved penetration however slight. In order to
            establish penetration, some oral contact is required.
            See Commonwealth v. Trimble, [615 A.2d 48 (Pa.
            Super. 1992)] (finding actual penetration of the
            vagina is not necessary; some form of oral contact
            with the genitalia is all that is required). Moreover, a
            person can penetrate by use of the mouth or the
            tongue. See In the Interest of J.R., [648 A.2d 28
            (Pa. Super. 1994)], appeal denied, 540 Pa. 584, 655
            A.2d 515 (1995) (stating “Deviate sexual intercourse
            is considered to have occurred if one’s mouth or
            tongue penetrates the vaginal area of another”).

Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003) (some

citations omitted).

      The trial court responded to Appellant’s claim as follows.




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             [H.N.] testified as to her condition which led to her
      becoming sick and falling asleep, and Trooper Garlick testified
      that Appellant admitted penetrating her vagina with his tongue.
      Since the trier of fact, while passing upon credibility of witnesses
      and the weight of the evidence produced, is free to believe all,
      part[,] or none of the evidence, the Commonwealth did produce
      sufficient evidence to sustain its burden.

             As to [] Appellant’s contention that the evidence was
      insufficient in that [H.N.] gave no testimony of vaginal
      penetration of anything other than a penis, it is understandable
      that a person who was unconscious is unaware and would not
      know what occurred during that time. Hence, this issue is
      without merit.

Trial Court Opinion, 7/12/2017, at 5-6.

      We agree with the trial court’s conclusions.        The Commonwealth

presented the testimony of Trooper Garlick, who testified that he had a

conversation with Appellant and Appellant had admitted that he had, inter

alia, “put his tongue inside [H.N.’s] vagina.”   N.T., 3/6/2017, at 40. H.N.

further testified that during much of the time she was on the couch where

the assault occurred, she was unconscious. Id. at 17-18 (“I think I was out

for a little while because when I woke up, it was turning daylight”). Based

on the foregoing, the testimony, was sufficient to sustain Appellant’s

conviction.

      Next, we address Appellant’s claim that the evidence was insufficient

to sustain his conviction of aggravated indecent assault. Appellant’s Brief at

13. “[A] person who engages in penetration, however slight, of the genitals

or anus of a complainant with a part of the person’s body for any purpose

other than good faith medical, hygienic or law enforcement procedures


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commits       aggravated   indecent   assault   if:   …    (4)    the   complainant   is

unconscious or the person knows that the complainant is unaware that the

penetration is occurring.” 18 Pa.C.S. § 3125(a)(4).              “Digital penetration is

sufficient to support a conviction for aggravated indecent assault[.]”

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015).

      In support of his claim, Appellant’s entire argument is as follows: “the

jury’s verdict of not guilty to a charge of rape of an unconscious person

shows that the jury did not find the alleged victim credible and there was no

other evidence except for [A]ppellant’s own testimony. The Commonwealth

did not produce evidence beyond a reasonable doubt.” Appellant’s Brief at

13.

      Here, Appellant’s argument in support of this claim is sparse at best,

citing no supporting case law and failing to expound upon his bald assertion

that based upon the jury’s verdict, the jury found H.N.’s testimony

incredible.      We find this claimed waived.             See Commonwealth v.

Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008) (“Appellant’s failure to

properly develop this claim and to set forth applicable case law to advance it

renders this issue also waived.”).

      Regardless, not only is this claim waived, Appellant’s argument

implicates     the   weight   not   the   sufficiency     of   the   evidence.     See

Commonwealth v. Stahl, ___ A.3d ___, 2017 WL 5388353 (Pa. Super.

2017) (“[A]ny such credibility conflict would go to the weight, not the



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sufficiency of the evidence.”). Furthermore, based on the evidence, this

issue is meritless.3 See Commonwealth v. Britton, 134 A.3d 83, 86 (Pa.

Super. 2016) (“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.”) (citation omitted; emphasis added);

Commonwealth v. Miller, 35 A.2d 1206, 1208 (Pa. 2012) (“[U]nder

longstanding federal and state law, [inconsistent verdicts] are allowed to

stand so long as the evidence is sufficient to support the conviction.”).

      We address Appellant’s final claim mindful of the following.          “As

provided by the Pennsylvania Rules of Evidence, in general, the scope of

cross-examination is limited to the subject matter of the direct examination

and matters of credibility. However, the rule specifically notes the trial court

retains the discretion to admit other inquiry as it deems proper.”

Commonwealth v. Yale, 150 A.3d 979, 984 (Pa. Super. 2016) (footnote

omitted).

      Cross-examination may be employed to test a witness’[s] story,
      to impeach credibility, and to establish a witness’s motive for
      testifying. A trial court has discretion to determine both the
      scope and the permissible limits of cross-examination. The trial
      judge’s exercise of judgment in setting those limits will not be
      reversed in the absence of a clear abuse of that discretion, or an
      error of law. It is certainly within the scope of cross-examination

3
 Appellant admitted to digitally penetrating H.N.’s vagina. N.T., 3/7/2017,
at 117. Further, H.N. testified that she was unconscious for a period of time
while lying on the couch, and that she had not, at any time, consented to
Appellant touching her body in a sexual manner. N.T., 3/6/2017, at 17-18,
22. This testimony, if believed by the fact-finder, was sufficient to sustain
Appellant’s conviction.


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      to ask the witness if she ever made a statement inconsistent
      with her testimony in court.

Commonwealth v. Woeber, ___ A.3d ___, 2017 WL 5184530 (Pa. Super.

2017) (citations and quotation marks omitted). “[A]n abuse of discretion

occurs when the law is overridden or misapplied, or the judgment exercised

is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-

will, as shown by the evidence on record.” Commonwealth v. Handfield,

34 A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29

A.3d 3, 6 (Pa. Super. 2011)).

      Appellant contends the cross-examination by the Commonwealth

regarding a conversation that occurred between Appellant and Trooper

Garlick was outside the scope of direct examination and therefore,

improperly admitted.      Appellant’s Brief at 10.     Specifically, Appellant’s

argument consists of the following in its entirety:

      [Appellant] was questioned on an interview with Trooper Garlick
      that was never questioned about on direct. Further Trooper
      Garlick on his own direct testimony in Commonwealth’s case in
      chief gave an account of the interview with [Appellant]. The
      Commonwealth[’]s purpose in questioning [Appellant] was an
      attempt to have him explain his interview statement. Permitting
      this was an abuse of discretion that was highly prejudicial to
      [Appellant].

Id. at 10-11.4




4
  At trial, counsel for Appellant objected to the Commonwealth’s cross-
examination of Appellant regarding his conversation with Trooper Garlick.
N.T., 3/7/2017, at 119, 123.


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      As with his previous issue, Appellant’s “argument” in support of this

claim is essentially just a bald assertion with no supporting authority, and

his failure adequately to develop his issue impedes our ability to address it.

Thus, we are inclined to find this issue waived. See Williams, supra.

      Even if we were to find this claim properly preserved for our review,

Appellant would still not be entitled to relief.      Here, the trial court found,

based upon Appellant’s testimony during direct examination, that the

Commonwealth’s inquiry into the conversation he had with Trooper Garlick

was “fair.” Trial Court Opinion, 7/12/2017, at 4. We agree.

      During direct examination, Appellant provided a version of events that

somewhat    conflicted   with   Trooper   Garlick’s    testimony.     Specifically,

Appellant testified on direct examination that when he was rubbing H.N. “she

was moaning, you know, enjoying it,” and that he had only inserted his

fingers into H.N.’s vagina. N.T., 3/7/2017, at 117.

      This testimony was contrary to Trooper Garlick’s statements on direct

examination when questioned about the conversation he had with Appellant.

Specifically, Trooper Garlick stated that Appellant had admitted to “rub[ing

H.N.’s] crotch area with his hands, put[ting] his finger inside her, was

kissing her crotch area[,] and put his tongue inside her vagina.”            N.T.,

3/6/2017, at 40. Trooper Garlick testified that although Appellant told him

that he thought H.N. was conscious, Appellant did not relay that H.N. was

speaking to him while this was occurring.      Instead, Appellant told Trooper



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Garlick that H.N. was “mumbling every once in a while but nothing that he

could make out.” Id. at 41.

       Based upon the foregoing, we find the trial court did not abuse its

discretion by permitting the Commonwealth to cross-examine Appellant

regarding his conversation with Trooper Garlick. By providing his version of

events on direct examination, the Commonwealth was allowed to inquire

about statements made to Trooper Garlick that were inconsistent with

Appellant’s testimony in an attempt to impeach his credibility.

       Furthermore, although Appellant’s direct examination did not mention

specifically his conversation with Trooper Garlick, the majority of his

testimony involved the night with H.N. and his version of what had occurred.

Thus, the Commonwealth’s questioning of the conversation with Trooper

Garlick was merely expanding upon the subject matter raised during direct

examination.   “Cross-examination of a witness … should be limited to the

subject matter of the direct examination and matters affecting credibility;

however, the court may, in the exercise of discretion, permit inquiry into

additional matters as if on direct examination.” Pa.R.E. 611(b). No relief is

due.

       Accordingly, after a thorough review of the record and briefs, we find

Appellant has presented no issue on appeal which would convince us to

disturb his judgment of sentence.

       Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2018




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