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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM R. METCALF
Appellant No. 1174 WDA 2014
Appeal from the Judgment of Sentence March 10, 2014
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001055-2012
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 1, 2015
Appellant, William R. Metcalf, appeals from the aggregate judgment of
sentence of one year, less one day, to two years, less one day, of
imprisonment followed by 42 months’ probation imposed after a jury
convicted Appellant of indecent assault, endangering the welfare of children,
and corruption of minors.1 After careful review, we affirm.
We recount the relevant factual and procedural history of this case as
follows. On February 9, 2012, Appellant was living with his fiancé, N.T., her
eight-year-old daughter, D.T., and the couple’s two, young daughters. See
N.T., 11/13/13, at 62-63. That evening, D.T. went into the bedroom that
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18 Pa.C.S.A. §§ 3126(a)(7), 4304(a)(1), and 6301(a)(1), respectively.
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Appellant shared with N.T. and laid down next to her mother, who was
asleep. See id. at 52, 65. Appellant then told D.T. to come to where he
was in the bedroom and touched D.T. “inside” her “private.” Id. at 51-53.
D.T. related that her “private” is “where you go to the bathroom at[]” and
specifically, “peeing.” Id. at 51.
Appellant then left the room, and D.T. left and went into her sisters’
room. Id. at 53. N.T. awoke and noticed D.T. was acting “funny” and that
D.T.’s underwear was “crooked, sideways” and “twisted.” Id. 66-67. N.T.
then “pulled [D.T.’s] underwear down” and observed that “her private area
was deep red.” Id. at 67. N.T. then called a friend who called the police.
Id. at 68. Police Officer David Tresky of the White Township Police
Department received the complaint at approximately 9:07 p.m. that evening
and reported to the residence. Id. at 89-90. After speaking with N.T. and
D.T., Officer Tresky transported N.T. and her children to Heritage Valley
Medical Center where the emergency room physician, Dr. Matthew Wheeler,
examined D.T. Id. at 93, 109. Thereafter, on February 21, 2012, D.T. was
interviewed by Dr. Kevin Rau, a forensic interviewer, and examined by Dr.
Mary Carrasco, a pediatrician who specializes in child abuse, at A Child’s
Place at Mercy. Id. at 115, 161-163.
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On May 7, 2012, the Commonwealth charged Appellant with the
aforementioned offenses as well as aggravated indecent assault.2 Appellant
entered a plea of nolo contendere to aggravated indecent assault on May 7,
2013. The trial court held a hearing to determine if Appellant was a
sexually violent predator on August 28, 2013. At that time, counsel for
Appellant informed the trial court that Appellant wished to withdraw his plea,
and the trial court heard testimony and argument on the request. N.T.,
8/28/13, at 3-46. On August 29, 2013, the trial court granted Appellant’s
motion to withdraw his plea, and the case proceeded to a three-day jury trial
on November 13, 2013. At the conclusion of the trial, the jury found
Appellant guilty of indecent assault, endangering the welfare of children and
corruption of minors and not guilty of aggravated indecent assault.
On March 10, 2014, the trial court sentenced Appellant to one year,
less one day, to two years, less one day, of imprisonment followed by 42
months’ probation3 and to comply with the registration requirements
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2
18 Pa.C.S.A. § 3125(b).
3
Specifically, the trial court sentenced Appellant to a term of imprisonment
of one year, less one day, to two years, less one day, of imprisonment
followed by three years’ probation for indecent assault. On the conviction
for endangering the welfare of children, the trial court sentenced Appellant
to a term of imprisonment of one year, less one day, to two years, less one
day, of imprisonment followed by three years’ probation. On the conviction
for corruption of minors, the trial court sentenced Appellant to nine to 18
months’ imprisonment followed by 42 months’ probation. The sentences
were imposed to run concurrently.
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pursuant to the Sex Offender Registration and Notification Act, 42 Pa.C.S.A.
§§ 9799.10-9799.41. Appellant filed a timely post-sentence motion on
March 11, 2014, wherein he challenged the sufficiency of the evidence at
trial and requested bond and credit for time-served. Post-Sentence Motion,
3/11/14, at 1-4 (unnumbered). He also requested an extension to file an
amended post-sentence motion upon receipt of transcripts. Id. On April 17,
2014, the trial court dismissed his request for bond as moot because
Appellant was released under the supervision of parole on that date and
denied his request for credit for time-served. Trial Court Order, 4/17/14.
By separate order on April 17, 2014, the trial court ordered Appellant to file
an amended post-sentence motion, if desired, by May 19, 2014. Appellant
filed an amended post-sentence motion on May 14, 2014, wherein he raised
challenges to the weight and sufficiency of the Commonwealth’s evidence.
See Brief in Support of Amended Post-Trial Motion, 5/14/14, at 1-5
(unnumbered). The trial court denied Appellant’s motion on July 2, 2014,
and Appellant filed the instant timely appeal on July 18, 2014.4
On appeal, Appellant raises the following two issues for our review.
I. Whether the Commonwealth presented sufficient
evidence to convict [] Appellant of indecent assault,
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The trial court ordered Appellant to file a statement of errors complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b),
and Appellant timely filed his statement. In its Rule 1925(a) opinion, the
trial court directs this Court to its July 2, 2014 opinion, denying Appellant’s
post-sentence motion. Trial Court Opinion, 8/19/2014.
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endangering welfare of children and corruption of
minors?
II. Whether the conviction of []Appellant on the
charges of indecent assault, endangering welfare of
children and corruption of minors goes against the
weight of the evidence?
Appellant’s Brief at 6.
We employ a well-settled standard of review over claims challenging
the sufficiency of the evidence. “In reviewing the sufficiency of the
evidence, we consider whether the evidence presented at trial, and all
reasonable inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the jury’s verdict beyond
a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.
2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 2015
WL 731963 (U.S. 2015). “The Commonwealth can meet its burden by
wholly circumstantial evidence and any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be drawn
from the combined circumstances.” Commonwealth v. Watley, 81 A.3d
108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation
omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we
must review “the entire record … and all evidence actually received[.]” Id.
(internal quotation marks and citation omitted). “[T]he trier of fact while
passing upon the credibility of witnesses and the weight of the evidence
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produced, is free to believe all, part or none of the evidence.”
Commonwealth v. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (citation
omitted), appeal denied, 99 A.3d 925 (Pa. 2014). “Because evidentiary
sufficiency is a question of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119,
126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,
135 S. Ct. 145 (2014).
Appellant argues, “[t]he Commonwealth’s evidence was insufficient to
enable the finder of fact to find that all the elements of the offenses were
established beyond a reasonable doubt.” Appellant’s Brief at 9-10.
However, before we may address the merits of Appellant’s claim, we must
first address whether Appellant has preserved this issue for our review.
Pennsylvania Rule of Appellate Procedure 1925(b) requires Rule 1925(b)
statements to “concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for
the judge.” Pa.R.A.P. 1925(b)(ii). Any issue not raised in accordance with
Rule 1925(b) is waived. Pa.R.A.P. 1925(b)(vii). Our Supreme Court has
clarified that Rule 1925(b) is a bright-line rule. Commonwealth v. Hill, 16
A.3d 484, 494 (Pa. 2011). Additionally, with regard to claims pertaining to
the sufficiency of the Commonwealth’s evidence, we have stated as follows.
In order to preserve a challenge to the sufficiency of
the evidence on appeal, an appellant’s Rule
1925(b) statement must state with specificity
the element or elements upon which the
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appellant alleges that the evidence was
insufficient. Such specificity is of particular
importance in cases where, as here, the appellant
was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal
quotation marks and citations omitted; emphasis added).
In the instant case, Appellant was convicted of three, separate
offenses, yet Appellant’s challenge to the sufficiency of evidence in his Rule
1925(b) statement baldly asserted, “[t]he Commonwealth failed to present
sufficient evidence to prove beyond a reasonable doubt all the elements of
the offenses for which [] Appellant was convicted[.]” Rule 1925(b)
Statement, 8/18/2014, at 2.
Based on our cases, we are constrained to conclude that Appellant has
not complied with Rule 1925(b) because his concise statement fails to
specify which elements of the listed offenses the Commonwealth did not
prove beyond a reasonable doubt. See Garland, supra (concluding that
Garland’s bald Rule 1925(b) statement that “[t]he evidence was legally
insufficient to support the convictions[]” was non-compliant with Rule
1925(b)); Commonwealth v. Williams, 959 A.2d 1252, 1256 (Pa. Super.
2008) (concluding that Williams’ bald Rule 1925(b) statement that “[t]here
was insufficient evidence to sustain the charges of Murder, Robbery, VUFA
no license, and VUFA on the streets … [t]hus [Appellant] was denied due
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process of law[]” was non-compliant with Rule 1925(b)). Accordingly, this
claim is waived.5
Next, Appellant argues, “[t]he [] Appellant’s conviction goes against
the weight of the evidence.” Id. at 10. We begin by acknowledging that
“[a] true weight of the evidence challenge concedes that sufficient evidence
exists to sustain the verdict but questions which evidence is to be believed.”
Commonwealth v. Thompson, --- A.3d ---, 2014 WL 6948150, at *10
(Pa. Super. 2014) (citation omitted). Our Supreme Court has clarified that,
“[a] motion for a new trial alleging that the verdict was against the weight of
the evidence is addressed to the discretion of the trial court.”
Commonwealth v. Weathers, 95 A.3d 908, 910-911 (Pa. Super. 2014),
citing Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008). Therefore,
on appeal, the reviewing court “reviews the exercise of discretion, not the
underlying question whether the verdict is against the weight of the
evidence.” Id. Indeed, it is well established that it is for the factfinder to
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5
We observe Appellant’s argument in support of this issue is also woefully
underdeveloped. Aside from outlining our standard of review, Appellant’s
argument section with regard to his sufficiency claim contains no citations to
legal authority nor does Appellant provide any discussion at all on the crimes
for which Appellant was convicted or any subsumed element. See
Appellant’s Brief at 9-10. Accordingly, we could also find waiver on this
basis. See Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super.
2014) (concluding appellant waived his issue on appeal when he failed to
develop his argument with discussion of pertinent facts and authority.);
accord Pa.R.A.P. 2119, 2101.
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determine the weight given to the evidence produced at trial.
Commonwealth v. Ferguson, --- A.3d ---, 2015 WL 49438, at *4-5 (Pa.
Super. 2015) (citation omitted). Because it is the role of the factfinder to
weigh the evidence, an appellant seeking to challenge the weight of the
evidence carries a heavy burden.
If the factfinder returns a guilty verdict, and if a
criminal defendant then files a motion for a new trial
on the basis that the verdict was against the weight
of the evidence, a trial court is not to grant relief
unless the verdict is so contrary to the evidence as
to shock one’s sense of justice.
Id. We also highlight that “[a] new trial is not warranted because of a mere
conflict in the testimony and must have a stronger foundation than a
reassessment of the credibility of witnesses.” Commonwealth v.
Gonzalez, --- A.3d ---, 2015 WL 252446, at *8 (Pa. Super. 2015). “[O]nly
where the facts and inferences disclose a palpable abuse of discretion will
the denial of a motion for a new trial based on the weight of the evidence be
upset on appeal.” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)
(emphasis in original; citation omitted).
Instantly, Appellant argues the verdict is contrary to the weight of the
evidence because “[t]he evidence against [Appellant] is suspect at best.”
Appellant’s Brief at 10. Specifically, Appellant challenges that “[t]he
Commonwealth attempted to bolster [its] case by the utilization of [Special
Agent] Ambrosini[]” and the admission of a statement he took from
Appellant. Id. However, Appellant argues that Special Agent Ambrosini
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“clearly stated that [] Appellant did not see what he had typed onto his
computer[]” before signing the statement. Id. Further, Appellant asserts
that “[t]he Commonwealth presented two expert witnesses who both stated
that there was no clear evidence of trauma.” Id. Upon review, we
disagree.
In denying Appellant’s post-sentence motion, the trial court
summarized the testimony relevant to this weight challenge as follows.
Dr. Matthew Wheeler, an assistant medical
director at Heritage Valley Health System, testified
that on February 9, 2012, he was working in the
emergency room department of the Heritage Valley
Medical Center and examined D.T. Dr. Wheeler
performed an external examination and did not find
any injuries. He did not perform [an] internal
examination as he believed it would be too intrusive
for the child and unlikely to yield evidence.
Dr. Kevin Rua, a forensic interviewer at “A
Child’s Place at Mercy”, testified that he interviewed
D.T. on February 21, 2012. In the course of the
interview, D.T. told him that on the date of the
incident[,] she awoke and went to lie down next to
her mother; [Appellant] told her not to “mess with”
the dogs and moved her next to him; [Appellant]
then put his finger in her “second hole” and it hurt.
Special Agent Robert Ambrosini, of the Federal
Bureau of Investigation, testified that he initially
explained the allegations, which [Appellant] denied.
Agent Ambrosini told [Appellant] that he did not
believe [Appellant’s] denial and suggested the
possibility that [Appellant] had gotten “turned
around” in bed and mistook [N.T.] for D.T.
[Appellant] agreed that was possible and he believed
that was what happened. Agent Ambrosini traced
[Appellant’s] hand on a piece of paper and asked
[Appellant] to draw a line to indicate the length of
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his penetration into D.T.’s vagina, which [Appellant]
did. Agent Ambrosini prepared a written
statement[.] … [Appellant] and Agent Ambrosini
signed the statement….
Dr. Mary Carrasco, the director of “A Child’s
Place at Mercy”, testified that she examined D.T. on
February 21, 2014. Her examination disclosed a
“notch depression of her [D.T.’s] hymen.” Dr.
Carrasco testified that this physical condition could
have been caused by trauma or penetration but is
not clear evidence of sexual abuse.
Appellant testified he had lived with [N.T.] for
six and one half years. On February 9, 2012, he
heard D.T. making noise and attempting to wake up
her sisters. He instructed her to lie next to [N.T.] on
the floor of their bedroom. D.T. then began to play
with their dog and [Appellant] instructed her to lie on
the floor next to him. D.T. would not lie still and
[Appellant] “smacked her” and instructed her to go
back to sleep.
Appellant further testified that during his
interview with Agent Ambrosini[,] he refused to sign
the proposed statement; [Appellant] signed the
digital signature pad believing that he was signing a
waiver for release of information. [Appellant] further
testified that the outline of his hand was referring to
a different incident when he was playing with D.T.
and his two children at a pool, his hand slipped
picking up D.T. and the pad of his finger touched her
vagina.”
Trial Court Opinion, 7/2/14, at 5-7. The trial court explicitly noted, “[t]he
[trial c]ourt does not find that the [j]ury’s verdict was so contrary to the
evidence as to shock one’s sense of justice.” Id. at 10.
In the instant case, D.T. testified Appellant touched her with his finger
inside her private area, where she goes to the bathroom. N.T., 11/13/13, at
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51-53. N.T. testified that following the incident, D.T. acted “funny,” D.T.’s
underwear was twisted, and her genital area appeared red. Id. at 66-67.
The jury, as fact-finder, was free to believe D.T.’s account of the incident
and determine the weight given to all of the evidence produced at trial. See
Ferguson, supra. Moreover, Appellant is not entitled to a new trial based
on a reassessment of the credibility of witnesses. See Gonzalez, supra.
Therefore, we conclude the trial court properly exercised its discretion in
denying Appellant’s motion for a new trial based on the weight of the
evidence. See Weathers, supra. Accordingly, we affirm the March 10,
2014 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2015
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