Com. v. Thomas, O., III

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
OTIS ADAM THOMAS III
Appellant No. 1092 MDA 2017
Appeal from the Judgment of Sentence imposed May 17, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0005913-2015
BEFORE: STABILE, J., MCLAUGHLIN, J. and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: MARCH 10, 2022
Appellant, Otis Adam Thomas III, appeals from his judgment of
sentence of 48-96 months’ imprisonment plus five years’ consecutive
probation for unlawful contact with a minor, indecent assault of a child,
corruption of minors and endangering the welfare of children.1 The record
indicates that the minor complainant, K.E., reported Appellant’s acts to a
therapist at Cornerstone Counseling, PC (“Cornerstone”) in Harrisburg.
Previously, we remanded this case to the trial court (while continuing to retain
jurisdiction) for in camera review of whether Cornerstone’s records are
privileged under the psychiatrist-patient privilege, 42 Pa.C.S.A. § 5944, and
the sexual assault counselor privilege, 42 Pa.C.S.A. § 5945.1. On remand,
the trial court concluded that some of the records were privileged and some
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1 18 Pa.C.S.A. §§ 6318, 3126, 6301, and 4304, respectively.
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were not, but nothing in the non-privileged records entitled Appellant to relief.
We affirm.
The trial court summarized the evidence adduced during trial as follows:
At the time of trial, K.E.[] was 14 years old and lived with her
grandparents. Before moving to her grandparent[s’] home, K.E.
lived with her mother, [Appellant] and her younger brother. K.E.
testified that she spent most of her time in her bedroom to avoid
her mother and [Appellant], her stepfather, yelling at her. She
testified that family members in the household rarely spoke to
each other.
K.E. recalled that the sexual contact by [Appellant] began when
she was ten years old. She recalled being perplexed upon
awakening one morning to find that all of her clothes had been
removed. Following that incident, [Appellant] began grabbing or
smacking her behind or touching her breast on top of her clothes
when she passed him in the hallway of the home. [Appellant]’s
sexual contact with K.E. would occur in the family room, where he
would summon her by text and tell her to sit on his lap.
[Appellant] removed K.E.’s clothes, touched her breasts and
buttocks, and digitally penetrated her vagina. K.E. testified that
[Appellant] touched her breast and vagina with his mouth. K.E.
testified that [Appellant] touched her vagina with his mouth on
more than one occasion, sometimes in her bedroom and
sometimes in her parents’ bedroom. The contact occurred daily
or every other day, typically when her mother was either sleeping,
in the shower or outside the home. K.E. recalled an incident which
occurred while her mother was in the shower when [Appellant]
had K.E. sit on his lap on her bunkbed, with his boxer shorts pulled
down. K.E. lifted herself up, by hanging onto the wood rail of the
bed, to attempt to avoid contact with [Appellant]’s penis.
[Appellant] left the room when K.E.’s mother got out of the
shower.
K.E. testified that she did not tell anyone of the abuse because
she did not think anyone would believe her and because she
viewed [Appellant] as a father figure from whom she wanted love.
Although [Appellant] required K.E. to stay in her room most of the
time, he increasingly allowed her out of her room to take her
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shopping, out to eat or on his boat. [Appellant] occasionally told
K.E. that he loved her.
K.E.’s mother, Laura Thomas[,] testified that in 2009, following
the birth of K.E.’s brother, problems arose in the marriage. Ms.
Thomas testified that she suffered postpartum depression and had
difficulty caring for the children. Ms. Thomas testified that
[Appellant] was rarely home to help. In 2014, Ms. Thomas
learned that [Appellant] was having an affair.
In late September 2015, K.E. disclosed the abuse to a staff
member at her school. Ms. Thomas received contact by either the
police or Children and Youth Services. On September 29, 2015,
the Lower Paxton Township Police Department received a report
of child abuse and sexual assault of a victim, K.E. Police obtained
authorization to conduct a one-party consent electronic intercept.
With the consent of her grandmother, with whom she was living,
K.E. agreed to participate. In a series of text messages, K.E.
texted [Appellant] at the direction of detectives. K.E. asked
[Appellant] to explain why he [had] touched her that way, to
which [Appellant] responded, “I should not have done anything
that made you uncomfortable. There’s no explanation for it. I
understand that it is hard to ask feeling this way (sic). I should
not have done anything to make this happen. You did nothing
wrong!” In another message, [Appellant] stated, “I am sorry that
this happened. Cannot express that enough.” [Appellant] also
stated, “You’re fine. Nothing will happen again. You have my
word” and “I do love you and want to make this better for you.
There is no explanation I can give, so I need to know how to make
this better for you.” The intercept concluded at 11:30 p.m. on
September 30, 2015. Police arrested [Appellant] the following
evening.
When questioned by police, although [Appellant] initially
expressed shock at the allegations, he proceeded to make
admissions. [Appellant] admitted that he touched K.E.’s breasts
and buttocks on top of her clothing and that when he walked into
K.E.’s room and saw her in her underwear, “it made his mind
wander.” [Appellant] admitted that while Ms. Thomas was in the
shower, he touched K.E.’s bare breasts and vagina. He admitted
to putting his mouth on K.E.’s breast and vagina and having her
sit on his lap. [Appellant] told police that the touching occurred
in K.E.’s bedroom or the living room while Ms. Thomas was in the
shower. [Appellant] stated that K.E. was 11 years old at the time.
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At one point during the interview, [Appellant] told police that he
felt like he was going to be sick, that he was sorry for what he had
done, and thought many times about “putting a gun in [his]
mouth.”
Following his arrest, [Appellant] texted Ms. Thomas to ask her to
post bail for him and if they could reconcile. In those text
messages, [Appellant] did not state that the abuse of which he
was accused did not occur. In one text to Ms. Thomas, [Appellant]
stated, referring to K.E., “she doesn’t want to hurt a fly, but she
wanted to get this off her shoulders.”
[Appellant] testified that the admissions made to police were
taken out of context and that he made them because he feared
ramifications if he did not agree with them.
Trial Court Opinion, 12/19/18, at 3-6.
On November 22, 2015, Appellant was charged with committing sexual
offenses against K.E. Prior to trial, Appellant filed a petition seeking
Cornerstone’s records relating to K.E.’s grandmother’s communications with
Cornerstone and all diagnoses, opinions, evaluations, observations, and
treatment plans relating to K.E. In response, the Commonwealth asserted
that Cornerstone’s records were privileged under the psychiatrist-patient
privilege under Section 5944 and the sexual assault counselor privilege under
Section 5945.1. In an order dated September 29, 2016, the trial court denied
Appellant’s petition.
On February 13, 2017, following a three-day trial, the jury found
Appellant guilty of the above-mentioned offenses and not guilty of indecent
exposure, attempted rape, involuntary deviate sexual intercourse, and
aggravated indecent assault. The trial court subsequently imposed sentence,
and Appellant filed timely post-sentence motions challenging the weight of the
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evidence and the imposition of consecutive sentences, which the court denied
in an order docketed on June 7, 2017.
Appellant filed a timely notice of appeal. On July 14, 2017, the trial
court ordered Appellant to file a Pa.R.A.P. 1925 statement within 21 days, but
Appellant did not file a Rule 1925 statement until October 11, 2017. In the
pro se Rule 1925 statement, Appellant argued that the court abused its
discretion by denying his motion for disclosure of Cornerstone’s records,
denying his challenge to the weight of the evidence, and imposing consecutive
sentences on Appellant’s counts of conviction.
On October 16, 2017, Appellant’s attorney filed a petition for leave to
submit his Rule 1925 statement nunc pro tunc. Counsel stated that he had
drafted a Rule 1925 statement but admitted that his staff failed to file it. On
October 17, 2017, without ruling on the attorney’s petition, the trial court
issued a Rule 1925(a) opinion recommending dismissal of Appellant’s appeal
for lack of a timely Rule 1925(b) statement. The trial court did not address
the merits of any issue in Appellant’s pro se Rule 1925(b) statement.
On November 27, 2017, Appellant filed his brief and reproduced record
in this appeal. By memorandum of September 18, 2018, we remanded with
instructions for the trial court to accept Appellant’s Rule 1925(b) statement
nunc pro tunc and to file a Rule 1925(a) opinion addressing the issues in
Appellant’s statement.
On December 19, 2018, the trial court filed its opinion. Without
reviewing the Cornerstone documents in camera, the court contended that it
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properly denied Appellant’s pretrial motion seeking their disclosure. The court
also claimed that Appellant waived his challenge to the weight of the evidence
due to the vagueness of his October 11, 2017 Rule 1925 statement. Finally,
the court reasoned that its sentence was a proper exercise of discretion.
In his first argument on appeal, Appellant contended that the trial court
erred by denying his request for disclosure of records held by Cornerstone
Counseling concerning Cornerstone’s communications with K.E.’s
grandmother and its diagnoses, opinions, evaluations, observations, and
treatment plans relating to K.E. Appellant argued that these records fell
outside the scope of Pennsylvania’s psychiatrist-patient privilege, 42 Pa.C.S.A.
§ 5944, and the sexual assault counselor privilege, 42 Pa.C.S.A. § 5945.1. On
October 6, 2021, pursuant to Fisher v. Erie Insurance Exchange, 258 A.3d
451 (Pa. Super. 2021) (en banc), we remanded this case for in camera review
by the trial court whether these records were privileged under Sections 5944
and 5945.1. See Commonwealth v. Thomas, —A.3d—, 2021 WL 4593819,
*5-9 (Pa. Super. Oct. 6, 2021) (unpublished memorandum). Our order
directed that either party could file a Rule 1925 statement within 21 days after
the court’s decision.
On November 29, 2021, following in camera review, the trial court
entered detailed findings of fact and conclusions of law in which it held that
most of Cornerstone’s records were privileged, and that none of the non-
privileged material entitled Appellant to relief.
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Appellant did not file a Rule 1925(b) statement within 21 days after the
court’s decision. On December 29, 2021, the trial court filed a Rule 1925(a)
opinion stating that neither Appellant nor the Commonwealth filed a Rule 1925
statement within 21 days, and therefore no further analysis was necessary
beyond its November 29, 2021 decision. Nine days later, on January 7, 2022,
Appellant filed an untimely Rule 1925(b) statement. The Rules of Appellate
Procedure do not address this precise situation. The closest that the Rules
come to addressing these circumstances is Rule 1925(c)(1), which provides
that when an appellant in a criminal case is ordered to file a Rule 1925
statement and fails to do so, such that the appellate court is convinced that
counsel has been per se ineffective, the appellate court shall remand the case
for the filing of a Rule 1925 statement nunc pro tunc and the filing of an
opinion by the judge. Under the present circumstances, we find a remand
unnecessary, since (1) Appellant ultimately filed an untimely Rule 1925
statement, (2) the trial court filed a Rule 1925 opinion on December 29, 2021,
(3) the Rule 1925 opinion incorporated by reference the court’s November 29,
2021 decision on the privilege issue, and (4) the November 29, 2021 decision
is sufficiently detailed to facilitate appellate review of the privilege issue.
Accordingly, we will proceed to the merits of this appeal.
Appellant raises the following issues in his November 27, 2017 brief:
A. Did the trial court err by denying the defense request for an in
camera review and the disclosure of relevant diagnoses, opinions,
evaluations, observations, and treatment plans that were not
confidential communications protected from disclosure by 42
Pa.C.S.A. § 5944[?]
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B. Did the trial court err in denying [A]ppellant’s motion for a new
trial when the jury’s verdict was against the weight of the evidence
because the Commonwealth failed to meet its burden to sustain
the alleged charges?
C. Did the trial court abuse its discretion when it imposed
consecutive sentences where [A]ppellant’s conduct was limited to
a single incident and not so egregious as to warrant a four to eight
(4-8) year sentence?
D. Did the trial court err in denying [A]ppellant’s request to submit
a concise statement of matters nunc pro tunc?2
Appellant’s Brief at 9.
Appellant’s first argument concerns whether the trial court properly
denied his request for Cornerstone’s records on the basis of privileges in
Sections 5944 and 5945.1. “Pennsylvania law does not favor evidentiary
privileges.” In re Subpoena No. 22, 709 A.2d 385, 388 (Pa. Super. 1998).
“Thus, courts should accept testimonial privileges only to the very limited
extent that permitting a refusal to testify or excluding relevant evidence has
a public good transcending the normally predominant principle of utilizing all
rational means for ascertaining the truth.” Commonwealth v. Stewart, 690
A.2d 195, 197 (Pa. 1997).
A sexual offense defendant’s entitlement to an alleged victim’s records
held by an agency, hospital, rape crisis center or other third party depends
upon the scope of any privilege that may protect the confidentiality of the
victim’s records. Commonwealth v. Eck, 605 A.2d 1248, 1251 (Pa. Super.
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2 This issue is moot because this Court permitted Appellant to file a Rule 1925
statement nunc pro tunc in its order dated September 18, 2018.
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1992). In the case of statutory privileges such as Sections 5944 and 5945.1,
the scope of the privilege rests upon the language of the statute. Id. at 1252.
“Generally, in reviewing the propriety of a discovery order, our standard of
review is whether the trial court committed an abuse of discretion. However,
to the extent that appellate courts are faced with questions of law, [our] scope
of review is plenary.” Gormley v. Edgar, 995 A.2d 1197, 1202 (Pa. Super.
2010).
The party asserting privilege against discovery of requested materials
bears the burden of proof of demonstrating that the materials are protected
from disclosure. Fisher, 258 A.3d at 461. The party invoking a privilege
must initially set forth facts showing that the privilege has been properly
invoked. Id. Once the invoking party has made the appropriate proffer, the
burden shifts to the party seeking disclosure to set forth facts showing that
disclosure should be compelled either because the privilege has been waived
or because an exception to the privilege applies. Id. If the party asserting
the privilege does not produce sufficient facts to show that the privilege was
properly invoked, the burden never shifts to the other party, and the material
is not deemed privileged. Id.
42 Pa.C.S.A. § 5944, the psychotherapist-patient privilege, provides:
No psychiatrist or person who has been licensed under the Act of
March 23, 1972 (P.L. 136, No. 52) to practice psychology shall be,
without the written consent of his client, examined in any civil or
criminal matter as to any information acquired in the course of his
professional services on behalf of such client. The confidential
relationship and communications between a psychologist or
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psychiatrist and his client shall be on the same basis as those
provided or prescribed by law between an attorney and client.
Id. The purpose of this privilege is to “protect confidential communications
made and information given by the client to the psychotherapist in the course
of treatment.” Farrell v. Regola, 150 A.3d 87, 97-98 (Pa. Super. 2016); see
also Gormley v. Edgar, 995 A.2d 1197, 1204 (Pa. Super. 2010) (privilege
“aid[s] in the effective treatment of the client by encouraging the patient to
disclose information fully and freely without fear of public disclosure”).
The psychotherapist-patient privilege applies only to “information
acquired in the course of [the psychiatrist’s or psychologist’s] professional
services on behalf of [the] client.” 42 Pa.C.S.A. § 5944. The privilege applies
not only to communications with the therapist but also to communications
with other individuals on the patient’s treatment team who are not themselves
psychotherapists. Commonwealth v. Cook, 231 A.3d 913, 922 (Pa. Super.
2020). Furthermore, under Section 5944’s second sentence, any exceptions
that apply to the attorney-client privilege also apply to the
psychiatrist/psychologist-patient privilege. For example, any communications
between the patient and the therapist are not privileged if they are made in
the presence of third persons who are not part of the patient’s treatment team.
Cf. Commonwealth v. Mrozek, 657 A.2d 997, 998 (Pa. Super. 1995) (for
attorney-client privilege to apply, communication must relate to facts of which
attorney was informed by his client, without presence of strangers, for
purpose of securing either an opinion of law, legal services, or assistance in a
legal matter).
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Section 5945.1, the sexual assault counselor privilege, provides in
relevant part:
(a) Definitions.- As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:
“Confidential communication.” All information, oral or written,
transmitted between a victim of sexual assault and a sexual
assault counselor in the course of their relationship, including, but
not limited to, any advice, reports, statistical data, memoranda,
working papers, records or the like, given or made during that
relationship, including matters transmitted between the victim
through the use of an interpreter.
“Rape crisis center.” Any office, institution or center offering
assistance to victims of sexual assault and their families through
crisis intervention, medical and legal accompaniment and follow-
up counseling.
“Sexual assault counselor.” A person who is engaged in any office,
institution or center defined as a rape crisis center under this
section, who has undergone 40 hours of sexual assault training
and is under the control of a direct services supervisor of a rape
crisis center, whose primary purpose is the rendering of advice,
counseling or assistance to victims of sexual assault.
“Victim.” A person who consults a sexual assault counselor for the
purpose of securing advice, counseling or assistance concerning a
mental, physical or emotional condition caused or reasonably
believed to be caused by a sexual assault. The term shall also
include those persons who have a significant relationship with a
victim of sexual assault and who seek advice, counseling or
assistance from a sexual assault counselor concerning a mental,
physical or emotional condition caused or reasonably believed to
be caused by a sexual assault of a victim.
(b) Privilege.-
(1) No sexual assault counselor may, without consent of the
victim, disclose the victim’s confidential oral or written
communications to the counselor nor consent to be examined in
any court or criminal proceeding.
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(2) No co-participant who is present during the counseling may
disclose a victim’s confidential communication made during the
counseling session nor consent to be examined in any civil or
criminal proceeding without the written consent of the victim.
42 Pa.C.S.A. § 5945.1.
Section 5945.1 prohibits disclosure of any “confidential oral or written
communication” transmitted between the “victim of sexual assault” and a
“sexual assault counselor” in the course of their relationship, absent the
victim’s consent. It is an absolute privilege that is not overcome even by the
constitutional rights of a criminal defendant. V.B.T. v. Family Services of
Western Pennsylvania, 705 A.2d 1325, 1329 (Pa. Super. 1998).
A “victim” is the person seeking consultation for a condition caused by,
or reasonably caused by, a sexual assault. 42 Pa.C.S.A. § 5945.1(a). Notably,
a “victim” also includes “those persons who have a significant relationship with
a victim of sexual assault” concerning a condition caused or reasonably
believed to be caused by a sexual assault of a victim. A “sexual assault
counselor” is an individual who has undergone the training required under the
statute and who is under the control of a direct services supervisor of a rape
crisis center. Id. A “rape crisis center” is “any office, institution or center
offering assistance to victims of sexual assault and their families through crisis
intervention, medical and legal accompaniment and follow-up counseling.”
Id.
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With this framework in place, we turn to the trial court’s decision that
most of the Cornerstone records sought by Appellant were privileged, and that
any non-privileged documents would not have changed the outcome of trial.
The trial court first addressed whether K.E.’s grandmother’s
communications with Cornerstone were privileged. Appellant asserted:
It has been brought to [Appellant’s] attention that the initial
disclosure of the alleged acts was made to a counselor during a
therapy session on September 28, 2015 at Cornerstone
Counseling, PC, 6011 Jonestown Road, Harrisburg, PA 17112
[Cornerstone]. The defense has a good faith basis to believe that
statements made to the therapist in that session and the records
contain prior statements of the complaining witness regarding the
alleged act. These statements are believed by the defense to
contain information related to the complaining witness[’s] motive
[to] fabricate the allegations and evidence of coaching by her
mother and grandmother. Further, the defense has recently
learned that the grandmother spent 4-5 hours with the counselor
prior to the session on 28 September when the accusation was
made.
Petition, ¶ 3. Following in camera review, the trial court determined that no
relief was due. In particular, the court found that (1) while K.E.’s grandmother
attended an initial intake meeting on September 26, 2015, it was impossible
to attribute any statements to her, (2) the sole statement during the intake
meeting that was tenuously attributable to K.E.’s grandmother merely
concerned K.E.’s negative perception of her mother, (3) K.E.’s grandmother
did not attend any other meetings at Cornerstone, and (4) there was no
evidence that K.E.’s grandmother, or any other person, attempted to coach
K.E. into fabricating evidence against Appellant. Findings of Fact and
Conclusions of Law (“Findings”), at 3-5. The court concluded that nothing was
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subject to disclosure because there was no information relevant to K.E.’s
motion to fabricate or evidence of coaching. Id. at 5. Furthermore, the court
held that even if there were any non-privileged communications by K.E.’s
grandmother, Appellant did not suffer prejudice from their non-disclosure,
because the other evidence of guilt was overwhelming, including K.E.’s
detailed description of abuse, Appellant’s apology during a telephone
conversation with K.E. for touching her the way he did, his admission that he
put his mouth on K.E.’s bare breasts and vagina, and his statement that he
thought many times of putting a gun in his mouth. Findings at 6. We agree
with the trial court’s determination of no prejudice. The record confirms the
trial court’s conclusion that the other evidence against Appellant was
overwhelming.
Appellant also sought Cornerstone records of diagnoses, opinions,
evaluations, observations, and treatment plans relating to K.E. Following in
camera review, the trial court held that all handwritten information in records
from K.E.’s meetings at Cornerstone on September 28, 2015, October 15, 23,
26, and 29, 2015, and November 2 and 9, 2015 were privileged under Sections
5944 and 5945.1, because they consisted of K.E.’s statements to a
psychologist and/or sexual assault counselor.3 Id. at 9. The court held that
certain items were not privileged, including (1) the typed portions of the
records on these dates by sexual assault counselors, (2) a discharge summary
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3 The court did not state whether the psychologist and sexual assault
counselor were the same individual or different individuals.
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on February 27, 2015, and (3) a November 5, 2015 meeting (because K.E.’s
mother attended the meeting along with K.E. Id. Ultimately, however, the
court ruled that Appellant did not suffer prejudice from non-disclosure of non-
privileged materials, because (once again) the other evidence against
Appellant was overwhelming. As we did above, we agree with the court’s
finding of no prejudice because the record supports its determination that the
other evidence against Appellant was overwhelming.
For these reasons, we hold that Appellant’s argument concerning the
Cornerstone records does not entitle him to relief.
In his next argument, Appellant challenges the weight of the evidence
adduced during trial. Appellant seeks a new trial on the ground that K.E.’s
testimony “was so inconsistent, contradictory, confusing, and unreliable that
the jury's verdict can only be said to have been based on conjecture and
surmise . . .” Appellant’s Brief at 33. In its December 19, 2018 opinion, the
trial court contended that Appellant waived his challenge to the weight of the
evidence due to the vagueness of his October 11, 2017 Rule 1925 statement.
We agree.
We begin by reciting the weight of the evidence claim in Appellant’s
post-sentence motions. There, he stated:
The Commonwealth rested primarily on the information provided
by the complaining witness whose testimony was so inconsistent,
contradictory, confusing, and unreliable that the jury’s verdict can
only be said to have been based on conjecture and surmise and
therefore, justice should be afforded another opportunity to
prevail. Further, the jury’s finding that there was not a continuing
course of conduct was directly inconsistent with the testimony of
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the complaining witness further undermining the weight of the
evidence.
Appellant’s Post-Sentence Motions, at ¶ 14.
In his Rule 1925 statement, Appellant recited the same claim with the
deletion of a phrase at the end of the first sentence:
The Commonwealth rested primarily on the information provided
by the complaining witness whose testimony was so inconsistent,
contradictory, confusing, and unreliable that the jury’s verdict can
only be said to have been based on conjecture and further, the
jury’s finding that there was not a continuing course of conduct
was directly inconsistent with the testimony of the complaining
witness further undermining the weight of the evidence.
Appellant’s Rule 1925 statement, at ¶ 1.
In his appellate brief, Appellant developed, to some extent, an argument
relating to the first half of the weight claim in his Rule 1925 statement.
Nothing in his brief related to the second half of his weight claim.
When a concise statement contains issues that are too vague for the
trial court to ascertain the nature of the claim to be raised on appeal, this
Court has found those issues waived. In Commonwealth v. Lord, 719 A.2d
306 (Pa. 1998), our Supreme Court held that issues not included in a Rule
1925(b) statement are deemed waived on appeal, reasoning:
The absence of a trial court opinion poses a substantial
impediment to meaningful and effective appellate review. Rule
1925 is intended to aid trial judges in identifying and focusing
upon those issues which the parties plan to raise on appeal. Rule
1925 is thus a crucial component of the appellate process.
Id. at 308. “When the trial court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.” Commonwealth v.
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Dowling, 778 A.2d 683, 686 (Pa. Super. 2001). “When an appellant fails
adequately to identify in a concise manner the issues sought to be pursued on
appeal, the trial court is impeded in its preparation of a legal analysis which is
pertinent to those issues.” Estate of Daubert, 757 A.2d 962, 963 (Pa. Super.
2000). “In other words, a Concise Statement which is too vague to allow the
court to identify the issues raised on appeal is the functional equivalent of no
Concise Statement at all.” Dowling, 778 A.2d at 686.
We find that two other decisions warrant further comparison to inform
our conclusion in this matter. In Commonwealth v. Seibert, 799 A.2d 54(Pa. Super. 2002), the defendant’s Rule 1925(b) statement “merely stated
that ‘[t]he verdict of the jury was against the weight of the credible evidence
as to all of the charges.’” Id. at 62. The trial court dismissed the defendant’s
weight claim summarily without addressing any specific weight of the evidence
issue. Based on the foregoing, this Court found the weight claim too vague
to permit review, even though he raised specific reasons in his brief as to how
the verdict was against the weight of the evidence. Id.More recently, in Commonwealth v. Rogers, 250 A.3d 1209 (Pa.
2021), a rape case involving three victims, the defendant claimed in his Rule
1925(b) statement:
The verdicts were so contrary to the weight of the evidence as to
shock one’s sense of justice, where [A.P.’s], [M.H.]’s and [C.B.]’s
testimony was vague, inconsistent and incredible. New trials
should have been granted in the interests of justice so that right
may prevail, as the fact finder's verdict based upon such
testimony was speculative and conjectural.
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Id. at 1223. Our Supreme Court concluded that this statement was not too
vague to permit review because the issue was “readily understandable from
context” because of the detailed multi-paragraph weight claim in the
defendant’s post-sentence motions that delineated the flaws in each victim’s
testimony.4 Id. at 1224.
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4 The Rogers defendant’s post-sentence motions stated in relevant part:
7. Petitioner contends that the testimony of [A.P.] was so
contradictory and inconsistent that the verdict was against the
weight of the evidence. [A.P.] gave two different accounts of how
she arrived at the location where she claimed to be assaulted, two
different locations where the assault occurred, two different
explanations for how she sustained her injuries, and inconsistent
testimony of how or when her property was lost or taken.
8. Petitioner likewise contends that the testimony of [M.H.] was
against the weight of the evidence. The testimony of [M.H.] was
incredible based on inconsistencies, her drug usage, and that [sic]
it generally made no sense. Petitioner contends that the
circumstances of how and when [M.H.] reported the incident
further call her credibility into question. ...
9. Petitioner contends that the evidence presented as to [C.B.]
was ... against the weight of the evidence. Petitioner concede[d]
that he had consensual sexual relations with [C.B.], which he
claimed was as a result of an agreement to commit prostitution,
but denied beating her. During her testimony, [C.B.] maintained
that she did not know her assailant and that their conversation
was limited prior to the assault. It is undisputed that [C.B.] was
“a little tipsy” celebrating her birthday, and lived a few blocks
away from the area of the physical assault. Petitioner spoke to
the police and testified that he told them her name, that it was
her birthday, that she had been drinking, and that the sexual
interaction happened not in an alley, but on a porch, in a location
that Petitioner contends was very close to [C.B.’s] home.
(Footnote Continued Next Page)
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The present case is more like Seibert than Rogers. As in Seibert, the
weight claim in Appellant’s Rule 1925 statement consists of generic assertions
and is devoid of specific detail. Unlike Rogers, Appellant’s weight claim does
not become readily understandable through review of his post-sentence
motions, because the weight claim in Appellant’s post-sentence motions is
virtually identical to his Rule 1925 statement. Thus, the trial court could only
guess at the contours of this claim when it authored its Rule 1925 opinion.
Although Appellant later fleshed out the first sentence of his weight claim in
his appellate brief, this was of no help to the trial court when it prepared its
opinion. Our role as an appellate court reviewing a weight claim is to
____________________________________________
Petitioner also gave the amount of money paid to [C.B.] as
$40.00, taken from the MAC machine as described by [C.B.]; this
was coincidentally the amount of money [C.B.] claimed was taken.
When questioned by police, Petitioner gave a statement
containing all of the information about [C.B.], which he testified
to at trial. Petitioner contends that the only way he could possibly
have had all of that information was that he had indeed had some
protracted conversation with her on the date in question.
10. Petitioner contends that the agreed upon evidence, that DNA
comparisons showed the presence of DNA in a sperm fragment
from an unidentified male, lends credibility to the proposition that
although Petitioner engaged in sexual intercourse with [C.B.], so
did another unidentified male. Petitioner contends that it was the
other male who also beat [C.B.] again consistent with Petitioner’s
statement to the police and testimony at trial. The question of
whether [C.B.] was sexually active at the time prior to the assault
was initially answered differently from the trial, when the
prosecution attempted to discount the unknown sperm fraction.
...
Id. at 1222 (with minor revisions).
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determine whether the trial court abused its discretion in addressing a weight
claim. See, Commonwealth v. Widmer, 774 A.2d 745 (Pa. 2000) (appellate
review of weight claim is review of exercise of discretion, not of underlying
question whether verdict is against weight of the evidence). Where, as here,
the trial court is disadvantaged to review a weight claim, we likewise are at a
disadvantage to review the trial court’s exercise of discretion. Accordingly,
we conclude that Appellant waived his weight issue.
In his final argument, Appellant contends that the trial court abused its
discretion in imposing consecutive sentences. According to Appellant, the
court should have considered all of Appellant’s crimes as a single act, since
the jury found that “there was no[] continuing course of conduct.” Appellant’s
Brief at 36. We disagree.
To reach the merits of a discretionary sentencing issue, we must conduct
a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence [in accordance
with 2119(f)]; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under the
sentencing code... [I]f the appeal satisfies each of these four
requirements, we will then proceed to decide the substantive
merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014).
Appellant satisfied the first three of these requirements, so we must determine
whether his objection to consecutive sentences raises a substantial question.
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This Court has observed:
A court’s exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Rather, the imposition of consecutive rather
than concurrent sentences will present a substantial question in
only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the
crimes and the length of imprisonment.
[An appellant] may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015)
(citations and quotation marks omitted).
In this case, Appellant does not claim that he was sentenced outside the
Sentencing Guidelines. Furthermore, as the Commonwealth points out, his
maximum sentence of eight years’ imprisonment is well within the aggregate
statutory maximum of twenty-six years. Nor do we see nothing that indicates
that the imposition of consecutive sentences was “clearly unreasonable” or
“unduly harsh.” Id. Thus, Appellant fails to raises a substantial question as
concerning the discretionary aspects of his sentence.
Even assuming that Appellant raises a substantial question, his claim
lacks substance. “[W]here the trial court is informed by a pre-sentence report,
it is presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135
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(Pa. Super. 2009). The sentencing transcript reflects that the court
considered Appellant’s pre-sentence report along with defense counsel’s
arguments. Furthermore, Appellant’s claim that the jury found no continuing
course of conduct is misleading. The jury did not find a course of conduct on
two counts, indecent assault of a child and endangering the welfare of a child.
In the other two counts of conviction, unlawful contact with a minor and
corruption of minors, the jury did not address whether there was a course of
conduct. The evidence of record indicates that Appellant engaged in a course
of conduct as to these latter offenses. Finally, the trial court properly
determined that Appellant should not receive a “volume discount” by having
all sentences run concurrently. Trial Ct. Op. at 14.
Based upon the deferential standard this Court must apply regarding
consecutive sentences and the trial court’s rationale for its sentence, we find
that the trial court acted within its discretion by imposing consecutive
sentences for Appellant’s convictions.
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Judgment of sentence affirmed.
Judge Musmanno did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2022
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