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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                   v.                       :
                                            :
JOSEPH M. McQUADE, SR.,                     :            No. 37 WDA 2014
                                            :
                        Appellant           :


       Appeal from the Judgment of Sentence, November 25, 2013,
           in the Court of Common Pleas of Jefferson County
            Criminal Division at No. CP-33-CR-0000235-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED OCTOBER 20, 2014

     Joseph M. McQuade, Sr., appeals from the judgment of sentence of

November    25,   2013,   following   his   conviction    of   multiple   counts   of

aggravated indecent assault, indecent assault, unlawful contact, and

corruption of minors. We affirm.

     The charges related to appellant’s sexual abuse of his 13-year-old

daughter, N.M.    Initially, appellant entered into a negotiated guilty plea;

however, he was permitted to withdraw that plea prior to sentencing. The

matter proceeded to a non-jury trial on October 28, 2013, following which

appellant was found guilty of all charges, including four counts each of

aggravated indecent assault and aggravated indecent assault of a person

less than 16 years of age. On November 25, 2013, appellant received an

aggregate sentence of 48 to 148 years’ incarceration.                Post-sentence


* Retired Senior Judge assigned to the Superior Court.
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motions were denied, and this timely appeal followed.       Appellant complied

with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an

opinion.

      Appellant has raised the following issue for this court’s review:

            Whether the verdict was against the weight of the
            evidence and should shock the conscience of this
            Court where:     the victim repeatedly contradicted
            herself (and was contradicted by other witnesses),
            concerning when and where the alleged acts of
            molestation occurred; where the victim had
            previously told her mother the allegations against
            appellant were fabrications; and where [the] victim’s
            earlier physical demonstration of where she was
            touched indicated there was no “penetration,
            however slight?”

Appellant’s brief at 21.1

                  A weight of the evidence claim concedes
                  that the evidence is sufficient to sustain
                  the verdict, but seeks a new trial on the
                  ground that the evidence was so
                  one-sided or so weighted in favor of
                  acquittal that a guilty verdict shocks
                  one’s sense of justice.

            Commonwealth v. Lyons,              Pa.     , 79 A.3d
            1053, 1067 (2013).

                  The     Pennsylvania  Supreme     Court    has
            reiterated the proper standard of review of a weight
            claim as follows:

                  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. A new trial

1
  In his Rule 1925(b) statement, appellant also raised a discretionary
aspects of sentencing claim, which has been abandoned on appeal.


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               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. 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.’” 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.”

               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:

                    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.
                    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. One
                    of     the    least  assailable
                    reasons for granting or
                    denying a new trial is the
                    lower court’s conviction that


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                     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.

               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.

          Commonwealth v. Clay,               Pa.     , 64 A.3d
          1049, 1054–1055 (2013)            (citations omitted)
          (emphasis in original).




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Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014). “The

uncorroborated testimony of a sexual assault victim, if believed by the trier

of fact, is sufficient to convict a defendant.”          Commonwealth v.

McDonough, 96 A.3d 1067, 1069 (Pa.Super. 2014), citing Commonwealth

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

     Appellant   argues   that    the   Commonwealth    failed   to   prove   the

“penetration, however slight” element of aggravated indecent assault.2

According to appellant, the victim’s testimony was inconsistent and not

credible. Appellant states that earlier, when these incidents happened, the

victim demonstrated for her mother, Teresa, where appellant had touched



2
           Except as provided in sections 3121 (relating to
           rape), 3122.1 (relating to statutory sexual assault),
           3123 (relating to involuntary deviate sexual
           intercourse) and 3124.1 (relating to sexual assault),
           a person who engages in penetration, however
           slight, of the genitals or anus of a complainant with a
           part of the person’s body for any purpose other than
           good faith medical, hygienic or law enforcement
           procedures commits aggravated indecent assault if:

           (1)   the person does so           without    the
                 complainant’s consent;

           or

           (8)   the complainant is less than 16 years of
                 age and the person is four or more years
                 older than the complainant and the
                 complainant and the person are not
                 married to each other.

18 Pa.C.S.A. § 3125(a)(1), (8).


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her. At that time, the victim indicated that appellant touched her below her

panty line but did not penetrate her vagina. Appellant also argues that the

victim was angry at appellant and had a motive to lie.

      The victim, N.M., testified that appellant digitally penetrated her

vagina on at least four separate occasions, in the shower, on the couch, in

her bedroom, and in her mother’s bedroom. (Notes of testimony, 10/28/13

at 43-44, 46-49, 51-52.)      N.M. was unequivocal in her testimony that

appellant placed his finger inside her vagina, describing the motion as “up

and then down and went inside.” (Id. at 52.)

      Teresa McQuade, N.M.’s mother, testified that N.M. told her appellant

touched her below her panty line while rubbing her belly.         (Id. at 83.)

Teresa asked N.M. to show her where appellant touched her. (Id. at 105.)

They went into the bathroom, where N.M. removed her clothing and

indicated that appellant touched her just above her vulva. (Id. at 105-108.)

Teresa testified that N.M. specifically denied that appellant inserted anything

into her vagina. (Id. at 108.) Later, N.M. told Teresa that she made up the

allegations because she was angry at appellant. (Id. at 96-97.)

      Appellant took the stand in his own defense. Appellant described his

relationship with N.M. as “rocky,” and testified that N.M. wanted him out of

her life. (Id. at 158, 162.) According to appellant, N.M. resented the fact

that he was a strict disciplinarian. (Id. at 163.) Appellant admitted that,

occasionally, he would assist N.M. in the shower.      Appellant testified that



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N.M. had trouble rinsing the conditioner out of her hair.           (Id. at 170.)

Appellant also testified that N.M. had a yeast infection, and he had to apply

ointment to her genital area. (Id. at 164-168.)

      Appellant’s testimony in this regard was contradicted by Teresa, who

testified that N.M. had a yeast infection on one occasion, caused by an

adverse reaction to fragrance in the type of bubble bath they were using,

but that appellant never applied any ointment to her genital area. (Id. at

87-88.) Teresa testified that she applied the ointment. (Id. at 89.) Teresa

also testified that N.M. did not need any help in the shower. (Id. at 91.)

      The trial court, sitting as finder-of-fact, found N.M.’s testimony to be

credible   and   convincing   and   did   not   believe   appellant’s   self-serving

testimony that he had to apply ointment to N.M.’s genital area for a

good-faith medical purpose. (Trial court opinion, 2/12/14 at 2.) The trial

court did not accept appellant’s argument that N.M. fabricated these

allegations because she was angry. (Id.) In fact, N.M. admitted that she

disliked appellant but specifically denied lying to get him out of the house.

(Notes of testimony, 10/28/13 at 66, 74-75.)

      Although, pointing to Teresa’s testimony, appellant characterizes

N.M.’s account of these incidents as inconsistent, her trial testimony was

extremely consistent on the crucial issue of penetration. N.M. testified that

on each occasion, appellant placed his finger inside her vagina. (Id. at 46,

49, 51-52, 63, 75.) In addition, N.M. related these incidents to her teacher



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and the school nurse. (Id. at 126-150.) Clearly, the trial court found N.M.’s

testimony to be credible and convincing.         It was within the exclusive

province of the trial court as fact-finder to resolve conflicts in the testimony

and to believe all, part, or none of the evidence. Charlton, supra. The trial

court did not abuse its discretion in denying appellant’s motion for a new

trial based on the weight of the evidence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2014




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