J-A09032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOSHUA JAMES STUMP,

                            Appellant                  No. 1405 MDA 2015


             Appeal from the Judgment of Sentence March 31, 2015
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0001012-2013


BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                 FILED JUNE 02, 2016

        Appellant, Joshua James Stump, appeals from the judgment of

sentence imposed following his bench trial conviction of endangering the

welfare of a child, corruption of minors and three counts of indecent assault.

Appellant challenges the weight of the evidence. We affirm.

        We derive the facts of the case from the trial court’s opinion of July 15,

2015, denying Appellant’s post-sentence motions, the court’s Rule 1925(a)

opinion of October 2, 2015, and our independent review of the record.

        Appellant’s conviction stems from a course of conduct with his

daughter, when she was between the ages of about eleven to thirteen. P.N.,

the Victim, testified that at the time she was spending alternate weeks in the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A09032-16


custody of her father. After Appellant’s new wife left him, he began making

advances on his daughter, P.N., while they were watching TV or when she

was asleep. He tried to fondle her breasts, and he pressed his penis against

her buttocks.      Shortly afterward, the Victim severely broke her leg in a

soccer accident.       The fracture required her to be in a cast for several

months, and after that, a boot. She stopped visiting her Father’s house, and

her Mother (C.N.) eventually obtained full custody.

       There was some delay in reporting the sexual assaults.           Eventually,

however, P.N. confided in her best friend, who urged her to tell her Mother.

C.N., P.N.’s Mother, told the Pennsylvania State Police, and Trooper Nathan

Trate began an investigation.

       Notably, P.N.’s younger half-sister, A.S., soon made similar allegations

against Appellant.1 However, at trial, A.S. essentially recanted her charges.

She told her caseworker she had “lied” or “fibbed” because she thought that

was what her mother wanted her to say. (N.T. Trial, 10/13/14, at 51, 151).

She later changed course again and insisted that “something happened” to

her as well as P.N.      (Id. at 58).     The trial court acquitted Appellant of all

charges involving A.S. (See id. at 169-70).
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1
  Appellant was the father of both girls, by different mothers. The trial court
identifies A.S. as Mother’s [C.N.’s] “other daughter.” (Trial Court Opinion,
10/02/15, at 4). However, this appears to be a misreading of the testimony.
K.S. testified that A.S. was her daughter, and she reported sexual abuse by
Appellant. (See N.T. Trial, 10/13/14, at 88, 90; see also id. at 67) (C.N.
confirming that K.S. is the mother of A.S.).



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       Also at trial, defense counsel pointed out some discrepancies between

P.N.’s original oral version of her complaint and the later written version.

Counsel further sought to suggest, by questioning, that P.N.’s charges arose

out of resentment because her father stopped visiting her after only one or

two hospital visits following the soccer accident.2

       The trial court convicted Appellant of the charges previously noted,

and, as also noted, acquitted Appellant of all charges involving A.S.       The

court specifically emphasized that it found P.N. credible.    (See Trial Court

Opinion 7/15/15, at 10; Trial Ct. Op. 10/02/15, at 7).      The court adopted

Trooper Trate’s assessment of the discrepancies in P.N.’s statements as

“slight.”   (Trial Ct. Op, 10/02/15, at 9).      On March 31, 2015, the court

sentenced Appellant to an aggregate term of incarceration in a state

correctional institution of not less than one year nor more than two years, to

be followed by five years of probation. (See N.T. Sentencing, 3/31/15, at

31-32).

       On April 9, 2015, Appellant filed consolidated post-sentence motions

challenging the weight and the sufficiency of the evidence, which the court




____________________________________________


2
  Appellant exercised his constitutional right not to testify at trial. Prior to
trial, in an interview with Trooper Trate, he denied all charges. (See N.T.
Trial, 10/13/14, at 119).



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denied on July 15, 2015, with an accompanying opinion. This timely appeal

followed.3

       Appellant presents one question for our review:

             Were the trial court’s guilty verdicts based upon
       conclusions which are contrary to the record, and therefore
       against the weight of the evidence?

(Appellant’s Brief, at 3).4

       Notably, Appellant does not challenge the credibility determinations of

the trial court. (See id. at 5, 9) (“Appellant is not asking the Superior Court

to second guess Judge Charles’ credibility determinations.”);(see also id. at

9).

       Instead, he argues that the trial court improperly concluded that P.N.

wanted to limit contact with her Father (by not spending alternate weeks

with him any more) and that he took steps to limit his contact with her.

(See id. at 5).        Appellant maintains that these two conclusions were

unsupported by the record, making the verdict against the weight of the

evidence. He also maintains there was an absence of corroborating physical

evidence. (See id. at 9).


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3
  Appellant filed a timely concise statement of errors on August 31, 2015.
See Pa.R.A.P. 1925(b). The court filed an opinion on October 2, 2015. See
Pa.R.A.P. 1925(a).
4
 On appeal, Appellant has abandoned his challenge to the sufficiency of the
evidence. (See Appellant’s Brief, at 4).



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     Appellant asserts that “the [c]ourt’s guilty verdicts were premised on

conclusions which were unsupported by and contrary to the testimony.”

(Id. at 10). We disagree.

     Our standard of review for a weight claim is well-settled and our scope

of review is exceptionally narrow:

           A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court. Commonwealth v. Widmer, 560
     Pa. 308, 319, 744 A.2d 745, 751–52 (2000); Commonwealth
     v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). 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, 560 Pa. at 319–20,
     744 A.2d at 752. Rather, “the role of the trial judge is to
     determine that ‘notwithstanding all the facts, certain facts are
     so clearly of greater weight that to ignore them or to give them
     equal weight with all the facts is to deny justice.’ ” Id. at 320,
     744 A.2d at 752 (citation omitted). It has often been stated that
     “a new trial should be awarded 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.” Brown, 538 Pa. at 435, 648
     A.2d at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

               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. Brown, 648 A.2d at 1189. 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.
        Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d
        545 (Pa. 1976). One of the least assailable reasons for

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       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. Widmer, 560 Pa. at 321–
       22, 744 A.2d at 753 (emphasis added).

            This does not mean that the exercise of discretion by the
     trial court in granting or denying a motion for a new trial based
     on a challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court’s discretion, we have
     explained:

             The term “discretion” imports the exercise of
       judgment, wisdom and skill so as to reach a dispassionate
       conclusion within the framework of the law, and is not
       exercised for the purpose of giving effect to the will of the
       judge. Discretion must be exercised on the foundation of
       reason, as opposed to prejudice, personal motivations,
       caprice or arbitrary actions. Discretion is abused where 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.

     Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v.
     S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184–
     85 (1993)).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). Similarly,

     [s]o long as that evidence is legally sufficient, the trial court may
     grant a new trial based on evidentiary weight only in the most
     limited of circumstances:

        The weight given to trial evidence is a choice for the
        factfinder. If the factfinder returns a guilty verdict, and if
        a criminal defendant then files a motion for a new trial on
        the basis that the verdict was against the weight of the
        evidence, a trial court is not to grant relief unless the
        verdict is so contrary to the evidence as to shock one’s
        sense of justice.




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       As an appellate court, our standard of review is more attenuated
       still, as we may adjudge only the trial court’s exercise of
       discretion in entertaining the defendant’s challenge:

         When a trial court denies a weight-of-the-evidence motion,
         and when an appellant then appeals that ruling to this
         Court, our review is limited. It is important to understand
         we do not reach the underlying question of whether the
         verdict was, in fact, against the weight of the evidence.
         We do not decide how we would have ruled on the motion
         and then simply replace our own judgment for that of the
         trial court. Instead, this Court determines whether the
         trial court abused its discretion in reaching whatever
         decision it made on the motion, whether or not that
         decision is the one we might have made in the first
         instance.

Commonwealth v. Stays, 70 A.3d 1256, 1267-68 (Pa. Super. 2013)

(citations omitted).

       Here, on review, we discern no basis on which to disturb the

determination of the trial court. Appellant fails to demonstrate that the law

was misapplied, or that the trial court’s denial was a result of partiality,

prejudice, bias or ill-will.   See Clay, supra at 1055.    Instead, Appellant

focuses on two issues: first, the reason for P.N.’s change of heart about

visiting her Father, and second, Father’s perceived limitation of contact with

his daughter. (See Appellant’s Brief, at 5-9).

       Appellant argues that the alteration of P.N.’s visitation schedule was

actually caused by logistical problems arising out of the cast for her broken

leg.   (See id. at 7).    He also asserts that P.N.’s Mother (C.N.), not he,

caused the reduction in his visitation time with his daughter by her




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successful petition for full custody. “[T]he lack of contact . . . was in spite

of, and not due to Appellant’s efforts.” (Id. at 9).

      However, Appellant’s offer of substitute reasons for those given by the

trial court misapprehends the nature of our review.

      We do not decide how we would have ruled on the motion and
      then simply replace our own judgment for that of the trial court.
      Instead, this Court determines whether the trial court abused its
      discretion in reaching whatever decision it made on the motion,
      whether or not that decision is the one we might have made in
      the first instance.

Stays, supra at 1268 (citation omitted).

      In this case, we discern no abuse of discretion. It bears noting that

neither of the two issues addressed by Appellant focuses directly on guilt or

innocence.    Rather, they affect, at most, P.N.’s motive for discontinuing

week-long visits with her Father, and, possibly, evidence of Appellant’s

consciousness of guilt. Even if we were to assume for the sake of argument

that the trial court assessed these facts incorrectly, they neither prove nor

disprove the underlying crimes. As such, at worst they amount to no more

than an “error of judgment,” not enough under our standard of review to

establish abuse of discretion.      Clay, supra at 1055.     Appellant fails to

demonstrate    that   they   make    the    underlying   judgment   “manifestly

unreasonable.” Id.

      Additionally, Appellant’s cited authority does not support his argument.

Appellant cites Commonwealth v. Coyle, 154 A.2d 412 (Pa. Super. 1959),

for the proposition that “a reviewing court may grant a new trial on weight

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of the evidence grounds where it concludes that the fact finder has ignored

uncontradicted evidence that was offered by an unimpeached witness.”

(Appellant’s Brief, at 3).      However, the case is readily distinguishable.   In

Coyle, the jury ignored uncontradicted testimony from a noted pathologist

that three different blood groupings for a mother, a child, and the putative

father made it biologically impossible for the defendant to be a possible

father of the child.5      See Coyle, supra at 416.      The facts here are not

analogous.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2016




____________________________________________


5
   Specifically, the pathologist testified without dispute that in two separate
tests the defendant was in blood group ‘O’, the mother was in blood group
‘A’, and the child was in blood group ‘B’, excluding paternity by the
defendant as “biologically impossible.” Coyle, supra at 413.




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