J-A05032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MARIE ANN FARABAUGH                        :   No. 681 WDA 2019

                  Appeal from the Order Entered April 11, 2019
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0005683-2015


BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                           FILED MARCH 27, 2020

        The Commonwealth appeals from the order of the Court of Common

Pleas of Westmoreland County (trial court) granting the post-trial motion for

a new trial of Marie Ann Farabaugh (Farabaugh). After our careful review, we

affirm.

        We take the following factual background and procedural history from

the trial court’s April 11, 2019 opinion and our independent review of the

certified record. On February 1, 2016, the Commonwealth charged Farabaugh

with Endangering the Welfare of Children (EWOC), 18 Pa.C.S. § 4304(a)(1),

and Recklessly Endangering Another Person (REAP), 18 Pa.C.S. § 2705,


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*   Retired Senior Judge assigned to the Superior Court.
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related to incidents that occurred between January 1, 2012, and January 1,

2015.1    The trial court held a jury trial from August 6-8, 2018, at which

Farabaugh and Palmer were co-defendants.          The trial court provided the

following thorough recitation of the significant facts adduced at trial:

       1. Alyssa was born on May 20, 1998; at the time of trial, she was
       20 years old. (N.T. Trial, at 97, 140). She testified that the first
       incident of abuse by [Palmer] occurred when she was roughly 12
       years old and living at a home on Murtha Way in Latrobe,
       Pennsylvania with her mother, [Palmer], and her seven -year -
       younger sister, Autumn. (See id. at 99). Alyssa testified that
       approximately one week after the first incident of abuse she told
       her mother that “Bruce touched [her] inappropriately,” and her
       mother did not believe her and grounded her. (See id. at 101).

       2. Alyssa testified that when she was approximately 14 years old
       (i.e., between May 2012 and May 2013), she moved to a home on
       Dancer Road, along with her mother, [Palmer], Autumn, and her
       approximately 11-year-younger, half-brother, Xander. (See id.
       at 102, 141, 273). Alyssa testified that while living at Dancer
       Road, “Bruce got very sexual with [her]. He used to touch [her]
       inappropriately. It got to the point where he would start touching
       [her] underneath [her] clothes. And it got to the point where he
       would rape [her] and have sex with [her].” (See id. at 104).

       3. Alyssa testified that [Palmer] first raped her when she was 14
       years old and living at Dancer Road, and thereafter that [Palmer]
       raped her “[a]bout once a week, maybe more,” when she was
       fourteen, fifteen and sixteen years old. (See id. at 100, 105,
       115). Alyssa testified that [Palmer] abused her for approximately
       five (5) years when she was between the ages of 12 to 16 years


____________________________________________


1 Specifically, her live-in boyfriend, Bruce Jonathan Palmer (Palmer), was
charged and convicted of Rape by Forcible Compulsion, 18 Pa.C.S. §
3121(a)(1), and related charges, as the result of his alleged rape and sexual
assault of Farabaugh’s daughter, Alyssa Farabaugh (Alyssa), during the same
time period. The trial court also granted his motion for a new trial, and the
Commonwealth has appealed that ruling at docket number 668 WDA 2019.


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     old; and that he raped her on a weekly basis during the ages of
     14 to 16 years old. (See id. at 115).

     4. During the period of time in which Alyssa testified the abuse
     and rapes occurred, i.e., roughly 2010-2014, Alyssa’s father and
     mother were engaged in a legal dispute regarding the custody of
     both Alyssa and Autumn. (See id. at 116).

     5. As late as October 14, 2014, in the course and context of her
     parents’ custody litigation, Alyssa expressed to her guardian ad
     litem and to the family court a continuing preference to live with
     her mother and [Palmer], rather than with her father. (See id. at
     137-38, 222-25).

     6. Alyssa told father’s wife, Jodie, in mid-February 2015, that
     [Palmer] raped her “multiple times over a few years.” (See id. at
     111, 143, 197). Both Alyssa and Jodie testified that Alyssa got
     into a significant argument over the phone with her mother
     regarding Alyssa’s use of marijuana shortly before Alyssa told
     Jodie that [Palmer] raped her. (See id. at 198, 2005). Alyssa’s
     father called the police after Alyssa told him that [Palmer] raped
     her. (See id. at 111, 198). Alyssa’s father testified that, later
     that same day, he relinquished custody of his 10-year-old
     daughter, Autumn, to Mother and [Palmer], for Mother’s period of
     shared custody. (See id. at 230).

     7. Alyssa testified that she told her grandmother about [Palmer’s]
     actions when she stayed at her house. (See id. at 106). Alyssa
     testified that her mother picked her up from her grandmother’s
     house and sometime thereafter made her call her grandmother on
     the phone and apologize for lying about what [Palmer] had done.
     (See id. at 106, 120).

     8.    Alyssa’s   maternal     grandmother,     Margaret     Camilli
     (“Grandmother”), however, testified in substantial contradiction
     to Alyssa’s testimony. Grandmother testified that Alyssa stayed
     over at her house one night in the summer of 2014, in
     approximately June 2014, and Alyssa got in [a] big phone
     argument and fight with her mother over a misplaced iPad in the
     family home. (See id. at 174-79). Grandmother testified that
     Alyssa was extremely upset over the iPad argument, over being
     accused of lying about its location, and that Alyssa said [Palmer]
     probably hid the iPad to get her in trouble and that “we had sex.”
     (See id. at 174-83). Grandmother testified that Alyssa said the

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     next morning, “Grandma, I lied about that. That’s all she said,”
     and after that “everything was fine” and she took Alyssa home
     later that day. (See id. at 174-182).

     9. Alyssa testified that while living at Dancer Road, she also told
     her then boyfriend, Stanley Ferry, about [Palmer’s] abuse. (See
     id. at 107, 123-24).        Mr. Ferry, however, also testified in
     substantial contradiction to Alyssa’s testimony. Mr. Ferry testified
     that Alyssa told him that [Palmer] molested her when she was six
     years old, specifically, that Alyssa told him in 2014, when Alyssa
     was 16, that “[Palmer] went into her bedroom when she was six
     years old and molested her is what she said.” (See id. at 188-
     193). Alyssa turned six years old in May 2004. [Palmer’s]
     uncontradicted testimony at trial, however, was that he and
     Mother’s romantic relationship began in 2007, when they worked
     together at Walmart, and that they moved in together in 2008.
     (See id. at 272, 274).

     10. . . . [D]espite testifying to being raped by [Palmer] at least
     once weekly from the ages of 14 to 16 years old, and to an
     unspecified amount of inappropriate touching in the years prior
     since she was 12, Alyssa offered little in the way of specific
     testimony regarding these incidents. (See id. at 100, 104).

     11. At sidebar with counsel during Alyssa’s cross-examination at
     trial, Alyssa was directed out of the witness stand and was seated
     at the prosecution table, approximately two to three feet away
     from the front of the jury box. (See id. at 125-27). During
     sidebar, Alyssa began crying visibly while seated in front of the
     jurors. (See id. at 129). When Attorney Sweeney alerted the
     Court to Alyssa crying, the Court immediately took a ten-minute
     recess and had the jury escorted from the courtroom. (See id. at
     127, 129). Jurors numbered four and five, who were seated
     closest to Alyssa, put their heads down. (See id. at 130).

     12. During the recess in Alyssa’s testimony, two jurors left the
     jury room to use the public restrooms. Mr. Sweeney represented
     to the Court that Alyssa was crying outside of the courtroom when
     the jurors would have passed by her. (See id. at 129-30). After
     a discussion with counsel in chambers regarding these incidents,
     the Court expressed its willingness to consider options to mitigate
     the prejudicial effect of Alyssa’s display of emotion so close to the
     jury, and its likely observation by two jurors outside of the


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      courtroom. (See id. at 131-33). Defense counsel requested that
      the trial proceed without further curative action. (See id. at 133).

      13. During her mother’s testimony, Alyssa ran out of the
      courtroom, crying noticeably and disruptively in the jury’s view,
      substantially as described by the [Palmer’s] counsel on the record,
      who particularly described that Alyssa’s crying became louder
      when she got out of the courtroom. (See id. at 279-284).

      14. In another incident during her mother’s testimony, while
      seated approximately 10 feet from the jury box, behind counsel’s
      table, but in full view of the court and the jury, Alyssa “almost
      doubl[ed] down onto the floor. She was doing that for a while.
      She kind of disappeared between the victim advocate and her
      father.” (Id. at 284). The court further notes that Alyssa’s
      displays of emotion were muted while she testified from the
      witness stand, but were much more pronounced and
      demonstrative when not testifying.           Upon retrospective
      consideration of these incidents, the court notes that Alyssa’s
      melodramatic displays of emotion appeared to be at least in part
      contrived. (See id. at 284) (where the court initially noted that
      the substance of Alyssa’s outburst was “more than [just] crying.”).

(Trial Ct. Op., at 6-9) (footnotes and unnecessary capitalization omitted; some

record citation formatting provided).

      The jury convicted Farabaugh of both charges against her.              On

November 11, 2011, the trial court sentenced her to intermediate punishment

of two years, with six months of home electronic monitoring for EWOC, and

two years concurrent probation for the REAP conviction. On November 13,

2018, Farabaugh filed a post-sentence motion seeking a new trial based on

the weight of the evidence. On April 11, 2019, after a hearing, the trial court

granted the motion requesting a new trial, finding that the jury verdict was

against the weight of the evidence. The Commonwealth timely appealed and

complied with Rule 1925. See Pa.R.A.P. 1925.

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      The Commonwealth argues that the trial court abused its discretion in

finding that the jury verdict was against the weight of the evidence. (See

Commonwealth’s Brief, at 13). Specifically, the Commonwealth maintains,

“the reasons given by the trial court in the case at issue to support the

granting of a new trial are nothing more than a re-assessment of the credibility

of the witnesses and lack the necessary foundation for the required

concomitant finding of a serious miscarriage of justice.” (Id. at 17).

      Farabaugh counters that the trial court properly exercised its discretion

to grant a new trial for the reasons stated in its decision where the case relied

completely on Alyssa’s testimony. (See Farabaugh’s Brief, at 7, 14).

      We consider the following legal principles in considering this issue:

             The finder of fact—here, the jury—exclusively weighs the
      evidence, assesses the credibility of witnesses, and may choose
      to believe all, part, or none of the evidence. Issues of witness
      credibility include questions of inconsistent testimony and
      improper motive. A challenge to the weight of the evidence is
      directed to the discretion of the trial judge, who heard the same
      evidence and who possesses only narrow authority to upset a jury
      verdict. The trial judge may not grant relief based merely on some
      conflict in testimony or because the judge would reach a different
      conclusion on the same facts. Relief on a weight of the evidence
      claim is reserved for extraordinary circumstances, when the jury’s
      verdict is so contrary to the evidence as to shock one’s sense of
      justice and the award of a new trial is imperative so that right may
      be given another opportunity to prevail.

Commonwealth v. Sanchez, 36 A.3d 24, 26-27 (Pa. 2011) (citations and

quotation marks omitted). Although, generally, issues of credibility are for

solely for the jury,




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             [w]hen a motion for new trial is made on the ground that
      the verdict is contrary to the weight of the evidence, . . . [t]he
      [trial] court need not view the evidence in the light most favorable
      to the verdict; it may weigh the evidence and in so doing evaluate
      for itself the credibility of the witnesses. If the court concludes
      that, despite the abstract sufficiency of the evidence to sustain
      the verdict, the evidence preponderates sufficiently heavily
      against the verdict that a serious miscarriage of justice may have
      occurred, it may set aside the verdict, grant a new trial, and
      submit the issues for determination by another jury.

Commonwealth v. Widmer, 744 A.2d 745, 752 n.3 (Pa. 2000) at 752 n.3

(citation omitted).

      On appeal:

               Appellate review of a weight claim is a review of the
       exercise of discretion, not of the underlying question of whether
       the verdict is against the weight of the evidence. Because the
       trial judge has had the opportunity to hear and see the evidence
       presented, an 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. One 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 and that a new trial should be granted in the interest
       of justice.

Id. at 753 (citations omitted; some evidence in original; some emphasis

added).

            Discretion is abused when the course pursued represents
      not merely an error of judgment, but 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. (citation omitted).

      Here, the trial court explained:


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            At trial, Alyssa’s credibility was the crucial issue for
      consideration. No single matter . . . is by itself determinative of
      the issues presented. Taken together, however, the nature and
      context of the contradictory testimony, the almost complete lack
      of detailed, corroborating testimony from the victim, the timing
      and context of the victim’s initial complaints and the shadow cast
      over the trial by the victim’s very visible, often melodramatic
      displays in front of the jury, compel this court to grant [the]
      motion for a new trial. Justice demands no less.

(Id. at 9) (unnecessary capitalization omitted).

      After our own independent review of the record, we discern no

manifestly unreasonable abuse of discretion where the trial court did not

misapply the law, and there is no evidence in the record that its decision was

the “result of partiality, prejudice, bias or ill will.” Widmer, supra at 753

(citation omitted).

      We further observe that as noted by the trial court, our Supreme Court’s

case of Commonwealth v. Karkaria, 625 A.2d 1167, 1170 (Pa. 1993), is

instructive in this matter.   In Karkaria, the defendant was charged with

raping his step-sister, who provided the prosecution’s sole evidence.        She

testified that defendant sexually assaulted her on a weekly basis for three

years, in the same manner each time, while he babysat her on the weekends.

Karkaria, supra at 1168. The Court examined whether the jury verdict was

supported by sufficient evidence or by testimony “so unreliable and

contradictory that their verdict could only have been arrived at through

speculation and conjecture.” Id. at 1170. The Court reversed the judgment

of sentence, finding that it was “riddled with critical inconsistencies,” such as


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(1) the lack of “untoward suspicion” raised by the victim’s initial accusations;

(2) the insufficient detail in her initial accusations and testimony; (3) the

timing and context of her initial complaints; (4) the victim’s “disturbingly”

vague and inconsistent testimony about when the alleged acts occurred; (5)

the degree of revision in her testimony when confronted with conflict; and (6)

the lack of detail supporting any revised or clarified testimony. See id. at

1171.

        Particularly troubling to the Court was “[t]he lack of evidence as to when

the alleged assaults occurred” and that the victim “offered one scenario, and

one scenario only, for each one of the 300 or more alleged incidents of sexual

assault.” Id. Based on the foregoing, the Court concluded that the evidence

was so unreliable and contradictory, it was insufficient to support the guilty

verdict as a matter of law. See id.

        The factors on which our Supreme Court relied are mirrored in the case

before us. Alyssa’s initial complaints did not raise any “untoward suspicion.”

In fact, her mother grounded Alyssa for lying, her grandmother said she made

the accusation in an outburst and then retracted it the next day, and her

biological father relinquished custody of her younger sister, Autumn, to

Farabaugh and Palmer, for mother’s period of shared custody, immediately

after learning of Alyssa’s accusation against Palmer. Additionally, while Alyssa

alleges that the sexual misconduct occurred for approximately five years, she

was able to provide only limited, vague scenarios about where these incidents


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allegedly occurred, with no elaboration or specific detail. Alyssa made her

allegations immediately after intense arguments with her mother about her

marijuana use and her alleged theft of her sister’s missing iPad, which was

discovered in Alyssa’s bedroom, thus making the timing and context of her

complaints suspect. Additionally, her complaint to her boyfriend that Palmer

raped her when she was six years old was inconsistent with her own story that

the abuse began when she was twelve, and Palmer’s undisputed testimony

that he was not in a relationship with Farabaugh until after that time.

      Therefore, the foregoing, when analyzed under Karkaria, support the

trial court’s finding that the jury’s verdict was against the weight of the

evidence because the evidence was “so unreliable and contradictory that their

verdict could only have been arrived at through speculation and conjecture.”

Id. at 1170.

      Further, we observe that in addition to the Karkaria factors, the court,

which was in the best position to view the trial, observed Alyssa’s

“melodramatic displays” (Trial Ct. Op., at 8), further supporting its finding that

justice demands a new trial. Specifically, the record reflects that (1) during a

sidebar, Alyssa visibly cried in front of the jurors while seated at counsel table,

(see N.T. Trial, at 127, 129); (2) during a recess, two jurors left the jury room

to use the public bathroom and passed Alyssa crying in the hallway, (see id.

at 129-30); (3) during her mother’s testimony, Alyssa ran out of the

courtroom noticeably and disruptively crying in the jury’s view (see id. at


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281); and (4) in full view of the trial court and jury, Alyssa not only cried but

“almost doubl[ed] down on the floor . . . for a while” during her mother’s

testimony, (id. at 284).        While the court and counsel acknowledged that

Alyssa had the right to cry, the trial court pointed out in chambers that “[i]t

was more than the crying.”             It was what the court perceived as the

“overdramatic” nature of her behavior.             (Id. at 284)   (“It [was] almost

doubling down onto the floor. She was doing that for a while.”). In fact,

defense counsel noted that should such behavior continue during closing

statements, they would move for a mistrial, and the court acknowledged that

it would have to consider it. (See id. at 281-84). Finally, the court observed,

“Alyssa’s displays of emotion were muted while she testified . . . but were

much more pronounced and demonstrative when not testifying.” (Trial Ct.

Op., at 8).

       Accordingly, based on all of the foregoing, under our narrow standard

of review of the trial court’s least assailable of rulings, we affirm its order

finding that the verdict was against the weight of the evidence and granting a

new trial in the interest of justice.2


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2 We recognize the Commonwealth’s argument that “[a] new trial should not
be granted because of a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different conclusion.” Widmer,
supra at 272 (citation omitted). However, here, it was not merely a conflict
in the testimony on which the trial court relied for its ruling. Instead, it was
a totality of the evidence before it, including the nearly complete lack of



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       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




____________________________________________


detailed testimony from Alyssa, the timing and context of her initial complaints
and her melodramatic displays in the jury’s presence.

While the Commonwealth exhaustively reviews statements made by Alyssa,
in the light most favorable to it, (see Commonwealth’s Brief, at 21-25), we
remind the Commonwealth that this Court will not re-weigh the evidence or
look at the record in the light most favorable to it in a weight of the evidence
challenge. See Widmer, supra at 753.

Additionally, we are cognizant that in sexual assault cases, the victim’s
testimony alone is sufficient, if believed.       See Commonwealth v.
Poindexter, 646 A.2d 1211, 1214 (Pa. Super. 1994) (citing 18 Pa.C.S.
§ 3106). However, as observed by our Supreme Court in Karkaria, supra,
where the testimony is “so unreliable and contradictory that the[] verdict
would only have been arrived at through speculation and conjecture[,]” a new
trial is warranted. Karkaria, supra at 1170.

Finally, the Commonwealth complains that the trial court improperly found
that the timing and context of the initial complaints was suspect and ignored
the testimony of its child sexual abuse expert who testified that the behavior
and responses a child might exhibit if sexually abused. (See Commonwealth’s
Brief, at 29-30). However, again, we will not re-weigh the evidence, and
merely because the trial court did not find this testimony significant enough
to include it in its opinion, we cannot give it a greater weight than that
provided by the trial court.

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