February 20, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
CHRISTOPHER ROBERT LOCKE, Appellant
Appeal from the Judgment of Sentence November 26, 2012 in the Court of Common Pleas of Franklin County Criminal Division at No.: CP-28-CR-0001367-2011
BEFORE: DONOHUE, J., OTT, J., and PLATT, J. [*]
Appellant, Christopher Robert Locke, appeals from the judgment of sentence imposed after his guilty plea to statutory sexual assault and unlawful contact with a minor. Specifically, he challenges the weight of the evidence for the determination that he is a sexually violent predator (SVP). He argues there was no evidence that he targeted young girls. He also objects to the finding of force. We affirm.
On May 30, 2012, Appellant entered a counseled, negotiated guilty plea to statutory sexual assault, and unlawful contact with a minor, in exchange for the nolle prossing of rape and related charges and an agreed aggregate sentence of not less than nine nor more than twenty-three months' incarceration.
The charges arose from an incident on April 15, 2011 involving Appellant's visit to the Waynesboro house of the victim, S.S., then a 13 year old girl (born July 22, 1997), when her mother was not home, and having sexual intercourse with her, after they met through a mutual friend. The victim's mother, on returning home, found the pair in a locked bedroom inside a locked house. The house was not typically locked. Even though Appellant was twenty-one years of age (born December 11, 1989), he told the victim (and her mother) that he was seventeen. Mother called the police.
Police arranged for a hospital examination by a SANE (Sexual Assault Nurse Examiner) nurse. In her first interview with the police, the victim denied intercourse, claiming that when she asked Appellant to stop, he stopped. (See Affidavit of Probable Cause, 5/05/11, at 1, 2). However, in July of 2011, after receiving information from the State Crime Laboratory that male sperm was found both in the victim's underwear, and the vaginal swab taken during the rape examination, Waynesboro police scheduled a re- interview. (See Supplement to Waynesboro Police Incident Report, 6/24/11, at page 7 of 12).
On July 8, 2011, police interviewed S.S. at the Waynesboro police station. This time her mother agreed to wait in the hallway. (See Supplement to Waynesboro Police Incident Report, [dated 7/08/11;] filed 7/09/11, at page 7 of 12). When the police presented the victim with the lab report finding male sperm in her underwear and in the vaginal swab taken by the SANE nurse, she admitted intercourse with Appellant, explaining she had denied it previously because she didn't want her mother, or anyone, to know. (See id.). She stated Appellant "pushed her down on the bed . . . got on top of her . . . and held her down by using both his hands to hold her arms down." (Id.). S.S. told Appellant to stop; he did not. (See id.). The sex included penile penetration of the vagina and ejaculation. (See id.; see also N.T. SVP Hearing, 11/26/12, at 10-12).
At the time of the offense, Appellant was already under supervision in neighboring Adams County for a conviction resulting from a somewhat similar prior incident with another 13 year old girl, which occurred on June 22, 2010. That episode was interrupted by the girl's mother before sexual activity occurred. In the Adams County incident, Appellant was arrested on August 24, 2011, charged with display of obscene materials to a minor (he sent e-mails of his genitals to the victim), convicted, and sentenced to forty-eight months in an intermediate punishment program (IPP).
On May 30, 2012, Appellant withdrew his not guilty pleas and entered a counselled, negotiated guilty plea to statutory sexual assault, a felony of the second degree, and unlawful contact with a minor, a felony of the third degree with a predicate offense of indecent assault, 18 Pa.C.S.A. § 3126(a)(8) (complainant less than 16 years of age and person is four or more years older than complainant and complainant and person are not married to each other), as a felony of the third degree.
Plea counsel, who also represents Appellant on appeal, declined to have Appellant cooperate with Sexual Offenders Assessment Board (SOAB) member Herbert Hays. After Hays filed a written report recommending SVP designation, counsel engaged their own expert, Timothy Foley, who provided a report finding that Appellant was not a Sexually Violent Predator. The parties stipulated to the expertise of both witnesses. (See N.T. SVP Hearing, at 5). Both experts testified at the November 26, 2012 SVP hearing. The court determined Appellant to be a Sexually Violent Predator. (See Order, 12/04/12). On the same day of the hearing, the court imposed the agreed aggregate sentence of not less than nine nor more than twenty-three months' incarceration in county prison, with credit for time served. (See Order, 11/26/12).
On November 29, 2012, Appellant filed a counseled post sentence motion, subsequently amended, but substantially similar, asking the trial court, inter alia, "to vacate the SVP order and enter judgment in his favor or for such other relief as the [c]ourt deems appropriate." (Post Sentence Motion, 11/29/12, at 1). The motion challenged the sufficiency and the weight of the evidence for the SVP determination. (See id. at 1-2; see also Amended Post Sentence Motion, 2/13/13). The court denied the motion on March 25, 2013. (See Order, 3/25/13). This timely appeal followed on April 22, 2013.
On appeal, Appellant raises one hybrid question for review:
Did the [trial] court abuse its discretion in rejecting [Appellant's] weight claim and denying his motion for a new hearing where (A) there was no evidence that he pursued two 13-year-old girls because they were both post pubescent and underage, and (B) the finding of force was arbitrarily based on one of several inconsistent hearsay statements and was speculative?
(Appellant's Brief, at 4).
Appellant challenges the weight of the evidence for the trial court's determination that he is a Sexually Violent Predator within the meaning of "Megan's Law, " 42 Pa.C.S.A. §§ 9791-9799.9, as it was in effect during the time relevant to this appeal. (See Appellant's Brief, at 7, 11). Notably, Appellant disclaims any challenge on appeal except to the weight issue. (See id.; see also id. at 16) ("This is not a sufficiency challenge."). Accordingly, we deem all other claims waived or abandoned.
Our standard of review for a challenge to the weight of the evidence is well-settled.
"The weight of the evidence is exclusively for the finder of fact, which is free to believe all, part, or none of the evidence, and to assess the credibility of the witnesses. Questions concerning inconsistent testimony and improper motive go to the credibility of the witnesses." Commonwealth v. Davido, 868 A.2d 431, 442 n.18 (Pa. 2005), cert. denied, 546 U.S. 1020 (2005) (citation omitted).
Our standard of review of a weight of the evidence claim is for an abuse of discretion. Appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. Indeed, it is oft-stated that the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings. We discern no basis on which to distinguish our standard of review on weight claims, whether challenging the weight of the evidence to support a guilty verdict or a trial court's SVP determination.
Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011) (citations, quotation marks and other punctuation omitted). Similarly,
[O]ur scope of review for such a [weight of the evidence] claim is very narrow. The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record. A claim that the evidence presented at trial was contradictory and unable to support the verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to shock one's sense of justice.
Commonwealth v. Young, 692 A.2d 1112, 1114-15 (Pa. Super. 1997) (citations omitted).
Accordingly, here, both of Appellant's claims fail. He misapprehends our standard of review. Appellant claims the trial court abused its discretion in two ways, both of which assert identically that the court erred "by relying on the guesswork of Hays[.]" (Appellant's Brief, at 10). To the contrary, the trial court properly relied on the factual findings of Mr. Hays, which are supported by the record.
It was the exclusive province of the trial court, sitting as finder of fact, to weigh the evidence, to believe all, part, or none of the evidence, and to assess the credibility of the witnesses. See Davido, supra at 442 n.18. Similarly, it was the role of the trial court to weigh the evidence of the victim's inconsistent statements to the police. We do not re-weigh the evidence it considered, and we decline Appellant's implicit invitation to do so. We review the trial court's determination for an abuse of discretion. See Ratushny, supra at 1272.
On review, we find no palpable abuse of discretion. To the contrary, the trial court properly exercised its discretion, which was supported by the facts of record. Specifically, the record supports the finding that Appellant, while already under supervision for a similar but unconsummated offense with a thirteen year old girl, sought out another victim, also then thirteen, lied about his age, and engaged in other acts of deception, for the purpose of having sexual intercourse with the second victim, which he accomplished by use of force.
In particular, Mr. Hays' finding of force is expressly supported by the victim's statement to the police. (See Supplement to Police Incident Report, [dated 7/08/11;] filed 7/09/11, at page 7 of 12) (victim stated Appellant "pushed her down on the bed . . . got on top of her . . . and held her down by using both his hands to hold her arms down."); see also N.T. SVP Hearing, 11/26/12, at 10-12). Therefore, Appellant's assertion that the finding of force was merely speculative is not only unsupported but contradicted by the record. The SVP determination is not so contrary to the evidence as to shock one's sense of justice. See Young, supra at 1115. The trial court properly exercised its discretion.
Judgment of sentence affirmed.