Com. v. Juray, R., Jr.
Pa. Super. Ct.
J-S13037-22
2022 PA Super 83
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD DEAN JURAY JR. :
:
Appellant : No. 1536 MDA 2021
Appeal from the Judgment of Sentence Entered May 5, 2021
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0002238-2018
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: MAY 6, 2022
Appellant Richard Dean Juray, Jr. appeals from the judgment of
sentence1 of 89 months to 264 months in a State Correctional Institution
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Appellant was sentenced in this matter on May 5, 2021. On May 17, 2021,
counsel filed a timely post-sentence motion, which was denied on November
18, 2021. Counsel for Appellant filed the instant notice of appeal on November
30, 2021.
A notice of appeal must be filed within 30 days of the entry of the order
being appealed. See Pa.R.A.P. 903(a); Commonwealth v. Moir, 766 A.2d
1253 (Pa.Super. 2000). If the defendant files a timely post-sentence motion,
the notice of appeal shall be filed within 30 days of the entry of the order
deciding the motion. See Pa.R.Crim.P. 720(A)(2)(a). A trial court has 120
days to decide a post-sentence motion, and if the court fails to decide the
motion within that period, the motion is deemed denied by operation of law.
See Pa.R.Crim.P. 720(B)(3)(a). When the motion is deemed denied by
operation of law, the clerk of courts shall enter an order deeming the motion
denied on behalf of the trial court and serve copies on the parties. See
Pa.R.Crim.P. 720(B)(3)(c). The notice of appeal shall be filed within 30 days
(Footnote Continued Next Page)
J-S13037-22
entered in the Court of Common Pleas of Franklin County following his
convictions by a jury of Aggravated Indecent Assault by Threat or Forcible
Compulsion, Aggravated Indecent Assault Against a Person Under the Age of
13, Corruption of Minors, and Indecent Assault.2 These charges arose out of
Appellant’s conduct with his minor granddaughter, A.J.
At trial, the Commonwealth presented the testimony of A.J., her
mother, H.J., and the managing forensic interviewer from the Child Advocacy
____________________________________________
of the entry of the order denying the motion by operation of law. See
Pa.R.Crim.P. 720(A)(2)(b).
Herein, the 120-day period for decision on Appellant’s post-sentence
motion expired on September 14, 2021. However, the clerk of courts failed to
enter an order deeming the motion denied as a matter of law on that date.
Instead, the trial court ruled on the motion on November 18, 2021, outside
the 120-day period, and Appellant appealed within 30 days of that order.
Ordinarily, the appeal would be untimely. Notwithstanding, this Court
has held that a court breakdown occurs when the trial court clerk fails to enter
an order deeming post-sentence motions denied by operation of law pursuant
to Pa.R.Crim.P. 720(B)(3)(c). See Commonwealth v. Patterson, 940 A.2d
493, 498-99 (Pa. Super. 2007) (citing Commonwealth v. Perry,820 A.2d 734
, 735 (Pa. Super. 2003)). Accordingly, this Court may decline to quash
the instant appeal and proceed to consider Appellant’s substantive issues.
Moreover, the notice of appeal filed by counsel states the appeal is “from
the Sentence entered in this matter on May 5, 2021, and Order of Court
denying Defendant’s Post-Sentence Motion.” However, counsel for Appellant
erroneously stated the appeal was from the May 5, 2021, judgment of
sentence and the November 18, 2021, Order denying post-sentence motions,
for “[i]n a criminal action, appeal properly lies from the judgment of sentence
made final by the denial of post-sentence motions.” Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation omitted), appeal denied,800 A.2d 932
(Pa. 2002). The caption correctly
indicates this appeal is from the May 5, 2021, judgment of sentence only.
2 18 Pa.C.S.A. §§ 3125(a)(3); 3125(a)(7); 6301(a)(1)(ii), and 3126(a)(1),
respectively.
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Center, Rebecca Voss, who performed A.J.’s forensic interview. In addition,
Appellant testified in his own defense, and his sister, W.M., testified as a
character witness on his behalf.3
On May 17, 2021, Appellant filed a timely post-sentence motion. A
hearing was scheduled for July 29, 2021; however, at that time it was
discovered that Appellant had not been transported to the courtroom because
he previously had been moved to a state correctional institution. Appellant’s
counsel requested a continuance so that Appellant could be present for the
hearing and also asked to amend the post-sentence motion to include a
request for modification of sentence.
The trial court granted the continuance and directed counsel to file a
written, amended post-sentence motion. Counsel complied and filed an
Amended Post-Sentenced Motion on August 2, 2021. After receiving the
Commonwealth’s Response to Defendant’s Amended Post-Sentence Motion on
November 11, 2021, the trial court filed its Opinion and Order on November
18, 2021, denying the motion.
Appellant filed a notice of appeal on November 30, 2021, and a timely
Concise Statement of Matters Complained of on Appeal on December 17,
____________________________________________
3 We have replaced the proper names of family members with initials to
protect the minor child’s identity. See Superior Court I.O.P. 424(A).
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2021.4 The trial court filed its Opinion pursuant to Pa.R.A.P. 1925(a) on
December 20, 2021. Therein, it referred this Court to its November 18, 2021,
Opinion and Order of Court wherein it had addressed at length the claims
Appellant set forth in his concise statement.
In his brief, Appellant presents the following questions for this Court’s
review:
1. Whether the evidence presented at trial failed to prove every element
of the crimes charged beyond a reasonable doubt and, therefore, was
insufficient to support [Appellant’s] convictions?
2. Whether the guilty verdict following [Appelant’s] trial was against the
weight of the evidence presented?
Brief for Appellant at 12.
____________________________________________
4 Appellant’s concise statement is five pages in length and reads like an
appellate brief. The fact Appellant filed a timely 1925(b) statement does not
automatically equate with issue preservation. See Jiricko v. Geico Ins. Co.,
947 A.2d 206, 210 (Pa.Super. 2008) (finding that the appellant’s five-page 1925(b) statement could certainly be characterized as “lengthy.”). This Court previously held that at Rule 1925(b) statement is a crucial component of the appellate process because it allows the trial court to identify and focus on those issues the party plans to raise on appeal. Riley v. Foley,783 A.2d 807
, 813 (Pa.Super. 2001). The Pa.R.A.P. 1925(b) statement must be sufficiently “concise” and “coherent” such that the trial court judge may be able to identify the issues to be raised on appeal, and the circumstances must not suggest the existence of bad faith. “A concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent to no Concise Statement at all.” Commonwealth v. Dowling,778 A.2d 683
, 686-87 (Pa.Super. 2001).
Herein, although inartfully stylized as his Concise Statement of Matters
Complained of on Appeal, Appellant’s Rule 1925(b) statement does identify
the issues Appellant challenges on appeal. Although superfluous, the
“argument” portions of the statement do not impede review. Thus, we decline
to find waiver of the issues Appellant presents for our review due to his lengthy
concise statement.
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In a letter filed with this Court on February 24, 2022, and dated
February 16, 2022, the Commonwealth indicated that it agrees with the trial
court’s Opinion and will not be filing an appellate brief herein.
This Court’s standard of review of a challenge to the sufficiency of the
evidence is well-settled:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136. Commonwealth v. Koch,39 A.3d 996
, 1001 (Pa.Super. 2011).
To establish the crimes of Aggravated Indecent Assault by Threat or
Forcible Compulsion, and Aggravated Indecent Assault Against a Person Less
than the age of 13, the Commonwealth must prove,
(a) Offenses defined.--Except as provided in sections 3121
(relating to rape), 3122.1 (relating to statutory sexual
assault), 3123 (relating to involuntary deviate sexual
intercourse) and 3124.1 (relating to sexual assault), 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:
***
(3) the person does so by threat of forcible compulsion that would
prevent resistance by a person of reasonable resolution;
***
(7) the complainant is less than 13 years of age; or
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18 Pa.C.S.A. §§ 3124(a)(3), (a)(7), respectively.
Corruption of Minors is defined, in relevant part, as follows:
(a) Offense defined.—
(1)(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)(ii).
The relevant elements of Indecent Assault require proof that:
(a) Offense defined.--A person is guilty of indecent assault if
the person has indecent contact with the complainant,
causes the complainant to have indecent contact with the
person or intentionally causes the complainant to come into
contact with seminal fluid, urine or feces for the purpose of
arousing sexual desire in the person or the complainant and:
(1) the person does so without the complainant's consent;
18 Pa.C.S.A. § 3126(a)(1).
Despite his general statement in the Statement of Questions Involved
portion of his appellate brief challenging the evidence to support all the
elements of his crimes, the only aspect of each crime for which Appellant
develops an argument is the “contact” element. Appellant avers that the
Commonwealth presented no physical evidence at trial to show he engaged in
sexual contact with A.J., and the only direct evidence it did present was the
testimony of the victim herself. Brief for Appellant at 22-23. Appellant
maintains that “[t]he inconsistencies, contradictions and defective assertions
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made by A.J. make her testimony weak and unreliable.” Id. at 25. Appellant
stresses that A.J.’s trial testimony was inconsistent with statements she made
during her forensic interview, which the jury viewed, and cites to numerous
examples of those inconsistencies. Id. at 27-31. Appellant concludes by
stating:
Nothing in this testimony proves or tends to prove that any sexual
contact actually occurred between the Appellant and A.J. and
nothing in her testimony proves or tends to prove the necessary
and required elements that any contact was motivated by sexual
arousal of either party and not for a good faith medical or hygienic
purpose.
Id. at 32-22.
Preliminarily, we find that in basing its challenge to the sufficiency of
the evidence upon the credibility of A.J.’s trial testimony, Appellant conflates
the concepts of sufficiency and weight of the evidence. In Commonwealth
v. Wilson, 825 A.2d 710, 713-14 (Pa.Super. 2003) this Court explained that a sufficiency of the evidence review does not include an assessment of credibility of testimony offered by the Commonwealth. Instead, such arguments are more properly characterized as challenges to weight of evidence.Id.
See also Commonwealth v. W.H.M., Jr.,932 A.2d 155
, 160
(Pa.Super. 2007) (explaining a claim that the jury erred in crediting a victim’s
version of events over that of Appellant goes to the weight, not to the
sufficiency of the evidence).
In addition, the Pennsylvania Supreme Court has held that an
“appellant's challenge to the sufficiency of the evidence must fail[,]” where an
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appellant phrases an issue as a challenge to the sufficiency of the evidence,
but the argument that the appellant provides goes to the weight of the
evidence. Commonwealth v. Small, 559 Pa. 423, 434,741 A.2d 666
, 672 (1999). See also Commonwealth v. Widmer,560 Pa. 308
,744 A.2d 745
(2000) (explaining distinctions between a claim challenging sufficiency of
evidence and a claim challenging weight of evidence).
Instantly, while acknowledging that A.J.’s testimony was “[t]he only
direct evidence presented against Appellant to prove the crimes,” Appellant
baldly alleges the Commonwealth failed to establish each element of contact
related to the four charges of which he was convicted. See Brief for Appellant
at 22-25. Essentially, Appellant maintains the jury should not have believed
the victim’s testimony regarding the incident in her bedroom at her birthday
party. Notwithstanding the phrasing of Appellant's claim as concerning the
sufficiency of the evidence, his claim is more properly construed as a challenge
to the weight of the evidence. See Wilson, supra. For this reason, this claim
fails. See Small, supra.
Moreover, even if Appellant's issue on appeal may be construed as
implicating the sufficiency and not the weight of the evidence, the evidence
introduced at trial was sufficient to establish Appellant's guilt of the crimes
charged beyond a reasonable doubt. In this regard, the trial court stated the
following:
The victim is [Appellant’s] granddaughter. She was
fourteen years old at the time she testified, testifying about an
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incident that occurred on her sixth birthday.[5] She testified that,
while she was in her room playing with dolls, [Appellant] entered
the room and forced her to the floor. The victim then testified:
“He took off my shirt and started playing with my
chest and after that he took off my shorts and my
underwear and he started going around outside of my
private area and he went in a little bit and then I
started screaming and he stopped because he heard
somebody downstairs opening the door and then he
threatened that if I said anything that he would do it
again.”[6]
The victim further testified that he had used his finger, and
that she felt him “go inside of [her] private area.” She later
described how it felt:
“Well, basically like whenever he went in it- I just
felt, like, discomfort and it wasn’t necessarily something
I was used to. I was never exposed to that. So it was
definitely something I didn’t want to experience which
also made it hurt even worse because my body was
trying to reject it but he kept forcing it into me.
The jury later heard testimony from the investigator who
interviewed the victim and watched footage of the forensic
____________________________________________
5 At trial, A.J. testified she was “six or seven” years old at the time and
attending a birthday party held in honor of her brother and her. N.T., Trial
10/23/20, at 28-29.
6 Prior to this testimony, Appellant had explained she was upstairs in her
bedroom playing with her Barbie dolls when:
My grandfather comes upstairs and he walks in and he asks what
I was doing and I told him I was just playing with me [sic] Barbie
dolls. And he turned around and he closed the door. And then he
walked toward me and sat down beside me. And then he had his
hands on my shoulders and pushed me down and laid me on the
floor so I had no control and then he took off my shirt.
N.T. Trial, 10/23/20, at 30.
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interview. Although there were some discrepancies between the
victim’s testimony and the interview which we will discuss below,
the victim’s testimony did not waver on the question of
penetration.
This [c]ourt has encountered quite a few cases in which the
question of penetration was ambiguous. This is not one of those
cases. The victim testified quite unambiguously that she felt
[Appellant’s] fingers penetrate her vagina, and she further
described what it felt like. When viewed in the light most
favorable to the Commonwealth, this testimony clearly constitutes
sufficient evidence to support the jury’s finding that [Appellant]
penetrated the victim’s vagina, thereby causing indecent contact
and corrupting the morals of a minor. Although the victim’s
testimony is directly in conflict with [Appellant’s] testimony, which
was simply a staunch denial of all allegations, it is the jury’s
responsibility to resolve such conflicts, and they are free to believe
some, all, or none of the testimony they hear. In this case, the
jury weighed the conflicting evidence and found that the victim
was telling the truth.
As discussed above, we are not to disturb the jury’s verdict
unless the weight of the evidence is “so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from
the combined circumstances.” [Appellant’s] theory of the case,
as recounted by his counsel in her competent closing argument,
is simply that he is not guilty. For reasons unknown, the victim is
not telling the truth. The jury was then asked to consider some
few discrepancies in her testimony and find that reasonable doubt
existed. The jury, after having been presented with these
discrepancies, still found proof beyond a reasonable doubt to
convict. The bar [Appellant] must overcome in order to overturn
the jury’s verdict is extremely high, and [Appellant] cannot meet
it with the mere existence of discrepancies in witness testimony
alone.
We note that the discrepancies to which [Appellant] pointed
were not insignificant. Aside from the fact that the victim waited
many years before making an official disclosure about the
incident, there were several aspects of her trial testimony which
differed from her forensic interview. [Appellant’s] counsel pointed
out each of these discrepancies in her closing argument-the victim
had not stated in her forensic interview that the incident had
occurred on her birthday, nor had she mentioned [Appellant]
closing her bedroom door, nor had she claimed [Appellant] had
pinned her to the floor. Nevertheless, the jury believed the
victim’s testimony, as they are free to do as finders of fact.
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Furthermore, we would be remiss not to mention that the
victim’s testimony was bolstered by corroborating testimony from
her mother, who testified about an unusual incident in which she
discovered [Appellant] lying in the victim’s bed with her while she
was crying in the middle of the night. This incident occurred
during a brief period where [Appellant] was staying with the
victim’s family approximately a year or two before the victim’s
sixth birthday, and her parents found the incident alarming
enough to insist that [Appellant] leave the residence within two
weeks.[7]
It is clear, given the testimony, that the jury’s verdict of
guilty on all charges in this case is fully supported by competent
and sufficient evidence beyond a reasonable doubt. Furthermore,
[Appellant] has failed to meet his burden to show that the
evidence in this case was so weak and inconclusive that we must
overturn the jury’s verdict as a matter of law. For these reasons,
[Appellant’s] first right Post Sentence Motions shall be denied.
Trial Court Opinion and Order of Court, filed 11/18/21, at 4-6 (citations to
testimony omitted, emphasis in original).
Upon our review of the entire record, we agree that viewed in the light
most favorable to the Commonwealth as verdict-winner, the testimonial
evidence presented to the jury sitting as the fact-finder and examining the
evidence in its totality at trial would have been sufficient to sustain Appellant's
convictions. See Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.
2011).
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7 H.J., A.J.’s mother, also testified that in addition to “self-isolating” in her
room, A.J. began “cutting herself” which prompted H.J. to seek counseling for
A.J. A.J. has few friends and does not engage in social activities with peers.
When she goes to the grocery store with H.J., A.J. “is on guard all the time,
looking around, evaluating.” N.T. Trial, 10/23/20, at 49-51.
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Significantly, the Pennsylvania Supreme Court has found that digital
penetration of the vagina is sufficient evidence to support a conviction for
aggravated indecent assault. Commonwealth v. Kelley, 569 Pa. 179, 190– 191,801 A.2d 551
, 557–558 (2002). Moreover, in Commonwealth v. Filer,846 A.2d 139
, 141–42 (Pa.Super. 2004) this Court determined the victim’s testimony that the appellant had digitally penetrated her vagina was sufficient for a jury to find the appellant guilty of aggravated indecent assault, corruption of minors and indecent assault although the appellant’s version of events differed from that of victim. See also Commonwealth v. Davis,437 Pa.Super. 471
,650 A.2d 452
, 455 (Pa.Super. 1994) (generally stating
uncorroborated testimony of a victim, if believed by the trier of fact, is
sufficient to convict a defendant, despite evidence from a defense witness).
Thus, A.J.’s trial testimony alone, that Appellant pushed her to the ground,
took off her shirt, and digitally penetrated her vagina when she was six or
seven years old, is sufficient to support each of the guilty verdicts in this case.
Indeed, Appellant admits that A.J.’s testimony was presented in support
of the charged crimes, but he characterizes it as the “only testimony” which
was at times suspect in light of certain contradictions. However, as the trial
court acknowledges, the inconsistencies in the testimonial evidence about
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which Appellant argues were for the jury to resolve and do not dictate a finding
the evidence was not sufficient for conviction. 8
In so arguing, Appellant challenges the credibility of A.J.’s testimony as
presented at trial and asks this Court to usurp the duty of the jury as factfinder
and reassess the credibility of the witnesses and reweigh the evidence in
hopes of reaching a different conclusion. It is not for this Court to undertake
such an exercise. See Kaur v. Singh, 259 A.3d 505, 509 (Pa.Super. 2021)
(stating that, “this Court will defer to the credibility determinations of the trial
court as to witnesses who appeared before it[, and it] is well-settled that 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”
(citation and original quotation marks omitted)).
Appellant next asserts, as he did in his concise statement, that the
“guilty verdict was against the weight of the evidence presented” at trial.
(emphasis added). For the reasons that follow, we find Appellant has waived
this claim.
____________________________________________
8 In addition to recounting for the jury the incident that led to the charges
brought against Appellant, A.J. testified she has been affected mentally in the
years that have followed. She receives regular counseling due to the
flashbacks and suicidal thoughts she regularly experiences. N.T. Trial,
10/23/20, at 35. A.J. has seen Appellant only a few times since the day of
the party, and she did not tell anyone about the incident until she was in
seventh grade for fear that Appellant would “do it again” “except worse.” Id.
at 34, 44.
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Initially, the following legal principles apply when a challenge to the
weight of the evidence supporting a conviction is presented to the trial court:
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is against
the weight of the evidence do not sit as the thirteenth juror.
Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice.
Commonwealth v. Widmer, 560 Pa. 308, 319-20,744 A.2d 745
, 751-52 (2000) (citations, footnotes and quotation marks omitted). Thus, to allow an appellant “to prevail on a challenge to the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the [trial] court.” Commonwealth v. Talbert,129 A.3d 536
,
545 (Pa.Super. 2016) (internal citation omitted).
An appellate court’s standard of review when presented with a weight
of the evidence claim is distinct from the standard of review applied by the
trial court:
Appellate 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. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
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appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Clay, 619 Pa. 423,64 A.3d 1049
, 1055 (2013) (emphasis
in original).
A challenge to the weight of the evidence must be preserved by a motion
for a new trial. Pennsylvania Rule of Criminal Procedure 607 provides:
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).
“An appellant's failure to avail himself of any of the prescribed methods
for presenting a weight of the evidence issue to the trial court constitutes
waiver of that claim.” Commonwealth v. Weir, 201 A.3d 163, 167 (Pa.Super. 2018), aff'd, ––– Pa. ––––,239 A.3d 25
(2020). See also
Pa.R.Crim.P. 607, Comment (stating: “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”).
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Here, while Appellant preserved the weight claim by raising it in a post-
sentence motion, he has waived this issue for failing to properly preserve it in
his concise statement. Therein, Appellant stated the following: “Whether the
guilty verdict following [Appellant’s] jury trial was against the weight of the
evidence presented.” See Concise Statement of Matters Complained of on
Appeal at 4 (unnumbered) (emphasis added). In the “argument” following
that statement, Appellant refers generally to the “jury’s verdict” as shocking
to an observer’s sense of justice in light of discrepancies in A.J.’s testimony
presented at trial and that given during her forensic interview. Id. at 4-5
(unnumbered) (emphasis added).
In order to preserve a challenge to either the sufficiency or weight of
the evidence on appeal, an appellant's Rule 1925(b) concise statement must
state with specificity the elements or verdicts for which the appellant alleges
that the evidence was insufficient or against the weight of the evidence. See
Commonwealth v. Freeman, 128 A.3d 1231, 1248-49 (Pa.Super. 2015)
(finding waiver of appellant's sufficiency and weight challenges where the
Pa.R.A.P. 1925 statement was too vague to permit the court to identify (1)
which crimes, or the elements of any crimes, that the Commonwealth
allegedly failed to prove beyond a reasonable doubt; or (2) which verdicts
were contrary to the weight of the evidence, and the specific reasons why the
verdicts were contrary to the weight of the evidence). Such specificity is of
particular importance in cases where, as herein, Appellant was convicted of
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multiple crimes, each of which contains elements that the Commonwealth
must prove beyond a reasonable doubt. This is so even where the trial court
issued an opinion addressing the substance of the claim. Commonwealth
Parrish, 224 A.3d 682, 700 (Pa. 2020).
Appellant did not specify in his concise statement which of the four
convictions he believes were against the weight of the evidence. Therefore,
in light of the foregoing, we find this issue is waived.9
Accordingly, we affirm the judgment of sentence.10
____________________________________________
9 Even if Appellant had properly preserved this issue, we would discern no
abuse of discretion by the trial court in determining that the jury's verdict of
guilt on all charges did not shock the judicial conscience. The jury was free to
believe A.J.’s testimony and to reject the version of events proffered by
Appellant during his testimony in his own defense. The trial court was not
required nor permitted to re-weigh A.J.’s credibility, and it did not do so.
Moreover, the court determined the jury’s verdict was “not so shocking to an
observer’s sense of justice such that Appellant should be awarded new trial.”
Opinion sur Pa.R.App.P. 1925(a), filed 12/20/21, at 2. The court further found
“[Appellant] has failed to meet his burden to show that the evidence in this
case was so weak and inconclusive that [the court] must overturn the jury’s
verdict as a matter of law.” Accordingly, Appellant’s weight challenge would
not entitle him to relief. Trial Court Opinion and Order of Court, filed 11/18/21,
at 6.
10See Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa.Super. 2013)
(“This Court is not bound by the rationale of the trial court, and we may affirm
the trial court on any basis.”).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2022
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