Opinion
J-S17036-17 No. 2559 EDA 2015
04-27-2017
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM M. LOVE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 29, 2015 in the Court of Common Pleas of Monroe County, Criminal Division, No(s): CP-45-CR-0002788-2013 BEFORE: OLSON, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
William M. Love ("Love") appeals from the judgment of sentence entered following his conviction of sexual assault, aggravated indecent assault, indecent assault, corruption of minors, furnishing alcohol to minors and unlawful contact with a minor. We affirm.
18 Pa.C.S.A. §§ 3124.1, 3125, 3126, 6301, 6310.1, 6318.
In its Opinion, the trial court set forth the procedural history underlying the instant appeal, which we adopt as though fully restated herein. See Trial Court Opinion, 10/29/15, at 1-3.
On October 26, 2013, Love's girlfriend, 19-year-old Kayshawn Clark ("Clark"), contacted the victim, 17-year-old B.C. ("the victim" or "B.C."), seeking assistance with planning Clark's baby shower. The next day, Clark texted B.C. to remind her of their plans. Thereafter, Clark and Love picked up and drove B.C. and her baby to Love's house. Upon arriving at Love's house, Love offered a drink to B.C., which he identified as iced tea. After drinking the iced tea, B.C. began losing consciousness. As she went in and out of consciousness, B.C. became aware that she was being sexually assaulted and raped by Love.
Following a jury trial, Love was convicted of the above-described charges. Love filed a post-sentence Motion, which, after a hearing, the trial court denied. In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court stated the following: "Despite raising both weight and sufficiency claims, [Love] did not request transcription of the trial. In his appeal documents, he asked only for the transcript of the July 21, 2015 hearing on his post-sentence [M]otions...." Trial Court Opinion, 10/29/15, at 3. Thereafter, Love filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Separately, Clark pled guilty to criminal use of a communication facility.
On appeal, Love raises ten claims of error for our review:
I. Did the trial court abuse its discretion by not setting aside the verdict for the charge of unlawful contact with a minor where there was no contact as defined by statute?
II. Did the trial court abuse its discretion by not setting aside the verdict where the criminal statute of unlawful contact with a minor is unconstitutionally broad?
III. Did the trial court abuse its discretion by not setting aside the verdict where there was insufficient evidence to convict [Love] of unlawful contact with a minor?
IV. Did the trial court abuse its discretion by not setting aside the verdict where there was insufficient evidence to convict [Love] of sexual assault?Brief for Appellant at 4-5 (some capitalization omitted, issues renumbered for ease of disposition).
V. Did the trial court abuse its discretion by not setting aside the verdict where there was insufficient evidence to convict [Love] of aggravated indecent assault?
VI. Did the trial court abuse its discretion by not setting aside the verdict where there was insufficient evidence to convict [Love] of indecent assault?
VII. Did the trial court abuse its discretion by not setting aside the verdict where it was against the weight of the evidence to convict [Love] of unlawful contact with a minor?
VIII. Did the trial court abuse its discretion by not setting aside the [verdict] where it was against the weight of the evidence to convict [Love] of sexual assault?
IX. Did the trial court abuse its discretion by not setting aside the verdict where it was against the weight of the evidence to convict [Love] of aggravated indecent assault?
X. Did the trial court abuse its discretion by not setting aside the verdict where it was against the weight of the evidence to convict [Love] of indecent assault?
In his first and second claims, Love challenges the sufficiency of the evidence underlying his conviction of unlawful contact with a minor, and the constitutionality of 18 Pa.C.S.A. § 6318. Id. at 10. Love first asserts that
there is no evidence [that Love] contact[ed] the [victim] over the internet. There is no evidence that [Love] contacted the victim through any other means. The only contact [Love] had was when the victim was at his house[;] however, there still is no evidence that during this direct contact, that [Love] made any comments, remarks, suggestions, or questions to the victim
of a sexual nature. There is no evidence that [Love] had contact for the purpose of engaging in the prohibited activity.Brief for Appellant at 11-12 (emphasis omitted). Simply put, Love claims that he did not have "contact" with B.C., as defined by 18 Pa.C.S.A. § 6318. Id.
In his second claim, Love challenges the definition of "contact," set forth at 18 Pa.C.S.A. § 6318, as overbroad and, therefore, unconstitutional. Id. at 14. Love posits that section 6318 bars contact for the purpose of engaging in the prohibited activity. Id . at 15. Love contends that "[t]he only contact [Love] had was when the victim was at his house[;] however, there still is no evidence that during this direct contact, [Love] made any comments, remarks suggestions, or questions to the victim of a sexual nature." Id. Love again argues that there is no evidence that he "had contact for the purpose of engaging in the prohibited activity." Id. at 16 (emphasis omitted). Love cites Commonwealth v. Morgan , 913 A.2d 906, 911 (Pa. Super. 2006), in support. Brief for Appellant at 16-17.
In addressing these claims, we are cognizant of our scope and standard of review:
There is sufficient evidence to sustain a conviction when the evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to enable the fact-finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt. The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Further, we note that the entire trial record is evaluated and all evidence received against the
defendant is considered, being cognizant that the trier of fact is free to believe all, part, or none of the evidence.Commonwealth v. Martin , 101 A.3d 706, 718 (Pa. 2014) (internal citation and quotation marks omitted).
In its Opinion, the trial court addressed Love's first two claims, and concluded that they lack merit. See Trial Court Opinion, 10/29/15, at 3-7. We agree with the legal analysis and ultimate conclusion reached by the trial court, and affirm on this basis as to Love's first and second claims. See id.
In his remaining claims, Love challenges the sufficiency of the evidence underlying each of his convictions, and claims that each verdict is against the weight of the evidence. See Brief for Appellant at 18-33.
Regarding Love's challenges to each verdict as against the weight of the evidence, we are cognizant that
[t]he weight of the evidence is a matter exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. A new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. On appeal, our purview is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock one's conscience. Thus, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence. An appellate court may not reverse a verdict unless it is so contrary to the evidence as to shock one's sense of justice.Commonwealth v. Rosser , 135 A.3d 1077, 1090 (Pa. Super. 2016) (en banc) (citations and internal quotation marks omitted).
Our review discloses that the record does not include the notes of testimony from the entire trial. Rather, this Court received the transcripts of the victim's trial testimony, the sentencing hearing, and the hearing on Love's post-sentence Motion. No other trial testimony was transcribed. See Trial Court Opinion, 10/29/15, at 3 (stating that Love did not request transcription of the trial, and setting forth the notes of testimony available in the record).
"This Court cannot meaningfully review claims raised on appeal unless we are provided with a full and complete certified record." Commonwealth v. Preston , 904 A.2d 1, 7 (Pa. Super. 2006) (citations omitted). "As an appellate court, we are 'limited to considering only those facts that have been duly certified in the record on appeal.'" Commonwealth v. Spotz , 18 A.3d 244, 323 (Pa. 2011) (quoting Commonwealth v. Williams , 715 A.2d 1101, 1103 (Pa. 1998)). "In the absence of an adequate certified record, there is no support for an appellant's arguments and, thus, there is no basis on which relief could be granted." Preston , 904 A.2d at 7. "Our law is unequivocal that the responsibility rests upon the appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty." Id.; see also Pa.R.A.P. 1911(d) (stating that "[i]f the appellant fails to take the action required by these rules and the Pennsylvania Rules of Judicial Administration for the preparation of the transcript, the appellate court may take such action as it deems appropriate, which may include dismissal of the appeal.").
As the trial court observed in its Opinion, "[d]espite the fact that [Love's] weight and sufficiency claims constituted fact-based challenges, [Love] did not ask that the trial be transcribed." Trial Court Opinion, 10/29/15, at 7. Consequently, the trial court deemed these claims waived. See id. at 7-9 (deeming Love's claims waived based upon Love's failure to have transcribed the notes of testimony of the trial). Upon review, we agree with the trial court, and conclude that Love's failure to have transcribed the necessary notes of testimony impedes our review of his remaining weight and sufficiency claims. Consequently, we deem those claims waived. See Pa.R.A.P. 1911(d).
Our holding does not preclude Love from seeking post-conviction collateral relief. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/27/2017
Image materials not available for display.