J-S56022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEEREMY ROACH

                            Appellant                  No. 10 MDA 2014


          Appeal from the Judgment of Sentence of October 22, 2013
                In the Court of Common Pleas of York County
              Criminal Division at No.: CP-67-CR-0000975-2013


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                          FILED OCTOBER 14, 2014

       Jeremy Roach (“Roach”) appeals his October 22, 2013 judgment of

sentence. We affirm.

       The trial testimony supports the following recitation of the facts of the

case. In August 2012, the nine-year-old victim, O.M., had a sleep-over at

her cousin’s house following their grandmother’s birthday party.       Notes of

Testimony (“N.T.”), 7/11-12/2013, at 89-91.       The cousin, H.R., lives with

her mother (and O.M.’s aunt), T.M.; her father, Roach; and her brother.

While sleeping on the living room floor with her cousin, O.M. awoke around 1

a.m. because Roach had his hand under her shirt, touching her breast. Id.

at 95. O.M. rolled over and Roach removed his hand. Roach stayed in the

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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living room for approximately a half of an hour, and then Roach went to the

bathroom and finally returned to his bedroom.     Id. at 95-97.    O.M. heard

Roach talk with her aunt, T.M., in their bedroom. Id. at 96. O.M. fell back

to sleep and her family picked her up later that day. Id. at 98.

      A few weeks later, while on a camping trip, O.M. told her cousin what

Roach had done and O.M.’s older sister overheard the conversation. O.M.’s

sister took O.M. to tell their mother. Id. at 100. The family then left the

campsite and called the police that evening. Id. at 146-47.

      O.M.’s sister, G.D., and O.M.’s mother, B.M., corroborated O.M.’s

version of events as to how she informed the family of the incident. Id. at

127-29, 139-40. Both G.D. and B.M. also testified that O.M. was upset and

crying when she related the incident. Id. at 128, 140.

      T.M. testified that, after receiving a phone call, she and Roach went to

bed around midnight. T.M. stated that, to her knowledge, Roach did not get

out of bed and that she did not wake up during the night. Id. at 165-66,

170. H.R., O.M.’s cousin, testified that she was not disturbed by any noises

on the night that O.M. slept over and that O.M. appeared fine the next

morning. Id. at 185-86.

      Roach testified that he received a phone call around 11:30 p.m. and

then went to bed close to midnight. Roach denied getting out of bed until

the next morning around 7:30. Id. at 192. Roach also denied ever having

inappropriate contact with O.M. Id. at 193.




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       Roach was charged with unlawful contact with a minor, corruption of

the morals of a minor, and indecent assault of a person less than thirteen

years of age.1 On July 12, 2013, following a two-day jury trial, Roach was

found guilty of all three charges.             On October 22, 2013, Roach was

sentenced to two to twelve months in county jail for unlawful contact with a

minor.    Roach was sentenced to three years of probation on each of the

other two charges. The three sentences were ordered to run concurrently

with each other.

       On October 24, 2013, Roach filed a timely post-sentence motion in

which he challenged the weight and sufficiency of the evidence and sought a

stay of his sentence pending appeal. On December 4, 2013, the trial court

found that the evidence had been insufficient to sustain the conviction for

unlawful contact.2 Thus, the trial court vacated the incarceration sentence

imposed for that crime.

       On December 26, 2013, Roach filed a notice of appeal. On January 6,

2014, the trial court ordered Roach to file a concise statement of errors
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1
     18 Pa.C.S.A.          §§    6318(a)(1),     6301(a)(1)(ii),   and   3126(a)(7),
respectively.
2
      The trial court originally scheduled a re-sentencing hearing. However,
at the hearing, the trial court agreed with defense counsel’s argument that
Roach could not be re-sentenced on the remaining two counts because those
sentences had not been disturbed in the adjudication of the post-sentence
motion. N.T., 12/23/2013, at 4-5. Therefore, the trial court vacated the
two- to twelve-month jail sentence and left the three years of probation
unchanged. Id. at 5.



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complained of on appeal pursuant to Pa.R.A.P. 1925(b).           Roach timely

complied.   On March 11, 2014, the trial court filed its Pa.R.A.P. 1925(a)

opinion.

      Roach raises two issues for our consideration:

      I.    Whether the verdict of guilty as to indecent assault [and]
            corruption of minors was against the greater weight of the
            evidence on the following grounds: the greater weight of
            the evidence presented at trial established that, based
            upon the location of the alleged victim, and [Roach], as
            well as other individuals, it would have been impossible for
            [Roach] to commit the acts as alleged; the greater weight
            of the evidence presented at trial, did not establish an
            opportunity for [Roach] to commit the offenses, and
            [Roach] had no propensity to commit the offenses.

      II.   Whether the evidence was insufficient to support the jury
            verdict as to indecent assault and corruption of minors in
            that, based upon the location of the alleged victim, and
            [Roach], as well another individuals, it would have been
            impossible for [Roach] to commit the acts as alleged; the
            greater weight of the evidence presented at trial, did not
            establish an opportunity for [Roach] to commit the
            offenses, and [Roach] had not propensity to commit the
            offenses.

Roach’s Brief at 4.

      Roach first challenges the weight of the evidence presented at trial.

      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, 744 A.2d 745,
      751–52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177,
      1189 (Pa. 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, 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


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     with all the facts is to deny justice.’” Id. 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, 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 court’s determination
        that the verdict is against the weight of the evidence.
        Commonwealth v. Farquharson, 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, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations

modified).

     Roach    argues   that   O.M.’s   version   of   events   was   impossible.

Specifically, Roach asserts that it was impossible for Roach to have

committed the acts described by O.M. without waking either his daughter

who was next to O.M. or T.M. who was in the bedroom a few feet away.

Roach contends that O.M. was fine the next morning and did not report the

incident until weeks later. Roach argues that O.M. only concocted the story



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because she admittedly does not like Roach. Roach asserts that there was

no evidence of his propensity to commit such a crime and his character

witnesses proved that he has a reputation for “moral chastity.”           Roach’s

Brief at 12-13.

      The trial court found that, “[w]here the testimony of the victim is all

that is necessary [to prove the crime], and that testimony is not so

incredible that it cannot be believed, we cannot find that the verdicts of

guilty on charges of indecent assault and corruption of minors are so

contrary to the evidence as to shock one’s sense of justice.”      Trial Court

Opinion (“T.C.O.”), 3/11/2014, at 7. Roach essentially asks us to find that

the trial court abused its discretion for refusing to reverse the jury’s

apparent finding that O.M. was credible.

      “Credibility issues are decided by the jury and appellate courts rarely

overturn jury factual findings that are based on credibility determinations.”

Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super. 2000). “The

jury was free to believe all, part or none of the evidence presented and to

assess the credibility of the witnesses.”     Id. at 1150.    Although Roach

characterizes O.M.’s testimony as incredible, the jury believed her. The trial

court found that the weight of the evidence did not compel a different result.

Upon our review of the record, we discern no basis to conclude that the trial

court abused its discretion in denying Roach’s request for a new trial.

      In his second issue, Roach challenges the sufficiency of the evidence

presented at trial. Roach reiterates the same arguments for his sufficiency

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challenge as he did for his weight challenge. Roach again argues that O.M.’s

testimony was incredible and that the events could not have occurred as

O.M. described them. Roach’s Brief at 15-16.

      Roach’s arguments are misplaced. As discussed above, the matter of

a witness’ credibility is a question of weight and not sufficiency. However, to

the extent Roach does raise an issue of sufficiency, we conclude that the

evidence was sufficient to sustain his convictions.

      A challenge to the sufficiency of the evidence is a question of law
      subject to plenary review. We must determine whether the
      evidence admitted at trial and all reasonable inferences drawn
      therefrom, when viewed in the light most favorable to the
      Commonwealth as the verdict winner, is sufficient to support all
      elements of the offenses.” A reviewing court may not weigh the
      evidence or substitute its judgment for that of the trial court.

Commonwealth v. Snyder, 870 A.2d 336, 346 (Pa. Super. 2005) (citations

and quotation marks omitted).

      Roach was convicted of indecent assault:

      (a) Offense defined.--A person is guilty of indecent assault if
      the person has indecent contact with the complainant, causes
      the complainant to have indecent contact with the person or
      intentionally causes the complainant to come into contact with
      seminal fluid, urine or feces for the purpose of arousing sexual
      desire in the person or the complainant and:

         (7) the complainant is less than 13 years of age

18 Pa.C.S.A. § 3126. Indecent contact is “[a]ny touching of the sexual or

other intimate parts of the person for the purpose of arousing or gratifying

sexual desire, in any person.” 18 Pa.C.S.A. § 3101. “[I]n a prosecution for



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sex offenses, a guilty verdict may rest on the uncorroborated testimony of

the victim.”    Commonwealth v. Owens, 649 A.2d 129, 133 (Pa. Super.

1994); 18 Pa.C.S.A. § 3106.

       O.M. testified that Roach reached under her shirt while she was

sleeping and touched her breast.           We have found that similar actions are

sufficient to constitute indecent assault. Commonwealth v. McClintic, 851

A.2d 214, 216 (Pa. Super. 2004), rev'd on other grounds, 909 A.2d 1241

(Pa. 2006) (holding that defendant grabbing victim’s breast for purposes of

intimidation was sufficient to prove indecent assault)3; Commonwealth v.

Richter, 676 A.2d 1232, 1236 (Pa. Super. 1996) (holding that “put[ting]

his hands under [victim’s] shirt and fondl[ing] her breasts” sufficient to

constitute indecent assault).          O.M.’s testimony was sufficient to prove

indecent assault.

       Roach was also convicted of corruption of minors, which is defined as:

       Whoever, being of the age of 18 years and upwards, by any
       course of conduct in violation of Chapter 31 (relating to sexual
       offenses) corrupts or tends to corrupt the morals of any minor
       less than 18 years of age, or who aids, abets, entices or
       encourages any such minor in the commission of an offense
       under Chapter 31 commits a felony of the third degree.

18 Pa.C.S.A. § 6301(a)(1)(ii).          “[A]ctions that would offend the common

sense of the community and the sense of decency, propriety, and morality
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3
      The Supreme Court reversed McClintic on the issue of enhanced
sentencing, but did not reverse on the sufficiency of the evidence for
indecent assault issue.



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which most people entertain, are actions that tend to corrupt the morals of a

minor.”      Commonwealth v. Smith, 863 A.2d 1172, 1177 (Pa. Super.

2004) (citation and quotation marks omitted). Again, O.M.’s testimony is

sufficient to sustain the conviction because the acts that she described

unquestionably “offend . . . the sense of decency.”              We have found that

these      acts   constitute   corruption   of    the   morals   of   a   minor.   See

Commonwealth v. Robinson, 931 A.2d 15, 25 (Pa. Super. 2007) (“Here,

we conclude that [the a]ppellant’s touching of the minor victim’s breasts

constitutes corruption of minors.”). Viewing the evidence in the light most

favorable to the Commonwealth, Roach’s sufficiency challenge cannot

prevail.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




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