J-S16033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES MARK MANN,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1941 MDA 2018

Appeal from the Judgment of Sentence Entered July 25, 2018

in the Court of Common Pleas of Franklin County 

Criminal Division at No(s): CP-28-CR-0001539-2017

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: MAY 20, 2019

James Mark Mann (“Mann”) appeals from the judgment of sentence 

entered following his conviction of rape of a child, aggravated indecent assault 

of a child less than 13 years old, and indecent assault of a child less than 13 

years old.1 We affirm.

On January 2, 2017, Mr. C., the victim’s father, received information 

that the victim, eleven-year-old K.C., was heard at school discussing her 

sexual activity with Mann. According to Mr. C., K.C. stated that 

[Mann] had licked her and was rubbing [K.C.] down below[,] and 

that he was massaging it. And she said that [Mann] tried to put 

it inside of her[,] but it was too big and wouldn’t fit.... And then 

[K.C.] said that he just kept rubbing it and was rubbing his penis 

on her vagina. And she says, when he was done, [she] thought 

he had peed on [her]. And [Mr.C.] said, well[,] what do you mean 

by that? And she says, stuff came out. And [Mr.C.] said, well, 

____________________________________________

1 See 18 Pa.C.S.A. §§ 3121(c), 3125(a)(7), 3126(a)(7). 
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what made stuff come out. And she went, he was doing this 

[(indicating masturbation)].

Trial Court Opinion, 11/6/18, at 3 (citation omitted). K.C.’s mother later took 

K.C. to the hospital for an examination. 

A jury subsequently convicted Mann of the above-described charges. 

The trial court sentenced Mann, on July 25, 2018, to a prison term of 240-480 

months for his conviction of rape of a child less than 13 years of age, a 

consecutive prison term of 60-120 months for his conviction of aggravated 

indecent assault, and a consecutive prison term of 9-60 months for his 

conviction of indecent assault of a child less than 13 years of age. Mann filed 

a Post-Sentence Motion, which, after a hearing, the trial court denied. 

Thereafter, Mann filed the instant timely appeal, followed by a court-ordered 

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

Mann presents the following claims for our review:

I. Whether the trial court erred in denying [] Mann’s [P]ost-

[S]entence [M]otion for judgment of acquittal by finding 

that the Commonwealth had established beyond a 

reasonable doubt each of the elements of rape of a child, 

aggravated indecent assault and indecent assault[,] when 

the numerous and significant discrepancies in the testimony 

of the Commonwealth’s witnesses made their testimony so 

unreliable and inclusive that the jury could not reasonably 

have concluded that the Commonwealth had proven all of 

the elements of the offenses beyond a reasonable doubt[?]

II. Whether the trial court abused its discretion in denying ... 

Mann’s [P]ost-[S]entence [M]otion for a new trial by finding 

that the conviction was not against the weight of the 

evidence[,] when that evidence—primarily eyewitness 

testimony—was so inconsistent that the jury could not 
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reasonably have concluded that the Commonwealth had 

proven his guilt beyond a reasonable doubt[?]

III. Whether it was an abuse of discretion in not allowing 

[the] cross[-]examination of a witness about prior sexual 

conduct when evidence of that conduct had been entered 

into evidence by the Commonwealth in its case[-]in[-]chief?

See Brief for Appellant at 16-17. 

Mann first challenges the sufficiency of the evidence underlying his 

convictions. Id. at 23. Mann acknowledges that the Commonwealth 

presented four witnesses: Mr. C.; Rebecca Voss (“Voss”), the forensic 

interviewer; K.C.; and Pennsylvania State Police Trooper Jeffrey A. Baney

(“Trooper Baney”). Id. at 24. Mann posits that “[g]iven the highly 

inconsistent testimony of the alleged victim[,] K.C., the evidence presented 

at trial was not sufficient to sustain his convictions.” Id. Mann contends that 

there were “numerous and significant discrepancies” in the testimony, and the 

Commonwealth’s evidence was so “weak and inconclusive that no reasonable 

facts can be drawn from their testimony.” Id. 

As this Court has explained, 

[a] claim challenging the sufficiency of the evidence presents a 

question of law. We must determine whether the evidence is 

sufficient to prove every element of the crime beyond a 

reasonable doubt. We must view evidence in the light most 

favorable to the Commonwealth as the verdict winner, and accept 

as true all evidence and all reasonable inferences therefrom upon 

which, if believed, the fact finder properly could have based its 

verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017) 

(citation omitted). In order to develop a claim challenging the sufficiency of 
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the evidence properly, an appellant must specifically discuss the elements of 

the crimes, “and identify those which he alleges the Commonwealth failed to 

prove.” Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 

2014).

In his appellate brief, Mann fails to develop his challenge to the 

sufficiency of the evidence by identifying the elements of the subject crimes 

not supported by sufficient evidence. Mann further fails to identify any alleged 

discrepancies in the testimony of the witnesses. Thus, we could conclude that 

Mann has waived any review of this issue. See id. (concluding that the 

appellant waived his sufficiency claim because he did not specify the elements 

of the crimes that the Commonwealth failed to prove); see also 

Commonwealth v. Ellis, 700 A.2d 948, 957 (Pa. Super. 1997) (concluding 

that an issue is waived when the appellant fails “to develop any argument or 

cite any authority in support of his vague contention.”). 

Nevertheless, we observe that as the ultimate finder of fact, the jury 

was free to believe some, all, or none of the Commonwealth’s evidence, and 

to resolve any inconsistencies or discrepancies in the testimony in either 

party’s favor. See generally Commonwealth v. Ramtahal, 33 A.3d 602, 

607 (Pa. 2011) (explaining that “[t]he Commonwealth may sustain its burden 

of proof by means of wholly circumstantial evidence, and the jury, which 

passes upon the weight and credibility of each witness’s testimony, is free to 
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believe all, part, or none of the evidence”). Thus, Mann’s claim, based upon 

inconsistencies in the witnesses’ testimony, does not afford him relief. 

In his second claim, Mann challenges the verdict as against the weight 

of the evidence. See Brief for Appellant at 25. Mann claims that the testimony 

of Mr. C., Voss and K.C. offered different versions of the events. Id. at 26. 

According to Mann, “[t]he discrepancies in [K.C.’s] testimony were so 

numerous and so significant that it would be completely unreasonable for any 

jury to believe it.” Id. Mann contends that it would “shock the [c]ourt’s sense 

of justice that the jury apparently did believe the testimony and did convict 

Mann on all three counts.” Id. 

As our Supreme Court has explained, 

[t]he decision to grant or deny a motion for a new trial based upon 

a claim that the verdict is against the weight of the evidence is 

within the sound discretion of the trial court. Thus, the function 

of an appellate court on appeal is to review the trial court’s 

exercise of discretion based upon a review of the record, rather 

than to consider de novo the underlying question of the weight of 

the evidence. An appellate court may not overturn the trial court’s 

decision unless the trial court palpably abused its discretion in 

ruling on the weight claim. Further, in reviewing a challenge to 

the weight of the evidence, a verdict will be overturned only if it

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

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations 

and quotation marks omitted). 

The trial court considered the weight-of-the-evidence claim raised in 

Mann’s Post-Sentence Motion as follows:

Contrary to [Mann’s] assertions, [the court does] not find the lack 

of medical evidence or other physical evidence to constitute the 
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type of facts that are “so clearly of greater weight that to ignore 

them or to give them equal weight with all the facts is to deny 

justice.” See [Commonwealth v.] Stokes, 78 A.3d [644, 650 

(Pa. Super. 2013) (citation omitted).] The medical examination 

revealed a lack of evidence of sexual activity; it did not 

conclusively establish that a sexual assault did not happen. 

Moreover, notwithstanding the inconsistencies and absence of 

physical evidence, the jury found K.C.’s testimony to be credible. 

As a matter of law, the jury is entitled “to believe all, part, or none 

of the evidence, and the credibility determinations rest solely 

within the purview of the fact-finder.” Commonwealth v. Flor, 

998 A.2d 606, 626 (Pa. 2010). The jury’s credibility determination 

here does not shock [the trial court’s] sense of justice, and we 

therefore discern no merit to [Mann’s] weight of the evidence 

argument.

Trial Court Opinion, 11/6/18, at 12. We agree, and discern no abuse of 

discretion by the trial court in rejecting Mann’s claim. See id. Accordingly, 

we cannot grant Mann relief on this issue. See id.

Finally, Mann claims that the trial court improperly precluded the crossexamination of K.C. regarding her prior sexual conduct with a cousin. See 

Brief for Appellant at 27. Mann distinguishes this Court’s holding in 

Commonwealth v. Appenzeller, 565 A.2d 170, 171 (Pa. Super. 1989), 

which held that evidence of a prior sexual assault of the victim, by another 

man, is not admissible to show knowledge by the child victim of sexual 

techniques or nomenclature. Brief for Appellant at 27. Mann argues that 

unlike in Appenzeller, the proffered testimony was relevant to his defense, 

which was based on a challenge to K.C.’s credibility. Id. According to Mann, 

K.C. has offered three versions of the assaults, and claimed her memory was 

better one year later. Id. Mann states that K.C.’s grandmother, Felicia Mann, 
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testified that K.C. has a reputation for untruthfulness in the community. Id.

at 28. Thus, Mann posits, testimony regarding where K.C. could have learned 

of sexual acts is part of the defense of the case, and the preclusion of this 

evidence violated his rights under the Pennsylvania and U.S. Constitutions. 

Id. at 28-29. 

In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the appropriate 

law, addressed Mann’s claim, and concluded that it lacks merit. See Trial 

Court Opinion, 12/18/18, at 3-7. In particular, we note the trial court’s 

statement that its “evidentiary ruling, predicated on a finding that the limited 

probative value of the inquiry was far outweighed by the likelihood of unfair 

prejudice, was not an abuse of discretion.” Id. at 7. We agree with the sound 

reasoning of the trial court, as set forth in its Opinion, and affirm on this basis 

as to Mann’s third claim. See id. at 3-7.

 Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/2019
Circulated 04/30/2019 03:59 PM 

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL 

DISTRICTOF PENNSYLVANIA - FRANKLIN COUNTY BRANCH 

Commonwealth of Pennsylvania 

v. 

James Mann, 

Defendant 

Criminal Action 

No. 1539-2017 

Honorable Angela R. Krom, J. 

Opinion sur Pa.R.A.P. 1925(a) 

This Court submits an Opinion pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(a) in response to the Notice of Appeal and Concise Statement of 

Matters Complained of on Appeal filed by James Mann ("Defendant") on 

November 27, 2018, and December 6, 2018, respectively. For the reasons that 

follow, this Court respectfully requests the Superior Court affirm the judgment of 

sentence. 

STATEMENT OF THE CASE 

After a jury trial on April 30 and May 1 of 2018, Defendant was found 

guilty of rape of a child, aggravated indecent assault of a person less than 13 years 

of age, and indecent assault of a person less than 13 years of age.

1 On July 25, 

2018, this Court imposed an aggregate sentence of 309 to 660 months of 

incarceration. 

1 18 Pa.C.S. § 312l(c), 18 Pa.C.S. § 3125(a)(7), and 18 Pa.C.S. § 3126(a)(7), respectively. 

1 
Defendant filed a Post-Sentence Motion on July 30, 2018, challenging the 

sufficiency and weight of the evidence supporting his convictions. By Order and 

Opinion entered November 6, 2018, this Court denied Defendant's Post-Sentence 

Motion. 

On November 27, 2018, Defendant filed the instant Notice of Appeal. On 

the same date, this Court directed Defendant to file a Concise Statement of Matters 

Complained of on Appeal; Defendant timely complied on December 6, 2018. 

ISSUES RAISED 

Defendant states the following three issues in his Concise Statement of 

Matters Complained of on Appeal: 

1. Whether the evidence presented at trial failed to prove every element 

of the crimes charged beyond a reasonable doubt and, therefore, was 

insufficient to support Defendant's convictions? 

2. Whether the guilty verdict following Defendant's trial was against the 

weight of the evidence presented? 

3. Whether it was an abuse of discretion in not allowing cross 

examination of a witness about prior sexual conduct when evidence of 

that conduct had been entered by the Commonwealth in its case in 

chief? 

DISCUSSION 

Upon review of Defendant's Concise Statement, we find that the first two 

issues raised on appeal mirror the claims presented in Defendant's Post-Sentence 

Motion. Accordingly, we decline to address Defendant's sufficiency and weight of 

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the evidence arguments again here and direct the Superior Court to the attached 

Opinion denying Defendant's Post-Sentence Motion. 

In his third issue, Defendant argues that this Court's ruling precluding 

evidence of the child victim's past sexual conduct was in error. Specifically, 

Defendant asserts that he should have been permitted to cross-examine the victim 

about sexual activity referenced in a videotaped interview of the victim offered by 

the Commonwealth. 

Appellate review of a trial court's evidentiary ruling is conducted under an 

abuse of discretion standard. Commonwealth v. Woeber, 174 A.3d 1096, 1100 

(Pa. Super. 201 7). Where the evidentiary ruling involves a question of law, the 

scope of review is plenary. Id. An abuse of discretion is not "a mere error of 

judgment, but rather exists where the court has reached a conclusion which 

overrides or misapplies the law, or where the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will." 

Commonwealth v. Schley, 136 A.3d 511, 514 (Pa. Super. 2016). 

In the present matter, Defendant sought to cross-examine the victim at trial 

about a minor individual ("G.L.") whom the victim had referenced in a recorded 

interview conducted shortly after Defendant's actions were reported to the police. 

Transcript of Proceedings of Trial by Jury, April 30, 2018 ("T.P., 4/30/18") at 112. 

3 
The Commonwealth objected to the line of questioning pursuant to the Rape Shield 

Law. Id. at 112-13. Defense counsel then explained that the purpose of the 

question was to elicit testimony regarding the victim's knowledge and 

understanding of sexual activity, and this Court sustained the objection. Id. at 

112-113. 

Pennsylvania's Rape Shield Law is codified at 18 Pa.C.S. § 3104, which 

states in relevant part: 

Evidence of specific instances of the alleged victim's past sexual 

conduct, opinion evidence of the alleged victim's past sexual conduct, 

and reputation evidence of the alleged victim's past sexual conduct 

shall not be admissible in prosecutions under this chapter except 

evidence of the alleged victim's past sexual conduct with the 

defendant where consent of the alleged victim is at issue and such 

evidence is otherwise admissible pursuant to the rules of evidence. 

18 Pa.C.S. § 3104(a). In Commonwealth v. Johnson, 638 A.2d 940 (Pa. 1994), the 

Supreme Court of Pennsylvania held that the Rape Shield Law does not bar 

evidence that a complainant had been the victim of a prior sexual assault. Id. at 

940-41. However, in so holding, the Supreme Court explained that general 

evidentiary rules may nevertheless preclude the jury's consideration of such 

evidence. Id. at 942. 

In the present matter, the record is unclear as to whether the victim's contact 

with G.L. rose to the level of a sexual assault. See T.P., 4/30/18 at 112-13. 

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Regardless, further inquiry into the victim's contact with G.L. was properly 

excluded under the Rape Shield Law or, alternatively, relevance principles. 

As noted above, the Rape Shield Law prohibits the jury's consideration of 

evidence of "specific instances of the alleged victim's past sexual conduct." 18 

Pa.C.S. § 3104(a). By statute, an exception to the Rape Shield Law exists to allow 

"evidence of the alleged victim's past sexual conduct with the defendant where 

consent of the alleged victim is at issue and such evidence is otherwise admissible 

pursuant to the rules of evidence." Id. Pennsylvania courts have additionally 

recognized other exceptions to the Rape Shield Law, such as where the evidence 

undercuts the victim's credibility or shows the victim's bias or "motive to lie, 

fabricate, or seek retribution." Commonwealth v. Cramer, 195 A.3d 594, 603 (Pa. 

Super. 2018). 

Generally, where a party seeks to admit evidence implicating Rape Shield 

protections, the party submits a proffer to the trial court for an in camera hearing 

so that the trial court may conduct a balancing test, pursuant to Commonwealth v. 

Black, 487 A.2d 396 (Pa. Super. 1985), of the following three factors: "(l) whether 

the proposed evidence is relevant to show bias or motive or to attack credibility; 

(2) whether the probative value of the evidence outweighs its prejudicial effect; 

and (3) whether there are alternative means of proving bias or motive to challenge 

credibility." Commonwealth v. K.S.F., 102 A.3d 480, 484 (Pa. Super. 2014). 

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Crucially, any inquiry into a victim's past sexual activity must be "intended 

to elicit relevant evidence, which is more probative than prejudicial, and which is 

not cumulative of other evidence available without encroaching upon Rape Shield 

[L]aw protections." Commonwealth v. Nieves, 582 A.2d 341, 347 (Pa. Super. 

1990). 

In the present matter, no proffer was submitted pre-trial for this Court to 

conduct an analysis under the Black framework. Notwithstanding the procedural 

defect, Defendant's proposed inquiry into the victim's relationship with G.L. does 

not fall within any enunciated exception to the Rape Shield Law and is, in this 

Court's view, wholly irrelevant. 

Rule 403 of the Pennsylvania Rules of Evidence provides that evidence may 

be excluded where the probative value of relevant evidence "is outweighed by the 

danger of . . unfair prejudice, confusing the issues, misleading the jury, undue 

delay, wasting time, or needlessly presenting cumulative evidence." Pa.R.E. 403. 

Evidence is relevant where "it has any tendency to make a fact of consequence 

more or less probable than it would be without the evidence." Mitchell v. Shikora, 

161 A.3d 970, 972 (Pa. Super. 2017), appeal granted in part, 174 A.3d 573 (Pa. 

2017). 

Furthermore, the Superior Court has stated: "[T]rial judges retain wide 

latitude to limit reasonably a criminal defendant's right to cross-examine a witness 

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based on concerns about, among other things, harassment, prejudice, confusion of 

the issues, the witness' safety, or interrogation that is repetitive or only marginally 

relevant." Commonwealth v. Wall, 606 A.2d 449, 457 (Pa. Super. 1992) 

(emphasis and quotations removed) (quoting Delaware v. VanArsdall, 475 U.S. 

673, 679 (1986)). 

In light of the foregoing, this Court continues to find that inquiry into the 

victim's contact with G.L. was irrelevant to whether the victim was subject to 

sexual abuse perpetrated by Defendant. To the extent Defendant argues that the 

evidence was relevant to the victim's knowledge and understanding of sexual 

activity, the Superior Court has explicitly held that evidence of a previous sexual 

assault is not admissible "to show knowledge by a child of sexual techniques or 

nomenclature." Commonwealth v. Appenzeller, 565 A.2d 170, 171-72 (Pa. Super. 

1989) ("The best that appellant's presentation would show is that the child may 

also have been molested by other persons."). Further, as the Superior Court later 

concluded in Commonwealth v. Nieves, supra, evidence of a previous sexual 

assault may be properly excluded due to its "minimal probative value and high 

potential prejudice." Nieves, 582 A.2d at 349. 

Consequently, this Court submits that our evidentiary ruling, predicated on a 

finding that the limited probative value of the inquiry was far outweighed by the 

likelihood of unfair prejudice, was not an abuse of discretion. 

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CONCLUSION 

In sum, this Court finds Defendant's appeal to be without merit and 

respectfully requests that the Superior Court affirm the judgment of sentence 

imposed on July 25, 2018. 

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