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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT LEE BEAVERS, JR.
Appellant No. 150 MDA 2014
Appeal from the Judgment of Sentence entered November 6, 2013
In the Court of Common Pleas of the 39th Judicial District,
Franklin County Branch
Criminal Division at No: CP-28-CR-0002258-2012
BEFORE: LAZARUS, MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 18, 2014
Robert Lee Beavers, Jr., was convicted of crimes relating to his sexual
abuse of his minor step-niece. He appeals from the judgment of sentence
made final by the denial of his post-sentence motions.1 Appellant challenges
the sufficiency of the evidence and the trial court’s failure to declare a
mistrial after an allegedly prejudicial interruption during Appellant’s counsel’s
closing argument. We affirm.
On September 18, 2011, Appellant, then 23 years old, sexually
assaulted his ten-year-old step-niece, H.K. H.K. testified that she was
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1
Appellant purports to appeal from the January 17, 2014 order denying his
post-sentence motion. “A direct appeal in a criminal proceeding lies from
the judgment of sentence,” not from the denial of post-sentence motions.
Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa. Super. 2007).
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watching television at her step-grandfather’s house in Waynesboro, Franklin
County, with Appellant. N.T. Trial, 8/5/13, at 11-20. While she and
Appellant were alone, Appellant forced her to perform oral sex on him until
he ejaculated. Id. Appellant hurt H.K.’s neck in the process. Id. Appellant
also had her touch his penis, and tried to touch H.K.’s chest and vaginal
area. Id. Appellant threatened H.K. not to tell anyone. Id. Nonetheless,
H.K. told her biological mother, C.M. and a forensic interviewer. Id. at 55-
57, 80-82; Commonwealth’s Exhibit 10. Testifying in his own defense,
Appellant denied committing any of the crimes, and speculated that H.K.
may have been prompted to fabricate the allegations. Id. at 130-33, 140-
42. During Appellant’s counsel’s closing argument, the following interruption
occurred while she was arguing to the jury that H.K. was not credible:
COURT CRIER: Excuse me, Your Honor. You have two witnesses
out here.
[DEFENSE COUNSEL]: Ok. I contacted the Kennedys[2] and let
them know they didn’t need to be here and Miss [K.] didn’t
return my call so I wasn’t able to notify her that they weren’t
needed.
COURT CRIER: Your Honor, they are asking if they can come into
court.
[DEFENSE COUNSEL]: I have no objection to that.
COURT CRIER: Thank you, Your Honor.
N.T. Closing Arguments, 8/8/13, at 5.
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2
The witnesses mentioned by defense counsel have a different surname
than the minor victim.
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The jury convicted Appellant of involuntary deviate sexual intercourse
with a child, indecent assault of a child, corruption of minors, and simple
assault of a child.3 On November 6, 2013, the trial court sentenced
Appellant to an aggregate of 11 to 34 years in prison. Appellant filed a post-
sentence motion, which the trial court denied in relevant part.4 This appeal
followed.
Appellant raises two issues for our review:
I. Whether the trial court erred in denying [Appellant’s]
motion for judgment of acquittal, based on [Appellant’s]
assertion that the verdict was against the weight of the
evidence, and that the Commonwealth failed to present
sufficient evidence to support [his] convictions.
II. Whether the trial court abused its discretion in denying
[Appellant’s] motion for new trial, based on [Appellant’s]
assertion of prejudice when court staff interrupted defense
counsel’s closing argument.
Appellant’s Brief, at 5.
In his first issue, Appellant purports to challenge the weight and the
sufficiency of the evidence supporting his convictions. Weight and
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3
18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), 6301(a), and 2701(a)(1) and (b)(2),
respectively.
4
The trial court granted Appellant’s unopposed request to eliminate a
typographical error from his sex-offender registration notification form, to
reflect that he was not found to be a sexually violent predator.
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sufficiency, however, are distinct claims.5 See Commonwealth v.
Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (discussing the differences).
Regarding the sufficiency of the evidence,
A challenge to the sufficiency of the evidence is a question of
law, subject to plenary review. When reviewing a sufficiency of
the evidence claim, the appellate court must review all of the
evidence and all reasonable inferences drawn therefrom in the
light most favorable to the Commonwealth, as the verdict
winner. Evidence will be deemed to support the verdict when it
establishes each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
The Commonwealth need not preclude every possibility of
innocence or establish the defendant’s guilt to a mathematical
certainty. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Levy, 83 A.3d 457, 461 (Pa. Super. 2013) (quotation
omitted).
Preliminarily, we note that we could find Appellant’s sufficiency
challenge waived because of the overly general, non-specific nature of his
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Here, Appellant was convicted of six different offenses, but failed to
enumerate for which offenses, or elements thereof, the evidence was
insufficient. Rather, his concise statement states:
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5
Appellant did not challenge the weight of the evidence in the trial court.
Therefore, that issue is not preserved for review. Pa.R.Crim.P. 607(A);
Pa.R.A.P. 302(a).
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Whether the [trial c]ourt erred as a matter of law when it denied
[Appellant’s] Motion for Judgment of Acquittal?
Concise Statement, 1/31/14, ¶ 1.6 In his brief, Appellant similarly fails to
narrow his challenge.
Generally, an appellant’s failure to specify the elements of the crimes
for which he challenges the sufficiency of the evidence waives appellate
review. Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009).
However, this is a relatively straightforward case. See Commonwealth v.
Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (per curiam) (holding that this
Court erred in finding a sufficiency challenged waived, because the case was,
inter alia, straightforward). The charges in this case required proof only of
the victim’s age and Appellant’s illicit contact with her. Appellant did not
dispute the victim’s age and presented the straightforward defense that he
did not commit the offenses charged.
Turning to Appellant’s sufficiency challenge, we find it meritless.
Appellant claims that the evidence is insufficient because the victim was not
credible, the victim’s mother was not credible, and the Commonwealth failed
to collect any evidence to corroborate the victim’s story. We agree with the
Commonwealth that all of Appellant’s arguments concern the credibility of
witnesses. “An argument that the finder of fact should have credited one
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6
The Rules of Appellate Procedure required Appellant to attach his concise
statement and the trial court’s Rule 1925(a) opinion to his brief, but he has
failed to do so. See Pa.R.A.P. 2111(a)(11) and (b).
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witness’ testimony over that of another witness goes to the weight of the
evidence, not the sufficiency of the evidence.” Gibbs, 981 A.2d at 281-82.
Here, the ten-year-old victim testified that Appellant hurt her neck, forced
her to perform oral sex, and touched her vaginal area and chest. The
victim’s testimony alone is sufficient evidence to convict. 18 Pa.C.S.A.
§ 3106. Therefore, we reject Appellant’s argument.
In his second issue, Appellant argues that the trial court erred in
failing to declare a mistrial after the court crier interrupted Appellant’s
counsel’s closing argument with news that Appellant’s other witnesses had
arrived. This issue is not preserved.
When an event prejudicial to the defendant occurs during trial
only the defendant may move for a mistrial; the motion shall
be made when the event is disclosed. Otherwise, the trial
judge may declare a mistrial only for reasons of manifest
necessity.
Pa.R.Crim.P. 605(B) (emphasis added); Commonwealth v. Ables, 590
A.2d 334, 340 (Pa. Super. 1991).
Here, Appellant raised the issue regarding the court crier’s interruption
for the first time in post-sentence motions. Appellant’s counsel neither
moved for a mistrial nor requested a cautionary instruction when the
interruption occurred, or at any time thereafter. Rule 605(B) requires a
defendant to move for a mistrial at the time of the allegedly prejudicial
event. “Since appellant failed to move for a mistrial, he cannot now
complain that the court erred in failing to grant a mistrial when no such
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motion was made.” Ables, 590 A.2d at 340. Having failed to preserve the
claim in the trial court, Appellant is not entitled to appellate review.7 See
Pa.R.A.P. 302(a).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2014
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7
We could also find this claim waived for Appellant’s failure to cite any
authority supporting his argument. When an appellant cites no authority to
support an argument, this Court is inclined to believe there is none.
Pa.R.A.P. 2119(a); Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa.
Super. 2012).
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Com. v. Beavers, Jr., R.
Combined Opinion