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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARK KENNETH MORNINGSTAR,
Appellant No. 1087 MDA 2014
Appeal from the Judgment of Sentence March 3, 2014
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000399-2012
BEFORE: BOWES, OTT and STABILE, JJ.
MEMORANDUM BY BOWES, J: FILED AUGUST 13, 2015
Mark Kenneth Morningstar appeals from the judgment of sentence of
eight years and ten months to twenty-five years incarceration imposed after
a jury found him guilty of involuntary deviate sexual intercourse (“IDSI”)
with a person less than thirteen years of age, indecent assault with a person
less than thirteen years of age, and corruption of a minor. We affirm.
The victim in this matter and his former stepmother first reported
incidents of sexual abuse in 2004 to the Mount Union Borough Police. Police
interviewed the victim with his stepmother and also questioned Appellant.
The victim, who at that time was eight years old, alleged that Appellant had
touched and licked the victim’s penis approximately five times. The police
did not file charges. In May of 2012, the victim, now sixteen, and having
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been adopted by a new family, appeared with his adoptive mother at the
Pennsylvania State Police barracks and again reported the abuse. Trooper
Andrew Corl of the Pennsylvania State Police contacted the Mount Union
Borough Police. Corporal Robert Lippman of the Mount Union police force
reopened the investigation. He interviewed Appellant, who adamantly
denied the charges. The victim’s allegations in 2012 were substantially the
same as in 2004. He maintained that Appellant had rubbed his penis on five
or six occasions and performed oral sex on the victim two or three times.
The Commonwealth charged Appellant with five counts each of IDSI
with a person less than thirteen, unlawful contact with a minor, corruption of
a minor, and indecent assault of a person less than thirteen.1 The
information set forth the offense date for the crimes as February 20, 2004.
Appellant proceeded to trial, and the Commonwealth elected only to pursue
one count each of the aforementioned crimes. During closing arguments,
Appellant highlighted that the Commonwealth had not presented evidence
from the victim’s former stepmother or his biological father. The
Commonwealth in its summation responded that Appellant had the ability to
subpoena witnesses in his defense. Counsel immediately objected and
argued that the Commonwealth was improperly shifting the burden to
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1
The Commonwealth proceeded on all of the indecent assault charges, one
count each of IDSI of a child less than thirteen and corruption of a minor,
and dismissed the unlawful contact counts.
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Appellant. The trial court overruled the objection, concluding that Appellant
opened the door to such argument.
Subsequently, the court instructed the jury that the Commonwealth
was not required to establish a specific date of the offense. It informed the
jury that all the Commonwealth needed to prove was that the crimes
occurred during the statute of limitations for the offenses, which it stated did
not begin to run until after the victim was eighteen. Appellant objected,
pointing out that the Commonwealth had alleged in the criminal information
that the crimes occurred on February 20, 2004. The court overruled the
objection. The jury returned guilty verdicts. Thereafter, the court
sentenced the defendant to consecutive sentences of seven and one-half to
twenty years incarceration for the IDSI charge and one year and four
months to five years imprisonment for corruption of a minor. 2 Appellant
filed timely post-sentence motions, which the court denied. This timely
appeal ensued. Appellant raises four issues for our review.
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2
The Commonwealth sought to invoke the mandatory minimum sentence of
ten years under 42 Pa.C.S. § 9718, which has since been deemed
unconstitutional. Appellant astutely observed, however, that the mandatory
minimum sentence at the time of the commission of the crimes was five
years. He therefore argued for imposition of the five-year mandatory
minimum sentence. The court declined to impose the mandatory and
imposed a greater sentence; accordingly, we are not faced with a legal
sentencing question.
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I. Whether the District Attorney committed prosecutorial
misconduct by stating the Defendant could have
subpoenaed certain witnesses in his defense.
II. Whether the Lower Court improperly instructed the jury
that the Commonwealth did not have to prove the date of
the offense when the Defense presented evidence that
Defendant was not at the alleged victim’s home in the time
period in question?
III. Whether there was insufficient evidence to support the
jury’s guilty verdict on all of the charges?
IV. Whether the jury’s verdict was against the weight of the
evidence?
Appellant’s brief at 12.
In Appellant’s third issue, he contests the sufficiency of the evidence.
Since such a claim entitles a defendant to discharge rather than a re-trial,
we address that issue at the outset. Commonwealth v. Stokes, 38 A.3d
846 (Pa.Super. 2011). In performing a sufficiency review, we consider all of
the evidence admitted, even improperly admitted evidence.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).
We view the evidence in a light most favorable to the Commonwealth as the
verdict winner, drawing all reasonable inferences from the evidence in favor
of the Commonwealth. Id.
The evidence “need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented.”
Id. When evidence exists to allow the fact-finder to determine beyond a
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reasonable doubt each element of the crimes charged, the sufficiency claim
will fail. Id. In addition, the Commonwealth can prove its case by
circumstantial evidence. Where “the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from the
combined circumstances[,]” a defendant is entitled to relief. Id. This Court
does not “re-weigh the evidence and substitute our judgment for that of the
fact-finder.” Id.
Although Appellant purports to raise a sufficiency position, his
arguments actually sound in the nature of a challenge to the weight of the
evidence. He sets forth that the evidence “was insufficient to establish the
elements of the offenses due to the inconsistency in the alleged victim’s
testimony, the lack of corroborating evidence and the extensive evidence
[Appellant] presented that he had not stayed at the victim’s house during
the time period in question.” Appellant’s brief at 23. Appellant has
disregarded our standard of review. We view the evidence of the
Commonwealth in a light most favorable to it without reweighing the
evidence. The victim’s testimony alone establishes the elements of the
offenses in question. Appellant’s sufficiency claim is devoid of merit.
Having concluded that sufficient evidence exists to support the jury’s
verdict, we address Appellant’s remaining positions. Appellant’s initial claim
is that the prosecutor committed misconduct during his closing summation
by setting forth that Appellant could have subpoenaed witnesses in his
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defense. Specifically, the prosecutor stated, “[Appellant’s attorney] could
subpoena people just like I can subpoena people. He has the same
subpoena power that I do.” N.T., 3/18/13, at 131.
Appellant submits that the prosecutor improperly asked the jury to
believe that he had to produce evidence in his favor thereby shifting the
burden of proof from the Commonwealth to him. He maintains that he was
not required to call the victim’s biological father or former stepmother. The
Commonwealth echoes the trial court’s rationale that the prosecutor’s
statement was in fair response to Appellant’s argument that the
Commonwealth did not corroborate the victim’s testimony by presenting his
biological father or former stepmother.
We consider whether a new trial is mandated due to prosecutorial
misconduct based on an abuse of discretion standard. Commonwealth v.
Culver, 51 A.3d 866, 871 (Pa.Super. 2012). A prosecutor’s comments will
not be reversible error “unless the unavoidable effect of such comments
would be to prejudice the jury, forming in their minds fixed bias and hostility
toward the defendant so that they could not weigh the evidence objectively
and render a true verdict.” Commonwealth v. Hawkins, 701 A.2d 492,
503 (Pa. 1997). Further, “comments by a prosecutor must be examined
within the context of defense counsel's conduct.” Id.
It is axiomatic that the Commonwealth bears the burden of proof in a
criminal matter and that the defendant is not required to present any
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evidence. Commonwealth v. Wiggins, 328 A.2d 520 (Pa.Super. 1974).
While we disapprove of the prosecutor’s statement that Appellant could have
subpoenaed witnesses and find that the trial court’s conclusion that
Appellant opened the door to such an argument to be improper, we cannot
agree that Appellant suffered any prejudice. Here, the trial court properly
instructed the jury that,
It is not the Defendant’s burden to prove that he is not
guilty. Instead[,] it is the Commonwealth that always has the
burden of proving each and every element of each crime charged
and that the Defendant is guilty of that crime beyond a
reasonable doubt.
Again[,] I repeat to you persons accused of a crime are not
required to present evidence or to prove anything in their own
defense.
N.T., 3/18/13, at 139-140. A jury is presumed to follow the court’s
instructions. Commonwealth v. Mollett, 5 A.3d 291 (Pa.Super. 2010).
Since the court comprehensively and appropriately instructed the jury
regarding the Commonwealth’s burden of proof and that Appellant was not
required to present any evidence, we find the prosecutor’s misstatement
does not warrant a new trial. See Commonwealth v. Johnson, 838 A.2d
663, 679 (Pa. 2003).
Appellant’s next claim is that the trial court erred in instructing the
jury that the Commonwealth was not required to prove the date of the
offense. The court instructed the jury as follows:
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There has been in this case talk about dates and I want to
make something clear. Particularly with crimes committed
against children, it is sometimes impossible, impossible to prove
that an act or an event occurred on a specific date. I say to you
that the Commonwealth has no burden of proof that a crime
occurred on a specific date or a specific month or for that matter
a specific year. The Commonwealth must prove that a crime
occurred within the statute of limitations and in crimes
committed against children; the statute of limitations does not
even being to run until the child reaches the age of 18.
N.T., 3/18/13, at 142-143. Appellant immediately objected and, as
mentioned previously, highlighted that the Commonwealth included a date of
offense in the criminal information. According to Appellant, the above
instruction was improper in this case because he presented evidence that he
was not at the victim’s residence during the period in question. Appellant
notes that the Commonwealth’s theory was that the crimes occurred
between February 20, 2004 and March 15, 2004. He adds that he presented
testimony from his then girlfriend that he stayed with her every weekend
during that period. In addition, Appellant worked a night shift from 3:00
p.m. to 1:00 a.m. Monday through Friday in that time span. In light of this
evidence, Appellant contends that the instruction was erroneous despite his
failure to provide a notice of alibi or seek an alibi instruction.
In further support, Appellant relies on Commonwealth v. Devlin,
333 A.2d 888 (Pa. 1975). In Devlin, the defendant allegedly sodomized a
mentally retarded twenty-two-year-old man. The victim reported the
incident to police on April 14, 1972. The indictment returned by the grand
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jury indicated that the crime occurred on or about April 16, 1972. The
Commonwealth presented evidence that the defendant had known the victim
since February 1971 and that the crime occurred sometime between 1971
and April 14, 1972. The Supreme Court reversed Devlin’s conviction on the
basis that the Commonwealth failed to fix the date of the commission of the
offense with reasonable certainty. Although rejecting the position that the
Commonwealth is bound by a date included in an indictment, it further
declined to find that the rule only applied in cases where a defendant
proffered an alibi defense.
We agree with Appellant to the limited extent that his failure to ask for
an alibi instruction or present a notice of alibi does not justify the court’s
instruction. See Devlin, supra. Moreover, in those instances where the
Commonwealth includes a date of offense in its information, though not
bound by that date in a sex offense case such as this,3 it is imprudent to
inform the jury that the Commonwealth is not required to establish the date
of the commission of the offense with a reasonable degree of certainty. See
id. Nonetheless, we find that Appellant is not entitled to relief.
In this case, unlike Devlin, the Commonwealth’s evidence narrowed
the date of the commission of the offenses to a time period between
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3
Proof of an exact date is, of course, not necessary. See Commonwealth
v. Devlin, 333 A.2d 888, 892 (Pa. 1975); Commonwealth v. Niemetz,
422 A.2d 1369 (Pa.Super. 1980).
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February and March of 2004. This is a far less expansive period than that at
issue in Devlin. Appellant’s defense was in no manner inhibited, as he knew
of the Commonwealth’s theory and presented his former girlfriend as an alibi
witness and provided evidence of his work schedule. The court’s instruction
also could not have wiped out Appellant’s defense since the Commonwealth’s
evidence was that the crime occurred within an approximate one-month
window. Necessarily, the jury had to decide whether the crimes occurred
during the period alleged by the victim.
Appellant’s final issue is a challenge to the weight of the evidence. A
weight claim must be preserved in a timely post-sentence motion.
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012).
“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.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)
(emphases removed). Accordingly, “[o]ne 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.” Id.
A trial judge should not grant a new trial due to “a mere conflict in the
testimony or because the judge on the same facts would have arrived at a
different conclusion.” Id. Instead, the trial court must examine whether
“‘notwithstanding all the facts, certain facts are so clearly of greater weight
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that to ignore them or to give them equal weight with all the facts is to deny
justice.’” Id. (citation omitted). Only where the jury verdict “is so contrary
to the evidence as to shock one's sense of justice” should a trial court afford
a defendant a new trial. Id. A weight of the evidence issue concedes that
sufficient evidence was introduced. Commonwealth v. Charlton, 902 A.2d
554, 561 (Pa.Super. 2006).
Appellant properly preserved his issue. He argues that for the reasons
articulated in his sufficiency claim that the jury’s verdict was so contrary to
the evidence that it shocks one’s sense of justice. We disagree. The mere
fact that the victim’s testimony and Appellant’s evidence were contradictory
does not warrant relief. Appellant’s evidence was not the type of evidence
that is so clearly of greater weight than the testimony of the victim that
crediting the victim would deny justice.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2015
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