Com. v. McQuade, J. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSEPH M. McQUADE, SR., : No. 37 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, November 25, 2013,
in the Court of Common Pleas of Jefferson County
Criminal Division at No. CP-33-CR-0000235-2013
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 20, 2014
Joseph M. McQuade, Sr., appeals from the judgment of sentence of
November 25, 2013, following his conviction of multiple counts of
aggravated indecent assault, indecent assault, unlawful contact, and
corruption of minors. We affirm.
The charges related to appellant’s sexual abuse of his 13-year-old
daughter, N.M. Initially, appellant entered into a negotiated guilty plea;
however, he was permitted to withdraw that plea prior to sentencing. The
matter proceeded to a non-jury trial on October 28, 2013, following which
appellant was found guilty of all charges, including four counts each of
aggravated indecent assault and aggravated indecent assault of a person
less than 16 years of age. On November 25, 2013, appellant received an
aggregate sentence of 48 to 148 years’ incarceration. Post-sentence
* Retired Senior Judge assigned to the Superior Court.
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motions were denied, and this timely appeal followed. Appellant complied
with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an
opinion.
Appellant has raised the following issue for this court’s review:
Whether the verdict was against the weight of the
evidence and should shock the conscience of this
Court where: the victim repeatedly contradicted
herself (and was contradicted by other witnesses),
concerning when and where the alleged acts of
molestation occurred; where the victim had
previously told her mother the allegations against
appellant were fabrications; and where [the] victim’s
earlier physical demonstration of where she was
touched indicated there was no “penetration,
however slight?”
Appellant’s brief at 21.1
A weight of the evidence claim concedes
that the evidence is sufficient to sustain
the verdict, but seeks a new trial on the
ground that the evidence was so
one-sided or so weighted in favor of
acquittal that a guilty verdict shocks
one’s sense of justice.
Commonwealth v. Lyons, Pa. , 79 A.3d
1053, 1067 (2013).
The Pennsylvania Supreme Court has
reiterated the proper standard of review of a weight
claim as follows:
A motion for a new trial based on a claim
that the verdict is against the weight of
the evidence is addressed to the
discretion of the trial court. A new trial
1
In his Rule 1925(b) statement, appellant also raised a discretionary
aspects of sentencing claim, which has been abandoned on appeal.
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should not be granted because of 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 judge is to
determine that ‘notwithstanding all the
facts, 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.’” It has often been
stated that “a new trial should be
awarded when the jury’s verdict is so
contrary to the evidence as to shock
one’s sense of justice and the award of a
new trial is imperative so that right may
be given another opportunity to prevail.”
An appellate court’s standard of review
when presented with a weight of the
evidence claim is distinct from the
standard of review applied by the trial
court:
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
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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.
This does not mean that 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 unfettered. In describing the
limits of a trial court’s discretion, we
have explained:
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 where
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.
Commonwealth v. Clay, Pa. , 64 A.3d
1049, 1054–1055 (2013) (citations omitted)
(emphasis in original).
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Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014). “The
uncorroborated testimony of a sexual assault victim, if believed by the trier
of fact, is sufficient to convict a defendant.” Commonwealth v.
McDonough, 96 A.3d 1067, 1069 (Pa.Super. 2014), citing Commonwealth
v. Charlton, 902 A.2d 554, 562 (Pa.Super. 2006).
Appellant argues that the Commonwealth failed to prove the
“penetration, however slight” element of aggravated indecent assault.2
According to appellant, the victim’s testimony was inconsistent and not
credible. Appellant states that earlier, when these incidents happened, the
victim demonstrated for her mother, Teresa, where appellant had touched
2
Except as provided in sections 3121 (relating to
rape), 3122.1 (relating to statutory sexual assault),
3123 (relating to involuntary deviate sexual
intercourse) and 3124.1 (relating to sexual assault),
a person who 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 commits aggravated indecent assault if:
(1) the person does so without the
complainant’s consent;
or
(8) the complainant is less than 16 years of
age and the person is four or more years
older than the complainant and the
complainant and the person are not
married to each other.
18 Pa.C.S.A. § 3125(a)(1), (8).
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her. At that time, the victim indicated that appellant touched her below her
panty line but did not penetrate her vagina. Appellant also argues that the
victim was angry at appellant and had a motive to lie.
The victim, N.M., testified that appellant digitally penetrated her
vagina on at least four separate occasions, in the shower, on the couch, in
her bedroom, and in her mother’s bedroom. (Notes of testimony, 10/28/13
at 43-44, 46-49, 51-52.) N.M. was unequivocal in her testimony that
appellant placed his finger inside her vagina, describing the motion as “up
and then down and went inside.” (Id. at 52.)
Teresa McQuade, N.M.’s mother, testified that N.M. told her appellant
touched her below her panty line while rubbing her belly. (Id. at 83.)
Teresa asked N.M. to show her where appellant touched her. (Id. at 105.)
They went into the bathroom, where N.M. removed her clothing and
indicated that appellant touched her just above her vulva. (Id. at 105-108.)
Teresa testified that N.M. specifically denied that appellant inserted anything
into her vagina. (Id. at 108.) Later, N.M. told Teresa that she made up the
allegations because she was angry at appellant. (Id. at 96-97.)
Appellant took the stand in his own defense. Appellant described his
relationship with N.M. as “rocky,” and testified that N.M. wanted him out of
her life. (Id. at 158, 162.) According to appellant, N.M. resented the fact
that he was a strict disciplinarian. (Id. at 163.) Appellant admitted that,
occasionally, he would assist N.M. in the shower. Appellant testified that
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N.M. had trouble rinsing the conditioner out of her hair. (Id. at 170.)
Appellant also testified that N.M. had a yeast infection, and he had to apply
ointment to her genital area. (Id. at 164-168.)
Appellant’s testimony in this regard was contradicted by Teresa, who
testified that N.M. had a yeast infection on one occasion, caused by an
adverse reaction to fragrance in the type of bubble bath they were using,
but that appellant never applied any ointment to her genital area. (Id. at
87-88.) Teresa testified that she applied the ointment. (Id. at 89.) Teresa
also testified that N.M. did not need any help in the shower. (Id. at 91.)
The trial court, sitting as finder-of-fact, found N.M.’s testimony to be
credible and convincing and did not believe appellant’s self-serving
testimony that he had to apply ointment to N.M.’s genital area for a
good-faith medical purpose. (Trial court opinion, 2/12/14 at 2.) The trial
court did not accept appellant’s argument that N.M. fabricated these
allegations because she was angry. (Id.) In fact, N.M. admitted that she
disliked appellant but specifically denied lying to get him out of the house.
(Notes of testimony, 10/28/13 at 66, 74-75.)
Although, pointing to Teresa’s testimony, appellant characterizes
N.M.’s account of these incidents as inconsistent, her trial testimony was
extremely consistent on the crucial issue of penetration. N.M. testified that
on each occasion, appellant placed his finger inside her vagina. (Id. at 46,
49, 51-52, 63, 75.) In addition, N.M. related these incidents to her teacher
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and the school nurse. (Id. at 126-150.) Clearly, the trial court found N.M.’s
testimony to be credible and convincing. It was within the exclusive
province of the trial court as fact-finder to resolve conflicts in the testimony
and to believe all, part, or none of the evidence. Charlton, supra. The trial
court did not abuse its discretion in denying appellant’s motion for a new
trial based on the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2014
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