J-S22031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS D. TYSON, SR.,
Appellant No. 1697 MDA 2016
Appeal from the Judgment of Sentence August 2, 2016
in the Court of Common Pleas of Union County
Criminal Division at No.: CP-60-CR-0000255-2015
BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 16, 2017
Appellant, Thomas D. Tyson, Sr., appeals from the judgment of
sentence imposed following his jury conviction of aggravated indecent
assault of a person less than thirteen years of age and indecent assault of a
person less than thirteen years of age.1 We affirm.
The trial court set forth the relevant background of this case as follows
in its November 15, 2016 opinion filed pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a). See Pa.R.A.P. 1925(a).
On October 7, 2015[,] the Commonwealth filed an
information charging [Appellant] with aggravated indecent
assault of a child less than thirteen (13) years of age, a felony of
the second degree and indecent assault of a person less than
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3125(a)(7) and 3126(a)(7), respectively.
J-S22031-17
thirteen (13) years of age, a misdemeanor of the first degree.
[Appellant] pled not guilty and the matter was scheduled for trial
on March 17, 2016. The allegations stem from an incident that
occurred on September 13—September 14, 2014 in Kelly
Township, Union County. The Commonwealth alleged that
[Appellant] was at his home with his son and granddaughter,
[S.T.]. [S.T.] was five (5) years of age at the time.
The testimony revealed that [Appellant] and his son were
outside at [Appellant’s] residence consuming beer and listening
to a football game. At some point during the evening
[Appellant’s] son went into the house and fell asleep in a chair in
the living room. [S.T.], the victim in this matter, fell asleep on a
loveseat/couch in the same living room.
The Commonwealth alleged that at some point in the
evening [Appellant] came into the house and sat down on the
couch next to [S.T.].
While on the couch [Appellant] licked his finger and
fondled and penetrated [S.T.’s] vagina.
At trial, the jury convicted [Appellant] of both counts.
After the preparation of a pre-sentence investigation and
an evaluation by the Pennsylvania Sexual Offender Assessment
Board [Appellant] was sentenced on August 2, 2016 to a period
of incarceration on the aggravated indecent assault to three (3)
years to ten (10) years and a concurrent five (5) year probation
on the indecent assault charge.
[Following the court’s denial of his timely post-sentence
motion, Appellant] filed a [timely] notice of appeal on October
13, 2016 and, pursuant to [the] court’s order, filed [a]
statement of matters complained of on appeal on November 8,
2016. [See Pa.R.A.P. 1925(b).]
(Trial Court Opinion, 11/15/16, at 1-2) (some capitalization omitted).
Appellant raises the following issues for our review:
1. Did error occur when Appellant was convicted despite the jury
indicating they had reasonable doubt?
-2-
J-S22031-17
2. Did error occur when Appellant was convicted despite the fact
that the verdict was against the weight of the evidence, as the
jury had reasonable doubt?
3. Did error occur in jury instructions regarding testimony of the
alleged victim?
(Appellant’s Brief, at 8).
Appellant first challenges the sufficiency of the evidence supporting his
conviction, arguing that the evidence, at best, “encompassed two of the
three elements of aggravated indecent assault and one of the two elements
of indecent assault.” (Appellant’s Brief, at 12; see id. at 11) (capitalization
omitted). This issue is waived.
Pennsylvania Rule of Appellate Procedure 1925(b) provides, in
pertinent part: “Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”
Pa.R.A.P. 1925(b)(4)(vii). Further,
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant’s Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. 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.
Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super. 2015)
(citations and quotation marks omitted).
Here, in his Rule 1925(b) statement, Appellant did not identify which
elements he was challenging, did not specify for which crime, nor did he
even use the term “sufficiency.” (See Appellant’s Rule 1925(b) Statement,
-3-
J-S22031-17
11/08/16, at ¶ 1). Instead, he appears to have conflated his sufficiency
claim with his jury instruction challenge, stating: “[Appellant] respectfully
submits that error occurred when [he] was convicted despite the jury
indicating they had reasonable doubt.” (Id.); (see also Appellant’s Brief, at
11).2 The trial court therefore did not address the subject of the sufficiency
of the evidence in its opinion. (See Trial Ct. Op., at 3-5). Thus, Appellant
has waived his challenge to the sufficiency of the evidence. See Pa.R.A.P.
1925(b)(4)(vii); Freeman, supra at 1248.
Appellant next challenges the weight of the evidence supporting his
conviction.3 (See Appellant’s Brief, at 12-13). This issue is also waived.
. . . It is well settled that the argument portion of an appellate
brief must be developed with pertinent discussion of the issue,
which includes citations to relevant authority. Pa.R.A.P.
2119(a). See Commonwealth v. Genovese, 450 Pa. Super.
105, 675 A.2d 331, 334 (1996) (stating that “[t]he argument
portion of an appellate brief must be developed with a pertinent
discussion of the point which includes citations to the relevant
authority”).
* * *
. . . This Court is neither obliged, nor even particularly equipped,
to develop an argument for a party. To do so places the Court in
the conflicting roles of advocate and neutral arbiter. When an
____________________________________________
2
We note that we address Appellant’s jury instruction claim as presented in
his third issue, infra.
3
Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).
-4-
J-S22031-17
appellant fails to develop his issue in an argument and fails to
cite any legal authority, the issue is waived.
Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012), appeal
denied, 69 A.3d 601 (Pa. 2013) (some case citations omitted).
In the instant case, in his four-sentence argument on this issue,
Appellant improperly incorporates his sufficiency discussion by reference,
while incongruously recognizing the separate nature of the issues and “the
inherent contradiction between sufficiency and weight arguments[.]”
(Appellant’s Brief, at 12). Save a single bare reference to the standard of
review for weight claims, he fails to provide this Court with any discussion of
legal authority pertinent to his claim, nor does he provide any citation to the
certified record. See Pa.R.A.P. 2119(c) (requiring references to record in
argument). This lack of analysis precludes meaningful appellate review.
Thus, Appellant’s second issue is waived. See Knox, supra at 748.
Finally, Appellant contends that the trial court erred by issuing an
inaccurate and inadequate jury instruction regarding the victim’s testimony
during jury deliberations. (See Appellant’s Brief, at 13). This issue is also
waived, for his failure to object to the challenged instruction.
“In order to preserve a claim that a jury instruction was erroneously
given, the Appellant must have objected to the charge at trial.”
Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014), appeal
denied, 117 A.3d 296 (Pa. 2015) (citations omitted). “The pertinent rules . .
. require a specific objection to the charge or an exception to the trial court’s
-5-
J-S22031-17
ruling on a proposed point to preserve an issue involving a jury instruction.”
Id. (citations omitted).
Here, the record reflects that, during jury deliberations, the trial court
received a question from the jury, stating: “There is reasonable doubt over
the evidence, but we believe the child’s testimony. Which conclusion weighs
more?” (N.T. Trial, 3/17/16, at 174). The court conducted an on-the-record
discussion with counsel, out of the presence of the jury, advising that it
would re-read the portions of its initial charge pertinent to the jury’s
question. (See id. at 174-75; see also Trial Ct. Op., at 3-5). The court
then reviewed the instruction with counsel and asked for their thoughts, and
both attorneys agreed that it “sound[ed] fair[.]” (N.T. Trial, 3/17/16, at
175). The court proceeded to instruct the jury as proposed, without any
objection from counsel. (See id. at 175-77). Thus, because Appellant
assented to the instruction, his claim seeking to challenge it on appeal is
waived. See Parker, supra at 29. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2017
-6-
Com. v. Tyson, T., Sr.
Combined Opinion