J-S77003-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

J.M.

Appellant No. 2008 EDA 2013

Appeal from the Judgment of Sentence entered June 23, 2006

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-1007631-2004

BEFORE: STABILE, JENKINS, and STRASSBURGER,*JJ.

MEMORANDUM BY STABILE, J.: FILED APRIL 13, 2015

Appellant, J.M., appeals pro se from the judgment of sentence 

imposed on June 23, 2006 in the Court of Common Pleas of Philadelphia 

County following his convictions for rape, 18 Pa.C.S.A. § 3121(c);

aggravated indecent assault, 18 Pa.C.S.A. § 3125; indecent assault, 18 

Pa.C.S.A. § 3126; endangering the welfare of a child (EWOC), 18 Pa.C.S.A. 

§ 4304; corrupting the morals of a minor, 18 Pa.C.S.A. § 6301; and unlawful 

contact with a minor, 18 Pa.C.S.A. § 6318. Appellant alleges trial court error 

relating to a stipulation entered into between the prosecution and defense 

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* Retired Senior Judge assigned to the Superior Court.
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counsel; insufficiency of evidence to support his conviction for EWOC; and 

trial court error involving a jury instruction. Following review, we affirm.1

The trial court provided the following factual history:

[Appellant’s] convictions [ ] stemmed from his attacks on 

three different victims: T.W., S.G., and C.W. T.W. and C.W. are 

sisters and S.G. is their step-sister. All three victims were 

between eleven and fourteen years old at the times of the 

incidents and their testimony reveals that [Appellant] repeatedly 

molested them over the course of about two years. Additionally, 

T.W. testified that [Appellant] raped her twice during that time 

period. All three girls are nieces of [Appellant’s,] their father (or 

stepfather, in S.G.’s case) being [Appellant’s] brother.

C.W. testified at trial and recounted four separate times 

when [Appellant] touched her in a sexual way. C.W. testified 

that [Appellant] touched her breasts and put his hand down her 

pants four different times: twice while she was watching 

television in her grandmother’s basement, once at [Appellant’s] 

house while C.W. was sleeping, and once in a bathroom 

overlooking a back yard where C.W.’s sister was swimming in a 

pool.

____________________________________________

1

Initially we note that this Court directed Appellant to show cause why his 

appeal should not be quashed as untimely because he filed post-sentence 

motions on June 10, 2013 from his June 23, 2006 judgment of sentence. In 

response Appellant explained, inter alia, that the United States District Court 

for the Eastern District of Pennsylvania granted his pro se federal habeas 

corpus petition on February 14, 2013 and directed the Court of Common 

Pleas of Philadelphia County to take action within 120 days to enable 

Appellant to initiate a renewed direct appeal from his 2006 convictions. On 

June 7, 2013, the trial court permitted Appellant to proceed pro se in 

accordance with Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 

Appellant filed his post-trial motion on June 10, 2013. The trial court denied 

the motion on June 14, 2013 and directed Appellant to file a nunc pro tunc 

direct appeal within thirty days of the order. Appellant filed his timely notice 

of appeal on Monday, July 15, 2013. Appellant has satisfactorily 

demonstrated that his appeal should not be quashed as untimely. 
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S.G. testified about two separate times when [Appellant] 

touched her inappropriately. She testified that she was at 

[Appellant’s] house in his basement and after [Appellant] put his 

hand down his own pants, he put his hand down S.G.’s pants 

underneath her underwear. Additionally, S.G. attended a 

cookout with [Appellant] for the Fourth of July and testified that 

every time she hugged [Appellant], he would grab her buttocks.

T.W. testified about similar incidents. She testified that at 

two different times, [Appellant] put his hand down her pants. 

Additionally, [Appellant] one day followed T.W. into her 

grandmother’s basement, pulled down her pants and raped her, 

only stopping when her cousin walked in on the incident. 

[Appellant] raped T.W. a second time on a bed in the secondstory back bedroom of his house.

Each victim also testified about several other incidents 

when [Appellant] attempted to touch them sexually or said 

inappropriate things to them. As discussed above, [Appellant] 

was found guilty of various charges, including the rape of T.W.

Trial Court Opinion (T.C.O.), 3/17/14, at 2-3 (references to Notes of 

Testimony omitted).

In his statement of errors complained of on appeal filed pursuant to 

Pa.R.A.P. 1925(b), Appellant raised four issues, three of which he presents 

for our consideration as follows:

I. [Whether] the trial court erred by forcing trial counsel to 

stipulate to the absence of the school nurse allowing the 

Commonwealth to introduce evidence that if she would 

have testified she would have stated “that (T.W.) stated 

her uncle (Appellant) forced her to have intercourse and 

fondled her on different occasions[,”] which violated the 

Appellant’s Sixth Amendment right to confront his accuser?

II. [Whether] the evidence was insufficient to sustain a 

conviction for endangering the welfare of child?
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III. [Whether] the Appellant is entitled to a new trial as to the 

rape offense because the jury was not instructed as to 

which alleged victim this offense pertained, thus the 

verdict could have been on the basis of any of the alleged 

[] victims in this case, which only one pertained to the 

alleged rape?

Appellant’s Brief at 5.

In his first issue, Appellant complains that a stipulation entered into 

between his counsel and the prosecution deprived him of his Sixth 

Amendment right of confrontation. “Appellant's assertion of a Confrontation 

Clause violation presents an issue of law. Our scope of review is plenary and 

our standard of review is de novo.” Commonwealth v. Williams, 103 A.3d 

354, 358 (Pa. Super. 2014) (citations omitted). 

Appellant complains that the Commonwealth requested to stipulate—

over defense counsel’s objection—that a school nurse, who was unavailable 

to testify, would have testified that she spoke with T.W. and that T.W. told 

her Appellant forced her to have intercourse and fondled her on different 

occasions. Appellant’s Brief at 9-10. However, as the trial court explained:

The record reflects that [Appellant’s] attorney had two 

problems with this proposed stipulation: first that it was 

unnecessary because it simply confirmed the testimony of other 

witnesses (who also indicated that it was [the school nurse] 

who[m] T.W. first spoke to about [Appellant’s] actions), and 

second, that the second part of the stipulation, relating to what 

T.W. had told her father, was inadmissible.

This [c]ourt agreed with counsel’s second argument and 

that part of the stipulation was not read. As to the first part, the 

basis of [Appellant’s] claim on appeal is a Sixth Amendment 

claim. This was not the basis for counsel’s objection at trial, and 

therefore [Appellant’s] claim on appeal is waived. Morgan v. 
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Sbarbaro, 453 A.2d 598 (1982) (theories not advanced as to an 

issue in lower court are waived on appeal).

T.C.O., 3/17/14, at 5.

In its brief, the Commonwealth raised waiver in response to 

Appellant’s argument, citing the in-chambers discussion that took place 

between the trial judge and counsel. Commonwealth Brief at 12. That 

exchange, in relevant part, was as follows: 

[Counsel for Commonwealth]: . . . The teacher testified the 

child only mentioned touching then disclosed the actual sexual 

intercourse. That’s what the DHS worker will testify to as well[,] 

that she went out [to T.W.’s home] the same day.

That’s an important part because there’s a conflict as to what 

she originally . . . told her uncle[:] it was touching. . . . [I]t’s 

necessary to bring out what she had said to the nurse and to the 

DHS worker as to it being . . . sexual intercourse.

[Appellant’s counsel]: . . . I don’t know why we need hearsay 

at this particular point. We had full direct and cross-examination 

of the two girls and of the mother and the uncle.

The court: I will allow it to be admitted as far as it goes she 

told the nurse that she had intercourse with [Appellant].

[Appellant’s counsel]: What about . . . she told the father 

nothing else happened.

The court: I don’t think that comes in.

[Counsel for Commonwealth]: I won’t bring that in the 

stipulation. She’ll testify the child told her that she’d had 

intercourse – he forced her to have intercourse and fondled her 

on some occasions.

[Appellant’s counsel]: I just object to that again. That’s all 

been established.
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The court: Your objection is noted and I will instruct the jurors 

as to the stipulation before he reads it.

Notes of Testimony (N.T.), Trial, 11/22/05, at 170-72.

When the trial was reconvened, the stipulation was presented as 

follows:

The court: [The District Attorney] is going to read a stipulation 

to you. When the District Attorney and counsel for the 

Defendant stipulate, that is, when they agree that a certain fact 

is true, their stipulation is evidence of that fact, and you should 

regard the stipulated or agreed upon fact as proven. 

. . .

[Counsel for Commonwealth]: It is agreed by the 

Commonwealth and the Defense that if called to testify, Gwen 

Mabine would testify that she is the school nurse at Cooke 

Middle School, and that [on] March 23, 2004, she spoke with 

[T.W.], and [T.W.] stated to her that her uncle forced her to 

have intercourse, and fondled her on [] different occasions.

That would be the testimony of the school nurse, Gwen Mabine.

The court: So stipulated, [Appellant’s counsel]?

[Appellant’s counsel]: Yes, in accordance with Your Honor’s 

determination earlier, yes.

Id. at 174-75.

In his reply brief, Appellant acknowledges that the confrontation 

argument is waived because trial counsel did not object on that basis. 

Appellant’s Reply Brief, at 1. Appellant “concedes in that regard[] because 

the record reflects that trial counsel objected only to hearsay.” Id. 

Appellant ultimately suggests that “[t]his Court should conclude that the 

Appellant’s confrontation rights were violated but the claim must be raised in 
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a PCRA as to whether trial counsel was ineffective for failure to preserve this 

matter.” Id. Certainly, Appellant is free to pursue a claim in accordance 

with the Post-Conviction Relief Act if he believes his trial counsel was 

ineffective. However, this Court will not offer any comments on the possible 

merits of any post-conviction claims. Because Appellant’s confrontation 

argument was not preserved and is therefore waived, Appellant’s first issue 

fails.

In his second issue, Appellant argues the evidence was insufficient to 

sustain a conviction for EWOC with respect to C.W. As this Court has 

recognized: 

The question of whether evidence is sufficient to sustain a 

verdict is a question law, and as such, “our standard of review is 

de novo and our scope [of review] is plenary.” Commonwealth

v. Cruttenden, [619 Pa. 123], 58 A.3d 95, 96 n. 1 (2012). It is 

well-established that:

Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime 

charged and the commission thereof by the accused, 

beyond a reasonable doubt. Where the evidence offered 

to support the verdict is in contradiction to the physical 

facts, in contravention to human experience and the laws 

of nature, then the evidence is insufficient as a matter of 

law. When reviewing a sufficiency claim the court is 

required to view the evidence in the light most favorable 

to the verdict winner giving the prosecution the benefit of 

all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 

(2000); see also Commonwealth v. Maerz, 879 A.2d 1267, 

1269 (Pa. Super. 2005) (stating “[w]hile we are not free to 

substitute our view of the evidence for the factual findings of the 

trial court, we as an appellate court are authorized, indeed 
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required, to use a plenary scope of review in determining the 

validity of the legal conclusions made by the trial court.”).

Commonwealth v. Lynn, 83 A.3d 435, 447 (Pa. Super. 2013), appeal 

granted on other grounds, 91 A.3d 1233 (Pa. 2014).

When addressing Appellant’s sufficiency issue, the trial court 

erroneously stated that “[t]he jury agreed with [Appellant] and found him 

not guilty of [EWOC]. It is unclear what relief [Appellant] is requesting 

given that this is the sole charge on which he was not guilty.” T.C.O., 

3/17/14, at 6 (emphasis in original). In fact, Appellant was convicted of 

EWOC with respect to C.W. Therefore, although we have no legal 

conclusions from the trial court to consider, we shall consider Appellant’s 

sufficiency issue, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner and giving the prosecution the benefit of 

all reasonable inferences to be drawn from the evidence.

Under the provisions of 18 Pa.C.S.A. § 4304(a)(1) in effect when the 

event in this case occurred, “A parent, guardian or other person supervising 

the welfare of a child under 18 years of age commits an offense if he 

knowingly endangers the welfare of the child by violating a duty of care, 

protection or support.”2 “The term ‘person supervising the welfare of a child’ 

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2 The statute was amended effective January 29, 2007 to read: “A parent, 

guardian or other person supervising the welfare of a child under 18 years of 

age, or a person that employs or supervises such a person, commits an 

(Footnote Continued Next Page)
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means a person other than a parent or guardian that provides care, 

education, training or control of a child.” 18 Pa.C.S.A. § 4304(a)(3). 

Appellant claims the evidence was insufficient to prove he was “supervising” 

C.W. at the time any sexual acts were committed on her.

In Lynn, this Court stated, “[T]he plain language of the pre-amended 

[§ 4304] requires proof, as an element of the offense, that the accused was 

a supervisor of an endangered child victim when the conduct or condition 

giving rise to the offense occurred.” Lynn, 83 A.3d at 453. In 

Commonwealth v. Bryant, 57 A.3d 191 (Pa. Super. 2012), this Court 

explained: 

On multiple occasions, we have extended a duty of care to nonrelatives who exercise some supervisory role over children. See 

Commonwealth v. Trippett, 932 A.2d 188 (Pa. Super. 2007);

Commonwealth v. Vining, 744 A.2d 310 (Pa. Super. 1999). 

In reviewing EWOC, Pennsylvania courts have long recognized 

that the legislature attempted to “prohibit a broad range of 

conduct in order to safeguard the welfare and security of our 

children.” Commonwealth v. Brown, 721 A.2d 1105, 1106 

(Pa. Super. 1998). Furthermore, “[t]he common sense of the 

community should be considered when interpreting the language 

of the statute.” Id. at 1106–07.

Id. at 197-98.

In the course of her testimony in this case, C.W. described the 

episodes during which Appellant assaulted her. (N.T., 11/21/05, at 47-135.) 

At least two of those instances occurred at the home of the grandmother of 

(Footnote Continued) _______________________

offense if he knowingly endangers the welfare of the child by violating a duty 

of care, protection or support.” 18 Pa.C.S.A. § 4304(a).
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C.W.’s half-sister, T.W.3 On those occasions, the grandmother was present 

in the home, although not in the room where the assaults occurred. The 

grandmother testified that she, not Appellant, was the person taking care of 

the girls during their visits and that Appellant was not responsible for 

disciplining them. N.T., 11/23/05, at 49, 58. However, C.W. testified as to 

another instance of assault that occurred at Appellant’s home while 

Appellant’s girlfriend, Gina, was in the shower.4 N.T., 11/21/05, at 53-58; 

129-30. A separate incident of assault occurred in the grandmother’s van 

when the grandmother left C.W., Appellant, and Appellant’s six-year old son 

in the van while she went to the front door of a home to pick up one of her 

granddaughters. Id. at 65-66; 91-94. 

Appellant argues that the incidents of assault in his case are similar to 

those in Commonwealth v. Halye, 719 A.2d 763 (Pa. Super. 1998), where 

Halye assaulted a non-relative minor victim while other adults were in the 

house and, consequently, was not acting as a supervisor or guardian of the 

child victim. In Halye, this Court determined that the Commonwealth failed 

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3 The trial court referred to C.W. and T.W. as sisters who were daughters of 

Appellant’s brother. However, C.W. named her parents in the course of her 

testimony, N.T., 11/22/05, at 48, and her father is not Appellant’s brother. 

Although not important for our review, it appears from the trial transcripts 

that C.W. and T.W. are half-sisters, although they refer to each other as 

sisters. 

4 Appellant and Gina married in 2004 and were married when she testified 

during the 2005 trial.
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in its burden of proving Halye was in a supervisory position at the time of 

the assault, a statutory element of EWOC, and reversed Halye’s conviction 

for that crime. 

The testimony suggests Appellant was not in a supervisory role over 

C.W. in the grandmother’s home when the grandmother was present. 

However, when Appellant assaulted C.W. in his own home and when he 

assaulted her in the grandmother’s van, the grandmother was not present 

and there was no testimony to suggest that any adult, other than Appellant, 

was supervising C.W. Viewing the evidence in the light most favorable to 

the Commonwealth as verdict winner, we conclude the evidence was 

sufficient for the jury to conclude Appellant was in a supervisory position 

over C.W. when at least some of the assaults occurred. Because the 

evidence supports all elements of EWOC beyond a reasonable doubt, 

Appellant is not entitled to relief on his sufficiency of evidence claim. 

In his third issue, Appellant claims he is entitled to a new trial because 

the trial court’s instructions to the jury regarding the rape charge did not 

specify which of his three victims was the alleged victim of rape. Appellant’s 

argument fails. Initially, as the Commonwealth argues, Appellant did not 

object to the trial court’s charge. His failure to preserve the issue results in 

waiver. Pa.R.Crim.P. 647(B); Commonwealth v. Edmondson, 718 A.2d 

751, 753 (Pa. 1998). Even if his claim were not waived, Appellant is not 

entitled to relief. Not only was the evidence of rape restricted to one victim, 
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T.W., but also the verdict form specifically identified T.W. as the alleged 

victim of rape. Further, the Commonwealth’s closing argument made 

reference to T.W. with regard to the rape charge. 

In its charge to the jury, the trial court addressed each of the crimes 

with which Appellant was charged. N.T., 11/28/05, at 89-97. The first 

crime addressed was rape of a child. It is true that the trial court did not 

mention T.W. by name when listing the elements of rape of a child. 

However, as noted, the evidence of rape was restricted to T.W. and the 

verdict form listed T.W. as the alleged victim of rape. Further, when the jury 

was polled after returning its verdict, the jurors were asked, “[On] Charge 1, 

charging [Appellant] of rape, victim being [T.W.], age under 13 years old, 

how do you say?” N.T., 11/29/05, at 3. The foreperson responded, 

“Guilty.” Id. Appellant’s suggestion that the jury did not know which victim 

was the victim of alleged rape is without merit.

For the reasons set forth above, Appellant is not entitled to relief. 

Therefore, we affirm the judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015