Com. v. Leber, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-S08013-23

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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J-S08013-23

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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J-S08013-23

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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J-S08013-23

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

omitted).

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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J-S08013-23

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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J-S08013-23

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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J-S08013-23

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/12/2023

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B A T C H

Defendant-Name:

Richard Milton Leber

A P P E A L*

Case Number

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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
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540291 Tuesday, July 5, 2022 08: 54: 15 AM
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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

omitted).

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