J-A15022-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DONALD ARTHUR HAVERKOST 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 835 WDA 2021

Appeal from the Judgment of Sentence Entered February 24, 2021,

in the Court of Common Pleas of Armstrong County,

Criminal Division at No(s): CP-03-CR-0000830-2019.

BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: AUGUST 5, 2022

Donald Haverkost appeals from his judgment of sentence imposed after 

a jury convicted him of two counts of aggravated indecent assault and two 

counts of indecent assault.1 After review, we affirm.

The trial court summarized the facts as follows:

On or about the evening of March 16, 2019, S.Y., then 10 

years old, was at Haverkost’s residence with her brother, H.Y., 

then four years old. S.Y.'s and H.Y.’s mother, Jessica Kinzey, was 

in the process of moving out of the residence of Joshua Reilly, her 

soon-to-be ex-boyfriend. Kinzey and Reilly had been in a 

relationship for almost two years, and Kinzey, S.Y., and H.Y. 

resided with Reilly for approximately 18 months. Although their 

relationship appeared to be over, Kinzey and Reilly nevertheless 

went out to dinner that evening to determine if the relationship 

could be salvaged. 

Haverkost is Reilly’s step-father[,] and his wife, Lisa 

Haverkost, is Reilly’s mother. They live next door to Reilly, and 

____________________________________________

1 18 Pa.C.S.A. §§ 3125(a)(7) and 3126(a)(7), respectively.
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while S.Y. and H.Y. lived with Reilly, they spent considerable time 

at the Haverkost residence. On the evening of March 16, 2019, 

the Haverkosts agreed to babysit the children at their residence 

while Kinzey and Riley went to dinner. Late in the evening, when 

Kinzey and Reilly had not yet returned from dinner, Haverkost 

texted Kinzey to ask if S.Y. and H.Y. should stay overnight. The 

children were willing, and Kinzey agreed. While the Haverkosts 

and the children were watching television in the living room, S.Y. 

testified that Haverkost reached under the waist of her pants and 

first touched, and then stuck his finger inside, her vagina. S.Y. 

further testified that after she and her brother went upstairs to go 

to bed, Haverkost came up to tuck them in and again stuck his 

finger in her vagina, this time making the comment, “Mmm, 

tasty.” S.Y. did not report the incident the next day or for several 

months thereafter.

In June 2019, while S.Y. and Kinzey . . . were discussing the 

beginning of S.Y.’s menstrual period, S.Y. told Kinzey that “Pappy 

Don,” a name she used for Haverkost on occasion, had “touched 

her there,” referring to her vagina. Kinzey thereafter spoke with 

Reilly and told him what had happened, but did not make any 

immediate report to the police. S.Y. would soon be making a 

special visit to the State of Washington to visit her father, Brian 

Young, and her father’s side of the family. Kinzey wanted that 

time to be a happy time for S.Y. and wanted the time to consider 

the best course of action. During that trip to Washington, in July 

2019, S.Y. disclosed to her paternal grandmother that Haverkost 

had stuck his finger in her vagina and then licked his fingers 

saying, “Mmm, tasty.” When his mother told him what S.Y. 

disclosed, Young called Kinzey to ask about the incident. When 

Kinzey confirmed that S.Y. had also reported the incident to her, 

Young brought the children back to Pennsylvania.

On July 23, 2019, Young and Kinzey took S.Y. to the 

Kiskiminetas Police Department to report the incident. Kinzey 

reported what S.Y. had told her and her grandmother. Officer 

Jerrod A. Thompson conducted the interview, but did not speak 

with S.Y. on that day, opting rather to request a forensic 

interview. S.Y., was forensically interviewed on July 25, 2019, 

during which she again reiterated the incidents that occurred on 

Haverkost’s sofa and in the bedroom where the children slept.

Thompson thereafter filed charges that, after preliminary hearing, 

were held over to [the trial court].
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Trial Court Opinion, 8/31/21, at 2–4 (record citations omitted).

The case proceeded to a jury trial in October 2020, after which the jury 

convicted Haverkost of the above offenses. On February 24, 2021, the trial 

court sentenced Haverkost to an aggregate term of 48 to 96 months of 

incarceration, followed by 6 years of probation. Haverkost filed post-sentence 

motions, which were denied by operation of law on July 20, 2021. Haverkost 

filed a timely notice of appeal. Haverkost and the trial court complied with 

Pennsylvania Rule of Appellate Procedure 1925.

Haverkost raises two issues on appeal:

I. Was the verdict rendered against and contrary to the 

sufficiency of the evidence admitted, and all reasonable 

inferences that could be drawn therefrom, such that viewed in 

a light most favorable to the Commonwealth, said evidence 

was insufficient to support the jury’s verdict beyond a 

reasonable doubt?

II. Did the trial court err in denying Mr. Haverkost’s Post-Sentence 

Motion seeking a new trial on the basis that the evidence 

presented by the Commonwealth at trial was insufficient to 

sustain the verdict due to the fact that the verdict rendered 

was contrary to the weight of the evidence in that said evidence 

was so contrary to the verdict that it shocks one’s sense of 

justice and the award of a new trial is imperative so that right 

may be given another opportunity to prevail?

Haverkost’s Brief, at 7 (issues reordered for ease of disposition).

First, Haverkost challenges the sufficiency of the evidence. We review 

this claim based on the following well-established principles:

A claim challenging the sufficiency of the evidence presents a

question of law. Commonwealth v. Widmer, 744 A.2d 745, 751

(Pa. 2000). We must determine “whether the evidence is

sufficient to prove every element of the crime beyond a
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reasonable doubt.” Commonwealth v. Hughes, 555 A.2d 1264,

1267 (Pa. 1989). We “must view evidence in the light most

favorable to the Commonwealth as the verdict winner, and accept

as true all evidence and all reasonable inferences therefrom upon

which, if believed, the factfinder properly could have based its

verdict.” Id.

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013) (citation

formatting altered).

Our Supreme Court has further explained how an appellate court 

reviews a sufficiency challenge:

[T]he 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 factfinder 

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. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually received 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.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007).

Additionally, this Court has stated that an appellant must articulate the 

elements of each crime that the Commonwealth failed to prove.

If Appellant wants to preserve a claim that the evidence was 

insufficient, then the 1925(b) statement needs to specify the 

element or elements upon which the evidence was insufficient. 

This Court can then analyze the element or elements on appeal. 

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008), 

(quoting Commonwealth v. Flores, 921 A.2d 517, 522–23 (Pa. Super. 

2007)).
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Here, Haverkost fails to specify in his 1925(b) statement which elements 

of either aggravated indecent assault or indecent assault lacked sufficient

evidence. Williams, 959 A.2d at 1257. Instead, he copies verbatim the 

weight argument from his 1925(b) statement, which argues credibility of the 

witnesses, and presents it as a sufficiency challenge in the same statement. 

Because Haverkost failed to identify any specific elements that the 

Commonwealth failed to prove beyond a reasonable doubt, he waived his 

sufficiency claim on appeal. Id. 

Even if Haverkost had not waived his sufficiency challenge, we would 

find that this claim fails on its merits. The Pennsylvania Criminal Code defines 

aggravated indecent assault, in relevant part, as follows:

[A] person who engages in penetration, however slight, of the 

genitals or anus of a complainant with a part of the person’s body 

for any purpose other than good faith medical, hygienic or law 

enforcement procedures commits aggravated indecent assault, a 

felony of the second degree, if:

* * *

(7) the complainant is less than 13 years of age[.]

18 Pa.C.S.A. § 3125(a)(7).

The Code also provides that a person commits indecent assault if the

following elements are met:

the person has indecent contact with the complainant, causes the 

complainant to have indecent contact with the person or 

intentionally causes the complainant to come into contact with 

seminal fluid, urine or feces for the purpose of arousing sexual 

desire in the person or the complainant and:

* * *
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(7) the complainant is less than 13 years of age[.]

18 Pa.C.S.A. § 3126(a)(7). “Indecent contact” is further defined as “[a]ny

touching of the sexual or other intimate parts of the person for the purpose of

arousing or gratifying sexual desire, in any person.” 18 Pa.C.S.A.

§ 3101(a)(7).

The trial court assessed Haverkost’s sufficiency claim as follows:

The Commonwealth presented the testimony of S.Y., who 

testified that Haverkost penetrated her vagina with his finger on 

two separate occasions on the evening of March 16, 2019. She 

testified in detail to the circumstances surrounding the incidents. 

S.Y.’s mother and grandmother testified to S.Y.’s disclosures to 

them of what happened, both of which were unprompted and 

volunteered by S.Y. Although there were certain minor 

discrepancies in the three individuals’ testimony, there clearly was 

sufficient uncontradicted evidence to establish beyond a 

reasonable doubt all of the elements of both aggravated indecent 

assault and indecent assault. On that basis, Haverkost’s 

sufficiency challenge, even if not waived, is without merit.

Trial Court Opinion, 8/31/21, at 6.

The record supports the trial court’s analysis that the Commonwealth 

presented sufficient evidence to sustain Haverkost’s convictions. In a 

prosecution for an offense under Chapter 31 of the Crimes Code, “[t]he 

testimony of a complainant need not be corroborated.” 18 Pa.C.S.A. § 3106.

The victim testified that Haverkost digitally penetrated her vagina in two 

separate incidents. N.T., 10/07/20, at 109–111. In addition, the victim 

testified that her birthday was February 28, 2009, making her less than 13 

years of age at the time of the incidents. N.T., 10/07/20, at 112. Viewed in 

the light most favorable to the Commonwealth, the evidence was sufficient to 
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establish Haverkost committed aggravated indecent assault and indecent 

assault on two occasions, and all elements of both crimes were proven beyond 

a reasonable doubt.

Turning to Haverkost’s second issue, we address whether the verdict 

was against the weight of the evidence. Our Supreme Court has stated that

a trial court must first review a weight challenge using the following test:

A motion for a new trial based on a claim that the verdict is against 

the weight of the evidence is addressed to the discretion of the 

trial court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. Rather, the role of 

the trial judge is to determine that ‘notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them 

or to give them equal weight with all the facts is to deny justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations and 

quotations omitted).

The High Court observed that the appellate standard of review differs

from that of a trial court:

Appellate review of a weight claim is a review of the exercise of 

discretion, not of the underlying question of whether the verdict 

is against the weight of the evidence. Because the trial judge has 

had the opportunity to hear and see the evidence presented, an 

appellate court will give the gravest consideration to the findings 

and reasons advanced by the trial judge when reviewing a trial 

court’s determination that the verdict is against the weight of the 

evidence. 

Clay 64 A.3d at 1055 (quoting Widmer, 744 A.2d at 753) (citations omitted).

When we review whether the trial court abused its discretion, our 

precedents have outlined when such abuse occurs. 
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“An abuse of discretion will not be found based on a mere error of judgment, 

but rather occurs where the court has reached a conclusion that overrides or 

misapplies the law, or where the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Commonwealth v. Harrington, 262 A.3d 639, 644 (Pa. Super. 2021)

(quoting Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015)).

The trial court addressed Haverkost’s weight of the evidence challenge 

as follows:

The Court cannot conclude that the verdict was so against 

the weight of the evidence that it shocks the judicial conscience. 

In his post-sentence motion and concise statement, Haverkost 

argues at length that S.Y.’s testimony was not credible and that 

his testimony was so credible that it should shock the conscience 

that the jury believed the victim and not him. He argues that 

S.Y.’s accounts of the two incidents underlying his convictions 

were general, that she contradicted her testimony at the 

preliminary hearing, and that she did not make a prompt 

disclosure of the incidents. The Court disagrees.

First, S.Y.’s testimony about the incidents was in no way 

generic or general. She remembered the day on which they 

happened (the “leprechaun” holiday), the specific locations, the 

appearance of Haverkost’s residence, and who was present. 

Although each of her explanations of the incidents (to her mother, 

to her grandmother, during the forensic [interview], at the 

preliminary hearing, and at trial) might have varied to some 

degree, they were not necessarily inconsistent and certainly not 

to a degree that would render her testimony incredible as a matter 

of law. Second, regarding the preliminary hearing, the Court is 

unaware of what was presented because no transcript has been 

provided. To the extent that S.Y.’s trial testimony was 

inconsistent with her preliminary hearing testimony, Haverkost’s 

counsel had ample opportunity to, and did, cross-examine her 

about any such inconsistencies. S.Y.’s responses to those 

questions did not reveal that her trial testimony was so tenuous, 

vague, and uncertain so as to require that the verdict be vacated. 
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Third, regarding S.Y.’s delay in disclosing the incidents, the 

Commonwealth presented the testimony of Kevin Rua, Ph.D., a

professional forensic interviewer who was certified by the Court as 

an expert in the field of child victim behavior as it relates to sexual 

abuse. Dr. Rua explained the causes and implications of delayed 

reports of sexual abuse by children, which testimony, if credited 

by the jury, sufficiently explained S.Y.’s delayed reporting.

With regard to the testimony of S.Y.’s mother and 

grandmother, Haverkost argues that it did not corroborate S.Y.’s 

testimony and, therefore, had no value. The Court again 

disagrees. Both S.Y.’s mother and grandmother testified that S.Y.

reported to each of them separately the incidents that occurred at 

Haverkost’s residence. Although S.Y. explained the incidents in a 

slightly different way, there is no question that she reported the 

same incidents, involving the same individual, occurring at the 

same location, and involving the same touching and penetration.

Haverkost’s argument to the contrary is without merit.

Haverkost argues finally that his and his wife’s testimony 

were more credible than all of the Commonwealth’s witnesses 

and, therefore, the jury’s verdict should be set aside. Although 

both Haverkost and his wife both testified that nothing like what 

S.Y. described occurred on the evening in question and that Mrs. 

Haverkost was awake the entire time in the living room, the jury 

was free to disbelieve their testimony and credit S.Y.’s testimony 

to the contrary. Haverkost has not offered any substantial reason 

why the jury’s credibility determinations ought to shock the 

conscience, and the Court cannot discern any. On that basis, 

Haverkost’s weight challenge fails. 

Trial Court Opinion, 8/31/21, at 7–9 (record citations omitted).

At trial, the Commonwealth presented substantial evidence to support 

the jury’s verdict. The jury, as the trier of fact, was permitted to make 

credibility assessments and was free to disbelieve Haverkost’s self-serving

testimony. The trial court, which observed the evidence presented to the jury, 

concluded that the jury’s verdict did not shock its conscience.
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In reviewing the trial court's decision, we discern no abuse of discretion. 

Indeed, Haverkost makes no argument as to how the trial court abused its 

discretion. Instead, he argues the credibility of the witnesses, which we 

cannot review. Accordingly, Haverkost does not persuade us that that the 

trial court overrode or misapplied the law; nor are we convinced the decision 

was manifestly unreasonable or the result of partiality, prejudice, bias or illwill. Thus, Haverkost’s weight of the evidence claim fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/5/2022