Com. v. Owens

• Decision Date: 13 October 1994
• Citation: 649 A.2d 129,437 Pa.Super. 64
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert C. OWENS, Appellant.
• Court: Pennsylvania Superior Court

Page 129

649 A.2d 129

437 Pa.Super. 64

COMMONWEALTH of Pennsylvania, Appellee, v. Robert C. OWENS, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 22, 1994.

Filed Oct. 13, 1994.

David Crowley, Bellefonte, for appellant.

Mark S. Smith, Asst. Dist. Atty., Bellefonte, for Com., appellee.

Before ROWLEY, President Judge, and HUDOCK and SAYLOR, JJ.

HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed after Appellant was convicted in a jury trial of two counts of indecent assault. ¹ Timely filed post-trial motions were denied and Appellant was sentenced to concurrent terms of not less than six months nor more than one year for the first count, and not less than one year nor more than two years for the second count of indecent assault. This direct appeal followed. We affirm the Appellant's convictions, but vacate the judgment of sentence on Count I, and affirm the judgment of sentence of Count II.

The record sets forth the following relevant facts: On January 29, 1991, Trooper Robert Snook of the Pennsylvania State Police filed an affidavit of probable cause alleging that on several occasions, between October and November of 1990, Appellant indecently assaulted his thirteen-year-old paper boy. Based on Trooper Snook's affidavit, Magistrate Robert A. Shoff found sufficient probable cause to issue a warrant for Appellant's arrest. Following a preliminary hearing on February 27, 1991, before Magistrate Ronald J. Horner, Appellant was held for trial on two counts of indecent assault and released on a $2,500 bond. The Commonwealth filed a criminal information on March 21, 1991, charging that "between September and November 1990", Appellant had indecent contact with the victim who was under fourteen years of age. The information listed two separate counts of indecent assault and cited three subsections of the indecent assault statute, 18 Pa.C.S. Section 3126, as alternative bases of liability. Count I alleged that 1) the victim did not consent to such indecent contact; ² and, 2) Appellant knew that the victim suffered from a mental disease or defect which rendered him incapable of appraising the nature of his conduct. ³ Count II alleged that Appellant had indecent contact with the victim who was under fourteen years of age. ⁴ On May 5, 1992, a jury convicted Appellant of both counts of indecent assault. Appellant filed a post-trial motion in arrest of judgment, as well as a supplemental motion for a new trial, arguing that he found new evidence that Magistrate Robert A. Shoff had a personal family relationship with the victim, thus warranting a new trial. An evidentiary hearing was held on March 23, 1993 to determine if Appellant was entitled to a new trial based on the claim that Magistrate Shoff's son, Scott Shoff, lived with the victim's mother, Joanne May Ertwine. On July 1, 1993, the trial court denied Appellant's post-trial motion and motion for a new trial.

Appellant asserts the following issues for our review:

I. WAS THE VERDICT AGAINST THE EVIDENCE AND THE WEIGHT OF THE EVIDENCE?

II. DID THE FAMILY AND PERSONAL SITUATION OF MAGISTRATE SHOFF, VIS-A-VIS THE ALLEGED VICTIM AND HIS MOTHER, INVOLVE A VIOLATION OF APPELLANT'S RIGHTS TO HAVE THE EXISTENCE OF PROBABLE CAUSE BE DECIDED BY A NEUTRAL AND DETACHED MAGISTRATE?

III. DID THE TRIAL COURT ERR IN LIMITING APPELLANT TO THREE (3) REPUTATION WITNESSES?

IV. DID THE TRIAL COURT ERR IN CHARGING THE JURY, AS REQUESTED BY THE COMMONWEALTH, THAT CONSENT IS NO DEFENSE TO A SEXUAL ASSAULT?

V. WAS THE IMPOSITION OF TWO (2) CONCURRENT SENTENCES FOR CONVICTIONS OF DIFFERENT SUBSECTIONS OF THE INDECENT ASSAULT STATUTE AN ILLEGAL SENTENCE?

Appellant first alleges that the verdict was against the weight and the sufficiency of the evidence. Although Appellant addresses this question as one issue for review, Appellant has raised two separate issues. We will first address Appellant's claim that there was insufficient evidence to sustain the guilty verdict.

In reviewing a challenge to the sufficiency of the evidence, we must determine "whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth [as verdict-winner], the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. den., 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). The facts and circumstances established by the Commonwealth "need not be absolutely incompatible with defendant's innocence, but the question of any doubt is for the jury unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.' " Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) (quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943)).

Appellant claims that the Commonwealth failed to produce sufficient evidence to prove beyond a reasonable doubt that he indecently assaulted the purported victim. Appellant claims that the victim's testimony is unreliable due to the fact that he suffers from a brain stem injury and exhibits apparent learning difficulties. Appellant contends that the victim was "quite confused" when subject to direct examination. Appellant's Brief, at p. 16. Appellant implies that the victim may have confused him with another criminal defendant, Mr. Thomas Schnars. The record reveals that on December 17, 1990, Mr. Schnars entered a plea of guilty and was sentenced to jail for involuntary deviate sexual intercourse involving the same young boy who is the alleged victim in this case. Furthermore, Appellant argues that the direct testimony of the victim's mother, Joanne May Ertwine, and Trooper Robert Snook reveals that the victim had difficulty clearly describing the alleged acts of indecent contact which led to Appellant's arrest and subsequent conviction. Appellant argues that even if the victim was found competent to testify by the trial judge, the factfinder is not free to believe all of his allegations and accusations. He submits that "competence to testify does not end all inquiry ..." Appellant's Brief, at p. 20.

Appellant is correct in his assertion that a witness' competency to testify is a separate issue from the witness' credibility. "[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence." Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). Contrary to Appellant's assertion, once a witness is adjudicated competent to testify, the factfinder is free to believe all of his testimony, despite the fact that the witness has difficulty communicating or suffers from a learning disability.

Upon review, the record reveals sufficient evidence to sustain Appellant's conviction of indecent assault. The victim testified that on several occasions Appellant touched and rubbed his "private area" without permission. N.T., 5/5/92, at p. 7. Contrary to Appellant's belief that the victim falsely accused him for acts that Thomas Schnars committed, he made it explicitly clear that he was not confusing the two men and the two criminal acts. The record reveals the following exchange during redirect examination of the victim.

THE COURT: ... as you remember what happened with Mr. [Schnars] and you have testified to what happened with [Appellant] you're sure that there were different things that happened, some things by Mr. [Schnars] and some by [Appellant]?

[VICTIM]: Yeah.

THE COURT: Now think very carefully.

[VICTIM]: They did two different things. He did a little different. He didn't do the same things the other one did.

N.T., 5/5/92, at p. 24.

The record reflects that the victim and Appellant gave conflicting versions of what occurred when the victim delivered the newspaper to Appellant's house. The victim accused Appellant of making indecent contact with his genitals, while Appellant denied any criminal acts. The jury was free to believe either witness' account of the story. On appeal we may not disturb it's determination as to credibility. Commonwealth v. Payton, 258 Pa.Super. 140, 145-47, 392 A.2d 723, 726 (1978). Furthermore, in a prosecution for sex offenses, a guilty verdict may rest on the uncorroborated testimony of the victim. 18 Pa.C.S. § 3106; Commonwealth v. Cody, 401 Pa.Super. 85, 89, 584 A.2d 992, 993 (1991), alloc. den., 527 Pa. 622, 592 A.2d 42.

We next examine Appellant's claim that the verdict was against the weight of the evidence. A motion for a new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict. It contends, nevertheless, that the verdict is against the weight of the evidence. Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). The trial judge has discretion to grant a new trial on this basis, and his decision will not be reversed on appeal "unless there has been an abuse of discretion." Id. A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Commonwealth v. Murray, 408 Pa.Super. 435, 436-37, 597 A.2d 111, 112 (1991), alloc. den., 529 Pa. 668, 605 A.2d 333 (1992).

Applying...