J-S01028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFF S. DORSEY
Appellant No. 2207 EDA 2014
Appeal from the Judgment of Sentence June 26, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006743-2012
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED JANUARY 27, 2016
Appellant, Jeff S. Dorsey, appeals from the June 26, 2014 aggregate
judgment of sentence of 10 to 20 years’ imprisonment, imposed after he
was found guilty of one count each of involuntary deviate sexual intercourse
(IDSI), indecent assault, and corruption of minors.1 After careful review, we
affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
The facts admitted at trial established that []
Appellant engaged in sexual relations with his
stepdaughter over the course of several years. The
victim, K.J., who was fifteen (15) years of age at the
time of trial, testified that she, her mother, and her
siblings lived with [] Appellant. [] Appellant would
____________________________________________
1
18 Pa.C.S.A. §§ 3123(a)(7), 3126(a)(1), and 6301(a)(1)(ii), respectively.
J-S01028-16
watch her while her mom was at work. K.J. testified
that one on [sic] occasion [] Appellant instructed her
to show him her breasts and lower area in exchange
for money. At trial K.J. recalled another incident
when she walked through [] Appellant’s home office
to get to the kitchen and observed [] Appellant
watching explicit videos on the computer. []
Appellant called her over and he asked K.J. to
perform oral sex on him. She said no, but []
Appellant continued to ask her, pulled her hair, and
eventually forced his penis into her mouth. K.J.
testified that [] Appellant then touched her vagina
with his hands. She testified that she told him to
stop. At trial, K.J. recounted that this happened on
more than one occasion. She testified that this
began a few months after she moved into the house
in 2010.
K.J. testified that she was too afraid to tell
anyone about the incidents with her stepfather
because she worried that she would end up in foster
care, as [] Appellant had warned her. Eventually
K.J. confided in a friend at school about the incident.
She and her friend both agreed to tell the friend’s
mother, who in turn contacted the police.
Trial Court Opinion, 4/29/15, at 1-2 (internal quotation marks and citations
omitted).
On November 1, 2012, the Commonwealth filed an information,
charging Appellant with the above-mentioned offenses, as well one count
each of sexual assault, indecent exposure, endangering the welfare of a
child, two counts of aggravated indecent assault,2 as well as one additional
count of indecent assault. On March 11, 2014, Appellant proceeded to a jury
____________________________________________
2
18 Pa.C.S.A. §§ 3124.1, 3127(a), 4304(a)(1), and 3125(a)(8),
respectively.
-2-
J-S01028-16
trial, at the conclusion of which Appellant was found guilty of one count each
of IDSI, indecent assault, and corruption of minors. The remaining charges
were withdrawn. On June 26, 2014, the trial court sentenced Appellant to a
total of 10 to 20 years’ imprisonment.3 Appellant did not file a post-
sentence motion. On July 28, 2014, Appellant filed a timely notice of
appeal.4
On appeal, Appellant raises the following three issues for our review.
I. Whether the evidence was insufficient to
support [Appellant]’s conviction beyond a
reasonable doubt for the offense of IDSI,
person less than 16 years of age … Indecent
Assault without consent of others … and
Corruption of Minors[?]
II. Whether improper prosecutorial opening
remarks prejudiced [Appellant?]
III. Whether improper prosecutorial opening
remarks stating three times the case was a “he
said/she said” type case thereby forcing
[Appellant] to testify in contradiction to his
____________________________________________
3
Specifically, the trial court imposed a sentence of 10 to 20 years’
imprisonment for IDSI, two years’ concurrent probation for indecent assault,
and seven years’ concurrent probation for corruption of minors.
4
We observe that the 30th day fell on Saturday, July 26, 2014. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely notice of appeal was on Monday, July 28, 2014. As a result, his
notice of appeal was timely filed. We further observe that Appellant and the
trial court have timely complied with Pennsylvania Rule of Appellate
Procedure 1925.
-3-
J-S01028-16
[Fifth] Amendment rights improperly
prejudiced [Appellant?]
Appellant’s Brief at 2.
Appellant first argues that the evidence was insufficient to support any
of his convictions. Id. at 7. However, before we may address the merits of
this claim, we must determine whether it has been waived. Generally,
appellate briefs are required to conform to the Rules of Appellate Procedure.
Pa.R.A.P. 2101. Pennsylvania Rule of Appellate Procedure 2119(a) requires
that the argument section of an appellate brief include “citation of
authorities as are deemed pertinent.” Id. at 2119(a). This Court will not
consider an argument where an appellant fails to cite to any legal authority
or otherwise develop the issue. Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. 2009), cert. denied, Johnson v. Pennsylvania, 131 S. Ct.
250 (2010); see also, e.g., In re Estate of Whitley, 50 A.3d 203, 209
(Pa. Super. 2012) (stating, “[f]ailure to cite relevant legal authority
constitutes waiver of the claim on appeal[]”) (citation omitted), appeal
denied, 69 A.3d 603 (Pa. 2013).
In this case, Appellant’s entire sufficiency argument consists of the
following paragraph.
Appellant incorporates his below arguments
and respectfully states that evidence was insufficient
to support [Appellant]’s conviction beyond a
reasonable doubt for the offense of IDSI, person less
than 16 years of age in violation of 18 Pa.C.S.A.
[§ 3123(a)(7)], Indecent Assault without consent of
others in violation of 18 Pa.C.S.A. [§ 3126(a)(1)]
-4-
J-S01028-16
and Corruption of Minors in in [sic] violation of 18
Pa.C.S.A. [§ 6301(a)(1)(ii)] because at the outset of
this case, the fact finder was irreparably prejudiced
against [Appellant].
Appellant’s Brief at 7.
Appellant’s brief is devoid of any substantive discussion of our cases
involving sufficiency of the evidence, which elements of the offenses the
Commonwealth did not prove, or any other argument capable of meaningful
appellate review. Id. Based on these considerations, we deem this issue
waived on appeal. See Johnson, supra; Whitley, supra.
We elect to address Appellant’s remaining two issues together, as they
are interrelated. Appellant avers that the Commonwealth made several
improper remarks during its opening statement that compelled him to waive
his constitutional right to remain silent and testify in his own defense.
Appellant’s Brief at 7-10. The Commonwealth counters that its remarks
were not improper, and even if they were, the trial court’s instructions cured
any possible prejudice and Appellant was not compelled to testify.
Commonwealth’s Brief at 5-11. However, as with Appellant’s first issue, we
must first determine whether Appellant has preserved these arguments for
appeal.
It is axiomatic that “[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Our
Supreme Court has repeatedly emphasized the importance of issue
preservation.
-5-
J-S01028-16
Issue preservation is foundational to proper
appellate review. Our rules of appellate procedure
mandate that “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). By requiring that an
issue be considered waived if raised for the first time
on appeal, our courts ensure that the trial court that
initially hears a dispute has had an opportunity to
consider the issue. This jurisprudential mandate is
also grounded upon the principle that a trial court,
like an administrative agency, must be given the
opportunity to correct its errors as early as possible.
Related thereto, we have explained in detail the
importance of this preservation requirement as it
advances the orderly and efficient use of our judicial
resources. Finally, concepts of fairness and expense
to the parties are implicated as well.
In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations
omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.
2013). “[E]ven where a defendant objects to specific conduct, the failure
to request a remedy such as a mistrial or curative instruction is
sufficient to constitute waiver.” Commonwealth v. Sandusky, 77 A.3d
663, 670 (Pa. Super. 2013) (citation omitted; emphasis added), appeal
denied, --- A.3d ---, 835 MAL 2013 (Pa. 2014). Furthermore, even
constitutional claims can generally be waived. Commonwealth v.
Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014), appeal denied, 114 A.3d
416 (Pa. 2015).
We begin our analysis with a chronological background of what
occurred in the trial court regarding Appellant’s claims. The Commonwealth
referred to this case as a “he said/she said” case three times in its opening
-6-
J-S01028-16
statement. N.T., 3/12/14, at 64-65. Appellant immediately objected. Id.
at 65. The trial court held a sidebar conference at which it informed the
attorneys that it was going to repeat its previous instruction to the jury that
Appellant had no obligation to produce any evidence. Id. at 66. Appellant
stated “[that was] good enough for [him].” Id. After the sidebar
conference concluded, the trial court gave the following instruction to the
jury.
Ladies and gentlemen of the jury I just want to -- I
told you this in my opening remarks but I want to
reinforce it. I want to reinforce it. In fairness to the
Commonwealth, the Commonwealth also got just
[sic] done saying it too, but it has to -- you have to
understand there is no obligation. As a matter of
fact it’s a constitutional right founded in the
Constitution of the United States and the
Constitution of the Commonwealth of Pennsylvania
that [Appellant] does not have to produce any
evidence whatsoever. He does not have to say
anything. He doesn’t have to put [on] one bit of
evidence. It is the Commonwealth’s burden to prove
this case beyond a reasonable doubt with the
evidence they bring forward. That’s it. And I was a
little concerned about this he said/she said. And he
told you too he doesn’t have to say anything.
Id. at 68-69. Following this instruction, the trial court asked Appellant if the
instruction was sufficient, to which Appellant responded “[y]es Your Honor.”
Id. at 69. The Commonwealth then continued its opening statement, telling
the jury that “when you see that evidence at the conclusion of this case
you’ll know, as I do, that this is a case of a stepdad child molester.” Id.
at 70 (emphasis added). Appellant did not object to this remark.
-7-
J-S01028-16
During the trial, Appellant elected to testify in his own defense. N.T.,
3/13/14, at 95. Before doing so, the trial court conducted a colloquy with
Appellant, during which Appellant acknowledged that he had both a right to
testify and not to testify in his own defense at trial. Id. at 89-93. At no
point in time did Appellant raise any claim regarding the Fifth Amendment,
or that he felt cornered in any way by the remarks made by the
Commonwealth in its opening statement. In addition, as noted above,
Appellant did not file a post-sentence motion in this case.
After careful review of the certified record, we conclude Appellant has
failed to preserve these issues for our review. As noted, Appellant’s
objection to the Commonwealth’s labeling this as a “he said/she said” case
was immediately sustained by the trial court and a thorough cautionary
instruction was given, which Appellant agreed was sufficient. It is axiomatic
that the jury is presumed to have followed the trial court’s instructions.
Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (citation
omitted), cert. denied, Arrington v. Pennsylvania, 135 S. Ct. 479 (2014).
Appellant did not request a mistrial or any other additional form of relief
from the trial court. Furthermore, Appellant lodged no objection to the
Commonwealth’s “you’ll know, as I do” remark to the jury. The trial court
conducted a thorough colloquy with Appellant concerning his rights to testify
and to remain silent. Appellant elected to testify in his own defense and did
not raise any Fifth Amendment claims with the trial court. Therefore, we
-8-
J-S01028-16
deem Appellant’s remaining two issues waived on appeal for want of
preservation. See F.C., supra; Lawrence, supra; Sandusky, supra.
Based on the foregoing, we conclude all of Appellant’s issues on appeal
are waived for either lack of development or lack of preservation in the trial
court. Accordingly, the trial court’s June 26, 2014 judgment of sentence is
affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2016
-9-