J-A35001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

CHARLES EDWARD CUMBERLEDGE,

                         Appellant                    No. 842 WDA 2013


           Appeal from the Judgment of Sentence April 12, 2013
              In the Court of Common Pleas of Greene County
            Criminal Division at No(s): CP-30-CR-0000175-2012


BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 03, 2015

      Appellant, Charles Edward Cumberledge, appeals from the judgment of

sentence of 11 to 22 years’ incarceration.          Appellant challenges the

jurisdiction of the trial court, the sufficiency of the evidence, and the weight

of the evidence. We affirm.

      Appellant proceeded to a jury trial on December 18, 2012. The facts

adduced at trial are as follows. Appellant visited the home of his aunt some

time shortly before the new school year commenced during the summer of

2011. N.T., 12/18/12, at 39 – 40. While his aunt and her husband shopped

for groceries, Appellant remained in their home babysitting his aunt’s two

stepchildren. Id. at 42. Appellant was upstairs, while the children played

video games in the living room. Id. at 43 – 44. At some point, Appellant

called downstairs to his 13-year-old cousin, asking her to bring him the
J-A35001-14



phone.    Id. at 44.     She brought him the phone, and he grabbed her arm

when she attempted to leave. Id. at 47. She tried to pull away and asked

him to let her go. Id. at 48. Appellant then laid her on the floor, removed

her jeans and underwear, and forced his penis into her vagina. Id. at 50 –

51. She asked him to stop, kicked him, and punched him in the face. Id. at

51.

       The victim’s younger brother had followed her up the stairs and

witnessed what was happening.            Id. at 52.   When the victim motioned to

him for help, he turned the lights to the room on and off.             Id. at 53.

Appellant moved away from the victim. Id. at 53. The victim dressed and

went back downstairs. Id. at 54.

       Thereafter, the victim’s parents1 noticed she was unusually quiet. Id.

at 144. They asked her if someone had touched her. Id. at 55. She denied

this, but then her brother informed their parents about the incident. Id. at

56. The victim then discussed the incident with her parents.          Id. at 120.

Her stepmother took her to the emergency room. Id. at 145. The victim

subsequently underwent a forensic examination and was interviewed by the

police. Id. at 149.



____________________________________________


1
  The victim resided with her father and stepmother (Appellant’s aunt).
N.T., 12/18/12, at 38, 138. At trial, the victim referred to her stepmother
as her mother. For the sake of clarity, we refer to the victim as the
daughter of Appellant’s aunt in this opinion.



                                           -2-
J-A35001-14



      Appellant was convicted of rape, sexual assault, statutory sexual

assault, and indecent assault on December 19, 2013.         On April 12, 2013,

Appellant was sentenced to a term of 11 to 22 years’ incarceration. He filed

a timely notice of appeal, as well as a timely concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Appellant now

presents the following questions for our review:

      1. Did the trial court commit reversible error by allowing the jury
         to determine if [Appellant] was eighteen on the date of the
         alleged offense?

      2. Was there sufficient evidence to allow the jury to conclude
         that [Appellant] was eighteen at the time of the alleged
         offense?

      3. Was the jury’s determination that [Appellant] was eighteen at
         the time of the alleged offense against the weight of the
         evidence?

Appellant’s brief at 7.

      Appellant’s first claim is that the trial court committed reversible error

when it submitted a verdict slip to the jury that asked the jury whether it

found “that if the alleged incident occurred at all, it occurred after June 2,

2011,” and to stop deliberating and notify the court if their answer was “no.”

Verdict Slip, 12/19/12, at 1 (unnumbered pages).         Reviewing Appellant’s

actual briefed argument, however, he does not raise a procedural challenge

to the verdict slip.      Rather, Appellant argues that the trial court did not

possess jurisdiction over him because, he claims, he may not have been an

adult when he committed these offenses.

      Under the Juvenile Act, where


                                       -3-
J-A35001-14


      it appears to the court in a criminal proceeding that the
      defendant is a child, this chapter shall immediately become
      applicable, and the court shall forthwith halt further criminal
      proceedings, and, where appropriate, transfer the case to the
      division or a judge of the court assigned to conduct juvenile
      hearings, together with a copy of the accusatory pleading and
      other papers, documents, and transcripts of testimony relating
      to the case.

42 Pa.C.S. § 6322.     If Appellant was under the age of 18 at the time he

committed his offenses, he would be a “child” for the purposes of the

Juvenile Act. 42 Pa.C.S. § 6302. Given the record before us, we conclude

that the trial court did not abuse its discretion in not halting the proceedings.

      Appellant was born on June 3, 1993, and was 18 years of age on June

3, 2011.   In the criminal information, the Commonwealth alleged that the

crime took place between July 15, 2011, and July 31, 2011, after Appellant

was no longer a “child.” Prior to trial, Appellant’s counsel noted that he did

not know whether the Commonwealth’s witnesses would testify that the

incident occurred after Appellant’s 18th birthday.

      At trial, the victim testified that the incident occurred during the

summer of 2011, shortly before school began. Her stepmother testified that

Appellant baby-sat her daughter once in August of 2011, and once in mid-

to-late July of 2011. This testimony indicated that the crime occurred after

Appellant’s 18th birthday.

      In support of his claim that he was a juvenile at the time of his

offense, Appellant points to a document prepared by a doctor who was not

called as a witness at trial.   The document was prepared when the victim



                                      -4-
J-A35001-14



was examined in a hospital emergency room on September 7, 2011. In that

document, a doctor wrote, “Interviewed [patient] in private and [patient]

stated[] about 5 – 6 months ago ‘[Appellant] called me upstairs, he laid me

down on the floor and stuck his pee pee inside me.’” N.T. Exhibit A, at 3

(unnumbered pages).      This statement is later contradicted in the same

report: “[S]he states… this occurred… possibly 3 – 6 months ago.” Id. at 5.

Both Appellant’s counsel and the Commonwealth agreed that the statement

was hearsay.   N.T., 12/18/12, at 174.    Appellant’s counsel conceded that

“he was [not] sure of anything” with regard to whether the statements were

accurate, or recorded accurately. Id. at 181. We cannot conclude that the

trial court committed an error of law in failing to halt the proceedings based

solely on this tenuous evidence, given that other testimony indicates that

Appellant committed the crime in question after his 18th birthday.

     Appellant also argues that the evidence was insufficient to prove that

he was 18 years old at the time he committed the crimes in question. He

does not allege that the Commonwealth failed to prove any specific elements

of the crimes for which he was convicted. Nor does Appellant direct us to

any statute or case law stating that the Commonwealth generally has the

burden of proving the age of a defendant in a criminal prosecution.

     Appellant was convicted of rape, 18 Pa.C.S. § 3121(a)(1), sexual

assault, 18 Pa.C.S. § 3124.1, statutory sexual assault, 18 Pa.C.S. § 3122.1,

and indecent assault, 18 Pa.C.S. § 3126(a). Only one of these four crimes

contains an element regarding the age of the defendant, statutory sexual

                                    -5-
J-A35001-14



assault, which requires proof that the victim is under 16 years of age and

the defendant is “four years older but less than eight years older than the

complainant.” 18 Pa.C.S. § 3122.1(a)(1). Here, it was undisputed at trial

that the victim was 13 years old, and that Appellant was at least 17 years

old.   As such, to extent that the Commonwealth was required to prove

Appellant’s age as an element of the crimes for which he was charged, that

burden was met.

       Appellant appears to conflate proof of a defendant’s age with proof of

the date on which a crime occurred, also stating “[t]he evidence was

insufficient to establish the date of the alleged incident.” Appellant’s brief at

14.    He cites no case law for the proposition that the Commonwealth is

required to prove the precise date on which a crime occurred beyond a

reasonable doubt, presumably because no such requirement exists.

       As a general proposition of law, the evidence is sufficient to
       support a conviction if it tends to prove that the offense was
       committed prior to the commencement of the prosecution and
       that it was not committed at a time so remote that its
       prosecution is barred by the prescribed statutory period of
       limitations.

Commonwealth v. Devlin, 333 A. 2d 888, 890 (Pa. 1975).2 Here, there is

no dispute that the offenses were committed prior to the commencement of
____________________________________________


2
  It is true that a defendant’s federal constitutional rights may be violated
where the Commonwealth cannot fix the date of the commission of the
offense with reasonable certainty, even though “the Commonwealth need
not always prove a single specific date of the crime.” Devlin, 333 A.2d at
891, 892. This is because, “if the opportunity to defend is inadequate, the
(Footnote Continued Next Page)


                                           -6-
J-A35001-14



the prosecution, and that the prosecution was commenced within the

applicable statute of limitations. As the Commonwealth was not required to

prove the exact date on which Appellant committed the crime in question

beyond a reasonable doubt, Appellant’s challenge to the sufficiency of the

evidence is without merit.

      Finally, Appellant argues that verdict is against the weight of the

evidence, as the “the testimony regarding the date of the alleged incident is

as speculative and tenuous as to render the verdict shocking.” Appellant’s

brief at 15. We disagree.
                       _______________________
(Footnote Continued)

defendant is denied due process of law.” Id. at 891. Appellant here does
not raise such a claim.

       Even assuming he had, the evidence offered by the Commonwealth
fixed the date of the commission of the offense with reasonable certainty.
The information filed by the Commonwealth stated that the incident took
place between July 15th and July 31st of 2011, a period of only two weeks.
The victim testified that the incident in question occurred in the summer of
2011, shortly before she went back to school. Her brother likewise testified
that the incident took place during that summer. The victim’s stepmother
testified that Appellant baby-sat her daughter in “the middle or end” of July,
and in August.

      As this Court has noted, “[w]e do not believe that it would serve the
ends of justice to permit a person to rape and otherwise sexually abuse his
child with impunity simply because the child has failed to record in a daily
diary the unfortunate details of her childhood.” Commonwealth v.
Niemetz, 422 A.2d 1369, 1373 (Pa. Super. 1980). Accordingly, the failure
of the Commonwealth to prove the exact date of the crime in question did
not violate Appellant’s constitutional right to due process, where the
Commonwealth was able to offer proof that the incident occurred some time
within the span of several weeks.




                                            -7-
J-A35001-14



      We   review     Appellant’s   weight-of-the-evidence   claim   under   the

following standard:

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation 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. A trial judge must
      do more than reassess the credibility of the witnesses and allege
      that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. 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.”

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal

citations omitted). Here, the trial court mistakenly referred to the Rules of

Civil Procedure in its opinion, but nonetheless found that the instant case

presented “unresolved questions of fact,” and that, given the evidence

submitted at trial, it was proper for the jury to resolve those questions. Trial

Court Opinion, 6/17/14, at 4 (unnumbered pages).

      Having reviewed the record, we conclude that the trial court did not

abuse its discretion in finding that Appellant’s claim is without merit. Again,

we note that the Commonwealth did not have the burden of proving the

precise date the assault occurred; as such, the Commonwealth’s failure to




                                       -8-
J-A35001-14



establish this exact date would not render the jury’s verdict against the

weight of the evidence.

      To the extent that Appellant argues that the witnesses’ testimony was

generally incredible because they could not recall the exact date of the

assault, we note that a challenge to the weight of the evidence is not merely

a reassessment of the credibility of witnesses.     Moreover, the testimony

offered, both regarding the details of the assault and when the assault

occurred, was neither tenuous nor speculative.       The victim testified that

Appellant assaulted her some time in the summer of 2011.             She was

unequivocal about the details of the assault.      While she was unable to

remember the exact date of the assault, she recalled that it was shortly

before the school year started.     Her brother, who witnessed the assault,

likewise testified that it happened in the summer, “close to school.” N.T.,

12/18/14, at 120.     The victim’s stepmother testified that she noticed a

change in the victim’s behavior at a certain point during the summer that

concerned her, and that Appellant babysat her children once in July and once

in August. Accordingly, the jury’s verdict is not “so contrary to the evidence

as to shock one’s sense of justice,” and the trial court did not err in denying

Appellant’s motion for a new trial. Commonwealth v. West, 937 A.2d 516,

521 (Pa. Super. 2007).

      Judgment of sentence affirmed.




                                     -9-
J-A35001-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




                          - 10 -
