Com. v. Davis, T.

J-A10031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY DESHAN DAVIS, :
:
Appellant : No. 1572 EDA 2019
Appeal from the Judgment of Sentence Entered May 3, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0004661-2017
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED: MARCH 22, 2021
Appellant, Timothy Deshan Davis, appeals from the judgment of
sentence entered on May 3, 2019, in the Court of Common Pleas of Bucks
County. We affirm the judgment of sentence but vacate the order denying
Appellant’s post-sentence motion that challenged the constitutionality of the
Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§
9799.10-9799.42, and remand for further proceedings on these challenges.
The trial court summarized the factual and procedural history of this
case as follows:
I. FACTUAL BACKGROUND
At trial, E.C. testified that she rented a room at the Best
Western Hotel in Bensalem, Pennsylvania so that she and her four
children could enjoy a short getaway on the weekend of June 3,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A10031-20
2017. N.T. 1/5/18, p. 93. That Saturday, Appellant, who had an
on-again, off-again relationship with E.C., visited E.C. and her
children at the hotel, but left after he and E.C. got into an
argument. N.T. 1/5/18, pp. 95-97, 145. On Sunday afternoon,
E.C. dropped her children off at her home in Philadelphia before
meeting Appellant at his apartment in Bensalem “to talk about
stuff that [had] been going on.” N.T. 1/5/18, pp. 98-100.
Appellant had been drinking by the time E.C. arrived at his
apartment on Sunday evening. N.T. 1/5/18, p. 100. Shortly after
meeting at the apartment, E.C. and Appellant drove back to the
Best Western, where Appellant rented a room for an additional
night. N.T. 1/5/18, pp. 98-101. E.C. and Appellant decided to
travel together from the hotel to Appellant’s friend’s house in
Camden, New Jersey to watch a basketball game. N.T. 1/5/18, p.
102. While at Appellant’s friend’s house, E.C. and Appellant drank
SVEDKA Vodka and ate marijuana cookies. N.T. 1/5/18, pp. 103-
105. After the game ended, Appellant invited his friend, his
friend’s girlfriend, and two other people to return to the Best
Western with him and E.C. N.T. 1/5/18, pp. 106-107.
When they arrived back at the hotel, E.C. and the others
changed into their bathing suits so that they could swim in the
indoor pool. N.T. 1/5/18, pp. 109-110. E.C. and the other two
women talked poolside while the men spent time in the Jacuzzi.
N.T. 1/5/18, p. 111. As she was chatting with the women, E.C.
noticed one of Appellant’s friends fall asleep in the Jacuzzi. N.T.
1/5/18, p. 112. E.C. and Appellant began to argue when E.C.
voiced her concern for the friend who was “knocked out” in the
hot tub. N.T. 1/5/18, pp. 113-114. According to E.C., Appellant
whispered something in his friend’s girlfriend’s ear while E.C. was
talking to her. N.T. 1/5/18, pp. 115-116. E.C. felt “disrespected”
and “swatted” Appellant on his head. N.T. 1/5/18, p. 116.
Appellant then “got up and he started getting all crazy and he
came and grabbed [E.C.] ... by [her] chest area...and slammed
[her] down to the chair where [she] hit the back of [her] neck.”
N.T. 1/5/18, p. 117. E.C. got up and grabbed a beer bottle to
strike Appellant, but Appellant grabbed the glass bottle out of her
hand, dropped it, and “grabbed [E.C.] so hard and just slammed
[her] down and banged [her] head.” N.T. 1/5/18, pp. 119-120.
E.C. testified that she hit her head on the floor three times,
“everything faded away,” and when she woke up, she was in the
hotel room. N.T. 1/5/18, pp. 120-121. The surveillance video
from the Best Western shows Appellant carrying E.C. over his
shoulder to his hotel room. N.T. 1/8/18, pp. 19-25.
-2-
J-A10031-20
When E.C. woke up in the hotel room, she was laying on her
stomach and Appellant was on top of her with his hands around
her neck and shoulders. N.T. 1/5/18, pp. 123, 126. Appellant
had pushed E.C.’s bathing suit to the side and according to E.C.,
Appellant “had his penis inside [her] butt, and it was hurting
really, really bad. And [E.C.] kept telling him to stop.” N.T.
1/5/18, pp. 123, 127. E.C. testified, “[Appellant] kept saying,
‘this is what happens when you don’t shut the fuck up and this is
what happens, that’s what you get. No, this is my asshole.’ Like
he kept saying stuff, and I’m like, ‘Tim, please, stop, stop,’ and
he kept on and kept on. And I just kept praying.” N.T. 1/5/18,
pp. 123-124. After Appellant stopped and rolled off E.C., she
waited to hear him snoring. N.T. 1/5/18, pp. 128-130. E.C. then
got out of bed and crawled on the floor until she was able to find
her bag and the car keys. N.T. 1/5/18, pp. 128-130. The
surveillance video from the Best Western shows E.C. leaving the
hotel still dressed in her bathing suit. N.T. 1/8/19, p. 25. E.C.
then drove to nearest medical office and ran inside to ask for help.
N.T. 1/5/18, pp. 131-134. Someone at the medical office called
the police, who transported [E.C.] to Aria Bucks Hospital for
treatment. N.T. 1/5/18, pp. 132-138, 195. Rachel Smull, the
Sexual Assault Nurse Examiner who treated E.C., observed “an
abrasion and bruising on her forehead and multiple areas of
bruising on her...upper arm.” N.T. 1/5/18, p. 211. During the
examination, E.C. also reported “neck pain, loss of consciousness,
nausea, vomiting, lightheadedness, loss of memory, and a
headache.” N.T. 1/5/18, p. 210. Smull examined E.C.’s vaginal
and rectal areas and observed red fluid around her rectum. N.T.
1/5/18, pp. 219-220. At trial, Smull testified that the injuries
were consistent with E.C.’s description of the assault. N.T.
1/5/18, p. 224.
II. PROCEDURAL HISTORY
A jury found Appellant guilty of Involuntary Deviate Sexual
Intercourse by Forcible Compulsion,1 Involuntary Deviate Sexual
Intercourse by Threat of Forcible Compulsion,2 Aggravated
Assault,3 Sexual Assault,4 Aggravated Indecent Assault without
Consent,5 and Simple Assault6 on January 9, 2018, after a three-
day trial. This [c]ourt deferred sentencing for completion of a
presentence investigation and directed that the Pennsylvania
Sexual Offenders Assessment Board (“SOAB”) perform an
assessment of Appellant as required by the Sex Offender
-3-
J-A10031-20
Registration and Notification Act (“SORNA”) to determine whether
Appellant is a sexually violent predator (“SVP”). On May 4, 2018,
we sentenced Appellant to five-and-a-half to fifteen years in a
state correctional facility on the Aggravated Assault charge with
no further penalty on the other charges. Appellant’s SVP
evaluation was outstanding at the time of sentencing, but
Appellant chose to proceed without it. N.T. 5/4/18, pp. 7-8.
1 18 Pa.C.S.A. §3123(a)(1).
2 18 Pa.C.S.A. §3123(a)(2).
3 18 Pa.C.S.A. §2702(a)(1).
4 18 Pa.C.S.A. §3124.1.
5 18 Pa.C.S.A. §3125(a)(1).
6 18 Pa.C.S.A. §2701(a)(1).
Appellant filed a timely Motion to Modify and Reconsider
Sentence on May 9, 2018, and the Commonwealth moved to
schedule a hearing to determine Appellant’s SVP status on
May 21, 2018. The parties agreed that this Court should delay its
decision of those motions because the judges of the Court of
Common Pleas of Bucks County had scheduled a hearing on
September 17, 2018, to determine the constitutionality of SORNA
II, specifically the SVP classification procedure. Prior to that
hearing, on August 31, 2018, Appellant filed a “Motion to Declare
SORNA 42 Pa.C.S.A. [§§] 9799, et seq. Unconstitutional, Motion
to Vacate/Bar SOAB Evaluation, Objection to Commonwealth’s
Petition for Sexually Violent Predator Hearing, Motion for
Continuance/Abeyance/Evidentiary Hearing and/or Motion to Bar
Imposition of an Illegal Sentence.” On September 12, 2018, the
Commonwealth filed a “Memorandum of Law in Opposition to
Defendants’ Motions to Quash Determinations of Sexually Violent
Predator Status and/or to Declare Act 10, Subchapter H
Unconstitutional” and Appellant filed a “Brief In Support of His
Motion to Find the Sexual Violent Predator Classification Procedure
and the Entirety of SORNA II Unconstitutional Pursuant to the
Reasoning Set Forth in Muniz, and Butler, Torsilieri, et al.”.
On September 17, 2018, the panel heard argument
regarding the constitutionality of SORNA II. Following that
hearing, the Commonwealth filed a Supplemental Memorandum
of Law on September 27, 2018, and Appellant filed a Responsive
Brief on October 4, 2018.
-4-
J-A10031-20
While the panel’s decision was pending, Appellant filed a
Petition for Relief Pursuant to the Post-Conviction Relief Act on
November 26, 2018, requesting full reinstatement of his post-
sentence rights under the Post-Conviction Relief Act because 150
days had lapsed since his sentencing. This [c]ourt granted the
relief requested in Appellant’s PCRA petition and Appellant refiled
Post-Sentence Motions on December 6, 2018.
On December 17, 2018, the panel of judges issued a
Memorandum Opinion, in which it concluded that SORNA II
remains punitive and unconstitutional despite the Pennsylvania
General Assembly’s revisions of February 21, 2018. See
Memorandum Decision, December 17, 2018 (attached hereto as
Exhibit A). The Commonwealth filed a Motion for
Reconsideration/Clarification of the Memorandum Opinion on
December 20, 2018.
On January 2, 2019, this [c]ourt heard argument in
Appellant’s Post-Sentence Motions, but held the matter under
advisement because the panel had decided to reconsider the
Conclusion of its Memorandum Opinion.
The panel reconvened on February 13, 2019, and ordered
the parties to submit briefs in support of their respective positions.
On February 22, 2019, the Commonwealth filed a Memorandum
of Law in Support of Its Motion for Reconsideration, and on
February 25, 2019, Appellant filed a “Brief in Support of the Motion
to Find the Sexual Violent Predator Classification Procedure and
the Entirety of SORNA II Unconstitutional Pursuant to the
Reasoning Set Forth in Muniz, Butler, and Torsilieri, et al.” On
March 18, 2019, the panel vacated the Conclusion from its
December 17, 2018, Memorandum Opinion and issued an Order
directing that the judges presiding over criminal matters in Bucks
County (1) will not designate convicted defendants as SVPs or hold
SVP hearings and (2) will continue to apply the tier-based
registration periods pursuant to 42 Pa.C.S.A. § 9799.14 and 42
Pa.C.S.A. § 9799.15. See Trial Court Order, March 18, 2019 ….
Appellant filed a Motion for Extension of Time for Post-
Sentencing Relief on April 1, 2019, which this [c]ourt granted on
April 5, 2019. On May 3, 2019, we resentenced Appellant to five-
and-a-half to fifteen years in a state correctional facility and
advised Appellant on the record of the requirement that he
register as a Tier[-III] offender pursuant to the requirements of
-5-
J-A10031-20
SORNA and the panel’s Order of March 18, 2019. Appellant filed
a timely Notice of Appeal on May 31, 2019.
Trial Court Opinion, 7/5/19, at 1-6. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review, which we have
reordered for purposes of disposition:
[1.] Whether the Lower Court erred in finding that there was
sufficient evidence to establish involuntary deviate sexual
intercourse, aggravated assault, aggravated indecent assault,
sexual assault, and simple assault where the verdict rested on the
lack of evidence, inconsistent evidence, and there was insufficient
evidence of the mens rea, actus reas, and requisite injury?
[2.] Whether the Lower Court erred in finding that the weight of
the evidence established involuntary deviate sexual intercourse,
aggravated assault, aggravated indecent assault, sexual assault,
and simple assault where the verdict rested on the lack of
evidence, inconsistent evidence, and there was insufficient
evidence of the mens rea, actus reas, and requisite injury?
[3.] Whether the Lower Court erred when it failed to find that ACT
29 and its registration requirements violated the United States
Constitution and the enhanced protections under the Pennsylvania
Constitution on its face and as applied?
[4.] Whether the Lower Court erred when it failed to find that ACT
29 and its registration requirements violated the United States
and Pennsylvania Constitution Due Process prohibition against ex
post facto laws?
[5.] Whether the Lower Court erred when it failed to find that ACT
29 and its registration requirements violated United States and
Pennsylvania Constitutional Due Process protections because it
deprives Appellant of the Right to Reputation under the
Pennsylvania Constitution, it creates an irrebuttable presumption,
treats all offenders universally as high-risk, violates individualized
punishment, overly inclusive of offenders and charges, ignores
reasonable alternative means exist to identify offender risk,
denies any meaningful opportunity to be heard, exceeds the least
-6-
J-A10031-20
restrictive means requirement, and otherwise violates substantive
Due Process protections?
[6.] Whether the Lower Court erred when it failed to find that ACT
29 and its registration requirements violate the United States and
Pennsylvania Constitutions as it constitutes cruel and unusual
punishment where registration is based upon empirically false
myths, fails to deter first time offenders, fails to reduce recidivism,
threatens public safety, forces registrants and their families to
suffer, creates an impassable barrier to reintegration into law-
abiding society, and fails to address each offender individually?
[7.] Whether the Lower Court erred when it failed to find that ACT
29 and its registration requirements violate the United States and
Pennsylvania Constitutions’ Separation of Powers Doctrine, as it
gave judicial powers to the Legislature and Pennsylvania State
Police?
[8.] Whether the Lower Court erred when it failed to find that ACT
29 and its registration requirements violated United States and
Pennsylvania Constitutions’ Due Process provisions as it increased
the maximum sentence without proof beyond a reasonable doubt
to a jury in violation of Alleyne v. United States, 570 U.S. 99(2013), and that said provisions are not severable?
Appellant’s Brief at 5-7 (renumbered).
Appellant first argues that there was insufficient evidence to support his
convictions. Appellant’s Brief at 108-116. Appellant asserts that his
convictions suffer from “the same deficiency, inconsistency, and lack of
evidence.” Id. at 108. Appellant contends that the convictions rely upon
“bold statements and assertions made by witnesses without corresponding
evidence.” Id. at 111. Appellant claims that the evidence, and his version of
the facts, support his allegation that “this was a normal evening with friends,
which when alcohol is involved sometimes gets out of hand, but that no crime
occurred.” Id. at 116.
-7-
J-A10031-20
Our standard of review is well established:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder[’s]. In addition, we note that the 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the finder
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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
The trial court addressed the challenge to the sufficiency of the evidence
with the following discussion:
A person commits Involuntary Deviate Sexual Intercourse
when he or she, by physical compulsion or threats thereof, coerces
the victim to engage in acts of anal and/or oral intercourse. See
Commonwealth v. Zingarelli, 839 A.2d 1064, 1070 (Pa. Super.
2003) (citation omitted). See also 18 Pa.C.S.A. § 3123(a)(1, 2);
18 Pa.C.S.A. § 3101. The penetration requirement for involuntary
deviate sexual intercourse is “penetration however slight.”
Cornmonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super.
2003). Therefore, in order to sustain a conviction for involuntary
deviate sexual intercourse, the Commonwealth must establish
that Appellant engaged in acts of oral or anal intercourse, which
involved penetration however slight. Commonwealth v.
Poindexter, 646 A.2d 1211, 1215 (Pa. Super. 1994), appeal
denied, 655 A.2d 512 (Pa. 1995). In Pennsylvania, a person is
guilty of Aggravated Indecent Assault if they engage “in
-8-
J-A10031-20
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.”
See 18 Pa.C.S.A. § 3125(a)(1). Sexual Assault constitutes a
lesser-included offense of Involuntary Deviate Sexual Intercourse,
by either forcible compulsion or with an individual who is
unconscious or unaware that sexual intercourse is occurring.
Commonwealth v. Buffington, 828 A.2d 1024 (Pa. 2003). See
also 18 Pa.C.S.A. § 3123(a)(1, 3); 18 Pa.C.S.A. § 3124.1.
Here, the victim’s testimony revealed that Appellant
continuously inserted his penis into her anus while she was
unconscious. E.C. begged Appellant to stop when she woke up,
but he refused. A Sexual Assault Nurse Examiner examined E.C.
shortly after the incident and determined that the injuries,
including the red fluid around her rectum, were consistent with
E.C.’s description of the assault. The victim’s testimony
constitutes sufficient evidence to establish penetration however
slight because she describes how Appellant’s penis was in her
rectal area, as well as Appellant’s statements at the time of the
assault. See Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa.
Super. 2003) (evidence is sufficient to establish penetration
however slight where the victim’s testimony revealed that
Appellant inserted his testicles into her mouth). Appellant argues
that evidence of Appellant’s and E.C.’s prior relationship and
Appellant’s good character “[negated] the elements and
[impeached] the lone accuser’s testimony.” However, it was the
exclusive function of the jury to assess the credibility of the
witnesses and to determine the weight to be accorded their
testimony. Commonwealth v. Bridell, 384 A.2d 942, 945 (Pa.
Super. 1978). The jury chose to believe E.C. and not Appellant
after a three-day trial in which Appellant testified and we found
no basis to overturn the jury’s decision as to the sex crimes
charged in this case.
Similarly, the jury found the evidence presented at trial
sufficient to convict Appellant of Aggravated Assault and Simple
Assault. “A person is guilty of [A]ggravated [A]ssault if he ...
attempts to cause serious bodily injury to another, or causes such
injury intentionally, knowingly, or recklessly under circumstances
manifesting extreme indifference to the value of human life[.]” 18
Pa.C.S.A. § 2702(a)(1). The Crimes Code defines “serious bodily
injury” as “[b]odily injury which creates a substantial risk of death
or which causes serious, permanent disfigurement, or protracted
-9-
J-A10031-20
loss or impairment of the function of any bodily member or organ.”
18 Pa.C.S.A. § 2301. The conduct giving rise to an inference that
the accused intended to cause serious bodily injury need not itself
be life threatening. Commonwealth v. Rodriquez, 673 A.2d
962, 966 (Pa. Super. 1996). In Pennsylvania, a person is guilty
of Simple Assault if he “attempts to cause or intentionally,
knowingly, or recklessly causes bodily injury to another [.]” 18
Pa.C.S.A. § 2701(a)(1). The Crimes Code defines “bodily injury”
as “[i]mpairment of physical condition or substantial pain.” 18
Pa.C.S.A. § 2301.
“A person acts intentionally with respect to a material
element of an offense when...it is his conscious object to engage
in conduct of that nature or to cause such a result[.]” 18 Pa.C.S.A.
§ 302(b)(1)(i). “As intent is a subjective frame of mind, it is of
necessity difficult of direct proof.” Commonwealth v.
Matthews, 870 A.2d 924, 929 (Pa. Super. 2005) (citations
omitted). “[I]ntent can be proven by direct or circumstantial
evidence; it may be inferred from acts or conduct or from the
attendant circumstances.” Id.During the trial, the Commonwealth presented ample
evidence of Appellant’s conduct, his criminal intent, and E.C.’s
injuries so as to support Appellant’s convictions for Aggravated
Assault and Simple Assault. The victim’s testimony that Appellant
threw her down with such force that she lost consciousness is
sufficient to prove that Appellant intended to cause her serious
bodily injury. See Commonwealth v. Kinney, 157 A.3d 968,
973 (Pa. Super. 2017), appeal denied, 170 A.3d 971 (Pa. 2017)
(evidence was sufficient to prove that Appellant attempted to
cause victim serious bodily injury by repeatedly kicking and
punching him in the head until he lost consciousness).
Furthermore, the abrasions and bruising on E.C.’s head and arm
constituted sufficient evidence of serious bodily injury. See
Commonwealth v. Rife, 312 A.2d 406 (Pa. 1973) (evidence that
victim suffered bruises, black eye, and large abrasion on the head
supported finding that victim was the victim of an aggravated
assault). As such, the Commonwealth established each of the
elements of Aggravated Assault and Simple Assault beyond a
reasonable doubt and Appellant is not entitled to relief on his
sufficiency claims.
Trial Court Opinion, 7/5/19, at 12-14.
- 10 -
J-A10031-20
We have thoroughly reviewed the certified record before us on appeal,
and we agree with the trial court’s determination that the Commonwealth
presented sufficient evidence to establish beyond a reasonable doubt that
Appellant committed the various sexual crimes and the assault crimes.
Immediately after physically beating the victim at the swimming pool,
Appellant carried her to a hotel room and began sexually assaulting her while
she was unconscious and continued after she regained consciousness.
Accordingly, Appellant’s claim challenging the sufficiency of the evidence to
support the crimes lacks merit.1
Appellant next argues that the verdict was against the weight of the
evidence. Appellant’s Brief at 117-119. Appellant contends that “each and
every charge suffers the same deficiency, inconsistency, and lack of
evidence.” Id. at 117. Appellant alleges that “the conviction of Appellant
____________________________________________
1 Our review further reflects no merit to Appellant’s claim that the testimony
offered by the victim and additional Commonwealth evidence was so
inherently unreliable that a verdict based upon it could amount to no more
than surmise or conjecture as contemplated in Commonwealth v. Karkaria,
625 A.2d 1167 (Pa. 1993). Specifically, our review of the record reflects that
any inconsistencies with regard to the details of the physical assault at the
indoor swimming pool and the sexual assault that occurred in the hotel room
were minor. Indeed, the Commonwealth established the details of the
physical assault through testimony from the victim and corroborating video
surveillance footage. Likewise, the victim offered testimony about the sexual
assault that the Commonwealth supported by police testimony and DNA
evidence. This is in stark contrast with the circumstances in Karkaria,
wherein the complainant’s testimony and statements repeatedly contradicted
each other from the time the investigation began through the trial, and led to
a conclusion that the evidence was insufficient to convict the appellant.
Hence, we conclude there is no merit to this portion of Appellant’s argument.
- 11 -
J-A10031-20
shocks one’s conscience and that the lower court abused its discretion as the
overwhelming weight of the evidence contradicts the jury’s finding in this
case.” Id. at 118. Appellant claims that he should be awarded a new trial.
Id. at 119.
In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme
Court set forth the following standards to be employed in addressing
challenges to the weight of the evidence:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319,
744 A.2d 745, 751-[7]52 (2000); Commonwealth v. Brown,
538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should
not be granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at a
different conclusion. Widmer, 560 A.2d at 319-[3]20, 744 A.2d
at 752. 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.’” Id. at 320, 744 A.2d at 752 (citation
omitted). It has often been stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.” Brown, 538 Pa. at 435, 648 A.2d at 1189.
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. Brown, 648 A.2d at 1189. 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
- 12 -
J-A10031-20
court’s determination that the verdict is against the
weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
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.
Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
added).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based on
a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
[11]85 (1993)).
Clay, 64 A.3d at 1054-1055 (emphasis in original). “Thus, the trial court’s
denial of a motion for a new trial based on a weight of the evidence claim is
the least assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873,
879-880 (Pa. 2008).
- 13 -
J-A10031-20
The trial court addressed Appellant’s challenge to the weight of the
evidence as follows:
In arguing that his verdict is against the weight of the
evidence, Appellant claims that, “the lack of requisite injury,
requisite intent, and forcible compulsion established an
extraordinarily weak inference of any and could not overcome
evidence of the consensual relationship, good character, and
exculpatory and circumstantial evidence negating the elements
[of the crimes] and impeaching the lone accuser’s testimony.”
However, we reiterate that it was within the exclusive province of
the jury to assess the credibility of the witnesses and weigh the
evidence accordingly. See Commonwealth v. McCalman, 795
A.2d 412, 415 (Pa. Super. 2002). Considering the demeanor and
testimony of the witnesses, we did not find that the verdict in this
case was shocking or contrary to the evidence. In other words,
the jury’s decision to convict Appellant of Involuntary Deviate
Sexual Intercourse by Forcible Compulsion, Involuntary Deviate
Sexual Intercourse by Threat of Forcible Compulsion, Aggravated
Assault, Sexual Assault, Aggravated Indecent Assault without
Consent, and Simple Assault is supported by the record.
Therefore, Appellant is not entitled to relief on his weight claim.
Trial Court Opinion, 7/5/19, at 15.
Based upon our complete review of the record, we are compelled to
agree with the trial court’s conclusion that the jury’s verdict was consistent
with the evidence presented. Here, the jury, sitting as the finder of fact, was
free to believe all, part, or none of the evidence against Appellant. The jury
weighed the evidence and concluded Appellant committed the crimes charged.
We agree that these determinations are not so contrary to the evidence as to
shock one’s sense of justice. We decline Appellant’s invitation to assume the
role of fact-finder and reweigh the evidence presented at trial. Accordingly,
- 14 -
J-A10031-20
we conclude that the trial court did not abuse its discretion in refusing to grant
relief on Appellant’s challenge to the weight of the evidence.
We next turn to the remaining issues presented by Appellant. Herein,
Appellant raises challenges to the constitutionality of the order requiring him
to register under SORNA as a Tier-III offender.
Commonwealth v. Mickley, 240 A.3d 957 (Pa. Super. 2020), instructs
that the proper remedy is to remand for an evidentiary hearing on Appellant’s
challenges to SORNA. In Mickley, this Court observed that the appellant’s
constitutional challenges to SORNA were identical to arguments raised in
Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). The Torsilieri
Court did not reach the merits of any of the constitutional claims at issue,
determining instead that the factual record was not sufficiently developed in
the trial court. The Court in Torsilieri concluded that a remand was
appropriate “to allow the parties to address whether a consensus has
developed to call into question the relevant legislative policy decisions
impacting offenders’ constitutional rights.” Id. at 587. Based on Torsilieri,
Mickley held:
Here, despite defense counsel’s attempt, no evidence was
presented at the hearing on Mickley’s post-sentence motion.
Thus, in accordance with Torsilieri, we vacate the order denying
Mickley’s post-sentence motion and remand for a hearing at which
the parties can present evidence for and against the relevant
legislation determinations discussed above.
Mickley, 240 A.3d at 963; see also Commonwealth v. Asher, ___ A.3d
___, 2020 PA Super 293 at *4 (Pa. Super. filed December 21, 2020) (citing
- 15 -
J-A10031-20
Torsilieri and Mickley and concluding that where the defendant preserved
his constitutional challenges to SORNA, but trial court denied relief without
developing factual record, remand was proper for hearing at which parties
could present evidence for and against relevant legislative determinations).
Upon review of the record, we conclude that the same remedy is
appropriate here. As noted by the Commonwealth, the SORNA issues raised
by Appellant are the same as those raised in Torsilieri. Commonwealth’s
Brief at 22 n.8. At the en banc trial court hearing held September 17, 2018,
Appellant’s counsel noted that the record was not complete and sought to
present into evidence various affidavits “relevant to the due process
challenges.” N.T., 9/17/18, at 5. Appellant’s counsel indicated the desire to
create a record similar to Torsilieri. Id. at 5-6. However, the Commonwealth
was hesitant to stipulate to the admission of the evidence. After extensive
discussion and a brief recess, the en banc trial court reached the following
conclusion:
We’ve decided [to] proceed with the remaining arguments
but not proceed on the due process issue today, and we’re
ordering both sides to meet within ten days and to endeavor to
see whether or not you can reach an agreement as to what the
record will be, whether there will be a stipulation as to the
admissibility of affidavits and curriculum vit`ae for experts for us
to consider.
The second thing we’re asking you to meet and discuss is
for what purpose are we to consider those expert reports. See if
you can reach an agreement, and if you cannot, you’ll let us know
that as well and what your position is. And then we can decide
how we proceed on the due process issue.
- 16 -
J-A10031-20
Id. at 32-33.
The record further reflects that the parties were not able to reach an
agreement as requested. Moreover, the trial court failed to address the due
process claims presented by Appellant in either its memorandum opinion
entered on December 17, 2018, or in its subsequent order entered on
March 18, 2019. Hence, the proper remedy under these circumstances is to
remand for a hearing at which the parties can present evidence relating to
Appellant’s SORNA arguments.
Judgment of sentence affirmed. Order denying post-sentence motion
vacated and case remanded for proceedings consistent with Torsilieri.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/21
- 17 -