J-S64021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    CLARENCE L. HAMILTON,

                             Appellant                  No. 89 MDA 2017


            Appeal from the Judgment of Sentence December 5, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000304-2016


BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED DECEMBER 08, 2017

        Appellant, Clarence L. Hamilton, appeals from the judgment of sentence

entered following his conviction of indecent assault.1 This case returns to us

following our remand to the trial court to prepare an opinion pursuant to

Pa.R.A.P. 1925(a) and address Appellant’s issue challenging the weight of the

evidence presented in his Pa.R.A.P. 1925(b) statement. The matter is now

ripe for our disposition, and we affirm.

        We summarize the history of this matter as follows. On December 27,

2014, the adult female victim was spending the night on the living room floor

of Appellant’s home in order for Appellant’s daughter to drive the victim to


____________________________________________


*    Former Justice specially assigned to the Superior Court.

1    18 Pa.C.S. § 3126.
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work in the morning. The victim claimed that, during the course of the night,

Appellant woke her by inappropriately touching her with his erect penis.

Appellant was charged with indecent assault.

       On August 26, 2016, a jury convicted Appellant of the crime stated

above. On December 5, 2016, the trial court sentenced Appellant to serve a

term of incarceration of six to twenty-three months. Appellant filed a post-

sentence motion on December 7, 2016, which sought to modify Appellant’s

sentence.     On December 15, 2016, Appellant filed a supplemental post-

sentence motion arguing that the verdict was against the weight of the

evidence. On December 27, 2016, the trial court entered an order denying

Appellant’s motion to modify his sentence. The trial court entered an order

on December 29, 2016, which denied Appellant’s supplemental post-sentence

motion challenging the weight of the evidence. This timely appeal followed.

Both Appellant and the PCRA court have now fully complied with Pa.R.A.P.

1925.2


____________________________________________


2  In a memorandum decision filed on October 12, 2017, we remanded this
matter to the trial court for the preparation of an additional Pa.R.A.P. 1925(a)
opinion because our ability to conduct meaningful review of the trial court’s
determination of Appellant’s challenge to the weight of the evidence on appeal
was “impeded by the nature of the trial court’s opinion, which addressed only
the fact that the notes of testimony were not part of the certified record at the
time of preparation of the Pa.R.A.P. 1925(a) opinion.” Commonwealth v.
Hamilton, ___ A.3d ___, 89 MDA 2017 (Pa. Super. filed October 12, 2017)
(unpublished memorandum at *6). Specifically, we remanded this matter and
directed the trial court to write an additional Pa.R.A.P. 1925(a) opinion within
thirty days of the filing of our memorandum. The trial court has since authored
an additional opinion as directed, and this case is now ripe for our disposition.

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      Appellant presents the following issue for our review:

      I. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED
      APPELLANT’S POST-SENTENCE MOTION BECAUSE THE VERDICT
      WAS SO CONTRARY TO THE WEIGHT OF THE EVIDENCE AS TO
      SHOCK ONE’S SENSE OF JUSTICE?

Appellant’s Brief at 5 (underlining omitted).

      In his sole issue, Appellant argues that the verdict was against the

weight of the evidence.     Appellant’s Brief at 11-13.    Essentially, Appellant

contends that the Commonwealth failed to prove that Appellant’s version of

events was not plausible. Id. at 12.

      In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

             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, 560 Pa. 308, 319,
      744 A.2d 745, 751-[7]52 (2000); Commonwealth v. Brown,
      538 Pa. 410, 435, 648 A.2d 1177, 1189 (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, 560 A.2d at 319-[3]20, 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 with all
      the facts is to deny justice.’” Id. at 320, 744 A.2d 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, 538 Pa. at 435, 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:

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           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, 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.

     Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
     added).

            This does not mean that the exercise of discretion by the
     trial court in granting or denying a motion for a new trial based on
     a challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court’s discretion, we have
     explained:

           The term “discretion” imports the exercise of
           judgment, wisdom and skill so as to reach a
           dispassionate conclusion within the framework of the
           law, and is not exercised for the purpose of giving
           effect to the will of the judge. Discretion must be
           exercised on the foundation of reason, as opposed to
           prejudice, personal motivations, caprice or arbitrary
           actions.   Discretion is abused where the course
           pursued represents not merely an error of judgment,
           but 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.

     Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
     S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
     [11]85 (1993)).


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Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

      The trial court addressed this issue as follows:

            In the instant case, the evidence supports the guilty verdict
      of indecent assault. In Pennsylvania,

            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 the person does so without the
            complainant’s consent.

      18 Pa.C.S.A. § 3126(a)(1). The jury heard extensive testimony
      from the victim, [T.M.] (hereinafter “[Victim]”), regarding the
      events that transpired on December 27, 2014.

            [Victim] was staying the night at her godmother
      (Cassandra)4 and Appellant’s home. (Notes of Testimony, Trial
      (“N.T.”) at 19-20). In the home that night were [Victim], her son,
      her sister ([B.C.]), her godmother and Appellant’s step-daughter
      (Cassandra), Appellant, Appellant’s paramour (Felicia), and
      Appellant’s grandchildren (Bree, JourNay, and Trevon). (N.T. at
      20-21). [Victim] and her son slept in the living room on a
      makeshift bed of blankets as there were no open beds. (N.T. at
      21).

            4   Cassandra is also Appellant’s step-daughter.

            [Victim] testified that she fell asleep and was awoken by her
      comfort[er] being pulled on. (N.T. at 23). Upon waking, she saw
      Appellant who said to her “if you get cold or anything, let me know
      and I’ll turn the heat up.” (N.T. at 23-24). [Victim] fell back
      asleep and was awoken later by Appellant tugging on her pants.
      (N.T. at 25, 27). When [Victim] lifted her head up, Appellant
      immediately laid down next to her son. (N.T. at 27). After a
      couple of seconds, Appellant [got] up and squeeze[d] himself in-

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      between [Victim] and the sofa. (N.T. at 28). [Victim] testified
      that Appellant put his hand on her and started to rub her butt, and
      that she could feel his penis on her leg. (Id.) At that point,
      [Victim] yelled his name out, and Appellant got up. (Id.)

            The jury also heard testimony from Officer Matthew Gallup
      of the City of Harrisburg, Bureau of Police. He testified that he
      was dispatched to the residence for the report of a sexual assault.
      (N.T. at 52). Upon arriving, he initially spoke with [Victim] who
      informed him of what occurred. (Id.) He described [Victim] as
      appearing to be in shock, she was slightly dazed and seemed
      nervous and shocked that something like that happened to her.
      (N.T. at 54). He testified that [Victim’s] testimony in court was
      substantially similar to the statement she initially gave to police.
      (N.T. at 52).

             [The trial c]ourt found [Victim’s] testimony to be credible on
      its face. The jury obviously found her testimony to be believable
      beyond a reasonable doubt. [The trial c]ourt found no problem
      with the jury’s credibility determination, and further concluded
      that the weight of the evidence was consistent with the verdict.
      Clearly, the verdict was not contrary to the weight of the evidence
      so as to shock one’s sense of justice. Therefore, [the trial c]ourt
      did not err in denying Appellant’s Post-Sentence Motion.

Trial Court Opinion, 11/8/17, at 3-5.

      Based upon our complete review of the record, we are compelled to

agree with the trial court. Here, the jury, sitting as the finder of fact, was free

to believe all, part, or none of the evidence against Appellant.         The jury

weighed the evidence and concluded Appellant perpetrated the crime of

indecent assault when Victim was awakened by Appellant pulling on her pants,

rubbing her buttocks, and pressing his erect penis against her leg.           N.T.,

8/25/16, at 25-30. We agree that this determination is not so contrary to the

evidence as to shock one’s sense of justice. We decline Appellant’s invitation

to assume the role of fact-finder and to reweigh the evidence. Accordingly,

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we conclude that the trial court did not abuse its discretion in refusing to grant

relief on Appellant’s challenge to the weight of the evidence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




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