Com. v. Love, W.

J-S17036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM M. LOVE, :
:
Appellant : No. 2559 EDA 2015
Appeal from the Judgment of Sentence May 29, 2015
in the Court of Common Pleas of Monroe County,
Criminal Division, No(s): CP-45-CR-0002788-2013
BEFORE: OLSON, STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 27, 2017
William M. Love (“Love”) appeals from the judgment of sentence
entered following his conviction of sexual assault, aggravated indecent
assault, indecent assault, corruption of minors, furnishing alcohol to minors
and unlawful contact with a minor.1 We affirm.
In its Opinion, the trial court set forth the procedural history
underlying the instant appeal, which we adopt as though fully restated
herein. See Trial Court Opinion, 10/29/15, at 1-3.
On October 26, 2013, Love’s girlfriend, 19-year-old Kayshawn Clark
(“Clark”), contacted the victim, 17-year-old B.C. (“the victim” or “B.C.”),
seeking assistance with planning Clark’s baby shower. The next day, Clark
texted B.C. to remind her of their plans. Thereafter, Clark and Love picked
up and drove B.C. and her baby to Love’s house. Upon arriving at Love’s
1
18 Pa.C.S.A. §§ 3124.1, 3125, 3126, 6301, 6310.1, 6318.
J-S17036-17
house, Love offered a drink to B.C., which he identified as iced tea. After
drinking the iced tea, B.C. began losing consciousness. As she went in and
out of consciousness, B.C. became aware that she was being sexually
assaulted and raped by Love.
Following a jury trial, Love was convicted of the above-described
charges.2 Love filed a post-sentence Motion, which, after a hearing, the trial
court denied. In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial
court stated the following: “Despite raising both weight and sufficiency
claims, [Love] did not request transcription of the trial. In his appeal
documents, he asked only for the transcript of the July 21, 2015 hearing on
his post-sentence [M]otions….” Trial Court Opinion, 10/29/15, at 3.
Thereafter, Love filed the instant timely appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On appeal, Love raises ten claims of error for our review:
I. Did the trial court abuse its discretion by not setting aside the
verdict for the charge of unlawful contact with a minor where
there was no contact as defined by statute?
II. Did the trial court abuse its discretion by not setting aside the
verdict where the criminal statute of unlawful contact with a
minor is unconstitutionally broad?
III. Did the trial court abuse its discretion by not setting aside
the verdict where there was insufficient evidence to convict
[Love] of unlawful contact with a minor?
2
Separately, Clark pled guilty to criminal use of a communication facility.
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IV. Did the trial court abuse its discretion by not setting aside
the verdict where there was insufficient evidence to convict
[Love] of sexual assault?
V. Did the trial court abuse its discretion by not setting aside the
verdict where there was insufficient evidence to convict [Love] of
aggravated indecent assault?
VI. Did the trial court abuse its discretion by not setting aside
the verdict where there was insufficient evidence to convict
[Love] of indecent assault?
VII. Did the trial court abuse its discretion by not setting aside
the verdict where it was against the weight of the evidence to
convict [Love] of unlawful contact with a minor?
VIII. Did the trial court abuse its discretion by not setting aside
the [verdict] where it was against the weight of the evidence to
convict [Love] of sexual assault?
IX. Did the trial court abuse its discretion by not setting aside
the verdict where it was against the weight of the evidence to
convict [Love] of aggravated indecent assault?
X. Did the trial court abuse its discretion by not setting aside the
verdict where it was against the weight of the evidence to
convict [Love] of indecent assault?
Brief for Appellant at 4-5 (some capitalization omitted, issues renumbered
for ease of disposition).
In his first and second claims, Love challenges the sufficiency of the
evidence underlying his conviction of unlawful contact with a minor, and the
constitutionality of 18 Pa.C.S.A. § 6318. Id. at 10. Love first asserts that
there is no evidence [that Love] contact[ed] the [victim] over
the internet. There is no evidence that [Love] contacted the
victim through any other means. The only contact [Love] had
was when the victim was at his house[;] however, there still is
no evidence that during this direct contact, that [Love] made
any comments, remarks, suggestions, or questions to the victim
-3-
J-S17036-17
of a sexual nature. There is no evidence that [Love] had contact
for the purpose of engaging in the prohibited activity.
Brief for Appellant at 11-12 (emphasis omitted). Simply put, Love claims
that he did not have “contact” with B.C., as defined by 18 Pa.C.S.A. § 6318.
Id.
In his second claim, Love challenges the definition of “contact,” set
forth at 18 Pa.C.S.A. § 6318, as overbroad and, therefore, unconstitutional.
Id. at 14. Love posits that section 6318 bars contact for the purpose of
engaging in the prohibited activity. Id. at 15. Love contends that “[t]he
only contact [Love] had was when the victim was at his house[;] however,
there still is no evidence that during this direct contact, [Love] made any
comments, remarks suggestions, or questions to the victim of a sexual
nature.” Id. Love again argues that there is no evidence that he “had
contact for the purpose of engaging in the prohibited activity.” Id. at 16
(emphasis omitted). Love cites Commonwealth v. Morgan, 913 A.2d 906,
911 (Pa. Super. 2006), in support. Brief for Appellant at 16-17.
In addressing these claims, we are cognizant of our scope and
standard of review:
There is sufficient evidence to sustain a conviction when the
evidence admitted at trial, and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict-winner, are sufficient to enable the
fact-finder to conclude that the Commonwealth established all of
the elements of the offense beyond a reasonable doubt. The
Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Further, we note that the entire trial
record is evaluated and all evidence received against the
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defendant is considered, being cognizant that the trier of fact is
free to believe all, part, or none of the evidence.
Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014) (internal citation
and quotation marks omitted).
In its Opinion, the trial court addressed Love’s first two claims, and
concluded that they lack merit. See Trial Court Opinion, 10/29/15, at 3-7.
We agree with the legal analysis and ultimate conclusion reached by the trial
court, and affirm on this basis as to Love’s first and second claims. See id.In his remaining claims, Love challenges the sufficiency of the
evidence underlying each of his convictions, and claims that each verdict is
against the weight of the evidence. See Brief for Appellant at 18-33.
Regarding Love’s challenges to each verdict as against the weight of
the evidence, we are cognizant that
[t]he weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice. On appeal, our
purview is extremely limited and is confined to whether the trial
court abused its discretion in finding that the jury verdict did not
shock one’s conscience. Thus, appellate review of a weight claim
consists of a review of the trial court’s exercise of discretion, not
a review of the underlying question of whether the verdict is
against the weight of the evidence. An appellate court may not
reverse a verdict unless it is so contrary to the evidence as to
shock one’s sense of justice.
-5-
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Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en
banc) (citations and internal quotation marks omitted).
Our review discloses that the record does not include the notes of
testimony from the entire trial. Rather, this Court received the transcripts of
the victim’s trial testimony, the sentencing hearing, and the hearing on
Love’s post-sentence Motion. No other trial testimony was transcribed. See
Trial Court Opinion, 10/29/15, at 3 (stating that Love did not request
transcription of the trial, and setting forth the notes of testimony available in
the record).
“This Court cannot meaningfully review claims raised on appeal unless
we are provided with a full and complete certified record.” Commonwealth
v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (citations omitted). “As an
appellate court, we are ‘limited to considering only those facts that have
been duly certified in the record on appeal.’” Commonwealth v. Spotz, 18
A.3d 244, 323 (Pa. 2011) (quoting Commonwealth v. Williams, 715 A.2d
1101, 1103 (Pa. 1998)). “In the absence of an adequate certified record,
there is no support for an appellant’s arguments and, thus, there is no basis
on which relief could be granted.” Preston, 904 A.2d at 7. “Our law is
unequivocal that the responsibility rests upon the appellant to ensure that
the record certified on appeal is complete in the sense that it contains all of
the materials necessary for the reviewing court to perform its duty.” Id.;
see also Pa.R.A.P. 1911(d) (stating that “[i]f the appellant fails to take the
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J-S17036-17
action required by these rules and the Pennsylvania Rules of Judicial
Administration for the preparation of the transcript, the appellate court may
take such action as it deems appropriate, which may include dismissal of the
appeal.”).
As the trial court observed in its Opinion, “[d]espite the fact that
[Love’s] weight and sufficiency claims constituted fact-based challenges,
[Love] did not ask that the trial be transcribed.” Trial Court Opinion,
10/29/15, at 7. Consequently, the trial court deemed these claims waived.
See id. at 7-9 (deeming Love’s claims waived based upon Love’s failure to
have transcribed the notes of testimony of the trial). Upon review, we agree
with the trial court, and conclude that Love’s failure to have transcribed the
necessary notes of testimony impedes our review of his remaining weight
and sufficiency claims. Consequently, we deem those claims waived. See
Pa.R.A.P. 1911(d).3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2017
3
Our holding does not preclude Love from seeking post-conviction collateral
relief.
-7-
Circulated 03/28/2017 02:46 PM
(
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEAL TH OF PENNSYLVANIA .
COMMONWEALTH OF PENNSYLVANIA
NO. 2788 CR 2013
v.
APPEAL DOCKET NO.
William M. Love, 2559 EDA 2015
Defendant
OPINION PURSUANT TO Pa.R.A.P. 1925(a)
Following the denial of his post-sentence motions, Defendant William Love
("Defendant") filed an appeal from the judgment of sentence entered on May 29, 2015.
Thereafter, we directed Defendant to file a statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Defendant complied. We now file this opinion in
accordance with Pa.R.A.P. 1925(a).
Background
On October 28, 2013, Defendant was arrested and charged with Rape by
Forcible Compulsion, Rape of a Substantially Impaired Person, Rape of an
Unconscious Person, Involuntary Deviate Sexual Intercourse by Forcible Compulsion,
Sexual Assault, Aggravated Indecent Assault of an Impaired Person, Aggravated
Indecent Assault without Consent, Indecent Assault without Consent, Indecent Assault
of a Substantially Impaired Person, Unlawful Contact with a Minor, Corruption of a
Minor, and Selling or Furnishing liquor to a Minor. The victim was the seventeen year-
old friend of Defendant's nineteen year-old girlfriend, Kayshawn Clark.
On March 10, 2015, a jury found Defendant guilty of Sexual Assault, Indecent
Assault, Aggravated Indecent Assault, Unlawful Contact with a Minor, Furnishing
1
/!
Alcohol to Minors, and Corruption of a Minor. We accepted the verdict, ordered an
assessment by the State Sexual Offender's Board ("SOAB"), directed that the
testimony of the victim be transcribed as part of the SOAB assessment process, and
scheduled sentencing for May 29, 2015. (Order, dated March 10, 2015).
On May 29, 2015, the sentencing hearing was held, as scheduled. Defendant
was classified as a Tier 3 lifetime registrant under Megan's Law IV, 42 Pa. C.S.A.
Section 9799.10 et. seq., and sentenced to 108 to 260 months in a State Correctional
Institution.
On June 8, 2015, Defendant filed post-sentence motions seeking
reconsideration of his sentence, challenging both the sufficiency and weight of the
evidence as to all offenses, and challenging the Unlawful Contact conviction on both
constitutional and statutory interpretation grounds. Simultaneously, Defendant filed
motions for transcription of his sentencing hearing as well as the hearing at which his
girlfriend, who previously pied guilty to Criminal Use of a Communication Facility for
her role in the crimes committed against the victim and who had testified against
Defendant at trial, was sentenced. Transcripts of both sentencing hearings were
prepared and filed.1
On July 21, 2014, we convened a hearing on Defendant's post-sentence
motions. At the conclusion of the hearing, we issued an order denying the motions. We
briefly summarized our reasons for the denial on the record. (N.T., 7/21/2015, pp. 7-
10). We incorporate our on-record statements into this opinion by reference.
I
The case in which Ms. Clark pied guilty is docketed to No. 599 Criminal 2014. The transcript of her sentencing
hearing was filed of record in that proceeding. To ensure that the Superior Court has a complete record on which
to evaluate Defendant's appeal in this case, we have issued an order directing our Clerk of Courts to include a
copy of Ms. Clark's sentencing transcript in the certified record.
2
Subsequently, Defendant filed this appeal. In 'bis appeal statement, Defendant
raises eight assignments of error which, for the most part, mirror his post-sentence
motions. The first two assignments repeat his constitutional and statutory construction-
based challenges to the Unlawful Contact conviction. The remaining eight
assignments of error reiterate his sufficiency and weight claims.
Despite raising both weight and sufficiency claims, Defendant did not request
transcription of the trial. In his appeal documents, he asked only for the transcript of
the July 21, 2015 hearing on his post-sentence motions. As a result, references
throughout this opinion to the facts of this case are based on the hearing transcripts
that have been filed, the transcript of the victim's testimony that was prepared for the
SOAB evaluation, the pre-sentence investigation report, and the recollection and
perceptions of the undersigned as the judge who presided over the trial as well as pre
and post-trial hearings.
Discussion
I. Unlawful Contact
Defendant's first two assignments of error challenge his conviction for Unlawful
Contact with a Minor. Specifically, Defendant contends that the Unlawful Contact
statute is unconstitutionally overbroad and, in any event, that he did not have contact
with the victim within the meaning of the statute as written. His arguments lack merit.
a. The Unlawful Contact Statute is Not Overbroad
The constitutional analysis is well settled. Properly enacted legislation is
presumed . to be valid and, "unless it clearly, palpably and plainly violates the
Constitution, it will not be declared unconstitutional." Commonwealth v. Davidson, 938
3
A.2d 198, 207 (Pa. 2007) (citations omitted). A statute is unconstitutionally overbroad
only if it punishes constitutionally protect activity as well as illegal activity. Id. at 208
(citation omitted). The court must determine whether the enactment of a statute
"reaches a substantial amount of constitutionally protected conduct." Id. (quoting
Commonwealth v. Ickes, 873 A.2d 698, 702 (Pa. 2005)). See a/so Commonwealth v.
Morgan, 913 A.2d 906, 912 (Pa. Super. 2006), appeal denied, 927 A.2d 623 (Pa.
2007).
In Morgan, the Superior Court rejected the argument being made by Defendant
in this case. Specifically, applying the constitutional principles summarized above, the
Superior Court found that the Unlawful Contact statute was not overbroad because the
"statute by its reach does not punish a substantial amount of constitutionally protected
conduct" and "is narrowly tailored to advance a compelling state interest, that being
the protection of minors who lack capacity to consent to sexual intercourse." Id. Under
the holding and rationale of Morgan, Defendant's constitutional challenge does not
hold water.
b. Defendant had "Contact" with the Minor Victim
Defendant's contention that he did not have contact with the victim within the
meaning of the statute requires that we interpret the Unlawful Contact statute. Again,
the applicable rules are well settled.
In determining the meaning of a statute, courts are obliged to consider and give
effect to the intent of the legislature. "A statute's plain language generally provides the
best indication of legislative intent." Commonwealth v. McCoy, 962 A.2d 1160, 1166
4
(Pa. 2009). In more expansive terms, under firmly established rules of statutory
construction, it is well settled that
the object of all interpretation of statutes is to ascertain and
effectuate the intention of the General Assembly, and that
the plain language of the statute is generally the better
indicator of such intent. When ascertaining the intent of the
General Assembly, there is a presumption that the General
Assembly does not intend a result that is absurd, impossible
of execution or unreasonable when enacting legislation.
Furthermore, the words of a statute shall be construed
according to the rules of grammar and according to their
common and approved usage. We will only look beyond the
plain meaning of the statute where the words of the statute
are unclear or ambiguous.
Commonwealth v. Diodoro, 970 A.2d 1100, 1106 (Pa. 2009), cert. den., 558 U.S. 875(2009) (internal citations and quotation marks omitted).
Penal statutes must be strictly construed. Commonwealth v. Dixon, 53 A.3d
839, 846 (Pa. Super. 2012). However, "the rule of lenity itself has limits."
Commonwealth v. Wilgus, 40 A.3d 1201, 1210 (Pa. 2012).
The need for strict construction does not require that the
words of a penal statute be given their narrowest possible
meaning or that legislative intent be disregarded, nor does it
override the more general principle that the words of a
statute must be construed according to their common and
approved usage. It does mean, however, that where
ambiguity exists in the language of a penal statute, such
language should be interpreted in the light most favorable to
the accused. More specifically, where doubt exists
concerning the proper scope of a penal statute, it is the
accused who should receive the benefit of such doubt.
Significantly, a court may not achieve an acceptable
construction of a penal statute by reading into the statute
terms that broaden its scope.
Id. (quoting Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843, 846 (2001 )).
5
The Unlawful Contact statute states, in relevant part:
(a) Offense defined.--A person commits an offense if he is
intentionally in contact with a minor .... for the purpose of
engaging in an activity prohibited under any of the following,
and either the person initiating the contact or the person
being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to
sexual offenses).
***
(c) Definitions.
* **
"Contacts." Direct or indirect contact or communication by
any means, method or device, including contact or
communication in person or through an agent or agency,
through any print medium, the mails, a common carrier or
communication common carrier, any electronic
communication system and any telecommunications, wire,
computer or radio communications device or system.
18 Pa. C.S.A. § 6318. Under the plain language of this statute, there is no question
that Defendant had contact with the victim.
At the hearing on Defendant's post-sentence motions, counsel for Defendant
contended that contact within the meaning of the Unlawful Contact statute has been
interpreted by the courts to mean communication, typically through electronic means,
and that such communication must be of a sexual nature. (N.T., 6/21/2015, pp. 3-5).
However, defense counsel was unable to cite to any case that supported this
argument. Moreover, the argument runs contrary to the express language of the
statute.
The Unlawful Contact statute is framed in the disjunctive. Accordingly, it is
unlawful to either contact or communicate with a minor for a prohibited purpose. Since
6
the evidence presented by the Commonwealth established that Defendant had both
direct and indirect contact and communication with the minor victim for the purpose of
committing a Chapter 31 offense, it is clear that the Unlawful Contact statute was
violated.
Specifically, the evidence presented at trial demonstrated that Defendant had
Ms. Clark lure the victim to the house. Defendant and Ms. Clark then picked the victim
up and brought her to their home. Defendant communicated and interacted directly
and indirectly with the victim both during the ride and in the home. Defendant gave the
victim a spiked drink which opened the door to the assault that he perpetrated while
the victim was in and out of consciousness. These contacts and communications were
part of the set-up and the lead-up to the sexual assault. Of course, during the assault
Defendant had physical contact with the victim and also spoke to her.
Simply put, Defendant communicated and had direct and indirect contact, both
physically and verbally, with the minor victim within the ordinary and statutory
meanings of those terms. His statutory interpretation argument to the contrary is
completely devoid of merit.
II. Defendant Waived the Remainder of his Assignments of Error
As noted, Defendant's final eight assignments of error are comprised of
challenges to the weight and sufficiency of the evidence. Despite the fact that his
weight and sufficiency claims constitute fact-based challenges, Defendant did not ask
that the trial be transcribed. As a result, we believe that Defendant has waived
assignments of error three through eight.
7
It is well settled that it is the appellant's duty to supply appellate courts with a
record which is sufficient to permit meaningful appellate review. This includes
transcripts necessary to permit resolution of the issues raised on appeal. See
Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011); Commonwealth v. Williams, 715
A.2d 1101 (Pa. 1998); Commonwealth v. Preston, 904 A.2d 1 (Pa. Super. 2006);
Commonwealth v. Steward, 775 A.2d 819 (Pa. Super. 2001); Com. v. Geatti, 35 A.3d
798 (Pa. Cmwlth. 2011), appeal denied, 40 A.3d 1237 (Pa. 2012); Pa. R.A.P. 1911.
In this regard, Pa. R.A.P. 1911, entitled Request for Transcript, provides in
pertinent part that:
(a) General rule. The appellant shall request any transcript
required under this chapter in the manner and make any
necessary payment or deposit therefor in the amount and
within the time prescribed by Rules 5000.1 et seq. of the
Pennsylvania Rules of Judicial Administration (court
reporters).
* **
(d) Effect of failure to comply. If the appellant fails to take the
action required by these rules and the Pennsylvania Rules of
Judicial Administration for the preparation of the transcript,
the appellate Court may take such action as it deems
appropriate, which may include dismissal of the appeal.
The plain terms of the Rules of Appellate Procedure, including Rule 1911,
contemplate that the parties, who are in the best position to know what they actually
need for appeal, are responsible to take affirmative actions to secure transcripts and
other parts of the record. Commonwealth v. Lesko, supra. It is not the responsibility
of trial or appellate courts to order the transcription of necessary proceedings. To the
contrary, Rule 1911 makes it abundantly plain that it is the responsibility of the
8
appellant (or cross-appellant) to order all transcripts necessary to the disposition of his
appeal. Commonwealth v. Williams, supra; Commonwealth v. Preston, supra;Commonwealth v. Steward, supra.With regard to missing transcripts, the Rules of Appellate Procedure require an
appellant to order and pay for any transcript necessary to permit resolution of the
issues raised on appeal. Pa.R.A.P.1911 (a). When the appellant fails to conform to the
requirements of Rule 1911, any claims that cannot be resolved in the absence of the
necessary transcript or transcripts must· be deemed waived for the purpose of
appellate review. It is not proper for either the Pennsylvania Supreme Court or the
Superior Court to order transcripts nor is it the responsibility of the appellate courts to
obtain the necessary transcripts. Commonwealth v. Preston, 904 A.2d at 7 (citations
omitted). See also Commonwealth v. Geatti, supra (Defendant's failure to request a
transcript from the Court of Common Pleas as part of his appeal meant the appellate
court could not conduct an appropriate review of the issues raised by defendant and
resulted in waiver of those issues).
In this case, Defendant claims there is insufficient evidence to convict him of
Unlawful Contact with a Minor, Sexual Assault, Indecent Assault, and Aggravated
Indecent Assault. He further claims that his convictions for those crimes are against
the weight of the evidence. Because the weight and sufficiency challenges are fact-
based claims that require our appellate courts to examine all of the evidence, including
the testimony of all witnesses, the trial transcript is necessary to resolve the claims. By
failing to request that transcript, Defendant waived his challenges to the weight and
sufficiency of the evidence.
9
Ill. In the Alternative, Defendant's Challenges to the Weight and Sufficiency
of the Evidence are Devoid of Merit.
As noted, Defendant challenges both the sufficiency and the wright of the
evidence to sustain the convictions. A claim challenging the sufficiency of the evidence
presents a question of law. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The court must determine "whether the evidence is sufficient to prove every element of
the crime beyond a reasonable doubt." Commonwealth v. Hughes, 555 A.2d 1264,
1267 (Pa. 1989). We "must view evidence in the light most favorable to the
Commonwealth as the verdict winner, and accept as true all evidence and all
reasonable inferences therefrom upon which, if believed, the fact finder properly could
have based its verdict." Id.Our Supreme Court has instructed:
[TJhe facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact
may be drawn from the combined circumstances. Moreover,
in applying the above test, the entire record must be
evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 n. 2 (Pa. 2007). The
uncorroborated testimony of the victim, if believed, is enough to support the conviction
of a defendant of sexual offenses. Commonwealth v. Poindexter, 646 A.2d 1211 , 1214
(Pa. Super. 1994).
10
The Crimes Code defines Aggravated Indecent Assault as follows:
[A] person who engages in penetration, however slight, of
the genitals or anus of a complainant with a part of the
person's body for any purpose other than good faith medical,
hygienic or law enforcement procedures commits
aggravated indecent assault if:
(1) the person does so without the complainant's consent;
[or]
***
(5) the person has substantially impaired the complainant's
power to appraise or control his or her conduct by
administering or employing, without the knowledge of the
complainant, drugs, intoxicants or other means for the
purpose of preventing resistance.
18 Pa.C.S.A. § 3125.
A person commits Indecent Assault if
the person has indecent contact with the complainant,
causes the complainant to have indecent contact with the
person or intentionally causes the complainant to come into
contact with seminal fluid, urine or feces for the purpose of
arousing sexual desire in the person or the complainant and:
(1) the person does so without the complainant's consent;
(2) the person does so by forcible compulsion;
***
(4) the complainant is unconscious or the person knows that
the complainant is unaware that the indecent contact is
occurring;
(5) the person has substantially impaired the complainant's
power to appraise or control his or her conduct by
administering or employing, without the knowledge of the
complainant, drugs, intoxicants or other means for the
purpose of preventing resistance;
18 Pa.C.S.A. § 3126. Indecent contact is "[a]ny touching of the sexual or other intimate
parts of the person for the purpose of arousing or gratifying sexual desire, in any
person." 18 Pa.C.S.A. § 3101.
11
Sexual Assault, in turn, is defined as follows:
Except as provided in section 3121 (relating to rape) or 3123
(relating to involuntary deviate sexual intercourse), a person
commits a felony of the second degree when that person
engages in sexual intercourse or deviate sexual intercourse
with a complainant without the complainant's consent."
18 Pa.C.S.A. § 3124.1. The terms "sexual intercourse" and "deviate sexual
intercourse" have specific meanings. "Sexual intercourse, [i]n addition to its ordinary
meaning, includes intercourse per os or per anus, with some penetration however
slight; [and] emission is not required." 18 Pa.C.S.A. § 3101. Deviate sexual intercourse
is:
"Sexual intercourse per os or per anus between human
beings and any form of sexual intercourse with an animal.
The term also includes penetration, however slight, of the
genitals or anus of another person with a foreign object for
any purpose other than good faith medical, hygienic or law
enforcement procedures."
18 Pa.C.S.A. § 3101.
Finally, Unlawful Contact is defined as quoted above. In summary, A person
commits the offense if he is intentionally in contact with a minor for the purpose of
engaging in an enumerated prohibited activity, including all Chapter 321 sex offense
crimes. 18 Pa.C.S.A. § 6318.
The evidence, viewed in the light of the applicable standards, may be
summarized as follows:
The victim and Ms. Clark were teenage friends. Defendant was Ms. Clark's
boyfriend and the father of her baby. Defendant was a man in his thirties. On October
27, 2013, Ms. Clark invited the victim over for dinner, ostensibly so that the victim
12
could help plan Ms. Clark's baby shower. The baby shower was a pretext;
unbeknownst to the victim, Defendant wanted the victim to come over so that there
could be a sexual tryst. The victim accepted Ms. Clark's invitation and was picked up
at her house by Defendant and Ms. Clark. The victim brought her infant daughter
along with her.
At his home, Defendant spoke with the victim and asked her about her age.
The victim said that she was seventeen, and Defendant said that Ms. Clark told him
that she was eighteen. The victim offered to show Defendant her identification but
Defendant declined. Defendant offered the victim a drink, which she accepted. This
drink contained alcohol and an unknown drug which caused the victim to feel dizzy, sit
down, and ultimately lose control of her faculties.
After the victim drank the concoction that Defendant prepared for her,
Defendant pressed himself against her. The victim felt Defendant's erection through
their clothes. The victim began to fade in and out of consciousness. As this was
occurring, the victim felt Defendant remove her breast from her shirt and lick her
nipple, put his fingers into her vagina, pull her pants down, and put his penis into her
vagina. After she left the house, the victim was taken by ambulance to the hospital
where she spoke with police and samples were taken for DNA analysis.
Ms. Clark testified at trial. She confirmed and supported the testimony of the
victim and the sexual assaults perpetrated by Defendant. In addition, the
Commonwealth presented DNA evidence.
It is clear from even this quick summary overview of the facts that, when viewed
in light of the applicable standards, the evidence was more than sufficient to sustain
13
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal citations,
footnote, and quotation marks omitted).
Additionally, trial courts possess only narrow authority to reverse a jury verdict
on a weight of the evidence challenge.
The general rule in this Commonwealth is that a weight of
the evidence claim is primarily addressed to the discretion of
the judge who actually presided at trial. There is, of course,
some tension between the power of trial courts to overturn
jury verdicts premised upon weight claims, and the bedrock
principle that questions of credibility are exclusively for the
fact-finder. Accordingly, the authority for the trial judge to
upset a verdict premised upon a weight claim is narrowly
circumscribed.
Armbruster v. Horowitz, 813 A.2d 698, 702-703 (Pa. 2002) (internal citations and
quotation marks omitted).
In this case, the jury heard the testimony of the victim, Ms. Clark, and the
Commonwealth's DNA expert. All witnesses were cross-examined. In addition, the jury
heard the testimony of a defense DNA expert. The jury obviously found the victim and
the other Commonwealth witnesses credible. It was entirely within the jury's province
to do so. Further, the verdict was not so contrary to the evidence that it shocked our
sense of justice. Defendant's conviction of these offenses is not against the weight of
the evidence and this contention is meritless.
In short, by failing to request the necessary transcription of his trial, Defendant
waived appellate review of his sufficiency and weight claims. However, even if these
challenges are addressed on their merits, they are baseless. The evidence presented
by the Commonwealth was more than enough to sustain the verdict, and the
convictions do not shock one's sense of justice.
15
For these reasons, the judgment of sentence should be affirmed.
Date: October 29, 2015
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