J-S56018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GORDON CHARLES WILLIAMS

                            Appellant                   No. 45 MDA 2016


           Appeal from the Judgment of Sentence December 14, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002854-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                            FILED AUGUST 19, 2016

        Appellant, Gordon Charles Williams, appeals from the judgment of

sentence entered December 14, 2015, in the Court of Common Pleas of

Berks County, following his conviction of Rape of a Child, Indecent Assault,

Corruption of Minors, Endangering the Welfare of Children and Indecent

Exposure.1 No relief is due.

        The trial court summarized the facts of this case as follows.

              In January 2010, [B.H.] and Appellant lived at 928 Church
        Street in the City of Reading with four children, including eight-
        year-old [K.H.] (“the victim”). The other children included [T.B.],
        [K.H.], and [R.W.]. [R.W.] is the son of [B.H.] and Appellant,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3121(c); 3126(a)(7); 6301(a)(1); 4304(a)(1); and
3127(a), respectively.
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     who were engaged to be married and had moved in together in
     2005.

            On January 8, 2010, [B.H.] left work early at 2 p.m. She
     arrived home approximately seven minutes later, where she
     found the front door and deadbolt both locked. When she walked
     inside, all the lights were turned off. … [B.H.] did not see or hear
     Appellant in the kitchen, so she went upstairs. At the top of the
     stairs, she looked into her daughters’ bedroom and saw a large,
     dark lump that did not look like the normal blanket she would
     expect to see. [B.H.] turned the light on, and she saw Appellant
     and [the victim] on the bottom bunk of a bunk bed. Both were
     naked from the waist down, and Appellant was holding [the
     victim’s] hip up against him. [The victim] had stayed home from
     school because she felt sick.

           [The victim] began screaming and crying and she ran to
     the middle of the room where her pants were laying. [B.H.]
     began yelling, and Appellant eventually pulled up his pants and
     walked down the steps. [B.H.] told [the victim] to stay in the
     room, and she ran down the stairs after Appellant. Downstairs,
     Appellant was holding [R.W.] and he said, “Daddy has to go
     now.” [B.H.] and Appellant exchanged some physical blows, and
     then [B.H.] called 9-1-1 as Appellant left the home.

            Officers arrived at the house to investigate. Later that day,
     [B.H.] took [the victim] to the hospital to be examined. Dr.
     Renee Riddle, a pediatrician at Reading Hospital, testified that
     [the victim] had some bruising on her buttocks and a tear in her
     hymen. One week later, the tear was healed, indicating that the
     tear likely occurred around the time of the initial evaluation.

           Sometime that day, Appellant went to the home of
     Kimberly Hawley, a friend of the family. He seemed “unusual”
     and “nervous,” and he asked for some money in order to travel
     to Harrisburg on a bus. Later, Kimberly received a phone call
     from [B.H.], who hysterically explained what had happened.

           Zach Smith of the Berks County Sheriff’s Department was
     working in the warrant division on January 15, 2010. Smith was
     assigned to go to 62 North Second Street in Hamburg, Berks
     County to serve a warrant for Appellant. After Smith had
     knocked and announced his presence, Appellant opened the door
     and then turned to walk away. Smith took Appellant to the
     ground and handcuffed him. Once Appellant was brought to his


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       feet, Smith noticed that his neck and shirt were bloody. Smith
       saw there was small razor on the ground.

             [The victim] testified that Appellant began abusing her at
       age four. She remembered that detail because it began before
       she was potty-trained. Appellant raped her repeatedly
       throughout the ensuing years by putting his penis in her vagina.
       Appellant also would touch his penis to her mouth, which she
       refused. [The victim] often cried because of the physical pain,
       and he would insist that she be quiet. The assaults occurred in
       the bathroom, the laundry room, Appellant’s bedroom, and [the
       victim’s] bedroom.

             [The victim] eventually revealed additional details to
       William Kase, then a criminal investigator with the City of
       Reading Police Department. [She] described Appellant’s penis
       and stated that he had inserted his penis into her vagina on
       January 8, 2010 before her mother entered the bedroom.

Trial Court Opinion, 3/7/15 at 2-3 (record citations omitted).

       A jury convicted Appellant of the aforementioned charges. The trial

court sentenced Appellant to a term of 20 to 40 years’ imprisonment.2

Appellant filed a post-sentence motion, which the trial court denied. This

timely appeal followed.

       Appellant first argues that the trial court erred in denying his post-

sentence motion challenging his convictions as contrary to the weight of the

evidence. A challenge to the weight of the evidence “concedes that the

evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal    that    a   guilty    verdict     shocks   one’s   sense   of   justice.”
____________________________________________


2
  The trial court determined that the Commonwealth failed to meet its
burden of proving that Appellant was a Sexually Violent Predator.



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Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal

denied, 99 A.3d 925 (Pa. 2014) (citation omitted). A verdict is said to be

contrary to the evidence such that it shocks one’s sense of justice when “the

figure of Justice totters on her pedestal,” or when “the jury’s verdict, at the

time of its rendition, causes the trial judge to lose his breath, temporarily,

and causes him to almost fall from the bench, then it is truly shocking to the

judicial conscience.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.

Super. 2004) (citations omitted), aff’d, 595 Pa. 1, 938 A.2d 198 (2007).

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review. 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.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotes and citations omitted).

      In support of his claim that the verdict was against the weight of the

evidence, Appellant asserts that the victim’s mother, B.H., coached the

victim to testify against the Appellant regarding the sexual assault in order

to avoid a custody battle over the couple’s minor child. Appellant’s claim is

wholly speculative and unsupported by the evidence.

      As noted, the Commonwealth established that B.H. came home on

January 8, 2010, to discover Appellant in bed with the victim, both of whom

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were naked from the waist down. A subsequent medical examination of the

victim on the day of the incident established that she had sustained bruises

to her buttocks and a tear in her hymen. Dr. Riddle testified that the fact

that the tear had healed approximately one week later suggested that the

tear likely occurred around the date B.H. discovered Appellant in bed with

the victim. Additionally, the victim testified that Appellant had repeatedly

raped her—for over four years—and stated specifically that Appellant had

inserted his penis into her vagina on January 8, 2010.

      In light of the overwhelming evidence presented, we find that the

verdict does not in any respect shock one’s sense of justice. The figure of

justice is firmly rooted to her pedestal. The trial court did not abuse its

discretion, and Appellant’s weight of the evidence claim must fail.

      Appellant lastly argues that the sentence imposed by the trial court

was manifestly excessive. This claim challenges the discretionary aspects of

Appellant’s sentence. A challenge to the discretionary aspects of a sentence

must be considered a petition for permission to appeal, as the right to

pursue such a claim is not absolute.” Commonwealth v. McAfee, 849 A.2d

270, 274 (Pa. Super. 2004) (citation omitted).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      [We] conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal

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      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, Appellant challenged his sentence in a post-sentence motion and

filed a timely appeal. Appellant’s brief also contains the requisite Rule

2119(f) concise statement. We must now determine whether Appellant’s

challenge to the discretionary aspects of his sentence raises a substantial

question.

      “A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.

2015) (citation omitted). “[W]e cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”   Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015) (citation

omitted).

      Here, Appellant claims in his Rule 2119(f) statement that the “the

sentencing court did not consider the requisite sentencing factors, namely

the rehabilitative needs of the defendant nor the circumstances particular to

this individual case.” Appellant’s Brief at 8. Appellant further contends that


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the trial court abused its discretion when it “ignored Appellant’s request to

consider other than the statutory maximum.” Id.

      “[A] generic claim that a sentence is excessive does not raise a

substantial question for our review.” Christine, 78 A.3d at 10 (citation

omitted). “Additionally, this Court has repeatedly held that an allegation that

the trial court failed to consider particular circumstances or factors in an

appellant’s case go to the weight accorded to various sentencing factors and

do not raise a substantial question.” Id. at 10-11 (citation omitted).

      While Appellant argues that the sentencing court failed to consider his

rehabilitative needs and the “circumstances of the case,” in substance he

merely argues that the court failed to sufficiently address factors of record.

The sentencing court had prepared and reviewed a pre-sentence report. See

N.T., Sentencing, 12/14/15 at 55. Where the sentencing court had the

benefit of reviewing a pre-sentence report, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant's character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure. Having been fully informed by the pre-sentence
      report, the sentencing court's discretion should not be disturbed.
      This is particularly true, we repeat, in those circumstances where
      it can be demonstrated that the judge had any degree of
      awareness of the sentencing considerations, and there we will
      presume also that the weighing process took place in a
      meaningful fashion. It would be foolish, indeed, to take the



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      position that if a court is in possession of the facts, it will fail to
      apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted). As the sentencing court in this case did have the benefit of a pre-

sentence report, we must presume that he considered all relevant

sentencing factors and fashioned an individualize sentence.

      Based on the foregoing, we are constrained to find that Appellant’s

claim that the sentencing court did not adequately consider relevant factors

of record fails to raise a substantial question. See Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014), appeal denied, 104

A.3d 1 (Pa. 2014) (“[A]rguments that the sentencing court failed to consider

the factors proffered in 42 Pa.C.S. § 9721 does present a substantial

question whereas a statement that the court failed to consider facts of

record, though necessarily encompassing the factors of § 9721, has been

rejected.”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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