Com. v. Lemmon, A.

J-S28021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE LEMMON SR :
:
Appellant : No. 2753 EDA 2019
Appeal from the Judgment of Sentence Entered April 29, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000499-2018
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 12, 2022
Appellant, Andre Lemmon Sr., appeals from the Judgment of Sentence
entered on April 29, 2019, in the Court of Common Pleas of Philadelphia
County after a jury convicted him of multiple counts of sex crimes committed
against his minor stepdaughter. Appellant challenges the sufficiency of the
evidence to convict him of Involuntary Deviate Sexual Intercourse (“IDSI”)
with a Child and the discretionary aspects of his sentence. After careful review,
we affirm.
For approximately five years, Appellant perpetrated repeated acts of
sexual abuse against A.J., his minor stepdaughter, and N.L., his minor
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* Retired Senior Judge assigned to the Superior Court.
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biological daughter.1 The present appeal involves Appellant’s abuse of A.J. As
a result of the abuse, the Commonwealth charged Appellant with Rape by
Forcible Compulsion, Rape of a Child, IDSI by Forcible Compulsion, IDSI of a
Child, Aggravated Indecent Assault of a Child, Unlawful Contact with a Minor,
and Endangering the Welfare of Children.2
Appellant’s jury trial began on February 21, 2019. The Commonwealth
presented the testimony of A.J., Appellant’s other victim N.L., Appellant’s
minor son A.L., the victims’ mother Sheron Jones, Special Victims Unit
Detectives Pete Marcellino and Patricia Eberhart, Philadelphia Children’s
Alliance forensic interviewer Carolina Castano, and child abuse pediatrician Dr.
Marita Lind. The evidence showed that Appellant began abusing A.J. in 2010
or 2011, when she was eleven or twelve years old. Appellant performed oral
and vaginal sex on A.J., and digitally penetrated her vagina.
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1 The Commonwealth’s case against Appellant for his abuse of A.J. is docketed
at CP-51-CR-000499-2018. The Commonwealth’s case against Appellant for
abuse of N.L. is docketed at CP-51-CR-000517-2018. The trial court
consolidated these cases for trial. In this Court, Appellant filed separate
appeals of each case, each with its own briefs and distinct arguments. We
address these appeals separately. Appellant’s appeal of the case involving N.L.
is docketed in the Superior Court at 2803 EDA 2019.
2 18 Pa.C.S. §§ 3121(a)(1), 3121(c), 3123(a)(1), 3123(b), 3125(b),
6318(a)(1), and 4304(a)(1), respectively.
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On February 25, 2019, a jury convicted Appellant of the above crimes.
On April 29, 2019, the court sentenced Appellant to an aggregate term of 20
to 40 years’ incarceration.3
Appellant timely filed a post-sentence motion on May 1, 2019,
challenging the court’s exercise of sentencing discretion. The court did not rule
on Appellant’s motion and, therefore, denied it by operation of law on August
29, 2019.4
Appellant timely filed a Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Was the evidence insufficient to prove [Appellant] guilty of
[IDSI] with a Child where the Commonwealth failed to prove that
A.J. was less than 13 years of age at the time of the deviate sexual
intercourse?
2. Did the trial court abuse its discretion in imposing a sentence
that is manifestly excessive and unreasonable?
Appellant’s Br. at 5.
In his first issue, Appellant challenges the sufficiency of the
Commonwealth’s evidence to convict him of IDSI with a Child. Our standard
of review applicable to challenges to the sufficiency of evidence is well settled:
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3 Additionally, at docket number 517-2018, the court sentenced Appellant to
serve a term of 9½ to 19 years’ incarceration for crimes committed against
N.L., to be served consecutively to the sentence imposed in the instant case.
Appellant’s total aggregate sentence is, therefore, 29½ to 59 years’
incarceration.
4Pa.R.Crim.P. 720(B)(3)(a) (“If the judge fails to decide the motion within
120 days, . . . the motion shall be deemed denied by operation of law.”).
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“Viewing the evidence in the light most favorable to the Commonwealth as
the verdict winner, and taking all reasonable inferences in favor of the
Commonwealth, the reviewing court must determine whether the evidence
supports the fact-finder’s determination of all of the elements of the crime
beyond a reasonable doubt.” Commonwealth v. Hall, 830 A.2d 537, 541-42
(Pa. 2003). Circumstantial evidence is sufficient to sustain a conviction, and
the trier of fact—while passing on the credibility of the witnesses and the
weight of the evidence—is free to believe all, part, or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014). In
conducting this review, the appellate court may not weigh the evidence and
substitute its judgment for that of the fact-finder. Id.Finally, although a conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not establish guilt to a
mathematical certainty.” Commonwealth v. Brunson, 938 A.2d 1057, 1058
(Pa. Super. 2007) (citation omitted). “[T]he facts and circumstances
established by the Commonwealth need not preclude every possibility of
innocence.” Commonwealth v. Orr, 38 A.3d 868, 872 (Pa. Super. 2011)
(citations omitted). “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.” Id. (citations and emphasis omitted).
Appellant’s challenge relates to his conviction for IDSI with a Child. A
person commits IDSI with a Child “when the person engages in deviate sexual
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intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S.
§ 3123(b). “Deviate sexual intercourse” includes intercourse by oral or anal
sex. Id. at § 3101.
Appellant asserts that the Commonwealth’s evidence was insufficient to
prove that A.J. was less than 13 years old when Appellant perpetrated deviate
sexual intercourse on her. Appellant’s Br. at 10-11. He argues that, although
A.J. testified that Appellant began to sexually abuse her at age eleven or
twelve, she did not testify to any specific acts of deviate sexual intercourse
that occurred before she turned 13 years old. Id.
The trial court found the Commonwealth’s evidence sufficient to prove
that Appellant committed IDSI with a Child. Trial Ct. Op., 8/14/20, at 8-10.
In support, it referenced A.J.’s testimony that Appellant performed oral sex
on her in his house on Silver Street. Id. Other testimony established that
Appellant lived on Silver Street in 2012 or 2013. Id. The court recognized that
A.J. was born in November 1999 and, therefore, turned 13 years old in
November 2012. Id. at 4, 9-10. It, thus, reasoned that “A.J. was twelve years
old for the majority of the year of 2012 [and, therefore, v]iewing all of the
evidence admitted at trial in the light most favorable to the Commonwealth,
the evidence was clearly sufficient for the fact finder to conclude that each
element of IDSI with a child was proven beyond a reasonable doubt.” Id. at
10.
The record supports the trial court’s finding. In addition to A.J.’s
testimony that she was born in November 1999 and that Appellant performed
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oral sex on her when he lived on Silver Street, N.L. testified that she was born
in June 2003 and that she was 9 or 10 years old when Appellant lived on Silver
Street. N.T. Trial, 2/21/19, at 57, 81, 103, 107. Based on this testimony, it
was reasonable for the jury to conclude that Appellant lived on Silver Street
in either 2012 or 2013, and that A.J. was less than 13 years old when
Appellant sexually abused her in his Silver Street residence.
That the evidence does not preclude the possibility that the oral sex
occurred in 2013, when A.J. was 13 years old, is not grounds for reversal, as
it is the jury’s sole province as fact-finder to resolve doubts regarding a
defendant’s guilt. It is not our role to reweigh this evidence. Based on our
review of the record, we conclude that the evidence is not “so weak and
inconclusive that as a matter of law no probability of fact may be drawn from
the combined circumstances.” Orr, 38 A.3d at 872. As a result, we will not
disturb the jury’s verdict.
In his second issue, Appellant challenges the sentencing court’s exercise
of discretion. See Appellant’s Br. at 5. A defect in Appellant’s brief precludes
our review.
Our Rules of Appellate Procedure unequivocally require that an appellant
support each question he or she raises with discussion and analysis of
pertinent authority. See Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009). See also Pa.R.A.P. 2111 and 2119 (listing argument requirements
for appellate briefs). “[W]here an appellate brief fails to provide any discussion
of a claim with citation to relevant authority or fails to develop the issue in
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any other meaningful fashion capable of review, that claim is waived.”
Johnson, supra at 924. See Pa.R.A.P. 2101 (explaining that substantial
briefing defects may result in dismissal of appeal).
Our rules likewise require that an appellant include in his or her
statement of questions involved every issue he or she wishes for this court to
review. See Pa.R.A.P. 2116(a). This Court will not consider any issue “unless
it is stated in the statement of questions involved or is fairly suggested
thereby.” Id. This rule applies with equal force to challenges to the
discretionary aspects of sentence. Pa.R.A.P. 2116(b) (stating that an appellant
challenging the discretionary aspects of sentence must comply with Rule
2116(a) or suffer waiver).
In his statement of questions involved, Appellant asserts that the
sentencing court abused its discretion by imposing “a sentence that is
manifestly excessive and unreasonable.” Appellant’s Br. at 5. In the argument
section of his brief supporting this issue, however, Appellant provides only a
single, conclusory statement that his sentence is manifestly excessive and
unreasonable. Appellant’s Br. at 13. He fails to develop his assertion with any
discussion or citation to case law. See id. As a result, Appellant has waived
the issue that his sentence is “manifestly excessive and unreasonable.”5
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5Even if Appellant had developed this issue in his brief, we would nonetheless
conclude that it is waived because he did not raise it at sentencing or in his
post-sentence motion. See Commonwealth v. Moury, 992 A.2d 162, 170
(Pa. Super. 2010) (explaining that to preserve a challenge to the sentencing
court’s exercise of discretion, the appellant must, inter alia, raise the issue at
sentencing or in a post-sentence motion and in a Rule 2119(f) Statement).
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Similarly, Appellant argues in his brief that the sentencing court abused
its discretion by failing to adequately explain its sentencing rationale on the
record. Id. at 12-13. This argument implicates an issue that is qualitatively
different from the issue Appellant raised in his statement of questions involved
and we cannot conclude that it is “fairly suggested thereby.” Pa.R.A.P. 2116.
As a result, this argument is also waived.6
Having found no merit to Appellant’s sufficiency challenge and waiver of
his sentencing challenge, we affirm Appellant’s judgment of sentence.
Judgment of Sentence affirmed.
Judge Pellegrini joins the memorandum.
Judge Bowes concurs in result.
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6 Even if not waived, we would conclude that this claim is without merit. The
court sentenced Appellant to 10 to 20 years’ incarceration, above the
guidelines but within the statutory maximum for IDSI by Forcible Compulsion.
See 18 Pa.C. § 1103; 204 Pa. Code §§ 303.15 and 303.16(a). At sentencing,
the court affirmed that it had reviewed Appellant’s presentence investigation
report, and it incorporated as its reasoning the lengthy recitation given by the
Commonwealth for an upward departure from the sentencing guidelines. See
N.T. Sentencing, 4/29/19, at 11-14, 21. The court likewise affirmed its
consideration of mitigating factors provided in argument by Appellant’s
counsel. Id. at 5-10, 21. Thus, contrary to Appellant’s claim, the record
reflects the court’s rationale for its upward departure from the sentencing
guidelines. See Commonwealth v. McLaine, 150 A.3d 70, 76-77 (Pa. Super.
2016) (recognizing that, when sentencing above guidelines, the record must
reflect the court’s rationale); 42 Pa.C.S. § 9781(c) (requiring appellate court
to affirm sentence above guidelines unless “the sentence is unreasonable.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2022
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