J-S52027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

OMALI A. MCKAY

Appellant No. 221 WDA 2015

Appeal from the Judgment of Sentence January 30, 2015

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0002739-2013

BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.: FILED OCTOBER 15, 2015

Appellant, Omali A. McKay, appeals from the judgment of sentence 

entered on January 30, 2015, following his jury convictions for two counts of 

aggravated indecent assault of a child and one count each of criminal 

solicitation - involuntary deviate sexual intercourse (IDSI) by forcible 

compulsion, indecent assault of a complainant less than 13 years of age, and 

indecent exposure.1 Upon review, we affirm.

We briefly summarize the facts and procedural history of this case as 

follows. The Commonwealth filed the aforementioned charges against 

Appellant as the result of several incidents of sexual misconduct committed 

against the five-year-old niece of his girlfriend. The trial court held a three-

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1

 18 Pa.C.S.A. §§ 3125(b), 902(a), 3126(a)(7), and 3127(a), respectively. 
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day jury trial commencing on June 3, 2014. At trial, the then eight year-old 

victim testified to a number of instances wherein Appellant digitally 

penetrated her vagina. The victim also recalled an incident wherein 

Appellant exposed himself to her, digitally penetrated her, and told her to 

open her mouth. On that occasion, the victim stated that she closed her 

mouth immediately, because she feared Appellant would insert his penis into 

it. Thereafter, the victim testified that Appellant ejaculated on a bed. 

Moreover, based on pretrial argument, the trial court allowed evidence of 

Appellant’s prior bad acts under Pa.R.E. 404(b). Specifically, the trial court 

allowed the victim’s mother to testify that she feared Appellant in order to 

explain her failure to report the incidents to police promptly. 

At the conclusion of the trial, the jury convicted Appellant of the 

aforementioned crimes. On August 28, 2014, the trial court sentenced 

Appellant to concurrent terms of 10 to 20 years of incarceration for the two 

counts of aggravated assault, plus a consecutive term of five to 10 years of 

incarceration for criminal solicitation. The trial court imposed no further 

sentence on the remaining convictions. Accordingly, Appellant received an 

aggregate term of 15 to 30 years of incarceration. On September 5, 2014, 

Appellant filed a post-sentence motion. He filed an amended post-sentence 

motion on September 19, 2014. Following a hearing, the trial court denied 
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relief by order, and accompanying opinion, dated January 30, 2015. This 

timely appeal resulted.2 

On appeal, Appellant presents the following issues for our review:

I. Whether the Commonwealth’s evidence was against 

the weight of the evidence as to the count of criminal 

solicitation – involuntary deviate sexual intercourse 

(IDSI) forcible compulsion[?]

II. Whether the evidence presented at trial was sufficient 

to prove Appellant guilty as to the crime of criminal 

solicitation – IDSI forcible compulsion[?]

III. Whether the trial judge erred by abusing his discretion 

in allowing testimony of [] Appellant’s prior bad 

acts[?]

IV. Whether the trial judge erred by abusing his discretion 

in allowing testimony of the alleged victim who was 

not capable to perceive events accurately or express 

herself[?]

Appellant’s Brief at vii (complete capitalization omitted).

Initially, we note that Appellant did not cite any legal authority for 

issues I, III, and IV as presented on appeal. We find those issues waived for 

the following reasons:

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2 Appellant filed a notice of appeal on February 5, 2015. That same day, the 

trial court entered an order pursuant to Pa.R.A.P. 1925(b) directing 

Appellant to file a concise statement of errors complained of on appeal. 

Appellant complied timely on February 24, 2015. The trial court issued an 

opinion pursuant to Pa.R.A.P. 1925(a) on March 3, 2015, relying upon its 

January 30, 2015 opinion. 
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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,

675 A.2d 331, 334 (Pa. Super. 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”).

In Commonwealth v. B.D.G., 959 A.2d 362, 371–372 (Pa. 

Super. 2008), a panel of this Court offered the following 

relevant observation regarding the proper formation of the 

argument portion of an appellate brief:

In an appellate brief, parties must provide an 

argument as to each question, which should include 

a discussion and citation of pertinent authorities. 

Pa.R.A.P. 2119(a). This Court is neither obliged, nor 

even particularly equipped, to develop an argument 

for a party. Commonwealth v. Williams, 782 A.2d 

517, 532 (Pa. 2001) (Castille, J., concurring). To do 

so places the Court in the conflicting roles of 

advocate and neutral arbiter. Id. When an appellant 

fails to develop his issue in an argument and fails to 

cite any legal authority, the issue is waived. 

Commonwealth v. Luktisch, 680 A.2d 877, 879 

(Pa. Super. 1996).

Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012). 

Accordingly, we are constrained to find Appellant’s issues I, III, and IV 

waived.3

In his second issue presented, Appellant contends the Commonwealth 

failed to present sufficient evidence at trial to convict him of criminal 

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3

In fact, Appellant cites only one legal decision in his entire brief that sets 

forth the standard of review for his second issue presented. Despite the 

limited argument, we shall address that issue since Appellant provided some 

authority and we are able to decipher the claim presented. 
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solicitation - IDSI by forcible compulsion. Appellant’s Brief at 5. He argues 

the Commonwealth failed to prove “he commanded, encouraged or 

requested [the victim], by making verbal and/or nonverbal command, to 

perform oral sexual intercourse upon him[.]” Id. Appellant contends the 

victim “testified that when [A]ppellant walked into the room he did not say 

anything, he laid on the floor and he did not touch her.” Id.

The following standard governs our review of a challenge to the 

sufficiency of the evidence:

As a general matter, our standard of review of sufficiency 

claims requires that we evaluate the record in the light most 

favorable to the verdict winner giving the prosecution the 

benefit of all reasonable inferences to be drawn from the 

evidence. Evidence will be deemed sufficient to support the 

verdict when it establishes each material element of the 

crime charged and the commission thereof by the accused, 

beyond a reasonable doubt. Nevertheless, the 

Commonwealth need not establish guilt to a mathematical 

certainty. [T]he facts and circumstances established by the 

Commonwealth need not be absolutely incompatible with 

the defendant's innocence. Any doubt about the defendant's 

guilt is to be resolved by the fact finder unless the evidence 

is so weak and inconclusive that, as a matter of law, no 

probability of fact can be drawn from the combined 

circumstances.

Commonwealth v. Rahman, 75 A.3d 497, 500–501 (Pa. Super. 2013).

“A person is guilty of solicitation to commit a crime if with the intent of 

promoting or facilitating its commission he commands, encourages or 

requests another person to engage in specific conduct which would 

constitute such crime or an attempt to commit such crime[.]” 18 Pa.C.S.A. 

§ 902.
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“A person commits a felony of the first degree when the person 

engages in deviate sexual intercourse with a complainant [] by forcible 

compulsion[.]” 18 Pa.C.S.A. § 3123(a). Section 3101 defines the terms 

deviate sexual intercourse and forcible compulsion, in pertinent part, as 

follows: 

“Deviate sexual intercourse.” Sexual intercourse per os 

or per anus between human beings [].

“Forcible compulsion.” Compulsion by use of physical, 

intellectual, moral, emotional or psychological force, either 

express or implied. 

18 Pa.C.S.A. § 3101. Accordingly, “[t]he crime of involuntary deviate sexual 

intercourse occurs when the actor, by physical compulsion or threats 

thereof, coerces the victim to engage in acts of anal and/or oral 

intercourse.” Commonwealth v. Zingarelli, 839 A.2d 1064, 1070 (Pa. 

Super. 2003).

Here, the trial court concluded:

The victim testified that [Appellant] walked out of the 

bathroom, dropped a towel from around his waist, exposed 

his penis, and told her to open her mouth. She opened her 

mouth, then clamped it shut; and [Appellant] then 

ejaculated. This is sufficient evidence to support a finding 

that [Appellant] solicited the victim to engage in oral sexual 

intercourse.

Trial Court Opinion, 1/30/2015, at 3.

We agree. Viewing the evidence in the light most favorable to the 

Commonwealth, as our standard requires, the following testimony was 

adduced at trial. The victim testified that while she was asleep in her aunt’s 
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bedroom, Appellant came out of the bathroom, dropped his towel and told 

the victim to open her mouth. N.T., 6/3/2014, at 171-172. When asked 

what she did in response, the victim physically “opened her mouth wide and 

then closed it[,] clicking her teeth.” Id. at 173-174. The victim further 

stated, “[a]fter he asked [her] to open [her] mouth,” Appellant “peed on the 

bed.” Id. 174-175. The “pee” came out of Appellant’s “private.” Id. at 192. 

She described the “pee” as looking like “soda,” more specifically, like 

“Sprite.” Id. at 175. As a result, there was a wet spot on the bed. Id. at 

187. The victim’s mother testified similarly that, immediately following this 

incident, the victim told her:

[The victim] was asleep in the bedroom and that [Appellant] 

came in and woke her up and he had just a towel on and 

she said he exposed himself to her and that he put his 

finger in her private and rubbed back and forth real hard. 

And she also said that he told her to open her mouth, but 

then she closed it immediately, and she said that she closed 

it because she knew that he was trying to put his pee pee in 

her mouth.

Id. at 133. 

Based upon the foregoing, we conclude that the evidence was 

sufficient to permit the jury to infer Appellant intended to promote or 

facilitate the victim’s engagement in the act of oral intercourse by 

commanding, encouraging, or requesting her to open her mouth while 

exposing himself and subsequently ejaculating. Accordingly, Appellant’s 

second claim lacks merit.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/2015