J-A25010-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

OTIS ADAM THOMAS III

Appellant No. 1092 MDA 2017

Appeal from the Judgment of Sentence imposed May 17, 2017

In the Court of Common Pleas of Dauphin County

Criminal Division at No: CP-22-CR-0005913-2015

BEFORE: STABILE, J., MCLAUGHLIN, J. and MUSMANNO, J.

MEMORANDUM BY STABILE, J.: FILED: MARCH 10, 2022

Appellant, Otis Adam Thomas III, appeals from his judgment of 

sentence of 48-96 months’ imprisonment plus five years’ consecutive 

probation for unlawful contact with a minor, indecent assault of a child,

corruption of minors and endangering the welfare of children.

1

 The record 

indicates that the minor complainant, K.E., reported Appellant’s acts to a 

therapist at Cornerstone Counseling, PC (“Cornerstone”) in Harrisburg. 

Previously, we remanded this case to the trial court (while continuing to retain 

jurisdiction) for in camera review of whether Cornerstone’s records are 

privileged under the psychiatrist-patient privilege, 42 Pa.C.S.A. § 5944, and

the sexual assault counselor privilege, 42 Pa.C.S.A. § 5945.1. On remand, 

the trial court concluded that some of the records were privileged and some 

____________________________________________

1 18 Pa.C.S.A. §§ 6318, 3126, 6301, and 4304, respectively. 
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were not, but nothing in the non-privileged records entitled Appellant to relief. 

We affirm.

The trial court summarized the evidence adduced during trial as follows:

At the time of trial, K.E.[] was 14 years old and lived with her 

grandparents. Before moving to her grandparent[s’] home, K.E. 

lived with her mother, [Appellant] and her younger brother. K.E. 

testified that she spent most of her time in her bedroom to avoid 

her mother and [Appellant], her stepfather, yelling at her. She 

testified that family members in the household rarely spoke to 

each other.

K.E. recalled that the sexual contact by [Appellant] began when 

she was ten years old. She recalled being perplexed upon 

awakening one morning to find that all of her clothes had been 

removed. Following that incident, [Appellant] began grabbing or 

smacking her behind or touching her breast on top of her clothes 

when she passed him in the hallway of the home. [Appellant]’s 

sexual contact with K.E. would occur in the family room, where he 

would summon her by text and tell her to sit on his lap. 

[Appellant] removed K.E.’s clothes, touched her breasts and 

buttocks, and digitally penetrated her vagina. K.E. testified that 

[Appellant] touched her breast and vagina with his mouth. K.E. 

testified that [Appellant] touched her vagina with his mouth on 

more than one occasion, sometimes in her bedroom and 

sometimes in her parents’ bedroom. The contact occurred daily 

or every other day, typically when her mother was either sleeping, 

in the shower or outside the home. K.E. recalled an incident which 

occurred while her mother was in the shower when [Appellant] 

had K.E. sit on his lap on her bunkbed, with his boxer shorts pulled 

down. K.E. lifted herself up, by hanging onto the wood rail of the 

bed, to attempt to avoid contact with [Appellant]’s penis. 

[Appellant] left the room when K.E.’s mother got out of the 

shower. 

K.E. testified that she did not tell anyone of the abuse because 

she did not think anyone would believe her and because she 

viewed [Appellant] as a father figure from whom she wanted love. 

Although [Appellant] required K.E. to stay in her room most of the 

time, he increasingly allowed her out of her room to take her 
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shopping, out to eat or on his boat. [Appellant] occasionally told 

K.E. that he loved her. 

K.E.’s mother, Laura Thomas[,] testified that in 2009, following 

the birth of K.E.’s brother, problems arose in the marriage. Ms. 

Thomas testified that she suffered postpartum depression and had 

difficulty caring for the children. Ms. Thomas testified that 

[Appellant] was rarely home to help. In 2014, Ms. Thomas 

learned that [Appellant] was having an affair.

In late September 2015, K.E. disclosed the abuse to a staff 

member at her school. Ms. Thomas received contact by either the 

police or Children and Youth Services. On September 29, 2015, 

the Lower Paxton Township Police Department received a report 

of child abuse and sexual assault of a victim, K.E. Police obtained 

authorization to conduct a one-party consent electronic intercept. 

With the consent of her grandmother, with whom she was living, 

K.E. agreed to participate. In a series of text messages, K.E. 

texted [Appellant] at the direction of detectives. K.E. asked 

[Appellant] to explain why he [had] touched her that way, to 

which [Appellant] responded, “I should not have done anything 

that made you uncomfortable. There’s no explanation for it. I 

understand that it is hard to ask feeling this way (sic). I should 

not have done anything to make this happen. You did nothing 

wrong!” In another message, [Appellant] stated, “I am sorry that 

this happened. Cannot express that enough.” [Appellant] also 

stated, “You’re fine. Nothing will happen again. You have my 

word” and “I do love you and want to make this better for you. 

There is no explanation I can give, so I need to know how to make 

this better for you.” The intercept concluded at 11:30 p.m. on 

September 30, 2015. Police arrested [Appellant] the following 

evening. 

When questioned by police, although [Appellant] initially 

expressed shock at the allegations, he proceeded to make 

admissions. [Appellant] admitted that he touched K.E.’s breasts 

and buttocks on top of her clothing and that when he walked into 

K.E.’s room and saw her in her underwear, “it made his mind 

wander.” [Appellant] admitted that while Ms. Thomas was in the 

shower, he touched K.E.’s bare breasts and vagina. He admitted 

to putting his mouth on K.E.’s breast and vagina and having her 

sit on his lap. [Appellant] told police that the touching occurred 

in K.E.’s bedroom or the living room while Ms. Thomas was in the 

shower. [Appellant] stated that K.E. was 11 years old at the time. 
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At one point during the interview, [Appellant] told police that he 

felt like he was going to be sick, that he was sorry for what he had 

done, and thought many times about “putting a gun in [his] 

mouth.” 

Following his arrest, [Appellant] texted Ms. Thomas to ask her to 

post bail for him and if they could reconcile. In those text 

messages, [Appellant] did not state that the abuse of which he 

was accused did not occur. In one text to Ms. Thomas, [Appellant] 

stated, referring to K.E., “she doesn’t want to hurt a fly, but she 

wanted to get this off her shoulders.” 

[Appellant] testified that the admissions made to police were 

taken out of context and that he made them because he feared 

ramifications if he did not agree with them. 

Trial Court Opinion, 12/19/18, at 3-6.

On November 22, 2015, Appellant was charged with committing sexual 

offenses against K.E. Prior to trial, Appellant filed a petition seeking 

Cornerstone’s records relating to K.E.’s grandmother’s communications with 

Cornerstone and all diagnoses, opinions, evaluations, observations, and 

treatment plans relating to K.E. In response, the Commonwealth asserted 

that Cornerstone’s records were privileged under the psychiatrist-patient 

privilege under Section 5944 and the sexual assault counselor privilege under 

Section 5945.1. In an order dated September 29, 2016, the trial court denied 

Appellant’s petition.

On February 13, 2017, following a three-day trial, the jury found 

Appellant guilty of the above-mentioned offenses and not guilty of indecent 

exposure, attempted rape, involuntary deviate sexual intercourse, and 

aggravated indecent assault. The trial court subsequently imposed sentence, 

and Appellant filed timely post-sentence motions challenging the weight of the 
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evidence and the imposition of consecutive sentences, which the court denied 

in an order docketed on June 7, 2017. 

Appellant filed a timely notice of appeal. On July 14, 2017, the trial 

court ordered Appellant to file a Pa.R.A.P. 1925 statement within 21 days, but 

Appellant did not file a Rule 1925 statement until October 11, 2017. In the 

pro se Rule 1925 statement, Appellant argued that the court abused its 

discretion by denying his motion for disclosure of Cornerstone’s records, 

denying his challenge to the weight of the evidence, and imposing consecutive 

sentences on Appellant’s counts of conviction. 

On October 16, 2017, Appellant’s attorney filed a petition for leave to 

submit his Rule 1925 statement nunc pro tunc. Counsel stated that he had 

drafted a Rule 1925 statement but admitted that his staff failed to file it. On 

October 17, 2017, without ruling on the attorney’s petition, the trial court 

issued a Rule 1925(a) opinion recommending dismissal of Appellant’s appeal 

for lack of a timely Rule 1925(b) statement. The trial court did not address 

the merits of any issue in Appellant’s pro se Rule 1925(b) statement.

On November 27, 2017, Appellant filed his brief and reproduced record 

in this appeal. By memorandum of September 18, 2018, we remanded with 

instructions for the trial court to accept Appellant’s Rule 1925(b) statement 

nunc pro tunc and to file a Rule 1925(a) opinion addressing the issues in 

Appellant’s statement. 

On December 19, 2018, the trial court filed its opinion. Without 

reviewing the Cornerstone documents in camera, the court contended that it 
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properly denied Appellant’s pretrial motion seeking their disclosure. The court 

also claimed that Appellant waived his challenge to the weight of the evidence 

due to the vagueness of his October 11, 2017 Rule 1925 statement. Finally, 

the court reasoned that its sentence was a proper exercise of discretion.

In his first argument on appeal, Appellant contended that the trial court 

erred by denying his request for disclosure of records held by Cornerstone 

Counseling concerning Cornerstone’s communications with K.E.’s 

grandmother and its diagnoses, opinions, evaluations, observations, and 

treatment plans relating to K.E. Appellant argued that these records fell 

outside the scope of Pennsylvania’s psychiatrist-patient privilege, 42 Pa.C.S.A. 

§ 5944, and the sexual assault counselor privilege, 42 Pa.C.S.A. § 5945.1. On 

October 6, 2021, pursuant to Fisher v. Erie Insurance Exchange, 258 A.3d 

451 (Pa. Super. 2021) (en banc), we remanded this case for in camera review 

by the trial court whether these records were privileged under Sections 5944 

and 5945.1. See Commonwealth v. Thomas, —A.3d—, 2021 WL 4593819, 

*5-9 (Pa. Super. Oct. 6, 2021) (unpublished memorandum). Our order 

directed that either party could file a Rule 1925 statement within 21 days after 

the court’s decision.

On November 29, 2021, following in camera review, the trial court

entered detailed findings of fact and conclusions of law in which it held that 

most of Cornerstone’s records were privileged, and that none of the nonprivileged material entitled Appellant to relief. 
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Appellant did not file a Rule 1925(b) statement within 21 days after the 

court’s decision. On December 29, 2021, the trial court filed a Rule 1925(a)

opinion stating that neither Appellant nor the Commonwealth filed a Rule 1925 

statement within 21 days, and therefore no further analysis was necessary

beyond its November 29, 2021 decision. Nine days later, on January 7, 2022, 

Appellant filed an untimely Rule 1925(b) statement. The Rules of Appellate 

Procedure do not address this precise situation. The closest that the Rules 

come to addressing these circumstances is Rule 1925(c)(1), which provides 

that when an appellant in a criminal case is ordered to file a Rule 1925 

statement and fails to do so, such that the appellate court is convinced that 

counsel has been per se ineffective, the appellate court shall remand the case 

for the filing of a Rule 1925 statement nunc pro tunc and the filing of an 

opinion by the judge. Under the present circumstances, we find a remand 

unnecessary, since (1) Appellant ultimately filed an untimely Rule 1925 

statement, (2) the trial court filed a Rule 1925 opinion on December 29, 2021, 

(3) the Rule 1925 opinion incorporated by reference the court’s November 29, 

2021 decision on the privilege issue, and (4) the November 29, 2021 decision 

is sufficiently detailed to facilitate appellate review of the privilege issue. 

Accordingly, we will proceed to the merits of this appeal.

Appellant raises the following issues in his November 27, 2017 brief:

A. Did the trial court err by denying the defense request for an in 

camera review and the disclosure of relevant diagnoses, opinions, 

evaluations, observations, and treatment plans that were not 

confidential communications protected from disclosure by 42 

Pa.C.S.A. § 5944[?]
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B. Did the trial court err in denying [A]ppellant’s motion for a new 

trial when the jury’s verdict was against the weight of the evidence 

because the Commonwealth failed to meet its burden to sustain 

the alleged charges?

C. Did the trial court abuse its discretion when it imposed 

consecutive sentences where [A]ppellant’s conduct was limited to 

a single incident and not so egregious as to warrant a four to eight 

(4-8) year sentence?

D. Did the trial court err in denying [A]ppellant’s request to submit

a concise statement of matters nunc pro tunc?

2

Appellant’s Brief at 9.

Appellant’s first argument concerns whether the trial court properly 

denied his request for Cornerstone’s records on the basis of privileges in 

Sections 5944 and 5945.1. “Pennsylvania law does not favor evidentiary 

privileges.” In re Subpoena No. 22, 709 A.2d 385, 388 (Pa. Super. 1998). 

“Thus, courts should accept testimonial privileges only to the very limited 

extent that permitting a refusal to testify or excluding relevant evidence has 

a public good transcending the normally predominant principle of utilizing all 

rational means for ascertaining the truth.” Commonwealth v. Stewart, 690 

A.2d 195, 197 (Pa. 1997).

A sexual offense defendant’s entitlement to an alleged victim’s records 

held by an agency, hospital, rape crisis center or other third party depends 

upon the scope of any privilege that may protect the confidentiality of the 

victim’s records. Commonwealth v. Eck, 605 A.2d 1248, 1251 (Pa. Super. 

____________________________________________

2 This issue is moot because this Court permitted Appellant to file a Rule 1925 

statement nunc pro tunc in its order dated September 18, 2018.
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1992). In the case of statutory privileges such as Sections 5944 and 5945.1, 

the scope of the privilege rests upon the language of the statute. Id. at 1252. 

“Generally, in reviewing the propriety of a discovery order, our standard of 

review is whether the trial court committed an abuse of discretion. However, 

to the extent that appellate courts are faced with questions of law, [our] scope 

of review is plenary.” Gormley v. Edgar, 995 A.2d 1197, 1202 (Pa. Super. 

2010). 

The party asserting privilege against discovery of requested materials 

bears the burden of proof of demonstrating that the materials are protected 

from disclosure. Fisher, 258 A.3d at 461. The party invoking a privilege 

must initially set forth facts showing that the privilege has been properly 

invoked. Id. Once the invoking party has made the appropriate proffer, the 

burden shifts to the party seeking disclosure to set forth facts showing that 

disclosure should be compelled either because the privilege has been waived 

or because an exception to the privilege applies. Id. If the party asserting 

the privilege does not produce sufficient facts to show that the privilege was 

properly invoked, the burden never shifts to the other party, and the material 

is not deemed privileged. Id. 

42 Pa.C.S.A. § 5944, the psychotherapist-patient privilege, provides:

No psychiatrist or person who has been licensed under the Act of 

March 23, 1972 (P.L. 136, No. 52) to practice psychology shall be, 

without the written consent of his client, examined in any civil or 

criminal matter as to any information acquired in the course of his 

professional services on behalf of such client. The confidential 

relationship and communications between a psychologist or 
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psychiatrist and his client shall be on the same basis as those 

provided or prescribed by law between an attorney and client.

Id. The purpose of this privilege is to “protect confidential communications 

made and information given by the client to the psychotherapist in the course 

of treatment.” Farrell v. Regola, 150 A.3d 87, 97-98 (Pa. Super. 2016); see 

also Gormley v. Edgar, 995 A.2d 1197, 1204 (Pa. Super. 2010) (privilege 

“aid[s] in the effective treatment of the client by encouraging the patient to 

disclose information fully and freely without fear of public disclosure”).

The psychotherapist-patient privilege applies only to “information 

acquired in the course of [the psychiatrist’s or psychologist’s] professional 

services on behalf of [the] client.” 42 Pa.C.S.A. § 5944. The privilege applies 

not only to communications with the therapist but also to communications 

with other individuals on the patient’s treatment team who are not themselves 

psychotherapists. Commonwealth v. Cook, 231 A.3d 913, 922 (Pa. Super. 

2020). Furthermore, under Section 5944’s second sentence, any exceptions 

that apply to the attorney-client privilege also apply to the 

psychiatrist/psychologist-patient privilege. For example, any communications 

between the patient and the therapist are not privileged if they are made in 

the presence of third persons who are not part of the patient’s treatment team. 

Cf. Commonwealth v. Mrozek, 657 A.2d 997, 998 (Pa. Super. 1995) (for 

attorney-client privilege to apply, communication must relate to facts of which 

attorney was informed by his client, without presence of strangers, for 

purpose of securing either an opinion of law, legal services, or assistance in a 

legal matter).
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Section 5945.1, the sexual assault counselor privilege, provides in 

relevant part:

(a) Definitions.- As used in this section, the following words and 

phrases shall have the meanings given to them in this subsection:

“Confidential communication.” All information, oral or written, 

transmitted between a victim of sexual assault and a sexual 

assault counselor in the course of their relationship, including, but 

not limited to, any advice, reports, statistical data, memoranda, 

working papers, records or the like, given or made during that 

relationship, including matters transmitted between the victim 

through the use of an interpreter.

“Rape crisis center.” Any office, institution or center offering 

assistance to victims of sexual assault and their families through 

crisis intervention, medical and legal accompaniment and followup counseling.

“Sexual assault counselor.” A person who is engaged in any office, 

institution or center defined as a rape crisis center under this 

section, who has undergone 40 hours of sexual assault training 

and is under the control of a direct services supervisor of a rape 

crisis center, whose primary purpose is the rendering of advice, 

counseling or assistance to victims of sexual assault.

“Victim.” A person who consults a sexual assault counselor for the 

purpose of securing advice, counseling or assistance concerning a 

mental, physical or emotional condition caused or reasonably 

believed to be caused by a sexual assault. The term shall also 

include those persons who have a significant relationship with a 

victim of sexual assault and who seek advice, counseling or 

assistance from a sexual assault counselor concerning a mental, 

physical or emotional condition caused or reasonably believed to 

be caused by a sexual assault of a victim.

(b) Privilege.-

(1) No sexual assault counselor may, without consent of the 

victim, disclose the victim’s confidential oral or written 

communications to the counselor nor consent to be examined in 

any court or criminal proceeding.
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(2) No co-participant who is present during the counseling may 

disclose a victim’s confidential communication made during the 

counseling session nor consent to be examined in any civil or 

criminal proceeding without the written consent of the victim.

42 Pa.C.S.A. § 5945.1. 

Section 5945.1 prohibits disclosure of any “confidential oral or written

communication” transmitted between the “victim of sexual assault” and a 

“sexual assault counselor” in the course of their relationship, absent the 

victim’s consent. It is an absolute privilege that is not overcome even by the 

constitutional rights of a criminal defendant. V.B.T. v. Family Services of 

Western Pennsylvania, 705 A.2d 1325, 1329 (Pa. Super. 1998). 

A “victim” is the person seeking consultation for a condition caused by, 

or reasonably caused by, a sexual assault. 42 Pa.C.S.A. § 5945.1(a). Notably, 

a “victim” also includes “those persons who have a significant relationship with 

a victim of sexual assault” concerning a condition caused or reasonably 

believed to be caused by a sexual assault of a victim. A “sexual assault 

counselor” is an individual who has undergone the training required under the 

statute and who is under the control of a direct services supervisor of a rape 

crisis center. Id. A “rape crisis center” is “any office, institution or center 

offering assistance to victims of sexual assault and their families through crisis 

intervention, medical and legal accompaniment and follow-up counseling.” 

Id.
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With this framework in place, we turn to the trial court’s decision that 

most of the Cornerstone records sought by Appellant were privileged, and that 

any non-privileged documents would not have changed the outcome of trial. 

The trial court first addressed whether K.E.’s grandmother’s 

communications with Cornerstone were privileged. Appellant asserted:

It has been brought to [Appellant’s] attention that the initial 

disclosure of the alleged acts was made to a counselor during a 

therapy session on September 28, 2015 at Cornerstone 

Counseling, PC, 6011 Jonestown Road, Harrisburg, PA 17112 

[Cornerstone]. The defense has a good faith basis to believe that 

statements made to the therapist in that session and the records 

contain prior statements of the complaining witness regarding the 

alleged act. These statements are believed by the defense to 

contain information related to the complaining witness[’s] motive 

[to] fabricate the allegations and evidence of coaching by her 

mother and grandmother. Further, the defense has recently 

learned that the grandmother spent 4-5 hours with the counselor 

prior to the session on 28 September when the accusation was 

made.

Petition, ¶ 3. Following in camera review, the trial court determined that no 

relief was due. In particular, the court found that (1) while K.E.’s grandmother 

attended an initial intake meeting on September 26, 2015, it was impossible 

to attribute any statements to her, (2) the sole statement during the intake 

meeting that was tenuously attributable to K.E.’s grandmother merely 

concerned K.E.’s negative perception of her mother, (3) K.E.’s grandmother 

did not attend any other meetings at Cornerstone, and (4) there was no 

evidence that K.E.’s grandmother, or any other person, attempted to coach 

K.E. into fabricating evidence against Appellant. Findings of Fact and 

Conclusions of Law (“Findings”), at 3-5. The court concluded that nothing was 
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subject to disclosure because there was no information relevant to K.E.’s 

motion to fabricate or evidence of coaching. Id. at 5. Furthermore, the court 

held that even if there were any non-privileged communications by K.E.’s 

grandmother, Appellant did not suffer prejudice from their non-disclosure,

because the other evidence of guilt was overwhelming, including K.E.’s 

detailed description of abuse, Appellant’s apology during a telephone 

conversation with K.E. for touching her the way he did, his admission that he 

put his mouth on K.E.’s bare breasts and vagina, and his statement that he 

thought many times of putting a gun in his mouth. Findings at 6. We agree

with the trial court’s determination of no prejudice. The record confirms the 

trial court’s conclusion that the other evidence against Appellant was 

overwhelming.

Appellant also sought Cornerstone records of diagnoses, opinions, 

evaluations, observations, and treatment plans relating to K.E. Following in 

camera review, the trial court held that all handwritten information in records 

from K.E.’s meetings at Cornerstone on September 28, 2015, October 15, 23, 

26, and 29, 2015, and November 2 and 9, 2015 were privileged under Sections 

5944 and 5945.1, because they consisted of K.E.’s statements to a 

psychologist and/or sexual assault counselor.3 Id. at 9. The court held that 

certain items were not privileged, including (1) the typed portions of the 

records on these dates by sexual assault counselors, (2) a discharge summary 

____________________________________________

3 The court did not state whether the psychologist and sexual assault 

counselor were the same individual or different individuals. 
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on February 27, 2015, and (3) a November 5, 2015 meeting (because K.E.’s 

mother attended the meeting along with K.E. Id. Ultimately, however, the 

court ruled that Appellant did not suffer prejudice from non-disclosure of nonprivileged materials, because (once again) the other evidence against 

Appellant was overwhelming. As we did above, we agree with the court’s 

finding of no prejudice because the record supports its determination that the 

other evidence against Appellant was overwhelming.

For these reasons, we hold that Appellant’s argument concerning the 

Cornerstone records does not entitle him to relief.

In his next argument, Appellant challenges the weight of the evidence 

adduced during trial. Appellant seeks a new trial on the ground that K.E.’s 

testimony “was so inconsistent, contradictory, confusing, and unreliable that 

the jury's verdict can only be said to have been based on conjecture and 

surmise . . .” Appellant’s Brief at 33. In its December 19, 2018 opinion, the 

trial court contended that Appellant waived his challenge to the weight of the 

evidence due to the vagueness of his October 11, 2017 Rule 1925 statement. 

We agree. 

We begin by reciting the weight of the evidence claim in Appellant’s 

post-sentence motions. There, he stated: 

The Commonwealth rested primarily on the information provided 

by the complaining witness whose testimony was so inconsistent, 

contradictory, confusing, and unreliable that the jury’s verdict can 

only be said to have been based on conjecture and surmise and 

therefore, justice should be afforded another opportunity to 

prevail. Further, the jury’s finding that there was not a continuing 

course of conduct was directly inconsistent with the testimony of 
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the complaining witness further undermining the weight of the 

evidence.

Appellant’s Post-Sentence Motions, at ¶ 14.

In his Rule 1925 statement, Appellant recited the same claim with the 

deletion of a phrase at the end of the first sentence:

The Commonwealth rested primarily on the information provided 

by the complaining witness whose testimony was so inconsistent, 

contradictory, confusing, and unreliable that the jury’s verdict can 

only be said to have been based on conjecture and further, the 

jury’s finding that there was not a continuing course of conduct 

was directly inconsistent with the testimony of the complaining 

witness further undermining the weight of the evidence.

Appellant’s Rule 1925 statement, at ¶ 1. 

In his appellate brief, Appellant developed, to some extent, an argument 

relating to the first half of the weight claim in his Rule 1925 statement. 

Nothing in his brief related to the second half of his weight claim.

When a concise statement contains issues that are too vague for the 

trial court to ascertain the nature of the claim to be raised on appeal, this 

Court has found those issues waived. In Commonwealth v. Lord, 719 A.2d 

306 (Pa. 1998), our Supreme Court held that issues not included in a Rule

1925(b) statement are deemed waived on appeal, reasoning:

The absence of a trial court opinion poses a substantial 

impediment to meaningful and effective appellate review. Rule 

1925 is intended to aid trial judges in identifying and focusing 

upon those issues which the parties plan to raise on appeal. Rule 

1925 is thus a crucial component of the appellate process.

Id. at 308. “When the trial court has to guess what issues an appellant is 

appealing, that is not enough for meaningful review.” Commonwealth v. 
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Dowling, 778 A.2d 683, 686 (Pa. Super. 2001). “When an appellant fails 

adequately to identify in a concise manner the issues sought to be pursued on 

appeal, the trial court is impeded in its preparation of a legal analysis which is 

pertinent to those issues.” Estate of Daubert, 757 A.2d 962, 963 (Pa. Super. 

2000). “In other words, a Concise Statement which is too vague to allow the 

court to identify the issues raised on appeal is the functional equivalent of no 

Concise Statement at all.” Dowling, 778 A.2d at 686.

We find that two other decisions warrant further comparison to inform 

our conclusion in this matter. In Commonwealth v. Seibert, 799 A.2d 54 

(Pa. Super. 2002), the defendant’s Rule 1925(b) statement “merely stated 

that ‘[t]he verdict of the jury was against the weight of the credible evidence 

as to all of the charges.’” Id. at 62. The trial court dismissed the defendant’s 

weight claim summarily without addressing any specific weight of the evidence 

issue. Based on the foregoing, this Court found the weight claim too vague 

to permit review, even though he raised specific reasons in his brief as to how 

the verdict was against the weight of the evidence. Id. 

More recently, in Commonwealth v. Rogers, 250 A.3d 1209 (Pa. 

2021), a rape case involving three victims, the defendant claimed in his Rule 

1925(b) statement:

The verdicts were so contrary to the weight of the evidence as to 

shock one’s sense of justice, where [A.P.’s], [M.H.]’s and [C.B.]’s 

testimony was vague, inconsistent and incredible. New trials 

should have been granted in the interests of justice so that right 

may prevail, as the fact finder's verdict based upon such 

testimony was speculative and conjectural.
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Id. at 1223. Our Supreme Court concluded that this statement was not too 

vague to permit review because the issue was “readily understandable from 

context” because of the detailed multi-paragraph weight claim in the 

defendant’s post-sentence motions that delineated the flaws in each victim’s 

testimony.4 Id. at 1224. 

____________________________________________

4 The Rogers defendant’s post-sentence motions stated in relevant part:

7. Petitioner contends that the testimony of [A.P.] was so 

contradictory and inconsistent that the verdict was against the 

weight of the evidence. [A.P.] gave two different accounts of how 

she arrived at the location where she claimed to be assaulted, two 

different locations where the assault occurred, two different 

explanations for how she sustained her injuries, and inconsistent 

testimony of how or when her property was lost or taken.

8. Petitioner likewise contends that the testimony of [M.H.] was 

against the weight of the evidence. The testimony of [M.H.] was 

incredible based on inconsistencies, her drug usage, and that [sic] 

it generally made no sense. Petitioner contends that the 

circumstances of how and when [M.H.] reported the incident 

further call her credibility into question. ...

9. Petitioner contends that the evidence presented as to [C.B.] 

was ... against the weight of the evidence. Petitioner concede[d] 

that he had consensual sexual relations with [C.B.], which he 

claimed was as a result of an agreement to commit prostitution, 

but denied beating her. During her testimony, [C.B.] maintained 

that she did not know her assailant and that their conversation 

was limited prior to the assault. It is undisputed that [C.B.] was 

“a little tipsy” celebrating her birthday, and lived a few blocks 

away from the area of the physical assault. Petitioner spoke to 

the police and testified that he told them her name, that it was 

her birthday, that she had been drinking, and that the sexual 

interaction happened not in an alley, but on a porch, in a location 

that Petitioner contends was very close to [C.B.’s] home. 

(Footnote Continued Next Page)
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The present case is more like Seibert than Rogers. As in Seibert, the 

weight claim in Appellant’s Rule 1925 statement consists of generic assertions

and is devoid of specific detail. Unlike Rogers, Appellant’s weight claim does 

not become readily understandable through review of his post-sentence 

motions, because the weight claim in Appellant’s post-sentence motions is 

virtually identical to his Rule 1925 statement. Thus, the trial court could only 

guess at the contours of this claim when it authored its Rule 1925 opinion. 

Although Appellant later fleshed out the first sentence of his weight claim in 

his appellate brief, this was of no help to the trial court when it prepared its 

opinion. Our role as an appellate court reviewing a weight claim is to 

____________________________________________

Petitioner also gave the amount of money paid to [C.B.] as 

$40.00, taken from the MAC machine as described by [C.B.]; this 

was coincidentally the amount of money [C.B.] claimed was taken. 

When questioned by police, Petitioner gave a statement 

containing all of the information about [C.B.], which he testified 

to at trial. Petitioner contends that the only way he could possibly 

have had all of that information was that he had indeed had some 

protracted conversation with her on the date in question.

10. Petitioner contends that the agreed upon evidence, that DNA 

comparisons showed the presence of DNA in a sperm fragment 

from an unidentified male, lends credibility to the proposition that 

although Petitioner engaged in sexual intercourse with [C.B.], so 

did another unidentified male. Petitioner contends that it was the 

other male who also beat [C.B.] again consistent with Petitioner’s

statement to the police and testimony at trial. The question of 

whether [C.B.] was sexually active at the time prior to the assault 

was initially answered differently from the trial, when the 

prosecution attempted to discount the unknown sperm fraction. 

...

Id. at 1222 (with minor revisions).
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determine whether the trial court abused its discretion in addressing a weight 

claim. See, Commonwealth v. Widmer, 774 A.2d 745 (Pa. 2000) (appellate 

review of weight claim is review of exercise of discretion, not of underlying 

question whether verdict is against weight of the evidence). Where, as here, 

the trial court is disadvantaged to review a weight claim, we likewise are at a 

disadvantage to review the trial court’s exercise of discretion. Accordingly, 

we conclude that Appellant waived his weight issue.

In his final argument, Appellant contends that the trial court abused its 

discretion in imposing consecutive sentences. According to Appellant, the 

court should have considered all of Appellant’s crimes as a single act, since 

the jury found that “there was no[] continuing course of conduct.” Appellant’s 

Brief at 36. We disagree.

To reach the merits of a discretionary sentencing issue, we must conduct 

a four-part analysis to determine:

(1) whether the appeal is timely; (2) whether Appellant preserved 

his issue; (3) whether Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence [in accordance 

with 2119(f)]; and (4) whether the concise statement raises a 

substantial question that the sentence is appropriate under the 

sentencing code... [I]f the appeal satisfies each of these four 

requirements, we will then proceed to decide the substantive 

merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014). 

Appellant satisfied the first three of these requirements, so we must determine 

whether his objection to consecutive sentences raises a substantial question.
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This Court has observed:

A court’s exercise of discretion in imposing a sentence 

concurrently or consecutively does not ordinarily raise a 

substantial question. Rather, the imposition of consecutive rather 

than concurrent sentences will present a substantial question in

only the most extreme circumstances, such as where the 

aggregate sentence is unduly harsh, considering the nature of the 

crimes and the length of imprisonment. 

[An appellant] may raise a substantial question where he receives 

consecutive sentences within the guideline ranges if the case 

involves circumstances where the application of the guidelines 

would be clearly unreasonable, resulting in an excessive sentence; 

however, a bald claim of excessiveness due to the consecutive 

nature of a sentence will not raise a substantial question.

Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015)

(citations and quotation marks omitted).

In this case, Appellant does not claim that he was sentenced outside the 

Sentencing Guidelines. Furthermore, as the Commonwealth points out, his 

maximum sentence of eight years’ imprisonment is well within the aggregate 

statutory maximum of twenty-six years. Nor do we see nothing that indicates 

that the imposition of consecutive sentences was “clearly unreasonable” or 

“unduly harsh.” Id. Thus, Appellant fails to raises a substantial question as 

concerning the discretionary aspects of his sentence.

Even assuming that Appellant raises a substantial question, his claim 

lacks substance. “[W]here the trial court is informed by a pre-sentence report, 

it is presumed that the court is aware of all appropriate sentencing factors and 

considerations, and that where the court has been so informed, its discretion 

should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 
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(Pa. Super. 2009). The sentencing transcript reflects that the court 

considered Appellant’s pre-sentence report along with defense counsel’s 

arguments. Furthermore, Appellant’s claim that the jury found no continuing 

course of conduct is misleading. The jury did not find a course of conduct on 

two counts, indecent assault of a child and endangering the welfare of a child. 

In the other two counts of conviction, unlawful contact with a minor and 

corruption of minors, the jury did not address whether there was a course of 

conduct. The evidence of record indicates that Appellant engaged in a course 

of conduct as to these latter offenses. Finally, the trial court properly 

determined that Appellant should not receive a “volume discount” by having 

all sentences run concurrently. Trial Ct. Op. at 14.

Based upon the deferential standard this Court must apply regarding 

consecutive sentences and the trial court’s rationale for its sentence, we find 

that the trial court acted within its discretion by imposing consecutive 

sentences for Appellant’s convictions. 
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Judgment of sentence affirmed.

Judge Musmanno did not participate in the consideration or decision of 

this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/2022