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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
SHARDAE R. FITZPATRICK,                   :         No. 1962 EDA 2018
                                          :
                          Appellant       :


          Appeal from the Judgment of Sentence Entered April 3, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0004931-2015


BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 14, 2020

        Shardae R. Fitzpatrick appeals from the April 3, 2018 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County after

a jury convicted her of rape of a child – less than 13 years of age, corruption

of minors, and two counts of indecent assault – complainant less than 13 years

of age.1     Appellant was sentenced to an aggregate two to four years’

incarceration followed by five years’ probation. We affirm.

        The factual history of this case was set forth by the trial court in its

Pennsylvania Rule of Appellate Procedure 1925(a) opinion and need not be

reiterated here. (See trial court opinion, 1/10/19 at 3-4.) In sum, appellant

was charged with, inter alia, the aforementioned crimes arising out of the




1   18 Pa.C.S.A. §§ 3121(c), 6301(a)(1)(ii), and 3126(a)(7), respectively.
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sexual abuse of her cousin (“the victim”), who was a minor under 13 years of

age at the time of the abuse.

      On   November      15,   2017,    a   jury   convicted   appellant   of   the

aforementioned crimes. The trial court sentenced appellant to an aggregate

two to four years’ incarceration followed by five years’ probation on April 3,

2018. Appellant filed a post-sentence motion that the trial court subsequently

denied.

      Appellant filed a timely notice of appeal.         The trial court ordered

appellant to file a concise statement of errors complained of on appeal

pursuant to Rule 1925(b). Appellant timely complied. The sentencing court

subsequently filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            [1.]   Did the [trial] court improperly convict appellant
                   [] where the verdict was contrary to the weight
                   of the evidence at trial?

            [2.]   Did the prosecutor’s comments during closing
                   argument violate Section 5.8 of the [American
                   Bar Association (“ABA”)] Standards and unduly
                   prejudice appellant?

Appellant’s brief at 2 (full capitalization omitted).2




2 We note that appellant initially raised an insufficient evidence claim but now
withdraws that issue. (See appellant’s brief at 8 (stating, “the evidence at
trial was, if believed to be credible[,] legally sufficient to support the jury’s
verdict. After a careful review of the record, [a]ppellant withdraws the
argument on this issue.”).)


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      Appellant raises a weight of the evidence claim arguing that the

testimony of the victim “was incredible and contradicted in material and

substantial ways by other evidence at trial” and that the “un-impeached

evidence   of   [a]ppellant’s   good    character    for   law-abidingness   and

peacefulness” may raise reasonable doubt. (Id. at 8, 12.)

      This court’s standard of review when presented with a weight claim is

distinct from that applied by the trial court in reviewing the claim in a

post-sentence motion.

            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 a 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 [trial] 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.

Commonwealth v. Horne, 89 A.3d 277, 285 (Pa.Super. 2014), citing

Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000), appeal denied, 102

A.3d 984 (Pa. 2014). The trial court abuses its discretion “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.”

Horne, 89 A.3d at 285-286 (citation omitted).


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       Here, appellant contends the victim’s testimony detailing the sexual

abuse changed “in disturbing and incredible ways” from his accounts given at

his initial disclosure, including the number of instances of sexual abuse and

the nature of the sexual abuse. (Appellant’s brief at 11.) Appellant argues

the “inconsistent and incredible testimony of [the victim,]” “the un-impeached

testimony of [appellant’s mother] that [the victim] had never before visited

her/[a]ppellant’s house[,]” and “[a]ppellant’s good character evidence”

established that the verdict was against the weight of the evidence. (Id. at

12.)

       A review of appellant’s brief demonstrates that appellant invites us to

do nothing more than reassess the victim’s credibility and reweigh the

evidence in an attempt to convince us to reach a result different than the one

reached by the trial court in denying appellant’s post-sentence motion. (See

id. at 9-12.) This is not the role of an appellate court. See Commonwealth

v. Clay, 64 A.3d 1049, 1056 (Pa. 2013) (holding that, the role of the appellate

court when addressing a weight claim is to determine if the trial court

exceeded its limit of judicial discretion or invaded the province of the jury).

Therefore, we decline appellant’s invitation to reweigh the evidence.




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      In her second issue, appellant contends that three comments3 by the

prosecutor during closing argument constituted prosecutorial misconduct

under ABA Standards and unduly prejudiced appellant, denying her a fair

trial.4 (Appellant’s brief at 12-14.) The three comments can be summarized

as: (1) asking the jury to imagine they were the victim talking to his mother

about the sexual abuse; (2) mentioning that the victim had a learning

disability and an individualized education plan; and (3) remarking that “[m]ost

rapists don’t hunt on the street, they hunt where they’re trusted.” (Id.; see

also notes of testimony, 11/15/17 at 36, 38, & 46.)

            Our standard of review for a claim of prosecutorial
            misconduct is limited to whether the trial court abused
            its discretion. In considering this claim, our attention
            is focused on whether the defendant was deprived of
            a fair trial, not a perfect one. Not every inappropriate
            remark by a prosecutor constitutes reversible error. A
            prosecutor’s statements to a jury do not occur in a
            vacuum, and we must view them in context.


3  We note that appellant also argues that the prosecutor’s comment, “Now,
with your verdict, you have the opportunity and the power to stand up for [the
victim], to hear his voice, tell him he matters, and to come to a just
outcome[,]” also constituted prosecutorial misconduct. (Appellant’s brief
at 14; see also notes of testimony, 11/15/17 at 46-47.) A review of the
record, however, reveals appellant did not object to this comment at the time
it was made. (Notes of testimony, 11/15/17 at 47.) Therefore, appellant has
waived this issue with regard to this specific comment. See Commonwealth
v. Sasse, 921 A.2d 1229, 1238 (Pa.Super. 2007) (stating, “[i]n order to
preserve a claim of prosecutorial misconduct for appeal, a defendant must
make an objection and move for a mistrial” (citation omitted)), appeal
denied, 938 A.2d 1052 (Pa. 2007).

4We note that ABA Standard Section 5.8 has been revised and replaced by
Section 6.8. See Commonwealth v. Clancy, 192 A.3d 44, 52 n.4 (Pa.
2018).


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Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa.Super. 2012)

(en banc) (citations and quotation marks omitted), appeal denied, 57 A.3d

65 (Pa. 2012).    In order for a claim of prosecutorial misconduct to be

successful, appellant must show “the unavoidable effect of the comments at

issue was to prejudice the jurors by forming in their minds a fixed bias and

hostility toward [appellant], thus impeding their ability to weigh the evidence

objectively and render a true verdict.” Commonwealth v. Robinson, 877

A.2d 433, 441 (Pa. 2005) (citation omitted). Any prejudice the prosecutor’s

comments may have caused can be cured by the trial court’s instruction to

the jury that the comments are not to be considered as evidence.

Commonwealth v. Robinson, 864 A.2d 460, 519 (Pa. 2004), cert. denied,

546 U.S. 983 (2005).

      Here, appellant fails to demonstrate how each of these comments

prejudiced appellant to the extent they caused the jurors to form a fixed bias

and hostility toward appellant that impeded their ability to objectively weigh

the evidence and render a true verdict thereby denying appellant a fair trial.

(Appellant’s brief at 12-14.)   The record reveals the trial court provided a

curative instruction following the first and second comments and did not find

the third comment to be so inflammatory as to require a curative instruction.

(Notes of testimony, 11/15/17 at 36, 38-39 & 46.) Furthermore, the trial

court charged the jury with the instruction that “speeches are not part of the

evidence [and y]ou are not to consider them as evidence.” (Id. at 51.) See



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Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013) (holding, a jury is

presumed to have followed the instructions provided by the trial court),

cert. denied, 574 U.S. 828 (2014). Based upon the record before us, we can

discern no abuse of discretion on the part of the trial court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/14/20




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