J-S73004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    RICHARD PAUL PATRICK                       :
                                               :
                       Appellant               :   No. 1149 MDA 2019

        Appeal from the Judgment of Sentence Entered March 13, 2019
     In the Court of Common Pleas of Franklin County Criminal Division at
                       No(s): CP-28-CR-0000915-2017


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 23, 2020

       Appellant, Richard Paul Patrick, appeals from the judgment of sentence

entered on March 13, 2019, in the Franklin County Court of Common Pleas.

We affirm.

       In its opinion prepared pursuant to Pa.R.A.P. 1925(a), the trial court set

forth the relevant facts and procedural history of this case as follows:

              [Appellant] was charged with two counts each of rape of [a]
       child, indecent assault [where the complainant is less than 13
       years of age], and endangering the welfare of children (“EWOC”)
       based on allegations made by R.S. and C.S., the twin daughters[1]
       of [Appellant’s] former girlfriend.1

              1 18 Pa.C.S. § 3121(c); 18 Pa.C.S. § 3126(a)(7); and
              18 Pa.C.S. § 4304(a)(1), respectively.

____________________________________________


1 The victims, R.S. and C.S., were less than thirteen years old when the
assaults occurred; however, they were sixteen years old at the time they
testified at trial. Pa.R.A.P. 1925(a) Opinion, 8/14/19, at 7.
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            On December 16, 2016, the Commonwealth filed a Motion
     for Closed-Circuit Testimony. Following an in camera examination
     of both victims on February 3, 2017, this [c]ourt granted the
     Commonwealth’s Motion by Opinion and Order entered February
     21, 2017.

           A two-day jury trial commenced on January 23, 2019. C.S.
     and R.S., the child victims, both testified. At the beginning of the
     second day of trial, [Appellant] moved for a mistrial on grounds
     that C.S. was purportedly incompetent to testify, thereby
     depriving [Appellant] of a fair trial. This [c]ourt denied the request
     for a mistrial, and [Appellant] was subsequently found guilty of
     one count each of rape of [a] child and indecent assault [as to
     R.S.], as well as both counts of EWOC; he was found not guilty of
     [rape of a child and indecent assault as to C.S.].

           On March 13, 2019, this [c]ourt sentenced [Appellant] to
     240 to 480 months’ incarceration for the rape of a child conviction
     and a consecutive 14 to 84 months’ incarceration for the indecent
     assault conviction. For the two counts of EWOC, the [c]ourt
     imposed concurrent sentences of 14 to 84 months’ incarceration
     for each count, to be served at the expiration of the sentence for
     indecent assault.

            On March 25, 2019, [Appellant] filed a Post-Sentence
     Motion [For a New Trial], asserting error in this [c]ourt’s decision
     to deny a mistrial and challenging his convictions on weight of the
     evidence grounds. By Opinion and Order … entered June 17, 2019,
     this [c]ourt denied [Appellant’s] Motion in its entirety.

            On July 11, 2019, [Appellant] filed the instant appeal. By
     Order entered July 12, 2019, this [c]ourt directed [Appellant] to
     file a Concise Statement of Matter[s] Complained of on Appeal
     [pursuant to Pa.R.A.P. 1925(b)]; [Appellant] timely complied on
     August 2, 2019.

Pa.R.A.P. 1925(a) Opinion, 8/14/19, at 1-2.

     On appeal, Appellant presents the following issues for this Court’s

consideration:

     1. Did the [t]rial [c]ourt abuse its discretion by failing to declare
     a mistrial based upon the incompetence of C.S. when C.S. testified

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        that she only knew the truth a “little” and was not sure whether
        her testimony was the truth?

        2. Did the [t]rial [c]ourt abuse its discretion by denying that the
        jury verdicts of Guilty to Count 1 Rape of a Child, Count 3 Indecent
        [assault where the complainant is less than 13 years of age],
        Count 5 Endangering the Welfare of a Child, and Count 6
        Endangering the Welfare of a Child [were] against the weight of
        the evidence?

Appellant’s Brief at 10.2

        In support of his first issue, Appellant asserts that C.S. has an

intellectual disability, the trial court abused its discretion in permitting C.S. to

testify, and the court further abused its discretion in failing to grant a mistrial

after C.S. testified. Appellant’s Brief at 22. After review, we conclude that no

relief is due.

        “It is well-settled that the review of a trial court’s denial of a motion for

a mistrial is limited to determining whether the trial court abused its

discretion.” Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011)

(citations omitted). “A trial court may grant a mistrial only where the incident

upon which the motion is based is of such a nature that its unavoidable effect

is to deprive the defendant of a fair trial by preventing the jury from weighing

and rendering a true verdict.”         Id. (internal citations and quotation marks

omitted).     A mistrial is not necessary where cautionary instructions are

adequate to overcome prejudice. Id. (internal citations and quotation marks



____________________________________________


2   For purposes of our discussion, we have renumbered Appellant’s issues.

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omitted). Additionally, “when an event prejudicial to the defendant occurs

during trial only the defendant may move for a mistrial; the motion shall be

made when the event is disclosed. Otherwise, the trial judge may declare a

mistrial only for reasons of manifest necessity.”        Commonwealth v.

Radecki, 180 A.3d 441, 457 (Pa. Super. 2018) (emphasis in original) (quoting

Pa.R.Crim.P. 605(B)).

      The “incident” at issue here was the trial court’s ruling that C.S. was

competent and permitted her to testify. Appellant’s Brief at 28-29. Our Rules

of Evidence provide:

      (a) General Rule. Every person is competent to be a witness
      except as otherwise provided by statute or in these rules.

      (b) Disqualification for Specific Defects. A person is
      incompetent to testify if the court finds that because of a mental
      condition or immaturity the person:

         (1) is, or was, at any relevant time, incapable of perceiving
         accurately;

         (2) is unable to express himself or herself so as to be
         understood either directly or through an interpreter;

         (3) has an impaired memory; or

         (4) does not sufficiently understand the duty to tell the
         truth.

Pa.R.E. 601.   “[T]he testimony of any person, regardless of his mental

condition, is competent evidence, unless it contributes nothing at all because

the witness is wholly untrustworthy.” Commonwealth v. Anderson, 552




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A.2d 1064, 1067 (Pa. Super. 1988) (citation omitted).3 Therefore, “witnesses

are presumed competent to testify, and it is incumbent upon the party

challenging the testimony to establish incompetence.” Id. (citation omitted).

Our standard of review of a trial court’s ruling regarding the competency of a

witness is for an abuse of discretion. Commonwealth v. Delbridge, 855

A.2d 27, 34 n.8 (Pa. 2003) (citation omitted).

       The trial court addressed this issue as follows:

          Preliminarily, we note that [Appellant’s counsel] did not
       immediately object to C.S.’s testimony and request a mistrial.
       Rather, counsel lodged an objection at the beginning of the second
       day of trial. See Transcript of Proceedings of Jury Trial, January
       24, 2019 (“T.P., 1/24/19”) at 3. After observing that the objection
       should have been raised following C.S.’s testimony, we
       nonetheless accepted counsel’s explanation that he was hesitant
       to object without legal basis for his argument. As a result, we
       took the objection under consideration and made the following
       determination on the record:

          Let me review some of the information that I have. First of
          all, going back in the case, the [c]ourt had the opportunity
          to observe the child on more than on[e] occasion. We
          observed her yesterday as she testified. We also observed
          her on February 3, 2017, where she testified in an in-camera
          hearing in order for the [c]ourt to determine if there was
          merit to the Commonwealth’s motion for [the victims to
          testify via] closed circuit [television].

              We memorialized our findings in an Opinion and Order
          filed February 21, 2017. In reviewing that Opinion, I note
____________________________________________


3Although the competency of a witness is presumed, we note that where the
witness is under fourteen years of age, the trial court must conduct a
searching inquiry as to mental capacity. Commonwealth v. R.P.S., 737
A.2d 747, 749 (Pa. Super. 1999). In the instant case, C.S. was sixteen years
of age at the time of trial. Pa.R.A.P. 1925(a) Opinion, 8/14/19, at 7.


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        that I specifically found that while it was abundantly clear
        that neither C.S. … nor R.S. … function intellectually on the
        same level as, quote, typical 15-year-old girls, the [c]ourt
        was satisfied that the child victims understood the oath that
        they ultimately took to … testify truthfully. And that was
        after a competency evaluation on the record at the time.

            We also recall that yesterday [C.S.] did take an oath after
        telling the [c]ourt that she understood it. So based on the
        totality of the [c]ourt’s observations of [C.S.], the [c]ourt is
        le[d] to find that [C.S.] is competent to testify and it will be
        for the jury to evaluate her credibility as to the testimony
        she provided.

     Id. at 18-19.

          Upon further review, we decline to overturn our previous
     determination.

                                    * * *

     [Appellant] argues that C.S. was incompetent to testify based on
     her inability to distinguish between truth and a lie and that her
     testimony therefore “tainted the entirety of the proceedings.”
     [Appellant’s] Brief in Support of Post-Sentence Motion[,] at 8
     (unnumbered). [Appellant] specifically points to the following
     exchange between the Commonwealth and C.S. [after] C.S.’s
     testimony as evidence that C.S. did not understand the duty to be
     truthful:

        Q: C.S., when you were describing what happened in your
        Mom and [Appellant’s] room in your new house, was that
        the truth?

        A. Yes.

        Q. And we talked about your testimony, didn’t we?

        A. Yes.

        Q. And I told you to tell the truth today. Do you remember
        that?

        A. Yes.

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        Q. And did you do that?

        A. I don’t know.

        Q. You know what the truth is, right? Do you know the …
        difference between the truth and a lie?

        A. A little.

        Q. A little. Were you telling the truth today?

        A. I don’t know.

     T.P., 1/23/19, at 65.

             Nevertheless, we continue to disagree that C.S.’s
     inconsistent answers regarding the truth rendered her
     incompetent to testify. As we note in our ruling at trial, C.S.
     initially affirmed that she understood what it means to take an
     oath to tell the truth. See id. at 43. At previous proceedings,
     including the preliminary hearing and the hearing on the
     Commonwealth’s Motion for Closed-Circuit Testimony, C.S.
     demonstrated an ability to testify competently. No competency
     hearing was requested by either party prior to trial.

            Further, throughout her trial testimony, we found C.S. to be
     shy, quiet, and withdrawn. C.S.’s demeanor combined with her
     intellectual disabilities continue to prompt our conclusion that
     C.S.’s inconsistent answers were the product of a lack of
     confidence in her understanding of largely abstract questions
     involving the nature of the truth. Because we continue to find that
     C.S. was competent to testify, we cannot find that any [error]
     occurred.

           Alternatively, even if C.S. was incompetent to testify, we
     conclude that her testimony was not so prejudicial as to
     compromise the jury’s ability to remain impartial. [Appellant]
     submits the following argument in support of his contention of
     prejudice:

        Although the jury did not convict [Appellant] of the Rape
        and Indecent Assault counts [with respect to C.S. as the
        victim], hearing her testimony was prejudicial to

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         [Appellant’s] defense as to R.S. C.S. told a similar story to
         the jury as R.S. did. Her testimony tainted [Appellant’s]
         ability to defend against the allegations of R.S. as it
         bolstered the allegations of R.S. even if those allegations
         were individually not credible as to her.

      [Appellant’s Brief in Support of Post-Sentence Motion], at 12
      (unnumbered).

             We fail to see how C.S.’s purported inability to tell the truth
      has any bearing on R.S.’s ability to tell the truth. We likewise fail
      to see—and [Appellant] does not explain—how C.S.’s testimony
      both bolstered R.S.’s story and led to not guilty verdicts for C.S.’s
      allegations of rape and indecent assault. Given the jury’s ultimate
      verdicts, we find that the jury was able to parse the evidence
      relating to C.S. from the evidence relating to R.S.; accordingly,
      [Appellant] did not sustain prejudice entitling him to a mistrial.

Trial Court Opinion, 6/17/19, at 3-7 (footnotes omitted).

      We agree with the trial court.        C.S. testified without objection or

questions concerning her competency at the pre-sentence hearing.               N.T.,

2/3/17, at 14. At trial, C.S. informed the trial court that she understood her

oath and the need to tell the truth. N.T., 1/23/19, at 43. There was no inquiry

or objection as to competency. It was not until the second day of trial that

Appellant’s counsel mentioned competency. N.T., 1/24/19, at 3. As the trial

court posited, it is reasonable to conclude that the basis for inconsistency in

C.S.’s answers was a “lack of confidence in her understanding of largely

abstract questions involving the nature of the truth.”      Trial Court Opinion,

6/17/19, at 6.

      We find no abuse of discretion in the trial court ruling that C.S. was

competent to testify, and it was for the jury to decide if C.S.’s testimony was


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credible.   See Delbridge, 855 A.2d at 40 (“A competency hearing is not

concerned with credibility. Credibility involves an assessment of whether ...

what the witness says is true; this is a question for the fact finder.”).

Moreover, Appellant failed immediately to move for a mistrial; accordingly,

the trial court was permitted to grant a mistrial only for “manifest necessity.”

Radecki, 180 A.3d at 457; Pa.R.Crim.P. 605(B). Following our review of the

record, we find no manifest necessity, and we conclude the trial court

committed no abuse of discretion in denying Appellant’s tardy motion for a

mistrial. Accordingly, no relief is due.

      In his second issue, Appellant avers that the trial court erred in denying

his post-sentence motion for a new trial. Appellant asserts that the guilty

verdicts on the charges of rape of a child, indecent assault where the

complainant is less than thirteen years of age, and the two counts of EWOC

were against the weight of the evidence. Appellant’s Brief at 17.

      First, we must determine if Appellant’s challenge to the weight of the

evidence was properly preserved. A challenge to the weight of the evidence

must first be raised at the trial level “(1) orally, on the record, at any time

before sentencing; (2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.” Commonwealth v. Akrie, 159 A.3d 982,

989 (Pa. Super. 2017).       Appellant properly preserved his weight of the

evidence claim by raising the issue in a timely post-sentence motion on March

25, 2019.


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      We review challenges to the weight of the evidence bearing in mind the

following principles: “A motion for new trial on the grounds that the verdict is

contrary to the weight of the evidence, concedes that there is sufficient

evidence to sustain the verdict.” Commonwealth v. Rayner, 153 A.3d 1049,

1054 (Pa. Super. 2016) (quoting Commonwealth v. Widmer, 744 A.2d 745,

751 (Pa. 2000)). Moreover:

      The decision to grant or deny a motion for a new trial based upon
      a claim that the verdict is against the weight of the evidence is
      within the sound discretion of the trial court. Thus, “the function
      of an appellate court on appeal is to review the trial court’s
      exercise of discretion based upon a review of the record, rather
      than to consider de novo the underlying question of the weight of
      the evidence.” An appellate court may not overturn the trial
      court’s decision unless the trial court “palpably abused its
      discretion in ruling on the weight claim.” Further, in reviewing a
      challenge to the weight of the evidence, a verdict will be
      overturned only if it is “so contrary to the evidence as to shock
      one’s sense of justice.”

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations

omitted).   A trial court’s determination that a verdict was not against the

interest of justice is “[o]ne of the least assailable reasons” for denying a new

trial. Commonwealth v. Colon-Plaza, 136 A.3d 521, 529 (Pa. Super. 2016)

(quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). A verdict

is against the weight of the evidence where “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.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.

Super. 2003) (quoting Widmer, 744 A.2d at 751-752)). “[W]e do not reach

the underlying question of whether the verdict was, in fact, against the weight

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of the evidence. . . . Instead, this Court determines whether the trial court

abused its discretion in reaching whatever decision it made on the motion[.]”

Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation

omitted).

     The basis for Appellant’s challenge to the weight of the evidence is his

assertion that the victims in this matter, C.S. and R.S., were not credible

witnesses,   and   their   testimony    was     contradictory   and   unbelievable.

Appellant’s Brief at 17-22. Appellant asserts that C.S. and R.S. had accused

other individuals of sexual abuse, confused nightmares with reality, and

invented scenarios they later admitted never happened. Id. at 18-21.

     The trial court addressed Appellant’s challenge to the weight of the

evidence as follows:

     We do not find the existence of internal inconsistencies or
     contradictions in a witness’s testimony to constitute the type of
     facts that are clearly of greater weight. Rather, [Appellant’s]
     argument appears exclusively concerned with the jury’s credibility
     determinations. Credibility considerations are within the jury’s
     purview as the finder of fact; we decline to usurp that function
     here.

            To the extent [Appellant] indicates that C.S.’s and R.S.’s
     memories about [Appellant’s] conduct could have materialized in
     dreams, we do not find the evidence to support this possibility as
     significant or overwhelming as [Appellant] attempts to suggest.

            With respect to [Appellant’s] proposition that C.S.’s
     testimony was entirely based on C.S.’s purported inability to
     understand the duty to tell the truth, we note that the jury was
     entitled to believe “all, part or none of the evidence” and
     determine the credibility and weight to be accorded to C.S.’s
     averments. In light of the not guilty verdicts for the charges of
     rape and indecent assault of C.S., we conclude that the jury

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      considered the entirety of C.S.’s testimony and separated the
      statements it found credible from the parts it found incredible. We
      decline to overturn those determinations here.

            In sum, the jury’s verdicts do not shock our sense of justice,
      and we therefore discern no merit to [Appellant’s] weight of the
      evidence argument.

Trial Court Opinion, 6/17/19, at 12-13 (internal citation omitted).

      As set forth in our disposition of Appellant’s first issue, the trial court

committed no abuse of discretion in ruling that C.S. was competent to testify;

thus, it was for the jury to decide credibility. Delbridge, 855 A.2d at 40. Our

review is not a reassessment of the weight of the evidence; it is for an abuse

of discretion. Cash, 137 A.3d at 1270; Ferguson, 107 A.3d at 213.

      We acknowledge that some testimony provided by C.S. and R.S. was

inaccurate and conflicting.   For example, C.S. testified that she was five

months older than her twin sister, R.S. N.T., 1/23/19, at 45. Prior to trial,

C.S. said that Appellant bound her hands with rope during an assault, but at

trial, C.S. testified that she was not held down in any way. Id. at 59-60. C.S.

could not recall saying that she had to climb out of a window onto the roof to

escape or that a dog had been involved and bitten her during a sexual assault.

Id. at 62-64; Information, 5/31/17.

      However, it is well settled that the jury was to assess the credibility of

witnesses, and a trial judge will not grant a new trial merely because of a

conflict in the testimony or because he may have reached a different

conclusion if he had been the trier of fact. Commonwealth v. Vandivner,


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962 A.2d 1170, 1178 (Pa. 2009).        In its jury instructions, the trial court

correctly explained that it was for the jury to determine credibility.     N.T.,

1/24/19, at 48.    The trial court then informed the jurors that it was their

responsibility to resolve any conflicts in the evidence, what factors to consider

when determining credibility, and that they are free to believe some, all, or

none of a witness’s testimony.      Id. at 48-51.    As noted, the jury found

Appellant not guilty of rape of a child and indecent assault relative to C.S.

Verdict Slip, 1/24/19, at 1-2. We agree with the trial court that the verdict

illustrates that the jury capably weighed the testimony and chose not to credit

portions of C.S.’s testimony. Trial Court Opinion, 6/17/19, at 13.

      After review, we conclude that the jury followed the trial court’s

instructions and weighed the testimony accordingly. We reiterate that our

review is not a reassessment of the weight of the evidence; it is for an abuse

of discretion. Cash, 137 A.3d at 1270; Ferguson, 107 A.3d at 213. For the

reasons set forth above, we discern no abuse of discretion in the trial court

denying Appellant a new trial based on the weight of the evidence.

      Judgment of sentence affirmed.

      Judge Musmanno joins this Memorandum.

      Judge Lazarus concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/23/2020




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