Com. v. D.S.

• Court: Superior Court of Pennsylvania
• Decided: March 13, 2026
• Docket: 1769 EDA 2025
• Status: Unpublished
• Author: Lazarus

Opinion

J-S04004-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : D.S. : : : Appellant No. 1769 EDA 2025

Appeal from the Judgment of Sentence Entered April 28, 2025 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004376-2023

BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J.

MEMORANDUM BY LAZARUS, P.J.: FILED MARCH 13, 2026

D.S. appeals from the judgment of sentence,1 entered in the Court of

Common Pleas of Montgomery County, following his conviction of one count

each of indecent assault of a minor2 and endangering the welfare of a child

(EWOC).3 After careful review, we affirm.

D.S. is the paternal granduncle of M.V., the victim in this case, who was

nine years old at the time of the offenses. See N.T. Jury Trial, 11/12/24, at

1 In his notice of appeal, D.S. purports to appeal from the denial of his post-

sentence motion. However, “[i]n a criminal action, [an] appeal properly lies from the judgment of sentence[.]” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2011) (en banc) (citation omitted). We have amended the caption accordingly.

2 18 Pa.C.S.A. § 3126(a)(7).

3 Id. at § 4304. J-S04004-26

31-32. The victim is one of three children; M.V. has an older brother, J.V.,

who was twelve years old at the time, and a younger brother who was eight

years old (collectively, Children). 4 See id. at 31. Children live in Gladwyne,

Montgomery County with their parents M.V. (Mother) and W.V. (Father)

(collectively “Parents”). See id. at 30-31. D.S., who lived by himself, also

lived in Gladwyne, around the block from Parents’ home. See id. at 32.

Parents occasionally invited D.S. over for family dinners and holidays. See

id. at 32. Mother testified that sometimes the family would see him “a couple

times a month, or [they] would go a few months without actually seeing him,”

though D.S. testified that he had only been to their house “less than a handful”

of times. See id. at 33-34; id., 11/13/24, at 57. The Mother described D.S.

as “part of our family.” See id., 11/12/24, at 33.

In May 2019,5 Parents, Children’s two maternal and paternal

grandmothers, Children, and D.S. all drove together from Gladwyne to

Philadelphia for a family dinner at a restaurant. See id. at 71-72. On the

drive home, M.V. sat in the third row of the family’s car on D.S.’s lap facing

4 The younger brother’s initials are also J.V. However, because he did not testify at trial or play a significant role in the case, and to avoid confusion, we refer to him as the younger brother.

5 Both M.V. and D.S. stated at trial that the incident occurred in May 2019.

See id. at 71; id., 11/13/24, at 64. Mother expressed less certainty, testifying that it could have been anywhere from 2019-2022, and J.V. estimated it took place in 2017. See id., 11/12/24, at 65-66, 115. For the purposes of this opinion, the incident date is May 2019. J-S04004-26

forward, with her back on his chest. 6 See id., 11/12/24, at 76-77. At some

point during the ride, D.S. put both his hands up M.V.’s shirt and began

moving them “back and forth” on her chest. See id. at 77-78. D.S. then put

his hands in the victim’s shorts, under her underwear, and began touching her

vagina. See id. at 79. M.V. described hearing “heavy breathing” coming from

D.S. during the assault. See id. She testified that D.S. stopped the behavior

five to ten minutes before he was dropped off at his house. See id. at 77-78.

M.V. further testified she did not tell anyone about this immediately after it

happened because she was “confused” and “scared.” See id. at 81.

J.V. testified consistently with M.V. but stated that he never saw D.S.’s

hands go under M.V.’s clothes. Instead, J.V. testified that he saw D.S.

“moving [M.V.] up and down,” and “forward and back on his lap,” with his

hands on her waist, near his groin area. See id. at 110. J.V. also stated that

D.S. was breathing “really, really loudly” and “the longer he was moving

[M.V.] on his lap, the louder[,] . . . weirder[,] and crazier his breaths became.”

See id. at 111. When asked if he saw D.S. touch any other part of the victim’s

body, J.V. stated D.S. touched the victim’s back. See id. J.V. also testified

that he did not say anything to anyone at first because he was scared. See

id. at 112.

6 The SUV had three rows of seats and seven seats total. Father was driving, Mother was the passenger, and Children’s grandmothers were in the two middle seats. D.S. and Children were in the back row, which had only three seats. In particular, M.V. was seated on D.S.’s lap in the left seat, the younger brother was in the middle seat, and J.V. was in the right seat. J-S04004-26

D.S. testified in his own defense and described a very similar version of

events, minus the inappropriate touching. Specifically, D.S. corroborated the

testimony about where everyone was sitting, including that M.V. was sitting

on his lap during the ride home. See id., 11/13/24, at 58. However, D.S.

claimed he only rubbed the victim’s back in a “fatherly affection[ate]” way.

See id. D.S. also testified that he was unable to achieve an erection in 2019,

referring to himself as “a sexually dead man.” See id. at 60.

For four years, the incident went unreported. However, Mother testified

that, around spring of 2023, “all of a sudden” M.V. started acting out, talking

back to her and Father, and missing school assignments. See id.,

11/12/2024, at 35-36. Additionally, Mother observed M.V. shy away from

physical contact and affection. See id. at 36. These behaviors led Mother to

become suspicious of M.V., so she started checking her phone. See id. at 37.

Eventually, Mother came across a text from M.V. to her then-boyfriend, that

said:

Well, I don’t know how to say this, so I’mma flat out just say it: It was my uncle that raped me. So[,] when someone puts their arm around me, it makes me really uncomfortable because he did that to me, and then he raped me. So, yeah, don’t tell anyone, please.

Id. at 40. M.V. also texted her boyfriend that D.S. raped her twice, once

when she was nine and again when she was ten. See id. at 41. At trial,

however, M.V. admitted that this was not true; there was only one incident,

and that it was the May 2019 molestation, not rape. See id. at 84-88. J-S04004-26

After discovering the text message, Mother looked through old

photographs to see when the incident could have taken place. See id. at 42.

She found a photograph from Mother’s Day 2019 that included all eight family

members. See id. at 45. Mother also asked J.V. about the text message and

stated that when she mentioned it, “[h]is face just completely changed” and

that then she “knew it was real.” See id. at 43-44. Father confronted D.S.

about the incident and informed him that he was cutting off their relationship.

See id. at 125-26.

As a result of the foregoing, M.V. completed an interview with Mission

Kids Child Advocacy Center (Mission Kids), 7 a video of which was played for

the jury at trial. See id., 11/13/24, at 10. The police investigated the incident

and, ultimately, filed the above-mentioned charges against D.S.

On November 12-13, 2024, D.S. proceeded to a jury trial. At the

conclusion of trial, the jury convicted D.S. of the charges. The trial court

deferred sentencing and ordered the preparation of a pre-sentence

investigation report.

On April 28, 2025, the trial court sentenced D.S. to an aggregate term

of five months’ to twenty-three months’ incarceration, as well as a consecutive

term of five years’ probation. On May 7, 2025, D.S. filed a timely post-

sentence motion, which the trial court denied.

7 The forensic interviewer from Mission Kids, Pamela Alvarado, testified on Day 2 of the jury trial. See id., 11/13/24 at 4. Her interview with M.V. was admitted into evidence as Commonwealth Exhibit 4 (C-4). See id. at 10-13. J-S04004-26

D.S. filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. D.S. now raises the

following claims for our review:

(1) Whether the trial court erred when it denied [D.S.]’s post- sentence motion in arrest of judgment?

(2) Whether the trial court erred when it denied [D.S.]'s post- sentence motion for judgment of acquittal based on insufficient evidence?

(3) Whether the trial court erred when it denied [D.S.]’s post- sentence motion for new trial because the verdict was against the weight of the evidence?

Appellant’s Brief, at 3-4.

D.S.’s first issue on appeal asserts that the trial court erred by denying

his motion to arrest judgment because the Commonwealth failed to include

the correct incident date in its amended criminal information. See Appellant’s

Brief, at 6-7. D.S. argues that the amended criminal information was

defective because it alleged that the incident occurred in May 2021, while the

evidence produced at trial established that the incident actually occurred two

years before, in May 2019. See Appellant’s Brief, at 8. D.S. contends the

defect in the amended information did not give him sufficient notice of the

crime he was being tried for and, thus, interfered with his constitutional due

process rights. See id. at 10. We disagree.

As an initial matter, the Commonwealth argues that this claim is waived

because, although D.S. frames the issue as a challenge to the denial of his

request for arrest of judgment, his argument is exclusively about a defect in J-S04004-26

the criminal information. See Appellee’s Brief, at 9 n.1. Generally, a motion

to quash an information must be made in an omnibus pre-trial motion, and

failure to do so results in waiver of a later request to quash. See Pa.R.Crim.P.

578; see also Commonwealth v. Aguilar, 340 A.3d 311, 320 (Pa. Super.

2025) (“A motion to quash is an appropriate means for

raising defects apparent on the face of the information [.]”).

Here, we conclude that D.S. waived his claim to arrest judgment based

on the defect in the criminal information. We observe that the Commonwealth

filed the original criminal information on October 26, 2023, which alleged that

the incident occurred “on or about Saturday, the 8th day of May, 2021[.]”

Criminal Information, 10/26/23. On November 12, 2024, the Commonwealth

filed the amended criminal information, which changed the grade of all third-

degree felonies filed against D.S. to first-degree misdemeanors. However,

the Commonwealth did not change the incident date despite possessing

information that it took place on Mother’s Day of May 2019. See Affidavit of

Probable Cause, at 2 (“On May 9, 2023 . . . a juvenile female . . . alleges that

a family member . . . touched her four years ago [i.e., in 2019].”).

Before his preliminary hearing, D.S. received the Affidavit of Probable

Cause which alleged that the incident occurred in May 2019. See id.

Additionally, after his preliminary hearing, D.S. then received the defective

criminal information, which had the date of the incident as May 2021. It is at

this time, post-preliminary hearing and pre-trial, that D.S. should have filed a J-S04004-26

Pa.R.Crim.P. 578 omnibus motion to quash or dismiss the criminal information

for patent defect. See Pa.R.Crim.P. 578 (“all pretrial requests for relief shall

be included in one omnibus motion”) (emphasis added); see also id. Cmt.

(“Types of relief appropriate for the omnibus pretrial motions include . . . (5)

to quash or dismiss an information”). Furthermore, even if D.S. could not

have known the defective date based upon the difference in dates contained

in the Affidavit of Probable Cause and Criminal Information, he knew or should

have known that the date in the Criminal Information was defective at trial

when both he and M.V. testified that the incident occurred in May of 2019.

See N.T. Jury Trial, 11/12/24, at 84; id., 11/13/24, at 64. However, D.S. did

not raise an objection at trial. Consequently, D.S.’s failure to file a Rule 578

pre-trial motion, or to even object to the date of incident at trial, 8 waives his

claim for the purposes of appeal. See Pa.R.A.P. 302(a) (“Issues not raised in

the trial court are waived and cannot be raised for first time on appeal.”);

Commonwealth v. Veneri, 452 A.2d 784, 788 (Pa. Super. 1982) (finding

8 As noted, D.S., himself, testified during trial that the date of the incident was May 2019. See id., 11/13/24, at 64 (“I believe it was 2019, according to [the victim].”). Thus, notwithstanding waiver of the issue, D.S.’s argument fails on the merits as well, since there is no evidence that he was “misled” as to the charges against him. See Commonwealth v. Morales, 669 A.2d 1003, 1006 (Pa. Super. 1996) (court will arrest judgment only when criminal information misleads defendant as to charges against him) (internal citation omitted); Commonwealth v. Riggle, 119 A.3d 1058, 1070 (Pa. Super. 2015) (affording Commonwealth “broad latitude” in fixing date of sexual offenses against child victim). J-S04004-26

waiver of claims for defects in criminal informations on appeal because neither

defendant filed pre-trial motions to quash the informations).

Next, D.S. contends that the evidence presented against him at trial was

insufficient to support the jury’s conviction of EWOC. See Appellant’s Brief,

at 10. Specifically, he argues that the testimony elicited did not establish that

he held a “supervisory role” over the victim within the meaning of the statute.

See id.

We conclude that D.S. waived his sufficiency claim by failing to identify,

with specificity, the challenged elements of the EWOC charge in his Rule

1925(b) statement. In Commonwealth v. Gibbs, 981 A.2d 274 (Pa. Super.

2009), we held that “when challenging the sufficiency of the evidence on

appeal, the Appellant’s 1925 statement must ‘specify the element or elements

upon which the evidence was insufficient’ in order to preserve the issue for

appeal.” Id. at 281 (internal citations omitted). We continued:

Such specificity is of particular importance in cases where, as here, the Appellant was convicted of multiple crimes[,] each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt. Here, Appellant not only failed to specify which elements he was challenging in his [Rule] 1925[(b)] statement, he also failed to specify which convictions he was challenging.

Id. (internal citation omitted).

In the instant case, D.S.’s Rule 1925(b) statement states that “[t]he

trial court erred in failing to grant defendant’s motion for judgement of

acquittal on both offenses for lack of sufficient evidence upon which a verdict J-S04004-26

may be based.” Appellant’s Pa.R.A.P. 1925(b) Concise Statement of Errors

Complained on Appeal, 7/23/25 (unnecessary capitalization omitted). It is

only in D.S.’s brief to this Court where he narrows his sufficiency claim to

address the EWOC charge alone, and the specific basis for that challenge. See

Appellant’s Brief, at 10. Due to D.S.’s lack of specificity in his Rule 1925(b)

statement as to which elements the Commonwealth failed to provide sufficient

evidence for, his claim that there was insufficient evidence to sustain his

EWOC conviction is waived.9 See Gibbs, supra; see also Commonwealth

v. Masterson, 346 A.3d 377, at *3 (Pa. Super. Aug. 26, 2025) (Table)

(finding waiver where Appellant’s boilerplate assertions in Rule 1925(b)

statement failed to specify elements of convictions he wished to challenge). 10

Accordingly, D.S. has waived his challenge to the sufficiency of the evidence,

and we afford him no relief on this claim.

9 While the trial court did not find waiver of this issue, it “is ‘of no moment to

our analysis because we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in a selective manner dependent on an appellee's argument or a trial court's choice to address an unpreserved claim.’” Gibbs, 981 A.2d at 281. Additionally, although it bears no relevance to this particular analysis, we observe that D.S., in his post-sentence motion, narrowly argued that there was insufficient evidence to conclude he “demonstrated any indication of sexual arousal, nor that his conduct was designed to, or did, cause sexual arousal in the complainant.” Appellant’s Post-Sentence Motion. These are elements pertaining to the charge of indecent assault of a minor, not EWOC. See 18 Pa.C.S.A. § 3126(a)(7). D.S. does not challenge the sufficiency of the evidence pertaining to his conviction of indecent assault of a minor on appeal.

10See Pa.R.A.P. 126(a)-(b) (unpublished, non-precedential opinions of this Court filed after May 1, 2019, may be cited for persuasive value). J-S04004-26

In his last issue raised on appeal, D.S. challenges the trial court’s denial

of his motion for a new trial based on his assertion that the jury’s verdict was

against the weight of the evidence. See Appellant’s Brief, at 13. D.S. argues

that M.V.’s testimony regarding text messages she sent to her boyfriend in

2023, in which she tells him that D.S. “raped” her, show factual

inconsistencies in the sequence of events that took place. See Appellant’s

Brief, at 14; N.T Jury Trial, 11/12/24, at 87. Moreover, D.S. points out that

M.V. testified she knew the difference in meaning between the words “rape”

and “molestation,” that she is not sure why she used the word “rape” in the

text, and that she falsely told her boyfriend that she was raped multiple times

by D.S. See N.T. Jury Trial, 11/12/24, at 86-88. Finally, D.S. avers that

M.V.’s and J.V.’s testimonies were “substantially different,” where M.V.

testified that D.S. touched her breasts and vagina while breathing heavily,

and J.V. stated that D.S. dragged the victim back and forth across his lap

while breathing heavily. See Appellant’s Brief, at 14; N.T. Jury Trial,

11/12/24, at 78-79, 110-11. The combination of all these factual differences,

D.S. contends, should warrant a new trial because they render the jury’s guilty

verdict “shocking to the conscience.” See Appellant’s Brief, at 14.

Our standard of review of a claim that the verdict was against the weight

of the evidence is as follows:

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, J-S04004-26

we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super. 2006) (internal

citation omitted). In deciding whether a trial court abused its discretion, we

bear in mind that:

[d]iscretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice[,] or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias[,] or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).

Instantly, the trial court addressed D.S.’s weight claim as follows:

In this case, although there were inconsistencies about her initial disclosure in text messages identified by trial counsel, these do not defeat M.V.'s credibility. Rather, the facts that [M.V.] testified to at trial were the same facts that she revealed to the Mission Kids forensic interviewer. She was consistent that in that car ride she was sitting on [D.S.]’s lap, that he touched her chest and vagina, [and] that he was breathing heavy. Her brother corroborated that M.V. was sitting on [D.S.]’s lap and that he saw [D.S.] touching her. And although he testified that he observed [D.S.] move M.V. back and forth on his lap, while holding her down at the waist, [it] is not inconsistent with M.V.’s testimony, both could be true. J.V.’s vantage point on the [right] hand side of the back seat can explain some of the difference in testimony. Additionally, J.V. testified also to the heavy breathing, which corroborated M.V.’s testimony in this regard. [] Trial counsel cross-examined M.V. about her inconsistencies of her initial disclosure, and he highlighted these facts for the jury. Clearly, the jury credited M.V.’s testimony, even hearing about those J-S04004-26

inconsistencies. On the other hand, the jury did not credit [D.S.]’s testimony that he only rubbed M.V.’s back. It was within the province of the jury to make these determinations.

Trial Court Opinion, 9/2/25, at 14-15. Based on a thorough review of the trial

record, we conclude that the trial court did not abuse its discretion in finding

that the jury verdict was not against the weight of the evidence. While the

victim admits that she lied to her boyfriend when she texted him that she was

raped multiple times by D.S., this admission was followed by the victim stating

she did not know why she said those things to him. See N.T. Jury Trial,

11/12/24, at 87. Additionally, whether the victim told the truth to her

boyfriend or not goes to her credibility, which was weighed by the jury in light

of the rest of the evidence presented at trial, and to which they returned a

verdict against D.S. The verdict was not “so contrary to the evidence as to

shock one’s sense of justice.” See Morgan, supra.

Based upon the foregoing, we find D.S.’s claims merit no relief.

Judgment of sentence affirmed.

Date: 3/13/2026