J-S74036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES BENNETT                              :
                                               :
                       Appellant               :   No. 3636 EDA 2018

        Appeal from the Judgment of Sentence Entered October 10, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000232-2016


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 29, 2020

        Appellant James Bennett appeals from the judgment of sentence

entered by the Court of Common Pleas of Philadelphia County after Appellant

was convicted of indecent assault by forcible compulsion and harassment by

physical contact.1      Appellant challenges the sufficiency and weight of the

evidence and argues that the trial court abused its discretion in imposing his

sentence. After careful review, we affirm.

        The trial court aptly summarized the factual background of this case as

follows:

              The complainant was the girlfriend of Appellant’s son on
        September 6, 2015. She was at the Appellant’s house, where her
        boyfriend, and Appellant’s two daughters also lived.        The
        complainant was spending the night. At some point her boyfriend

____________________________________________


*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S.A. § 3126(a)(2) and § 2709(a)(1), respectively.
J-S74036-19


      fell asleep and the complainant was talking on her phone while
      lying on her stomach with her boyfriend’s two year old daughter.

           Appellant knocked on the door, which was opened by the
      complainant.   Appellant then proceeded to lean over the
      complainant and started rubbing the back of her thighs and
      moving his body against her.

            Appellant then got off the complainant and proceeded to ask
      the complainant to come downstairs with him. When she refused,
      he grabbed her arm, digging his nails int[o] her arm. Appellant
      then pulled her through the door.        As he pulled her, the
      complainant grabbed the child, thinking the presence of his two
      year old granddaughter would deter Appellant.

            Once downstairs, Appellant repeatedly commented on the
      complainant’s appearance, including her “butt.” Appellant sat
      down next to the complainant on the couch, rubbing up against
      her and touching her neck, thighs, and chest. Appellant grabbed
      [the] complainant’s face [and] kissed her. Appellant also rubbed
      against the complainant’s vagina outside her clothes. During this
      time, Appellant was holding the complainant by her arm. At some
      point, something fell, making a noise that caused one of
      Appellant’s children to come into the room, which enabled the
      complainant to escape Appellant.

            The next morning the complainant told her boyfriend and
      his aunts (Appellant’s sisters) what had happened, which resulted
      in a physical altercation between her boyfriend and Appellant.
      That morning the complainant also called her girlfriend and told
      her what had happened. Police were called to the location, where
      an officer arrived to find the complainant sitting on the steps
      crying and very distraught. She gave a statement to the police
      about 12 hours after it occurred.

Trial Court Opinion (“T.C.O.”), 3/7/19, at 1-2 (citations omitted).

      After being charged in connection with this assault, Appellant chose to

waive his right to a jury trial and proceeded to a bench trial. On June 29,

2018, the trial court convicted Appellant of the aforementioned charges. On

October 10, 2018, the trial court imposed two to five years’ incarceration on

the indecent assault conviction, but imposed no further penalty on the

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harassment conviction. Appellant filed a timely post-sentence motion, which

the trial court subsequently denied.

      Near the end of the expiration of the thirty-day time period in which

Appellant was to file a notice of appeal, his trial counsel filed a motion to

withdraw. Appellant was thereafter appointed new counsel, who filed a Post-

Conviction Relief Act (PCRA) petition seeking the reinstatement of Appellant’s

direct appeal rights. The lower court reinstated Appellant’s right to file a notice

of appeal nunc pro tunc. Appellant filed this timely appeal.

      Appellant raises the following issues for our review:

      I.       Whether the evidence was sufficient to sustain the verdict.

      II.      Whether the court abused its discretion and committed
               reversible error when the court denied [Appellant’s] post-
               sentence motion, which challenged the weight of the
               evidence.

      III.     Whether the trial court abused its discretion and committed
               reversible error when the court denied [Appellant’s] post-
               sentence motion, which challenged the discretionary
               aspects of sentence.

   Appellant’s Brief, at 11.

               We first evaluate Appellant’s challenge to the sufficiency of the

   evidence supporting his convictions. Our standard of review is as follows:

            The standard we apply in reviewing the sufficiency of the
            evidence is whether viewing all the evidence admitted at
            trial in the light most favorable to the verdict winner, there
            is sufficient evidence to enable the fact-finder to find every
            element of the crime beyond a reasonable doubt. In
            applying the above test, we may not weigh the evidence and
            substitute our judgment for [that of] the fact-finder. In
            addition, we note that the facts and circumstances
            established by the Commonwealth need not preclude every

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         possibility of innocence. Any doubts regarding a defendant's
         guilt may be resolved by the fact-finder unless the evidence
         is so weak and inconclusive that as a matter of law no
         probability of fact may be drawn from the combined
         circumstances. The Commonwealth may sustain its burden
         of proving every element of the crime beyond a reasonable
         doubt by means of wholly circumstantial evidence.
         Moreover, in applying the above test, the entire record must
         be evaluated and all evidence actually received must be
         considered. Finally, the trier of fact while passing upon the
         credibility of witnesses and the weight of the evidence
         produced, is free to believe all, part or none of the evidence.

      Commonwealth v. Leaner, 202 A.3d 749, 768, (Pa.Super.
      2019) (citation omitted). To reiterate, the jury, as the trier of
      fact—while passing on the credibility of the witnesses and the
      weight of the evidence—is free to believe all, part, or none of the
      evidence. Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa.
      Super. 2014) (citation omitted). In conducting review, the
      appellate court may not weigh the evidence and substitute its
      judgment for the fact-finder. Id. at 39-40.

Commonwealth v. Baumgartner, 206 A.3d 11, 14–15 (Pa.Super. 2019).

      Appellant does not claim the prosecution failed to prove any particular

element of the offenses of which he was convicted. Instead, Appellant claims

the complainant did not corroborate her testimony by presenting witnesses to

testify that she had reported the assault to them and faults the complainant

for waiting twelve hours to report the assault to the police.

      Despite Appellant’s claim that he could not be convicted of sexual

offenses without corroboration of the complainant’s allegations, “[t]his Court

has long-recognized that the uncorroborated testimony of a sexual assault

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

despite contrary evidence from defense witnesses.” Commonwealth v. Diaz,

152 A.3d 1040, 1047 (Pa.Super. 2016) (quoting Commonwealth v.

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Charlton, 902 A.2d 554, 562 (PaSuper. 2006)).                 After hearing the

complainant’s account that Appellant had sexually assaulted her, the trial

court, as fact finder, was free to find her testimony credible.

      Appellant focuses his argument on the credibility of the complainant and

suggests her testimony was wholly unreliable pursuant to Commonwealth

v. Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993).           In reviewing a similar

claim, we noted the following:

      While challenges based on inconsistent testimony generally
      implicate the weight of the evidence, in Karkaria, our Supreme
      Court observed the following with respect to testimony and
      sufficiency of the evidence.

         Normally, the evidence is deemed to be sufficient where
         there is testimony offered to establish each material
         element of the crime charged and to prove commission of
         the offense by the accused beyond a reasonable doubt. The
         question of credibility is left to the [finder of fact] and the
         verdict will not be disturbed if the [finder of fact] determines
         the evidence is worthy of belief.

         We have, however, made exception to the general rule that
         the [finder of fact] is the sole arbiter of the facts where the
         testimony is so inherently unreliable that a verdict based
         upon it could amount to no more than surmise or
         conjecture.

      Karkaria, 625 A.2d at 1170.

Commonwealth v. Smith, 181 A.3d 1168, 1186 (Pa.Super. 2018), appeal

denied, 193 A.3d 344 (Pa. 2018).

      Appellant does not identify any instances in which the complainant

testified inconsistently, but merely argues that the complainant’s testimony

was unreliable due to her twelve-hour delay in reporting the abuse. However,



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this fact was to be weighed by the fact finder in assessing the complainant’s

credibility. Smith, supra. Appellant is not entitled to relief under Karkaria

as Appellant has not shown that the complainant’s testimony was so

inconsistent as to be completely irreconcilable.

      To the extent that Appellant asks this Court to find the complainant’s

testimony was not credible, Appellant is raising a challenge to the weight of

the evidence, not its sufficiency. Our standard of review is as follows:

         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.
         Commonwealth v. Johnson, 542 Pa. 384, 394, 668 A.2d
         97, 101 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90,
         136 L.Ed.2d 46 (1996). An appellate court cannot substitute
         its judgment for that of the finder of fact. Commonwealth
         v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206
         (1982). Thus, we may only reverse the lower court's verdict
         if it is so contrary to the evidence as to shock one's sense
         of justice. Commonwealth v. Hawkins, 549 Pa. 352, 368,
         701 A.2d 492, 500 (1997), cert. denied, 523 U.S. 1083, 118
         S.Ct. 1535, 140 L.Ed.2d 685 (1998).

      Commonwealth v. Small, 559 Pa. 423, 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. Tharp, 830 A.2d 519, 528 (Pa.2003)
      (citations omitted).

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003). A weight of evidence challenge “concedes that sufficient evidence

exists to sustain the verdict but questions which evidence is to be believed.”




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Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa.Super. 2014)

(citation and quotation marks omitted).

      Again, Appellant asks this Court to reassess the complainant’s credibility

and reweigh the evidence presented at trial.    As it was exclusively within the

factfinder’s province to weigh these matters, the trial court was free to believe

the complainant’s testimony. Champney, supra. As such, we conclude that

the trial court did not abuse its discretion in denying Appellant’s weight of the

evidence claim.

      Lastly, Appellant claims that the trial court abused its discretion in

imposing his sentence. The following principles apply to our consideration of

Appellant’s challenge to the discretionary aspects of his sentence:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to an appeal as of right. Prior to reaching the
      merits of a discretionary sentencing issue[, w]e conduct a four-
      part analysis to determine: (1) whether appellant has filed a
      timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
      the issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)
      whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
      (4) whether there is a substantial question that the sentence
      appealed from is not appropriate under the Sentencing Code, 42
      Pa.C.S.A. § 9781(b).

      When appealing the discretionary aspects of a sentence, an
      appellant must invoke the appellate court’s jurisdiction by
      including in his brief a separate concise statement demonstrating
      that there is a substantial question as to the appropriateness of
      the sentence under the Sentencing Code. The requirement that an
      appellant separately set forth the reasons relied upon for
      allowance of appeal furthers the purpose evident in the
      Sentencing Code as a whole of limiting any challenges to the trial
      court’s evaluation of the multitude of factors impinging on the
      sentencing decision to exceptional cases.

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Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)

(quotation marks, some citations, and emphasis omitted).

      In this case, Appellant has: (1) timely filed a notice of appeal, (2)

preserved the instant issue in a post-sentence motion, and (3) included a Rule

2119(f) statement in his brief. We turn to the next requirement: whether

Appellant raised a substantial question meriting our discretionary review.

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.

Id. (quotation marks and some citations omitted).

      Appellant claims that the trial court failed to properly account for all the

factors set forth in 42 Pa.C.S.A. § 9721, as the trial court focused solely on

the protection of the public and failed to consider the gravity of the offense or

Appellant’s rehabilitative needs. This Court has held that “an averment that

the trial court failed to consider relevant sentencing criteria, including the

protection of the public, the gravity of the underlying offense and the

rehabilitative needs of Appellant, as 42 Pa.C.S.[A.] § 9721(b) requires,

presents a substantial question” for our review. Commonwealth v. Derry,

150 A.3d 987, 992 (Pa.Super. 2016) (citation omitted). We may proceed to

review the merits of Appellant’s sentencing challenge.

      In this case, as Appellant’s prior record score rendered him a repeat

felony offender (RFEL) and his indecent assault conviction carried an offense


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gravity score (OGS) of 5, the guidelines provided a standard range of 24-36

months with an aggravated/mitigated range of 3 months. Notes of Testimony

(“N.T.”), Sentencing, 10/10/18, at 3-4; 204 Pa.Code §§ 303.4, 303.15,

303.16(a). As such, Appellant’s two-year minimum sentence for his indecent

assault conviction falls in the standard range of the sentencing guidelines.

      When a defendant is given a standard range sentence, we review the

sentence to determine if the trial court’s application of the guidelines would

be “clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2).           In reviewing a

sentence, an appellate court shall have regard for: (1) the nature and

circumstances of the offense and the history and characteristics of the

defendant; (2) the opportunity of the sentencing court to observe the

defendant, including any presentence investigation; (3) the findings upon

which the sentence was based; and (4) the guidelines promulgated by the

commission. 42 Pa.C.S.A. § 9781(d)(1)–(4).

      Moreover, our Legislature has set forth general sentencing standards

that require the sentencing court to impose a sentence that is consistent with

protection of the public, the gravity of the offense in relation to the impact on

the victim and the community, and the rehabilitative needs of the defendant.

Commonwealth v. Walls, 592 Pa. 557, 569, 926 A.2d 957, 964 (2007)

(citing 42 Pa.C.S.A. § 9721(b)).

      We find that the trial court did not abuse its discretion in imposing a

standard range sentence in this case after it had considered the applicable

pre-sentence investigation report (PSI). “Where the sentencing court had the

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benefit of a presentence investigation report (“PSI”), we can assume the

sentencing court was aware of relevant information regarding the defendant's

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010)

(citations omitted). Further, this Court has emphasized “where a sentence is

within the standard range of the guidelines, Pennsylvania law views the

sentence as appropriate under the Sentencing Code.” Id.

     Moreover, the trial court emphasized its concern for the fact that this

was Appellant’s third separate conviction for a sexual misconduct offense as

Appellant had been previously convicted of statutory rape and attempted rape

in the course of a burglary. N.T. at 8-9, PSI, at 2. The trial court expressly

stated at sentencing hearing:

           I’ve considered the arguments of both counsel, the
     presentence report, the sentencing guidelines, the mental health
     evaluation report, testimony from [Appellant’s] girlfriend, as well
     as [Appellant’s] allocution as well as the evidence that the Court
     heard in this case. [Appellant’s] record as a whole is concerning
     because of the way it relates to this case. There is a need to
     protect society. That need persists despite [Appellant] having
     been accountable for the same type of offense in the past in no
     small way.

           This Court is concerned about the repeated harms of the
     same nature demonstrating that [Appellant] is un[deterred] by
     law enforcement. Notwithstanding, for what is worth, I accept
     [Appellant’s] words of remorse today. Time will only tell if that
     lasts. I only have two and a half and five to work with, in any
     event, which happens to be within the guidelines in any event.
     But because I credit the words of remorse, the sentence on
     indecent assault will be two to five years’ incarceration. No further
     penalty on the harassment.


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N.T. at 12-13.

          Based on our review of the record, we cannot conclude that the trial

court’s sentence was “clearly unreasonable” and find this issue merits no

relief.

          For the foregoing reasons, we affirm the judgment of sentence.

          Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2020




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