J-S15006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEREMY HEATH BARNEY

Appellant No. 1460 MDA 2014

Appeal from the Judgment of Sentence August 1, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0005676-2012

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.: FILED MARCH 27, 2015

Jeremy Heath Barney appeals from his judgment of sentence imposed 

in the Court of Common Pleas of Lancaster County, after a jury found him 

guilty of rape of a child,1involuntary deviate sexual intercourse with a child,2

two counts of indecent assault of a person less than thirteen years of age,3

criminal solicitation to commit indecent assault,4 unlawful contact with a 

minor,5and corruption of minors.6 Counsel has petitioned this Court to 

____________________________________________

1 18 Pa.C.S. § 3121(c).

2 18 Pa.C.S. § 3123(b).

3 18 Pa.C.S. § 3126(a)(7).

4 18 Pa.C.S. § 902(a).

5 18 Pa.C.S. § 6318(a)(1).
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withdraw her representation of Barney pursuant to Anders, McClendon and 

Santiago.

7

 Upon review, we affirm Barney’s judgment of sentence and 

grant counsel’s petition to withdraw.

In order to withdraw pursuant to Anders and McClendon, counsel 

must: 1) petition the Court for leave to withdraw, certifying that after a 

thorough review of the record, counsel has concluded the issues to be raised 

are wholly frivolous; 2) file a brief referring to anything in the record that 

might arguably support an appeal; and 3) furnish a copy of the brief to the 

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points that the appellant deems worthy of 

review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super. 

2001). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the 

Pennsylvania Supreme Court held that, in order to withdraw under Anders, 

counsel must also state his reasons for concluding his client’s appeal is 

frivolous.

Instantly, counsel’s petition states that she has made an examination 

of the record and concluded the appeal is wholly frivolous. Counsel indicates 

that she supplied Barney with a copy of the brief and a letter explaining his 

(Footnote Continued) _______________________

6 18 Pa.C.S. § 6301(a)(1).

7 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009). 
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right to proceed pro se,

8 or with newly-retained counsel, and to raise any 

other issues he believes might have merit. Counsel has also submitted a 

brief, setting out in neutral form three issues of arguable merit and, 

pursuant to the dictates of Santiago, explains why she believes the issues 

to be frivolous. Thus, counsel has substantially complied with the 

requirements for withdrawal. 

Counsel having satisfied the above requirements, this Court must 

conduct its own review of the proceedings and render an independent 

judgment as to whether the appeal is, in fact, wholly frivolous. 

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

This matter arises from Barney’s sexual abuse of his paramour’s son, 

A.M. At the time the abuse occurred, A.M. was five years old. Following a 

hearing on April 11, 2014, the court permitted Barney to proceed pro se. On 

April 21, 2014, the court conducted a Tender Years Hearing.9 The court held 

that Nancy Kulp (daycare provider), Jorena Perry, (daycare provider), E. M. 

(A.M.’s mother), Mary Halye (forensic interviewer), and Kari Stanley 

(forensic interviewer) would be permitted to testify to statements A.M. made 

to them. N.T. Tender Years Hearing, 4/21/14, at 76-77.

____________________________________________

8 Barney has not submitted any additional or supplemental filings to this 

Court.

9 See 42 Pa.C.S. § 5985.1.
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A jury trial took place from April 22 to 28, 2014. At the close of trial, 

the jury found Barney guilty of the aforementioned offenses. On August 1, 

2014, the court sentenced Barney to an aggregate term of 20 to 40 years’ 

incarceration. This timely appeal followed.

On appeal, Barney raises challenges to the weight of the evidence 

sustaining his convictions, the use of Pennsylvania Suggested Standard 

Criminal Jury Instruction (Pa. SSJI (Crim)) 4.13B, and the fact that the jury 

saw him in handcuffs. Anders brief, at 22-28.10

Our standard of review of a weight of the evidence claim is as follows:

The finder of fact is the exclusive judge of the weight of the 

evidence as the fact finder is free to believe all, part, or none of 

the evidence presented and determines the credibility of the 

witnesses. As an appellate court, we cannot substitute our 

judgment for that of the finder of fact. Therefore, we will 

reverse a jury’s verdict and grant a new trial only where the 

verdict is so contrary to the evidence as to shock one’s sense of 

justice. Our appellate courts have repeatedly emphasized that 

“[o]ne of the least assailable reasons for granting or denying a 

new trial is the lower court’s conviction that the verdict was or 

was not against the weight of the evidence.”

Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007) 

(citations omitted).

“[A] true weight of the evidence challenge ‘concedes that 

sufficient evidence exists to sustain the verdict’ but contends 

____________________________________________

10 Barney also makes several allegations of prosecutorial misconduct. 

Specifically, that the prosecutor refused to provide copies of medical records 

for A.M., interviews of A.M., and recorded phone conversations between the 

parties. Anders Brief, at 28. However, the record contains no evidence 

that any of these items existed. Accordingly, we will not address this issue.
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that the verdict was against the weight of the evidence.” An 

appellate court may review the trial court’s decision to determine 

whether there was an abuse of discretion, but it may not 

substitute its judgment for that of the lower court. Credibility 

issues are decided by the jury and appellate courts rarely 

overturn jury factual findings that are based on credibility 

determinations. Indeed, an appellate court should not entertain 

challenges to the weight of the evidence since our examination is 

confined to the “cold record.” Our Court may not reverse a 

verdict unless it is so contrary to the evidence as to shock one’s 

sense of justice. Thus, we are confined to review if the trial 

court abused its discretion.

Commonwealth v. Burns, 765 A.2d 1144, 1149-50 (Pa. Super. 2000) 

(citations omitted).

In support of his claim that the verdict was against the weight of the 

evidence, Barney argues that A.M.’s testimony was unreliable. Barney 

believes that A.M. lied when he told Mary Halye (forensic interviewer) that 

Barney would, inter alia, hit him in the butt with a gun, smack him with a 

belt until the skin opened, and penetrate his butt with the gun until it started 

to bleed. N.T. Trial, 4/23/14, at 257-58. Barney compares this testimony to 

that of Dr. Cathy Hoshauer, the pediatrician who examined A.M., who 

testified that she saw no injuries on A.M., and that an injury involving pain 

and bleeding would have resulted in a scar. Id. at 297-308. Notably, 

Barney was not convicted of any offenses related to the aforementioned 

allegations.

The jury was free to believe all, part or none of the evidence presented 

and to assess the credibility of the witnesses. Burns, supra. Here, the jury 

chose to believe parts of A.M.’s testimony and, ultimately, found A.M.’s 
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testimony more credible than Barney’s. Because the jury’s credibility 

determination was within its province as the finder of fact, and it is 

supported by the record, we will not disturb it on appeal. Id.

In his second issue, Barney argues that the trial court erred when it 

charged the jury with Pa. SSJI (Crim) 4.13B11 because he believes Pa. SSJI 

(Crim) 4.13B shifts the burden of proof to the defendant, violating his due 

process rights. Initially, we note that Barney waived this claim because he 

did not object to the instruction before or after it was given to the jury. See 

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”). Furthermore, contrary to 

Barney’s claim, the instruction does not shift the burden of proof. Rather, 

____________________________________________

11 Based on the Pa. SSJI (Crim) 4.13B, the court instructed the jury as 

follows:

The testimony of [A.M.] standing alone, if believed by you, is 

sufficient proof upon which to find the defendant guilty in this 

case.

The testimony of the victim in a case such as this need not be 

supported by other evidence to sustain a conviction.

Thus, you may find [Barney] guilty if the testimony of [A.M.] 

convinces you beyond a reasonable doubt that [Barney] is guilty.

No medical testimony is required to corroborate his testimony or 

to convict [Barney] if his testimony, if [A.M.’s] testimony, is 

found to be credible by you.

N.T. Trial, 4/28/14 at 459-60.
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Instruction 4.13B provides that the testimony of a victim, without supporting 

evidence, is sufficient to sustain a conviction.

In his third issue, Barney alleges that the jury saw him in handcuffs 

and that this undermined his presumption of innocence. Under the 

circumstances, however, it is not clear whether a member of the jury saw 

Barney in handcuffs. Even so, “[a] brief viewing of the defendant in 

handcuffs is not so inherently prejudicial as to strip the defendant of the 

presumption of innocence.” Commonwealth v. Carson, 913 A.2d 220, 257 

(Pa. 2006). Further, the appropriate remedy for this scenario is a cautionary 

instruction, not a new a trial. Id. However, Barney did not bring this issue 

to the court’s attention until after the jury rendered its verdict, thus 

preventing the trial court from giving a cautionary instruction. Accordingly, 

Barney’s claim is meritless.

Judgment of sentence affirmed. Counsel’s petition to withdraw 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2015