J-A25013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA
                             Appellee

                        v.

    LAMARCUS EUGENE DRAYTON

                             Appellant             No. 1742 MDA 2018


        Appeal from the Judgment of Sentence entered August 20, 2018
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No: CP-22-CR-0002609-2016


BEFORE: STABILE, McLAUGHLIN, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                     FILED FEBRUARY 24, 2020

       Appellant, Lamarcus Eugene Drayton, appeals from the judgment of

sentence entered on August 20, 2018 in the Court of Common Pleas of

Dauphin County following his conviction of two counts of involuntary deviate

sexual intercourse—person less than 16 years of age (“IDSI”), and one count

each of unlawful contact with a minor, indecent assault, and corruption of

minors.1    Appellant argues that the verdict was against the weight of the

evidence and that the trial court erred in denying admission of a prior

inconsistent statement of the victim. Upon review, we affirm.




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1 18 Pa.C.S.A. §§ 3123(a)(7), 6318(a)(1), 3126(a)(8), and 6301(a)(1)(i),
respectively.
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      Following a jury trial in May 2018, Appellant was convicted of the crimes

listed above. On August 10, 2018, he was sentenced to an aggregate term of

ten to twenty years in prison, followed by five years’ probation.

      Appellant filed a post-sentence motion, which the trial court denied on

September 27, 2018. This timely appeal followed. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      Appellant asks us to consider two issues in this appeal:

      1. Did the trial court commit reversible error in refusing to grant
         Appellant a new trial despite the jury’s verdict being so contrary
         to the weight of the evidence presented as to shock one’s sense
         of justice?

      2. Did the trial court abuse its discretion in refusing to permit the
         jury to learn of prior inconsistent statements of the alleged
         victim, which were being proffered at trial by Appellant for both
         substantive and impeachment purposes?

Appellant’s Brief at 5.

      In its Rule 1925(a) opinion, the trial court summarized the testimony

presented at trial, with references to the notes of testimony. The trial court

noted that the Commonwealth presented three witnesses. The first, Biancha

Lackey (“Lackey”), testified that she is the grandmother of M.B., the victim in

this case. Lackey contacted Children and Youth in May of 2015 after noticing

a bruise on M.B.’s neck. She was granted physical custody and guardianship

of M.B. Trial Court Opinion, 12/13/18, at 2 and 5. The second witness was

Linda Sharretts, a licensed professional counselor, to whom M.B. reported

sexual assault allegations against Appellant. Id. at 2-3. The third witness


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was M.B., who is Appellant’s nephew. M.B., who was fifteen years old at the

time of trial, testified in detail about a number of instances of sexual abuse

perpetrated by Appellant against M.B. These events occurred over several

years at different houses where M.B.’s family resided in Harrisburg. Id. at 3-

5.

       The defense presented two witnesses, both of whom were M.B.’s

cousins. The first cousin recounted a conversation with M.B. during which

M.B. admitted that he lied when he made allegations against Appellant. On

cross-examination, the witness acknowledged he did not report the

conversation to police.        Id. at 5.       The second cousin testified that she

overheard the conversation and that M.B. admitted he was lying so he would

not have to go back and live with his mother. As the trial court noted, this

witness was supposedly sleeping when the conversation took place between

M.B. and the other cousin. Id.2

       Appellant’s first challenge is to the weight of the evidence. Appellant

preserved this issue by raising it in his post-sentence motion, seeking a new

trial on that basis.

       “The 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


____________________________________________


2The witness testified, “Like technically I wasn’t sleepin’, but I was sleepin’.”
Notes of Testimony, Trial, (“N.T.”), at 171. She then stated she was
pretending to be asleep. Id.


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credibility of the witnesses.” Commonwealth v. Baker, 201 A.3d 791, 799

(Pa. Super. 2018) (quoting Commonwealth v. Gonzalez, 109 A.3d 711, 723

(Pa. Super. 2015)). “To successfully challenge the weight of the evidence, a

defendant must prove the evidence is ‘so tenuous, vague and uncertain that

the verdict shocks the conscience of the court.’”          Commonwealth v.

Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017) (quoting Commonwealth

v. Mucci, 143 A.3d 399, 411 (Pa. Super. 2016) (additional citation omitted)).

      As our Supreme Court explained in Commonwealth v. Clay, 64 A.3d

1049 (Pa. 2013), “[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.” Id. at 1054-55 (citing Commonwealth v. Widmer, 744 A.2d 745,

751-52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.

1994)). “[T]he 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 1055

(quoting Widmer, 744 A.2d at 752).

      The Court in Clay further instructed:

      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

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           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. 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.

Id. at 1055 (quoting Widmer, 744 A.2d at 753) (emphasis in original).

      Here, Appellant complains there was “a complete dearth of any physical

evidence at Appellant’s trial. The only evidence the Commonwealth presented

was in the form of the alleged victim’s testimonial evidence.” Appellant’s Brief

at 12. Appellant contends that the verdict “rest[ed] unsoundly on the cringe

worthy credibility of M.B.’s testimony, which on balance, was so inherently

unreliable that the rendered verdict was likely based on conjecture.”                Id.

Appellant    suggests     M.B.’s    testimony    was    “inherently   unreliable”    and

“incredulous,” consisting of “false and misleading narratives.” Id. at 18.           He

argues the “baseline veracity of M.B.’s allegations were demonstrably proven

to be fictitious by two (2) separate witnesses.” Id. at 20.

      As    the   trial   court    recognized,   this   Court   has   held   “that   the

uncorroborated testimony of a sexual assault victim, if believed by the trier of

fact, is sufficient to convict a defendant, despite contrary evidence from

defense witnesses.” Trial Court Opinion, 12/13/18 (quoting Commonwealth

v. Davis, 650 A.2d 452, 455 (Pa. Super. 1994), aff’d on other grounds, 674

A.2d 214 (Pa. 1996)). Here, the verdict reflects that the jury believed M.B.,




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in spite of rigorous cross-examination by the defense and the testimony of the

defense witnesses.

       Appellant complains the trial court failed “to conduct a qualitative (or

quantitative) analysis of the testimonial evidence, to reach a dispassionate

conclusion of witness believability.” Appellant’s Brief at 17. We cannot agree.

As the trial court explained:

       The Commonwealth introduced evidence that, if believed,
       established a finding of guilt on the [crimes charged]. The victim,
       M.B., gave a compelling and detailed account of the sexual abuse
       endured at the hands of Appellant. M.B. gave a vivid recollection
       of sexual abuse at several houses that he lived at while growing
       up. M.B. testified that the Appellant would make him perform oral
       sex and that Appellant would touch his penis and butt. M.B. also
       testified that on one occasion, he was made to lie down and put
       his legs in the air while Appellant tried to stick his penis in his anal
       area. Here, the jury found the victim’s testimony credible and
       chose not to believe Appellant’s witnesses. It was within the
       province of the jury as fact-finder to resolve all issues of
       credibility, resolve conflicts in evidence, make reasonable
       inferences from the evidence, believe all, none, or some of the
       evidence,      and     ultimately    adjudge       Appellant     guilty.
       Commonwealth v. Gooding, 818 A.2d 546 (Pa. Super. 2003).
       Accordingly, the jury properly weighed the testimony presented
       and found Appellant guilty of the afore-mentioned crimes. The
       testimony, if believed, does not shock one’s sentence of justice.
       Further, this court found M.B.’s testimony credible as well as
       compelling.

Trial Court Opinion, 12/13/18, at 6-7.3




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3 We have taken the liberty of making slight alterations to the quoted excerpt
that do not affect the substance of the court’s statement. For instance, the
court referred to the victim as “MB” whereas we have identified him as “M.B.”

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      Just as this Court did in Gooding, we have likewise reviewed the record

for ourselves, and “our sense of justice is not shocked by the verdict.”

Gooding, 818 A.2d at 552. Again, the weight of the evidence is for the finder

of fact and this Court will not substitute its judgment for that of the finder of

fact. Finding no abuse of discretion in the trial court’s refusal to grant a new

trial based on weight of the evidence, we dismiss Appellant’s first issue for

lack of merit.

      Appellant next argues that the trial court abused its discretion by

refusing to admit a prior inconsistent statement attributed to M.B. As this

Court reiterated in Commonwealth v. Crosley, 180 A.3d 761 (Pa. Super.

2018):

      “Questions concerning the admissibility of evidence lie within the
      sound discretion of the trial court, and a reviewing court will not
      reverse the court’s decision on such a question absent a clear
      abuse of discretion.” Commonwealth v. Hernandez, 862 A.2d
      647, 650 (Pa. Super. 2004) (citations omitted). “An abuse of
      discretion may not be found merely because an appellate court
      might have reached a different conclusion, but requires a result of
      manifest unreasonableness, or partiality, prejudice, bias, or ill-
      will, or such lack of support so as to be clearly erroneous.”
      Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa. Super.
      2007).

Id. at 768.

      In Henkel, we stated:

      The general rule is that a prior inconsistent statement of a
      declarant is admissible to impeach the declarant.              Prior
      inconsistent statements also can be admitted as substantive
      evidence provided the declarant testifies at trial and is subject to
      cross-examination concerning the statement and one of the
      following is true: 1) the prior inconsistent statement was given

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      under oath subject to the penalty of perjury at a trial, hearing,
      deposition, or other proceeding; 2) the prior inconsistent
      statement is contained within a signed writing adopted by the
      declarant; and/or, 3) the rendition of the statement offered is a
      verbatim contemporaneous recording of an oral statement.
      Commonwealth v. Chmiel, 558 Pa. 478, 738 A.2d 406, 419
      (1999), writ of certiorari denied, 528 U.S. 1131, 120 S.Ct. 970,
      145 L.Ed.2d 841 (2000), citing Commonwealth v. Lively, 530
      Pa. 464, 610 A.2d 7, 8 (1992)[.]

Henkel, 938 A.2d at 442-43 (some citations omitted).

      Appellant argues that the trial court “palpably abused its discretion in

denying Appellant his right to impeach and confront his alleged victim through

the introduction of M.B.’s prior inconsistent statements, which disavowed the

occurrence of the very crimes as charged.” Appellant’s Brief at 22 (footnote

omitted).   He asserts that “M.B’s previous statement denying Appellant

committed any wrongdoing is unmistakably inconsistent with his trial

testimony claiming Appellant is the perpetrator of the sexually based

offenses.” Id. at 23-24.

      The statement at issue is a transcription of a statement given to the

Children’s Resource Center (“CRC”) in 2009 when M.B. was six years old.

According to Appellant, “[t]he 2009 statement contradicts M.B.’s 2015

statement made in a subsequent interview with the CRC, whereby M.B.

recalled being sexual[ly] abuse[d] by Appellant beginning back when he was

six (6) years old.”   Id. at 28.    “M.B.’s factual account during both these

interviews differs further from his testimony at Appellant’s trial – in which M.B.




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testified on direct examination that Appellant began sexually abusing him

when he was between 8 and 9 years old.” Id.

       We first note that Appellant’s counsel cross-examined M.B. on the

statement made in the 2015 interview (in which M.B. stated the abuse started

when he was six years old) and highlighted the inconsistency with his

testimony on direct examination (when M.B. testified he was between eight

and nine years old when the abuse began). Although Appellant complains

about the court’s refusal to permit introduction of “prior inconsistent

statements,” it is clear Appellant was able to challenge M.B.’s comments

from the 2015 statement. Therefore, as the trial court suggests, it appears

the focus of Appellant’s second issue is the trial court’s denial of admission of

the 2009 interview “that took place when the child was six years old and prior

to the incidents charged.” Trial Court Opinion, 12/13/18, at 7. As the court

explained:

       Here, the Commonwealth did not elicit any testimony regarding a
       CRC interview with the victim that occurred in 2009 when the
       victim was only 6 years old. Thus, defense counsel would be
       unable to cross-examine the witness using the CRC video to
       refresh the recollection of the victim’s testimony because he did
       not testify on direct examination about the CRC video. [Pa.R.E.
       803.1(3)—Recorded Recollection of Declarant-Witness4] does not


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4  Pa.R.E. 803.1 outlines exceptions to the rule against hearsay under
circumstances when the testimony of the declarant is necessary. They include
the recorded recollection of a declarant-witness as provided in Rule 803.1(3),
which provides that statement is not excluded by the hearsay rule if the



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       address an inability to recall the statement. Instead, the Rule
       speaks to whether the witness can recall the matter. The Rule
       contemplates that the questioner will ask the witness about the
       actual events at issue prior to inquiring about a past statement
       given. Here, defense counsel did not ask the victim whether he
       remembered any of the actual events that occurred but instead
       asked whether he remembered giving a statement to CRC when
       he was only six years old in hopes of introducing the transcript of
       the interview.10 Accordingly, the victim did not remember the
       statement given at that time. N.T. at 149.

          10We further note that the interview was not given under oath and that
          the victim was six years old when the statement was given.

Id. at 8 (emphasis in original).

       After recognizing that a prior inconsistent statement may be offered not

only to impeach a witness, but also as substantive evidence if additional

requirements of reliability are met, as reflected in the Henkel excerpt above,

the trial court announced:


____________________________________________


declarant testifies and is subject to cross-examination about the prior
statement, which is

       [a] memorandum or record made or adopted by a declarant-
       witness that:

       (A) is on a matter the declarant-witness once knew about but now
       cannot recall well enough to testify fully and accurately;

       (B) was made or adopted by the declarant-witness when the
       matter was fresh in his or her memory; and

       (C) the declarant-witness testifies accurately reflects his or her
       knowledge at the time when made.

Pa.R.E. 803.1(3)—Recorded Recollection of Declarant-Witness.




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      This court finds that the reliability of a statement given to a CRC
      interviewer that is not under oath and not signed by a six year old
      child is not demonstrably reliable and trustworthy. Defense
      counsel attempts to get into a series of questions regarding the
      CRC interview because they are “probative to the witness’s state
      of mind.” N.T. at 149. We are unable to discern what exactly
      defense counsel was trying to prove by getting into the state of
      mind of a six year old child. Here the victim testified that the
      events occurred after the CRC interview. The victim also testified
      that he did not remember giving a CRC interview when he was six
      years old. The victim was never asked whether he remembered
      these events occurring when he was six years old (i.e. whether he
      was sexually abused at six years old). The victim was only asked
      if he remembered giving a CRC interview.

Id. at 9.

      The court continued, noting that should this Court determine it was error

not to permit introduction of the 2009 interview, Appellant was not prejudiced

by the court’s ruling.

      [Appellant] fails to set forth (and thus properly preserve) what
      was essential in the 2009 CRC interview that would have
      vindicated his innocence. Additionally, trial counsel thoroughly
      cross-examined the victim and drew out any inconsistencies
      between a CRC interview given in 2015 and the trial testimony.
      The Appellant’s overall trial strategy was to challenge the
      credibility of the accuser by pointing to the lack of physical
      evidence, the inconsistencies in the victim’s testimony, and the
      introduction of two witness[es] who testified that the victim was
      not telling the truth. As such, assuming arguendo that the
      transcript was improperly precluded, Appellant was not prejudiced
      by the failure of the introduction of the [2009] CRC transcript and
      no relief is due.

Id. at 9-10.

      Based on our review, we find no abuse of discretion in the trial court’s

ruling that precluded admission of the 2009 CRC interview. Therefore, we will

not disturb it.

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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/24/2020




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