Appeal from the Judgment of Sentence entered June 9, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 85042457 and 84122469.
William J. Faust, Philadelphia, for appellant.
Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellee.
Cirillo, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Beck, Kelly, Popovich and Melinson, JJ. Cavanaugh, Rowley, Wieand, Beck and Popovich, JJ., concur in the result.
[ 380 Pa. Super. Page 560]
The Commonwealth petitioned for and was granted reargument following reversal of appellant's child sexual abuse convictions and remand for a new trial by a divided panel of this Court. Following reargument en banc, we affirm judgment of sentence imposed by the trial court.
[ 380 Pa. Super. Page 561]
FACTS AND PROCEDURAL HISTORY
Appellant, Gregory Willis, was an elementary school gym teacher at a public school in Philadelphia. On November 21, 1984, appellant asked an eight year old female student to come into his office. He then proceeded to fondle her breasts and her bottom. He also requested her to perform fellatio and attempted to force her to do so. On December 3, 1984, appellant called a five year old female student into his office and, after promising the girl candy, placed his penis in her mouth.
On December 6, 1984, appellant was arrested and charged with involuntary deviate sexual intercourse, corruption of a minor, indecent assault and simple assault relating to his sexual assault of the five year old child victim. On December 12, 1984, appellant was bound over for trial on those charges following a preliminary hearing.
On December 14, 1984, appellant was charged with attempt and solicitation to commit involuntary deviate sexual intercourse, corruption of a minor, and indecent assault relating to his sexual assault upon the eight year old victim. The second set of charges were filed after the eight year old's grandmother had seen a television report concerning the first set of charges, and had questioned her granddaughter regarding a statement her granddaughter had made a couple of weeks earlier, i.e. that her gym teacher liked her.
On December 19, 1984, the eight year old victim was interviewed privately by Assistant District Attorney John Delaney. She told him that appellant fondled her rear end, forced her head into his crotch, and told her in vulgar terms to perform fellatio. At the preliminary hearing that same day, she indicated that appellant had fondled her rear end but responded negatively to questions as to whether anything else had happened. The trial court concluded that the Commonwealth had not established a prima facie case on any of the charges; and so, the charges were dismissed and appellant was discharged as to those offenses.
[ 380 Pa. Super. Page 562]
After the hearing, Assistant District Attorney Delaney asked the eight year old victim why she had not told the judge what she had told him earlier that day about the other things appellant had done. The child victim responded that she did not tell the judge about the other things because she was afraid appellant, who had been in the room during the hearing standing less than five feet from her, would hurt her.
On January 22, 1985, the second set of charges were refiled against appellant. At the second preliminary hearing, the eight year old victim testified consistent with her prior statements to Assistant District Attorney Delaney regarding the acts she had not reported in the first hearing. Appellant was bound over for trial on all of the charges. Timely motions to extend the time in which to bring appellant to trial, as to both sets of charges, were granted due to judicial delay caused by crowded dockets.
On November 1, 1985, appellant was brought to trial on the second set of charges relating to his sexual abuse of the eight year old victim. He waived his right to a trial by jury and proceeded to a bench trial. Assistant District Attorney Hyman replaced Assistant District Attorney Delaney as prosecutor and presented the evidence and argument to the court. Assistant District Attorney Delaney testified briefly for the prosecution. Appellant was found guilty on all counts.
On March 11, 1986, following a comprehensive colloquy, appellant entered a guilty plea to the charge of involuntary deviate sexual intercourse and corruption of minors relating to his sexual assault upon the five year old victim. The indecent assault and simple assault charges were nol prossed.
On that date, the post-verdict motions relating to appellant's conviction of the offenses arising from his sexual assault on the eight year old victim were argued and denied. The trial court then proceeded to sentence appellant on both sets of charges. See Pa.R.Crim.P. 1402(b).
[ 380 Pa. Super. Page 563]
Counsel for appellant indicated that both he and appellant had reviewed the pre-sentence report and that they had no corrections to offer. Counsel then offered extended argument as to why the court should sentence appellant outside and below the recommended mitigated minimum range of the applicable sentencing guidelines. Counsel noted the availability of treatment programs and emphasized appellant's admission of his need for treatment. Numerous character witnesses were presented on appellant's behalf. Appellant then made a lengthy statement on his own behalf, apologizing for his conduct, assuring the court it would not be repeated, listing his commitments to his church and his community, and asking for mercy.
The Commonwealth presented evidence from the eight year old victim's grandmother and the mother and father of the five year old victim as to the impact of the crimes on the two victims. The Commonwealth argued that a lengthy sentence was appropriate in light of the age of the victims and appellant's violation of his position of trust as a teacher. The prosecutor also noted appellant's job transfer after similar sexual abuse allegations were raised previously. The trial court noted that evidence had been produced earlier that the charges were not prosecuted because the children were considered too traumatized to testify against appellant.
Following a lengthy statement of the reasons for the sentence imposed, outlining the various factors considered, the trial court imposed an aggregate term of eleven (11) to twenty-two (22) years imprisonment. After review of a timely motion to reconsider sentence and reception of additional evidence and argument, however, the trial court vacated the prior sentence and imposed a new sentence of five (5) to ten (10) years imprisonment on the involuntary deviate sexual intercourse conviction relating to the five year old victim, and a concurrent sentence of four (4) to eight (8) years imprisonment on the attempted involuntary deviate sexual intercourse conviction relating to the eight
[ 380 Pa. Super. Page 564]
year old victim. No subsequent motion to reconsider sentence was filed. Timely notice of appeal was filed.
Appellant presented the following contentions on appeal:
1. The trial court erred when appellant's conviction was against the weight of the evidence because complainant's testimony was so inconsistent and contradictory as to be insufficient to support a finding of guilt.
2. Appellant's conviction violates appellant's constitutional rights to due process of law, because the bills of information were impermissibly vague as to the date of the offense and the evidence failed to establish the date of the alleged criminal acts with the required reasonable specificity.
3. The trial court erred by allowing John Delaney, Assistant District Attorney to testify, because his testimony was hearsay.
4. The court erred by sentencing appellant to unduly harsh sentence and giving inadequate reasons for imposition of sentence in aggravated range.
(Appellant's Brief at 9, 10, 13 and 14).*fn1
This appeal was originally heard by a three judge panel of this Court. The panel majority reversed appellant's convictions relating to the sexual assault upon the eight year old victim and vacated the judgment of sentence imposed, based upon a finding that Assistant District Attorney Delaney was incompetent to testify because of his prior participation in the prosecution of the charges against appellant at the preliminary hearing stage. One member of the panel filed a dissenting opinion in which he opined that: the verdict was not against the weight of the evidence; appellant's due process rights were not violated; appellant's hearsay objection
[ 380 Pa. Super. Page 565]
to Assistant District Attorney Delaney's competency testimony was without merit; appellant's challenge to the discretionary aspects of sentence was not properly preserved; the majority erred in raising the issue of Assistant District Attorney Delaney's competency to testify sua sponte; and Assistant District Attorney Delaney was not incompetent to testify at trial based upon his prior participation in the case as the prosecutor assigned at the preliminary hearing stage.
The Commonwealth filed a timely motion for reargument en banc in which it contended: 1) the dissenting member of the panel was correct in opining that the majority had improperly raised, sua sponte, the issue of Assistant District Attorney Delaney's competency to testify, and had incorrectly resolved the issue; and 2) in reversing the convictions relating to the assault upon the eight year old child victim, the panel majority incorrectly vacated sentence upon the conviction which arose from appellant's guilty plea relating to the assault upon the five year old victim as it had not been challenged on appeal.*fn2 This Court granted the Commonwealth's motion for reargument en banc.
We have had the benefit of additional briefs and oral arguments. Upon careful review of the record, the various briefs, the opinion of the trial court, the opinions of our learned colleagues, and the relevant caselaw and authorities, we conclude that appellant's contentions on appeal are without merit. Accordingly, we affirm judgment of sentence imposed by the trial court. Our reasoning follows.
I. WEIGHT OF THE EVIDENCE
Appellant contends that the testimony of the eight year old child victim was so inconsistent as to render the verdict of the trial judge, who presided in the bench trial, contrary
[ 380 Pa. Super. Page 566]
to the weight of the evidence. Appellant cites in support of this contention Commonwealth v. Bennett, 224 Pa. Super. 238, 303 A.2d 220 (1973). We cannot agree.
The finder of fact has the prerogative to determine credibility, to resolve conflicts in the evidence, to make reasonable inferences from the evidence, to believe all, part, or none of the evidence presented, and to determine the weight to be assigned to the evidence. See generally Commonwealth v. Pearsall, 368 Pa. Super. 327, 329-30, 534 A.2d 106, 108 (1987) (citing cases). 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. An appellate court may only reverse a trial court's denial of a motion for a new trial on such grounds when the verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Pearsall, supra; Commonwealth v. Stambaugh, 355 Pa. Super. 73, 512 A.2d 1216 (1986).
In Commonwealth v. Bennett, supra, this Court reversed a defendant's conviction and directed his discharge where the Commonwealth's sole witness to the offense of receiving stolen property was the individual who, according to his own admission, had stolen the property. This Court found that a verdict based upon the thief's testimony could not be sustained in light of the series of "wholly different, inconsistent, and conflicting versions" of the relevant facts which the thief had given. The panel majority reasoned that under those extreme circumstances selection of one of the thief's versions of the facts over the others would be a matter of pure speculation by the jury. 224 Pa. Superior Ct. at 239-240, 303 A.2d at 220-21.
Here, on the other hand, the appellant seeks a new trial based primarily upon the fact that the child victim's testimony at trial was inconsistent with her testimony at the first preliminary hearing. At trial, the child victim acknowledged the prior inconsistent statements made at the first preliminary hearing and explained that she had given the inconsistent testimony because she was afraid of appellant,
[ 380 Pa. Super. Page 567]
who had been in the room standing about five feet from her when she testified at the preliminary hearing. This explanation was supported by corroborative evidence presented by Assistant District Attorney Delaney regarding the circumstances of her prior inconsistent statements and regarding prior consistent statements made by the child victim immediately before and immediately after the first preliminary hearing. The trial court as finder of fact was free to accept the proffered explanation of the inconsistency. Cf. Commonwealth v. McMillan, 376 Pa. Super. 25, 39, 545 A.2d 301, 308 (1988) (the jury was free to accept the victim's explanation for 3 his inconsistent statement to the police).
Moreover, upon careful review of the child victim's testimony, we find no basis to award a new trial. The inconsistencies to which appellant has directed our attention, individually and collectively, fail to rise to a level which would render the verdict a matter of "pure speculation" or which would "shock our sense of justice." Rather, the record reveals that in addition to the prior inconsistent statements which were explained, able counsel led the youthful child victim into only minor inconsistencies regarding peripheral details relating to the incident. The child victim remained resolute regarding the core details of the incident despite close cross-examination and the rather sophisticated language used by counsel in questioning the witness.*fn3 This minimally effective impeachment did not undermine the verdict so as to require this Court to reverse the trial court's denial of the motion for a new trial.
[ 380 Pa. Super. Page 568]
Rather, the trial court's conclusion that the verdict was not contrary to the evidence is fully sustained by the record.
II. DUE PROCESS/DATE OF THE ...