J-S24038-18  

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37  

COMMONWEALTH OF PENNSYLVANIA  

   v. 

ROBERT PHILLIP GREINER,  

   Appellant 

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: : 

: : 

: : 

: 

IN THE SUPERIOR COURT OF PENNSYLVANIA 

No. 1316 MDA 2017  

Appeal from the Judgment of Sentence February 21, 2017 in the Court of Common Pleas of York County, 

Criminal Division at No(s):  CP-67-CR-0005334-2015  

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J. 

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 15, 2018 

  Robert Phillip Greiner (“Greiner”) appeals from the judgment of 

sentence imposed after a jury convicted him of two counts each of 

endangering the welfare of children and corruption of minors, and one count 

each of involuntary deviate sexual intercourse with a child (“IDSI”), 

aggravated indecent assault, rape of a child, solicitation – rape of a child,  

solicitation – aggravated indecent assault, indecent assault, and incest of a 

minor.1  We affirm. 

 The trial court concisely summarized the relevant factual history in its 

Opinion, which we incorporate as though fully set forth herein.  See Trial Court 

Opinion, 10/17/17, at 3-5.  As an addendum, concerning the trial court’s 

reference to Nicole Kelly (“Kelly”) on page 5 of its Opinion, Kelly is the 

____________________________________________ 

1 See 18 Pa.C.S.A. §§ 4304(a)(1), 6301(a)(1)(ii), 3123(b), 3125(b), 3121(c), 

902(a), 3126(a)(7), 4302(b)(1). 

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biological mother of the two minor victims in this case.  As part of his defense 

at trial, Greiner asserted that his co-defendant and wife, Holly Greiner 

(“Holly”), and Kelly had conspired to fabricate the charges against him. 

 Following Greiner’s arrest, the Commonwealth charged him with the 

above-mentioned offenses.  The matter proceeded to a jury trial.  At the close 

of trial, the jury found Greiner guilty of all counts.   

 On February 21, 2017, the trial court sentenced Greiner to an aggregate 

term of 641⁄2 to 129 years in prison.  Greiner thereafter filed post-sentence 

Motions, challenging the weight and sufficiency of the evidence supporting his 

convictions.  Following the trial court’s denial of the post-sentence Motions, 

Greiner timely filed a Notice of Appeal.  In response, the trial court ordered 

him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal, and Greiner timely complied. 

 Greiner now presents the following challenges for our review: 

I. The evidence was insufficient to support the jury’s verdict 

as to [IDSI, aggravated indecent assault, rape of a child, 

and solicitation – rape of a child] on the following grounds:  The Commonwealth’s evidence was contradictory in and of 

itself.  Specifically, the testimony of Holly [] was inconsistent with the testimony of Commonwealth 

witness[es] D.C. and H.R. as to what alleged acts [Greiner] and Holly [] were to have performed on D.C. and H.R.; the 

jury verdict was therefore based upon mere assumption, conjecture and speculation. 

 II. The jury’s verdict as to [IDSI, aggravated indecent assault, 

rape of a child, and solicitation – rape of a child] was against the greater weight of the evidence in that[] [t]he 

Commonwealth’s evidence was contradictory in and of itself. Specifically, the testimony of Holly [] was 

inconsistent with the testimony of Commonwealth 

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witness[es] D.C. and H.R. as to what alleged acts [Greiner] and Holly [] were to have performed on D.C. and H.R.; the 

jury verdict was therefore based upon mere assumption, conjecture and speculation. 

 III. The Trial Court erred in overruling defense counsel’s 

objection to the competency of H.R. in that she did not exhibit that she comprehended the difference between a 

truth and a lie.  

IV. The Trial Court erred in not permitting the testimony of Gary Greiner [(“Gary”)] regarding [] Kelly and her previous 

accusations of sexual abuse involving a custody issue, which was relevant to [Greiner’s] assertion that Holly [] had 

conspired with [] Kelly to fabricate charges against 

[Greiner].   

V. The Trial Court erred in sustaining the objection to questions regarding Holly [] cheating on [Greiner,] which 

was relevant as to her credibility and motivation to be dishonest. 

 Brief for Appellant at 4 (issues renumbered). 

In his first issue, Greiner alleges that the evidence was insufficient to 

support his convictions of rape of a child, IDSI, aggravated indecent assault, 

and solicitation – rape of a child.  Id. at 16-20.   

Concerning rape of a child, Greiner argues that the Commonwealth 

failed to carry its burden to prove the element of this offense that he had 

penetrated H.R.’s vagina.  Id. at 16-17 (citing Commonwealth v. Wall, 953 

A.2d 581, 584 (Pa. Super. 2008) (holding that, for purposes of establishing a 

rape conviction, “[p]enetration, however slight, with the penis is necessary to 

establish the element of sexual intercourse.”) (citation and quotation marks 

omitted)).  Greiner contends that 

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[t]he Commonwealth’s testimony was contradictory by and between [its] own witnesses.  While H.R. testified that [Greiner] 

had sexual intercourse with her, [Emily Huggins (“Huggins”),] the [] nurse [at York Hospital] who did a thorough [forensic] 

investigation of H.R., did not observe any trauma or injury to H.R.  If intercourse would have occurred, given the victim’s age, there 

should have been trauma noted to H.R.’s vaginal region.  Coupled with the testimony of [the expert witness that the defense 

presented to rebut Huggins’s findings,] Dr. [Suzanne] Rotolo[,] that trauma most likely would have been present, and [Greiner’s] 

credible denial that he did not have sexual intercourse with H.R., the jury verdict as to [rape of a child] was not supported by 

sufficient evidence.  

Brief for Appellant at 18 (some capitalization omitted). 

Concerning the IDSI conviction, Greiner argues that the Commonwealth 

failed to prove the element that he had orally penetrated H.R.’s genitalia.  Id. 

at 19 (citing Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 

2003) (stating that “in order to sustain a conviction for [IDSI], the 

Commonwealth must establish the perpetrator engaged in acts of oral or anal 

intercourse, which involved penetration however slight.”)).  In support of this 

claim, Greiner points out that the Commonwealth’s chief witness, Holly, did 

not specifically testify that she saw Greiner orally penetrate H.R.  Brief for 

Appellant at 19.2   

____________________________________________ 

2 In his brief, Greiner additionally contends that his IDSI conviction cannot be 

upheld because the Commonwealth failed to prove that “the date of commission of the crime [was] fixed with some reasonable certainty.”  Brief 

for Appellant at 19 (citing Wilson, 825 A.2d at 715).  However, Greiner waived this claim by failing to raise it in his court-ordered Rule 1925(b) 

Concise Statement.  See Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not included in the Statement ... are waived.”); accord Commonwealth v. 

Lord, 719 A.2d 306, 309 (Pa. 1998). 

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Concerning his conviction of aggravated indecent assault, Greiner 

contends that the Commonwealth failed to prove the element that he had 

digitally penetrated H.R.’s genitalia.  See Brief for Appellant at 19-20 (citing 

Commonwealth v. Castelhun, 889 A.2d 1228, 1233 (Pa. Super. 2005) 

(stating that “digital penetration of the genitals or anus is sufficient to satisfy 

the crime of aggravated indecent assault.”)).  Greiner challenges this element 

as follows: 

H.R. testified [that Greiner] put his fingers inside her vagina.  ...  

While Holly was [alleged] to be present when [Greiner] put his fingers inside [H.R.], Holly testified that she did not see [Greiner] 

put his fingers inside [H.R.]  While Holly then changed her story and said she did see [Greiner] do it, she had also given prior 

testimony that she had never seen [Greiner] do anything with his fingers.  Further, as indicated above, there was no trauma noted 

to [H.R.’s] vaginal area[,] and [Greiner] denied ever performing such an act. 

 Brief for Appellant at 20 (citation to record omitted). 

 Finally, concerning his conviction of solicitation – rape of a child, Greiner 

argues that the evidence was insufficient to support the conviction due to the 

contradictory nature of Holly and D.C.’s testimony concerning the alleged act 

establishing this crime.  See id. (pointing out that “D.C. testified [that], upon 

the urging of [Greiner], [D.C.] had sexual intercourse with Holly [].  Holly [] 

testified she did not have sexual intercourse with D.C.”). 

We apply the following standard of review when considering a challenge 

to the sufficiency of the evidence: 

[W]hether[,] 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 

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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, or part or none of the evidence. 

 Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation 

omitted). 

In its Opinion, the trial court defined each of the relevant offenses 

Greiner contests, cogently and thoroughly addressed his sufficiency 

challenges, and concluded that the Commonwealth established all of the 

requisite elements of these offenses beyond a reasonable doubt.  See Trial 

Court Opinion, 10/17/17, at 7-9, 10-13.  We agree with the sound reasoning 

and determination of the trial court, as set forth in its Opinion, and therefore 

affirm on this basis with regard to Greiner’s sufficiency of the evidence claim.  

See id. 

 In his second issue, Greiner argues that his convictions of IDSI, 

aggravated indecent assault, rape of a child, and solicitation – rape of a child 

were against the weight of the evidence and shock one’s conscience.  See 

Brief for Appellant at 11-16; see also id. at 16 (asserting that “[t]he jury’s 

verdict was against the weight of the evidence due the contradictory nature 

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of the Commonwealth’s own witnesses.”).  In connection with his weight 

challenge to each of these four convictions, Greiner presents identical 

arguments as we set forth above concerning his sufficiency challenge to these 

convictions.  See id. at 13-16.  Accordingly, we will not restate the arguments. 

Relief on a weight of the evidence claim is reserved for extraordinary circumstances, when the jury’s verdict is so 

contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given 

another opportunity to prevail.  On appeal, [an appellate] Court cannot substitute its judgment for that of the jury on issues of 

credibility, or that of the trial judge respecting weight.  Our review 

is limited to determining whether the trial court abused its discretion[.] 

 Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and 

quotation marks omitted).  Moreover, in reviewing a weight claim, we are 

cognizant that “any inconsistencies in the evidence are a matter for the trier 

of fact to resolve, and we will not disturb the verdict on that basis.”   

Commonwealth v. Lilliock, 740 A.2d 237, 242 (Pa. Super. 1999); see also 

Commonwealth v. Hall, 830 A.2d 537, 542 (Pa. 2003). 

In its Opinion, the trial court urged that it had properly rejected 

Greiner’s weight challenge, stating, inter alia, that 

(1) “there is no reasonable argument that the jury mis-weighed the evidence[,]” Trial Court Opinion, 10/17/17, at 19;  

 (2) to the extent there were inconsistencies, or vagueness, in 

the testimony of the witnesses at trial, this was solely for the jury to resolve, see id. at 19-20 (citing Lilliock, supra);  

 (3) it was within the sole purview of the jury to assess the 

credibility of the witnesses, see Trial Court Opinion, 10/17/17, at 2; see also Sanchez, supra.  

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Based upon our review, we conclude that the trial court did not abuse its 

discretion in denying Greiner’s weight of the evidence claim, nor does the 

jury’s verdict on these heinous crimes shock our collective conscience.  

Accordingly, Greiner’s second issue entitles him to no relief. 

 In his third issue, Greiner argues that the trial court erred when it 

overruled his trial counsel’s objection concerning the competency of H.R. to 

testify.  See Brief for Appellant at 21-25.  Specifically, Greiner contends that 

H.R., who was seven years old at the time of trial, “could not observe and 

remember relevant events, and appreciate the duty to tell the truth.”  Id. at 

21; see also id. at 25 (asserting that H.R. “did not demonstrate the ability to 

distinguish between a truth or lie.”). 

In its Opinion, the trial court adeptly discussed the law concerning 

challenges to a child witness’s competency, and the competency inquiry 

concerning H.R., and determined that it properly overruled defense counsel’s 

objection.  See Trial Court Opinion, 10/17/17, at 20-23.  In sum, the trial 

court found that “it was clear that H.R. was capable of perceiving accurately, 

did not have an impaired memory and sufficiently understood her duty to tell 

the truth.”  Id. at 23.  We agree with the trial court’s determination and 

rationale, which is supported by the record.  Therefore, as we discern no abuse 

of discretion, we affirm on the basis of the trial court’s Opinion regarding this 

issue.  See id. at 20-23; see also Commonwealth v. D.J.A., 800 A.2d 965, 

972, 975 (Pa. Super. 2002) (en banc) (where the child sexual assault victim 

was five years old at the time of the crimes, and seven years old at the time 

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of the competency hearing, holding that the trial court abused its discretion in 

finding the victim incompetent to testify since the record disclosed that the 

victim was capable of perceiving the crimes accurately and differentiating 

between the truth and a lie).    

 In his fourth issue, Greiner contends that the trial court erred in ruling 

that the proposed defense testimony of Gary, Greiner’s brother, to impeach 

Holly’s credibility, was irrelevant and inadmissible.  See Brief for Appellant at 

25-28; see also id. at 26 (asserting that Gary’s proposed impeachment 

testimony3 would have showed that Holly “may have had some motivation to 

exaggerate her testimony or not be truthful.”).  Greiner contends that Gary’s 

testimony was relevant to “show collusion between Holly [] and [] Kelly as it 

related to [Greiner] because of custody issues.”  Id. at 28. 

Our standard of review concerning a challenge to the admissibility of 

evidence is as follows:   

[I]n reviewing a challenge to the admissibility of evidence, we will 

only reverse a ruling by the trial court upon a showing that it 

abused its discretion or committed an error of law.  To constitute reversible error, an evidentiary ruling must not only be erroneous, 

but also harmful or prejudicial to the complaining party.  

____________________________________________ 

3 Specifically, the defense proffered that Gary would offer testimony that (1) 

the mother of Gary’s children had previously accused Gary of child sexual abuse in connection with a custody dispute involving their children; and (2) 

the mother of Gary’s children had briefly resided with Kelly, the mother of the victims in the instant case.  See Brief for Appellant at 27 (referencing N.T., 

10/31/2016-11/03/2016, at 282-83). 

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Commonwealth v. Schley, 136 A.3d 511, 515 (Pa. Super. 2016) (citation 

and ellipses omitted). 

Pennsylvania Rule of Evidence 401 defines relevant evidence as 

“evidence having any tendency to make the existence of a fact that is of 

consequence to the determination of the action more probable or less probable 

than it would be without the evidence.”  Pa.R.E. 401.  Rule of Evidence 402 

provides that “[e]vidence that is not relevant is not admissible.”  Pa.R.E. 402.  

It is well settled that “the rule that irrelevant evidence is not admissible is 

categorical.”  Commonwealth v. Briggs, 12 A.3d 291, 340 (Pa. 2011). 

 In its Opinion, the trial court set forth the relevant portions of the trial 

transcript concerning Gary’s proposed testimony, addressed Greiner’s claim, 

and opined that it correctly ruled that such testimony, which pertained to 

persons unrelated to Greiner’s crimes, was not relevant.  See Trial Court 

Opinion, 10/17/17, at 25-27.  As we discern no abuse of discretion and agree 

with the trial court’s reasoning, we affirm on this basis as to Greiner’s fourth 

issue.  See id.4 

 In his fifth and final issue, Greiner argues that the trial court erred in 

sustaining the prosecutor’s objection, on relevance grounds, to defense 

counsel’s questioning Holly about her purported infidelity to Greiner during 

____________________________________________ 

4 As an addendum, we observe that during Greiner’s trial testimony, he 

presented the theory that the defense had sought to establish via Gary’s proposed testimony, i.e., that Holly and Kelly had colluded to fabricate the 

charges against Greiner.  See N.T., 10/31/2016-11/03/2016, at 405-06. 

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their marriage.  See Brief for Appellant at 28-29.  According to Greiner, this 

matter was relevant and “the evidence of Holly [] seeing other men while in a 

relationship and being married to [Greiner] was being offered to attack the 

credibility of the witness and show she has a motivation to exaggerate or be 

untruthful.”  Id. at 28. 

 The trial court concisely addressed this claim in its Opinion, set forth the 

relevant portion of Holly’s testimony, and opined that the court properly ruled 

that this matter was not relevant.  See Trial Court Opinion, 10/17/17, at 28-

29.  Moreover, the trial court correctly pointed out that it did permit defense 

counsel to cross-examine Holly as to whether she had a boyfriend while 

married to Greiner, and whether she was angry at Greiner.  See id. at 29; 

see also N.T., 10/31/2016-11/03/2016, at 307-08.  We conclude that the 

trial court properly exercised its discretion in precluding this irrelevant 

evidence, and affirm on the basis of its Opinion as to Greiner’s final issue.  

See Trial Court Opinion, 10/17/17, at 28-29.   

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 06/15/2018