J. S47037/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     v.                     :
                                            :
PATRICK T. FRIES,                           :          No. 2627 EDA 2016
                                            :
                          Appellant         :


             Appeal from the Judgment of Sentence, May 17, 2016,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0004483-2015


BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED SEPTEMBER 15, 2017

        Appellant, Patrick T. Fries, appeals from the May 17, 2016 judgment of

sentence entered in the Court of Common Pleas of Delaware County after a

jury convicted him of rape of a child, aggravated indecent assault of a child,

and indecent assault -- complainant less than 13 years old.1 The trial court

imposed an aggregate sentence of 15 to 30 years of imprisonment.           We

affirm.

        The trial court set forth the following factual history:

                    Due to the on-again, off-again incarceration of
              their mother [], the victim in this matter B.M., then
              12 years old, and her younger sister M.M. were in
              the   legal   custody     of   their   grandmother[].
              [Grandmother] enlisted the help of the [a]ppellant to
              help care for the victim and her sister. Appellant
              was a friend of the children’s mother.

1
    18 Pa.C.S.A. §§ 3121(c), 3125(b), and 3126(a)(7), respectively.
J. S47037/17



                At trial, the victim testified that she was at
          [a]ppellant’s home on January 10, 2015.           After
          several hours there, she went to sleep and she
          awoke in the middle of the night to find the
          [a]ppellant on top of her with his penis in her vagina.
          On January 21, 2015, the victim went to the home of
          her friend, [B.M.], age 13, and told her friend that
          she had been raped by the [a]ppellant. The victim’s
          mother and grandmother were contacted shortly
          thereafter and the next day they went to the
          Prospect Park Police Department to make formal
          allegations to Sgt. William Bozeman. Subsequently,
          they were directed to Taylor Hospital where a
          physical examination of the victim was conducted by
          emergency room physician, Dr. Tameka King.

                 The [a]ppellant was subsequently arrested and
          charged with Rape of a Child and related charges. At
          trial, all of the aforementioned persons testified on
          behalf of the Commonwealth. In addition thereto,
          Dr. June Messam was qualified at trial as an expert
          in the field of child sexual abuse evaluations and
          pediatrics. She examined the victim on March 11,
          2015 and testified that on the date of the
          examination, the victim had physical findings
          “consistent with a patient like [B.M.] reporting that
          she was sexually assaulted[.”]

                  The [a]ppellant testified in his own defense.
          He denied raping the victim or ever touching her. He
          further testified that earlier in the day in which she
          originally reported the assault, he and the victim had
          an argument concerning his disciplining of her and
          her wanting her mother back in her life and him out
          of it. He testified that she told him “if you don’t
          allow my mom to come back I am going to say that
          you did something. . . . I will make it up if I have
          to. . . .”

               Additionally,     the    [a]ppellant’s   mother,
          Maureen Fries, testified that on the night in question
          she observed the victim sleeping alone in a chair in
          the downstairs living room on multiple occasions


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            throughout the night as opposed to the [a]ppellant’s
            bedroom on the second floor where the victim
            testified the assault took place. The defense also
            introduced a series of text messages sent back and
            forth between the victim and the [a]ppellant
            covering the period between the actual assault and
            the day she first reported it (11 days later) which
            could be characterized as friendly in nature and not
            consistent with something being exchanged between
            a victim and her rapist. Finally, the [a]ppellant
            offered several character witnesses testifying to his
            good character as a law abiding and non-violent
            person.

Trial court opinion, 12/6/16 at 2-3 (citations to notes of testimony and

footnote omitted; ellipses in original).

      The record reflects that following his conviction and imposition of

sentence, appellant filed both a post-trial motion and a motion for

reconsideration of sentence, which the trial court denied.      The trial court

then appointed counsel to represent appellant on direct appeal.       Appellant

filed a timely notice of appeal, and the trial court ordered appellant to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant

complied, and the trial court then filed its Pa.R.A.P. 1925(a) opinion.

      Appellant raises the following issues for our review:

            [1.]   Did the Trial Court abuse its discretion when it
                   denied the Appellant’s Motion in Limine to
                   exclude prior bad acts?

            [2.]   Whether the evidence was sufficient to support
                   the convictions?

            [3.]   Whether the convictions were against the
                   weight of the evidence?



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Appellant’s brief at 7.

      Appellant first complains that the trial court abused its discretion when

it denied appellant’s motion in limine to exclude prior bad acts.

      “On appeals challenging an evidentiary ruling of the trial court, our

standard of review is limited.    A trial court’s decision will not be reversed

absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d

1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not

merely an error of judgment, but rather 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.”   Id. at 1184-

1185 (citations omitted).

                  Generally, evidence of prior bad acts or
            unrelated criminal activity is inadmissible to show
            that a defendant acted in conformity with those past
            acts    or    to     show     criminal    propensity.
            Pa.R.E. 404(b)(1). However, evidence of prior bad
            acts may be admissible when offered to prove some
            other relevant fact, such as motive, opportunity,
            intent, preparation, plan, knowledge, identity, and
            absence of mistake or accident. Pa.R.E. 404(b)(2).[ 2]

2
            Rule 404. Character Evidence; Crimes or Other
            Acts

            ....

            (b)    Crimes, Wrongs or Other Acts.

                   (1)    Prohibited Uses. Evidence of a
                          crime, wrong, or other act is not
                          admissible to prove a person’s
                          character in order to show that on
                          a particular occasion the person


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              In determining whether evidence of other prior bad
              acts is admissible, the trial court is obliged to
              balance the probative value of such evidence against
              its prejudicial impact.

Id. at 1185 (citations to case law omitted).

      Here,    the   record    reflects    that   the   trial   court   permitted   the

Commonwealth to introduce evidence of prior bad acts; specifically, the

victim’s testimony that during a trip to North Carolina, the victim fell asleep

on a pull-out couch and awoke in appellant’s bed; that there were other

incidents that occurred at appellant’s home where the victim would wake up

in appellant’s bed, despite falling asleep elsewhere, and that her clothes

would be disheveled or removed; and that appellant would have the victim

exercise at his home.        (Order granting Commonwealth’s motion to admit

evidence under Pa.R.E. 404(b), 1/19/16.)




                            acted in      accordance     with    the
                            character.

                     (2)    Permitted Uses. This evidence
                            may be admissible for another
                            purpose, such as proving motive,
                            opportunity, intent, preparation,
                            plan, knowledge, identity, absence
                            of mistake, or lack of accident. In
                            a criminal case this evidence is
                            admissible only if the probative
                            value of the evidence outweighs its
                            potential for unfair prejudice.

                     ....

Pa.R.E. 404(b)(1)-(2).


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        The trial court permitted the Commonwealth to present this evidence:

             for the purpose of: (1) demonstrating [appellant’s]
             intent in regard to his actions toward the
             child-victim, (2) to refute any claim of mistake in
             regard to the nature of [appellant’s] actions, and
             (3) evidence which formed part of the chain or
             sequence of events, the res gestae exception,
             leading to the alleged crime at issue and it enhanced
             the natural development of the facts.

             [] The prior incidents involving the same child-victim
             were part of the history of the case. In addition, the
             Court held that the probative value of the additional
             evidence outweighed any potential prejudice against
             [a]ppellant. The evidence established [appellant’s]
             intent, common plan, scheme or design to engage in
             unlawful, and similar, sexual conduct with the
             alleged victim.

Trial   court   opinion,   12/6/16   at   9-10;   see   also   order   granting

Commonwealth’s motion to admit evidence under Pa.R.E. 404(b), 1/19/16 at

unnumbered page 4, ¶¶ 12-13.

        Appellant complains that the admission of the victim’s testimony that

she fell asleep with knowledge of how she was dressed and with knowledge

that appellant was in close physical proximity, only to wake up --

sometimes in appellant’s bed -- to find her clothes in disarray, backwards,

and/or removed was an abuse of discretion because this testimony was not

corroborated; no expert testified that “the victim had been the victim of

numerous prior sexual assaults”; the victim did not testify that appellant was

“in any way responsible for these clothing incidents;” that “[i]t is an

unnatural leap to suggest that because a young woman woke on occasions



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with her clothes in disarray that it shows:             Intent to rape; absence of

mistake as to [a]ppellant’s actions; or the history of the case” and that the

“prejudice outweighs ANY probative value.”                    (Appellant’s brief at 18

(emphasis in original).) We disagree.

      First, we are aware of no law, and appellant fails to cite to any, that

requires that the victim’s testimony be corroborated to be admissible as a

prior bad act.           Second, the victim’s testimony was not admitted to

demonstrate that appellant had sexually assaulted her in the past. Rather,

the testimony was admitted for the purpose of showing appellant’s intent to

commit the crimes of which he was convicted, absence of mistake in the

commission of those crimes, and to set forth the natural development of the

facts of the case giving rise to the crimes of which appellant was convicted.

Finally, appellant has failed to demonstrate how this testimony was so

prejudicial as to cause the jury to decide the case on an improper basis.

This court has emphasized that “evidence will not be prohibited merely

because it is harmful to the defendant. [A trial] court . . . is not required to

sanitize   the   trial    to   eliminate   all   unpleasant    facts   from   the   jury’s

consideration where those facts are relevant to the issues at hand.”

Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa.Super. 2009).                          See

Commonwealth v. Foley, 38 A.3d 882, 891 (Pa.Super. 2012) (exclusion of

evidence on the grounds that it is prejudicial “is limited to evidence so

prejudicial that it would inflame the jury to make a decision based upon



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something other than the legal propositions relevant to the case”).      Here,

the victim did not testify that appellant had previously sexually assaulted her

or that appellant was responsible for removing her clothes or causing them

to be in disarray while she was asleep. To the contrary, the victim merely

testified to occasions where she would fall asleep in one state of dress and

inexplicably wake up in another -- and, on some of those occasions, she

would wake up in appellant’s bed. We find no abuse of discretion.

      Appellant next complains that the evidence was insufficient to support

his convictions.   Preliminarily, it is well settled that when challenging the

sufficiency of the evidence on appeal, that in order to preserve that issue for

appeal, an appellant’s Rule 1925(b) statement must specify the element or

elements upon which the evidence was insufficient.        Commonwealth v.

Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670

(Pa. 2010) (citation and internal quotation marks omitted).

      Here, in his Rule 1925(b) statement, appellant fails to identify which

element or elements of the crimes of which he was convicted were

insufficient. Rather, appellant meagerly frames his sufficiency challenge, as

follows: “The evidence was insufficient to support the jury’s verdict of guilty

[of] Rape of a Child, Aggravated Indecent Assault of a Child under 13 years

of age and Indecent Assault of a Person under 13 years of age.”

(Appellant’s concise statement of matters complained of on appeal pursuant




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to Pa.R.A.P. 1925(b), 10/17/16 at unnumbered page 2, ¶ 5.)                       Therefore,

appellant failed to preserve his sufficiency challenge for appeal.

      Nevertheless, a reading of appellant’s brief reveals that appellant

challenges the sufficiency and the weight of the evidence within the same

argument,     contending    that the       “record is rife      with inconsistencies.”

(Appellant’s brief at 19.)      Appellant’s sole challenge with respect to the

evidence,     therefore,   is   to   its    weight,     not   its    sufficiency.       See

Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003) (a

review of the sufficiency of the evidence does not include a credibility

assessment;     such   a   claim     goes    to   the    weight      of   the    evidence);

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997) (the

fact-finder   makes    credibility   determinations       and       challenges    to   those

determinations go to the weight of the evidence, not the sufficiency of the

evidence).

              The essence of appellate review for a weight claim
              appears to lie in ensuring that the trial court’s
              decision has record support.         Where the record
              adequately supports the trial court, the trial court
              has acted within the limits of its discretion.

              ....

              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. 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.
              Rather, the role of the trial judge is to determine
              that notwithstanding all the facts, certain facts are so


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            clearly of greater weight that to ignore them or to
            give them equal weight with all the facts is to deny
            justice.

            ....

            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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations

and quotation marks omitted).     “In 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 verdict shocks the conscience of the court.’”

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013).

      In his brief, appellant invites us to do nothing more than assess

witness credibility and reweigh the evidence in an attempt to convince us to

reach a different result than the jury reached.       We decline appellant’s

invitation. The jury, as fact-finder, had the duty to determine the credibility

of the testimony and evidence presented at trial. See Talbert, 129 A.3d at

546 (citation omitted). Appellate courts cannot and do not substitute their

judgment for that of the fact-finder. See id.

      Our review of the record supports our conclusion that the trial court

properly exercised its discretion in denying appellant’s weight of the

evidence claim.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2017




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