J-A14013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRUCE R. SCHMIDT,
Appellant No. 1271 MDA 2014
Appeal from the Judgment of Sentence entered June 17, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003819-2013
BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 23, 2015
Bruce Schmidt (Appellant) appeals from the June 17, 2014 judgement
of sentence of an aggregate term of 6 to 23 months’ imprisonment following
a jury trial at which Appellant was found guilty of indecent assault of a
complainant less than 13 years of age1 and corruption of minors.2 Appellant
now challenges the lower court’s failure to grant a motion challenging the
weight of the evidence. After careful review, we affirm.
We set forth a factual summary of this matter as follows:
Mother and Father were the biological parents of the victim, A.C. and
her two siblings, B.C. and R.C. Notes of Testimony, Trial (N.T.T.), 3/11/14,
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3126(a)(7).
2
18 Pa.C.S. § 6301(a)(1)(ii).
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at 129-130. A.C.’s parents were divorced and living separately during the
events at issue. N.T.T., at 130. Father would not permit Mother to have
unsupervised visitations with the children. N.T.T., at 135-36. Father and
Mother prepared a visitation agreement that included Appellant as the
primary supervisor of Mother’s visitations. N.T.T., at 135-36.
The visitations would take place in Appellant’s trailer. N.T.T., at 131.
The trailer included a bedroom in which Appellant slept, another bedroom at
the opposite end of the trailer in which Mother slept, and a pull-out couch on
which the three children would sleep. N.T.T., at 231.
Appellant was charged with touching the vaginal area of A.C. during
visitations in 2012. A.C. testified that while sleeping Appellant would pick
her up and take her into the bedroom. N.T.T., at 102. Her siblings, B.C.
and R.C. corroborated her testimony when they testified that Appellant
would take A.C. to his bedroom while they were sleeping. N.T.T., at 115,
123. Father, Father’s girlfriend, and Kari Stanley (the forensic interviewer at
the Lancaster County Children’s Alliance) produced A.C.’s out of court
statements at trial that further supported her testimony. N.T.T., at 132,
146-47, 179. A.C. testified that while in Appellant’s bedroom he would
touch her. N.T.T., at 103. She said that the touching happened “[i]n my
private.” N.T.T., at 104. And, that her “private” referenced that part of her
body that she uses to pee. N.T.T., at 104.
After a trial by jury, Appellant was found guilty and sentenced as
stated above. He filed a post-sentence motion including, inter alia, a motion
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challenging the weight of the evidence. The trial court denied the post-
sentence motion in its entirety. Appellant filed a timely notice of appeal and
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement.
Appellant now presents the following issue for our review:
Did the lower court abuse its discretion by failing to grant a new
trial on the basis that the guilty verdict was against the weight of
the evidence when the totality of the evidence on the basic
issues of the case was so inconsistent as to be irreconcilable?
Appellant’s Brief, at 4.
We review Appellant’s challenge to the weight of the evidence
according to the following standards:
The weight of the evidence is exclusively for the finder of fact
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court's verdict if it is so
contrary to the evidence as to shock one's sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court's role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations
omitted).
“An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-
will, as shown by the evidence or the record, discretion is
abused.”
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Commonwealth v. Stollar, 84 A.3d 635, 650 (Pa. 2014) (citations
omitted).
The trial court found the evidence reliable and further corroborated by
supporting testimony. Accordingly, the trial court held that Appellant’s claim
is meritless. Trial Court Opinion (T.C.O.), 10/8/2013, at 2-3. We agree.
“[A] case should not go to the jury where the party having the burden offers
testimony of a witness, or of various witnesses, which is so contradictory on
the essential issues that any finding by the jury would be a mere guess.”
Commonwealth v. Bennett, 303 A.2d 220, 221 (Pa. Super. 1973).
Appellant argues that the trial court did not apply this rule correctly and in
so doing committed reversible error.
Appellant’s argument is premised on the assertion that the testimony
of Commonwealth’s witnesses was so contradictory on the essential issue,
common to both offenses, as to amount to an abuse of discretion. See
Appellant’s Brief, at 13-18. To establish this claim, Appellant provides the
four following series of testimony which are contradictory in location,
manner, and frequency as to the illegal acts:
She gave multiple accounts regarding the location of “tickle
fights” and whether “tickle fights” were the means by which
[Appellant] touched her vaginal area:
The tickle fights occurred only in [Appellant]’s
bedroom.
The tickle fights occurred only in the living room.
When [Appellant] engaged in tickle fights with her,
he would touch her vaginal area.
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When [Appellant] touched her vaginal area, it was
not in connection with a tickle fight, but was mere
“touching.”
She gave multiple accounts of the location of the vaginal
touching:
The vaginal touching occurred in only one location,
[Appellant]’s bedroom.
The vaginal touching occurred in two locations,
[Appellant]’s bedroom and the back room where
[Mother] slept.
She gave multiple accounts of the manner in which [Appellant]
touched her vaginal area:
[Appellant] touched her over her clothing.
[Appellant]’s fingers came into contact with the bare
skin of her “private.”
She gave multiple accounts of the frequency of the incidents of
vaginal touching:
The vaginal touching occurred over an extended time
period, i.e., “for a while” or “on multiple occasions.”
The vaginal touching occurred on only one occasion.
The vaginal touching occurred on only two occasions.
Id. at 17-18.
Appellant summarizes by stating: “In view of all the foregoing, the
contradictions were so great that they were not subject to reconciliation by
the jury. The totality of the evidence was so contradictory on the essential
issues that the jury’s verdict was against the weight of the evidence.”
Appellant’s Brief, at 18.
In ruling on Appellant’s motion, the trial court applied the following
reasoning:
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Here, the [c]ourt did not abuse its discretion by allowing
the jury verdict to stand since the verdict was not against the
weight of evidence. The [c]ourt viewed the evidence and
testimony in the light most reasonable and held a tender years
hearing held on March 10, 2014. The [c]ourt held that “With
regard to the Commonwealth’s Tender Years motion, I do find
that the evidence is relevant in terms of this proceeding and that
the time, content and circumstances of these statements provide
sufficient indicia of their reliability.
Further, the Commonwealth corroborated the victim’s
testimony with testimony from other witnesses. At trial, the
Commonwealth presented evidence that [Appellant] was friends
with the victim’s mother and had a formal agreement with the
victim’s father that gave [Appellant] the right of guardianship
with the mother when the children would visit at his home. In
addition, the victim’s siblings [] also testified to visiting and
staying at [Appellant]’s home with the victim. Both siblings also
testified that the victim slept in [Appellant]’s room.
T.C.O., at 2-3 (citations to the record omitted).
In weighing Appellant’s claim, we apply the aforementioned rules. To
summarize, the rules state that our review is limited to whether the trial
court exercised its judgment in a manifestly unreasonable manner when it
concluded that the testimony of Commonwealth’s witnesses was not so
contradictory on the essential issues as to render the jury’s finding a mere
guess.3
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3
See generally Champney, 832 A.2d at 408 (holding that appellate review
is limited to whether the trial court abused its discretion). See also Stollar,
84 A.3d at 650 (defining an abuse of discretion). Cf. Bennett, 303 A.2d at
221 (providing the rule which Appellant argues that the trial court applied
incorrectly).
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The essential issue under scrutiny is the touching of A.C.’s sexual or
intimate parts.4 This evidence was testified to at trial by the victim and
corroborated by other witnesses for the Commonwealth. The jury was free
to believe all, part, or none of the testimony, and as evidenced by the guilty
verdict, did believe that Appellant had touched A.C.’s sexual or intimate
parts regardless of inconsistencies in location and frequency. Further, there
were no facts in this case which so contradicted the essential issue as to
render the jury’s finding a mere guess. Accordingly, we conclude the trial
court did not exercise its judgment in a manifestly unreasonable manner
when it found that the verdict was not contrary to the weight of the
evidence.
Judgment of sentence AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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4
See 18 Pa.C.S. § 3126(a)(7). See also 18 Pa.C.S. § 6301(a)(1)(ii).
Indecent contact is defined as, “[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. § 3101.
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