J-A20022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    DAMIAN CHRISTOPHER METZ                     :
                                                :
                       Appellant                :    No. 1874 MDA 2018

         Appeal from the Judgment of Sentence Entered June 14, 2018
    In the Court of Common Pleas of Huntingdon County Criminal Division at
                       No(s): CP-31-CR-0000384-2017


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                                   FILED MAY 01, 2020

        Damian Christopher Metz (“Metz”) appeals from the judgment of

sentence entered on June 14, 2018 following his conviction for indecent

assault of a person less than 13 years of age.1 He challenges the sufficiency

and weight of the evidence, as well as the application of the Sex Offender

Registration    and    Notification    Act,    42   Pa.C.S.A.   §§   9799.10-9799.41

(“SORNA”), and the amendments thereto. We affirm the judgment of

sentence.

        Metz was charged with various sexual offenses stemming from an

allegation that he inappropriately touched his cousin’s four-year-old daughter.

The evidence at trial revealed that in March of 2017, Metz attended a party

attended by approximately 15 adults and six children, including the victim.

____________________________________________


1   18 Pa.C.S.A. § 3126(a)(7).
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N.T., 3/15/18-3/16/18, at 152-153, 185-186, 202. Several weeks afterward,

the victim’s maternal grandmother was giving the victim a bath and the victim

reported that Metz had put his hand inside her pants and rubbed her vagina

while they were at the party. Id. at 20-22. The victim’s maternal grandmother

told the victim’s mother about what the victim had said. Id. at 22-23. The

victim’s mother then told the victim’s paternal great-grandmother who

reported the abuse to Children and Youth Services (“CYS”). Id. at 81-82, 172-

173, 175. CYS reported the allegations to the Pennsylvania State Police who

conducted an investigation. Id. at 147-148. State Trooper Jeffrey Hahn filed

charges against Metz on July 6, 2017. Id. at 157.

       The child was examined by an emergency room doctor approximately

two months after the party, on May 18, 2017, and the doctor found no

evidence of sexual trauma. Id. at 54-55. The child was examined by a second

doctor on June 20, 2017 and July 12, 2017, who also concluded that there

was no evidence of sexual trauma. Id. at 143-145.

       The child did not testify at the trial. However, a DVD of the child’s

forensic interview conducted by the Cambria County Child Advocacy Center

was played for the jury.2 During the forensic interview, the child disclosed that

Metz put his hand under her clothes and rubbed her vagina while they were

outside on the porch at the party. Commonwealth Exhibit 2.



____________________________________________


2Prior to trial, the trial court ruled that the child was unavailable as a witness
and that the DVD forensic interview was admissible.

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        Metz did not testify at the trial. However, he presented several witnesses

who testified that they were at the party and did not see Metz and the victim

alone together at the party at any time. N.T., 3/15/18-3/16/18, at 185-186,

204, 230-231, 238, 242-243. Several defense witnesses also testified that the

victim’s mother was known in the community for her dishonesty. Id. at 178-

79, 186, 204-205, 214-215, 219, 224, 230, 239. Additionally, there was

testimony that there was an ongoing custody dispute of the child between the

maternal side of the family and the paternal side of the family. Id. at 26, 65,

173.3

        The jury convicted Metz of indecent assault of a person less than 13

years of age. He was sentenced to 10 to 24 months of incarceration and was

ordered to register pursuant to SORNA. Metz filed a timely appeal raising the

following three issues for our review:

           1. Is Mr. Metz entitled to a verdict of acquittal, given that
              the evidence presented against him was so weak and
              tenuous?

           2. Alternatively, is Mr. Metz entitled to a new trial, given
              that the great weight of the evidence demonstrated that
              he was innocent, and that evidence discovered after trial
              supports his innocence?

           3. Should Mr. Metz be exempt from registration under the
              Sex Offenders Registration and Notification Act, given


____________________________________________


3There was also testimony that the victim had been adjudicated dependent
and was in the legal custody of CYS for reasons unrelated to this case. N.T.,
3/15/18-3/16/18, at 51-52, 70-71. At the time of trial, the victim was placed
with her paternal great-grandmother. Id. at 71.


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            that no constitutionally valid version of the Act was in
            effect at the time of his alleged conduct?

Metz’s Br. at 3-4.

      Metz first argues that the evidence against him at trial was insufficient

to support the conviction because it was weak and inconclusive. Metz’s Br. at

11. Metz contends, based on the victim’s demeanor in the forensic interview,

that the interview of the victim showed that the victim was inadvertently

coached by the forensic interviewer or actively coached by her mother. Id.

Metz also argues that the victim’s mother’s testimony was contradictory, as

she provided four different dates spanning a period of two weeks in May 2017

as to when she first learned of the allegations against Metz. Id. at 13.

      Further, Metz maintains that the medical evidence regarding potential

injuries to the victim carried no conclusive weight in favor of the

Commonwealth since there was no medical evidence that the victim had

suffered sexual trauma. Id. at 14. Metz also argues his statements to the

police that he “never babysat [the victim] because he never wanted to be

accused of molesting kids” and that he played with the victim for 15 to 20

minutes at the party lacked any probative value and could not be accepted as

evidence against Metz. Id. at 14-15.

      These arguments lack merit. When reviewing a challenge to the

sufficiency of the evidence, our standard of review is de novo, while “our scope

of review is limited to considering the evidence of record, and all reasonable

inferences arising therefrom, viewed in the light most favorable to the



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Commonwealth as the verdict winner.” Commonwealth v. Rushing, 99 A.3d

416, 420-21 (Pa. 2014). “Evidence will be deemed sufficient to support the

verdict when it establishes each material element of the crime charged and

the commission thereof by the accused, beyond a reasonable doubt.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The

Commonwealth may sustain its burden by means of wholly circumstantial

evidence. Commonwealth v. Dix, 207 A.3d 383, 390 (Pa.Super. 2019).

Further, “any doubt about the defendant’s guilt is to be resolved by the fact-

finder unless the evidence is so weak and inconclusive that, as a matter of

law, no probability of fact can be drawn from the combined circumstances.”

Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa.Super. 2011) (quoting

Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa.Super. 2010)). Additionally,

“this Court may not substitute its judgment for that of the factfinder, and

where the record contains support for the convictions, they may not be

disturbed.” Commonwealth v. Smith, 146 A.3d 257, 261 (Pa.Super. 2016).

      Metz was convicted of indecent assault of a person less than 13 years

of age. Indecent assault is defined, in relevant part, as follows:

         (a) Offense defined.--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:

         …

         (7) the complainant is less than 13 years of age[.]



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18 Pa.C.S.A. § 3126(a)(7).

      Viewing all of the evidence admitted at trial in the light most favorable

to the Commonwealth as verdict-winner, the evidence was sufficient to

establish all of the elements of indecent assault. It was undisputed that the

victim was four years old at the time of the incident. The Commonwealth

presented the testimony of the victim’s maternal grandmother that while she

was giving the victim a bath, the victim voluntarily disclosed that Metz put his

hand inside her pants and rubbed her vagina while they were at the party.

The Commonwealth also presented the testimony of the victim’s mother, the

doctor who examined the child, the forensic interviewer, and the state trooper

who investigated the case.

      Most significantly, the Commonwealth presented a DVD forensic

interview of the child to the jury, in which the child plainly disclosed that Metz

had rubbed her vagina under her pants. It is well-settled that “the

uncorroborated testimony of the complaining witness is sufficient to convict a

defendant of sexual offenses.” Commonwealth v. Lyons, 833 A.2d 245, 258

(Pa.Super. 2003) (citation omitted); see also 18 Pa.C.S.A. § 3106 (“The

credibility of a complainant of an offense under this chapter [regarding sexual

offenses] shall be determined by the same standard as is the credibility of a

complainant of any other crime. The testimony of a complainant need not be

corroborated in prosecutions under this chapter”). Moreover, the record is

devoid of any evidence that the child was “coached.” Accordingly, we conclude

the evidence was sufficient to sustain a conviction for indecent assault.

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      Metz next challenges the weight of the evidence. He contends that six

defense witnesses testified that the only time that Metz and the victim were

both at the home where the party occurred at the same time was in March of

2017, and even then, they were never alone together. Metz’s Br. at 17.

Further, Metz argues that numerous witnesses testified that the victim’s

mother had a reputation for dishonesty. Id. at 17-18. Metz again asserts that

there was testimony presented at trial that the victim was the subject of an

ongoing custody battle between the maternal and paternal sides of the family.

Id. at 18. Metz states that the victim’s mother had motivation to fabricate an

accusation against the paternal side of the family, which included Metz, and

therefore coached her daughter to lie about the accusation against Metz. Id.

Metz’s argument is without merit.

      When reviewing a weight challenge on appeal, we do not determine

ourselves whether the verdict was against the weight of the evidence. Rather,

we review the trial court’s exercise of its discretion in determining, in the first

instance, whether to sustain the challenge. Commonwealth v. Johnson, 192

A.3d 1149, 1152-1153 (Pa.Super. 2018) (citation omitted). The trial court

may grant a new trial based on a weight of the evidence claim only “where

the jury’s verdict is so contrary to the evidence that it shocks one’s sense of

justice.” Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011).

Further, “[w]hen 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.” Commonwealth v. Bowen, 55 A.3d 1254, 1262

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(Pa.Super. 2012) (citation omitted). Usually, “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.” Id.

      Here, the trial court found the verdict was not against the weight of the

evidence, noting the jury was free to determine the credibility of the

witnesses. Trial Court Opinion, filed January 11, 2019, at 4. By virtue of the

verdict, it is clear that the jury, as the fact-finder and sole judge of credibility,

believed the victim’s statements over the testimony of the defense witnesses

and chose not to accept Metz’s theory of the case. The jury was free to believe

all, part, or none of the evidence presented in judging the credibility of the

witnesses, and presumably found the child to be credible. Houser, 18 A.3d at

1135-1136. The jury’s choice not to believe Metz’s version of the events was

purely within its discretion and will not be disturbed on appeal. See

Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160-161 (Pa.Super. 2007).

Metz essentially asks that we reassess and reweigh the evidence presented at

trial, which we will not do. Our review of the record indicates that the evidence

supporting the jury verdict is not tenuous, vague, or uncertain. Therefore, we

discern no abuse of discretion in the trial court’s denial of Metz’s weight

challenge.

      Metz further argues that he should be granted a new trial because

evidence discovered after the trial supports his innocence. Metz’s Br. at 19.

Specifically, Metz’s attorney states that shortly after the trial, he was informed

by a witness who had testified at the trial that the victim had been reviewing

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family photographs with a family member and was unable to identify Metz

when viewing a photograph of him. Id. at 20. Metz states that this evidence

directly contradicts the evidence presented in the DVD forensic interview in

which the child identified Metz as the perpetrator of the crime. Id.

      A new trial may be granted on the basis of after-discovered evidence

only if it is demonstrated that the evidence:

         (1) could not have been obtained prior to the conclusion of
         the trial by the exercise of reasonable diligence; (2) is not
         merely corroborative or cumulative; (3) will not be used
         solely to impeach the credibility of a witness; and (4) would
         likely result in a different verdict if a new trial were granted.

Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.Super. 2010) (quoting

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008)). “The test is

conjunctive; the defendant must show by a preponderance of the evidence

that each of these factors has been met in order for a new trial to be

warranted.” Id. Further, a trial court’s refusal to grant a new trial on the basis

of after-discovered evidence will not be disturbed on appeal absent a clear

abuse of discretion. Commonwealth v. Weis, 611 A.2d 1218, 1228

(Pa.Super. 1992).

      Here, Metz’s purported after-discovered evidence would be used solely

to impeach the credibility of the victim, namely the victim’s identification of

Metz as the perpetrator. “A defendant seeking a new trial must demonstrate

he will not use the alleged after-discovered evidence solely to impeach a

witness’s credibility.” Commonwealth v. Griffin, 137 A.3d 605, 610



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(Pa.Super. 2016) (internal quotation marks and citation omitted). As such,

Metz has failed to satisfy the third prong of the after-discovered evidence test

and this issue is without merit.

      Lastly, Metz argues that he should not be required to register under

SORNA because SORNA is unconstitutional as applied to him. Metz’s Br. at 23.

He points out that in Commonwealth v. Muniz, 164 A.3d 1189, 1195 (Pa.

2017), the Pennsylvania Supreme Court declared SORNA’s then-existing

registration provisions unconstitutional as applied to a defendant whose crime

occurred before SORNA’s passage in 2012. He also notes that since Muniz,

the General Assembly amended SORNA with the passage of Act 10, which had

an effective date of February 21, 2018. He claims that because his crime took

place in March 2017 – i.e., before Act 10’s effective date – application of

SORNA to him violates the Ex Post Facto Clauses of both the United States

and Pennsylvania Constitutions. Id.

      An ex post facto violation can occur in several contexts, but only one is

relevant here. A law violates the Ex Post Facto Clause of the Pennsylvania and

United States Constitutions if it increases a crime’s punishment from that

which was in effect at the time of the crime’s commission. Muniz, 164 A.3d

at 1195.

      SORNA came into existence in 2011, with an effective date of December

20, 2012. In Muniz, the Pennsylvania Supreme Court found that applying

SORNA to those who committed crimes before SORNA’s enactment violated

the Ex Post Facto Clause of the Pennsylvania Constitution. 164 A.3d at 1223.

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In response, the General Assembly enacted Acts 10 and 29 of 2018.

Commonwealth v. Alston, 212 A.3d 526, 529 (Pa.Super. 2019). The

General Assembly “modified Subchapter H’s registration requirements for

those offenders convicted of committing offenses that occurred on or after

SORNA’s” original effective date in 2012. Commonwealth v. Bricker, 198

A.3d 371, 375 (Pa.Super. 2018). It also created Subchapter I, which applies

to sexual offenders who committed an offense on or after April 22, 1996, but

before December 20, 2012, and contains less stringent reporting requirements

than Subchapter H. Alston, 212 A.3d at 529.

      Metz’s argument is too undeveloped to afford him relief, as he does not

argue that the modified version of Subchapter H in effect in the wake of Acts

10 and 29 amounts to punishment, or that the punishment increased from

that in effect at the time of his crimes. See Pa.R.A.P. 2119.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/01/2020




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