J-A09032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA JAMES STUMP,
Appellant No. 1405 MDA 2015
Appeal from the Judgment of Sentence March 31, 2015
in the Court of Common Pleas of Lebanon County
Criminal Division at No.: CP-38-CR-0001012-2013
BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 02, 2016
Appellant, Joshua James Stump, appeals from the judgment of
sentence imposed following his bench trial conviction of endangering the
welfare of a child, corruption of minors and three counts of indecent assault.
Appellant challenges the weight of the evidence. We affirm.
We derive the facts of the case from the trial court’s opinion of July 15,
2015, denying Appellant’s post-sentence motions, the court’s Rule 1925(a)
opinion of October 2, 2015, and our independent review of the record.
Appellant’s conviction stems from a course of conduct with his
daughter, when she was between the ages of about eleven to thirteen. P.N.,
the Victim, testified that at the time she was spending alternate weeks in the
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*
Retired Senior Judge assigned to the Superior Court.
J-A09032-16
custody of her father. After Appellant’s new wife left him, he began making
advances on his daughter, P.N., while they were watching TV or when she
was asleep. He tried to fondle her breasts, and he pressed his penis against
her buttocks. Shortly afterward, the Victim severely broke her leg in a
soccer accident. The fracture required her to be in a cast for several
months, and after that, a boot. She stopped visiting her Father’s house, and
her Mother (C.N.) eventually obtained full custody.
There was some delay in reporting the sexual assaults. Eventually,
however, P.N. confided in her best friend, who urged her to tell her Mother.
C.N., P.N.’s Mother, told the Pennsylvania State Police, and Trooper Nathan
Trate began an investigation.
Notably, P.N.’s younger half-sister, A.S., soon made similar allegations
against Appellant.1 However, at trial, A.S. essentially recanted her charges.
She told her caseworker she had “lied” or “fibbed” because she thought that
was what her mother wanted her to say. (N.T. Trial, 10/13/14, at 51, 151).
She later changed course again and insisted that “something happened” to
her as well as P.N. (Id. at 58). The trial court acquitted Appellant of all
charges involving A.S. (See id. at 169-70).
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1
Appellant was the father of both girls, by different mothers. The trial court
identifies A.S. as Mother’s [C.N.’s] “other daughter.” (Trial Court Opinion,
10/02/15, at 4). However, this appears to be a misreading of the testimony.
K.S. testified that A.S. was her daughter, and she reported sexual abuse by
Appellant. (See N.T. Trial, 10/13/14, at 88, 90; see also id. at 67) (C.N.
confirming that K.S. is the mother of A.S.).
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Also at trial, defense counsel pointed out some discrepancies between
P.N.’s original oral version of her complaint and the later written version.
Counsel further sought to suggest, by questioning, that P.N.’s charges arose
out of resentment because her father stopped visiting her after only one or
two hospital visits following the soccer accident.2
The trial court convicted Appellant of the charges previously noted,
and, as also noted, acquitted Appellant of all charges involving A.S. The
court specifically emphasized that it found P.N. credible. (See Trial Court
Opinion 7/15/15, at 10; Trial Ct. Op. 10/02/15, at 7). The court adopted
Trooper Trate’s assessment of the discrepancies in P.N.’s statements as
“slight.” (Trial Ct. Op, 10/02/15, at 9). On March 31, 2015, the court
sentenced Appellant to an aggregate term of incarceration in a state
correctional institution of not less than one year nor more than two years, to
be followed by five years of probation. (See N.T. Sentencing, 3/31/15, at
31-32).
On April 9, 2015, Appellant filed consolidated post-sentence motions
challenging the weight and the sufficiency of the evidence, which the court
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2
Appellant exercised his constitutional right not to testify at trial. Prior to
trial, in an interview with Trooper Trate, he denied all charges. (See N.T.
Trial, 10/13/14, at 119).
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denied on July 15, 2015, with an accompanying opinion. This timely appeal
followed.3
Appellant presents one question for our review:
Were the trial court’s guilty verdicts based upon
conclusions which are contrary to the record, and therefore
against the weight of the evidence?
(Appellant’s Brief, at 3).4
Notably, Appellant does not challenge the credibility determinations of
the trial court. (See id. at 5, 9) (“Appellant is not asking the Superior Court
to second guess Judge Charles’ credibility determinations.”);(see also id. at
9).
Instead, he argues that the trial court improperly concluded that P.N.
wanted to limit contact with her Father (by not spending alternate weeks
with him any more) and that he took steps to limit his contact with her.
(See id. at 5). Appellant maintains that these two conclusions were
unsupported by the record, making the verdict against the weight of the
evidence. He also maintains there was an absence of corroborating physical
evidence. (See id. at 9).
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3
Appellant filed a timely concise statement of errors on August 31, 2015.
See Pa.R.A.P. 1925(b). The court filed an opinion on October 2, 2015. See
Pa.R.A.P. 1925(a).
4
On appeal, Appellant has abandoned his challenge to the sufficiency of the
evidence. (See Appellant’s Brief, at 4).
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Appellant asserts that “the [c]ourt’s guilty verdicts were premised on
conclusions which were unsupported by and contrary to the testimony.”
(Id. at 10). We disagree.
Our standard of review for a weight claim is well-settled and our scope
of review is exceptionally narrow:
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, 560
Pa. 308, 319, 744 A.2d 745, 751–52 (2000); Commonwealth
v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (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, 560 Pa. at 319–20,
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 with all the facts is to deny justice.’ ” Id. at 320,
744 A.2d 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, 538 Pa. at 435, 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, 467 Pa. 50, 354 A.2d
545 (Pa. 1976). One of the least assailable reasons for
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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, 560 Pa. at 321–
22, 744 A.2d at 753 (emphasis added).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based
on a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is not
exercised for the purpose of giving effect to the will of the
judge. Discretion must be exercised on the foundation of
reason, as opposed to prejudice, personal motivations,
caprice or arbitrary actions. Discretion is abused where the
course pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill-will.
Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184–
85 (1993)).
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). Similarly,
[s]o long as that evidence is legally sufficient, the trial court may
grant a new trial based on evidentiary weight only in the most
limited of circumstances:
The weight given to trial evidence is a choice for the
factfinder. 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.
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As an appellate court, our standard of review is more attenuated
still, as we may adjudge only the trial court’s exercise of
discretion in entertaining the defendant’s challenge:
When a trial court denies a weight-of-the-evidence motion,
and when an appellant then appeals that ruling to this
Court, our review is limited. It is important to understand
we do not reach the underlying question of whether the
verdict was, in fact, against the weight of the evidence.
We do not decide how we would have ruled on the motion
and then simply replace our own judgment for that of the
trial court. Instead, this Court determines whether the
trial court abused its discretion in reaching whatever
decision it made on the motion, whether or not that
decision is the one we might have made in the first
instance.
Commonwealth v. Stays, 70 A.3d 1256, 1267-68 (Pa. Super. 2013)
(citations omitted).
Here, on review, we discern no basis on which to disturb the
determination of the trial court. Appellant fails to demonstrate that the law
was misapplied, or that the trial court’s denial was a result of partiality,
prejudice, bias or ill-will. See Clay, supra at 1055. Instead, Appellant
focuses on two issues: first, the reason for P.N.’s change of heart about
visiting her Father, and second, Father’s perceived limitation of contact with
his daughter. (See Appellant’s Brief, at 5-9).
Appellant argues that the alteration of P.N.’s visitation schedule was
actually caused by logistical problems arising out of the cast for her broken
leg. (See id. at 7). He also asserts that P.N.’s Mother (C.N.), not he,
caused the reduction in his visitation time with his daughter by her
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successful petition for full custody. “[T]he lack of contact . . . was in spite
of, and not due to Appellant’s efforts.” (Id. at 9).
However, Appellant’s offer of substitute reasons for those given by the
trial court misapprehends the nature of our review.
We do not decide how we would have ruled on the motion and
then simply replace our own judgment for that of the trial court.
Instead, this Court determines whether the trial court abused its
discretion in reaching whatever decision it made on the motion,
whether or not that decision is the one we might have made in
the first instance.
Stays, supra at 1268 (citation omitted).
In this case, we discern no abuse of discretion. It bears noting that
neither of the two issues addressed by Appellant focuses directly on guilt or
innocence. Rather, they affect, at most, P.N.’s motive for discontinuing
week-long visits with her Father, and, possibly, evidence of Appellant’s
consciousness of guilt. Even if we were to assume for the sake of argument
that the trial court assessed these facts incorrectly, they neither prove nor
disprove the underlying crimes. As such, at worst they amount to no more
than an “error of judgment,” not enough under our standard of review to
establish abuse of discretion. Clay, supra at 1055. Appellant fails to
demonstrate that they make the underlying judgment “manifestly
unreasonable.” Id.
Additionally, Appellant’s cited authority does not support his argument.
Appellant cites Commonwealth v. Coyle, 154 A.2d 412 (Pa. Super. 1959),
for the proposition that “a reviewing court may grant a new trial on weight
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of the evidence grounds where it concludes that the fact finder has ignored
uncontradicted evidence that was offered by an unimpeached witness.”
(Appellant’s Brief, at 3). However, the case is readily distinguishable. In
Coyle, the jury ignored uncontradicted testimony from a noted pathologist
that three different blood groupings for a mother, a child, and the putative
father made it biologically impossible for the defendant to be a possible
father of the child.5 See Coyle, supra at 416. The facts here are not
analogous.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2016
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5
Specifically, the pathologist testified without dispute that in two separate
tests the defendant was in blood group ‘O’, the mother was in blood group
‘A’, and the child was in blood group ‘B’, excluding paternity by the
defendant as “biologically impossible.” Coyle, supra at 413.
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