J-A29027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN EDWARD HALL, II,

                            Appellant                 No. 358 WDA 2014


       Appeal from the Judgment of Sentence entered January 23, 2014,
                 in the Court of Common Pleas of Erie County,
             Criminal Division, at No(s): CP-25-CR-0000055-2013


BEFORE: DONOHUE, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED November 3, 2014

        John Edward Hall, II, (“Appellant”) appeals from the judgment of

sentence imposed after a jury convicted him of sexual assault and indecent

assault.1 We affirm.

        The trial court summarized the factual and procedural posture as

follows:

        On September 30, 2012, between 9:00 p.m. and 10:00 p.m.,
        [the victim] and [her friend], both Penn State Behrend students,
        arrived at their college friends’ off-campus house located at 4147
        Pine Avenue, Erie, PA, for a party. The party was held on the
        main floor. [The victim] drank beer from the time she arrived
        until approximately 12:30 a.m. During this time, she became
        intoxicated.


____________________________________________


1
    18 Pa.C.S.A. § 3124.1 and 3126(a)(4).




*Retired Senior Judge specially assigned to Superior Court.
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           At 12:30 [a.]m., the victim went upstairs to a vacant
     bedroom, closed the door, and went to sleep alone fully clothed.
     (She was good friends with the residents and periodically visited
     the residence. She would occasionally stay in an unoccupied,
     upstairs bedroom.) During the evening, one of the residents
     observed that [the victim] was sleeping and “out cold.” [The
     victim’s friend] also went upstairs and fell asleep in a different
     bedroom.

            Between 2:00 a.m. or 3:00 a.m., after the party ended,
     Appellant arrived at the house heavily intoxicated and carrying a
     half-full bottle of vodka. One of the residents told him he could
     stay and sleep on a bean bag located in the living room.
     Appellant continued to drink. One of the residents observed
     Appellant leave the living room, go to the kitchen and drink a
     glass of water.

           At some point, Appellant went upstairs and entered the
     bedroom where the victim was sleeping. She did not awake until
     she felt Appellant manipulating her legs. She noticed her shirt
     and bra were pushed up to her neck and Appellant was removing
     her pants without her consent. She immediately told Appellant
     to stop and asked him who he was. When she tried to get up,
     Appellant pushed her back down on the bed. Appellant held her
     down and inserted his penis into her vagina without her consent.
     She grabbed his face and fought him off. Appellant left the
     room.

           Seeking help, the victim went into the bedroom where [her
     friend] was sleeping. The victim found Appellant hiding behind a
     door and yelled at him to leave. Appellant ran out of the house.

            After the assault, [the victim’s friend] called the police. An
     individual at the residence called Appellant and put him on
     speaker phone. He described the victim’s accusations and asked
     what happened.       Appellant, sounding confused and heavily
     intoxicated, said that he was not sure.

          The victim was then taken to the hospital for a forensic
     examination.    She described the assault to the forensic
     examiner, Dr. Stephanie Larson, D.O. The victim also went to
     the police station and gave a statement to Erie Police
     Department Detective Michael Conway.

          At trial, Appellant testified that the sexual activity was
     consensual.

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            On September 17, 2013, following a two day jury trial,
      Appellant was found guilty of the above offenses. On January
      23, 2014, Appellant was sentenced to a term of 36 to 72 months
      of incarceration at Count 1 (sexual assault) and a concurrent
      term of 6 to 24 months of incarceration at Count 2 (indecent
      assault).

            On January 31, 2014, Appellant filed a Motion For Post-
      Sentence Relief, which [the trial court] denied on February 4,
      2014.

            On March 3, 2014, Appellant filed a Notice of Appeal. On
      March 4, 2014, [the trial court] ordered Appellant to file a
      concise statement of matters complained of on appeal pursuant
      to Pa.R.A.P. 1925. Appellant timely complied on March 19,
      2014[.]

Trial Court Opinion, 4/28/14, at 1-3 (citations to notes of testimony and

footnotes omitted).

      Appellant presents three issues for our review:

      I.    Whether the Commonwealth failed to present sufficient
      evidence to prove beyond a reasonable doubt that Appellant []
      possessed the malice required to support a conviction for Sexual
      Assault and Indecent Assault?

      II.   Was the jury verdict of guilty against the weight of the
      evidence presented at trial?

      III. Whether the trial court abused its discretion in admitting
      Dr. Stephanie Larson as an expert witness in the area of forensic
      investigations.

Appellant’s Brief at 5.

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

supporting his convictions. When reviewing a sufficiency challenge:

      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

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     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
     [finder] 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.

Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. Super. 2005) (citations

omitted).

     Appellant was convicted of sexual assault and indecent assault.

Sexual assault occurs when “a person engages in sexual intercourse or

deviate sexual intercourse with a complainant without the complainant’s

consent.” 18 Pa.C.S.A. § 3124.1. Indecent assault occurs when “a person

has indecent contact with the complainant, causes the complainant to have

indecent contact with the person … for the purpose of arousing sexual desire

in the person or the complainant and … the complainant is unconscious or

the person knows that the complainant is unaware that the indecent contact

is occurring.” 18 Pa.C.S.A. § 3126(a)(4).

     Appellant argues that there was insufficient evidence to support his

convictions because “the record, even when viewed in a light most favorable

to the Commonwealth, does not establish that the Appellant was acting


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without [the victim’s] consent.”       Appellant’s Brief at 17-18.    Appellant

further asserts that “both individuals were intoxicated on the evening in

question … and [the victim’s] memory is unclear as to the entire event. This

clouded testimony is the only evidence that alleges that Appellant acted

without the requisite consent.” Id. at 18.

      The trial court accurately explained why this issue is meritless:

             Here, the victim testified that Appellant assaulted her and
      she did not consent to sexual intercourse. Appellant testified
      that the victim consented. It was for the jury to determine
      credibility, and [the jury] was permitted to believe all, part, or
      none of the victim’s testimony. Commonwealth v. Andrulewicz,
      911 A.2d 162, 166, citing Commonwealth v. Adams, 882 A.2d
      496, 499 (Pa. Super. 2005). Clearly, the jury believed the
      victim’s testimony that she was sexually assaulted and rejected
      the Appellant’s version. Furthermore, [the victim’s] testimony
      established all the elements of the offenses, in particular, that
      she did not consent. See also, Commonwealth v. Charlton, 902
      A.2d 554, 562 (Pa. Super. 2006) (finding that the
      uncorroborated testimony of a sexual assault victim, if believed
      by the trier of fact, is sufficient to convict a defendant);
      Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008)
      (“A rape victim’s uncorroborated testimony to penal [sic]
      penetration is sufficient to establish sexual intercourse and thus
      support a rape conviction.”). Accordingly, the evidence, as well
      as all reasonable inferences drawn therefrom, viewed in the light
      most favorable to the Commonwealth as the verdict winner, was
      sufficient to sustain the conviction.

Trial Court Opinion, 4/28/14, at 6.

      It is uncontroverted that to prove sexual assault, the evidence must

show that the complainant did not consent. Commonwealth v. Duffy, 832

A.2d 1132 (Pa. Super. 2003).          The same is true for indecent assault.

Commonwealth v. Andrulewicz, 911 A.2d 162 (Pa. Super. 2006). Here,


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our review of the record confirms the trial court’s recitation of the victim’s

testimony.   The victim testified that on the night of the assault, she was

drinking beer and was “buzzed lightly.” N.T., 9/16/13, at 41-42, 44. The

victim stated that she went to bed alone at 12:30 a.m. because she was

“tired” and was planning to get up early. Id. at 44-45. The victim testified

that she was fully clothed in jeans and a tee shirt when she went to bed. Id.

at 45. In responding to the Commonwealth’s direct examination, the victim

testified:

      Q.    What is the next thing you remember? Go ahead and tell
      the jury.

      A.    I remember being woken up by someone moving my legs
      around, and my shirt had been pushed up too. My shirt and my
      bra had been pushed up to my neck and someone was pulling
      my pants off. And I started to get up and – ‘cause I was like in
      a very deep sleep so it took me a minute to recognize what was
      going on. And I realized – and I immediately started to tell him
      to stop and ask him who he was. And he pushed me. I tried to
      sit up and he pushed me back down on the bed. I started
      grabbing at his face and [was] trying to get him off of me and he
      would hold me down. And I remember like grabbing at his face
      and feeling a full – like a beard. I’m sorry.

      Q.     It’s okay. Go ahead and keep telling what happened.

      A.     And then he proceeded – he had sex with me after.

      Q.    When you say he had sex with you, what part of his body
      was touching what part of your body?

      A.     His penis was in my vagina.

      Q.     Was it like that when you woke up?

      A.     No. It hadn’t been.

      Q.   Okay.     When you woke up, what clothing were you
      wearing?


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     A.    When I woke up I had my shirt and my bra around my
     neck and he was pulling my pants off and my underwear off.

     Q.   And you said you did what?

     A.   I immediately started to resist him.

     Q.   Did you say anything?

     A.   I said, “No. Who are you? Stop.”

     Q.   You had no idea who it was at this point?

     A.   The room was completely dark.

     Q.    When that happens, when you say, “No.       Who are you?
     Stop.”, what does this individual do next?

     A.    He didn’t stop. He continued to hold me down. And I
     ended up hitting him across the face, and then after that he did
     get off of me.

     Q.   And he actually put his penis into your vagina?

     A.   Yes.

     Q.   Do you know for how long?

     A.   I honestly can’t give you a time frame.

     Q.   And you said you ended up grabbing his face?

     A.   Yes.

     Q.   And that’s when he got off of you?

     A.   Yes.

     Q.   What happens next?

     A.    He got off of the bed and he stood up at the foot of the
     bed and I remember him pulling on his shirt. It was a bright
     blue turquoise shirt. And he had opened the door, and there
     was a light on out there so I was able to see his face whenever
     the door was opened on him.

     Q.   At this point do you realize who it is?

     A.   Yes.

     Q.   What do you – who do you realize it is?

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         A.     [Appellant].

Id. at 45-48.

         Given the foregoing, the victim’s testimony was sufficient for the jury,

sitting as fact-finder, to conclude that the victim did not consent to the

sexual intercourse and indecent contact with Appellant, and that Appellant

was guilty of sexual assault and indecent assault. It is well-settled that it is

the fact-finder’s province to make credibility determinations, and the fact-

finder        may   believe    all,    part,   or   none   of   a   witness’s   testimony.

Commonwealth v. Adams, 882 A.2d 496, 499 (Pa. Super. 2005).

Moreover, the “uncorroborated testimony of a sexual assault victim, if

believed by the trier of fact, is sufficient to convict a defendant....”

Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006).

Accordingly, Appellant’s sufficiency claim lacks merit.

         Appellant in his second issue challenges the weight of the evidence,

and contends that “the evidence in this case weighs heavily against the

verdict reached by the jury, and as such shocks one’s sense of justice.”

Appellant’s Brief at 19. Appellant asserts that the victim’s testimony was not

credible because she testified that she positively identified Appellant, but

“nonetheless ask[ed] [a resident of the house] if Appellant had been at the

party that evening.”          Id.     Appellant further avers that the victim was “not

entirely clear as to what happened on the evening in question due to her

consumption of alcohol” and that her “testimony is not supported by physical




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evidence.” Id. at 19-20. These assertions do not support a finding that the

verdicts were against the weight of the evidence.

     Our Supreme Court recently explained:

           An appellate court's standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

        Appellate review of a weight claim is a review of the
        exercise of discretion, not of the underlying question of
        whether the verdict is against the weight of the evidence.
        Brown, 648 A.2d at 1189. Because the trial judge has had
        the opportunity to hear and see the evidence presented,
        an appellate court will give the gravest consideration to the
        findings and reasons advanced by the trial judge when
        reviewing a trial court's determination that the verdict is
        against the weight of the evidence. Commonwealth v.
        Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One
        of the least assailable reasons for granting or denying a
        new trial is the lower court's conviction that the verdict
        was or was not against the weight of the evidence and that
        a new trial should be granted in the interest of justice.


        Widmer, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis
        added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).

     Consistent with Pa.R.Crim.P. 607(A)(3), Appellant filed a post-

sentence motion in which he challenged the weight of the evidence and

requested a new trial and/or judgment of acquittal.         Motion for Post-

Sentence Relief, 1/31/14. The trial court denied the motion by order dated

February 4, 2014. The trial court explained:

          Appellant claims that the verdict was against the weight of
     the evidence because the Commonwealth did not offer credible


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      evidence to establish that Appellant acted without the victim’s
      consent. This claim is meritless. …

                                         ***

             Challenges to the sufficiency of the evidence and to the
      weight of the evidence are different. In the latter setting, the
      trial court is not required to view the evidence in the light most
      favorable to the verdict winner. The motion is addressed to the
      discretion of the trial court. The motion should be granted only
      if the court “concludes that despite the abstract sufficiency of the
      evidence to sustain the verdict, the evidence preponderates
      sufficiently heavily against the verdict and that a serious
      miscarriage of justice may have occurred.”

            Appellant’s claim that the verdict was against the weight of
      the evidence concedes there was sufficient evidence to support
      the jury’s verdict.

            As noted above, what the Appellant must establish is that
      the verdict was so contrary to the evidence as to shock one’s
      sense of justice. Here, the victim’s testimony was credible, and
      Appellant’s version of the events and attempts to impeach her
      did not undermine her veracity. Moreover, the verdict clearly
      does not shock one’s sense of justice.

Trial Court Opinion, 4/28/14, at 6-7 (citations omitted). Upon review of the

record, we discern no abuse of discretion by the trial court in denying

Appellant’s challenge to the weight of the evidence.

      In his third issue, Appellant asserts that “it was an abuse of discretion

for the trial court to admit Dr. Larson as an expert witness” on the basis that

Dr. Larson “did not possess the requisite skill, knowledge, or experience in

forensic examinations of sexual assault victims to satisfy the qualifications of

an expert witness.” Appellant’s Brief at 20-21.

      We initially note that in contravention of Pa.R.A.P. 2119(a), Appellant

has   failed   to   properly   develop    his     argument   regarding   the   expert


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qualification of Dr. Larson. The argument section of Appellant’s brief begins

with citation to a single case, which states generally the abuse of discretion

standard for the trial court’s qualification of an expert witness, the “liberal”

standard by which an expert may be qualified, and the qualifying test of

“whether     the   witness    has    any       reasonable   pretension   to   specialized

knowledge on the subject matter.”                   Appellant’s Brief at 20,       citing

Commonwealth v. Stallworth, 781 A.2d 110 (Pa. 2001). Then, Appellant

briefly argues that the trial court should not have qualified Dr. Larson, a

senior medical resident, as an expert witness because she had not

previously been qualified as an expert witness, lacked “additional specialized

training in the area of forensic examination”, and had not authored “any

articles or literature with respect to forensic examinations.” Id. at 20-21.2

       Because Appellant fails to develop this argument with supporting

citation to legal authority, his claim is waived.            See Commonwealth v.

Zewe, 663 A.2d 195, 199 (Pa. Super. 1995) (the argument section of an

appellant’s brief must include relevant discussion of the points raised along

with citation to pertinent authorities); Commonwealth v. Owens, 750 A.2d




____________________________________________


2
  At trial, Appellant’s counsel conceded that he did not “have any objection
to [Dr. Larson] testifying as to the examination she performed, questions
that were asked, and that process.” N.T., 9/17/13, at 51. Appellant’s
counsel specifically objected to Dr. Larson’s “qualifications”, and the trial
court overruled the objection. Id.



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872, 877 (Pa. Super. 2000) (failure to cite case law or other legal authority

in support of an argument results in waiver).

      Although we need not address the merits of this issue, we note that

Appellant's contention that the trial court erred in qualifying Dr. Larson as an

expert is not supported by the record.        Dr. Larson testified to being a

medical resident in emergency medicine. N.T., 9/17/13, at 45. As part of

her residency training, Dr. Larson was taught to “do a Rape Kit” and forensic

examination.    Id. at 46.   Dr. Larson specifically testified that she was a

“specialized doctor in forensic assaults.”      Id.   She testified that in her

examinations she collected clothing, used a specialized camera called a

colposcope, and interviewed the patient to learn what happened. Id. at 47.

Dr. Larson distinguished forensic assaults from regular assaults:

            When someone undergoes – a victim undergoes a sexual
      assault, they are given the option to go to the hospital and have
      what is called a sexual assault examination done on them. That
      would be different than going to the hospital and having a
      normal exam done. What they do is, they collect a sexual
      assault evidence kit and it’s somewhat invasive. There’s a very
      large questionnaire and a lot of documentation that we do from
      it. And then we also do a physical examination. We get swabs
      and take samples of both their DNA as well as looking for foreign
      DNA. We do an invasive physical exam, both internal and
      external, and we collect multiple swabs and collect them as
      evidence for police to be examined.

Id. at 46-47.

      In explaining its qualification of Dr. Larson as an expert witness, the

trial court reasoned:



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      The qualification of a witness as an expert rests within the sound
      discretion of the trial court, and the court’s determination in this
      regard will not be disturbed absent an abuse of discretion. See
      Commonwealth v. Serge, 837 A.2d 1255, 1260 (Pa. Super.
      2003). As stated by this Court:

         The standard for qualification of an expert witness is a
         liberal one. The test to be applied when qualifying an
         expert witness is whether the witness has any reasonable
         pretension to specialized knowledge on the subject under
         investigation. Commonwealth v. Wallace, 817 A.2d 485
         (Pa. Super. 2002)…. A witness does not need formal
         education on the subject matter of the testimony, and may
         be qualified to render an expert opinion based on training
         and experience. Id.

      Commonwealth v. Malseed, 847 A.2d 112, 114 (Pa. Super.
      2004) (emphasis in original) (quoting Serge, supra.).

      Commonwealth v. Toritto, 67 A. 3d 29, 37 (Pa. Super. 2013)(en
      banc).

             At trial, Dr. Larson opined that injuries are not always
      present in sexual assault cases. She indicated that the majority
      of sexual assault patients have no signs of physical injury. N.T.
      Trial (Day 2), 00/17/13, at 59. Prior to rendering her opinion,
      Dr. Larson testified to her specialized training and education in
      performing forensic examinations of sexual assault victims. See,
      N.T. Trial (Day 2), 09/17/13, at 46-49. She had previously
      examined over 40 victims and testified as a witness in one case,
      although not as an expert. Id., at 48-49. After its review, it was
      clear to this Court that she was qualified based upon her
      education, training and experience. [FN5: At some point,
      expert witnesses are qualified for the first time. This was that
      time for Dr. Larson.] Therefore, her testimony was admissible
      and this court properly permitted her to testify as an expert.

Trial Court Opinion, 4/28/14, at 8. We agree with the trial court’s analysis,

and thus find no abuse of discretion by the trial court.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2014




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