Com. v. Hough, R.

J-S32042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONNY HOUGH, JR. :
:
Appellant : No. 171 WDA 2021
Appeal from the Judgment of Sentence Entered September 29, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001548-2019
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: NOVEMBER 19, 2021
Ronny Hough, Jr. (“Hough”), appeals from the judgment of sentence
imposed following his convictions of one count each of indecent assault and
corruption of minors.1 We affirm.
The trial court provided the following factual history:
[Hough] is the uncle of the victim[,] Z.W.[ (“Z.W.”),] and
the brother of Z.W.’s mother, [N.C.] As presented at trial,
[Hough] was in town for two (2) days to visit and collect some of
his belongings that were being held at [N.C.’s] house. [Hough]
does not visit often and has never spent the night at [N.C.’s]
home. On the second day of his visit, December 14, 2018,
[Hough], [N.C.] and another individual left [N.C.’s] residence to
go to a club. Z.W., who was 12 years old at the time, remained
home along with some of her siblings. [Hough] was staying at a
housing facility named Resolve[,] which had a required check-in
time, so he left the club early to return to [N.C.’s] house to collect
his belongings. [N.C.] called the house to let her oldest child know
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1 18 Pa.C.S.A. §§ 3126(a)(7), 6301(a)(1)(i).
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that [Hough] would be returning to get his things and that she
could let him inside.
While [Hough] and [N.C.] were at the club, Z.W. was
watching television with her younger brother in [N.C.’s]
bedroom[,] located on the second floor. Z.W. testified that she
was wearing a t-shirt, joggers[,] and underwear. From the second
floor, Z.W. saw her older sister let [Hough] back into the house.
[Hough] remained on the first floor and Z.W. returned to [N.C.’s]
bedroom[,] where she fell asleep next to her two-year[-]old
brother. She awoke upon feeling a hand on her buttock beneath
her clothing and turned to see [Hough] behind her. Upon making
eye contact with Z.W.[,] [Hough] told her, “It was an accident.”
Z.W. immediately ran from the bedroom and into another
bedroom and tried to hold the door shut, but [Hough] was able to
force his way in. She told him “[n]o” and fled to her bedroom on
the third floor and locked the door. [Hough] followed her[,] and
using a coin[,] unlocked the door and made entry. Z.W. was
crying and continued to tell him “[n]o” while [Hough] hugged her,
telling her everything is ok[ay] because they are family and not
to tell [N.C.] what had happened.
[N.C.] called the house a second time to see if [Hough] had
left. When she learned from her oldest child that he was still
there, [N.C.] immediately returned home. Upon entering the
house[,] she observed [Hough]’s belongings on the first floor and
upon hearing noise upstairs, she ran in that direction and
encountered [Hough] coming down the third-floor stairwell.
[N.C.] began screaming for her daughters and asking [Hough]
what he was doing. He appeared shaky and did not respond to
her. Z.W. did not come out to her, and when [N.C.] made contact
with her, Z.W. was crying and could barely speak, but eventually
told [N.C.] what had happened. [N.C.] called 911. An argument
ensued between [N.C.] and [Hough] that had spilled out of the
house and into the street at the time police arrived.
Officer Adam Pernelli [(“Officer Pernelli”)] of the City of
Pittsburgh Police Department responded to the 911 call. While on
scene, [Hough] stated to him, “It’s ok[ay], I’m her uncle, it’s
ok[ay] if I lay in bed with her.” Officer Pernelli subsequently
transported [Hough] to the station[,] where he was interviewed
by Detective Joseph Lippert [(“Detective Lippert”)] of [the] Sexual
Assault and Family Crisis (SAFC) division. [Hough] was
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[M]irandized[2] and told Detective Lippert that upon returning to
his sister’s house from the bar he got into bed with his niece and
nephew. He denied any inappropriate touching, admitting that he
had rested his hand on Z.W.’s stomach over her clothing. [Hough]
asked the detective if a sexual assault examination had been
performed on [Z.W.] and if digital penetration could break a young
lady’s hymen. Detective Lippert did not interview Z.W.[,] but
attended the forensic interview that was conducted on January 9,
2019. During this interview, Z.W. relayed the events of the night
including that [Hough] had touched her buttock.
Trial Court Opinion, 6/21/21, at 3-6 (footnotes and record citations omitted;
footnote added).
Hough was subsequently arrested and charged with the above-
referenced offenses, as well as one count of unlawful contact with a minor.3
Following a jury trial, Hough was found guilty of all charges. Hough filed a
post-verdict Motion for a judgment of acquittal on his conviction for unlawful
contact with a minor, which the trial court granted. Following a sentencing
hearing, the trial court sentenced Hough to eleven-and-a-half to twenty-three
months in prison followed by two years of probation for his indecent assault
conviction, and a consecutive three-year term of probation for his corruption
of minors conviction. Hough filed a post-sentence Motion and a supplemental
post-sentence Motion challenging, inter alia, the verdict as against the weight
of the evidence for his conviction for indecent assault. Post-Sentence Motion,
10/9/20, at 8; Supplemental Post-Sentence Motion, 11/25/20, at 7. On
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 18 Pa.C.S.A. § 6318(a)(1).
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January 5, 2021, the trial court denied Hough’s Motions. Hough thereafter
filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
Hough presents the following question for our review:
The Commonwealth elicited evidence from [Z.W.], in a leading
fashion, that [Hough] had touched her near her butt. Afterward[,]
the Commonwealth impeached [Z.W.] with prior statements she
made during a forensic interview on the same subject. The portion
of the forensic video the jury saw also elicited a response from
[Z.W.] based on leading questions. Is a new trial due because the
evidence bearing on the element of “indecent contact” was too
equivocal and suggestive?
Brief for Appellant at 4.
Hough argues that the trial court erred in denying his challenge to the
verdict as against the weight of the evidence because the Commonwealth
failed to prove that Hough had indecent contact with Z.W. Id. at 8. He argues
that indecent contact is a required element in a claim for indecent assault, and
that the jury never heard Z.W. state that Hough had touched her buttocks.
Id. Rather, Hough claims, the jury only heard Z.W. agree with that detail
when it was suggested to her. Id. In his brief, Hough highlights the following
testimony, which Z.W. gave on direct examination:
[Assistant District Attorney (“ADA”)]: Can you tell the jury why
you woke up?
[Z.W.]: I woke up because I had felt [Hough] bringing his hand
from the back of my pants.
***
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[ADA]: Okay. Now, whenever you felt his hand in the back of
your pants, was his skin touching your skin or something else?
[Z.W.]: Yes, his skin.
[ADA]: Okay. So it would have been underneath your
underwear?
[Z.W.]: Yes.
[ADA]: And was it just around the side or where, what part of
your butt was his hand on?
[Z.W.]: Like right like by—I can’t explain.
[ADA]: If you need to use a word to describe the area of your
body that he was on, you can use that word.
[Z.W.]: He was by my back but a little down.
[ADA]: Would it have been near where your butt is?
[Z.W.]: Yes.
[ADA]: Okay. Would it have been near where the opening to your
butt is?
[Z.W.]: No.
[Defense Counsel]: Your honor, I would object to this line of
leading questions at this point.
THE COURT: Overruled. She answered the last question.
[ADA]: Now, where his hand was, was it under your underwear
or had it not gone down far enough?
[Z.W.]: It hadn’t gone down far enough.
Brief for Appellant at 8-10 (citing N.T., 1/30/20, at 102, 104-05) (emphasis
in brief).
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Hough posits that because Z.W.’s testimony was not sufficient to
establish that Hough had touched the “sexual or intimate parts” of Z.W., the
Commonwealth impeached Z.W. with her prior inconsistent statement from
the forensic interview she gave on January 9, 2019. Id. at 10. Hough argues
that the forensic interview was leading and that the suggestion of physical
contact was from the interviewer. Id. Hough set forth the following portion
of the forensic interview, which was used to impeach Z.W.:
[Interviewer]: Okay. So you wake up, and you feel something
going down your pants, you said? Correct me if I get it wrong.
Okay. And what did you feel?
Z.W.: His hand.
[Interviewer]: Okay. And how do you know it was his hand?
Z.W.: Because—at first I thought was my—at first I thought it
was, like, [my brother] just hug—like because he always hugs me
when we go to sleep. But then I turned around, and I looked at
his hand. And then I hurried up and got up and ran into my little
brother’s room.
[Interviewer]: Okay. And what were you wearing when you went
to bed?
Z.W.: Some pink joggers from Pink, Victoria’s Secret, and a black
shirt from Nike.
[Interviewer]: Okay. And so when you felt that on your butt,
was it over your clothes, under your clothes, or something else?
Z.W.: Under my clothes.
[Interviewer]: Okay. And were you wearing panties?
Z.W.: Yeah.
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[Interviewer]: And was it over your panties or under your
panties?
Z.W.: Under.
[Interviewer]: Okay. And when he—when you felt that on your
butt, what was he doing with his hand?
Z.W.: He was like, putting his hand down my pants.
Brief for Appellant at 11-12 (citing Forensic Interview Transcript, 4/26/19, at
7-8) (emphasis in brief)).4 The Commonwealth played a portion of the video
of the forensic interview, which included the transcribed portion cited by
Hough in his appellate brief. N.T., 1/31/21, at 175. Hough argues that given
the above testimony, and the suggestiveness of the questioning, “the
testimonial evidence bearing on the issue of the nature and location of the
touching between [Hough] and [Z.W.] was equivocal, and the prior
inconsistent statement was too suggestive that it’s shocking for the jury to
weigh this evidence in favor of rendering a verdict of guilty.” Id. at 13.5 He
posits that the questions posed to Z.W. “created a mirage” that Hough touched
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4 We note there is a discrepancy about the date of the forensic interview.
Detective Lippert testified that the interview took place on January 9, 2019.
N.T, 1/30/20, at 169. The video of forensic interview also has a date stamp,
which reads January 9, 2019. However, the transcript of the forensic interview
included in the certified record is dated April 26, 2019. Forensic Interview
Transcript, 4/26/19. Despite the differences in the date, there was only a
single forensic interview conducted, and the transcript in the certified record
corresponds to the video.
5 Hough concedes, in his brief, that “he would have no argument if, from
[Z.W.’s] mouth, she had stated that [Hough] touched her butt.” Brief for
Appellant at 13.
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Z.W.’s sexual or intimate parts. Id. Hough argues that the touching of Z.W.’s
lower back is not a sexual or intimate part of the body. Id. Because,
according to Hough, he was convicted “only because the trial court gave equal
weight to the suggested responses given Z.W.,” the verdict against Hough
cannot stand, and a new trial is due. Id. at 15.
When presented with a challenge to the weight of the evidence, we
consider the following:
“The weight of the evidence is exclusively for the finder of fact,
who is free to believe all, none[,] or some of the evidence and to
determine the credibility of the witnesses.” Commonwealth v.
Talbert, 129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks
and quotation omitted). Resolving contradictory testimony and
questions of credibility are matters for the finder of fact.
Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super.
2000). It is well-settled that we cannot substitute our judgment
for that of the trier of fact. Talbert, supra.
Moreover, appellate review of a weight claim is a review of
the trial court’s exercise of discretion in denying the weight
challenge raised in the post-sentence motion; this Court does not
review the underlying question of whether the verdict is against
the weight of the evidence. See id.
Because the trial judge has had the opportunity to
hear and see the evidence presented, an appellate
court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial
is the lower court’s conviction that the verdict was or
was not against the weight of the evidence and that a
new trial should be granted in the interest of justice.
Id. at 546 (quotation omitted). Furthermore, “[i]n order for a
defendant to prevail on a challenge to the weight of the evidence,
the evidence must be so tenuous, vague and uncertain that the
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verdict shocks the conscience of the court.” Id. (quotation marks
and quotation omitted).
Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021).
Moreover, we note that a challenge to the weight of the evidence “concedes
that sufficient evidence was adduced to convict the defendant but that the
verdict must nevertheless be overturned because the evidence was
untrustworthy and unreliable.” Commonwealth v. Gaskins, 692 A.2d 224,
228 (Pa. Super. 1997). Finally, we note that when reviewing a claim that the
verdict is against the weight of the evidence, trial judges do not act as a juror;
“[r]ather[,] the role of the trial judge is to determine that ‘nothwithstanding
all the facts, certain facts are so clearly of greater weight that to ignore them
or give them equal weight with all the facts is to deny justice.’”
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (quoting
Thompson v. City of Philadephia, 493 A.2d 669, 674 (Pa. 1985)).
As to the crime of indecent assault as set forth in 18 Pa.C.S.A.
§ 3126(a)(7), an individual is guilty of indecent assault if the person has
“indecent contact” with the victim, and the victim is under the age of thirteen.
Indecent contact is defined as “[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. The “sexual or other intimate parts”
language has been interpreted by this Court to include more than a person’s
genitalia, because “such a construction ignores the distinction between
‘sexual’ and ‘other intimate parts,’ making the latter term redundant.”
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Commonwealth v. Capo, 727 A.2d 1126, 1127 (Pa. Super. 1999) (finding
defendant had indecent contact with victim when he grabbed her by the upper
arm, attempting to kiss her mouth but only reaching her face and neck, and
rubbed her shoulders, back, and stomach); see also Commonwealth v.
Fisher, 47 A.3d 155, 158 (Pa. Super. 2012) (finding that “the backs of legs
can be intimate parts of the body, just as the shoulders, neck, and back were
in Capo, when touched for the purpose of arousing or gratifying sexual
desire.”).
In its Opinion, the trial court found that, although Hough did not
specifically state that he was challenging the weight of the evidence, the court
interpreted the relief Hough sought as a challenge to the weight of the
evidence.6 Trial Court Opinion, 6/21/21, at 8. The trial court set forth the
following analysis:
Z.W.’s repeated disclosure and testimony of the events of
December 14, 2018[,] were consistent with only minor variations
as to the exact positioning of [Hough’s] hand on her buttock. At
trial, Z.W. testified that she fell asleep while watching television
with her younger brother in her mother’s bedroom located on the
2nd floor of the residence. She was wearing underwear, joggers,
and a t-shirt. She was laying on her left side when she was
awakened after feeling a hand beneath her underwear, making
skin to skin contact with her buttock. Shortly after, while still
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6 The trial court also noted that it appears that Hough is not conceding the
sufficiency of the evidence, as evidenced by his use of quotation marks around
the terms “impeached,” which the trial court found to be an attack on the
court’s ruling on the admission of evidence. Trial Court Opinion, 6/21/21, at
10. The trial court found that, therefore, Hough is not conceding the
sufficiency of the evidence, which is required in a weight claim, and that
Hough’s claim should be denied for that reason. Id.- 10 -
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under direct examination, Z.W. was asked if [Hough’s] hand went
beneath her underwear or “hadn’t gone down far enough[,]” and
she responded that it hadn’t gone down far enough. During her
forensic interview[,] which was played for the jury, she told the
interviewer that [Hough’s] hand had made contact with her
buttock. Given that the assault occurred while Z.W. was
sleeping[,] it is not inconceivable that there may be a lack of
clarity regarding the exact positioning of [Hough’s] hand as she
was awakened by the event.
There was no contrary evidence presented by the defense,
thus by requesting this relief, [Hough] asks the [c]ourt to
completely discount Z.W.’s testimony and statements offered
during the forensic interview. The [c]ourt does not find [Hough’s]
argument compelling. Any discrepancies in the victim’s testimony
are negligible and not of such a nature that they should be either
given no weight or that giving them “equal weight with all the
facts [would be] to deny justice.” [Widmer, 744 A.2d at 752.]
Simply stated, there is nothing in the record which was likely to
shock the trial court’s sense of justice and require a new trial in
order for justice to prevail.
Trial Court Opinion, 6/21/21, at 11-12.
As the trial court noted, Hough offered no contrary evidence and asked
the trial court to completely disregard the evidence presented to the jury. Id.
at 11. To the extent that Hough argues that the testimonial evidence was not
clear that Hough touched Z.W.’s buttock, the resolution of any discrepancies
in testimony is for the jury, the ultimate fact-finder and arbiter of the
credibility of witnesses. Commonwealth v. Jacoby, 170 A.3d 1065, 1080
(Pa. 2017). Further, inconsistencies in testimony are not grounds for a new
trial on weight of the evidence grounds. Id. at 181. This is particularly true,
where, as the trial court noted, the assault occurred while Z.W. was sleeping
and, as such, it is not inconceivable that Z.W. lacked clarity regarding Hough’s
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hand position when she awakened. Trial Court Opinion, 6/21/21, at 11; see
also Widmer, 744 A.2d at 754 (noting that it is important to consider the
context of the testimony given and that a person assaulted while asleep may
not be able to “recount with certainty events that occurred while she was
asleep and simultaneous to her awakening.”). Moreover, as discussed supra,
our case law has established that the “other intimate parts” of an individual
refers to more than just that individual’s genitalia, breasts, and buttocks.
Based upon our review, we conclude that the trial court did not abuse its
discretion in denying Hough’s weight of the evidence claim, nor does the jury’s
verdict shock the conscience of this Court. Accordingly, Hough is due no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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