J-S65034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHAD FRANKLIN MCCABE,

                            Appellant                  No. 305 WDA 2016


            Appeal from the Judgment of Sentence January 29, 2016
             in the Court of Common Pleas of Westmoreland County
                Criminal Division at No.: CP-65-CR-0003148-2014


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                       FILED SEPTEMBER 23, 2016

        Appellant, Chad Franklin McCabe, appeals from the judgment of

sentence imposed January 29, 2016, following his jury conviction of indecent

assault and attempted indecent assault. Although we find no merit to the

issues Appellant raised, we are constrained to vacate the sentence for

criminal attempt and remand for resentencing.

        We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s April 15, 2016 opinion.

              In August of 2013, B.N., age seven (7), resided with
        T[.]B[.] [(Mother)], [Mother’s] children, D[.]H[.], Sr. ([Mother’s]
        boyfriend [(Boyfriend)]), D[.]H[.], Jr. ([Boyfriend’s] son
        [(Son)]), and [Appellant] ([Son’s] friend[]). Throughout that
        time, [Appellant] babysat B.N. on two separate incidents, one

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        time at [Appellant’s] parents’ house, and then another time at a
        swimming pool.

              B.N. testified about an incident that occurred one night
        before she entered the [s]econd [g]rade. She stated that one
        night when she was sleeping, she felt [Appellant] pull down her
        pants. She further stated that when [Appellant] pulled down her
        pants approximately halfway, he touched her butt. She testified
        that [Appellant] poked her butt. B.N. then slapped [Appellant’s]
        hand away. After this conduct, B.N. covered up her head with
        her blanket and went back to sleep.

               B.N. explained that she was sleeping on the couch in the
        living room because she did not have a bedroom at her mother’s
        residence. She stated that only her sister [] was on the floor in
        the room when she fell asleep. B.N. testified that the first thing
        she did the following morning was go to her mother’s room and
        tell her about the incident. She also stated that she told her
        father. [Mother] then took B.N. the same day to the police
        station. Approximately eight (8) or nine (9) days later, B.N.
        discussed the incident with Desirea Patterson-Watson, a forensic
        interviewer.

(Trial Court Opinion, 4/15/16, at 1-2) (record citations omitted).

        Appellant was charged with one count of indecent assault, and one

count of criminal attempt to commit the crime of indecent assault.           (See

Information, 8/4/14).1        A jury trial was held from November 3-6, 2015.

Prior to jury selection, the court heard argument on the Commonwealth’s

motion to exclude reference to a polygraph examination.        Counsel for the

Commonwealth explained that “[Appellant] went to the Pennsylvania State

Police to have a polygraph examination done, and it was pursuant to that

pre-polygraph interview with Corporal [Lori] Bernard that he made his

____________________________________________


1
    See 18 Pa.C.S.A. §§ 3126(a)(7), 901(a) respectively.



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admissions.”   (N.T. Trial, 11/03-06/15, at 22).     Appellant argued that

evidence of the polygraph should not be excluded because it was the reason

that he went to the police and therefore was relevant. (See id. at 23, 27-

28). The court concluded that evidence referencing the polygraph, including

whether Appellant was willing to take it or cooperative about it, was

inadmissible. (See id. at 64).

     During trial, Corporal Bernard testified that she interviewed Appellant

about this incident.   She explained that during the interview, Appellant

admitted that he grabbed the back of B.N.’s pants with his left hand and

pulled them down. (See id. at 173). He stated that when B.N. woke up,

she turned around and hit his hand away and that stopped the events that

were happening. (See id. at 174).

     On November 6, 2015, the jury convicted Appellant on both counts.

Appellant did not file a post-trial motion. On January 29, 2016, the court

sentenced Appellant to two years of intensive supervision with six months of

home electronic monitoring on count 1, indecent assault; followed by a

consecutive sentence of one year of probation on count 2, criminal attempt.

Appellant did not file a post-sentence motion. He filed a notice of appeal on

February 24, 2016. Pursuant to the court’s order, Appellant filed his timely

concise statement of errors complained of on appeal on March 31, 2016.

See Pa.R.A.P. 1925(b).    The court entered its opinion on April 15, 2016.

See Pa.R.A.P. 1925(a).

     Appellant raises three questions on appeal.

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      I. Did the [t]rial [c]ourt err in denying Appellant the right to
      introduce evidence showing the full context of the interview of
      Appellant, including reference to the original purpose of the
      interview, namely, to conduct a polygraph examination, in light
      of how the specter of the polygraph was used to entice or
      intimidate [Appellant] into making involuntary incriminating
      statements?

      II. Did the [t]rial [c]ourt err in allowing the jury to deliberate on
      the charge of [i]ndecent [a]ssault where [the Commonwealth’s]
      evidence proved both that there was a touching and that there
      was not a touching of an intimate part of the alleged victim[’]s
      body?

      III. Did the [t]rial [c]ourt err in allowing the jury to deliberate
      on the charge of [a]ttempted [i]ndecent [a]ssault where the
      prosecution introduced no evidence from which an inference
      could arise that Appellant had the conscious intent to commit the
      crime of [i]ndecent [a]ssault?

(Appellant’s Brief, at 5).

      Our standard of review for a challenge to the admissibility of evidence

is well-settled.

      It is well-established that the admissibility of evidence is within
      the discretion of the trial court, and such rulings will not form
      the basis for appellate relief absent an abuse of discretion.
      Thus, [this] Court may reverse an evidentiary ruling only upon a
      showing that the trial court abused that discretion.              A
      determination that a trial court abused its discretion in making
      an evidentiary ruling may not be made merely because an
      appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be
      clearly erroneous. Further, discretion is abused when the law is
      either overridden or misapplied.

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014) (citations and

quotation marks omitted).

            Our well-settled standard of review when evaluating a
      challenge to the sufficiency of the evidence mandates that we


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      assess the evidence and all reasonable inferences drawn
      therefrom in the light most favorable to the verdict-winner. We
      must determine whether there is sufficient evidence to enable
      the fact finder to have found 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 that of 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 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.

Commonwealth v. Evans, 901 A.2d 528, 532–33 (Pa. Super. 2006),

appeal denied, 909 A.2d 303 (Pa. 2006) (citations and quotation marks

omitted). Finally,

            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 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.

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Commonwealth v. Weathers, 95 A.3d 908, 910–11 (Pa. Super. 2014),

appeal denied, 106 A.3d 726 (Pa. 2015) (citation omitted).

      In his first issue, Appellant claims that the trial court erred in

precluding him from admitting evidence related to his consent to undergo a

polygraph examination.      (See Appellant’s Brief, at 18).      Specifically, he

claims that the evidence was relevant to whether or not his admission was

voluntary, because the polygraph was promised and not given. (See id.).

We disagree.

      Pennsylvania case law on the admissibility of reference to a polygraph

test, which raises an inference as to either guilt or innocence, is clear that:

      Due to the unreliable nature of polygraph tests, the results of
      such tests that raise inferences of guilt or innocence are
      inadmissible at trial.    Moreover, any reference to a
      [polygraph test] which raises an inference concerning the
      guilt or innocence of a defendant is inadmissible. As a
      result, we have been reluctant to permit any reference to a
      polygraph examination to be made before a finder of fact. . . .

Commonwealth v. Watkins, 750 A.2d 308, 315 (Pa. Super. 2000)

(citations omitted; emphasis added).

      Here, the trial court granted the Commonwealth’s motion to preclude

any reference to a polygraph test. The court concluded that “admitting the

portions of the video tape regarding the polygraph examination would not be

relevant to the present case. In addition, the fact that [Appellant] appeared

for a polygraph examination is not probative of any fact.” (Trial Ct. Op., at

2).   Upon review, we conclude that the trial court’s decision to exclude

evidence of Appellant’s consent to a polygraph examination was not an

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abuse of its discretion.    See Hoover, supra at 729; Watkins, supra at

315. Appellant’s first issue does not merit relief.

      Appellant has framed his second issue as a challenge to the sufficiency

of the evidence to support his conviction of indecent assault.              (See

Appellant’s Brief, at 5, 20-21). However, in his argument, he challenges the

consistency and credibility of the victim’s testimony and argues that

although the victim testified at trial that he touched her buttocks, she did

not state this in the forensic interview.     (See id.).     Appellant’s claim is

waived.

      Challenges regarding inconsistent testimony concern the weight, not

the sufficiency of evidence.    See Commonwealth v. DeJesus, 860 A.2d

102, 107 (Pa. 2004).       “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. Questions concerning inconsistent

testimony and improper motive go to the credibility of the witnesses.” Id.

(citation omitted); see Evans, supra at 532-33.            However, “[i]t is well

settled that this Court cannot entertain, in the first instance, a request for a

new trial based upon a claim that the verdict is against the weight of the

evidence.” Commonwealth v. Holley, 945 A.2d 241, 245-46 (Pa. Super.

2008), appeal denied, 959 A.2d 928 (Pa. 2008) (citation omitted); see

Pa.R.Crim.P. 607(A).

      Here, Appellant did not challenge the weight of evidence orally or by

written motion before sentencing or in a post-sentence motion. Thus, he did

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not raise the issue before the trial court, and cannot raise it for the first time

before this Court.    See Holley, supra at 245-46; Pa.R.Crim.P. 607(A).

Accordingly, it is waived. Moreover, even if properly preserved, it would not

merit relief.

      A person who has indecent contact with the complainant or
      causes the complainant to have indecent contact with the person
      is guilty of indecent assault if: . . . the complainant is less than
      13 years of age[.] Furthermore, indecent contact is defined as
      [a]ny touching of the sexual or other intimate parts of the
      person for the purpose of arousing or gratifying sexual desire, in
      either person.

Evans, supra at 533 (citations and quotation marks omitted).

      Appellant essentially argues that the verdict was against the weight of

the evidence because the victim’s testimony was contradictory as to whether

or not Appellant touched her buttocks after pulling down her pants.          (See

Appellant’s Brief, at 20-21). It was the province of the jury sitting as the

fact finder to pass upon the credibility of the evidence and to believe all,

part, or none of the evidence presented. See Evans, supra at 532-33. At

trial, the victim testified that, while she was sleeping, Appellant pulled down

her pants and touched her left buttock.        (See N.T. Trial, at 120).      The

Commonwealth also presented Appellant’s admission that he grabbed her

pants and pulled them down. (See id. at 173). After weighing the evidence

and assessing the credibility of the victim, the jury determined that he was

guilty of indecent assault. See DeJesus, supra at 107.

      Upon review, we would conclude that the jury’s verdict of guilt for

indecent assault would not have shocked one’s sense of justice.              See

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Weathers, supra at 910-11. Furthermore, it is clear that the evidence at

trial was sufficient to establish that Appellant was guilty of indecent assault.

See Evans, supra at 532-33; see also Commonwealth v. Vosburg, 574

A.2d 679, 682 (Pa. Super. 1990), appeal denied, 602 A.2d 859 (Pa. 1991)

(“eight-year-old victim [testimony] that she had felt someone pulling on her

underwear while she lay in bed . . . was sufficient evidence for the jury to

conclude, beyond a reasonable doubt, that an indecent assault occurred[.]”)

(footnote omitted). Appellant’s second issue would not merit relief.

      In his final issue, Appellant has attempted to challenge the sufficiency

of the evidence for his conviction of attempted indecent assault.         (See

Appellant’s Brief, at 21-22). However, Appellant did not include this issue in

his Rule 1925(b) statement of errors complained of on appeal, and

accordingly it is waived.    (See Statement of [Errors] Complained of on

Appeal, 3/31/16, at unnumbered pages 1-2) (alleging errors concerning

admissibility of polygraph related evidence and insufficiency of evidence to

support conviction for count 1, indecent assault); Commonwealth v. Lord,

719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b)

statement will be deemed waived.”).

      Furthermore, Appellant’s argument on this issue is underdeveloped

and does not contain any citations to the record. (See Appellant’s Brief, at

21-22). He fails to support his claim regarding insufficiency of the evidence

for his conviction of attempted indecent assault with citation to, and

discussion of, any pertinent legal authority. Instead, the argument includes

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only one paragraph simply claiming that there was no evidence showing that

Appellant intended to touch the victim’s buttock, and thus any inference of

intent would be speculation. (See id.). Thus, we conclude he has waived

his claim for this reason as well.   See Commonwealth v. Beshore, 916

A.2d 1128, 1140 (Pa. Super. 2007), appeal denied, 982 A.2d 509 (Pa. 2007)

(“The failure to develop an adequate argument in an appellate brief may [ ]

result in waiver of the claim under Pa.R.A.P. 2119.”) (citation and quotation

marks omitted).    Moreover, even if properly preserved and developed,

Appellant’s claim that the evidence was insufficient to support his conviction

of attempted indecent assault would not merit relief.

      “[A]n attempt or solicitation to complete the offense charged is a

lesser-included offense. The evidence that the Commonwealth must present

in an attempt to show that the defendant committed that crime, if sufficient,

is necessarily sufficient to show that he took a substantial step toward

committing that crime.” Commonwealth v. Sims, 919 A.2d 931, 941 (Pa.

2007). “This Court has previously acknowledged that intent can be difficult

to prove directly because it is a subjective frame of mind.     However, the

fact-finder is free to conclude that the accused intended the natural and

probable consequences of his actions to result therefrom.” Commonwealth

v. Faulk, 928 A.2d 1061, 1070 (Pa. Super. 2007), appeal denied, 944 A.2d

756 (Pa. 2008).

      Here, the evidence demonstrated that Appellant pulled down the

victim’s pants and touched her buttock. The jury was free to conclude that

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Appellant intended to do so.       See Faulk, supra at 1070.         Therefore, we

would conclude that the evidence was sufficient to prove that Appellant was

guilty of attempted indecent assault.        See Sims, supra at 941; Evans,

supra at 532-33; Vosburg, supra at 682.             Accordingly, Appellant’s third

issue would not merit relief.

      Finally, “[a]lthough appellant has not raised the question of the

imposition of an illegal sentence, we may raise the issue, sua sponte, since

the   question    of   the   legality   of   the   sentence   is   never   waived.”

Commonwealth v. Fortune, 451 A.2d 729, 731 (Pa. Super. 1982) (citation

omitted).   “Whether Appellant’s convictions merge for sentencing is a

question implicating the legality of Appellant’s sentence. Consequently, our

standard of review is de novo and the scope of our review is plenary.”

Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012), appeal

denied, 67 A.3d 793 (Pa. 2013) (citation omitted).

      “[A]n attempt or solicitation to complete the offense charged is a

lesser-included offense.” Sims, supra at 941 (citation omitted). Inchoate

crimes, such as criminal attempt, “merge only when directed to the

commission of the same crime, not merely because they arise out of the

same incident.”    Commonwealth v. Jones, 39 A.3d 977, 983 (Pa. 2012)

(citation omitted). “Where crimes merge for sentencing purposes, the court

may sentence the defendant only on the higher graded offense.”                  42

Pa.C.S.A. § 9765.




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      Here, Appellant’s criminal attempt conviction and indecent assault

conviction arose out of the same incident; and the criminal attempt was

directed to commit the crime of indecent assault.       Thus, the two charges

should   have   merged    for   sentencing.     See   Jones,   supra      at   983.

Accordingly, the trial court was only permitted to sentence Appellant on the

higher graded offense, indecent assault.          See 42 Pa.C.S.A. § 9765.

Therefore, we vacate Appellant’s judgment of sentence and remand for

resentencing.    See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.

Super. 2006), appeal denied, 946 A.2d 687 (Pa. 2008) (“If our disposition

upsets the overall sentencing scheme of the trial court, we must remand so

that the court can restructure its sentence plan.”) (citation omitted).

      Judgment of sentence vacated.           Case remanded for resentencing.

Panel jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2016




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