J-S21027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VICTOR MAXWELL                             :
                                               :
                       Appellant               :   No. 2457 EDA 2018

          Appeal from the Judgment of Sentence Entered July 9, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002565-2017


BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                  FILED MAY 14, 2019

        Victor Maxwell (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of two counts each of involuntary deviate

sexual intercourse with a child (IDSI) and indecent assault of a complainant

less than 13 years of age (indecent assault), and one count of endangering

the welfare of a child (EWOC).1            Appellant challenges the weight of the

evidence. Upon review, we affirm.

        The trial court recounted the evidence presented at trial:

               [Appellant] had an intimate relationship with the Victim’s
        mother. Mother and [Appellant] met in 2001 and soon thereafter
        [Appellant] resided with Mother and her two daughters. Later, on
        May 31, 2005, Mother gave birth to a son. [Appellant’s] cousin
        testified that [Appellant] lived with him in Philadelphia after the
        birth of his son. However, in his own testimony, [Appellant]
        admitted that he had his belongings at the home and “was back
____________________________________________


1   18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), and 4304(a)(1).
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     and forth a lot” up until 2007. By his own account, he left the
     home after 2006. The Victim and her Mother testified that in fact
     [Appellant] lived with them for about six years beginning in 2001
     or 2002. All parties agreed that the relationship came to an end
     in March of 2007 when [Appellant] was arrested, apparently as a
     result of an unexplained altercation with Mother.

           The Victim was born in 1998. She was nineteen years-old
     when she testified at trial. She testified that [Appellant] lived with
     her family for about six years. He was like a step-father to her
     and he was normally at home with her after school.

           When [the Victim] was in fourth grade . . . [Appellant] lived
     with [the Victim], her sister, Mother and her young half-brother
     []. The Victim came home from school one afternoon and her
     mother was not yet home from work. [Appellant] was there and
     asked her if she “wanted to make some money.” She said “yeah,”
     and [Appellant] instructed her sister, who was younger, to go
     upstairs. He took the Victim to the basement where there was a
     queen-sized bed, couches and a TV and he sat her down on the
     mattress. He blindfolded her and stuck something in her mouth
     and told her to suck and not to bite. The Victim testified that it
     tasted like “syrup.” She testified that she was nervous and “didn’t
     know what was going on.” [Appellant] told the Victim to “swallow”
     and then to wash her mouth out. He told her not to tell her mom
     about what had happened and gave her two dollars.

            The next day a second incident occurred. The Victim arrived
     at home from school. [Appellant] asked her again if she wanted
     to make some money. She shook her head “yes.” This time she
     was not blindfolded. [Appellant] took her to the basement and he
     laid on the bed. She was more nervous and “scared.” He made
     her put her mouth on his penis and held her head so that it went
     up and down. She testified that after “sperm came out” he gave
     her money and told her to wash her mouth out. The Victim
     testified that she did not tell her mother because she was
     “scared.”

            About three or four years before the trial the Victim told her
     [sister] that [Appellant] had put his penis in her mouth. The sister
     did not believe the Victim. Later, in 2014 when she was no longer
     living with her mother she told her father and her grandmother
     what had happened. It was at a time where she was struggling
     and getting bad grades in school. Her mother was then informed

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       and the Victim went to the police with her parents and made a
       report in November of 2014. Detective Brian Pitts of the Darby
       Borough Police Department conducted a preliminary investigation
       but [Appellant] was not arrested until April 5, 2017 after an
       investigation was conducted by Child Advocacy Center and the
       Delaware County Division of Youth Services.

Trial Court Opinion, 10/3/18, at 5-6 (citations to notes of testimony and some

identifying details omitted).

       The jury rendered the guilty verdicts on March 23, 2018. On July 9,

2018, the trial court sentenced Appellant to a total of 9 to 18 years of

incarceration, followed by a 13-year probationary period. Appellant filed a

timely post-sentence motion, which the trial court denied. Appellant filed this

timely appeal.       Both the trial court and Appellant have complied with

Pennsylvania Rule of Appellate Procedure 1925.

       On appeal, Appellant presents a single issue for our review:

       1. Whether the trial court abused its discretion in denying
          Appellant’s post-sentence motion alleging that the guilty
          verdicts were against the weight of the evidence.

Appellant’s Brief at 3.

       In his sole issue, Appellant argues that the verdicts were against the

weight of the evidence. This claim was properly preserved.2 We therefore

turn to the merits of Appellant’s argument. We begin with our standard of



____________________________________________


2In compliance with Pennsylvania Rule of Criminal Procedure 607, Appellant
preserved his weight of the evidence claim by raising it with the trial court in
a post-sentence motion for a new trial. Appellant’s Post-Sentence Motion,
7/19/18, at unnumbered 1-2.

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review:

      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. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations

omitted). “[I]t is for the fact-finder to make credibility determinations, and

the finder of fact may believe all, part, or none of a witness’s testimony.” Id.

(citation omitted).    Therefore, “[a]n 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, as the trial judge is in the best positon to view the evidence

presented.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super.

2006) (citation omitted). To allow an appellant “to prevail on a challenge to

the weight of the evidence, the evidence must be so tenuous, vague and

uncertain   that     the   verdict   shocks   the   conscience   of   the   court.”

Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2016) (internal

citation omitted).

      Instantly, the jury convicted Appellant of IDSI, indecent assault, and

EWOC. A person is guilty of IDSI with a child “when the person engages in


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deviate sexual intercourse with a complainant who is less than 13 years of

age.” 18 Pa.C.S.A. § 3123(b). Deviate sexual intercourse is defined at 18

Pa.C.S.A. § 3101, and occurs when a 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

. . .” 18 Pa.C.S.A. § 3126(a)(7). The Crimes Code provides that EWOC occurs

when a “parent, guardian or other person supervising the welfare of a child

under 18 years of age, or a person that employs or supervises such a person

. . . knowingly endangers the welfare of the child by violating a duty of care,

protection or support.” 18 Pa.C.S.A. § 4304(a)(1).

      In asserting that the trial court erred in denying his motion for a new

trial based on his weight claim, Appellant states that the Victim’s “testimony

had serious inconsistencies and was lacking in credibility.” Appellant’s Brief

at 5. Specifically, Appellant contends that defense exhibits presented to the

jury showed “Appellant was not living with [Victim] while she attended fourth

grade - the year that she stated she was certain that the assaults occurred,”

Victim “was inconsistent in her testimony,” “[s]he did not speak of the alleged

assault until 7 or 8 years later,” and when “she finally made the

disclosure/allegation to an adult, it was in response to being disciplined for

misconduct.” Appellant’s Brief at 9. Appellant thus argues that his “guilty

verdicts were not supported by the record” and are “shocking to the judicial

conscious.” Id.


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      The trial court explained its denial of Appellant’s motion for a new trial

as follows:

             In his Statement of Errors Complained of on Appeal
      [Appellant] invites the [c]ourt to credit the testimony of
      [Appellant] and to discount the Victim’s testimony. [Appellant]
      also urges the [c]ourt to re-weigh the evidence presented at trial
      so as to give added weight to evidence that he claims supports
      the conclusion that he could not have committed the offenses for
      which he was convicted. To review the jury’s verdict in this
      fashion would be error. The verdict in this case does not “shock
      the conscience of the [c]ourt.” Therefore, [Appellant] is not
      entitled to a new trial.


                              *     *      *

            [Defense] counsel cross-examined [] Victim thoroughly. He
      raised inconsistencies in her prior statement describing the timing
      of the assaults and her descriptions regarding the details of the
      assaults. He questioned her failure to report promptly or at least
      after [Appellant] left the home, her recollection of her age in
      fourth grade and whether she was in trouble at the time she
      reported the assaults to her father and grandmother.             He
      questioned her regarding her relationship with her mother and
      asked how she used the money that [Appellant] gave her. Thus,
      inconsistent details in the Victim’s account were put before the
      jury, and while her recall of some [of] the circumstances
      surrounding the assaults varied in some ways, her description of
      the assaults did not. The jury exercised its prerogative and
      performed its duty as the fact-finder, resolving the issues of
      credibility and conflicts in the evidence. Ultimately it determined
      beyond a reasonable doubt that [Appellant] was guilty of the
      offenses charged. The record supports this verdict and it should
      not be disturbed.

Trial Court Opinion, 10/3/18, at 4, 6-7 (citations to notes of testimony

omitted).

      Upon review, we conclude that the trial court did not abuse its discretion

in denying Appellant’s weight claim. The Victim testified that on two separate

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occasions, when she was 11 or 12 years old and in the fourth grade, Appellant

caused her to perform oral sex on him. N.T., 3/22/18, at 25, 27, 31-32, 34-

36, 69-70. Appellant denied that these events ever occurred. N.T., 3/23/18,

at 34. As noted by the trial court, defense counsel made multiple attempts to

discredit the Victim’s testimony on cross-examination. N.T., 3/22/18, at 45-

54, 59-68, 70-71.

      Appellant attacks the Victim’s credibility on the basis that her testimony

contradicts that of Appellant and is thus inconsistent. See Appellant’s Brief at

9. However, it is well-settled that “the jury [is] the ultimate fact-finder and

the sole arbiter of the credibility of each of the witnesses.” Commonwealth

v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017). “[I]consistencies in eyewitness

testimony are not sufficient to warrant a new trial on grounds that the verdict

was against the weight of the evidence.”         Id. at 1081 (citation omitted).

“Issues of witness credibility include questions of inconsistent testimony and

improper motive.” Id. (citation omitted). “A jury is entitled to resolve any

inconsistencies in the Commonwealth’s evidence in the manner that it sees

fit.” Id. (citation omitted). Additionally, “the uncorroborated testimony of a

sexual assault victim, if believed by the trier of fact, is sufficient to convict a

defendant,    despite    contrary     evidence    from     defense    witnesses.”

Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006) (citation

omitted).

      Accordingly, we find no merit to Appellant’s weight claim where the jury


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acted properly as the fact-finder, and the trial court, in denying Appellant’s

request for a new trial based on the weight of the evidence, did not abuse its

discretion. We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/19




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