J-A14013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRUCE R. SCHMIDT,

                            Appellant                No. 1271 MDA 2014


         Appeal from the Judgment of Sentence entered June 17, 2014
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0003819-2013


BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 23, 2015

        Bruce Schmidt (Appellant) appeals from the June 17, 2014 judgement

of sentence of an aggregate term of 6 to 23 months’ imprisonment following

a jury trial at which Appellant was found guilty of indecent assault of a

complainant less than 13 years of age1 and corruption of minors.2 Appellant

now challenges the lower court’s failure to grant a motion challenging the

weight of the evidence. After careful review, we affirm.

        We set forth a factual summary of this matter as follows:

        Mother and Father were the biological parents of the victim, A.C. and

her two siblings, B.C. and R.C. Notes of Testimony, Trial (N.T.T.), 3/11/14,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3126(a)(7).
2
    18 Pa.C.S. § 6301(a)(1)(ii).
J-A14013-15



at 129-130. A.C.’s parents were divorced and living separately during the

events at issue.   N.T.T., at 130. Father would not permit Mother to have

unsupervised visitations with the children.   N.T.T., at 135-36.   Father and

Mother prepared a visitation agreement that included Appellant as the

primary supervisor of Mother’s visitations. N.T.T., at 135-36.

      The visitations would take place in Appellant’s trailer. N.T.T., at 131.

The trailer included a bedroom in which Appellant slept, another bedroom at

the opposite end of the trailer in which Mother slept, and a pull-out couch on

which the three children would sleep. N.T.T., at 231.

      Appellant was charged with touching the vaginal area of A.C. during

visitations in 2012. A.C. testified that while sleeping Appellant would pick

her up and take her into the bedroom. N.T.T., at 102. Her siblings, B.C.

and R.C. corroborated her testimony when they testified that Appellant

would take A.C. to his bedroom while they were sleeping. N.T.T., at 115,

123. Father, Father’s girlfriend, and Kari Stanley (the forensic interviewer at

the Lancaster County Children’s Alliance) produced A.C.’s out of court

statements at trial that further supported her testimony. N.T.T., at 132,

146-47, 179.    A.C. testified that while in Appellant’s bedroom he would

touch her. N.T.T., at 103. She said that the touching happened “[i]n my

private.” N.T.T., at 104. And, that her “private” referenced that part of her

body that she uses to pee. N.T.T., at 104.

      After a trial by jury, Appellant was found guilty and sentenced as

stated above. He filed a post-sentence motion including, inter alia, a motion

                                     -2-
J-A14013-15



challenging the weight of the evidence.      The trial court denied the post-

sentence motion in its entirety. Appellant filed a timely notice of appeal and

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement.

Appellant now presents the following issue for our review:

      Did the lower court abuse its discretion by failing to grant a new
      trial on the basis that the guilty verdict was against the weight of
      the evidence when the totality of the evidence on the basic
      issues of the case was so inconsistent as to be irreconcilable?

Appellant’s Brief, at 4.

      We review Appellant’s challenge to the weight of the evidence

according to the following standards:

      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.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations

omitted).

            “An abuse of discretion is not merely an error of judgment,
      but if in reaching a conclusion the law is overridden or
      misapplied,  or    the   judgment     exercised    is   manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill-
      will, as shown by the evidence or the record, discretion is
      abused.”




                                     -3-
J-A14013-15



Commonwealth v. Stollar, 84 A.3d 635, 650 (Pa. 2014) (citations

omitted).

      The trial court found the evidence reliable and further corroborated by

supporting testimony. Accordingly, the trial court held that Appellant’s claim

is meritless.   Trial Court Opinion (T.C.O.), 10/8/2013, at 2-3.      We agree.

“[A] case should not go to the jury where the party having the burden offers

testimony of a witness, or of various witnesses, which is so contradictory on

the essential issues that any finding by the jury would be a mere guess.”

Commonwealth v. Bennett, 303 A.2d 220, 221 (Pa. Super. 1973).

Appellant argues that the trial court did not apply this rule correctly and in

so doing committed reversible error.

      Appellant’s argument is premised on the assertion that the testimony

of Commonwealth’s witnesses was so contradictory on the essential issue,

common to both offenses, as to amount to an abuse of discretion.           See

Appellant’s Brief, at 13-18. To establish this claim, Appellant provides the

four following series of testimony which are contradictory in location,

manner, and frequency as to the illegal acts:

      She gave multiple accounts regarding the location of “tickle
      fights” and whether “tickle fights” were the means by which
      [Appellant] touched her vaginal area:

               The tickle fights occurred only in [Appellant]’s
                bedroom.

               The tickle fights occurred only in the living room.

               When [Appellant] engaged in tickle fights with her,
                he would touch her vaginal area.


                                      -4-
J-A14013-15


                When [Appellant] touched her vaginal area, it was
                 not in connection with a tickle fight, but was mere
                 “touching.”

      She gave multiple accounts of the location of the vaginal
      touching:

                The vaginal touching occurred in only one location,
                 [Appellant]’s bedroom.

                The vaginal touching occurred in two locations,
                 [Appellant]’s bedroom and the back room where
                 [Mother] slept.

      She gave multiple accounts of the manner in which [Appellant]
      touched her vaginal area:

                [Appellant] touched her over her clothing.

                [Appellant]’s fingers came into contact with the bare
                 skin of her “private.”

      She gave multiple accounts of the frequency of the incidents of
      vaginal touching:

                The vaginal touching occurred over an extended time
                 period, i.e., “for a while” or “on multiple occasions.”

                The vaginal touching occurred on only one occasion.

                The vaginal touching occurred on only two occasions.

Id. at 17-18.

      Appellant summarizes by stating: “In view of all the foregoing, the

contradictions were so great that they were not subject to reconciliation by

the jury. The totality of the evidence was so contradictory on the essential

issues that the jury’s verdict was against the weight of the evidence.”

Appellant’s Brief, at 18.

      In ruling on Appellant’s motion, the trial court applied the following

reasoning:


                                       -5-
J-A14013-15


              Here, the [c]ourt did not abuse its discretion by allowing
       the jury verdict to stand since the verdict was not against the
       weight of evidence.         The [c]ourt viewed the evidence and
       testimony in the light most reasonable and held a tender years
       hearing held on March 10, 2014. The [c]ourt held that “With
       regard to the Commonwealth’s Tender Years motion, I do find
       that the evidence is relevant in terms of this proceeding and that
       the time, content and circumstances of these statements provide
       sufficient indicia of their reliability.

              Further, the Commonwealth corroborated the victim’s
       testimony with testimony from other witnesses. At trial, the
       Commonwealth presented evidence that [Appellant] was friends
       with the victim’s mother and had a formal agreement with the
       victim’s father that gave [Appellant] the right of guardianship
       with the mother when the children would visit at his home. In
       addition, the victim’s siblings [] also testified to visiting and
       staying at [Appellant]’s home with the victim. Both siblings also
       testified that the victim slept in [Appellant]’s room.

T.C.O., at 2-3 (citations to the record omitted).

       In weighing Appellant’s claim, we apply the aforementioned rules. To

summarize, the rules state that our review is limited to whether the trial

court exercised its judgment in a manifestly unreasonable manner when it

concluded that the testimony of Commonwealth’s witnesses was not so

contradictory on the essential issues as to render the jury’s finding a mere

guess.3



____________________________________________


3
  See generally Champney, 832 A.2d at 408 (holding that appellate review
is limited to whether the trial court abused its discretion). See also Stollar,
84 A.3d at 650 (defining an abuse of discretion). Cf. Bennett, 303 A.2d at
221 (providing the rule which Appellant argues that the trial court applied
incorrectly).




                                           -6-
J-A14013-15



       The essential issue under scrutiny is the touching of A.C.’s sexual or

intimate parts.4     This evidence was testified to at trial by the victim and

corroborated by other witnesses for the Commonwealth. The jury was free

to believe all, part, or none of the testimony, and as evidenced by the guilty

verdict, did believe that Appellant had touched A.C.’s sexual or intimate

parts regardless of inconsistencies in location and frequency. Further, there

were no facts in this case which so contradicted the essential issue as to

render the jury’s finding a mere guess. Accordingly, we conclude the trial

court did not exercise its judgment in a manifestly unreasonable manner

when it found that the verdict was not contrary to the weight of the

evidence.

       Judgment of sentence AFFIRMED.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015



____________________________________________


4
  See 18 Pa.C.S. § 3126(a)(7). See also 18 Pa.C.S. § 6301(a)(1)(ii).
Indecent contact is defined as, “[a]ny touching of the sexual or other
intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person.” 18 Pa.C.S. § 3101.



                                           -7-
