J-S78004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    A.G., Sr.                                  :
                                               :
                       Appellant               :   No. 635 EDA 2018

           Appeal from the Judgment of Sentence November 20, 2017
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0002966-2016


BEFORE:         LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                          FILED FEBRUARY 04, 2019

        A.G., Sr. (A.G.), appeals from his judgment of sentence, entered in the

Court of Common Pleas of Lehigh County, following his conviction of

aggravated indecent assault of a child,1 corruption of minors,2 and indecent

assault of a person less than 13 years of age.3 After careful review, we affirm.

        A.G. sexually molested his then-nine-year-old daughter, I.G., while she

slept in his bed with him and his girlfriend. I.G. alleged that sometime during

the night, A.G. reached over with his hand and “touched” her on top of her

private area, inserted his hand into her privates, and hurt her. I.G. told her

sister the following day at school that A.G. had put his finger inside her the

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1   18 Pa.C.S. § 3125(b).

2   18 Pa.C.S. § 6321(a)(1)(ii).

3   18 Pa.C.S. § 3126(a)(7).
____________________________________
* Former Justice specially assigned to the Superior Court.
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night before.    After a jury trial, A.G. was convicted of the above-stated

offenses and sentenced to an aggregate term of imprisonment of 8 years and

2 months to 25 years.      A.G. filed timely post-sentence motions that were

denied by the trial court. He filed a timely notice of appeal and court-ordered

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

      A.G. presents the following issues for our consideration:

      (1)   Whether the trial court committed error when it denied the
            defense’s request to strike the jury panel when information
            inferring that the defendant was or had been incarcerated
            was made known to them.

      (2)   Was the verdict against the weight of all the evidence in
            regards to the proof of whether or not the defendant was
            properly convicted of the charges?

      (3)   Whether the evidence        was sufficient to   sustain   the
            defendant’s convictions.

Appellant’s Brief, at 8.

      In his first issue on appeal, A.G. contends that the court improperly

denied his motion to strike the entire jury panel after the Commonwealth

elicited a response from a prospective juror, who was a correctional officer,

that indicated he knew A.G. A.G. asserts that this response tainted the entire

jury panel by “raising an improper assumption that [A.G.] either was or had

been in jail for some unknown offense or the present offenses.” Appellant’s

Brief, at 10.




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      The purpose of voir dire is to ensure the empaneling of a fair and

impartial jury capable of following the trial court’s instructions on the law.

Commonwealth v. Marrero, 687 A.2d 1102, 1107 (Pa. 1996). The decision

to disqualify prospective jurors is left to the discretion of the trial court, and

that decision will not be disturbed on appeal absent an abuse of that

discretion. Commonwealth v. Ingber, 531 A.2d 1101, 1103 (Pa. 1987).

“The law also recognizes that prospective jurors were not cultivated in

hermetically sealed environments free of all beliefs, conceptions and views.

The question relevant to a determination of qualification is whether any biases

or prejudices can be put aside upon the proper instruction of the court.” Id.

(citation omitted).

      The record reveals that during jury selection, the following exchange

occurred in the presence of the jury panel between the assistant district

attorney and a prospective juror:

      PROSPECTIVE JUROR NO. 1: Well, I work at Lehigh County as a
      correction officer, so obviously you see things within your job
      description. So basically, you know, assaults, sexual assaults,
      things like that. I can go in deeper if you want.

      MS. MARKS: That's okay. So you are a corrections officer and
      have seen a lot of things, heard a lot of things --

      PROSPECTIVE JUROR NO. 1: In fact, I know A[.G.] already.

      MS. MARKS: You know -- okay, all right. So because you are a
      correction officer, in that position, would that prevent you from
      being fair and impartial?

      MR. GOUGH: Your Honor, I don't mean to interrupt, but may we
      approach the Bench?



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N.T. Jury Voir Dire, 8/15/17, at 22. Defense counsel immediately lodged an

objection, stating that he was concerned about the fact that the prospective

juror had acknowledged that he knew his client, noting that he believed “the

whole panel could be poisoned” and requesting that “the panel [be] stricken

and . . . a new panel brought in[.]” Id. at 23.

      First, as the trial court notes, the prospective juror did not indicate that

he knew A.G. as a criminal or prisoner. Second, the comment that the juror

knew A.G. was merely a passing reference and no further questioning was

made with regard to that topic. Third, the prospective juror was stricken from

the jury pool for cause.

      Based on a review of the record, we cannot discern an abuse of

discretion by the trial court for failing to strike the entire jury pool over the

above-quoted comment from prospective juror #1. A.G. does not point to

anything to prove that he was prejudiced from the isolated comment, saying

nothing more than the comment “would lend itself towards a prejudicial

position” and that the other jurors “were left to speculate about the full nature

of [the juror’s] contact with [A.G.].”      Appellant’s Brief at 18-19.    A.G.’s

argument that the entire panel was tainted is purely speculative. He is not

entitled to relief. Ingber, supra.

      In his next issue, A.G. argues that the verdict was against the weight of

the evidence. Specifically, he contends that there was no supporting physical

evidence, nor any additional supporting testimony to prove that the alleged

assault occurred. We disagree.

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      When the challenge to the weight of the evidence is predicated on
      the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is so
      unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not cognizable
      on appellate review. Moreover, where the trial court has ruled on
      the weight claim below, an appellate court’s role is not to consider
      the underlying question of whether the verdict is against the
      weight of the evidence. Rather, appellate review is limited to
      whether the trial court palpably abused its discretion in ruling on
      the weight claim.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007) (internal

quotations and citations omitted).

      The trial court considered A.G.’s weight of the evidence argument in his

post-sentence motion and concluded it lacked merit. We discern no abuse of

discretion in that determination. Here, the jury chose to believe the minor

victim’s testimony regarding the relevant events.         Moreover, Katelyn M.

Brown, the certified nurse practitioner who conducted a sexual assault victim

physical examination on I.G. two days after the alleged incident, testified that

in most cases of child sexual abuse there are generally no physical findings

because of a minor’s anatomy and the fact that their organs are vascularized,

which means that injuries heal very quickly. N.T. Jury Trial, 8/16/17, at 119-

20. It was purely within the jury’s discretion to believe the victim and the

Commonwealth’s witnesses and we will not disturb that on appeal. Simply

put, the verdict does not shock one’s sense of justice.




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       In his final issue on appeal, A.G. contends that there is insufficient

evidence4 to support his convictions. A.G.’s argument on this issue consists

of the following, “The Defendant believes that the testimony presented from

the alleged victim, which was the only substantive evidence that a crime may

have been committed, was not believable, was contradicted by other reputable

testimony, and was not supported by any physical or medical proof of injury.”

Appellant’s Brief, at 24. A.G. does not make any cogent legal argument, fails

to give specific examples of exactly what elements of the three crimes for

which he was convicted were not proven with specificity, and reiterates his


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4 We address sufficiency challenges under a well-established standard of
review:

       The standard we apply in reviewing the sufficiency of 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 factfinder 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 that of the
       fact-finder. 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 a 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. . . . Finally, the trier 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. Bowen, 55 A.3d 1254, 1260 (Pa. Super. 2012).



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weight of the evidence challenge as it relates to the credibility of the child

victim.   Accordingly, we find that he has waived this claim.            See

Commonwealth v. Manley, 985 A.2d 256 (Pa. Super. 2009) (sufficiency

challenge waived where appellant’s argument section of brief did not specify

which elements of offenses were unproven).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/19




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