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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEEREMY ROACH
Appellant No. 10 MDA 2014
Appeal from the Judgment of Sentence of October 22, 2013
In the Court of Common Pleas of York County
Criminal Division at No.: CP-67-CR-0000975-2013
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED OCTOBER 14, 2014
Jeremy Roach (“Roach”) appeals his October 22, 2013 judgment of
sentence. We affirm.
The trial testimony supports the following recitation of the facts of the
case. In August 2012, the nine-year-old victim, O.M., had a sleep-over at
her cousin’s house following their grandmother’s birthday party. Notes of
Testimony (“N.T.”), 7/11-12/2013, at 89-91. The cousin, H.R., lives with
her mother (and O.M.’s aunt), T.M.; her father, Roach; and her brother.
While sleeping on the living room floor with her cousin, O.M. awoke around 1
a.m. because Roach had his hand under her shirt, touching her breast. Id.
at 95. O.M. rolled over and Roach removed his hand. Roach stayed in the
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*
Retired Senior Judge assigned to the Superior Court.
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living room for approximately a half of an hour, and then Roach went to the
bathroom and finally returned to his bedroom. Id. at 95-97. O.M. heard
Roach talk with her aunt, T.M., in their bedroom. Id. at 96. O.M. fell back
to sleep and her family picked her up later that day. Id. at 98.
A few weeks later, while on a camping trip, O.M. told her cousin what
Roach had done and O.M.’s older sister overheard the conversation. O.M.’s
sister took O.M. to tell their mother. Id. at 100. The family then left the
campsite and called the police that evening. Id. at 146-47.
O.M.’s sister, G.D., and O.M.’s mother, B.M., corroborated O.M.’s
version of events as to how she informed the family of the incident. Id. at
127-29, 139-40. Both G.D. and B.M. also testified that O.M. was upset and
crying when she related the incident. Id. at 128, 140.
T.M. testified that, after receiving a phone call, she and Roach went to
bed around midnight. T.M. stated that, to her knowledge, Roach did not get
out of bed and that she did not wake up during the night. Id. at 165-66,
170. H.R., O.M.’s cousin, testified that she was not disturbed by any noises
on the night that O.M. slept over and that O.M. appeared fine the next
morning. Id. at 185-86.
Roach testified that he received a phone call around 11:30 p.m. and
then went to bed close to midnight. Roach denied getting out of bed until
the next morning around 7:30. Id. at 192. Roach also denied ever having
inappropriate contact with O.M. Id. at 193.
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Roach was charged with unlawful contact with a minor, corruption of
the morals of a minor, and indecent assault of a person less than thirteen
years of age.1 On July 12, 2013, following a two-day jury trial, Roach was
found guilty of all three charges. On October 22, 2013, Roach was
sentenced to two to twelve months in county jail for unlawful contact with a
minor. Roach was sentenced to three years of probation on each of the
other two charges. The three sentences were ordered to run concurrently
with each other.
On October 24, 2013, Roach filed a timely post-sentence motion in
which he challenged the weight and sufficiency of the evidence and sought a
stay of his sentence pending appeal. On December 4, 2013, the trial court
found that the evidence had been insufficient to sustain the conviction for
unlawful contact.2 Thus, the trial court vacated the incarceration sentence
imposed for that crime.
On December 26, 2013, Roach filed a notice of appeal. On January 6,
2014, the trial court ordered Roach to file a concise statement of errors
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1
18 Pa.C.S.A. §§ 6318(a)(1), 6301(a)(1)(ii), and 3126(a)(7),
respectively.
2
The trial court originally scheduled a re-sentencing hearing. However,
at the hearing, the trial court agreed with defense counsel’s argument that
Roach could not be re-sentenced on the remaining two counts because those
sentences had not been disturbed in the adjudication of the post-sentence
motion. N.T., 12/23/2013, at 4-5. Therefore, the trial court vacated the
two- to twelve-month jail sentence and left the three years of probation
unchanged. Id. at 5.
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complained of on appeal pursuant to Pa.R.A.P. 1925(b). Roach timely
complied. On March 11, 2014, the trial court filed its Pa.R.A.P. 1925(a)
opinion.
Roach raises two issues for our consideration:
I. Whether the verdict of guilty as to indecent assault [and]
corruption of minors was against the greater weight of the
evidence on the following grounds: the greater weight of
the evidence presented at trial established that, based
upon the location of the alleged victim, and [Roach], as
well as other individuals, it would have been impossible for
[Roach] to commit the acts as alleged; the greater weight
of the evidence presented at trial, did not establish an
opportunity for [Roach] to commit the offenses, and
[Roach] had no propensity to commit the offenses.
II. Whether the evidence was insufficient to support the jury
verdict as to indecent assault and corruption of minors in
that, based upon the location of the alleged victim, and
[Roach], as well another individuals, it would have been
impossible for [Roach] to commit the acts as alleged; the
greater weight of the evidence presented at trial, did not
establish an opportunity for [Roach] to commit the
offenses, and [Roach] had not propensity to commit the
offenses.
Roach’s Brief at 4.
Roach first challenges the weight of the evidence presented at trial.
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Widmer, 744 A.2d 745,
751–52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177,
1189 (Pa. 1994). A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Widmer, 744
A.2d at 752. Rather, “the role of the trial judge is to determine
that ‘notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
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with all the facts is to deny justice.’” Id. at 752 (citation
omitted). It has often been stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.” Brown, 648 A.2d at 1189.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Brown, 648 A.2d at 1189. Because the trial judge has
had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination
that the verdict is against the weight of the evidence.
Commonwealth v. Farquharson, 354 A.2d 545 (Pa.
1976). One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of
justice.
Widmer, 744 A.2d at 753 (emphasis added).
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations
modified).
Roach argues that O.M.’s version of events was impossible.
Specifically, Roach asserts that it was impossible for Roach to have
committed the acts described by O.M. without waking either his daughter
who was next to O.M. or T.M. who was in the bedroom a few feet away.
Roach contends that O.M. was fine the next morning and did not report the
incident until weeks later. Roach argues that O.M. only concocted the story
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because she admittedly does not like Roach. Roach asserts that there was
no evidence of his propensity to commit such a crime and his character
witnesses proved that he has a reputation for “moral chastity.” Roach’s
Brief at 12-13.
The trial court found that, “[w]here the testimony of the victim is all
that is necessary [to prove the crime], and that testimony is not so
incredible that it cannot be believed, we cannot find that the verdicts of
guilty on charges of indecent assault and corruption of minors are so
contrary to the evidence as to shock one’s sense of justice.” Trial Court
Opinion (“T.C.O.”), 3/11/2014, at 7. Roach essentially asks us to find that
the trial court abused its discretion for refusing to reverse the jury’s
apparent finding that O.M. was credible.
“Credibility issues are decided by the jury and appellate courts rarely
overturn jury factual findings that are based on credibility determinations.”
Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super. 2000). “The
jury was free to believe all, part or none of the evidence presented and to
assess the credibility of the witnesses.” Id. at 1150. Although Roach
characterizes O.M.’s testimony as incredible, the jury believed her. The trial
court found that the weight of the evidence did not compel a different result.
Upon our review of the record, we discern no basis to conclude that the trial
court abused its discretion in denying Roach’s request for a new trial.
In his second issue, Roach challenges the sufficiency of the evidence
presented at trial. Roach reiterates the same arguments for his sufficiency
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challenge as he did for his weight challenge. Roach again argues that O.M.’s
testimony was incredible and that the events could not have occurred as
O.M. described them. Roach’s Brief at 15-16.
Roach’s arguments are misplaced. As discussed above, the matter of
a witness’ credibility is a question of weight and not sufficiency. However, to
the extent Roach does raise an issue of sufficiency, we conclude that the
evidence was sufficient to sustain his convictions.
A challenge to the sufficiency of the evidence is a question of law
subject to plenary review. We must determine whether the
evidence admitted at trial and all reasonable inferences drawn
therefrom, when viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to support all
elements of the offenses.” A reviewing court may not weigh the
evidence or substitute its judgment for that of the trial court.
Commonwealth v. Snyder, 870 A.2d 336, 346 (Pa. Super. 2005) (citations
and quotation marks omitted).
Roach was convicted of indecent assault:
(a) Offense defined.--A person is guilty of indecent assault if
the person has indecent contact with the complainant, causes
the complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with
seminal fluid, urine or feces for the purpose of arousing sexual
desire in the person or the complainant and:
(7) the complainant is less than 13 years of age
18 Pa.C.S.A. § 3126. Indecent contact is “[a]ny touching of the sexual or
other intimate parts of the person for the purpose of arousing or gratifying
sexual desire, in any person.” 18 Pa.C.S.A. § 3101. “[I]n a prosecution for
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sex offenses, a guilty verdict may rest on the uncorroborated testimony of
the victim.” Commonwealth v. Owens, 649 A.2d 129, 133 (Pa. Super.
1994); 18 Pa.C.S.A. § 3106.
O.M. testified that Roach reached under her shirt while she was
sleeping and touched her breast. We have found that similar actions are
sufficient to constitute indecent assault. Commonwealth v. McClintic, 851
A.2d 214, 216 (Pa. Super. 2004), rev'd on other grounds, 909 A.2d 1241
(Pa. 2006) (holding that defendant grabbing victim’s breast for purposes of
intimidation was sufficient to prove indecent assault)3; Commonwealth v.
Richter, 676 A.2d 1232, 1236 (Pa. Super. 1996) (holding that “put[ting]
his hands under [victim’s] shirt and fondl[ing] her breasts” sufficient to
constitute indecent assault). O.M.’s testimony was sufficient to prove
indecent assault.
Roach was also convicted of corruption of minors, which is defined as:
Whoever, being of the age of 18 years and upwards, by any
course of conduct in violation of Chapter 31 (relating to sexual
offenses) corrupts or tends to corrupt the morals of any minor
less than 18 years of age, or who aids, abets, entices or
encourages any such minor in the commission of an offense
under Chapter 31 commits a felony of the third degree.
18 Pa.C.S.A. § 6301(a)(1)(ii). “[A]ctions that would offend the common
sense of the community and the sense of decency, propriety, and morality
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3
The Supreme Court reversed McClintic on the issue of enhanced
sentencing, but did not reverse on the sufficiency of the evidence for
indecent assault issue.
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which most people entertain, are actions that tend to corrupt the morals of a
minor.” Commonwealth v. Smith, 863 A.2d 1172, 1177 (Pa. Super.
2004) (citation and quotation marks omitted). Again, O.M.’s testimony is
sufficient to sustain the conviction because the acts that she described
unquestionably “offend . . . the sense of decency.” We have found that
these acts constitute corruption of the morals of a minor. See
Commonwealth v. Robinson, 931 A.2d 15, 25 (Pa. Super. 2007) (“Here,
we conclude that [the a]ppellant’s touching of the minor victim’s breasts
constitutes corruption of minors.”). Viewing the evidence in the light most
favorable to the Commonwealth, Roach’s sufficiency challenge cannot
prevail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
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