J-S27040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

JOSEPH M. TRIFIRO,

                            Appellant                       No. 1763 WDA 2013


        Appeal from the Judgment of Sentence entered August 29, 2013,
                in the Court of Common Pleas of Fayette County,
             Criminal Division, at No(s): CP-26-CR-0000466-2012


BEFORE: GANTMAN, P.J., ALLEN, and STABILE, JJ.

MEMORANDUM BY ALLEN, J.*:                                FILED OCTOBER 10, 2014

        Joseph M. Trifiro (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of two counts of aggravated indecent

assault of a person under 13 years old, and two counts of indecent assault of

a person less than 13 years old.1              The trial court sentenced Appellant to

concurrent terms of 25 - 50 years on the aggravated indecent assault

counts. The trial court did not impose any further penalties on Appellant’s

indecent assault convictions.

        The trial court expressed the factual background as follows:

               The incidents which gave rise to this case occurred on or
        about September 21, 2011. [Appellant] was acquainted with the
        [victims’] family, which included two [girls, M.D.S. and
____________________________________________


1
    18 Pa.C.S.A. §§ 3125(a)(7) and 3126(a)(7), respectively.


*This case was assigned to Judge Allen on August 6, 2014.
J-S27040-14


     C.R.W.S.] The girls’ father, Patrick [S.,] contacted Pennsylvania
     State Police to report two incidents of sexual assault o[f] his
     daughters.        The then-four-year-old victim, M.D.S., told
     Pennsylvania State Police Trooper Heather Clem that [Appellant]
     had touched her vaginal area with his fingers during an
     overnight stay at [Appellant’s] home. The then-six-year-old
     victim, C.R.W.S., told Trooper Clem that [Appellant] also
     touched her vaginal area with his fingers and that “it hurt.”
     C.R.W.S.’s mother testified that when [C.R.W.S.] said what
     [Appellant] did to her, she took her into the bathroom to
     examine her vaginal area and found the area to be “red and
     swollen.” Both girls told their mother that [Appellant] touched
     their “kitt[ies],” and “it hurt.”

           Forensic Interviewer Sarah Louik Gluzman testified that
     she interviewed both girls after the assaults were reported to
     police. M.D.S. told Ms. Gluzman that [Appellant] “stuck his
     fingers up [her] butt.” Dr. Mary Carrasco, the physician who
     examined the girls, testified that she did not find any evidence of
     sexual abuse on either of them; however, she said that “in at
     least 95 percent of cases,” there is no physical evidence. She
     emphasized that it did not eliminate the possibility that abuse
     occurred.

           The final witness who testified on behalf of the
     Commonwealth was David Serrano, an inmate who first met
     [Appellant] when they were both housed in the State
     Correctional Institution in Brownsville, Fayette County. Serrano
     was known as a “jailhouse lawyer[,]” and it was common for
     inmates to approach him with legal questions. [Appellant] and
     Serrano were reacquainted while housed in the Fayette County
     Prison, and that is when [Appellant] asked Serrano about this
     case.   Serrano testified that [Appellant] asked him to help
     “manipulate the system to get out of a case.” Serrano knew the
     names and ages of the victims, and he testified that [Appellant]
     penetrated the girls’ vaginas with his fingers, tongue, and penis.
     After receiving this information, Serrano contacted the District
     Attorney’s Office and offered to testify about what [Appellant]
     told him.     In exchange for this information, Serrano was
     permitted to plead guilty to a lesser offense.

Trial Court Opinion and Order, 10/10/13, at 2-3 (internal record citations

omitted).


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     The trial court explained the procedural posture as follows:

     On April 8, 2013, [Appellant] was convicted by a jury of two
     counts each of Aggravated Indecent Assault, Complainant Less
     Than 13 Years Old; and Indecent Assault, Person Less Than 13
     Years Old. On August 29, 2013, [Appellant] was declared a
     sexually violent predator upon the recommendation and
     testimony from the Pennsylvania Sexual Offenders Assessment
     Board, and he was sentenced to a mandatory twenty-five (25) to
     fifty (50) year [concurrent] term of incarceration [regarding the
     aggravated indecent assault counts, without any further
     penalties for the indecent assault convictions]. [Appellant] filed
     a timely Post-Sentence Motion, which was denied by this Court
     on October 10, 2013.

Trial Court Statement in Lieu of Opinion, 12/27/13, at 1.

     Appellant filed a timely notice of appeal, and complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.    On December 27, 2013, the trial court filed its

Statement in Lieu of Opinion.

     Appellant presents the following issues for our review:

       1. Whether the [trial] [c]ourt erred in denying [Appellant’s]
          Motion for Modification of Sentence?

       2. Whether the [t]rial court erred by permitting the admission
          of other crimes evidence against [Appellant] pursuant to
          Pennsylvania Rule of Evidence 404(b), where the
          Commonwealth's Motion In Limine was granted for the
          [Appellant’s] State of Ohio conviction for Gross Sexual
          Imposition?

       3. Whether [t]he [t]rial [c]ourt erred by permitting the
          testimony of Heather Clem, Dianna Dawn Stewart, Sarah
          Louik Gluzman and Patrick Ryan Stewart under the 42
          Pa.C.S.A. § 5985.1 exception, because the evidence was
          cumulative and improperly bolstered the complainants'
          testimony?


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       4. Whether the evidence was insufficient to support the
          Appellant's convictions for aggravated indecent assault?

       5. Whether the trial court erred in not finding that the weight
          of the Commonwealth's evidence was so inconsistent,
          contradictory, and inherently unreliable that the guilty
          verdicts for indecent aggravated assault cannot stand and
          the Appellant is entitled to be discharged?

Appellant’s Brief at 5.

      Appellant’s first issue challenges the trial court’s denial of Appellant’s

motion to modify his sentence. Our Court has explained:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the Appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias,
      ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Toland, 995 A.2d 1242, 1248 (Pa. Super. 2010).

      Appellant argues:

             [Appellant’s] sentence was grossly disproportionate
      because (1) the evidence was very weak to support the
      aggravated indecent assault convictions; (2) the most serious
      offenses for which he was convicted of were only a felony of the
      2nd degree; (3) the predicate offense from Ohio was not properly
      admitted; and (4) the sentences are an aggregate of 100 years
      effectively making this case a life sentence.

            The acts of indecent assault of two children over the
      course of a short time frame committed by Appellant, does not
      constitute offenses of sufficient gravity as to permit a severe
      sentence.    Furthermore, even absent the application of the
      mandatory in this case, had the trial court sentenced Appellant
      to the statutory maximum for each offense, and run those
      sentences consecutively, Appellant could have been sentenced to
      a maximum possible penalty of 20 years - 40 years of

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      incarceration. As such, the sentence applied in the instant case
      is substantially higher than the maximum possible penalty
      available to the sentencing court had the Commonwealth chosen
      not to invoke the mandatory. The Appellant's age and the
      temporal displacement between the predicate and current
      offenses demonstrate a degree of gross disproportionality. The
      Appellant has satisfied the threshold question, thereby rendering
      his mandatory sentences as cruel and unusual punishment.

Appellant’s Brief at 10-11.

      In rebutting this challenge, the trial court clarified:

            First, [Appellant] averred that he is entitled to a
      modification of the twenty [five] (25) to fifty (50) year jail term
      both because it is grossly disproportionate to the crimes he
      committed, it is in violation of the Eighth Amendment of the
      United States Constitution, it is also in violation of Article I,
      Section 13 of the Pennsylvania Constitution, and because it was
      decided in reliance upon his prior conviction in Ohio. []

            [Appellant’s] sentence was ordered pursuant to the
      mandatory minimum stated in 42 Pa.C.S.A. §9718.2(a). The
      Commonwealth presented a certified copy of his prior sexual
      offense conviction in Ohio[.] []

            In addition to the Ohio conviction, [Appellant] entered a
      guilty plea in Fayette County for failing to register as a sex
      offender under Megan’s Law. Furthermore, he was deemed a
      sexually violent predator during sentencing proceedings in this
      case.

             Sexually violent predators need to be isolated from the
      general public, and the sentence, which was mandated by law,
      fits the crimes for which he was convicted; more particularly,
      where [Appellant] failed to follow the law requiring registration
      as a result of his first conviction for having sex with a child. As a
      result, this Court believes the sentence is properly proportionate
      to [Appellant’s] crimes and accordingly not in violation of either
      his federal or state constitutional rights.




                                       -5-
J-S27040-14



Trial Court Opinion and Order, 10/10/13, at 4. A review of the record and

applicable sentencing provisions comports with the trial court’s rationale for

denying Appellant’s motion to modify his sentence.

      42 Pa.C.S.A. § 9718.2 governs sentences for sexual offenders and

provides in pertinent part:

      § 9718.2. Sentences for sexual offenders

      (a) Mandatory sentence.--

      (1) Any person who is convicted in any court of this
      Commonwealth of an offense set forth in section 9799.14
      (relating to sexual offenses and tier system) shall, if at the time
      of the commission of the current offense the person had
      previously been convicted of an offense set forth in section
      9799.14 or an equivalent crime under the laws of this
      Commonwealth in effect at the time of the commission of that
      offense or an equivalent crime in another jurisdiction, be
      sentenced to a minimum sentence of at least 25 years of total
      confinement, notwithstanding any other provision of this title or
      other statute to the contrary. Upon such conviction, the court
      shall give the person oral and written notice of the penalties
      under paragraph (2) for a third conviction. Failure to provide
      such notice shall not render the offender ineligible to be
      sentenced under paragraph (2).

42 Pa.C.S.A. § 9718.2(a)(1).

      On April 11, 2013, pursuant to statutory mandate, the Commonwealth

notified Appellant that “due to [Appellant’s] conviction on April 8, 2013, on

the charges of Aggravated Indecent Assault, Complainant Less than 13 Years

Old (Count 1 and Count 2) and Indecent Assault, Person Less than 13 Years

Old (Count 3 and Count 4), you are subject to the mandatory sentencing

provisions of 42 Pa.C.S.A. § 9718.2(a)(1).       Since you have a previous



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conviction in the State of Ohio for Gross Sexual Imposition, under 42

Pa.C.S.A. § 9718.2(a)(1), the mandatory sentence is twenty-five (25) to

fifty (50) years.”   Notice of Commonwealth’s Intention to Seek Mandatory

Sentence Under 42 Pa.C.S.A. §9718.2, 4/11/13, at 1.

      Moreover, Appellant discounts that 42 Pa.C.S.A. § 9718.2 further

provides:

      (b) Mandatory maximum.--An offender sentenced to a
      mandatory minimum sentence under this section shall be
      sentenced to a maximum sentence equal to twice the
      mandatory minimum sentence, notwithstanding 18 Pa.C.S. §
      1103 (relating to sentence of imprisonment for felony) or any
      other provision of this title or other statute to the contrary.

                                     ***

      (d) Authority of court in sentencing.--There shall be no
      authority in any court to impose on an offender to which
      this section is applicable any lesser sentence than
      provided for in subsections (a) and (b) or to place the
      offender on probation or to suspend sentence. Nothing in
      this section shall prevent the sentencing court from imposing a
      sentence greater than that provided in this section. Sentencing
      guidelines promulgated by the Pennsylvania Commission on
      Sentencing shall not supersede the mandatory sentences
      provided in this section.

42 Pa.C.S.A. § 9718.2(b) and (d) (emphasis supplied).

      Additionally, the trial court observed:

      It should be noted that the Court sentenced [Appellant] to the
      mandatory minimum and ordered counts one and two to run
      concurrent with one another. There were two victims, and it
      would have been within the Court’s discretion to order counts
      one and two to run consecutive to one another, which would
      have resulted in a substantially longer aggregate sentence.




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Trial Court Opinion and Order, 10/10/13, at 5.            Accordingly, Appellant’s

sentencing challenge is without merit.

      Appellant’s second issue contends that the trial court erred in

admitting evidence of his Ohio conviction for gross sexual imposition.

               Appellate courts typically examine a trial court’s decision
           concerning the admissibility of evidence for abuse of
           discretion. An abuse of discretion may not be found merely
           because an appellate court might have reached a different
           conclusion,     but   requires    a    result   of    manifest
           unreasonableness, or partiality, prejudice, bias, or ill-will, or
           such lack of support so as to be clearly erroneous.
           Typically, all relevant evidence, i.e., evidence which tends
           to make the existence or non-existence of a material fact
           more or less probable, is admissible, subject to the
           prejudice/probative value weighing which attends all
           decisions upon admissibility.     See Pa.R.E. 401; Pa.R.E.
           402[.]

Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007).

      With regard to the admission of prior bad acts, our Rules of Evidence

provide:

      (a) Character evidence generally. Evidence of a person's
      character or a trait of character is not admissible for the purpose
      of proving action in conformity therewith on a particular
      occasion, except:

                                        ***

      (b) Other crimes, wrongs, or acts.

      (1) Evidence of other crimes, wrongs, or acts is not admissible to
      prove the character of a person in order to show action in
      conformity therewith.

      (2) Evidence of other crimes, wrongs, or acts may be admitted
      for other purposes, such as proof of motive, opportunity, intent,
      preparation, plan, knowledge, identity or absence of mistake or
      accident.

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      (3) Evidence of other crimes, wrongs, or acts proffered under
      subsection (b)(2) of this rule may be admitted in a criminal case
      only upon a showing that the probative value of the evidence
      outweighs its potential for prejudice.

Pa.R.E. 404(a); (b)(1)-(3).

      Instantly, the Commonwealth’s motion in limine moved to admit

“[Appellant’s] prior guilty plea to the crime of gross sexual imposition for the

purposes    permitted    by   [the]    Pennsylvania    Rules    of   Evidence.”

Commonwealth’s Motion in limine to introduce [Appellant’s] Prior Bad Acts,

2/28/13, at 2.   The Commonwealth noted “Pennsylvania Rule of Evidence

404(b) permits evidence of other crimes, wrongs, or acts of the Defendant

for purposes such as proof of motive, opportunity, intent, preparation, plan,

etc.” Id. During argument at trial regarding the admission of this evidence,

the Commonwealth cited cases supporting admission of prior bad act

evidence meeting “the common plan exception[.]” N.T., 4/8/13, at 228.

      The trial court admitted Appellant’s Ohio conviction as evidence of his

motive to commit the charged crimes against M.D.S. and C.R.W.S.           Id. at

230. The record does not set forth a developed basis for this determination.

However, the record does support the admission of Appellant’s Ohio

conviction as prior bad act evidence of Appellant’s common scheme and

plan, as set forth in the Commonwealth’s motion in limine, as well as during




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the Commonwealth’s arguments at trial.2 See Commonwealth v. Aikens,

990 A.2d 1181 (Pa. Super. 2010).

       Appellant’s Ohio conviction had an offense date of October 6, 2001, a

similar time of year as the instant offense dates of September 20-22, 2011.

N.T., 4/8/13, at 221.         Moreover, Appellant’s Ohio conviction involved a

prepubescent eight-year-old child, not much older than M.D.S. and

C.R.W.S., who were 4 and 6 years old, respectively, when they were

assaulted. Id. at 218. Additionally, Appellant’s Ohio conviction involved 3

elements: (1) sexual contact; (2) with a person not the offender’s spouse;

(3) which was compelled by force or threat of force. Id. at 221-222. Here,

Appellant had sexual contact with the children, neither of whom was his

spouse, and the sexual contact involved Appellant’s exertion of power over

M.D.S. and C.R.W.S. Significantly, Serrano testified that Appellant engaged

assaulted M.D.S. and C.R.W.S. because “[Appellant] said he liked the feeling

of power over them[.]” N.T., 4/5/13, at 180.

       The trial court specifically instructed the jury that “[y]ou must not

regard this evidence [concerning Appellant’s Ohio conviction for gross sexual

imposition] as showing that [Appellant] is a person of bad character or

____________________________________________


2
  “[We] may affirm the decision of the trial court on any correct basis.”
Rambo v. Greene, 906 A.2d 1232, 1235 n.4 (Pa. Super. 2006)
referencing Spece v. Erie Ins. Group, 850 A.2d 679, 683 n. 2 (Pa.
Super. 2004) (Superior Court may affirm trial court by reasoning other than
that employed by trial court).



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criminal tendencies from which you might be inclined to infer guilt.” N.T.,

4/8/13, at 281. Such an instruction weighs against a finding of trial court

error.    See Commonwealth v. Spotz, 756 A.2d 1139, 1153 (Pa. 2000)

(“fact that trial court clearly instructed jury that it could only consider other

crimes evidence for relevant limited purposes and not merely as evidence of

appellant’s propensity to commit crimes weighed against claim of error”).

         Further, the trial court conducted the requisite weighing of the

probative value versus the prejudicial effect of the admission of Appellant’s

Ohio conviction.    See Commonwealth v. Sherwood, 982 A.2d 483, 497

(Pa. 2009) (the trial court is “obliged” to consider the probative value of the

evidence versus its prejudice to appellant).        The trial court concluded that

“the probative value [of the Ohio conviction] does exceed [its] prejudicial

impact.” N.T., 4/8/13, at 229. Indeed, the trial court purposely sought to

mitigate any prejudice to Appellant by disallowing the jury to be given as an

exhibit “the written record” of Appellant’s Ohio conviction, which included

“four other charges for which there was no guilty plea entered, and those

charges were either dismissed or nol prossed.”             Id. at 229, 221.       The

additional    charges   included   the    more    severe   offenses   of   rape   and

kidnapping. Id. at 221. The trial court additionally instructed Trooper Clem

“not to bring up [the] state of Ohio” so that “would allow the jury to infer

that [Appellant’]s presence at SCI Fayette three years ago [during his

incarceration alongside Serrano] indicates only one prior conviction and not


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J-S27040-14


two, which would be the inference they would draw if they were told this

case was in Ohio. To that extent, I know it’s not apples and apples, but I’m

trying to ameliorate the prejudicial impact of this [Ohio conviction][.].” Id.

229-230.     Accordingly, the record supports the trial court’s determination

that Appellant’s Ohio conviction for gross sexual imposition was admissible

as prior bad act evidence, where the probative value outweighed any

prejudice to Appellant.

        Appellant’s third issue challenges the trial court’s admission of the

testimony of the children’s parents, D.S. and P.S., along with the testimony

of Sarah Louik Gluzman, the forensic interviewer, and Trooper Heather

Clem.     Appellant maintains that the witnesses’ testimony should not have

been admitted under the tender years hearsay exception at 42 Pa.C.S.A. §

5985.1 because “the evidence was cumulative and improperly bolstered the

complainants’ testimony.” Appellant’s Brief at 16.

        In affirming the admission of testimony pursuant to the tender years

hearsay exception, we have explained:

        Generally, hearsay is inadmissible at trial unless it falls into one
        of the exceptions to the hearsay rule. Commonwealth v. Bean,
        450 Pa.Super. 574, 677 A.2d 842, 844 (1996). The tender years
        exception to the rule against hearsay is set forth at 42 Pa.C.S.A.
        § 5985.1. The relevant sections of the statute are as follows:

           § 5985.1. Admissibility of certain statements

           (a) General rule.—An out-of-court statement made by a
           child victim or witness, who at the time the statement was
           made was 12 years of age or younger, describing physical
           abuse, indecent contact or any of the offenses enumerated
           in 18 Pa.C.S. Ch. 31 (relating to sexual offenses)

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            performed with or on the child by another, not otherwise
            admissible by statute or rule of evidence, is admissible in
            evidence in any criminal or civil proceeding if:

            (1) the court finds, in an in camera hearing, that the
            evidence is relevant and that the time, content and
            circumstances of the statement provide sufficient indicia of
            reliability; and

            (2) the child either:

            (i) testifies at the proceeding; or

            (ii) is unavailable as a witness.

      42 Pa.C.S.A. § 5985.1(a)

             As we have held in Commonwealth v. Fink, 791 A.2d 1235,
      1248 (Pa. Super. 2002), the tender years exception allows for
      the admission of a child's out-of-court statement due to the
      fragile nature of young victims of sexual abuse. Any statement
      admitted under § 5985.1 must possess sufficient indicia of
      reliability, as determined from the time, content, and
      circumstances of its making. Id. (citations omitted).

Commonwealth v. O’Drain, 829 A.2d 316, 319-320 (Pa. Super. 2003).

      Our review of the record supports the trial court’s determination that

the witnesses’ testimony was admissible.          M.D.S. and C.R.W.S. were less

than 12 years old at the time of their declarations regarding the indecent

assaults.     The statements possess indicia of reliability because they were

made to the victims’ parents very close in time to the indecent assaults,

using age-appropriate descriptions, and were made when the parents

questioned C.R.W.S., after observing C.R.W.S.’s odd behavior the morning

after C.R.W.S. spent the evening with Appellant. See N.T., 4/5/13, at 70-

82; 150-174.


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     Moreover, Appellant discounts that the children’s statements to their

parents are admissible under Pennsylvania Rule of Evidence 613. Indeed, in

O’Drain, supra, we affirmed a trial court’s admission of a child’s statement

to her mother’s fiancé, and observed:

     In cases involving sexual assault, Rule 613 authorizes the
     Commonwealth to present evidence in its case-in-chief of a
     prompt complaint by the victim “because [the] alleged victim's
     testimony is automatically vulnerable to attack by the defendant
     as recent fabrication in the absence of evidence of hue and cry
     on her part.”          Pa.R.Evid. 613(c) (comment), citing
     Commonwealth v. Freeman, 295 Pa. Super. 467, 441 A.2d 1327,
     1331 (1982). “Evidence of a complaint of a sexual assault is
     ‘competent evidence, properly admitted when limited to
     establish that a complaint was made and also to identify the
     occurrence complained of with the offense charged.’”
     Commonwealth v. Stohr, 361 Pa. Super. 293, 522 A.2d 589,
     592–593 (1987) (en banc ), quoting Commonwealth v. Freeman,
     295 Pa. Super. 467, 441 A.2d 1327, 1331 (1982).

O’Drain, 829 A.2d at 322. Here, as in O’Drain, the testimony concerning

the complaints of M.D.S. and C.R.W.S. to their parents was admissible to

“establish that a complaint was made and also to identify the occurrence

complained of with the offense charged.” Id.

     Likewise, the timing, content, and circumstances of the children’s

declarations to forensic interviewer Gluzman and Trooper Clem concerning

the aggravated indecent assaults reflects that those statements possess the

requisite indicia of reliability for admission under the tender years hearsay

exception.    Forensic interviewer Gluzman, an experienced interviewer of

children who have been the victims of sexual abuse, found the children to be

“genuine” at the time she interviewed them. N.T., 4/5/13, at 97-98. She


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did not observe “any signs of suggestion or taint[,]” and she “had no

indication that they were coached to say anything.” Id. at 95; 97. Likewise,

a review of Trooper Clem’s testimony reflects that she spoke to the children

and received from them statements concerning Appellant’s sexual contact

with them, which was expressed in age-appropriate language, in response to

age-appropriate open-ended questions. N.T., 4/8/13, at 201-216; 232-257.

Therefore, Appellant’s claim of trial court error regarding the admissibility of

the testimony of the children’s parents, forensic interviewer Gluzman, and

Trooper Clem fails.

      Appellant’s fourth issue contends that the evidence was insufficient to

support his convictions for aggravated indecent assault regarding M.D.S. and

C.R.W.S. because “the Commonwealth failed to advance any credible

testimony to establish beyond a reasonable degree of proof the element of

the ‘slightest penetration.’” Appellant’s Brief at 16.

      It is well-settled:

             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
      the fact-finder.   In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every 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

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      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. Abed, 989 A.2d 23, 26-27 (Pa. Super. 2010) (internal

citation omitted) (emphasis in original).

      Here, the trial court emphasized that Serrano’s testimony concerning

Appellant’s penetration of the victim’s genitals was not the sole testimony

regarding penetration presented to the jury.      Specifically, the trial court

stated, “Ms. Gluzman testified that during her interview with M.D.S., the girl

stated that [Appellant] ‘stuck his finger up [her] butt.’” Trial Court Opinion

and Order, 10/10/13, at 5, citing N.T., 4/5/13, at 123.        The trial court

further observed:

      [T]he girls’ mother testified that both the girls reported that
      [Appellant] touched their “kitty,” and it “hurt.” [N.T., 4/5/13,]
      at 66. Finally, the girls’ mother also testified that when she
      examined C.R.W.S.’s vaginal area, she found it to be “red and
      swollen.” Id. at 61. All of these statements constitute both
      direct and circumstantial evidence that penetration, however
      slight, took place. The fact that the victims did not testify to
      penetration at trial does not negate this evidence. []

Trial Court Opinion and Order, 10/10/13, at 5 - 6. This collective evidence,

viewed in the light most favorable to the Commonwealth as verdict winner,

was sufficient to support the jury’s determination that Appellant was guilty

of two counts of aggravated indecent assault.




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      Appellant’s fifth and final issue asserts that the trial court “erred in not

finding that the verdict was against the weight of the evidence and denying

Appellant a new trial.” Appellant’s Brief at 19.

      Scrutiny of whether a verdict is against the weight of the
      evidence is governed by the standard set forth in Commonwealth
      v. Champney, 574 Pa. 435, 832 A.2d 403 (2003).

         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. An
         appellate court cannot substitute its judgment for that of
         the finder of fact. 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. 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.

      Id. at 443, 832 A.2d at 408 (citations omitted).

Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006).

      Significantly, in Charlton, our Court explained:

             “A true weight of the evidence challenge concedes that
      sufficient evidence exists to sustain the verdict but questions
      which evidence is to be believed.” Commonwealth v. Galindes,
      786 A.2d 1004, 1013 (Pa. Super. 2001) (citation omitted).
      “[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 position to view
      the evidence presented. Commonwealth v. Wright, 865 A.2d
      894, 915 (Pa. Super. 2004) (citations omitted).

Id.



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      Instantly, the trial court discounted the seemingly conflicting evidence

regarding physical findings of sexual abuse during the children’s physical

examination by Dr. Carrasco. The trial court opined:

            Dr. Carrasco’s testimony indicating that she found no
      physical evidence of abuse during her examination of the girls is
      also inconsequential. As stated in the background of the case,
      Dr. Carrasco said that in “95 percent of cases,” there is no
      physical evidence.” Id. at 144. She further stated [that] an
      absence of physical evidence does not mean that abuse did not
      occur.” Id.

            For all these reasons, none of the verdicts “shock the
      conscience” of this Court, and this Court does not believe that
      the verdicts were against the weight of the evidence.

Trial Court Opinion and Order, 10/10/13, at 5-6.

      Our review of the record supports the trial court’s determinations

regarding the sufficiency and weight of the evidence, and is consonant with

the precept that “[i]t is the function of the jury to evaluate evidence

adduced at trial to reach a determination as to the facts, and where the

verdict is based on substantial, if conflicting evidence, it is conclusive on

appeal.”   Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super.

2003) (internal citation omitted).   Further, “the jury [is] not obligated to

accept” the evidence submitted by the defense.           Commonwealth v.

Boczkowski, 846 A.2d 75, 82 (Pa. Super. 2004) citing Commonwealth v.

Tharp, 830 A.2d 519, 527 (Pa. 2003). Accordingly, Appellant’s challenges

to the sufficiency and weight of the evidence are unavailing.

      Judgment of sentence affirmed.


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J-S27040-14


     Judge Gantman, P.J., joins the memorandum.

     Judge Stabile files a concurring/dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




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