J-S01008-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JERMAINE T. COX                            :
                                               :
                       Appellant               :   No. 711 EDA 2018

            Appeal from the Judgment of Sentence January 26, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-001172-2016,
                            CP-51-CR-001173-2016


BEFORE:      BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                                FILED MARCH 13, 2020

       Jermaine T. Cox appeals from the aggregate judgment of sentence of

twenty-five to fifty years of imprisonment imposed at the above docket

numbers1 following his convictions for unlawful contact with a minor, indecent

assault, indecent exposure, corruption of a minor, and endangering the

welfare of children, relating to his sexual abuse of two of his nieces. We affirm.

       The trial court offered the following summary of the factual background

of the cases:

____________________________________________


1  Appellant filed a single notice of appeal listing both lower-court docket
numbers. In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our
Supreme Court held that separate notices of appeal must be filed at each
docket for orders arising on more than one docket. However, this appeal was
filed on March 8, 2018, and Walker’s June 1, 2018 ruling was expressly only
prospectively applicable. Therefore, we need not quash this appeal.


* Retired Senior Judge assigned to the Superior Court.
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           CP-51-CR-0001172-2016

            In 2011, when A.B. was seven years old, she spent the
     summer at her grandmother’s house located in North Philadelphia.
     Other family members, including siblings, cousins, aunts, and
     uncles, also stayed at the house. At the time, [Appellant] was
     married to A.B.’s Aunt Zaynab. On one occasion, A.B. was in the
     bedroom shared by [Appellant] and Aunt Zaynab (“Aunt Zaynab’s
     room”).     While A.B. sat in a chair and watched television,
     [Appellant] touched her vagina, chest, and buttocks, both over
     and underneath her clothing. While doing so, he moved his hand
     in a circular motion. Another time, [Appellant] was playing with
     A.B. in Aunt Zaynab’s room when he picked her up and tossed her
     on the bed. Over her clothing, [Appellant] touched A.B.’s vagina,
     again moving his hand in a circular motion. A separate incident
     took place while A.B. was watching television in Aunt Zaynab’s
     room. [Appellant] entered the room wearing work clothes and
     pulled down his pants enough for A.B. to see his penis. On another
     occasion, A.B. was seated on the bed in Aunt Zaynab’s room when
     [Appellant] placed his hand inside of her pants and moved his
     hand in a circular motion in the vaginal area. During these
     incidents, [Appellant] would tell A.B. not to tell anyone.

           At some point, A.B. told her cousin H.B. (the victim in the
     second case) about the abuse. On October 3, 2015, A.B. disclosed
     the abuse to her stepfather. The following morning, she told her
     mother.

           CP-51-CR-0001173-2016

            H.B. also lived at her grandmother’s house in 2011 with
     Aunt Zaynab, [Appellant], her siblings, and several uncles. A.B.
     and her brothers would also spend the night sometimes. When
     she was ten or eleven years old, H.B. was playing a computer
     game with [Appellant]. Aunt Zaynab was asleep on the bed.
     While H.B. was seated on his lap, [Appellant] began moving his
     thumb back and forth over her clothing in the vaginal area. He
     said to her, “You know I would never hurt you.” At a different
     time, [Appellant] told H.B. “that her aunt’s baby’s father would
     put his sperm on H.B.’s lips and she wouldn’t know what that is
     because she doesn’t know what that tastes like.” Either that night
     or the following, H.B. awoke to [Appellant] trying to put his penis
     back inside of his pants. She also felt “something wet” on her lips
     that tasted salty. When [Appellant] left the room, H.B. got up and

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     washed her face. A very similar incident occurred one night while
     H.B. slept in her grandmother’s room. This time, H.B. saw
     [Appellant]’s hand moving back and forth over his penis and again
     felt the wet substance on her lips. H.B. told her grandmother that
     she “felt something on her lips” and that [Appellant] “was trying
     to put his thing back in his pants.” H.B.’s grandmother directed
     her to tell Aunt Zaynab, which she did. However, Aunt Zaynab
     believed [Appellant] and said “he was playing and it was water.”

            Another incident occurred when H.B.’s grandmother asked
     her to retrieve medication from Aunt Zaynab’s room. When H.B.
     knocked on the bedroom door, [Appellant] opened it wearing no
     clothing. H.B. told her grandmother about the experience. A few
     days later, [Appellant] asked H.B. “why she snitched.” At a
     different time, H.B. was asleep in her room with A.B.’s older
     brother. Between 2:00 and 3:00 a.m., H.B. awoke to [Appellant]
     shining his phone flashlight over her. When she asked what he
     was doing, [Appellant] asked both H.B. and A.B.’s older brother if
     they wanted to play Wii.

           H.B. asked A.B. whether she had similar experiences while
     staying at their grandmother’s house. When A.B. stated that she
     had, H.B. told her to tell her mother. A.B. refused to do so
     because she was afraid. H.B. also shared the specific details of
     the abuse with her cousin K.J.

            After the jury found [Appellant] guilty of the above offenses,
     this Court deferred sentencing for completion of a presentence
     investigation.     On January 26, 2018, this court sentenced
     [Appellant] to an aggregate term of twenty-five to fifty years of
     incarceration. On February 5, 2018, [Appellant] filed a timely
     post-sentence motion seeking a new trial based on the weight of
     the evidence and reconsideration of the sentence imposed. On
     February 14, 2018, in response to [Appellant]’s post-sentence
     motion for reconsideration of sentence, this court conceded that
     it illegally sentenced [Appellant] by imposing the mandatory
     minimum of twenty-five to fifty years of incarceration on the two
     counts of corruption of minors. The sentence on the two counts
     of corruption of minors was vacated, and a new sentence of two
     to four years of incarceration to run concurrent to the other
     charges was imposed. All other claims raised in [Appellant]’s
     post-sentence motion were denied.

Trial Court Opinion, 5/17/19, at 1-4 (cleaned up).

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     Appellant filed a timely notice of appeal, and both he and the trial court

complied with the dictates of Pa.R.A.P. 1925. Appellant presents one question

for our review: “Were not the verdicts so contrary to the weight of the

evidence as to shock one's sense of justice and should not a new trial be

awarded?” Appellant’s brief at 3.

     The following principles apply to our review of Appellant’s claim.

     Appellate review of a weight claim is a review of the [trial court’s]
     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 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.

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

     The trial court addressed Appellant’s weight challenge as follows:

           A.B. and H.B. testified to a number of specific incidents in
     which Defendant performed sexual acts upon them. None of the
     offenses of which Defendant was convicted require[s] the
     recovery of “physical evidence.” Both complainants provided
     detailed testimony about how Defendant touched them, where he
     touched
     them, and the location of the incidents of abuse. H.B. testified to
     sensory details, such as describing the substance on her lips as
     tasting salty. Both A.B. and H.B. were also able to recall specific
     comments made by Defendant to them.

           A.B. testified that she did not disclose the abuse to her
     mother earlier in time because her mother was “crazy when it
     came to her kids and A.B. did not want her mom to do anything
     bad.”


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            H.B. testified that she disclosed the abuse to both her
      grandmother and Aunt Zaynab in 2011. She did not recall with
      certainty whether she had told her mother, but did not believe she
      had. She explained that her grandmother and Aunt Zaynab knew
      what was going on and did not do anything about it, therefore she
      did not expect her mother could help while living in Michigan. The
      jury weighed the evidence presented, evaluated the testimony of
      the witnesses, and found the complainants credible. The verdict
      was not against the weight of the evidence.

Trial Court Opinion, 5/17/19, at 5-6 (cleaned up).

      Appellant acknowledges that the weight of the evidence is for the jury

to decide, and that it is free to determine witnesses’ credibility and to accept

or reject evidence as it sees fit. Appellant’s brief at 11. However, he argues

that the inconsistencies in the testimony of the victims, and their answering

“innumerable questions with ‘I don’t remember,’” was such that it “seriously

called into question [their] credibility, and any verdict based upon such

testimony was speculative and conjectural.”          Id. at 11-12.     Appellant

maintains that the implausibility of the acts occurring undetected in a house

full of people, and the many inconsistencies in the testimony of the victims,

renders it “abundantly clear that a reasonable doubt was raised as to whether

the appellant committed the acts alleged.” Id. at 11. Further, Appellant avers

that the trial court omitted “crucial facts” in concluding that the verdict was

not against the weight of the evidence. Id. at 12

      Our review of the certified record reveals no indication that the trial

court’s assessment was the product of an error of law, was manifestly

unreasonable, or was “a result of partiality, prejudice, bias or ill-will.” Clay,


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supra at 1055 (internal quotation marks omitted). As the Commonwealth

aptly discusses in its brief, the victims remained consistent on “key facts

pertaining to [Appellant’s] abuse,” and the jury, presented with the

inconsistent details complained of by Appellant, was free to determine which

version, if any, was credible. Commonwealth’s brief at 13, 16-22. Indeed,

our Supreme Court has confirmed that a conviction may properly rest upon a

previously-relayed version of events even when the witness wholly recants in

testifying at trial, where the jury has the opportunity to assess the credibility

of the witness’s explanations. See Commonwealth v. Brown, 52 A.3d 1139,

1171 (Pa. 2012) (holding verdict based upon out-of-court statements

repudiated by the witnesses at trial did not render the verdict one of pure

conjecture).

        Accordingly, Appellant is entitled to no relief from this Court on his

weight-of-the-evidence claim. See, e.g., In re A.G.C., 142 A.3d 102, 109

(Pa.Super. 2016) (holding juvenile adjudication was not against the weight of

the evidence, despite inconsistencies in the victim’s reporting of the abuse,

where her statements were “consistent on the key facts”); Commonwealth

v. Jenkins, 578 A.2d 960, 963 (Pa.Super. 1990) (denying relief on weight

claim    because   the   verdict   was   based    upon   the   jury’s   credibility

determinations, not “upon surmise or conjecture,” although “there were

contradictions and inconsistencies present in the [abuse victims’] testimony,

and . . . both admitted to lying on occasion”).


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/20




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