Com. v. Cox, J. ( 2020 )

J-S01008-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERMAINE T. COX :
:
Appellant : No. 711 EDA 2018
Appeal from the Judgment of Sentence January 26, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-001172-2016,
CP-51-CR-001173-2016
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BOWES, J.: FILED MARCH 13, 2020
Jermaine T. Cox appeals from the aggregate judgment of sentence of
twenty-five to fifty years of imprisonment imposed at the above docket
numbers1 following his convictions for unlawful contact with a minor, indecent
assault, indecent exposure, corruption of a minor, and endangering the
welfare of children, relating to his sexual abuse of two of his nieces. We affirm.
The trial court offered the following summary of the factual background
of the cases:
____________________________________________
1 Appellant filed a single notice of appeal listing both lower-court docket
numbers. In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our
Supreme Court held that separate notices of appeal must be filed at each
docket for orders arising on more than one docket. However, this appeal was
filed on March 8, 2018, and Walker’s June 1, 2018 ruling was expressly only
prospectively applicable. Therefore, we need not quash this appeal.
* Retired Senior Judge assigned to the Superior Court.
J-S01008-20
CP-51-CR-0001172-2016
In 2011, when A.B. was seven years old, she spent the
summer at her grandmother’s house located in North Philadelphia.
Other family members, including siblings, cousins, aunts, and
uncles, also stayed at the house. At the time, [Appellant] was
married to A.B.’s Aunt Zaynab. On one occasion, A.B. was in the
bedroom shared by [Appellant] and Aunt Zaynab (“Aunt Zaynab’s
room”). While A.B. sat in a chair and watched television,
[Appellant] touched her vagina, chest, and buttocks, both over
and underneath her clothing. While doing so, he moved his hand
in a circular motion. Another time, [Appellant] was playing with
A.B. in Aunt Zaynab’s room when he picked her up and tossed her
on the bed. Over her clothing, [Appellant] touched A.B.’s vagina,
again moving his hand in a circular motion. A separate incident
took place while A.B. was watching television in Aunt Zaynab’s
room. [Appellant] entered the room wearing work clothes and
pulled down his pants enough for A.B. to see his penis. On another
occasion, A.B. was seated on the bed in Aunt Zaynab’s room when
[Appellant] placed his hand inside of her pants and moved his
hand in a circular motion in the vaginal area. During these
incidents, [Appellant] would tell A.B. not to tell anyone.
At some point, A.B. told her cousin H.B. (the victim in the
second case) about the abuse. On October 3, 2015, A.B. disclosed
the abuse to her stepfather. The following morning, she told her
mother.
CP-51-CR-0001173-2016
H.B. also lived at her grandmother’s house in 2011 with
Aunt Zaynab, [Appellant], her siblings, and several uncles. A.B.
and her brothers would also spend the night sometimes. When
she was ten or eleven years old, H.B. was playing a computer
game with [Appellant]. Aunt Zaynab was asleep on the bed.
While H.B. was seated on his lap, [Appellant] began moving his
thumb back and forth over her clothing in the vaginal area. He
said to her, “You know I would never hurt you.” At a different
time, [Appellant] told H.B. “that her aunt’s baby’s father would
put his sperm on H.B.’s lips and she wouldn’t know what that is
because she doesn’t know what that tastes like.” Either that night
or the following, H.B. awoke to [Appellant] trying to put his penis
back inside of his pants. She also felt “something wet” on her lips
that tasted salty. When [Appellant] left the room, H.B. got up and
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washed her face. A very similar incident occurred one night while
H.B. slept in her grandmother’s room. This time, H.B. saw
[Appellant]’s hand moving back and forth over his penis and again
felt the wet substance on her lips. H.B. told her grandmother that
she “felt something on her lips” and that [Appellant] “was trying
to put his thing back in his pants.” H.B.’s grandmother directed
her to tell Aunt Zaynab, which she did. However, Aunt Zaynab
believed [Appellant] and said “he was playing and it was water.”
Another incident occurred when H.B.’s grandmother asked
her to retrieve medication from Aunt Zaynab’s room. When H.B.
knocked on the bedroom door, [Appellant] opened it wearing no
clothing. H.B. told her grandmother about the experience. A few
days later, [Appellant] asked H.B. “why she snitched.” At a
different time, H.B. was asleep in her room with A.B.’s older
brother. Between 2:00 and 3:00 a.m., H.B. awoke to [Appellant]
shining his phone flashlight over her. When she asked what he
was doing, [Appellant] asked both H.B. and A.B.’s older brother if
they wanted to play Wii.
H.B. asked A.B. whether she had similar experiences while
staying at their grandmother’s house. When A.B. stated that she
had, H.B. told her to tell her mother. A.B. refused to do so
because she was afraid. H.B. also shared the specific details of
the abuse with her cousin K.J.
After the jury found [Appellant] guilty of the above offenses,
this Court deferred sentencing for completion of a presentence
investigation. On January 26, 2018, this court sentenced
[Appellant] to an aggregate term of twenty-five to fifty years of
incarceration. On February 5, 2018, [Appellant] filed a timely
post-sentence motion seeking a new trial based on the weight of
the evidence and reconsideration of the sentence imposed. On
February 14, 2018, in response to [Appellant]’s post-sentence
motion for reconsideration of sentence, this court conceded that
it illegally sentenced [Appellant] by imposing the mandatory
minimum of twenty-five to fifty years of incarceration on the two
counts of corruption of minors. The sentence on the two counts
of corruption of minors was vacated, and a new sentence of two
to four years of incarceration to run concurrent to the other
charges was imposed. All other claims raised in [Appellant]’s
post-sentence motion were denied.
Trial Court Opinion, 5/17/19, at 1-4 (cleaned up).
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Appellant filed a timely notice of appeal, and both he and the trial court
complied with the dictates of Pa.R.A.P. 1925. Appellant presents one question
for our review: “Were not the verdicts so contrary to the weight of the
evidence as to shock one's sense of justice and should not a new trial be
awarded?” Appellant’s brief at 3.
The following principles apply to our review of Appellant’s claim.
Appellate review of a weight claim is a review of the [trial court’s]
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. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
The trial court addressed Appellant’s weight challenge as follows:
A.B. and H.B. testified to a number of specific incidents in
which Defendant performed sexual acts upon them. None of the
offenses of which Defendant was convicted require[s] the
recovery of “physical evidence.” Both complainants provided
detailed testimony about how Defendant touched them, where he
touched
them, and the location of the incidents of abuse. H.B. testified to
sensory details, such as describing the substance on her lips as
tasting salty. Both A.B. and H.B. were also able to recall specific
comments made by Defendant to them.
A.B. testified that she did not disclose the abuse to her
mother earlier in time because her mother was “crazy when it
came to her kids and A.B. did not want her mom to do anything
bad.”
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H.B. testified that she disclosed the abuse to both her
grandmother and Aunt Zaynab in 2011. She did not recall with
certainty whether she had told her mother, but did not believe she
had. She explained that her grandmother and Aunt Zaynab knew
what was going on and did not do anything about it, therefore she
did not expect her mother could help while living in Michigan. The
jury weighed the evidence presented, evaluated the testimony of
the witnesses, and found the complainants credible. The verdict
was not against the weight of the evidence.
Trial Court Opinion, 5/17/19, at 5-6 (cleaned up).
Appellant acknowledges that the weight of the evidence is for the jury
to decide, and that it is free to determine witnesses’ credibility and to accept
or reject evidence as it sees fit. Appellant’s brief at 11. However, he argues
that the inconsistencies in the testimony of the victims, and their answering
“innumerable questions with ‘I don’t remember,’” was such that it “seriously
called into question [their] credibility, and any verdict based upon such
testimony was speculative and conjectural.” Id. at 11-12. Appellant
maintains that the implausibility of the acts occurring undetected in a house
full of people, and the many inconsistencies in the testimony of the victims,
renders it “abundantly clear that a reasonable doubt was raised as to whether
the appellant committed the acts alleged.” Id. at 11. Further, Appellant avers
that the trial court omitted “crucial facts” in concluding that the verdict was
not against the weight of the evidence. Id. at 12
Our review of the certified record reveals no indication that the trial
court’s assessment was the product of an error of law, was manifestly
unreasonable, or was “a result of partiality, prejudice, bias or ill-will.” Clay,
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supra at 1055 (internal quotation marks omitted). As the Commonwealth
aptly discusses in its brief, the victims remained consistent on “key facts
pertaining to [Appellant’s] abuse,” and the jury, presented with the
inconsistent details complained of by Appellant, was free to determine which
version, if any, was credible. Commonwealth’s brief at 13, 16-22. Indeed,
our Supreme Court has confirmed that a conviction may properly rest upon a
previously-relayed version of events even when the witness wholly recants in
testifying at trial, where the jury has the opportunity to assess the credibility
of the witness’s explanations. See Commonwealth v. Brown, 52 A.3d 1139,
1171 (Pa. 2012) (holding verdict based upon out-of-court statements
repudiated by the witnesses at trial did not render the verdict one of pure
conjecture).
Accordingly, Appellant is entitled to no relief from this Court on his
weight-of-the-evidence claim. See, e.g., In re A.G.C., 142 A.3d 102, 109
(Pa.Super. 2016) (holding juvenile adjudication was not against the weight of
the evidence, despite inconsistencies in the victim’s reporting of the abuse,
where her statements were “consistent on the key facts”); Commonwealth
v. Jenkins, 578 A.2d 960, 963 (Pa.Super. 1990) (denying relief on weight
claim because the verdict was based upon the jury’s credibility
determinations, not “upon surmise or conjecture,” although “there were
contradictions and inconsistencies present in the [abuse victims’] testimony,
and . . . both admitted to lying on occasion”).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/20
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