J-S06039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

MICHAEL ARNOLD

                               Appellant              No. 3644 EDA 2015


           Appeal from the Judgment of Sentence November 13, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0006961-2009

BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 10, 2017

        Appellant, Michael Arnold, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and his convictions for rape by forcible compulsion,1 rape of a child,2

involuntary deviate sexual intercourse (“IDSI”) with a person less than 16

years of age,3 IDSI with a child,4 and aggravated indecent assault without

consent.5 Appellant challenges the weight and sufficiency of the evidence,


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(a)(1).
2
    18 Pa.C.S. § 3121(c).
3
    18 Pa.C.S. § 3123(a)(7).
4
    18 Pa.C.S. § 3123(b).
5
    18 Pa.C.S. § 3125(a)(1).
J-S06039-17


the admission of hearsay evidence, and the discretionary aspect of his

sentence. We affirm.

        The trial court summarized the facts of this case as follows:

              In 1993, Appellant and his daughter K.S. (the
           complainant) moved into a residence on Hancock Street in
           Philadelphia. The complainant was six years old.[6] At that
           time, Appellant began engaging in oral and anal
           intercourse with the complainant inside the house. When
           the complainant was eleven years old, Appellant started
           having vaginal intercourse with her. Appellant sexually
           abused the complainant “as frequently as [one] washed
           [their] clothes.”    In 1999, the complainant moved to
           Puerto Rico with her mother, . . . while Appellant remained
           in Philadelphia. The complainant lived in Puerto Rico from
           August of 1999 to May of 2000. While in Puerto Rico, she
           did not disclose the sexual abuse to her mother.


6
    The complainant testified in response to the Commonwealth as follows:

           [The Commonwealth]: When this first started happening,
           your earliest memory is about six. When you were very
           young, what did you think about the fact this was
           happening between you and your dad?

           A: I thought it was normal.

           Q: Tell us about that. What do you mean?

           A: I though all little girls did that with their dad. And he
           wasn’t my real dad. I thought that’s what I had to do in
           order to keep him as my dad.

           Q: What made you think that?

           A: Because that’s all I knew.

N.T. at 10.




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           After returning to Philadelphia in 2000, the complainant
       lived with Appellant at a different residence from where
       the sexual abuse first occurred. She testified that while
       living with Appellant on Concord Road, he continued to
       sexually molest her. When asked why she voluntarily lived
       with Appellant, the complainant explained that she did not
       want to return to Puerto Rico with her mother, and the
       only opportunity to stay in Philadelphia was to live at the
       Concord Road residence.

          In 2003, when she was fifteen years old, the
       complainant called Appellant to ask if she could sleep at
       her friend’s house. Appellant replied, “You know what that
       means.” After her friend . . . overheard this conversation,
       she asked the complainant to explain Appellant’s
       statement. The complainant proceeded to disclose the
       sexual abuse to [her friend].       She also subsequently
       disclosed the sexual abuse to her boyfriend, who in turn
       disclosed the relationship to the complainant’s mother.
       The complainant also met with Detective Brown, a
       detective in the Special Victims Unit, where she wrote a
       statement describing Appellant’s actions from 1993 to
       2003.

          The complainant maintained a typical father/daughter
       relationship with Appellant after she reported the sexual
       abuse to the authorities. Specifically, Appellant helped her
       get a job at the same company where he worked, and she
       took him to work every morning.

           The complainant did not disclose to anyone what took
       place between herself and Appellant until 2003. When
       asked why she did not tell her mom, one of her siblings,
       friends, teachers, or guidance counselors at any time over
       the ten-years of abuse she responded, “I was scared. I
       was scared to break up my family which it has done. . . . I
       was scared no one would believe me.” Although there
       were between eight and thirteen people living in the
       Hancock residence when the sexual abuse took place, the
       complainant testified that Appellant would wait until she
       was alone or when [her mother] worked nights. She
       stated, “I always had my own room . . . [and] he would
       come [in]. At times when my mom was holding down two
       jobs . . . he would have me in his bedroom.”


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            The complainant did not consent to any sexual acts with
         Appellant. When asked to describe her earliest memory of
         the abuse, the complainant testified, “I was sleeping. In
         my dream I was playing in the fire hydrant. And I just got
         a sudden urge to go to the bathroom, I felt like I had a
         bowel movement. When I woke up he was inside me
         anally.” When asked whether she had any other memories
         of the abuse, the complainant testified that Appellant
         would come in her room while she was sleeping, or come
         in the bathroom while showering, and then proceed to
         sexually molest her. She submitted to Appellant’s sexual
         demands because she thought engaging in sexual
         intercourse was the only way to keep Appellant as her
         father.

            As time progressed, sexual acts became a form of
         payment. If the complainant misbehaved, she would not
         be punished so long as she slept with Appellant. If she
         asked Appellant to spend the night at a friend’s house, he
         would state “you know what you [have] to do” or “you
         know you got to give me something.” In addition to
         vaginal intercourse, Appellant also stuck his fingers and
         tongue in her vagina. She was also forced to reciprocate
         by performing oral sex on Appellant. As a result of the
         sexual abuse, the complainant had nightmares and wet her
         bed until she was about twenty-one years old,
         approximately five years after the sexual abuse ended.
         She testified, “[Appellant] took away my confidence and
         my trust in men.      He took away my ability to show
         affection to people.”

Trial Ct. Op., 7/26/16, at 2-4 (record citations omitted).7

      On November 13, 2015, Appellant was sentenced to 161/2 to 45 years’

imprisonment.    Appellant filed a post-sentence motion which was denied.

This timely appeal followed.      Appellant filed a court-ordered Pa.R.A.P.

7
   We note that Appellant incorporates the trial court’s factual summary in
his brief. See Appellant’s Brief at 7.




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1925(b) statement of errors complained of on appeal and a supplemental

Rule 1925(b) statement.8 The trial court filed a responsive opinion.

      Appellant raises the following issues for our review:

         A. The evidence was insufficient to support the guilty
         verdicts as there was no physical evidence, such as D.N.A.,
         medical records, etc., proving sexual assaults occurred
         over a ten year period.

         B. The guilty verdicts were against the weight of the
         evidence, as despite living in a small and crowded
         Philadelphia row-home, there are no witnesses to any
         assaults; despite testifying she would have done anything
         to stop the abuse, the complaining witness at times ran
         away from her Mother and at times chose to live with
         Appellant; and Appellant’s good character for being a
         peaceful and law-abiding citizen is reasonable doubt in
         itself.

         C. The trial court erred in allowing into evidence multi-
         layered hearsay (for truth of the matter asserted) by
         complainant’s Mother that complaining witness told her
         that Appellant used language which Mother described as
         “bedroom conversation,” specifically “give me some.”

         D. The sentence was excessive and the trial court abused
         discretionary aspects of sentencing and failed to properly
         consider mitigating factors (good character, familial
         support, positive position in community, military service,
         etc.) and that the Appellant is extremely low risk for
         recidivism.

Appellant’s Brief at 6.




8
 The supplemental statement was filed with permission from the trial court
and is virtually identical to the original Rule 1925(b) statement.



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      First, Appellant contends that “the evidence was wholly insufficient to

support the guilty verdicts.” Id. at 13. In support of this claim, he avers as

follows:

              In the instant case . . . there was no D.N.A., no medical
           records and no independent eye witnesses to corroborate
           the complainant’s assertions. There was no objective,
           unbiased evidence proving the appellant committed any
           abuse. No corroborating physical evidence whatsoever.
           The only evidence was the unreliable testimony of
           the complainant. The complainant testified she would
           have done anything to stop the abuse. However, she
           inexplicably chose to live with [A]ppellant rather than her
           own mother for significant periods of time.

Id. at 13 (emphasis added).

      Our review is governed by the following principles:                        “A claim

challenging    the   sufficiency   of       the   evidence   is   a   question   of   law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

              [T]he critical inquiry on review of the sufficiency of the
           evidence to support a criminal conviction . . . does not
           require a court to ask itself whether it believes that the
           evidence at the trial established guilt beyond a reasonable
           doubt. Instead, it must determine simply whether the
           evidence believed by the fact-finder was sufficient to
           support the verdict. . . .

                                        *     *     *

               When reviewing the sufficiency of the evidence, an
           appellate court must determine whether the evidence, and
           all reasonable inferences deducible from that, viewed in
           the light most favorable to the Commonwealth as verdict
           winner, are sufficient to establish all of the elements of the
           offense beyond a reasonable doubt. . . .




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Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007)

(citations and quotation marks omitted).

      As a prefatory matter, we consider whether Appellant has waived this

sufficiency of the evidence claim.   The issue presented in Appellant’s Rule

1925(b) statement is as follows: “The evidence was insufficient to support

the guilty verdicts beyond a reasonable doubt as there was no physical

evidence, such as D.N.A., medical records, etc., proving that sexual assaults

occurred over a ten year period.” Appellant’s Pa.R.A.P. 1925(b) Statement,

1/6/16, at 1.

            [W]hen challenging the sufficiency of the evidence
            on appeal, the [a]ppellant’s 1925 statement must
            “specify the element or elements upon which the
            evidence was insufficient” in order to preserve the
            issue for appeal. Such specificity is of particular
            importance in cases where, as here, the [a]ppellant
            was convicted of multiple crimes each of which
            contains numerous elements that the Commonwealth
            must prove beyond a reasonable doubt. Here, [the
            a]ppellant . . . failed to specify which elements he
            was challenging in his 1925 statement . . . . While
            the trial court did address the topic of sufficiency in
            its opinion, we have held that this is “of no moment
            to our analysis because we apply Pa.R.A.P.1925(b) in
            a predictable, uniform fashion, not in a selective
            manner dependent on an appellee’s argument or a
            trial court’s choice to address an unpreserved claim.”

         Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
         2009) [ ].

Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (some

citations omitted).




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      Analogously, in the instant case, although the trial court addressed the

issue of the sufficiency of the evidence, Appellant’s 1925(b) statement failed

to “specify the element or elements upon which the evidence was

insufficient” and failed to specify which convictions he was challenging. See

id. Thus, we could find the issue waived. See id. We decline to find waiver

on this basis.

      We consider whether Appellant raises a sufficiency of the evidence

claim but argues the weight of the evidence. Appellant contends that “the

only evidence was the unreliable testimony of the complainant.” Appellant’s

Brief at 13. “An argument regarding the credibility of a witness’s testimony

goes to the weight of the evidence, not the sufficiency of the evidence.”

Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014).                  In

Commonwealth v. DeJesus, 860 A.2d 102 (Pa. 2004), our Pennsylvania

Supreme Court opined:

             [The a]ppellant’s claim challenges the weight, not the
         sufficiency, of the evidence. The weight of the evidence is
         exclusively for the finder of fact, which is free to believe
         all, part, or none of the evidence, and to assess the
         credibility of the witnesses. . . .     This Court cannot
         substitute its judgment for that of the jury on issues of
         credibility.

                                  *    *    *

         As we will not disturb the jury’s credibility determinations,
         this claim fails.

Id. at 107 (citations omitted).




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      In the case sub judice, Appellant’s claim challenges the weight of the

evidence.   See Melvin, 103 A.3d at 43; DeJesus, 860 A.2d at 107.           We

cannot substitute our judgment for that of the jury. See id. This claim fails.

See id.      In any event, “[t]his Court has long-recognized that the

uncorroborated testimony of a sexual assault victim, if believed by the trier

of fact, is sufficient to convict a defendant, despite contrary evidence from

defense witnesses.” Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa.

Super. 2006) (citation and quotation marks omitted).        Having reviewed the

sufficiency of the evidence, we conclude no relief is due. See id.

      Next, Appellant contends

          [i]n the instant case, the guilty verdicts were against the
          weight of the evidence. As mentioned above, there was no
          corroborating evidence. Most compelling however, was
          that there were significant periods when the complainant
          chose to live with [A]ppellant instead of her own mother,
          which is compelling evidence proving she was not under
          any distress while in [A]ppellant’s custody, much less
          being abused.           The complainant’s testimony lacks
          credibility. It is difficult to believe complainant’s testimony
          that she would have done anything to stop the abuse, but
          then subsequently flee from her mother and elect to live
          with her alleged abuser for extended periods of time.
          Appellant’s good character is reasonable doubt in itself, as
          well.

Appellant’s Brief at 14.

      Our Supreme Court has held that

          [a] motion for a new trial alleging that the verdict was
          against the weight of the evidence is addressed to the
          discretion of the trial court. An appellate court, therefore,
          reviews the exercise of discretion, not the underlying
          question whether the verdict is against the weight of the


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         evidence. The factfinder is free to believe all, part, or
         none of the evidence and to determine the credibility of
         the witnesses. The trial court will award a new trial only
         when the jury’s verdict is so contrary to the evidence as to
         shock one’s sense of justice. In determining whether this
         standard has been met, appellate review is limited to
         whether the trial judge’s discretion was properly exercised,
         and relief will only be granted where the facts and
         inferences of record disclose a palpable abuse of
         discretion. Thus, the trial court’s denial of a motion for a
         new trial based on a weight of the evidence claim is the
         least assailable of its rulings.

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations

omitted).

      In the case sub judice, the trial court opined:

            Here, the Commonwealth reliably established the
         required elements for each charge through witness
         testimony. The trier of fact found the complainant credible
         when she testified that Appellant anally, vaginally, and
         orally molested her over a ten-year period. The guilty
         verdicts do not shock one’s sense of justice. The fact that
         other people lived in the house or that the complainant
         may have chosen to live with her father instead of her
         mother made her testimony no less credible. Rather,
         these facts simply demonstrate the difficult and
         complicated decisions facing a young girl in crisis and
         underscore the well-known fact that sex crimes are almost
         always committed in secret. Therefore, the guilty verdicts
         were not against the weight of the evidence . . . .

Trial Ct. Op. at 9-10. We agree no relief is due.

      Appellant asks this Court to reweigh the evidence. This we cannot do.

See Ramtahal, 33 A.3d at 609. Instantly, the verdict was “not so contrary

to the evidence as to shock one’s sense of justice.” See id. We discern no

abuse of discretion by the trial court. See id.



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      Next, Appellant avers the trial court erred in admitting hearsay

evidence. We reproduce Appellant’s argument verbatim.

             Here the complainant’s mother testified that the
         complainant told her that [A]ppellant allegedly made
         statements to complainant, specifically “give me some.”
         This was certainly admitted to prove that [A]ppellant
         molested complainant, so it was plainly an assertion made
         for the truth of the matter asserted. Further, it does not
         fall into the admission by party opponent exception and is
         unreliable because it was a statement made to the mother
         by the complainant and not [A]ppellant to the mother.
         This multi-layered unreliable nature of this statement,
         described by the mother as “bedroom conversation,” is the
         very type of hearsay statement that must be kept out of
         evidence pursuant to the Rules of Evidence.

Appellant’s Brief at 14-15. We find no relief is due.

      Our review is guided by the following principles.   “The admission of

evidence is committed to the sound discretion of the trial court, and our

review is for an abuse of discretion.”    Commonwealth v. Rosen, 42 A.3d

988, 993 (Pa. 2012) (citation omitted).

         The law with regard to whether a trial court may properly
         admit prior consistent statements of a child victim of
         sexual assault, as relied on by the trial court, is well-
         settled.

            To the extent that prior consistent statements are
            offered to prove the truth of the matter asserted
            therein, they are plainly inadmissible hearsay.
            However, when they are offered to corroborate
            in-court testimony, prior consistent statements
            are not hearsay.
            ....


            The general     rule precluding     corroboration of
            unimpeached     testimony with      prior consistent


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           statements is subject to exceptions when particular
           circumstances    in   individual   cases   tip    the
           relevance/prejudice balance in favor of admission. . .
           .
           .....


           Similarly, jurors are likely to suspect that
           unimpeached testimony of child witnesses in general,
           and child victims of sexual assaults in particular, may
           be distorted by fantasy, exaggeration, suggestion, or
           decay of the original memory of the event. Prior
           consistent statements may therefore be admitted to
           corroborate even unimpeached testimony of child
           witnesses, at the trial court’s discretion, because
           such statements were made at a time when the
           memory was fresher and there was less opportunity
           for the child witness to be effected by the decaying
           impact of time and suggestion.
           .....


           The principle exception to the general rule of
           exclusion is that prior consistent statements
           may be admitted to corroborate or rehabilitate
           the testimony of a witness who has been
           impeached, expressly or impliedly, as having a
           faulty memory, or as having been induced to
           fabricate the testimony by improper motive or
           influence. Admission of prior consistent statements
           on such grounds is a matter left to the sound
           discretion of the trial court, to be decided in light of
           the character and degree of impeachment. It is not
           necessary that the impeachment be direct; it may be
           implied, inferred, or insinuated either by cross-
           examination, presentation of conflicting evidence, or
           a combination of the two.

Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. 2005) (citation

omitted and emphases added).

     At trial, the complainant testified, inter alia, as follows:


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        [The Commonwealth]: Before he would do these things,
        would he say anything to you?

        A: He did. But most of the time it was like I was either
        asleep and I would wake up to it. But as I got older it was
        more like a payment of some sort.

           For instance, when we got in trouble and were put on
        punishment, if I slept with him we could get off [sic] of
        punishment. If I asked him for anything like to spend the
        night over a friend’s house, to do [sic] normal kids would
        do without having to sleep with their fathers to do it, that
        was payment.

        Q: What would he say about that?

        A: Mostly, “you know what you got to do.” If I asked can I
        spend the night. He’ll say, “you know what you got to do,”
        or “you know you got to give me something.” It was
        implied.

N.T., 10/15/14, at 9-10.

     The complainant’s mother testified to the follows:

        [The Commonwealth]: When you were talking with
        [complainant] and she sharing these things with you, did
        she ever tell you what [Appellant] said to her?

        A: He would use bedroom conversation that he used with
        me. And one of those things was “give me some. . . .”

Id. at 80-81.

     The Commonwealth offered the statement to rebut Appellant’s implied

claim that the complainant fabricated the abuse. See Pa.R.E. 613(c). The

trial court found the complainant’s statement to her mother was admissible




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as a prior consistent statement. Trial Ct. Op. at 10.9 We discern no abuse

of discretion.    See Rosen, 42 A.3d at 993.     We agree this claim has no

merit. See Hunzer, 868 A.2d at 512.

      Lastly, Appellant contends that the trial court abused its discretion in

its excessive sentence. Appellant argues:

         [I]t is clear from the record, that the [c]ourt did not give
         proper weight (or any weight) to factors such as
         [A]ppellant’s lack of criminal record, good character,
         military service, traumatic childhood, positive position in
         the community, familial support, extremely low risk to
         recidivize, etc. The [t]rial [c]ourt failed to properly weigh
         and/or consider factors that should have drastically
         lessened the sentence. For these and for the foregoing
         reasons, the [t]rial [c]ourt entered an excessive sentence.

Appellant’s Brief at 15 (citations omitted).



9
  We note a typographical error in the trial court’s opinion. The trial court
cites Pa.R.E. 603(c) in support of the admissibility of the evidence. The
court is apparently referring to Rule 613(c) which provides as follows:

         Evidence of a witness’s prior consistent statement is
         admissible to rehabilitate the witness’s credibility if the
         opposing party is given an opportunity to cross-examine
         the witness about the statement and the statement is
         offered to rebut an express or implied charge of:

         (1) fabrication, bias, improper influence or motive, or
         faulty memory and the statement was made before that
         which has been charged existed or arose; or

         (2) having made a prior inconsistent statement, which the
         witness has denied or explained, and the consistent
         statement supports the witness’s denial or explanation.

Pa.R.E. 613(c).



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     As a prefatory matter, we consider whether Appellant has waived this

issue on appeal. In Commonwealth v. Griffin, 149 A.3d 349, 353–54 (Pa.

Super. 2016), this Court opined:

        A challenge to the discretionary aspects of sentencing does
        not entitle an appellant to review as of right. In order to
        invoke this Court’s jurisdiction to address such a challenge,
        the appellant must satisfy the following four-part test: the
        appellant must (1) file a timely notice of appeal pursuant
        to Pa.R.A.P. 902, 903; (2) preserve the issues at
        sentencing or in a timely post-sentence motion pursuant to
        Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief
        does not have a fatal defect as set forth in Pa.R.A.P.
        2119(f); and (4) set forth a substantial question that the
        sentence appealed from is not appropriate under the
        Sentencing Code under 42 Pa.C.S. § 9781(b).

        While [the a]ppellant filed a timely notice of appeal and
        preserved his sentencing claim in a timely post-sentence
        motion, he failed to include a Rule 2119(f) statement in his
        appellate brief.     When challenging the discretionary
        aspects of sentence, an appellant must include in his or
        her brief a separate concise statement demonstrating that
        there is a substantial question as to the appropriateness of
        the sentence under the Sentencing Code.              If the
        Commonwealth objects to the appellant’s failure to comply
        with Pa.R.A.P. 2119(f), the sentencing claim is waived for
        purposes of review.

Id. at 353 (some citations and quotation marks omitted).

     Analogously, in the case sub judice, Appellant did not comply with

Pa.R.A.P. 2119(f).   The Commonwealth objected to Appellant’s failure to

include a separate Rule 2119(f) statement in his appellate brief.       See

Commonwealth’s Brief at 18. Therefore, the issue is waived for our review.

See Griffin, 149 A.3d at 353.

     Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2017




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