J-S34006-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MARK KENNETH MORNINGSTAR,

                        Appellant                  No. 1087 MDA 2014


           Appeal from the Judgment of Sentence March 3, 2014
            In the Court of Common Pleas of Huntingdon County
            Criminal Division at No(s): CP-31-CR-0000399-2012


BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J:                           FILED AUGUST 13, 2015

     Mark Kenneth Morningstar appeals from the judgment of sentence of

eight years and ten months to twenty-five years incarceration imposed after

a jury found him guilty of involuntary deviate sexual intercourse (“IDSI”)

with a person less than thirteen years of age, indecent assault with a person

less than thirteen years of age, and corruption of a minor. We affirm.

     The victim in this matter and his former stepmother first reported

incidents of sexual abuse in 2004 to the Mount Union Borough Police. Police

interviewed the victim with his stepmother and also questioned Appellant.

The victim, who at that time was eight years old, alleged that Appellant had

touched and licked the victim’s penis approximately five times. The police

did not file charges. In May of 2012, the victim, now sixteen, and having
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been adopted by a new family, appeared with his adoptive mother at the

Pennsylvania State Police barracks and again reported the abuse. Trooper

Andrew Corl of the Pennsylvania State Police contacted the Mount Union

Borough Police.      Corporal Robert Lippman of the Mount Union police force

reopened the investigation.           He interviewed Appellant, who adamantly

denied the charges. The victim’s allegations in 2012 were substantially the

same as in 2004. He maintained that Appellant had rubbed his penis on five

or six occasions and performed oral sex on the victim two or three times.

       The Commonwealth charged Appellant with five counts each of IDSI

with a person less than thirteen, unlawful contact with a minor, corruption of

a minor, and indecent assault of a person less than thirteen.1              The

information set forth the offense date for the crimes as February 20, 2004.

Appellant proceeded to trial, and the Commonwealth elected only to pursue

one count each of the aforementioned crimes.           During closing arguments,

Appellant highlighted that the Commonwealth had not presented evidence

from the victim’s former stepmother or his biological father.               The

Commonwealth in its summation responded that Appellant had the ability to

subpoena witnesses in his defense.             Counsel immediately objected and

argued that the Commonwealth was improperly shifting the burden to
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1
  The Commonwealth proceeded on all of the indecent assault charges, one
count each of IDSI of a child less than thirteen and corruption of a minor,
and dismissed the unlawful contact counts.



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Appellant. The trial court overruled the objection, concluding that Appellant

opened the door to such argument.

       Subsequently, the court instructed the jury that the Commonwealth

was not required to establish a specific date of the offense. It informed the

jury that all the Commonwealth needed to prove was that the crimes

occurred during the statute of limitations for the offenses, which it stated did

not begin to run until after the victim was eighteen.      Appellant objected,

pointing out that the Commonwealth had alleged in the criminal information

that the crimes occurred on February 20, 2004.        The court overruled the

objection.     The jury returned guilty verdicts.       Thereafter, the court

sentenced the defendant to consecutive sentences of seven and one-half to

twenty years incarceration for the IDSI charge and one year and four

months to five years imprisonment for corruption of a minor. 2        Appellant

filed timely post-sentence motions, which the court denied.         This timely

appeal ensued. Appellant raises four issues for our review.



____________________________________________


2
  The Commonwealth sought to invoke the mandatory minimum sentence of
ten years under 42 Pa.C.S. § 9718, which has since been deemed
unconstitutional. Appellant astutely observed, however, that the mandatory
minimum sentence at the time of the commission of the crimes was five
years. He therefore argued for imposition of the five-year mandatory
minimum sentence. The court declined to impose the mandatory and
imposed a greater sentence; accordingly, we are not faced with a legal
sentencing question.



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      I.     Whether the District Attorney committed prosecutorial
             misconduct by stating the Defendant could have
             subpoenaed certain witnesses in his defense.

      II.    Whether the Lower Court improperly instructed the jury
             that the Commonwealth did not have to prove the date of
             the offense when the Defense presented evidence that
             Defendant was not at the alleged victim’s home in the time
             period in question?


      III.   Whether there was insufficient evidence to support the
             jury’s guilty verdict on all of the charges?

      IV.    Whether the jury’s verdict was against the weight of the
             evidence?

Appellant’s brief at 12.

      In Appellant’s third issue, he contests the sufficiency of the evidence.

Since such a claim entitles a defendant to discharge rather than a re-trial,

we address that issue at the outset. Commonwealth v. Stokes, 38 A.3d

846 (Pa.Super. 2011). In performing a sufficiency review, we consider all of

the    evidence     admitted,    even     improperly   admitted     evidence.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

We view the evidence in a light most favorable to the Commonwealth as the

verdict winner, drawing all reasonable inferences from the evidence in favor

of the Commonwealth. Id.

      The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   When evidence exists to allow the fact-finder to determine beyond a



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reasonable doubt each element of the crimes charged, the sufficiency claim

will fail.   Id.    In addition, the Commonwealth can prove its case by

circumstantial evidence. Where “the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances[,]” a defendant is entitled to relief. Id. This Court

does not “re-weigh the evidence and substitute our judgment for that of the

fact-finder.” Id.

       Although Appellant purports to raise a sufficiency position, his

arguments actually sound in the nature of a challenge to the weight of the

evidence. He sets forth that the evidence “was insufficient to establish the

elements of the offenses due to the inconsistency in the alleged victim’s

testimony, the lack of corroborating evidence and the extensive evidence

[Appellant] presented that he had not stayed at the victim’s house during

the time period in question.”      Appellant’s brief at 23.     Appellant has

disregarded our standard of review.         We view the evidence of the

Commonwealth in a light most favorable to it without reweighing the

evidence.    The victim’s testimony alone establishes the elements of the

offenses in question. Appellant’s sufficiency claim is devoid of merit.

       Having concluded that sufficient evidence exists to support the jury’s

verdict, we address Appellant’s remaining positions. Appellant’s initial claim

is that the prosecutor committed misconduct during his closing summation

by setting forth that Appellant could have subpoenaed witnesses in his

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defense.    Specifically, the prosecutor stated, “[Appellant’s attorney] could

subpoena people just like I can subpoena people.             He has the same

subpoena power that I do.” N.T., 3/18/13, at 131.

      Appellant submits that the prosecutor improperly asked the jury to

believe that he had to produce evidence in his favor thereby shifting the

burden of proof from the Commonwealth to him. He maintains that he was

not required to call the victim’s biological father or former stepmother. The

Commonwealth echoes the trial court’s rationale that the prosecutor’s

statement   was   in   fair   response   to   Appellant’s   argument   that   the

Commonwealth did not corroborate the victim’s testimony by presenting his

biological father or former stepmother.

      We consider whether a new trial is mandated due to prosecutorial

misconduct based on an abuse of discretion standard. Commonwealth v.

Culver, 51 A.3d 866, 871 (Pa.Super. 2012). A prosecutor’s comments will

not be reversible error “unless the unavoidable effect of such comments

would be to prejudice the jury, forming in their minds fixed bias and hostility

toward the defendant so that they could not weigh the evidence objectively

and render a true verdict.”    Commonwealth v. Hawkins, 701 A.2d 492,

503 (Pa. 1997).    Further, “comments by a prosecutor must be examined

within the context of defense counsel's conduct.” Id.

      It is axiomatic that the Commonwealth bears the burden of proof in a

criminal matter and that the defendant is not required to present any

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evidence.   Commonwealth v. Wiggins, 328 A.2d 520 (Pa.Super. 1974).

While we disapprove of the prosecutor’s statement that Appellant could have

subpoenaed witnesses and find that the trial court’s conclusion that

Appellant opened the door to such an argument to be improper, we cannot

agree that Appellant suffered any prejudice. Here, the trial court properly

instructed the jury that,

             It is not the Defendant’s burden to prove that he is not
      guilty. Instead[,] it is the Commonwealth that always has the
      burden of proving each and every element of each crime charged
      and that the Defendant is guilty of that crime beyond a
      reasonable doubt.

            Again[,] I repeat to you persons accused of a crime are not
      required to present evidence or to prove anything in their own
      defense.

N.T., 3/18/13, at 139-140.      A jury is presumed to follow the court’s

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

Since the court comprehensively and appropriately instructed the jury

regarding the Commonwealth’s burden of proof and that Appellant was not

required to present any evidence, we find the prosecutor’s misstatement

does not warrant a new trial. See Commonwealth v. Johnson, 838 A.2d

663, 679 (Pa. 2003).

      Appellant’s next claim is that the trial court erred in instructing the

jury that the Commonwealth was not required to prove the date of the

offense. The court instructed the jury as follows:




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            There has been in this case talk about dates and I want to
      make something clear.        Particularly with crimes committed
      against children, it is sometimes impossible, impossible to prove
      that an act or an event occurred on a specific date. I say to you
      that the Commonwealth has no burden of proof that a crime
      occurred on a specific date or a specific month or for that matter
      a specific year. The Commonwealth must prove that a crime
      occurred within the statute of limitations and in crimes
      committed against children; the statute of limitations does not
      even being to run until the child reaches the age of 18.

N.T., 3/18/13, at 142-143.          Appellant immediately objected and, as

mentioned previously, highlighted that the Commonwealth included a date of

offense in the criminal information.        According to Appellant, the above

instruction was improper in this case because he presented evidence that he

was not at the victim’s residence during the period in question. Appellant

notes that the Commonwealth’s theory was that the crimes occurred

between February 20, 2004 and March 15, 2004. He adds that he presented

testimony from his then girlfriend that he stayed with her every weekend

during that period.    In addition, Appellant worked a night shift from 3:00

p.m. to 1:00 a.m. Monday through Friday in that time span. In light of this

evidence, Appellant contends that the instruction was erroneous despite his

failure to provide a notice of alibi or seek an alibi instruction.

      In further support, Appellant relies on Commonwealth v. Devlin,

333 A.2d 888 (Pa. 1975). In Devlin, the defendant allegedly sodomized a

mentally retarded twenty-two-year-old man.             The victim reported the

incident to police on April 14, 1972. The indictment returned by the grand



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jury indicated that the crime occurred on or about April 16, 1972.           The

Commonwealth presented evidence that the defendant had known the victim

since February 1971 and that the crime occurred sometime between 1971

and April 14, 1972. The Supreme Court reversed Devlin’s conviction on the

basis that the Commonwealth failed to fix the date of the commission of the

offense with reasonable certainty. Although rejecting the position that the

Commonwealth is bound by a date included in an indictment, it further

declined to find that the rule only applied in cases where a defendant

proffered an alibi defense.

       We agree with Appellant to the limited extent that his failure to ask for

an alibi instruction or present a notice of alibi does not justify the court’s

instruction.   See Devlin, supra.          Moreover, in those instances where the

Commonwealth includes a date of offense in its information, though not

bound by that date in a sex offense case such as this,3 it is imprudent to

inform the jury that the Commonwealth is not required to establish the date

of the commission of the offense with a reasonable degree of certainty. See

id. Nonetheless, we find that Appellant is not entitled to relief.

       In this case, unlike Devlin, the Commonwealth’s evidence narrowed

the date of the commission of the offenses to a time period between
____________________________________________


3
  Proof of an exact date is, of course, not necessary. See Commonwealth
v. Devlin, 333 A.2d 888, 892 (Pa. 1975); Commonwealth v. Niemetz,
422 A.2d 1369 (Pa.Super. 1980).



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February and March of 2004. This is a far less expansive period than that at

issue in Devlin. Appellant’s defense was in no manner inhibited, as he knew

of the Commonwealth’s theory and presented his former girlfriend as an alibi

witness and provided evidence of his work schedule. The court’s instruction

also could not have wiped out Appellant’s defense since the Commonwealth’s

evidence was that the crime occurred within an approximate one-month

window.   Necessarily, the jury had to decide whether the crimes occurred

during the period alleged by the victim.

      Appellant’s final issue is a challenge to the weight of the evidence. A

weight claim must be preserved in a timely post-sentence motion.

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012).

“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.”   Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)

(emphases removed). Accordingly, “[o]ne of the least assailable reasons for

granting or denying a new trial is the lower court's conviction that 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.” Id.

      A trial judge should not grant a new trial due to “a mere conflict in the

testimony or because the judge on the same facts would have arrived at a

different conclusion.”   Id.   Instead, the trial court must examine whether

“‘notwithstanding all the facts, certain facts are so clearly of greater weight

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that to ignore them or to give them equal weight with all the facts is to deny

justice.’” Id. (citation omitted). Only where the jury verdict “is so contrary

to the evidence as to shock one's sense of justice” should a trial court afford

a defendant a new trial. Id. A weight of the evidence issue concedes that

sufficient evidence was introduced. Commonwealth v. Charlton, 902 A.2d

554, 561 (Pa.Super. 2006).

      Appellant properly preserved his issue. He argues that for the reasons

articulated in his sufficiency claim that the jury’s verdict was so contrary to

the evidence that it shocks one’s sense of justice. We disagree. The mere

fact that the victim’s testimony and Appellant’s evidence were contradictory

does not warrant relief. Appellant’s evidence was not the type of evidence

that is so clearly of greater weight than the testimony of the victim that

crediting the victim would deny justice.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2015




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