J-S15033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MATTHEW SHELTON PARKER                     :
                                               :
                       Appellant               :      No. 1186 WDA 2018

         Appeal from the Judgment of Sentence Entered July 31, 2018
                In the Court of Common Pleas of Butler County
            Criminal Division at No(s): CP-10-CR-0000052-2017


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                              FILED MAY 8, 2019

       Appellant, Matthew Shelton Parker, appeals from the judgment of

sentence entered in the Butler County Court of Common Pleas, following his

jury trial convictions for two counts of rape by forcible compulsion, and one

count each of aggravated indecent assault, corruption of a minor, endangering

the welfare of a child, indecent assault without consent of other, indecent

assault by forcible compulsion, and indecent assault of a person less than

sixteen.1 We affirm.

       The relevant facts and procedural history of this case are as follows.

Over the course of several years, Appellant repeatedly propositioned and

sexually abused Victim, his minor daughter.           Ultimately, Appellant raped

____________________________________________


1 18 Pa.C.S.A. §§ 3121(a)(1), 3125(a)(8), 6301(a)(1)(ii), 4304(a)(1),
3126(a)(1), 3126(a)(2), and 3126(a)(8), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S15033-19


Victim twice around the time of her sixteenth birthday.       Shortly after the

assaults occurred, Victim revealed the abuse to a school guidance counselor

who, as mandated, reported the abuse to the Department of Human Services.

On February 15, 2018, the Commonwealth filed notice of its intent to introduce

Pa.R.E. 404(b) evidence at trial. Following trial, a jury convicted Appellant of

the offenses on February 28, 2018. On July 31, 2018, the court sentenced

Appellant to an aggregate term of one hundred forty-eight (148) to two

hundred ninety-six (296) months’ incarceration, plus sixty (60) months’

probation. The court also gave Appellant notice of his sex offender reporting

requirements. Appellant filed a timely notice of appeal on August 17, 2018.

On August 20, 2018, the court ordered Appellant to file a concise statement

of errors complained of on appeal per Pa.R.A.P. 1925(b).          Following an

extension, Appellant filed his Rule 1925(b) statement on October 22, 2018.

      Appellant raises the following issues for our review:

         DID THE COURT ERR BY ADMITTING EVIDENCE OF PRIOR
         BAD ACTS AND BY FAILURE TO OFFER A CURATIVE
         INSTRUCTION AND/OR A JURY CHARGE?

         DID THE COURT ERR WHEN IT IMPEDED IMPEACHMENT
         DURING CROSS-EXAMINATION OF THE ALLEGED VICTIM?

         WAS THE VERDICT AGAINST THE WEIGHT OF THE
         EVIDENCE?

         WAS THE JURY MISHANDLED BY THE COURT?

(Appellant’s Brief at 5).

      “The admissibility of evidence is at the discretion of the trial court and


                                     -2-
J-S15033-19


only a showing of an abuse of that discretion, and resulting prejudice,

constitutes reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-

98, 80 A.3d 380, 392 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189

L.Ed.2d 824 (2014).

      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 when 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. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal

denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party.”     Commonwealth v. Lopez, 57 A.3d 74, 81

(Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).

      Similarly, our standard of review of a court’s decision to include or omit

jury instructions “is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011), aff’d, 621

Pa. 401, 78 A.3d 1044 (2013) (quoting Commonwealth v. Galvin, 603 Pa.

625, 651, 985 A.2d 783, 799 (2009), cert. denied, 559 U.S. 1051, 130 S.Ct.

2345, 176 L.Ed.2d 565 (2010)).


                                     -3-
J-S15033-19


      The following principles apply to a weight of the evidence claim:

            The weight of the evidence is exclusively for the finder
            of fact who is free to believe all, part, or none of the
            evidence and to determine the credibility of the
            witnesses. An appellate court cannot substitute its
            judgment for that of the finder of fact. Thus, we may
            only reverse the…verdict if it is so contrary to the
            evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
         666, 672-73 (1999). 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. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable William R.

Shaffer, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, filed October 30, 2018, at 2-8) (finding: (1) trial

counsel did not object to Commonwealth’s introduction of prior bad acts

evidence; therefore, Appellant’s evidentiary claim is waived; moreover,

Appellant’s claim would not merit relief; prior bad acts evidence was

admissible under res gestae exception; evidence showed history of case and

natural development of facts; evidence also demonstrated Appellant’s



                                      -4-
J-S15033-19


common plan or scheme because it reflected examples of abuse of similar

nature; Appellant’s claim that trial court failed to give curative instruction

regarding prior bad acts evidence is waived because Appellant did not request

instruction or object to lack of instruction at trial; further, trial court declines

to address Appellant’s ineffective assistance of counsel claim upon direct

review[2]; (2) counsel did not object at trial to Commonwealth’s use of audio

tape of Victim’s forensic statement, so Appellant’s claim is waived; moreover,

issue would merit no relief; trial court did not instruct Commonwealth to use

any particular procedure regarding forensic interview; (3) Appellant’s weight

claim is waived, because Appellant failed to raise weight challenge at any

stage before filing notice of appeal; moreover, verdict was not against weight



____________________________________________


2 To the extent Appellant makes an ineffectiveness of counsel argument in his
first appellate issue, “as a general rule, a petitioner should wait to raise claims
of ineffective assistance of trial counsel until collateral review.”
Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002). Our
Supreme Court has recognized two very limited exceptions to the general rule
in Grant regarding when trial courts may review ineffective assistance of
counsel claims: (1) in extraordinary circumstances where claims of trial
counsel’s ineffectiveness are apparent from the record and immediate
consideration best serves the interests of justice and/or (2) where there is
good cause shown and review of the claim is preceded by a waiver of the right
to seek collateral review. Commonwealth v. Holmes, 621 Pa. 595, 598-99,
79 A.3d 562, 563-64 (2013). Ineffectiveness claims may be raised on direct
appeal only if: (1) the appellant raised his claim(s) in a post-sentence motion;
(2) an evidentiary hearing was held on the claim(s); and (3) a record devoted
to the claim(s) has been developed. Commonwealth v. Leverette, 911 A.2d
998, 1004 (Pa.Super. 2006).            Here, Appellant failed to satisfy the
requirements of Holmes and Leverette. Therefore, this appeal is not the
proper time to raise or address any ineffectiveness of counsel claim. Instead,
Appellant must wait to raise his claim(s) in a timely filed PCRA petition.

                                           -5-
J-S15033-19


of evidence and does not shock one’s sense of justice; (4) trial court did not

permit juror to ask counsel question during closing arguments when juror

sought to do so; court advised jurors to seek additional instruction by making

written request through foreperson). The record supports the court’s analysis,

and we see no reason to disturb it. Accordingly, we affirm on the basis of the

trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2019




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                    vs.                                      C.A. No. 0052 of2017                      �                        �
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     MATTHEWS. PARKER

     For the Commonwealth:          Patricia J. McLean, Esq., First Assistant District Attorney
     For the Defendant:             Erika P. Kreisman, Esq.


                          ORDER OF COURT PURSUANT TO Pa.R.A.P. 1925{a)


            AND NOW, this 29th day of October, 2018, the Clerk of Courts is directed to transmit the

     above record to the Superior Court of Pennsylvania in accordance with the Rules of Appellate

     Procedure.

            It appears the Defendantraises the following claims in his "Concise Statement of Matters

     Complained of on Appeal":


                    1) the Court erred in permitting the introduction of evidence of prior bad acts;

                    2) the Court failed to give a limiting instruction relative to the prior bad acts
                       evidence;

                                                                            he
                    3) trial counsel rendered ineffective assistance when "did not oppose the
                       admission of" the prior bad acts evidence prior to trial;

                    4) "[t]he Court erred when it ordered Defense Attorney Clark to play [the
                       victim's] forensic interview tape to her prior to further cross examination";

                    5) the ''verdict is against the weight and sufficiency of the evidence;" and

                    6) the Court abused its discretion when it did not permit a juror to ask a question
                       during closing argument.


     The claims will be addressed in the order they were presented in the Statement.




                                                       r.  n
                                                       I.µ':/)
       The Defendant first claims the Court erred in failing to exclude evidence of prior bad

acts. Counsel for the Defendant did not object to the introduction of the prior bad acts evidence.

Accordingly, the Defendant's claim is waived. Even if that is not the case, the evidence was

admissible under the res gestae exception. The evidence of the prior bad acts was necessary to

show the history of the case and the natural development of the facts, specifically, the years-long,

escalating course of abuse by the Defendant against the victim and the circumstances attendant to

the victim delaying disclosure of that abuse. The prior bad acts evidence was probative of the

Defendant's common plan or scheme in that they reflected abuse of a similar nature as occurred

at the victim's residence.

       The Defendant's second claim, that the Court failed to give a limiting instruction, is

waived because the Defendant did not object to the Court's failure to give such an instruction.

       In his third claim, the Defendant asserts that trial counsel rendered ineffective assistance.

Such claims are properly reserved for collateral review under Commonwealth v. Grant, 813 A.2d

726 (Pa. 2003). We decline to grant the Defendant's request to find at this stage from the record

that trial counsel rendered ineffective assistance.

       Fourth, the Defendant claims, "[t]he Court erred when it ordered Defense Attorney Clark

to play [the victim's] forensic interview tape to her prior to further cross examination." The

Defendant did not object to the procedure utilized regarding the victim's forensic interview. The

Defendant's claim is waived. Even if that were not so, the Court did not order Defense Attorney

Clark to utilize any particular procedure regarding the forensic interview.

       The Defendant.next claims that the "verdict is against the weight and sufficiency of the

. evidence." The Court believes the Defendant's weight of the evidence claim is waived in that



                                                                                                   2
the claim was not raised before this Court prior to the Notice of Appeal having been filed. Even

if that is not so, the verdict is not "against the weight and sufficiency of the evidence."

       The Supreme Court of Pennsylvania has addressed the standard of review for a

sufficiency of the evidence challenge as follows:


               When reviewing a challenge to the sufficiency of the evidence, we must
               determine if the Commonwealth established beyond a reasonable doubt each of
               the elements of the offense, considering the entire trial record and all of the
               evidence received, and drawing all reasonable inferences from the evidence in
               favor of the Commonwealth as the verdict-winner. The Commonwealth may
               sustain its burden of proof by wholly circumstantial evidence.

Commonwealth v. Segida, 985 A.2d 871, 880 (Pa. 2009)(citations omitted). More recently, the

Supreme Court has set forth the standard of review related to the sufficiency of the evidence:

               The standard of review for evidentiary sufficiency is whether the evidence,
               viewed in the light most favorable to the Commonwealth as the verdict winner,
               supports the jury's finding that every element of the offense was proven beyond a
               reasonable doubt. The Commonwealth may sustain this burden by wholly
               circumstantial evidence and the jury is free to believe all, part, or none of the
               evidence.

Commonwealth v. Hicks, 156 A.3d 1114, 1123 (Pa. 2017), cert. denied sub nom Hicks v.

Pennsylvania, 138 S. Ct. 176 (2017)(citations omitted). "The facts and circumstances

established by the Commonwealth need not preclude every possibility of innocence. It is within

the province of the fact-finder to determine the weight to be accorded to each witness's testimony

and to believe all, part, or none of the evidence." Commonwealth v. Palmer, 192 A.3d 85, 89

(Pa. Super. Ct. 2018)(quoting Commonwealth v. Williams, 176 A.3d 298 (Pa. Super. Ct. 2017).

       The Supreme Court of Pennsylvania has addressed weight of the evidence challenges as

in the following manner:

               The weight of the evidence is exclusively for the finder of fact who is free to
               believe all, part, or none of the evidence and to determine the credibility of the
                                                                                                    3
                witnesses. An appellate court cannot substitute its judgment for that of the finder
                of fact. Thus, we may only reverse the lower court's verdict if it is so contrary to
                the evidence as to shock one's sense ofjustice.

Commonwealth v. Small, 741 A.2d 666, 672- 73 (Pa. 1999)(citations omitted). 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. Appellate review of a weight of the evidence claim is directed to

a review of the trial court's exercise of discretion, not the underlying question of whether a

verdict was against the weight of the evidence. Commonwealth v. Jacoby, 170 A.3d 1065, 1080

(Pa. 2017)(citing Commonwealth v. Clay, 64 AJd 1049 (Pa. 2013)). The Pennsylvania Supreme

Court in Clay noted the standard applicable to weight of the evidence claims:

               A new trial 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 ofjustice and the award of a new trial is imperative so that
               right may be given another opportunity to prevail.

Commonwealth v. Clay, 64 AJd 1049, 1055 (Pa. 2013). As was noted above, the Defendant's

weight of the evidence claim is waived as it has been raised for the first time in his Statement.

       The Defendant was convicted of two counts of rape by forcible compulsion or threat of

forcible compulsion, one count each of aggravated indecent assault, corruption of minors,

endangering the welfare of a child, and three counts of indecent assault. Section 3121 of the

Crimes Code, rape, provides in relevant part:

               (a) Offense defined.-A person commits a felony of the first degree when the
               person engages in sexual intercourse with a complainant:

                        (1) By forcible compulsion.
                      , (2) By threat of forcible compulsion that would prevent resistance by a
                        person of reasonable resolution.

                                                                                                    4
Section 3125(a)(8) of the Crimes Code, aggravated indecent assault, provides:

               (a) Offenses defined.-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:

                      (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.

Section 630l(a)(l)(ii) of the Crimes Code provides:

               (a) Offense defined.-

                      (ii) Whoever, being of the age of 18 years and upwards, by any course of
                      conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or
                      tends to corrupt the morals of any minor less than 18 years of age, or who
                      aids, abets, entices or encourages any such minor in the commission of an
                      offense under Chapter 31 commits a felony of the third degree.

Section 4304(a)(l) of the Crimes Code sets forth:

              (a) Offense defined.-
                     ( I) 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, commits an offense ifhe knowingly endangers the welfare of the
                     child by violating a duty of care, protection or support.

Finally, § 3126 of the Crimes Code provides in relevant part the following:

               (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:

                      (I) the person does so without the complainant's consent;
                      (2) the person does so by forcible compulsion;

                      (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.

                                                                                                  5
We will briefly set forth some of the testimony that was presented by the Commonwealth at trial,

principally that of the victim and her mother. We do not intend to set forth the entirety of the

Commonwealth's case. The Defendant did not testify on his own behalf.


        The victim testified that the Defendant began by asking her for sex at age eight or nine.

February 26, 2018 N.T., 57. She testified that the following day, the Defendant "guilt tripped"

her so she did not disclose the incident immediately, but instead waited approximately one year

to do so. Id. at 58. From age fourteen to sixteen, the victim testified, the Defendant constantly

asked for sex. Id. at 60. At one point, after returning from a field trip, the victim disclosed to her

mother that the Defendant had been asking her to have sex. Id. at 61. No action resulted from the

disclosure, the victim testified. Id. at 65. When the victim rejected the Defendant's requests to

have sex, which requests were usually made while he and the victim were cuddling in his

bedroom, the Defendant, the victim testified, would become upset and stop talking to people. Id.

at 62-64.

       When the victim was fourteen years old, the Defendant, while cuddling with the victim in

his bed, began to put his hand down the victim's underwear and touch her genitals. Id. at 67.

The first time it occurred, the victim screamed at the Defendant and ran outside. The Defendant

followed and indicated to the victim that she had hurt his feelings. Id. at 68. The inappropriate

touching-the Defendant putting his hand in the victim's genitals-became a frequent, near-

daily occurrence. Id. at 71, 113. At times, the victim testified, she would tell the Defendant "no"

when he attempted to assault her. The Defendant would respond by becoming upset and moping.

Id. at 72. The victim testified that the Defendant once touched her in her bedroom. Idat 73. She

also testified that the Defendant touched her inappropriately during a camping trip and while at a

Disney World Resort. Id. at 75-80.
                                                                                                     6
         The victim related that while the Defendant never threatened her with harm, he made

 threats towards himself. The victim testified: "He would say that he couldn't last long without

 me if I left. He told me how he would do suicide ... He said that one day he would take a bottle,

 drink it, drive, get run over by a truck. Find some place to crash." Id. at 74. The victim testified

 that at a point prior to her sixteenth birthday, when the Defendant asked the victim to have sex,

 the victim responded by saying, "I don't care anymore." Id. at 82. The next day, when she came

 home from school, the victim was nervous and remained outside before going into her home. Id.

 at 82-83. When she went inside, the Defendant took her to his bedroom and had vaginal

 intercourse with her. Id. at 83. The Defendant again had vaginal intercourse with the victim

 shortly after her sixteenth birthday. Id. at 85-86. The evidence demonstrated the relationship

 between the Defendant and the victim: the Defendant was a parent, guardian, or other adult

 person supervising the welfare of the child. The Defendant was in his mid-thirties when the

 physical abuse occurred. Id. at 48.

         The victim's mother testified that the victim disclosed to her on two occasions that the

 Defendant had asked the victim to have sex. Id. at 200, 203. Her testimony corroborated the

 victim's testimony that the victim went on a trip Disney World trip and went camping with the

 Defendant. Id. at 204-05. She confirmed that there was a trip to Disney World where she did not

 accompany the Defendant, the victim, and the victim's brothers. Id. at 208. After the victim

 disclosed the abuse, the Defendant admitted to the victim's mother that "he had been feeling

 guilty for a while because he did have feelings for [the victim]." Id. at 223. At one point the

 Defendant arrived at the victim's mother's home, "grabbed a suitcase, started throwing stuff in it,

 laughed, and said, oh, what am I doing, I don't need this, grabbed a hand gun and a bottle of

· liquor?' before driving off in his truck. Id. at 227-29. The victim's mother testified that there

                                                                                                      7
         were times where she witnessed the Defendant and the victim "cuddling under the covers

         together" and would ask them to stop. Id. at 242.

                Nothing presented at trial demonstrated that the victim fabricated her testimony. Based

         on the testimony of the victim, there was sufficient evidence to find the Defendant guilty of each

         of the crimes charged. Most importantly, the testimony of the minor victim demonstrated that

         the Defendant had sexual intercourse with her by forcible compulsion or threat of forcible

         compulsion that would prevent resistance by a person ofreasonable resolution on two occasions.

         The evidence also demonstrated that the Defendant committed aggravated indecent assault and

         indecent assault against the victim on numerous occasions prior to her sixteenth birthday,

         without the victim's consent, and by forcible compulsion or threat thereof. These actions

         occurred while the Defendant was in his thirties, and while he was supervising the welfare of the

         victim. As the jury was free to accept the victim's testimony, nothing about the verdict shocks

         one's sense of justice.

                Finally, there was no error where the Court did not permit a juror, during closing

         argument, to ask a question of the attorney for the Defendant. The jurors were informed that

         they could seek additional instruction by making a request through their foreperson in writing.

         February 27, 2018 N.T., 190.




                                                              By the Court,

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