J-S52027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
OMALI A. MCKAY
Appellant No. 221 WDA 2015
Appeal from the Judgment of Sentence January 30, 2015 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0002739-2013
BEFORE: SHOGAN, OLSON and WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 15, 2015
Appellant, Omali A. McKay, appeals from the judgment of sentence
entered on January 30, 2015, following his jury convictions for two counts of
aggravated indecent assault of a child and one count each of criminal
solicitation - involuntary deviate sexual intercourse (IDSI) by forcible
compulsion, indecent assault of a complainant less than 13 years of age, and
indecent exposure.1 Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. The Commonwealth filed the aforementioned charges against
Appellant as the result of several incidents of sexual misconduct committed
against the five-year-old niece of his girlfriend. The trial court held a three-
____________________________________________
1 18 Pa.C.S.A. §§ 3125(b), 902(a), 3126(a)(7), and 3127(a), respectively. J-S52027-15
day jury trial commencing on June 3, 2014. At trial, the then eight year-old
victim testified to a number of instances wherein Appellant digitally
penetrated her vagina. The victim also recalled an incident wherein
Appellant exposed himself to her, digitally penetrated her, and told her to
open her mouth. On that occasion, the victim stated that she closed her
mouth immediately, because she feared Appellant would insert his penis into
it. Thereafter, the victim testified that Appellant ejaculated on a bed.
Moreover, based on pretrial argument, the trial court allowed evidence of
Appellant’s prior bad acts under Pa.R.E. 404(b). Specifically, the trial court
allowed the victim’s mother to testify that she feared Appellant in order to
explain her failure to report the incidents to police promptly.
At the conclusion of the trial, the jury convicted Appellant of the
aforementioned crimes. On August 28, 2014, the trial court sentenced
Appellant to concurrent terms of 10 to 20 years of incarceration for the two
counts of aggravated assault, plus a consecutive term of five to 10 years of
incarceration for criminal solicitation. The trial court imposed no further
sentence on the remaining convictions. Accordingly, Appellant received an
aggregate term of 15 to 30 years of incarceration. On September 5, 2014,
Appellant filed a post-sentence motion. He filed an amended post-sentence
motion on September 19, 2014. Following a hearing, the trial court denied
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relief by order, and accompanying opinion, dated January 30, 2015. This
timely appeal resulted.2
On appeal, Appellant presents the following issues for our review:
I. Whether the Commonwealth’s evidence was against the weight of the evidence as to the count of criminal solicitation – involuntary deviate sexual intercourse (IDSI) forcible compulsion[?]
II. Whether the evidence presented at trial was sufficient to prove Appellant guilty as to the crime of criminal solicitation – IDSI forcible compulsion[?]
III. Whether the trial judge erred by abusing his discretion in allowing testimony of [] Appellant’s prior bad acts[?]
IV. Whether the trial judge erred by abusing his discretion in allowing testimony of the alleged victim who was not capable to perceive events accurately or express herself[?]
Appellant’s Brief at vii (complete capitalization omitted).
Initially, we note that Appellant did not cite any legal authority for
issues I, III, and IV as presented on appeal. We find those issues waived for
the following reasons:
2 Appellant filed a notice of appeal on February 5, 2015. That same day, the trial court entered an order pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a concise statement of errors complained of on appeal. Appellant complied timely on February 24, 2015. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on March 3, 2015, relying upon its January 30, 2015 opinion.
-3- J-S52027-15
It is well settled that the argument portion of an appellate brief must be developed with pertinent discussion of the issue, which includes citations to relevant authority. Pa.R.A.P. 2119(a). See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996) (stating that “[t]he argument portion of an appellate brief must be developed with a pertinent discussion of the point which includes citations to the relevant authority”).
In Commonwealth v. B.D.G., 959 A.2d 362, 371–372 (Pa. Super. 2008), a panel of this Court offered the following relevant observation regarding the proper formation of the argument portion of an appellate brief:
In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. Commonwealth v. Williams, 782 A.2d 517, 532 (Pa. 2001) (Castille, J., concurring). To do so places the Court in the conflicting roles of advocate and neutral arbiter. Id. When an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is waived. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super. 1996).
Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012).
Accordingly, we are constrained to find Appellant’s issues I, III, and IV
waived.3
In his second issue presented, Appellant contends the Commonwealth
failed to present sufficient evidence at trial to convict him of criminal ____________________________________________
3 In fact, Appellant cites only one legal decision in his entire brief that sets forth the standard of review for his second issue presented. Despite the limited argument, we shall address that issue since Appellant provided some authority and we are able to decipher the claim presented.
-4- J-S52027-15
solicitation - IDSI by forcible compulsion. Appellant’s Brief at 5. He argues
the Commonwealth failed to prove “he commanded, encouraged or
requested [the victim], by making verbal and/or nonverbal command, to
perform oral sexual intercourse upon him[.]” Id. Appellant contends the
victim “testified that when [A]ppellant walked into the room he did not say
anything, he laid on the floor and he did not touch her.” Id.
The following standard governs our review of a challenge to the
sufficiency of the evidence:
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt.
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J-S52027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
OMALI A. MCKAY
Appellant No. 221 WDA 2015
Appeal from the Judgment of Sentence January 30, 2015 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0002739-2013
BEFORE: SHOGAN, OLSON and WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 15, 2015
Appellant, Omali A. McKay, appeals from the judgment of sentence
entered on January 30, 2015, following his jury convictions for two counts of
aggravated indecent assault of a child and one count each of criminal
solicitation - involuntary deviate sexual intercourse (IDSI) by forcible
compulsion, indecent assault of a complainant less than 13 years of age, and
indecent exposure.1 Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. The Commonwealth filed the aforementioned charges against
Appellant as the result of several incidents of sexual misconduct committed
against the five-year-old niece of his girlfriend. The trial court held a three-
____________________________________________
1 18 Pa.C.S.A. §§ 3125(b), 902(a), 3126(a)(7), and 3127(a), respectively. J-S52027-15
day jury trial commencing on June 3, 2014. At trial, the then eight year-old
victim testified to a number of instances wherein Appellant digitally
penetrated her vagina. The victim also recalled an incident wherein
Appellant exposed himself to her, digitally penetrated her, and told her to
open her mouth. On that occasion, the victim stated that she closed her
mouth immediately, because she feared Appellant would insert his penis into
it. Thereafter, the victim testified that Appellant ejaculated on a bed.
Moreover, based on pretrial argument, the trial court allowed evidence of
Appellant’s prior bad acts under Pa.R.E. 404(b). Specifically, the trial court
allowed the victim’s mother to testify that she feared Appellant in order to
explain her failure to report the incidents to police promptly.
At the conclusion of the trial, the jury convicted Appellant of the
aforementioned crimes. On August 28, 2014, the trial court sentenced
Appellant to concurrent terms of 10 to 20 years of incarceration for the two
counts of aggravated assault, plus a consecutive term of five to 10 years of
incarceration for criminal solicitation. The trial court imposed no further
sentence on the remaining convictions. Accordingly, Appellant received an
aggregate term of 15 to 30 years of incarceration. On September 5, 2014,
Appellant filed a post-sentence motion. He filed an amended post-sentence
motion on September 19, 2014. Following a hearing, the trial court denied
-2- J-S52027-15
relief by order, and accompanying opinion, dated January 30, 2015. This
timely appeal resulted.2
On appeal, Appellant presents the following issues for our review:
I. Whether the Commonwealth’s evidence was against the weight of the evidence as to the count of criminal solicitation – involuntary deviate sexual intercourse (IDSI) forcible compulsion[?]
II. Whether the evidence presented at trial was sufficient to prove Appellant guilty as to the crime of criminal solicitation – IDSI forcible compulsion[?]
III. Whether the trial judge erred by abusing his discretion in allowing testimony of [] Appellant’s prior bad acts[?]
IV. Whether the trial judge erred by abusing his discretion in allowing testimony of the alleged victim who was not capable to perceive events accurately or express herself[?]
Appellant’s Brief at vii (complete capitalization omitted).
Initially, we note that Appellant did not cite any legal authority for
issues I, III, and IV as presented on appeal. We find those issues waived for
the following reasons:
2 Appellant filed a notice of appeal on February 5, 2015. That same day, the trial court entered an order pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a concise statement of errors complained of on appeal. Appellant complied timely on February 24, 2015. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on March 3, 2015, relying upon its January 30, 2015 opinion.
-3- J-S52027-15
It is well settled that the argument portion of an appellate brief must be developed with pertinent discussion of the issue, which includes citations to relevant authority. Pa.R.A.P. 2119(a). See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996) (stating that “[t]he argument portion of an appellate brief must be developed with a pertinent discussion of the point which includes citations to the relevant authority”).
In Commonwealth v. B.D.G., 959 A.2d 362, 371–372 (Pa. Super. 2008), a panel of this Court offered the following relevant observation regarding the proper formation of the argument portion of an appellate brief:
In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. Commonwealth v. Williams, 782 A.2d 517, 532 (Pa. 2001) (Castille, J., concurring). To do so places the Court in the conflicting roles of advocate and neutral arbiter. Id. When an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is waived. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super. 1996).
Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012).
Accordingly, we are constrained to find Appellant’s issues I, III, and IV
waived.3
In his second issue presented, Appellant contends the Commonwealth
failed to present sufficient evidence at trial to convict him of criminal ____________________________________________
3 In fact, Appellant cites only one legal decision in his entire brief that sets forth the standard of review for his second issue presented. Despite the limited argument, we shall address that issue since Appellant provided some authority and we are able to decipher the claim presented.
-4- J-S52027-15
solicitation - IDSI by forcible compulsion. Appellant’s Brief at 5. He argues
the Commonwealth failed to prove “he commanded, encouraged or
requested [the victim], by making verbal and/or nonverbal command, to
perform oral sexual intercourse upon him[.]” Id. Appellant contends the
victim “testified that when [A]ppellant walked into the room he did not say
anything, he laid on the floor and he did not touch her.” Id.
The following standard governs our review of a challenge to the
sufficiency of the evidence:
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. [T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
Commonwealth v. Rahman, 75 A.3d 497, 500–501 (Pa. Super. 2013).
“A person is guilty of solicitation to commit a crime if with the intent of
promoting or facilitating its commission he commands, encourages or
requests another person to engage in specific conduct which would
constitute such crime or an attempt to commit such crime[.]” 18 Pa.C.S.A.
§ 902.
-5- J-S52027-15
“A person commits a felony of the first degree when the person
engages in deviate sexual intercourse with a complainant [] by forcible
compulsion[.]” 18 Pa.C.S.A. § 3123(a). Section 3101 defines the terms
deviate sexual intercourse and forcible compulsion, in pertinent part, as
follows:
“Deviate sexual intercourse.” Sexual intercourse per os or per anus between human beings [].
“Forcible compulsion.” Compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied.
18 Pa.C.S.A. § 3101. Accordingly, “[t]he crime of involuntary deviate sexual
intercourse occurs when the actor, by physical compulsion or threats
thereof, coerces the victim to engage in acts of anal and/or oral
intercourse.” Commonwealth v. Zingarelli, 839 A.2d 1064, 1070 (Pa.
Super. 2003).
Here, the trial court concluded:
The victim testified that [Appellant] walked out of the bathroom, dropped a towel from around his waist, exposed his penis, and told her to open her mouth. She opened her mouth, then clamped it shut; and [Appellant] then ejaculated. This is sufficient evidence to support a finding that [Appellant] solicited the victim to engage in oral sexual intercourse.
Trial Court Opinion, 1/30/2015, at 3.
We agree. Viewing the evidence in the light most favorable to the
Commonwealth, as our standard requires, the following testimony was
adduced at trial. The victim testified that while she was asleep in her aunt’s
-6- J-S52027-15
bedroom, Appellant came out of the bathroom, dropped his towel and told
the victim to open her mouth. N.T., 6/3/2014, at 171-172. When asked
what she did in response, the victim physically “opened her mouth wide and
then closed it[,] clicking her teeth.” Id. at 173-174. The victim further
stated, “[a]fter he asked [her] to open [her] mouth,” Appellant “peed on the
bed.” Id. 174-175. The “pee” came out of Appellant’s “private.” Id. at 192.
She described the “pee” as looking like “soda,” more specifically, like
“Sprite.” Id. at 175. As a result, there was a wet spot on the bed. Id. at
187. The victim’s mother testified similarly that, immediately following this
incident, the victim told her:
[The victim] was asleep in the bedroom and that [Appellant] came in and woke her up and he had just a towel on and she said he exposed himself to her and that he put his finger in her private and rubbed back and forth real hard. And she also said that he told her to open her mouth, but then she closed it immediately, and she said that she closed it because she knew that he was trying to put his pee pee in her mouth.
Id. at 133.
Based upon the foregoing, we conclude that the evidence was
sufficient to permit the jury to infer Appellant intended to promote or
facilitate the victim’s engagement in the act of oral intercourse by
commanding, encouraging, or requesting her to open her mouth while
exposing himself and subsequently ejaculating. Accordingly, Appellant’s
second claim lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/15/2015
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