J-A12003-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY QUINN RODEHEAVER, SR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 983 WDA 2021

Appeal from the Judgment of Sentence Entered June 2, 2021

In the Court of Common Pleas of Fayette County

Criminal Division at CP-26-CR-0000405-2019

BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED: MAY 20, 2022

Timothy Quinn Rodeheaver, Sr. (Appellant) appeals from the judgment 

of sentence imposed after a jury convicted him, with respect to child/victim 

(A.), of two counts each of involuntary deviate sexual intercourse with a child 

(IDSI-C), aggravated indecent assault - complainant less than 13 years of 

age, and indecent assault - person less than 13 years of age; with respect to 

two children (A. and M.), the jury found Appellant guilty of two counts of 

corruption of minors.

1

 Upon review, we affirm.

The trial court recounted the underlying facts and procedural history as 

follows:

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3123(b), 3125(a)(7), 3126(a)(7), and 6301(a)(1)(ii).
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At trial, the Commonwealth presented the testimony from [M.], 

born [in 2005], and [A.], born [in 2007.] [M.] testified [Appellant]

touched her breasts and vaginal area. This had been happening 

to her for as long as she could remember. She testified that her 

clothes were on when the touching occurred. She testified that 

there was never a time when her clothes were off. In December 

2019, she and her sister discussed [Appellant] touching them and 

they then informed their parents.

[A.] testified that [Appellant] began touching her inappropriately 

when she was seven or eight years of age. On two occasions, [A.]

testified that [Appellant] put his mouth on her vaginal area,

touching her with his tongue. Both children previously 

participated in forensic interviews and the video of their interviews 

was played during the trial.

The Commonwealth also presented the testimony of [] 

Pennsylvania State Trooper Robert Wilson [Trooper Wilson]. 

During his testimony, the prosecutor asked [Trooper Wilson] if he 

had the opportunity to speak with [Appellant] and [Trooper 

Wilson] responded that he did not. The prosecutor then asked 

[Trooper Wilson] if he attempted to speak with [Appellant]. 

[Trooper Wilson] responded to the question by stating “I did. He 

referred me to his attorney.” At that time, defense counsel 

objected on the basis of [Appellant’s] Fifth Amendment right to 

remain silent and his right to be represented by counsel. After 

discussion, counsel requested a mistrial and this was denied by 

the court. A curative instruction was included in the jury 

instructions. [Appellant] presented character witnesses and then 

testified himself. There was no questioning of [Appellant] by the 

prosecution about his failure to respond to [Trooper Wilson’s]

request for an interview nor was it raised in either counsel’s 

closing arguments.

After a jury trial on May 5-6, 2021, [the jury convicted Appellant 

of the above crimes]. After the verdict was entered, [Appellant]

was sentenced to six (6) to (12) years’ incarceration. Thereafter, 

[Appellant] filed a timely Post Sentence Motion and then an 

Amended Post Sentence Motion. The [trial c]ourt denied 

[Appellant’s] Post Sentence Motion. 

Trial Court Opinion, 10/14/21, at 1-2 (unnumbered) (record citations 

omitted).
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Appellant timely appealed, and both Appellant and the trial court have 

complied with Pa.R.A.P. 1925. Appellant presents two questions for review:

I. Whether the Commonwealth presented insufficient evidence 

of penetration, however slight, to sustain the convictions for 

[IDSI-C] and Aggravated Indecent Assault; thus warranting 

the entry of the judgment of acquittal?

II. Whether the [trial c]ourt committed an abuse of discretion 

in denying [Appellant’s] motion for mistrial based upon the 

prosecuting officer’s testimony that [Appellant] did not give 

a statement to police when contacted, but referred the 

police to his attorney, as same constituted a violation of 

[Appellant’s] Fifth Amendment right to remain silent and 

Sixth Amendment right to counsel; thus warranting a new 

trial?

Appellant’s Brief at 6 (reordered for disposition).

In his first issue, Appellant argues the evidence was insufficient to 

support his convictions of IDSI-C and aggravated indecent assault of a child 

because the Commonwealth did not prove the penetration element of either 

crime. Appellant’s Brief at 16-18. Appellant argues A.’s testimony that on 

two occasions, Appellant “put his mouth on me” and his “tongue” touched her 

“vagina,” was insufficient to demonstrate “any actual penetration.” Id. at 17; 

N.T., 5/5/21, at 35. We disagree.

Pertinently:

We review claims regarding the sufficiency of the evidence by 

considering whether, viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. Further, a conviction may be 

sustained wholly on circumstantial evidence, and the trier of fact—

while passing on the credibility of the witnesses and the weight of 

the evidence—is free to believe all, part, or none of the evidence. 
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In conducting this review, the appellate court may not weigh the 

evidence and substitute its judgment for the fact-finder.

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations 

omitted).

A person is guilty of IDSI-C “when the person engages in deviate sexual 

intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S.A. 

§ 3123(b). Deviate sexual intercourse is “[s]exual intercourse per os or per 

anus between human beings[.]” 18 Pa.C.S.A. § 3101. 

A person is guilty of aggravated indecent assault of a child when the 

person engages “in penetration, however slight, of the genitals or anus of a 

complainant with a part of the person’s body for any purpose other than good 

faith medical, hygienic or law enforcement procedures[.]” 18 Pa.C.S.A. § 

3125(b). This Court has determined “that the term ‘penetration, however 

slight’ is not limited to penetration of the vagina; entrance in the labia is 

sufficient.” Commonwealth v. Hawkins, 614 A.2d 1198, 1200 n.1 (Pa. 

Super. 1992) (citations omitted).

Penetration may be proven by circumstantial evidence. See 

Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008). Further, 

“the uncorroborated testimony of the complaining witness is sufficient to 

convict a defendant of sexual offenses.” Commonwealth v. Bishop, 742 

A.2d 178, 189 (Pa. Super. 1999); see also Commonwealth v. Trimble, 615 

A.2d 48, 50 (Pa. 1992) (testimony of child victim alone may support conviction 

for sex offenses). Also, the Commonwealth is not required to present forensic 
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evidence of penetration. See Commonwealth v. Gibson, 951 A.2d 1110, 

1140 (Pa. 2008) (no constitutional requirement for police to conduct forensic 

analysis of evidence).

Here, A. testified in response to the Commonwealth’s questions as 

follows:

[Commonwealth]: Okay. [A.], you testified about [Appellant] 

touching you over the clothes, was there ever a time that he would 

touch you without the clothes on?

[A.]: Once, like, twice.

[Commonwealth]: What would he do during those two instances?

[A.]: Put his mouth on me.

[Commonwealth]: What part of his mouth would touch what part 

of your body?

[A.]: My vagina.

[Commonwealth]: And can you explain in a little more detail how 

that happened?

[A.]: It happened.

[Commonwealth]: Okay. Did he – what part of his mouth?

[A.]: Tongue.

[Commonwealth]: And that was under your clothes?

[A.]: Yes.

N.T., 5/5/21, at 35.

The above testimony, if credited by the jury, was sufficient to prove 

penetration. See Commonwealth v. Ortiz, 457 A.2d 559, 561 (Pa. Super. 
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1983) (“entrance in the labia is sufficient” to constitute penetration). As the 

evidence was sufficient for the jury to convict Appellant of IDSI-C and 

aggravated indecent assault, his first issue lacks merit.

In his second issue, Appellant claims the trial court erred in denying his 

motion for a mistrial after Trooper Wilson testified Appellant “referred the 

police to his attorney when he attempted to speak with [him].” Appellant’s 

Brief at 12. Appellant argues: 

By allowing the trial to continue, the jury was free to speculate or 

infer guilt even with the cautionary instruction given as to why 

[Appellant] would not at a minimum categorically and immediately 

deny the horrible accusations against him if he was in fact not 

guilty and as to why a not guilty person would already have 

retained counsel.

Id. at 15.

We review the denial of a motion for mistrial for an abuse of discretion. 

Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011). We have 

explained:

In criminal trials, declaration of a mistrial serves to eliminate the

negative effect wrought upon a defendant when prejudicial

elements are injected into the case or otherwise discovered at

trial. A trial court may grant a mistrial only where the incident

upon which the motion is based is of such a nature that its

unavoidable effect is to deprive the defendant of a fair trial by

preventing the jury from weighing and rendering a true verdict. 

It is also settled that a mistrial is not necessary where

cautionary instructions are adequate to overcome any

potential prejudice. 

Commonwealth v. Gilliam, 249 A.3d 257, 274 (Pa. Super. 2021) (emphasis

added, citations omitted), appeal denied, 267 A.3d 1213 (Pa. 2021). Courts
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“must consider all surrounding circumstances before finding that curative

instructions were insufficient and the extreme remedy of a mistrial is

required.” Commonwealth v. Manley, 985 A.2d 256, 266 (Pa. Super.

2009) (citation omitted). 

This Court recently summarized case law pertaining to testimony

referencing a defendant’s silence. We stated:

In Commonwealth v. Adams, 628 Pa. 600, 104 A.3d 511

(2014), our Supreme Court found harmless error where the

prosecutor elicited testimony that referenced the defendant’s

post-arrest silence because the reference was “contextual and

brief and did not highlight [d]efendant’s silence as evidence of

guilt,” where the Court found “it was simply utilized to recount the

sequence of the [Commonwealth’s] investigation, in particular,

how the DNA sample was obtained from [d]efendant.” Id. at 518.

See also Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d

329, 337 (2005) (where defense counsel first created inference

that Commonwealth’s investigative efforts were minimal or onesided, and where trooper testified both that defendant declined

police interview and that defense counsel advised trooper that

defendant denied allegations and would invoke right to remain

silent, reference to silence was “circumspect,” “limited to its

context,” and “not used in any fashion likely to burden

[d]efendant’s Fifth Amendment right” or create an inference of

admission of guilt since prosecution made no further reference to

defendant’s silence, thus, defendant did not suffer prejudice);

Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 478

(1998) (“Even an explicit reference to silence is not reversible

error where it occurs in a context not likely to suggest to the jury

that silence is the equivalent of a tacit admission of guilt.”).

Commonwealth v. Rivera, 255 A.3d 497, 507 (Pa. Super. 2021)

Consistent with the foregoing, the record supports the trial court’s

determination that Trooper Wilson’s testimony “resulted in de minimis, if any,

prejudice.” Rivera, 255 A.3d at 507 (citations omitted); N.T. 5/5/21 at 51. 
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Trooper Wilson’s testimony was “contextual and brief,” occurring during

questioning about how Trooper Wilson conducted his investigation and who

he interviewed. See Adams, 104 A.3d at 518; DiNicola, 866 A.2d at 337;

see also N.T., 5/5/21, at 49-51. The Commonwealth made no further

mention of Appellant’s pre-arrest silence or his invocation of right to counsel.

See Adams, 104 A.3d at 515; Rivera, 255 A.3d at 508.

Finally, the trial court gave a curative instruction. The court advised the

jury that Appellant,

always has an absolute right in any trial to remain silent. 

[Defendants] are not required to testify, they’re not required to

present witnesses. I am telling you that you may not draw any

inference of guilt from the fact that [Appellant] did not offer a

statement to the investigating officer when he was requested to

do so. He has an absolute right at that point and throughout to

remain silent and you cannot draw any inference of guilt from the

fact that he did not talk to the trooper on the day the officer

questioned him.

N.T., 5/6/21, at 63. We presume a jury follows a court’s instruction. See

Commonwealth v. Speight, 854 A.2d 450, 458 (Pa. 2004). Appellant’s 

second issue does not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/20/2022