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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

EDWIN DESEAN STUBBS, : No. 1351 EDA 2018

:

 Appellant :

Appeal from the Judgment of Sentence, May 1, 2018,

in the Court of Common Pleas of Montgomery County

Criminal Division at No. CP-46-CR-0008668-2016

BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 22, 2019

Edwin DeSean Stubbs appeals from the May 1, 2018 judgment of 

sentence entered in the Court of Common Pleas of Montgomery County 

following his conviction in a waiver trial of one count each of unlawful contact 

with minor – sexual abuse; criminal use of communication facility; and 

corruption of minors.1 The trial court imposed an aggregate sentence of 6 to 

23 months of incarceration, followed by a 7-year probationary term. We 

affirm.

The relevant facts, as gleaned from the trial court opinion, are as 

follows: In the fall of 2015, appellant was a communications director at a day 

and boarding school located in Montgomery County. Appellant’s position 

 

1 18 Pa.C.S.A. §§ 6318(a)(5), 7512(a), and 6301(a)(1)(i), respectively.
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required him to live in a campus dormitory and oversee the safety and security 

of the students who lived in that dormitory. Appellant also oversaw the 

after-school photography club. Appellant identified as homosexual. Appellant 

bonded with G.S., a 15-year-old new student who had joined the photography 

club.2 G.S. also identified as homosexual. Appellant and G.S. began 

exchanging text messages and communicating on the multimedia messaging 

application Snapchat.

By the spring of 2016, the relationship between G.S. and appellant 

“morphed into something more sinister, driven by [appellant’s] selfish, 

irresponsible, and unyielding sexual proclivities.” (Trial court opinion, 

10/16/18 at 2.) In March 2016, the first inappropriate incident occurred 

wherein appellant communicated with G.S. via Snapchat and asked whether 

G.S. had “ever measured ‘it’ yet and when was the last time you ‘rubbed your 

junk.’” (Id. at 2-3.) On May 18, 2016, appellant again initiated contact with 

G.S. via Snapchat. On that date, appellant requested that G.S. send appellant 

a picture of G.S.’s penis. G.S. refused. Appellant became angry and told G.S. 

“their friendship was ‘done’” and directed G.S. to retrieve his camera from 

appellant’s office and then leave. (Id. at 3.)

G.S. shared appellant’s Snapchat solicitation by texting the screenshot 

to his classmate and friend, E.C. G.S. confided in E.C. because she had told 

 

2 The record reflects that the acts giving rise to appellant’s convictions 

occurred when appellant was 24 years old. (See police criminal complaint, 

10/25/16.)
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him a week earlier that appellant had solicited another student, E.C.’s 

19-year-old boyfriend, S.D., in a similar way.

The next morning, G.S. and E.C. reported appellant’s actions to 

Carol Dougherty, appellant’s co-worker. The school’s headmaster was 

immediately notified, and campus security removed appellant from campus. 

“During the ensuing investigation, additional incidents of [appellant’s] 

inappropriate conduct were uncovered.” (Id. at 5.)

Following his conviction, appellant elected against filing a post-sentence 

motion. Appellant did, however, file a timely notice of appeal. The trial court 

ordered appellant to file a statement of errors complained of on appeal 

pursuant Pa.R.A.P. 1925(b). The trial court then filed its Rule 1925(a) opinion.

On appeal, appellant raises the following issues:

1. Did the [trial c]ourt err by finding there was 

sufficient evidence presented at trial to convict 

[appellant] on charges of Unlawful Contact with 

a Minor and was that decision also made against 

the weight of the evidence?

2. Did the [trial c]ourt err when it denied 

[appellant’s] Motion for Judgment of Acquittal?

Appellant’s brief at 7.

Appellant first claims that the evidence was insufficient to sustain his 

unlawful contact with minor conviction. It is well settled that when challenging 

the sufficiency of the evidence on appeal, in order to preserve that issue for 

appeal, an appellant’s Rule 1925(b) statement must specify the element or 

elements upon which the evidence was insufficient. Commonwealth v. 
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Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 

2010) (citation and internal quotation marks omitted). In his Rule 1925(b) 

statement, appellant frames his sufficiency challenge as follows: “The 

evidence presented at trial was insufficient to prove the charges of Unlawful 

Contact with Minor-Sexual Abuse and the decision was also made against the 

weight of the evidence.” (Appellant’s “concise statement of matters 

complained of on appeal pursuant to Pa.R.A.P. 1925(b)”, 5/25/18 at 1, ¶ 1.) 

Because appellant failed to specify the element or elements upon which he 

now claims the evidence was insufficient, appellant waives this issue on 

appeal. See Gibbs, 981 A.2d at 281.

Nevertheless, we note that in his brief, appellant argues that 

“[s]ufficient doubt existed regarding who [appellant] believed he was 

communicating with,” as demonstrated by appellant’s testimony at trial that 

he did not know who he was communicating with and that he was intoxicated 

and Snapchatting with 4 to 5 people simultaneously at the time he allegedly

committed the offense. (Appellant’s brief at 23.) In so arguing, appellant 

challenges the weight of the evidence, not its sufficiency. See, e.g., 

Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003) 

(reiterating that a review of the sufficiency of the evidence does not include a 

credibility assessment; such a claim goes to the weight of the evidence); 

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997) (restating 

that the fact-finder makes credibility determinations, and challenges to those 
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determinations go to the weight of the evidence, not the sufficiency of the 

evidence).

Although appellant includes a weight challenge in his first issue on 

appeal, to be preserved for appellate review, Pennsylvania Rule of Criminal 

Procedure 607 requires an appellant to raise the claim 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.” Pa.R.Crim.P. 607(A). “The purpose of this rule is to 

make it clear that a challenge to the weight of the evidence must be raised 

with the trial judge or it will be waived.” Pa.R.Crim.P. 607, comment.

Our review of the certified record before us reveals that appellant failed 

to raise his weight claim with the trial judge in a motion for a new trial orally, 

on the record, prior to sentencing; by written motion prior to sentencing; or 

in a post-sentence motion. Accordingly, appellant waives his weight claim on 

appeal.3

Appellant next contends that the trial court erred in denying his motion 

for judgment of acquittal. 

 

3 We note that even if appellant preserved his weight claim, appellant does 

nothing more than invite this court to assess witness credibility and reweigh 

the evidence, which is not a function of an appellate court. “The [trial court], 

as fact-finder[, however,] had the duty to determine the credibility of the 

testimony and evidence presented at trial.” Commonwealth v. Talbert, 129 

A.3d 536, 546 (Pa.Super. 2016) (citation omitted). Appellate courts cannot 

and do not substitute their judgment for that of the fact-finder. See id.
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The record reflects that at the close of the Commonwealth’s evidence,

appellant orally made a motion for judgment of acquittal that (1) challenged 

the evidence with respect to crimes committed against S.D. and 

(2) challenged the trial court’s jurisdiction with respect to crimes committed 

against G.S. (Notes of testimony, 10/25/17 at 124-128.) The record reflects 

that appellant was acquitted of all charges stemming from crimes committed 

against S.D. On appeal, appellant does not challenge the trial court’s 

jurisdiction with respect to crimes committed against G.S., all of which

resulted in convictions. Therefore, appellant has no appealable claims 

regarding the trial court’s denial of his motion for judgment of acquittal. 

Nevertheless, we note that appellant complains that the trial court erred in 

denying that motion because his unlawful use of communication facility and 

corruption of minors convictions:

necessarily flow from the same flaws in reasoning 

presented [in the argument on his first issue]. 

Without the fallacies inherent in determining sufficient 

proof has been presented to convict [appellant] of 

Unlawful Contact with a Minor, convictions on these 

two counts are likewise impossible as a matter of law.

It is worth noting, however, that the Commonwealth, 

as part of their investigation, did not see fit to seize 

any of [appellant’s] electronic devices in order to 

attempt to corroborate any of the fictions alleged by 

any of the witnesses against him. Whether this be an 

oversight, an error, or a deliberate, calculated failure 

to act, is irrelevant. It is enough to note that the 

Commonwealth did not seek to bolster any of their 

charges against [appellant] by the one definitive 

means that would have either exonerated him or 

convicted him beyond all reasonable doubt.
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Appellant’s brief at 24-25.

To the extent that appellant attempts to challenge the sufficiency of the 

evidence to sustain his unlawful use of communication facility and corruption 

of minors convictions, appellant waives those challenges for failure to raise 

them in his Rule 1925(b) statement. With respect to appellant’s seeming 

claim that those convictions cannot stand because the Commonwealth failed 

to seize appellant’s devices which would have either corroborated the evidence 

against appellant or exonerated him, appellant failed to raise this issue with 

the trial court and, therefore, waives it on appeal.4 See Pa.R.A.P. 302(a) 

(issues not raised in the lower court are waived and cannot be raised for the 

first time on appeal).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/22/19

 

4 Even if appellant preserved this issue below, appellant cites to no authority 

that required the Commonwealth to corroborate its evidence by seizing 

appellant’s devices, and we are aware of none. As such, we would have 

concluded that appellant waived this claim for failure to cite to pertinent 

authority to substantiate the claim. Pa.R.A.P. 2119(a); see also

Commonwealth v. Simmons, 56 A.3d 1280, 1286 (where defendant failed 

to cite to pertinent legal authority to substantiate a claim, defendant waives 

the claim under Pa.R.A.P. 2119(a)).