In Re: Adoption of: J.M.A., a Minor ( 2017 )

J-S65045-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
BRIAN CHARLES WINTER, :
:
Appellant : No. 3545 EDA 2016
Appeal from the Judgment of Sentence October 14, 2016
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0006660-2014
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 21, 2017
Brian Charles Winter (“Winter”) appeals from the judgment of sentence
imposed following his convictions of two counts each of corruption of minors
and indecent assault (complainant less than 16 years of age).1 We affirm.
In its Opinion, the trial court set forth the relevant factual and procedural
background, which we adopt for the purpose of this appeal. See Trial Court
1
See 18 Pa.C.S.A. §§ 6301(a)(1)(ii), 3126(a)(8).
J-S65045-17
Opinion, 5/1/17, at 1-9.2
On appeal, Winter raises the following issues for our review:
1. Was the verdict against the weight and sufficiency of the
evidence where the Commonwealth did not meet its burden of
proof to establish a course of conduct for the two (2) counts of
corruption of minors, as the night in question was not a “course
of conduct[]” [because] both alleged victims testified that the
allegations of the night in question were an isolated event and
not a course of conduct[,] which is an essential element of 18
Pa.C.S.A. § 6301[(a)(1)(ii)]?
2. Was the verdict against the weight and sufficiency of the
evidence where the Commonwealth did not meet its burden of
proof that there was indecent contact[,] as required for the two
(2) counts of indecent assault of a person less than 16 years of
age under 18 Pa.C.S.A. §[]3126[(a)(8)], where the girls’
testimony was directly in conflict with each other and with their
own prior recorded statements, and where the girls did not
establish any actual indecent contact?
3. Was the verdict against the weight and sufficiency of the
evidence where the testimony of the alleged victims was so in
conflict with each other, and with their own prior recorded
statements, that the same cannot be the grounds for guilt
beyond a reasonable doubt on any of the charges?
4. Did the trial court abuse its discretion and/or err as a matter of
law by precluding [Winter’s] expert from interviewing victim
K.J., notwithstanding that the same is required by the code of
ethics governing experts testifying to psychiatric matters, and
2
As noted by the trial court in its Opinion, Winter’s Concise Statement of
matters complained of on appeal was untimely. See Trial Court Opinion,
5/1/17, at 9 n.1. While we could find waiver based on the untimeliness of the
Concise Statement, we decline to do so, as the trial court addressed Winter’s
issues. See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super.
2012) (declining to find waiver because the trial court had addressed the
issues raised in the untimely concise statement); see also Commonwealth
v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc) (holding that
“[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial
court has addressed those issues[,] we need not remand and may address the
merits of the issues presented.”).
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by limiting the expert testimony to such a degree that
[Winter’s] expert was incapable of ethically rendering an expert
opinion to a reasonable degree of medical certainty at trial?
5. Did the trial court abuse its discretion and/or err as a matter of
law by excluding from evidence the Facebook profile of victim
M.M., which showed a strikingly different persona of the victim
than what was presented at court, as well as excluding a
specific photograph/post posted on the Facebook profile of one
of the victims, M.M., shortly before her testimony at trial,
directly indicating that she would cover up a crime scene for a
friend[?]
Brief for Appellant at 4-5 (some capitalization omitted).
In his brief, Winter combines his sufficiency of the evidence and weight
of the evidence arguments, as raised in his first three issues, with respect to
each of his convictions.3 However, sufficiency of the evidence claims are
distinct from weight of the evidence claims, as there are different standards
of review, as well as separate remedies. See Commonwealth v. Birdseye,
637 A.2d 1036, 1039 (Pa. Super. 1994).
[O]ur standard of review of sufficiency claims requires that
we evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. 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. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. [T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant’s innocence. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
3
Pursuant to Pa.R.A.P. 2119, Winter was required to divide his argument “into
as many parts as there are questions to be argued ….” Pa.R.A.P. 2119(a).
Although Winter failed to follow Rule 2119 by combining his first three issues
in the Argument section of his brief, we decline to find waiver.
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and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations
and quotation marks omitted).
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 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.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal
citations omitted).
“[W]hile a challenge to the sufficiency of the evidence can be legally
distinguished from a challenge to the weight of the evidence, where the
evidence is legally sufficient, it generally meets the test for weightiness.”
Commonwealth v. Shaffer, 722 A.2d 195, 200 (Pa. Super. 1998).
With regard to Winter’s corruption of minors convictions, he contends
that, under 18 Pa.C.S.A. § 6301(a)(1)(ii), the Commonwealth was required to
prove that he engaged in a “course of conduct” comprised of more than one
act. Brief for Appellant at 15. Winter asserts that, because both girls testified
that “this was an isolated act, which had not happened before, the
Commonwealth has not established a pattern of conduct sufficient to support
a conviction under this statute.” Id. at 16.
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Winter’s argument addresses only his claim that the evidence was
insufficient to support his corruption of minors convictions.4 In its Opinion,
the trial court addressed Winter’s challenge to the sufficiency of the evidence
supporting his convictions of corruption of minors, set forth the relevant law,
and determined that the challenge lacks merit. See Trial Court Opinion,
5/1/17, at 10-12. We agree with the reasoning of the trial court, and affirm
on this basis at to Winter’s challenges to the weight and sufficiency of the
evidence supporting his convictions of corruption of minors. See id. at 10-
12.
With regard to Winter’s indecent assault convictions, he contends that
“there were numerous inconsistencies in the trial testimony of both alleged
victims, as well as their prior statements.” Brief for Appellant at 16. Winter
asserts that K.J. told police that they “went on an adventure and [Winter] let
them drive his car,” but claims that M.M. “expressly denies ever even going
to the parking lot[,] and says when they asked to drive his car[,] he said it
was not a good idea.” Id. Winter further argues that, whereas M.M. stated
4
In his brief, Winter makes no argument regarding his claim that his
corruption of minors convictions are against the weight of the evidence.
Accordingly, this issue is waived. See Pa.R.A.P. 2119(a) (stating that the
parties’ briefs must include a discussion of each question raised on appeal and
a “citation of authorities as are deemed pertinent.”); see also
Commonwealth v. Murchinson, 899 A.2d 1159, 1160 (Pa. Super 2006)
(deeming appellant’s claims waived under Pa.R.A.P. 2119(a) because he did
not develop meaningful argument with specific references to relevant caselaw
and to the record to support his claims). Even if Winter had not waived this
issue, we would have concluded that it lacks merit for the reasons expressed
by the trial court in its Opinion. See Trial Court Opinion, 5/1/17, at 13-15.
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J-S65045-17
that he had touched K.J.’s vaginal area, K.J. stated that “he only humped her
leg.” Id. Winter claims that these inconsistencies “make it impossible for a
jury to glean the truth, and his conviction is a shock to one’s sense of justice.”
Id. at 17 (emphasis in original).
Winter’s argument addresses only his claim that his indecent assault
convictions are against the weight of the evidence.5 The trial court addressed
Winter’s challenge to the weight of the evidence supporting his indecent
assault convictions, set forth the relevant law, and determined that the
challenge lacks merit. See Trial Court Opinion, 5/1/17, at 13-15. We agree
with the reasoning of the trial court, and affirm on this basis at to Winter’s
challenges to the weight of the evidence supporting his indecent assault
convictions. See id. at 13-15.
In his fourth issue, Winter contends that the trial court erred by denying
his request that K.J. submit to an independent psychiatric evaluation by
Winter’s expert. Brief for Appellant at 18. Winter asserts that, after reviewing
K.J.’s psychiatric records, his expert concluded that “K.J. was either severely
delusional, or had been embellishing her psychiatric symptoms and misleading
her treating physicians for several years.” Id. Winter argues that he sought
5
In his brief, Winter makes no argument regarding his claim that the evidence
was insufficient to support his indecent assault convictions. Accordingly, this
issue is waived. See Pa.R.A.P. 2119(a); see also Commonwealth v.
Murchinson, supra. Even if Winter had not waived this issue, we would have
concluded that it lacks merit for the reasons expressed by the trial court in its
Opinion. See Trial Court Opinion, 5/1/17, at 12-13.
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to present expert testimony that K.J. was incompetent to testify at trial. Id.Winter claims that, even if K.J. “was determined to be competent to testify,
the expert opinion sought would have been highly probative impeachment
evidence.” Id. Winter contends that, as a result of the trial court’s ruling, he
“was stripped of the opportunity to introduce probative and crucial information
which may have seriously impacted the verdict ….” Id. at 18-19.
In its Opinion, the trial court addressed Winter’s fourth issue, set forth
the relevant law, and determined that the issue lacks merit. See Trial Court
Opinion, 5/1/17, at 15-16. We agree with the reasoning of the trial court, and
affirm on this basis as to Winter’s fourth issue. See id.
In his fifth issue, Winter contends that the trial court abused its
discretion by precluding him from introducing into evidence numerous
Facebook postings by M.M. Brief for Appellant at 19. Winter asserts that the
postings “taken as a whole, showed a vastly different person than the victim
purported to be on the stand.” Id. Winter claims that “[p]ortraying such a
different image on the stand versus social media is, in itself, a form of
deception and relevant for jury consideration.” Id. Winter argues that the
postings were not barred by the Rules of Evidence, were more probative than
prejudicial, and that it was manifestly unreasonable for the trial court to
exclude them. Id.
In its Opinion, the trial court addressed Winter’s fifth issue, set forth the
relevant law, and determined that the issue lacks merit. See Trial Court
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Opinion, 5/1/17, at 16-18. We agree with the reasoning of the trial court, and
affirm on this basis as to Winter’s fifth issue. See id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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Circulated 11/03/2017 03:15 PM
IN THE COURT OF COMM N PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
6660-14
v.
BRIAN WINTER
OPINION
Mallon, J Filed: 5-f-f 7
Appellant Brian Winter ppeals to the Superior Court from the Judgment of Sentence
entered by this Court on October 14, 2016. The nature and history of the case are as follows:
Nature and History of the Case
Following a two day tri 1, the Appellant was convicted of two counts of corruption of
minors, each a felony of the third degree, and two counts of indecent assault, each a
misdemeanor of the second degr e.
At trial the Commonwe 1th produced evidence that established that on the evening of
August 11, 2014, the victims in t is case, M.M., a female of 14 years of age, and K.J, a female of
14 years of age, were invited to the Appellant's home to drink alcohol. While in his home, the
Appellant did the acts leading to is conviction. It was established the Appellant, prior to the date
of the incident, had a rapport wit K.J. N.T., 6/29/16, p. 124. Earlier that day, M.M. and K.J. had
spent the afternoon at "the trestl ", a creek in the area of Drexel Hill and Clifton Heights, where
they went swimming with friend . Id. at 34. While they were swimming, the Appellant arrived in
his car. The Appellant had a yo ng child along with him and he approached the girls and spoke
to K.J. Id. at 36. At the conclusi n of their discussion, the girls and the Appellant made plans to
convene later at the Appellant's ouse and drink alcohol. Id. at 123. The Appellant told the girls
that he would get the alcohol for hem. Id. at 37-38, 125.
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K.J. left with the Appel ant in his car and they dropped off the young child while M.M.
went home to get a change of cl thes. Id. at 128-29. About an hour later, the Appellant and K.J.
picked up M.M. and they went o get alcohol. The Appellant purchased Four Loko beer. Id. at
128-34. Afterward, the three ret ed to the Appellant's home, where there were also three small
children and two adults present. Id. at 134. M.M. and K.J. played with the children for a short
while, and then went out to the ack deck to smoke cigarettes. Id. at 135. The Appellant poured
the beer into plastic cups and t e girls drank them on the back deck. Id. at 46, 135-37. Both
M.M. and K.J. testified that the eer made them feel intoxicated.
Eventually the small ch ldren and two adults went to bed and M.M., K.J., and the
Appellant left the deck and wen to the living room and watched some television. Id. at 49-50.
Later the girls told the Appella that they were ready for bed and the Appellant said that they
could sleep upstairs in his bedro m. Id. at 51. The Appellant told the girls that he wanted to sleep
on the couch in the living room. Id. When M.M. couldn't make it up the stairs on her own, the
Appellant carried her up the st irs over his shoulder. Id. at 52. K.J. remained downstairs. Id.
When M.M. and the Appellan got to his room, the Appellant laid M.M. on his bed and
attempted to kiss her. Id. at 53. M.M. turned her head away to avoid the Appellant's advances
and she asked him if he woul go and get K.J. Id. at 54. The Appellant ignored M.M. and
proceeded to tell her that she "h d a nice body" and touched her stomach. Id. at 54-55. When he
continued to ignore her reques s for K.J., M.M. began calling K.J.'s name. Id. at 65. The
Appellant responded by telling her that she was going to wake up the young children in the
house and then left the room to et K.J. Id. at 56.
The Appellant returned ith K.J., and instead of then going back downstairs to the living
room to sleep as he had said he would, he remained in the bedroom. He took off his pants and
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asked the girls if they had ever h d a threesome. Id. at 58.l!He then lay down in bed next to them.
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Id. at 59. The girls asked the Ap ellant to go downstairs t� the couch as he had said he would. Id.
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They also offered to go sleep on the couch instead. Id. T�e Appellant ignored these requests and
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M.�.
attempted to put his hand in M. .'s pants. Id. at 60. tried to push the Appellant's hand
away and asked him to stop. at 60. She then moved closer to K.J. Id. In response, the
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Appellant told M.M. to calm do and he put his hand up her shirt and touched her bra. Id. at
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60-61. M.M. then asked the App llant if he could get thetjl some water and something to eat. Id.
at 62. He complied, and returned with two glasses ofwatet and a snack. Id. at 62.
When he returned, the A pellant climbed back inttj the bed in between the girls. Id. at 62.
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The girls again asked him if he ould go downstairs, an�i when he didn't, they left the bedroom
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together and went into the bathr om. Id. at 63. There, the lgirls decided that they would leave the
down�tairs
house and they gathered their b longings and ran and out the front door. Id. at 65.
The Appellant gave chase to the irls for a short while butlthen retreated home. Once they were a
thJi
distance away, the girls waved own a car and asked driver to call 911. Id. at 71. The girls
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then went to Delaware County emorial Hospital.
In addition to the testi ony of the victims, th�! jury heard testimony from Shannon
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Hanshaw, an emergency room n rse at Delaware Countyli Memorial Hospital. Hanshaw, a nurse
of twelve years and a sexual ssault nurse examiner for adults and adolescents. See N.T.,
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6/29/16, pp. 181-82. Nurse Ha haw was accepted by tte court as an expert in sexual assault
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nurse examinations and genera nursing. Nurse Hansh�w examined both M.M. and K.J. on
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August 12, 2014 following thei arrival to the hospital. at 190-92. Nurse Hanshaw testified
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that her physical exam of M.M. id not reveal any signs trauma and recounted that the patient
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reported as follows:
3
Patient states that betweel 2:30 and 3 o'clock, they went to [J's] house to get [J]
and [K] to go to the trestl s. She reports that they were swimming on the rope and
reports that [K.J.] and h r were on the rope together and they both fell off the
rope. She said Brian ca� to the trestle in his car with [B]. [K.J.] got out of the
water to talk to them bee use she said she used to babysit [B]. Brian said that he
could go get" -- it says E OH, which is alcohol -- "for [K.J.]. Brian went home to
drop [B] off. At that timx[J] and [K] left. The patient then reports that she wasn't
able to go home if shew s drinking because her mom would know. [K.J.] and the
patient made a plan to ha�e the patient sleep at Pastor Bob's. Pastor Bob won't let
the patient sleep over pe [K.J.]. Then Brian called Pastor Bob to tell Pastor Bob
that [K.J.] would be slee ing at his house, referring to Brian's house, to babysit
the kids. Brian then drove the patient to her house. The patient reports she asked
her mom if she was able to sleep at her friend [A's] house. The patient states that
tof
her mom said yes, just have [A's] mom or dad call her to give her the address.
The patient states that th y left her house and saw that Brian and [K.J.] were not
outside. She reports that she then called Pastor Bob to see if he had talked to
[K.J.]. The patient then sates that Pastor Bob was with [K.J.]. The patient states
that she wants her to go walk to [K.J.'s] to give her her shoes. [K.J.] said she
would walk to [K.J.'s] t give her her shoes. The patient would then -- said is
everything settled. All B ian has to do is to call her mom and act like he's [A's]
dad. Brian then said oka . [K.J.] and the patient went into Brian's house. [K.J.]
and the patient then ch ged out of their creek clothes in the bathroom. The
patient states that her an [K.J.] were taking care of the kids, made them soup,
and they were letting the ids and apply makeup on them. The patient then reports
that [K.J.] and her put he kids to sleep, then she reports that [A's] dad and
stepmom were on the co ch and were -- and they were not allowed to walk up
there. [A's] dad and step om went to sleep and all the kids went to sleep as well.
Brian them gave them, w ich is the patient and [K.J.], Four Lokos out back. [K.J.]
started running outside d Brian went her to get her to stop. Brian then stated
that they couldn't stay ou side because Eric would see them and call the cops. All
three went into the house sat on the couch to watch TV. They were watching TV.
[K.J.] wanted pizza so rian got her pizza. [K.J.] was eating pizza and Brian
started telling [K.J.] tha she was fat. Then [K.J.] started getting sick. She was
making herself vomit. B ian then said it was time to go to sleep, and the patient
states that [K.J.] and he self were going to sleep in Brian's bed and Brian was
going to sleep on the co1uch. The patient then states that Brian then carried the
patient upstairs. Brian t�en put the patient on his bed, on Brian's bed, and kept
trying to kiss her. She sta es that she kept moving her head saying I'm only 14 and
you need to get [K.J.]. rian states I will go get her. Brian went to get [K.J.].
[K.J.] then laid next to t e patient. Brian stated I want to lay in the middle. The
patient said no, I want t lay next to [K.J.]. Brian said no, I want to be in the
middle. Brian was in the middle. Brian started touching the patient's leg, her butt
and her stomach. The p tient reports that she pushed Brian's hand away. Brian
then said look at you, y u have a banging body. The patient stated I'm only 14.
Patient states that she th n told [K.J.] to hold her. They were holding hands, and
Brian kept touching my , rivate area and went up my skirt. I asked did she still --
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my question to the patie t was, did she still her clothes on, and the patient did
respond saying she still h d her clothes on. The patient states that then she wanted
something to eat and drin , asked Brian to get her something. Brian went to get it.
Patient states she rolled o er to [K.J.], then Brian came back, gave them water and
cheese balls. Brian then aid next to the patient. Brian kept touching her private
area and stomach. He ke t trying to pull my pants off but I kept pulling them up.
Patient then looked at [K J.], lipped to her that he is touching me. Brian then said
let's have a threesome. hen he said let's get naked. Then nobody spoke. Brian
then said why are you no getting naked. Brian then said you take your clothes off
and I will take mine off Patient stated no, I'm only 14. [K.J.] wrapped her leg
around the patient to co er patient's private area. Brian went into her pants with
his hands. Patient report that she pulled his hand out, rolled over to face [K.J.].
Then the patient states [ .J.], can you come into the bathroom with me, and then
[K.J.] said yes. They we t into the bathroom. They locked the door, and states to
[K.J.], I don't care ifl ge into trouble, I can't stay here. [K.J.] stated if she, which
is [K.J.], got into trouble with Pastor, she, [K.J.], would lose her brother, Ricky.
Patient states to [K.J.] w have to leave, I'm leaving with or without you. [K.J.]
stated that they would le ve but would have to report it to the police. The patient
states no, it stays betwee me and you. Then the patient stated that she went to go
get their things from the baby's room, went downstairs to sneak out, and Brian
was down there on the ouch. The patient stated she told [K.J.] to run out the
door, and then Brian got up and came out after them. He, meaning Brian, started
following us up the str et to the 7-11 and [K.J.] said don't look back, keep
walking. Brian was sayi you can't leave, it's four in the morning, get in. Patient
reports that she started to cry and scream. Then they crossed the street. Brian was
yelling across the street t look. The patient states leave us alone, we are going to
call the cops. Brian kept alking saying what's your problem. The patient stated I
swear to God, my dad ill kill you. Patient then states I called him a perv. The
patient and [K.J.] contin ed to walk to the 7-11 to call the police. Then they saw
someone driving. They oth walked into the middle of the street to the car they
pulled over and they call d the cops and the cops came.
N.T., 6/29/16, pp. 185-190.
Nurse Hanshaw explained that i her profession opinion, M.M. 's story was consistent with the
fact that there no physical injuri s. Id. at 190. Nurse Hanshaw testified that she also conducted an
exam ofK.J. in a separate room. d. at 192. She recounted that the patient reported as follows:
Patient reports that at 8 'clock on the 11th, which was the day prior to, that the
patient and [M.M.], [J] d [K] were down at the trestles playing on a rope swing.
Then a car came to wher the patient and her friend were. Brian Winters came out
of the car with [B], who s eight years old. They stood there for a while watching
the patient after going of the rope, and then Brian came up to them and said why
don't I take [B] home d bring back a six-pack. Brian left. [J] and [K] left.
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However, they did not g with Brian. [M.M.] an�!the patient made a plan. Brian
was going to call Pastor ob and tell him that he ��eded an emergency babysitter,
then he was going to ca [M.M.'s] mom as a fri�nd's dad saying [M.M.] could
sleep ?ver. Brian came b ck with beer but Brian, l�M.M.] and t?e patient decided
to wait at the top of [M. .'s] street so they coul� get the patient's clothes. The
patient then said they w nt on an adventure. And then I said who is 'we' is my
question to [K.J.], and e said [M.M.], Brian !-id 1 herself. So they went to
Wawa. Brian bought cig rettes. Then they all wer,t to an empty parking lot and
�rian let us driv� the ca . They all went back to l�he creek because we left their
lighters there. Bnan the� went to Rudy's Bar to �pt Loko F?ur. It's in a tall c�n.
Then they went back Bn n's house. When they go] back to his house, all four kids
were still awake. Brian hen asked if we were t*nking. Patient responded yes.
[M.M.] and patient went out back to smoke. Brialh then came out with two blue
cups. They drank it, un re if he put anything ih it other than the Loko Four.
Patient reports that [� ... ] and the patient got dfnk. She t?en rep?rts that b?th
[M.M.] and her went msi eon the couch. She rep�rts that a httle while later Bnan
then carried [M ..M.] upst irs. Brian said to the pattnt that wasn't pretty '. [M.�.]--
I wasn't pretty hke [M. . ] and was fat so the pat�Fnt made herself vomit. Patient
states she then walked u the steps. [M.M.] and tll;e patient were lying in the bed.
Brian states he was goin to go to sleep on the c�uch. Brian then ends up in the
bed between [M.M.] and [K.J]. [M.M.] somehow �ot in the middle of the bed and
[�·M .,]
Brian started touching h r. My question to [K.Jj� is who was 'her," and [K.J.]
responded it was [M.M.]. Patient then pul_led close to her and wrapped her
arm and legs around [ .M.]. Then Bnan said lIwe should have a threesome.
Patient states no, which would be [K.J.]. Then Brian states let's all get naked.
Brian said I will go first. Brian took off his pant_sl[ He had boxers and a shirt on.
[K.J.] states she was sti 1 protecting [M.M.] wbile he pulled the patient's leg,
which would be [K.J's], etween his legs, and hell started humping my leg like a
dog. Then Brian started oving slowly up the P�tient's leg with his hand. Brian
then started touching me in my private area with pis hand. My question to [K.J.]
�as there any pen�tratio . �K.J.'s] response was ro. Then Brian start�d moving
his hand very fast m my pnvate area. [K.J.] states that she pushed Bnan's hand
away. [K.J.] states that [ .M.] then states she hasilto go to the bathroom so [K.J.]
reports that her and [M. .] walked to the bathroom and [M.M.] started crying in
the bathroom. [M.M.] sta es he touched me, he 18 l�ouched me, we've got to leave.
[K.J.] then states they w nt into the kids' room ap.d got their backpacks so they
could sneak out. [M.M. and [K.J.] started to �alk downstairs and saw Brian
sitting on the couch. [K .. ] states [M.M.] and her�;elf started to walk out the door
and Brian said where e you going. They ju�t kept walking. They walked
towards the 7-11. Brian as following them tellifg them they had to go back to
the house because they ere dr� and they needllto _go to bed. Then [M.M.] and
[K.J.] see a car. [M.M.] as crymg, and [K.J.] went mto the street to flag the car
down, and that's when t e police were called. A�d then I asked [K.J.] if Brian
kissed her, and she said es, he kissed herself and [M.M.], and when I asked her
where, she responded o her lips. I proceeded to lask if her there was anywhere
1
I
else, and her response w s no. 1
6
N.T., 6/29/16, pp 193-96.
Nurse Hanshaw's exam of K.J. id not reveal any physical findings. Similarly, she testified that
in her professional opinion, what K.J. told her was consistent with her findings. Id. at 196.
Sergeant Stephen Brown of the Clifton Heights Borough Police Department also testified
testified[that
at trial. Sergeant Brown a call came in with a report that a young girl was touched
by a male named Brian Winter a d described that he was wearing boxer shorts. N.T., 6/30/16, p.
36. Sergeant Brown responded o the hospital following the 911 call and met and spoke with
both victims. N.T., 6/30/16, p. , 7, 40. He also met with them the following day at the police
station. Id. The victims told Se eant Brown that they had been given Four Loko beer by the
Appellant and recounted the eve ts that happened in his bedroom. Id. at 50, 70.
After he met with the vie, ims, Sergeant Brown, along with two other officers, proceeded
immediately placed under arres and taken back to the police station. Id. at 41-42. A search
warrant was later executed at tie Appellant's residence and the officers found two Four Loko
cans in a cooler on the back dee , which was the brand of alcohol specifically identified by the
girls. Id at 69- 70.
Sergeant Brown met wit the Appellant at the police station and the Appellant gave a
recorded statement. Id. at 48. he Appellant denied providing the girls with any alcohol and
stated that he knew nothing abo t a sexual assault. Id. at 51. The Appellant told Sergeant Brown
that he did notice that the girls ere acting "goofy" and loud later in the evening so he told them
to go upstairs and not to wake t e young children. Id. at 52. He relayed that he told them to "go
in the front room, and you knmJ, that's my room, and make yourself at home, and I'm going to
crash here on the couch." Id. a 58. The Appellant stated that he remained downstairs on the
7
couch and watched television u til about 4 A.M. when the girls came downstairs and went out
the front door. Id. at 52. He expl ined that he followed them outside and asked where they were
going, and the girls responded t at they were going home. Id. at 52. According to the Appellant,
he told them that they couldn't be outside because it was so late. Id. at 53. He said that he
followed them out of the house but explained that eventually turned back because he wasn't
wearing any shoes. Id. at 62. He epeatedly denied having any sexual contact with the girls.
Over the course of their investigation, the police also discovered that the Appellant's
phone had been used to send t xt messages to M.M. 's mother. Id. at 72-73. At trial, M.M. 's
mother recalled that on August 11, 2014 M.M. and K.J. stopped by her house to gather some
towels. N. T. 6/29/16, pp. 170- 72 Before she left, M.M. asked her mother for permission to sleep
over her friend Lexi's house. Id at 171. Her mother said yes and requested that Lexi's parents
text her when they got there. Id. M.M.'s mother testified that she did receive a text message as
promised, and in these text m ssages, the sender claimed to have been Brad, Lexi's father.
M.M.'s mother was familiar 'th Brad and was under the assumption that M.M. was safe
believing she was at Lexi's horn when in fact she was at the Appellant's residence Id. at 173-75.
The evidence revealed that thes text messages originated from the Appellant's phone and not
Lexi's dad's.
The jury returned its ver ict on June 30, 2016. Defendant filed a post sentence motion
challenging the weight of the e idence, which this Court denied on July 22, 2016. On October
14, 2016 this court sentenced Appellant to an aggregate sentence of 25 to 50 years of
incarceration. On November 7, 2 16, Appellant filed a notice of appeal necessitating this opinion
and issued an order pursuant to Pa.R.A.P. 1925(b) on November 23, 2016. The court received
8
the Appellant's Concise Statem nt of Matters Complained of on Appeal on March 1, 201 i in
which he sets forth the following
I
1. The verdict was ag inst the weight and §ufficiency of the evidence as the
Commonwealth did n t meet the burden of pro�f for establishing a pattern of conduct
for the two (2) Coun of Corruption of Min9rs as the night in question was not a
"pattern of conduct." athe_r, both alleged vict�rs testified that the allegation� of.the
f
night in question wer an isolated event and ot a "pattern of conduct" which is a
necessary element of 1 Pa.C.S.A. § 630l(a)(l)�ii).
h
�ufficiency
2. The verdict was ag inst the weight and of the evidence as the
Commonwealth did n t meet the burden of pr9of that there was indecent contact as
required for the two ( ) counts of 18 Pa.c.sA. § 3126(a)(8)-Indecent Assault of a
Person Less than 16 ears of Age, where the dirls' testimony was directly in conflict
with each other, and ith their own prior recorded statements, and where the girls did
not establish any actua indecent contact. I
'
sufficief
3. The verdict was again t the weight and cy of the evidence as the testimony of
the alleged victims as so in conflict with fiach other, and with their own prior
recorded statements, t at the same cannot be th� grounds for guilt beyond a reasonable
doubt on any of the ch rges. II
11
1,
e�ed
4. The Trial Court abus d its discretion and/or as a matter of law by precluding
Defendant's expert fr m interviewing victim Ji(..J., notwithstanding that the same is
required by the code f ethics governing expe�s testifying to psychiatric matters, and
by limiting the expert estimony to such a degree that Defense's expert was incapable
of ethically rendering n expert opinion to a reisonable degree of medical certainty at
trial.
I
errtj!d
5. The Trial Court abuse its discretion and/or as a matter of law by excluding from
evidence the Faceboo profile of victim M.Mt which showed a strikingly different
persona of the victim t an what was presented Jt court, as well as excluding a specific
photograph/post paste on the Facebook profilb of one of the victims, M.M., shortly
i
before her testimony a trial, directly indicating ithat she would cover up a crime scene
!
for a friend.
II
1
While counsel's 1925(b) state ent was clearly untimely, this court has addressed the issues
raised therein in an effort to avoid remand and �her delay Appellant's appeal. See
Commonwealth v. Thompson, 3 A.3d 335, 340 (Pa. Super. 2012); Commonwealth v. Burton,
973 A.2d 428 (2009) (en bane) Commonwealth v. Cas1rllo, 585 Pa. 395, 888 A.2d 775, 780
(2005). Ii
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II. Discussion
I. Sufficiency of the Evide ce
The Appellant challe ges the sufficiency of the evidence for his convictions of
corruption of a minors and indeTnt assault. In determining whether the evidence is sufficient to
support a defendant's convictio�J the reviewing court will consider the evidence admitted during
the trial along with any reasonable inferences that may be drawn from that evidence in the light
most favorable to the Common ealth as the verdict winner. If the court finds, based on that
review, that the fact finder co d have found every element of the crime charged beyond a
reasonable doubt, then it must s stain the conviction. Commonwealth v. Murphy, 577 Pa. 275,
284, 844 A.2d 1228, 1233 (2004) (citations omitted). A reviewing court may not re-weigh the
I
evidence and substitute its own j dgment for that of the fact- finder. Commonwealth v. Jones, 87 4
A.2d 108, 120-21 (Pa.Super. 200 ).
In the case sub judice, jury was tasked with weighing the evidence and making all
credibility determinations in thi case, and they found the Appellant guilty of two counts of
corruption of minors and two cornts of indecent assault. As explained below, this court submits
that the evidence was more than rfficient to sustain the jury's verdict.
a. Corruption of Mrors
Appellant first challenges the sufficiency of the evidence of his corruption of minors
convictions "as the Commonwealth did not meet the burden of proof for establishing a pattern of
CounJ!of
conduct for the two (2) Corruption of Minors as the night in question was not a
'pattern of conduct.' Rather, bo h alleged victims testified that the allegations of the night in
question were an isolated event · d not a 'pattern of conduct' which is a necessary element of 18
Pa.C.S.A. § 6301 §§Alii." See C ncise Statement of Matters Complained of on Appeal, 3/1/17.
10
In Pennsylvania, "whcev r, being of the age of 18 years and upwards, by any course of
conduct in violation of Chapter 1 (relating to sexual offenses) 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 an fense under Chapter 31 commits a felony of the third degree."
18 Pa.C.S.A. § 630l(a)(l)(ii).
As mentioned above, the ppellant was convicted of two counts of corruption of minors,
a felony, under Section 6301(a)( )(ii). He asserts that the Commonwealth failed to establish that
he engaged in a "course of co duct" as required under this subsection. In Commonwealth v.
Kelly, the Superior Court, in i terpreting § 6301(a)(l)(ii), held that the phrase "course of
conduct" imposes a requirem t of multiple acts over time, and not just a single act.
Commonwealth v. Kelly, 102 A. d 1025, 1027 (Pa. Super. 2014) (finding that the defendant's
single act of grabbing the victi 's genitals did not establish a "course of conduct" supporting a
conviction for corruption of mi ors). However, unlike the Defendant in Kelly, the Appellant
herein committed several acts o sexual assault in this case, and with two separate victims. The
evidence at trial established tha the Appellant, over the course of the evening on August 11,
2014, took off his pants, asked he girls if they had ever had a threesome, and told them they
should all get naked. N.T., 6/29 19, pp. 58, 142. He then committed a series of acts including
putting his hands in M.M.'s pans [Id. at 59-60], putting his hand up M.M.'s shirt and touching
her bra [ Id. at 60-62], putting his fingers near K.J' s vaginal area [ Id. at 144 ], and humping K.J. 's
leg [Id. at 143-44]. The court su mits that these actions constituted indecent assault,2 a Chapter
31 violation. Although these act were committed within a short span of time, they were more
than sufficient to satisfy the cou se of conduct requirement to sustain these corruption of minors
2
The sufficiency of the evidence on this charge is expounded upon below.
11
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charges. Accordingly, this co respectfully submits trat his convictions for corruption of
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minors should be affirmed. I'
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b. Indecent Assault I'
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Next, Appellant chall nges the sufficiency o�i the evidence of his indecent assault
II
convictions "as the Commonwe 1th did not meet the buJrden of proof that there was indecent
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contact as required for the two ( ) counts of 18 Pa. C. S .,i. § 3126 § §a8-Indecent Assault of a
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testiJony
Person Less than 16 Years of A e, where the girls' was directly in conflict with each
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1,
other, and with their own prior ecorded statements, an9I where the girls did not establish any
11
actual indecent contact." See C ncise Statement of Matters Complained of on Appeal, 3/1/17.
F
The crime of indecent assault in ennsylvania is defined al follows:
II
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§ 3126. Indecent assault
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(a) Offense defined.--A person s guilty of indecent assJult if the person has indecent contact
with the complainant, causes t e complainant to have Ii indecent contact with the person or
intentionally causes the complai ant to come into contact with seminal fluid, urine or feces for
the purpose of arousing sexual d sire in the person or the qomplainant and:
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(8) the complainant is less than 6 years of age and the person is four or more years older than
the complainant and the complai ant and the person are ndt married to each other.
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18 Pa.C.S.A. § 3126( a) (8). iui
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Indecent contact is defin d as "[a]ny touching of ire sexual or other intimate parts of the
I,
person for the purpose of arous ng or gratifying sexual desire, in any person." 18 Pa.C.S.A. §
II
3101. Contact may be indecent e en though the clothing
flesh from touching. See Pa.
,r a defendant or a victim prevents their
SJI (Crim), 15 .3126D Q2008). Here, M.M. testified that the
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Appellant tried to kiss her, put is hands in her pants an4 touched her vaginal area, and put his
11
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hands up her shirt and touche her breast. N.T., 6/29(19, pp. 59-62. K.J. testified that the
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Appellant put his fingers near er vaginal area and then put her foot in between his legs and
"humped her." Id. at 143-44. T e Appellant claims that the Commonwealth did not meet the
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burden in proving two instan es of indecent contact to sustain his two indecent assault
convictions. Interestingly, the e at trial established more than two instances of indecent
contact. It is arguable that the A pellant' s actions in touching the intimate parts of M.M. and K.J.
was sufficient to prove more th two counts of indecent assault. He committed indecent assault
when he (1) kissed M.M. See .g., Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006) (the act of wrapping ones arms around another person and inserting one's tongue into
another's mouth clearly involves the touching of an intimate part of that person), (2) put his hand
up M.M.' s shirt over her bra. e Commonwealth v. McClintic, 851 A.2d 214 (Pa. Super. Ct.
2004), rev'd on other grounds, ; 89 Pa. 465, 909 A.2d 1241 (2006) (evidence was sufficient to
support finding that defendan touched victim in sexual manner, as required to support
conviction for indecent assault hen he reached out and forcefully grabbed and pinched victim's
breast), (3) touched M.M.'s vaiinal area, (4) touched K.J.'s vaginal area, and (5) when he
"humped" K.J.'s leg. See e.g.,C,�monwealth v. Pettiford, IO Pa. D. & C. 4th 413 (Pa. Com. PI.
Somerset 1991) (finding that he Commonwealth established a prima facie case that the
defendant committed indecent assault by rubbing and touching victim's leg). The court
respectfully submits that the e idence was more than sufficient to sustain his convictions of
indecent assault and respectfully submits that they should be affirmed.
II. Weight of the Evidence
r
The Appellant also chall nges his verdict by asserting that "the testimony of the alleged
victims was so in conflict with other, and with their own prior recorded statements, that the
same cannot be the grounds fo, guilt beyond a reasonable doubt on any of the charges." See
13
Concise Statement of Matters Complained of on Appeal, 3/1/17. Challenges to witness
credibility generally implicate the weight, not the sufficiency, of the evidence. See
Commonwealth v. Price, 616 .2d 681, 683 (Pa. Super. 1992) ( a sufficiency challenge asks
whether the evidence supports conviction and an argument that a witness's testimony is not
credible goes to the weight of th evidence).
An allegation that the v rdict is against the weight of the evidence is addressed to the
discretion of the trial court. Co monwealth v. Ramtahal, 613 Pa. 316, 33 A.3d 602 (2011). A
trial court will award a new trial only when the jury's verdict is so contrary to the evidence as to
shock one's sense of justice. ommonwealth v. Diggs, 597 Pa. 28, 949 A.2d 873 (2008)
(emphasis added). It is well esta lished that a challenge to the weight of the evidence is limited
to a review of the discretion o the trial judge, who has had the opportunity to observe the
proceedings and demeanor of th witnesses. Commonwealth v. Cunningham, 805 A.2d 566, 572
(Pa. Super. 2002). That decision will not be reversed on appeal absent a showing of an abuse of
discretion. Commonwealth v. P tteway, 847 A.2d 713, 717 (Pa. Super. 2004). Moreover, the
uncorroborated testimony of the ictim of a sexual offense, if believed by the jury, is sufficient to
support a conviction. Commonw alth v. Poindexter, 646 A.2d 1211, 1214 (Pa.Super.1994); see
also Pa. SSJI (Crim), 4.13B (200 ).
In the case sub Judice, A pellant was found guilty of two counts of corruption of minors,
a felony of the third degree, an two counts of indecent assault, a misdemeanor of the second
degree. This court submits that t e jury was free to believe or disbelieve any of the testimony and
evidence, and submits that the t stimony of the victims was sufficient evidence to sustain the
verdict. As set forth in detail in t e preceding section, the Commonwealth's evidence at trial was
more than sufficient to establish hat the Appellant had indecent contact with both victims in this
14
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case, and it is evident that the ju found the testimony of �hese victims to be credible.
1,
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Respectfully, the jury's erdict did not shock onejs sense of justice as to require a new
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trial. It is not for this court to su stitute its own judgment tor that of the jury in Appellant's case.
I
Appellant!
The court respectfully submits t at its denial of s weight of evidence claim was not an
abuse of discretion.
III.Interview of Victim by efense Expert ji
The Appellant claims hat this court erred bl precluding a defense expert from
I
interviewing the victim K.J. int is case. Specifically, thej.Appellant argues that "the Trial Court
F
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abused its discretion and/or err d as a matter of law bt precluding Defendant's expert from
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interviewing victim K.J., notw thstanding that the sanje is required by the code of ethics
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governing experts testifying to p ychiatric matters, and byji limiting the expert testimony to such a
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degree that Defense's expert as incapable of ethically rendering an expert opinion to a
II!
reasonable degree of medical ce ainty at trial." See Concise Statement of Matters Complained of
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on Appeal, 3/1/17. The court re pectfully submits that it did not err in precluding the defense
I
from interviewing the minor vict m.
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Prior to trial in this cas , defense counsel requested that his expert have access to the
I
coipetency.3
minor victim, K.J. in this case i order to evaluate her The defense argued that the
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victim was not competent to test fy at trial. This court, relfing on cases including Commonwealth
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v. Alston, 864 A.2d 539 (Pa. Su er. 2004), Commonwealth v. Dudley, 510 A.2d 1235 (Pa. Super.
1986), Commonwealth v. Tober 152 A.2d 917 (Pa. Super. 1959), and following a competency
1;
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4
hearing of the minor victim, ru ed that the defense was ]jlOt entitled to interview a minor victim
1:
3
The victim's redacted medica records had been turned over to the defense in discovery and
revealed that she suffered from allucinations.
4
The court found the minor vict m competent.
15
and denied this request. Specifi ally, the court found that there was nothing in the record to
indicate that the victim's medi al diagnoses affected her ability to perceive or recollect the
alleged events.5 See N.T., 6/30/1 , pp. 9-10. The victim testified that while she had suffered from
hallucinations and saw ghost li figures, this occurred when she was 11 years old, not at the
time of the incident. Id. at 13-16, 25. The court submits that this ruling was proper."
IV. Irrelevant Evidence
Lastly, the Appellant clai s that this court erred in its ruling that the Facebook profile of
victim M.M. would not be ad itted at trial. The court respectfully submits that because this
evidence had no probative value d was irrelevant, it was properly excluded from trial.
The admission of eviden e is solely within the discretion of the trial court judge and will
not be reversed absent an abuse of discretion. Commonwealth v. Ketterer, 725 A.2d 801, 805
(Pa. Super. 1999) ("A trial c urt has broad discretion to determine whether evidence is
admissible.") Under Pennsylvan a Rule of Evidence 403, although relevant, evidence may be
excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury. a.RE. Rule 403. The Comments to the rule state that "unfair
5
See Commonwealth v. Dolha cryk, 417 A.2d 246 (Pa. Super. 1979) ( absent evidence that
witness suffered mental defect l.ndering him incapable of testifying truthfully, no psychiatric
examination was warranted).
6
The court advised defense co nsel that he would be permitted to have his expert present in
court during the trial to observe he victim and her testimony and could then cross examine the
minor victim regarding her pres, ribed medication use and/or have his expert opine on the use
and the effects of said medicati n. However, at trial, the victim denied that she had taken any
medication at the time of the in ident. See Dudley, 510 A.2d at 620 ( evidence can be said to
affect the credibility of a witne s when it shows that his mental disorganization in some way
impaired his capacity to observ the event at the time of its occurrence, to communicate his
observations accurately and trut fully at trial, or to maintain a clear recollection). Here, the
victim testified that she was not uffering from any mental infirmity near the time of the event,
and was not on any medication that would have impacted her mental state. Accordingly, the
testimony of an expert on this m er was not relevant.
16
prejudice" refers to a tendency suggest decision on an improper basis or to divert the jury's
attention away from its duty of ighing the evidence impartially.
In the case sub Judice, efense counsel moved to admit evidence pertaining to victim
M.M.'s social media account. S ecifically, counsel wanted to admit a posting that M.M. had
made to her Facebook account the night prior to trial and a photograph associated with her
account. Following a discussion t sidebar, this court denied defense counsel's request.
[Sidebar discussion]
THE COURT: What do you hav ?
DEFENSE COUNSEL: She [M. .] posted yesterday about how she would lie for her friend if
she showed up on a scene like this,
THE COURT: Your best friend alls -- what's it say?
DEFENSE COUNSEL: It says your best friend calls and says he or she needs help with
something and you get there an see this," what do you do? And she says hitting the store for
new carpets, set of -- a new bed s t, bleach the wood and throw everything in the ocean.
THE COMMONWEAL TH: Wh t does that have to do with anything?
�EF�NSE COUNSEL: It has dilctly to do with how she would conduct herself in a criminal
situation.
THE COMMONWEAL TH: Jud e, I mean this is nothing to do with anything. This is a joke
meme that they would ask what ould you do if your friend murdered somebody and says -
N.T. 6/29/16, pp. 103-04.
***
DEFENSE COUNSEL: Well, wi 1 you allow us to post 12 her Facebook page so the jury can see
who she is telling people she is? mean there's a photograph, and they're looking at two different
people. And then the jury can de ermine once again with our theory if she wants them to believe
her and she's of this innocent and doesn't lie -- and here she has this completely alter ego.
***
7
The court did not see what "thi "referred to but Defendant's attorney said "this" was a murder
scene.
17
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THE COMMONWEAL TH: Jud e, this so far afield of an�hing relevant. The idea that she has
some alternate ego on the inteme -- I mean first of all it's just
p
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DEFENSE COUNSEL: Well, sh does. I·
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Id. at 107-08.
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After hearing the arguments of c unsel, this court denied the request and ruled that the evidence
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was irrelevant. In so ruling, the ourt stated, "I'm not goiig to allow you to put a photograph of
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her up because the -- there's no ssue of[] mistake in agJ or anything of this nature. And that's
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the ruling of this Court. Id. at 1 1. The court submits th}t it acted well within its discretion in
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excluding any evidence of the ictim's social media ac��unt. This evidence had no probative
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value and was merely a tactic to esmirch the character ofjthe young victim in this case.
II
III. Conclusionl
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s�bmitted
In light of the aforement oned, it is respectfully that the court's decision was
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free from legal error and that the e is no merit to Appellant's appeal. It is for the reasons set forth
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above that this court submits that Appellant's judgment ofjsentence be affirmed.
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BY THE
n
CO
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