J-S14022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                         Appellee                :
                                                 :
                   v.                            :
                                                 :
    R.L.                                         :
                                                 :
                         Appellant               :        No. 3680 EDA 2018

           Appeal from the Judgment of Sentence Entered August 29, 2018
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0011782-2016


BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KING, J.:                                      FILED APRIL 20, 2020

           Appellant, R.L., appeals nunc pro tunc from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his bench

trial convictions for rape, unlawful contact with a minor, statutory sexual

assault, sexual assault, corruption of minors, terroristic threats, and indecent

assault.1 We affirm.

           In its opinion, the trial court sets forth the relevant facts of this case as

follows:

              [On January 17, 2016,] Appellant, a family friend, sexually
              assaulted the fourteen-year-old [Victim] in the middle of the
              night while her mother was at work. The incident began
              when Appellant, who was high off “wet” entered the
              bedroom [Victim] shared with her sisters, demanding they
              wake up and prepare food for him. [Victim] woke up, went
____________________________________________


118 Pa.C.S.A. §§ 3121(a)(1), 6318(a)(1), 3122.1(b), 3124.1, 6301(a)(1)(ii),
2706(a)(1), and 3126(a)(1), respectively.
J-S14022-20


          downstairs to prepare a plate of leftovers for Appellant, and
          sat to chat with him for a bit. As [Victim] attempted to go
          upstairs to return to bed, Appellant grabbed her arm and
          subsequently yanked her over to the couch, restrained her
          by the arms, pulled down her pajama pants, and penetrated
          her vaginally [with his penis].       [Victim] verbally and
          physically protested the assault. Appellant ejaculated “a
          white discharge or something” into a bag on the floor which
          he threw in the trash. It appears the assault terminated
          when [Victim]’s stepfather called downstairs inquiring,
          “[W]ho is that?” [Victim] responded, “[I]t is me,” but failed
          to implicate Appellant because he threatened her not to tell.
          The sexual assault left [Victim] with vaginal pain for a day,
          and bleeding for two days.

          [Victim] did not immediately disclose the assault because of
          Appellant’s threat to harm her if she did. A year after the
          incident [Victim] disclosed [the assault] to Appellant’s sister
          who alerted [Victim]’s mother. Thereafter, [Victim] was
          taken to Philadelphia Children Alliance (“PCA”) for an
          interview and received a medical exam.

(Trial Court Opinion, filed July 3, 2019, at 2) (internal citations to record

omitted).

      Procedurally, Appellant proceeded to a bench trial on June 4, 6, and 11,

2018. On June 11, 2018, the court convicted Appellant of one count each of

rape, unlawful contact with a minor, statutory sexual assault, sexual assault,

corruption of minors, terroristic threats, and indecent assault.       The court

sentenced Appellant on August 29, 2018, to an aggregate term of five (5) to

ten (10) years’ incarceration, plus ten (10) years’ probation. The court also

informed Appellant of his lifetime obligation to report and register as a sexual

offender under SORNA. Appellant filed no post-sentence motions or notice of

appeal.


                                       -2-
J-S14022-20


      On November 8, 2018, Appellant timely filed through counsel his first

petition under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, seeking reinstatement of his direct appeal rights nunc pro tunc.

Appellant did not request, however, restoration of his post-sentence motion

rights nunc pro tunc. On December 18, 2018, the PCRA court restored only

Appellant’s direct appeal rights nunc pro tunc, without also reinstating his

post-sentence motion rights nunc pro tunc. Appellant timely filed a notice of

appeal nunc pro tunc on December 21, 2018.

      This Court dismissed the appeal on February 15, 2019, for failure to file

a docketing statement. On February 25, 2019, Appellant filed in this Court an

application to reinstate the appeal, which this Court granted on March 8, 2019.

The trial court ordered Appellant on March 25, 2019, to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant

complied on May 10, 2019, following an extension.

      Appellant raises the following issue for our review:

         WHETHER THE VERDICT [WAS] AGAINST THE WEIGHT AND
         SUFFICIENCY OF THE EVIDENCE WHEN THE TRIAL COURT
         CONVICTED APPELLANT OF RAPE, UNLAWFUL CONTACT,
         CORRUPTING THE MORALS OF A MINOR, TERRORISTIC
         THREATS AND SEXUAL ASSAULT, BASED ON VICTIM
         TESTIMONY THAT WAS BOTH WEAK AND FLAWED AND
         APPELLANT’S TESTIMONY WAS STRONG[?]

(Appellant’s Brief at 5).

      Preliminarily, a challenge to the weight of the evidence must be

preserved by a motion for a new trial. Pa.R.Crim.P. 607. The Rule provides:


                                     -3-
J-S14022-20


      Rule 607. Challenges to the Weight of the Evidence

         (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.

Pa.R.Crim.P. 607(A)(1)-(3).    “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004) (internal quotation marks

omitted).

      Additionally, where the PCRA court reinstates direct appeal rights nunc

pro tunc, the defendant is not automatically entitled to reinstatement of his

post-sentence rights nunc pro tunc as well. Commonwealth v. Liston, 602

Pa. 10, 977 A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a

defendant’s post-sentence rights nunc pro tunc if the defendant pleads and

proves he was deprived of the right to file and litigate post-sentence motions

as a result of ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at

1094 n.9 (noting counsel may be deemed ineffective for failing to file post-

sentence motions when claim requires preservation in trial court for purposes

of appellate review). See also Commonwealth v. Rivera, 154 A.3d 370


                                     -4-
J-S14022-20


(Pa.Super. 2017) (en banc), appeal denied, 642 Pa. 121, 169 A.3d 1072

(2017) (stating PCRA court properly restored appellant’s post-sentencing

rights nunc pro tunc because one issue appellant wanted to raise required

preservation in trial court).

      Instantly, Appellant failed to raise an objection to the weight of the

evidence in the trial court. See Gillard, supra; Pa.R.Crim.P. 607. Appellant

also did not request in his PCRA petition reinstatement of his post-sentence

motion rights nunc pro tunc or indicate that he sought to raise on appeal a

claim requiring preservation in the trial court. See Liston, supra. Therefore,

Appellant’s weight claim is waived. See Commonwealth v. Sherwood, 603

Pa. 92, 110, 982 A.2d 483, 494 (2009), cert. denied, 559 U.S. 1111, 130 S.Ct.

2415, 176 L.Ed.2d 932 (2010) (holding where appellant fails to preserve

weight of evidence challenge in trial court, weight claim is waived because

appellate court has nothing to review); In re K.L.S., 594 Pa. 194, 197 n.3,

934 A.2d 1244, 1246 n.3 (2007) (stating where issues are waived on appeal,

we should affirm rather than quash appeal).

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

         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 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

                                     -5-
J-S14022-20


        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, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).

     The Crimes Code defines rape, in relevant part, as follows:

        § 3121. Rape

        (a)      Offense defined.—A person commits a felony of
        the first degree when the person engages in sexual
        intercourse with a complainant:

           (1)   By forcible compulsion.

18 Pa.C.S.A. § 3121(a)(1). The Crimes Code defines “sexual intercourse” as

follows: “In addition to its ordinary meaning, includes intercourse per os or

per anus, with some penetration however slight; emission is not required.”

18 Pa.C.S.A. § 3101. The term “sexual intercourse” encompasses vaginal,

oral, and anal sex. Commonwealth v. Kelley, 569 Pa. 179, 186-88, 801

A.2d 551, 555-56 (2002). Further, “circumstantial evidence may be used to

prove the element of penetration.”   Commonwealth v. Stambaugh, 512

A.2d 1216, 1219 (Pa.Super. 1986).


                                     -6-
J-S14022-20


     Section 6318 provides in part:

        § 6318. Unlawful contact with minor

        (a)    Offense defined.−A person commits an offense if
        he is intentionally in contact with a minor, or a law
        enforcement officer acting in the performance of his duties
        who has assumed the identity of a minor, for the purpose of
        engaging in an activity prohibited under any of the following,
        and either the person initiating the contact or the person
        being contacted is within this Commonwealth:

           (1) Any of the offenses enumerated in Chapter 31
           (relating to sexual offenses).

                                 *     *     *

        (c)     Definitions.−As used in this section, the following
        words and phrases shall have the meanings given to them
        in this subsection:

                                 *     *     *

        “Contacts.” Direct or indirect contact or communication by
        any means, method or device, including contact or
        communication in person or through an agent or agency,
        through any print medium, the mails, a common carrier or
        communication     common        carrier,   any  electronic
        communication system and any telecommunications, wire,
        computer or radio communications device or system.

18 Pa.C.S.A. § 6318(a)(1), (c). A person commits an offense under Section

6318 when he intentionally contacts a minor within the Commonwealth for the

purpose of engaging in a prohibited activity. 18 Pa.C.S.A. § 6318. Prohibited

activity includes any sexual offense enumerated in Chapter 31 of the Crimes

Code. Id. Further, Section 6318 defines “contacts” as direct communication

by any means, including in person.     Id.       This Court has held that certain

nonverbal conduct also qualifies as “contact” under Section 6318.            See

                                      -7-
J-S14022-20


Commonwealth v. Oliver, 946 A.2d 1111, 1113 (Pa.Super. 2008), appeal

denied, 599 Pa. 690, 960 A.2d 838 (2008) (holding defendant “contacts”

victim where defendant, lying in bed, nudges victim in her back with his foot,

pulls bedcovers below his bellybutton, points toward his penis, raises his

eyebrows, and winks at victim). See also Commonwealth v. Velez, 51 A.3d

260, 267 (Pa.Super. 2012) (holding that contact element of unlawful contact

with minor was met with reasonable inference that defendant directed nine-

year-old victim, either verbally or nonverbally, to undress and to position

herself in sexual way).

      The Crimes Code sets forth the elements of first-degree felony statutory

sexual assault as follows:

         § 3122.1. Statutory sexual assault

                                 *    *    *

         (b) Felony of the first degree.—A person commits a
         felony of the first degree when that person engages in
         sexual intercourse with a complainant under the age of 16
         years and that person is 11 or more years older than the
         complainant and the complainant and the person are not
         married to each other.

18 Pa.C.S.A. § 3122.1(b). Section 3124.1 defines sexual assault as follows:

         § 3124.1 Sexual assault

         Except as provided in section 3121 (relating to rape) or
         3123 (relating to involuntary deviate sexual intercourse), a
         person commits a felony of the second degree when that
         person engages in sexual intercourse or deviate sexual
         intercourse with a complainant without the complainant’s
         consent.


                                     -8-
J-S14022-20


18 Pa.C.S.A. § 3124.1. The Crimes Code defines the offense corruption of

minors, in relevant part, as follows:

         § 6301. Corruption of minors

         (a)   Offense defined.—

            (1)(i) …

            (ii) Whoever, being of the age of 18 years and upwards,
         by any course of conduct in violation of Chapter 31 (relating
         to sexual offenses) corrupts or tends to corrupt the morals
         of any minor less than 18 years of age, or who aids, abets,
         entices or encourages any such minor in the commission of
         an offense under Chapter 31 commits a felony of the third
         degree.

18 Pa.C.S.A. § 6301(a)(1).

      Section 2706 defines terroristic threats, in part, as follows:

         § 2706. Terroristic threats

         (a)       Offense defined.—A person commits the crime of
         terroristic threats if the person communicates, either
         directly or indirectly, a threat to:

            (1) commit any crime of violence with intent to
            terrorize another[.]

18 Pa.C.S.A. § 2706(a)(1). “Neither the ability to carry out the threat, nor a

belief by the person threatened that the threat will be carried out, is an

element of the offense.” Commonwealth v. Reynolds, 835 A.2d 720, 730

(Pa.Super. 2003). “Rather, the harm sought to be prevented by the statute

is the psychological distress that follows from an invasion of another’s sense

of personal security.” Id. When specific intent is an element of a crime, it

must be the actor’s conscious object to engage in conduct of that nature or

                                        -9-
J-S14022-20


to cause such result. 18 Pa.C.S.A. § 302(b)(1)(i). “Intent can be proven by

circumstantial evidence and may be inferred from the defendant’s conduct

under the attendant circumstances.” Reynolds, supra at 726.

      Instantly, after a thorough review of the record, the briefs of the parties,

the applicable law, and the well-reasoned opinion of the Honorable Gwendolyn

N. Bright, we conclude Appellant’s sufficiency claim merits no relief. The trial

court opinion comprehensively discusses and properly disposes of Appellant’s

challenge to the sufficiency of the evidence. (See Trial Court Opinion, dated

July 3, 2019, at 3) (finding: evidence was sufficient to support verdict; Victim

credibly testified to circumstances of rape; Victim explained Appellant pulled

her to couch, restrained her arms, removed her pants, penetrated her vagina

with his penis, and ejaculated into bag; Victim detailed vaginal pain and

bleeding she experienced in days after rape; Victim also said she did not report

rape immediately, because Appellant threatened to harm her if she reported

incident;   further,   Victim   described   situations   where   Appellant   made

inappropriate comments to her and her sisters, offered them favors and gave

them gifts).   The record supports the trial court’s rationale.      See Jones,

supra. Accordingly, Appellant’s challenge to the weight of the evidence is

waived; and we affirm on the basis of the trial court opinion as to Appellant’s

sufficiency issue.

      Judgment of sentence affirmed.




                                      - 10 -
J-S14022-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/20




                          - 11 -
0032_Opinion
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                                                               PHILADELPHIA COUNTY                                                       F]L·lt·b
                                                              CRIMINAL TRIAL DIVISION
                                                                                                                                    2019 JUL -3 PM 12: 43
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                                              v.


                                                   R.L.                              : SUPERIOR COURT OF PENNSYLVANIA
                                                                                                 3860 EDA 2018
                                                                                                                                       R.L.
                                                                                                   CP-51-CR-0011782-2016 Comm, J
                                                                                                                      Opinion  ·1

                                                                          OPINION

                    BRIGHT, J.
                                                                                             8297020691
                                                                                                        111111111111111111111 I        Ill
                            On June 11, 2018, the Appellant was convicted of Rape, Unlawful Contact with a Minor,

                    Statutory Sexual Assault, Corrupting the Morals of a Minor, Terroristic Threats, and Sexual Assault

                    pursuant to a waiver trial before this Court sitting without a jury. On August 29, 2018 Appellant was

                    sentenced to a lengthy term of incarceration followed by sex offender probation. A direct appeal was

                    not filed. However, on December 18, 2018 Appellant's Post Conviction Relief Act (PCRA) Petition

                    was granted by agreement reinstating appellate rights. This appeal followed on December 26, 2018. On

                    February 15, 2019 the appeal was dismissed for Failure to Comply with Pa.R.A.P. 3517.

                        An Order Granting Application to Reinstate Appeal occurred on March 8, 2019. This Court's

                    March 25, 2019 Pa. R.A.P. 1925(b) Order was not complied with until May 10, 2019 despite efforts to

                    contact Appellant's Counsel concerning the lateness of compliance. 1 The fol lowing l 925(b) issues

                    were raised:

                        1. The evidence was insufficient to support the verdict.


                    1
                      Specifically, this Court's law clerk was in constant contact with Superior Court due to incorrect phone numbers listed on
                    Appellate Counsel's documentation and this Court's docketing systems. Once the correct number was acquired, listed as a
                    cell phone number from documentation years prior, Appellate Counsel was contacted via phone on April 23, 2019,
                    informing him of his failure to file. Then, when Appellate Counsel failed to file by May 1, 2019, a letter for extension of
                    time was sent to the Appellate Counsel, granting him until May 10, 2019 to comply.
                                                                                 1
         2. The verdict was against the weight and sufficiency of the evidence.
,.
                                                           FACTS

             Appellant, a family friend, sexually assaulted the fourteen year old Complainant (C.B.) in the

     middle of the night while her mother was at work. N.T. 6/4/18@ 14-15, 23, 25, 27.2 The incident

     began when Appellant, who was high off 'wet' entered the bedroom C.B. shared with her sisters,

     demanding they wake up and prepare food for him. Id. @ 12-13, 21, 24-25. The Complainant woke up,

     went downstairs to prepare a plate of leftovers for Appellant, and sat to chat with him for a bit. Id. @

     29, 30, 32. As C.B. attempted to go upstairs to return to bed, Appellant grabbed her arm and

     subsequently yanked her over to the couch, restrained her by the arms, pulled down her pajama pants

     and penetrated her vaginally. C.B. verbally and physically protested the assault. Id.@ 13-16, 32-39.

     Appellant ejaculated "a white discharge or something" into a bag on the floor which he threw in the

     trash." Id.@ 22-23. It appears the assault terminated when C.B. 's stepfather called downstairs

     inquiring "who is that." C.B. responded "it is me," but failed to implicate Appellant because he

     threatened her not to tell. Id. @ 15-16, 18-19. The sexual assault left C.B. with vaginal pain for a day,

     and bleeding for two days. Id. @ 16.

             C.B. did not immediately disclose the assault because of Appellant's threat to harm her if she

     did. A year after the incident C.B. disclosed to Appellant's sister who alerted the child's mother. Id. @

     19-20. Thereafter, C.B. was taken to Philadelphia Children Alliance (PCA) for an interview, and

     received a medical exam. Id.

                                                       DISCUSSION

             Appellant's first claim challenges the sufficiency of the evidence. While Appellant's 1925(b)

     statement is deficient as it fails to specify or detail the allegations of insufficiency, this claim is




     2N.T. refers to the Notes of Testimony, followed by the date for preceding held before the Honorable Gwendolyn N.
     Bright.
                                                               2
meritless based on the record. Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), stated the well-

established standard of review for challenges to the sufficiency of the evidence as follows:

               "A challenge to the sufficiency of the evidence is a question of law, subject to plenary
               review. When reviewing a sufficiency of the evidence claim, the appellate court must
               review the evidence and all reasonable inferences drawn therefrom in the light more
               favorable to the Commonwealth, as the verdict winner. Evidence will be deemed to
               support the verdict when it established each element of the crime charged and the
               commission thereof by the accused, beyond a reasonable doubt. The Commonwealth need
               not preclude every possibility of innocence or establish the defendant's guilt to a
               mathematical certainty. Finally, 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."

       Here, C.B. gave a credible account of what occurred during the assault. C.B.'s account included

recalling the smell of drugs 'wet' when Appellant entered her bedroom. Id.@ 12, 21-22. Moreover,

C.B. detailed the events leading up to the assault where she prepared food for appellant and sat with

him while he ate. Id. @ 13. C.B. was able to describe how the attacks occurred, such as: the yanking to

pull her from the stairs to the couch; the restraint of her arms along with the pulling of her pajama

bottoms; the pain of the vaginal penetration followed by days of discomfort and bleeding; Appellant's

ejaculation of semen into a bag; and the threats of harm which caused her to delay disclosure. Id. @

12-16, 18-19, 22-23. The Complainant also disclosed situations where Appellant made inappropriate

comments to her older sisters, as well as incidences where he offered favors to them and her, such as a

cellphone. Id.@ 17. Clearly, there was sufficient evidence to support the verdict.

       Appellant next contends that the conviction was against the weight of the evidence, but again,

without specificity. In Commonwealth v. Galindes, 786 A.2d l 004 (Pa. Super. 200 I), the Court of

Pennsylvania elucidated the standard used to evaluate a challenge to the weight of the evidence as

follows:

       "A true weight of the evidence challenge concedes that sufficient evidence exists to sustain the
       verdict but questions which evidence is to be believed. An appellate court may review the trial
       court's decision to determine whether there was an abuse of discretion, but it may not substitute
       its judgement for that of the lower court ... Our Court may not reverse a verdict unless it is so
       contrary to the evidence as to shock ones sense of justice. Finally, the trier of fact while passing
                                                    3
        •   upon the credibility of witnesses and the weight of the evidence produced is free to believe all,
,·          part or none of the evidence. Our review, therefore, is confined to whether the trial court
            abused its discretion." Commonwealth v. Galindes, 786 A.2d 1004, supra @JO 13.


            The Commonwealth's evidence was more than sufficient to prove Appellant guilty of the

     crimes for which he was convicted. C.B.' s account of the ordeal was detailed and credible. The

     Complainant's testimony was corroborated by her PCA interview, along with the testimony of her
                  S.B.            S.B.
     motherll                .I          !testified to the disclosure, and how, prior to being informed of the

     incident she and the husband banned Appellant from their home "because he was too playful with the

     girls and too flirtatious." Id.@ 54-59. The verdict is not contrary to, nor is it against, the weight of the

     evidence, and the verdict shocks no one's sense of justice. This claim is meritless.

                                                     CONCLUSION


             For the foregoing reasons, Appellant is not entitled to relief from his conviction and Judgment

     of Sentence should be affirmed.

                                                                      BY THE COURT:




                                                                                                      BRIGHT, J.




                                                             4
