J-S08013-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD MILTON LEBER : : Appellant : No. 893 MDA 2022
Appeal from the Judgment of Sentence Entered May 16, 2022 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000704-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD MILTON LEBER : : Appellant : No. 894 MDA 2022
Appeal from the Judgment of Sentence Entered June 10, 2022 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000705-2020
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: APRIL 12, 2023
Appellant, Richard Milton Leber, appeals from the judgment of sentence
entered on May 16, 2022 and June 10, 2022, respectively, following his jury
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S08013-23
trial convictions for two counts each of indecent assault of a child under 16
years of age and corruption of minors.1 We affirm.
We briefly summarize the facts and procedural history of these
consolidated cases as follows. On March 6, 2020, the Commonwealth charged
Appellant with, inter alia, the aforementioned charges, following allegations
by two minor females that Appellant inappropriately touched them.2 The
victims, E.B. and R.B., are sisters. Appellant was a former long-time family
friend who worked with the victims’ father. A two-day jury trial commenced
on December 13, 2021. E.B., R.B., the girls’ mother, and Appellant testified.
E.B. testified that Appellant would touch her breasts, buttocks, and vagina
with his hands, both over and under her clothing, beginning when she was 12
years of age and continuing for several years. E.B. testified that she told her
mother on multiple occasions, but the touching continued. Eventually, E.B.
reported the touching to her guidance counselor. R.B. testified that Appellant
groped her buttocks over her clothes without her consent on one occasion
when she was 14 years old. The victims’ mother testified that from 2015 to
2019, she abused painkillers and alcohol, did not recall the time period, and
that it was possible that E.B. told her multiple times about Appellant’s conduct
but she could not remember. Appellant testified that there were single
instances with each girl where he remembered hugging and smacking them ____________________________________________
1 18 Pa.C.S.A. §§ 3126(a)(8) and 6301(a)(1)(ii).
2 The Commonwealth filed separate criminal informations at each of the captioned trial court docket numbers, but moved to consolidate them for trial.
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on the buttocks in a congratulatory way. At the conclusion of trial, the jury
convicted Appellant of the abovementioned offenses. The trial court deferred
sentencing for the preparation of a pre-sentence investigation report and for
an evaluation to be conducted by the Sexual Offenders Assessment Board
(SOAB) regarding whether Appellant should be deemed a sexually violent
predator (SVP).
On May 16, 2022, the trial court held a sentencing hearing. The trial
court adopted the SOAB’s recommendation that Appellant be classified as an
SVP. The trial court also imposed an aggregate sentence of nine to 23 months
of incarceration followed by a consecutive term of five years of probation. On
May 26, 2022, Appellant filed a post-sentence motion that the trial court
denied on June 21, 2022. This timely appeal resulted.3
On appeal, Appellant presents the following issues for our review:4
I. Whether the conviction is against the weight of the evidence relative to indecent assault and corruption of minors[?]
3 Appellant filed notices of appeal on June 21, 2022. On June 27, 2022, the trial court entered an order directing Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. This Court consolidated the appeals on June 29, 2022. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 24, 2022.
4 Appellant also challenged his designation as an SVP, but “[a]fter further research and deliberation, Appellant is no longer pursuing that issue.” Appellant’s Brief at 6. We find that issue abandoned and, therefore, waived. See Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002) (“[A]n issue identified on appeal but not developed in the appellant's brief is abandoned and, therefore, waived.”).
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II. Whether the evidence was insufficient to sustain Appellant’s conviction of indecent assault of R.B.[?]
Appellant’s Brief at 4 (unnecessary capitalization and docket numbers
omitted).
Appellant contends that “[t]he verdicts as to indecent assault and
corruption of minors in both cases were against the weight of the evidence.”
Id. at 7. With regard to E.B., Appellant claims her testimony “was
contradicted by other Commonwealth witnesses and was inherently
unreliable.” Id. With regard to R.B., Appellant suggests that his convictions
for indecent assault and corruption of minors were against both the sufficiency
and weight of the evidence because “the Commonwealth did not prove that
any touching was done for [Appellant’s] sexual gratification.” Id. at 7. More
specifically, in sum, Appellant posits:
Appellant’s testimony was uncontradicted and credible.[5] There was no scientific evidence supporting the claims of E.B. and R.B. E.B. described assaults which would have occurred with others present or in near proximity to the events. E.B. testified that she told her mother on numerous occasions that Appellant assaulted her; however, her mother said she never told her anything until May 19, 2019. E.B. testified that her mother was always home when the assaults happened; however, her mom or any other witness did not testify they saw anything out of the ordinary when Appellant was at the home. No witnesses heard E.B. scream or make any other noises. She testified her mom and Appellant were having an affair, and in fact witnessed them engaged in sexual
5 Appellant claims that “[a]s to E.B., he stated he gave her [a] hug congratulating her on something and gave her ‘a smack in [sic] the ass.’” Appellant’s Brief at 11 (record citation omitted). Moreover, Appellant testified that “R.B. gave Appellant a hug for giving her mom money for food” and that he “only gave R.B. a hug that one time.” Id. (record citations omitted).
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activity. However, her mom denied ever having an affair with Appellant [and] testified she never saw or heard anything inappropriate when Appellant was at the residence. [The mother] testified if she would have been told anything or thought anything inappropriate was happening to E.B. or R.B., she would have reported it or told someone.
R.B. in summary testified that Appellant only touched her one time. No one witnessed the event or heard anything out of the ordinary. Appellant allegedly touched her buttocks once for a period of five seconds. There was no testimony it was sexual in nature. Appellant’s uncontradicted and credible testimony was that he never touched R.B. other than giving her a hug one time.
Id. at 11-12. Appellant maintains that the evidence to support his convictions
for indecent assault and corruption of minors regarding R.B. was insufficient
because the Commonwealth “did not establish the touching was for the
purpose of arousing sexual desire in Appellant or R.B” or “offend[ed] the
morality of R.B.” Id. at 14.
We adhere to the following standards:
Whether sufficient evidence exists to support the verdict is a question of law; our standard of review is de novo and our scope of review is plenary. We review the evidence in the light most favorable to the verdict winner to determine whether there is sufficient evidence to allow the jury to find every element of a crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the
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credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Soto, 202 A.3d 80, 93 (Pa. Super. 2018) (citation
Furthermore, we have previously determined:
A victim's in-court testimony, identifying the defendant as the perpetrator of a crime, is by itself sufficient to establish the identity element of that crime. Thus, [] attempts to enhance [a sufficiency of the evidence] argument by asserting that the Commonwealth failed to present any corroborating evidence to support the victim's in-court identification testimony does not establish that the identity evidence was insufficient. Moreover, [an] assertion that the victim's testimony was contradicted by [an appellant’s] own [testimony] is irrelevant to [a] sufficiency analysis. “Variances in testimony ... go to the credibility of the witnesses and not the sufficiency of the evidence.” Commonwealth v. Galloway, 434 A.2d 1220, 1222 (Pa. 1981).
Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa. Super. 2018) (some
internal citations omitted). Moreover, “the uncorroborated testimony of a
single witness is sufficient to sustain a conviction for a criminal offense, so
long as that testimony can address and, in fact, addresses, every element of
the charged crime.” Id. at 481.
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 appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial
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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. This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered.
In describing the limits of a trial court's discretion, we have explained:
The term “discretion” imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion 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.
Soto, 202 A.3d at 97 (citation omitted).
Here, the trial court determined that there was sufficient evidence to
support Appellant’s convictions and that the verdict did not shock the
conscience of the court to warrant relief on his weight of the evidence claim.
More specifically, the trial court noted the alleged inconsistencies between the
trial testimony of E.B. and her mother. See Trial Court Opinion, 8/24/2022,
at 22. However, the victims’ mother admitted that “between 2015 and
2019[,] she was abusing drugs and alcohol which affect[ed] her memory of
that time period” and that she conceded “it was possible that E.B. told her
about the incidents with [Appellant] and she did not remember because of her
addiction.” Id. She further testified that “it was possible, but unlikely, that
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she could not remember a possible sexual relationship” with Appellant. Id.
E.B. testified that Appellant “used his hands to touch her breasts and genital
areas, including her butt[ocks] on multiple occasions.” Id. at 23. “R.B.
testified that [Appellant] hugged her but instead of just being a hug his hand
went down and groped [and] grabbed her butt[ocks] over her clothes.” Id.
The trial court noted that “it [was] within the purview of the jury to reconcile
the testimony and judge the credibility of the witnesses.” Id. at 24.
Ultimately, the trial court stated that “the jury chose to believe the evidence
presented through the testimony of E.B., R.B., and [their mother] and deem
[their testimony] credible just as they were within their province to deem
[Appellant’s] testimony not credible.” Id. Moreover, the trial court
determined that the jury could infer that Appellant’s touching of R.B. did not
occur outside the context of a sexual or intimate situation and that the contact
was done for the purpose of sexual arousal or gratification. Id. at 27-28.
Finally, the trial court also determined that “[t]he jury’s verdict was not so
contrary to the evidence as to shock [the c]ourt’s sense of justice.” Id. at 24.
Based upon a review of the certified record, the parties' appellate briefs, the
trial court's opinion, and applicable law, we find that the trial court thoroughly
and accurately addressed the merits of Appellant’s appellate issues in its
opinion. Consequently, we affirm on the basis of the trial court opinion and
adopt it as our own. The parties are instructed to attach a copy of the trial
court's August 24, 2022 opinion to all future filings regarding this appeal.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/12/2023
-9- 1 •, Circulated 03/29/2023 02:03 PM
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B A T C H
Defendant-Name:
Richard Milton Leber
A P P E A L*
Case Number
OTN:
U 840815- 3 C P- 6 7- C R- O O O O 7 O 4- 2 O 2 O*
CERT Inter- Hand Fnx e- Serviced TO: BY: Mail Mail Office DEL MAIL
RE- SCAN needed N 1. Reason: n O O 2. 1 I
1 1 LU 3. 1 1 N I I
1 I RETURN TO RECORDS UNIT ' Notes:
I attest and certify that as Deputy Clerk of Courts I have prp erly Serviced and Docketed the documents related to', his case action and have verified the completeness and image quality of the scanned documents. Docketed in CPCMS "
Scanned Images OK - Verified / QC' d Signature or Stamp - Deputy Clerk of Courts
Dan Byrnes - York County Clerk of Courts L1 540291 Tuesday, July 5, 2022 08: 54: 15 AM Q
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By Clerk of Courts at 3: 02 pm, Aug 24, 202
TN THE OUIBT OlF COMMON P]LEAS QF YORK COUNTY, PEI' NSYLVANIA CRIMINAL DIVISION
Commonwealth of Pennsylvania : No. CP- 67- CR-0704- 2020 No. CP- 67- CR- 0705- 2020
v.:.::
RICHARD MILTON LEBER, Defendant/ Appellant. 8
STATEMENT OF LOVVER COURT PURSUANT TO Pa . R.A.P. 1925 a
AND NOW, this day of August, 2022, upon receipt of a notice
that an appeal has been filed in this matter, and in consideration of the Concise
Statement of Errors Complained Of filed on behalf of Richard Milton Leber
hereinafter referred to as " Defendant"), by and through his attorney, Richard
Robinson, Esquire, the undersigned files this statement pursuant to Pa. R.A.P.
1925( a}.
Page 1 of 28 FACTUAL AND PROCEDURAL HISTORY:
On March 6, 2020, Defendant was charged with two counts of
Indecent AssaultI and one count of Corruption of Minors2 in Docket Number
CP- 67- CR- 0704- 2020. Defendant was charged with two counts of
Aggravated Indecent Assault3, two counts of Indecent Assault, and one
count of Corruption af Minors5 in Docket Number CP- 67- CR-0705- 2020.
On that same date, the York County District Attorney' s Office filed a Notice
of Consolidation pursuant to Pennsylvania Rule of Criminal Procedure 582.
At the time of trial, the Commonwealth amended the informations to add
one count of Indecent Assault6 in Docket Number CP- 67- CR-0704-2020
and, in Docket Number CP- 67- CR-0705- 2020, one count of Aggravated
Indecent Assault and one count of Indecent Assaults.
18 Pa. C. S. § 3126( a)( 7) Z 18 Pa. C. S. § b301( a)( 1)( ii) 3 18 Pa. C. S. § 3125( a)( 7), 18 Pa. C. S. § 3125( b) 18 Pa. C. S. § 3126( a)( 7) 5 i8 pa. c.s. § 63o1( a)( 1>() 6 18 Pa. C. S. § 3i26( a)( 8) 18 Pa. C. S. § 3125( a){ 8) 8 18 Pa. C. S. § 3126( a)( 8)
Page 2 of 28 A jury trial took place from December 13, 2021, through December
14, 2021. N. T. Jury Trial 12/ l3/ 2021- 12/ 14/ 2021. R.B. and E. B., the
alleged victims, both testified at the trial.
E. B. was seventeen ( 17) years old when she testified. N.T. Jury Trial,
12/ 13/ 2021, p. 91. E.B. identified Defendant as a friend of both her parents. Id. at 94. E.B. went on to testify that she knew Defendant her " whole life
basically". Id. E.B. indicated that Defendant would come over to the house
a few times every inonth. Id. at 110. E.B. testified that Defendant touched
her breast, butt, and vagina with his hands, on more than one occasion. Id. at
96- 97. She fuxther testified that Defendant touched her breast over clothing and under clothing when E. B. was not wearing an} rthing under her shirt. Id.
at 102. E.B. stated that Defendant touched her butt both on top of her clothes
and under her clothes when Defendant slipped his hand under her shorts and
underwear. Id. at 98- 99. She specified that when Defendant touched her butt
it was a touch and not a smack. Id. at 103. E. B. explained that, when
Defendant touched under her shorts and underwear, he touched the outside of
her vagina. Id. at 99. She also stated there were a few times that it was
different and " he stuck his fingers inside". Id. at 99- 100. E.B. could not
Page 3 of 28 remember at what age this happened but that some of the incidents occurred
when she was under thirteen ( 13) years of age. Id. at 100. E.B. testified that
she told Defendant to stop several times but he " just kind of aughed it off'.
Id. at 104.
E.B. testified that these incidents occurred at her home both outside and
inside the house. Id. at 96. E.B. indicated that when the incidents occurred
inside the house, they were in the living room or the kitchen. Id. at I01. E.B.
indicated when touching occurred outside it was by the front doors or the back
door. Id. at 103. E.B. went on to clarify her testimony that when the incidents
occurred outside the house, they were on the front porch. Id. at 115. E.B. also
testified that other family members were home and they would be " in the
room, like, their bedrooms" or outside. Id. at 101.
E.B. indicated that she told her Mother, after the third incident when
she was twelve ( 12) years old, about Defendant touching her; however,
nothing happened and Defendant did not stop. Id. at 105- 106. E.B. stated that she did not tell anyone else, at that time, because she " didn' t really trust
anybody back then". Id. at 111. E.B. also testified that Defendant told her he
would put cameras in her room if she told somebody. Id. at 109- 110.
Page 4 of 28 E. B. testified that she kept a journal and wrote about one of the
incidents that took place. Id. at 104. Through reviewing the journal, E.B. was
able to recall that on May 7, 2019, Defendant touched her bottom. Id. at 105
On that date, E.B. stated, she told her Mother about Defendant touching her.
Id. E.B. indicated that, after telling her Mother in May of 2019, she also told
her high school guidance counselor. Id. at 111.
R.B. was eighteen ( 18) years old when she testified at trial. Id. at 136.
She identified Defendant as a former family friend that worked with her father. Id. at 139. R.B. testified that it was common far Defendant to come
over to the house. Id. at 141. She stated that on one occasion Defendant
groped her. Id. at 139. R.B. explained thai, at the time of the incident,
Defendant was leaving and she was the only one in the house. Id. at 140. R.B.
stated that Defendant hugged her but instead ofjust being a hug his hand went down and grabbed her butt. Id. R.B. went on to testify that she froze then
told Defendant to leave and left the kitchen and living room area herself. Id. at 140- 141.
R. B. also discussed her observations of E. B. R.$. testified that E.B.
would act scared when Defendant came over to the house, not wanting to go
Page 5 of 28 in the same room as Defendant. Id. at 141. R.B. testified that E.B. was " this
bright, happy person that would want to go outside, go play on the trampoline, and then it all stopped". Id. at 149. R.B. went on that E.B. would not Ieave
her bedroom and that she stopped eating and talking. Id.
Michelle Bair, the mother of both R.B. and E. B., testified at trial. Ms.
Bair identified Defendant as a family friend. Id. at 161. Ms. Bair explained
that she first met Defendant through her husband, Thomas Bair, and through
a business relationship. Id. at 167. She stated that, over the years, beginning
in the mid- 1990s, it was common for Defendant to come to the house, once or
twice a week, to talk to her and the kids. Id. at 163- 164, 168. Ms. Bair also
testified that during the years of 2015 to 2019, she abused painkillers and
alcohol and, as a result, her ability to remember that time-period is affected.
Id. at 162. As a result, Ms. Bair admitted that it is possible that E.B. told her
multiple times about Defendant touching her. Id. at 163.
After being colloquied, Defendant took the stand and testified.
Defendant testified that he has known Thomas Bair since birth and Michelle
Bair since 1990 or 1991. N.T. Jury Trial, 12/ 14/ 2021, p. 216- 217. Defendant
then went on to testify that he had known E. B. since she was thirteen ( 13) or
Page 6 of 28 fourteen ( 14) years of age from going to the Bair' s house. Id. at 217.
Defendant stated that about five years ago ( 2016) he started taking food to the Bair household. Id. at 219- 220. Defendant also testified that he gave R.B. and her Mother money time. Id. at 218. one Defendant stated that prior to
five years ago ( 2016) the only time he would see Tom was when he vcrent to
the office to pay the fuel bill and had no contact with the children. Id. at 221.
In Docket Number CP- 67- CR-0704- 2020, Defendant was found guilty
of Tndecent Assauit on a child under 16, Defendant at least four or more years older9, and Corruption of Minors10. Id. at 2$ 4- 285. In Docket Number CP-
67- CR- 0705- 2020, Defendant was found guilty of one count of Indecent
Assault on a child under 16, Defendant at least four or more years older", and
one count of Corruption of Minors12. Id. at 285- 287. Defendant was found
not guilty of the remaining charges. Id.
Defendant requested a pre- sentence investigation { hereinafter referred
to as " PST"), and the Commonwealth requested an evaivation to be done by
9 18 Pa. C. S. § 3126( a)( 8) 10 I8 Pa. C. S. § 6301( a)( 1)( ii) 18 Pa.C. S. § 3126( a)( 8) 1z 18 Pa. C. S. § 6301( a)( 1){ ii)
Page 7 of 28 the Sexual Offenders Assessment Board ( hereinafter referred to as " SOAB").
Id. at 289- 290.
Sentencing and a hearing on Defendant' s sexual violent predator status occurred on May 16, 2022. N.T. Sentencing, OS/ 16/ 2022, p. l. Evidence of
predatory behavior was found and the SOAB determined Defendant met the
criteria to be classified as a sexually violent predator ( hereinafter referred to as " SVP"}. d. at 14. The Court accepted and adopted the SOAB opinion and
deemed Defendant to be a sexually vioient predator under the Sexual Offender Registration and Notification Act13 ( hereinafter referred to as " SORNA"). Id.
at 33. In Docket Number CP- 67- CR-0704- 2020, on Count 4, Defendant was
sentenced to three ( 3) to eleven and a half (11 % z} months incarceration in the
York County Prison, directed to pay the costs of prosecution, and comply with sex offender conditions. Id. at 40. On Count 5, Defendant was sentenced to
five (5} years probation to run consecutive to Count 4 and to pay the costs of prosecution. Id. In Docket Number CP- 67- CR- 070S- 2020, on Count 4,
Defendant was sentenced to six ( 6) to eieven and a half ( lI %)months
incarceration in the York County Prison, directed to pay the costs of
13 42 Pa. C. S. §§ 9799. 10- 9799. 41,
Page 8 of 28 prosecution, and to comply with any sex offender conditions. Id. On Count
7, Defendant was sentenced to five (5) years probation to run consecutive to Count 4 and to pay the costs of prosecution. Id. The sentences in the wo
cases were to run consecutive to each other for the jail terms; however, the
two probationary sentences could run concurrent to one another for an
aggregate sentence of nine ( 9} to twenty- three { 23) months incarceration in
the York County Prison followed by five years of probation supervision. Id. 4n May 26, 2022, Defendant filed a post- sentence motion. On June
10, 2022, this Court denied Defendant' s post- sentence motion. On June 21,
2022, Defendant filed a notice of appeat to the Superiar Court. On June 27,
2022, this court issued a concise statement order. On June 29, 2022, the
Superior Court of Pennsylvania consolidated the appeals docketed at CP- 67-
CR-0704- 2020, 893 MDA 2022 and CP- 67- CR-0705- 2020, 894 MDA 2022.
Defendant filed a Statement of Errors Complained of on Appeal on July 11, 2022.
Tn both cases, Defendant asserts claims of sufficiency and weight of the
evidence at trial and that the Court erred in its determination that Defendant
Page 9 of 28 is a sexually violent predator. Statement of Errors Complained of Pursuant to
Pa. R.A. P. 1925 ( b), 07/ 11/ 2022.
DISCUSSION:
I. WHETHER THE COURT ERRED IN DETERMINING DEFENDANT MET THE CRITERIA OF A SEXUALLY VIOLENT PREDATOR
Defendant claims this Court erred in its determination that Defendant
met the criteria to be classified a SVP, pursuant to 42 Pa. C. S. § 9799.24, due
to reliance on inaccurate and/or incomplete information as a basis for the
expert' s opinion. Statement of Errors Complained, Docket Number CP- 67-
CR- 0704- 2020, 07/ 11/ 2022, p. 1; Statement of Errors Complained, Docket
Number CP- 67- CR- 0705- 2020, 07/ 11/ 2022, pp. 1- 2. Specifically, Defendant
points to: Dr. Stein' s reliance upon alleged multiple violations of a Protection
From Abuse { hereinafter referred to as " PFA") Order when there was one
violation which did not involve R. B. or E. B.; relative to E.B., Dr. Stein' s
reliance upon allegations and offenses for which T efendant was found not
guilty; relafiive to R. B., Dr. S ein' s reliance upon allegations of multiple
Page 10 of 28 instances of sexual contact with R.B. when R.B. testified thaC there was only one such instance; and Dr. Stein not reviewing the trial transcript. 1'd.
At a hearing to determine SVP status, the Commonwealth has the
burden of establishing by clear and convincing evidence that Defendant meets the criteria to be designated a SVP. 42 Pa. C. S. § 9799. 24( e)( 3). " This burden
of proof has been described as an intermediate test, falling below the highest
level of proof, beyond a reasonable doubt, but above the preponderance of the evidence standard." Commonwealth v. Stephens, 74 A.3d 1034, 1039 ( Pa.
Super. 2013). To meet this level of proof, the evidence should be " so clear,
direct, weighty, and convincing as to enable the [ trier of fact] to come to a
clear conviction, without hesitancy, of the truth of the precise facts at issue".
d. (citing Commonwealth v. Meals, 912 A.2d 213, 219 ( Pa. 2006)).
The factors considered in determining a SVP designation are set forth
in SORNA. Section 9799.24 states, in part,
An assessment shall include, but not be limited to, an
examination of the following: 1) Fact of the cunent offense, including: i) Whether the offense involved multiple victims. ii) Whether the individual exceeded the means
necessary to achieve the offense. iii} The nature of the sexual contact with the victim.
Page 1 l of 28 iv} Relationship of the individual to the victim. v) Age of the victim. vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the ci-ime. vii)The mental capacity of the victim. 2} Prior offense history, including: i) The individual' s prior criminal record. ii) Whether the individuai completed any prior sentences.
iii) Whether the individual participated in available programs for sexual offenders. 3 ) Characteristics of the individual, including; i) Age. ii) Use of illegal drugs. iii) Any mental illness, mental disability or mental abnormality. iv) Behavioral characteristics that contribute to the individual' s conduct. 4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoifense.
42 Pa. C. S. § 9799. 24( b). Discussing these factors, the Pennsylvania Supreme
Court stated
w] ith regard to the various assessment factors..., there is no statutory requi ement that all of them or any particuiar number of them be present or absent in order to support an SVP designation. The factors are not a checklist with each one weighing in some necessary fashion for or against SVP designation.
Page 12 of 28 Commonwealth u. Prendes, 97 A.3d 337, 3S8 ( Pa. Super. 2014) ( citing
Commonwealth v. BYooks, 7 A. 3d 852, 863 ( Pa. Super. 2010)). " Thus, ` t] he
Commonwealth does not have to show that any certain factor is present or absent in a particular case." Id. " The statute governing the SVP assessment
does not limit the expert' s consideration of information only to that admitted at trial or at the guilty plea proceedings" and, in fact, the statute requires the
production of documents and information " without limitation on the
admissibility" of that information." Id. at 360.
The Pennsylvania Superior Court held, in Prendes, that an " SOAB
expert opinion falls within the general rules regarding expert witnesses". Id.
at 3b 1. As a result, " the rules of evidence place ` the full burden of exploration
of facts and assumptions underlying the testimony of an expert witness
squarely on the shoulders of opposing counsel' s cross- examination"'. Id.
Opposing counsei bears the burden of exposing and exploring ` any
weaknesses in the underpinnings of the expert' s opinion'." Id.
At the SVP hearing for Defendant, the Commonwealth called
one witness, Robert M. Stein, PhD. Dr. Stein is a licensed psychologist
and member of the Pennsylvania S(. AB. Defendant stipulated to Dr.
Page 23 of 28 Stein' s qualifications as an expert in the field of sexual offender
assessment and the Court recognized him as an expert in that field. N.T.
Sentencing, OS/ 16/ 2022, p. 7.
Dr. Stein completed the Court Ordered assessment of Defendant,
prepared a written report, and determined that Defendant meets the
criteria for classification as a SVP. Dr. Stein testified that he relied on
the court order for the assessment, the response from defense counsel,
a report by the SOAB investigator, the criminal complaints,
informations and afficiavits of probable cause for both cases, reports
from the Pennsylvania State Police, and a complaint and affidavit
relating to a violation of a PFA. Id. at 8.
Dr. Stein testified that, in making a determination, he considers
the fifteen ( 15) factors mandated by Statute14 in every assessment he has completed. Id. at 9. Dr. Stein indicate that he conducted an
assessment of Defendant on February 4, 2022. rd. at 10. Dr. Stein
determined that Defendant' s case involved multiple victims which is
assaciated with " greater practice or risk- taking". Id. Dr. Stein also
4 42 Pa. C. S. § 9799.24( b)
Page l4 of 28 considered that various forms of sexual touching were involved and that the victims were unrelated to Defendant but were family friends. Id. at
10- 11. Dr. Stein testified that pursuing underage victims is consistent
with sexual deviance, " even if the victims were older, like 13 or 14"
Id. at 11. Dr. Stein indicated that the age of the Defendant, seventy-
six ( 76) when these acts started, is considerably oider than the young victims and is consistent with sexual deviance. Id. at 12.
Dr. Stein also testified about behavioral characteristics that
contribute to the individual' s conduct. Here Dr. Stein referred to
Defendant' s violation of the PFA by contacting the victim' s mother and
the victim' s after being told noi to do so by the Court. Id. Finally, Dr.
Stein cited statistical factors related to risk or increased risk with
unrelated victims. Id. Dr. Stein testified that, although over the age of
sixty (60) is generally associated with decreased risk, given Defendant was well over that age when the sustained cours of conduct began, Dr.
Stein did not view Defendant' s advanced age as a protected factor in this case. Id. at 12- 13 .
Page 15 of 28 Dr. Stein testified that, in his opinion, there was sufficient
evidence to find mental abnormality, that is other specifed pedophilic
disorder nonconsenting. Id. at 13. Further, Dr. Stein found Defendant' s
actions to be consistent with predatory behavior. Id. Dr. Stein testified
that all his opinions were rendered to a reasonable degree of inedical
scientific certainty. 1'd.
Defense counsel exercised his right to cross- examine Dr. Stein
regarding his opinions. ' d. at 15- 22. During that cross- examination,
counsel clarified with Dr. Stein that the alieged violation oi the PFA
was for contacting the victims' mother, Michelle Bair, not the victims
themselves. Id. at 15. Counsel also confirmed with Dr. Stein that he
did not review the trial transcript and that Defendant was found not
guilty on the counts of aggravated indecent assault of E.B. Id. Dr. Stein
agreed, pointing out that the front page of his report indicated Indecent
Assault, not Aggravated Indecent Assault, and the body of his report
indicated forms of sexual touching rather than penetrative touching. Id. at 18- 19. Dr. Stein acknowledged that he was not aware that, at trial,
R.B. testified that any touching happened only one time. Id. at 20.
Page 16 of 28 On redirect, Dr. Stein indicated that neither clarification that the
a Ieged PFA violation was for contact with Michelle Bair nor testimony that, it related to R.B,, as one incident of touching occurred changed his opinion. Id. at 22.
Defendant did not call an expert to testify on his behalf. This
Court heard argument, from counsel, as to the information Dr. Stein
relied upon in conducting his assessment. Counsel explored, through
cross, any weaknesses he perceived in how Dr. Stein reached his
opinion. However, despite a few discrepancies which were clarified,
Dr. Stein clearly stated that he would not change his opinion that
Defendant meets the criteria to be classified as a sexually violent
predator. As a result, this Court did not err when it found and adopted
Dr. Stein' s opinion that based upon the multiple victims in this case,
the significant age difference between the victims and the Defendant,
and the various other statutory factors set forth in Dr. Stein' s report, the
Defendant is a SVP.
Page 17 of 28 II. WHETHER THE CONVICTI4N WAS AGAINST THE WEIGHT OF THE EVIDENCE A. INDECENT ASSAULT
Defendant claims the conviction of Indecent Assault under 18 Pa. C. S.
3126( a)( 7) and Corruption of Minors under 18 Pa. C. S § 6301( a)( 1)( ii) was
against the weight of the evidence due to the inconsistent nature of the
testimony of R. B., resulting in the Commonwealth' s attempt to impeach its
own witness, and the inconsistent and not credible nature of E.B.' s testimony. Statement of Errors Complained, Docket Number CP- 67- CR-0704- 2020,
07/ 11/ 2022, pp. 1- 3; Statement of Errors Complained, Docket Number CP-
b7- CR- 0705- 2020, 07/ 11/ 2022, pp. 2- 3. Specifically, Defendantpointsto: the
inconsistent testimony between E.B. and Michelle Bair as to whether or not
E.B. told her Mother about the incidents and whether or not Ms. Bair engaged
in a sexual relationship with Defendant; the Commonwealth' s attempt to
impeach R.B.' s testimony of one indecent contact with prior statements that
the allegations occurred on multiple occasions; and Defendant' s testimony
that he did not touch either minor child in an inappropriate, indecent or sexual
way, touching E.B. in a congratulatory manner one time and hugging R.B. one time. Statement of Errors Complained, Docket Number CP- 67- CR-0704-
Page 18 of 28 2020, 07/ 11/ 2022, pp. 1- 2, and Statement of Errors Complained, Docket
Number CP- 67- CR-0705- 2020, 07/ 11/ 2022, p. 2. Scrutiny of whether a verdict is against the weight of the evidence is
governed by the standard set forth in Commonwealth v. Widmer, 744 A.2d
745, 751- 52 ( Pa. 2000). In Widmer, the Pennsylvania Supreme Court stated:
a] n 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 roie of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearty of greater . weight that to ignore them or to give them equal weight with ali the facts is to deny justice.
Commonwealth v. Widmer, 744 A.Zd 745, 751- 52 ( Pa. 2000) ( internal
citations, footnotes, and quotation marks omitted). 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 assess the credibility of the witnesses.
Commonwealth v. DeJesus, 5$ 0 8b0 A. 2d 102, 107- 108, ( Pa. 2Q04).
Page 19 of 28 Questions concerning inconsistent testimony and improper motive go to the credibility of the witnesses." Id. The Pennsylvania Supreme Court
stated, in Commonwealth v. Seese,
t he question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness. The phenomenon of lying, and situations in which prevarications might be expected to occur, have traditionally been regarded as within the ordinary facility ofjurors to assess. For this reason, the question of a witness' credibility has routinely been regarded as a decision reserved exclusively for the jury. Commoni vealth v. Seese, 517 A.2d, 920, 922 ( Fa.) ( citations omitted). It is
well settled that, in Pennsylvania, the uncorroborated testimony of a victim of sexual assault, if believed by the trier of fact, is sufficient to convict a
Defendant. See Commonwealth v. Davis, 650 A.2d 452, 455- 45b ( Pa. Super.
1994); Commonwealth v. Poindexter, 646 A.2d 1211, 1214 ( Pa, Super.
1994); Commonwealth v. Kunkle, 623 A.2d 336, 338 ( Pa. Super.
1993); Comnzonwealth v. Trimble, 615 A.2d 48, 50 ( Pa. Super.
1992); Commonwealt.h v. Zieglef, 550 A.2d 567, 569 ( Pa. Super.
1988); Commonwealth v. Stoner, 425 A. 2d I145, 1148 ( Pa. Super. 1981).
Page 20 of 28 Defendant was convicted of Indecent Assault under Section 3126 of
the Pennsylvania Crimes Code. Section 3126 ( a){ 8) states:
a} [ person is guilty of indecent assault if the a]
person has indecent contact with the compiainant, 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:
8) the complainant is less than 1 b years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.
18 Pa. C. S. § 3126 ( a)( 8). " Indecent contact" is defined under Section 3101 of
the Pennsylvania Crimes Code as follows, "[ a] ny touching of the sexual or
other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person". 18 Pa. C. S. § 3101.
Defendant was also convicted of Con-uption of Minors under Section
6301 of the Pennsylvania Crimes Code. Section 6301 ( a)( 1}{ ii) states:
w] hoever, 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 rnorals of any minor less than 1$ years of age, or who aids, abets, entices or
encourages any such minor in the commission of an
Page 2l af 28 r''';
i
r:,:<
a:..:. offense under Chapter 31 commits a felony of the third degree.
18 Pa. C. S. § 6301( a)( 1}( ii).
Tn the case at bar, E.B. and Michelle Bair were not consistent, with each
other, in their testimony regarding E.B. reporting the incidents to her mother 1'•"''
and whether or not Ms. Bair had a sexual relationship with her Mother.
However, when questioned about her recollection, VIs. Bair testified that
between 2015 and 2019 she was abusing di-ugs and alcohol which affects her
memory of that time period. N. T. Jury Trial, 12/ 13/ 2021, p. 162. Ms. Bair
conceded, on re- direct, that it was possible that E. B. told her about the
incidents with Defendant and she did not remember because of her addiction.
Id. at 163. Ms. Bair also testified that it was possible, but unlikely, that she
could not remember a possible sexual relationship with Defendant. Id. at 170.
E.B. testified that when Defendant touched her, they were in the common axeas of the house or outside on the porch. Id. at 9b. E.B. also testified that
during those incidents other family members were home but were in their
bedrooms or other locations, not in the room with her and Defendant. Id. at
101.
Page 22 of 28 E.B. testified that Defendant touched her private areas. N.T. Jury Trial, 12/ 13/ 202, at 96. E.B. went on to clarify that Defendant used his hands to
touch her breasts and genital areas, including her butt, on multiple occasions. Id. at 96- 97. E.B. also testified that Defendant called her " hot" once. Id. at
108. Initially, when asked how old she was when these incidents occurred,
E.B. answered that she could not remember but later indicated it happened
when she was under thirteen ( 13) years of age and over thirteen ( 13) years of
age. Id. at 100.
R.B. testified that on one occasion, when she was about fourteen ( 14}
yeaxs old and in her parents' house, Defendant went to give her a hug but his hand went down and grabbed her butt. Id. at 140. When asked if anything else happened with Defendant, R.B. responded " no". Id. at 141. Additionally,
when the Commonwealth attempted to refresh R.B.' s recollection and later
impeach her with prior statements that multiple incidents occurred, R.B. did
not change her testimony and clearly stated that Defendant " groped" her one
time. Id., at 139- 140. R.B. testified that Defendant hugged her but instead of
just being a hug his hand went down and groped, grabbed her butt over her
clothes. Id.
Page 23 of 28 This Court instructed the jury that it was entitled to be ieve the
testimony E. B, and R.B., if they deemed that testimony credible. N.T. Jury
Trial, 12/ 14/ 2021, p. 266. The jury was also instructed on some of the factors
to use when judging the credibility and weight of Id. at 261- 2b5. testimony.
The Pennsylvania Supreme Court has held that " a new trial should be
awarded when the jury's verdict is so contrary to the evidence as to shock one's
sense ofjustice and the award of a new trial is imperative so that i•ight may be given another opportunity to prevail." Conzmonwealth v. Brown, 648 A.2d
1177, 1189 ( Pa. 1994) ( quoting Thompson v. City ofPhiladelphia, 493 A.2d
669, 672 ( Pa. 1985}).
The jury's verdict was not so contrary to the evidence as to shock
this Court' s sense of justice. The determination of guilt was not against the
weight of the evidence, and the Defendant is not entitled to a new trial. It is
within the purview of the jury to reconcile the testimony and judge the
credibility of witnesses. Here, the jury chose to believe the evidence presented through the testimony of E. B., R.B., and Michelle Bair and deem it credible
just as they were within their province to deem Defendant' s testimony not credible.
Page 24 of 28 The jury believed that the Commonwealth met its burden and the
verdict does not shock one' s conscience. The jury chose to believe the
evidence presented through the testimony of both E.B. and R.B. In
conclusion, the determination of guilt found by the jury was properly based upon the evidence and Defendant is not entitled to a new trial on the charges
of indecent assault and corruption of minors.
III. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN DEFENDANT' S CONVICTION 4F INDECENT ASSAULT OF R.B.
Defendant claims the Commonwealth did not present sufficient
evidence for the Court to find Defendant guilty of Indecent Assault under 18 Pa. C. S. § 312b ( a){ 8). Statement of Errors Complained, l ocket No. CP- 67-
CR- 0000704- 2020, 07/ 11/ 2022 p. 2. Specifically, that the evidence presented
by the Commonwealth was insufficient to establish that Defendant touched or
had indecent contact with R.B. as required under 18 Pa. C. S. § 3126 ( a). Id. at
p. 3. befendant claims the Commonwealth' s attempt to impeach its own
witness renders that witness inherently and not unreliable credible. Id. at p.
3.
Page 25 of 28 The review of Defendant' s claim of insufficient evidence is based upon
the following standard:
i] n evaluating a sufficiency claim, the Court must accept the evidence in the light most favorable to the Commonweaith as verdict-winner and in drawing all rational evidentiary inferences, determine whether a sensible jury could have found that each element of the crime was established beyond a reasonable doubt.
Additionally, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant's guilt 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. When evaluating the credibility and wezght of the evidence, the fact- finder is free to believe all, part or none of the evidence.
Commonwealth v. Patterson, 940 A.2d 493, 500 ( Pa. Super. 2007) ( citations
As discussed in Section II of this Statement, credibility is for the finder of fact to decide. Reviewing the evidence in a light most favorable to the
Commonwealth, the jury can accept that Defendant grabbed R.B.' s butt on one occasion. In conjunction with the testimony of E. B., the jury could 'znfer
tha such an act does not occur outside of the context of a sexual or intimate
Page 26 of 28 situation. The Superior Court has held " when the actions undertaken by the
defendant do ` not occur outside of the context of a sexual or intimate
situation', then the factfinder is free to conclude that the contact was done for
the purpose of arousing or gratifying the defendant' s sexual desire." See
Commonwealth v. Caban, 2016 Pa. Super. Unpub. LEXIS 721 at 13 ( VVhere
the Superior Court held rubbing a female' s breasts and touching her vagina does not occur outside of the context of a sexual situation) citing to
Commofzwealth v. Evans, 901 A.2d 528, 533 ( Pa. Super. 2006).
Though the evidence shows Defendant only touched ker buttocks while
hugging R.B., R.B. herself described it as groping and grabbing. Even though
no other intimate part of her body was touched, such as her breasts like in
Caban, the statute requires "[ a] ny touching of the sexual or other intimate
parts of the person...". 18 Pa. C. S. § 3126 ( a)( 8}. Therefore, Defendant did
not need to touch more than her buttocks. The evidence, when viewed in a
light most favorable to the verdict winner and within the context of the other
testimony presented, promotes a reasonable inference that Defendant
indecently touched R.B. for the purpose of arousing or gratifying his own
sexual desires and not for any other purpose and Defendant' s claim fails.
Page 27 of 28 CONCLUSTON
Based on the above reasons, this Court respectfully urges affirmance of
the jury' s verdict on December 14, 2021, and judgment of sentence imposed,
by this Court, on May 16, 2022.
The Clerk of Courts is directed to provide notice of the entry of this
Statement to the York County District Atto-ney' s Office; Richard Robinson,
Esquire, counsel for Defendant; and Defendant, Richard MiZ on Leber.
BY THE COURT,
lZ,u- ..= .,-- MARIA MUSTI COOK, PRE5IDENT JUDGE
Page 28 of 28