Com. v. G.F.K. ( 2015 )

J. S54039/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
G. F. K. :
:
Appellant : No. 756 EDA 2015
Appeal from the Judgment of Sentence January 29, 2015
In the Court of Common Pleas of Wayne County
Criminal Division No(s).: CP-64-CR-0000466-2013
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 06, 2015
Appellant, G. F. K., appeals from the judgment of sentence entered in
the Wayne County Court of Common Pleas. Following a jury trial, Appellant
was convicted of rape forcible compulsion,1 involuntary deviate sexual
intercourse with child,2 aggravated indecent assault,3 and corruption of
minors.4 Appellant was sentenced to 50 to 101 years’ imprisonment.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3121(a)(1).
2
18 Pa.C.S. § 3123(b).
3
18 Pa.C.S. § 3125(a)(7).
4
18 Pa.C.S. § 6301(a)(1).
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Appellant challenges the sufficiency of the evidence and contends the
sentence was excessive. We affirm.
We adopt the facts as set forth in the trial court opinion. 5 Trial Ct.
Op., 5/8/15, at 4-16. At trial, Appellant testified that the four minor victims
were related to him. Three of the victims were his nieces and one was his
sister-in-law’s sister. N.T., 11/12/14, at 67. He denied the allegations from
C.K. Id. at 68-69. He also denied the allegations from B.M. Id. at 69. He
denied the allegations from V.K. Id. at 69-70. He denied playing truth or
dare with any of the victims. Id. at 72. He denied that anything “occurred
on at least one of those Christmas present wrapping nights . . . .” Id. at 83.
He denied having sexual intercourse with C.K. Id. at 84. He denied having
sexual intercourse with C.W. Id. at 85. He denied “perpetrat[ing] any
sexual abuse on” C.W. Id. at 86. He denied having “any improper sexual,
or untoward contact with” V.K. Id.
Appellant testified, inter alia, as follows:
[Defendant’s Counsel]: . . . [I]f you say that you didn’t
commit any of these crimes, do you have any reason or
you have . . . any reason [sic] suspect what the root or the
basis of the reporting was against you from the girls?
A: The girls generally feeling hurt over their, over family
issues.
Q: What sort of family issues are you talking about?
5
We note that Appellant entered a plea of nolo contendere on June 27,
2014. On August 18, 2014, he filed a motion to withdraw the plea. On
September 2, 2014, the court granted the motion.
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A: Their grandmother abandoning their grandfather in
Michigan, or Minnesota, abandoning the family and then
suddenly popping back in their life’s [sic].
Q: Well were there any family fractures that would be
closure [sic] than grandma and the children?
A: Yeah, there was [sic] physical altercation between
myself and [B.K.]
Q: And that would be your brother, [B.K.]?
A: Yes, sir.
Q: Do you recall about when that occurred?
A: 2008.
Q: Were any of the girls present at or about that time?
A: [C.K.] and [V.K.]
Q: And where did this occur?
A: In the drive way in front of the big bay window at the
end of the home where the girls were.
* * *
Q: Was that a physical altercation?
A: Yes, sir.
Q: . . . Physical between you and your brother, [B.K.]?
A: Yes, sir.
Q: In the presence of two of the girls?
A: They stood at the bedroom window and seen [sic] it all.
* * *
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[The Commonwealth]: Isn’t it true that [B.K.] was a
drinker . . . ?
A: Yes, ma’am.
Q: Isn’t it true that this fight was you defending [C.K. and
V.K.’s mother] against [B.K.] when he was drunk?
A: Yes, ma’am.
Q: And you’re telling this jury today that these girls are
making this up against you because you defended their
mother?
A: They didn’t see it as that at the time, ma’am. All they
saw was me yank my brother out of the car and start
pounding on him.
Id. at 87-88, 106.
Appellant was sentenced on January 29, 2015. On count 1, rape
forcible compulsion, Appellant was sentenced to ten to twenty years’
imprisonment. On counts 2, 3, 4, and 5, rape forcible compulsion, he was
sentenced to six to twelve years’ imprisonment. The sentences were all
consecutive to that imposed on the prior count. Appellant was given a
concurrent sentence of ten to twenty years’ imprisonment on count 6,
involuntary deviate sexual intercourse. On count 11, aggravated indecent
assault, Appellant was given a concurrent sentence of three to ten years’
imprisonment. On count 12, rape of a child, Appellant was sentenced to ten
to twenty years’ imprisonment to run consecutively to count 5. Appellant
was sentenced to ten to twenty years on count 13, involuntary deviate
sexual intercourse, concurrent to count 1. On count 14, rape, he was
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sentenced to five-and-one-half-years to eleven years’ imprisonment,
consecutive to count 12. Appellant was sentenced to six months to two
years’ imprisonment on count 15, corruption of minors, consecutive to count
14. He filed a motion for post trial relief on February 9, 2015. The motion
was denied on February 12, 2015. This timely appeal followed. Appellant
filed a court ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal and the trial court filed a responsive opinion.
Appellant raises the following issues for our review:
1. Whether the Commonwealth sustained its burden of
proof beyond a reasonable doubt relative to the charges
for which [Appellant] was convicted?
2. Whether the sentence imposed by the Trial Court was
excessive and utterly harsh and oppressive?
Appellant’s Brief at 7.
First, Appellant contends the Commonwealth did not sustain its burden
of proof beyond a reasonable doubt relative to the charges for which he was
convicted. Appellant contends that one victim, C.K., testified as to one
incident of sexual intercourse with him and therefore the guilty verdict on
Counts 2-5 should be vacated. Id. at 16-17. C.K. testified that Appellant
“[w]alked into my room, he shut the door and locked it and push me down
on the bed, which wasn’t hard since I was already laying down for bed. He
pushed me down on the bed, held my arms down and he stuck his penis in
my vagina.” Id. at 16. He contends that she was unable to specify the
timeframe. Id. Appellant avers that the testimony in support of Counts 2-5
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is based upon “sparse testimony” and “vague testimony.” Id. at 16-17. He
concludes “[t]he rape convictions of counts 2, 3, 4, and 5 must be vacated.”
Id. at 17.
Appellant avers the rape conviction under Count 12 must be vacated
based upon the testimony of a second victim, B.M., that during a Truth or
Dare game, Appellant put “his penis in us.” Id. at 17. “There is no
explanation as to what part of her body was penetrated by [Appellant’s]
penis.” Id. He contends “[t]here is little, if any confirmation of the rape
charge in Count 14,” of C.W., because she testified that Appellant “[t]ook off
his pants and pulled his penis out . . . and he would penetrate me.” Id.
Appellant argues “it is left to the imagination of the jury what [he] allegedly
penetrated. Convictions cannot rest on imagination.” Id.
Appellant claims the convictions in Counts 6 and 13 for involuntary
deviate sexual intercourse must be vacated because “the testimony only
reflects vague recollections of [C.K. and B.M.]” Id. at 19. He avers:
[C.K.] testifies firstly that [Appellant] asked her to touch
his balls and then asked [B.M.] to lick his penis and lick his
balls. [C.K.] only testifies that she saw [B.M.] do that and
also testifies “yes,” in response to a question “Did you do
that?” Nowhere in testimony or in the record is it ever
learned what she actually allegedly did. The same
testimony surrounds the proof of Count 13. [B.M.] recalls
having been dared to put her mouth on [Appellant’s]
penis. “And did you do that,” questioned the
Commonwealth. Her response was “yes.” The lingering
question, however, was what did she really do?
Again, the testimony only reflects vague recollections of
the witnesses . . . .
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Id. at 19.6
Appellant claims that “[t]he Aggravated Indecent Assault charge under
Count 11 is also specious. There must be some time frame.” Id. at 20. He
states C.K. “testified that ‘. . . Normally, every time he raped me . . .’
[Appellant] put his finger in her vagina.” Id.
Appellant contends the corruption of minors charge in Count 15 must
also be vacated as it “stems from testimony from [V.K.] that she saw [B.M.]
and [C.K.] touch [Appellant’s] ‘weiner’ and put their mouths on [his] ‘weiner’
and that [he], some five years later, rubbed her crotch.” Id. at 21. He
concludes that “the convictions tied to Counts 11 and 25 must be vacated,
too.” Id.
Prior to addressing Appellant’s specific arguments, we examine the
distinctions between sufficiency of the evidence and weight of the evidence
challenges.
A challenge to the sufficiency of the evidence is entirely
distinct from a challenge to the weight of the evidence.
6
Appellant avers the Commonwealth did not establish the date when any of
the rape and involuntary deviate sexual intercourse offenses occurred. Id.
at 20. In Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super. 1980),
the defendant was convicted of a “rape, involuntary deviate sexual
intercourse, indecent assault and corruption of minors” which occurred over
a period of several years. Id. at 1372. In Niemetz, this Court rejected the
defendant’s contention “that the trial court improperly permitted the victim
to testify to incidents of rape without requiring her to specify the dates of
such occurrences.” Id. at 1373.
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The distinction between these two challenges is
critical. A claim challenging the sufficiency of the
evidence, if granted, would preclude retrial under the
double jeopardy provisions of the Fifth Amendment
to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, whereas
a claim challenging the weight of the evidence if
granted would permit a second trial.
A claim challenging the sufficiency of the evidence
is a question of law. Evidence will be deemed
sufficient to support the verdict when it establishes
each material element of the crime charged and the
commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to
support the verdict is in contradiction to the physical
facts, in contravention to human experience and the
laws of nature, then the evidence is insufficient as a
matter of law. When reviewing a sufficiency claim
the court is required to view the evidence in the light
most favorable to the verdict winner giving the
prosecution the benefit of all reasonable inferences
to be drawn from the evidence.
A motion for 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. An allegation that
the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. A new
trial 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. A
trial judge must do more than reassess the
credibility of the witnesses and allege that he would
not have assented to the verdict if he were a juror.
Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the
thirteenth juror. 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
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ignore them or to give them equal weight with all the
facts is to deny justice.
Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa. Super. 2004)
(citation omitted).
Appellant’s arguments ignore the fundamental standards of a
sufficiency challenge, which require this Court to review the evidence in the
light most favorable to the Commonwealth. See id. Accordingly, his
arguments are tantamount to a review of the trial evidence in a light most
favorable to himself and thus assail the weight, rather than the sufficiency,
of the evidence. Cf. Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa.
Super. 2011).
As a prefatory matter, we consider whether Appellant has waived the
issue of the weight of the evidence. Pennsylvania Rule of Criminal Procedure
607 requires that a claim that the verdict was against the weight of the
evidence “be raised with the trial judge in a motion for a new trial.”
Pa.R.Crim.P. 607(A).7 The failure to raise a challenge to the weight of the
7
Rule 607 provides:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
* * *
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
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evidence in the trial court results in the waiver of the challenge for the
purposes of appeal. Smith, 853 A.2d at 1028.
Instantly, prior to sentencing, Appellant raised the weight of the
evidence claim in his motion for post trial relief See Mot. for Extraordinary
Post Trial Relief Pursuant to Rule 704 Pa.R.Crim.P. in the Form of a Mot. for
J. of Acquittal, or in the Alternative a Mot. in Arrest of J., and or Mot. for
New Trial, 11/24/14, at 5. The trial court denied the motion on November
25, 2014. Appellant raised the weight of the evidence claim in his post
sentence motion. Mot. for Post Trial Relief Pursuant to Rule 720
Pa.R.Crim.P., 2/9/15, at 5. Therefore, we need not find the issue waived.
See Pa.R.Crim.P. 607(A)(2)-(3).
As noted above, our review is limited to whether the trial court abused
its discretion in denying Appellant’s motion for a new trial. See Smith, 853
A.2d at 1028. This Court has stated:
[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. Stated
another way, . . . this Court has explained that the
evidence must be so tenuous, vague and uncertain that
the verdict shocks the conscience of the court.
Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003)
(quotation marks and citation omitted). Furthermore, “a trial court’s
Pa.R.Crim.P. 607(A)(2)-(3).
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exercise of discretion in finding that a verdict is or is not against the weight
of the evidence is ‘[o]ne of the least assailable reasons for granting or
denying a new trial.’” Id. (citing Commonwealth v. Widmer, 744 A.2d
745, 753 (Pa. 2000)).
Instantly, the trial court opined:
Under count #1, a jury found that from August 15,
2006 to August 14, 2007, [Appellant] raped his eight (8)
year old niece, [C.K.]
* * *
Here, the jury obviously found [C.K.’s] testimony
credible and chose not to believe [Appellant’s] version of
the events.
* * *
Under Counts #2, #3, #4, and #5, a jury found that
from August 15, 2007 to August 14, 2011, [Appellant]
raped his niece [C.K.] on four (4) other separate
occasions.
* * *
Here, once again, the jury found [C.K.’s] testimony
credible and chose not to believe [Appellant’s] version of
the events. It was within the province of the jury as fact-
finder to resolve all issues of credibility . . . . This [c]ourt
does not find the evidence to be weak and inconclusive.
[C.K.] specifically testified that she was less than 13 years
of age when [Appellant] raped her: (1) on the pull-out
couch in [C.K.’s] family home, (2) on [Appellant’s] couch
in Honesdale, (3) on [Appellant’s] floor in Honesdale, and
(4) on [C.K.’s] bed during “Truth or Dare.”
* * *
Under Count #12, a jury found that from July 6, 2006
to December 25, 2007, [Appellant] raped his brother’s nine
(9) year old sister-in-law, [B.M.]
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* * *
Here, the jury obviously found [B.M.’s] testimony
credible and chose not to believe [Appellant’s] version of
events.
* * *
Under Count #14, a jury found that from July 25, 2000
to February 13, 2003, [Appellant] raped his five (5) year
old niece, [C.W.]
* * *
Here, the jury obviously found [C.W.’s] testimony
credible and chose not to believe [Appellant’s] version of
the events.
* * *
Under Count #6, a jury found that from Agust 15,
2006, to August 14, 2007, [Appellant] engaged in
involuntary deviate sexual intercourse with his niece,
[C.K.]
* * *
Here, the jury obviously found [C.K.’s] testimony
credible and chose not to believe [Appellant’s] version of
the events.
* * *
Under Count #13, a jury found that from July 7, 2006
to December 15, 2007, [Appellant] engaged in involuntary
deviate sexual intercourse with his brother’s sister-in-law,
[B.M.]
* * *
Here, the jury obviously found [B.M.’s] testimony
credible and chose not to believe [Appellant’s] version of
the events.
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* * *
Under Count #11, a jury found that [Appellant]
committed Aggravated Indecent Assault against his niece,
[C.K.]
* * *
Here, the jury obviously found [C.K.’s] testimony
credible and chose not to believe [Appellant’s] version of
the events.
* * *
Under Count #15, a jury found that [Appellant]
committed Corruption of Minors[, as to V.K.]
* * *
Here, the jury obviously found [V.K.’s] testimony
credible and chose not to believe [Appellant’s] version of
the events.
* * *
The jury in this case listened to four (4) young ladies
recount how [Appellant] took the innocence of childhood
away from them. According to [Appellant’s] testimony, all
four (4) of these young ladies are liars. The reason he
provided was that they were upset with him over a
physical altercation that took place between him and his
brother, [B.K.]. [Appellant] testified that the fight started
because [B.K.] was drunkenly beating his wife. According
to [Appellant], [C.K.] and [V.K.] witnessed the altercation
and did not understand that he was trying to defend their
mother. The jury obviously did not find [Appellant’s]
reason to be credible. This [c]ourt agrees with the jury
and does not find the verdict so contrary to the evidence
as to make the award of a new trial imperative.
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Trial Ct. Op. at 4-5, 7-14, 16, 18. We discern no abuse of discretion by the
trial court in denying Appellant’s motion for a new trial. See Sullivan, 820
A.2d at 806.
Lastly, Appellant contends the sentence imposed by the trial court was
excessive and utterly harsh and oppressive.8 Appellant’s Brief at 7.
Appellant challenges the discretionary aspect of his sentence. When
appealing the discretionary aspects of a sentence, an appellant must invoke
this Court’s jurisdiction by including in his brief a separate concise statement
demonstrating a substantial question as to the appropriateness of the
sentence under the Sentencing Code. Pa.R.A.P. 2119(f). “The statement
shall immediately precede the argument on the merits with respect to the
discretionary aspects of the sentence.” Id.Instantly, Counsel has not included a separate Rule 2119(f) statement
in the appellate brief. Nevertheless, because the Commonwealth has not
objected to this deficiency and we may discern the gist of Appellant’s claim,
8
We note that the certified record did not include the January 29, 2015
sentencing transcript, which we deem necessary for our review of
Appellant’s sentencing issues. Upon informal inquiry by this Court, the trial
court provided that transcript as a supplemental record. We remind
Appellant’s counsel, “Our law is unequivocal that the responsibility rests
upon the appellant to ensure that the record certified on appeal is complete
in the sense that it contains all of the materials necessary for the reviewing
court to perform its duty.” See Commonwealth v. B.D.G., 959 A.2d 362,
372 (Pa. Super. 2008) (citations omitted).
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we decline to find waiver on the lack of a 2119(f) statement. See
Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006).
Appellant claims that, although the imposition of consecutive or
concurrent sentences for multiple convictions is discretionary, his “sentence
is actually a life sentence and one highly excessive regardless of the
charges and the impact such crimes have on victims.” Appellant’s
Brief at 26 (emphasis added).
As a prefatory matter, we consider whether Appellant has waived the
issue. Our Rules of Appellate Procedure set forth the required contents of
appellate briefs. “The statement of the questions involved must state
concisely the issues to be resolved, expressed in the terms and
circumstances of the case but without necessary detail.” Pa.R.A.P. 2116(a).
“The argument shall be divided into as many parts as there are questions to
be argued; and shall have at the head of each part─in distinctive type or in
type distinctively displayed─the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). “Citations of authorities must set forth the principle for
which they are cited.” Pa.R.A.P. 2119(b).
“[W]here an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). Instantly, in
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the argument section of Appellant’s brief, he contends he has raised a
substantial question.9 However, he does not present any discussion of the
issue with citation to relevant authority. Therefore, we could find the issue
waived. See id.Assuming, arguendo, that the issue was not waived, and that
Appellant raised a substantial question, we shall address the discretionary
aspect of his sentence. Our standard of review is guided by the following
principles:
Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of
discretion. An abuse of discretion is more than just
an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the
following guidance to the trial court’s sentencing
determination:
[T]he sentence imposed should call for confinement
that is consistent with the protection of the public,
the gravity of the offense as it relates to the
impact on the life of the victim and on the
community, and the rehabilitative needs of the
defendant.
42 Pa.C.S.A. § 9721(b).
9
Appellant acknowledges “the depravity” of the crimes for which he was
convicted. Appellant’s Brief at 25.
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Furthermore,
Section 9781(c) specifically defines three instances
in which the appellate courts should vacate a
sentence and remand: (1) the sentencing court
applied the guidelines erroneously; (2) the sentence
falls within the guidelines, but is “clearly
unreasonable” based on the circumstances of the
case; and (3) the sentence falls outside of the
guidelines and is “unreasonable.” 42 Pa.C.S. §
9781(c). Under 42 Pa.C.S. § 9781(d), the appellate
courts must review the record and consider the
nature and circumstances of the offense, the
sentencing court’s observations of the defendant, the
findings that formed the basis of the sentence, and
the sentencing guidelines. The weighing of factors
under 42 Pa.C.S. § 9721(b) is exclusively for the
sentencing court, and an appellate court could not
substitute its own weighing of those factors. The
primary consideration, therefore, is whether the
court imposed an individualized sentence, and
whether the sentence was nonetheless unreasonable
for sentences falling outside the guidelines, or clearly
unreasonable for sentences falling within the
guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)
(alterations and some citations omitted and emphasis added).
This Court has held that
42 Pa.C.S.A. section 9721 affords the sentencing court
discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the
same time or to sentences already imposed. Any
challenge to the exercise of this discretion ordinarily does
not raise a substantial question. Commonwealth v.
Johnson, 873 A.2d 704, 709 n. 2 (Pa. Super. 2005); see
also Commonwealth v. Hoag, [ ] 665 A.2d 1212, 1214
([Pa. Super.] 1995) (explaining that a defendant is not
entitled to a “volume discount” for his or her
crimes).
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Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (some
citations omitted and emphasis added).
In Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013)
appeal denied, 91 A.3d 161 (Pa. 2014), this Court affirmed a judgment of
sentence of forty years, seven months’ to eighty-one years and two months’
incarceration for “forty counts of receiving stolen property, two counts of
burglary, two counts of criminal trespass, and one count each of possession
of a small amount of marijuana, possession of drug paraphernalia, and
unauthorized use of a motor vehicle.” Id. at 1267 (footnote omitted). This
Court opined that
a defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges
if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in
an excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a sentence
will not raise a substantial question. See Commonwealth
v. Moury, 992 A.2d 162, 171–172 (Pa. Super. 2010)
(“The imposition of consecutive, rather than concurrent,
sentences may raise a substantial question in only the
most extreme circumstances, such as where the aggregate
sentence is unduly harsh, considering the nature of the
crimes and the length of imprisonment.”)
Id. at 1270 (some citations omitted and second emphasis added).
Our Supreme Court has stated:
Where pre-sentence reports exist, we shall continue to
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and
weighed those considerations along with mitigating
statutory factors. A pre-sentence report constitutes the
record and speaks for itself. In order to dispel any
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lingering doubt as to our intention of engaging in an effort
of legal purification, we state clearly that sentencers are
under no compulsion to employ checklists or any extended
or systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not
be disturbed. This is particularly true, we repeat, in
those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion. . . .
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).
“[A] crime’s impact on the victim continues to be a significant element
of a sentencing judge's consideration . . . .” Commonwealth v.
Coulverson, 34 A.3d 135, 149-50 (Pa. Super. 2011). Furthermore, “it is
undoubtedly appropriate for a trial court to consider a defendant’s lack of
remorse as a factor at sentencing, provided that it is specifically considered
in relation to protection of the public, the gravity of the offense, and the
defendant’s rehabilitative needs.” Commonwealth v. Bowen, 975 A.2d
1120, 1125 (Pa. Super. 2009) (citation omitted).
At the sentencing hearing, the record reveals the following: Appellant
stipulated to the admission of the sexually violent predator assessment.
N.T., 1/29/15, at 3. Appellant’s counsel stated:
Your Honor, I’ve gone over this sexually violent
predator assessment with [Appellant] at the Wayne County
Correctional Facility this past weekend, in detail, and
discussed it again with him this morning and we have no
objection for the admission, or to the admission of the
sexually violent predator assessment dated January 19,
2015 and performed by Mary E. Muscari. It’s also part of
the pre-sentence investigation report, Your Honor.
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Id.C.W. testified at the sentencing hearing, inter alia, as follows:
. . . All of my life I’ve lived with the abuse no little girl
should ever have to live with. I’ll never know what it’s like
to have a normal childhood, or be a normal kid. I’ll never
know who I could’ve been, what I could’ve done. Instead
of having depression and ADD I could’ve been an outgoing
child with my new friends, maybe even a cheerleader; who
knows. I was four when it started. Who knows what I
could’ve been like? My brain wasn’t even fully formed and
now never will be. . . . I will never know what [it] is like to
feel safe, feel protected. I’ll never get those years back. .
. . With all that has happened to me the mental pain hurts
worse than the physical. . . . This experience has made
life hard on my family. It has mentally and physically hurt
me and my loved ones. . . . I take so many pills, at least
10 to 12, on a daily basis. Every day’s a struggle for me
and it shouldn’t have to be. The things I’ve experienced
affect the way I think on a daily basis. It has affected my
school life, my home, and my everyday life. My whole life
I have struggled in school until the rape stopped. When it
did, I became an honor roll student. . . . At home I get
very paranoid and I become extremely jumpy. My anxiety
goes up, all because the memories come and go. Some
days it’s a struggle to get out of bed and live among other
people. When I’m around others I feel judged. I feel
pitied. Always feeling like I have to watch out for myself
to make sure it’s safe. . . . I lost my innocence to that
man but he can’t take my strength away from me. He
took my innocence without my permission, so now I’ll take
his freedom away from him. I may never get that life I
should’ve lived. I will never be that person I used to be all
because of [Appellant].
Id. at 7-9. B.W. stated, inter alia, as follows:
What I can tell you, as I don’t know if and when I’ll ever
be able to trust anyone again. . . . All I know how to do is
push people away for the fear of being hurt again, whether
it be a relationship with a guy, my family members, or my
friends. . . . I feel like emotionally I am numb, and
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whenever someone does try to get close to me, I get this
feeling in my chest of coldness and I want to be as far
away from that person as possible. This has had a
particularly strenuous impact on the relationship I have
with my parents. Ever since the rape was disclosed all
they want to do [sic] me is hug me and shield me from all
of this when all I want to do is be left alone. . . . I’m
terrified of any guy going near me in a sexual way. . . . I
don’t like going anywhere. If I do, I find myself always
looking over my shoulder out of fear, fear that is
unexplainable. . . . When you’re little the world is all good
and perfect and no one can hurt you, and it was like that
for me for 8 years. After being raped, my world view has
totally changed. I no longer see the world as a safe and
fun but look like [sic] it as a war field.
Id. at 10-12. C.W. testified, inter alia, as followed:
. . . I don’t have anything written down or prepared for
today but this whole situation pretty much has had a great
effect on my life. I had to live with it up until I was 18
years old,[10] and then coming to find out that it now [sic]
10
At trial, C.W. testified:
[The Commonwealth]: At some point did you tell
somebody what was happening to you?
A: I did.
Q: When was that?
A: My senior year of high school, 2013, I told my cousin,
[C.].
Q: Would that be [C.K.]?
A: Yes.
Q: Tell us about that conversation?
A: We were in gym class in the locker room. We were
talking about something and all of a sudden she said she
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J.S54039/15
only happened to me, but my cousin’s too. It made me
feel like it was mainly my fault that all this happened
because I never spoke out about it, never told anybody.
Being raped at such a young age makes you feel like
there’s no one you can trust. I was on a soccer team
when I was 4 years old when the raping started, and my
coach was a male and I ended up not playing soccer
because I was afraid of my coach. There’s multiple things
I have been able to do, but at the same time I haven’t
been because I’ve been afraid of guys all of my life. I used
to think that I can turn to my family for trust and support
but there’s no one really you can trust but yourself.
Id. at 12.11
At sentencing, the trial court stated:
I’ve read every page of this pre-sentence report and,
again, it was very thorough . . . . I read the DA’s
sentencing memorandum, the sexual offender assessment
board assessment, the victim impact statements I had as
well.
* * *
Let me say something to the victims at this time . . . .
I’m sure you heard this said to you before but as Judge
had to tell me something and I was like, okay, you can tell
me. And she said how [Appellant] had raped her and
[B.M.] And I looked at her and I was like, he did the same
thing to me . . . .
* * *
A: She asked why I didn’t tell and I told her because I was
afraid nobody would believe me and she said that she felt
the same way.
N.T., 11/12/14, at 10-11.
11
Only three of the four victims were present at the sentencing hearing. Id.
at 14.
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J.S54039/15
I’m saying it to you. None of this was your fault; none of
it. And I appreciate your courage to come forward, and
your courage here again today.
Anybody doubts that there’s evil in the world, this ought
to convince you otherwise. I was struck not only by the
horrendous, despicable, disgusting criminal activities of
[Appellant], but also . . . about the way you used violence
to inflict your will upon these young people. Why, why any
man would take a 4 year old child and do this to her is
beyond human understanding. And then they had the
courage to come forward today, and I looked at you as
they were giving their accounts, and you had the audacity,
the audacity, to look through your paperwork as they were
pouring their hearts out to everybody here in this
courtroom. . . .
Id. at 13-15.
We find no relief is due. In the case sub judice, the court considered,
inter alia, the presentence investigation report and the victim impact
statements. See Devers, 546 A.2d at 18; Coulverson, 34 A.3d at 149-50.
The court noted Appellant’s lack of remorse. See Bowen, 975 A.2d at
1125. We find no abuse of discretion in the imposition of consecutive
sentences. See Dodge, 77 A.3d at 1270; Marts, 889 A.2d at 612. The
court considered the gravity of the offenses. See Bricker, 41 A.3d at 875.
We discern no abuse of discretion by the trial court in the imposition of
sentence. See id. at 875-76.
Judgment of sentence affirmed.
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J.S54039/15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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IN THE COURT OF COMMON PLEAS OF THE 22ND JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF WAYNE \
COMMONWEALTH OF PENNSYLVANIA, :
vs.
CRIMINAL DIVISION
G .. F.Ktlml,
Defendant NO. 466-CR-2013
STATEMENT OF REASONS
On November 12, 2014, following a trial by jury, Defendant, Gllf Ke was found guilty
of seven (7) counts of Rape of a Child, two (2) counts of Involuntary Deviate Sexual Intercourse
with a Child; one (1) count of Aggravated Indecent Assault, and one (1) count of Corruption of
Minors. On January 29, 2015, Defendant was sentenced to undergo incarceration in a State
Correctional Facility for a period of 600 months (50 years) to 1,212 months (101 years). Presently,
Defendant appeals from this sentence.
Following Defendant's sentencing, Defendant filed a Motion for Post-Trial Relief.
Defendant filed the motion in the form of: (1) a Motion for Judgment of Acquittal, (2) a Motion in
Arrest of Judgment, (3) a Motion for New Trial, (4) a Motion to Modify Sentence, and (5) a Motion
for Transcription, Production and Circulation of the Notes of Testimony. On February 12, 2015,
this Court granted Motion 5 and denied Motions 1, 2, 3, and 4. Presently, Defendant appeals from
this order.
Sentencing Order
As stated previously, Defendant was sentenced to undergo incarceration in a State
Correctional Facility for a period of 600 months (50 years) to 1,212 months (IO 1 years). It is argued
I
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that this sentence is "utterly harsh and oppressive." Defendant's Concise Statement of Matters
Complained of on Appeal, paragraph
>
30. Defendant requests that the sentences imposed be \
modified to nm concurrently with any and all other sentences imposed by this Court.
It has long been established that the imposition of sentence rests solely within the broad
discretion of the sentencing judge. Conunonwealth v. Williams, 317 A.2d 250, 251 (1974). It is
equally well-settled that an appellate court will not find an abuse of that broad discretion, providing
that the sentence is within statutory limits, unless the sentence imposed is so manifestly excessive
as to inflict too severe a punislunent. Commonwealth v. Person, 297 A.2d 460, 462 (1972). The
imposition of a concurrent or consecutive sentence for multiple convictions also rests within the
discretion of the sentencing judge, unless the sentence imposed is so manifestly excessive as to
inflict too severe a punislunent. Commonwealth v. Norris, 375 A.2d 122, 124 (Pa. Super. 1977).
Rape, being a felony of the first degree ( 18 Pa. C.S.A. § 3121 ), is punishable by a maximum
sentence of twenty (20) years imprisonment. 18 Pa. C.S.A. § 1103(1 ). In the present case,
Defendant was convicted by a jury of seven (7) counts of Rape of a Child. Involuntary Deviate
Sexual Intercourse, being a felony of the first degree (18 Pa. C.S.A. § 3123(b)), is punishable by a
maximum sentence of twenty (20) years imprisonment. 18 Pa. C.S.A. §· 1103(1). In the present
case, Defendant was convicted by a jury of two (2) counts of Involuntary Deviate Sexual
Intercourse with a Child. Aggravated Indecent Assault, being a felony of the second degree (18
Pa. C.S.A. § 3125(7)), is punishable by a maximum sentence of ten (10) years imprisonment. 18
Pa. C.S .A. § 1103(2). In the present case, Defendant was convicted by a jury of one (1) count of
Aggravated Indecent Assault. Corruption of Minors, being a misdemeanor of the first degree (18
Pa. C.S.A. § 6301 (a)(!)), is punishable by a maximum sentence of five (5) years imprisonment.
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18 Pa. C.S.A. § 1104(1). In the present case, Defendant was convicted by a jury of one (1) count
\
of Corruption of Minors.
Defendant's sentence to undergo incarceration in a State Correctional Facility for a period
of 600 months (50 years) to 1,212 months (101 years) is well within the statutory limits.
\
Furthermore, this Court does not find the sentence imposed to be so manifestly excessive as to
inflict too severe a punishment. Through the use of force and threats, the Defendant, over the
course of several years, used four (4) young members of his family for his own sexual gratification.
The emotional scarring the Defendant has inflicted upon the lives of these four ( 4) young ladies
will never fully heal.
Motion for Judgment of Acquittal
As stated previously, this Court denied Defendant's Motion for Judgment of Acquittal. It
is argued that the testimony and evidence presented by the Commonwealth was insufficient to
sustain the underlying jury verdict; therefore, Defendant should be acquitted of all charges. In
reviewing the sufficiency of the evidence:
We must view the evidence presented and all reasonable inferences taken therefrom in the
light most favorable to the Commonwealth, as verdict winner. The test is whether the
evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.
Commonwealth v. Davis, 799 A.2d 860, 864-65 (Pa. Super. 2002). "The facts and circumstances
established by the Commonwealth need not be absolutely incompatible with the defendant's
innocence, but the question of any doubt is for the trier of fact unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be drawn from the combined
circumstances." Id. at 866.
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I. Rape of a Child
Defendant was convicted by a jury of seven (7) counts of Rape of a Child. The relevant \
statutory provision governing this offense provides: "A person commits the offense of rape of a
child, a felony of the first degree, when the person engages in sexual intercourse with a
complainant who is less than 13 years of age." 18 Pa. C.S.A. § 3121 ( c;. "Penetration, however
slight, with the penis is necessary to establish the element of sexual intercourse." Commonwealth
v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008). "A rape victim's uncorroborated testimony to penal
penetration is sufficient to establish sexual intercourse and thus support a rape conviction." Id .. '
Under Count # 1, a jury found that from August 15, 2006 to August 14, 2007, Defendant
raped his eight (8) year old niece, C.. K1II (hereinafter "C .. '). C- testified in relevant
part as to what occurred when she was an eight (8) year old little girl:
Q: You said when you turned 8 something changed, correct?
A: Correct.
Q: What happened?
A: It was night time and G .. K., I was laying in my bed and he walked into my room,
he shut the door and locked it and he pushed me down on the bed, which wasn't hard since
I was already laying down for bed. He pushed me down on the bed, held my arms down
and he stuck his penis in my vagina.
N.T. Trial, 11/10/2014, at 6-7.
Here, the jury obviously found C .. testimony credible and chose not to believe
Defendant's version of the events. It was within the province of the jury as fact-finder to resolve
all issues of credibility, resolve conflicts in evidence, make reasonable inferences from the
evidence, believe all, none, or some of the evidence, and ultimately adjudge Defendant guilty. This
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••
Court does not find the evidence to be weak and inconclusive. C9I testified that she was less
than 13 years of age when Defendant penetrated her vagina with his penis. Therefore, the evidence.
is sufficient to prove guilt beyond a reasonable doubt.
Under Counts #2, #3, #4, and #5, a jury found that from August 15, 2007 to August 14,
2011, Defendant raped his niece, C- on four (4) other separate occasions. c• testified in
relevant part as to what transpired as she grew up from an eight (8) year old little girl to a thirteen
( 13) year old young lady:
Q: How often did it happen?'
A: The same, once a month, once every two weeks.
Q: And was it always in your bedroom?
A:No.
Q: Where else did it happen?
A: The pull-out couch.
N.T. Trial, 11/10/2014, at 8.
Q: Let's put it this way, C- did he move out the first time after he began to rape you72
A: Yes.
Q: So, it was after you were 8 years old?
A: Yes.
Q: And do you k.1101,,v where the defendant moved?
A: Down here in Honesdale, I passed it today going to Dunkin.
Q: When the defendant moved to Honesdale, did he continue to rape you?
I
The ADA's question is referring to the first incident when Defendant penetrated C-s vagina with his penis.
2
Here, the ADA is establishing a timeline. Defendant was living in (9's family home when the first incident
occurred.
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A: Yes.
N.T. Trial, 11/10/2014, at 9~ 10.
Q: Let's talk about G•'s house in Honesdale; where would it happen there?
A: It would happen in the living room on the couch or on the floor.
N.T.Trial,11/10/2014, at 10.
Q: Approximately, how many times did the defendant rape you on that couch, or on the
floor next to the couch, in Honesdale?
A: Until he moved out again back into my house and still raped me.
N.T. Trial, 11/10/2014, at 12.
Q: So, you don't exactly know how old you guys were?3
A: No, I'm sorry, everything kind of mixes because it happened so much.
Q: Okay, so on this day when you guys are playing Truth or Dare the game begins, correct?
A: Correct.
N.T. Trial, 11/10/2014, at 13.
Q: At some point did the game change?
A: Yes.
Q: What happened?
A: He dared B•• to touch his penis.
Q: And did she do that?
A: She did.
Q: Did you see her do that?
A: Yes, l did.
3
The ADA's question is referring to an incident that occurred after the Defendant moved from his Honesdale home
back into c••s family home.
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••
N.T. Trial, 11/10/2014, at 13.
Q: And then what happened?
A: After that it started getting worse and he dared us to get on the bed and after we got on
the bed he dared us to lay down and he stuck his penis in me and B•t ••t It was a dare
once for me and a dare twice for B••· twice for rue, three times for B••· three for
me and it went back and forth like that. She tried fighting, which was silly of her and he
smacked her, but she tried.
N.T. Trial, 11/10/2014, at 15.
Q: At what point did the defendant move out of your house?
A: When I was 13.
Q: And is that when he stopped raping you?
A: Yes.
N.T. Trial, 11/10/2014, at 19.
Here, once again, the jury found CA's testimony credible and chose not to believe
Defendant's version of the events. It was within the province of the jury as fact-finder to resolve
all issues of credibility, resolve conflicts in evidence, make reasonable inferences from the
I~
evidence, believe all, none, or some of the evidence, and ultimately adjudge Defendant guilty. This
Court does not find the evidence to be weak and inconclusive. c• specifically testified that she
was less than 13 years of age when Defendant raped her: (1) on the pull-out couch in c•'s
family home, (2) on the Defendant's couch in Honesdale, (3) on the Defendant's floor in
Honesdale, and ( 4) on C-'s bed during "Truth or Dare." Therefore, the evidence is sufficient to
prove guilt beyond a reasonable doubt.
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Under Count #12, a jury found that from July 6, 2006 to December 25, 2007, Defendant I
\
,
raped his brother's nine (9) year old sister-in-law, B t Sli M... (hereinafter "B ").
B testified in relevant part as to what occurred when she was a nine (9) year old little girl:
A: We were playing Truth or Dare and it was innocent like stuff, to embarrass each other
and G.. got involved and it turned sexual.
Q: Do you remember about how old you were at this time?
A: Um, around 9.
N.T. Trial, 11/10/2014, at 48-49.
Q: Alright, tell us what happened.
A: G.. , I don't remember exactly in what order everything happened, but I do remember
being dared to put my mouth on his penis.
Q: And did you do that?
A: Yes.
Q: Go on.
A:He dared me and C- to, I don't exactly remember if it was a dare or not, but I do
remember him going back and forth between us putting, like, his penis in us.
N.T. Trial, 11/10/2014, at 49-50.
Here, the jury obviously found Bf R's testimony credible and chose not to believe
Defendant's version of the events. It was within the province of the jury as fact-finder to resolve
all issues of credibility, resolve conflicts in evidence, make reasonable inferences from the
evidence, believe all, none, or some of the evidence, and ultimately adjudge Defendant guilty. This
Court does not findthe evidence to be weak and inconclusive. B••• testified that she was less
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r··,
\
than 13 years of age when Defendant penetrated her vagina with his penis. Therefore, the evidence
is sufficient to prove guilt beyond a reasonable doubt.
Under Counts l-l, a jury found that from July 25, 2000 to February 13, 2003, Defendant
year old niece, Ccmlll w41z••tt(hereinafter "C-").
raped his five (5) C... testified in
relevant part as to what occurred when she was a five (5) year old little girl:
Q: At some point did something happen between you and your Uncle Gary?
A: Yes.
Q: How old were you?
A: I was about five years old.
Q: Tell us what happened?
A: I was in my playroom down in the basement playing with my toys and he came
downstairs and told me to follow him to my room. I followed him and he locked the door
behind us. He took off his pants and pulled his penis out and laid on my bed and told me
to come here and he put me on top of him.
N.T. Trial, 11/12/2014, at 5.
Q: C-did this ever happen to you again?
A: Yes.
Q: About how often did it happen to you?
A: About one or two times a week?
Q: For how long?
A: Three years.
N.T. Trial, 11/12/2014, at 6.
Q: What did he do when you were on his lap?
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A: He would face me away from him and he would penetrate me.
Q: With his penis?
A: Yes.
N.T. Trial, 11/12/2014, at 8.
Q: At some point does the defendant stop doing this to you? \
A: Yes.
Q: How old were you?
A: Eight years old.
N.T. Trial, 11/12/2014, at 10.
Here, the jury obviously found C...... 's testimony credible and chose not to believe
Defendant's version of the events. It was within the province of the jmy as fact-finder to resolve
all issues of credibility, resolve conflicts in evidence, make reasonable inferences from the
evidence, believe all, none, or some of the evidence, and ultimately adjudge Defendant guilty. This
Court does not find the evidence to be weak and inconclusive. CGIII" testified that she was less
than 13 years of age when Defendant penetrated her vagina with his penis. Therefore, the evidence
is sufficient to prove guilt beyond a reasonable doubt.
II. Involuntary Deviate Sexual Intercourse with a Child
Defendant was convicted by a jury of two (2) counts of Involuntary Deviate Sexual
Intercourse with a child. The relevant statutory provision governing th.is offense provides: "A
person commits involuntary deviate sexual intercourse with a child, a felony of the first degree,
when the person engages in deviate sexual intercourse with a complainant who is less than 13
years of age." 18 Pa. C.S.A. § 3 l 23(b ). Deviate sexual intercourse is considered to have occurred
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if"the perpetrator engaged in acts of oral or anal intercourse, which involved penetration however
\
slight." Commonwealth v. L.N., 787 A.2d 1064, 1070 (Pa. Super. 2001 ).
Under Count #6, a jury found that from August 15, 2006 to August 14, 2007, Defendant
engaged in involuntary deviate sexual intercourse with his niece, C..- C41111testified in relevant
part:
A: After she does that it's my turn and he dares me to touch his balls and after that it was
oral. He asked B to lick his penis and then there was time when he said lick his balls,
suck on his penis, that stuff.
Q: Did you do that?
A: Yes.
Q: Did you see B•• do that?
A: Yes.
N.T. Trial, 11/10/2014, at 15.
Q: Now, the second Christmas incident, and Ithink there were two; is that correct?
A: That's correct.
Q: Occurred when?
A: When I was 8 or 9 with Be & um, 9 and 11 I don't know. 8/9, 9/10 could be either.
N.T. Trial, 11/10/2014, at 25.
Here, the jury obviously found c•·s testimony credible and chose not to believe
Defendant's version of the events. It was within the province of the jury as fact-finder to resolve
all issues of credibility, resolve conflicts in evidence, make reasonable inferences from the
evidence, believe all, none, or some of the evidence, and ultimately adjudge Defendant guilty. This
Court does not find the evidence to be weak and inconclusive. c• testified that she was less
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t:
('\
than 13 years of age when Defendant penetrated her mouth with his penis. Therefore, the evidence
is sufficient to prove guilt beyond a reasonable doubt.
Under Count # 13, a jury found that from July 7, 2006 to December 15, 2007, Defendant
engaged in involuntary deviate sexual intercourse with his brother's .sister-in-Iaw, BBiim••
B testified in relevant part:
A: We were playing Truth or Dare and it was innocent like stuff to embarrass each other -,
and G• got involved and it turned sexual.
Q: Do you remember about how old you were at this time?
A: Um, around 9.
N.T. Trial, 11/10/2014, at 48-49.
Q: Alright, tell us what happened.
A: o-,, I don't remember exactly in what order everything happened, but I do remember
being dared to put my mouth on his penis.
Q: And did you do that?
A: Yes.
N.T. Trial, 11/10/2014, at 49-50.
Here, the jury obviously found B••iWts testimony credible and chose not to believe
Defendant's version of the events. It was within the province of the jury as fact-finder to resolve
all issues of credibility, resolve conflicts in evidence, make reasonable inferences from the
evidence, believe all, none, or some of the evidence, and ultimately adjudge Defendant guilty. This
Court does not find the evidence to be weak and inconclusive. BD••testified that she was less
than 13 years of age when Defendant penetrated her mouth with his penis. Therefore, the evidence
is sufficient to prove guilt beyond a reasonable doubt.
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III. Aggravated Indecent Assault
I
Defendant was convicted by a jury of one (1) count of Aggravated Indecent Assault. The '-
· relevant statutory provision governing this offense provides: "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.l (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 the complainant is less than 13 years of age." 18 Pa. C.S.A.' §
3125(7).
Under Count # 11, a jury found that Defendant committed Aggravated Indecent Assault
against his niece, C41111 C ... testified in relevant part:
Q: Did the defendant ever put his fingers inside your vagina?
A: Yes.
Q: When did that happen?
A: Normally, every time before he raped me.
N.T. Trial, 11/10/2014, at 7.
Q: At what point did the defendant move out of your house?
A: When I was 13.
Q: And is that when he stopped raping you?
A: Yes.
N. T. Trial, 11/10/2014, at 19.
Here, the jury obviously found C-'s testimony credible and chose not to believe
Defendant's version of the events. It was within the province of the jury as fact-finder to resolve
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all issues of credibility, resolve conflicts in. evidence, make reasonable inferences from the
evidence, believe all, none, or some of the evidence, and ultimately adjudge Defendant guilty. This \
Court does not find the evidence to be weak and inconclusive. C-testified that she was less
than 13 years of age when Defendant penetrated her vagina with his fingers. No good faith medical,
hygienic or law enforcement purpose existed because C- testified that he would penetrate her
with his fingers before raping her. Therefore, the evidence is sufficient to prove guilt beyond a
reasonable doubt.
IV. Corruption of Minors
Defendant was convicted by a jury of one (1) count of Corruption of Minors. The relevant
statutory provision governing this offense provides: "whoever, being of the age of 18 years and
upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age,
or who aids, abets, entices or encourages any such minor in the commission of any crime, or who
knowingly assists or encourages such minor in violating his or her parole or any order of court,
commits a misdemeanor of the first degree." 18 Pa. C.S.A. § 6301(a)(l). "In deciding what conduct
can be said to corrupt the morals of a minor, the common sense of the community, as well as the
sense of decency, propriety and the morality which most people entertain is sufficient to apply the
statute to each particular case, and to individuate what particular conduct is rendered criminal by
it." Commonwealth v. Slocum, 86 A.3d 272, 277 (Pa. Super. 2014).
Under Count #15, a jury found that Defendant committed Corruption of Minors. Vb 2
Ktll (hereinafter "V--"), who was thirteen (13)years old on the day of trail, testified in
relevant part:
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- ~ ~ ~_,.,,.-.,'.WO.~--~-~------ ~v --
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A: We were playing Truth or Dare, it was all innocent and G•was in there playing my
I
I
Nintendo Gameboy and he was beating a level for me and then he started playing and it
went all wrong.
Q: Do you remember about how old you were at the time?
A: Not exactly, but I would say about 6 or 7.
N.T. Trial, 11/10/2014, at 63-64.
Q: Tell us why the game went all wrong.
A: Because then he started daring us to do inappropriate stuff.
Q: Who's he?
Q: Do you remember the first inappropriate dare?
A: Touch his wiener.
Q: Do you remember who he dared to touch his wiener?
A:B• I andC ..
Q: Did they touch his wiener?
A: Yes.
Q: Did you see them do that?
A: Yes.
N.T. Trial, 11/10/2014, at 64.
Q: Did you go to your bed?
A: Yes.
Q: Is that in the same room as where the Truth or Dare game was going on?
A: Yes.
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Q: Did you keep your eyes open?
A: For most of the part.
Q: Tell us what you saw.
A: I saw C-and BIC.- -put their mouth and touch GW's wiener.
Q: Did you see anything else?
A:No.
Q: At some point did you close your eyes.
A: Yes.
N.T. Trial, 11/10/2014, at 65.
Q: At some point after that did something else happen with G•?
A: Yeah.
Q: About how old were you?
A: I don't know exactly, but about 11.
Q: Okay and tell us what happened that time.
A: I was sleeping over at his house, me and my brother 131111 and my cousin and my
brother woke me up and I tried to get them in trouble and went into my uncle's room and
told him and he picked up the blankets and said come on, so I got into the bed with him
and when I laid down he started rubbing my crotch.
N.T. Trial, 11/10/2014, at 66.
Here, the jury obviously found V .... 's testimony credible and chose not to believe
Defendant's version of the events. It was within the province of the jury as fact-finder to resolve
all issues of credibility, resolve conflicts in evidence, make reasonable inferences from the
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evidence, believe all, none, or some of the evidence, and ultimately adjudge Defendant guilty. This
Court does not find the evidence to be weak and inconclusive.
According to v• I 's testimony, she was less than 18 years of age because the first
incident occurred when she was six ( 6) or seven (7), and the second incident occurred when she
was eleven (11). v••was born September 8, 2001 (N.T. Trial, 11/10/2014, at 62); therefore,
the first incident would have occurred in 2007 or 2008, and the second incident would have
occurred in 2012. Defendant was born June 13, 1982 (N.T. Trial, 11/12/2014, at 57); therefore, he
was of the age of 18 years and upwards when both incidents occurred. Based on the common sense
of the community, as well as the sense of decency, propriety and morality which most people
entertain, Defendant corrupted the morals ofv••t.. (1) when Defendant had sexual contact with
c-.and B••-• in the presence of Vi... and (2) when Defendant rubbed the vaginal area
ofV"( I . Therefore, the evidence is sufficient to prove guilt beyond a reasonable doubt.
Motion in Arrest of Judgment
As stated previously, this Court denied Defendant's Motion in Arrest of Judgment. It is
argued that the testimony and evidence presented by the Commonwealth rendered a jury verdict
that was against the clear weight of the evidence; therefore, Defendant's motion should have been
granted. "[T]he assertion that the verdict is against the weight of the evidence is not a proper
consideration in passing on a motion inanest of judgment. .. " Commonwealth v. Kirkman, 399
A.2d 720, 722 (Pa. Super. 1979). The proper standard to be used in deciding the motion is as
follows:
Whether accepting all of the evidence and all reasonable inferences therefrom, upon which,
if believed, it would be nonetheless insufficient in law to find beyond a reasonable doubt
that the appellee is guilty of the crime charged.
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Id. For the reasons set forth in the previous. section, the Commonwealth presented sufficient
evidence to find beyond a reasonable doubt that Defendant is guilty of the crimes charged.
Motion for New Trial
As stated previously, the Court denied Defendant's Motion for Nfw Trial. It is argued that
the testimony and evidence presented by the Commonwealth rendered a jury verdict that was
against the clear weight of the evidence; therefore, Defendant's Motion for New Trial should have
been granted.
A motion for new trial on grounds that the verdict is contrary to the weight of the evidence
concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless,
that the verdict is against the weight of the evidence. Whether a new trial should be granted
on grounds that the verdict is against the weight of the evidence is addressed to the sound
discretion of the trail judge, and his decision will not be reversed on appeal unless there
has been an abuse of discretion. The test is not whether the court would have decided the
case in the same way but whether the verdict is so contrary to the evidence as to make the
award of a new trial imperative so that right may be given another opportunity to prevail.
Davis, at 865 (Pa. Super. 2002).
The jury in this case listened to four (4) young ladies recount how the Defendant took the
innocence of childhood away from them. According to Defendant's testimony, all four (4) of these
young ladies are liars. The reason he provided was that they were upset with him over a physical
altercation that took place between him and his brother, I91K:!119 N.T. Trial, 11/12/2014, at 88.
Defendant testified that the fight started because B... was drunkenly beating his wife. N.T. Trial,
11/12/2014, at 110. According to the Defendant, c• v.._..and witnessed the altercation and
did not understand that he was trying to defend their mother. N.T. Trial, 11/12/2014, at 88, 106.
The jury obviously did not find Defendant's reason to be credible. This Court agrees with the jury
and does not find the verdict so contrary to the evidence as to make the award of a new trial
imperative.
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)
BY THE COURT
DATE: ~n I.J;--+-7-f-1-f --+-~-4--;+-~-
cc: Richard B. Henry> Esq.
District Attorney
KP
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