J-S15006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

JEREMY HEATH BARNEY

                            Appellant                      No. 1460 MDA 2014


             Appeal from the Judgment of Sentence August 1, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0005676-2012


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MARCH 27, 2015

        Jeremy Heath Barney appeals from his judgment of sentence imposed

in the Court of Common Pleas of Lancaster County, after a jury found him

guilty of rape of a child,1 involuntary deviate sexual intercourse with a child,2

two counts of indecent assault of a person less than thirteen years of age,3

criminal solicitation to commit indecent assault,4 unlawful contact with a

minor,5 and corruption of minors.6             Counsel has petitioned this Court to

____________________________________________


1
    18 Pa.C.S. § 3121(c).
2
    18 Pa.C.S. § 3123(b).
3
    18 Pa.C.S. § 3126(a)(7).
4
    18 Pa.C.S. § 902(a).
5
    18 Pa.C.S. § 6318(a)(1).
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withdraw her representation of Barney pursuant to Anders, McClendon and

Santiago.7      Upon review, we affirm Barney’s judgment of sentence and

grant counsel’s petition to withdraw.

        In order to withdraw pursuant to Anders and McClendon, counsel

must:     1) petition the Court for leave to withdraw, certifying that after a

thorough review of the record, counsel has concluded the issues to be raised

are wholly frivolous; 2) file a brief referring to anything in the record that

might arguably support an appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points that the appellant deems worthy of

review.      Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.

2001).     In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

Pennsylvania Supreme Court held that, in order to withdraw under Anders,

counsel must also state his reasons for concluding his client’s appeal is

frivolous.

        Instantly, counsel’s petition states that she has made an examination

of the record and concluded the appeal is wholly frivolous. Counsel indicates

that she supplied Barney with a copy of the brief and a letter explaining his


                       _______________________
(Footnote Continued)
6
    18 Pa.C.S. § 6301(a)(1).
7
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).



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right to proceed pro se,8 or with newly-retained counsel, and to raise any

other issues he believes might have merit.           Counsel has also submitted a

brief, setting out in neutral form three issues of arguable merit and,

pursuant to the dictates of Santiago, explains why she believes the issues

to be frivolous.        Thus, counsel has substantially complied with the

requirements for withdrawal.

        Counsel having satisfied the above requirements, this Court must

conduct its own review of the proceedings and render an independent

judgment     as    to   whether     the   appeal   is,   in   fact,   wholly   frivolous.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

        This matter arises from Barney’s sexual abuse of his paramour’s son,

A.M. At the time the abuse occurred, A.M. was five years old. Following a

hearing on April 11, 2014, the court permitted Barney to proceed pro se. On

April 21, 2014, the court conducted a Tender Years Hearing. 9 The court held

that Nancy Kulp (daycare provider), Jorena Perry, (daycare provider), E. M.

(A.M.’s mother), Mary Halye (forensic interviewer), and Kari Stanley

(forensic interviewer) would be permitted to testify to statements A.M. made

to them. N.T. Tender Years Hearing, 4/21/14, at 76-77.



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8
  Barney has not submitted any additional or supplemental filings to this
Court.
9
    See 42 Pa.C.S. § 5985.1.



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       A jury trial took place from April 22 to 28, 2014. At the close of trial,

the jury found Barney guilty of the aforementioned offenses. On August 1,

2014, the court sentenced Barney to an aggregate term of 20 to 40 years’

incarceration. This timely appeal followed.

       On appeal, Barney raises challenges to the weight of the evidence

sustaining his convictions, the use of Pennsylvania Suggested Standard

Criminal Jury Instruction (Pa. SSJI (Crim)) 4.13B, and the fact that the jury

saw him in handcuffs. Anders brief, at 22-28.10

       Our standard of review of a weight of the evidence claim is as follows:

       The finder of fact is the exclusive judge of the weight of the
       evidence as the fact finder is free to believe all, part, or none of
       the evidence presented and determines the credibility of the
       witnesses. As an appellate court, we cannot substitute our
       judgment for that of the finder of fact. Therefore, we will
       reverse a jury’s verdict and grant a new trial only where the
       verdict is so contrary to the evidence as to shock one’s sense of
       justice. Our appellate courts have repeatedly emphasized that
       “[o]ne 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.”

Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)

(citations omitted).

       “[A] true weight of the evidence challenge ‘concedes that
       sufficient evidence exists to sustain the verdict’ but contends
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10
    Barney also makes several allegations of prosecutorial misconduct.
Specifically, that the prosecutor refused to provide copies of medical records
for A.M., interviews of A.M., and recorded phone conversations between the
parties. Anders Brief, at 28. However, the record contains no evidence
that any of these items existed. Accordingly, we will not address this issue.



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      that the verdict was against the weight of the evidence.” An
      appellate court may review the trial court’s decision to determine
      whether there was an abuse of discretion, but it may not
      substitute its judgment for that of the lower court. Credibility
      issues are decided by the jury and appellate courts rarely
      overturn jury factual findings that are based on credibility
      determinations. Indeed, an appellate court should not entertain
      challenges to the weight of the evidence since our examination is
      confined to the “cold record.” Our Court may not reverse a
      verdict unless it is so contrary to the evidence as to shock one’s
      sense of justice. Thus, we are confined to review if the trial
      court abused its discretion.

Commonwealth v. Burns, 765 A.2d 1144, 1149-50 (Pa. Super. 2000)

(citations omitted).

      In support of his claim that the verdict was against the weight of the

evidence, Barney argues that A.M.’s testimony was unreliable.           Barney

believes that A.M. lied when he told Mary Halye (forensic interviewer) that

Barney would, inter alia, hit him in the butt with a gun, smack him with a

belt until the skin opened, and penetrate his butt with the gun until it started

to bleed. N.T. Trial, 4/23/14, at 257-58. Barney compares this testimony to

that of Dr. Cathy Hoshauer, the pediatrician who examined A.M., who

testified that she saw no injuries on A.M., and that an injury involving pain

and bleeding would have resulted in a scar.        Id. at 297-308.     Notably,

Barney was not convicted of any offenses related to the aforementioned

allegations.

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

and to assess the credibility of the witnesses. Burns, supra. Here, the jury

chose to believe parts of A.M.’s testimony and, ultimately, found A.M.’s



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testimony more credible than Barney’s.           Because the jury’s credibility

determination was within its province as the finder of fact, and it is

supported by the record, we will not disturb it on appeal. Id.

       In his second issue, Barney argues that the trial court erred when it

charged the jury with Pa. SSJI (Crim) 4.13B11 because he believes Pa. SSJI

(Crim) 4.13B shifts the burden of proof to the defendant, violating his due

process rights. Initially, we note that Barney waived this claim because he

did not object to the instruction before or after it was given to the jury. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).     Furthermore, contrary to

Barney’s claim, the instruction does not shift the burden of proof. Rather,


____________________________________________


11
    Based on the Pa. SSJI (Crim) 4.13B, the court instructed the jury as
follows:

       The testimony of [A.M.] standing alone, if believed by you, is
       sufficient proof upon which to find the defendant guilty in this
       case.

       The testimony of the victim in a case such as this need not be
       supported by other evidence to sustain a conviction.

       Thus, you may find [Barney] guilty if the testimony of [A.M.]
       convinces you beyond a reasonable doubt that [Barney] is guilty.

       No medical testimony is required to corroborate his testimony or
       to convict [Barney] if his testimony, if [A.M.’s] testimony, is
       found to be credible by you.

N.T. Trial, 4/28/14 at 459-60.




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Instruction 4.13B provides that the testimony of a victim, without supporting

evidence, is sufficient to sustain a conviction.

      In his third issue, Barney alleges that the jury saw him in handcuffs

and that this undermined his presumption of innocence.            Under the

circumstances, however, it is not clear whether a member of the jury saw

Barney in handcuffs.      Even so, “[a] brief viewing of the defendant in

handcuffs is not so inherently prejudicial as to strip the defendant of the

presumption of innocence.” Commonwealth v. Carson, 913 A.2d 220, 257

(Pa. 2006). Further, the appropriate remedy for this scenario is a cautionary

instruction, not a new a trial. Id. However, Barney did not bring this issue

to the court’s attention until after the jury rendered its verdict, thus

preventing the trial court from giving a cautionary instruction. Accordingly,

Barney’s claim is meritless.

      Judgment of sentence affirmed.          Counsel’s petition to withdraw

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2015




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