No. 3152 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, Nos. 2623, 2624 of 1980.
Stuart Wilder, Assistant Public Defender, Doylestown, for appellant.
William F. Merz, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Rowley, Wieand and Beck, JJ.
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At or about 5:15 p.m. on Sunday, August 17, 1980, Robert Taylor entered his automobile in Philadelphia and drove to Ocean City, New Jersey to visit a friend. His thirteen year old daughter, Joyce, and her twelve year old friend, Carlin Pedano, went with him. Unable to find Taylor's friend, the trio remained on the boardwalk until approximately 10:15 p.m., when they started home. Taylor drank several cans of beer in the car, became tired and lost his way. He crossed the Burlington-Bristol Bridge into Bucks County. He stopped once for beer. He was tired and felt he would fall asleep. Twice he narrowly avoided accidents. Therefore, he rented a motel room where he intended to spend the night. Within the confines of the motel room, according to the Commonwealth's evidence, he made sexual advances to the young girls. He allegedly choked them, threw them upon the bed, grabbed at their private parts and wrapped his legs around one and then the other. In pushing Carlin Pedano to the bed, he allegedly caused her to fall and strike her head. She sustained a swollen lip. He exhibited his genitalia and removed from his pocket a pack of condoms, telling his daughter that he could prevent her pregnancy by using one. Taylor ultimately fell asleep on the bed. The following morning, he took the girls home, threatening to
[ 324 Pa. Super. Page 424]
kill them if they told anyone about the events which had occurred in the motel room on the night before.
A jury acquitted Taylor of simple and indecent assault, indecent exposure, open lewdness and false imprisonment. However, Taylor was found guilty of endangering the welfare of children in violation of Section 4304 of the Crimes Code, 18 Pa.C.S. § 4304. Post-trial motions were denied, and a sentence of probation was imposed. Taylor appealed.
He argues that the evidence was insufficient to sustain the conviction. In his brief, however, he states the issue to be whether the verdict was against the weight of the evidence. These are discrete inquiries. The proper procedure to challenge the sufficiency of the evidence is by a post-verdict motion in arrest of judgment. Commonwealth v. Holmes, 315 Pa. Super. 256, 260, 461 A.2d 1268, 1270 (1983). In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); Commonwealth v. Shaver, 501 Pa. 167, 169, 460 A.2d 742, 743 (1983); Commonwealth v. Sample, 321 Pa. Super. 457, 461-462, 468 A.2d 799, 801 (1983); Commonwealth v. Curry, 318 Pa. Super. 490, 494, 465 A.2d 660, 662 (1983). The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence. Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983); Commonwealth v. Nelson, 320 Pa. Super. 488, 491, 467 A.2d 638, 640 (1983); Commonwealth v. Ruffin, 317 Pa. Super. 126, 132, 463 A.2d 1117, 1120 (1983); Commonwealth v. Owens, 315 Pa. Super. 400, 404, 462 A.2d 255, 257 (1983); Commonwealth v. Nunez, 312 Pa. Super. 584, 586, 459 A.2d 376, 376-377 (1983).
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A motion for 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 but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion. Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972); Commonwealth v. Ruffin, supra, 317 Pa. Superior Ct. at 133, 463 A.2d at 1120; Commonwealth v. Brown, 314 Pa. Super. 311, 322, 460 A.2d 1155, 1161 (1983); Commonwealth v. Starks, 298 Pa. Super. 213, 216, 444 A.2d 736, 738 (1982). The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. Commonwealth v. Sample, supra, 321 Pa. Superior Ct. at 465, 468 A.2d at 802; Commonwealth v. Barnhart, 290 Pa. Super. 182, 185, 434 A.2d 191, 192 (1981). See: Commonwealth v. Jensch, 322 Pa. Super. 304, 315, 469 A.2d 632, 638 (1983).
Although appellant confuses the separate inquiries, the record is clear that he is entitled to relief on neither. The crime of endangering children derives from § 230.4 of the Model Penal Code ...