J-S42020-17

                                  2017 PA Super 307



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LOUIS M. IZURIETA

                            Appellant                 No. 1283 MDA 2016


             Appeal from the Judgment of Sentence June 30, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0003965-2014


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

OPINION BY MOULTON, J.:                          FILED SEPTEMBER 27, 2017

       Louis M. Izurieta appeals from the June 30, 2016 judgment of

sentence entered in the York County Court of Common Pleas following his

jury trial convictions for aggravated indecent assault (without consent),

aggravated indecent assault (complainant less than 16 years of age),

indecent assault (without consent), indecent assault (complainant less than

16 years of age), and corruption of minors.1 We affirm.

       The well-reasoned opinion of the Honorable Harry M. Ness sets forth

the factual and procedural history underlying this appeal, which we adopt




____________________________________________


       1
       18 Pa.C.S. §§ 3125(a)(1), 3125(a)(8), 3126(a)(1), 3126 (a)(8), and
6301(a)(1), respectively.
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and incorporate herein.      See Opinion in Support of Order Pursuant to

Pa.R.A.P. 1925(a), 12/14/16, at 1-11 (“1925(a) Op.”).

      Izurieta raises two issues on appeal:

             1. The jury verdict was against the greater weight of
                the evidence presented at trial so as to shock one’s
                sense of justice on the following grounds:         the
                Commonwealth’s evidence was contradictory within
                itself; the Commonwealth’s evidence, specifically the
                victim’s testimony, was inconsistent with other
                Commonwealth evidence presented and the victim
                gave different accounts as to what happened; the
                evidence was so unreliable and/or contradictory as to
                make the verdict based upon conjecture and
                surmise; there was no DNA evidence linking
                [Izurieta] to the offense; the victim’s testimony as to
                force or acts without her consent was not
                substantiated since there was no evidence of injury
                to her person, which contradicted the victim’s
                testimony as to injuries sustained, nor was there any
                evidence presented of injuries to [Izurieta]; the
                victim’s behavior, attending a high school wrestling
                match after the alleged incident, was contradictory
                to her version of events; while the victim alleged
                past incidents of abuse, in the intervening years she
                stayed alone with [Izurieta] and never requested her
                mother or others not to leave her alone with
                [Izurieta]; text messages presented at trial by and
                between [Izurieta] and the victim contradicted the
                victim’s claims of abuse by [Izurieta] and which is
                inconsistent with someone who had been a victim of
                sexual assaults.

             2. The evidence at trial was insufficient to support the
                verdict on the . . . grounds [asserted above in the
                weight challenge].

Izurieta’s Br. at 4.




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      For ease of disposition, we address Izurieta’s claims in reverse order.

This Court’s standard for reviewing sufficiency of the evidence claims is as

follows:

               We must determine whether the evidence admitted at
           trial, and all reasonable inferences drawn therefrom, when
           viewed in a light most favorable to the Commonwealth as
           verdict winner, support the conviction beyond a reasonable
           doubt. Where there is sufficient evidence to enable the
           trier of fact to find every element of the crime has been
           established beyond a reasonable doubt, the sufficiency of
           the evidence claim must fail.

              The evidence established at trial need not preclude
           every possibility of innocence and the fact-finder is free to
           believe all, part, or none of the evidence presented. It is
           not within the province of this Court to re-weigh the
           evidence and substitute our judgment for that of the fact-
           finder.   The Commonwealth’s burden may be met by
           wholly circumstantial evidence and 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. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

      Izurieta argues that the victim’s testimony was internally inconsistent

and contradicted other Commonwealth evidence. Further, Izurieta contends

that there was neither DNA evidence nor evidence as to force or lack of

consent, and that the victim’s actions after the alleged assaults belie her

testimony.

      A person may be convicted of aggravated indecent assault if:




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        [that] person . . . 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, hygenic or law enforcement procedures . . .
        [and]:

           (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. § 3125(a).

     A person may be convicted 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:

           (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. § 3126.

     Corruption of minors is defined as:

        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


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         an offense under Chapter 31 commits a felony of the third
         degree.

18 Pa.C.S. § 6301(a)(1)(ii).

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the Commonwealth presented

sufficient evidence to support Izurieta’s convictions. Both Izurieta and the

victim testified that Izurieta penetrated the victim’s vagina with his penis on

May 30, 2014. N.T., 5/13/15, at 86-97; N.T., 5/14/15, at 275. Further, the

victim testified that she pushed Izurieta away and told him, “I can’t do this

anymore.” N.T., 5/13/15, at 87. In a state of shock, she then ran upstairs

to her room, locked the door, text messaged her friend Alex, and called her

mother. Id. at 85-87, 89. Under these circumstances, the Commonwealth

presented sufficient evidence to convict Izurieta of aggravated indecent

assault without consent and indecent assault without consent.                See

Commonwealth v. Velez, 51 A.3d 260, 266 (Pa.Super. 2012) (concluding

that nine-year-old victim’s testimony that “[a]ppellant’s acts were bad, did

not feel right, and that she was afraid and angry at [a]ppellant” were

sufficient to establish victim’s lack of consent). Moreover, because Izurieta

committed a sexual offense against the minor victim and the victim testified

that Izurieta told her that she looked “pretty” and that “she want[ed] this,”

N.T., 5/13/15, at 81, 83, we also conclude that the Commonwealth

presented sufficient evidence to convict Izurieta of corruption of minors.

      Further, the victim testified that in the spring of 2012, Izurieta had

penetrated her vagina with his fingers. Id. at 101. Because the victim was

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under the age of 16 at the time of this contact, see id. at 72, the

Commonwealth        presented   sufficient   evidence    to   convict    Izurieta   of

aggravated indecent assault and indecent assault where the complainant is

less than 16 years of age. See Commonwealth v. McDonough, 96 A.3d

1067, 1069 (Pa.Super. 2014) (“The uncorroborated testimony of a sexual

assault victim, if believed by the trier of fact, is sufficient to convict a

defendant.”).

      We also reject Izurieta’s claim that the Commonwealth’s failure to

present DNA evidence or evidence of injury rendered the evidence

insufficient.      The   Commonwealth        presented   sufficient     evidence    of

penetration without the use of DNA evidence, and Izurieta’s convictions did

not require the Commonwealth to show that he used force in assaulting the

victim.

      Izurieta also argues that the verdicts were against the weight of the

evidence.       Izurieta’s arguments regarding weight mirror his sufficiency

complaints, specifically that the victim’s testimony was inconsistent, the

Commonwealth’s evidence was devoid of DNA evidence or evidence of

injury, and the victim’s conduct after the alleged assaults in 2011 and 2012

belie her testimony.

      Preliminarily, we must address a procedural issue Izurieta has raised.

The Honorable Thomas H. Kelley presided over Izurieta’s jury trial but left

the bench before sentencing Izurieta. The Honorable Harry M. Ness presided

over the sentencing proceedings.       Judge Ness not only sentenced Izurieta

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but also denied Izurieta’s post-sentence motion, which included a weight of

the evidence challenge.

      Izurieta argues that Judge Ness should not have reviewed his weight

of the evidence claim, as a “weight of the evidence claim is reserved

exclusively for the . . . judge who presided over the trial” because a court

cannot review a weight of the evidence claim based on a “cold” record.

Izurieta’s Br. at 23. Relying on dissenting opinions in both this Court and

our Supreme Court in Armbruster v. Horowitz, 744 A.2d 285 (Pa.Super.

1999), aff’d, 813 A.2d 698 (Pa. 2002), Izurieta argues that this Court should

vacate his conviction and remand for a new trial because the judge who

presided at his trial is unavailable to review his weight of the evidence claim.

We disagree.

      Our Supreme Court has expressly rejected the remedy Izurieta seeks,

noting that

         a rule automatically requiring the grant of new trial for any
         properly preserved weight claim [where the actual trial
         judge is unavailable to rule upon the claim] . . . would be
         extremely disruptive to the integrity of verdicts and to the
         judicial process . . . [and would] reverse[] the presumption
         that credibility is for the fact-finder, make[] the
         extraordinary the ordinary, and wrongly intrude[] upon the
         jury function.

Armbruster v. Horowitz, 813 A.2d 698, 704 (Pa. 2002).                Therefore,

Izurieta is not automatically entitled to a new trial, and his weight of the

evidence claim must be reviewed.




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      In Armbruster, this Court reviewed the weight of the evidence claim

in the first instance, as no other trial court judge had ruled on the post-trial

motion. Id. at 700. Here, in contrast, Judge Ness reviewed Izurieta’s claim

in the first instance and determined that the jury’s verdict was not against

the weight of the evidence. Because we have a lower court judge’s opinion

as to the weight of the evidence, we must determine the appropriate

standard of review to apply to that opinion.

      Where the presiding trial judge has ruled on a weight of the evidence

claim, we apply a discretionary standard of review because “[a]n appellate

court, by its nature stands on a different plane than that of a trial court.

Whereas a trial court’s decision to grant or deny a new trial is aided by an

on-the-scene evaluation of the evidence, an appellate court’s review rests

solely upon the cold record.”    Id. at 703 (quotation omitted).      However,

where the actual trial judge has not ruled on a weight of the evidence claim,

a successor, trial-level judge and an appellate tribunal stand in the “same

position . . . in ruling on the claim; both would be confined to the ‘cold

record’ of the trial proceedings in conducting their review.” Id. at 704 n.5.

In other words, the successor judge’s opinion should not be afforded the

level of discretion given to a judge who presided at the trial in question. The

successor judge, in this case Judge Ness, did not have the opportunity to

observe the trial proceedings and he is therefore in no different position, in

terms of the “cold” record, than is this Court.       This is the position our

Supreme Court took in Armbruster in reviewing this Court’s analysis of a

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weight claim in the first instance. Id. at 705 (“Since the Superior Court was

in no better position than this Court to review the claim in the first instance,

our review is plenary.”).   Accordingly, we conclude that under the current

circumstances, an appellate court’s scope of review should be plenary. Our

role, therefore, is to review the entire record and determine whether the

successor judge correctly determined that the jury’s verdict was not against

the weight of the evidence.

      Courts apply the following standard to weight of the evidence

challenges:

            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 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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (internal

citations and quotations omitted).

      In Armbruster, our Supreme addressed the appropriate standard

when the court considering the motion must rely only on a cold record,

noting that such courts should do so




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         with an eye to the delicate balance that exists between the
         jury’s exclusive role in assessing credibility, and our
         longstanding recognition of the power in courts to allow
         justice another opportunity to prevail when a verdict
         nevertheless shocks the judicial conscience.

813 A.2d at 705.

      In supporting of his weight of the evidence claim, Izurieta primarily

argues that the victim was not credible and testified inconsistently.

However, “the determination of the credibility of a witness is within the

exclusive province of the jury.”   Commonwealth v. Crawford, 718 A.2d

768, 772 (Pa. 1998).     It was within the jury’s purview to consider the

victim’s testimony in light of her continued contact with Izurieta between

assaults, and the jury’s verdict indicates that it found the victim credible.

Further, the victim testified consistently about the 2012 and 2014 assaults.

That the victim remained in contact with Izurieta between the assaults does

not render her testimony about the assaults incredible.      As noted above,

Izurieta admitted penetrating the victim in the 2014 incident, the victim

testified that Izurieta digitally penetrated her in 2012, and the victim

testified that she was fearful, did not want this contact, and isolated herself

from Izurieta after the 2014 assault. In addition, the jury’s deadlock on five

of the charges, which notably included allegations of forcible compulsion,

indicates that the jury appropriately weighed and considered the evidence.

We therefore conclude that Judge Ness correctly determined that the jury’s

verdict was not against the weight of evidence.

      Judgment of sentence affirmed.


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     President Judge Emeritus Ford Elliott joins the opinion.

     Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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