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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 CARL YEAGER, :
:
Appellant : No. 1097 MDA 2015
Appeal from the Judgment of Sentence May 27, 2015
in the Court of Common Pleas of York County,
Criminal Division, at No(s): CP-67-CR-0002953-2014
BEFORE: BOWES, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 13, 2016
Robert Carl Yeager (Appellant) appeals from the judgment of sentence
entered following his conviction for rape of a child, kidnapping, burglary,
indecent assault, terroristic threats, and corruption of minors. We affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
In the early morning hours of June 24, 2013, officers from
the Northern York County Regional Police were dispatched to a
trailer park in Paradise Township, York County, in response to a
report of a sexual assault. The victim, 7 year old, I.L., reported
that earlier in the evening, an unknown man pulled her through
her living room window, covered her eyes and mouth, carried
her inside an unknown residence, and anally raped her. The man
told I.L. that he would kill her mom, sister, and grandma if she
reported him. Shortly thereafter, the man returned I.L. to her
home, where she promptly woke up her grandmother and told
her what just occurred.
On July 5, 2013, I.L. positively identified tattoos belonging
to [] Appellant from a photo line-up. On March 25, 2014,
*Retired Senior Judge assigned to the Superior Court.
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Detective Michael Hine received a DNA report confirming that
DNA found recovered from sperm sample obtained from I.L.’s
[rape kit] swabs was consistent with DNA taken from []
Appellant.
A jury trial was held from January 12 to January 14, 2015.
The jury found [] Appellant guilty of [the aforementioned
offenses].
Trial Court Opinion, 11/3/2015, at 1-2.
On May 27, 2015, Appellant was sentenced to an aggregate term of
28-to-58 years’ incarceration. On June 25, 2015, Appellant timely filed a
notice of appeal to this Court. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises three issues for our review.
1. Whether the Commonwealth failed to present sufficient
evidence in order to convict Appellant of kidnapping, because the
Commonwealth failed to prove beyond a reasonable doubt that
Appellant was the individual who remove[d] the victim from her
home?
2. Whether the Commonwealth failed to present sufficient
evidence in order to convict Appellant of burglary, because the
Commonwealth failed to prove that Appellant was the individual
who entered the victim’s residence with the intent of committing
a crime?
3. Whether the trial court’s sentence is illegal because [] it is
based off of a mandatory minimum sentencing statute declared
unconstitutional?
Appellant’s Brief at 6 (suggested answers and footnote omitted).
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Because Appellant’s first two issues purport to challenge the
sufficiency of the evidence presented to support his convictions, we address
them together.
Appellant was convicted of, inter alia, kidnapping a minor and
burglary. With respect to both offenses, Appellant argues that the evidence
is insufficient to sustain his convictions because I.L. made a number of
“conflicted and contradictory statements” during the course of trial that
called into question her identification of Appellant. Appellant’s Brief at 12.
It is well-established that a claim that a witness’s testimony should not
be credited by the fact-finder because it is inconsistent goes to the weight,
not the sufficiency of the evidence. Commonwealth v. W.H.M., 932 A.2d
155, 160 (Pa. Super. 2007) (holding that the jury should have believed
Appellant’s version of the event rather than that of the victim goes to the
weight, not the sufficiency of the evidence); Commonwealth v. Wilson,
825 A.2d 710, 713-14 (Pa. Super. 2003) (holding that review of the
sufficiency of the evidence does not include an assessment of the credibility
of testimony; such a claim goes to the weight of the evidence). Thus,
Appellant’s asserted sufficiency-of-the-evidence claim is, in fact, a weight-of-
the-evidence claim.
A weight-of-the-evidence claim “must be preserved either in a post-
sentence motion, by a written motion before sentencing, or orally prior to
sentencing. Failure to properly preserve the claim will result in waiver, even
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if the trial court addresses the issue in its opinion.” Commonwealth v.
Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012) (citations omitted). Appellant
did not raise a weight of the evidence claim before the trial court in either a
pre- or post-sentence motion, nor did he address the issue orally prior to
sentencing. Accordingly, the claim is waived.1
1
Assuming, arguendo, that Appellant’s weight-of-the-evidence claim is not
waived, it would not entitle him to relief.
When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review. 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. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007)
(citations and quotations omitted).
Appellant assails the minor inconsistencies in the victim’s testimony.
However, reconciling inconsistencies in the testimony was within the
province of the fact-finder. Commonwealth v. Simmons, 662 A.2d 621,
630 (Pa. 1995) (“After examining the evidence in this case, we find that
appellant’s assertion that the inconsistencies in the witnesses’ testimony
rendered them incredible to have no merit since the inaccuracies claimed are
only minor and a witness’s credibility is solely for the [fact-finder] to
determine.”). Appellant has failed to convince us that the trial court abused
its discretion in holding that the verdict was not against the weight of the
evidence.
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We note that even if Appellant had presented and preserved his
sufficiency-of-the-evidence claims properly, he would not be entitled to
relief.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
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 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.
Further, in viewing the evidence in the light most favorable to
the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal
quotation marks and citations omitted).
At trial, “the jury watched a previously recorded child services
interview [with the victim] and heard testimony from the victim, the police,
lab technicians, and sexual assault nurses.” Trial Court Opinion, 9/3/2015, at
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3. The victim’s testimony, N.T., 1/13-14/2015, at 89-125, established that
Appellant entered her home while she was sleeping, took her to his own
home, and raped her in his bedroom. Importantly, the victim stated that
the man who assaulted her was the same man who took her from her home.
N.T., 1/13-14/2015, at 107. Further, the victim was able to identify her
assailant based on his arm tattoos. Id. at 195. This evidence, which was
believed by the factfinder, is sufficient to sustain Appellant’s convictions.
Accordingly, his challenge fails.
In his final issue, Appellant challenges the legality of the 20-to-40 year
sentence imposed for his rape of a child conviction. Appellant’s Brief at 22-
23. Specifically, Appellant contends that his sentence is illegal because the
mandatory minimum invoked by the Commonwealth was declared
unconstitutional in light of Alleyne v. United States, 133 S. Ct. 2151
(2013), by this Court in Commonwealth v. Wolfe, 106 A.3d 800 (Pa.
Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015).2
Our standard of review is as follows:
A challenge to the legality of a sentence … may be entertained
as long as the reviewing court has jurisdiction. It is also well-
established that [i]f no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated. Issues relating
to the legality of a sentence are questions of law[.] Our standard
2
Instantly, Appellant admits that he did not raise this issue in his 1925(b)
statement, Appellant’s Brief at 6, n.1; however, “legality of sentence
questions are not waivable and may be raised sua sponte by this Court.”
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013).
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of review over such questions is de novo and our scope of review
is plenary.
Wolfe, 106 A.3d at 801-02 (citations omitted).
Our review of the record shows that, despite his protestations to the
contrary, Appellant was not sentenced pursuant to any mandatory minimum
provision. While it is true the Commonwealth timely filed notice of its intent
to seek a mandatory minimum sentence under 42 Pa.C.S. § 9718(a)(3), the
Commonwealth conceded at sentencing that this Court had “struck down”
mandatory sentences in light of Alleyne and expressed its understanding
that the mandatory could not be imposed. N.T., 5/27/2015, at 1-2. Further,
there is nothing in the record, either at the sentencing hearing or in the
sentencing order itself, to demonstrate that the trial court applied an illegal
mandatory minimum sentence. Accordingly, Appellant’s claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
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