J-S21045-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                   Appellee               :
                                          :
                     v.                   :
                                          :
BRYON UMBEL,                              :
                                          :
                   Appellant              :     No. 1798 WDA 2016

           Appeal from the Judgment of Sentence September 15, 2015
                in the Court of Common Pleas of Fayette County
              Criminal Division, at No(s): CP-26-CR-0000639-2015

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

MEMORANDUM BY STRASSBURGER, J.:           FILED MAY 26, 2017

      Bryon Umbel (Appellant) appeals from the judgment of sentence

entered September 15, 2015, after he was found guilty of, inter alia,

aggravated indecent assault and corruption of minors.       Upon review, we

affirm.

      The trial court set forth the relevant factual background of this case as

follows.

            At trial, the victim [Z.W.], who was fourteen years of age
      when she testified, told the jurors that [Appellant] is her uncle,
      married to her deceased mother’s sister. One summer day in
      2009, when she was eight years old, while she was visiting
      [Appellant’s residence, Z.W.] was on the couch wearing a robe
      and her underwear when she was joined by [Appellant] who put
      his hand on her thigh. She initially pushed his hand away, but
      he persisted so she just left it there. Eventually [Appellant] put
      his hand between her legs, underneath her underpants, and
      placed his fingers in her vagina. [Z.W.] testified that she stayed
      on the couch because she was scared, and [Appellant] told her
      not to tell anyone or [he would] get in trouble.

*Retired Senior Judge assigned to the Superior Court.
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               The second crime occurred several years later, again at
        [Appellant’s] house, when [Z.W.] was twelve years old.
        [Appellant] joined her on the couch, squeezing her thigh so hard
        that it hurt. He again placed his hand inside her clothing, and
        put his fingers into her vagina. Although [Z.W.] did not tell
        anyone, she wrote about the incident by writing a story in her
        journal.   The third incident took place in January 2015 on
        [Appellant’s] son’s birthday. [Z.W.] attended the birthday party,
        and then spent the night sleeping on the couch. She awoke to
        find [Appellant] sitting beside her, and her hand inside his boxer
        shorts, touching his penis. [Z.W.] immediately pulled her hand
        back, whereupon [Appellant] left her alone.

               [Z.W.] testified that in an attempt to deal with her
        feelings, she started to write a story in her journal.         The
        narrative was in story format, and the name used for the
        abusive character was “Shawn,” but according to [Z.W.], some
        of the events described are based on true things, but it is mostly
        a fictional work. The journal was found by [Z.W.’s] stepmother
        in February 2015. When her stepmother brought it to [Z.W.’s]
        attention, [Z.W.] then told her stepmother what had happened
        to her at the hands of [Appellant. Appellant] was interviewed
        three times during the police investigation, and on two of those
        occasions, he was given [Miranda1] warnings. During the first
        two interviews, he denied that anything at all had happened
        between himself and [Z.W.]. However, during the third and last
        round of questioning, [Appellant] stated to [] police officers that
        he had accidentally touched [Z.W.] “not more than five times,”
        but the touching was only on the outside of her clothing. At trial
        [Appellant] told the jury that [Z.W.] tried to tickle him and then
        grabbed his groin, but he grabbed her hand to push it away. He
        then testified that, in pushing her hand away from himself, he
        may have inadvertently touched between [Z.W.’s] legs once.

Trial Court Opinion, 12/7/2015, at 1-3 (citations omitted).

        Following a jury trial, Appellant was found guilty of, inter alia, the

aforementioned crimes. On September 15, 2015, Appellant was sentenced



1
    Miranda v. Arizona, 384 U.S. 436 (1966).


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to 60 to 120 months’ incarceration.    No post-sentence motions were filed,

and on October 13, 2015, Appellant timely filed a notice of appeal. Both the

trial court and counsel for Appellant complied with the mandates of Pa.R.A.P.

1925.      However, for reasons not apparent from the record, Appellant’s

counsel failed to file an appellate brief with this Court, and by order dated

April 11, 2016, Appellant’s appeal was dismissed.

        Soon thereafter, counsel filed a motion to withdraw, which was

granted.    The trial court appointed new counsel who then filed a petition

seeking to reinstate Appellant’s direct appeal rights, which the trial court

granted on November 16, 2016.       Appellant complied with the trial court’s

request to file a concise statement and in response, the court submitted a

statement stating it believes its December 7, 2015 opinion following

Appellant’s first filed concise statement sufficiently addressed all the issues

raised by Appellant and thus, the court would rely on that opinion for the

purposes of this appeal. See Statement in Lieu of Opinion, 12/21/2016.

        Appellant presents the following inartfully-phrased issues for our

review.

        1. The Commonwealth failed to prove beyond a reasonable
           doubt that [] Appellant committed the crimes in which he was
           charged beyond a reasonable doubt.

        2. The [trial court] erred during trial in not permitting
           questioning from the entirety of the [Z.W.’s] written story,
           [which was] exculpatory evidence to [] Appellant, even
           though it was provided by the Commonwealth in discovery



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         and introduced as evidence during direct examination by the
         Commonwealth.

      3. The [trial court] erred in not permitting [Z.W.’s] written story,
         [which was] exculpatory evidence, to be examined by the jury
         during the jury’s deliberation.

Appellant’s Brief 2 (unnecessary capitalization omitted).

      In his brief, it appears Appellant is challenging both the weight and

sufficiency of the evidence to sustain his convictions.2        To the extent

Appellant attempts to argue a weight claim, we find it waived for failure to

preserve properly this issue.   See Pa.R.Crim.P. 607(a) (“A claim that the

verdict was against the weight of the evidence shall be raised with the trial

judge in a motion for a new trial: (1) orally, on the record, at any time

before sentencing; (2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.”).    See also Commonwealth v. Burkett,

830 A.2d 1034, 1037 (Pa. Super. 2003) (providing that a weight of the

evidence “claim must be presented to the trial court while it exercises

jurisdiction over a matter since [a]ppellate 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.”) (citations and

quotation marks omitted).




2
 See Appellant’s Brief at 10 (averring the Commonwealth failed to prove
Appellant committed the crimes to which was charged beyond a reasonable
doubt, but stating the standard of review when assessing a weight-of-the-
evidence claim).

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      Likewise, in reviewing Appellant’s argument as a properly preserved

sufficiency claim, we find it waived for failure to develop this claim on

appeal.    Specifically, Appellant’s concise statement, his statement of

questions presented on appeal, and argument section of his brief fail to state

which elements of which crimes the Commonwealth failed to prove beyond a

reasonable doubt. Appellant also fails to cite any legal authority to support

his claim. Appellant’s Brief at 10-11. See Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa. Super. 2009) (holding that failure to set forth the

elements of the crimes of which an appellant was convicted, argue which

specific elements were not met, or make citation to legal authority in

support of his claim, results in waiver of sufficiency-of-the-evidence claims).

      Furthermore, the body of Appellant’s brief contains no more than a

summary of the evidence that was presented at trial, highlighting the

inconsistencies among testifying witnesses.         He fails to provide any

argument to support his contention that the Commonwealth failed to meet

its burden, and we cannot and will not make supporting arguments on his

behalf. No relief is due.

      Appellant’s final two issues challenge the trial court’s evidentiary

rulings concerning Z.W.’s journal.      By way of further background, the

Commonwealth introduced, through Z.W., a journal that she kept.           Z.W.

testified that she had written a fictional story in this journal and one of the

characters, “Shawn,” was based on Appellant.        N.T., 9/9/2015, at 22-23.


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Although the story contained details of sexual assaults, Z.W. explained that

her story was more an expression of how she felt than what had actually

happened, confirming that the assaults perpetrated by Appellant were

different than what she detailed in her story. Id. at 24. For example, the

Commonwealth had Z.W. read a passage where the protagonist’s feet were

tied, she was struggling and screaming, and the “babysitter,” who Z.W.

identified was Appellant, entered the room with duct tape.        Id. at 26.

Immediately after reading this passage, and upon further inquiry from the

Commonwealth, Z.W. confirmed that she was never restrained, nor had

Appellant tied her feet or used duct tape.    Id.   Z.W. explained that this

passage relayed how she felt after Appellant assaulted her, specifically that

she felt “trapped” and “hurt.” Id.

      On direct examination, the Commonwealth did not seek to mark the

journal as an exhibit or enter it into evidence.3     On cross-examination,

defense counsel requested Z.W. read the entire story and allow the jury to

examine the journal. The Commonwealth objected to this request but the

journal was marked as a joint exhibit. After argument, the trial court stated

the following:




3
  On appeal, the Commonwealth contends that the introduction of the
journal “was to show that Z.W. in some way, documented the assaults
[Appellant] committed against her, specifically the effect that the assaults
had on Z.W. and how those experiences made her feel.” Commonwealth’s
Brief at 4.

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      [Defense counsel] may put together questions that you wish to
      ask [Z.W.] if what she had written is inconsistent with her
      testimony here, but I’m not going to have her read this in its
      entirety, one, because she’s testified that it’s fictional, even
      though she’s included a fictional person name[d] Shawn who she
      said was based on [Appellant]. If there[ is] a prior inconsistent
      statement here, then you may ask her [about] that prior
      inconsistent statement. She’s not reading it in its entirety. It[
      is] not going to the jury in any way, shape or form, redacted,
      unredacted, partially or whatever.

N.T., 9/9/2015, at 53.        Appellant argues the trial court erred in (1)

disallowing Z.W.’s journal to be admitted in its entirely, and (2) prohibiting

the jury from examining Z.W.’s journal.              We address these issues

sequentially.

      With respect to the former, Appellant argues that “the trial court erred

in failing to permit [] Appellant’s request for a read of, and question of the

short story as a whole, while allowing the Commonwealth to introduce

isolated portions of the story that clearly support the prosecution’s positon

alone.”   Appellant’s Brief at 12.    Appellant avers the “fictional story and

testimony are so vastly different in their content, location, description, and

nature of the events and the individuals present, that any comparison of the

story to the incidents charged were improper and unfairly prejudicial to []

Appellant.” Id. at 17.

      It is well-settled that with all evidentiary rulings, a trial court’s decision

to disallow such evidence will not be reversed absent an abuse of discretion.

Commonwealth v. Fisher, 764 A.2d 82, 86 (Pa. Super. 2000).



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     The admissibility of evidence is at the discretion of the trial court
     and only a showing of an abuse of that discretion, and resulting
     prejudice, constitutes reversible error. An abuse of discretion is
     not merely an error of judgment, but is rather the overriding or
     misapplication of the law, or the exercise of judgment that is
     manifestly unreasonable, or the result of bias, prejudice, ill-will
     or partiality, as shown by the evidence of record.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013)

(quotation marks and citations omitted).

     In its 1925(b) opinion, the trial court offered the following analysis:

           This issue is based on a false premise; the [trial court]
     certainly permitted questioning from the entirety of [Z.W.’s]
     story, expressly telling defense counsel that he could ask the
     victim questions concerning any inconsistencies between her
     written document and her trial testimony. The [trial court]
     merely precluded the victim from reading her story in its
     entirety.

                                    ***

            Aside from [the one passage Z.W. read, as cited supra], no
     other references to the fictionalized story were made until
     defense counsel began to question the victim about it. Defense
     counsel then asked to have the document marked as an
     evidentiary exhibit, and also requested that the victim read it to
     the jury. At a bench conference on the issue, the [trial court]
     asked [defense] counsel if the content was admissible, or
     whether it was violative of the Rape Shield Law. Defense
     counsel did not answer the [trial court’s] questions, but the
     assistant district attorney stated that she would want it redacted
     to exclude any references to intimate behavior between the
     victim and other people. As the [trial court] then explained to
     [defense] counsel, if the events described in the [Z.W.’s] story
     actually happened to her, the Rape Shield Law would apply to
     preclude the introduction of the testimony. On the other hand, if
     [Z.W.’s] story was fictional and did not relate to [Appellant’s]
     conduct, that was the subject of the trial, then the story line is
     irrelevant.



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             After much discussion between the [trial court, defense
      counsel, and] the assistant district attorney, defense counsel
      stated several times that he wanted the story, albeit
      fictionalized, admitted in its entirety to demonstrate the victim’s
      “fanciful imagination,” and give him “latitude for a defense.” The
      [trial court] expressly told counsel that the written story was not
      going to be admitted into evidence, and it was not going to be
      sent out with the jury, redacted or not. The [trial court],
      however, told counsel that he could question [Z.W.] about it, to
      bring to light any inconsistencies between her testimony and her
      written story, which course of action counsel then followed.

Trial Court Opinion, 12/7/2015, at 5 (citations omitted).

      Upon review, we find the trial court did not abuse its discretion. First,

we agree with the trial court that the contents of the story that did not refer

to the character that was based upon Appellant, if proven true, would be the

type of content that is expressly protected under the Rape Shield Law. See

Commonwealth v. K.S.F., 102 A.3d 480, 484 (Pa. Super. 2014)

(explaining the Rape Shield Law was enacted to “prevent a trial from shifting

its focus from the culpability of the accused toward the virtue and chastity of

the victim ... [and] to exclude irrelevant and abusive inquiries regarding

prior sexual conduct of sexual assault complainants.”) (citations omitted).

Second, assuming the story is fictitious, the story, in its entirety, was not

relevant to the conduct alleged to have occurred. Third, our review of the

record confirms the Commonwealth’s position that the passage detailing an

assault, which was read on direct examination and readily confirmed as not

being of the same conduct Appellant was alleged to have perpetrated, was

relevant to show that Z.W. had documented her feelings about the abuse.


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Fourth, we find the trial court’s ruling, which permitted Appellant to question

Z.W. at length about the contents of the story and any inconsistencies, was

adequate to allow Appellant to lay a groundwork for his defense that Z.W.

had a “fanciful imagination,” and that the assaults documented in the journal

were “vastly” different from those alleged to have been perpetrated by

Appellant.      N.T., 9/8/2015, at 50; Appellant’s Brief at 17.       Lastly, while

Appellant asserts that the testimony elicited during direct examination

regarding the fictional story was “improper and unfairly prejudicial” to him,

we note that Appellant raised no objection to the introduction of this

testimony by the Commonwealth.            Furthermore, it was Appellant, and not

the Commonwealth, who proceeded to introduce various passages of the

story, which detailed incidents that were “vastly different in their content,

location, description, and nature of the events and individuals present[.]”

Appellant’s Brief at 17. For these reasons, Appellant’s issue warrants him no

relief.

          In his final issue, Appellant argues that by “failing to allow the jury to

review the entire story, the Commonwealth’s presentation was extremely

prejudicial and did not result in harmless error.”         Appellant’s Brief at 18.

Appellant further contends:

          By prohibiting the jury from hearing and viewing the entire story
          as a whole, rather than isolated incidents convenient to the
          Commonwealth’s case-in-chief, the [trial court] deprived []
          Appellant of a fair trial. The jury most certainly used the
          fictitious and sexually explicit story in their deliberations, but


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      were forbidden from putting the story’s fragments into any sort
      of context.     The guilty verdict retuned by the jury was
      improperly influenced by the [trial court’s] decision to exclude
      relevant portions of the story that were exculpatory.

Id. at 19.

      Appellant’s argument amounts to no more than a bald assertion that,

because the Commonwealth introduced one passage, which it readily noted

contained a description of an assault that was different than the assault

perpetrated by Appellant, the jury was entitled to review the entire story.

The record makes it clear that the assaults detailed in the story are not the

same allegations from which Appellant’s charges stemmed.             Appellant

provides no more than conclusory arguments, which he claims should result

in this Court vacating the jury’s verdict.

      Pa.R.Crim.P. 646(a) provides that a “jury may take with it such

exhibits as the trial judge deems proper[.]” Because we find the trial court

did not abuse its discretion in ruling against Appellant’s request that Z.W.

read the entire story on cross-examination and enter it into evidence, we

likewise find the trial court was within its discretion to deny Appellant’s

request to allow the journal to be sent out with the jury during deliberations.

      Accordingly, after a review of the briefs, record, and applicable case

law, we are not persuaded that Appellant’s issues warrant relief from this

Court.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/26/2017




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