Opinion
J. S93007/16 No. 3433 EDA 2015
01-25-2017
COMMONWEALTH OF PENNSYLVANIA v. LATASHA ROBINSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 10, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004971-2013 BEFORE: DUBOW, SOLANO, AND PLATT, JJ. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge Assigned to the Superior Court.
Appellant, Latasha Robinson, appeals from the Judgment of Sentence entered by the Philadelphia County Court of Common Pleas following her jury trial convictions of Unlawful Contact with a Minor, Corruption of a Minor, and Aggravated Indecent Assault of a Child. We affirm.
18 Pa.C.S. § 6318(a)(1); 18 Pa.C.S. § 6301(a)(1)(i); and 18 Pa.C.S. § 3125(b), respectively.
The trial court stated the relevant facts in its Pa.R.A.P. 1925(a) Opinion as follows:
On February 18, 2013, Police Officer Arnaldo Santos responded to a call at 416 North Grove Street in the city and county of Philadelphia, PA. Officer Santos arrived at the scene and met with the complainant's mother who was very upset. The complainant's mother told Officer Santos that she picked the complainant up at the complainant's grandmother's house.
According to the complainant, she was touched in her private area. On the way home from her grandmother's house, the complainant urinated on herself. Her mother saw blood on the complainant's underwear and called the police. The complainant's mother turned the underwear over to the officer. When they arrived at the hospital, the officer gave the underwear to the detectives.
The complainant was three years old at the time of the incident. The complainant testified that on the day of the incident she was downstairs laying on the couch with the [Appellant]. [Appellant] touched her with her nails between her legs, an area the complainant refers to as her "coochie" or "coo-coo." The complainant also said that she saw [Appellant's] butt.
The complainant's mother testified that she picked her daughter up from her mother's house. Her mother lives there along with [Appellant], her girlfriend of about eleven years. When she arrived at her mother's house, she notice[d] that her daughter was not her usual self. Typically, the complainant is very happy to see her mother but she noticed that the complainant was acting differently. The complainant told her mother that [Appellant] "hurt my coo-coo." The complainant then repeated that [Appellant] "put her finger in my coo-coo." At first, the complainant's mother and grandmother did not believe her. On the way home, she asked the complainant about what she said at the house. The complainant told her [Appellant] "touched my coo-coo." The complainant told her [Appellant] laid her back, put her finger in her vagina, and put her boobs in her face. The complainant also urinated on herself on the way home. When her mother changed her pants, she saw blood. She then called her mother and told her that [Appellant] really must have touched the complainant and then she called the police.
The complainant was taken by an ambulance to the emergency room at the Children's Hospital of Philadelphia ("CHOP"), where she was examined by Dr. Mercedes Blackstone. The complainant was admitted to the hospital because she had an acuity score of two from a scale of one to five. The complainant received a full examination. Dr. Blackstone found a very small amount of blood in the area of the posterior forcia, which is the interior part of the vagina. Also, a nurse practitioner documented a small amount of bleeding with urination.
A DNA analysis was performed by Lisette Vega, a forensic science expert from the Philadelphia Police Department Criminalistics Unit, DNA laboratory. [Vega] analyzed a swab from inside the complainant's crotch, a vulvar swab, an oral swab, a perineal swab, and a reference blood sample from the complainant as well as a reference blood sample from [Appellant]. A touch DNA sample from inside of the complainant's crotch matched the complainant and an unknown individual. [Appellant] was excluded as a contributor. The unknown individual was a female. The other swabs from inside the crotch, the vulvar swab, and the oral swab matched the complainant. However, [Vega] testified that it is possible that if the complainant wiped herself she may have removed all or some of the DNA from the area.Trial Court Opinion, 4/20/16, at 1-4 (citations omitted).
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On April 17, 2015, a jury found [Appellant] guilty of [U]nlawful [C]ontact with a [M]inor, [C]orruption of a [M]inor, and [A]ggravated [I]ndecent [A]ssault of a [C]hild. The court deferred sentencing for a pre-sentence investigation and an assessment by the Sexual Offenders Assessment Board [] pursuant to 42 Pa.C.S. § 9799.24 to determine if [Appellant] is a sexually violent predator. [The court did not find Appellant to be a Sexually Violent Predator.] On July 10, 2015, the court sentenced [Appellant] to [an aggregate term of] five and a half to eleven years in prison to be followed by a period of four years of sex offender probation. [Appellant] filed a Post Sentence Motion on July 10, 2015[, which was denied] on November 3, 2015.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
[I.] Whether the evidence was insufficient to convict Appellant of Unlawful Contact with a Minor, 18 Pa.C.S.[] § 6318(a)(1), Corruption of a Minor, 18 Pa.C.S.[] § 6301(a)(1)(i), and Aggravated Indecent Assault of a Child, 18 Pa.C.S.[] § 3125(b)?
[II.] Whether the weight of the evidence is against Appellant's convictions for Unlawful Contact with a Minor, 18 Pa.C.S.[] § 6318(a)(1), Corruption of a Minor, 18 Pa.C.S.[] § 6301(a)(1)(i), and Aggravated Indecent Assault of a Child, 18 Pa.C.S.[] § 3125(b)?Appellant's Brief at 7 (reordered for convenience).
In her first issue, Appellant avers that the evidence is insufficient to sustain her convictions because: (1) "the Commonwealth failed to prove that Appellant ever made any physical contact with [c]omplainant on the day in question[;]" and (2) "Appellant was excluded as [c]omplainant's assailant." Appellant's Brief at 15-16, 21-24.
We review challenges to the sufficiency of the evidence by considering 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." Commonwealth v. Melvin , 103 A.3d 1, 39 (Pa. Super. 2014). The trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. Id. at 40. Moreover, the trier of fact may base a conviction solely on circumstantial evidence. Id. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for that of the fact-finder. Id.
Section 6318 of the Crimes Code defines Unlawful Contact with a Minor, in relevant part, as follows:
§ 6318. Unlawful contact with minor
(a) Offense defined.--A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:18 Pa.C.S. § 6318(a)(1). The statute defines "Contacts" as:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).
Direct or indirect contact or communication by any means, method or device, including contact or communication in person or through an agent or agency, through any print medium, the mails, a common carrier or communication common carrier, any electronic communication system and any telecommunications, wire, computer or radio communications device or system.18 Pa.C.S. § 6318(c).
Section 6301 of the Crimes Code defines Corruption of Minors, in relevant part, as follows:
§ 6301. Corruption of minors18 Pa.C.S. § 6301.
(a) Offense defined.--
(1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.
(ii) Whoever, being of the age of 18 years and upwards, by any course of conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of an offense under Chapter 31 commits a felony of the third degree.
Actions that tend to corrupt the morals of a minor are those that "would offend the common sense of the community and the sense of decency, propriety and morality which most people entertain." Commonwealth v. Snyder , 870 A.2d 336, 351 (Pa. Super. 2005) (quotation marks and citation omitted). Thus, the scope of the corruption statute is extremely broad, encompassing conduct that far exceeds that which is proscribed by Chapter 31 of Title 18. 18 Pa.C.S. § 6301(a)(1)(i). The corruption statute also effectively provides a distinct offense and a separate penalty for sexual offenses committed against children. 18 Pa.C.S. § 6301(a)(1)(ii).
Section 3125 of the Crimes Code, one of the provisions in Chapter 31, defines Aggravated Indecent Assault of a Child, in relevant part, as follows:
§ 3125. Aggravated indecent assault
(a) Offenses defined.--Except as provided in sections 3121 (relating to rape), 3122.1 (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and 3124.1 (relating to sexual assault), a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if:
(1) the person does so without the complainant's consent;
(2) the person does so by forcible compulsion;
(3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(4) the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring;
(5) the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance;
(6) the complainant suffers from a mental disability which renders him or her incapable of consent;
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18 Pa.C.S. § 3125.
(b) Aggravated indecent assault of a child.--A person commits aggravated indecent assault of a child when the person violates subsection (a)(1), (2), (3), (4), (5) or (6) and the complainant is less than 13 years of age.
The Honorable Donna M. Woelpper, who presided over the jury trial, authored a comprehensive, thorough, and well-reasoned opinion, citing to the record and relevant case law in addressing Appellant's claims on appeal. After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's opinion. See Trial Court Opinion at 4-8 (concluding that there was sufficient evidence to support Appellant's convictions because the jury found credible the victim's testimony that Appellant touched the victim's vagina and caused injuries, which was corroborated by other testimony and physical evidence of a sexual assault; Appellant's arguments merely isolate certain portions of the victim's testimony while ignoring others).
Viewing the totality of the evidence in the light most favorable to the Commonwealth as the verdict winner, it is clear that the Commonwealth proved each element of the offenses. Appellant's sufficiency challenge, thus, fails.
Appellant next avers that the jury's verdict was against the weight of the evidence because: (1) "the Commonwealth failed to establish a time frame when Appellant had an opportunity to commit the alleged" crime; (2) the victim's mother "had a clear bias against Appellant[;]" and (3) "DNA evidence unequivocally excluded Appellant as [the victim's] assailant." Appellant's Brief at 15, 17-21.
When considering challenges to the weight of the evidence, we apply the following precepts:
The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none or some of the evidence and to determine the credibility of witnesses.
Appellate review of a weight claim is a review of the exercise of discretion, not the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the interest of justice.Commonwealth v. Talbert , 129 A.3d 536, 545-46 (Pa. Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016) (quotation marks and citations omitted).
Resolving contradictory testimony and questions of credibility are matters for the finder of fact. Commonwealth v. Hopkins , 747 A.2d 910, 917 (Pa. Super. 2000). Further, "[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 , supra at 546 (quotation marks and citation omitted). It is well-settled that we cannot substitute our judgment for that of the trier of fact. Id.
The trial court addressed Appellant's weight of the evidence challenge as follows:
On appeal [Appellant] asserts that the verdict is against the weight of the evidence because the DNA evidence excluded the [Appellant] as a suspect. As discussed at length above, the jury heard from numerous witnesses and was able to assess the credibility of the witnesses. Although [Appellant's] testimony contradicted the testimony of the complainant and the DNA did not match [Appellant], the jury had the full opportunity to evaluate the substance of the testimony to make the relevant factual determinations. Additionally, "where an appellant argues that physical evidence is inconsistent with a victim's testimony, but that evidence does not necessarily exculpate him [or her], the fact-finder may entertain a defendant's alternative theory and reasonably reject it. In such instances, we will not substitute the fact-finder's judgment with our own." [ Commonwealth v. Wall , 953 A.2d 581, 586 (Pa. Super.
2008)]; [ s ] ee also Commonwealth v. Burns , 988 A.2d 684, 695 (Pa. Super. 2009) (the exclusion of a defendant as a DNA contributor does not mandate a finding of not guilty). In Wall [,] the court rejected the defendant's weight of the evidence claim where DNA testing excluded Wall's sperm as a match. The court concluded [that] while DNA evidence may have been an alternative theory[,] it did not require the conclusion that Wall did not rape the victim.Trial Court Opinion at 8-9 (some citations and quotation marks omitted). We agree with the trial court's assessment.
Here, the jury heard testimony from the complainant who testified credibly that [Appellant] touched her "coo-coo" as well as the complainant's mother who testified that she saw blood between the complainant's legs after she urinated. The jury also heard testimony that the DNA evidence did not match that of the [Appellant]. However, the Commonwealth's laboratory expert presented a reasonable explanation that the DNA could have been removed when the complainant wiped herself after urinating. The jury had the full opportunity to hear [Appellant's] alternative theory and assess its credibility, and chose to reject it. Therefore, this court finds no merit in [Appellant's] challenge to the weight of the evidence presented at trial as it does not "shock one's sense of justice."
Appellant essentially asks us to reassess the credibility of the victim and reweigh the testimony and evidence presented at trial. Appellant's Brief at 17-21. We cannot and will not do so. The jury found credible the victim's testimony that Appellant touched the victim's vagina and caused injuries, which was corroborated by other testimony and physical evidence of a sexual assault. Thus, the verdict was not so contrary to the evidence as to shock the court's conscience, and the trial court properly denied Appellant's weight of the evidence claim.
The parties are instructed to attach a copy of the trial court's April 20, 2016 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/25/2017
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