J-A04026-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ANDRE MOORE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 755 EDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0005396-2018

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY KING, J.: FILED: APRIL 23, 2021

Appellant, Andre Moore, appeals from the judgment of sentence entered 

in the Delaware County Court of Common Pleas, following his jury trial 

convictions for aggravated indecent assault of a person less than thirteen, 

indecent assault of a person less than thirteen, corruption of minors, and 

aggravated indecent assault of a child.1 We affirm. 

The relevant facts and procedural history of this appeal are as follows:

...[V]ictim...was eleven and in sixth grade, living with her 

aunt, E.P.,2in Chester, Delaware County. Appellant was 

E.P.’s boyfriend at the time of the assault.

2 This [c]ourt will use the initials of...[V]ictim’s aunt in 

order to protect...[V]ictim’s anonymity. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3125(a)(7), 3126(a)(7), 6301(a)(1)(i), and 3125(b), 

respectively. 
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During the time that...[V]ictim was residing with E.P., 

Appellant would come over and stay at the residence. One 

day, ...[V]ictim came home from school and was watching 

television in her room; no one else was home. A couple of 

hours later, Appellant entered the home and asked...[V]ictim 

if she would like to watch a movie in E.P.’s room. ...[V]ictim 

turned off her tv and went with Appellant into E.P.’s room 

to watch a movie; it was not uncommon for the household 

to watch movies in E.P.’s bedroom. ...[V]ictim laid down on 

the bed, resting her head on the pillows. Appellant laid 

down in the same direction, on the left-hand side 

of...[V]ictim. While they were watching the movie, Appellant 

began rubbing...[V]ictim’s vagina, underneath her clothing, 

with his fingers. It lasted for a couple of minutes and it 

hurt; Appellant asked her if she ever touched herself “down 

there” or if she wanted him to touch her. Because she was 

scared to move or answer, ...[V]ictim laid there, facing the 

tv and remained silent. ...[V]ictim was confused as to why 

it was happening, but she wanted it to stop, so she asked if 

she could go to the bathroom down the hall. Appellant 

stopped the touching at that point, and...[V]ictim walked 

down the hall to the bathroom. 

...[V]ictim went into the bathroom, shut the door, but did 

not lock it because the lock does not work. As she was 

finishing going to the bathroom and pulling up her pants, 

Appellant walked in and pulled down his own pants and 

told...[V]ictim to “turn around.” ...[V]ictim turned around 

and she could feel Appellant rubbing his penis between her 

legs. She did not physically see his penis, but she felt it on 

her bare skin as her pants were still down at this point. As 

he was rubbing his penis between her legs, Appellant had 

his hands grabbing onto her waist. Appellant’s penis was 

not inside of...[V]ictim’s vagina. When Appellant stopped 

the rubbing, he told...[V]ictim to clean off and he left the 

bathroom. ...[V]ictim used a washcloth to wipe off and went 

back into her own bedroom. Appellant walked by the door 

of her room and told her not to tell her aunt what had 

occurred. When he walked away, ...[V]ictim began crying. 

At this point, it was nighttime, and she fell asleep without 

seeing her aunt that evening. 

The following morning, ...[V]ictim saw her aunt but did not 
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tell her what happened with Appellant the night before 

because she was too scared that her aunt would be mad at 

her and would not believe her.

Although she did not tell her aunt, ...[V]ictim told her friend, 

M.C. (also eleven at the time) as they were walking to school 

that day. M.C. and...[V]ictim are close friends, and both 

were in the same class at Toby Farms Elementary. M.C. 

and...[V]ictim walked to school together, as they usually do. 

M.C. noticed that...[V]ictim was acting differently, being 

much more quiet than usual. When they had reached the 

school, but were still outside, ...[V]ictim handed M.C., her 

notebook. M.C. opened the notebook, recognized the 

handwriting inside to be...[V]ictim’s and read a sentence 

that said a guy stuck his finger inside of [Victim] and had 

sex with her. After she read it, M.C. told...[V]ictim to rip out 

the page and throw it away because she did not want other 

people to see it. M.C. felt like it would make the other kids 

at school talk about her. M.C. saw...[V]ictim rip the page 

out of the notebook and throw it away. 

During the school day, ...[V]ictim also told another friend, 

J.M. (also a minor), who then accompanied her to the 

principal’s office, where she told the Vice Principal, Dr. 

Lorrain Baptiste. 

Dr. Baptiste had been the Vice Principal at Toby Farms 

Elementary School for a total of two years; she was familiar 

with...[V]ictim as a 6th grader in her school at the time. On 

May 30, 2018, in the morning hours, ...[V]ictim had come 

into the office with her friend; she was very quiet, and her 

friend kept saying to her “tell her.” ...[V]ictim told Dr. 

Baptiste, that she “was raped” at which point, Dr. Baptiste

excused the friend from the office. Knowing that children 

that young can sometimes misinterpret the meaning of such 

a heavy word, she asked...[V]ictim to explain more of what 

happened. ...[V]ictim told Dr. Baptiste that she was sitting 

at home at her aunt’s house, where she and her aunt’s 

boyfriend were watching television; the boyfriend began 

touching her inappropriately, so she got up from the sofa 

and went to the bathroom and he followed her inside the 

bathroom and touched her again. Dr. Baptiste asked if the 

touching was of her private parts, and...[V]ictim answered 

“yes.” Dr. Baptiste asked what happened in the bathroom 
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and...[V]ictim told her that she had gone to the bathroom, 

and that she was sitting on the toilet when he came in and 

started touching her again. ...[V]ictim stated that her aunt 

was at work at the time because she works nights. Dr. 

Baptiste did not want to get too far into the conversation 

before alerting the social worker, so she asked...[V]ictim if 

she was hurt or bruised and...[V]ictim stated that she was 

not. At that point, Dr. Baptiste told the Principal, who placed 

a call to the District’s social worker. Dr. Baptiste used the 

word “rape” in the report but also used the word “fondling” 

because the actions that...[V]ictim described to her seemed 

to fit that description over the word rape. ...[V]ictim seemed 

shy and ashamed at first but did not appear apprehensive 

or scared once she started talking. Dr. Baptiste did not take 

notes of their meeting because she knows that is the job of 

the social worker. 

As a result of...[V]ictim’s disclosure, Ms. Tammy CoxCottman, school social worker for Chester Upland School 

District, which includes Toby Farms Intermediate School, 

was called to come speak with...[V]ictim. It is District policy 

that a social worker become involved in any child abuse 

situations in order to make the report to Child Line. Ms. 

Cox-Cottman arrived at the school shortly after she was 

requested; she knows that it was May 30, 2018. When she 

spoke with...[V]ictim, ...[V]ictim told her that her aunt’s 

boyfriend, [Appellant], touched her breasts and vagina area 

during a movie, that he asked her to watch, while they were 

both inside her aunt’s home; her aunt was at work. 

...[V]ictim told Ms. Cox-Cottman that she asked to go to the 

bathroom, but he had come into the bathroom while she 

was in there and asked her to bend over and [h]e began 

rubbing his penis against her backside. Ms. Cox-Cottman 

made notes of the interaction. ...[V]ictim told Ms. CoxCottman that Appellant told her not to tell anyone. Ms. CoxCottman believed that...[V]ictim told her the touching 

occurred while her clothing was on. Based upon the 

information provided, Ms. Cox-Cottman made a formal 

report of child abuse to the Child Line Hotline.

As it was the end of the school day, ...[V]ictim’s aunt, was 

already on her way to pick her up. Ms. Cox-Cottman 

had...E.P. come into the room with her and...[V]ictim. 

Although...[V]ictim was not crying when talking to Ms. Cox-
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Cottman, as soon as she saw her aunt, she broke down and 

started crying. 

E.P., was told by...[V]ictim that something had happened to 

her the night before. ...[V]ictim told E.P., that she didn’t 

want to tell her because [Victim] thought that she would be 

blamed since Appellant was [E.P’s] boyfriend. E.P. recalled 

that the night before, she had come home from work, she 

saw the lights and tv on in...[V]ictim’s room, but she 

thought...[V]ictim was asleep, so she just turned them off. 

Appellant had called E.P. earlier in the day and said that he 

would be going over and that he could be there when she 

got home from work. According to E.P., it was normal for 

people to watch tv in her room.

As a result of the call to Child Line, on June 11, 2018, 

...[V]ictim met with Ms. [Susanne Hawkins Whiting], who 

works at the Delaware County Children’s Advocacy Center, 

an organization whose focus is to bring together different 

child serving agencies for the coordination of investigation 

of child abuse. In her position as a Child Forensic 

Interviewer, she would conduct [interviews] with children 

who were victims or witnesses to a crime or abused, either 

physically or sexually, in order [to] elicit information about 

their experiences. ...[V]ictim told Ms. Whiting that Appellant 

touched her vaginal area with his fingers and also that he 

rubbed his penis on her behind area.

Officer Jennifer Jones, of the Chester City Police Department 

also became involved in the case as a result of her title as a 

Juvenile Investigator. Officer Jones specifically handles 

investigations on cases that involve children under the age 

of eighteen as a victim. Officer Jones received a report from 

Child and Youth Services that...[V]ictim had made a report 

of sexual abuse with Appellant as the abuser. As a result of 

the report, Officer Jones made contact with...[V]ictim’s aunt, 

E.P., who informed Officer Jones as to what...[V]ictim told 

her had occurred. Officer Jones set up the interview 

between...[V]ictim and the Child Advocacy Center. Officer 

Jones was present at the interview but was not there to ask 

questions, more so to sit and listen; if she had any questions 

that she wanted asked, she would relay them to the 

interviewer. ... 
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(Trial Court Opinion, filed June 15, 2020, at 1-7) (internal citations and some 

footnotes omitted).

The Commonwealth filed a criminal complaint and issued an arrest 

warrant for Appellant on June 20, 2018, and the court subsequently scheduled 

a preliminary hearing. The Commonwealth made two requests for the court 

to reschedule the preliminary hearing, from July 10, 2018 to July 31, 2018, 

and from July 31, 2018 to August 7, 2018, due to “Witness Unavaila[bility].”

(Application for Continuance at 1, unpaginated). The magisterial district judge 

also continued the case from August 7, 2018 to August 28, 2018, due to 

“recusal.” (Id.) The preliminary hearing was further continued until 

September 4, 2018, and again until September 11, 2018, because the 

“Defendant [was] Not Ready.”2 (Criminal Docket at 1). The court finally 

conducted the preliminary hearing on September 11, 2018, and Appellant 

waived formal arraignment on October 10, 2018. 

On November 30, 2018, Appellant filed a motion in limine to exclude 

evidence of his prior crimen falsi convictions. The Commonwealth filed on 

December 4, 2018, a motion to admit as impeachment evidence Appellant’s

most recent crimen falsi conviction for receiving stolen property. On the same 

day, the Commonwealth also filed a petition seeking to admit Victim’s out-of-

____________________________________________

2 The record suggests that the Commonwealth requested the continuance 

from August 28, 2018 to September 4, 2018, while the September 4, 2018 to 

September 11, 2018 request appears to have been made by Appellant.
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court statements to Susanne Hawkins Whiting3 and Dr. Lorrain Baptiste under 

the “Tender Years” exception to the rule against hearsay. The court scheduled 

a hearing on the motion and petition for December 20, 2018. On December 

18, 2018, the Commonwealth filed an amended “Tender Years” petition, 

requesting that Victim’s statements to E.P. be admitted as well. The court 

conducted an initial hearing on the motion/petition as scheduled on December 

20, 2018, during which Dr. Baptiste and E.P. testified and the court admitted 

Victim’s interview with Ms. Whiting as evidence. During Dr. Baptiste’s and 

E.P.’s testimony, the witnesses mentioned that the school district’s social 

worker, Ms. Cottman, also spoke with Victim about the alleged abuse. At the 

conclusion of testimony, the court decided to continue the hearing until 

January 25, 2019, to allow for the Commonwealth to present testimony from 

Ms. Cottman. The court explained that it felt Ms. Cottman was a “key 

individual in this whole scenario...because she’s in between Dr. Baptiste and 

[E.P.],” and without her testimony, “[t]here’s a gap.” (N.T. Hearing, 

12/20/18, at 42-43). 

On January 25, 2019, the Commonwealth requested another 

continuance, due to having “just identified” a new witness. (Delaware County 

Court of Common Pleas Filings Information at 2). The court rescheduled the 

hearing for February 15, 2019. On February 14, 2019, the Commonwealth 

____________________________________________

3 The Commonwealth incorrectly referred to Ms. Whiting as Susanne Blessing 

in this petition. 
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filed an amended “Tender Years” petition, requesting Victim’s statements to 

Ms. Cottman and M.C. be admitted under the “Tender Years” hearsay 

exception as well. The court conducted the second portion of the “Tender 

Years” hearing on February 15, 2019. At the conclusion of the hearing, the 

court ordered both sides to submit findings of fact and conclusions of law. The 

court initially rescheduled final argument on the motions for March 28, 2019, 

but later rescheduled it for April 18, 2019. Following the hearing on April 18, 

2019, the court ordered the parties to brief the issues, and scheduled a status 

conference for May 30, 2019. 

On April 30, 2019, the Commonwealth filed an amended motion to 

introduce Appellant’s crimen falsi conviction as impeachment evidence. On 

May 8, 2019, the Commonwealth also filed a brief in support of its requests

to admit Victim’s out-of-court statements to M.C., Dr. Baptiste, Ms. Cottman, 

E.P. and Ms. Whiting under the “Tender Years” exception to the rule against 

hearsay. The court issued an order on May 29, 2019, deeming the hearsay 

statements of Dr. Baptiste, Ms. Cottman, and Ms. Whiting “admissible as 

substantive evidence,” but determining the hearsay statements of E.P. and 

M.C. were “not...admissible as substantive evidence.” (Order, 5/29/19, at 1). 

On the same day, the court also entered an order denying the 

Commonwealth’s motion to admit Appellant’s prior conviction as impeachment 

evidence. The court then scheduled a jury trial for September 10, 2019.

On July 19, 2019, Appellant filed a motion to dismiss pursuant to 
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Pa.R.Crim.P. 600. The court conducted a Rule 600 hearing on September 6, 

2019, and denied the motion the same day. Appellant proceeded to a jury 

trial on September 10, 2019, at which Victim, M.C., Ms. Cottman, Ms. Whiting, 

and E.P. testified and the court played recordings of Ms. Whiting’s interview 

with Victim and Dr. Baptiste’s “Tender Years” hearing testimony.

4

 On 

September 12, 2019, the jury convicted Appellant of the above-mentioned 

offenses. The court sentenced Appellant on November 26, 2019, to an 

aggregate term of 11 years and 3 months to 221⁄2 years’ imprisonment, plus 

3 years’ probation. Appellant filed a timely post-sentence motion on 

November 27, 2019, challenging the weight and sufficiency of the evidence. 

The court denied the motion on February 3, 2020. On February 21, 2020, 

Appellant filed a timely notice of appeal. The court ordered Appellant on 

February 25, 2020, to file a concise statement of errors complained of on 

appeal per Pa.R.A.P. 1925(b); Appellant complied on March 21, 2020. 

Appellant raises three issues for our review:

Whether the evidence is insufficient to sustain the conviction 

for aggravated indecent assault where the trial testimony 

and other evidence fails to prove, beyond a reasonable 

doubt, that Appellant’s purported conduct with regard to the 

alleged victim amounted to any type of penetration, 

however slight, of the alleged victim’s genital area?

Whether the trial court erred in allowing the Commonwealth 

to admit the hearsay testimony of certain individuals—

Su[s]anne Hawkins Whiting, M.C. (a minor), Tammy CoxCottman, [E.P.], and Lorrain Baptiste—under the tender 

____________________________________________

4 Dr. Baptiste was unavailable to testify at trial due to having moved to Dubai.
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years hearsay exception, where the statements of the 

alleged victim that they each testified about were not 

sufficiently reliable on the basis of consistency or 

spontaneity?

Whether the trial court erred in denying Appellant’s motion 

to dismiss pursuant to Pa.R.Crim.P. 600 where the delays in 

this matter resulted from the Commonwealth’s failure to 

exercise due diligence, causing trial to commence three 

months after the run date?

(Appellant’s Brief at 9). 

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

establish that he committed aggravated indecent assault. Specifically, 

Appellant contends the evidence presented at trial was insufficient to support 

a finding that he penetrated Victim’s genitals or anus. Rather, Appellant 

maintains Victim’s testimony established only that he placed his fingers on top 

of Victim’s vagina, not inside of it. Appellant avers the only evidence indicating 

penetration occurred, M.C’s testimony concerning Victim’s handwritten 

message in a notebook, constitutes hearsay within hearsay. In contrast, 

Appellant highlights the testimony of the other “Tender Years” witnesses, 

which Appellant feels indicated “that all of the touching of [Victim’s] genital 

area was over the top of clothing that she was wearing.” (Appellant’s Brief at 

22). As Appellant contends the Commonwealth failed to prove the element of 

penetration, Appellant concludes this Court must vacate his convictions for 

aggravated indecent assault. We disagree. 

When examining a challenge to the sufficiency of evidence:

The standard we apply in reviewing the sufficiency of the 
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evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In addition, 

we note that the 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 fact-finder 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. The 

Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence. 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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal 

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. 

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)). 

The Crime Code defines aggravated indecent assault in relevant part as 

follows: 

§ 3125. Aggravated indecent assault

(a) Offenses defined.—Except as provided in section 

3121 (relating to rape), 3122.1 (relating to statutory sexual 

assault), 3123 (relating to involuntary deviate sexual 

intercourse) and 3124.1 (relating to sexual assault), 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 if: 

(1) the person does so without the complainant’s 
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consent; 

(2) the person does so by forcible compulsion; 

(3) the person does so by threat of forcible 

compulsion that would prevent resistance by a person 

of reasonable resolution; 

(4) the complainant is unconscious or the person 

knows that the complainant is unaware that the 

penetration is occurring; 

(5) the person has substantially impaired the 

complainant’s power to appraise or control his or her 

conduct by administering or employing, without the 

knowledge of the complainant, drugs, intoxicants or 

other means for the purpose of preventing resistance; 

(6) the complainant suffers from a mental disability 

which renders him or her incapable of consent;

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

* * *

(b) Aggravated indecent assault of a child.—A person 

commits aggravated indecent assault of a child when the 

person violates subsection (a)(1), (2), (3), (4), (5) or (6) 

and the complainant is less than 13 years of age. 

18 Pa.C.S.A. §§ 3125(a)(1)-(7), and (b). Significantly, this Court has clarified 

that “the term ‘penetration, however slight’ is not limited to penetration of the 

vagina; entrance in the labia is sufficient.” Commonwealth v. Hunzer, 868 

A.2d 498, 505-506 (Pa.Super. 2005), appeal denied, 584 Pa. 673, 880 A.2d 

1237 (2005) (quoting Commonwealth v. Hawkins, 614 A.2d 1198, 1200 

n.1 (Pa.Super. 1992)).

Instantly, Victim testified that Appellant rubbed her vagina with his 
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fingers under her clothing and “it [hurt].” (N.T. Trial, 9/10/19, at 127). Victim 

further stated that Appellant rubbed his penis between her legs. (Id. at 130). 

While Victim admitted on cross-examination that Appellant did not put his 

penis or finger inside of her vagina, such acts were not necessary for the jury 

to find that penetration had occurred. Here, Victim’s testimony that Appellant 

touched her vagina under her clothing to the point that “it [hurt]” was 

sufficient for the jury to determine that Appellant digitally penetrated Victim’s 

genitals and was guilty of aggravated indecent assault. See Hunzer, supra;

Commonwealth v. Cody, 584 A.2d 992, 993 (Pa.Super. 1991), appeal 

denied, 527 Pa. 622, 592 A.2d 42 (1991) (stating: “In a prosecution for sex 

offenses, a verdict may rest on the uncorroborated testimony of the victim”). 

The Commonwealth also presented the following evidence in support of 

Victim’s testimony: (1) the recording of Ms. Whiting’s interview with Victim, 

in which Victim states that Appellant rubbed “inside [her] private part” under 

her underwear with his finger and “he kept like rubbing it hard so it started 

hurting” (Interview, 6/11/18, at 17); (2) Officer Jones’ testimony that she 

wrote in her incident report that Appellant touched Victim’s “chest area and 

private parts” and “rubb[ed] her vagina with his fingers” (N.T. Trial, 9/11/19, 

at 29); (3) M.C.’s testimony that Victim handed her a composition notebook 

containing a handwritten message stating that a man stuck his finger in 

Victim’s vagina and had sex with her (Id. at 52); (4) Ms. Cottman’s testimony 

that Victim told her Appellant “touched [Victim’s] breasts and her private area, 
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her vagina area and also that he had asked her to...bend over and he [rubbed] 

his penis against her backside, her rear” (Id. at 89-90); (5) Ms. Cottman’s 

testimony that Victim told her Appellant “entered the bathroom and fondled 

[Victim] and rubbed against her” (Id. at 95); and (5) Dr. Baptiste’s “Tender 

Years” hearing testimony in which Dr. Baptiste explained that Victim came to 

her office and told her that Appellant inappropriately touched Victim (N.T. 

Hearing, 12/20/18, at 12). While Ms. Cottman stated that she remembered 

Victim telling her that Appellant touched Victim over her clothing, the jury was 

free to believe all, part, or none of the evidence each witness presented. See 

Hansley, supra. Thus, viewed in the light most favorable to the 

Commonwealth as verdict-winner, the evidence was sufficient to enable the 

jury to find beyond a reasonable doubt that Appellant committed aggravated 

indecent assault. See 18 Pa.C.S.A. §§ 3125(a)(7) and (b); Hansley, supra.

In his second issue, Appellant argues the trial court erred in admitting 

the testimony of M.C., Ms. Cottman, Dr. Baptiste, Ms. Whiting, and E.P. under 

the “Tender Years” exception to the rule against hearsay. Appellant avers that 

Victim’s statements to these witnesses were “not spontaneous in any way, nor 

were they consistent.” (Appellant’s Brief at 25). As to M.C., Appellant 

contends all of M.C.’s testimony stemmed from the handwritten statement in 

the composition notebook Victim gave to M.C. Appellant maintains such a 

written statement cannot be considered spontaneous where it was given to 

M.C. the morning following the alleged offense and was “clearly given to her 
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after deliberate planning.” (Id.). Appellant also claims M.C.’s testimony was 

inconsistent with other witnesses’ testimony as to when the alleged offense 

occurred, as M.C. testified that Victim told her “something happened to 

[Victim] over the weekend” prior to giving M.C. the composition notebook. 

(Id. at 26). 

Appellant further asserts that Victim’s statements to Ms. Cottman and 

Dr. Baptiste were not spontaneous as their conversations with Victim took 

place after Victim gave M.C. the handwritten notebook. Additionally, 

Appellant points out that Victim was accompanied to Dr. Baptiste’s office by a 

friend who encouraged her to talk. Appellant further highlights that Dr. 

Baptiste and Ms. Cottman testified that the alleged offense occurred on a sofa, 

while Victim testified that the incident occurred on her aunt’s bed. 

Appellant also attacks E.P.’s testimony as inconsistent with that of the 

other witnesses. Appellant specifically highlights that (1) E.P.’s testimony 

focused solely on what happened in the bathroom and did not mention 

anything occurring in the bedroom; (2) E.P. testified that Victim was 

completely undressed in the bathroom when the abuse occurred; and (3) E.P. 

admitted on cross-examination that Victim never mentioned watching a movie

with Appellant when the abuse occurred. Appellant additionally argues that 

Victim’s statements to E.P. were not spontaneous. Appellant emphasizes that 

E.P.’s testimony indicates that Victim failed to tell E.P. about the alleged abuse 

when E.P. returned from work that evening or when E.P. drove Victim to school 
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the following morning; Victim only told E.P. of the abuse after Ms. Cottman 

instructed her to do so. 

Finally, Appellant claims that the hearsay testimony of Ms. Whiting,

derived from an interview with Victim which was conducted nearly two weeks 

after the alleged incident occurred, was not spontaneous. Due to the trial 

court’s errors in admitting the testimony of these witnesses under the “Tender 

Years” exception, Appellant concludes this Court should vacate the judgment 

of sentence. We disagree.

“The admissibility of evidence is at the discretion of the trial court and 

only a showing of an abuse of that discretion, and resulting prejudice, 

constitutes reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-

98, 80 A.3d 380, 392 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189 

L.Ed.2d 824 (2014). 

The term “discretion” imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate conclusion, 

within the framework of the law, and is not exercised for the 

purpose of giving effect to the will of the judge. Discretion 

must be exercised on the foundation of reason, as opposed 

to prejudice, personal motivations, caprice or arbitrary 

actions. Discretion is abused when the course pursued

represents not merely an error of judgment, but where the 

judgment is manifestly unreasonable or where the law is not 

applied or where the record shows that the action is a result 

of partiality, prejudice, bias or ill will. 

Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal 

denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible error, an 

evidentiary ruling must not only be erroneous, but also harmful or prejudicial 
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to the complaining party.” Commonwealth v. Lopez, 57 A.3d 74, 81 

(Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013). 

“Hearsay” is an out-of-court statement offered in evidence to prove the 

truth of the matter asserted. Pa.R.E. 801(c). Generally, hearsay testimony 

is inadmissible at trial. See Pa.R.E. 802. “The tender years exception allows 

for the admission of a child’s out-of-court statement due to the fragile nature 

of young victims of sexual abuse.” Commonwealth v. Kriner, 915 A.2d 653, 

657 (Pa.Super. 2007) (quoting Commonwealth v. Fink, 791 A.2d 1235, 

1248 (Pa.Super. 2002)) (internal quotation marks omitted). The “Tender 

Years” exception to the hearsay rule provides:

§ 5985.1. Admissibility of certain statements

(a) General rule.—

(1) An out-of-court statement made by a child victim or

witness, who at the time the statement was made 

was 12 years of age or younger, describing any of 

the offenses enumerated in paragraph (2), not 

otherwise admissible by statute or rule of evidence, 

is admissible in evidence in any criminal or civil 

proceeding if:

(i) the court finds, in an in camera hearing, that the 

evidence is relevant and that the time, content 

and circumstances of the statement provide 

sufficient indicia of reliability; and

(ii) the child either:

(A) testifies at the proceeding; or

(B) is unavailable as a witness.

(2) The following offenses under 18 Pa.C.S. (relating to 
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crimes and offenses) shall apply to paragraph (1):

* * *

Chapter 31 (relating to sexual offenses)

* * *

42 Pa.C.S.A. § 5985.1.

“Any statement admitted under the [“Tender Years” hearsay exception]

must possess sufficient indicia of reliability, as determined from the time, 

content, and circumstances of its making.” Commonwealth v. O'Drain, 829 

A.2d 316, 320 (Pa.Super. 2003). “The main consideration for determining 

when hearsay statements made by a child witness are sufficiently reliable is 

whether the child declarant was particularly likely to be telling the truth when 

the statement was made.” Commonwealth v. Lyons, 833 A.2d 245, 255 

(Pa.Super. 2003), appeal denied, 583 Pa. 695, 879 A.2d 782 (2005). Factors 

the court may consider when determining reliability include, but are not 

limited to, “the spontaneity of the statements, consistency in repetition, the 

mental state of the declarant, use of terms unexpected in children of that age 

and the lack of a motive to fabricate.” Commonwealth v. Delbridge, 578 

Pa. 641, 675, 855 A.2d 27, 47 (2003); Lyons, supra. 

Importantly, however, “[i]ssues not raised in the trial court are waived 

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). “[I]ssues 

are preserved when objections are made timely to the error or offense.” 

Commonwealth v. Baumhammers, 599 Pa. 1, 23, 960 A.2d 59, 73 (2008), 
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cert. denied, 558 U.S. 821, 130 S.Ct. 104, 175 L.Ed.2d 31 (2009). “The 

purpose of contemporaneous objection requirements respecting trial-related 

issues is to allow the court to take corrective measures and, thereby, to 

conserve limited judicial resources.” Commonwealth v. Sanchez, 614 Pa. 

1, 32, 36 A.3d 24, 42 (2011), cert. denied, 568 U.S. 833, 133 S.Ct. 122, 184 

L.Ed.2d 58 (2012). “[A] party may not remain silent and afterwards complain 

of matters which, if erroneous, the court would have corrected.” 

Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa.Super. 2008) (quoting 

Commonwealth v. Clair, 458 Pa. 418, 423, 326 A.2d 272, 274 (1974)). 

See, e.g., Commonwealth v. Adams, 39 A.3d 310, 319-20 (Pa.Super. 

2012), affirmed, 628 Pa. 600, 104 A.3d 511 (2014) (reiterating: “[A] 

defendant’s failure to object to allegedly improper testimony at the 

appropriate stage...constitutes waiver” and “absence of a contemporaneous 

objection below constituted a waiver of appellant’s claim respecting the 

prosecutor’s closing argument”).

Instantly, the record makes clear Appellant failed to object at trial to the 

admission of M.C.’s and E.P.’s testimony. (See N.T. Trial, 9/11/19, at 49-80; 

107-35). Thus, as it concerns M.C. and E.P., Appellant has waived this issue 

for appellate review. See Pa.R.A.P. 302(a); Adams, supra. 

Further, the trial court analyzed this issue regarding Dr. Baptiste, Ms. 

Cottman, and Ms. Whiting as follows:

After a lengthy Tender Years Hearing, this [c]ourt issued an 

order that the statements made by...[V]ictim to Dr. Lorrain 
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Baptiste, Ms. Tammy Cox-Cottman, and Ms. Susanne 

Whiting were admissible as substantive evidence because 

they clearly established sufficient indicia of reliability to 

allow introduction of the occurrence at trial.

The determination was not erroneous for the following 

reasons. First, ...[V]ictim was eleven at the time of the 

assault, therefore satisfying the age element of the statute. 

Next, there is no argument that the statements were not 

relevant, as they were all directly relevant to the charges. 

Third, the statements provided a sufficient indicia of 

reliability. 

With regard to reliability, the [c]ourt examined the 

spontaneity of the statements, the consistency, ...[V]ictim’s

mental state, the use of terminology by a child of that age, 

and the lack of a motive to fabricate. 

As to motive, there exists no motive for...[V]ictim to lie. She 

testified herself that Appellant would come over to the 

house and that she didn’t have any particular relationship 

with him one way or the other. She didn’t hate him, there 

was no reason to get rid of him. To the contrary, he was 

her aunt’s boyfriend, she was living in her aunt’s house, 

there exists every reason for...[V]ictim to not want to uproot 

her living situation or risk upsetting her aunt for a fabricated 

story. 

As to...[V]ictim’s mental state, with each witness, it was 

clear that...[V]ictim had suffered a trauma. Her friend M.C., 

whom she trusted, told the [c]ourt that...[V]ictim was 

different that morning, very quiet and hesitant. Dr. Baptiste 

testified that...[V]ictim appeared shameful, an entirely 

credible emotion for an eleven-year-old to feel while trying 

to process an adult touching her in that manner. Ms. CoxCottman testified that...[V]ictim was calm up until the time 

she saw her aunt, the person she feared telling the most, 

where she broke down crying. ...[V]ictim’s mental state at 

the time of the disclosures was always consistent with 

experiencing that kind of trauma as a child.

With regard to consistency and also age-appropriate 

language, Appellant argued that the discrepancies 

in...[V]ictim’s recollections to different authority figures 
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showed that the statements were not reliable. For instance, 

the use of the word “rape” or “sex.” As Dr. Baptiste stated, 

the use of the word by an eleven-year-old girl may not mean 

the legal definition of the word rape. ...[V]ictim knew that 

the inappropriate touching by Appellant was wrong, that it 

wasn’t supposed to happen, that it made her feel bad and 

that it hurt. The argument that...[V]ictim did not use a more 

“appropriate” term for the assault is erroneous. Rather, this 

[c]ourt found the statements made by...[V]ictim to be even 

more reliable because she was not using legal terminology. 

Appellant also took issue with the inconsistency that the 

assault happened “on the couch” as Ms. Cox-Cottman 

reported or in the bedroom. Ms. Cox-Cottman was clear 

that she wrote in her notes that she assumed it was a sofa 

because...[V]ictim told her they were watching tv, so she 

assumed a sofa in the living room. However, E.P. testified 

that its very normal in her home to have people watching tv 

in her bedroom. The minor inconsistencies were just that, 

minor. ...[V]ictim’s account of what happened, that they 

were laying down together, that Appellant touched her 

genital area inappropriately, that she wanted him to stop so 

she asked to go to the bathroom, that Appellant followed 

her into the bathroom and told her to turn around and bend 

over while he rubbed his penis against her, never changed. 

(Trial Court Opinion at 12-14). We agree with the trial court’s assessment. 

Here, the trial court considered each of the factors in determining the 

reliability of Victim’s statements to Dr. Baptiste, Ms. Cottman, and Ms. 

Whiting, specifically highlighting how the statements revealed Victim’s mental 

state, use of terminology of a child of similar age, and lack of motive to lie. 

See Delbridge, supra. Appellant’s attempts to point out minor

inconsistencies in the witnesses’ testimony regarding these statements were 

not enough to undermine the statements’ overall reliability and consistency. 

Thus, the trial court properly admitted testimony from Dr. Baptiste, Ms. 

Cottman, and Ms. Whiting pursuant to the “Tender Years” hearsay exception. 
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See 42 Pa.C.S.A. § 5985.1; Lyons, supra. 

In his third issue, Appellant argues the trial court erred in denying his 

Rule 600 motion where more than 365 days elapsed between the filing of the 

criminal complaint and his trial, and the Commonwealth did not exercise due 

diligence in ensuring that the trial began during the required period. Appellant 

contends that the Commonwealth’s lack of due diligence led to it not being 

“trial ready” even up to the day of trial, as that was the first time the 

Commonwealth revealed that Dr. Baptiste was unavailable to testify due to 

having moved to Dubai. 

While counsel for Appellant conceded at the Rule 600 hearing that part 

of the delay could be attributed to his filing of a motion in limine, Appellant 

avers that the delay caused by defense counsel’s motion was inconsequential 

in comparison to the delay caused by the Commonwealth. Specifically, 

Appellant points to the Commonwealth’s failure to call Ms. Cottman to testify 

as a “Tender Years” witness until the other “Tender Years” witnesses 

mentioned her name during the first hearing. Appellant asserts the 

Commonwealth should have been aware of the importance of Ms. Cottman’s 

testimony as it relates to the sequence of events and should have anticipated

calling her as a witness. Appellant avers the Commonwealth’s failure to

investigate and include Ms. Cottman as a witness earlier in the proceedings, 

and its filing of an amended petition to include her testimony as well as that 

of another witness, represents a lack of due diligence on the Commonwealth’s 
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part. Appellant concludes the court should have granted his Rule 600 motion, 

and this Court should vacate the judgment of sentence. We disagree. 

In evaluating Rule 600 issues, our Supreme Court has stated:

By the terms of Rule 600, the Commonwealth must bring a 

defendant to trial within 365 days from the date upon which 

a written criminal complaint is filed. Pa.R.Crim.P. 

600(A)(2)(a). However, the Rule 600 run date may be 

adjusted pursuant to the computational directives set forth 

in Subsection (C) of the Rule. For purposes of the Rule 600 

computation, “periods of delay at any stage of the 

proceedings caused by the Commonwealth when the 

Commonwealth has failed to exercise due diligence shall be

included in the computation of the time within which trial 

must commence.” Id. 600(C)(1). “Any other periods of 

delay,” including those caused by the defendant, “shall be 

excluded from the computation.” Id. When considering a 

Rule 600 motion, the court must identify each period of 

delay and attribute it to the responsible party, then adjust 

the 365-day tally to arrive at the latest date upon which the 

Commonwealth may try the defendant. Absent a 

demonstration of due diligence, establishing that the 

Commonwealth has done “everything reasonable within its 

power to guarantee that [the] trial begins on time,” 

Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12, 17 

(1998), the Commonwealth’s failure to bring the defendant 

to trial before the expiration of the Rule 600 time period 

constitutes grounds for dismissal of the charges with 

prejudice. See Pa.R.Crim.P. 600(D)(1).

Commonwealth v. Barbour, 647 Pa. 394, 399, 189 A.3d 944, 947 (2018). 

See also Commonwealth v. Burno, 638 Pa. 264, 313-14, 154 A.3d 764, 

793-94 (2017) (explaining excusable delay is not calculated against 

Commonwealth in Rule 600 analysis, as long as Commonwealth acted with 

due diligence at all relevant times). 

Further, we observe that appellate briefs must conform in all material 
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respects to the briefing requirements set forth in the Pennsylvania Rules of 

Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119 

(addressing specific requirements of each subsection of brief on appeal). 

Regarding the argument section of an appellate brief, Rule 2119(a) provides: 

Rule 2119. Argument

(a) General rule.—The argument shall be divided into 

as many parts as there are questions to be argued; and shall 

have at the head of each part—in distinctive type or in type 

distinctively displayed—the particular point treated therein, 

followed by such discussion and citation of authorities as are 

deemed pertinent. 

Pa.R.A.P. 2119(a). “[I]t is an appellant’s duty to present arguments that are 

sufficiently developed for our review. The brief must support the claims with 

pertinent discussion, with references to the record and with citations to legal 

authorities.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super. 

2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations 

omitted). “This Court will not act as counsel and will not develop arguments 

on behalf of an appellant.” Id. If a deficient brief hinders this Court’s ability 

to address any issue on review, we shall consider the issue waived. 

Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006). See also 

In re R.D., 44 A.3d 657 (Pa.Super. 2012), appeal denied, 618 Pa. 677, 56 

A.3d 398 (2012) (holding appellant waived issue, where argument portion of 

appellant’s brief lacked meaningful discussion of, or citation to, relevant legal 

authority regarding issue generally or specifically; appellant’s lack of analysis 

precluded meaningful appellate review). 
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Instantly, in his brief on appeal, Appellant baldly asserts that the 

Commonwealth failed to exercise due diligence in ensuring that his trial began 

within 365 days of the filing of the criminal complaint. In support of this claim, 

Appellant points only to the Commonwealth’s failure to investigate and call

Ms. Cottman as a witness at the first “Tender Years” hearing.5 Significantly, 

however, Appellant fails to provide an accounting of any continuances or time 

delays taken by defense counsel or requested by the trial court. As Appellant 

has failed to sufficiently develop his Rule 600 claim on appeal, it is waived. 

See Gould, supra. See also Commonwealth v. Martz, 232 A.3d 801, 811 

(Pa.Super. 2020) (concluding appellant’s Rule 600 issue was waived where 

his argument “provides neither an accounting of the time delays at issue nor 

any developed argument or citation to authority to support his bare assertion 

that the court erroneously calculated” Rule 600 analysis). Accordingly, we 

affirm. 

Judgment of sentence affirmed.

____________________________________________

5 Although Appellant argues the Commonwealth caused further delay by failing 

to alert defense counsel until the day of trial that Dr. Baptiste had moved to 

Dubai, these events occurred after Appellant filed his Rule 600 motion, so they 

are not included in the Rule 600 calculation. See Commonwealth v. Hunt, 

858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc), appeal denied, 583 Pa. 659, 

875 A.2d 1073 (2005) (stating that to obtain relief, defendant must have valid 

Rule 600 claim at time he files his motion).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/21