J-S54028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROY GROVER BARNHART

                            Appellant                  No. 771 MDA 2014


          Appeal from the Judgment of Sentence December 13, 2013
                In the Court of Common Pleas of Fulton County
             Criminal Division at No(s): CP-29-CR-0000081-2013


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                         FILED SEPTEMBER 16, 2014

        Appellant, Roy Grover Barnhart, appeals from the December 13, 2013



imposed following his conviction for indecent assault of a person less than 13

years of age and corruption of minors.1 After careful review, we affirm.

        The trial court has set forth the relevant factual and procedural history

of this case as follows.

                    On May 20, 2013, the Commonwealth filed a
              Criminal information against [Appellant], charging
              [Appellant] with nineteen counts of Indecent Assault
              on a Person less than 13 (18 Pa.C.S.A.
              § 3126(A)(7))(M1), one count of Indecent Assault on
              a   Person     less    than   13    (18    Pa.C.S.A.
              § 3126(A)(7))(F3) (continuing course of conduct),
____________________________________________


1
    18 Pa.C.S.A. §§ 3126(a)(7) and 6301(a)(1), respectively.
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          and 20 counts of Corruption of Minors (18 Pa.C.S.A.
          § 6301(A)(1)(M1),    alleging    that    [Appellant]
          repeatedly fondled a young girl in his home during
          the years 2004-2007, while [Appellant] and his wife

          trial, September 13, 2013, those charges were
          ultimately consolidated for consideration by the jury
          into a single potential felony count of Indecent
          Assault on a Person less than 13[,] and one count of
          Corruption of Minors.

                 The Commonwealth presented two witnesses:
          the victim, J.L., and Trooper Timothy Lear, who
          investigated the case. [J.L.], age 15, testified that,
          when she was in grades K-3, [Appellant] and his wife
          babysat J.L. and her siblings each day after school
          while her mother worked. The babysitting occurred
          at the home of [Appellant] and his wife first in a
          green house on Peach Orchard Road and then at a
          home in Gerald Circle Trailer Park. J.L. and her
          sisters had their own room in the Barnhart home and
          slept there. She was approximately five through
          nine years of age at the time.

               J.L. testified that when she was five or six,
          [Appellant] began fondling her genital area
          underneath her clothing.    The fondling occurred
          many times, at least 20-30, over the course of
          several years, and always in the same manner.

          for misbehaving, and, as a consequence, she would


          designed for young children, with a green cover


          he would get up and wash his hands, and J.L. would
          be allowed to return to playing.

               J.L. did not report the inappropriate touching
          to anyone at the time. [Appellant] told her not to

          J.L. explained that, at her age, she was not really
          sure what was going on, and she felt too scared and

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          abuse of J.L. eventually came to light in January of
          2013, when J.L. spoke with her school guidance
          counselor about depression she was experiencing.
          The Guidance Counselor then made a report to
          Children and Youth, and the matter was eventually
          referred to Trooper Timothy Lear, a criminal
          investigator with the Pennsylvania State Police.

                Trooper Lear testified for the sole purpose of
          establishing the age of [Appellant] at the time of the
          offenses. He testified that, during the time period of
          the alleged abuse of [] J.L., [Appellant] would have
          been between the ages of 62 and 65.

                [Appellant] did not present testimony or
          evidence. Based upon the testimony of the two
          Commonwealth witnesses, the jury returned verdicts
          of guilty on both the felony charge of Indecent
          Assault on a Person less than 13 (18 Pa.C.S.A.
          § 3126(A)(7)) (F3) (continuing course of conduct),
          and one count of Corruption of Minors (18 Pa.C.S.A.
          § 6301(A)(1)(M1).    The [trial c]ourt ordered a
          presentence report including SOAB Assessment and
          scheduled sentencing for November 8, 2013. In
          order to give the SOAB time to complete its
          assessment, sentencing was continued, by Order
          dated October 29, 2013, until December 13, 2013.

                 On December 9, 2013, [Appellant] filed a
          Motion to Continue Sentencing, which th[e trial
          c]ourt denied. On December 13, 2013, th[e trial
          c]ourt sentenced [Appellant] as follows: On Count 1,
          Indecent Assault on a Person less than 13 (18
          Pa.C.S.A. § 3128(A)(7)) (F3) (continuing course of
          conduct), the [trial c]ourt sentenced [Appellant] to 9
          to 60 months in a state correctional institution
          (including a $250 fine and the costs of prosecution.)
          On Count 2, Corruption of Minors (18 Pa.C.S.A.
          § 6301(A)(1) (M1)1 the [trial c]ourt sentenced
          [Appellant] to 9 to 48 months in a state correctional
          institution (including a $250 fine and the costs of
          prosecution), with the sentence in Count 2 to be


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              served consecutively to the sentence imposed on
              Count 1.1

              1
                 A clerical error on the sentencing form
              inadvertently indicating that the sentence in Count 2
              was to run consecutive to the sentence imposed in
              Count 2 was corrected by an Order Correcting
              Sentence entered on January 7, 2014.

Trial Court Opinion, 4/4/14, at 1-4 (citations omitted; footnote in original).

       On December 13, 2013, the same day as sentencing, Appellant filed a

timely post-sentence motion averring the verdict was against the weight of

the evidence.       See generally Pa.R.Crim.P. 607(A)(3).       The trial court

ordered both parties to submit briefs, and after review of said briefs, on April

                                                 -sentence motion. On May 2,

2014, Appellant filed a timely notice of appeal. On May 6, 2014, the trial



post-sentence motion for the purposes of Pennsylvania Rule of Appellate

Procedure 1925(a).2

       On appeal, Appellant raises the following issue for our review.

              1.
                     assault child less than 13 years old and
                     corruption of minors was against the weight of

                     story at trial was inconsistent from       her
                     testimony at the preliminary hearing[?]


____________________________________________


2
  The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Rule 1925(b).



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                                                  true weight of the evidence

challenge concedes that sufficient evidence exists to sustain the verdict but

                                                  Commonwealth v. Lewis,

911 A.2d 558, 566 (Pa. Super. 2006) (citation omitted).        Where the trial

court h

the underlying question of whether the verdict is against the weight of the

evidence. Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003), cert.

denied, Tharp v. Pennsylvania, 541 U.S. 1045 (2004).

review is limited to whether the trial court palpably abused its discretion in

                              Id.

      It is well established that this Court is precluded from reweighing the

evidence and substituting our credibility determination for that of the fact-

finder. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)



the finder of fact who is free to believe all, part, or none of the evidence and

                                                   cert. denied, Champney v.

Pennsylvania, 542 U.S. 939 (2004)

preclude every possibility of innocence, and the fact-finder is free to resolve

any doubts regardin

inconclusive that as a matter of law no probability of fact may be drawn

                                       Commonwealth v. Emler, 903 A.2d

1273, 1276 (Pa. Super. 2006).


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            A new trial should be awarded
            verdict is so contrary to the evidence as to shock

            imperative so that right may be given another
            opportunity to prevail. In this regard, [t]he evidence
            must be so tenuous, vague and uncertain that the
            verdict shocks the conscience of the court.

Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004) (citations and

internal quotation marks omitted), cert. denied, Ross v. Pennsylvania, 547

U.S. 1045 (2006).

      Herein, Appellant argues that the trial court abused its discretion in

denying his post-



conduct ten years prior and the uncorroborated testimony at trial is not



at 11. Appellant argues that because J.L. testified at the preliminary hearing

that there was never any penetration, but at trial testified there was, the

verdict is against the weight of the evidence. Id.

      After careful review, we conclude the trial court did not abuse its

discretion in reaching this conclusion. See Tharp, supra. J.L. testified at

trial that Appellant touched her genital area, under her clothes, close to

everyday that she was at his house.       N.T., 9/13/13, at 18.      She further

testified that Appellant began touching her when she was about five or six

years-old and the conduct stopped when she was about eight or nine years-

old, for a total of more than 20 to 30 times.    Id. at 18-20.        On cross-


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examination, defense counsel asked J.L. if Appellant ever put his fingers

                                                     Id. at 24.   On redirect the

Commonwealth then asked J.L. to clarify if Appellant had ever put his fingers

inside of her, and if so how many times, to which J.L. testified that it

                                      Id. at 28. On recross-examination defense

counsel followed up by asking J.L. if she remembered testifying at the



                                                  Id. at 29. J.L. answered both

questions affirmatively. Id. When asked if she was telling the truth now or

then she stated she was telling the truth now, but when asked if she was



Id. at 30.

       The jury, as fact-finder, was free to make a credibility determination
                                3
                                    Champney, supra. Moreover, as stated, it is

not our role as an appellate court to determine if the verdict was against the

weight of the evidence, but rather, whether the trial court palpably abused
____________________________________________


3
  To the extent Appellant argues that
this claim is waived as it is a sufficiency argument and not a weight of the

challenging the weight of the evidence concedes that there is sufficient


of a sexual assault victim, if believed by the trier of fact, is sufficient to
convict a defendan     Commonwealth v. McDonough, -- A.3d --, 2014
WL 3563346 (Pa. Super. 2014), citing Commonwealth v. Charlton, 902
A.2d 554, 562 (Pa. Super. 2006).



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                                          -sentence motion raising said claim.

Tharp, supra. Based on our independent review of the record, we discern

no palpable abuse of discretion on the part of the trial court.

      Therefore, we conclude the trial court did not abuse its discretion in

                            -sentence    motion.      Accordingly,   we   affirm



      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2014




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