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COMMONWEALTH PENNSYLVANIA v. GEORGE PEARSALL (11/18/87)

filed: November 18, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE PEARSALL, APPELLANT



Appeal from Judgment of Sentence entered September 29, 1986 in the Court of Common Pleas of Westmoreland County, Criminal Division, Nos. 1029, 1030 C of 1985.

COUNSEL

C. Mitchell Clausner, Jr., Mount Pleasant, for appellant.

Anthony G. Marsili, Assistant District Attorney, Greensburg, for Com.

Wieand, Kelly and Popovich, JJ. Wieand, J., concurs in the result.

Author: Kelly

[ 368 Pa. Super. Page 329]

Appellant, George Pearsall, appeals from judgment of sentence imposed following his conviction of rape, involuntary deviate sexual intercourse and corruption of minors. The charges arose from appellant's sexual abuse of the fifteen year old daughter of the woman with whom appellant lived. The child victim functions in the retarded range according to standard intelligence tests. The sexual assaults occurred at three different residences and occurred during a fifteen month period.

Appellant contends on appeal that: 1) the evidence was not sufficient to sustain the verdict; 2) the verdict is against the weight of the evidence; and 3) the trial court erred in permitting a licensed child psychologist to testify as an expert witness regarding child sexual abuse. We find no merit in appellant's contentions and accordingly affirm judgment of sentence.

I.

Appellant's first and second contentions are predicated upon the same argument and therefore will be treated together. Appellant contends, alternatively, that the evidence was not sufficient to sustain the verdict, or that the verdict was contrary to the weight of the evidence. Appellant's contentions are based on the argument that, in light of specific alleged inconsistencies in the child victim's testimony, her testimony as to each of the elements of the offenses of which appellant was convicted was not sufficient to establish the existence of the elements beyond a reasonable doubt. Essentially, appellant contends that the child victim was not a credible witness.

In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Commonwealth v. Reddix, 355 Pa. Super. 514, 523-24, 513 A.2d 1041, 1045 (1986); Commonwealth v. Duffy, 355 Pa. Super. 145, 149, 512 A.2d 1253,

[ 368 Pa. Super. Page 3301260]

-61 (1986). Where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part, or none of the evidence presented. Commonwealth v. Hanes, 361 Pa. Super. 357, 363 n. 6, 522 A.2d 622, 624 n. 6 (1987). Whether a new trial should be granted because the verdict is against the weight of the evidence is an issue addressed to the sound discretion of the trial court; a new trial should be granted only when the verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Stambaugh, 355 Pa. Super. 73, 512 A.2d 1216 (1986); Commonwealth v. Datesman, 343 Pa. Super. 176, 494 A.2d 413 (1985).

It is appellant's conduct, and not the verdict, which shocks the Court's sense of justice. Contrary to appellant's assertions, and despite the child victim's limited intellect, the record discloses no material inconsistencies or contradictions in the child victim's testimony. Appellant's assertions are simply not supported by the record; rather, the record clearly establishes that the child victim provided sufficient credible evidence to sustain ...


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