J-S17038-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

THOMAS R. KOVACK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1127 WDA 2022

Appeal from the Judgment of Sentence Entered June 8, 2022

In the Court of Common Pleas of Beaver County

Criminal Division at No(s): CP-04-CR-0001084-2020

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

THOMAS R. KOVACK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1128 WDA 2022

Appeal from the Judgment of Sentence Entered June 8, 2022

In the Court of Common Pleas of Beaver County

Criminal Division at No(s): CP-04-CR-0001085-2020

BEFORE: LAZARUS, J., OLSON, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: July 28, 2023

Appellant, Thomas R. Kovack, appeals from the judgments of sentence 

entered in the Beaver County Court of Common Pleas, following his jury trial 

conviction at Case No. 1084-2020 for three counts of indecent assault—person 

less than 13 years of age, one count of unlawful contact with a minor—sexual 

offenses, three counts of corruption of minors, and two counts of indecent 
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assault without consent;

1 and at Case No. 1085-2020 for one count each of 

unlawful contact with a minor—sexual offenses, indecent assault—person less 

than 13 years of age, corruption of minors, and indecent assault without 

consent. We affirm.

The relevant facts and procedural history of these cases are as follows. 

On May 11, 2020, Midland Borough Police received a child line report 

concerning the sexual assault of an eight-year-old minor, J.M., which occurred 

at J.M.’s house. Police arrested Appellant as the perpetrator of the assault. 

During their investigation, detectives also learned about Appellant’s assault of 

a five-year-old minor, A.L., which occurred in A.L.’s home. Detectives further

learned that a third individual, T.T., reported that Appellant had previously 

assaulted her when she was a child. The families of the minor victims knew 

each other and would participate in family outings together; both families had 

longstanding relationships with Appellant. 

[At trial,] J.M. identified Appellant as someone that she 

knew. She described the incident that occurred in the fort 

that was made of blankets and pillows. In her words, she 

stated that Appellant touched her “on [her] private part and 

[her] bum,” and the contact occurred underneath her 

clothes. She stated that she was just “playing in the tent” 

and Appellant pulled her over to him and began touching 

her in the manner that she described. She testified that she 

tried to “scoot” away from him as he was touching her but 

that she thought that Appellant pulled her closer to [him]. 

J.M. testified that the touching that occurred through the 

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1 18 Pa.C.S.A. §§ 3126(a)(7), 6318(a)(1), 6301(a)(1)(i), and 3126(a)(1), 

respectively.
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open area of the tent while J.M. unsuccessfully tried to scoot 

away from Appellant made J.M. feel uncomfortable. 

The incident that occurred on April 9, 2020, was also 

detailed during the testimony of J.M. J.M. testified she was 

in her father’s bedroom, at that time the television was on, 

but her back was turned to the television because she was 

coloring on her father’s notebook. Appellant came over to 

J.M. and started touching her. J.M. testified that Appellant 

was touching her on her “bum,” that Appellant was touching 

her underneath her clothes and that his hands were 

touching her skin. She confirmed that her father came into 

the room and saw what Appellant was doing to J.M.

J.M. also testified that there was another incident involving

Appellant. The third incident occurred at a close family 

friend’s house. At that time, Appellant told J.M. to take off 

her clothes and lay on him. J.M. did not give in to his 

demands on that day. Appellant did not object to this 

testimony, did not request a cautionary instruction and did 

not request a cautionary instruction to be included in the 

final instructions of the court.

* * *

During the testimony of the minor, A.L, she acknowledged 

that she knew Appellant and that she became aware of 

Appellant when he lived at [her] grandmother’s house. The 

child testified that, as of the date of her testimony, she was 

7 years old. On the date that the incident occurred, A.L. 

was dropped off at Appellant’s home by the child’s 

grandmother. The grandmother did not remain on the 

premises. Shortly after the child arrived at Appellant’s 

residence, Appellant took A.L. upstairs in the apartment.

The child was then taken into one of the bedrooms located 

on the second floor of the apartment. The child was then 

instructed by Appellant to remove her clothes. She went in 

the bathroom where her clothes were removed. Appellant 

told the now unclothed child to come out of the bathroom. 

When she came out of the bathroom Appellant was now on 

the bed with no clothes on and a brown towel covering his 

“private parts.”
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Once the child was on the bed and Appellant was on the bed 

with the brown towel draped over his middle area Appellant 

then told the child “to get on top of him.” The child did as 

instructed by Appellant[. W]hen the child complied with the 

demands of Appellant, Appellant then made the child “go up 

and down” on Appellant in the area where the towel was 

located. While the child was doing as instructed by 

Appellant, Appellant was rubbing the child’s “butt” with his 

hands. Eventually, Appellant instructed the child to get off 

of Appellant and the child, once again, complied with his 

request. The child was then laying on the bed face up. 

Appellant then removed the brown towel from his person 

and placed it on the child. Appellant then got on top of the 

child and, in the child’s words, “he went up and down” on 

the child as she lay on the bed. Eventually Appellant got off 

of the child; the child and Appellant put their clothes back 

on and then went downstairs in Appellant’s apartment. 

Appellant and the child awaited the arrival of J.M. and her 

mother, as A.L. was scheduled to spend some time with [] 

J.M. that day. When J.M. and her mother arrived at 

Appellant’s home, A.L., [J.M.] and her mother were 

transported to their home by Appellant. A.L. spent the early 

part of the evening at that home before she returned to her 

own home shortly after 9:00 p.m.

* * *

At the end of the day...A.L. was still at the home of [J.M. and 

her mother] and she was visibly upset. A.L.’s mother had 

to pick up A.L. and take her home because of her emotional 

state. The child did not immediately disclose what Appellant 

did to her on that date, but she eventually disclosed the 

incident to her mother and her grandmother.

* * *

T.T., age 29 at the time of the trial, provided testimony 

regarding her experience with Appellant that occurred when 

she was a child. This evidence was introduced pursuant to 

an agreement between the parties...[where] Appellant 

consented to the introduction of this [Pa.R.E.] 404(b)(2) 

evidence in consideration of the Commonwealth’s 

agreement to dismiss a third set of charges arising out of 

the alleged assault of T.T. that were filed against Appellant.
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T.T. testified that when she was between three and five 

years old that Appellant would take her to a bedroom at her 

grandmother’s house and engage in inappropriate sexual 

conduct with her. That conduct consisted of multiple times 

where he removed her bathing suit and masturbated over 

her. 

(Trial Court Opinion (Case No. 1084), 11/28/22, at 7-15) (footnotes omitted).

The trial court consolidated Cases 1084 and 1085 for trial.2 At the 

conclusion of trial, the jury convicted Appellant of the aforementioned 

charges. On June 8, 2022, the trial court sentenced Appellant to an aggregate 

term of 30 to 70 months of incarceration at Case 1084. The court imposed a 

concurrent sentence of 9 to 20 months’ incarceration plus a two-year term of 

probation at Case 1085.3 On June 10, 2022, Appellant filed a timely postsentence motion and a motion for appointment of appellate counsel. The trial 

court granted the motion for appointment of appellate counsel on June 8, 

2022, and denied the post-sentence motions on September 16, 2022. 

Appellant filed timely notices of appeal at each case on September 26, 2022.4 

Appellant further complied with the trial court’s order to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal, and he filed a 

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2 The charges at Case 1084 related to Appellant’s assault on J.M. The charges 

at Case 1085 related to Appellant’s assault on A.L. 

3 The trial court subsequently issued an amended sentencing order, which 

corrected a patent, clerical error. 

4 This Court consolidated the appeals sua sponte. 
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timely concise statement on October 18, 2022. 

Appellant raises the following issues on appeal:

Whether Appellant’s conviction should be reversed because 

the Commonwealth failed to present sufficient evidence to 

prove Appellant’s guilt beyond a reasonable doubt as to the 

element of contacting or communicating with a minor?

Whether Appellant’s conviction should be reversed because 

trial coun[s]el’s failure to request a limiting instruction 

regarding uncharged conduct so undermined the tru[t]h 

determining process that no reliable adjudicat[io]n of guilt 

or innocen[c]e could have taken place?

Whether Appellant’s conviction should be reversed because 

the trial court’s failure to give a limiting instruction 

regarding uncharged conduct so undermined the tru[t]h 

determining process that no reliable adjudicat[io]n of guilt 

or innocen[c]e could have taken place?

(Appellant’s Brief at 8) (unnecessary capitalization omitted).

In his first issue, Appellant argues that the evidence underlying his 

unlawful contact with a minor conviction was insufficient because the 

Commonwealth failed to prove that Appellant communicated with J.M. for the 

purpose of engaging in a sexual offense.5 Specifically, Appellant claims that 

the evidence established that in the first incident, in the fort, Appellant sat 

down next to J.M. and touched her, but that no verbal communication took 

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In his questions presented, Appellant does not specify whether he is 

challenging the sufficiency of the evidence for his conviction of unlawful 

contact at Case 1084 (related to his assault on J.M.) or at Case 1085 (related 

to his assault on A.L.). Nevertheless, Appellant’s argument section pertains 

only to J.M. Thus, we limit our review to the sufficiency of the evidence 

regarding Appellant’s unlawful contact conviction at Case 1084 related to J.M. 
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place. In the second incident, on the bed, Appellant contends that J.M. was 

already sitting in the bed and he lifted her nightgown and touched her; but

Appellant maintains there was no evidence of verbal or nonverbal 

communication. Finally, Appellant insists that J.M.’s testimony about the third 

incident—where he directed her to lie on top of him with her clothes off—was 

not charged and should not be used to establish his guilt of unlawful conduct

with a minor. Appellant concludes the evidence was insufficient to sustain his 

conviction for unlawful contact with a minor, and this Court must reverse. We 

disagree.

Our well-settled standard and scope of review for a challenge to the 

sufficiency of the evidence underlying a conviction are as follows:

When examining a challenge to the sufficiency of the 

evidence:

The standard we apply...is whether 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 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 
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must be considered. Finally, the trier of fact while 

passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, 

part or none of the evidence.

This standard is equally applicable in cases where the 

evidence is circumstantial, rather than direct, provided that 

the combination of evidence links the accused to the crime 

beyond a reasonable doubt.

Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc), 

appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations, quotation 

marks, and emphasis omitted).

The Crimes Code defines unlawful contact with a minor as follows:

§ 6318. Unlawful contact with minor

(a) Offense defined.−A person commits an offense if he 

is intentionally in contact with a minor, or a law enforcement 

officer acting in the performance of his duties who has 

assumed the identity of a minor, for the purpose of engaging 

in an activity prohibited under any of the following, and 

either the person initiating the contact or the person being 

contacted is within this Commonwealth:

(1) Any of the offenses enumerated in Chapter 31 (relating 

to sexual offenses).

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(c) Definitions.−As used in this section, the following 

words and phrases shall have the meanings given to them 

in this subsection:

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“Contacts.” Direct or indirect contact or communication by 

any means, method or device, including contact or 

communication in person or through an agent or agency, 

through any print medium, the mails, a common carrier or 

communication common carrier, any electronic 
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communication system and any telecommunications, wire, 

computer or radio communications device or system.

18 Pa.C.S.A. § 6318(a)(1), (c). “Even though the statute is entitled ‘unlawful 

contact with a minor,’ it is best understood as ‘unlawful communication with 

a minor.’ By its plain terms, the statute prohibits the act of communicating 

with a minor for enumerated sexual purposes.” Commonwealth v. Rose, 

960 A.2d 149, 152-53 (Pa.Super. 2008), appeal denied, 602 Pa. 657, 980 

A.2d 110 (2009). Additionally, “the uncorroborated testimony of a single 

witness is sufficient to sustain a conviction for a criminal offense, so long as 

that testimony can address and, in fact, addresses, every element of the 

charged crime.” Commonwealth v. Johnson, 180 A.3d 474, 481 (Pa.Super. 

2018), appeal denied, 651 Pa. 431, 205 A.3d 315 (2019).

In Commonwealth v. Velez, 51 A.3d 260 (Pa.Super. 2012), this Court 

affirmed the conviction of the defendant for unlawful contact with a minor 

after the victim’s mother found the defendant molesting her daughter who 

was nude from the waist down with her knees up and legs apart. This Court 

explained that “[t]he victim would not have had her pants removed and her 

legs in that position absent previous contact by [the defendant], either verbal 

or physical.” Id. at 266. Therefore, this Court concluded it was “reasonable 

to infer that [the defendant] directed the victim, either verbally or nonverbally, 

to unclothe below the waist and to assume that pose.” Id.

In Commonwealth v. Leatherby, 116 A.3d 73 (Pa.Super. 2015), this 

Court distinguished Velez and held that evidence that the defendant touched 
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the victim’s chest and buttocks while the victim was sleeping did not establish 

the communication necessary for unlawful contact with a minor. This Court 

explained that the defendant did not say anything or communicate to the 

victim to assume any certain position or to submit to any given act. Id. at 

80. 

Instantly, in addressing Appellant’s sufficiency challenge, the trial court 

explained that Appellant intruded the space that J.M. had created for herself 

in the fort she built and communicated to her by his actions that he was going 

to touch her buttocks and genitalia. She then attempted to scoot away from 

him, but Appellant pulled her closer to him as she tried to scoot away. In 

doing so, Appellant communicated that the assault was going to continue, and 

J.M. needed to position herself closer to him. (See Trial Court Opinion (Case 

No. 1084) at 18-19). With respect to the second incident, the trial court 

explained:

The incident with J.M. that occurred on April 9, 2020 was 

also ripe with communications as that term has developed 

in Pennsylvania law. Appellant invaded the space where 

J.M. chose to be alone. He entered the bedroom quietly in 

a manner from which it can be inferred was done so as not 

to provide J.M. with the chance to exit that bedroom before 

the adult intruder could begin his assault. He entered that 

room to assault an eight-year old child who was in the habit 

of putting something in front of doors of rooms that she was 

trying to block him from coming into those rooms because 

she did not want him to touch her anymore. ([N.T. Trial, 

3/10/22,] at 103). Once he began his assault of J.M., he 

inserted his hands under the clothing being worn by J.M. 

Now his bare skinned hands were in contact with J.M.’s 

buttocks. (Id. at 127). The communication to be inferred 

from that nonverbal communication was that you will 
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remain here but the touching will involve me manipulating 

you so that my hands can go under your clothing and up 

your leg. Finally, when J.M.’s father entered the room and 

observed that assault occurring on J.M. and observed J.M. 

in the position with Appellant holding up her clothing with a 

rod, it was reasonable to infer that Appellant communicated 

with the victim, either nonverbally or verbally, to assume 

the position in which her father found her. ...

(Id. at 19-20).

We agree with the trial court’s analysis that the evidence was sufficient 

to establish that Appellant was in contact with J.M. for a sexual purpose. See 

Johnson, supra; Rose, supra. This case is distinguishable from Leatherby, 

because here J.M. was awake and there is evidence that Appellant nonverbally 

communicated to her that she must submit to his unwanted touching of her 

private parts. Viewed in the light most favorable to the Commonwealth as 

verdict-winner, the evidence was sufficient to sustain Appellant’s conviction. 

See Orr, supra. Appellant’s first issue is meritless.

Regarding Appellant’s second and third issues on appeal, we observe 

that Appellant failed to include any argument concerning these issues in the 

discussion portion of his brief. Therefore, those issues are waived. See

Pa.R.A.P. 2119(a); Commonwealth v. Hakala, 900 A.2d 404 (Pa.Super. 

2006), appeal denied, 589 Pa. 737, 909 A.2d 1288 (2006) (stating failure to 

develop argument on appeal results in waiver). Accordingly, Appellant’s final

two issues are waived, and we affirm the judgments of sentence.

Judgments of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2023