Com. v. W.H.M., Jr.

932 A.2d 155

COMMONWEALTH of Pennsylvania, Appellee v. W.H.M., JR., Appellant.

Superior Court of Pennsylvania.

Submitted May 7, 2007.

Filed August 22, 2007.

Michael J. Machen, Pittsburgh, for appellant.

Francesco L. Nepa, Assistant District Attorney, Pittsburgh and Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: TODD, DANIELS, and POPOVICH, JJ.

OPINION BY TODD, J.:

¶ 1 W.H.M., Jr. appeals the judgment of sentence entered June 9, 2006¹ by the Honorable Dominick Motto of the Lawrence County Court of Common Pleas following his conviction by a jury of rape by forcible compulsion,² rape of a person less than 13 years old,³ statutory sexual assault,⁴ aggravated indecent assault,⁵ incest,⁶ indecent assault⁷ and corruption of minors.⁸ Appellant also challenges the trial court's determination that he is a sexually violent predator ("SVP") pursuant to Megan's Law II.⁹ Upon review, we affirm.

¶ 2 The relevant facts and procedural history of this matter are as follows. Appellant was charged with the aforementioned offenses¹⁰ after his daughter reported to authorities that, between June 1995 and February 2000, beginning when she was nine-years-old, and continuing until she was thirteen-years-old, Appellant had sexually molested her on numerous occasions and in various ways.

¶ 3 Appellant proceeded to a jury trial, represented by Norman Levine, Esquire, at which Judge Motto presided. At trial, the victim testified against Appellant in great detail. Specifically, she testified that Appellant frequently compelled her to have sexual intercourse with him, sometimes while he handcuffed her to the bed, and would force her to perform oral sex. She further testified that Appellant instructed her not to tell anyone. She described that Appellant would often touch various parts of her body under her clothing when no other family members were around and would penetrate her vagina and touch her breasts with his fingers. She also testified that although she told her brothers and a friend, A.J.D., that Appellant was forcing her to have sexual relations with him, she did not report Appellant's actions to any adults because she was fearful that her family would split up as a result. In addition to the victim's testimony, the Commonwealth presented the testimony of several witnesses, including the victim's two brothers (Appellant's sons) and A.J.D., in support of its case against Appellant.

¶ 4 Appellant was convicted of the above charges on May 20, 2005, and on May 25, 2005, the trial court ordered that an SVP assessment be conducted by the Sexual Offenders Assessment Board pursuant to Megan's Law. Shortly thereafter, Appellant's trial counsel passed away. Represented by new counsel, Joseph J. Kearney, Esquire, Appellant's SVP hearing was conducted on April 4-5, and May 8, 2006. On June 6, 2006, the trial court determined that Appellant is an SVP, and, on June 9, 2006, sentenced him to an aggregate term of 8½ to 17 years in prison plus a consecutive sentence of 5 years probation. Following the denial of his post-sentence motions, Appellant timely appealed to this Court, presenting the following questions for our consideration:

1. Was the evidence produced at trial sufficient to convict the Appellant of all the offenses charged against him?

2. Was the verdict of guilty contrary to the weight of the evidence?

3. Was trial counsel ineffective in its representation of the Appellant at trial?

4. Was the sentence imposed by the trial court upon the Appellant excessive?

5. Did the trial court err in finding that the Appellant was [an SVP]?

(Appellant's Brief at 5.)

¶ 5 Appellant first argues, rather generally, that the "events which the victim testified about could not possibly have happened the way she testified" because "[c]learly, the victim said that at times when her father was having sexual contact with her, the victim's mother was home." (Appellant's Brief at 11.) He adds that because the victim's mother testified that there was usually someone at home during the occasions about which the victim testified that her father forced her to have sexual relations, the victim's testimony is, therefore, not credible. (Id.) On this basis, he challenges the sufficiency of the evidence against him.

¶ 6 When considering whether the evidence adduced at trial is sufficient to sustain a conviction, we employ the following standard of review:

When reviewing a sufficiency of the evidence claim, an appellate court, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as the verdict winner, must determine whether the evidence was sufficient to enable the fact finder to find that all of the elements of the offenses were established beyond a reasonable doubt.

Commonwealth v. Hawkins, 549 Pa. 352, 366, 701 A.2d 492, 499 (1997). Furthermore, "[t]he Commonwealth may sustain its burden by proving the crime's elements with evidence which is entirely circumstantial and the trier of fact, who determines credibility of witnesses and the weight to give the evidence produced, is free to believe all, part, or none of the evidence." Commonwealth v. Brown, 701 A.2d 252, 254 (Pa.Super.1997).

¶ 7 A person is guilty of rape if he "engages in sexual intercourse with a complainant . . . [b]y forcible compulsion." 18 Pa.C.S.A. § 3121(a)(1).

¶ 8 A person is guilty of rape of a person less than 13 years of age if he engages in sexual intercourse with a complainant who is less than 13 years of age. 18 Pa.C.S.A. § 3121(a)(6) (repealed 2002, now 18 Pa. C.S.A. § 3121(c).)

¶ 9 A person is guilty of statutory sexual assault if he engages in sexual intercourse with a complainant under the age of 16 years, is four or more years older than the complainant, and is not married to the complainant. 18 Pa.C.S.A. § 3122.1.

¶ 10 A person is guilty of aggravated indecent assault if he "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" if the person "does so by forcible compulsion." 18 Pa.C.S.A. § 3125(2).

¶ 11 A person is guilty of incest if "that person knowingly . . . has sexual intercourse with an ancestor or descendant." 18 Pa.C.S.A. § 4302.

¶ 12 A person is guilty of indecent assault if the person "has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid . . . for the purpose of arousing sexual desire in the person or the complainant . . . by forcible compulsion." 18 Pa.C.S.A. § 3126(a)(2).

¶ 13 A person is guilty of corruption of minors if he is over the age of 18 and, by any act, "corrupts or tends to corrupt the morals of any minor less than 18 years of age." 18 Pa.C.S.A. § 6301(a)(1).

¶ 14 In his well-reasoned opinion written in support of his denial of Appellant's post-sentence motion challenging, inter alia, the sufficiency of the evidence to support his convictions, Judge Motto carefully reviewed the evidence presented at trial by the Commonwealth and concluded that it was more than sufficient to sustain Appellant's various convictions. (Trial Court Opinion, 10/13/06, at 3-5.) We agree.

¶ 15 The victim's testimony alone at trial clearly established each element of the charges against Appellant. She testified that, beginning when she was nine-years-old, Appellant would handcuff her to a bed in the family home against her will and have sexual intercourse with her. She stated that Appellant would force her to engage in various sexual acts with him, including oral sex, by physical restraint and would touch her sexually against her will. Appellant essentially argues that the trial court erred in crediting the victim's testimony over Appellant's version of events. However, such arguments go to the weight, not sufficiency, of the evidence. Following our careful review of the record, we reject Appellant's challenge to the sufficiency of the evidence to support his convictions.

¶ 16 Appellant next argues that the guilty verdicts against him were contrary to the weight of the evidence, again challenging the victim's credibility. (Appellant's Brief at 12-14.) Our Supreme Court has held that, in reviewing a weight of the evidence claim, the verdict may be reversed only if it is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Simmons, 541 Pa. 211, 229, 662 A.2d 621, 630 (1995).

¶ 17 In addressing and rejecting Appellant's claim, the trial court concluded that the verdicts against him were fully supported by the evidence. The court reasoned:

The court here concludes that a jury, after considering and weighing all the evidence, was free to accept the testimony of the victim and the Commonwealth's evidence, and conclude that the victim was truthful, despite all of the facts that [Appellant] points to as reasons for not accepting her testimony. [Appellant] has shown no fact calling into question the victim's credibility that is so conclusive that the victim's testimony could not have been accepted by the jury as being nevertheless truthful. Thus, the credibility of the victim remained for the jury to evaluate.

(Trial Court Opinion, 10/13/06, at 7.) Upon careful review of the record, we find no basis to disturb the trial court's determination and we reject Appellant's challenge to the weight of the evidence.

¶ 18 Appellant next raises several ineffectiveness claims. Because Appellant was represented by new counsel on direct appeal, and the trial court conducted a full evidentiary hearing regarding Appellant's ineffectiveness claims, the trial court determined that under our decision in Commonwealth v. Watson, 835 A.2d 786 (Pa.Super.2003), Appellant was not required to wait until collateral review, pursuant to Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (...