J-S54037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT LEE BEAVERS, JR.

                            Appellant                  No. 150 MDA 2014


     Appeal from the Judgment of Sentence entered November 6, 2013
        In the Court of Common Pleas of the 39th Judicial District,
                          Franklin County Branch
             Criminal Division at No: CP-28-CR-0002258-2012


BEFORE: LAZARUS, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 18, 2014

       Robert Lee Beavers, Jr., was convicted of crimes relating to his sexual

abuse of his minor step-niece. He appeals from the judgment of sentence

made final by the denial of his post-sentence motions.1 Appellant challenges

the sufficiency of the evidence and the trial court’s failure to declare a

mistrial after an allegedly prejudicial interruption during Appellant’s counsel’s

closing argument. We affirm.

       On September 18, 2011, Appellant, then 23 years old, sexually

assaulted his ten-year-old step-niece, H.K.       H.K. testified that she was
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1
  Appellant purports to appeal from the January 17, 2014 order denying his
post-sentence motion. “A direct appeal in a criminal proceeding lies from
the judgment of sentence,” not from the denial of post-sentence motions.
Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa. Super. 2007).
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watching television at her step-grandfather’s house in Waynesboro, Franklin

County, with Appellant.          N.T. Trial, 8/5/13, at 11-20.   While she and

Appellant were alone, Appellant forced her to perform oral sex on him until

he ejaculated. Id. Appellant hurt H.K.’s neck in the process. Id. Appellant

also had her touch his penis, and tried to touch H.K.’s chest and vaginal

area. Id. Appellant threatened H.K. not to tell anyone. Id. Nonetheless,

H.K. told her biological mother, C.M. and a forensic interviewer. Id. at 55-

57, 80-82; Commonwealth’s Exhibit 10.            Testifying in his own defense,

Appellant denied committing any of the crimes, and speculated that H.K.

may have been prompted to fabricate the allegations. Id. at 130-33, 140-

42. During Appellant’s counsel’s closing argument, the following interruption

occurred while she was arguing to the jury that H.K. was not credible:

       COURT CRIER: Excuse me, Your Honor. You have two witnesses
       out here.

       [DEFENSE COUNSEL]: Ok. I contacted the Kennedys[2] and let
       them know they didn’t need to be here and Miss [K.] didn’t
       return my call so I wasn’t able to notify her that they weren’t
       needed.

       COURT CRIER: Your Honor, they are asking if they can come into
       court.

       [DEFENSE COUNSEL]: I have no objection to that.

       COURT CRIER: Thank you, Your Honor.

N.T. Closing Arguments, 8/8/13, at 5.
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2
  The witnesses mentioned by defense counsel have a different surname
than the minor victim.



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       The jury convicted Appellant of involuntary deviate sexual intercourse

with a child, indecent assault of a child, corruption of minors, and simple

assault of a child.3        On November 6, 2013, the trial court sentenced

Appellant to an aggregate of 11 to 34 years in prison. Appellant filed a post-

sentence motion, which the trial court denied in relevant part.4 This appeal

followed.

       Appellant raises two issues for our review:

       I.     Whether the trial court erred in denying [Appellant’s]
              motion for judgment of acquittal, based on [Appellant’s]
              assertion that the verdict was against the weight of the
              evidence, and that the Commonwealth failed to present
              sufficient evidence to support [his] convictions.

       II.    Whether the trial court abused its discretion in denying
              [Appellant’s] motion for new trial, based on [Appellant’s]
              assertion of prejudice when court staff interrupted defense
              counsel’s closing argument.

Appellant’s Brief, at 5.

       In his first issue, Appellant purports to challenge the weight and the

sufficiency of the evidence supporting his convictions.           Weight and




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3
  18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), 6301(a), and 2701(a)(1) and (b)(2),
respectively.
4
  The trial court granted Appellant’s unopposed request to eliminate a
typographical error from his sex-offender registration notification form, to
reflect that he was not found to be a sexually violent predator.



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sufficiency, however, are distinct claims.5         See Commonwealth v.

Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (discussing the differences).

       Regarding the sufficiency of the evidence,

       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 all of the
       evidence and all reasonable inferences drawn therefrom in the
       light most favorable to the Commonwealth, as the verdict
       winner. Evidence will be deemed to support the verdict when it
       establishes 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.

Commonwealth v. Levy, 83 A.3d 457, 461 (Pa. Super. 2013) (quotation

omitted).

       Preliminarily, we note that we could find Appellant’s sufficiency

challenge waived because of the overly general, non-specific nature of his

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Here, Appellant was convicted of six different offenses, but failed to

enumerate for which offenses, or elements thereof, the evidence was

insufficient. Rather, his concise statement states:


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5
  Appellant did not challenge the weight of the evidence in the trial court.
Therefore, that issue is not preserved for review. Pa.R.Crim.P. 607(A);
Pa.R.A.P. 302(a).



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       Whether the [trial c]ourt erred as a matter of law when it denied
       [Appellant’s] Motion for Judgment of Acquittal?

Concise Statement, 1/31/14, ¶ 1.6              In his brief, Appellant similarly fails to

narrow his challenge.

       Generally, an appellant’s failure to specify the elements of the crimes

for which he challenges the sufficiency of the evidence waives appellate

review. Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009).

However, this is a relatively straightforward case. See Commonwealth v.

Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (per curiam) (holding that this

Court erred in finding a sufficiency challenged waived, because the case was,

inter alia, straightforward). The charges in this case required proof only of

the victim’s age and Appellant’s illicit contact with her.            Appellant did not

dispute the victim’s age and presented the straightforward defense that he

did not commit the offenses charged.

       Turning to Appellant’s sufficiency challenge, we find it meritless.

Appellant claims that the evidence is insufficient because the victim was not

credible, the victim’s mother was not credible, and the Commonwealth failed

to collect any evidence to corroborate the victim’s story. We agree with the

Commonwealth that all of Appellant’s arguments concern the credibility of

witnesses.    “An argument that the finder of fact should have credited one

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6
  The Rules of Appellate Procedure required Appellant to attach his concise
statement and the trial court’s Rule 1925(a) opinion to his brief, but he has
failed to do so. See Pa.R.A.P. 2111(a)(11) and (b).



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witness’ testimony over that of another witness goes to the weight of the

evidence, not the sufficiency of the evidence.” Gibbs, 981 A.2d at 281-82.

Here, the ten-year-old victim testified that Appellant hurt her neck, forced

her to perform oral sex, and touched her vaginal area and chest.           The

victim’s testimony alone is sufficient evidence to convict.      18 Pa.C.S.A.

§ 3106. Therefore, we reject Appellant’s argument.

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

failing to declare a mistrial after the court crier interrupted Appellant’s

counsel’s closing argument with news that Appellant’s other witnesses had

arrived. This issue is not preserved.

      When an event prejudicial to the defendant occurs during trial
      only the defendant may move for a mistrial; the motion shall
      be made when the event is disclosed. Otherwise, the trial
      judge may declare a mistrial only for reasons of manifest
      necessity.

Pa.R.Crim.P. 605(B) (emphasis added); Commonwealth v. Ables, 590

A.2d 334, 340 (Pa. Super. 1991).

      Here, Appellant raised the issue regarding the court crier’s interruption

for the first time in post-sentence motions.      Appellant’s counsel neither

moved for a mistrial nor requested a cautionary instruction when the

interruption occurred, or at any time thereafter.     Rule 605(B) requires a

defendant to move for a mistrial at the time of the allegedly prejudicial

event.   “Since appellant failed to move for a mistrial, he cannot now

complain that the court erred in failing to grant a mistrial when no such



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motion was made.” Ables, 590 A.2d at 340.        Having failed to preserve the

claim in the trial court, Appellant is not entitled to appellate review.7 See

Pa.R.A.P. 302(a).

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




____________________________________________


7
  We could also find this claim waived for Appellant’s failure to cite any
authority supporting his argument. When an appellant cites no authority to
support an argument, this Court is inclined to believe there is none.
Pa.R.A.P. 2119(a); Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa.
Super. 2012).



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