Opinion
J-A23025-16 No. 1917 WDA 2015
01-23-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JAMES TIMOTHY MONTGOMERY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered August 25, 2015
In the Court of Common Pleas of Washington County
Criminal Division at No: CP-63-CR-0000835-2014 BEFORE: LAZARUS, STABILE, and STRASSBURGER, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant James Timothy Montgomery appeals from the August 25, 2015 judgment of sentence entered in the Court of Common Pleas of Washington County ("trial court"), following his jury conviction for aggravated indecent assault of a child, two counts of involuntary deviate sexual intercourse with a child, indecent assault of a person less than 13 years of age, corruption of minors, and indecent exposure. Upon review, we affirm.
Although Appellant purports to appeal from the November 17, 2015 order denying his post-trial motion, the appeal properly lies from the judgment of sentence. See Commonwealth v. Shamberger , 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc), appeal denied , 800 A.2d 932 (Pa. 2002) (stating that in criminal action, an appeal properly lies from the judgment of sentence made final by denial of post-trial motions).
18 Pa.C.S.A. §§ 3125(b), 3123(b), 3126(a)(7), 6301(a)(1)(ii), and 3127(a), respectively.
The facts and procedural history underlying this case are undisputed. Briefly, Appellant was charged with the above-referenced crimes following allegations of sexual abuse by his biological daughter, M.A. Following trial by jury, Appellant was found guilty of all crimes charged. On August 25, 2015, the trial court sentenced Appellant to an aggregate sentence of 120 to 240 months' imprisonment and classified him as a sexually violent predator ("SVP"). On September 4, 2015, Appellant filed a post-sentence motion challenging only the sufficiency of the evidence and his designation as an SVP. On November 17, 2015, the trial court denied Appellant's post-sentence motion. Appellant timely appealed to this Court. At the trial court's direction, Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, raising three assertions of error:
Unless otherwise specified, these facts come from the trial court's January 16, 2016 Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 1/26/16, at 1-10.
I. Appellant was wrongly convicted because there was not sufficient evidence to prove his or her guilt as [sic] the trial.Appellant's Rule 1925(b) Statement, 1/4/16. On January 16, 2016, the trial court issued a Pa.R.A.P. 1925(a) opinion addressing Appellant's assertions of error and concluding that he was not entitled to relief.
II. As a matter of law, the evidence was insufficient to prove that the SOAB/SORNA finding was accurate based upon the standard of clear and convincing evidence.
III. [Appellant] claims his [t]rial [c]ounsel was ineffective at trial.
On appeal, Appellant raises only two issues for our review.
"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact 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.Commonwealth v. Antidormi , 84 A.3d 736, 756 (Pa. Super. 2014), appeal denied , 95 A.3d 275 (Pa. 2014).
Although contained in his Rule 1925(b) statement, Appellant's ineffectiveness claim has been abandoned on appeal, likely because, with limited exceptions not applicable here, it cannot be raised on direct appeal. See Commonwealth v. Holmes , 70 A.3d 562, 576 (Pa. 2013).
I. Whether based upon the standard of beyond a reasonable doubt, the finding by the jury of guilty of all charges cannot stand because the inconsistencies in testimony
given by the victim with regards to the crimes that the victim indicated took place create reasonable doubt.Appellant's Brief at 7.
II. Whether after a conviction for the crimes of aggravated assault of a child, involuntary deviant sexual intercourse with a child, indecent assault of a person under the age of 13, corruption of a minor, and indecent exposure, the sexual offenders assessment board's (SOAB) evaluation determined whether or not, by clear and convincing evidence, [Appellant] is a sexually violent predator.
To the extent Appellant's first claim subsumes or implicates a weight of the evidence challenge, such challenge is waived because he failed to raise it in his Rule 1925(b) Statement. See Commonwealth v. Castillo , 888 A.2d 775, 780 (Pa. 2005). Moreover, "[a] weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing." Commonwealth v. Thompson , 93 A.3d 478, 490 (Pa. Super. 2014) (internal alteration and citations omitted); see Pa.R.Crim.P. 607(A). In this case, Appellant appears to raise a weight of the evidence challenge for the first time in his brief on appeal.
After careful review of the record, and the relevant case law, we conclude that the trial court accurately and thoroughly addressed the merits of Appellant's issues on appeal. See Trial Court Opinion, 1/26/16, at 10-22. Accordingly, we affirm the trial court's August 25, 2015 judgment of sentence. We further direct that a copy of the trial court's January 26, 2016 opinion be attached to any future filings in this case.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/23/2017
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