J-S86034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HENRY B. RICHTER
Appellant No. 755 WDA 2016
Appeal from the Judgment of Sentence April 18, 2016
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000476-2013
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 06, 2016
Appellant, Henry B. Richter, appeals from the judgment of sentence
entered in the Somerset County Court of Common Pleas, following his jury
trial conviction of aggravated indecent assault and endangering welfare of
children (“EWOC”).1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issue for our review:
WHETHER THE EVIDENCE PRESENTED AT TRIAL
SUFFICIENTLY ESTABLISHED THAT [APPELLANT]
____________________________________________
1
18 Pa.C.S.A. §§ 3125(a)(8) and 4304(a)(1), respectively.
_____________________________
*Former Justice specially assigned to the Superior Court.
J-S86034-16
COMMITTED THE AGGRAVATED [INDECENT] ASSAULT—
LESS THAN 16 YEARS OF AGE AND ENDANGERING THE
WELFARE OF A CHILD?
(Appellant’s Brief at 7).
A challenge to the sufficiency of the evidence implicates the following
legal principles:
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 [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The Crime Code defines aggravated indecent assault in relevant part
as follows:
§ 3125. Aggravated indecent assault
-2-
J-S86034-16
(a) Offenses defined.—Except as provided in section
3121 (relating to rape), 3122.1 (relating to statutory
sexual assault), 3123 (relating to involuntary deviate
sexual intercourse) and 3124.1 (relating to sexual
assault), a person who engages in penetration, however
slight, of the genitals or anus of a complainant with a part
of the person’s body for any purpose other than good faith
medical, hygienic or law enforcement procedures commits
aggravated indecent assault if:
* * *
(8) the complainant is less than 16 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.A. §§ 3125(a)(8).
The Crimes Code defines the endangering welfare of children in
relevant part as follows:
§ 4304. Endangering welfare of children
(a) Offense defined.—
(1) A parent, guardian or other person supervising
the welfare of a child under 18 years of age, or a
person that employs or supervises such a person,
commits an offense if he knowingly endangers the
welfare of the child by violating a duty of care,
protection or support.
* * *
(3) As used in this subsection, the term “person
supervising the welfare of a child” means a person
other than a parent or guardian that provides care,
education, training or control of a child.
18 Pa.C.S.A. §§ 4304(a)(1), (a)(3). The Commonwealth must prove the
-3-
J-S86034-16
following to sustain an EWOC conviction: (1) the accused was aware of his
duty to protect the child; (2) the accused was aware that the child was in
circumstances that could threaten the child’s physical or psychological
welfare; and (3) the accused has either failed to act or has taken action so
lame or meager that such actions cannot reasonably be expected to protect
the child’s welfare. Commonwealth v. Bryant, 57 A.3d 191, 197
(Pa.Super. 2012).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Scott P.
Bittner, we conclude Appellant’s issue on appeal merits no relief.2 The trial
court opinion fully discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed June 21, 2016, at 3-9) (finding:
Appellant waived his sufficiency of evidence challenge due to his failure to
specify in Rule 1925(b) statement which elements of offenses lacked
sufficient evidence; even if preserved, Appellant’s challenge to his
aggravated indecent assault conviction has no merit; Appellant’s son
____________________________________________
2
In his brief, Appellant purports to raise a challenge to the weight of the
evidence along with his challenge to the sufficiency of the evidence.
Nevertheless, Appellant failed to raise his weight claim after sentencing in a
post-sentence motion or in his Rule 1925(b) statement. See
Commonwealth v. Washington, 825 A.2d 1264 (Pa.Super. 2003)
(explaining failure to raise weight of evidence claim in trial court at
sentencing or in post-sentence motion constitutes waiver for purposes of
appeal). Thus, Appellant’s challenge to the weight of the evidence is waived
for purposes of our review.
-4-
J-S86034-16
testified he saw Appellant standing with his pants down behind Victim who
also had her pants down; Appellant’s son also stated Appellant later told
him, “I know what you saw isn’t right and you shouldn’t have [seen] it”;
Victim testified that Appellant’s son walked in on her and Appellant having
sex on date of incident; Commonwealth presented DNA evidence, which
showed Appellant’s semen on blanket along with Victim’s DNA;
Commonwealth established Appellant was more than four years older than
Victim as Victim was fourteen years old and Appellant was forty-five years
old on date of incident; Commonwealth also demonstrated Appellant and
Victim were not married, through testimony that explained why Victim was
living with Appellant and his fiancée at time of incident; based on this
evidence, jury determined Commonwealth presented sufficient evidence to
sustain aggravated indecent assault conviction; Appellant’s challenge to his
EWOC conviction similarly fails; Victim was under eighteen years of age
when Appellant engaged in sexual intercourse with Victim; Appellant
demonstrated he was Victim’s caretaker when he testified that he provided
Victim with food, lodging, and transportation around time of incident;
Appellant reiterated status as Victim’s caretaker when he admitted Victim
had to abide by his household rules; under these circumstances, jury
determined Commonwealth presented sufficient evidence to sustain EWOC
conviction; therefore, Appellant’s challenge to sufficiency of evidence to
support his convictions warrants no relief). Accordingly, we affirm on the
-5-
J-S86034-16
basis of the trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2016
-6-
· ,·1 Circulated 11/17/2016 02:28 PM
.'
·''•l. ..
~- "'0-l'IRTC'; ~·
'·.:·;·.,(i:i.{. 0~
.... ' L;
S~iMERSET, PA
COMMONWEALTH ) IN THE COURT OF COMMON PLEAS
2016 JUN 21 P11 3: 52) OF SOMERSET COUNTY,
v, -- . ) PENNSYLVANIA
HENRY B. RICHTt~EI FOR RECORO~-
._ ) 476 CRIMINAL 2013
Defendant. )
OPINION PURSUANT TO Pa.R.A.P. 1925{a)
This Opinion is issued pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
·'
I. FACTUAL AND PROCEDURAL HISTORY
On October 17, 2013, the District Attorney filed a Criminal Information charging Henry
B. Richter ("Defendant") with twenty counts of both Statutory Sexual Assault,1 a first-degree
felony, and Aggravated Indecent Assault' a second-degree felony. She also charged Defendant
with Endangering the Welfare of Children.' These charges arise out of Defendant having had
sexual relations with his fourteen year old niece, an instance of which was witnessed by one of
Defendant's sons, who reported what he witnessed, which initiated the chain of events
culminating in Defendant's arrest and prosecution.
On Father's Day, 2013, i.e., June 16, 2013, Defendant's minor son B.R. descended the
stairs in the family residence and witnessed the victim, N.H., bent over with her pants down, and
Defendant standing directly behind her with his pants down, from which B.R. immediately
concluded that the two were having sex. Trial Tr. 1.113-17, Jan. 19, 2016. N.H. was fourteen at
the time. Id. at 1.46, 1.85. B.R. ran upstairs and notified his brother, and through a series of
communications, the police were eventually notified. Id. at 1.116, 1.79-80. The police
1
18 Pa. Cons. Stat.§ 3122.l(b).
2
18 Pa. Cons. Stat. § 3125(a)(8).
3
18 Pa. Cons. Stat. § 4304(a)(I ).
subsequently commenced an investigation which ultimately led to Defendant's arrest. Id. at
1.40-58.
Defendant pleaded not guilty to all charges on December 10, 2013. We granted a
continuance to the Commonwealth because DNA testing results were unavailable, and we
granted multiple continuances to Defendant in order to obtain new counsel, to review discovery,
and prior to and subsequent to a hearing conducted on Defendant's omnibus pre-trial motion.
We granted the Commonwealth two more continuances, and then granted Defendant another
/
continuance based on a conflict with defense counsel's pre-paid vacation to China. Another
continuance was granted to Defendant because of his counsel's unavailability for reasons not
appearing-in the record.
The District Attorney filed an Amended Criminal Information on January 15, 2016 in
which the same charges were filed, but the number of counts pertaining to the Statutory Sexual
Ass_ault and Aggravated Indecent Assault charges dropped from twenty to five. The case
proceeded to jury trial on January 19 and 20, 2016, after which the jury returned a verdict of not
guilty as to Statutory Sexual Assault, and guilty as to Aggravated Indecent Assault and
Endangering the Welfare of Children.
On April 18, 2016, the Commonwealth sought a Sexually Violent Predator ("SVP")
designation for Defendant, and Defendant indicated that he was willing to stipulate to the
evidence that would be introduced at the SVP hearing, that it would be sufficient to support an
SVP designation, and that he did not wish to exercise his right to have a hearing on the issue.
Sentencing Tr. 5-7, Apr. 18, 2016. Defendant subsequently moved for acquittal, which we
denied. Id. at 8.
On April 18, 2016, we sentenced Defendant to, inter alia, thirty-six (36) months to one
2
hundred twenty (120) months incarceration in a state correctional institution based on the
Aggravated Indecent Assault conviction, and nine (9) months to eighteen (18) months for the
Endangering the Welfare of Children conviction, with the prison sentences to be served
concurrently. Id. at 17-18. Additionally, having found that Defendant is an SVP, the Defendant
is also subject to a mandatory lifetime reporting requirement. Id. at 18.
Defendant filed a Notice of Appeal on May 17, 2016, and on May 19, 2016, we ordered
Defendant to file a Concise Statement of Matters Complained of on Appeal, pursuant to
Pa.R.A.P. 1925(b), with which Defendant complied on June 8, 2016.
II. ANALYSIS
In his 1925(b) statement, Defendant lists one issue: "Whether the evidence presented at
trial sufficiently established that the defendant committed the aggravated indecent assault-less
than 16 years of age[,] and endangering the welfare of a child?" Def. 's Concise Issues, Jun. 8,
2016. As discussed supra, Defendant moved for acquittal at sentencing, though the grounds for
acquittal were not stated. However, Defendant also moved for acquittal at the close of the
Commonwealth's case: "[W]e would move for judgment of acquittal. It is our opinion [that] the
Commonwealth has not proven its case beyond a reasonable doubt as to the elements of the
offenses, particularly the statutory sexual intercourse, the aggravated indecent assault,
endangering the welfare of a child." Trial Tr. 1.179. Defense counsel at that time proceeded to
attempt to cast doubt generally on the testimony of the victim, the Commonwealth's expert
witness, and Defendant's sons. Id.
However, in Defendan!'s 1925(b) statement, nowhere does Defendant allege with
specificity the elements of the offenses . that were not sufficiently established. Pa.R.A.P.
1925(b)(4)(ii) provides, "The Statement shall concisely identify each ruling or error that the
3
appellant intends to challenge with sufficient detail to identify all pertinent issues for the
judge .... " And, pursuant to Rule 1925(b)(4)(vii), "Issues not included in the Statement and/or
not raised in accordance with the provisions of this paragraph (b)(4) are waived."
We respectfully submit that, per Rule 1925(b)(4)(vii), Defendant has waived his
sufficiency of the evidence claims because of his failure to comply with Rule 1925(b)(4)(ii).
According to the Superior Court, "[W]hen challenging the sufficiency of the evidence on appeal,
the Appellant's 1925 statement must 'specify·the element or elements upon which the evidence
/
was insufficient' in order to preserve the issue for appeal." Commonwealth v. Gibbs, 981 A.2d
274, 281 (Pa. Super. Ct. 2009) (citing Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.
Super. Ct. 2008)). As the Superior Court emphasized, "Such specificity is of particular
importance in cases where, as here, the Appellant was convicted of multiple crimes each of
which contains numerous elements that the Commonwealth must prove beyond a reasonable
doubt." Id. (citing Williams, 959 A.2d at 1258 n. 9).
Here, Defendant failed to specify exactly which elements of the offenses there was
insufficient evidence to support. Both Aggravated Indecent Assault and Endangering the
Welfare of Children have four elements, any of which Defendant could be contesting; therefore,
Defendant has failed to specifically identify the issues pertinent to his appeal. However, we
hereafter briefly address each of the elements of both offenses in the event that the Superior
Court does not deem Defendant's allegation of error waived.
In evaluating the sufficiency of the evidence, "the test is whether, viewing the evidence in
the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable
to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a
reasonable doubt." Commonwealth v. Harper, 403 A.2d 536, 538-39 (Pa. 1979) (internal
4
citations omitted).
Aggravated indecent assault requires a finding of four elements beyond a reasonable
doubt; the elements have been restated by the Pennsylvania Suggested Standard Criminal Jury
Instructions as follows:
First, that the defendant penetrated the [genitals] [or] [anus] of
[name of childJ with the defendant's finger or other body part;
Second, that [ name of childJ was a child under the age of 16;
Third, that the defendant was four or more years older than the
child; and
Fourth, that the defendant and the child were not married to each
other.
Pa. Standard Suggested Jury Instructions (Crim), §15.31250 (2012).
The evidence was sufficient for the jury to conclude beyond a reasonable doubt that
Defendant penetrated the victim's genitals with one of his body parts: Defendant's son, B.R.
testified that he descended the stairs to find Defendant standing with his pants down behind the
victim who also had her pants down, and that B.R. could see the victim's pubic area, and that
some time after, his father said, "I know what you saw isn't right and you shouldn't have saw it."
Trial Tr. 1.113-19, Jan. 19, 2016. The victim testified that she had been having sex with
Defendant at that time. Id. at 1.88-89. And, while we note that it has long been recognized that
"the uncorroborated testimony of a sexual assault victim, if believed by the trier of fact, is
sufficient to convict a defendant, despite contrary evidence from · the defense witnesses,"
Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. Ct. 2006), there was the additional
testimony of B.R., as we indicated supra, and there was also DNA evidence establishing that
Defendant's semen was present on a blanket along with the victim's DNA. See, e.g., Trial Tr.
1.156-57; Com.'s Ex. G, Jan. 19, 2016. Between the victim's testimony, Defendant's son's
5
corroborating testimony, and the DNA evidence, there was more than sufficient evidence to
support a finding beyond a reasonable doubt that Defendant had had sex multiple times with the
victim, an instance of which B.R. witnessed, notwithstanding the fact that the victim at one point
denied she had been sexually abused by Defendant, Trial Tr. 1.95, or that the victim had made
previously made allegations against other persons in the past. See, e.g., id. at 1.99, 1.64-65; Trial
Tr. 2.10, Jan. 20, 2016.
The second element was established·beyond a reasonable doubt. Here, the sex act
between Defendant and the victim occurred on Father's Day of 2013, i.e., June 16, 2013. Trial
Tr. 1.87. The victim testified that she was born on 1, which would have made her
fourteen on the date of the incident. Id. at 1.85. The investigating officer, Trooper First Class
Goins also ascertained the victim's age as of the date of the incident to be fourteen. Id. at 1.46.
Similarly, the evidence was sufficient to support a finding that the third element was
established beyond a reasonable doubt: Trooper Goins testified that Defendant's date of birth
was September 7, 1967, which would make him forty-eight years old at the date of the trial and
forty-five on the date of the incident. Id. at 1.45. Because there were thirty-one years'
difference between Defendant's age and victim's age, the third element is satisfied.
The fourth element was likewise proven beyond a reasonable doubt, i.e., that Defendant
and the victim were not married. Defendant testified that he and his fiancee took the victim in
because "she was having problems at home, being rebellious, other problems." Trial Tr. 2.5.
Defendant at this time was in a physically intimate relationship with the victim's aunt (his
fiancee) at this time, id. at 2.13-14, and in fact, Defendant's fiancee was pregnant with his child
at the time of the incident. Id. at 2.14. While Defendant and the victim's aunt were not married,
she held herself out as his wife by using his last name, and she subsequently bore Defendant a
6
second child. Id. at 2.32-33. They have been together eleven years, and the relationship between
Defendant's fiancee and the victim is a blood relationship; however, the victim is not related by
blood to Defendant even though the victim's mother is currently married to Defendant's brother.
Id. at 2.33-34.
Defendant testified that he did not consider himself to be a caretaker for the victim: "I
just provided the meals for her, a place to live." Id. at 2.31. However, he would drive the victim
to her child protective services meetings. Id. at 2.8. The victim had also been included in family
·'
activities such as going "to town, shopping... Boy Scouts. She went along to the meetings held
out there. While I was driving bus, towards the end, I was picking up other kids and talcing them
to church.· I had them go along to help out as well." Id. at 2.7.
Having established that the victim was Defendant's niece; that Defendant was engaged to
the victim's aunt and they had been in a relationship for eleven years; that the victim was
fourteen at the time of the incident; that Defendant and his fiancee took the victim into their
home because she was a troubled child; and that Defendant and his fiancee served as caretalcers
to the child, the evidence adduced was sufficient to find that Defendant was not married to the
victim, thereby satisfying the final element of the offense. See, Harper, 403 A.2d at 538-39
(stating, "The Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence.") (internal citations
omitted). See also, 23 Pa. Cons. Stat. § \~04(1::>)1} ("No marriage license may be issued if either
of the applicants for a license is under 16 years of age unless the court decides that it is to the
best interest of the applicant and authorizes the issuance of the license.").
An Endangering the Welfare of a Child conviction also requires a finding that four
elements have been met beyond a reasonable doubt:
7
First, that the defendant endangered the welfare of the child by
violating a duty of care, protection, or support.
Second, that the defendant endangered the welfare of the child
knowingly. A person's conduct is knowing when he or she is
aware that it is practically certain that his or her conduct will cause
a particular result.
Third, that the defendant was at the time a parent, guardian, person
supervising the welfare of the child under the age of 18, or a
person that employs or supervises such a person ....
Fourth, that the child was under the age of 18 years at the time of
the endangering.
Pa. Standard Suggested Jury Instructions (Crim), §15.4304A (2008).
We reemphasize that Defendant has failed to specify which elements of this offense are
alleged to have insufficient supporting evidence; therefore, we again submit that, as discussed
supra, case law, as well as the Rules of Appellate Procedure, support a finding that Defendant's
issue has been waived for appeal purposes. However, we hereafter respond in the event that
Defendant's allegation of error is entertained.
In reverse order, the fourth element of this offense, i.e., that the victim was under the age
of eighteen on the date of the incident, was established through the victim's testimony as well as
through testimony given by the investigating officer, as illustrated supra.
The third element has similarly been satisfied beyond a reasonable doubt, as we have
shown above: Defendant himself testified that he provided food and lodging to the victim, that he
took her to church gatherings, family vacations, and child protective services meetings;
furthermore, there was testimony by the victim that Defendant was the one to establish the
household rules according to which the victim had to abide. Trial Tr. at 1.87. There was ample
evidence to support the jury's finding that Defendant was a person supervising the welfare of a
child under eighteen on the date of the incident.
8
The second and first elements of this offense are likewise satisfied: a victim's testimony
that a defendant has had some form of sexual contact or intercourse with her is sufficient to
permit a jury to conclude beyond a reasonable doubt that . a defendant is guilty of, inter alia,
Endangering the Welfare of Children. See, Charlton, 902 A.2d at 561-62. Between the victim's
testimony, the DNA evidence, and Defendant's own sons' testimony, the jury could conclude
beyond a reasonable doubt that Defendant committed a sex act on the victim which is sufficient
to support a finding that Defendant knowingly·endangeredthe welfare of the victim.
·'
For the foregoing reasons, we submit that Defendant was properly convicted of
4
Aggravated Indecent Assault and Endangering the Welfare of Children.
Scott P. Bittner, J.
Dated: June 21, 2016
For Commonwealth: Lisa Lazzari-Strasiser, Esq., District Attorney
For Defendant: Tancredi Calabrese, Esq.
4To the extent that Defendant's convictions are inconsistent with his acquittal on the remaining charge of statutory
sexual assault, juries are permitted to render inconsistent verdicts, and "a]n] acquittal cannot be interpreted as a
specific finding in relation to some of the evidence," and a "long line of cases from both [the Pennsylvania
Supreme] Court and the United States Supreme Court... unequivocally permit inconsistent jury verdicts and prohibit
drawing inferences from a jury's verdict of acquittal." Commonwealth v. Moore, 103 A.3d 1240, 1250 (Pa. 2014).
9