J-S06008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 SHARIF JONES                            :
                                         :   No. 1746 EDA 2017
                    Appellant

          Appeal from the Judgment of Sentence January 13, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012791-2015


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                                FILED MAY 04, 2018

      Sharif Jones appeals from the judgment of sentence of four to fifteen

years imprisonment followed by twenty years probation, which was imposed

following his convictions of rape of a child, involuntary deviate sexual

intercourse (“IDSI”) with a child, unlawful contact with a minor, corruption of

a minor, and indecent assault of a child. After careful review, we affirm.

      The victim testified to the following at trial. Late on the night of April

29, 2014, while her mother was in the shower and without her knowledge,

twelve-year-old D.J. went to get snacks at a convenience store located at 69th

and Ogontz Streets in the West Oak Lane neighborhood of Philadelphia,

Pennsylvania. When D.J. entered the store, she was approached by a man

she did not know and had never spoken to previously, later identified as

Appellant.   Appellant asked D.J. what her name was and her age.             She
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identified herself and told him that she was “about to be thirteen.” N.T. Trial,

10/3/17, at 16. Appellant questioned whether it was late for her to be out,

and asked if anyone was home. D.J. told him that her mother was waiting for

her at home.

      D.J. testified that at some point, Appellant “was touching on me” and

“was grabbing my butt.” Id. at 28. She felt uncomfortable and scared, and

put her hands up between her and Appellant’s chest. Id. at 19. He forcibly

grabbed her hand and placed it on his groin.          The total interaction lasted

approximately five minutes. Appellant wrote a name and phone number on a

piece of paper, gave it to her, and left the store.

      When D.J. went outside, he was waiting for her. He wrapped his arm

around her shoulder and they started walking. They stopped at a white house

with a garden area, and Appellant put his hand down her shirt and touched

her breasts underneath her clothes. Then he led her to steps on the side of

the house leading to a basement, where he pushed her to her knees, held her

head down, and forced her to perform oral sex.

      After that, they continued to walk. Appellant kept his arm tightly draped

around her shoulders. They walked for many blocks, and stopped in an alley

with a balcony above. Appellant pushed her face against the wall, pulled down

her pants, and tried to penetrate her wearing a condom.            When he was

unsuccessful, he removed the condom and penetrated her vaginally. Then he

forced her to her knees, put his penis in her mouth, and ejaculated. He told

her not to swallow it so she would not get pregnant. Id. at 33. Appellant left,

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and D.J. finally found a street that she recognized and made her way home.

The police were at her house because her mother had called them to report

her missing.

      When the victim’s mother first asked her where she had been, she said

she had just been on a walk. Based on her daughter’s disheveled appearance,

her mother asked her again. D.J. told her that she had been raped. Id. at

63. D.J. described to police how she was abducted at the store. When the

police asked her to speak more clearly, she began crying stating she could

not, because if she swallowed “that,” she could get pregnant. Id. at 71.

      The Commonwealth played the surveillance tape from the corner store

during D.J.’s testimony. Exhibit C-1. D.J. identified Appellant and pointed to

herself as she entered the store. She testified that the fourteen minutes of

video accurately depicted what occurred between herself and Appellant while

they were in the store.

      The evidence revealed that the police transported D.J. to the hospital

for a physical examination and a psychological evaluation. The report from

the physical examination was marked for identification as Exhibit C-5, and it

noted flecks of dirt and gravel in the victim’s pubic area. Property receipts for

the rape kit and the victim’s clothes were marked as Exhibits C-6 and C-7

respectively, and admitted by stipulation. In addition, it was stipulated that

the rape kit and saliva sample tested positive for sperm, which matched a

prior sample of Appellant’s DNA, and the reports were marked as exhibits and




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admitted. D.J.’s date of birth was the subject of a stipulation, and confirmed

that she was twelve years old at the time of the sexual assaults.

        The eighteen-year-old Appellant testified at trial.   He denied that he

touched the victim in the store and he testified that she was the aggressor.

He also stated that he did not know her age. According to Appellant, the only

sexual act was oral sex, it was consensual, and it occurred on the outside

steps of his home with his mother inside.

        Following a nonjury trial, Appellant was convicted on all but one count.1

The court imposed a sentence of four to fifteen years imprisonment followed

by twenty years probation. Appellant filed a timely post-sentence motion for

a new trial alleging that the verdict was against the weight of the evidence.

He claimed that the video surveillance footage contradicted crucial factual

allegations made by the complainant and conclusively proved that she

seduced him in the store and lied to police and to the court. In addition, he

alleged that her testimony was so inconsistent as to be unbelievable as to

render the verdict unreliable and shock the conscience. The trial court denied

Appellant’s motion, finding that Appellant’s sufficiency argument was

premised on the twelve-year-old victim’s consent to the sexual activity, and

that by law, a child victim cannot consent to sexual contact. Moreover, the

court found that since the victim’s testimony was corroborated by both

physical evidence and Appellant’s own testimony, the evidence was not

____________________________________________


1   Appellant was acquitted of unlawful restraint-serious bodily injury.

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patently unreliable. Finally, the trial court concluded that the verdict was not

so contrary to the evidence as to shock its sense of justice.

      Appellant filed a timely appeal. The trial court directed Appellant to file

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

he complied. The trial court authored its Pa.R.A.P. 1925(a) opinion.

      Appellant’s sole issue on appeal is:

      Was the verdict against the weight of the evidence because there
      is video surveillance footage which contradicts the complainant
      regarding crucial factual allegations and which conclusively proves
      that the complainant lied to the police and lied to this court under
      oath about what occurred and how she first made contact with
      Appellant thereby rendering the complainant’s testimony so
      inconsistent, contradictory, and not believable such that the
      verdict is unreliable, shocks the conscience and is unjust?

Appellant’s brief at 14.

      Succinctly stated, Appellant’s claim is that the trial court abused its

discretion when it found that the verdict was not against the weight of the

evidence. A weight of the evidence claim “concedes that sufficient evidence

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

Commonwealth v. Miller, 172 A.3d 632, 643 (Pa.Super. 2017). In ruling

on such a motion, the trial court need not view the evidence in the light most

favorable to the verdict winner, but “may instead use its discretion in

concluding whether the verdict was against the weight of the evidence.”

Miller, supra. Furthermore:

      A new trial should not be granted because of a mere conflict in
      testimony or because the judge on the same facts would have
      arrived at a different conclusion. Rather, the role of the trial judge

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      is to determine that notwithstanding all the facts, certain facts are
      so clearly of greater weight to ignore them or to give them equal
      weight with all the facts is to deny justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quotation marks

and internal citations omitted). In order for a trial court to find that a verdict

is against the weight of the evidence, the proof must be “so tenuous, vague

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

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa.Super. 2003).

      On appeal, when we conduct a weight of the evidence review, “we do

not actually examine the underlying question; instead, we examine the trial

court’s exercise in resolving the challenge.” Commonwealth v. Leatherby,

116 A.3d 73, 92 (Pa.Super. 2015). Since the trial judge heard and saw the

evidence presented, we give the “gravest consideration to the findings and

reasons advanced by the trial judge.” Clay, supra at 1055. We will find an

abuse of discretion only where “the judgment is manifestly unreasonable or

where the law is not applied or where the record shows that the action is a

result of partiality, prejudice, bias, or ill-will.” Id. (citing Commonwealth v.

Widmer, 744 A.2d 745 (Pa. 2000)).         For this reason, “[o]ne of the least

assailable reasons for granting or denying a new trial is the lower court's

conviction that the verdict was or was not against the weight of the evidence.”

Id.

      Appellant argues that the verdict is against the weight of the evidence

because the videotape evidence reveals that the “complainant irrefutably


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lied.” Appellant’s brief at 18. He maintains further that the twelve-year-old

victim initiated sex with him, and that her original decision not to tell her

mother about the incident changed only after the police confronted her about

her disappearance. Id. The video surveillance tapes, he contends, contradict

the victim’s testimony because they show that she approached him.            In

addition, according to Appellant, the video does not depict him touching her

inappropriately, and certainly, it did not show him placing her hand on his

penis. Id.

      The trial court found that the minor victim’s testimony was corroborated

by the video surveillance tape:

      D.J’s body language in the footage shows a girl who is keeping her
      head down and avoiding eye contact as she answers defendant’s
      questions. See Trial Exhibit C-1. The footage also corroborates
      D.J.’s testimony that defendant placed his hand on her buttocks.
      Id. Contrary to defendant’s claim, the footage does not contradict
      D.J.’s additional testimony that defendant placed her hand on his
      groin.

Trial Court Opinion, 8/25/17 at 4 (citations omitted). Moreover, the trial court

rejected Appellant’s argument that the twelve-year-old victim initiated the

sexual contact as legally irrelevant because, by law, she could not consent.

The court found that whether or not D.J. told her mother immediately upon

returning home was irrelevant as the physical evidence obtained from her

medical examination, as well as the video surveillance, corroborated her

testimony.    Based on its assessment of the evidence, the trial judge

determined that the verdict did not shock its sense of justice.



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     The trial court applied the proper legal standard in reviewing the weight

of the evidence, and we find no abuse of discretion.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/18




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