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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                        :
                                        :
                                        :
 JESSIE JAMES HOLLEY                    :
                                        :
                   Appellant            :   No. 1353 WDA 2017

          Appeal from the Judgment of Sentence August 8, 2017
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0014168-2014


BEFORE:   OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                       FILED OCTOBER 15, 2018

     Appellant, Jessie James Holley, appeals from the judgment of sentence

entered on August 8, 2017, as made final by the denial of his post-sentence

motion on August 24, 2017. We affirm.

     On September 27, 2014, Appellant’s girlfriend was scheduled to babysit

11-year-old A.M. (“Victim”). She, however, sent Appellant to watch Victim.

While Victim was playing video games, Appellant touched her legs, breasts,

and vagina while kissing her neck. Victim retreated to a bedroom. Appellant

convinced her to open the door and then entered the bedroom. He touched

her vagina and then penetrated her vagina with his fingers. Appellant took

Victim’s clothes off, performed oral sex on her, and raped her.   The next

morning, Victim reported the assault.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        On November 18, 2014, the Commonwealth charged Appellant via

criminal information with 11 offenses.           Appellant proceeded to trial in

September 2015. The jury was unable to reach a unanimous verdict and the

trial court declared a mistrial.        Appellant proceeded to a second trial in

December 2016. The trial court declared a mistrial after evidence was not

provided to both parties. A third trial was held in March 2017. The trial court

declared a mistrial after evidence was not disclosed to either party.

        Finally, a fourth trial was held in May 2017. Appellant was convicted of

two counts of indecent assault of a child under 13 years old,1 rape of a child,2

involuntary deviate sexual intercourse with a child,3 aggravated indecent

assault of a child,4 unlawful contact with a minor,5 aggravated indecent assault

of a child under 13 years old,6 corruption of minors,7 and indecent exposure.8

On August 8, 2017, the trial court sentenced Appellant to an aggregate term

____________________________________________


1   18 Pa.C.S. § 3126(a)(7).

2   18 Pa.C.S.A. § 3121(c).

3   18 Pa.C.S.A. § 3123(b).

4   18 Pa.C.S.A. § 3125(b).

5   18 Pa.C.S. § 6318(a)(1).

6   18 Pa.C.S. § 3125(a)(7).

7   18 Pa.C.S. § 6301(a)(1)(ii).

8   18 Pa.C.S. § 3127(a).



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of 35 to 70 years’ imprisonment. On August 24, 2017, the trial court denied

Appellant’s timely post-sentence motion. This timely appeal followed.9

       Appellant presents two issues for our review:

       1. [Was the verdict against the weight of the evidence?

       2. Did the trial court abuse its discretion by sentencing Appellant
          to an aggregate term of 35 to 70 years’ imprisonment?]

Appellant’s Brief at 9.

       In his first issue, Appellant argues that the verdict was against the

weight of the evidence. A defendant is entitled to a new trial based on the

weight of the evidence “only when the verdict is so contrary to the evidence

that it shocks one’s sense of justice[.]” Commonwealth v. Smith, 181 A.3d

1168, 1187 (Pa. Super. 2018) (citation omitted). “[W]hen an appellate court

reviews a weight claim, the court is reviewing the exercise of discretion by the

trial court, not the underlying question of whether the verdict was against the

weight of the evidence.” Commonwealth v. Jacoby, 170 A.3d 1065, 1080

(Pa. 2017) (citation omitted).

       Appellant contends that the verdict was against the weight of the

evidence for several reasons.         First, he argues that Victim’s testimony he

penetrated her vagina with his fingers and penis was inconsistent with her

prior testimony and statements to investigators.           It is well-settled that



____________________________________________


9Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.

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“questions regarding [a witness’] motives or prior inconsistent statements

[are] classic issues of credibility to be decided by the jury.” Commonwealth

v. Sanchez, 36 A.3d 24, 40 (Pa. 2011). This is particularly true where the

defendant had “ample opportunity to impeach [a witness’] credibility during

cross-examination and, indeed, was able to develop the [witness’] motives

and highlight inconsistencies [with prior testimony].” Id.

       Appellant’s   counsel   cross-examined    Victim   regarding   her   prior

inconsistent testimony.    Moreover, Appellant’s counsel cross-examined the

investigators regarding Victim’s inconsistent statements.      Although Victim

conceded that her trial testimony was inconsistent with some of her prior

testimony and prior statements to investigators, there was also evidence that

showed Victim’s trial testimony was consistent with past statements.

Specifically, an investigator testified that Victim told him that Appellant

penetrated her vagina with his fingers and penis. See N.T., 5/3/17, at 145-

146.   Hence, Victim’s testimony was not inconsistent with all of her prior

statements. Instead, Victim clarified her prior inconsistent statements at trial.

Appellant drew the jury’s attention to these inconsistent statements; however,

the jury believed Victim’s trial testimony. Cf. Commonwealth v. Brown,

186 A.3d 985, 991 (Pa. Super. 2018) (citation omitted) (The jury, “while

passing upon the credibility of witnesses and the weight of the evidence

produced, is free to believe all, part or none of the evidence.”). Accordingly,

the trial court reasonably exercised its discretion by finding the verdict was


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not against the weight of the evidence because of Victim’s prior inconsistent

statements regarding penetration.

      Appellant also argues that the verdict was against the weight of the

evidence because Victim testified that she looked at a clock in the bedroom to

note the time the assault occurred. A photograph of the bedroom, however,

did not show a clock in the bedroom. This argument fails for two reasons.

First, the location of the clock that Victim used to note the time of the assault

was tangential to the key questions the jury decided. Second, the owner of

the house testified that the bedroom contained a clock and was unsure why

the photograph did not show the clock. The jury could have inferred that the

clock was moved after the assault and prior to taking the photograph. Hence,

the trial court reasonably exercised its discretion by finding the verdict was

not against the weight of the evidence because of Victim’s testimony regarding

the clock.

      Next, Appellant argues that the scientific evidence was inconclusive.

Appellant’s DNA was found in two locations – on the washcloth in the bathroom

and on the sheet that covered the bed upon which the Victim was raped.

Victim testified that she used that washcloth to wipe away Appellant’s semen

after the rape.   She also testified that Appellant used the bathroom after

raping her. According to Appellant, his DNA could have been transferred to

the washcloth after using the restroom and the semen present on the

washcloth could have come from a different source. This is pure conjecture.


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The most reasonable inference from this evidence was that Appellant’s DNA

was on the washcloth because Victim used it to wipe away Appellant’s semen.

Hence, the trial court reasonably exercised its discretion by finding the verdict

was not against the weight of the evidence because of inconclusive scientific

evidence.

      Victim testified that she reported the assault while upstairs. Her aunt

testified that she reported the assault downstairs in the kitchen. According to

Appellant, this contradictory evidence shows that the verdict was against the

weight of the evidence.     This argument is without merit because Victim’s

testimony was generally consistent with her aunt’s testimony. Both testified

that Victim reported the rape via a note she passed to the aunt. The exact

location of where the note was given to Victim’s aunt was tangential to the

central issues the jury was tasked with deciding.        Hence, the trial court

reasonably exercised its discretion by finding the verdict was not against the

weight of the evidence because of the inconsistent testimony regarding the

location the note was handed to Victim’s aunt.

      Victim testified that Appellant hit his head on the nightstand when she

pushed him off of her. Appellant argues that this testimony shows that the

verdict was against the weight of the evidence because there was no bruise

present on his head. It is common sense, however, that a bruise does not

form every time an individual bangs his or her head against a hard surface.

Hence, the trial court reasonably exercised its discretion by finding the verdict


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was not against the weight of the evidence because of the testimony that

Appellant hit his head after being pushed off of Victim.

      Finally, Appellant argues that the verdict was against the weight of the

evidence because of Victim’s statements regarding semen on her stomach.

This argument is based on a misreading of Victim’s trial testimony. At trial,

Victim testified that Appellant did not ejaculate on her stomach. N.T., 5/3/17,

at 101. She did not testify that her stomach was dry. Victim told investigators

that Appellant rubbed his penis on her stomach. See N.T., 5/4/17, at 197-

198. In other words, Victim’s stomach was wet even though Appellant did not

ejaculate on her stomach. Therefore, her trial testimony was not inconsistent

with her statements to investigators.       Hence, the trial court reasonably

exercised its discretion by finding the verdict was not against the weight of

the evidence because of the testimony regarding Victim’s wet stomach.

      We have reviewed the entire trial transcript. Taken as a whole, we are

unable to conclude that the trial court abused its discretion by finding that the

guilty verdict did not shock its sense of justice. Accordingly, Appellant is not

entitled to relief on his weight of the evidence claim.

      In his second issue, Appellant argues that the trial court abused its

discretion by sentencing him to an aggregate term of 35 to 70 years’

imprisonment.    This argument challenges the discretionary aspects of his

sentence. Pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).


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Instead, Appellant must petition this Court for permission to appeal the

discretionary aspects of his sentence. Id.

      In order to reach the merits of a discretionary aspects claim,

      we must engage in a four part analysis to determine: (1) whether
      the appeal is timely; (2) whether the appellant preserved his or
      her issue; (3) whether the appellant’s brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence; and (4) whether
      the concise statement raises a substantial question that the
      sentence is appropriate under the Sentencing Code.

Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018) (cleaned

up). Appellant filed a timely notice of appeal, preserved the issue in his post-

sentence motion, and included a Pennsylvania Rule of Appellate Procedure

2119(f) statement in his appellate brief. Thus, we turn to whether Appellant

raises a substantial question related to the discretionary aspects of his

sentence.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Radecki, 180 A.3d

441, 468 (Pa. Super. 2018) (citation omitted).       “A substantial question is

raised when an appellant advances a colorable argument that the trial court’s

actions were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Patterson, 180 A.3d 1217, 1232 (Pa. Super.

2018) (cleaned up).




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      In his Rule 2119(f) statement, Appellant argues that the trial court failed

to offer specific reasons for its harsh sentence. This argument presents a

substantial question. See Commonwealth v. Dunphy, 20 A.3d 1215, 1222

(Pa. Super. 2011) (citation omitted). Accordingly, we proceed to analyze the

merits of Appellant’s discretionary aspects challenge.

      “Sentencing is a matter vested in the sound discretion of the [trial

court], and a sentence will not be disturbed on appeal absent a manifest abuse

of discretion.” Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super.

2017) (en banc) (citation omitted).       Pursuant to statute, “the sentence

imposed should call for confinement that is consistent with the protection of

the public, the gravity of the offense as it relates to the impact on the life of

the victim and on the community, and the rehabilitative needs of the

defendant.” 42 Pa.C.S.A. § 9721(b).         “The [trial] court is not required to

parrot the words of the Sentencing Code, stating every factor that must be

considered under Section 9721(b), however, the record as a whole must

reflect due consideration by the court of the statutory considerations at the

time of sentencing.” Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa.

Super. 2017), appeal denied, 184 A.3d 944 (Pa. 2018) (cleaned up).

Moreover, when a trial court reviews a presentence investigation report prior

to imposing a sentence, “we can assume the trial court was aware of the

relevant information regarding the defendant’s character and weighed those




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considerations along with mitigating statutory factors.” Radecki, 180 A.3d at

471 (cleaned up).

      When sentencing a defendant, the trial court is required to consider the

sentencing guidelines.    Commonwealth v. Melvin, 172 A.3d 14, 21 (Pa.

Super. 2017) (citation omitted). Because the trial court sentenced Appellant

within the sentencing guidelines, he is only entitled to relief on his

discretionary aspects claim if “the application of the guidelines would be

clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).

      Appellant contends that the trial court did not meaningfully consider the

section 9721(b) factors and did not offer specific reasons for its harsh

sentence.   We disagree.      The trial court did not parrot the words of the

Sentencing Code; however, its explanation of the sentence indicates it

considered all of the section 9721(b) factors and that it offered specific

reasons for the harsh sentence.         Specifically, the trial court referenced

Appellant’s threat to the community while he was being supervised by the

judicial system, i.e., the need to protect the public.      N.T., 8/8/17, at 6-7.

Second, the trial court noted the serious nature of the offenses, i.e., the

gravity of the offense as it relates to the victim and the community. See id.

Finally, the trial court found that Appellant was incapable of rehabilitation, i.e.,

the rehabilitative needs of the defendant. See id.

      Although the trial court did not use the Sentencing Code’s terminology,

the record reflects that it meaningfully considered all of the relevant section


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9721(b) factors and offered specific reasons for its sentence. Hence, this case

is distinguishable from Commonwealth v. Coulverson, 34 A.3d 135 (Pa.

Super. 2011), the case relied on by Appellant. In that case, the trial court did

not give meaningful consideration to the section 9721(b) factors and failed to

offer specific reasons for its harsh sentence. Moreover, in Coulverson the

trial court sentenced the defendant to a maximum period of incarceration two

and one-half times that required by statute given the minimum sentence. Cf.

42 Pa.C.S.A. § 9756(b)(1) (minimum sentence must be no more than one-

half the maximum sentence). In this case, the trial court sentenced Appellant

to a maximum term of imprisonment that was the least required by statute

given the minimum sentence of 35 years’ imprisonment.

      A sentence of 35 to 70 years’ imprisonment “fits” Appellant’s

circumstances. See Appellant’s Brief at 43. He was in a position of trust –

babysitting for Victim.   He abused that trust by sexually assaulting Victim

while she played video games.      When she retreated to the bedroom, he

followed her and convinced her to open the door. He then viciously raped an

11-year-old child.

      Appellant’s history indicates that he is not a good candidate for

rehabilitation. He continued his criminal activity after being released from

both state and county incarceration and had trouble complying with the terms

of his supervision. Considering all of these factors, we are unable to hold that

a sentence of 35 to 70 years’ imprisonment was “clearly unreasonable.” 42


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Pa.C.S.A. § 9781(c)(2).       Hence, Appellant is not entitled to relief on his

discretionary aspects challenge.

     Judgment of sentence affirmed.

     McLaughlin, J., joins.

     Strassburger, J., files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2018




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