Com. v. Williams, G.

J-S56018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GORDON CHARLES WILLIAMS
Appellant No. 45 MDA 2016
Appeal from the Judgment of Sentence December 14, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002854-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED AUGUST 19, 2016
Appellant, Gordon Charles Williams, appeals from the judgment of
sentence entered December 14, 2015, in the Court of Common Pleas of
Berks County, following his conviction of Rape of a Child, Indecent Assault,
Corruption of Minors, Endangering the Welfare of Children and Indecent
Exposure.1 No relief is due.
The trial court summarized the facts of this case as follows.
In January 2010, [B.H.] and Appellant lived at 928 Church
Street in the City of Reading with four children, including eight-
year-old [K.H.] (“the victim”). The other children included [T.B.],
[K.H.], and [R.W.]. [R.W.] is the son of [B.H.] and Appellant,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3121(c); 3126(a)(7); 6301(a)(1); 4304(a)(1); and
3127(a), respectively.
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who were engaged to be married and had moved in together in
2005.
On January 8, 2010, [B.H.] left work early at 2 p.m. She
arrived home approximately seven minutes later, where she
found the front door and deadbolt both locked. When she walked
inside, all the lights were turned off. … [B.H.] did not see or hear
Appellant in the kitchen, so she went upstairs. At the top of the
stairs, she looked into her daughters’ bedroom and saw a large,
dark lump that did not look like the normal blanket she would
expect to see. [B.H.] turned the light on, and she saw Appellant
and [the victim] on the bottom bunk of a bunk bed. Both were
naked from the waist down, and Appellant was holding [the
victim’s] hip up against him. [The victim] had stayed home from
school because she felt sick.
[The victim] began screaming and crying and she ran to
the middle of the room where her pants were laying. [B.H.]
began yelling, and Appellant eventually pulled up his pants and
walked down the steps. [B.H.] told [the victim] to stay in the
room, and she ran down the stairs after Appellant. Downstairs,
Appellant was holding [R.W.] and he said, “Daddy has to go
now.” [B.H.] and Appellant exchanged some physical blows, and
then [B.H.] called 9-1-1 as Appellant left the home.
Officers arrived at the house to investigate. Later that day,
[B.H.] took [the victim] to the hospital to be examined. Dr.
Renee Riddle, a pediatrician at Reading Hospital, testified that
[the victim] had some bruising on her buttocks and a tear in her
hymen. One week later, the tear was healed, indicating that the
tear likely occurred around the time of the initial evaluation.
Sometime that day, Appellant went to the home of
Kimberly Hawley, a friend of the family. He seemed “unusual”
and “nervous,” and he asked for some money in order to travel
to Harrisburg on a bus. Later, Kimberly received a phone call
from [B.H.], who hysterically explained what had happened.
Zach Smith of the Berks County Sheriff’s Department was
working in the warrant division on January 15, 2010. Smith was
assigned to go to 62 North Second Street in Hamburg, Berks
County to serve a warrant for Appellant. After Smith had
knocked and announced his presence, Appellant opened the door
and then turned to walk away. Smith took Appellant to the
ground and handcuffed him. Once Appellant was brought to his
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feet, Smith noticed that his neck and shirt were bloody. Smith
saw there was small razor on the ground.
[The victim] testified that Appellant began abusing her at
age four. She remembered that detail because it began before
she was potty-trained. Appellant raped her repeatedly
throughout the ensuing years by putting his penis in her vagina.
Appellant also would touch his penis to her mouth, which she
refused. [The victim] often cried because of the physical pain,
and he would insist that she be quiet. The assaults occurred in
the bathroom, the laundry room, Appellant’s bedroom, and [the
victim’s] bedroom.
[The victim] eventually revealed additional details to
William Kase, then a criminal investigator with the City of
Reading Police Department. [She] described Appellant’s penis
and stated that he had inserted his penis into her vagina on
January 8, 2010 before her mother entered the bedroom.
Trial Court Opinion, 3/7/15 at 2-3 (record citations omitted).
A jury convicted Appellant of the aforementioned charges. The trial
court sentenced Appellant to a term of 20 to 40 years’ imprisonment.2
Appellant filed a post-sentence motion, which the trial court denied. This
timely appeal followed.
Appellant first argues that the trial court erred in denying his post-
sentence motion challenging his convictions as contrary to the weight of the
evidence. A challenge to the weight of the evidence “concedes that the
evidence is sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in favor of
acquittal that a guilty verdict shocks one’s sense of justice.”
____________________________________________
2
The trial court determined that the Commonwealth failed to meet its
burden of proving that Appellant was a Sexually Violent Predator.
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Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal
denied, 99 A.3d 925 (Pa. 2014) (citation omitted). A verdict is said to be
contrary to the evidence such that it shocks one’s sense of justice when “the
figure of Justice totters on her pedestal,” or when “the jury’s verdict, at the
time of its rendition, causes the trial judge to lose his breath, temporarily,
and causes him to almost fall from the bench, then it is truly shocking to the
judicial conscience.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.
Super. 2004) (citations omitted), aff’d, 595 Pa. 1, 938 A.2d 198 (2007).
When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review. Moreover, where the trial court
has ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the verdict is
against the weight of the evidence. Rather, appellate review is
limited to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal
quotes and citations omitted).
In support of his claim that the verdict was against the weight of the
evidence, Appellant asserts that the victim’s mother, B.H., coached the
victim to testify against the Appellant regarding the sexual assault in order
to avoid a custody battle over the couple’s minor child. Appellant’s claim is
wholly speculative and unsupported by the evidence.
As noted, the Commonwealth established that B.H. came home on
January 8, 2010, to discover Appellant in bed with the victim, both of whom
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were naked from the waist down. A subsequent medical examination of the
victim on the day of the incident established that she had sustained bruises
to her buttocks and a tear in her hymen. Dr. Riddle testified that the fact
that the tear had healed approximately one week later suggested that the
tear likely occurred around the date B.H. discovered Appellant in bed with
the victim. Additionally, the victim testified that Appellant had repeatedly
raped her—for over four years—and stated specifically that Appellant had
inserted his penis into her vagina on January 8, 2010.
In light of the overwhelming evidence presented, we find that the
verdict does not in any respect shock one’s sense of justice. The figure of
justice is firmly rooted to her pedestal. The trial court did not abuse its
discretion, and Appellant’s weight of the evidence claim must fail.
Appellant lastly argues that the sentence imposed by the trial court
was manifestly excessive. This claim challenges the discretionary aspects of
Appellant’s sentence. A challenge to the discretionary aspects of a sentence
must be considered a petition for permission to appeal, as the right to
pursue such a claim is not absolute.” Commonwealth v. McAfee, 849 A.2d
270, 274 (Pa. Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[We] conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
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defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Appellant challenged his sentence in a post-sentence motion and
filed a timely appeal. Appellant’s brief also contains the requisite Rule
2119(f) concise statement. We must now determine whether Appellant’s
challenge to the discretionary aspects of his sentence raises a substantial
question.
“A substantial question will be found where an appellant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Sentencing Code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.
2015) (citation omitted). “[W]e cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Christine, 78
A.3d 1, 10 (Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015) (citation
omitted).
Here, Appellant claims in his Rule 2119(f) statement that the “the
sentencing court did not consider the requisite sentencing factors, namely
the rehabilitative needs of the defendant nor the circumstances particular to
this individual case.” Appellant’s Brief at 8. Appellant further contends that
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the trial court abused its discretion when it “ignored Appellant’s request to
consider other than the statutory maximum.” Id.“[A] generic claim that a sentence is excessive does not raise a
substantial question for our review.” Christine, 78 A.3d at 10 (citation
omitted). “Additionally, this Court has repeatedly held that an allegation that
the trial court failed to consider particular circumstances or factors in an
appellant’s case go to the weight accorded to various sentencing factors and
do not raise a substantial question.” Id. at 10-11 (citation omitted).
While Appellant argues that the sentencing court failed to consider his
rehabilitative needs and the “circumstances of the case,” in substance he
merely argues that the court failed to sufficiently address factors of record.
The sentencing court had prepared and reviewed a pre-sentence report. See
N.T., Sentencing, 12/14/15 at 55. Where the sentencing court had the
benefit of reviewing a pre-sentence report, we must
presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court's discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
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position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted). As the sentencing court in this case did have the benefit of a pre-
sentence report, we must presume that he considered all relevant
sentencing factors and fashioned an individualize sentence.
Based on the foregoing, we are constrained to find that Appellant’s
claim that the sentencing court did not adequately consider relevant factors
of record fails to raise a substantial question. See Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014), appeal denied, 104
A.3d 1 (Pa. 2014) (“[A]rguments that the sentencing court failed to consider
the factors proffered in 42 Pa.C.S. § 9721 does present a substantial
question whereas a statement that the court failed to consider facts of
record, though necessarily encompassing the factors of § 9721, has been
rejected.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
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