J-S13026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEVEN DEVON GREENFIELD                    :
                                               :
                       Appellant               :   No. 1350 MDA 2019

        Appeal from the Judgment of Sentence Entered October 11, 2018
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-CR-0003097-2017


BEFORE:      STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY DUBOW, J.:                                FILED MARCH 27, 2020

        Appellant, Steven Devon Greenfield, appeals from the Judgment of

Sentence of eight and one-half to seventeen years of incarceration, entered

October 11, 2018, following a jury trial resulting in his conviction for Criminal

Attempt (Statutory Sexual Assault), Involuntary Deviate Sexual Intercourse

(IDSI) with a child, Incest, and related crimes.1 We affirm on the basis of the

trial court’s Opinion filed November 19, 2019.

        In its Opinion, the trial court set forth the underlying facts. See Trial

Ct. Op., filed 11/19/19, at 1-9.         Briefly, over the course of several years
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S. §§ 901(a) (3122.1(b)), 3123(b), 4302(b)(2), respectively. In
addition, the jury convicted Appellant of the following crimes: Involuntary
Deviate Sexual Intercourse, 18 Pa.C.S. § 3123(a)(7); Indecent Assault of a
Child, 18 Pa.C.S. § 3126(a)(7); Indecent Assault, 18 Pa.C.S. § 3126(a)(8);
Endangering Welfare of Children, 18 Pa.C.S. § 4304(a)(1); Corruption of
Minors, 18 Pa.C.S. § 6301(a)(1)(ii).
J-S13026-20



beginning when the Victim was twelve years old, Appellant, the Victim’s

father, sexually abused her. Following trial, the jury convicted Appellant of

the crimes set forth above, and the trial court imposed sentence.

      In October 2018, Appellant timely filed a Post-Sentence Motion,

challenging the weight of the evidence and a decision of the trial court to

exclude certain statements made by the Victim during the investigation. Post-

Sentence Motion, 10/12/18. The trial court denied Appellant’s Post-Sentence

Motion.

      Appellant did not timely appeal. However, following the appointment of

new counsel and collateral proceedings, the court reinstated Appellant’s direct

appeal rights nunc pro tunc. Order, 7/15/19. Thereafter, Appellant timely

appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement; the trial

court issued a responsive Opinion.

      Appellant raises the following issues on appeal:

      1. Whether the [t]rial [c]ourt erred in denying [Appellant] relief
         in the form [of] setting aside the guilty verdicts of Criminal
         Attempt – Statutory Sexual Assault, Invol[untary] Deviate
         Sexual Intercourse [with] Child, Endangering Welfare of
         Children, Indecent Assault Person Less than 13 Years of Age,
         and Corruption [o]f Minors, as the verdict was against the
         weight of the evidence where the testimony of witnesses
         contradicted each other and as such was incredible[; and]

      2. Whether the [t]rial [c]ourt erred in denying [Appellant]s
         request to introduce statements of the [V]ictim made during
         the investigation, which statements would have been refuted
         at trial by defense witnesses if given the opportunity.

Appellant’s Br. at 6.



                                     -2-
J-S13026-20



      In his first issue, Appellant challenges the weight of the evidence,

highlighting minor inconsistencies between the Victim’s testimony and the

testimony of Appellant’s girlfriend, an eyewitness to Appellant’s crimes. See

id. at 12-16.

      In addressing an appellant’s weight claim, we apply the following

principles:

      As a general rule, the weight of the evidence is exclusively for the
      fact finder who is free to believe all, part or none of the evidence
      and to determine the credibility of the witnesses. We cannot
      substitute our judgment for that of the finder of fact. 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, our 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.

Commonwealth v. Castelhun, 889 A.2d 1228, 1234 (Pa. Super. 2005)

(internal quotation marks and citations omitted).

      Following our review of the record, the briefs of the parties, the

applicable law, and the trial court Opinion, we discern no abuse of the trial

court’s discretion in denying Appellant’s challenge to the weight of the

evidence. The Honorable Christylee L. Peck has authored a comprehensive

and well-reasoned Opinion, citing the record and relevant case law. See Trial

Ct. Op. at 1-9 (summarizing testimony from the Victim and Appellant’s

girlfriend), 11-15 (acknowledging minor inconsistencies in the testimony but

concluding that the jury was free to credit this testimony and resolve the




                                     -3-
J-S13026-20



conflicts, and opining that the verdict did not shock the conscience of the

court). Thus, no relief is due. See Castelhun, 889 A.2d at 1234.

         In his second issue, Appellant challenges a decision of the trial court to

exclude certain evidence. See Appellant’s Br. at 17-20. Specifically, Appellant

wanted to cross-examine the Victim with prior statements that she made

about her brother sexually abusing her and step-mother physically abusing

her. See id.

         The admissibility of evidence is within the sole discretion of the trial

court.     We will reverse an evidentiary ruling only for a clear abuse of the

court’s discretion. Commonwealth v. Allison, 703 A.2d 16, 18 (Pa. 1997).

“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.”

Commonwealth v. Holder, 815 A.2d 1115, 1118 (Pa. Super. 2003) (citation

omitted).

         Relevant evidence is generally admissible. Pa.R.E. 402. When called

upon to determine the relevance of proffered evidence, the trial court must

consider whether the evidence bears upon a material fact at issue in the case,

and whether it tends to prove or disprove that fact. See Commonwealth v.

Johnson, 638 A.2d 940, 942 (Pa. 1994).

         Evidence challenging the credibility of an adverse witness is relevant.

See, e.g., Commonwealth v. Woeber, 174 A.3d 1096, 1104 (Pa. Super.

                                           -4-
J-S13026-20



2017) (concluding that evidence of the complainant’s prior inconsistent

statement, suggesting others had assaulted her on night in question—not the

defendant—was relevant and potentially admissible).     However, “a witness

may not be contradicted upon a collateral matter” that “has no relationship to

the matter on trial.” Johnson, 638 A.2d at 942-43; see also Holder, 815

A.2d at 1119-20 (concluding that prior rape allegation against third party was

immaterial to whether defendant assaulted the victim and was a collateral

matter, unsuitable for cross-examination).

      Following our review of the record, the briefs of the parties, the

applicable law, and the trial court Opinion, we discern no abuse of the trial

court’s discretion in excluding the prior statements made by the Victim. The

Honorable Christylee L. Peck has authored a comprehensive and well-

reasoned Opinion, citing the record and relevant case law. See Trial Ct. Op.

at 15-17 (concluding that the Victim’s allegation against her brother was

irrelevant to whether Appellant abused the Victim and that it did not tend to

prove some motive of the Victim to fabricate an allegation against Appellant),

17-19 (concluding that allegation against her stepmother was irrelevant

because there was no causal relationship between alleged physical abuse by

the stepmother and the sexual abuse by Appellant).

      Because Appellant may not challenge the Victim on a collateral matter,

the statements proffered were irrelevant and inadmissible.    See Johnson,

638 A.2d at 942-43. Thus, we discern no abuse of the trial court’s discretion

in denying their admission. Allison, 703 A.2d at 18.

                                    -5-
J-S13026-20



      For these reasons, we affirm on the basis of the trial court’s Opinion filed

November 19, 2019. The parties are instructed to attach a copy of Opinion to

all future filings.

      Judgment of Sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2020




                                      -6-
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          ;.:,CP-21-CR-0003097-2017 - OPINION PURSUANT TO PA.R.A.P. 1925, FILED 11-19-19 - GREENFIELD - 11/20/2019 - NOP - 19
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                                        FINDINGS OF FACT & PROCEDURAL HISTORY
                           On July 13, 2018, a jury found Appellant guilty of the following: Count 2,
                   Criminal Attempt to Statutory Sexual Assault, a felony of the first degree; Count 3,
'"··.
                   Involuntary Deviate Sexual Intercourse (IDSI) with a Child, a felony of the first
                   degree; Count 4, IDSI, a felony of the first degree; Count 6, Incest, a felony of the
                   second degree; Count 7, Endangering the Welfare of Children, a felony of the third
                   degree; Count 8, Indecent Assault of a Child, a felony of the third degree; Count 9,
                   Indecent Assault, a misdemeanor of the second degree; and Count 10, Corruption
                   of a Minor, a felony of the third degree.1 Appellant was sentenced to a total period
                   of incarceration of 8.5 to 17 years.2 Appellant's offenses resulted from Appellant's
                   sexual conduct with his daughter ("the Victim"), and occurred over the course of
                   several years in Cumberland County, Pennsylvania. The Commonwealth's
                   evidence to support the charges was as follows:
                           The Victim was 1 7 years old at the time of trial; Appellant, her father, was
                   50 years old. The Victim testified that the earliest sexual incident she could recall
                   with Appellant occurred when she was 12 years old, when she got "in trouble" and
                    I
                     Verdict Slips, dated July 13, 2018; Order of Court, In re: Verdict/Bail/Appear for Sentence,
                   July 13, 2018 (Peck, J.). The Commonwealth withdrew two counts during the course of the trial
                   before the jury was charged. Order of Court, In re: Count 1 and Count 5 Withdrawn, July 12,
                   2018 (Peck, J.); Transcript of Proceedings, In re: Jury Trial, Day Four, July 12, 2018, at 3 (Peck,
                   J.) (hereinafter "N.T. Day 4 at_").
                   2
                     Order of Court, In re: Sentence, October 11, 2018 (Peck, J.).                                   ,,




                                                 ._,
CP-21-CR-0003097-2017 - OPINION PURSUANT TO PA.R.A.P. 1925, FILED 11-19-19 - GREENFIELD - 11/20/2019 - NOP - 19



          Appellant asked her to come into his bedroom.3 Appellant told the Victim if she
          "wanted to stay in his house, [she] had to suck his thing. "4 Appellant positioned the
          Victim's head and mouth to do so, which she did "for a little while" before
          stopping because she "didn't want to anyrnore.t" Thereafter, Appellant directed the
          Victim to come to his bedroom from time to _time, where he would tell her to take
          off her clothes and proceed to attempt to penetrate the Victim's vagina with his
          penis.6 The Victim explained that "it wouldn't work," because she would squeeze
          her legs together or say "ow" when she felt physical pain, though occasionally
          Appellant continued and told her she would "just have to take the pain."7 The
          Victim said that Appellant would also kiss her, play with her breasts, and put his
                                 8
         mouth on her vagina. The Victim explained that her step-mother was never home
          when Appellant attempted sexual acts with the Victim.9 Because the Victim's
          siblings were usually home, Appellant would put a bin in front of the door and ask
         the Victim to "look for something" in the bin to avoid looking suspicious."
                 The Victim said most of Appellant's conduct occurred in his bedroom in
         their home, but identified other locations: in the Victim's bedroom she shared with
         her sisters, in the living room, in a hotel room, at TJ Rockwell's where Appellant
          and all the children worked in the mornings before school, and in Appellant's car
          in a parking lot." Appellant sometimes took the Victim to TJ Rockwell's at night
          after closing, where he took her in the restroom and attempted to have sexual

          3
           Transcript of Proceedings, In re: Jury Trial, Day Two, July 10, 2018, at 37-38 (Peck, J.)
         (hereinafter "N.T. Day 2 at_").
         4
           Id. at 38.
         5
           Id. at 39.
         6
           Id. at 40.
         7
            Id. at 41.
         8
            Id. at 42. When asked what Appellant would do when his mouth was on her vagina, the Victim
         said, "he would lick it, I don't know, or try to stick his tongue inside nie." Id.
         9
            Id. at 46-47.
         10
         11
            Jd. at 54.
             Id. at 43-46.

                                                       2
CP-21-CR-0003097-2017 - OPINION PURSUANT TO PA.R.A.P. 1925, FILED 11-19-19 - GREENFIELD - 11/20/2019 - NOP - 19



          intercourse with her or make her engage in oral sex with Appellant. 12 The Victim
          indicated that semen came out of his penis "most of the time."13 Sometimes
          Appellant had the Victim stay home from school so they could engage in sex acts
                                    14
          in the living room.            When the Victim was about 15 or 16 years old, Appellant
          took her to a hotel where he attempted sexual intercourse with her and engaged in
                               15
          oral sex with her.        Appellant also sent photos of his penis to the Victim and asked
          her to delete the same thereafter.16 The Victim also detailed an occasion when
          Appellant drove her to a parking lot at night where no one would see them. 17
                 Intertwined with Appellant's conduct with the Victim was Appellant's
          sexual relationship with Victim's friend, Erikia Ricker, who moved into the home
          in January of 2017. 18 At first, the Victim said, the Victim's role in Appellant and
          Erikia's relationship consisted of the Victim watching Appellant and Erikia have
          sexual intercourse so the Victim could serve as the "lookout" and ensure no one
          entered the room. 19 Thereafter, Appellant prompted Erikia and the Victim to
          engage in oral sex with each other." Appellant either watched or kissed them while
          the same occurred." On one evening, the Victim and Erikia were sleeping on the
          floor of the girls' bedroom when Appellant walked in and the Victim felt
          someone's hands in her pants.22 The Victim's two younger sisters were asleep in

          12
              Id. at 43-44.
          13
              Id. at 44.
          14
              Id. at 45-46.
          15
              Id. at 51-52. A manager at the Motel 6 in Carlisle testified for the Commonwealth, and
          presented hotel records showing Appellant's check-in and check-out dates. Id. at 155-56;
          Commonwealth's Exhibit No. 7.
          16
              N.T. Day 2 at 53.
          17
              Id. at 63.
          18
              Id. at 189.
           19
              Id. at 59-60.
          20
              Id. at 60-61. The Victim explained that Appellant wanted the Victim to put her mouth on
          Erikia's vagina, and Erikia would do the same to the Victim when Appellant asked her to. Id.
          21
              Id. at 61.
          22
              Id. at 65.


                                                          3
CP-21-CR-0003097-2017 - OPINION PURSUANT TO PA.R.A.P. 1925, FILED 11-19-19 - GREENFIELD - 11/20/2019 - NOP - 19



          their beds in the room while Appellant was sitting on the bed prompting Erikia to
          touch the Victim and perform oral sex on the Victim. 23
                 Cumberland County Children and Youth Services (CCCYS) and the Upper
          Allen Township Police became involved after a friend of Erikia's heard Erikia and
          the Victim talking about the Victim's sexual relationship with Appellant and
          reported the same to CCCYS.24 CCCYS and Detective Sergeant Barnes went to
          Appellant's home on March 23, 2017 to speak with Appellant and Erikia. 25 The
          Victim did not know why they were at the home until Erikia texted the Victim and
          told her that her friend reported what she heard.26 The Victim read text messages at
          trial from Erikia, wherein Erikia told the Victim, "Don't say a mother fucking
          thing to that lady. She's there about you. Deny anything happening between
          anybody, understand?"27 Erikia also texted, "Remember when we were talking to
          [my friend]? Yeah well she reported it. So you need to deny everything and
          anything that happened," "[My friend] reported your dad trying to touch you,"
          "Just make sure you deny anything between him and I and anything between you
          and I," and "Delete any evidence of anything out of your phone now."28 During the
          friend's testimony, she read text messages from Erikia, wherein Erikia texted, "if
          [the Victim] gets pissed off at me she will mess around with her dad[']s turn on
          spots just to try to split us up because she knows how much he means to me."29
                 Erikia's testimony largely corroborated the Victim's testimony. Erikia said
          she officially moved into the home in January of 2017 when she was 18 years

          23
             Id. at 66·67.
          24
             Id. at 74. 75. Erikia's friend testified for the Commonwealth that she called CCCYS about
          what she heard. The friend said that the Victim said she was in the room to be the lookout and
          was sometimes asked to join in. Id. at 165· 72.
          25
             Id. at 75.
          26
             Id. at 76.
          27
             Id. at 78; Commonwealth's Exhibit No. 4.
          28
             N.T. Day 2 at 78·80; Commonwealth's Exhibit No. 4.
          29
             N.T. Day 2 at 181; Defense Exhibit No. 10.


                                                          4
CP-21-CR-0003097-2017 - OPINION PURSUANT TO PA.R.A.P. 1925, FILED 11-19-19 - GREENFIELD - 11/20/2019 - NOP - 19



          old." At that time, she and Appellant were in a sexual relationship and Appellant
          would ask the Victim to either sit in the room while Appellant and Erikia had sex
          or sit outside the room to ensure no one intruded.31 Eventually, Erikia said,
          Appellant began getting "touchy feely" with the Victim and asked her to join in on
                                      32
          their sexual activities.         Erikia said Appellant "would start trying to have [the
          Victim] give him oral sex[,] [a]nd eventually once he kept pushing it he would just
          kind of like straddle her face and pretty much force her to give him oral sex where
          she couldn't really get away from him."33 Erikia detailed other occasions where
          Appellant would attempt intercourse, touch the Victim's breasts, "put his hands
          down her pants," and "put his fingers inside of her vagina ... because he wanted to

                                                                                           .
          take her virginity," which he "blatantly admitted" to both the Victim and Erikia.34
          Erikia testified that the Victim would cover her face, squeeze her legs together, and
          tell Appellant "that no, she doesn't want this to happen," but the Victim "didn't
          want to hurt his feelings either.?" Just as the Victim testified, Erikia testified that
          Appellant would ask Erikia and the Victim to engage in sexual touching while he
          watched andjoined.36 Erikia pointed to one occasion in March of2017 when Erikia
          had pneumonia and the Victim and Appellant performed oral sex on each other in
                                                                  37
          the living room while Erikia was on the couch.




          30
             N.T. Day 2 at 182.
          31
             Id. at 192-93.
          32
             Id. at 193-94.
          33 Id.
          34
             Id. at 194. Erikia detailed Appellant's actions, including that he "would kind of straddle her
          and take the top of his penis against her vagina," and use his fingers to do the same. Id. See also
          id. at 196-98.
          35Id. at 195.
          36
             Id. at 198.
          37
             Transcript of Proceedings, In re: Jury Trial, Day Three, July 11, 2018, at 9 (Peck, J .)
          (hereinafter "N.T. Day 3 at_").


                                                           5
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CP-21-CR-0003097-2017 - OPINION PURSUANT TO PA.R.A.P. 1925, FILED 11-19-19 - GREENFIELD - 11/20/2019 - NOP - 19



                        Erikia said that when CCCYS came to the home on March 23, 2017,
          Appellant's wife picked up Erikia and Appellant at wo.rk to take them home.38 In
          the car, Appellant asked Erikia to text the Victim and tell her not to say anything to
          anyone "because [Appellant] doesn't want to get arrested.t''" Erikia also confirmed
          the text messages she sent to the Victim telling the Victim to delete everything
          from her phone and say nothing.l" Detective Sergeant Barnes interviewed
          Appellant and Erikia at the police station the day he and CCCYS appeared at the
          home.41 Detective Sergeant Barnes said that Appellant initially denied having a
          sexual relationship with either the Victim or Erikia, but ultimately admitted to a
          sexual relationship with the Erikia when Detective Sergeant Barnes informed
          Appellant that Erikia had already confirmed the same.42 At this time, Appellant
          was not permitted in the home unsupervised.43
                        The Victim was twice interviewed at the Children's Resource Center (CRC).
          At the first interview, the Victim denied any sexual contact with Appellant." The
          Victim explained,
                           I didn't want it to be my fault that dad would spend all that - all
                           those years in prison, like because he was telling me how he
                           could die in there. Also, I was very scared. I didn't want him to
                           be mad at me. I didn't want him to hate me.45

          Thereafter, the Victim got in contact with her biological mother on Facebook and
          told her, generally, that Appellant had been having sexual contact with her.46 When


          38
             N.T. Day 2 at 205-06.
          39
             Id. at 207.
          40
             Id. at 208-10.
          41
             N.T. Day 3 at 53.
          42
             Id. at 70.
          43
             N.T. Day 2 at 81.
          44
             Id. at 83.
          45 Id.
          46
             Id. at 84.


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          Appellant saw these messages, he yelled at the Victim and broke her phone.47 The
          Victim then told her mother that nothing happened and what she meant was that
          Appellant was hitting her rather than sexually assaulting her.48 The Victim
          explained that she defended Appellant and expressed anger at CCCYS
          involvement because Appellant "kept yelling" at her and blaming her. 49
                 On July 26, 2017, the Victim was interviewed at CRC a second time after
          telling a coworker that Appellant gave her a hickey on her neck while wrestling
          with her. so The coworker testified for the Commonwealth to the same effect,
          stating that she called Childline after the Victim told her Appellant caused the
          hickey.51 At this second interview, the Victim disclosed Appellant's sexual
          relationship with her.52 The Victim explained that prior to the interview, she was at
          a CCCYS placement hearing and Appellant was "pacing up and down the hallway"
          and telling the Victim, "this is all your fault."53 When the Victim met with her
          guardian ad litem before the hearing, she was visibly stressed from the same,
          which led to Victim telling her "what happened" and that Appellant was putting
          too much stress on her. 54
                 The defense presented seven witnesses: Appellant, Appellant's wife, four of
          Appellant's children, and Appellant's niece. Appellant's children and niece
          testified that they never saw or heard anything unusual, at home or at TJ

          47
             Id. at 84-85.
          48
             Id. at 84-85; Commonwealth's Exhibit No. 5.
          49                .
             N.T. Day 2 at 88.
          50
             Id. at 90. Dr. Lori Frasier, an expert witness for the Commonwealth, testified about her
          examination of the Victim on July 26, 2017, explaining that the examination showed no medical
          abnormalities because the Victim was examined outside the brief window of time that would
          show sexual contact or trauma. N.T. Day 3 at 41-45.
          51
             N.T. Day 2 at 149-50.
          52
             Id. at 91-92.
          53
             Id. at 92.
          54
             Id. We note that the Victim identified this person as her "guardian angel" for the CCCYS
          placement hearing, which we presume to mean her guardian ad !item. See id.


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          Rockwell's or elsewhere, to indicate that Appellant and the Victim had an
          improper relationship, and that the home was small and the walls were thin. 55
          Appellant's wife, Shelly Yocum, said that neither she nor Appellant knew what
          was happening on March 23, 2017 when CCCYS and police came to the home to
          speak to Appellant and Erikia. 56 Shelly denied that Appellant asked Erikia to relay
          any messages to the Victim, including any directive to delete evidence.57 Shelly
          said that she was not aware of Appellant's affair with Erikia until the police started
          questioning Shelly, and at the time of trial Shelly believed Appellant had an affair
          only with Erikia and not with the Victim, "[b ]ecause there was opportunity there
          for him and Erikia, not for him and [the Victim]."58
                 When Appellant took the stand, he denied any improper relationship with
          the Victim.59 Appellant explained that bringing the Victim into his bedroom and
          shutting his bedroom door to keep the other children out "could never happen"
          because his "kids are all over the place."60 Appellant said that he had never heard
          any allegation of any sexual contact with the Victim at TJ Rockwell's, that he sent
          photos of his penis to the Victim, or that he had taken the Victim anywhere in a car
          prior to trial when the Victim testified about the same. Appellant said that during
                                                                  61


          his interview with Detective Sergeant Barnes, he thought he was being questioned
          in relation to his relationship with Erikia, but denied the same because he "already
          knew that they couldn't do nothing to me."62 When asked on cross-examination
          why Appellant told one of the detectives, "I know dam well Erikia and [the

          55
             See generally N.T. Day 4 at 5-63.
          56
             N.T. Day 3 at 162-64.
          57
             Id. at 166.
          58
             Id. at 171.
          59
             N.T. Day 4 at 87, 94.
          60 Id. at 99.
                        Appellant also said he never had any sexual relations with Erikia in the home, and
          only at a hotel. Id. at 95.
          61
             Id. at 97.
          62
             Id. at 81-82, 85.

                                                           8
CP-21-CR-0003097-2017 - OPINION PURSUANT TO PA.R.A.P. 1925, FILED 11-19-19 - GREENFIELD - 11/20/2019 - NOP - 19



          Victim] didn't have any contact," Appellant said he was mistaken and someone
         . from law enforcement had already told him before the interview that the
          questioning was about the Victim.63 Appellant denied directing Erikia to tell the
          Victim to hide evidence when CCCYS and police appeared.64
                 Based on the foregoing evidence, on July 13, 2018, the jury returned a
          verdict of guilty on all counts.65 On October 11, 2018, following receipt of a
          presentence investigation report, this Court sentenced Appellant to a total period of
          incarceration of 8.5 to 17 years, in addition to costs, fines, SORNA registration
          requirements, and a prohibition from contact with the Victim.66 On October 12,
          2018, Appellant filed a timely motion for post-sentence relief, challenging the
          weight of the evidence and moving for a new trial on the basis of suppression of
          statements the Victim made during the investigation.67 The Commonwealth filed a
          Response on November 26, 2018,68 and this Court denied Appellant's motion on
          November 29, 2018.69 No direct appeal was filed. On February 21, 2019, trial
          counsel moved to withdraw and to appoint alternate counsel to pursue appellate or
          post-conviction relief.i" This Court held a hearing on the motion on March 19,
          2019 to ascertain what occurred with respect to the direct appeal and thereafter
          permitted trial counsel to withdraw .71 Allen Welch, Esquire was appointed to file a


          63
             Id. at 106.
          64
             Id. at 79.
          65
             Verdict Slips, dated July 13, 2018; Order of Court, In re: Verdict/Bail/Appear for Sentence,
          July 13, 2018 (Peck, J.).
          66
             Order of Court, In re: Sentence, October 11, 2018 (Peck, J.).
          67
             Defendant's Motion for Post-Sentence Relief, October 12, 2018.
          68
             Commonwealth's Response to Defendant's Post-Sentence Motion, November 26, 2018.
          69
             Order of Court, In re: Defendant's Motion for Post-Sentence Relief, November 29, 2018
          (Peck, J.).
          70
             Motion to Withdraw as Counsel and For Appointment of Alternate Counsel, February 21,
          2019.
          71
             Order of Court, In re: Motion to Withdraw Counsel/Appoint Public Defender (March 19,
          2019) (Peck, J.).


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          PCRA action to pursue reinstatement of direct appeal rights, 72 which he did on
          May 14, 2019, unopposed by the Commonwealth.73 This Court granted the petition
          and reinstated Appellant's direct appeal rights nunc pro tune on July 15, 2019.74
          Appellant subsequently filed a timely Notice of Appeal on August 14, 2019 and a
          Concise Statement of Errors Complained of on Appeal on September 16, 2019,
          complaining as follows:
                       1. Whether the Trial Court erred in denying Petitioner relief in
                      the form setting aside the guilty verdicts of Criminal Attempt -
                      Statutory Sexual Assault, Invol. Deviate Sexual Intercourse
                      W/Child, Endangering Welfare of Children, Indecent Assault
                      Person Less than 14 Years of Age, and Corruption Of Minors,
                      as the verdict was against the weight of the evidence where
                      testimony of witnesses contradicted each other and as such was
                      incredible.
                      2. Whether the Trial Court erred in denying Petitioner's
                      request to introduce statements of the victim made during the
                      investigation, which statements would have been refuted at trial
                      by defense witnesses if given the opportunity.75

                    We offer this Opinion, pursuant to Pa.R.A.P. 1925(a), in support of our
                 judgment.




          72
             See Order of Court, In re: Motion to Withdraw Counsel/Appoint Public Defender, March 19,
          2019 (Peck, J.); Order of Court, In re: Appointment of Counsel, March 20, 2019, (Guido, P.J.).
          73
             Post Conviction Relief Act Petition, May 14, 2019; Commonwealth's Answer to Defendant's
          Post Conviction Relief Act Petition, June 25, 2019.
          74
             Order of Court, In re: Defendant's Post Conviction Relief Act Petition, July 15, 2019 (Peck,
          J.).
          75
            Notice of Appeal, August 14, 2019; Concise Statement of Errors Complained of on Appeal,
          September 16, 2019.

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                                                  DISCUSSION
                a. Weight of the Evidence
                Appellant first argues that this Court erred in failing to set aside five of the
          jury's guilty verdicts.76 When reviewing weight of the evidence claims, the
          standard of review is as follows:
                       A challenge to the weight of the evidence is directed to the
                       discretion of the trial judge, who heard the same evidence and
                       who possesses only narrow authority to upset a jury verdict.
                       The trial judge may not grant relief based merely on some
                       conflict in testimony or because the judge would reach a
                       different conclusion on the same facts. Relief on a weight of the
                       evidence claim is reserved for extraordinary circumstances,
                       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.

          Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011) (internal citations omitted).
          As the Supreme Court of Pennsylvania has noted, "the jury ... may choose to
          believe all, part, or none of the evidence." Id. An appellant may prevail on a
          challenge to the weight of the evidence only where the evidence is "so tenuous,
          vague and uncertain that the verdict shocks the conscience of the court."
          Commonwealth v. Miller, 172 A.3d 632, 643 (Pa. Super. 2017), appeal denied,
          183 A.3d 970 (Pa. 2018) (quoting Commonwealth v. Talbert, 129 A.3d 536, 546
          (Pa. Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016)).
                We summarize the offenses for which Appellant challenges the weight of the
          evidence: ( 1) Criminal Attempt to Statutory Sexual Assault, satisfied where a
          person has intent to engage in sexual intercourse with a complainant under 16
          years old and this person is 11 or more years older than the complainant, and not
          married to the complainant, and "does any act which constitutes a substantial step"
          76
               See Concise Statement of Errors Complained of on Appeal, September 16, 2019.

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          toward the same, 18 Pa.C.S. § 90l(a), § 3122.l(b); (2) IDSI with a Child, satisfied
          where "the person engages in deviate sexual intercourse with a complainant who is
          less than 13 years of age," 18 Pa.C.S. § 3123(b); (3) Endangering Welfare of
          Children, satisfied where "[a] parent, guardian or other person supervising the
          welfare of a child under 18 years of age, or a person that employs or supervises
          such a person ... knowingly endangers the welfare of the child by violating a duty
          of care, protection or support," 18 Pa.C.S. § 4304(a)(l); (4) Indecent Assault of a
          Child, satisfied where "the person has indecent contact with the complainant,
          causes the complainant to have indecent contact with the person or intentionally
          causes the complainant to come into contact with seminal fluid, urine or feces for
          the purpose of arousing sexual desire in the person or the complainant and ... the
          complainant is less than 13 years of age," 18 Pa.C.S. § 3126(a)(7); and (5)
          Corruption of Minors, satisfied where a person 18 years old or older "corrupts or
          tends to corrupt the morals of any minor less than 18 years of age, or . . . aids,
          abets, entices or encourages any such minor in the commission of an offense under
          Chapter 31," 18 Pa.C.S. § 639l(a)(l)(ii). We note that "a true weight of the
          evidence challenge concedes that sufficient evidence exists to sustain the verdict
          but questions which evidence is to be believed." Miller, 172 A.3d at 643 (quoting
          Commonwealth v. Thompson, 106 A.3d 742, 748 (Pa. Super. 2014)).
               We find guidance as to what Appellant believes may support a weight of the
          evidence argument in Appellant's post-trial motion, where Appellant argued that
          the Victim and Erikia were the only eyewitnesses to Appellant's crimes and that
          their testimony contradicted one another in some respects.77 Appellant also argued


          77
            Appellant averred that Erikia denied, contrary to the Victim's testimony, that Appellant once
          came into the girls' bedroom and prompted Erikia to put her hands in the Victim's pants; the
          Victim denied, contrary to Erikia's testimony, that Appellant abused the Victim in the living
          room while Erikia was on the couch with pneumonia; the two witnesses did not agree on the
          number of times they went to a hotel with Appellant; and the witnesses agreed the room they


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          that some of Appellant's testimony came to light for the first time at trial rather
          than during the investigation, and that the other children and Appellant's wife
          testified that the relationship was "not possible.':" We note that at trial, on cross-
          examination of the Victim, the defense evidently sought to undermine the weight
          of the Commonwealth's evidence via exposing the Victim's inability to, for
          example, identify her exact age during particular sexual episodes, or name the
          precise dates she went to a hotel with Appellant.
              The jury, however, ultimately weighed the evidence in favor of the
          Commonwealth, which far from shocks the conscience of this Court. We do not
          find the evidence contrary to the verdicts, and note that the jury is free to believe
          all, part, or none of the evidence. Resolving contradictory testimony and questions
          of fact are within the province of the jury. See Commonwealth v. Miller, 172 A.3d
          632, 642 (Pa. Super. 2017), appeal denied, 183 A.3d 970 (Pa. 2018);
          Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008). The Commonwealth
          presented the Victim's testimony, in which the Victim told the jury that when she
          was about 12 years old, and Appellant was about 45 years old,79 Appellant called
          the Victim into his bedroom and prompted her to perform oral sex on him. The
          Victim told the jury that the abuse continued through the years, and she detailed
          moments when Appellant attempted to force sexual intercourse on the Victim as
          she squeezed lier legs together and protested in pain. The Victim told the jury that
          Appellant kissed her, touched her breasts, and forced oral sex with her. The Victim
          told the jury that when Appellant began a sexual relationship with Erikia, the
          Victim was asked to stand and watch as Appellant and Erikia had sex and was


          stayed in on a particular date had one bed but Detective Sergeant Barnes and the hotel manager
          identified that room as having two beds. Defendant's Motion for Post-Sentence Relief, October
          12, 2018.
          78
             Defendant's Motion for Post-Sentence Relief, October 12, 2018.
          79
             Appellant was born March 21, 1968. N.T. Day 3 at 53.


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          ultimately asked to join, which included the Victim and Erikia performing oral sex
          on each other at Appellant's urging. The Commonwealth offered Erikia's
          testimony, which largely corroborated the Victim's testimony. Erikia testified that
          the Victim did watch her have sex with Appellant, prompt the Victim to join them,
          attempt sexual intercourse with the Victim, force oral sex on the Victim, and
          prompt the girls to touch each other:
              The fact that the Victim stated she did not have sexual contact with Appellant
          the day that Erikia had pneumonia, or the fact that the Victim could not remember
          the dates she went to a hotel or identify how many beds were in a particular hotel
          room, or the fact that Erikia testified Appellant never came into the girls' bedroom
          and direct Erikia to sexually touch the Victim (though she testified it occurred in
          other locations), or certainly that the only witnesses to Appellant's abuse of his
          minor daughter were his minor daughter and his extra-marital girlfriend does not
          tip the scales so grossly against guilty verdicts to shock this Court's conscience.
          Further, reliance on Appellant's and his witnesses' testimony that such a
          relationship was not possible is unpersuasive. This Court cannot substitute its
          judgment. for that of the jury, which evidently credited the Commonwealth's
          evidence more heavily than it did Appellant's. It was not within this Court's power
          to take a different view of the evidence than the jury based on some conflict in
          testimony. Commonwealth v. Blakeney, 946 A.2d 645, 653 (Pa. 2008).
              In Commonwealth v. Jenkins, 578 A.2d 960 (Pa. Super. 1990), the defendant
          challenged his convictions for sexual offenses against his children based on the
          weight of the evidence. The Superior Court acknowledged that the children's
          testimony was at times contradictory and inconsistent regarding dates and times of
          the abuse and the respective participants, that the children "both admitted that they
          do not always tell the truth," and that one child "admitted that on various occasions
          she has named others as sexual abusers, and she admitted that if she were mad at

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          someone she would name them as a sexual abuser." Jenkins, 578 A.2d at 963. The
          court determined, however, that "[t]he jury was free to accept all, some or none of
          the testimony," and the jury evidently chose to believe the victims which did not
          shock the court's sense of justice. Id. This conclusion was not disturbed by the fact
          that the defendant denied committing the acts charged and that a physician could
          find no evidence of abuse. Id. In Appellant's case, as in Jenkins, the jury was free
          to credit any or all of the Commonwealth's evidence and little to none of
          Appellant's evidence. We discern no conflict or uncertainty in evidence so great
          that the jury's verdicts should have been disturbed.
                b. Victim's Statements
                Appellant next and finally complains that this Court erred in denying
          Appellant's "request to introduce statements of the victim made during the
          investigation, which statements would have been refuted at trial by defense
          witnesses if given the opportunity.Y'' Appellant raised the same issue in his post-
          sentence motion, identifying the statements as those the Victim made alleging that
          her brother and stepmother perpetrated acts of abuse on her. 81
                We begin with the Victim's statements that her brother ("J.G.") sexually abused
          her. Before the Commonwealth called the Victim to testify, the Commonwealth
          moved to preclude any questioning of the Victim "about any allegations that her
          brother, [J.G.], touched her," which the Commonwealth said occurred "a couple
          years" before the trial. 82 Defense counsel responded that he planned to use the
          allegation against J.G. purely to attack the Victim's credibility by later calling J.G.
          as a witness to deny the allegation. 83 The parties agreed that the alleged touching
          did not have any relation to Appellant's conduct with the Victim, other than the

          8
           ° Concise Statement of Errors Complained of on Appeal, September 16, 2019.
          81
               Defendant's Motion for Post-Sentence Relief, October 12, 2018.
          82
               N.T. Day 2 at 3-4.
          83
               Id. at 3;


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          fact that the Victim disclosed both events during the same CRC interview.84 This
          Court ruled the testimony inadmissible pursuant to Pennsylvania "Rape Shield
          Law," which we interpreted to include past allegations of sexual assault, and
          further on the basis of irrelevance to Appellant's conduct, but advised counsel we
          could revisit the point when he called J.G. to testify.85 Counsel did not attempt to
          revisit the point during J.G. 's testimony.
               We acknowledge the Rape Shield Statute, 18 Pa.C.S. § 3104, was amended in
          2019 to specifically bar evidence of a victim's past sexual victimization and that
          the same was not delineated in the statute applicable at the time of trial.
          Nevertheless, case law interpretation of the statute and traditional evidence rules
          support the exclusion of such evidence. 86 In Commonwealth v. Coia, 492 A.2d
          1159 (Pa. Super. 1985), the defendant sought to admit an affidavit of the victim's
          friend stating that the victim had made a series of "repeated and unbelievable
          claims of sexual attacks upon herself by others" to discredit the victim's claim that
          the defendant actually assaulted her. Coia, 492 A.2d at 1161. The court ruled the
          evidence inadmissible for failing to exculpate the appellant, lacking relevance to
          the defendant's alibi defense, and risking "unnecessarily prejudic[ing] the victim
          by permitting unproven allegations of prior sexual activity with third parties to be
          presented before a jury." Id. See also Commonwealth v. Johnson, 638 A.2d 940,
          942 (Pa. 1994) ("a witness may not be contradicted upon a collateral matter").
               The same concerns were present in Appellant's case. At sidebar, we sought to
          find a closer link to Appellant's conduct that might bring the allegation into greater

          84
             Id. at 5. At the CRC interview, according to defense counsel, the Victim alleged that "her
          brother touched and tried to suck her boobs through her clothing." Id. at 5.
          85
             Id. at 5-7.
          86
             "If the prior sexual conduct was a prior sexual assault, then the Rape Shield Law does not
          apply and the evidence is evaluated under the general evidentiary rules." Commonwealth v. Fink,
          891 A.2d 1235, 1242 (Pa. Super. 2002). See also Commonwealth v. Schley, 136 A.3d 511, 515-
          18 (Pa. Super. 2016); Commonwealth v. Woeber, 174 A.3d 1096, 1103 (Pa. Super. 2017).


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          relevance and materiality, but found none with the agreement of trial counsel,
          outside the fact that the disclosure was made contemporaneously with the Victim's
         disclosure of Appellant's conduct. The Commonwealth at sidebar argued that the
         CRC interviewers ask open-ended questions, including "did anyone touch you, did
         anyone else touch you[,]" which prompted disclosures involving three of the
         Victim's family members.87
                   We are cognizant that credibility of the Victim is of course at issue, but note
         that neither Appellant's trial counsel nor this Court could surmise any connection
         between abuse by J.G. and Appellant's conduct to the extent the allegation would
         make it less likely or untrue that Appellant sexually abused the Victim. We note
         that the statement was not offered, nor would it show, some motive of the Victim
         to fabricate an allegation and falsely accuse the Appellant, nor would the statement
         have implicated another assailant in Appellant's place. See, e.g., Commonwealth v.
         Woeber, 174 A.3d 1096 (Pa. Super. 2017); Commonwealth v. Wall, 606 A.2d 449
         (Pa. Super. 1992). Further, with respect to confusion of the issues, the allegation
         would have presented an entirely separate and new event for the jury to determine
         its veracity. Had trial counsel cross-examined the Victim about the allegation
         against J.G. and then later presented J.G. to testify that he never assaulted the
         Victim, the jury would have been tasked with deciding two separate cases of
         sexual abuse.
                   We tum now to the Victim's statements during the investigation about Shelly,
         her step-mother. At sidebar, Appellant's trial counsel explained that during the
         Victim's second CRC interview, the Victim "alleged pretty harsh physical abuse at
         the hands of Shelly," including that "Shelly abused her, hit her, broke her phone,
         threw a shoe at her," and "[h]it her so hard that she had a black eye, saw blue


         87
               See N.T. Day 3 at 4.


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          flashes, things like that."88 Trial counsel explained that this line of questioning
          "goes directly to her credibility," because "[t]he other children in the house that
          were living there are prepared to say this never happened.t''" Trial counsel sought
          to cross-examine the Victim about those statements and then produce Shelly and
          their children to testify that no abuse ever occurred."
               Appellant's counsel did not aver that any physical abuse by Shelly had any
          relation to any sexual abuse by Appellant, other than the fact that the Victim
          revealed both at the same interview, and agreed that there was no suggestion of a
          causal relationship between Shelly's abuse and Appellant's abuse or the Victim's
          decision to disclose.91 This Court sustained the Commonwealth's objection on the
          basis that the statement related to a separate incident and was not relevant to
          Appellant or Appellant's conduct.92 We advised counsel that we could revisit the
          point if counsel could lay a foundation through questioning that Shelly's abuse was
          relevant to Appellant particularly.93 When questioning resumed, defense counsel
          attempted to connect Shelly's abuse to Appellant by asking the Victim if anyone
          other than Appellant caused her to decide against disclosing at her first interview,
          but the Victim said "no" and counsel abandoned the point.94
               Any testimony concerning the Victim's alleged statement at the CRC interview
          that Shelly abused her was not relevant to whether Appellant sexually abused the
          Victim. We understand that trial counsel sought to attack the Victim's credibility,
          and the Victim's credibility is relevant, but an allegation that Shelly was physically
          abusive was, as trial counsel agreed, not related or in any way connected to

          88
             N.T. Day 2 at 125.
          89 Id.
          90
             Id. at 125, 127.
          91
             Id. at 126-128.
          92
             Id. at 127-28.
          93
             Id. at 128-29.
          94
             Id. at 129.

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          Appellant or his conduct and therefore collateral. We determined that any evidence
          regarding alleged physical abuse by Shelly would confuse the jury and that same
          would not exculpate Appellant of his charged conduct.
                                               CONCLUSION
                 Based on the foregoing reasons, this Court finds that the weight of the
          evidence supported the jury's guilty verdicts, and that this Court did not err in
          excluding testimony surrounding the Victim's ailegations against others during the
          investigation. We respectfully request that the Pennsylvania Superior Court affirm.


                                                                  BY THE COURT,

                                                                       WeetL
                                                                  Christylee L. Peck,      J.



          Allen Welch, Esq.
          3300 Trindle Road
          Camp Hill, PA 17011
          Counsel for Appellant

          Cumberland County District Attorney's Office




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