J-S52035-18

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

ALBERT ERNEST FLABBI, JR.,

 Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 50 MDA 2018

Appeal from the Judgment of Sentence July 26, 2017

in the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001119-2015

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 21, 2018

Albert Ernest Flabbi, Jr. (Appellant) appeals from the judgment of 

sentence imposed after he was found guilty of indecent assault and 

corruption of minors. We affirm. 

On April 22, 2015, Appellant was charged with aggravated indecent 

assault, statutory sexual assault, sexual assault, indecent assault, corruption 

of minors, and involuntary deviate sexual intercourse (IDSI),1 stemming 

from allegations of sexual abuse committed against his former girlfriend’s 

daughter, S.L.S. The case eventually proceeded to a jury trial. As 

summarized by the trial court: 

The Commonwealth first presented Donna DeWitt. Ms. 

DeWitt testified she was living with her daughter, [S.L.S],

11 and 

[Appellant] in a mobile home on Durneny Road in Greencastle, 

 

1 The Commonwealth withdrew the IDSI charge prior to trial. 
J-S52035-18

- 2 -

Pennsylvania, between 2006 and 2007. Ms. DeWitt testified 

[Appellant] initially was a father figure to [S.L.S.]; he taught her 

to fly model airplanes and ride four wheelers. Ms. DeWitt stated 

she and [S.L.S.] moved out of the mobile home sometime in 

2007. Ms. DeWitt also stated she and [S.L.S.] reported the 

alleged incidents in 2011.12

_____________________

11 [S.L.S.] was 13 years old between 2006 and 2007.

12 Ms. DeWitt provided little detail about [the] initial 

meeting with the police. The Commonwealth later 

presented Detective Rush to provide further detail.

The Commonwealth next presented the victim, [S.L.S.]. 

[S.L.S.] testified she lived with [Appellant] when she was 

between 13-14 years old. [S.L.S.] explained she had a great 

relationship with [Appellant] in the beginning; she trusted him 

and considered him a father figure. [S.L.S.] testified her 

relationship with [Appellant] soured when he inappropriately 

touched her vagina on four separate occasions.13

_____________________

13 [S.L.S.] testified in detail regarding the four incidents. 

[S.L.S.] testified they occurred between March 2006 and 

May 2007, but was unable to recall the specific dates of 

each incident.

Regarding the first incident, [S.L.S.] testified [Appellant]

asked her for a hug while he was drinking alcohol in the kitchen.

[S.L.S.] stated [Appellant] put his hands down her pants and 

fingered her vagina. [S.L.S.] asked [Appellant] to stop and he 

did; she walked away and went to bed. [S.L.S.] also testified 

she was afraid [Appellant] would harm her if she told her 

mother. 

Regarding the second incident, [S.L.S.] testified 

[Appellant] lay down next to [S.L.S.], turned the lights off, and 

started touching her. Specifically, [S.L.S.] testified [Appellant]

put his hands down her pants and fingered her vagina. [S.L.S.]

asked [Appellant] to stop and [Appellant] complied. [S.L.S.]

again testified she was afraid [Appellant] would harm her if she 

told her mother.

Regarding the third incident,

14 [S.L.S.] testified she was 

sleeping in her bedroom when [Appellant] woke her up; 
J-S52035-18

- 3 -

[Appellant] touched her breast, removed her pants, and fingered 

her vagina. [S.L.S.] testified [Appellant] got on top of her and 

stuck his penis inside her vagina. [S.L.S.] pleaded with 

[Appellant] to stop, but he continued. [S.L.S.] testified she was 

unable to get [Appellant] off of her. [S.L.S.] was unable to recall 

how long the encounter lasted. 

_____________________

14 [S.L.S.] stated the third incident occurred a couple 

weeks after the second incident.

Regarding the fourth incident, [S.L.S.] testified [Appellant]

asked her to come outside while her mother was sleeping; 

[Appellant] asked [S.L.S.] to sit on his lap. [S.L.S.] listened to 

[Appellant] because she was afraid of him. [S.L.S.] stated 

[Appellant] stuck his hand in her pants and fingered her vagina 

again. [S.L.S.] also stated [Appellant] stopped when she told 

him to do so.

The Commonwealth last presented Detective Rush.

Detective Rush testified he became involved in this case on 

February 19, 2011. Detective Rush first interviewed [S.L.S.]

with her mother present. Detective Rush stated [S.L.S.] was not 

comfortable speaking about the alleged incidents; however, 

[S.L.S.] was able to provide Detective Rush with a statement 

identifying [Appellant] as the man responsible for touching her. 

Detective Rush located [Appellant] in Boonsboro, Maryland; in 

October 2014, Detective Rush [went to Maryland] to interview 

[Appellant]. Detective Rush identified himself to [Appellant] as 

Pennsylvania State Police and inquired into the allegations 

regarding [S.L.S.]. [Detective Rush testified that Appellant 

acknowledged S.L.S. and Ms. DeWitt lived with him for 

approximately two years. Detective Rush stated that Appellant’s 

first response to his questions about the alleged abuse was that 

Ms. DeWitt made S.L.S. make these allegations to get money 

from Appellant. Upon further inquiry from Detective Rush as to

whether Ms. DeWitt or S.L.S. had been in contact with Appellant 

demanding money, Appellant responded “no and he had not had 

any recent contact[.]”] Detective Rush testified [Appellant] did 

not expressly deny the allegations and was noticeably 

uncomfortable during the interview. Rather than expressly deny 

the allegations, [Appellant] stated he was on a lot of medication 

and did not remember if it happened. [Appellant] also stated he 

had a good relationship with [S.L.S.] and did not know her to lie. 
J-S52035-18

- 4 -

The Defense presented Dwayne Kees. Mr. Kees testified he 

knew [Appellant] for 32 years. Mr. Kees also testified 

[Appellant] worked for Poole & Son’s Excavating in 2007 and 

suffered [] an injury while working there. 

Trial Court Opinion, 12/5/2017, at 4-6 (citations to the record and some 

footnotes omitted).

Following the close of testimony, Appellant was convicted of indecent 

assault and corruption of minors.2 On July 26, 2017, the trial court 

sentenced Appellant to 111⁄2 to 231⁄2 months’ incarceration followed by a fiveand-a-half year probationary term. 

Appellant thereafter timely filed a post-sentence motion and, following 

its denial, a notice of appeal.

3

 Appellant presents the following issues for 

this Court’s review. 

1. Whether the trial court erred by denying [Appellant’s] postsentence motion when the evidence presented at trial was 

insufficient to support the jury’s verdict of guilty?

2. Whether the trial court erred by denying [Appellant’s] postsentence motion when the verdict was against the weight of 

evidence presented at trial?

3. Whether the trial court erred when it found the testimony of Ms. 

Reed to be inadmissible as hearsay within hearsay?

4. Whether the Trial Court erred when it precluded Mr. Kees from 

testifying about [Appellant’S] work injuries and settlement 

received?

 

2 The jury found Appellant not guilty of aggravated indecent assault, sexual 

assault, and statutory sexual assault.

3 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
J-S52035-18

- 5 -

Appellant’s Brief at 7 (unnecessary capitalization omitted). We address 

these claims sequentially. 

Appellant’s first issue concerns the sufficiency of the evidence to 

sustain his convictions. Accordingly, the following principles apply.

The standard of review for a challenge to the sufficiency of the 

evidence is to determine whether, when viewed in a light most 

favorable to the verdict winner, the evidence at trial and all 

reasonable inferences therefrom is sufficient for the trier of fact 

to find that each element of the crimes charged is established 

beyond a reasonable doubt. The Commonwealth may sustain its 

burden of proving every element beyond a reasonable doubt by 

means of wholly circumstantial evidence.

The facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence. Any doubt 

raised as to the accused’s guilt is to be resolved by the factfinder. As an appellate court, we do not assess credibility nor do 

we assign weight to any of the testimony of record. Therefore, 

we will not disturb the verdict 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.

Commonwealth v. Wanner, 158 A.3d 714, 717-18 (Pa. Super. 2017) 

(citation omitted).

In support of this claim, Appellant avers that “even viewing the 

testimony in the light most favorable to the Commonwealth, there was 

insufficient evidence to establish that elements of each crime were met and 
J-S52035-18

- 6 -

that the alleged offenses occurred within the times set forth in the criminal 

information[].” Appellant’s Brief at 14 (footnote omitted).4

While Appellant avers the Commonwealth failed to establish “every 

element” of the crimes of which he was convicted, in his brief on appeal, his 

argument is two-fold. First, he argues the Commonwealth failed to establish 

S.L.S.’s age. Second, he claims the Commonwealth failed to prove the 

offenses occurred in the timeline specified in the information. Appellant’s 

Brief at 15-16. Specifically, Appellant avers S.L.S.’s date of birth “was never 

made a part of the record” and that S.L.S. and Ms. DeWitt provided 

conflicting information about when they had lived with Appellant. Id. at 15.

 

4

In response, the Commonwealth argues we should find Appellant’s 

sufficiency claim waived because Appellant “failed to cite with specificity the 

element upon which he alleges evidence is insufficient to convict, and for 

that matter, even citing the convictions he is challenging, as he has been 

convicted of two offenses.” Commonwealth’s Brief at 3. “[W]hen 

challenging the sufficiency of the evidence on appeal, the appellant’s 1925 

statement must specify the element or elements upon which the evidence 

was insufficient in order to preserve the issue for appeal.” Commonwealth 

v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (quotation marks and 

unnecessary capitalization omitted). Because Appellant’s case is relatively 

straightforward, his sufficiency claim is based only on two convictions, and 

the trial court addressed this issue, we decline to find waiver. See 

Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (finding this 

Court should have addressed an appellant’s sufficiency claim in a “relatively 

straightforward drug case, [where] the evidentiary presentation spans a 

mere thirty pages of transcript. It may be possible in more complex criminal 

matters that the common pleas court may require a more detailed statement 

to address the basis for a sufficiency challenge. Here, however, the common 

pleas court readily apprehended [a]ppellant’s claim and addressed it in 

substantial detail.”). 
J-S52035-18

- 7 -

Regarding S.L.S.’s age, because Appellant was convicted of agedependent charges, the Commonwealth was required to establish that, 

during the relevant time, S.L.S. was under the age of 16.

5

 See 18 Pa.C.S. 

§§ 3126(a)(8); 6301(a)(1). Appellant is correct that there WAS no 

testimony that established S.L.S.’s date of birth. However, the trial court 

found that during the time of the aforementioned incidents it was 

“undisputed that [S.L.S.] was under 16 years of age, [Appellant] was four or 

more years older than [S.L.S.,] and [S.L.S. and Appellant] were not 

married.” Trial Court Opinion, 12/5/2017, at 8. The court conceded that 

S.L.S. “was unable to determine exactly how old she was at the time of the 

four incidents.” Id. at n.17. Nonetheless, the court found the testimony 

sufficient to determine S.L.S.’s age because “[a]t the time of trial, [S.L.S.] 

was 23 years old. The four incidents occurred more than 10 years ago 

between March 2006 and May 2007.” Id. 

Our review of the record confirms that at the time of trial in 2017 

S.L.S. was 23 years old. N.T., 3/23/2017, at 32. Thus, between 2006 and 

2007, when the incidents were alleged to have occurred, S.L.S. was under 

the age of sixteen. Additionally, both S.L.S. and Ms. DeWitt testified that 

 

5 We note a victim need only be under the age of eighteen for a defendant to 

be found guilty of corruption of minors. However, because Appellant was 

convicted of indecent assault of a child under the age of 16, the 

Commonwealth was required to prove S.L.S. was less than 16 years of age 

at the time of the abuse.
J-S52035-18

- 8 -

S.L.S. was 13 or 14 years old during the relevant time.6 Id. at 32, 71.

Appellant cites no case law to support that this testimony alone is 

insufficient to prove the age element of the crimes Appellant was convicted 

of. Nor does Appellant provide any relevant law to support his contention 

that S.L.S.’s date of birth needed to be made part of the record in order to 

find Appellant guilty of the aforementioned crimes. The foregoing testimony, 

if believed by the jury, was sufficient to establish S.L.S.’s age.

With respect to his latter claim, Appellant cites Commonwealth v. 

Brooks, 7 A.3d 852 (Pa. Super. 2010), to support his argument that the 

Commonwealth failed “to prove that the offenses occurred within the time 

set forth in the [c]riminal [i]information.” Appellant’s Brief at 16. In 

Brooks, this Court noted that 

[w]hen the precise date of [an offense] is not known or if the 

offense is a continuing one, Rule 560(B)(3) of the Pennsylvania 

Rules of Criminal Procedure provides that a criminal information 

signed by the attorney for the Commonwealth shall be valid and 

sufficient in law if it contains ... an allegation that it was 

 

6 We are cognizant that S.L.S.’s testimony at trial that she was between 13-

14 years old when Appellant abused her was contradictory to her testimony 

at the preliminary hearing that she was between 14-15 years old. N.T., 

3/23/2017, at 102. Despite this, there was no evidence introduced to 

dispute S.L.S.’s testimony that she was under the age of 16 when she was 

abused by Appellant. Furthermore, it is in the province of the fact-finder, 

and not the role of this Court, to resolve any inconsistencies in a witness’s 

testimony. See Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 

2006) (“Questions concerning inconsistent testimony ... go to the credibility 

of witnesses. This Court cannot substitute its judgment for that of the jury 

on issues of credibility.”) (citation and quotation marks omitted).
J-S52035-18

- 9 -

committed on or about any date fixed within the statute of 

limitations[.]

Id. at 859 (quotation marks omitted). In Brooks, this Court found that the 

Commonwealth provided sufficient evidence of when the crimes occurred, 

where Brooks “was charged with committing the sex offenses against the 

victims during the summer months of 2001, and [one of the victims]

testified that she recalled the abuse occurring when it was warm outside and 

she was wearing shorts when the sexual abuse occurred.” Id.

The criminal information cites March 1, 2006 to May 31, 2007 as the 

relevant period of time when the abuse was alleged to have occurred. 

Criminal Information, 7/24/2015. While S.L.S. was unable to testify to the 

time of year or what she was wearing when the abuse occurred, S.L.S. 

testified that the abuse started after she began living with Appellant. N.T., 

3/23/2017, at 65-67. Similarly, while Ms. DeWitt was unable to provide the 

exact timing of when she had moved in and moved out of the home shared 

with Appellant, her testimony was that she had lived with Appellant for 

approximately two and a half years “around 2007[,]” which is within the 

time frame alleged in the information. Id. at 32; Criminal Information, 

7/24/2015. Viewed in the light most favorable to the Commonwealth as the 

verdict winner, this testimony was sufficient to prove that the abuse

occurred during the time specified in the information. Thus, Appellant’s 

sufficiency claim fails. 
J-S52035-18

- 10 -

We now turn to Appellant’s contention that the jury verdict was 

against the weight of the evidence. 

Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question of whether 

the verdict is against the weight of the evidence. Because the 

trial judge has had the opportunity to hear and see the evidence 

presented, an appellate court will give the gravest consideration 

to the findings and reasons advanced by the trial judge when 

reviewing a trial court’s determination that the verdict is against 

the weight of the evidence. One of the least assailable reasons 

for granting or denying a new trial is the lower court’s conviction 

that the verdict was or was not against the weight of the 

evidence and that a new trial should be granted in the interest of 

justice. 

However, the exercise of discretion by the trial court in 

granting or denying a motion for a new trial based on a 

challenge to the weight of the evidence is not unfettered. The 

propriety of the exercise of discretion in such an instance may be 

assessed by the appellate process when it is apparent that there 

was an abuse of that discretion. 

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal 

citations omitted). “Not merely an error in judgment, an abuse of discretion 

occurs when the law is overridden or misapplied, or the judgment exercised 

is manifestly unreasonable, or the result of partiality, prejudice, bias, or illwill, as shown by the evidence on record.” Commonwealth v. Handfield, 

34 A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29 

A.3d 3, 6 (Pa. Super. 2011)).

In support of his weight claim, Appellant argues that S.L.S.’s 

testimony was so inconsistent and vague that the trial court abused its 

discretion in denying his post-sentence motion. Appellant’s Brief at 17-18. 
J-S52035-18

- 11 -

In addressing Appellant’s claim, the trial court found that Appellant did 

not assert “any facts which are so clearly of greater weight that to ignore 

them or to give them equal weight with all the facts is to deny justice.” Trial 

Court Opinion, 12/5/2017, at 9 (quotation marks and citation omitted). The 

court found Appellant was not entitled to relief where he “merely attacks the 

victim’s inconsistent testimony[.] ... [I]t is the jury’s role to determine the 

credibility of a witness and resolve any inconsistencies. The jury is entitled 

to believe all, part, or none of the evidence, and credibility determinations 

rest solely within the purview of the fact-finder.” Id. (quotation marks 

omitted).

In reviewing the issue before us, we reiterate that “[a]ppellate review 

of a weight claim is a review of the exercise of discretion, not of the 

underlying question of whether the verdict is against the weight of the 

evidence.” Widmer, 744 A.2d at 753.

The term ‘discretion’ imports the exercise of judgment, wisdom 

and skill so as to reach a dispassionate conclusion, within the 

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

giving effect to the will of the judge. Discretion must be 

exercised on the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary actions. Discretion is 

abused when the course pursued represents not merely an error 

of judgment, but where the judgment is manifestly unreasonable 

or where the law is not applied or where the record shows that 

the action is a result of partiality, prejudice, bias or ill will.

Id. (citation omitted). 

With this in mind, upon review of the record, we find no abuse of 

discretion in the trial court’s determination. Appellant has not alleged, and 
J-S52035-18

- 12 -

we do not conclude, that the trial court acted unreasonably, or displayed 

prejudice, bias, or ill-will when dismissing Appellant’s weight claim. No relief 

is due.7

Appellant’s final two issues challenge the trial court’s evidentiary 

rulings. Specifically, Appellant contends the court erred in precluding: (1) 

the testimony of Appellant’s co-worker Susan Reed, about a statement 

Appellant made to her concerning Ms. DeWitt and S.L.S.; and (2) testimony 

from Mr. Kees about Appellant’s work injuries. Appellant’s Brief at 19-22. 

The admissibility of evidence is within the sound discretion of the 

trial court, and this Court will not reverse a trial court’s decision 

concerning admissibility of evidence absent an abuse of the trial 

court’s discretion. An abuse of discretion will not be found based 

on 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. Alicia, 92 A.3d 753, 760 (Pa. 2014) (citations omitted). 

We address first Appellant’s claim that the trial court improperly precluded

Ms. Reed’s proposed testimony. 

 

7 We recognize that S.L.S.’s testimony was inconsistent at times and did not 

comport with previous sworn statements. However, Appellant was given the 

opportunity to, and did in fact present, evidence of these inconsistences and 

highlighted the absence of particular details in S.L.S.’s testimony. See 

Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa. Super. 2006) (“We 

may not weigh the evidence or substitute our judgment for that of the factfinder. ... When evaluating the credibility and weight of the evidence, the 

fact-finder is free to believe all, part, or none of the evidence.”). See also 

Commonwealth v. McDonough, 96 A.3d 1067, 1069 (Pa. Super. 2014) 

(“The uncorroborated testimony of a sexual assault victim, if believed by the 

trier of fact, is sufficient to convict a defendant.”). 
J-S52035-18

- 13 -

Appellant sought to call Ms. Reed to testify about a conversation they 

had where Appellant relayed he had spoken with Ms. DeWitt and Ms. DeWitt 

had the “intention to accuse [Appellant] of sexual misconduct with [S.L.S.].” 

Appellant’s Brief at 18. Although it is unclear from the record when the 

issue of this testimony first arose during trial, the trial court informed the 

parties that “[a]fter conducting research [the trial court has] decided that 

the statement by Ms. Reed reporting [Appellant’s] statement of [Ms. DeWitt] 

is hearsay within hearsay and will be inadmissible.”8 N.T., 3/23/2017, at 80. 

Ms. Reed did not testify at the trial. 

Initially we note, 

it is an appellant’s duty to ensure that the certified record is 

complete for purposes of review. ... Our Court has stated a 

failure to ensure that the record provides sufficient information 

to conduct a meaningful review constitutes waiver of the issue 

sought to be reviewed. Where portions of a proceeding are 

unrecorded, appellant’s burden to supply a record may be 

satisfied through the statement in absence of transcript 

procedures.

Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (quotation 

marks and brackets omitted).

In this case, absent from the record is the necessary information 

needed to assess the issue before us. Importantly, we are unaware of what, 

 

8 Because the proposed testimony is hearsay within hearsay, each separate 

part of the statement must fall within an enumerated exception. On appeal, 

Appellant does not assert which exception applies to Ms. DeWitt’s statement 

to Appellant, and addresses only his purported “excited utterance” to Ms. 

Reed. However, in light of our disposition, as detailed infra, we need not 

address this. 
J-S52035-18

- 14 -

if any, offer of proof was made regarding this testimony to the trial court 

prior to its decision to preclude Ms. Reed’s testimony. Additionally, there is 

no motion in limine that sets forth the necessary information needed to 

assess whether the trial court properly disallowed this testimony. 

Specifically, the record is silent as to: (1) how much time elapsed between 

Appellant’s phone call with Ms. DeWitt and Appellant’s statement to Ms. 

Reed; (2) what exactly was said to Ms. Reed; and (3) how Appellant relayed 

this information to Ms. Reed. In fact, the only reference to this proposed 

witness and testimony in the record is in Appellant’s petition to issue 

subpoenas for out of state witnesses. See Petition to Issue Subpoena for 

Out of State Witness to Appear for Criminal Trial, 3/20/2017, at 2 

(unnumbered) (“[Ms.] Reed, as Office Manager for Poole and Sons told 

police that at some time while [Appellant] worked there prior to [December 

4, 2007], she witnessed him on the telephone in an argument with [Ms. 

DeWitt], thereafter, he told her that [Ms. DeWitt] was accusing him of 

molesting her daughter.”). Thus, we find this issue waived.9

 

9 Here, the trial court found Appellant “did not make a spontaneous 

declaration while overpowered by emotion caused by an unexpected and 

shocking occurrence. [Appellant] simply reported Ms. DeWitt’s accusation to 

[Ms. Reed] following an argument with Ms. DeWitt.” Trial Court’s Opinion 

Sur Pa.R.A.P. 1925(a), 3/1/2018, at 12. If the trial court’s assessment of 

the proposed testimony is accurate, we would find the trial court would be 

well within its discretion to preclude this testimony. See Commonwealth 

v. Sanford, 580 A.2d 784, 788 (Pa. Super. 1990) (noting that a statement 

in narrative form is “inadmissible.”). However, the absence of the 

aforementioned information precludes us from doing so.
J-S52035-18

- 15 -

Lastly, Appellant argues the trial court erred in precluding testimony 

from Mr. Kees regarding Appellant’s work-related injury. Briefly, in an effort 

to have a complete record in the event of appellate review, after submission 

of the case to the jury, the trial court allowed Appellant to put his requests 

on the record regarding various pieces of evidence it sought to admit that 

has been excluded by the trial court, including the proposed testimony of Mr. 

Kees. Appellant wished to have Mr. Kees testify that: (1) Appellant suffered 

a work-related injury in 2007; (2) as a result of that work injury Appellant 

broke his neck and had to have his pinky finger and a portion of his ring 

finger removed, and (3) Appellant received a settlement related to this 

injury in 2012. N.T., 3/24/2017, at 70-73.

Ultimately, the trial court permitted Mr. Kees to testify at trial that 

Appellant was injured at work and when the work injury occurred “for the 

purpose of establishing [a] timeline. However, Mr. Kees was not permitted 

as a lay witness to testify about the work injuries sustained by [Appellant], 

especially when there was no medical evidence or evidence from an 

employer to support the allegations of the injury.” Trial Court’s Opinion Sur 

Pa.R.A.P. 1925(a), 3/1/2018, at 15 (footnote omitted). The trial court also 

precluded testimony about the settlement Appellant received. The court 

found that such testimony was irrelevant because the settlement occurred in 

2012 and “[t]he allegations were made first to the police in 2011.” N.T., 

3/24/2017, at 72-73.
J-S52035-18

- 16 -

On appeal, Appellant concedes Mr. Kees was not qualified to “testify as 

to the nature of Appellant’s broken neck.” Appellant’s Brief at 21. However, 

Appellant avers Mr. Kees, as a layperson, could “rationally perceive and 

testify to the fact that fingers were no longer on a hand.” Id. Appellant 

contends Mr. Kees’s testimony “would provide context for [Appellant’s] 

statement” to Detective Rush that he believed Ms. DeWitt made S.L.S. 

report false allegations of sexual abuse against him for money and would be 

“relevant and important to illustrate to the jury [S.L.S.’s] lack of credibility” 

since she failed to disclose that during the incidents of abuse Appellant did 

not have all of his fingers. Appellant’s Brief at 21-22. 

Upon review, we find the trial court did not abuse its discretion by 

disallowing the aforementioned testimony. First, we agree with the trial 

court that, because the allegations were made in 2011, testimony that 

Appellant received a work-injury settlement in 2012 was irrelevant.

In determining whether evidence should be admitted, the trial 

court must weigh the relevant and probative value of the 

evidence against the prejudicial impact of that evidence. 

Evidence is relevant if it logically tends to establish a material 

fact in the case or tends to support a reasonable inference 

regarding a material fact. Although a court may find that 

evidence is relevant, the court may nevertheless conclude that 

such evidence is inadmissible on account of its prejudicial 

impact.

Commonwealth v. Page, 965 A.2d 1212, 1219 (Pa. Super. 2009). Here,

Appellant contends testimony about the 2012 settlement would support his 

statement made to Detective Rush that there was an ulterior motive behind 
J-S52035-18

- 17 -

the allegation of sexual abuse made by S.L.S., specifically, that Ms. DeWitt 

wanted money from Appellant. However, Detective Rush testified that after 

Appellant made this statement, Detective Rush inquired into whether Ms. 

DeWitt or S.L.S. had been in contact with Appellant demanding money, and 

Appellant responded that there had been no recent contact. N.T., 

3/23/2017, at 137. Furthermore, no testimony was elicited that Ms. DeWitt 

was aware of the pending litigation or potential settlement related to these 

work-place injuries.

Nor do we find the trial court abused its discretion when it did not 

permit Mr. Kees to testify that a portion of Appellant’s ring finger and his 

entire pinky finger were “no longer on his hand.” Appellant’s Brief at 21. 

Appellant argues that this information would bring into question S.L.S.’s 

credibility because she did not disclose that Appellant was missing fingers 

during the time of the assaults. Id. at 21-22. The trial court found that 

there was no testimony elicited from Ms. DeWitt or S.L.S. about the injuries 

or nature of the injuries. N.T., 3/24/2017, at 73. Further, the court found 

that the evidence would be “improper in an effort to engender sympathy for” 

Appellant. Id. 

We agree with the trial court that Appellant failed to lay any 

foundation concerning Appellant’s missing fingers. Other than questioning 

S.L.S. about a letter written to Appellant that she did not remember 

authoring about Appellant’s injuries, there is no testimony about his missing 
J-S52035-18

- 18 -

fingers. Furthermore, we disagree with Appellant that this evidence would 

have illustrated S.L.S.’s “lack of credibility.” Appellant’s Brief at 13. S.L.S.’s 

allegations are not rendered incredible because she did not disclose that 

Appellant did not have all of his fingers at the time of the assault. Even if 

Appellant did not have all his fingers, he still could have digitally penetrated 

S.L.S. as she described. 

Accordingly, after a thorough review of the record and briefs, we find 

Appellant has presented no issue on appeal which would convince us to 

disturb his judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2018