J

### -S40042-19 NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
SHANE MUSSELMAN 

### Appellant : No. 336 WDA 2019 Appeal

### from theJudgment of Sentence Entered June 26, 2017 In the 

### Court ofCommon Pleas ofCambria County Criminal Division at No(s): 

### CP-11-CR-0000761-2016
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J. MEMORANDUM BY PELLEGRINI, J.: 

### FILEDAUGUST 

### 09, 2019 Shane Musselman (Musselman) appeals 

### from the

### judgment of sentence entered by

### the Court of Common Pleas 

### of Cambria 

### County 

### (trial court) 

### after his 

### jury conviction of Rape by Forcible Compulsion, Sexual Assault, and 

### Indecent

### Assault.' We 

### affirm. Musselman's case 

### returns to 

### this Court 

### for the 

### third time 

### after being remanded 

### twice 

### for his 

### failure to 

### file a brief. We recite only the 

### pertinent procedural 

### history and facts necessary 

### for our review. On June 26, 2017, 

### after a 

### jury convicted Musselman of 

### the foregoing charges, the 

### court sentenced him to not less 

### than 

### four nor more 

### than ten

### years' incarceration on


### ' 18 Pa.C.S. §§ 

### 3121(a)(1), 3124.1, 

### 3126(a)(2), respectively.

Retired SeniorJudge assigned to 

### the Superior Court.J

### -S40042-19
the rape 

### conviction.2 On July 19, 

### 2017, Musselman appealed 

### pro se and, on March 13, 2018, 

### this Courtdismissed 

### the appeal 

### for his

### failure to file a brief. On March 29, 2018, 

### after Musselman filed a 

### pro se 

### petition pursuant to 

### the Post 

### Conviction ReliefAct (PCRA)3seeking leaveto

### file a post

### -sentence motion and notice of appeal 

### nunc pro tunc, and 

### after the 

### court appointed PCRA counsel, 

### the parties agreed to 

### the 

### reinstatement of Musselman's post- sentence and 

### appellate rights. Musselman filed a counseled notice 

### of appeal
on June 11, 

### 2018, which we dismissed on October 26, 2018, 

### for Musselman's 

### failureto 

### file a brief. 

### After the record was 

### returned to 

### the

### trial court, on December 21, 

### 2018, Musselman filed a 

### "Nunc ProTunc Motion to Reinstate

### Appellate Rights"which the 

### trial court granted and 

### reinstated Musselman's 

### right to appeal 

### nunc pro tunc. The 

### trial court restored Musselman's 

### rights only to 

### the single issue raised in 

### theJuly 5, 2018 

### statementof 

### matters complained of on appeal, 

### i.e., his challengeto 

### the

### weight ofthe evidence. On February 6, 2019, Musselman filed a counseled Post

### -Sentence Motion to Set-Aside 

### Verdict. Within this motion, Musselman raised 

### the issue of 

### the weight of the evidence 

### and/or the sufficiency of the evidence. 

### (See POST-TRIAL MOTION TO SET ASIDE

2 The 

### courtfound 

### that the 

### othertwo convictions were merged 

### for sentencing purposes.

3 42 Pa.C.S. §§ 

### 9541-9546. 

## -2J

### -S40042-19 VERDICT, 

### 2/06/19). The 

### trial court again 

### granted Musselman's 

### request 

### for the 

### reinstatement of his appeal 

### rights nunc pro tunc and he now 

### timely appeals. When 

### the 

### trial court granted the 

### motion, it also ordered Musselman to file a concise 

### statement of 

### matters complained of on appeal. However, no concise 

### statement was 

### ever filed by Musselman. Nonetheless, 

### the 

### trial court issued a Rule 

### 1925(a) Opinion 

### where it only addressed 

### the weight of the evidence issue, 

### the only issue raised in 

### theJuly 5, 2018 

### statement of 

### matters complained of on appeal, 

### finding 

### that it had been waived because it was not raised beforethe 

### trial court in post

### -sentence motions. 

### See Pa.R.Crim.P. 607. Musselman 

### attempted to 

### file an Amended 

### Statement of Matters Complained of on Appeal, which the lower 

### court declined to address, as it found 

### that it exceeded 

### the scope of its 

### order reinstating Musselman's 

### direct appeal 

### rights. Here, Musselman raises a

### sufficiencyofthe evidence issue

### that iswaived
on 

### two bases. First, 

### the 

### court ordered Musselman to 

### file a Rule 

### 1925(b) statement in 

### support of

### this third appeal and hefailed to do so. Our 

### jurisprudence is clear and well

### -settled, and 

### firmly establishes 

### that: Rule 

### 1925(b) sets 

### out a simple 

### bright-line rule, which obligates an 

### appellant to 

### file and serve a Rule 

### 1925(b) statement, when so 

### ordered; any issues not raised in a Rule 

### 1925(b) 

### statement will be deemed 

### waived; the courts lack 

### the 

### authority to 

### countenance deviations 

### from the Rule's 

### terms; the Rule's 

### provisions are not 

### subject to 

### adhoc 

### exceptions or

### selective 

### enforcement; appellants and 

### their counsel are responsible 

### for complying 

### with the Rule's 

### requirements[.]

. . . 

### [I]n order to preserve 

### their claims 

### for appellate review, 

### [a]ppellants must complywhenever the 

### trial court orders 

### them to 

### file a 

### Statement of Matters Complained of on Appeal 

### pursuant to Pa.R.A.P. 1925.

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### -S40042-19 Any issues not raised in a Pa.R.A.P. 

### 1925(b)statement will be deemed waived. 

### Commonwealth v. 

### Hill, 16 A.3d 

### 484, 494 (Pa. 

### 2011) 

### (quotation marks and 

### citation 

### omitted); see

### also Pa.R.A.P. 

### 1925(b)(4)(vii) ("Issues not included in 

### the 

### Statement and/or not raised in accordance 

### with the provisions of this paragraph 

### (b)(4) are 

### waived."). Additionally, even ifwewere to consider Musselman'sJuly 5, 2018 Rule 

### 1925(b) 

### statement as 

### fulfilling the mandate of Rule 

### 1925(b), since 

### the 

### court limited him to 

### the issue raised 

### therein, it did not include a 

### sufficiency of the evidence 

### allegation. For both ofthese reasons, Musselman's 

### sufficiencyofthe evidence issue is waived on appeal. 

### See

### Hill,supra at494. However, even if his claim 

### were 

### properly preserved, itwould not 

### merit relief. Musselman argues 

### that the evidence was 

### insufficient because 

### "the testimonyofthe alleged

### victim was 

### completely unsupported by any

### variety of physical or medical evidence, and her actions 

### following the alleged crimes were in 

### stark contrast to her

### testimony." (Musselman's Brief, at 5).4 The

### standard we

### apply in 

### reviewing the sufficiencyoftheevidence is 

### whether viewing all 

### the evidence 

### admitted at 

### trial in 

### the light most favorable to 

### the 

### verdict winner, there is 

### sufficient evidence toenable

### thefact

### -findertofind 

### everyelementofthe 

### crime beyond

4 Musselman's claim 

### arguably goes to 

### the 

### weight of the evidence, not the 

### sufficiencyofthe evidence, which is a challenge

### thatthe Commonwealth failed to prove a specific 

### element of a 

### particular crime. 

### See

## Irvin, infra at 

### 75-76. However, any

### weight claim would be waived 

### for Musselman's 

### failure to raise it in 

### the 

### trial court. 

### See Pa.R.Crim.P. 

### 607(A); Pa.R.Crim.P. 

### 607, cmt ("The purpose 

### of this rule is to make clear 

### that a challenge to 

### the 

### weight of the evidence 

### must be raised 

### with the 

### trialjudge or it 

### will be 

### waived.").

- 4 -J

### -S40042-19

a reasonable doubt.

. . . 

### [T]he

### trieroffactwhile passing upon 

### the 

### credibility of witnesses and 

### the 

### weight ofthe evidence produced, is 

### free to believe all, 

### part or none of

### the evidence. 

### Commonwealth v. 

## Irvin, 134 A.3d 67, 

### 75-76 (Pa. Super. 

### 2016) 

### (citation 

### omitted). PursuanttoSection 

### 3121(a)(1) ofthe CrimesCode,

### "[a] person 

### commits

a 

### felony of the 

### first degree when the person engages in sexual 

### intercourse with a 

### complainant

. . . 

### [b]yforcible compulsion." 18 Pa.C.S. § 

### 3121(a). 

### "[A] person 

### commits [sexual assault] when 

### that person engages in sexual 

### intercourse or 

### deviate sexual 

### intercourse with a 

### complainant 

### without the 

### complainant's consent." 18 Pa.C.S. § 

### 3124.1. Finally, 

### "[a] person is 

### guiltyof indecent assault ifthe person has 

### indecent contact 

### with the 

### complainant

. . . 

### forthe purposeofarousing sexual desire in

### the person or

### the

### complainant and

. . . 

### the person does so 

### without the 

### complainant's 

### consent[.]" 18 Pa.C.S. § 

### 3106(a)(2). 

### It is well

### -settled 

### that"the uncorroborated 

### testimony ofthe complaining witness is 

### sufficient to 

### convict a 

### defendant of sexual 

### offenses." 

### Commonwealth v. 

### Lyons, 833 A.2d 245, 258 (Pa. Super. 

### 2003), appeal denied, 879 A.2d 782 (Pa. 

### 2005) 

### (citation 

### omitted); see

### also 18 Pa.C.S. § 3106 ("The 

### credibility of a 

### complainant of an offense under 

### this subchapter shall be 

### determined by 

### the same 

### standard as is 

### the complainant ofany 

### other crime.

. . The 

### testimony of a 

### complainant need not be 

### corroborated by 

### prosecutions under this 

### chapter."). 

## -5J

### -S40042-19 Here, 

### the 

### victim testified 

### that Musselman 

### forcibly removed her pants and forced her to engage in sexual 

### relations 

### with him 

### after she told him to stop. 

### (See N.T.

### Trial, 

### 2/27/17, at 

### 20-67). This

### testimonyalonewas

### sufficient to 

### convict Musselman 

### of the sexual crimes of which he was charged. 

### See 

### Lyons, 

### supra at 

### 258; 18 Pa.C.S. § 3106. However, the 

### Commonwealth 

### additionally provided 

### corroborating 

### testimony from an 

### individual in 

### whom the 

### victim confided 

### after the assault, and evidence in 

### the form of

### text messages and onlineconversations between Musselman and

### the

### victim. (See N.T.

### Trial, at 

### 129-67; Commonwealth's Exhibits 

### 1-6). Although Musselman 

### maintained

### that he did not rape

### the

### victim and 

### the Commonwealth concedes

### that it did not provide DNAevidence, 

### (see N.T.

### Trial, at 

### 190-97; Commonwealth's Brief, at 

### 11-12), this was not 

### fatal to 

### the Commonwealth's case. 

### It was 

### for the

### jury to pass on 

### the 

### credibility of the witnesses and it was 

### free to believe all, some or none 

### of the evidence, and 

### the Commonwealth was not required to 

### provide 

### corroborating DNA evidence. 

### See

## Irvin,supra at 

### 75-76; 

### Lyons, 

### supra at 258. 

### Accordingly, even if Musselman had 

### properly preserved his 

### claim, it lacks 

### merit and we 

### affirm his

### judgment of sentence. 

### After our independent review of the certified record and 

### viewing the evidence in 

### the 

### light most favorable to 

### the Commonwealth, as 

### verdict winner, we conclude 

### that it was 

### sufficient to prove each 

### element of the crimes beyond a reasonable doubt. 

### See

## Irvin,supra at 

### 75-76. 

## -6J

### -S40042-19 Judgment ofsentence 

### affirmed. Judgment Entered.

J seph D.

# Seletyn,r Es 

### Prothonotary

Date: 

### 8/9/2019



## -7