Com. v. A.G., Sr. ( 2019 )

J-S78004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A.G., Sr. :
:
Appellant : No. 635 EDA 2018
Appeal from the Judgment of Sentence November 20, 2017
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002966-2016
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 04, 2019
A.G., Sr. (A.G.), appeals from his judgment of sentence, entered in the
Court of Common Pleas of Lehigh County, following his conviction of
aggravated indecent assault of a child,1 corruption of minors,2 and indecent
assault of a person less than 13 years of age.3 After careful review, we affirm.
A.G. sexually molested his then-nine-year-old daughter, I.G., while she
slept in his bed with him and his girlfriend. I.G. alleged that sometime during
the night, A.G. reached over with his hand and “touched” her on top of her
private area, inserted his hand into her privates, and hurt her. I.G. told her
sister the following day at school that A.G. had put his finger inside her the
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1 18 Pa.C.S. § 3125(b).
2 18 Pa.C.S. § 6321(a)(1)(ii).
3 18 Pa.C.S. § 3126(a)(7).
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* Former Justice specially assigned to the Superior Court.
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night before. After a jury trial, A.G. was convicted of the above-stated
offenses and sentenced to an aggregate term of imprisonment of 8 years and
2 months to 25 years. A.G. filed timely post-sentence motions that were
denied by the trial court. He filed a timely notice of appeal and court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
A.G. presents the following issues for our consideration:
(1) Whether the trial court committed error when it denied the
defense’s request to strike the jury panel when information
inferring that the defendant was or had been incarcerated
was made known to them.
(2) Was the verdict against the weight of all the evidence in
regards to the proof of whether or not the defendant was
properly convicted of the charges?
(3) Whether the evidence was sufficient to sustain the
defendant’s convictions.
Appellant’s Brief, at 8.
In his first issue on appeal, A.G. contends that the court improperly
denied his motion to strike the entire jury panel after the Commonwealth
elicited a response from a prospective juror, who was a correctional officer,
that indicated he knew A.G. A.G. asserts that this response tainted the entire
jury panel by “raising an improper assumption that [A.G.] either was or had
been in jail for some unknown offense or the present offenses.” Appellant’s
Brief, at 10.
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The purpose of voir dire is to ensure the empaneling of a fair and
impartial jury capable of following the trial court’s instructions on the law.
Commonwealth v. Marrero, 687 A.2d 1102, 1107 (Pa. 1996). The decision
to disqualify prospective jurors is left to the discretion of the trial court, and
that decision will not be disturbed on appeal absent an abuse of that
discretion. Commonwealth v. Ingber, 531 A.2d 1101, 1103 (Pa. 1987).
“The law also recognizes that prospective jurors were not cultivated in
hermetically sealed environments free of all beliefs, conceptions and views.
The question relevant to a determination of qualification is whether any biases
or prejudices can be put aside upon the proper instruction of the court.” Id.
(citation omitted).
The record reveals that during jury selection, the following exchange
occurred in the presence of the jury panel between the assistant district
attorney and a prospective juror:
PROSPECTIVE JUROR NO. 1: Well, I work at Lehigh County as a
correction officer, so obviously you see things within your job
description. So basically, you know, assaults, sexual assaults,
things like that. I can go in deeper if you want.
MS. MARKS: That's okay. So you are a corrections officer and
have seen a lot of things, heard a lot of things --
PROSPECTIVE JUROR NO. 1: In fact, I know A[.G.] already.
MS. MARKS: You know -- okay, all right. So because you are a
correction officer, in that position, would that prevent you from
being fair and impartial?
MR. GOUGH: Your Honor, I don't mean to interrupt, but may we
approach the Bench?
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N.T. Jury Voir Dire, 8/15/17, at 22. Defense counsel immediately lodged an
objection, stating that he was concerned about the fact that the prospective
juror had acknowledged that he knew his client, noting that he believed “the
whole panel could be poisoned” and requesting that “the panel [be] stricken
and . . . a new panel brought in[.]” Id. at 23.
First, as the trial court notes, the prospective juror did not indicate that
he knew A.G. as a criminal or prisoner. Second, the comment that the juror
knew A.G. was merely a passing reference and no further questioning was
made with regard to that topic. Third, the prospective juror was stricken from
the jury pool for cause.
Based on a review of the record, we cannot discern an abuse of
discretion by the trial court for failing to strike the entire jury pool over the
above-quoted comment from prospective juror #1. A.G. does not point to
anything to prove that he was prejudiced from the isolated comment, saying
nothing more than the comment “would lend itself towards a prejudicial
position” and that the other jurors “were left to speculate about the full nature
of [the juror’s] contact with [A.G.].” Appellant’s Brief at 18-19. A.G.’s
argument that the entire panel was tainted is purely speculative. He is not
entitled to relief. Ingber, supra.
In his next issue, A.G. argues that the verdict was against the weight of
the evidence. Specifically, he contends that there was no supporting physical
evidence, nor any additional supporting testimony to prove that the alleged
assault occurred. We disagree.
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When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is so
unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not cognizable
on appellate review. Moreover, where the trial court has ruled on
the weight claim below, an appellate court’s role is not to consider
the underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited to
whether the trial court palpably abused its discretion in ruling on
the weight claim.
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007) (internal
quotations and citations omitted).
The trial court considered A.G.’s weight of the evidence argument in his
post-sentence motion and concluded it lacked merit. We discern no abuse of
discretion in that determination. Here, the jury chose to believe the minor
victim’s testimony regarding the relevant events. Moreover, Katelyn M.
Brown, the certified nurse practitioner who conducted a sexual assault victim
physical examination on I.G. two days after the alleged incident, testified that
in most cases of child sexual abuse there are generally no physical findings
because of a minor’s anatomy and the fact that their organs are vascularized,
which means that injuries heal very quickly. N.T. Jury Trial, 8/16/17, at 119-
20. It was purely within the jury’s discretion to believe the victim and the
Commonwealth’s witnesses and we will not disturb that on appeal. Simply
put, the verdict does not shock one’s sense of justice.
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In his final issue on appeal, A.G. contends that there is insufficient
evidence4 to support his convictions. A.G.’s argument on this issue consists
of the following, “The Defendant believes that the testimony presented from
the alleged victim, which was the only substantive evidence that a crime may
have been committed, was not believable, was contradicted by other reputable
testimony, and was not supported by any physical or medical proof of injury.”
Appellant’s Brief, at 24. A.G. does not make any cogent legal argument, fails
to give specific examples of exactly what elements of the three crimes for
which he was convicted were not proven with specificity, and reiterates his
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4 We address sufficiency challenges under a well-established standard of
review:
The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the factfinder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for that of the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by a fact-finder 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. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. . . . Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Bowen, 55 A.3d 1254, 1260 (Pa. Super. 2012).
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weight of the evidence challenge as it relates to the credibility of the child
victim. Accordingly, we find that he has waived this claim. See
Commonwealth v. Manley, 985 A.2d 256 (Pa. Super. 2009) (sufficiency
challenge waived where appellant’s argument section of brief did not specify
which elements of offenses were unproven).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/19
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