Com. v. Keyes, K. ( 2021 )

J-A05014-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAISIM KEYES :
:
Appellant : No. 3376 EDA 2019
Appeal from the Judgment of Sentence Entered June 20, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006439-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAISIM KEYES :
:
Appellant : No. 3377 EDA 2019
Appeal from the Judgment of Sentence Entered June 20, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006440-2017
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED: MAY 17, 2021
Appellant, Kaisim Keyes, appeals from the judgments of sentence
entered on June 20, 2019, as made final by the denial of Appellant’s
post-sentence motions on September 3, 2019. We affirm.
The trial court ably summarized the underlying facts of this case:
____________________________________________
* Former Justice specially assigned to the Superior Court.
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[From 2014 through 2017, K.G.] was under the supervision
of Doria Edney. [Appellant] was a friend and
sometime[-]paramour of [Ms.] Edney. Ms. Edney was
responsible for homeschooling K.G. for kindergarten and
[second grade and, on occasion, Ms. Edney] babysat [K.G.]
after school and on weekends. . . .
Beginning in 2013, L.T. . . . was under Ms. Edney’s care on
some weekends. Both K.G. and L.T. would occasionally
spend the night at Ms. Edney’s apartment, which she shared
with [Appellant].
K.G.
When K.G. was seven years old, [Appellant] began
inappropriately touching her. Sometimes, while in
[Appellant’s] bedroom at Ms. Edney’s apartment, [Appellant]
would touch [K.G.] with his hands and mouth on her chest
and private parts, including her buttocks and vagina. On one
occasion, K.G. recalled that Ms. Edney had gone out for the
evening and [Appellant] forced [K.G.] into his room for the
“surprise.” When K.G. entered [Appellant’s] room,
[Appellant] began touching and licking her chest under her
clothes.
K.G. testified about multiple occasions of abuse. K.G. stated
that one time, while playing video games in [Appellant’s]
room, [Appellant] tried to bribe her with individual pieces of
chocolate. [Appellant] held up some pieces of chocolate,
demanded that K.G. [lie] down on his bed, and pulled down
[K.G.’s] pants and underwear. [Appellant] then proceeded
to lick her vagina and poke her vagina with his fingers. K.G.
testified that another time, [Appellant] touched and rubbed
her butt with his hands on top of her clothing.
On multiple occasions, [Appellant] ordered K.G. to “tap” his
penis with her tongue and lick the top part of it. K.G. stated
that she obeyed [Appellant] because otherwise, he would yell
at her, hold up the chocolate, and make her touch his penis
with her tongue. K.G. described [Appellant’s] penis as
“oval”-shaped and the body part that “boys pee through.”
K.G. stated that she had only looked at it once and that these
events would usually occur late in the evening, while Ms.
Edney was asleep.
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K.G. also testified that[,] sometimes, [she,] L.T., [and
Appellant] . . . would be in [Appellant’s] bedroom playing
video games when [Appellant] would start trying to bribe L.T.
to lick his penis. K.G. stated that she [did not] pay close
attention to what [Appellant] was doing to L.T., but knew that
it was similar to what he was doing to her. At times,
[Appellant] would show K.G. videos on his iPod which
depicted acts similar to what [Appellant] did to her. K.G.
described the videos as depicting adults touching each other,
with the girl’s mouth on the boy’s penis. K.G. explained that
she had not [informed] her mother or anyone else about
[Appellant’s] behavior because [Appellant] told her not to say
anything[; she also testified that she listened to Appellant]
because he was an adult and would yell at her.
On July 12, 2017, [K.G.’s mother] entered K.G.’s bedroom
and observed K.G. quickly exit out of an application she had
opened on her electronic tablet. [K.G.’s mother] thought
K.G.’s behavior was suspicious so she asked K.G. what she
had been doing. K.G. responded [that she had] been playing
a game and attempted to pull up a game. The duration of
the loading screen indicated otherwise to [K.G.’s mother],
causing her to take K.G.’s tablet away and look at her
YouTube search history.
During [her] examination of K.G.’s YouTube search history,
[K.G.’s mother] came across some videos which concerned
her, such as one video titled [“Storybook Sexual Abuse
Story”] and another video depicting the male genitalia in
CGI-format. At trial, K.G. testified that [Appellant] had
instructed her to look up what he was doing to her and
provided her with search words, including “sex abuse,” and
sites [such as] YouTube. . . .
Afterward, [K.G.’s mother] called K.G. to her room to ask her
some questions about the videos. Upon being questioned by
her mom, K.G. went on to hesitantly explain that [Appellant]
made her play the “boy game.” K.G. explained this game as
[Appellant] making her put her mouth on his private. [K.G.’s
mother] asked K.G. if [Appellant] ever touched her and K.G.
ashamedly pointed to her vaginal area and then to her
buttocks. [K.G.’s mother] called the police shortly after K.G.
told her about [Appellant]. The police transported [K.G.’s
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mother] and K.G. to the Special Victims Unit. While at
Special Victims, [K.G.’s mother] was asked to provide
information about L.T.
L.T.
At some time prior to when L.T. was nine or ten years old,
[Appellant] began touching her inappropriately. L.T. testified
that she, and sometimes her older brother, would spend the
night at Ms. Edney’s apartment. L.T. recalled that on one
occasion, when Ms. Edney was in the kitchen, [Appellant] was
playing a video game on the Wii console with her and K.G.
when [Appellant] suddenly stood up and pulled his pants and
underwear down. K.G. and L.T. remained seated next to one
another when this occurred and [Appellant] revealed his
[penis] to them. [Appellant] then proceeded to demand that
K.G. suck his penis and K.G. did as she was told. Afterwards,
[Appellant] ordered L.T. to suck his penis and L.T. also did as
she was told. At trial, L.T. recalled that this type of
interaction would occur every time she spent the night at Ms.
Edney’s apartment.
L.T. testified that she did not tell her mother about
[Appellant’s] actions because she was afraid she would get in
trouble and that her mother would accuse her of “acting
grown.” L.T. further explained that she did not tell Ms. Edney
about [Appellant’s] behavior because she thought that Ms.
Edney already knew since the two of them lived together.
L.T. stated that she did not tell anyone about what
[Appellant] was doing to her because she was afraid of what
people would think. She testified that others would think that
she was “nasty,” it was her fault, and that she was “too
grown.”
During cross-examination at trial, L.T. testified that she had
lied to the Philadelphia Children’s Alliance (“PCA”)
interviewer, the court during the preliminary hearing, and the
trial court during her earlier testimony. L.T. testified that she
had lied about how many times [Appellant] had sexually
abused her because she was afraid of telling other people,
such as friends and family, about being sexually assaulted
and how many times it had occurred. She further explained
that she had previously testified that it had only happened
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once because she was embarrassed and [did not] want
anyone to know it had occurred multiple times.
Trial Court Opinion, 5/18/20, at 1-5 (citations and some capitalization
omitted).
A jury found Appellant guilty of two counts each of: involuntary deviate
sexual intercourse with a child, indecent assault of a person less than 13 years
of age, unlawful contact with a minor, and corruption of a minor. 1 On June
20, 2019, the trial court sentenced Appellant to serve an aggregate term of
20 to 40 years in prison, followed by four years of probation, for his
convictions.
Following the denial of Appellant’s post-sentence motions, Appellant
filed timely notices of appeal. Appellant raises one claim in this consolidated
appeal:2
Was not the verdict against the weight of the evidence and
should not a new trial be granted in the interests of justice?
Appellant’s Brief at 3.
As our Supreme Court has explained:
a verdict is against the weight of the evidence only when the
[factfinder’s] verdict is so contrary to the evidence as to
shock one’s sense of justice. It is well established that a
weight of the evidence claim is addressed to the discretion of
the trial court. A new trial should not be granted because of
____________________________________________
1 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), 6318(a)(1), 6301(a)(1)(ii),
respectively.
2On February 14, 2020, we sua sponte consolidated Appellant’s two appeals.
Order, 2/14/20, at 1.
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a mere conflict in the testimony or because the judge on the
same facts would have arrived at a different conclusion.
Rather, the role of the trial court is to determine that
notwithstanding all the evidence, certain facts are so clearly
of greater weight that to ignore them, or to give them equal
weight with all the facts, is to deny justice. A motion for a
new trial on the grounds that the verdict is contrary to the
weight of the evidence concedes that there is sufficient
evidence to sustain the verdict; thus the trial court is under
no obligation to view the evidence in the light most favorable
to the verdict winner.
Significantly, in a challenge to the weight of the evidence, 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. In determining
whether this standard has been met, appellate review is
limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.
It is for this reason that the trial court’s denial of a motion for
a new trial based on a weight of the evidence claim is the
least assailable of its rulings.
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (quotations and
citations omitted). “An abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice,
ill-will or partiality, as shown by the evidence of record.” Commonwealth v.
Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (quotations and citations
omitted).
On appeal, Appellant claims that the trial court erred when it denied his
weight of the evidence claim because “[n]o reasonable person could find the
[victims’] contradictory testimony reliable where [] they each had a motive to
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lie,[3] gave different stories unsupported by physical evidence and described
repeated acts of sexual assault happening to them in a room with no door in
an apartment too small for the other occupants to have failed to notice it
happening.” Appellant’s Brief at 12-13. Appellant’s argument fails. As the
trial court explained:
[Appellant] argues that the jury’s guilty verdict was against
the weight of the evidence presented and a new trial should
be granted because[:] (1) K.G.’s testimony was not credible
because she was motivated to fabricate her allegations to
avoid getting in trouble for watching inappropriate YouTube
videos and to get away from Ms. Edney's apartment where
she could not make friends; (2) L.T.'s testimony was not
credible because she was motivated to fabricate her
allegations in order to get away from Ms. Edney's apartment
where she was unable to hang out with her friends and L.T.'s
testimony that she repeatedly lied about the alleged abuse in
the PCA video, to the police, at the preliminary hearing, and
at trial; (3) K.G. and L.T.'s testimony was unreliable as it
contained many inconsistencies regarding the description of
the abuse and[] L.T.'s description of events and abuse
differed drastically from K.G.'s testimony in terms of
occasions, acts, and possibly a third witness (L.T.'s older
brother); and (4) photographs of Ms. Edney's apartment
showed there was no privacy for the abuse to occur and
[Appellant] had a reputation for being peaceful, law-abiding,
and non-violent.
In this case, it was the sole province of the jury, as the
fact-finder, to assess K.G. and L.T.'s credibility, determine
the weight to be given to their testimony, and resolve any
conflicts in their testimony. Here, the jury weighed the
evidence presented, evaluated K.G. and L.T.'s testimony, and
found them to be credible, as it was entitled to do. The jury
____________________________________________
3 Appellant claims that the victims had motives to lie “to avoid getting in
trouble for watching sexual videos on a tablet [and] to get out of having to go
to Ms. Edney’s house anymore.” Appellant’s Brief at 17.
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believed K.G.'s testimony was credible enough to overcome
[Appellant’s] argument that K.G. had a motive to lie in order
to avoid getting into trouble and to leave Ms. Edney's care.
Vigorous cross-examination was done by [Appellant’s]
attorney in the areas of K.G.'s motive to fabricate. The
motives argued by counsel [were] that: (1) K.G. [did not]
want to get in trouble with her mother for watching the
aforementioned YouTube videos and (2) [] K.G. [did not]
want to be [homeschooled] any longer at Ms. Edney and
[Appellant’s] apartment. After being questioned by
[Appellant’s] attorney, K.G. conceded that she wanted to go
to regular school to meet new friends. Despite this answer
and the vigorous cross-examination on these areas of motive
to fabricate, the jury believed K.G. to be credible and that
these criminal acts took place. Similarly, despite
[Appellant’s] argument that L.T. also had a motive to lie, the
jury clearly believed L.T.'s testimony of the abuse
perpetrated against her. L.T. merely stated once, during
cross-examination at trial when directly asked by
[Appellant’s] attorney, that she preferred her grandmother's
house "a little bit[.]" Clearly the jury did not believe this was
a motive for L.T. to fabricate the events about which she
testified.
L.T. admitted to lying about the number of times she was
sexually abused to the PCA interviewer, to the police, at the
preliminary hearing, and at trial. Despite this admission, the
jury found L.T.'s testimony at trial credible. Their verdict
clearly indicates that they found her rationale for making
false statements on prior occasions to be credible. Finally, it
is clear that the jury found L.T.'s trial testimony to be credible
and worthy of belief.
[Appellant] argues that there were multiple inconsistencies
between the testimony of K.G. and L.T. However, the jury
was able to reconcile these inconsistencies in K.G. and L.T.'s
testimony regarding the description of the abuse. The final
jury instructions state "If you find there were conflicts in the
testimony, you have the duty of deciding which testimony to
believe. But you should first try to reconcile, that is, fit
together any conflicts in the testimony if you can fairly do
so." In fact, the only inconsistency was whether [Appellant]
had performed anal sex and oral sex on L.T. K.G. testified
that she had observed [Appellant] lick L.T.'s vagina and put
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his penis in L.T.'s buttocks whereas L.T. testified that she had
only performed oral sex on [Appellant]. Aside from these
minor differences, the testimony was nearly identical.
[Appellant] argues that L.T.'s description of events and abuse
differed drastically in terms of occasions, acts, and a possible
third witness, L.T.'s brother. However, L.T. never mentioned
that her brother was in the same room when the abuse
occurred and therefore, he was unlikely to be a witness.
Next, [Appellant] argues that given the layout of the
apartment, this abuse could not have taken place without
someone else witnessing it. While the evidence presented
shows that the apartment may not have had the most
privacy, the jury obviously felt that it did not preclude
[Appellant’s] actions from occurring within the residence.
Further, there was testimony that much of the abuse
occurred when Ms. Edney was sleeping.
Finally, [Appellant] argues evidence of [his] good character
should have been enough to overcome K.G. and L.T.'s
testimony. Although the instruction provided to the jury
regarding character evidence states, "Evidence of good
character may by itself raise a reasonable doubt of guilt and
require a verdict of not guilty," the instruction also states,
"You must weigh and consider the evidence of good character
along with the other evidence in the case. If, on all the
evidence, you have a reasonable doubt of the defendant's
guilt, you must find him not guilty. However, if, on all the
evidence, you are satisfied beyond a reasonable doubt that
the defendant is guilty, you should find him guilty." Thus,
other evidence can overcome evidence of [Appellant’s]
character traits of being peaceful and law-abiding. Here, the
jury did not find that the evidence of [Appellant’s] good
character was enough to overcome the allegations and
supporting evidence from K.G. and L.T.'s testimony. The
jury's verdict of guilty on all charges does not shock one's
sense of justice, therefore, the verdict was not against the
weight of the evidence.
Trial Court Opinion, 5/18/20, at 5-9 (citations omitted).
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We agree with the trial court’s cogent analysis and conclude that the
trial court did not abuse its discretion when it denied Appellant’s weight of the
evidence challenge. Therefore, Appellant’s claim on appeal fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/21
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