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J-A09020-18 (Pa. Super. Ct. Sep. 6, 2018)

J-A09020-18 No. 1039 WDA 2017




Appeal from the Judgment of Sentence June 12, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0005482-2016 BEFORE: BOWES, J., DUBOW, J., and MURRAY, J. MEMORANDUM BY DUBOW, J.:

Appellant, Ryan Allen Petersen, appeals from the Judgment of Sentence entered by the Allegheny County Court of Common Pleas after his convictions by a jury of Indecent Assault of a person less than 13 years of age, Unlawful Contact with a Minor, Corruption of a Minor, and Endangering the Welfare of a Child. We affirm on the basis of the trial court's October 27, 2017 Opinion.

18 Pa.C.S. § 3126(a)(7); 18 Pa.C.S. § 6318(a)(1); 18 Pa.C.S. § 6301(a)(1)(ii); and 18 Pa.C.S. § 4304(a)(1), respectively.

In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the underlying facts. See Trial Court Opinion, filed 10/27/17, at 3-7. Briefly, Appellant lived with the child-victim and her mother in both Erie and Pittsburgh. Appellant was mother's fiancé. In December 2014, when she was five years old, the victim told her father that Appellant had touched her inappropriately over her clothes, "on her 'private part' that she uses to 'go to the bathroom' where she does 'number 1[.'"] Trial Court Opinion at 4-5.

The victim's father immediately reported the abuse to police, and the child-victim gave a recorded interview with the Child Advocacy Center at Children's Hospital of Pittsburgh. During this interview, the child-victim denied that any abuse had occurred.

At the time of the first interview, the child-victim lived with her mother. N.T. Trial, 3/20/17, at 59. The child-victim testified at trial that her mother told her to lie and tell "a different truth," and that she did not tell the truth about Appellant touching her because she was scared she would never see her mother again. --------

Fourteen months later in February 2016, the child-victim had a second recorded interview with the Child Advocacy Center in which she disclosed the details of Appellant's abuse. Police arrested Appellant and charged him with one count each of Indecent Assault of a person less than 13 years of age, Unlawful Contact with a Minor, Corruption of a Minor, and Endangering the Welfare of a Child.

Appellant filed several pre-trial motions and subpoenas to obtain records related to the child-victim from various child-services organizations, including Pittsburgh Action Against Rape ("PAAR"), a rape crisis center providing sexual assault counseling to victims. PAAR filed a Motion to Quash Appellant's Motion and subpoena, which the trial court granted.

Appellant requested a jury trial. At trial, the child-victim testified that this abuse occurred when she was two or three years old, and again when she was six years old. The child-victim testified that Appellant had abused her in Erie and Pittsburgh while her mother was at work or in the shower. In her forensic interview, the child-victim also testified that, during the abuse, Appellant instructed her to look up at butterflies and not to tell anyone. Trial Court Opinion at 3. The jury also heard testimony from Detective Sellers, Appellant, the victim's mother, the victim's father, and character witness Matthew Wakefield.

On March 21, 2017, the jury convicted Appellant of the above offenses.

On June 12, 2017, the trial court sentenced Appellant to an aggregate term of 11 to 22 months' incarceration, followed by 5 years' probation. Appellant filed a Post-Sentence Motion, which the trial court denied on June 19, 2017.

On July 11, 2017, Appellant filed a Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents three issues for our review:

[1.] Whether the evidence was insufficient as a matter of law as to the charge of unlawful contact with minor 18 Pa.C.S.[] § 6318(a)(1)?
[2.] Whether the trial court erred in not providing an in camera review of the PAAR materials after or before quashing both [Appellant's] Motion to Compel production of PA[A]R records and the subpoena to PAAR for records pertaining to the victim?

[3.] Whether the verdict was against the weight of the evidence as to all charges?

Appellant's Brief at 6.

Sufficiency of the Evidence

Appellant first challenges the sufficiency of the evidence supporting his conviction for Unlawful Contact with a Minor. Appellant's Brief at 16-22. Appellant specifically challenges the element of "contact" insofar as Appellant's statements to the victim "not to tell" anyone about the abuse "was not stated in furtherance of or directing the child during the alleged contact[,] which is a necessary component of the offense." Id. at 20. Appellant also claims that his statements instructing the victim to look at "butterflies" during the abuse did not constitute "substantive evidence." Id. at 17.

"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000). "We review claims regarding 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. Miller , 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and citations omitted). "Further, a conviction may be sustained wholly on circumstantial evidence, and 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. "In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder." Id.

A person is guilty of Unlawful Contact with a Minor if he or she is intentionally in contact with a minor for the purpose of engaging in a prohibited Chapter 31 sexual offense. 18 Pa.C.S. § 6318(a)(1). This Court has explained that this crime "is best understood as unlawful communication with a minor." Commonwealth v. Leatherby , 116 A.3d 73, 79 (Pa. Super. 2015) (citation and quotation marks omitted). The statutory definition of "Contacts" includes "a communicative message." Commonwealth v. Velez , 51 A.3d 260, 266 (Pa. Super. 2012). See also 18 Pa.C.S. § 6318(c).

The Honorable Jill E. Rangos, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing the record and relevant case law in addressing Appellant's sufficiency claim. See Trial Court Opinion at 7-8 (concluding that there is no merit to Appellant's sufficiency claim because of, inter alia, "the physical acts, the direct contact of Appellant with [the victim], as well as his statements to her in connection with the physical actions. When Appellant inappropriately touched the child, he told her not to tell. Furthermore, Appellant told the child to look up, saying to her 'that's where the butterflies are' so that he could distract her while he touched her inappropriately. These two statements constitute communication to [the victim] for the purpose of engaging in prohibited activity."). We, thus, affirm on the basis of the trial court's October 27, 2017 Opinion.

Sexual Assault Counselor Privilege

Appellant next argues that the trial court erred in not reviewing the child-victim's confidential records in camera and not providing him any records not covered by the sexual assault counselor privilege. Appellant's Brief at 22-28. In particular, Appellant complains that the trial court did not review these privileged materials and provide to him any "statements made by the victim that were material to the alleged incident[.]" Id. at 25. Appellant avers that this Court previously endorsed this procedure of in camera review of privileged documents under similar circumstances in Commonwealth v. Cody , 584 A.2d 992, 996 (Pa. Super. 1991).

We review a trial court's order quashing a defendant's pre-trial motion to compel discovery for an abuse of discretion. Commonwealth v. Fleming , 794 A.2d 385, 387 (Pa. Super. 2002) (citation omitted). "An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will." Id. (citation and internal quotation marks omitted).

The Sexual Assault Counselor Privilege, originally enacted in 1981 and amended in 1990 and 2000, provides: "No sexual assault counselor or an interpreter translating the communication between a sexual assault counselor and a victim may, without the written consent of the victim, disclose the victim's confidential oral or written communications to the counselor nor consent to be examined in any court or criminal proceeding." 42 Pa.C.S. § 5945.1. "The privilege created by 42 Pa.C.S. § 5945.1 is an absolute privilege, which is not overcome even by the constitutional rights of a criminal defendant." V.B.T. v. Family Services of Western Pennsylvania , 705 A.2d 1325, 1329 (Pa. Super. 1998) (citations and footnote omitted). See also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 501.07[6] (2018 ed. LexisNexis Matthew Bender).

After a thorough review of the certified record, the applicable law, and the comprehensive and well-reasoned Opinion of the trial court, we conclude that there is no merit to Appellant's claim. Accordingly, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion at 9-10 (holding that it properly denied Appellant's Motion to Compel Production of the confidential records because: (1) the records were privileged pursuant to 42 Pa.C.S. § 5945.1; (2) Appellant conceded that these records are protected by an "absolute" privilege; and (3) the privilege did "not bar effective cross-examination nor [did] it violate Appellant's due process rights.").

Weight of the Evidence

In his third issue on appeal, Appellant challenges the weight of the evidence because the child-victim "stated that she did not see or feel the alleged touching, she could not explain how she knew Appellant touched her, her memory is questionable due to the age when the acts took place and the lapse in time from the alleged incident to the complaint." Appellant's Brief at 28-34.

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 the witnesses." Commonwealth v. Talbert , 129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation 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). It is well-settled that we cannot substitute our judgment for that of the trier of fact. Talbert , supra at 546.

Moreover, appellate review of a weight claim is a review of the trial court's exercise of discretion in denying the weight challenge raised in the post-sentence motion; this court does not review the underlying question of whether the verdict is against the weight of the evidence. See id. at 545-46. "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 [or is not] against the weight of the evidence." Id. at 546. "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." Id.

Furthermore, "in 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." Id. (internal quotation marks and citation omitted). As our Supreme Court has made clear, reversal is only appropriate "where the facts and inferences disclose a palpable abuse of discretion[.]" Commonwealth v. Morales , 91 A.3d 80, 91 (Pa. 2014) (citations omitted, emphasis in original).

A defendant concedes that sufficient evidence supports the verdict in a true challenge weight of the evidence and instead questions which evidence the fact-finder should have believed. Commonwealth v. Thompson , 106 A.3d 742, 758 (Pa. Super. 2014). For that reason, the trial court need not view the evidence in the light most favorable to the verdict winner, and may instead use its discretion in concluding whether the verdict was against the weight of the evidence. Commonwealth v. Widmer , 744 A.2d 745, 751 n.3 (Pa. 2000).

After a thorough review of the certified record, the briefs of the parties, the applicable law, and the comprehensive and well-reasoned trial court Opinion, we conclude that there is no merit to Appellant's challenge to the weight of the evidence. The trial court carefully evaluated the record and the evidence before denying Appellant's weight claim. See Trial Court Opinion at 8-9.

Appellant essentially asks us to reassess the credibility of the child-victim and reweigh the testimony and evidence presented at trial. We cannot and will not do so. Our review of the record shows that the evidence is not tenuous, vague, or uncertain, and the verdict was not so contrary to the evidence as to shock the court's conscience.

We discern no abuse of discretion in the trial court's denial of Appellant's weight claim. Accordingly, Appellant is not entitled to relief.

The parties are instructed to attach a copy of the trial court's October 27, 2017 Opinion to all future filings.

Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/6/2018

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