J. S64006/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                     v.                     :
                                            :
TORIS SYLVESTER GARNER,                     :          No. 404 MDA 2015
                                            :
                          Appellant         :


            Appeal from the Judgment of Sentence, October 2, 2014,
               in the Court of Common Pleas of Bradford County
               Criminal Division at No. CP-08-CR-0000951-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED NOVEMBER 06, 2015

        Toris Sylvester Garner appeals from the judgment of sentence of

October 2, 2014, following his conviction of aggravated indecent assault

without consent and indecent assault by forcible compulsion.1 We affirm.

        The trial court recited the following facts of the case:

                    Victim, K.J., age 18, walked a few blocks [from
              her grandparents’ house] to a convenience store in
              Towanda, Pa on November 26, 2013, sometime after
              noon. She had argued with her grandparents who
              she was living with and had packed a bag with her
              belongings. She was standing outside the store,
              smoking a cigarette when the defendant pulled in
              driving a red Hummer and said something to her.
              She approached him and he told her she was a
              beautiful girl and why was she frowning. Victim
              explained she had argued with her grandparents.

* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3125(a)(1) and 3126(a)(2), respectively.
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          Defendant then asked her if she wanted to go with
          him and smoke marijuana. She agreed and got in
          the vehicle. Defendant did not tell her his name, but
          told her people call him “T”. Defendant also told her
          he had to meet someone near Wyalusing, PA to get
          the marijuana. He began driving in that direction.
          They had conversation about where defendant
          worked. Defendant told her he had a place she
          could stay and that he would help her with anything
          that she needed and buy her a pack of cigarettes.
          Defendant then asked her to perform oral sex on
          him. She replied no. Defendant told her if she
          would help him, he would help her. Defendant kept
          asking her to perform oral sex and she kept saying
          no. Victim told the defendant that she was not that
          kind of girl, that she was a church going girl and a
          virgin. She told the defendant this to make him
          believe she had no experience and to discourage
          him. Defendant pulled off at a scenic overlook and
          said he was meeting the guy to get the marijuana.
          No one ever appeared nor did defendant call anyone.
          Victim’s grandfather called her on her cellphone and
          asked where she was as he was to pick her up [at]
          the convenience store. She told him she was with
          someone --a friend-- and would be there as soon as
          possible. Defendant had continued to ask victim to
          perform oral sex to which she continued to refuse.
          At one point in time, the defendant started to
          unbutton her pants and put his hand down her pants
          and penetrated with his fingers. Victim pushed his
          hand away. Defendant asked her to “give him a
          hand job” and she said no. Defendant unbuttoned
          his own pants, grabbed victim’s hand and placed it
          on his penis.       Victim pulled her hand away.
          Defendant then began driving back to Towanda and
          victim told him to take her home. Victim noticed
          that she had missed calls from her grandfather and
          called him. Defendant then pulled off onto a dirt
          road and victim became upset and kept asking him
          to take her home.        Defendant told her that he
          wanted to have sex with her and she said no.
          Defendant then pulled down her pants, pulled down
          his pants and climbed over on her as she kept telling
          him to stop; he grabbed the back of her hair and


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          penetrated her vagina with his penis. He also pulled
          her shirt down and put his mouth on her breast prior
          to intercourse. Defendant then drove to a Wysox
          mini-market where victim asked him to drop her off.
          Victim asked Defendant for his telephone number.
          She asked for the telephone number so she could tell
          her grandfather and the police and give them the
          number. Victim’s grandfather picked her up and
          drove her to the hospital.

                  Victim was cross examined thoroughly on the
          facts and on her inconsistencies in her testimony at
          trial from the preliminary hearing where (1) she had
          testified that her grandfather had called her after the
          first time the defendant had asked her for sex; and
          (2) she testified that at the scenic overlook
          defendant had pulled down her shirt and placed his
          mouth on her breast and then her grandfather called
          her. Victim never asked her grandfather for help or
          told him she was uncomfortable. Defendant never
          precluded her from talking on her phone, never
          locked the doors, never tried to leave and never tried
          to get the attention of others at the scenic overlook.
          Victim explained that at that point in time she wasn’t
          really scared.

                The sexual forensic assault nurse examiner
          reported there was no physical trauma upon
          examination, however, victim did complain of pain or
          tenderness in the vaginal area, on the back of her
          head and neck.

                The Commonwealth also introduced the audio
          tape of the state police interview with the defendant.
          Defendant told police that he was trying to talk
          victim into staying with some of his friends in
          Tunkhannock until he got off work the next morning;
          he offered victim $100.00 for oral sex however he
          did not have $100.00; he described a lengthy
          conversation attempting to have her agree to sex;
          he stated that he did place his mouth on victim’s
          breast, but that it was consensual; he further stated
          that victim consensually touched his penis while he
          drove; that he was rubbing her breasts and they


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            kissed. Defendant continued a diatribe regarding
            sex and attempting to talk victim into having sexual
            intercourse -- “using reverse psychology on her” and
            stating that all the acts were consensual; and that
            victim did not say “no” or “get off me” or fight him.
            Defendant did admit that he never called anyone to
            obtain marijuana and that he was not planning on
            obtaining marijuana; that he was trying to have sex
            with victim. Defendant admitted to placing his finger
            in victim’s vagina.

Trial court statement, 6/10/15 at 2-4 (internal citations omitted).

      The jury convicted appellant on April 23, 2014, of one count of

aggravated indecent assault without consent and one count of indecent

assault by forcible compulsion.2      On October 2, 2014, the trial court

sentenced appellant to an aggregate sentence of 66 to 156 months’

imprisonment. Appellant filed post-sentence motions, which were denied on

February 5, 2015.     The issues raised by appellant in his post-sentence

motions are identical to the issues raised on appeal. Appellant filed notice of

appeal on February 27, 2015.      The trial court ordered appellant to file a

concise statement of errors complained of on appeal, which appellant filed

on March 10, 2015, pursuant to Pa.R.A.P. 1925. The trial court then filed a

statement in lieu of an opinion pursuant to Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

            I.    WHETHER THE VERDICTS OF GUILTY WERE
                  CONTRARY TO THE WEIGHT OF EVIDENCE?


2
  Appellant was acquitted of one count of rape, one count of aggravated
indecent assault, two counts of indecent assault, and one count of sexual
assault.


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            II.    WHETHER THE TRIAL COURT ERRED IN
                   SUBMITTING ANNOTATED VERDICT SLIPS TO
                   THE JURY WITHOUT A REQUEST FOR SUCH
                   ANNOTATION?

            III.   WHETHER THE TRIAL JUDGE ERRED IN
                   REFUSING TO RECUSE HERSELF FROM
                   PRESIDING OVER TRIAL?

Appellant’s brief at 5.

      The first issue appellant raises for our review is whether the jury’s

verdict is contrary to the weight of the evidence presented at trial.   Our

standard of review for determining whether a verdict is compatible with the

weight of the evidence is well settled:

                   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. 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 the 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.




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                  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 in 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations

omitted).

     Appellant’s weight of the evidence argument is grounded in two

separate theories: that the victim’s testimony was inconsistent between the

preliminary hearing and the trial and that the jury returned an inconsistent

verdict by convicting appellant on two charges while acquitting him of five

charges.    Specifically, appellant notes that the victim’s testimony was

inconsistent due to differences in her testimony as to when incidents

occurred during her encounter with appellant. (Appellant’s brief at 10.)




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      A fact-finder is free to believe all, part, or none of the evidence

presented.    Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa.Super.

2015) (citations omitted). This court cannot assume the task of assessing

the credibility of the witnesses or evidence presented at trial, as that task is

within the exclusive purview of the fact-finder.          Commonwealth v.

Hankerson, 118 A.3d 415, 420 (Pa.Super. 2015) (citations omitted).           As

the trial court noted, the jury found the victim to be credible when it

convicted appellant of aggravated indecent assault and indecent assault.

See trial court opinion, 2/2/15 at 2.    We find that the trial court did not

abuse its discretion when it denied appellant’s claim, and therefore a new

trial is not warranted.

      Appellant also notes that the verdict in this case was inconsistent

because appellant was acquitted of rape, sexual assault, aggravated

indecent assault and two counts of indecent assault despite also being

convicted of aggravated indecent assault and indecent assault.        Both the

United States Supreme Court and the Pennsylvania Supreme Court have

cautioned against appellate review of inconsistent verdicts. “[T]he fact that

the inconsistency [in the verdict] may be the result of lenity, coupled with

the Government’s inability to invoke review, suggests that inconsistent

verdicts should not be reviewable.”     Commonwealth v. Miller, 35 A.3d

1206, 1209 (Pa. 2012), quoting United States v. Powell, 469 U.S. 57, 65

(1984).      This court has noted that inconsistent verdicts, “while often



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perplexing, are not considered mistakes and do not constitute a basis for

reversal.”   Commonwealth v. McNeal, 120 A.3d 313, 328 (Pa.Super.

2015)   quoting   Commonwealth         v.   Petteway,       847   A.2d   713,    718

(Pa.Super. 2004) (citations omitted).

      The jury returned a guilty verdict for aggravated assault without

consent and indecent assault forcible compulsion while acquitting appellant

of rape, aggravated indecent assault, sexual assault and two counts of

indecent assault. We find no abuse of discretion in such a conclusion and

therefore find that appellant’s first issue has no merit.

      Appellant’s second issue addresses whether the trial court erred by

providing the jury with annotated verdict slips during its deliberation.

Specifically, appellant avers that the trial court improperly provided the jury

with annotations on the verdict slip that equated to, “(1) a transcript of

testimony and (2) a copy of the Information, as each notation contained

facts as presented through trial testimony as listed in the Information.”

(Appellant’s brief at 14.)

      The Pennsylvania Rules of Criminal Procedure prohibit a jury from

having the following items in its possession during deliberations:              (1) a

transcript of any trial testimony; (2) a copy of any written or otherwise

recorded confession by the defendant; (3) a copy of the information or

indictment; and (4) any written jury instructions, except as otherwise

permitted by the Rules. Pa.R.Crim.P. 646(C). Our supreme court has found



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that in cases where there are separate and distinct charges against a

defendant, a trial court may, after conferring with counsel, include

identifying notations on the verdict slip, so long as the notations are neutral

and are not suggestive or prejudicial when viewed in the context of the

court’s instructions to the jury. Commonwealth v. Kelly, 399 A.2d 1061

(Pa. 1979), appeal dismissed, 444 U.S. 947 (1979).

        In Commonwealth v. Fisher, 863 A.2d 574, 577 (Pa.Super. 2004),

this court, analyzing Kelly using Pa.R.Crim.P. 646, stated that annotations

on a jury slip were appropriate because the annotations did not refer to

evidence introduced at trial and the annotations were “completely neutral”

and served to distinguish between two different charges. The trial judge in

Fisher handwrote the terms “bodily injury” and “serious bodily injury” on

the verdict slips in order to assist the jury in differentiating the two charges.

Id. at 576. This court stated that the judge’s handwritten notations were

neither suggestive nor prejudicial, and they did not provide the jury with any

written instructions regarding legal issues.    Id. at 577.   Moreover, as the

trial court noted, the Rules of Criminal Procedure permit a jury to have

access to the trial judge’s written instructions pertaining to the elements of

the offense charged. Pa.R.Crim.P. 646(B).

        In the instant case, the verdict slips used by the jury are reproduced

here:




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            We find the Defendant, Toris Sylvester Garner,
            (guilty or not guilty)[3] of Aggravated Indecent
            Assault Without Consent.

            We find the Defendant, Toris Sylvester Garner,
            (guilty or not guilty) of Indecent Assault by Forcible
            Compulsion (hand touching penis).

            We find the Defendant, Toris Sylvester Garner,
            (guilty or not guilty) of Aggravated Indecent Assault
            by Forcible Compulsion.

            We find the Defendant, Toris Sylvester Garner,
            (guilty or not guilty) of Rape.

            We find the Defendant, Toris Sylvester Garner,
            (guilty or not guilty) of Indecent Assault Without
            Consent (sexual intercourse).

            We find the Defendant, Toris Sylvester Garner,
            (guilty or not guilty) of Indecent Assault by Forcible
            Compulsion (sexual intercourse).

            We find the Defendant, Toris Sylvester Garner,
            (guilty or not guilty) of Sexual Assault.

Docket #30. The trial judge included annotations for each of the indecent

assault charges, which were typed directly onto the verdict slips before they

were provided to the jury. (Id.) Much like the verdict slips in Fisher, the

verdict slips in this case do not contain any suggestive or prejudicial

material, nor do they provide the jury with any additional instructions

pertaining to any legal issues. The trial judge’s annotations were completely

neutral and only served to provide the jury with a means of differentiating



3
  A blank space was provided on the verdict slip with the instructions for the
jury foreperson to write guilty or not guilty.


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between the three separate indecent assault charges against appellant.

Therefore, appellant’s second issue is without merit.

      The third and final issue appellant raises for our review is whether the

trial judge, the Honorable Maureen T. Beirne, erred by failing to recuse

herself from this case. Appellant avers that Judge Beirne should have been

disqualified from presiding over his criminal trial because she and the

Bradford County District Attorney, Daniel Barrett, Esq., are first cousins and

because Judge Beirne acquired personal knowledge of the facts of

appellant’s criminal case when she presided over appellant’s custody case.

      The standard of review for the recusal of judges is as follows:

            Our standard of review of a trial court’s
            determination not to recuse from hearing a case is
            exceptionally deferential. We recognize that our trial
            judges are “honorable, fair, and competent,” and
            although we employ an abuse of discretion standard,
            we do so recognizing that the judge himself is best
            qualified to gauge his ability to preside impartially.

                  The party who asserts that a trial judge
                  should recuse bears the burden of
                  setting forth specific evidence of bias,
                  prejudice, or unfairness. “Furthermore,
                  a decision by the trial court against
                  whom the plea of prejudice is made will
                  not be disturbed absent an abuse of
                  discretion.”

Commonwealth v. Postie, 110 A.3d 1034, 1037 (Pa.Super. 2015), quoting

Commonwealth v. Harris, 979 A.2d 387, 391-392 (Pa.Super. 2009)

(citations omitted) (emphasis added).




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     We first address whether the fact that Judge Beirne and District

Attorney    Barrett   are    first   cousins        is   grounds    for    Judge   Beirne’s

disqualification from presiding over the present case.                    The Pennsylvania

Code of Judicial Conduct prohibits a judge from presiding over a case in

which a person, “within the third degree of relationship” to the judge is

acting     as   a   lawyer    in     the    proceeding.            Pa.     Code    of   Jud.

Conduct 2.11(A)(2)(b). The Code defines “third degree of relationship” as,

“great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child,

grandchild, great-grandchild, nephew, and niece.” Id. at Terminology.

     Since first cousins are not within the third degree of relationship as

defined by the Code of Judicial Conduct, we find that Judge Beirne was not

required to recuse herself from presiding over appellant’s criminal trial.

Furthermore, we also note that appellant failed to provide any evidence of

bias, prejudice, or unfairness that resulted from the familial relationship

between Judge Beirne and District Attorney Barrett.

     We shall now address whether Judge Beirne should have recused

herself from appellant’s criminal trial because she had firsthand knowledge

of the facts at issue due to her presiding over appellant’s custody trial. The

Code of Judicial Conduct requires a judge to disqualify him or herself from a

proceeding if the judge has, “personal knowledge of facts that are in dispute

in the proceeding.” Pa. Code of Jud. Conduct Rule 2.11(A)(1).




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     In the instant case, appellant has not alleged any specific incidents of

prejudice, bias, or unfairness resulting from Judge Beirne presiding over his

custody case.   Appellant admits that he has no knowledge of whether

Judge Beirne was made aware of the facts in dispute in his criminal trial

during his custody dispute.    (Appellant’s brief at 17.)   Appellant offers

speculation that Judge Beirne’s possible knowledge of the facts in his

criminal case influenced evidentiary rulings before and during the trial.

(See id.)   Without knowledge of whether Judge Beirne was even made

aware of facts in dispute during appellant’s custody trial, appellant has not

satisfied the standard established by this court in Postie; therefore, this

claim has no merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2015




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