J-S42003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

WILLIAM CHARLES WUNNER,

                        Appellant                    No. 817 MDA 2016


            Appeal from the Judgment of Sentence April 15, 2016
              In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-0003445-2014


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 07, 2017

      Appellant, William Charles Wunner, appeals from the judgment of

sentence entered on April 15, 2016. We affirm.

      The factual background and procedural history of this case are as

follows.   In April 2014, Appellant began dating A.W. Shortly thereafter,

Appellant and his brother moved in with A.W. and her three children. At the

time, one of the children, the victim, was five years old. While A.W. worked,

Appellant and his brother babysat for her.       Appellant moved out of the

household in May 2014.      On June 22, 2014, the victim reported to her

grandmother that Appellant had sexually abused her while he was living in

the home.
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       On December 9, 2014, the Commonwealth charged Appellant via

criminal information with rape of a child,1 involuntary deviate sexual

intercourse,2 two counts of aggravated indecent assault,3 endangering the

welfare of a child,4 corruption of minors,5 indecent assault,6 and indecent

exposure.7 On January 20, 2016, a jury convicted Appellant on all charges.

On April 15, 2016, Appellant was sentenced to an aggregate term of 24 to

48 years’ imprisonment. This timely appeal followed.8

       Appellant presents two issues for our review:

       1. Whether the [t]rial court erred in precluding [Appellant] from
          presenting evidence of [the victim’s] contact with a registered
          sex offender, where it prevented [Appellant] from mounting a
          complete defense?
____________________________________________


1
    18 Pa.C.S.A. § 3121(c).
2
    18 Pa.C.S.A. § 3123(b).
3
    18 Pa.C.S.A. § 3125(b).
4
    18 Pa.C.S.A. § 4304(a)(1).
5
    18 Pa.C.S.A. § 6301(a)(1)(ii).
6
    18 Pa.C.S.A. § 3126(a)(7).
7
    18 Pa.C.S.A. § 3127(a).
8
    On May 17, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On June 2, 2016, Appellant filed a motion requesting
additional time to file his concise statement. On June 3, 2016, the trial court
granted Appellant’s motion. On July 11, 2016, Appellant filed his concise
statement. On November 30, 2016, the trial court issued its opinion
pursuant to Pa.R.A.P. 1925(a).



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         2. Whether the evidence was sufficient to sustain a conviction
            for 18 Pa.C.S.A. § 3121(c), § 3123(b), and § 3125(b),
            when the time period during which events allegedly
            occurred is exceedingly vague, there was no physical
            evidence, or the physical evidence was not consistent with
            [the victim’s] story, and there was no testimony from the
            [victim] or evidence from the Commonwealth regarding an
            identifying mark on [Appellant’s] penis?

Appellant’s Brief at 1.

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

excluding evidence showing that the victim’s grandfather was a registered

sex offender who had unsupervised contact with the victim.         Specifically,

Appellant alleges “[s]uch evidence would have bolstered Appellant’s defense

and permitted a reasonable inference that while someone abused [the

victim], there was an alternative perpetrator who had access to [her],

instead of Appellant.”    Appellant’s Brief at 10.    Our standard of review

concerning the admissibility of evidence is as follows:

      The admission of evidence is a matter vested within the sound
      discretion of the trial court, and such a decision shall be reversed
      only upon a showing that the trial court abused its discretion. In
      determining whether evidence should be admitted, the trial court
      must weigh the relevant and probative value of the evidence
      against the prejudicial impact of that evidence. Evidence is
      relevant if it logically tends to establish a material fact in the
      case or tends to support a reasonable inference regarding a
      material fact. Although a court may find that evidence is
      relevant, the court may nevertheless conclude that such
      evidence is inadmissible on account of its prejudicial impact. 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.


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Commonwealth v. Weakley, 972 A.2d 1182, 1188-1189 (Pa. Super.

2009) (citations omitted).

     Here, the trial court determined “that the bare allegation of the victim

being in the company of someone with a prior conviction for child

pornography did not exonerate [Appellant], [nor] demonstrate bias and was

not relevant to any fact at issue.”    Trial Court Opinion, 11/30/2016, at 6.

Furthermore, the victim testified that she did not have any unsupervised

contact with her grandfather. N.T., 8/31/15, at 13-14. Appellant offered no

evidence suggesting that anything inappropriate ever occurred between the

victim and her grandfather.     Therefore, Appellant’s assertion is vague and

void of probative value.     Moreover, it does not make the existence of any

fact at issue more or less probable. We conclude that the trial court did not

abuse its discretion in finding the proffered evidence was not relevant and

thus inadmissible.

     In his second issue, Appellant argues that the evidence was insufficient

to support a guilty verdict.    The trial court deemed this issue waived, as

Appellant’s concise statement failed to specify the element or elements of

the offenses that he believes are not supported by the evidence. Trial Court

Opinion, 11/30/2016, at 8-9.       As this Court has stated, “[i]n order to

preserve a challenge to the sufficiency of the evidence on appeal, an

appellant's Rule 1925(b) statement must state with specificity the element

or elements upon which the appellant alleges that the evidence was


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insufficient.”     Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.

2013), citing Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.

2009). “Such specificity is of particular importance in cases where, as here,

the [A]ppellant was convicted of multiple crimes each of which contains

numerous         elements   that     the   Commonwealth       must   prove     beyond   a

reasonable doubt.”          Id.     Since Appellant asserts that the evidence was

insufficient to sustain a conviction of three separate charges, but fails to

specify which elements are not supported by the evidence, we find

Appellant’s sufficiency claim waived on this basis.

       However, even assuming Appellant’s sufficiency claim was not waived,

we find it meritless.        “Whether sufficient evidence exists to support the

verdict is a question of law; our standard of review is de novo and our scope

of review is plenary.” Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.

Super. 2016), appeal denied, 470 EAL 2016 (Pa. Feb. 23, 2017) (citation

omitted).         “In   assessing    Appellant’s   sufficiency    challenge,    we   must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that the Commonwealth proved

[each] element of the crime beyond a reasonable doubt.” Commonwealth

v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016) (citation omitted).                   “The

evidence need not preclude every possibility of innocence and the fact-finder

is   free   to    believe   all,   part,   or   none   of   the   evidence     presented.”


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Commonwealth v. Ford, 141 A.3d 547, 552 (Pa. Super. 2016) (citation

omitted).

       Specifically, Appellant argues that the evidence presented at trial was

legally insufficient to sustain Appellant’s convictions for rape of a child, 9

involuntary deviate sexual intercourse,10 and aggravated indecent assault.11

Appellant’s Brief at 13-14. In support of his argument, Appellant claims the

medical evidence and testimony given by the Commonwealth’s expert does

not establish that the victim was sexually assaulted.      Further, Appellant

____________________________________________


9
   See 18 Pa.C.S.A. § 3121(c): “A person commits the offense of rape of a
child, a felony of the first degree, when the person engages in sexual
intercourse with a complainant who is less than 13 years of age.” Sexual
intercourse “[i]n 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. See also Commonwealth v. Hunzer, 868
A.2d 498 (Pa. Super. 2005) (finding that the term “penetration however
slight” is not limited to penetration of the vagina, as entrance in the labia
will suffice.)
10
    See 18 Pa.C.S.A. § 3123(b): “A person commits involuntary deviate
sexual intercourse with a child, a felony of the first degree, when the person
engages in deviate sexual intercourse with a complainant who is less than 13
years of age.” Deviate sexual intercourse is “[s]exual intercourse per os or
per anus between human beings and any form of sexual intercourse with an
animal. The term also includes penetration, however slight, of the genitals
or anus of another person with a foreign object for any purpose other than
good faith medical, hygienic or law enforcement procedures.” 18 Pa.C.S.A.
§ 3101.
11
    See 18 Pa.C.S.A. § 3125(b): “[A] person who engages in penetration,
however slight, of the genitals or anus of a complainant with a part of the
person's body for any purpose other than good faith medical, hygienic or law
enforcement procedures commits aggravated indecent assault. . . if the
complainant is less than 13 years of age.”



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contends that the victim “never testified to nor described to anyone the

identifying mark on [] Appellant’s penis.” Appellant’s Brief at 14. Appellant

also argues that the Commonwealth never elicited a timeframe for when

these events allegedly occurred, and that the Commonwealth’s “entire case

is on based on the report of the [victim].” Appellant’s Brief at 15.

      At trial, the jury was instructed that they may find Appellant guilty if

the testimony of the victim convinces them that Appellant is guilty beyond a

reasonable doubt.     N.T., 1/20/2016, at 209.        This jury instruction is

consistent with 18 Pa.C.S.A. § 3106, which provides “[t]he credibility of a

complainant of an offense under this chapter shall be determined by the

same standard as is the credibility of a complainant of any other crime. The

testimony of a complainant need not be corroborated in prosecutions under

this chapter. No instructions shall be given cautioning the jury to view the

complainant's   testimony   in   any   other   way   than   that   in   which   all

complainants' testimony is viewed.”            See also Commonwealth v.

Poindexter, 646 A.2d 1211, 1214 (Pa. Super. 1994) (holding that for

charges of rape, involuntary deviate sexual intercourse, and statutory rape,

testimony of a victim need not be corroborated); Commonwealth v.

Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (finding “the uncorroborated

testimony of the complaining witness is sufficient to convict a defendant of

sexual offenses.”).




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      Additionally, the doctor that performed the medical exam on the victim

testified that the result of “the exam [did] not preclude penetration into the

internal genital structures, including the lips of the labia up to the hymenal

opening.” N.T., 1/20/2016, at 129-130. Likewise, the testimony given by

the two detectives and Appellant’s brother corroborated the victim’s

testimony.    Lastly, the offenses sub judice occurred over a one-month

timeframe (April to May 2014) when Appellant resided with A.W.; hence, we

are not confronted with a lengthy and unspecified period during which the

crimes were alleged to have occurred. Accordingly, we find that there was

sufficient evidence to convict Appellant of rape of a child, involuntary deviate

sexual intercourse, and aggravated indecent assault.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2017




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