J-S87028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TODD ALLEN CLELAND

                            Appellant                    No. 604 MDA 2016


        Appeal from the Judgment of Sentence Dated November 3, 2015
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0001219-2014

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                           FILED FEBRUARY 03, 2017

        Appellant Todd Allen Cleland appeals the November 3, 2015 judgment

of sentence imposed following his conviction of aggravated indecent assault

of a child, indecent assault of a minor, and corruption of minors.1 Appellant

claims that the trial court abused its discretion in finding that the verdict was

not contrary to the weight of the evidence. We affirm.

        The trial court set forth the facts of this case as follows:

              The seven-year old victim was best friends with
        [Appellant]’s daughter. She was [the] Commonwealth’s primary
        witness. She was at [Appellant]’s home for a sleepover on the
        night of October 12, 2013. She testified that she was asleep on a
        recliner in the living room when [Appellant] picked her up, took
        her over to the couch, pulled down her pajama pants, and
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3125(b), 3126(a)(7) and 6301(a)(1)(ii).
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      touched her private parts. He penetrated her vagina with his
      fingers. She then pulled up her pajama pants and ran into the
      bedroom where [Appellant]’s daughter was sleeping.

            She did not tell anyone about the incident until she told
      her mother a few days later. She was afraid to tell anyone for
      fear of never seeing her best friend again. Her mother testified
      that the child was crying hysterically when she told her what had
      happened. She has been emotional since the incident, “has
      meltdowns,” and has some nights where she does not want to
      sleep alone. She has not been able to see her best friend since
      the incident and that makes her feel terrible.

              [Appellant] called several witnesses, including his
      girlfriend, Nancy Arcieri; their teenage son, Nancy’s son, and the
      girlfriend of Nancy’s son, whose testimony, if believed, would
      have established that [Appellant] was never alone with the
      victim.

Trial Ct. Op., 5/19/16, at 1-2 (footnotes omitted).

      On July 16, 2015, a jury found Appellant guilty of aggravated indecent

assault of a child, indecent assault of a minor, and corruption of minors. On

November 3, 2015, the trial court imposed an aggregate sentence of 7-15

years’ incarceration. On November 13, 2015, Appellant filed a post-sentence

motion in which he claimed that the verdict was contrary to the weight of

the evidence. After both parties filed briefs and presented oral argument on

the post-sentence motion, the trial court denied it on March 28, 2016.

Appellant filed a timely notice of appeal on April 11, 2016.

      In this appeal, Appellant raises the following issue:

      Did the trial court err when it denied defendant’s weight of the
      evidence claim when victim stated that she was asleep during
      the sexual abuse alleged and when no physical signs of sexual
      abuse were found?

Appellant’s Brief at 5.


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      In reviewing a trial court’s ruling on a weight-of-the-evidence claim,

we apply the following principles:

      A motion for a new trial alleging that the verdict was against the
      weight of the evidence is addressed to the discretion of the trial
      court. An appellate court, therefore, reviews the exercise of
      discretion, not the underlying question whether the verdict is
      against the weight of the evidence. The factfinder is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses. The trial court will award a new trial
      only when the jury’s verdict is so contrary to the evidence as to
      shock one’s sense of justice. In determining whether this
      standard has been met, appellate review is limited to whether
      the trial judge’s discretion was properly exercised, and relief will
      only be granted where the facts and inferences of record disclose
      a palpable abuse of discretion. 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. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation

omitted).

      Appellant claims that the trial court abused its discretion in denying his

weight of the evidence claim because the jury “gave improper weight to the

testimony of Victim.” Appellant’s Brief at 11. He argues that the victim’s

testimony was the only evidence that the assault occurred, and that this

testimony was unreliable. Appellant emphasizes the victim’s assertion that

she was asleep when the assault occurred and her inability to remember

other parts of the same day.

      In its Pa.R.A.P. 1925(a) opinion, the trial court explained why it

rejected these arguments:

           [Appellant] contends that the victim’s testimony was
      suspect because she admitted to being asleep when the assault


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      allegedly occurred. She also did not remember details of the
      day. However, the jury obviously found her testimony to be
      credible. Her discomfort in discussing the incident was evident.
      She testified that she was awakened by “what happened” to her,
      and recalled certain details about the incident, such as that the
      recliner was brown and had a button to raise the footrest.
      Furthermore, there is nothing in the record to suggest why the
      victim would fabricate the allegations. She testified that she was
      hesitant to tell anyone about the incident because she was afraid
      she would never see her best friend again.

            It was within the jury’s discretion to give significant weight
      to the victim’s testimony. The verdict was not such as “to shock
      one’s sense of justice.” Consequently, we were satisfied that
      [Appellant]’s post-sentence motion was without merit.

Trial Ct. Op. at 3 (footnotes and citation omitted).

      The question before us is not whether we would have weighed the

evidence in the same way as the jury did. Nor is it whether we would have

exercised our discretion in the same way as the trial court did. It is whether

the trial court’s decision was an abuse of discretion. After reviewing the

record, we conclude that the trial court was within its discretion in finding

that the verdict was not contrary to the weight of the evidence. See

Ramtahal, 33 A.3d at 609.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2017

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