J-S22031-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THOMAS D. TYSON, SR.,

Appellant No. 1697 MDA 2016

Appeal from the Judgment of Sentence August 2, 2016

in the Court of Common Pleas of Union County

Criminal Division at No.: CP-60-CR-0000255-2015

BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED AUGUST 16, 2017

Appellant, Thomas D. Tyson, Sr., appeals from the judgment of 

sentence imposed following his jury conviction of aggravated indecent 

assault of a person less than thirteen years of age and indecent assault of a 

person less than thirteen years of age.1 We affirm.

The trial court set forth the relevant background of this case as follows 

in its November 15, 2016 opinion filed pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(a). See Pa.R.A.P. 1925(a).

On October 7, 2015[,] the Commonwealth filed an 

information charging [Appellant] with aggravated indecent 

assault of a child less than thirteen (13) years of age, a felony of 

the second degree and indecent assault of a person less than 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3125(a)(7) and 3126(a)(7), respectively.
J-S22031-17

- 2 -

thirteen (13) years of age, a misdemeanor of the first degree. 

[Appellant] pled not guilty and the matter was scheduled for trial 

on March 17, 2016. The allegations stem from an incident that 

occurred on September 13—September 14, 2014 in Kelly 

Township, Union County. The Commonwealth alleged that 

[Appellant] was at his home with his son and granddaughter, 

[S.T.]. [S.T.] was five (5) years of age at the time.

The testimony revealed that [Appellant] and his son were 

outside at [Appellant’s] residence consuming beer and listening 

to a football game. At some point during the evening 

[Appellant’s] son went into the house and fell asleep in a chair in 

the living room. [S.T.], the victim in this matter, fell asleep on a 

loveseat/couch in the same living room.

The Commonwealth alleged that at some point in the 

evening [Appellant] came into the house and sat down on the 

couch next to [S.T.].

While on the couch [Appellant] licked his finger and 

fondled and penetrated [S.T.’s] vagina.

At trial, the jury convicted [Appellant] of both counts.

After the preparation of a pre-sentence investigation and 

an evaluation by the Pennsylvania Sexual Offender Assessment 

Board [Appellant] was sentenced on August 2, 2016 to a period 

of incarceration on the aggravated indecent assault to three (3) 

years to ten (10) years and a concurrent five (5) year probation 

on the indecent assault charge.

[Following the court’s denial of his timely post-sentence 

motion, Appellant] filed a [timely] notice of appeal on October 

13, 2016 and, pursuant to [the] court’s order, filed [a] 

statement of matters complained of on appeal on November 8, 

2016. [See Pa.R.A.P. 1925(b).]

(Trial Court Opinion, 11/15/16, at 1-2) (some capitalization omitted).

Appellant raises the following issues for our review:

1. Did error occur when Appellant was convicted despite the jury 

indicating they had reasonable doubt?
J-S22031-17

- 3 -

2. Did error occur when Appellant was convicted despite the fact 

that the verdict was against the weight of the evidence, as the 

jury had reasonable doubt?

3. Did error occur in jury instructions regarding testimony of the 

alleged victim?

(Appellant’s Brief, at 8). 

Appellant first challenges the sufficiency of the evidence supporting his 

conviction, arguing that the evidence, at best, “encompassed two of the 

three elements of aggravated indecent assault and one of the two elements 

of indecent assault.” (Appellant’s Brief, at 12; see id. at 11) (capitalization 

omitted). This issue is waived.

Pennsylvania Rule of Appellate Procedure 1925(b) provides, in 

pertinent part: “Issues not included in the Statement and/or not raised in 

accordance with the provisions of this paragraph (b)(4) are waived.” 

Pa.R.A.P. 1925(b)(4)(vii). Further,

In order to preserve a challenge to the sufficiency of the 

evidence on appeal, an appellant’s Rule 1925(b) statement must 

state with specificity the element or elements upon which the 

appellant alleges that the evidence was insufficient. Such 

specificity is of particular importance in cases where, as here, 

the appellant was convicted of multiple crimes each of which 

contains numerous elements that the Commonwealth must 

prove beyond a reasonable doubt.

Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super. 2015) 

(citations and quotation marks omitted).

Here, in his Rule 1925(b) statement, Appellant did not identify which 

elements he was challenging, did not specify for which crime, nor did he 

even use the term “sufficiency.” (See Appellant’s Rule 1925(b) Statement, 
J-S22031-17

- 4 -

11/08/16, at ¶ 1). Instead, he appears to have conflated his sufficiency 

claim with his jury instruction challenge, stating: “[Appellant] respectfully 

submits that error occurred when [he] was convicted despite the jury 

indicating they had reasonable doubt.” (Id.); (see also Appellant’s Brief, at 

11).2 The trial court therefore did not address the subject of the sufficiency 

of the evidence in its opinion. (See Trial Ct. Op., at 3-5). Thus, Appellant 

has waived his challenge to the sufficiency of the evidence. See Pa.R.A.P. 

1925(b)(4)(vii); Freeman, supra at 1248.

Appellant next challenges the weight of the evidence supporting his 

conviction.3 (See Appellant’s Brief, at 12-13). This issue is also waived.

. . . It is well settled that the argument portion of an appellate 

brief must be developed with pertinent discussion of the issue, 

which includes citations to relevant authority. Pa.R.A.P. 

2119(a). See Commonwealth v. Genovese, 450 Pa. Super. 

105, 675 A.2d 331, 334 (1996) (stating that “[t]he argument 

portion of an appellate brief must be developed with a pertinent 

discussion of the point which includes citations to the relevant 

authority”).

* * *

. . . This Court is neither obliged, nor even particularly equipped, 

to develop an argument for a party. To do so places the Court in 

the conflicting roles of advocate and neutral arbiter. When an 

____________________________________________

2 We note that we address Appellant’s jury instruction claim as presented in 

his third issue, infra.

3 Appellant preserved his weight claim by raising it in his post-sentence 

motion. See Pa.R.Crim.P. 607(A)(3).
J-S22031-17

- 5 -

appellant fails to develop his issue in an argument and fails to 

cite any legal authority, the issue is waived.

Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012), appeal 

denied, 69 A.3d 601 (Pa. 2013) (some case citations omitted).

In the instant case, in his four-sentence argument on this issue, 

Appellant improperly incorporates his sufficiency discussion by reference, 

while incongruously recognizing the separate nature of the issues and “the 

inherent contradiction between sufficiency and weight arguments[.]” 

(Appellant’s Brief, at 12). Save a single bare reference to the standard of 

review for weight claims, he fails to provide this Court with any discussion of 

legal authority pertinent to his claim, nor does he provide any citation to the 

certified record. See Pa.R.A.P. 2119(c) (requiring references to record in 

argument). This lack of analysis precludes meaningful appellate review. 

Thus, Appellant’s second issue is waived. See Knox, supra at 748.

Finally, Appellant contends that the trial court erred by issuing an 

inaccurate and inadequate jury instruction regarding the victim’s testimony 

during jury deliberations. (See Appellant’s Brief, at 13). This issue is also 

waived, for his failure to object to the challenged instruction.

“In order to preserve a claim that a jury instruction was erroneously

given, the Appellant must have objected to the charge at trial.” 

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014), appeal 

denied, 117 A.3d 296 (Pa. 2015) (citations omitted). “The pertinent rules . . 

. require a specific objection to the charge or an exception to the trial court’s 
J-S22031-17

- 6 -

ruling on a proposed point to preserve an issue involving a jury instruction.” 

Id. (citations omitted).

Here, the record reflects that, during jury deliberations, the trial court 

received a question from the jury, stating: “There is reasonable doubt over 

the evidence, but we believe the child’s testimony. Which conclusion weighs 

more?” (N.T. Trial, 3/17/16, at 174). The court conducted an on-the-record 

discussion with counsel, out of the presence of the jury, advising that it 

would re-read the portions of its initial charge pertinent to the jury’s 

question. (See id. at 174-75; see also Trial Ct. Op., at 3-5). The court 

then reviewed the instruction with counsel and asked for their thoughts, and 

both attorneys agreed that it “sound[ed] fair[.]” (N.T. Trial, 3/17/16, at 

175). The court proceeded to instruct the jury as proposed, without any 

objection from counsel. (See id. at 175-77). Thus, because Appellant 

assented to the instruction, his claim seeking to challenge it on appeal is 

waived. See Parker, supra at 29. Accordingly, we affirm the judgment of 

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/16/2017