J-S86034-16

_____________________________

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HENRY B. RICHTER

Appellant No. 755 WDA 2016

Appeal from the Judgment of Sentence April 18, 2016

In the Court of Common Pleas of Somerset County

Criminal Division at No(s): CP-56-CR-0000476-2013

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 06, 2016

Appellant, Henry B. Richter, appeals from the judgment of sentence 

entered in the Somerset County Court of Common Pleas, following his jury 

trial conviction of aggravated indecent assault and endangering welfare of 

children (“EWOC”).1 We affirm. 

In its opinion, the trial court fully and correctly sets forth the relevant 

facts and procedural history of this case. Therefore, we have no reason to 

restate them. 

Appellant raises the following issue for our review: 

WHETHER THE EVIDENCE PRESENTED AT TRIAL 

SUFFICIENTLY ESTABLISHED THAT [APPELLANT] 

____________________________________________

1 18 Pa.C.S.A. §§ 3125(a)(8) and 4304(a)(1), respectively. 
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COMMITTED THE AGGRAVATED [INDECENT] ASSAULT—

LESS THAN 16 YEARS OF AGE AND ENDANGERING THE 

WELFARE OF A CHILD?

(Appellant’s Brief at 7). 

A challenge to the sufficiency of the evidence implicates the following 

legal principles: 

The standard we apply in reviewing the sufficiency of the 

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

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

The Crime Code defines aggravated indecent assault in relevant part 

as follows: 

§ 3125. Aggravated indecent assault
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(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: 

* * *

(8) the complainant is less than 16 years of age and 

the person is four or more years older than the 

complainant and the complainant and the person are 

not married to each other. 

18 Pa.C.S.A. §§ 3125(a)(8). 

The Crimes Code defines the endangering welfare of children in 

relevant part as follows: 

§ 4304. Endangering welfare of children

(a) Offense defined.—

(1) 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 offense if he knowingly endangers the 

welfare of the child by violating a duty of care, 

protection or support. 

* * *

(3) As used in this subsection, the term “person 

supervising the welfare of a child” 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)(1), (a)(3). The Commonwealth must prove the 
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following to sustain an EWOC conviction: (1) the accused was aware of his 

duty to protect the child; (2) the accused was aware that the child was in 

circumstances that could threaten the child’s physical or psychological 

welfare; and (3) the accused has either failed to act or has taken action so 

lame or meager that such actions cannot reasonably be expected to protect 

the child’s welfare. Commonwealth v. Bryant, 57 A.3d 191, 197 

(Pa.Super. 2012). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Scott P. 

Bittner, we conclude Appellant’s issue on appeal merits no relief.2 The trial 

court opinion fully discusses and properly disposes of the question 

presented. (See Trial Court Opinion, filed June 21, 2016, at 3-9) (finding: 

Appellant waived his sufficiency of evidence challenge due to his failure to 

specify in Rule 1925(b) statement which elements of offenses lacked 

sufficient evidence; even if preserved, Appellant’s challenge to his 

aggravated indecent assault conviction has no merit; Appellant’s son 

____________________________________________

2

In his brief, Appellant purports to raise a challenge to the weight of the 

evidence along with his challenge to the sufficiency of the evidence. 

Nevertheless, Appellant failed to raise his weight claim after sentencing in a 

post-sentence motion or in his Rule 1925(b) statement. See 

Commonwealth v. Washington, 825 A.2d 1264 (Pa.Super. 2003) 

(explaining failure to raise weight of evidence claim in trial court at 

sentencing or in post-sentence motion constitutes waiver for purposes of 

appeal). Thus, Appellant’s challenge to the weight of the evidence is waived 

for purposes of our review. 
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testified he saw Appellant standing with his pants down behind Victim who 

also had her pants down; Appellant’s son also stated Appellant later told 

him, “I know what you saw isn’t right and you shouldn’t have [seen] it”; 

Victim testified that Appellant’s son walked in on her and Appellant having 

sex on date of incident; Commonwealth presented DNA evidence, which 

showed Appellant’s semen on blanket along with Victim’s DNA; 

Commonwealth established Appellant was more than four years older than 

Victim as Victim was fourteen years old and Appellant was forty-five years 

old on date of incident; Commonwealth also demonstrated Appellant and 

Victim were not married, through testimony that explained why Victim was 

living with Appellant and his fiancée at time of incident; based on this 

evidence, jury determined Commonwealth presented sufficient evidence to 

sustain aggravated indecent assault conviction; Appellant’s challenge to his 

EWOC conviction similarly fails; Victim was under eighteen years of age 

when Appellant engaged in sexual intercourse with Victim; Appellant 

demonstrated he was Victim’s caretaker when he testified that he provided 

Victim with food, lodging, and transportation around time of incident; 

Appellant reiterated status as Victim’s caretaker when he admitted Victim 

had to abide by his household rules; under these circumstances, jury 

determined Commonwealth presented sufficient evidence to sustain EWOC 

conviction; therefore, Appellant’s challenge to sufficiency of evidence to 

support his convictions warrants no relief). Accordingly, we affirm on the 
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basis of the trial court opinion. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016
1 18 Pa. Cons. Stat.§ 3122.l(b). 

2 18 Pa. Cons. Stat. § 3125(a)(8). 

3 18 Pa. Cons. Stat. § 4304(a)(I ). 

communications, the police were eventually notified. Id. at 1.116, 1.79-80. The police 

the time. Id. at 1.46, 1.85. B.R. ran upstairs and notified his brother, and through a series of 

concluded that the two were having sex. Trial Tr. 1.113-17, Jan. 19, 2016. N.H. was fourteen at 

Defendant standing directly behind her with his pants down, from which B.R. immediately 

stairs in the family residence and witnessed the victim, N.H., bent over with her pants down, and 

On Father's Day, 2013, i.e., June 16, 2013, Defendant's minor son B.R. descended the 

culminating in Defendant's arrest and prosecution. 

Defendant's sons, who reported what he witnessed, which initiated the chain of events 

sexual relations with his fourteen year old niece, an instance of which was witnessed by one of 

with Endangering the Welfare of Children.' These charges arise out of Defendant having had 

felony, and Aggravated Indecent Assault' a second-degree felony. She also charged Defendant 

On October 17, 2013, the District Attorney filed a Criminal Information charging Henry 

B. Richter ("Defendant") with twenty counts of both Statutory Sexual Assault, 1 a first-degree 

I. FACTUAL AND PROCEDURAL HISTORY 

This Opinion is issued pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). 

·' 

OPINION PURSUANT TO Pa.R.A.P. 1925{a) 

4 76 CRIMINAL 2013 

·''• '·.:·;·.:i.{ 0~ "'0- 'IRTC' ~- l. .. ,(i . .... ' L; l ; ~· S~iMERSET, PA COMMONWEALTH ) IN THE COURT OF COMMON PLEAS 

2016 JUN 21 P11 3: 52) OF SOMERSET COUNTY, 

v, -- . ) PENNSYLVANIA 

HENRY B. RICHTt~EI FOR RECORO~- 

._ ) 

Defendant. ) 

· 1 

,· .' 

Circulated 11/17/2016 02:28 PM
2 

On April 18, 2016, we sentenced Defendant to, inter alia, thirty-six (36) months to one 

denied. Id. at 8. 

Sentencing Tr. 5-7, Apr. 18, 2016. Defendant subsequently moved for acquittal, which we 

SVP designation, and that he did not wish to exercise his right to have a hearing on the issue. 

evidence that would be introduced at the SVP hearing, that it would be sufficient to support an 

designation for Defendant, and Defendant indicated that he was willing to stipulate to the 

On April 18, 2016, the Commonwealth sought a Sexually Violent Predator ("SVP") 

Endangering the Welfare of Children. 

guilty as to Statutory Sexual Assault, and guilty as to Aggravated Indecent Assault and 

proceeded to jury trial on January 19 and 20, 2016, after which the jury returned a verdict of not 

Ass_ault and Aggravated Indecent Assault charges dropped from twenty to five. The case 

which the same charges were filed, but the number of counts pertaining to the Statutory Sexual 

The District Attorney filed an Amended Criminal Information on January 15, 2016 in 

appearing- in the record. 

continuance was granted to Defendant because of his counsel's unavailability for reasons not 

continuance based on a conflict with defense counsel's pre-paid vacation to China. Another 

/ 

We granted the Commonwealth two more continuances, and then granted Defendant another 

and prior to and subsequent to a hearing conducted on Defendant's omnibus pre-trial motion. 

granted multiple continuances to Defendant in order to obtain new counsel, to review discovery, 

continuance to the Commonwealth because DNA testing results were unavailable, and we 

Defendant pleaded not guilty to all charges on December 10, 2013. We granted a 

1.40-58. 

subsequently commenced an investigation which ultimately led to Defendant's arrest. Id. at 
3 

In his 1925(b) statement, Defendant lists one issue: "Whether the evidence presented at 

trial sufficiently established that the defendant committed the aggravated indecent assault-less 

than 16 years of age[,] and endangering the welfare of a child?" Def. 's Concise Issues, Jun. 8, 

2016. As discussed supra, Defendant moved for acquittal at sentencing, though the grounds for 

acquittal were not stated. However, Defendant also moved for acquittal at the close of the 

Commonwealth's case: "[W]e would move for judgment of acquittal. It is our opinion [that] the 

Commonwealth has not proven its case beyond a reasonable doubt as to the elements of the 

offenses, particularly the statutory sexual intercourse, the aggravated indecent assault, 

endangering the welfare of a child." Trial Tr. 1.179. Defense counsel at that time proceeded to 

attempt to cast doubt generally on the testimony of the victim, the Commonwealth's expert 

witness, and Defendant's sons. Id. 

However, in Defendan!'s 1925(b) statement, nowhere does Defendant allege with 

specificity the elements of the offenses . that were not sufficiently established. Pa.R.A.P. 

1925(b)(4)(ii) provides, "The Statement shall concisely identify each ruling or error that the 

II. ANALYSIS 

hundred twenty (120) months incarceration in a state correctional institution based on the 

Aggravated Indecent Assault conviction, and nine (9) months to eighteen (18) months for the 

Endangering the Welfare of Children conviction, with the prison sentences to be served 

concurrently. Id. at 17-18. Additionally, having found that Defendant is an SVP, the Defendant 

is also subject to a mandatory lifetime reporting requirement. Id. at 18. 

Defendant filed a Notice of Appeal on May 17, 2016, and on May 19, 2016, we ordered 

Defendant to file a Concise Statement of Matters Complained of on Appeal, pursuant to 

Pa.R.A.P. 1925(b), with which Defendant complied on June 8, 2016. 
4 

reasonable doubt." Commonwealth v. Harper, 403 A.2d 536, 538-39 (Pa. 1979) (internal 

to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a 

the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable 

In evaluating the sufficiency of the evidence, "the test is whether, viewing the evidence in 

Court does not deem Defendant's allegation of error waived. 

hereafter briefly address each of the elements of both offenses in the event that the Superior 

Defendant has failed to specifically identify the issues pertinent to his appeal. However, we 

Welfare of Children have four elements, any of which Defendant could be contesting; therefore, 

insufficient evidence to support. Both Aggravated Indecent Assault and Endangering the 

Here, Defendant failed to specify exactly which elements of the offenses there was 

doubt." Id. (citing Williams, 959 A.2d at 1258 n. 9). 

which contains numerous elements that the Commonwealth must prove beyond a reasonable 

importance in cases where, as here, the Appellant was convicted of multiple crimes each of 

Super. Ct. 2008)). As the Superior Court emphasized, "Such specificity is of particular 

274, 281 (Pa. Super. Ct. 2009) (citing Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. 

was insufficient' in order to preserve the issue for appeal." Commonwealth v. Gibbs, 981 A.2d 

/ 

the Appellant's 1925 statement must 'specify·the element or elements upon which the evidence 

According to the Superior Court, "[W]hen challenging the sufficiency of the evidence on appeal, 

sufficiency of the evidence claims because of his failure to comply with Rule 1925(b)(4)(ii). 

We respectfully submit that, per Rule 1925(b)(4)(vii), Defendant has waived his 

not raised in accordance with the provisions of this paragraph (b)(4) are waived." 

judge .... " And, pursuant to Rule 1925(b)(4)(vii), "Issues not included in the Statement and/or 

appellant intends to challenge with sufficient detail to identify all pertinent issues for the 
5 

1.156-57; Com.'s Ex. G, Jan. 19, 2016. Between the victim's testimony, Defendant's son's 

Defendant's semen was present on a blanket along with the victim's DNA. See, e.g., Trial Tr. 

testimony of B.R., as we indicated supra, and there was also DNA evidence establishing that 

Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. Ct. 2006), there was the additional 

sufficient to convict a defendant, despite contrary evidence from · the defense witnesses," 

"the uncorroborated testimony of a sexual assault victim, if believed by the trier of fact, is 

Defendant at that time. Id. at 1.88-89. And, while we note that it has long been recognized that 

Trial Tr. 1.113-19, Jan. 19, 2016. The victim testified that she had been having sex with 

some time after, his father said, "I know what you saw isn't right and you shouldn't have saw it." 

victim who also had her pants down, and that B.R. could see the victim's pubic area, and that 

testified that he descended the stairs to find Defendant standing with his pants down behind the 

Defendant penetrated the victim's genitals with one of his body parts: Defendant's son, B.R. 

The evidence was sufficient for the jury to conclude beyond a reasonable doubt that 

Pa. Standard Suggested Jury Instructions (Crim), §15.31250 (2012). 

Fourth, that the defendant and the child were not married to each 

other. 

Third, that the defendant was four or more years older than the 

child; and 

Second, that [ name of childJ was a child under the age of 16; 

First, that the defendant penetrated the [genitals] [or] [anus] of 

[name of childJ with the defendant's finger or other body part; 

Instructions as follows: 

doubt; the elements have been restated by the Pennsylvania Suggested Standard Criminal Jury 

Aggravated indecent assault requires a finding of four elements beyond a reasonable 

citations omitted). 
6 

fourteen on the date of the incident. Id. at 1.85. The investigating officer, Trooper First Class 

Goins also ascertained the victim's age as of the date of the incident to be fourteen. Id. at 1.46. 

Similarly, the evidence was sufficient to support a finding that the third element was 

established beyond a reasonable doubt: Trooper Goins testified that Defendant's date of birth 

was September 7, 1967, which would make him forty-eight years old at the date of the trial and 

forty-five on the date of the incident. Id. at 1.45. Because there were thirty-one years' 

difference between Defendant's age and victim's age, the third element is satisfied. 

The fourth element was likewise proven beyond a reasonable doubt, i.e., that Defendant 

and the victim were not married. Defendant testified that he and his fiancee took the victim in 

because "she was having problems at home, being rebellious, other problems." Trial Tr. 2.5. 

Defendant at this time was in a physically intimate relationship with the victim's aunt (his 

fiancee) at this time, id. at 2.13-14, and in fact, Defendant's fiancee was pregnant with his child 

at the time of the incident. Id. at 2.14. While Defendant and the victim's aunt were not married, 

she held herself out as his wife by using his last name, and she subsequently bore Defendant a 

Tr. 1.87. The victim testified that she was born on 1, which would have made her 

corroborating testimony, and the DNA evidence, there was more than sufficient evidence to 

support a finding beyond a reasonable doubt that Defendant had had sex multiple times with the 

victim, an instance of which B.R. witnessed, notwithstanding the fact that the victim at one point 

denied she had been sexually abused by Defendant, Trial Tr. 1.95, or that the victim had made 

previously made allegations against other persons in the past. See, e.g., id. at 1.99, 1.64-65; Trial 

Tr. 2.10, Jan. 20, 2016. 

The second element was established· beyond a reasonable doubt. Here, the sex act 

between Defendant and the victim occurred on Father's Day of 2013, i.e., June 16, 2013. Trial 
7 

elements have been met beyond a reasonable doubt: 

An Endangering the Welfare of a Child conviction also requires a finding that four 

best interest of the applicant and authorizes the issuance of the license."). 

of the applicants for a license is under 16 years of age unless the court decides that it is to the 

beyond a reasonable doubt by means of wholly circumstantial evidence.") (internal citations 

omitted). See also, 23 Pa. Cons. Stat. § \~04(1::>)1} ("No marriage license may be issued if either 

(stating, "The Commonwealth may sustain its burden of proving every element of the crime 

victim, thereby satisfying the final element of the offense. See, Harper, 403 A.2d at 538-39 

to the child, the evidence adduced was sufficient to find that Defendant was not married to the 

home because she was a troubled child; and that Defendant and his fiancee served as caretalcers 

fourteen at the time of the incident; that Defendant and his fiancee took the victim into their 

the victim's aunt and they had been in a relationship for eleven years; that the victim was 

Having established that the victim was Defendant's niece; that Defendant was engaged to 

to church.· I had them go along to help out as well." Id. at 2.7. 

out there. While I was driving bus, towards the end, I was picking up other kids and talcing them 

activities such as going "to town, shopping ... Boy Scouts. She went along to the meetings held 

·' 

to her child protective services meetings. Id. at 2.8. The victim had also been included in family 

just provided the meals for her, a place to live." Id. at 2.31. However, he would drive the victim 

Defendant testified that he did not consider himself to be a caretaker for the victim: "I 

Id. at 2.33-34. 

blood to Defendant even though the victim's mother is currently married to Defendant's brother. 

Defendant's fiancee and the victim is a blood relationship; however, the victim is not related by 

second child. Id. at 2.32-33. They have been together eleven years, and the relationship between 
8 

child under eighteen on the date of the incident. 

evidence to support the jury's finding that Defendant was a person supervising the welfare of a 

household rules according to which the victim had to abide. Trial Tr. at 1.87. There was ample 

furthermore, there was testimony by the victim that Defendant was the one to establish the 

took her to church gatherings, family vacations, and child protective services meetings; 

shown above: Defendant himself testified that he provided food and lodging to the victim, that he 

The third element has similarly been satisfied beyond a reasonable doubt, as we have 

through testimony given by the investigating officer, as illustrated supra. 

of eighteen on the date of the incident, was established through the victim's testimony as well as 

In reverse order, the fourth element of this offense, i.e., that the victim was under the age 

Defendant's allegation of error is entertained. 

issue has been waived for appeal purposes. However, we hereafter respond in the event that 

supra, case law, as well as the Rules of Appellate Procedure, support a finding that Defendant's 

alleged to have insufficient supporting evidence; therefore, we again submit that, as discussed 

We reemphasize that Defendant has failed to specify which elements of this offense are 

Pa. Standard Suggested Jury Instructions (Crim), §15.4304A (2008). 

Fourth, that the child was under the age of 18 years at the time of 

the endangering. 

Third, that the defendant was at the time a parent, guardian, person 

supervising the welfare of the child under the age of 18, or a 

person that employs or supervises such a person .... 

Second, that the defendant endangered the welfare of the child 

knowingly. A person's conduct is knowing when he or she is 

aware that it is practically certain that his or her conduct will cause 

a particular result. 

First, that the defendant endangered the welfare of the child by 

violating a duty of care, protection, or support. 
9 

4 To the extent that Defendant's convictions are inconsistent with his acquittal on the remaining charge of statutory 

sexual assault, juries are permitted to render inconsistent verdicts, and "a]n] acquittal cannot be interpreted as a 

specific finding in relation to some of the evidence," and a "long line of cases from both [the Pennsylvania 

Supreme] Court and the United States Supreme Court ... unequivocally permit inconsistent jury verdicts and prohibit 

drawing inferences from a jury's verdict of acquittal." Commonwealth v. Moore, 103 A.3d 1240, 1250 (Pa. 2014). 

For Commonwealth: Lisa Lazzari-Strasiser, Esq., District Attorney 

For Defendant: Tancredi Calabrese, Esq. 

Dated: June 21, 2016 

Scott P. Bittner, J. 

Aggravated Indecent Assault and Endangering the Welfare of Children. 4 

For the foregoing reasons, we submit that Defendant was properly convicted of 

·' 

to support a finding that Defendant knowingly·endangered the welfare of the victim. 

beyond a reasonable doubt that Defendant committed a sex act on the victim which is sufficient 

testimony, the DNA evidence, and Defendant's own sons' testimony, the jury could conclude 

Endangering the Welfare of Children. See, Charlton, 902 A.2d at 561-62. Between the victim's 

permit a jury to conclude beyond a reasonable doubt that . a defendant is guilty of, inter alia, 

that a defendant has had some form of sexual contact or intercourse with her is sufficient to 

The second and first elements of this offense are likewise satisfied: a victim's testimony