Com. v. Morales, J. ( 2021 )

J-S39010-20
J-S39011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN MORALES :
:
Appellant : No. 1111 EDA 2019
Appeal from the Judgment of Sentence Entered November 21, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004004-2017
*****
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN MORALES :
:
Appellant : No. 1112 EDA 2019
Appeal from the Judgment of Sentence Entered November 21, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004444-2017
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 10, 2021
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S39010-20
J-S39011-20
Juan Morales appeals1 from the judgment of sentence, entered in the Court
of Common Pleas of Philadelphia County, after he was convicted by a jury of two
counts of endangering the welfare of children (EWOC),2 a third-degree felony.
After careful review, we remand for resentencing.3
Morales was arrested in North Carolina in May 2017 on a Pennsylvania
warrant issued in connection with the alleged sexual assault of two minor female
twins (Child 1 and Child 2— collectively, Children). Children, who were seven
years old at the time of the alleged assaults, are the daughters of Morales’ long-
time paramour, N.S.4
Morales was charged with two counts each5 of rape of a child, involuntary
deviate sexual intercourse (IDSI), unlawful contact with a minor, aggravated
indecent assault of a child, sexual assault, EWOC, corruption of minors, indecent
____________________________________________
1On January 2, 2020, our Court sua sponte consolidated the two appeals, 1111
EDA 2019 and 1112 EDA 2019. See Pa.R.A.P. 513.
2 18 Pa.C.S.A. § 4304(a)(1).
3 On October 29, 2020, our Court denied counsel’s motion to withdraw, filed in
conjunction with an Anders/McClendon/Santiago brief, and remanded the
case for counsel to file an advocate’s brief, having found that there were several
non-frivolous issues in the matter. See Commonwealth v. Morales, 111 EDA
2019 (Pa. Super. filed Oct. 29, 2020) (unpublished memorandum decision).
Counsel complied with our directive and filed an advocate’s brief on December
7, 2020. The Commonwealth filed a responsive Appellee’s brief on February 2,
2021.
4 N.S. and Morales are the parents of a younger daughter who was an infant at
the time of the alleged assaults on Children.
5 Morales was charged under two separate docket numbers for each minor
victim, CP-51-CR-0004444-2017 and CP-51-CR-0004004-2017.
-2-
J-S39010-20
J-S39011-20
exposure, indecent assault of a child less than 13 years of age, simple assault,
recklessly endangering another person (REAP), and dissemination of explicit
sexual materials to a minor.
The trial court set forth the relevant factual history underlying the charges
as follows:
[N.S.] testified that she was in a relationship with [Morales] and he
lived in the apartment with her and her children. [N.S.] testified
that she sometimes left [] Children home with [Morales] while she
went to work. [N.S.] testified that on June 29, 2014[,] around 2:30
a.m., she realized that [Morales] was not in the bed next to her and
walked to the living room, where she observed [Morales] on the sofa
with his “penis out” and “touching himself” while [Child 1] was balled
up with her arms around her knees at her chest on the other end of
the couch. [N.S.] explained that she then attacked [Morales] using
clenched fists, [] which [Morales] did not resist, until he pinned her
down on their mattress, only allowing her to use the bathroom.
[N.S.] explained that she did not call the police due to fear that
[Morales] would wake up and hear her on the phone. [N.S.] testified
that she was able to leave the house with [C]hildren[] after she told
[Morales] she was [] going to take the[m] to the flea market.
Instead of going to the flea market, [N.S.] said that she went to her
mother’s house[,] where she first called police and then continued
on to St. Christopher’s Hospital for Children[,] where she was
interviewed by a police officer. On the following day, she and
[Children] went to an appointment at [the] Special Victims Unit
(SVU) and [] she did not talk to [Children] about what happened
with [Morales] or what they were allowed to talk about. [N.S.]
stated that she did not communicate or see [Morales] again at that
time.
[N.S.] also described moving with [C]hildren to North Carolina in
March of 2015, explaining that she lived near and remained in
contact with [Morales’] older sister[,] but claimed that she did not
know whether [Morales] was living in North Carolina or Philadelphia.
[N.S.] described the first time she saw [Morales] in 2016 at his
mother’s North Carolina home and how she was scared of him during
this encounter.
-3-
J-S39010-20
J-S39011-20
On cross-examination, [N.S.] explained that during their
relationship[,] she and [Morales] would have arguments[] around
[Children], sometimes caused by [Morales’] “w[a]ndering eye for
women.” [N.S.] testified that before [Children] were interviewed at
St. Christopher’s Hospital for Children[,] she did not speak to them
about what occurred with [Morales]. [N.S.] stated that the
Department of Human Services (DHS) spoke to [Children] at the
hospital and also visited their house.
Next, Officer Robert Caban testified that he met with [N.S.] and
[Children] at St. Christopher[’s] Hospital for Children in response to
a reported rape in June 2014. Officer Caban recalled that [N.S.] told
him about what she saw the night before regarding [Morales’]
“private area out” in front of [Child 1]. Officer Caban could not recall
if he spoke with [Children] directly. On cross-examination, Officer
Caban stated several times that he could not recall specific details
regarding his interview with [N.S.] and [Children].
[Child 1] testified that she first met [Morales] when her mom started
dating him when she was six or seven. [Child 1 stated] that
[Morales] started living with them when she was seven and
sometimes he watched her and [Child 2] while their mother was at
work. [Child 1] also testified that [Morales] touched her more than
once, describing how [Morales] showed her his phone with “people
having sex” on it. [She] described how [Morales] exposed his
private parts to her, touched her private parts, made her put his
private part in her mouth, and how he licked her private part over
her underwear over the course of [a] few days. [She also] testified
that [Morales] put his private part on her front private part once
while she was laying down while he moved in a back and forth
motion. [She further described] an incident where [Morales] put his
private part in her mouth while she was alone with him in the living
room. [She also] stated that she did not tell [N.S.] when these
things were going on because she was scared and thought
something bad might happen if she told.
[Child 1] testified that [N.S.] found out when she came downstairs
while [Morales’] private part was exposed and she was on the couch
with him. [She] recalled talking with a lady in a room with a camera
where she told her everything that happened to her. [She] also
recalled talking with a detective. On cross-examination, [Child 1]
testified that when she moved to Candor, North Carolina[,] she lived
with just [N.S.] and [her] sisters. [She] explained that she never
told anyone at school or in her family what [Morales] was doing to
her.
-4-
J-S39010-20
J-S39011-20
[Child 2] testified that she recognized [Morales] as her [baby]
sister’[s] dad who lived with her when she was about seven years
old and sometimes watched her when her mom was not home.
[Child 2] described one day when she was home alone with
[Morales], waking up in [N.S.]’s bed with [Morales’] hand inside her
shorts but over her underwear, rubbing on her front private part
while he forced her hand on to his exposed private part[,] moving it
in a rubbing motion. [She] stated that on the same day and other
days [Morales] showed her videos of men and women in various
stages of undress doing “inappropriate things.” She could not
remember if [Morales] said anything to her while showing her the
videos. [She] further testified that [Morales] placed his private part
on her back private part and that she saw “slimy stuff” come out of
[Morales’] private part when they were alone in the bedroom. [She]
recalled speaking with police officers and telling them what
happened to her. [She] testified that she never told anyone else
about what [Morales] was doing because he asked her not to and
that he never threatened to hurt her or her family.
On cross-examination, [Child 2] recalled after going to the
hospital[,] speaking to a lady in a room with a table and chair. [She]
explained that she never told any teacher, principal, crossing guard,
student, police officer at school, or family member about [Morales]
touching her private part. [She] recalled moving to Candor, North
Carolina[,] with [N.S.] and [her] sisters and being babysat by
[Morales’] sister.
Denise Wilson, Manager of Forensic Services at Philadelphia
Children’s Alliance (PCA), testified regarding the forensic interview
process, [the interview] room, and how parents are not in the room
during the interview. Portions of the PCA interviews were
intermittently shown to the jury throughout Ms. Wilson’s testimony.
Ms. Wilson described both [Children] as being reluctant to discuss
what happened for fear of making [N.S.] mad because they “told
their business.” On cross-examination, Ms. Wilson detailed her
interactions with [Children] and how it was her opinion that the[y]
wanted to give her more information instead of assuming that they
were being untruthful.
Next, Detective Brian Meissler testified that he was the assigned
investigator on this case and that he met [N.S.] and [Children] at
St. Christopher’s Hospital for Children, where he spoke to [Children]
quickly and took a formal statement from [N.S.] While reviewing his
handwritten statement, Detective Meissler admitted that he made a
mistake on the form substituting the name Jose for [Morales’] name
-5-
J-S39010-20
J-S39011-20
Juan and that there was no mention during the interview with [N.S.]
of another individual.
Detective Meissler explained that he typically writes while conducting
interviews and when the interview is finished[,] he “ask[s] them to
read it . . . over and sign it, and sign and date the last page.”
Detective Meissler explained that when he completed this interview
with [N.S.] he followed this procedure with her[,] and since there
were no initials where changes were made[,] he believed “she did
not make any corrections.” Detective Meissler recalled [Child 1’s]
second interview with him at the police station, noting how at the
end of the interview she wrote “she sail [sic] him red hand did [sic]”
above her signature. Detective Meissler stated his belief that [Child
1] was withholding information during the interview.
On cross-examination, Detective Meissler described what a rape kit
is, the procedures [for] obtaining any evidence to be placed in a rape
kit, and how no biological evidence of the offender was found in
[Children’s] rape kits. Detective Meissler explained why he
continued questioning [Child 2] after she answered “no” to the
question “Did [Morales] ever touch you with his penis?” testifying
that it was his belief based on his 15 years of experience that she
“was withholding information that she didn't want to talk about[.]”
The Commonwealth [entered] two stipulations [into the record]
before resting their case-in-chief[:] the first stipulation concerned
the date and time [Children] were seen at St. Christopher’s Hospital
for Children and the second stipulation [confirmed Morales’] date of
birth as October 13, 1986.
For the defense, [Morales’] current girlfriend, Samantha Rivera,
testified that when she met [Morales] he was living in North Carolina
with his mother and [N.S.]. Ms. Rivera stated that [N.S.] told her
that the allegations against [Morales] were not true. On cross-
examination, Ms. Rivera again explained that when she asked [N.S.]
if the allegations against [Morales] were true, [N.S.] responded “no”
and that “she could not talk about it.”
Lastly, [Morales] testified that, on June 28, 2014, he attended a
family party with his then-girlfriend, [N.S.], and [C]hildren. During
the party, he and [N.S.] got into an altercation. [Morales] claimed
that after arriving home[, N.S.] wanted to continue to argue[.
I]nstead[, Morales] ignored her until he thought she was asleep
while he smoked, played [X]box, and texted on his phone. After
leaving the bedroom to get something to drink[,] [Morales]
explained that [N.S.] confronted him with his cell phone[,] asking
-6-
J-S39010-20
J-S39011-20
him to explain text message[. W]hen she did not like his response,
[Morales alleged N.S.] swung on him and threw the phone at him,
hitting him in the nose. [Morales] continued describing how he
pushed and held [N.S.] down until she calmed down and then they
both went to sleep. The next morning[, N.S.] suggested they go to
[a] flea market and they all got dress[ed] to go, but [N.S.] drove off
without [Morales] after he went to retrieve the baby’s sippy cup.
[Morales] stated that he called [N.S.] a few times[,] but she did not
answer and later he received a threatening phone call from [N.S.]’s
brother[,] calling him a pedophile and threatening to kill him.
[Morales] said that he was scared so he contacted his mother to tell
her what was going on and then traveled with his mother to
Charlotte, North Carolina[,] where he stayed until he was arrested
in 2016. [Morales] also detailed [N.S.]’s move with [C]hildren to
Candor, North Carolina[,] about five or six months after he moved
to Charlotte. During this time, he claimed that [N.S.] would visit
him in his mother’s home and was given a key to his mother’s house.
Lastly, [Morales] stated that he never sexually assaulted [Children].
On cross-examination, [Morales] explained that[,] through family
members[,] he heard that authorities were looking for him and
learned about the nature of the allegations against him. [Morales]
explained that once [N.S.] and [C]hildren moved to North Carolina[,]
he resumed his romantic relationship with [N.S.] and would . . .
keep[] his distance from [Children].
Trial Court Opinion, 10/25/19, 2-9 (citations to notes of testimony omitted).
After a four-day jury trial held in August 2018, Morales was acquitted of
all charges except two counts of EWOC; the jury specifically found that there
was a “course of conduct” with regard to the EWOC charges. See Verdict,
8/24/18; see also infra at n.17. On November 21, 2018, the court sentenced
Morales to two consecutive terms of 2½ to 5 years’ imprisonment. Morales filed
post-sentence motions; they were deemed denied by operation of law.6 Morales
____________________________________________
6Although the trial court entered an order on April 2, 2019, deeming Morales’
post-sentence motions denied by operation of law in case number 4444-2017, it
-7-
J-S39010-20
J-S39011-20
filed timely notices of appeal for each docket number below 7 and complied with
the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.8
On appeal, Morales raises the following issues for our consideration:
(1) Did the [c]ourt err when it permitted the jury to view the
videos of [C]hildren’s[] [PCA] forensic interviews without
holding the required in camera review of the evidence for
reliability and where the [videos] were neither admissible as
an exception to the rule against hearsay under the Tender
Years [E]xception or as a recollection recorded where
[C]hildren did not specifically testify that the videos accurately
reflected their knowledge at the time they were made or that
they were formally adopting them?
(2) Whether the [c]ourt erred in grading the EWOC charges as
felonies of the third degree where it did not instruct the jury
as to the “course of conduct” factual finding that was
____________________________________________
did not enter an order denying his post-sentence motions in case number 4004-
2017 until February 18, 2020, in response to our Court’s rule to show cause.
See Pa.R.Crim.P. 720(B)(3)(c). In any event, the appeal is properly before us.
See Pa.R.A.P. 905(a)(5) (stating that premature notice of appeal shall be treated
as filed on date appealable order entered). We direct the trial court to enter an
order on the docket specifically denying, by operation of law, counsel’s post-
sentence motion in case number 4444-2017.
7 Morales has complied with the dictates of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), which requires the filing of “separate appeals from an order
that resolves issues arising on more than one docket.” Id. at 977. See also
Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc)
(revisiting Walker holding) and Commonwealth v. Larkin, 235 A.3d 350 (Pa.
Super. 2020) (en banc) (same).
8 The trial court opinion inaccurately states that Morales filed a Post-Conviction
Relief Act (PCRA) petition in December 2018, when, in fact, he never filed such
a petition. Rather, this is a direct appeal from Morales’ judgment of sentence
following the denial of post-sentence motions.
-8-
J-S39010-20
J-S39011-20
necessary for grading EWOC as a [third] degree felony, thus
resulting in the imposition of an illegal sentence.
(3) Whether there was sufficient evidence to prove that [Morales]
was guilty of EWOC for having violated a duty of care,
protection, and support, either as a misdemeanor of the first
degree or as a felony of the third degree, where there was no
evidence that [Morales] had endangered the [C]hildren
through any non-sexual acts, where he was acquitted of the
underlying sexual assault charges and where there was no
reference in the [b]ills of [i]nformation that any non-sexual
events formed the basis of the EWOC charges.
(4) Whether [Morales’] convictions for EWOC, either as a
misdemeanor of the first degree or as a felony of the third
degree, for having violated a duty of care, protection and
support[,] were against the weight of the evidence where
there was no evidence that any non-sexual acts endangered
the children, where [Morales] was acquitted and where there
was no reference in the [b]ills of [i]nformation that any non-
sexual events formed the basis of the EWOC charges.
Appellant’s Brief, at 6-7 (renumbered for ease of disposition).
In his first issue, Morales argues that the trial court impermissibly allowed
the jury to view inadmissible forensic interviews of the Children where the trial
court did not first hold a required hearing to determine whether the Children’s
out-of-court-statements were relevant and “provide[d a] sufficient indicia of
reliability” under the Tender Years Exception. Appellant’s Brief, at 32. Morales
also asserts that the court erred in admitting the interviews as a prior recorded
recollection, under Pa.R.E. 803.1, where neither the court nor the
Commonwealth inquired as to whether either of the Children “adopt[ed]” the
substance of the forensic interviews. Id.[A] trial court’s ruling on evidentiary questions is within the sound
discretion of that court and will not be reversed absent a clear abuse of
-9-
J-S39010-20
J-S39011-20
discretion. Commonwealth v. Delbridge, 771 A.2d 1, 10 (Pa. Super. 2001)
(citation omitted). “An abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law.” Commonwealth v.
Mickel, 142 A.3d 870, 874 (Pa. Super. 2016).
Instantly, the Commonwealth introduced portions of the videos of the
Children’s PCA interviews to the jury during its direct examination of the
Children’s forensic interviewer, Ms. Wilson. N.T. Jury Trial, 8/22/18, at 111-26.
Prior to introducing the two video DVDs of the Children’s interviews, defense
counsel objected to them being played with regard to Child 2, who had not yet
been impeached. Counsel specifically objected on the basis that playing the
video interview of Child 2 “would be improper bolstering of her credibility.”
Id. at 62 (emphasis added). Counsel for the Commonwealth then told the court
she did not intend to admit the videos as prior consistent statements, but, rather,
as statements made pursuant to the Tender Years Exception (TYE). Id. at 63.
Immediately prior to the court admitting the evidence, defense counsel stated
that his “position is that these videos have lost their relevance, because I didn’t
impeach the credibility of the witness.” Id. at 66.
The Commonwealth asserts in its brief that Morales waived any objection
to the admission of the evidence based on the TYE or recorded recollection.
Appellee’s Brief, at 10. We are constrained to agree. Any objection counsel
raised at trial regarding the lack of relevancy of the evidence, see id. at 66, did
not apply to the admission of the evidence under the TYE or as a recorded
- 10 -
J-S39010-20
J-S39011-20
recollection. 9 See Pa.R.A.P. 302(a). Moreover, counsel failed to raise any issue
regarding admission of the evidence under the TYE10 or recorded recollection in
____________________________________________
9 We similarly find no merit to the objection made by Morales’s counsel at trial
on the issue of admissibility of the Children’s forensic interviews (the same one
he raised in his Rule 1925(b) statement)—that the videos improperly bolstered
the credibility of the child-victims. Counsel was permitted to cross-examine one
of the Children regarding her credibility before the videotape evidence was
admitted at trial, the tape did not antedate either Child’s alleged motive to lie,
and the jury was able to view the videotaped interviews during deliberations—
after both Children had been cross-examined. See Commonwealth v. Bond,
190 A.3d 664 (Pa. Super. 2018).
10 Even though we find that Morales has waived this issue on appeal, we
admonish the Commonwealth for its failure to comply with the stringent notice
requirement of section 5985.1, which states:
(b) Notice required.--A statement otherwise admissible under
subsection (a) shall not be received into evidence unless the
proponent of the statement notifies the adverse party of the
proponent’s intention to offer the statement and the particulars of
the statement sufficiently in advance of the proceeding at which the
proponent intends to offer the statement into evidence to provide
the adverse party with a fair opportunity to prepare to meet the
statement.
42 Pa.C.S.A. § 5985.1(b). “Relative to the notice requirement under this
hearsay exception, the Commonwealth has the burden of providing actual notice
of an intention to offer the hearsay statement.” Commonwealth v. O'Drain,
829 A.2d 316, 320 (Pa. Super. 2003). The section 5985.1(b) “notice provisions
are strict and must be strictly observed.” Commonwealth v. Crossley, 711
A.2d 1025, 1028 (Pa. Super. 1988). Here, the Commonwealth notified Morales
on the second day of trial, at the conclusion of Child 1’s testimony, that it
intended to offer the videos under the TYE. This hardly fulfills the requirement
that the “adverse party . . . [receive notice] in advance of the proceeding at
which the proponent intends to offer [it].” 42 Pa.C.S.A. § 5985.1(b) (emphasis
added). See Commonwealth v. Luster, 234 A.3d 836 (Pa. Super. 2020)
(forensic interview of minor victim improperly admitted, resulting in defendant’s
convictions and judgment of sentence being vacated and case remanded for new
trial, where Commonwealth did not give formal written notice to defendant until
- 11 -
J-S39010-20
J-S39011-20
his Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii). Thus, we deem
the issue waived.11
In his next issue on appeal, Morales contends that his sentence is illegal—
where the trial court sentenced him to EWOC as a third-degree felony, when the
trial court did not instruct the jury on course of conduct, and where there was
no factual basis presented in the bills of information to support course of conduct
under section 4304.12
____________________________________________
day of trial that it intended to offer evidence under TYE and despite fact that
Commonwealth provided oral notice of intention to present video one week
before trial during plea negotiations and again during jury selection).
Fortunately for the Commonwealth, Morales did not object to the lack of section
5985.1 notice, thus he has waived any alleged error. See Commonwealth v.
Cousar, 928 A.2d 1025, 1041 (Pa. 2007) (“A party complaining, on appeal, of
the admission of evidence in the court below will be confined to the specific
objection there made.”).
11 The court also replayed the videos to the jury during deliberations, with no
objection from counsel. See N.T. Jury Trial, 8/27/18, at 3, 5 (during
deliberations, jury asked trial judge to view victims’ recorded PCA interviews;
judge complied and replayed videos). The interviews were conducted just one
day after the June 29, 2014 alleged sexual assault on Child 1. The trial judge,
relying on Commonwealth v. Shelton, 170 A.3d 549 (Pa. Super. 2017), states
in his Rule 1925(a) opinion that “[a]though the victim[s were] able to testify at
trial about many details of the abuse, from [its] review of the transcribed
portions of the video recording, [it] discern[ed] that the victim[s] reported the
event of abuse more fully, with a greater level of detail, at [their] forensic
interview[s].” Trial Court Opinion, 10/25/19, at 18, citing Shelton, 170 A.3d at
552.
12 In its information on bill #CP-51-CR-0004004-2017, the Commonwealth
charged Morales with EWOC as Count 3, alleging that:
On or about 04/01/2014
On diverse dates between 2012 through 2014 the defendant[:]
- 12 -
J-S39010-20
J-S39011-20
A jury charge will be found adequate unless the issues are not made clear,
the jury was misled by the instructions, or there was an omission from the charge
amounting to a fundamental error. Von der Heide v. Com., Dep't of Transp.,
718 A.2d 286, 288 (Pa. 1998). The proper grading of a defendant’s convicted
offense is an issue of statutory interpretation by which an appellate court
determines the lawfulness of the sentence imposed. Commonwealth v. Reed,
9 A.3d 1138, 1142 (Pa. 2010); Commonwealth v. Felder, 75 A.3d 513, 515
(Pa. Super. 2013) (proper grading of criminal offense is issue of statutory
interpretation and implicates legality of sentence imposed). As it is purely a
____________________________________________
Being a parent, guardian, or other person supervising the welfare of
a child under 18 years of age, or a person that employs or supervises
such a person, the actor knowingly endangered the welfare of the
complainant child by violating a duty of care, protection or support[.]
Course of Conduct: Notice is hereby given that the
Commonwealth grades the offense as a felony of the third
degree under 18 [Pa.C.S.A.] § 4304(b)[,] where there was a
course of conduct of endangering the welfare of the
complainant child.
Commonwealth’s Criminal Information on #4004-2017, 5/16/17, at 1 (emphasis
added).
However, on bill #CP-51-CR-0004444-2017, noticeably missing from the
information is any course of conduct language giving notice that the
Commonwealth is grading the offense as a third-degree felony under section
4304(b). Rather, on that bill the Commonwealth lists EWOC as a third-degree
felony under section 4304(a)(1) and notes that it occurred “On or about
01/01/2012 thorough 12/31/2014.” Commonwealth’s Criminal Information on
#4444-2017, 5/16/17, at 1.
- 13 -
J-S39010-20
J-S39011-20
question of law, the appellate court’s scope of review is plenary, and its standard
is de novo. Id.
Under our Commonwealth’s EWOC statute, 18 Pa.C.S. § 4304, an offense
is graded as a first-degree misdemeanor, id. at § 4304(b)(1)(i), unless “the
actor engages in a course of conduct of endangering the welfare of child” or
creates a substantial risk of death or serious bodily injury, in which cases the
offense is graded as a third-degree felony. Id. at § 4304(b)(1)(ii) (emphasis
added); Id. at §§(b)(1)(iii). The EWOC statute does not define the term “course
of conduct.” Cf. 18 Pa.C.S.A. § 2709.1(f) (defining “[c]ourse of conduct” as
used in harassment statute); id. (defining “course of conduct” as used in stalking
statute). See Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa. Super.
2014) (noting that “course of conduct” language in EWOC statute used in grading
of offense, as opposed to element of offense, and pointing out that EWOC statute
does not define term but that “the phrase is clearly used in that context to
differentiate the penalties for single and multiple endangering acts”); see also
18 Pa.C.S. § 3126(b)(3)(ii) (indecent assault statute graded as third-degree
felony where “[t]here has been a course of conduct of indecent assault by the
person”).
To support his claim, Morales cites to Commonwealth v. Popow, 844
A.2d 13 (Pa. Super. 2004), where the defendant was acquitted of aggravated
assault charges, but convicted of simple assault, defiant trespass, REAP,
stalking, and EWOC. On appeal, Popow argued that he was improperly
sentenced on EWOC as a third-degree felony where “neither the information nor
- 14 -
J-S39010-20
J-S39011-20
the evidence made out a course of conduct that would raise this charge from a
misdemeanor of the first degree to a felony of the third degree and where the
jury was not instructed on a course of conduct[.]” Id. at 15-16. In analyzing
the grading issue, our Court recognized that “‘course of conduct’ is not an
element of the offense of endangering the welfare of a child, but it is an
additional fact, a jury question, that impacts the grading of the offense.” Id. at
18. Because EWOC was erroneously graded in the information as a third-degree
felony where there were no facts alleged or proven in the case to support the
grading, and because the court did not mention “course of conduct” in its EWOC
instruction, our Court “conclude[d] that the trial court improperly graded this
offense as a felony of the third-degree.” Id. We remanded the case to the trial
court “for imposition of a sentence within the legal sentencing range and
consideration of the sentencing guidelines of this crime as a misdemeanor of the
first degree, rather than as a felony of the third degree.” Id.The Commonwealth claims in its brief that Morales was put on notice that
there would be evidence of course of conduct presented at trial where “[t]he bills
of information under both docket numbers . . . charged [Morales] with third-
degree felony endangerment for actions committed between 2012 and 2014.”
Appellee’s Brief, at 17. The Commonwealth also asserts—in any event—that
Morales has waived the grading claim because it does not implicate the legality
of Morales’ sentence and he did not object at sentencing to the improper grading.
Id. at 20 n.3.
- 15 -
J-S39010-20
J-S39011-20
To support its position on waiver, the Commonwealth cites to
Commonwealth v. Spruill, 80 A.3d 453 (Pa. 2013), where our Supreme Court
stated “to the extent that the Superior Court’s decisions in [Commonwealth v.
] Kisner, [736 A.2d 672 (Pa. Super. 1999),] [Commonwealth v.] Passarelli,
[789 A.2d 708 (Pa. Super. 2001),] and [Commonwealth v.] Coto, [932 A.2d
933 (Pa. Super. 2007),13] may be read to be inconsistent with our decision today,
they must stand down.” Id. at 463 n.13. Because the Popow Court relied, in
____________________________________________
13 In Kisner, the Superior Court vacated the defendant’s judgment of sentence
for rape as a first-degree felony and remanded for resentencing where he had
not been sentenced in accordance with the grade specified in both the
information and the waiver colloquy. The defendant framed his claim on appeal
as an illegal sentence—one where the trial court imposed a sentence higher than
that charged in the information and set forth in the waiver colloquy.
In Passarelli, the defendant-father claimed that there was insufficient evidence
to support his EWOC conviction where defense expert witnesses testified that
injuries to his three-month-old baby could have occurred prior to the mother’s
departure and that the injuries could not have resulted from the defendant-
father shaking the baby. On appeal, our Court concluded there was sufficient
evidence to support the defendant’s EWOC conviction. The defendant framed
his claim on appeal as an illegal sentence—one where the sentence imposed on
the charge of EWOC graded as an M-1, but where the trial court imposed a
sentence on an offense lower than the offense charged in the information.
In Coto, the defendant argued that there was insufficient evidence to prove he
was ineligible to obtain a license to carry a concealed weapon, so the offense
was improperly graded as a felony. On appeal, our Court affirmed the
defendant’s conviction, finding that the statutory provisions to lessen the grade
of the offense were intended to be sentencing factors, not a new element of the
offense and, thus, were not an affirmative defense to be proven by the
prosecution. Therefore, the defendant had the burden to prove at sentencing,
by a preponderance of the evidence, that the exception to lessen the grading
applied.
- 16 -
J-S39010-20
J-S39011-20
part, on those cases, the Commonwealth contends that Popow is also no longer
good law and, thus, Morales’ claim is not a non-waivable issue.
In Spruill, the defendant was charged, inter alia, with three counts of
aggravated assault. In the bills of information, the Commonwealth denoted the
aggravated assault charges as “F[-]1’s” (first-degree felonies); however, the
description of the elements of the offense encompassed both first-degree and
second-degree felony aggravated assault. Following a bench trial, the defendant
was found guilty of F-2 aggravated assault on two of the three counts. The
defendant did not object to the verdict based upon the grading of the convictions
as an F-2. On direct appeal, the defendant challenged the sufficiency of the
evidence to support her aggravated assault convictions as second-degree
felonies; specifically, she argued that the Commonwealth abandoned the F-2
charge. Id. at 456. The Commonwealth countered by claiming that the
defendant waived the issue by failing to object before the trial court. Id. at 456-
57.
On appeal, our Court found that the defendant’s claim was a non-waivable
legality of sentence claim, examined the merits of the issue, and focused its
attention on two pages of the trial transcript where the assistant district attorney
said that the case involved the intent to cause serious bodily injury (F-1
language) and where the trial court and the Commonwealth agreed that they
“we[]re only going on an F-1.” Id. at 458. Our Court determined that these
comments in the record established that the Commonwealth had, in fact,
abandoned the F-2 charge and pursued aggravated assault only as an F-1 at
- 17 -
J-S39010-20
J-S39011-20
trial. Id. Accordingly, the panel vacated the defendant’s F-2 convictions and
did not address the remaining sufficiency of the evidence claim. Id.
After being denied reargument, the Commonwealth sought and was
granted discretionary review by the Pennsylvania Supreme Court. On appeal,
the Supreme Court found it necessary to clarify the “complexities” that “arise
from disagreement among the members of the Court concerning whether a
particular claim implicates the legality of a sentence.” Id. at 461. First, it noted
the classic and easily decipherable legality of sentence claim—where a term
imposed exceeds the statutory maximum. Then, the Court proceeded to
acknowledge that “the more difficult case may generate multiple expressions
and even a failure to achieve a consensus.” Id. Turning to the case at hand,
the Court noted that it was faced with “the more elemental question of whether
the claim posed is a sentencing claim at all.” Id. The Court clarified that the
defendant’s claim involved her underlying conviction, not the actual sentence
the court later imposed, finding force to the Commonwealth’s argument that
nothing on the face of the record suggest[s] a fatal problem with the
sentence: the trial court delivered a guilty verdict of F[-]2
aggravated assault, and the sentence imposed was within the
statutory range for such an offense. To succeed, the [defendant]
needs to prove an error respecting the verdict, not the sentence.
Id. at 462 (emphasis in original). The Court stated: “Even if the challenge could
be construed as implicating the sentence, this is not the sort of instance
suggesting non-waivable ‘illegality.’” Id. at 463. Accordingly, the Spruill Court
reversed our Court’s order and remanded the matter, holding that because the
defendant’s challenge involved her underlying conviction at trial and not the
- 18 -
J-S39010-20
J-S39011-20
sentence, the claim did not implicate the legality of her sentence and, thus the
claim was subject to waiver. Id. at 463-64.
The Supreme Court also determined that when the issue involves “fact-
driven matters,” such as where the inquiry centers around a sufficiency
argument, then it typically is not a non-waivable legality of sentence claim. Id.
In Spruill, the defendant’s claim specifically hinged upon “what offenses were
charged and pursued, and specifically whether the Commonwealth in fact
affirmatively withdrew the F2 aggravated assault charge.” Id. We find the facts
in Spruill are inapposite to the claim presented by Morales in the instant case.
First, while the language in one of the two bills of information did include
the “course of conduct” language putting Morales on notice of the
Commonwealth’s intent to prosecute the EWOC charge as a third-degree felony,
the record similarly evinces that the other bill did not contain the same “course
of conduct” language. Second, and just as concerning, is the fact that the trial
judge did not instruct the jury, before its deliberations, that Morales was being
charged under a course of conduct theory in order to prove either EWOC charge
as a third-degree felony—a fact that the jury is required to specifically find in
order to have the offense graded as a felony. See Popow, supra at 18 (“'We
cannot merely assume the jury found th[e] additional fact of [course of conduct]
when no evidence of it was presented at trial and no mention of it was made
in the jury’s charge.”); see also Commonwealth v. Shamberger, 788 A.2d
408 (Pa. Super. 2001) (en banc) (whether property taken from person is not
element of theft statute, but is factor for grading purposes; “factor” is question
- 19 -
J-S39010-20
J-S39011-20
for jury). Compare N.T. Jury Trial, 8/24/18, at 34, 43 (during jury instructions
in instant case, judge only defined course of conduct with regard to indecent
assault and corruption of minors charges)14 with Commonwealth v. Smith,
206 A.3d 551 (Pa. Super. 2019) (where trial court instructed jury “to find that
Appellant committed acts on ‘numerous occasions’ that corrupted or tended
to corrupt victim’s morals,” instruction was consistent with “course of conduct”)
(emphasis added and in original).
Instantly, the relevant inquiry on this issue is not what offenses were
pursued by the Commonwealth at trial and whether the evidence was sufficient
to prove EWOC as a third-degree felony; in fact, the issue does not bear at all
on the guilt or innocence of Morales with regard to the offense. Rather, the issue
____________________________________________
14 Specifically, the trial judge told the jury that in order for the Commonwealth
to prove, beyond a reasonable doubt, that Morales committed indecent contact
with the Children, the jury first had to find that Morales committed the two
elements of the offense and if, and only if, it made that determination of guilt,
the should jury “indicate on the verdict form whether you also find the follow[ing]
elements proven beyond a reasonable doubt: ‘A, there has been a course of
conduct of indecent assault’ and/or, ‘B, the indecent assault was committed
by touching the complainant’s sexual or intimate part with sexual or intimate
parts of the person.’” N.T. Jury Trial, 8/24/18, at 34-35 (emphasis added). The
court then defined course of conduct as follows:
A course of conduct means a pattern of actions composed of one or
more act over a period of time, however short, evidencing a
continuity of conduct[.]
Id. Notably, the jury found that Morales was not guilty of indecent conduct and
did not answer the question as to whether there was a course of conduct. Verdict
Report, 8/23/18.
- 20 -
J-S39010-20
J-S39011-20
concerns the determination of the appropriate punishment for Morales—a fact
the jury must determine beyond a reasonable doubt after the jury has already
determined that he is guilty of EWOC. Thus, the error concerns Morales’
sentence, not the underlying conviction,15 and, therefore, implicates the legality
of his sentence. Spruill, supra. Cf. In the Interest of D.P., 233 A.3d 847(Pa. Super. 2020) (juvenile contested adjudication of delinquency for indecent
assault (F-3), not non-waivable legality of sentence, where he argued that he
had not been put on notice that Commonwealth was proceeding with such
grading and that evidence was insufficient to demonstrate “course of conduct’
necessary to justify F-3 grading); Commonwealth v. Hoffman, 198 A.3d 1112,
1123 (Pa. Super. 2018) (“[A] claim that the court improperly graded an offense
for sentencing purposes implicates the legality of a sentence.”) (citations and
quotation marks omitted).
Undoubtedly, under the EWOC statute, in order to grade the offense as a
third-degree felony, a specific determination must be made that “the actor
____________________________________________
15 As noted earlier, the verdict sheet reflects that the jury made a specific finding
that the EWOC charge was based on a “course of conduct,” see supra at 7-8,
and the jury foreperson stated same in rendering the verdict. See N.T. Jury
Trial, 8/27/18, at 7. However, the judge never instructed the jury on “course of
conduct” as it related to EWOC—an additional fact that impacts the grading of
the offense. Popow, supra. Again, we find this flaw in the court’s instruction
led to a fundamental error necessitating remand for the proper grading of the
offense as an M-3. See Commonwealth v. Johnson, 630 Pa. 493, 552, 107
A.3d 52, 87-88 (2014) (citation omitted) (in reviewing challenge to jury
instruction, entire charge is considered, not merely discrete portions thereof;
trial court free to use its own expressions as long as the concepts at issue
are clearly and accurately presented to the jury) (emphasis added).
- 21 -
J-S39010-20
J-S39011-20
engaged in a course of conduct” of endangering the welfare of a child. Compare
Reed, supra at 642 (noting that unlawful contact with minor statute requires
no factual determination of crime “for which the defendant contacted the minor”
in order to determine proper grading) with Felder, supra at 517 (noting that
witness/victim intimidation statute “provides merely that the crime will be
graded as a first-degree felony if a first-degree felony ‘was charged in the
case’”) (emphasis added). Here, where the trial court did not instruct the jury
on “course of conduct,” it was not able to determine facts to support the grading
of EWOC as a third-degree felony. This amounted to a fundamental error. Von
der Heide, supra. See Commonwealth v. Hartman, 638 A.2d 968, 971 (Pa.
1994) (when court instructs jury, objective is to explain to jury how to approach
its task and factors it should consider in reaching verdict). Because we cannot
conclude that the jury understood that it was making a finding on course of
conduct on the EWOC charge, without any instruction, the court’s sentence on
that offense as an F-3 is illegal. Thus, Morales is entitled to resentencing on the
EWOC offenses as M-1’s.
In his final two issues on appeal, Morales contends that his EWOC
convictions are against the sufficiency and weight of the evidence where “he was
acquitted of all sexual assault charges” and where “the jury apparently reached
some type of compromise verdict [on EWOC]. . . and clear[ly] . . . did not believe
that the weight of the evidence established that [Morales] engaged in any sexual
behaviors toward the [C]hildren.” Appellant’s Brief, at 39-41. He is entitled to
no relief.
- 22 -
J-S39010-20
J-S39011-20
A challenge to the sufficiency of the evidence presents a question of law
and is subject to plenary review. Commonwealth v. Hitcho, 123 A.3d 731,
746 (Pa. 2015). The test is whether the evidence admitted at trial supports the
jury’s finding of all the elements of the offense beyond a reasonable doubt.”
“The entire trial record must be evaluated and all evidence received must be
considered.” Commonwealth v. Woods, 638 A.3d 1013, 1015 (Pa. Super.
1994) (citation omitted). “In reviewing the sufficiency of the evidence, all
reasonable inferences must be drawn in favor of the Commonwealth as the
verdict winner.” Commonwealth v. Mitchell, 902 A.2d 430, 444 (Pa. 2006).
The crime of endangering the welfare of children is defined, in relevant
part, as follows:
(a) Offense defined.
(1) A parent, guardian or other person supervising the welfare
of a child under 18 years of age, or a person that employs or
supervises such a person,[16] commits an offense if he
knowingly[17] endangers the welfare of the child by violating
a duty of care, protection or support.
____________________________________________
16 The term “person supervising the welfare of a child” means “a person other
than a parent or guardian that provides care, education, training or control of a
child.” 18 Pa.C.S.A. § 4304(a)(3). Thus, it is undisputed that Morales, who
often babysat Children while N.S. was at work during the day, fits within this
definition. Again, Morales does not challenge this element of the EWOC statute.
17 Under the Crimes Code, a person acts knowingly with respect to a material
element of an offense:
- 23 -
J-S39010-20
J-S39011-20
18 Pa.C.S.A. § 4304(a)(1) (emphasis added). Pennsylvania courts have
established a three-part test that must be satisfied to prove EWOC:
(1) [T]he accused [was] aware of his/her duty to protect the child;
(2) [T]he accused [was] aware that the child [was] in circumstances
that could threaten the child’s physical or psychological welfare; and
(3) [T]he accused has either failed to act or has taken action so lame
or meager that such actions cannot reasonably be expected to
protect the child’s welfare.
Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997) (quoting
Commonwealth v. Cardwell, 515 A.2d 311, 315 (Pa. Super. 1986)).
In Commonwealth v. Taylor, 471 A.2d 1228 (Pa. Super. 1984), our
Court discussed the legislature’s intent in enacting section 4304 and its broad
statutory purpose:
The Supreme Court has said that [s]ection 4304 was drawn
broadly to cover a wide range of conduct in order to
safeguard the welfare and security of children. It is to be
given meaning by reference to the common sense of the
community and the broad protective purposes for which it
was enacted. Commonwealth v. Mack, [] 359 A.2d 770, 772
([Pa.] 1976). Thus, 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.” Id., quoting Commonwealth v. Marlin, [] 305 A.2d 14, 18
____________________________________________
(i) if the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that
such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that
it is practically certain that his conduct will cause such a result.
18 Pa.C.S.A. §§ 302(b)(2)(i) and (ii).
- 24 -
J-S39010-20
J-S39011-20
([Pa.] 1973) and Commonwealth v. Randall, [] 133 A.2d 276, 280
([Pa. Super.] 1957).
Id. at 1231 (emphasis added). Compare Commonwealth v. Morrison, 401
A.2d 1348 (Pa. Super. 1979) (EWOC conviction upheld on sufficiency grounds
where it was based on failure of parents to take child to doctor for two months,
burns on child’s penis had not healed, and penis began to swell, became infected,
and lack of treatment rendered loss of organ possible) with Commonwealth
v. A.R.C., 150 A.3d 53 (Pa. Super. 2016) (evidence insufficient to support EWOC
conviction where evidence showed defendant had no idea child had sustained
injuries prior to hospital visit and both defendant’s boyfriend and defendant’s
mother testified they never saw defendant mistreat child).
Like the sufficiency argument advanced by Morales on appeal, the
defendant in Taylor, supra, claimed that because a jury acquitted him of
charges of assault and sexual offenses, his conviction for EWOC should be set
aside. In Taylor, the defendant drove his thirteen-year-old daughter and her
twelve-year-old friend to Ocean City, New Jersey, where the three visited the
boardwalk until they returned home at approximately 10:15 P.M. Id. at 1229.
During the car ride home, the defendant drank several beers, became tired, lost
his way, and narrowly avoided two accidents. Id. When he became too tired to
continue driving, defendant stopped at a motel room to spend the night. Id.
According to the Commonwealth, the defendant made sexual advances to the
young girls, allegedly choked them, threw them on the bed, grabbed at their
private parts, and wrapped his legs around them. Id. The Commonwealth also
presented evidence that defendant pushed his daughter’s friend to the bed,
- 25 -
J-S39010-20
J-S39011-20
causing her to fall, strike her head, and sustain a swollen lip. Id. Defendant
then allegedly exposed his genitalia, removed a packet of condoms from his
pocket, and told his daughter that he could prevent her pregnancy by using one.
Id. The defendant ultimately fell asleep and took the girls home the following
morning, threatening to kill them if they told anyone what had happened in the
motel room. Id.
On appeal, one of the arguments advanced by the defendant was that the
jury’s acquittal of the sexual offenses “was a rejection of the [victims’] testimony
regarding events that allegedly occur[red] in the motel room.” Id. at 1231. Our
Court found defendant’s argument meritless, noting that “a fact finder may
render inconsistent verdicts,” and “[a] jury’s verdict in a criminal case will not
be set aside merely because it appears to be inconsistent with another verdict
of the jurors[, s]o long as the challenged verdict is supported by the evidence.”
Id. See also Commonwealth v. Miller, 35 A.3d 1206, 1209 (Pa. 2012)
(“[T]he fact that the inconsistency [in the verdict] may be the result of lenity,
coupled with the Government’s inability to invoke review, suggests that
inconsistent verdicts should not be reviewable.”) (citation omitted).
Like the facts in Taylor, the affidavit of probable cause attached to the
criminal complaint here alleges that the sexual encounters and viewing of explicit
sexual materials formed “the facts tending to establish the grounds for the
issuance of the warrant of arrest” for Morales. See Criminal Complaint/Affidavit
of Probable Cause, 3/18/17, at 1; see also N.T. Jury Trial, 8/24/18, at 27 (in
instruction to jury, trial court states, “If, after considering all the evidence, you
- 26 -
J-S39010-20
J-S39011-20
find that the Commonwealth has established beyond a reasonable doubt all of
the elements [of EWOC], you must find the defendant guilty.”) (emphasis
added). Moreover, the criminal complaint, itself, predicated all charges upon a
course of continuing sexual conduct—specifically, testimony from Children and
N.S. that Morales exposed himself to Children, touched their private parts, had
them perform oral sex on him, and showed them inappropriate videos of sexually
explicit material. See N.T. Jury Trial, 8/24/18, at 21 (trial judge instructing jury
that “information alleges that the crime was committed on diverse dates
between January 2012 and June 2014”). Unlike Taylor, here the
Commonwealth’s case did focus on the sexual conduct alleged in the bills of
information.
While sexual conduct formed the factual basis for all charges, including
EWOC, and the jury acquitted Morales of all sexual offenses, Morales, himself,
admits that this appears to be a compromise verdict situation. In such cases,
we are mindful of the following:
[T]he United States Supreme Court has recognized that a court’s
review of the evidentiary sufficiency of a particular conviction is
separate from its review of inconsistent verdicts, as sufficiency
review entails an assessment of whether the evidence was sufficient
for the jury to convict a defendant of a particular offense and is
“independent of the jury’s determination that evidence on another
count was insufficient.” United States v. Powell, 469 U.S. 57, 67
[] (1984). Thus, the Supreme Court has explicitly cautioned
that sufficiency review “should not be confused with the
problems caused by inconsistent verdicts.” Id. Accordingly, in
line with the high Court, we emphasize that such challenges are
more appropriately characterized as challenges to the inconsistency
of the jury’s verdict, rather than to the sufficiency of the evidence to
sustain a particular conviction.
- 27 -
J-S39010-20
J-S39011-20
Commonwealth v. Moore, 103 A.3d 1240, 1242 n.3 (Pa. 2014) (emphasis
added).
We conclude that the jury’s acquittal of sexual offenses filed against
Morales is not equivalent to a factual finding, and, therefore does not render
inconsistent verdicts improper so long as there is sufficient evidence presented
by the Commonwealth at trial to support the EWOC guilty verdicts. Miller,
supra at 1208; United States v. Powell, 469 U.S. 57, 58 (1984)
(“[I]nconsistent verdicts, [] under longstanding federal and state law, are
allowed to stand so long as the evidence is sufficient to support the conviction.”).
Inconsistent verdicts are permissible, and “factual findings may not be inferred
from a jury’s acquittal.” Moore, 103 A.3d at 1248. After a review of the record,
we are convinced that the Commonwealth presented sufficient evidence which,
if believed, would support the jury’s EWOC verdict.18 Commonwealth v.
Ketterer, 725 A.2d 801, 804 (Pa. Super. 1999) (“Any question of doubt is for
the fact-finder, 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.”).
Mindful of the fact that “even where two verdicts are logically inconsistent, such
inconsistency alone cannot be grounds for a new trial or reversal,” Miller, supra
at 1213, we find no merit to Morales’ sufficiency claim.
____________________________________________
18Morales was charged with twenty-four counts of assault and sexual offenses;
the jury acquitted him of all but two counts of EWOC. Morales only contests the
sufficiency of the evidence as it applies to the portion of the EWOC statute that
requires the perpetrator “violat[e] a duty of care, protection or support.” 18
Pa.C.S.A. § 4304(a)(1).
- 28 -
J-S39010-20
J-S39011-20
In his final issue, Morales contends that the verdict was against the weight
of the evidence where: the jury acquitted him of all sexual assault charges,
Children’s mother had both a motive to fabricate and a motive to coach the
[C]hildren to fabricate, there was a lack of prompt complaints, and, subsequent
to the alleged incidents, the mother and Children renewed their relationship with
Morales in North Carolina.19
“An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court.” Commonwealth v. Sullivan,
820 A.2d 795, 805-06 (Pa. Super. 2003) (citation omitted).
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court. Appellate review of a weight claim is a
review of the exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the evidence.
Commonwealth v. Mucci, 143 A.3d 399, 410 (Pa. Super. 2016) (citation
omitted). Moreover, “[i]n order for an appellant to prevail on a challenge to the
weight of the evidence, the evidence must be so tenuous, vague and uncertain
that the verdict shocks the conscience of the court.” Id. (citation omitted).
Here, the Children testified that Morales exposed his private part, touched
their private parts, and showed them explicit videos of a sexual nature. The fact
that Children’s mother may have had a motive to fabricate the events and/or
coach the Children to lie about Morales’ actions does not equate to an abuse of
____________________________________________
19Morales preserved his weight of the evidence claim by including it in his post-
sentence motions. See Pa.R.Crim.P. 607.
- 29 -
J-S39010-20
J-S39011-20
the trial court’s discretion where it concluded that the verdict was not against
the weight of the evidence. Notably, the jury as the fact finder “is free to believe
all, part or none of the evidence and to determine the credibility of [the]
witnesses.” Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999). The
jury credited the Children’s testimony as truthful and did not believe the
defense’s claim that the allegations against Morales were fabricated. Under such
circumstances, we cannot conclude that the court abused its discretion. See
Commonwealth v. Cramer, 195 A.3d 594, 601 (Pa. Super. 2018) (when trial
court finds verdict not against weight of evidence, appellate court must give
gravest consideration to trial court’s conclusion because it had opportunity to
hear and see evidence presented). Thus, this claim is meritless.
Judgment of sentence vacated; convictions affirmed. Case remanded for
resentencing with consideration of Sentencing Guidelines for EWOC charges
graded as misdemeanors of the first degree. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2021
- 30 -