J-S54039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JIMMY JOE AXELROD                          :
                                               :
                       Appellant               :   No. 460 WDA 2018

           Appeal from the Judgment of Sentence November 9, 2017
      In the Court of Common Pleas of Mercer County Criminal Division at
                        No(s): CP-43-CR-0000537-2016

BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 11, 2018

        Jimmy Joe Axelrod (Appellant) appeals from the judgment of sentence

imposed after a jury found him guilty of aggravated indecent assault,

aggravated indecent assault of a complainant less than 13 years of age,

indecent assault of a complainant less than 13 years of age, and endangering

the welfare of children.1 We affirm.

        The victim alleged that sometime in either June or early July 2015, she

and her brother spent the night at Appellant’s home in Farrell, Pennsylvania.

That night, while the victim and Appellant were watching a movie, and her

brother was asleep on the floor, Appellant put his hands down the victim’s

pants and underwear and placed his fingers on and in the victim’s vagina for

approximately two minutes. The victim alleged that she told Appellant to stop

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1   18 Pa.C.S.A. §§ 3125(a)(1), (7), 3126(a)(7), 4304(a)(1).
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and tried to get up and leave the room, but that Appellant would not stop or

let her off of the couch. The victim was 7 years old at the time.

       The victim did not tell anyone that Appellant had sexually assaulted her

until January 2016, when the victim told her second grade teacher that she

was afraid of Appellant because he had done bad things to her during the

previous summer, including putting his hands down her pants. The school

reported the victim’s allegations of sexual abuse to the Mercer County Office

of Children and Youth. On February 4, 2016, the Farrell Police Department

received a report regarding the victim’s allegation of sexual abuse by

Appellant.    On February 5, 2016, Derek Stotsky, a child specialist forensic

interviewer spoke with the victim at which time the victim again recounted

the same allegation of abuse against Appellant.

       On May 20, 2016, the Commonwealth charged Appellant with

aggravated indecent assault, aggravated indecent assault of a complainant

less than 13 years of age, indecent assault of a complainant less than 13 years

of age, endangering the welfare of children, and aggravated indecent assault

– forcible compulsion. On March 22, 2017, Appellant filed a pro se motion to

waive counsel and a waiver of counsel form. On March 30, 2017, following a

Grazier hearing,2 the trial court granted Appellant’s request to proceed pro

se, concluding that Appellant knowingly, voluntarily, and intelligently waived



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2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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his right to counsel. The trial court appointed a member of the Mercer County

Public Defender’s Office as standby counsel.

      On May 17, 2017, a jury found Appellant guilty of aggravated indecent

assault, aggravated indecent assault of a complainant less than 13 years of

age, indecent assault of a complainant less than 13 years of age, and

endangering the welfare of children, but acquitted him of aggravated indecent

assault – forcible compulsion. On November 9, 2017, the trial court sentenced

Appellant to an aggregate term of 54 months to 108 months of incarceration.

The same day, Appellant, through counsel, filed a motion for judgment of

acquittal in which he asserted that the Commonwealth failed to present

evidence that a single criminal act occurred during the time period charged in

the criminal information because he was incarcerated from June 10, 2015

through July 4, 2015.   On November 13, 2017, the trial court denied the

motion.

      On November 16, 2017, Appellant filed a post-sentence motion for

judgment of acquittal, which alleged that the evidence was insufficient to

sustain Appellant’s convictions because the jury’s verdicts were based on

surmise and conjecture.    On December 6, 2017, the trial court permitted

Appellant to amend his post-sentence motion to include a claim that the jury’s

verdicts were against the weight of the evidence. On March 9, 2018, the trial

court denied Appellant’s post-sentence motion as amended. On March 29,

2018, Appellant timely appealed to this Court. Both the trial court and


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Appellant have complied with Rule 1925 of the Pennsylvania Rules of Appellate

Procedure.

      On appeal, Appellant presents the following issues for review:

      I.     Whether [Appellant] knowingly, intelligently or voluntarily
      waived his right to counsel when the trial court improperly
      instructed him that he did not have the right to request the
      appointment of new counsel for irreconcilable differences after he
      asserted a breach of the attorney client privilege, and such failure
      of the trial court to provide [Appellant] with the proper instruction
      before accepting his waiver of counsel colloquy resulted in an
      invalid waiver and a denial of his constitutional right to counsel.

      II.   Whether there was insufficient evidence to sustain the
      verdict when the complainant’s testimony describing the date of
      the offense was contradictory, vague and uncertain, the elements
      of the crime were embellished, and the sleeping condition of
      [Appellant] made it impossible for him to engage in a voluntary
      act, making the evidence produced by the Commonwealth so
      inherently unreliable that a verdict of guilty could be based on
      nothing more than mere conjecture or surmise.

      III. Whether the trial court judge abused its discretion in
      denying [Appellant] a new trial for a verdict against the weight of
      the evidence when the improper application of the law for failing
      to instruct [Appellant] of his right to request new counsel, the
      embellished and contradictory testimony of the complainant, and
      the uncontroverted testimony that [Appellant] was asleep during
      the alleged offense resulted in a decision that was capricious,
      arbitrary, and not based on the foundation of reason.

Appellant’s Brief at 12-13.

      First, Appellant argues that he was denied his constitutional right to

counsel because he did not knowingly, voluntarily, or intelligently waive his

right to counsel. We review a trial court’s grant or denial of a defendant’s

request to proceed pro se for an abuse of discretion. Commonwealth v. El,

977 A.2d 1158, 1167 (Pa. 2009).        The Pennsylvania Supreme Court has

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“defined a court’s discretion as the foundation of reason, as opposed to

prejudice, personal motivations, caprice or arbitrary actions. An abuse of that

discretion is not merely an error of judgment, but . . . [a] manifestly

unreasonable . . . result of partiality, prejudice, bias or ill will.” Id. (quotations

and citation omitted).

      In El, the Supreme Court explained,

         A criminal defendant’s right to counsel under the Sixth
      Amendment includes the concomitant right to waive counsel’s
      assistance and proceed to represent oneself at criminal
      proceedings. Faretta v. California, 422 U.S. 806 [] (1975). The
      right to appear pro se is guaranteed as long as the defendant
      understands the nature of his choice. In Pennsylvania, Rule of
      Criminal Procedure 121 sets out a framework for inquiry into a
      defendant’s request for self-representation. Pa.R.Crim.P. 121.
      Where a defendant knowingly, voluntarily, and intelligently seeks
      to waive his right to counsel, the trial court, in keeping with
      Faretta, must allow the individual to proceed pro se. See
      Commonwealth v. Starr, [] 664 A.2d 1326, 1335 ([Pa.] 1995)
      (holding that a defendant must demonstrate a knowing waiver
      under Faretta)[; see also] Commonwealth v. McDonough, []
      812 A.2d 504, 508 ([Pa.] 2002) (concluding that Faretta requires
      an on-the-record colloquy in satisfaction of Pa.R.Crim.P. 121,
      which colloquy may be conducted by the court, the prosecutor, or
      defense counsel.).

          The right to waive counsel’s assistance and continue pro se is
      not automatic however. Rather, only timely and clear requests
      trigger an inquiry into whether the right is being asserted
      knowingly and voluntarily. . . . Thus, the law is well established
      that “in order to invoke the right of self-representation, the
      request to proceed pro se must be made timely and not for
      purposes of delay and must be clear and unequivocal.”
      Commonwealth v. Davido, [] 868 A.2d 431, 438 [] ([Pa.]
      2005).


Id. at 1162-63 (some citations and footnotes omitted).


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      Rule 121 of the Pennsylvania Rules of Criminal Procedure, which governs

the waiver of the right to counsel, provides the following safeguards to ensure

that such waiver is done knowingly, voluntarily, and intelligently:

      (2) To ensure that the defendant’s waiver of the right to counsel
      is knowing, voluntary, and intelligent, the judge or issuing
      authority, at a minimum, shall elicit the following information from
      the defendant:

         (a) that the defendant understands that he or she has the right
         to be represented by counsel, and the right to have free
         counsel appointed if the defendant is indigent;

         (b) that the defendant understands the nature of the charges
         against the defendant and the elements of each of those
         charges;

         (c) that the defendant is aware of the permissible range of
         sentences and/or fines for the offenses charged;

         (d) that the defendant understands that if he or she waives the
         right to counsel, the defendant will still be bound by all the
         normal rules of procedure and that counsel would be familiar
         with these rules;

         (e) that the defendant understands that there are possible
         defenses to these charges that counsel might be aware of, and
         if these defenses are not raised at trial, they may be lost
         permanently; and

         (f) that the defendant understands that, in addition to
         defenses, the defendant has many rights that, if not timely
         asserted, may be lost permanently; and that if errors occur and
         are not timely objected to, or otherwise timely raised by the
         defendant, these errors may be lost permanently

Pa.R.Crim.P. 121(A).

      Our review of the record reveals that on March 22, 2017, Appellant filed

a motion to waive counsel, in which he specifically requested to represent


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himself at trial, and a waiver of counsel form. Additionally, the record reflects

that at Appellant’s Grazier hearing, the trial court informed Appellant of the

requisite factors of Rule 121(A)(2), including: (1) Appellant’s right to counsel

and to court-appointed counsel in the event he is indigent; (2) the nature of

the charges against Appellant; (3) the possible range of sentences that the

court may impose should Appellant be convicted of the charged offenses; (4)

that if Appellant waives his right to counsel, he would be bound by the normal

rules of procedure with which counsel would be familiar; (5) that if Appellant

waives his right to counsel, he may waive possible defenses of which counsel

could be aware if he does not raise them himself at trial; and (6) that if

Appellant waives his right to counsel, he may waive certain rights or objections

if he does not timely assert them. N.T., 3/29/17, at 7-11, 14-15. After the

trial court’s thorough and exhaustive oral colloquy, the court granted

Appellant permission to proceed pro se and ordered his appointed counsel to

act as standby counsel. Id. at 17-18.

      Appellant argues, however, that his waiver of counsel was not knowing,

voluntary, and intelligent because the trial court did not advise him that he

had the right to petition the court for new counsel. Relying on our Supreme

Court’s decision in Commonwealth v. Tyler, 360 A.2d 617 (Pa. 1976),

Appellant contends that the trial court improperly made him choose between

proceeding pro se or with his appointed counsel, whom Appellant alleges

breached attorney-client confidentiality. Appellant asserts that the trial court


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should have informed him of his right to file a motion for the appointment of

new counsel upon learning that Appellant had accused his appointed counsel

of breaching the attorney-client privilege.

      Appellant’s argument is meritless. First, neither the applicable case law

nor Rule 121 require a trial court, during a waiver of counsel colloquy, to

inform a criminal defendant of his right to motion the court for new counsel.

Second, Appellant’s reliance on Tyler is misplaced as it is readily

distinguishable from this case. In Tyler, the Supreme Court held that the

appellant’s waiver of counsel was not knowing, voluntary, or intelligent

because “[t]he trial court forced [the] appellant . . . to either accept court

appointed counsel with whom an irreconcilable difference as to the manner in

which the trial should be conducted had arisen, a difference which was

corroborated by counsel, or to represent himself.” Id. at 620. In this case,

however, Appellant did not inform the trial court of his unsupported,

uncorroborated allegation that appointed counsel had breached attorney-

client confidentiality until after the court had granted him permission to

proceed pro se. N.T., 3/29/17, at 18, 19. In response, the trial court ordered

another representative of the Mercer County Public Defender’s Office to serve

as standby counsel. Thus, this was not a case where the trial court imposed

upon Appellant the decision of either representing himself or proceeding with

appointed representation with whom he had confirmed irreconcilable

differences. Indeed, Appellant maintained throughout his motion, his waiver


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of counsel form, and colloquy that he desired to represent himself. See id.

at 2-3, 17; Motion to Waive Counsel, 3/22/17. Accordingly, we conclude that

the trial court did not abuse its discretion in determining that Appellant

knowingly, voluntarily, and intelligently waived his right to counsel.

      Next, Appellant raises multiple challenges to the sufficiency of the

evidence with respect to his convictions.     In reviewing a challenge to the

sufficiency of the evidence, our standard of review is as follows:

         As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

          The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, [t]he fact that the evidence
      establishing a defendant’s participation in a crime is circumstantial
      does not preclude a conviction where the evidence coupled with
      the reasonable inferences drawn therefrom overcomes the
      presumption of innocence. Significantly, we may not substitute
      our judgment for that of the fact finder; thus, so long as the
      evidence adduced, accepted in the light most favorable to the
      Commonwealth, demonstrates the respective elements of a
      defendant’s crimes beyond a reasonable doubt, the appellant’s
      convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).     Importantly, “the jury, which

passes upon the weight and credibility of each witness’s testimony, is free to

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believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,

33 A.3d 602, 607 (Pa. 2011).

      First, Appellant argues that the Commonwealth failed to prove the date

of the offenses beyond a reasonable doubt.       The criminal information sets

forth the offense date as between June 4, 2015 and July 4, 2015, with the

victim having alleged that all offenses occurred on the same day. Appellant

asserts that because he was incarcerated from June 10, 2015 through at least

July 4, 2015, the evidence was too speculative to prove that he committed

the offenses on the dates indicated in the criminal information.

      The applicable law provides:

             It is the duty of the prosecution to “fix the date when an
         alleged offense occurred with reasonable certainty.”
         Commonwealth v. Jette, 818 A.2d 533, 535 (Pa. Super.
         2003) (citation omitted). The purpose of so advising a
         defendant of the date when an offense is alleged to have
         been committed is to provide him with sufficient notice to
         meet the charges and prepare a defense. Commonwealth
         v. Gibbons, [] 784 A.2d 776 ([Pa.] 2001).

            However, “due process is not reducible to a mathematical
         formula,” and the Commonwealth does not always need to
         prove a specific date of an alleged crime. Commonwealth
         v. Devlin, [] 333 A.2d 888, 892 ([Pa.] 1975). . . .
         Permissible leeway regarding the date provided varies with,
         inter alia, the nature of the crime and the rights of the
         accused. See Pa.R.Crim.P. 560(B)(3), stating that it shall
         be sufficient for the Commonwealth to provide in the
         information, if the precise date of an offense is not known,
         an allegation that the offense was committed on or about
         any date within the period fixed by the statute of limitations.

      Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa. Super.
      2006). Case law has further “established that the Commonwealth
      must be afforded broad latitude when attempting to fix the date

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        of offenses which involve a continuous course of criminal
        conduct.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990
        (Pa. Super. 2007) (quoting Commonwealth v. Groff, [] 548
        A.2d 1237, 1242 ([Pa. Super.] 1988)). This is especially true
        when the case involves sexual offenses against a child victim. Id.

Commonwealth v. Riggle, 119 A.3d 1058, 1069-70 (Pa. Super. 2015).

        The criminal information sets forth the offense date as between June 4,

2015 and July 4, 2015, and while the Commonwealth concedes that Appellant

was incarcerated from June 10, 2015 through at least July 4, 2015, this only

establishes an alibi for those dates, it does not cover June 4, 2015 through

June 9, 2015. The certified record on appeal reveals sufficient evidence to

conclude that the crimes occurred sometime between June 4 and June 9,

2015.

        The victim testified that Appellant did something “bad” to her while she

was at his house sometime after school had ended for the year but before July

4, 2015. N.T., 5/16/17, at 71-73. When the prosecutor asked the victim what

“bad thing” Appellant did, she testified that Appellant put his hand down her

shorts and underwear and put his fingers into her vagina. Id. at 78, 81. Alana

Kendall (Kendall), the victim’s second grade teacher, testified that in January

2016, the victim told her that Appellant had done a “bad thing” to the victim

(i.e., sexually assaulted her) the previous summer when she spent the night

at Appellant’s home. Id. at 114. Kendall indicated that the last day of the

2014-2015 school year was June 4, 2015.          Id. at 114-15.    Additionally,

Annette Edwards (Edwards), the victim’s grandmother and caretaker,


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specifically testified that the victim spent time at Appellant’s home in early

June 2015 and would sometimes spend the night. Id. at 31, 33. Edwards

also stated that before June 2015, she viewed the victim as an outgoing

“normal kid, happy, always playing, friendly,” but that around the time the

victim alleged the incident occurred, Edwards noticed the victim become

socially withdrawn. Id. at 33-34.

        Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the Commonwealth presented

sufficient evidence for the jury to conclude that Appellant sexually abused the

victim in early June 2015 sometime prior to his incarceration on June 10,

2015.     Accordingly, Appellant’s first challenge to the sufficiency of the

evidence fails.

        Second, Appellant argues that the victim’s testimony at trial indicating

that Appellant inserted his fingers into her vagina was inconsistent with what

she told her teacher and the forensic interviewer (i.e., that Appellant only put

his hands down her underwear when she initially reported the alleged abuse).

Appellant also contends that the victim’s testimony was inconsistent as to

whether he was actually awake when the alleged abuse occurred.            Thus,

Appellant asserts that the victim’s testimony was too unreliable and

speculative to sustain his convictions.

        Appellant has not preserved these arguments for appellate review

because he did not raise them in his Rule 1925(b) statement.                 In


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Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011), our Supreme Court

explained:

              Our jurisprudence is clear and well-settled, and firmly
              establishes that: Rule 1925(b) sets out a simple
              bright-line rule, which obligates an appellant to file
              and serve a Rule 1925(b) statement, when so
              ordered; any issues not raised in a Rule 1925(b)
              statement will be deemed waived; the courts lack the
              authority to countenance deviations from the Rule’s
              terms; the Rule’s provisions are not subject to ad hoc
              exceptions or selective enforcement; appellants and
              their counsel are responsible for complying with the
              Rule’s requirements; Rule 1925 violations may be
              raised by the appellate court sua sponte, and the Rule
              applies notwithstanding an appellee’s request not to
              enforce it; and, if Rule 1925 is not clear as to what is
              required of an appellant, on-the-record actions taken
              by the appellant aimed at compliance may satisfy the
              Rule.

Id. at 494 (footnote omitted). Accordingly, Appellant has waived these claims

on appeal.3

       Finally, Appellant argues that the jury’s verdicts were against the weight

of the evidence.      Specifically, Appellant takes issue with the reliability and

inconsistency of the victim’s testimony at trial relating to whether he inserted

his fingers into her vagina and whether he was awake during the incident.


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3 We further note that these arguments challenge the weight of the evidence,
not its sufficiency, and thus would not merit relief under a sufficiency of the
evidence claim. See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super.
2014) (“An argument regarding the credibility of a witness’[] testimony goes
to the weight of the evidence, not the sufficiency of the evidence.”);
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)
(“variances in testimony go to the credibility of the witnesses and not the
sufficiency of the evidence”) (citations omitted).

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      Our standard of review for a claim that the verdict was against the

weight of the evidence is as follows:

         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, [] 744 A.2d 745,
      751-52 ([Pa.] 2000); [Commonwealth v. Brown, 648 A.2d
      1177, 1189 (Pa. 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, 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.] (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, 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, 354 A.2d 545 (Pa. 1976). 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.

      Widmer, 744 A.2d at 753 (emphasis added).

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

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      With respect to Appellant’s weight of the evidence claim, the trial court

determined:

         [T]he Commonwealth’s evidence, if believed by the jury,
      sufficiently established beyond a reasonable doubt each and every
      element of the charges against [Appellant]. During the jury
      instructions, the jury was advised that they could choose to
      believe all, part or none of the testimony of any given witness and
      that they could accept in whole either the defense version or what
      [the victim] said happened to her in June [] 2015. Obviously,
      based on how they observed [] Appellant throughout the trial and
      his young [victim], in light of the evidence of a significant change
      in her behavior at or about the time of the incident, lead the jury
      to accept the Commonwealth’s version and the Commonwealth’s
      evidence and to reject that set forth by [] Appellant.

         While the [c]ourt was of the opinion while the jury deliberated
      that it was a close case that could go either way, neither verdict
      would have surprised the Court or would shock the [c]ourt’s
      conscience or offend its sense of justice.

                                       *      *        *

         Nonetheless, the fact that a case is close simply means that it
      comes down to a question of credibility which is in the sole
      province of the jury. The trial judge and appellate courts are not
      free to change the outcome of a trial when it squarely rests on
      credibility.

Trial Court Opinion, 6/7/18, at 11-12.

      It is well settled that “the fact finder is free to believe all, part, or none

of the evidence presented and determines the credibility of the witnesses.”

Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa. Super. 2013) (en banc)

(quotations and citations omitted). As the factfinder in this case, the jury had

the responsibility of determining the credibility of the victim’s testimony and

the   credibility   of   the   other       witnesses       testifying   on   behalf   of   the


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Commonwealth.      By convicting Appellant, the jury demonstrated that it

believed the testimony of the victim and her account of the manner in which

Appellant sexually assaulted her, as well as the testimony relating to the

change in her behavior following the alleged abuse observed by the other

Commonwealth witnesses.       Based upon our review of the record and the

testimony offered by the Commonwealth’s witnesses, we conclude that the

jury’s verdicts in this case do not shock one’s sense of justice. Accordingly,

the trial court did not abuse its discretion in finding that the verdict was not

against the weight of the evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2018




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