Opinion
J-S16033-19 No. 1941 MDA 2018
05-20-2019
COMMONWEALTH OF PENNSYLVANIA v. JAMES MARK MANN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered July 25, 2018 in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001539-2017 BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
James Mark Mann ("Mann") appeals from the judgment of sentence entered following his conviction of rape of a child, aggravated indecent assault of a child less than 13 years old, and indecent assault of a child less than 13 years old. We affirm.
On January 2, 2017, Mr. C., the victim's father, received information that the victim, eleven-year-old K.C., was heard at school discussing her sexual activity with Mann. According to Mr. C., K.C. stated that
[Mann] had licked her and was rubbing [K.C.] down below[,] and that he was massaging it. And she said that [Mann] tried to put it inside of her[,] but it was too big and wouldn't fit.... And then [K.C.] said that he just kept rubbing it and was rubbing his penis on her vagina. And she says, when he was done, [she] thought he had peed on [her]. And [Mr.C.] said, well[,] what do you mean by that? And she says, stuff came out. And [Mr.C.] said, well,
what made stuff come out. And she went, he was doing this [(indicating masturbation)].Trial Court Opinion, 11/6/18, at 3 (citation omitted). K.C.'s mother later took K.C. to the hospital for an examination.
A jury subsequently convicted Mann of the above-described charges. The trial court sentenced Mann, on July 25, 2018, to a prison term of 240-480 months for his conviction of rape of a child less than 13 years of age, a consecutive prison term of 60-120 months for his conviction of aggravated indecent assault, and a consecutive prison term of 9-60 months for his conviction of indecent assault of a child less than 13 years of age. Mann filed a Post-Sentence Motion, which, after a hearing, the trial court denied. Thereafter, Mann filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Mann presents the following claims for our review:
I. Whether the trial court erred in denying [] Mann's [P]ost-[S]entence [M]otion for judgment of acquittal by finding that the Commonwealth had established beyond a reasonable doubt each of the elements of rape of a child, aggravated indecent assault and indecent assault[,] when the numerous and significant discrepancies in the testimony of the Commonwealth's witnesses made their testimony so unreliable and inclusive that the jury could not reasonably have concluded that the Commonwealth had proven all of the elements of the offenses beyond a reasonable doubt[?]
II. Whether the trial court abused its discretion in denying ... Mann's [P]ost-[S]entence [M]otion for a new trial by finding that the conviction was not against the weight of the evidence[,] when that evidence—primarily eyewitness testimony—was so inconsistent that the jury could not
reasonably have concluded that the Commonwealth had proven his guilt beyond a reasonable doubt[?]See Brief for Appellant at 16-17.
III. Whether it was an abuse of discretion in not allowing [the] cross[-]examination of a witness about prior sexual conduct when evidence of that conduct had been entered into evidence by the Commonwealth in its case[-]in[-]chief?
Mann first challenges the sufficiency of the evidence underlying his convictions. Id. at 23. Mann acknowledges that the Commonwealth presented four witnesses: Mr. C.; Rebecca Voss ("Voss"), the forensic interviewer; K.C.; and Pennsylvania State Police Trooper Jeffrey A. Baney ("Trooper Baney"). Id. at 24. Mann posits that "[g]iven the highly inconsistent testimony of the alleged victim[,] K.C., the evidence presented at trial was not sufficient to sustain his convictions." Id. Mann contends that there were "numerous and significant discrepancies" in the testimony, and the Commonwealth's evidence was so "weak and inconclusive that no reasonable facts can be drawn from their testimony." Id.
As this Court has explained,
[a] claim challenging the sufficiency of the evidence presents a question of law. We must determine whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. We must view evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict.Commonwealth v. McFadden ,156 A.3d 299, 303 (Pa. Super. 2017) (citation omitted). In order to develop a claim challenging the sufficiency of the evidence properly, an appellant must specifically discuss the elements of the crimes, "and identify those which he alleges the Commonwealth failed to prove." Commonwealth v. Samuel ,102 A.3d 1001, 1005 (Pa. Super. 2014).
In his appellate brief, Mann fails to develop his challenge to the sufficiency of the evidence by identifying the elements of the subject crimes not supported by sufficient evidence. Mann further fails to identify any alleged discrepancies in the testimony of the witnesses. Thus, we could conclude that Mann has waived any review of this issue. See id. (concluding that the appellant waived his sufficiency claim because he did not specify the elements of the crimes that the Commonwealth failed to prove); see also Commonwealth v. Ellis ,700 A.2d 948, 957 (Pa. Super. 1997) (concluding that an issue is waived when the appellant fails "to develop any argument or cite any authority in support of his vague contention.").
Nevertheless, we observe that as the ultimate finder of fact, the jury was free to believe some, all, or none of the Commonwealth's evidence, and to resolve any inconsistencies or discrepancies in the testimony in either party's favor. See generally Commonwealth v. Ramtahal ,33 A.3d 602, 607 (Pa. 2011) (explaining that "[t]he Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence, and the jury, which passes upon the weight and credibility of each witness's testimony, is free to believe all, part, or none of the evidence"). Thus, Mann's claim, based upon inconsistencies in the witnesses' testimony, does not afford him relief.
In his second claim, Mann challenges the verdict as against the weight of the evidence. See Brief for Appellant at 25. Mann claims that the testimony of Mr. C., Voss and K.C. offered different versions of the events. Id. at 26. According to Mann, "[t]he discrepancies in [K.C.'s] testimony were so numerous and so significant that it would be completely unreasonable for any jury to believe it." Id. Mann contends that it would "shock the [c]ourt's sense of justice that the jury apparently did believe the testimony and did convict Mann on all three counts." Id.
As our Supreme Court has explained,
[t]he decision to grant or deny a motion for a new trial based upon a claim that the verdict is against the weight of the evidence is within the sound discretion of the trial court. Thus, the function of an appellate court on appeal is to review the trial court's exercise of discretion based upon a review of the record, rather than to consider de novo the underlying question of the weight of the evidence. An appellate court may not overturn the trial court's decision unless the trial court palpably abused its discretion in ruling on the weight claim. Further, in reviewing a challenge to the weight of the evidence, a verdict will be overturned only if it is so contrary to the evidence as to shock one's sense of justice.Commonwealth v. Cash ,137 A.3d 1262, 1270 (Pa. 2016) (internal citations and quotation marks omitted).
The trial court considered the weight-of-the-evidence claim raised in Mann's Post-Sentence Motion as follows:
Contrary to [Mann's] assertions, [the court does] not find the lack of medical evidence or other physical evidence to constitute the
type of facts that are "so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice." See [ Commonwealth v.] Stokes ,78 A.3d [644, 650 (Pa. Super. 2013) (citation omitted).] The medical examination revealed a lack of evidence of sexual activity; it did not conclusively establish that a sexual assault did not happen. Moreover, notwithstanding the inconsistencies and absence of physical evidence, the jury found K.C.'s testimony to be credible. As a matter of law, the jury is entitled "to believe all, part, or none of the evidence, and the credibility determinations rest solely within the purview of the fact-finder." Commonwealth v. Flor ,998 A.2d 606, 626 (Pa. 2010). The jury's credibility determination here does not shock [the trial court's] sense of justice, and we therefore discern no merit to [Mann's] weight of the evidence argument.Trial Court Opinion, 11/6/18, at 12. We agree, and discern no abuse of discretion by the trial court in rejecting Mann's claim. See id. Accordingly, we cannot grant Mann relief on this issue. See id.
Finally, Mann claims that the trial court improperly precluded the cross-examination of K.C. regarding her prior sexual conduct with a cousin. See Brief for Appellant at 27. Mann distinguishes this Court's holding in Commonwealth v. Appenzeller ,565 A.2d 170, 171 (Pa. Super. 1989), which held that evidence of a prior sexual assault of the victim, by another man, is not admissible to show knowledge by the child victim of sexual techniques or nomenclature. Brief for Appellant at 27. Mann argues that unlike in Appenzeller ,the proffered testimony was relevant to his defense, which was based on a challenge to K.C.'s credibility. Id. According to Mann, K.C. has offered three versions of the assaults, and claimed her memory was better one year later. Id. Mann states that K.C.'s grandmother, Felicia Mann, testified that K.C. has a reputation for untruthfulness in the community. Id. at 28. Thus, Mann posits, testimony regarding where K.C. could have learned of sexual acts is part of the defense of the case, and the preclusion of this evidence violated his rights under the Pennsylvania and U.S. Constitutions. Id. at 28-29.
In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the appropriate law, addressed Mann's claim, and concluded that it lacks merit. See Trial Court Opinion, 12/18/18, at 3-7. In particular, we note the trial court's statement that its "evidentiary ruling, predicated on a finding that the limited probative value of the inquiry was far outweighed by the likelihood of unfair prejudice, was not an abuse of discretion." Id. at 7. We agree with the sound reasoning of the trial court, as set forth in its Opinion, and affirm on this basis as to Mann's third claim. See id. at 3-7.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/20/2019
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