J-S54028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROY GROVER BARNHART
Appellant No. 771 MDA 2014
Appeal from the Judgment of Sentence December 13, 2013
In the Court of Common Pleas of Fulton County
Criminal Division at No(s): CP-29-CR-0000081-2013
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 16, 2014
Appellant, Roy Grover Barnhart, appeals from the December 13, 2013
imposed following his conviction for indecent assault of a person less than 13
years of age and corruption of minors.1 After careful review, we affirm.
The trial court has set forth the relevant factual and procedural history
of this case as follows.
On May 20, 2013, the Commonwealth filed a
Criminal information against [Appellant], charging
[Appellant] with nineteen counts of Indecent Assault
on a Person less than 13 (18 Pa.C.S.A.
§ 3126(A)(7))(M1), one count of Indecent Assault on
a Person less than 13 (18 Pa.C.S.A.
§ 3126(A)(7))(F3) (continuing course of conduct),
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1
18 Pa.C.S.A. §§ 3126(a)(7) and 6301(a)(1), respectively.
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and 20 counts of Corruption of Minors (18 Pa.C.S.A.
§ 6301(A)(1)(M1), alleging that [Appellant]
repeatedly fondled a young girl in his home during
the years 2004-2007, while [Appellant] and his wife
trial, September 13, 2013, those charges were
ultimately consolidated for consideration by the jury
into a single potential felony count of Indecent
Assault on a Person less than 13[,] and one count of
Corruption of Minors.
The Commonwealth presented two witnesses:
the victim, J.L., and Trooper Timothy Lear, who
investigated the case. [J.L.], age 15, testified that,
when she was in grades K-3, [Appellant] and his wife
babysat J.L. and her siblings each day after school
while her mother worked. The babysitting occurred
at the home of [Appellant] and his wife first in a
green house on Peach Orchard Road and then at a
home in Gerald Circle Trailer Park. J.L. and her
sisters had their own room in the Barnhart home and
slept there. She was approximately five through
nine years of age at the time.
J.L. testified that when she was five or six,
[Appellant] began fondling her genital area
underneath her clothing. The fondling occurred
many times, at least 20-30, over the course of
several years, and always in the same manner.
for misbehaving, and, as a consequence, she would
designed for young children, with a green cover
he would get up and wash his hands, and J.L. would
be allowed to return to playing.
J.L. did not report the inappropriate touching
to anyone at the time. [Appellant] told her not to
J.L. explained that, at her age, she was not really
sure what was going on, and she felt too scared and
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abuse of J.L. eventually came to light in January of
2013, when J.L. spoke with her school guidance
counselor about depression she was experiencing.
The Guidance Counselor then made a report to
Children and Youth, and the matter was eventually
referred to Trooper Timothy Lear, a criminal
investigator with the Pennsylvania State Police.
Trooper Lear testified for the sole purpose of
establishing the age of [Appellant] at the time of the
offenses. He testified that, during the time period of
the alleged abuse of [] J.L., [Appellant] would have
been between the ages of 62 and 65.
[Appellant] did not present testimony or
evidence. Based upon the testimony of the two
Commonwealth witnesses, the jury returned verdicts
of guilty on both the felony charge of Indecent
Assault on a Person less than 13 (18 Pa.C.S.A.
§ 3126(A)(7)) (F3) (continuing course of conduct),
and one count of Corruption of Minors (18 Pa.C.S.A.
§ 6301(A)(1)(M1). The [trial c]ourt ordered a
presentence report including SOAB Assessment and
scheduled sentencing for November 8, 2013. In
order to give the SOAB time to complete its
assessment, sentencing was continued, by Order
dated October 29, 2013, until December 13, 2013.
On December 9, 2013, [Appellant] filed a
Motion to Continue Sentencing, which th[e trial
c]ourt denied. On December 13, 2013, th[e trial
c]ourt sentenced [Appellant] as follows: On Count 1,
Indecent Assault on a Person less than 13 (18
Pa.C.S.A. § 3128(A)(7)) (F3) (continuing course of
conduct), the [trial c]ourt sentenced [Appellant] to 9
to 60 months in a state correctional institution
(including a $250 fine and the costs of prosecution.)
On Count 2, Corruption of Minors (18 Pa.C.S.A.
§ 6301(A)(1) (M1)1 the [trial c]ourt sentenced
[Appellant] to 9 to 48 months in a state correctional
institution (including a $250 fine and the costs of
prosecution), with the sentence in Count 2 to be
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served consecutively to the sentence imposed on
Count 1.1
1
A clerical error on the sentencing form
inadvertently indicating that the sentence in Count 2
was to run consecutive to the sentence imposed in
Count 2 was corrected by an Order Correcting
Sentence entered on January 7, 2014.
Trial Court Opinion, 4/4/14, at 1-4 (citations omitted; footnote in original).
On December 13, 2013, the same day as sentencing, Appellant filed a
timely post-sentence motion averring the verdict was against the weight of
the evidence. See generally Pa.R.Crim.P. 607(A)(3). The trial court
ordered both parties to submit briefs, and after review of said briefs, on April
-sentence motion. On May 2,
2014, Appellant filed a timely notice of appeal. On May 6, 2014, the trial
post-sentence motion for the purposes of Pennsylvania Rule of Appellate
Procedure 1925(a).2
On appeal, Appellant raises the following issue for our review.
1.
assault child less than 13 years old and
corruption of minors was against the weight of
story at trial was inconsistent from her
testimony at the preliminary hearing[?]
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2
The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Rule 1925(b).
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true weight of the evidence
challenge concedes that sufficient evidence exists to sustain the verdict but
Commonwealth v. Lewis,
911 A.2d 558, 566 (Pa. Super. 2006) (citation omitted). Where the trial
court h
the underlying question of whether the verdict is against the weight of the
evidence. Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003), cert.
denied, Tharp v. Pennsylvania, 541 U.S. 1045 (2004).
review is limited to whether the trial court palpably abused its discretion in
Id.
It is well established that this Court is precluded from reweighing the
evidence and substituting our credibility determination for that of the fact-
finder. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)
the finder of fact who is free to believe all, part, or none of the evidence and
cert. denied, Champney v.
Pennsylvania, 542 U.S. 939 (2004)
preclude every possibility of innocence, and the fact-finder is free to resolve
any doubts regardin
inconclusive that as a matter of law no probability of fact may be drawn
Commonwealth v. Emler, 903 A.2d
1273, 1276 (Pa. Super. 2006).
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A new trial should be awarded
verdict is so contrary to the evidence as to shock
imperative so that right may be given another
opportunity to prevail. In this regard, [t]he evidence
must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.
Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004) (citations and
internal quotation marks omitted), cert. denied, Ross v. Pennsylvania, 547
U.S. 1045 (2006).
Herein, Appellant argues that the trial court abused its discretion in
denying his post-
conduct ten years prior and the uncorroborated testimony at trial is not
at 11. Appellant argues that because J.L. testified at the preliminary hearing
that there was never any penetration, but at trial testified there was, the
verdict is against the weight of the evidence. Id.
After careful review, we conclude the trial court did not abuse its
discretion in reaching this conclusion. See Tharp, supra. J.L. testified at
trial that Appellant touched her genital area, under her clothes, close to
everyday that she was at his house. N.T., 9/13/13, at 18. She further
testified that Appellant began touching her when she was about five or six
years-old and the conduct stopped when she was about eight or nine years-
old, for a total of more than 20 to 30 times. Id. at 18-20. On cross-
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examination, defense counsel asked J.L. if Appellant ever put his fingers
Id. at 24. On redirect the
Commonwealth then asked J.L. to clarify if Appellant had ever put his fingers
inside of her, and if so how many times, to which J.L. testified that it
Id. at 28. On recross-examination defense
counsel followed up by asking J.L. if she remembered testifying at the
Id. at 29. J.L. answered both
questions affirmatively. Id. When asked if she was telling the truth now or
then she stated she was telling the truth now, but when asked if she was
Id. at 30.
The jury, as fact-finder, was free to make a credibility determination
3
Champney, supra. Moreover, as stated, it is
not our role as an appellate court to determine if the verdict was against the
weight of the evidence, but rather, whether the trial court palpably abused
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3
To the extent Appellant argues that
this claim is waived as it is a sufficiency argument and not a weight of the
challenging the weight of the evidence concedes that there is sufficient
of a sexual assault victim, if believed by the trier of fact, is sufficient to
convict a defendan Commonwealth v. McDonough, -- A.3d --, 2014
WL 3563346 (Pa. Super. 2014), citing Commonwealth v. Charlton, 902
A.2d 554, 562 (Pa. Super. 2006).
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-sentence motion raising said claim.
Tharp, supra. Based on our independent review of the record, we discern
no palpable abuse of discretion on the part of the trial court.
Therefore, we conclude the trial court did not abuse its discretion in
-sentence motion. Accordingly, we affirm
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
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