Opinion
791 MDA 2022 J-S35012-22
06-12-2023
COMMONWEALTH OF PENNSYLVANIA Appellant v. MICHAEL T. MARTIN, JR.
Appeal from the Order Entered May 13, 2022 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0002065-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E. [*]
OPINION
STEVENS, P.J.E.:
The Commonwealth appeals from the trial court's May 13, 2022 order granting the post-sentence motions filed by Appellee, Michael T. Martin, Jr; vacating the jury's August 31, 2021 verdict finding Appellee guilty of involuntary deviate sexual intercourse with a child ("IDSI") and indecent assault, with prejudice; and discharging him from custody. Following our careful review, we reverse the trial court's order granting Appellee's post-sentence motions and remand this case to the trial court with instructions to enter an order reinstating the jury's guilty verdict and re-committing Appellee to serve the balance of his sentence.
18 Pa.C.S.A. §§ 3123(b) and 3126(a)(7), respectively.
The trial court summarized the relevant facts and procedural history of this case as follows:
Sometime in 2019, eleven-year-old J.K. indicated to her mother that [Appellee, her uncle,] had behaved inappropriately with her sexually. After an interview at Over the Rainbow Children's Advocacy Center, which lasted just under an hour, J.K. did not disclose any abuse. However, on November 16, 2019, in a thirty-minute interview with the same interviewer, J.K. disclosed several incidents of abuse. As a result of her second interview, on November 25, 2019, [Appellee] was charged with one count of [IDSI], a felony of the first degree, and Indecent Assault of a Person Less than 13 Years of Age, a felony of the third degree. The offense date listed for each of these offenses is September 11, 2013, although the Commonwealth acknowledges repeatedly, as discussed below, that this date was set arbitrarily.
After numerous continuances due to the COVID-19 pandemic, [a jury] trial on these charges commenced on August 31, 2021, and [Appellee] was convicted. [Appellee] was sentenced on December 15, 2021, to an aggregate sentence of 75 to 150 months in a State Correctional Institution. That same day, [Appellee] filed three [post-sentence] motions. The first was a Motion for Bail Pending Appeal, which was ultimately denied following a hearing. The second and third, filed together as Post Sentence-Motions Filed on Behalf of [Appellee], included the instant Motion Alleging Verdict was Against the Weight of the Evidence and Motion Alleging Verdict was Against the Sufficiency of the Evidence. Oral argument on the instant Motions occurred on February 2, 2022, after which we Ordered the parties to submit briefs. [Appellee] timely submitted his brief on February 11, 2022. The Commonwealth untimely submitted their brief on March 11, 2022, nine (9) days after their deadline set by Order of Court dated February 2, 2022.
On April 6, 2022, [Appellee] filed a Motion Requesting Order of Court Granting Court Extension of Time,
requesting that we grant ourselves an additional thirty (30) days to render a decision for good cause[….] We found good cause to have been shown because we had only twenty-four (24) weekdays to render a decision following the filing of the Commonwealth's brief, which was not sufficient time due to the nature of the Court's calendar. Therefore, we granted the Motion, extending our deadline to May 14, 2022.Trial court opinion, 5/13/22 at 2-3 (footnotes, internal citations, and emphasis omitted).
On May 13, 2022, the trial court entered an opinion and order granting Appellee's post-sentence motions. Within this opinion and order, the trial court found the weight and sufficiency of the evidence did not support Appellee's convictions for IDSI and indecent assault. Therefore, the trial court vacated the jury's verdict with prejudice. See id.
The Commonwealth filed a timely notice of appeal on May 20, 2022. On May 25, 2022, the trial court ordered the Commonwealth to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). The Commonwealth filed its timely Rule 1925(b) statement on June 13, 2022. On June 15, 2022, the trial court filed a Rule 1925(a) opinion, incorporating the analysis in the opinion authored in support of its May 13, 2022 order granting Appellee's post-sentence motions.
Thereafter, on July 21, 2022, Appellee filed a motion seeking to either quash the Commonwealth's appeal or find the issues waived due to the Commonwealth's purported failure to comply with Rule 1925(b). On August 2, 2022, the Commonwealth filed a response. On September 29, 2022, Appellee's motion to quash was denied by per curiam order of this Court.
On appeal, the Commonwealth raises the following issues for our review:
1. Whether the trial court erred when it granted [Appellee's] post-sentence motions on the basis that the Commonwealth failed to present sufficient evidence at trial to warrant the jury's verdict of guilty to one count each of [IDSI] and indecent assault of a person less than 13 years of age?
2. Whether the trial court erred when it granted [Appellee's] post-sentence motions on the basis that the jury's verdict was against the weight of the evidence?
Commonwealth's Brief at 4 (extraneous capitalization omitted).
Prior to addressing the merits of the Commonwealth's claims, we must first address Appellee's contention that the May 13, 2022 order is unappealable because it risks subjecting him to retrial in violation of double jeopardy principles. Appellee's brief at 7-9.
It is well settled that "the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is based upon an egregiously erroneous foundation." Evans v. Michigan, 568 U.S. 313, 318 (2013) (citation and internal quotation marks omitted). The same is not true when a trial court grants a motion for discharge after the jury has convicted. The difference is the latter scenario does not involve an acquittal, and thus no retrial will occur. Thus, a ruling in favor of the Commonwealth on appeal merely restores the jury's verdict. See id. at 330, n.9 (stating, "[i]f a court grants a motion to acquit after the jury has convicted, there is no double jeopardy barrier to an appeal by the government from the court's acquittal, because reversal would result in reinstatement of the jury verdict of guilt, not a new trial."). This Court has recognized that "[t]he law in Pennsylvania is consistent with the federal decisions." Commonwealth v. Feathers, 660 A.2d 90, 94 (Pa.Super. 1995) (en banc), affirmed, 683 A.2d 289 (Pa. 1996).
Appellee's argument that the May 13, 2022 order is not appealable is confusing; the bulk of his argument discusses the "critical distinction between challenges to the weight of the evidence and the sufficiency of the evidence." Appellee's Brief at 7. Appellee quotes caselaw holding that claims "challenging the sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy provisions of the Fifth Amendment to the United States Constitution[.]" Id. at 7-8; Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Appellee misapprehends the relevance of these observations. The quoted portion of Widmer merely discusses what happens if an appellate court determines and/or agrees with a trial court that the evidence was insufficient to convict. In that case, retrial is barred. But here the question is simply whether the trial court was correct that the jury's verdict is unsupported by sufficient evidence. Because Appellee was not acquitted, the order is appealable. We now turn to the Commonwealth's claims on appeal, which can be divided into three distinct subsections.
I.
The Commonwealth first argues that in assessing the sufficiency of the evidence, the trial court improperly engaged in a sua sponte examination of the legal issues discussed in Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975) and its progeny. Commonwealth's brief at 15. The Commonwealth avers that Appellee's post-sentence motions did not in any way challenge that aspect of the Commonwealth's case. Id.
In the instant matter, the trial court's sufficiency analysis focused primarily on three cases: Devlin, supra; Commonwealth v. Groff, 548 A.2d 1237 (Pa.Super. 1988); and Commonwealth v. Jette, 818 A.2d 533 (Pa.Super. 2003), appeal denied, 833 A.2d 141 (Pa. 2003). Devlin involved a victim who "had the mental ability of a first or second grade child and the emotional stability of an even younger child." Devlin, 333 A.2d at 889. In Devlin, the victim stated that Devlin had sexually assaulted him on one occasion but could not place the date. Other evidence suggested that if the act occurred it would have been over a fourteen-month period. The Devlin court held that Devlin's due process rights were violated and ordered discharge.
Groff involved a seven-year-old child testifying to multiple sexual crimes that all occurred "on only one occasion." Groff, 548 A.2d at 1239. Applying Devlin, the Groff Court held that the Commonwealth "should … come forward with any evidence which indicates when the alleged crime is most likely to have taken place." Id. at 1241. The Groff Court further concluded that Groff's due process rights were not violated because the Commonwealth presented other evidence narrowing the timeframe down to a three-month period.
Finally, in Jette, the appellant was convicted of, inter alia, one count of IDSI. The victim, who was eight-years old at the time of the incidents, testified to a continuing course of sexual abuse, detailing "four of the worst incidents, [and] describing generally when they occurred by month and generally what time of the year." Jette, 818 A.2d at 535. The Jette Court affirmed the convictions, concluding that the Commonwealth "must be afforded broad latitude when attempting to fix the date of offenses which involve a continuous course of criminal conduct." Id., quoting Groff, 548 A.2d at 1242.
Here, the trial court found that "the Commonwealth failed to meet its burden to prove a continuing course of conduct in a case involving the abuse of a young child pursuant to [Jette]." Trial court opinion, 5/13/22 at 1. Alternatively, "even if the Commonwealth had proven a continuing course of conduct," the trial court concluded that the Commonwealth was not entitled to "'the broad leeway' afforded to them in setting the approximate time and place[.]" Id. Finally, "even if the Commonwealth had proceeded at trial under a theory pursuant to [Groff]," the trial court determined that the Commonwealth failed to meet its burden to provide corroborating evidence. Id.
Following our careful review, we agree with the Commonwealth's contention that the trial court erred by engaging in a sua sponte examination of legal issues that were not raised by Appellee. We begin our analysis of this issue by quoting Appellee's post-sentence motion for relief:
6. [Appellee] alleges that the verdict was against the sufficiency of the evidence.
7. The law related to said claim is as follows:
a) It is appropriate for the trial court to determine if the evidence presented at trial was sufficient to support the verdict. Commonwealth v. Martin, [101 A. 3d 706 (Pa. 2019)].
b) The court must review the evidence in the aggregate in order to determine the propriety of the Defendant's motion. In Interest of J.B., [189 A.3d 390 (Pa. 2013)].
Post-Sentence Motions, 12/15/21, at unnumbered 2-3 (citation formatting amended).
Appellee's motion then cited a series of facts in paragraph eight, all of which may fairly be summarized as attacking the plausibility of J.K.'s testimony. The motion concluded:
9. Applying the law and facts, as set forth above, warrant[s] relief for [Appellee]. It is clearly evident that the evidence against the defendant was "tenuous," "vague," and "uncertain[,]" Commonwealth v. Talbert, [129 A.3d 536
(Pa.Super. 2015)], and [the verdict] was so contrary to the evidence as to sho[ck] one's sense of justice. Commonwealth v. Morales, [91 A.2d 80 (Pa. 2014)]. It is imperative that the [c]ourt enter a directed verdict or one of aquital [sic] so that right may be given another opportunity to prevail. Commonwealth v. Antidormi, [84 A.3d 736 (Pa.Super. 2014)]. To fail to do such would be to deny justice. Commonwealth v. Green, [204 A.3d 469 (Pa.Super. 2019)]; Commonwealth v. Williams, [176 A.3d 298 (Pa.Super. 2017)]; Commonwealth v. Miller, [172 A.3d 632 (Pa.Super. 2017)].
Post-Sentence Motions, 12/15/21, at unnumbered 6 (citation formatting amended).
While styled as a sufficiency claim, both the facts cited in support of Appellee's claim and the law in support largely attack the weight of the evidence. An argument that goes purely to weight, even if styled as sufficiency, necessarily fails. See Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999) (stating, "[a]lthough [the] appellant phrases this as a sufficiency argument, the challenge goes to the weight of the evidence. Accordingly, [the] appellant's challenge to the sufficiency of the evidence must fail." (citation omitted)), cert. denied, 531 U.S. 829 (2000). That Appellee's complaints went to the weight is evident from the citations in the ninth paragraph of his post-sentence motions. The complete sentence Appellee cited from Talbert states, "[i]n order for a defendant to prevail on a challenge to the weight of the evidence, 'the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court.'" Talbert, 129 A.3d at 546 (emphasis added). Similarly, the Antidormi citation discusses the relief applicable to a successful weight challenge, a retrial, whereas the remedy for a successful challenge on sufficiency grounds is discharge.
Even though Appellee raised, at best, only a generic sufficiency of evidence claim without reference to any element(s) of the crime, the trial court's analysis had almost nothing to do with whether the evidence would enable a rational fact-finder to convict. The "Devlin claim" explored by the trial court does have a connection to a general sufficiency of the evidence challenge in that both are grounded in due process. However, their commonality ends there, as Devlin is about the fundamental right to present a defense.
The United States Supreme Court held in Jackson v. Virginia, 443 U.S. 307 (1979), that the Due Process Clause as incorporated by the Fourteenth Amendment requires that all convictions be supported by "sufficient proof - defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Id. at 316. We follow that approach, as stated in Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012):
First, our standard of review, like the Jackson standard, recognizes the proper regard an appellate court must give to the fact-finder's evaluation of all of the evidence received at trial and, therefore, requires scrutiny of the totality of that evidence in the light most favorable to the Commonwealth, as verdict winner, and to draw all reasonable inferences in favor of the Commonwealth. Further, our Court's
determination of the ultimate question of evidentiary sufficiency parallels the central inquiry under the Jackson standard, namely, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Id. at 1164 (citations, internal quotation marks, and footnote omitted).
The Jackson decision protects due process in a particular way: it operates as a check on the quality of the government's evidence in proving the crimes. Separately, due process requires that the Commonwealth give fair notice in the charging instrument. "In criminal … matters, the United States Supreme Court has discerned a due process requirement that alleged misconduct must be identified with particularity in the essential notice conferred." In re R.M., 790 A.2d 300, 305 (Pa. 2002). The criminal information "sets the stage for trial and what the Commonwealth intends to prove." Commonwealth v. King, 234 A.3d 549, 563 (Pa. 2020). This implicates basic due process protections. "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." Cole v. Arkansas, 333 U.S. 196, 201 (1948). These due process protections are linked to the due process protections encompassed by a sufficiency-of-the-evidence claim. The charging document puts the defendant on notice of what the Commonwealth intends to prove, and, in turn, the evidence presented at trial must be of sufficient quality to enable a rational fact-finder to conclude that the Commonwealth has proved the crimes specified within the information beyond a reasonable doubt.
The trial court addressed the fact that the criminal information encompassed a nine-month period of time and opined that this "shifted the burden" to the defense. "It is ... beyond cavil that it is the Commonwealth's burden to prove guilt, rather than the defendant's duty to establish innocence." Commonwealth v. Kennedy, 453 A.2d 927, 929 n.2 (Pa. 1982). The Devlin Court recognized that, under the circumstances of a particular case, a defendant's due process right to present a defense may be violated, but that does not shift the burden to the defendant. Devlin, 333 A.2d at 891 (stating, "[t]he State Constitution is violated where the defendant is substantially denied an opportunity to present a defense.") (citation omitted); see also Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (stating, "[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'") (citation omitted). The trial court's belief that the Commonwealth "shifted tactics" midtrial is more accurately described as a potential due process violation relating to the validity of "variances" between the information and the evidence presented at trial. See, e.g., Berger v. United States, 295 U.S. 78, 82 (1935) (stating, "[t]he true inquiry … is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights' of the accused.").
Instantly, we agree with the Commonwealth that the issues raised by Appellee in his post-sentence motion cannot be interpreted as a claim that he was denied an opportunity to present a defense. Moreover, our assessment that the legal theory explored in Devlin and its progeny is a distinct due process claim is corroborated by the fact those cases suggested that a defendant must preserve and raise that specific issue. The Devlin opinion makes clear that the appellant therein explicitly cited the inability to raise a defense, not that the evidence was insufficient to convict: "At the close of the Commonwealth's case, the defense demurred to the prosecution's evidence on the ground that the Commonwealth had not fixed the date of the crime with sufficient particularity, and thus the charge was impossible to defend." Devlin, 333 A.2d at 890.
Likewise, in Jette, the appellant therein clearly raised that specific theory: "Jette does not argue that the Commonwealth failed to prove any element of the crimes of which he was convicted. Instead, [the a]ppellant argues that the evidence was insufficient to support his conviction because the victim's testimony was not sufficiently specific regarding the dates of the incidents of abuse." Jette, 818 A.2d at 534. It also bears noting that the Devlin Court emphasized that the due process inquiry must be analyzed with reference to the specific facts of the case. Devlin, 333 A.2d at 892 (stating, "[h]ere, as elsewhere, '[t]he pattern of due process is picked out in the facts and circumstances of each case.'" (citation omitted)). The Commonwealth's contention that the trial court exceeded its authority thus has substantial force, as the trial court determined sua sponte that Appellee's due process rights were violated under the facts of the case without the benefit of adversarial positions by the parties.
The trial court attempted to answer whether the convictions for two counts could stand, accepting that J.K.'s testimony was sufficient to meet the elements of the charged crimes for a subset of the entire timeframe charged. We need only determine that Appellee did not make that claim. Instead, he claimed that J.K. was not credible in total. Thus, whether a "variance" was justifiable under these circumstances or whether Appellee's ability to offer a defense was hampered were issues not raised by Appellee. Accordingly, we agree with the Commonwealth's first argument that the trial court improperly addressed issues that were not raised in Appellee's post-sentence motions.
II.
The Commonwealth next contends that the trial court erred in granting Appellee's post-sentence motions on the basis that the Commonwealth failed to present sufficient evidence to support Appellee's convictions for IDSI and indecent assault. Commonwealth's brief at 12, 25.
In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as
verdict winner, is sufficient to prove every element of the offense beyond a reasonable doubt. As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Any question of doubt is for the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).
A person will be found guilty of IDSI "when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age." 18 Pa.C.S.A. § 3123(b). "Deviate sexual intercourse" is defined as "[s]exual intercourse per os or per anus…. The term also includes penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than good faith medical, hygienic or law enforcement procedures." 18 Pa.C.S.A. § 3101.
Additionally, "[a] person is guilty of indecent assault if the person has indecent contact with the complainant … 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.A. § 3126(a)(7). Indecent contact is defined as "[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person." 18 Pa.C.S.A. § 3101.
Viewing the evidence in the light most favorable to the Commonwealth, the verdict winner, we find there was ample evidence to sustain Appellee's convictions for IDSI and indecent assault of a person less than thirteen years of age. At trial, the Commonwealth called three witnesses: J.K.; J.K.'s mother, E.A.; and Detective David Rush. The record reflects that J.K., who was fifteen-years old at the time of trial, testified that Appellee would make her perform oral sex on him, "[u]sually in the computer room." Notes of testimony, 8/31/21 at 72-75. J.K. testified that Appellee began sexually abusing her "a couple days into it in the first week" after she and her family moved into his home during the 2013 school year. Id. J.K. was between seven and eight-years old when these incidents took place. Id. at 25, 91. J.K. further testified that no one else was present in the room when these incidents took place, but the other residents of the household would "[s]ometimes … be upstairs and sometimes they would be in the outside of the house in the back yard." Id. at 73, 75. J.K. also stated that the incidents "would usually be in the daytime." Id. at 76.
On cross-examination, J.K. agreed that in a videotaped statement she said that the abuse happened every day, but clarified that "[i]t happened every other day because sometimes it would be like breaks." Id. at 114. J.K. testified that the abuse continued until she "said 'no' the one time and then we moved out shortly after." Id. at 74. J.K. further testified that she disclosed the abuse to her two sisters a few years after leaving Appellee's residence. Id. at 123. J.K. and her sisters then told E.A., who subsequently contacted the authorities and an investigation commenced. Id. at 81.
This Court has long recognized that the testimony of the complainant standing alone is sufficient to convict. "[A] solitary witness's testimony may establish every element of a crime, assuming that it speaks to each element, directly and/or by rational inference." Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa.Super. 2018) (emphasis in original), appeal denied, 205 A.3d 315 (Pa. 2019). Here, the record reflects that J.K.'s testimony that Appellee's genitals made contact with her mouth is sufficient to meet the elements of IDSI. See, e.g., Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa.Super. 2003) (stating, "[b]ecause there was oral contact with the [a]ppellant's genitalia and the victim's mouth, we find the evidence is sufficient to establish penetration however slight."). Likewise, the same testimony meets the definition of indecent assault under Section 3126(a)(7), as it was undisputed that J.K. was under 13 at the time of these crimes. Accordingly, J.K.'s testimony that she and Appellee had oral sex on multiple occasions, if believed by the jury, was sufficient to establish both crimes.
The trial court concluded that J.K.'s testimony presented a "conundrum" because she stated, when confronted with a prior statement, that the abuse occurred every day, that it occurred every other day. Trial court opinion, 5/13/22 at 23-26. The trial court determined that this was extremely unlikely when measured against Appellee's stipulated work records. Id. The core problem with the trial court's analysis is that it appeared to consider the jury's ability to weigh evidence as constituting an all-or-nothing proposition. The "conundrum" presented by J.K.'s testimony that the abuse occurred every other day and the stipulation to Appellee's work records is resolvable by concluding that a rational fact-finder could reject parts of J.K.'s testimony while accepting others. The jury could credit J.K.'s testimony that Appellee serially abused her, but not at the frequency claimed. The jury was not required to fully credit J.K.'s testimony in all respects for the conviction to be valid. The jury could have, for example, rationally concluded that J.K. was so traumatized by multiple incidents of abuse that she recalled it happening more often than it did.
The jury was not required to fully credit that aspect of J.K.'s testimony to uphold this conviction. A rational fact-finder could conclude that Appellee repeatedly abused J.K. while simultaneously concluding that it did not occur as often as J.K. stated.
The United States Supreme Court has held that "[s]ufficiency review essentially addresses whether the government's case was so lacking that it should not have even been submitted to the jury." Musacchio v. United States, 577 U.S. 237, 243 (2016) (citation and internal quotation marks omitted). If a jury "was convinced, … the only question under Jackson is whether that finding was so insupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 566 U.S. 650, 656 (2012). We conclude that it does not in the case sub judice, and therefore reverse the trial court's order discharging Appellee on the basis there was insufficient evidence to sustain the jury's verdict.
III.
In its final claim, the Commonwealth argues that the trial court abused its discretion in granting Appellee's post-sentence motion on the basis that the jury's verdict was not supported by the weight of the evidence. Commonwealth's brief at 30. The Commonwealth contends that the trial court's analysis indicates that it improperly attempted to function as the thirteenth juror in this case by disregarding the jury's judgment and substituting its own for that of the fact-finder. Id. at 32. For the following reasons, we agree.
This Court has recognized that "[a]n allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court." Commonwealth v. Galvin, 985 A.2d 783, 793 (Pa. 2009) (citation omitted), cert. denied, 559 U.S. 1051 (2010).
[W]here the trial court has ruled on the weight claim below, an appellate court's 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 in ruling on the weight claim.Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation omitted).
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.
. . . .
This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained[,] [t]he term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and emphasis omitted).
Upon review, we disagree with the trial court's assessment that this matter was one of the exceedingly rare cases in which a jury's verdict should be vacated on weight-of-the-evidence grounds. As discussed, our Supreme Court has recognized that "[o]ne 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…." Id. (citation omitted). "[A] true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed." Commonwealth v. Miller, 172 A.3d 632, 643 (Pa.Super. 2017) (citation omitted), appeal denied, 183 A.3d 970 (Pa. 2018). The primary focus of such a challenge is whether "the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice." Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citation omitted), cert. denied, 572 U.S. 1048 (2014).
Here, the jury heard testimony from multiple Commonwealth witnesses that Appellee sexually abused J.K. The jury clearly found the testimony and evidence presented at trial credible and elected not to believe Appellee's version of the events. The trial court's opinion vigorously discusses alternative theories to explain J.K.'s inconsistent testimony, in an attempt to explain why it believes the verdict in this matter was a "shock to the conscience." See trial court opinion, 5/13/22, at 35, 38-44. In doing so, we find that the trial court plainly exceeded the limits of judicial discretion and invaded the exclusive domain of the jury by substituting its own credibility determination for that of the fact-finder. See Clay, supra.
Based on the foregoing, we reverse the trial court's May 13, 2022 order granting Appellee's post-sentence motions and discharging him from custody, and remand this case to the trial court with instructions to enter an order reinstating the jury's guilty verdict and re-committing Appellee to serve the balance of his sentence.
Order reversed. Case remanded with instructions. Jurisdiction relinquished.
Judge McLaughlin joins the Opinion.
P.J.E. Bender files a Concurring and Dissenting Opinion.
Judgment Entered.
DISSENTING OPINION
BENDER, P.J.E.:
The trial court, having observed all the proceedings, concluded that Appellee "is actually innocent." Trial Court Opinion, 5/13/22, at 36 (emphasis omitted). While I agree with the Majority that the Commonwealth presented sufficient evidence to sustain the convictions and that Appellee is not entitled to discharge, I respectfully disagree with my learned colleagues' decision to reverse the trial court's grant of a new trial on weight-of-the-evidence grounds. I do not share the Majority's confidence that the trial court's concerns are so unfounded that the trial court abused its discretionary authority in granting a new trial. In my view, the Majority has brushed aside the trial court's concerns by simply ruling on the underlying weight claim, which we may not do. I therefore respectfully dissent, as I would affirm that portion of the order and remand for a new trial.
I begin by repeating the standard of review, as I believe the Majority misapplies it:
A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence[,] do not sit as the thirteenth juror. 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."Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (footnote and citations omitted). On appeal, our review is "distinct from the standard of review applied by the trial court[.]" Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). We do not review the underlying weight of the evidence question. Instead, we examine the judge's exercise of discretion in ruling on that claim. Id. We therefore do not review the trial court's decision to grant or deny a new trial under a de novo standard of review. Instead, we decide whether the trial court's determination, or more accurately its reasons for reaching its decision, constituted an abuse of discretion.
The Majority correctly recites the basic standards, but I believe that it misapplies them. My colleagues - without elaboration - conclude that "the trial court plainly exceeded the limits of judicial discretion and invaded the exclusive domain of the jury by substituting its own credibility determination for that of the fact-finder." Maj. Op. at 21. However, I do not believe the relevant standard permits this Court to simply conclude that the trial court abused its discretion. Instead, we must explain how the trial court erred. See Clay, 64 A.3d at 1056 ("The Superior Court failed to consider the discretion exercised by the trial judge or the findings and reasons advanced by the judge in support of his determination that the verdicts were not against the weight of the evidence.").
So where did the trial court go astray when adjudicating the actual weight of the evidence claim? As best I can discern, the Majority concludes that the trial court abused its discretion because it disagrees with the result the court reached. It notes that the jury "clearly found the testimony and evidence presented at trial credible and elected not to believe Appellee's version of the events." Maj. Op. at 21.
The Majority overstates the jury's credibility determinations by asserting that "the jury heard testimony from multiple Commonwealth witnesses that Appellee sexually abused J.K." Maj. Op. at 21. Only three witnesses testified, and only J.K. offered any firsthand testimony that Appellee abused her.
As an initial matter, the fact that the jury found the evidence credible is of limited value, since a weight-of-the-evidence claim can exist only if the jury found the testimony credible; otherwise, the jury would have returned a not-guilty verdict. We are not reviewing the underlying question of whether the weight of the evidence supported the verdict, and so the jury's assessment is beside the point. Indeed, the abuse-of-discretion standard contemplates that if the decision were ours to make in the first instance, we may have gone the other way. "When the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below…." Paden v. Baker Concrete Const., Inc., 658 A.2d 341, 343 (Pa. 1995) (citation omitted).
The Majority therefore proceeds from the premise that we must give deference to the jury's verdict, but not the trial court's assessment of the weight claim. Tellingly, the Majority states that this is not a case "in which a jury's verdict should be vacated on weight-of-the-evidence grounds." Maj. Op. at 20. But we are not asked to decide whether the verdict should be vacated. We are deciding only whether the trial court's reasoning for concluding that a new trial is warranted constituted an abuse of discretion. The Majority not only misapplies the standard of review, but it also serves to create a stacked deck in favor of the Commonwealth, as the prosecution obviously cannot seek a new trial if the jury acquits. Thus, it is already baked into the weight remedy that the jury deemed the Commonwealth's evidence credible and rejected any testimony by the defendant. The Majority has effectively eliminated a trial court's ability to grant a new trial on weight grounds. The Commonwealth can always say that the grant of a new trial on weight grounds is unwarranted because the jury found its presentation credible. If that argument is enough to establish an abuse of discretion, it is unclear how any defendant could ever prevail if the Commonwealth chooses to appeal. This Court can always simply respond as it does now: "The jury clearly found the testimony and evidence presented at trial credible…." Id. at 21.
Fortunately, the appellate standards, properly applied, treat each side the same. Hence the observation that "[o]ne of the least assailable reasons for granting or denying a new trial is the lower court's determination that the verdict was or was not against the weight of the evidence and that new process was or was not dictated by the interests of justice." Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted). Trial courts are naturally reluctant to disturb a jury's verdict and it certainly seems that courts are carefully exercising their discretion given the rarity of successful weight-of-the-evidence challenges. As an appellate court, we have no license to overturn those decisions, regardless of whether it favors or disfavors the Commonwealth, absent a clear abuse of discretion. As our Supreme Court stated in Commonwealth v. DiStefano, 265 A.3d 290 (Pa. 2021), if we find that the trial court abused its discretion we must adequately explain why:
On appeal, the Superior Court noted that it reviews evidentiary rulings for an abuse of discretion, and ultimately concluded that the trial court abused its discretion. However, the Superior Court
never described the particulars of the "abuse of discretion" standard nor did the intermediate court specifically explain how the trial court abused its discretion.Id. at 298.
DiStefano involved an evidentiary ruling, but the same logic applies to any claim that a trial court abused its discretion. To overrule the trial court's exercise of discretion, we must specifically explain how the trial court erred. A conclusory statement does not suffice. Given the lack of any developed explanation by the Majority addressing the trial court's actual rationale, I respectfully submit that the Majority has in truth reviewed the question de novo.
The trial court's analysis of the weight claim is approximately fifteen pages. Excluding the passages quoting the relevant standards of law, the Majority's analysis comprises approximately one page. I do not suggest that mere length alone is dispositive, but if the trial court's reasons for granting a new trial "plainly exceeded the limits of judicial discretion," Maj. Op. at 21, the Majority could surely explain why that is so.
The Majority's conclusion is substantively indistinguishable from a trial court's naked conclusion that a new trial is warranted. A mere recitation by the court that a new trial is warranted would be an abuse of discretion if not backed up by concrete observations and facts. It is no less an abuse for this Court to overrule the trial court by announcing that the trial court exceeded its authority. In Commonwealth v. Brown, 648 A.2d 1177 (Pa. 1994), our Supreme Court stated:
An appellate court by its nature stands on a different plane than that of a trial court. Whereas a trial court's decision to grant or deny a new trial is aided by an on-the-scene evaluation of the evidence, an appellate court's review rests solely upon a cold
record. Because of this disparity in vantage points an appellate court is not empowered to merely substitute its opinion concerning the weight of the evidence for that of the trial judge. Rather our court has consistently held that appellate review of the trial court's grant of a new trial is to focus on whether the trial judge has palpably abused his discretion, as opposed to whether the appellate court can find support in the record for the jury's verdict….Id. at 1190 (citation omitted, ellipsis in original).
The trial court's superior position with respect to observing the presentation of the case firsthand presumably explains why the relevant standard of review requires an abuse of discretion to overrule the trial court. As quoted, the relevant standard of review requires a "palpable" abuse of discretion. That arguably suggests an even higher degree of deference to the trial court is appropriate. Cf. Stilp v. Commonwealth, 905 A.2d 918, 965 (Pa. 2006) (noting that a party "challenging the constitutionality of an act of the General Assembly bears a heavy burden of proof" and must show that the act "clearly, palpably, and plainly violates the Constitution"). But even under a "regular" abuse of discretion standard, we must "give the gravest consideration to the findings and reasons advanced by the trial judge." Widmer, 744 A.2d at 753. The Majority fails to do so.
As noted by Chief Justice Bell's concurrence in Wilson v. Nelson, 263 A.2d 116 (Pa. 1969), the "abuse of discretion" standard has been described in at least five ways. "In discussing an 'abuse of discretion' by the lower [c]ourt, this Court has from time to time used five different tests: abuse of discretion, clear abuse of discretion, palpable abuse of discretion, manifest abuse of discretion, and gross abuse of discretion." Id. I submit that the trial court's institutional advantage arguably calls for a higher degree of deference. See also Commonwealth v. Derry, 150 A.3d 987, 995 n.2 (Pa. Super. 2016) (explaining that "review of the discretionary aspects of a [violation-of-probation] court's sentence … may, as a practical matter, dictate a greater degree of deference from a reviewing court").
The foregoing establishes why I am unpersuaded that the Majority has adequately set forth sufficient reasons to justify its decision. I now explain why I find no abuse of discretion.
The Commonwealth asserts that the weight-of-the-evidence standards "prevent the Monday morning quarterbacking in which the trial court engaged during this case." Commonwealth's Brief at 37. It argues that the trial court simply acted as the thirteenth juror, disregarded the jury's judgment, and substituted its own. While the trial court's opinion recognizes it cannot do that, the Commonwealth argues that the substance of the court's analysis demonstrates it did so. "The trial court goes to great lengths to frame its analysis in a way [that] does not equate to the trial court['s] attempting to function as the thirteenth juror in this case, but the trial court's opinion does not bear out this assertion." Id. at 32. The Commonwealth notes that the trial court's opinion discusses alternative theories to explain J.K.'s inconsistent testimony, with the court "substitut[ing] the factual and credibility determinations of a jury of twelve of [Appellee]'s peers[, and] did so by relying upon a series of speculative conclusions that have absolutely no basis in the record." Id. at 36. In this regard, the Commonwealth cites the trial court's admission that it "began its weight[-]of[-]the[-]evidence analysis months before such an issue was even before the court." Id. at 37 (emphasis omitted). The Commonwealth also characterizes large portions of the trial court's opinion as "read[ing] more like a collateral post-conviction petition for relief blindly alleging ineffective assistance of trial counsel than a judicial opinion." Id. at 35.
It is clear that the trial court cannot rule on a weight claim as if casting a vote in the jury room and treating that vote as authoritative. The Widmer Court explained "the limits of a trial court's discretion" to grant or deny a motion for a new trial as follows:
The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.Widmer, 744 A.2d at 753 (citation omitted).
I do not find the court's judgment to be manifestly unreasonable, nor do I conclude that the trial court's opinion evidences any partiality, prejudice, bias, or ill-will. In reaching this conclusion, I do not suggest that it is obvious that the trial court's decision should be upheld. As explored in Austin v. Ridge, 255 A.2d 123 (Pa. 1969), "the central problem" in addressing weight challenges is the degree of freedom that should be afforded a trial court "to review and set aside a jury verdict where the evidence presented to the jury is legally sufficient to sustain that verdict[.]" Id. at 124-25. The "rule may be simply stated; its content is more elusive; and its application will of course require a continuing exercise of judicial sensitivity." Id. at 125. This type of case boils down to whether J.K. was credible, and thus there is a risk that the trial court simply disagreed with the jury's credibility determination. However, after careful review of the trial court's opinion, I conclude that the trial court based its decision "on the foundation of reason" as required by Widmer.
As an overarching matter, I agree that the trial court's opinion inappropriately discusses potential ineffective assistance of counsel claims throughout. Some of these observations strike me as incorrect even beyond the impropriety of the court's raising them sua sponte. For example, the trial court asserted that a new trial was likely warranted based on an erroneous sustainment of a hearsay objection concerning what E.A. (J.K.'s mother) told J.K. prior to J.K.'s second interview with the Children's Advocacy Center. However, Appellee leveled that objection, and counsel is presumed to have a strategic reason for doing so. If that judgment is objectively reasonable, any ineffective assistance of counsel claim necessarily fails. Oddly, the trial court concluded that Appellee had a good reason to make the objection. The court believed that sustaining the objection "suggested to the jury that [E.A.] had 'made' J.K. go to the second … interview, calling J.K.'s credibility into question, but the jury was deprived of hearing J.K.'s true reason and was asked to assume that her reason was nefarious." Trial Court Opinion, 5/13/22, at 42. I fail to see how the jury's believing that J.K. was forced to go to the interview by E.A. or acted nefariously would harm Appellee at all. It would certainly help Appellee if the jury thought that J.K. was an unwilling participant and disclosed the abuse only because that was what her mother expected. Indeed, that may well explain why Appellee objected. But, in any event, it was premature to write an opinion that announces an ineffective-assistance-of-counsel claim would succeed if presented. Nonetheless, I take the trial court's analysis of those points to reflect its fervent belief that Appellee is innocent and that a grave injustice has occurred.
To see why this case is not simply one where the trial court granted a new trial only because it would have acquitted Appellee, I briefly set forth some additional factual background relevant to the trial court's conclusion. J.K. was fifteen years old at the time of trial, and between seven and eight-years old when the abuse occurred. The abuse allegedly occurred throughout the 2013 school year, when J.K. and her family resided with Appellee, her uncle. The Commonwealth called three witnesses at trial: J.K., her mother (E.A.), and Detective David Rush.
E.A. testified that she, her husband, and her seven children (six daughters and one son), had to find housing after their home was condemned. N.T., 8/31/21, at 29. The family had trouble finding a rental property, leading E.A. to ask her sister, Pamela Martin, if she and her family could temporarily move into her home. Ms. Martin agreed.
E.A. and her husband later divorced, following his convictions for sexually abusing two of J.K.'s sisters.
Appellee was married to Ms. Martin, and the couple had one son. The three lived in a three-bedroom home with two floors. The first floor contained a "computer room," a dining room, and kitchen. The dining room had a staircase leading to the second floor, which contained the three bedrooms and the home's only bathroom. Appellee and Ms. Martin slept in one of the bedrooms. Id. at 40. One of the other two bedrooms belonged to Appellee's son, and J.K.'s sole brother moved into that room. Id. E.A. and her then-husband moved into the third and final bedroom. Two of their daughters were "really small" and thus stayed in that room full-time. Id. at 41. A third daughter would "sometimes" sleep there. Id. J.K. and her sister slept downstairs in the room adjoining the computer room, as would the aforementioned child when not sleeping in E.A.'s room. Id. at 28, 42.
The home also had a basement and an attic, but those areas were not used as a living space. N.T., 8/31/21, at 38.
E.A. testified that the family lived with Appellee for the full 2013 school year. J.K. attended the elementary school, which was within walking distance. The school day was approximately 8:40 a.m. to 3:25 p.m. Id. J.K. would leave the home at approximately 8:15 a.m. Id. at 48. Of the four adults, only Appellee was employed. Id. at 46. On days that Appellee worked, he would leave the home around 1:30 p.m. and return around 11:45 p.m. Id. at 48. The parties stipulated to the authenticity of Appellee's work records, which established that he worked Monday through Friday, starting his shift between 2:15 and 2:30 p.m. Id. at 144, 163. Appellee did not work weekends, and he was absent from work during the periods of December 17 through December 31; January 6 to January 31; and March 10 through March 31. Id. at 164-65. In total, including weekends, Appellee was not at work for 122 days of the nine months that J.K. and her family resided in his home. Id. at 158.
J.K. testified that Appellee would make her perform oral sex on him, "[u]sually in the computer room." Id. at 72. Appellee began sexually abusing her "a couple days into … the first week" after she moved into Appellee's home. Id. J.K. testified that nobody else would be present in the room. Id. at 73. The other residents would "[s]ometimes … be upstairs and sometimes they would be in the outside of the house in the back yard." Id. at 75. J.K. said that the incidents "would usually be in the daytime." Id. at 76. On cross-examination, J.K. agreed that, in a videotaped statement, she said that the abuse happened every day, but clarified that "[i]t happened every other day because sometimes [there] would be … breaks." Id. at 114. The abuse continued until J.K. "said no the one time and then we moved out shortly after." Id. at 74.
J.K. disclosed the abuse to her two sisters during a party at their home, years after leaving Appellee's residence. Id. at 123. She testified that some of her sisters and their friends told J.K. "to go upstairs because they wanted to talk. … I was so angry because everyone kept leaving me out of stuff, and it just slipped out because I thought, well, maybe if I said that, then I would actually be included in stuff." Id. at 80. The comment that "slipped out" was J.K. saying to the girls, "Well, has anyone ever asked you to suck their dick for candy?" Id. At the time, J.K. was unaware that two of her sisters had been molested by their stepfather. Id. at 81. The sisters told J.K. that they had been abused and the three girls talked to E.A. Id. E.A. then contacted the authorities, and the investigation commenced.
Certainly, the facts are unusual in that so many people shared a small home, and Appellee was the only adult who was employed. And as the trial court explained at length in its opinion, J.K.'s testimony regarding the frequency of the abuse is contradicted by Appellee's work records, which the Commonwealth agreed were authentic. J.K. testified that the abuse occurred in the daytime, when most of the household would be awake, thereby making it difficult to serially abuse J.K. without someone noticing. The fact that a convicted sexual abuser also lived with Appellee, and molested J.K.'s siblings at some unknown point in time, was also relevant to the trial court's assessment of the weight of the evidence. So, too, was the fact that J.K. disclosed the abuse years after the fact and only because the older siblings were "leaving [her] out of stuff." Id. at 80.
These points may well have not ultimately mattered had I viewed J.K.'s testimony firsthand, but I did not. Neither did the Majority. Only the trial court did, and the trial judge stated that this case was the first time its conscience had been shocked by a verdict. "Until now, we had yet to be presented with a case where our conscience was anywhere near our definition of 'shocked.'" Trial Court Opinion, 5/13/22, at 37 (emphasis omitted). In fact, the trial court came away convinced that Appellee is innocent. I do not agree with the Majority's cursory dismissal of the trial court's assessment of the case.
I disagree with the Commonwealth's suggestion that the trial court acted capriciously because it began considering the validity of a weight claim before Appellee raised the claim. We have stated that when "the jury's verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience." Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super. 2004) (citations omitted), aff'd, 938 A.2d 198 (Pa. 2007). Thus, a "delayed" recognition prompted by a defendant's raising the claim would subject the judge to a charge that the verdict was not against the weight of the evidence, since the shocking nature of the verdict would have been obvious at the time.
In sum, our opinion on whether the trial court is correct that Appellee is innocent of these crimes is beside the point. We only ask whether the trial court abused its discretion in arriving at that conclusion. As I conclude that it did not, I would affirm the grant of a new trial. Therefore, I respectfully dissent.
[*] Former Justice specially assigned to the Superior Court.