J-S11044-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

LAMAR ANDERSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 687 EDA 2022

Appeal from the Judgment of Sentence Entered September 20, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0008690-2018

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

MEMORANDUM BY KING, J.: FILED JULY 17, 2023

Appellant, Lamar Anderson, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following his bench 

trial convictions for unlawful contact with a minor, corruption of minors, 

indecent assault without consent, indecent assault of a person under 16 years 

of age, involuntary deviate sexual intercourse (“IDSI”), and endangering the 

welfare of a child.1 We affirm. 

In its opinion, the trial court set forth the relevant facts of this case as 

follows:

[Complainant] testified that she was a friend of [Appellant’s] 

daughter, [H.J.]. According to Complainant, the first time 

Complainant met [Appellant] was at [Appellant’s] house in 

Southwest Philadelphia in July 2018. The first time 

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1 18 Pa.C.S.A. §§ 6318(a)(1), 6301(a)(1)(ii), 3126(a)(1), 3126(a)(8), 

3123(a)(7), 4304(a)(1), respectively. 
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Complainant was at [Appellant’s] home, she stayed two 

nights with [H.J.]. During this visit, Complainant, and 

[Appellant’s] two daughters slept in the back room. 

[Appellant] was in his room the entire time during this visit. 

According to Complainant, [Appellant’s] room is part of the 

living room and in his room, there is [a] bed, tv, and other 

things. 

During that same summer, Complainant stayed at 

[Appellant’s] home a second time. This time, Complainant 

went to [Appellant’s] house with [H.J.] and their friend, M.L. 

They went to [Appellant’s] home to spend the night because 

they were going to babysit [Appellant’s infant] son.[2] 

[Appellant] was expected to be at his house, but he stated 

he had to go to work. According to Complainant, [Appellant] 

was in and out during the night. He would come in, check 

on them and then leave. During this visit, Complainant and 

the other girls slept in the back and [Appellant] slept in his 

room. 

The next morning, Complainant and [M.L.] went to the 

supermarket with [Appellant]. [H.J.] did not go to the 

supermarket because she was babysitting the baby in 

[Appellant’s] room. While at the supermarket, [Appellant] 

asked [Complainant] “Do you want daddy to buy you a 

coloring book?”

[3] Complainant stated she did not say 

anything to [Appellant] and just laughed. [Appellant] did 

not touch her while at the supermarket. After the 

supermarket, [Appellant] and [Complainant and M.L.]

returned to the house, they began putting the food away. 

Complainant went into the kitchen by herself, and 

[Appellant] came into the kitchen. According to

Complainant, when [Appellant] came into the kitchen, he 

picked her up and kissed her. After this happened, 

[C]omplainant went into the room with [H.J. and M.L.] 

Complainant stated she was in the kitchen because they 

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2 Complainant testified she babysat only the infant son, but M.L. testified that 

the girls babysat two young children. (See N.T. Trial, 1/29/20, at 61, 82-83). 

3 M.L. testified that she overheard the coloring book comment. (Id. at 86). 

M.L. stated that Appellant asked Complainant to go to the supermarket alone,

but Complainant asked M.L. to accompany her. (Id. at 85). 
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were making breakfast. ... [Appellant] wanted Complainant 

to go into the kitchen by herself, but Complainant stated 

[Appellant] was acting weird and [she] did not want to be 

alone with him.[4] Further, while in the kitchen, [Appellant]

pressed his “front private part” against Complainant’s butt. 

Complainant also testified that [the day before Appellant

kissed] her in the kitchen, [Appellant] had kissed her when 

she went into his room to get lotion. Specifically, 

[Appellant] had picked her up by her thighs and kissed her 

on the lips.[5] Complainant did not feel comfortable telling 

[H.J.] about these occurrences because [Appellant] was her 

dad. However, Complainant did tell M.L. [M.L. testified at 

trial that she saw Appellant press up against Complainant in 

the kitchen.] 

Later that same day, another incident occurred between 

Complainant and [Appellant]. According to Complainant, 

she took [Appellant’s] baby from [H.J.] and went into the 

back room where she and the other girls were sleeping. She 

started taking pictures of her and the baby and sent them 

to her mom. While she was in the room, [Appellant] entered 

the room. Complainant testified that [Appellant] was 

talking to her and the baby. Complainant was laying down 

on the bed while this was happening. Next, [Appellant] got 

down on his knees. He moved her shorts and underwear to 

the side with his fingers and said “say yes or no.” Next, 

[Appellant] started sucking and licking on her vagina. 

[Appellant] stopped when he heard M.L. coming. 

Following the last incident with [Appellant], Complainant 

told M.L. [M.L. testified that when Complainant disclosed 

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4 Specifically, Complainant described Appellant’s “weird” behavior as being 

affectionate, and Complainant also indicated that Appellant had previously 

showed her a pornographic video. (Id. at 28). Complainant’s testimony 

concerning the pornographic video violated a prior ruling by a different jurist 

which prohibited any reference to the pornographic video. After Complainant 

mentioned the pornographic video, the defense objected and requested a 

mistrial. The trial court denied the motion for a mistrial and instead, struck

the statement from the record. (Id.) 

5 This testimony was inconsistent with Complainant’s earlier statement that

nothing unusual had happened the night before. (Id. at 23, 30). 
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the events, Complainant looked shocked. M.L. suggested 

leaving but Complainant wanted to stay with H.J. M.L. left

Appellant’s house, but Complainant stayed for ten hours.] 

Additionally, Complainant told [H.J.] what happened, and 

[H.J.] called her mom to pick them up. After being picked 

up, Complainant told multiple people what happened. 

Complainant’s mother called the police,

[6] and after making 

a police report and speaking with the SVU, [Appellant] was 

arrested. [After her interview at SVU, Complainant went to 

the hospital to be examined. She felt uncomfortable, so the 

medical staff did not finish the exam and did not get any 

DNA samples.] 

(Trial Court Opinion, filed 8/29/22, at 1-2) (record citations omitted). 

On January 29, 2020, the court convicted Appellant of the abovementioned offenses. The court sentenced Appellant on September 20, 2021, 

to an aggregate term of five to ten years’ incarceration followed by three years 

of probation. Appellant timely filed a post-sentence motion on September 30, 

2021, which was denied by operation of law on February 1, 2022. Appellant 

timely filed a notice of appeal on March 1, 2022. Appellant filed a voluntary

Pa.R.A.P. 1925(b) statement of errors complained of on appeal on June 17, 

2022. 

Appellant raises the following issues for our review:

Is the verdict of guilty with respect to all charges against 

the weight of the evidence and so contrary to the evidence 

that it shocks one’s sense of justice in light of the evidence 

presented at trial?

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6 The officer wrote in his report that Appellant licked Complainant’s vagina 

twice, once the first night in the kitchen and once in Appellant’s room. This 

differed from Complainant’s testimony at trial, during which Complainant 

stated that the only time Appellant performed oral sex on her was in 

Appellant’s bedroom. (Id. at 127). 
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Did the trial court abuse its discretion when it denied 

[Appellant’s] motion for a mistrial when [C]omplainant 

testified that [Appellant] previously showed her sexually 

explicit videos in direct contravention of a court order in 

limine which held such testimony to be inadmissible? 

(Appellant’s Brief at 7). 

In his first issue, Appellant argues that his convictions are based solely 

on Complainant’s testimony, which lacked any corroborating evidence or 

testimony. Specifically, Appellant asserts that Complainant refused the 

medical examination despite medical personnel’s efforts. Appellant insists it 

is “illogical” that no one witnessed the alleged assault, which Complainant said

occurred during the day when other people were in the home. Appellant 

emphasizes that Complainant possessed her cellphone throughout the whole 

stay at Appellant’s home, but she did not text or call anyone for help after the 

alleged assault. Appellant further highlights that Complainant’s text message 

to her mother of a picture of Appellant’s infant child with Complainant after 

the alleged assault is inconsistent with Complainant having been assaulted. 

Appellant maintains that M.L. offered Complainant a ride home after the 

alleged assault, but Complainant chose to stay at Appellant’s house for ten 

hours, which defies common sense to leave the house if an assault had taken 

place. Appellant also emphasizes that Complainant acted normally throughout 

the stay at Appellant’s home, despite the alleged assault. 

Additionally, Appellant points to various inconsistences in Complainant’s 

testimony, highlighting: (1) Complainant’s statement that nothing unusual 
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happened the first night compared to her subsequent statement that Appellant 

kissed her when she went to get lotion; (2) Complainant’s testimony that she 

only babysat Appellant’s infant child, which contradicts M.L.’s testimony that 

the girls were babysitting two young children; and (3) Complainant’s 

testimony that Appellant licked her vagina once, which contradicts the police 

report statement that Appellant also licked her vagina on another occasion. 

Appellant concludes the guilty verdicts were against the weight of the 

evidence, and this Court must grant Appellant a new trial. We disagree. 

In reviewing a challenge to the weight of the evidence, our standard of 

review is as follows: 

The weight of the evidence is exclusively for the finder 

of the fact who is free to believe all, part or none of 

the evidence and to determine the credibility of the 

witnesses. An appellate court cannot substitute its 

judgment for that of the finder of fact. Thus, we may 

only reverse the... verdict if it is so contrary to the 

evidence as to shock one’s sense of justice. 

Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d 

666, 672-73 (1999). Moreover, where the trial court has 

ruled on the weight claim below, an appellant court’s role is

not to consider the underlying question of whether the 

verdict is against the weight of the evidence. Rather, 

appellate review is limited to whether the trial court palpably 

abused its discretion in ruling on the weight claim. 

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 

(2003), cert denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) 

(most internal citations omitted). 

Instantly, the trial court reasoned:
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[Appellant’s] argument is mainly based on the credibility of 

[Complainant]. It is within [the c]ourt’s discretion to believe 

all, part or none of the evidence and to determine the 

credibility of witnesses. [The c]ourt found [C]omplainant to 

be a credible witness. Specifically, [the c]ourt stated “Now, 

as far as listening to [C]omplainant testify, there are things 

she wasn’t—that weren’t a hundred percent accurate. They 

weren’t things that really related to what actually allegedly 

happened to her.” [N.T. Trial at 170.] Additionally, [the 

c]ourt has reviewed the entire record and [the c]ourt 

concludes that the verdict was not so contrary to the 

evidence as to shock one’s sense of justice. Contrary to 

[Appellant’s] argument, the evidence of this case was 

compelling and supports [this c]ourt’s verdict. 

(Trial Court Opinion at 8). We agree with the court’s analysis. 

Here, it was within the trial court’s discretion to determine the credibility 

of Complainant’s testimony. See Champney, supra. The court expressly 

noted that any inconsistencies in Complainant’s testimony were not critical to 

Complainant’s description of the assault that occurred. See Commonwealth 

v. Fuentes, 272 A.3d 511, 519 (Pa.Super. 2022) (holding victim’s conflicting 

testimony regarding assault does not rise to level of “shocking the conscience 

of the court” given victim’s overarching ability to provide salient facts relevant 

to sexual assault she had experienced). Additionally, the court heard 

testimony regarding Complainant’s actions and behavior after the alleged 

assault, and still deemed Complainant’s testimony credible. Further, 

Complainant testified that she was uncomfortable completing the medical 

examination, which was why the Commonwealth lacked DNA evidence in this 

case. We will not substitute our judgment for the trial court as fact finder. 

See Champney, supra. On this record, the verdict is not so contrary to the 
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evidence as to shock one’s sense of justice. See id. Therefore, Appellant’s 

first issue on appeal merits no relief. 

In his second issue, Appellant argues the court abused its discretion 

when it denied Appellant’s motion for a mistrial. Appellant contends that 

Complainant’s reference to Appellant having shown her a pornographic video

directly violated the prior ruling on Appellant’s motion in limine seeking to 

exclude such testimony. Appellant asserts that Complainant’s mention of

Appellant’s prior bad acts prejudiced the judge as fact finder. Appellant 

concludes the denial of a mistrial was improper, and this Court must grant a 

new trial. We disagree. 

In reviewing a challenge to denial of a mistrial, our standard of review 

is as follows: 

A motion for a mistrial is within the discretion of the trial 

court. A mistrial upon motion of one of the parties is 

required only when an incident is of such a nature that its 

unavoidable effect is to deprive the appellant of a fair and 

impartial trial. It is within the trial court’s discretion to 

determine whether a defendant was prejudiced by the 

incident that is the basis of a motion for a mistrial. On 

appeal, our standard of review is whether the trial court 

abused that discretion. 

Commonwealth v. Cox, 231 A.3d 1011, 1018 (Pa.Super. 2020) (quoting 

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003)). Further, 

“not every arguably improper reference to prior criminal activity requires the 

grant of a mistrial.” Commonwealth v. Timer, 609 A.2d 572, 576 

(Pa.Super. 1992). 
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We observe that “trial judges sitting as fact finders in criminal cases are 

presumed to ignore prejudicial evidence in reaching a verdict.” 

Commonwealth v. Dent, 837 A.2d 571, 582 (Pa.Super. 2003), appeal 

denied, 581 Pa. 671, 863 A.2d 1143 (2004) (quoting Commonwealth v. 

Irwin, 579 A.2d 955, 957 (Pa.Super. 1990), appeal denied, 527 Pa. 592, 588 

A.2d 913 (1991)). “The trial court, sitting without a jury and having sustained 

the objection, will not be presumed to have given the passing reference any 

weight whatsoever.” Timer, supra.

Instantly, the trial court explained: 

There is no evidence that a mistrial was manifestly 

necessary and that the denial of the motion for a mistrial 

deprived [A]ppellant of a fair and impartial trial. At the 

[m]otion in [l]imine hearing, [another jurist] instructed the 

Commonwealth to instruct its witnesses to not testify about 

the video. [See N.T. Trial at 29]. At trial, the witness made 

a reference to a porn video that was shown to her by 

[Appellant].

At trial, the direct examination went as follows:

Q: How come you didn’t want to be in the kitchen alone with 

him?

A: Because he was acting weird.

Q: What do you mean by weird?

A: Affectionate.

Q: How was he [being] affectionate towards you?

A: Because before he would like—before, like the first time 

we went over there, he was showing us like a sex video.

[Id. at 28]. 
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The defense moved for a mistrial. [The c]ourt overruled the 

objection. [The c]ourt stated “If there were a jury, I would 

give them a curative instruction. Obviously, I’m a Judge 

and I’m going to ignore that because obviously, I am 

capable of ignoring it. Whether a jury could or not, I don’t 

know. In this case, since it’s only related to me, I’m going 

to strike it, and I’m going to overrule your request for a 

mistrial.” [Id. at 29]. [The c]ourt explicitly stated that it 

would ignore that part of the testimony and strike it from 

the record. Based on the circumstances surrounding the 

testimony and [the c]ourt’s action, [the c]ourt’s actions did 

not prejudice or deprive [A]ppellant of a fair trial.

(Trial Court Opinion at 5-6). We agree with the court’s analysis. 

Here, it was within the trial court’s discretion to deny the motion for a 

mistrial. See Cox, supra. The court expressly noted that Complainant’s 

improper reference to the pornographic video did not prejudice the judge as 

fact finder, and we presume the trial judge did not give the improper reference 

any weight. See Dent, supra; Timer, supra. Therefore, Appellant’s second 

issue on appeal merits no relief. Accordingly, we affirm. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2023