J-S21045-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRYON UMBEL, :
:
Appellant : No. 1798 WDA 2016
Appeal from the Judgment of Sentence September 15, 2015
in the Court of Common Pleas of Fayette County
Criminal Division, at No(s): CP-26-CR-0000639-2015
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 26, 2017
Bryon Umbel (Appellant) appeals from the judgment of sentence
entered September 15, 2015, after he was found guilty of, inter alia,
aggravated indecent assault and corruption of minors. Upon review, we
affirm.
The trial court set forth the relevant factual background of this case as
follows.
At trial, the victim [Z.W.], who was fourteen years of age
when she testified, told the jurors that [Appellant] is her uncle,
married to her deceased mother’s sister. One summer day in
2009, when she was eight years old, while she was visiting
[Appellant’s residence, Z.W.] was on the couch wearing a robe
and her underwear when she was joined by [Appellant] who put
his hand on her thigh. She initially pushed his hand away, but
he persisted so she just left it there. Eventually [Appellant] put
his hand between her legs, underneath her underpants, and
placed his fingers in her vagina. [Z.W.] testified that she stayed
on the couch because she was scared, and [Appellant] told her
not to tell anyone or [he would] get in trouble.
*Retired Senior Judge assigned to the Superior Court.
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The second crime occurred several years later, again at
[Appellant’s] house, when [Z.W.] was twelve years old.
[Appellant] joined her on the couch, squeezing her thigh so hard
that it hurt. He again placed his hand inside her clothing, and
put his fingers into her vagina. Although [Z.W.] did not tell
anyone, she wrote about the incident by writing a story in her
journal. The third incident took place in January 2015 on
[Appellant’s] son’s birthday. [Z.W.] attended the birthday party,
and then spent the night sleeping on the couch. She awoke to
find [Appellant] sitting beside her, and her hand inside his boxer
shorts, touching his penis. [Z.W.] immediately pulled her hand
back, whereupon [Appellant] left her alone.
[Z.W.] testified that in an attempt to deal with her
feelings, she started to write a story in her journal. The
narrative was in story format, and the name used for the
abusive character was “Shawn,” but according to [Z.W.], some
of the events described are based on true things, but it is mostly
a fictional work. The journal was found by [Z.W.’s] stepmother
in February 2015. When her stepmother brought it to [Z.W.’s]
attention, [Z.W.] then told her stepmother what had happened
to her at the hands of [Appellant. Appellant] was interviewed
three times during the police investigation, and on two of those
occasions, he was given [Miranda1] warnings. During the first
two interviews, he denied that anything at all had happened
between himself and [Z.W.]. However, during the third and last
round of questioning, [Appellant] stated to [] police officers that
he had accidentally touched [Z.W.] “not more than five times,”
but the touching was only on the outside of her clothing. At trial
[Appellant] told the jury that [Z.W.] tried to tickle him and then
grabbed his groin, but he grabbed her hand to push it away. He
then testified that, in pushing her hand away from himself, he
may have inadvertently touched between [Z.W.’s] legs once.
Trial Court Opinion, 12/7/2015, at 1-3 (citations omitted).
Following a jury trial, Appellant was found guilty of, inter alia, the
aforementioned crimes. On September 15, 2015, Appellant was sentenced
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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to 60 to 120 months’ incarceration. No post-sentence motions were filed,
and on October 13, 2015, Appellant timely filed a notice of appeal. Both the
trial court and counsel for Appellant complied with the mandates of Pa.R.A.P.
1925. However, for reasons not apparent from the record, Appellant’s
counsel failed to file an appellate brief with this Court, and by order dated
April 11, 2016, Appellant’s appeal was dismissed.
Soon thereafter, counsel filed a motion to withdraw, which was
granted. The trial court appointed new counsel who then filed a petition
seeking to reinstate Appellant’s direct appeal rights, which the trial court
granted on November 16, 2016. Appellant complied with the trial court’s
request to file a concise statement and in response, the court submitted a
statement stating it believes its December 7, 2015 opinion following
Appellant’s first filed concise statement sufficiently addressed all the issues
raised by Appellant and thus, the court would rely on that opinion for the
purposes of this appeal. See Statement in Lieu of Opinion, 12/21/2016.
Appellant presents the following inartfully-phrased issues for our
review.
1. The Commonwealth failed to prove beyond a reasonable
doubt that [] Appellant committed the crimes in which he was
charged beyond a reasonable doubt.
2. The [trial court] erred during trial in not permitting
questioning from the entirety of the [Z.W.’s] written story,
[which was] exculpatory evidence to [] Appellant, even
though it was provided by the Commonwealth in discovery
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and introduced as evidence during direct examination by the
Commonwealth.
3. The [trial court] erred in not permitting [Z.W.’s] written story,
[which was] exculpatory evidence, to be examined by the jury
during the jury’s deliberation.
Appellant’s Brief 2 (unnecessary capitalization omitted).
In his brief, it appears Appellant is challenging both the weight and
sufficiency of the evidence to sustain his convictions.2 To the extent
Appellant attempts to argue a weight claim, we find it waived for failure to
preserve properly this issue. See Pa.R.Crim.P. 607(a) (“A claim that the
verdict was against the weight of the evidence shall be raised with the trial
judge in a motion for a new trial: (1) orally, on the record, at any time
before sentencing; (2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.”). See also Commonwealth v. Burkett,
830 A.2d 1034, 1037 (Pa. Super. 2003) (providing that a weight of the
evidence “claim must be presented to the trial court while it exercises
jurisdiction over a matter since [a]ppellate 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.”) (citations and
quotation marks omitted).
2
See Appellant’s Brief at 10 (averring the Commonwealth failed to prove
Appellant committed the crimes to which was charged beyond a reasonable
doubt, but stating the standard of review when assessing a weight-of-the-
evidence claim).
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Likewise, in reviewing Appellant’s argument as a properly preserved
sufficiency claim, we find it waived for failure to develop this claim on
appeal. Specifically, Appellant’s concise statement, his statement of
questions presented on appeal, and argument section of his brief fail to state
which elements of which crimes the Commonwealth failed to prove beyond a
reasonable doubt. Appellant also fails to cite any legal authority to support
his claim. Appellant’s Brief at 10-11. See Commonwealth v. Gibbs, 981
A.2d 274, 281 (Pa. Super. 2009) (holding that failure to set forth the
elements of the crimes of which an appellant was convicted, argue which
specific elements were not met, or make citation to legal authority in
support of his claim, results in waiver of sufficiency-of-the-evidence claims).
Furthermore, the body of Appellant’s brief contains no more than a
summary of the evidence that was presented at trial, highlighting the
inconsistencies among testifying witnesses. He fails to provide any
argument to support his contention that the Commonwealth failed to meet
its burden, and we cannot and will not make supporting arguments on his
behalf. No relief is due.
Appellant’s final two issues challenge the trial court’s evidentiary
rulings concerning Z.W.’s journal. By way of further background, the
Commonwealth introduced, through Z.W., a journal that she kept. Z.W.
testified that she had written a fictional story in this journal and one of the
characters, “Shawn,” was based on Appellant. N.T., 9/9/2015, at 22-23.
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Although the story contained details of sexual assaults, Z.W. explained that
her story was more an expression of how she felt than what had actually
happened, confirming that the assaults perpetrated by Appellant were
different than what she detailed in her story. Id. at 24. For example, the
Commonwealth had Z.W. read a passage where the protagonist’s feet were
tied, she was struggling and screaming, and the “babysitter,” who Z.W.
identified was Appellant, entered the room with duct tape. Id. at 26.
Immediately after reading this passage, and upon further inquiry from the
Commonwealth, Z.W. confirmed that she was never restrained, nor had
Appellant tied her feet or used duct tape. Id. Z.W. explained that this
passage relayed how she felt after Appellant assaulted her, specifically that
she felt “trapped” and “hurt.” Id.
On direct examination, the Commonwealth did not seek to mark the
journal as an exhibit or enter it into evidence.3 On cross-examination,
defense counsel requested Z.W. read the entire story and allow the jury to
examine the journal. The Commonwealth objected to this request but the
journal was marked as a joint exhibit. After argument, the trial court stated
the following:
3
On appeal, the Commonwealth contends that the introduction of the
journal “was to show that Z.W. in some way, documented the assaults
[Appellant] committed against her, specifically the effect that the assaults
had on Z.W. and how those experiences made her feel.” Commonwealth’s
Brief at 4.
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[Defense counsel] may put together questions that you wish to
ask [Z.W.] if what she had written is inconsistent with her
testimony here, but I’m not going to have her read this in its
entirety, one, because she’s testified that it’s fictional, even
though she’s included a fictional person name[d] Shawn who she
said was based on [Appellant]. If there[ is] a prior inconsistent
statement here, then you may ask her [about] that prior
inconsistent statement. She’s not reading it in its entirety. It[
is] not going to the jury in any way, shape or form, redacted,
unredacted, partially or whatever.
N.T., 9/9/2015, at 53. Appellant argues the trial court erred in (1)
disallowing Z.W.’s journal to be admitted in its entirely, and (2) prohibiting
the jury from examining Z.W.’s journal. We address these issues
sequentially.
With respect to the former, Appellant argues that “the trial court erred
in failing to permit [] Appellant’s request for a read of, and question of the
short story as a whole, while allowing the Commonwealth to introduce
isolated portions of the story that clearly support the prosecution’s positon
alone.” Appellant’s Brief at 12. Appellant avers the “fictional story and
testimony are so vastly different in their content, location, description, and
nature of the events and the individuals present, that any comparison of the
story to the incidents charged were improper and unfairly prejudicial to []
Appellant.” Id. at 17.
It is well-settled that with all evidentiary rulings, a trial court’s decision
to disallow such evidence will not be reversed absent an abuse of discretion.
Commonwealth v. Fisher, 764 A.2d 82, 86 (Pa. Super. 2000).
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The admissibility of evidence is at the discretion of the trial court
and only a showing of an abuse of that discretion, and resulting
prejudice, constitutes reversible error. An abuse of discretion is
not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence of record.
Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013)
(quotation marks and citations omitted).
In its 1925(b) opinion, the trial court offered the following analysis:
This issue is based on a false premise; the [trial court]
certainly permitted questioning from the entirety of [Z.W.’s]
story, expressly telling defense counsel that he could ask the
victim questions concerning any inconsistencies between her
written document and her trial testimony. The [trial court]
merely precluded the victim from reading her story in its
entirety.
***
Aside from [the one passage Z.W. read, as cited supra], no
other references to the fictionalized story were made until
defense counsel began to question the victim about it. Defense
counsel then asked to have the document marked as an
evidentiary exhibit, and also requested that the victim read it to
the jury. At a bench conference on the issue, the [trial court]
asked [defense] counsel if the content was admissible, or
whether it was violative of the Rape Shield Law. Defense
counsel did not answer the [trial court’s] questions, but the
assistant district attorney stated that she would want it redacted
to exclude any references to intimate behavior between the
victim and other people. As the [trial court] then explained to
[defense] counsel, if the events described in the [Z.W.’s] story
actually happened to her, the Rape Shield Law would apply to
preclude the introduction of the testimony. On the other hand, if
[Z.W.’s] story was fictional and did not relate to [Appellant’s]
conduct, that was the subject of the trial, then the story line is
irrelevant.
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After much discussion between the [trial court, defense
counsel, and] the assistant district attorney, defense counsel
stated several times that he wanted the story, albeit
fictionalized, admitted in its entirety to demonstrate the victim’s
“fanciful imagination,” and give him “latitude for a defense.” The
[trial court] expressly told counsel that the written story was not
going to be admitted into evidence, and it was not going to be
sent out with the jury, redacted or not. The [trial court],
however, told counsel that he could question [Z.W.] about it, to
bring to light any inconsistencies between her testimony and her
written story, which course of action counsel then followed.
Trial Court Opinion, 12/7/2015, at 5 (citations omitted).
Upon review, we find the trial court did not abuse its discretion. First,
we agree with the trial court that the contents of the story that did not refer
to the character that was based upon Appellant, if proven true, would be the
type of content that is expressly protected under the Rape Shield Law. See
Commonwealth v. K.S.F., 102 A.3d 480, 484 (Pa. Super. 2014)
(explaining the Rape Shield Law was enacted to “prevent a trial from shifting
its focus from the culpability of the accused toward the virtue and chastity of
the victim ... [and] to exclude irrelevant and abusive inquiries regarding
prior sexual conduct of sexual assault complainants.”) (citations omitted).
Second, assuming the story is fictitious, the story, in its entirety, was not
relevant to the conduct alleged to have occurred. Third, our review of the
record confirms the Commonwealth’s position that the passage detailing an
assault, which was read on direct examination and readily confirmed as not
being of the same conduct Appellant was alleged to have perpetrated, was
relevant to show that Z.W. had documented her feelings about the abuse.
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Fourth, we find the trial court’s ruling, which permitted Appellant to question
Z.W. at length about the contents of the story and any inconsistencies, was
adequate to allow Appellant to lay a groundwork for his defense that Z.W.
had a “fanciful imagination,” and that the assaults documented in the journal
were “vastly” different from those alleged to have been perpetrated by
Appellant. N.T., 9/8/2015, at 50; Appellant’s Brief at 17. Lastly, while
Appellant asserts that the testimony elicited during direct examination
regarding the fictional story was “improper and unfairly prejudicial” to him,
we note that Appellant raised no objection to the introduction of this
testimony by the Commonwealth. Furthermore, it was Appellant, and not
the Commonwealth, who proceeded to introduce various passages of the
story, which detailed incidents that were “vastly different in their content,
location, description, and nature of the events and individuals present[.]”
Appellant’s Brief at 17. For these reasons, Appellant’s issue warrants him no
relief.
In his final issue, Appellant argues that by “failing to allow the jury to
review the entire story, the Commonwealth’s presentation was extremely
prejudicial and did not result in harmless error.” Appellant’s Brief at 18.
Appellant further contends:
By prohibiting the jury from hearing and viewing the entire story
as a whole, rather than isolated incidents convenient to the
Commonwealth’s case-in-chief, the [trial court] deprived []
Appellant of a fair trial. The jury most certainly used the
fictitious and sexually explicit story in their deliberations, but
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were forbidden from putting the story’s fragments into any sort
of context. The guilty verdict retuned by the jury was
improperly influenced by the [trial court’s] decision to exclude
relevant portions of the story that were exculpatory.
Id. at 19.
Appellant’s argument amounts to no more than a bald assertion that,
because the Commonwealth introduced one passage, which it readily noted
contained a description of an assault that was different than the assault
perpetrated by Appellant, the jury was entitled to review the entire story.
The record makes it clear that the assaults detailed in the story are not the
same allegations from which Appellant’s charges stemmed. Appellant
provides no more than conclusory arguments, which he claims should result
in this Court vacating the jury’s verdict.
Pa.R.Crim.P. 646(a) provides that a “jury may take with it such
exhibits as the trial judge deems proper[.]” Because we find the trial court
did not abuse its discretion in ruling against Appellant’s request that Z.W.
read the entire story on cross-examination and enter it into evidence, we
likewise find the trial court was within its discretion to deny Appellant’s
request to allow the journal to be sent out with the jury during deliberations.
Accordingly, after a review of the briefs, record, and applicable case
law, we are not persuaded that Appellant’s issues warrant relief from this
Court.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2017
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