J-S26010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL DAVID PEIFER                       :
                                               :
                       Appellant               :   No. 1061 WDA 2019

       Appeal from the Judgment of Sentence Entered February 26, 2019
     In the Court of Common Pleas of Somerset County Criminal Division at
                       No(s): CP-56-CR-0000151-2017


BEFORE:      MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 08, 2020

        Michael David Peifer (Appellant) appeals from the judgment of sentence

imposed following his convictions of indecent assault of a person less than 13

years of age and corruption of minors.1 We affirm.

        The trial court summarized the facts and history:

              On October 11, 2016, [Appellant] was charged with two
        counts of aggravated indecent assault-person less than 13 years
        of age; two counts of indecent assault-person less than 13 years
        of age; and two counts [of] corruption of minors.               The
        Commonwealth charged [Appellant] with two counts of each
        offense based upon its allegation that [Appellant] assaulted a [six-
        year-old] child, [Victim], on two separate occasions[:] once in
        [Appellant’s] swimming pool and once in his living room.

              A jury trial was held on October 15, 2018[.] The jury
        acquitted [Appellant] of the aggravated [indecent] assault
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3126(a)(7) and 6301(a)(1)(ii).
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      charges, but convicted him of the remaining charges.        On
      February 26, 2019, this [c]ourt sentenced [Appellant] to an
      aggregate sentence of 9 to 18 months’ incarceration followed by
      5 years’ supervised probation.

             On March 5, 2019, [Appellant] filed a post-sentence motion
      for judgment of acquittal based upon the sufficiency of the
      evidence and motions for a new trial based upon the weight of the
      evidence and ineffective assistance of counsel. The motions were
      granted in part and denied in part. Specifically, [the trial court]
      held that the Commonwealth failed to present sufficient evidence
      to enable a jury to conclude beyond a reasonable doubt that
      [Appellant] assaulted [the Victim] in his living room. Accordingly,
      [the trial court] vacated the sentences relating to the living room
      incident (i.e., one count of indecent assault and one count of
      corruption of minors). [The court] denied [Appellant’s] motion for
      a new trial based upon the weight of the evidence, after finding
      that the jury’s verdict did not shock our sense of justice. [The
      court] also denied the motion for a new trial based upon trial
      counsel’s alleged ineffectiveness. [The trial court] found that the
      ineffective assistance claim did not warrant consideration and
      relief on direct review under the limited exception recognized in
      Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2017).
      Accordingly, the convictions arising from the swimming pool
      incident remained in effect. Because [Appellant’s] sentences
      arising from the swimming pool incident were to be served
      concurrently with the sentences arising from the living room
      incident, [Appellant’s] sentence remained 9 to 18 months’
      incarceration, followed by 5 years’ supervised probation.

            On July 15, 2019, [Appellant] filed a [notice of appeal],
      which was followed, on August 14, 2019, by the filing of a concise
      statement of errors complained of on appeal. . . .

Trial Court Opinion, 10/23/19, at 1-3 (some citations and footnotes omitted).

The trial court filed its 1925(a) opinion on October 23, 2019.

      Appellant presents three issues for review:

      [1.] WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
      CONVICTIONS OF INDECENT ASSAULT AND CORRUPTION OF
      MINORS REGARDING AN INCIDENT THAT ALLEGEDLY OCCURRED
      ON AUGUST, 10, 2016, INSOFAR AS THIS WAS AN EXTREME

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      SITUATION WHERE “THE TESTIMONY PRESENTED TO THE JURY
      WAS SO UNRELIABLE AND CONTRADICTORY THAT THE JURY’S
      CHOICE TO BELIEVE THAT EVIDENCE WAS AN EXERCISE OF PURE
      CONJECTURE?”

      [2.] ALTERNATIVELY, DID THE TRIAL COURT ABUSE ITS
      DISCRETION IN DENYING APPELLANT’S POST SENTENCE MOTION
      THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE
      EVIDENCE?

      [3.] SHOULD [APPELLANT] BE SUBJECT TO THE REGISTRATION
      REQUIREMENTS AND RESTRICTIONS UNDER ACT 10 OF 2018
      INSOFAR AS THE ACT IS PUNITIVE, UNLAWFUL AND
      UNCONSTITUTIONAL BECAUSE IT REQUIRES A DEFENDANT TO
      REGISTER FOR LIFE FOR A FIRST DEGREE MISDEMEANOR THAT
      CARRIES A MAXIMUM PENALTY OF FIVE YEARS IMPRISONMENT,
      IT IS BASED SOLELY ON THE POSSIBILITY OF FUTURE
      DANGEROUSNESS, AND IT IS MANIFESTLY IN EXCESS OF WHAT
      IS NEEDED TO ENSURE COMPLIANCE WITH THE LAW?

Appellant’s Brief at 5.

      In his first issue, Appellant purports to challenge the sufficiency of the

evidence.   See Appellant’s Brief at 17-29.     In arguing the evidence was

insufficient, Appellant solely challenges the credibility of Victim’s testimony.

Id. at 18 (“[Victim] provided few details, and when she did offer them, she

was uncertain, vague, and contradicted herself.”); at 19 (“Throughout her

direct and redirect examinations, it was evident that [Victim] was trying to

give the answers that she believed the prosecutor wanted her to give -

answers that, in fact, she was frequently prompted to give.”); at 23

(“[Victim’s] credibility was crucial to the resolution of this case.”); id.

(“[Victim], whom her mom conceded had lied in the past, had a number of

reasons to ‘stretch the truth,’ if not completely fabricate what occurred.”).




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       Appellant’s challenge goes to the weight, not the sufficiency, of the

evidence. See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014)

(“An argument regarding the credibility of a witness’[] testimony goes to the

weight    of   the    evidence,     not    the   sufficiency   of   the   evidence.”);

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(“variances in testimony go to the credibility of the witnesses and not the

sufficiency of the evidence”).        Our Supreme Court has confirmed that an

“appellant’s challenge to the sufficiency of the evidence must fail” where an

appellant phrases an issue as a challenge to the sufficiency of the evidence,

but the argument that appellant provides goes to the weight of the evidence.

Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999).                      Accordingly,

Appellant’s sufficiency claim lacks merit.

       In his next claim, Appellant properly challenges the weight of the

evidence supporting his convictions for indecent assault and corruption of

minors.2 We have explained:

       When 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. Generally, 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. 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

____________________________________________


2 Appellant preserved this issue in compliance with Pa.R.Crim.P. 607 by raising
it with the trial court in a post-sentence motion. Appellant’s Post-Sentence
Motion, 3/5/19, at 2-4.

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      whether the trial court palpably abused its discretion in ruling on
      the weight claim.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations

omitted). “[I]t is for the fact-finder to make credibility determinations, and

the finder of fact may believe all, part, or none of a witness’s testimony.” Id.

(citation omitted).   Therefore, “[a]n 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, as the trial judge is in the best positon to view the evidence

presented.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super.

2006) (citation omitted). To allow an appellant “to prevail on a challenge to

the weight of the evidence, the evidence must be so tenuous, vague and

uncertain   that   the   verdict   shocks   the   conscience   of   the   court.”

Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2016) (citation

omitted).

      Appellant argues the trial court erred in denying his motion for a new

trial based upon the weight of the evidence because Victim’s “testimony in

this case preponderates heavily against the verdict[,] . . . such that a serious

miscarriage of justice occurred.” Appellant’s Brief at 31.

      The trial court explained:

             [Appellant] first asserts that we erred in denying the motion
      for a new trial because “the Commonwealth’s evidence was of low
      quality, tenuous, vague and uncertain as to make the verdict of
      guilty pure conjecture.” [Appellant’s] Concise Statement at 3.
      Specifically, [Appellant] asserts that [the Victim’s] history of

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     “touching herself” and knowledge of her mother’s disapproval
     rendered [the Victim’s] testimony and report to her mother on the
     night of the incident unreliable because she had a motive to
     fabricate the claims against [Appellant]. Additionally, [Appellant]
     asserts that, because [Victim] aims at pleasing others and is
     susceptible to suggestibility, “it is highly probable that she
     exaggerated” the incident. Id. at 4. Last, [Appellant] argues
     [that Victim’s] description of the pool incident could lead to the
     conclusion that [Appellant] was merely helping [Victim] either
     “get out of the pool, or flipping her over during horseplay.” Id.
     In essence, [Appellant] disagrees with the jury’s credibility
     determination and asserts that it should have adopted an
     alternative interpretation of [Victim’s] testimony.

           “The weight of the evidence is exclusively for the finder of
     fact, which is free to believe all, part, or none of the evidence.”
     Commonwealth v. DeJesus, [] 860 A.2d 102, 107 ([Pa.] 2004).
     Thus, a trial court may grant a defendant a new trial based upon
     a weight of the evidence claim only if “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, 1055 (Pa. 2013). “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.”
     [Id.] at 1055.

           Further, while the standard controlling our review of the
     jury’s verdict already affords it great deference, the jury’s
     credibility determinations are particularly unassailable. A jury is
     the ultimate fact-finder, and, as such, it is “the sole arbiter of
     credibility of each of the witnesses.” Commonwealth v. Jacoby,
     170 A.3d 1065, 1080 (Pa. 2017). Accordingly, “a jury is entitled
     to resolve any inconsistencies in the Commonwealth’s evidence in
     the manner that it sees fit.” Id.

           In this case, [Appellant’s] challenge to the jury’s verdict
     rests upon his assertion that [Victim’s] age, history of touching
     her own genitals, and suggestibility rendered her testimony
     incredible. [Appellant] posits that the jury should have concluded
     from this evidence that [Victim] fabricated her account to avoid
     reprimand and please others. This [c]ourt agrees that certain
     parts of the evidence could have led the jury to find that [Victim]
     fabricated her account. However, we disagree that the jury

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     necessarily should have made such a finding since, in our
     estimation, there was other evidence that was presented that just
     as readily lent itself to a finding that [Victim] was truthful.

            The testimonies from Trooper [Donald T.] Neisner, [Victim’s
     mother], and Victim, in addition to [Victim’s] recorded statement
     during the forensic interview, were largely consistent. On the
     night of the incident, at both hospitals, and during the forensic
     interview, [Victim] consistently reported that [Appellant] touched
     her genitalia in and outside of her bathing suit. [Appellant’s]
     testimony at trial did not significantly depart from this account,
     other than adding that [Appellant’s] hand was also inside of her
     genitalia. When asked whether [Victim] would lie to please
     others, [Victim’s mother] answered that [Victim] would not do so.
     Additionally, [Victim] testified that her mother did not instruct her
     to testify in a particular manner, only to tell the truth. The mere
     presence of a motivation to lie was not of such great weight that
     it required the jury to conclude that [Victim] actually fabricated
     the assault.     Indeed, [Appellant’s] consistent reporting and
     testimony as to her truthfulness support the jury’s decision to
     forgo [Appellant’s] characterizations of [Victim’s] allegations and
     testimony. Thus, the jury acted squarely within its prerogative to
     find the testimonies credible and resolve any inconsistencies as it
     did.

            Because the jury acted as the fact-finder, we were not
     entitled to disturb its determinations absent extraordinary
     circumstances. After reviewing all evidence according to the
     respective roles of a jury and a court, we could not conclude that
     the jury’s verdict was against the weight of the evidence. The
     jury’s credibility determinations, inferences, and resolutions of
     incongruities in the evidence were reasonable. Consequently, its
     verdict did not shock our sense of justice.

Trial Court Opinion, 10/23/19, at 8-10 (emphasis in original, citations

omitted).

     We agree with the trial court. The Victim testified at trial that while in

Appellant’s swimming pool, Appellant stuck his hand down the bottom portion

of her swimsuit and put his hand inside her ”girl parts.” N.T., 10/15/18, at


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92, 94-95. The Victim’s mother testified that on the night of August 10, 2016,

after returning home from swimming at Appellant’s house, the Victim told her

that Appellant touched her “privates, in her girl parts” while they were

swimming. Id. at 63-65. The investigating police officer, Trooper Neisner,

testified that during the forensic interview conducted of the Victim, she

reported that Appellant rubbed her “girl parts” with his hand under her

clothing while in Appellant’s swimming pool. Id. at 54-55.

      It was within the sole province of the jury to determine the weight of

the evidence, including resolving conflicts in the testimony and credibility

questions. See Jacoby, 170 A.3d at 1080. “[T]he evidence [was not] so

tenuous, vague and uncertain that the verdict shocks the [collective]

conscience of the [C]ourt.”   Talbert, 129 A.3d at 545 (citation omitted).

Therefore, Appellant’s second claim does not merit relief.

      In his third claim, Appellant argues that his lifetime sex offender

registration requirement under Pennsylvania’s Sexual Offender Registration

and Notification Act (SORNA) is an illegal sentence because it constitutes

criminal punishment, and consequently, it exceeds his sentence beyond the

lawful maximum sentence for indecent assault of a person less than 13 years

of age. Appellant’s Brief at 32-34. “Because this issue presents a question of

law, our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Horning, 193 A.3d 411, 414 (Pa. Super. 2018).

      “The Pennsylvania General Assembly passed [SORNA] as Act 111 of


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2011, signed December 20, 2011. In so doing, it provided for the expiration

of prior registration requirements, commonly referred to as Megan’s Law, 42

Pa.C.S.A §§ 9791–9799.9, as of December 20, 2012, and for the effectiveness

of SORNA on the same date.” In re J.B., 107 A.3d 1, 3 (Pa. 2014). On July

19, 2017, the Pennsylvania Supreme Court issued its Opinion Announcing the

Judgment of the Court in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017), which found SORNA to be punitive in nature and held that retroactive

application of the registration and reporting requirements of SORNA to

criminal defendants violated the ex post facto clauses of the United States and

Pennsylvania Constitutions.    Id. at 1223; see also Commonwealth v.

Wood, 208 A.3d 131, 138 (Pa. Super. 2019) (en banc) (“[A]pplication of

SORNA to sexual offenders for offenses committed before its effective date

violates the ex post facto clauses of the United States and Pennsylvania

Constitution.”).

      Following Muniz, the General Assembly passed legislation that

attempted to cure the constitutional defects of SORNA.         Regarding this

legislation, we have explained:

         In response to our Supreme Court’s decision in Muniz . . . ,
      the Pennsylvania General Assembly passed Acts 10 and 29 of
      2018 [(SORNA II)]. The express purpose of these legislative
      enactments was, inter alia, to “[p]rotect the safety and general
      welfare of the people of this Commonwealth by providing for
      registration, community notification and access to information
      regarding sexually violent predators and offenders who are about
      to be released from custody and will live in or near their
      neighborhood[,]” and to cure SORNA’s constitutional defects by
      “address[ing] [Muniz].” See 42 Pa.C.S.A. § 9799.51(b)(1),(4).

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         Specifically, our General Assembly modified Subchapter H’s
      registration requirements for those offenders convicted of
      committing offenses that occurred on or after SORNA’s effective
      date of December 20, 2012. The General Assembly also added
      Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets
      forth the registration requirements that apply to all offenders
      convicted of committing offenses on or after Megan’s Law I’s
      effective date (April 22, 1996), but prior to SORNA’s effective
      date.

Commonwealth v. Bricker, 198 A.3d 371, 375-76 (Pa. Super. 2018).

      In this case, the offense date for the actions underlying Appellant’s

indecent assault conviction was August 10, 2016.        Thus, the trial court

appropriately ordered Appellant to register as a Tier III sex offender for life

under Subchapter H of SORNA II.        See 42 Pa.C.S.A. §§ 9799.14(d)(8),

9799.15(a)(3).

      Appellant’s indecent assault conviction was a first-degree misdemeanor

for which the maximum sentence is five years. See 18 Pa.C.S.A. § 1104(1).

As this Court has recently explained, “a sentencing requirement for a

defendant to register as a sexual offender for a period of time exceeding the

lawful statutory maximum for his offense is not illegal.” Commonwealth v.

Martin, 205 A.3d 1247, 1250 (Pa. Super. 2019); Bricker, 198 A.3d at 376-

77. The only difference between Martin and Bricker and the instant matter

is that the appellants in Martin and Bricker were convicted of felonies, as

opposed to a misdemeanor. As the analysis of those cases is dispositive here,

we quote it in detail:




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        With regard to Appellant’s assertion that Muniz held SORNA’s
     registration requirements constituted punishment, and, therefore,
     Subsection H cannot be imposed upon him as [it] exceeds the
     lawful statutory maximum for his offense which is seven (7) years,
     we observe that this Court recently held that SORNA’s registration
     requirements are not governed by the statutory maximum
     sentences set forth in Chapter 11 of the Crimes Code. See
     Commonwealth v. Strafford, 194 A.3d 168, 172-73 (Pa. Super.
     2018). Observing this issue appeared to be one of first impression
     post-Muniz, we reasoned as follows:

          Appellant correctly observes that the Muniz Court found
       that the registration requirement mandated by SORNA is
       punitive. See Muniz, supra at 1218[.] We, thus, begin
       our analysis of Appellant’s challenge with a review of various
       statutes and legal principles relating to punishments.

          Our Supreme Court has explained the well-settled
       principle that the General Assembly “has the exclusive
       power to pronounce which acts are crimes, to define crimes,
       and to fix the punishment for all crimes. The legislature also
       has the sole power to classify crimes[.]” Commonwealth
       v. Eisenberg, 98 A.3d 1268, 1283 ([Pa.] 2014) (citation
       and quotation omitted).

          Our General Assembly has authorized courts to impose
       specific punishments when fashioning a sentence, and
       specified maximum terms and amounts of those
       punishments. These categories of punishment include (1)
       partial or total confinement, (2) probation, (3) state or
       county intermediate punishment, (4) a determination of
       guilt without further penalty, and (5) a fine. 42 Pa.C.S.A. §
       9721.

          With respect to the punishment of incarceration, 18
       Pa.C.S.A. § 1103 governs the maximum authorized
       sentence of imprisonment for felony convictions. By a
       separate statute, these maximum allowable terms also
       apply to probationary sentences, a different category of
       punishment authorized by the General Assembly. In 42
       Pa.C.S.A. § 9754(a), the legislature directed that “[i]n
       imposing an order of probation the court shall specify at the
       time of sentencing the length of any term during which the
       defendant is to be supervised, which term may not exceed

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         the maximum term for which the defendant could be
         confined, and the authority that shall conduct the
         supervision.” Id. (emphasis added). Thus, the legislature
         explicitly connected the authorized punishments of
         incarceration and probation by statute.

             However, most sentencing alternatives are not tied to the
         maximum authorized term of incarceration. For example,
         the legislature has authorized courts to include in sentences
         the requirement that a defendant pay a fine or restitution.
         These categories of punishment are not limited by the
         maximum period of incarceration; rather, the legislature set
         different maximum authorized amounts of punishment a
         court may impose as part of its sentence. See, e.g., 18
         Pa.C.S.A. § 1101 (defining maximum fines); 18 Pa.C.S.A. §
         1106 (providing statutory scheme for restitution for injuries
         to person or property).

             In SORNA the legislature authorized courts to include
         periods of registration as part of a sentence. Similar to the
         treatment of the payment of fines or restitution, the
         legislature did not tie the period of registration to the length
         of incarceration. See 42 Pa.C.S.A. § 9799.14 (“Sexual
         offenses and tier system”); 42 Pa.C.S.A. § 9799.15 (“Period
         of registration”). SORNA’s registration provisions are not
         constrained by Section 1103. Rather, SORNA’s registration
         requirements are an authorized punitive measure separate
         and apart from Appellant’s term of incarceration. The
         legislature did not limit the authority of a court to impose
         registration requirements only within the maximum
         allowable term of incarceration; in fact, the legislature
         mandated the opposite and required courts to impose
         registration requirements in excess of the maximum
         allowable term of incarceration.

Martin, 205 A.3d at 1251-52 (Pa. Super. 2019) (quoting Bricker, 198 A.3d

at 376-77).

      It is well-settled that “[t]his Court is bound by existing precedent under

the doctrine of stare decisis and continues to follow controlling precedent as

long as the decision has not been overturned by our Supreme Court.”

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Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super. 2014). Based on

our decisions in Martin and Bricker, we conclude that Appellant’s lifetime

registration requirement under SORNA II does not constitute an illegal

sentence. Accordingly, Appellant’s third claim fails.

      For the forgoing reasons, Appellant’s appeal is without merit and we

affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2020




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