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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE PALMERO :
:
Appellant : No. 2350 EDA 2015
Appeal from the Judgment of Sentence May 4, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009089-2013
BEFORE: SHOGAN, OTT and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 31, 2017
Appellant George Palmero appeals nunc pro tunc the judgment of
sentence entered in the Court of Common Pleas of Philadelphia County on
May 4, 2015, following his convictions of unlawful contact with a minor,
endangering the welfare of a child, corruption of a minor, indecent assault of
a person less than thirteen years of age and indecent exposure.1 We affirm.
The trial court aptly set forth the relevant facts herein as follows:
The following is a factual account in the light most
favorable to the Commonwealth, finding the complainant's
testimony credible. The complainant moved into her
grandmother's house, located in Philadelphia, PA with her
younger brother and mother in October, 2010. Notes of
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6318(a)(1); 4304(a)(1); 6301(a)(1); 3126(a)(7) and
3127(a), respectively.
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Testimony ("N.T."), Dec. 19, 2014, at p. 140, 143. At the time,
the complainant was three and a half years old. Id. At 139.
[Appellant] also lived in the house. Id. at 140. He was the
grandmother's paramour. Id. at 139.
[Appellant] would occasionally watch the complainant and
her brother at the grandmother's home when no one else was
home. Id. at 144-145. On more than one of these occasions,
[Appellant] had inappropriate sexual contact with the
complainant. This contact happened in the living room and in the
bedroom that the grandmother and [Appellant] shared. Id. at
23. On the occasions when the contact happened in the living
room, the complainant would lie on her back on the sofa, and
[Appellant] would stand in front of her. Id. at 24-25. He would
then partially pull down the complainant's pants and underpants,
remove his penis from his pants, touch his penis to the
complainant's vagina, and begin "moving [his penis] with his
hands." Id. at 25-27. The complainant testified that the penile-
vaginal contact felt "bad" and hurt. Id. at 27.
[Appellant] had similar contact with the complainant in the
upstairs bedroom. Id. at 32. The complainant would lie on her
back on her grandmother's bed and [Appellant] would stand
against the bed, facing the complainant. Id. at 33. [Appellant]
would pull down the complainant's pants and underpants, as well
as his own. Id. at 34. He put his penis against the complainant's
vagina, skin to skin, and began moving his penis with his hands.
Id. On at least one occasion, [Appellant] put a "plastic bag" on
his penis. Id. at 35. During these incidents, [Appellant] told the
complainant to keep quiet. Id. at 37. The complainant again
testified that the contact felt "bad" and hurt. Id. 38. The
complainant could not recall exactly when these incidents
occurred. She did remember, however, that she was living in her
grandmother's house and was in school. Id. at 39. [Appellant]
was approximately between the ages of forty-six and forty-eight.
N.T., Jan. 6, 2015, at p. 56.
The complainant, her brother, and mother moved out of
the grandmother's house in mid-January, 2013. N.T., Dec. 19,
2014, at p. 140. In April, 2013, while her mother was bathing
her, the complainant disclosed the abuse. Id. at 152-54. A report
was subsequently filed with the Philadelphia. Department of
Human Services on April 19, 2013. Id. at 210-11. The
complainant was physically examined at the Care Clinic at the
Children's Hospital of Philadelphia on April 24, 2013. Id. at 212.
The examination results were normal, neither proving nor
disproving the allegations of abuse. Id. at 213. Michelle Kline, a
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forensic interviewer with the Philadelphia Children's Alliance,
interviewed the complainant on May 6, 2013. Id. at 96. During
that interview, the complainant identified [Appellant] as the
perpetrator. Id. at 100 and 214.10
___
10
The complainant’s trial testimony was largely consistent with
the allegations made during the May 6, 2013 interview at
Children’s Alliance and with the initial DHS report. The earlier
accounts, however, referenced [Appellant] having ‘licked” the
complainant’s vagina. The complainant did not testify to this at
trial.
Trial Court Opinion, filed 3/22/16, at 2-4.
After a non-jury trial on December 19, 2014, the trial court convicted
Appellant of the aforementioned offenses and acquitted him of rape of a
child and involuntary deviate sexual intercourse with a child. The trial court
deferred sentencing so that a presentence investigation, mental health
evaluation and a Megan’s Law assessment could be completed. Ultimately,
the trial court sentenced Appellant to an aggregate term of one (1) year to
two (2) years in prison followed by fourteen years of probation to be
supervised by the State Sex Offender Unit. Appellant did not file a direct
appeal.
On July 10, 2015, Appellant filed a counseled petition pursuant to the
Post Conviction Relief Act (PCRA)2 wherein trial counsel alleged his own
ineffectiveness for failing to file a direct appeal on Appellant’s behalf and
requested that the trial court reinstate Appellant’s right to file a direct
____________________________________________
2
42 Pa.C.S.A. §§ 9541-9546.
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appeal. Following a hearing on July 29, 2015, at which time the
Commonwealth indicated it did not oppose the reinstatement of Appellant’s
direct appeal rights, the trial court reinstated Appellant’s appeal rights by
agreement. N.T. PCRA Hearing, 7/29/15, at 3. Appellant filed a notice of
appeal nunc pro tunc on August 3, 2015.3
In compliance with the trial court’s Pa.R.A.P. 1925(a) Order, Appellant
filed a timely statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b) on August 25, 2015, which reads as follows:
1. That [Appellant] is entitled to an arrest of judgment
as the evidence was insufficient to support the verdict which
found [Appellant] guilty of unlawful contact with a minor;
endangering the welfare of a child (EWC); corruption of minors;
indecent exposure; indecent assault of a minor less than 13
years.
The evidence was insufficient as to all charges. The
evidence failed to sustain the elements of each and every crime
and failed to sustain same and, when taken as a whole, was
grossly unreliable and could lead to a verdict being based on
surmise and conjecture[.]
2. [Appellant] should receive a new trial on all of the
above-stated charges, as the verdict is against the weight of the
evidence. In this review, the Court need not grant the
Commonwealth every inference but may review the evidence
anew.
In his brief, Appellant presents the following issues for our review:
I. Is [Appellant] entitled to an Arrest of Judgment on all
charges where the evidence is insufficient to sustain the verdict?
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3
Trial counsel continues to represent Appellant on appeal.
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II. Is [Appellant] entitled to a new trial on all charges where
the verdict is not supported by the greater weight of the
evidence?
Brief for Appellant at 3.
In reviewing Appellant’s challenge to the sufficiency of the evidence,
we are guided by our well-settled standard of review:
[W]e examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Commonwealth v. Doughty, ___ Pa. ____, ____, 126 A.3d 951, 958
(2015).
Recently, this Court reiterated that where an appellant challenging
multiple convictions wishes to preserve a claim that the evidence was
insufficient, his Pa.R.A.P. 1925(b) statement must specify the element or
elements upon which the evidence had been insufficient to enable this Court
to then analyze the element or elements on appeal and ultimately
determined a failure to specify the allegedly unproven elements of the
crimes in a Rule 1925(b) statement resulted in the waiver of the sufficiency
issue. Commonwealth v. Roche, 2017 WL 34931, at *8 (Pa.Super. Jan. 7,
2017). This Court further noted that waiver results notwithstanding the
Commonwealth’s failure to object to the defective Pa.R.A.P. 1925(b)
statement and the trial court’s addressing of the issue in its Rule 1925(a)
opinion. We found this to be “of no moment to our analysis because we
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apply Pa.R.A.P.1925(b) in a predictable, uniform fashion, not in a selective
manner dependent on an appellee's argument or a trial court's choice to
address an unpreserved claim. Thus, we find 1925(b) waiver where
appropriate despite the lack of objection by an appellee and despite the
presence of a trial court opinion.” Id. (citations omitted).
Herein, Appellant was convicted of five separate crimes- unlawful
contact with a minor, endangering the welfare of a child, corruption of a
minor, indecent assault of a person less than thirteen years of age and
indecent exposure- each of which was comprised of multiple elements;
however, he did not specify in his Rule 1925(b) statement the specific
element or elements of any crime which he deems the evidence presented at
his nonjury trial failed to establish beyond a reasonable doubt. The fact that
the trial court generally discussed the sufficiency of the evidence submitted
at Appellant’s nonjury trial in its Rule 1925(a) Opinion and that the
Commonwealth did not object to Appellant’s failure to file an appropriate
Pa.R.A.P. 1925(b) statement is of no moment. See id. See also
Commonwealth v. Williams, 959 A.2d 1252, 1257-58 (Pa.Super. 2008)
(finding waiver of sufficiency of evidence claim where the appellant failed to
specify in Pa.R.A.P. 1925(b) statement the elements of any particular crime
not proven by the Commonwealth); Commonwealth v. Gibbs, 981 A.2d
274, 281 (Pa.Super. 2009) (finding sufficiency claim waived under Williams
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for failure to specify which elements of crimes were not proven beyond a
reasonable doubt).
Indeed, Appellant has failed to even mention, let alone specify, in his
appellate brief the specific crimes or the specific element or elements thereof
of which he had been convicted which were allegedly not met. To the
contrary, Appellant avers he “is not attacking the ‘elements’ of the offenses;
rather, it is the defense position that [Appellant] simply did not touch the
child in any offensive or illegal manner whatsoever.” Brief for Appellant at
10. Consequently, we conclude Appellant has waived his first issue
presented herein.
Appellant next avers he is entitled to a new trial because the verdict
was not supported by the weight of the evidence. In this regard, Rule 607
of the Pennsylvania Rules of Criminal Procedure entitled Challenges to the
Weight of the Evidence, states:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for a
new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A).
Our Supreme Court has held that where the trial court reinstates one’s
direct appeal rights nunc pro tunc for trial counsel’s neglecting to file a
requested appeal, the appellant is not automatically entitled to
reinstatement of his or her post-sentence motion rights nunc pro tunc as
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well. Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089 (2009). The
Court further observed that:
[its] holding should not be construed as prohibiting a PCRA court
from reinstating a defendant's right to file post-sentence motions
nunc pro tunc. If a defendant successfully pleads and proves that
he was deprived of the right to file and litigate said motions as a
result of the ineffective assistance of counsel, a PCRA court is
free to grant such relief. Presumably, since post-sentence
motions are optional, see Pa.R.Crim.P. 720(B), rarely will
counsel be deemed to have been ineffective for failing to file
them except, for example, when the claim involves the
discretionary aspects of sentence or a challenge to a verdict on
weight of the evidence grounds, claims which must be raised in
the trial court to be preserved for purposes of appellate review.
Liston, supra at 19 n. 9, 977 A.2d at 1094 n. 9. This Court subsequently
relied upon Liston in Commonwealth v. Fransen, 986 A.2d 154
(Pa.Super. 2009), wherein we held that a PCRA petitioner who is granted
reinstatement of his direct appeal rights nunc pro tunc is not entitled to a
subsequent order reinstating his right to file post-sentence motions nunc pro
tunc if he did not request such relief from the PCRA court and if the court did
not hold an evidentiary hearing on that issue.
When considering Appellant’s challenge to the weight of the evidence
to sustain his convictions, the trial court determined he had waived this
issue for his failure to properly assert and litigate it below. Trial Court
Opinion, filed 3/22/16, at 10. In the alternative, the trial court stated that
even if Appellant had not waived this claim, it would fail because “[i]n light
of the overwhelming evidence as summarized above, the verdict is not
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contrary to the evidence and does not shock one’s sense of justice.” Trial
Court Opinion, filed 3/22/16, at 10-11.
Initially, we note that upon our review, we cannot discern whether
Appellant raised this issue orally on the record before sentencing because a
transcript of the sentencing hearing was not made part of the certified
record.4 Notwithstanding, the trial court has indicated that Appellant failed
to “submit a post-sentence motion, a written motion prior to sentencing or
putting [sic] an oral motion on the record.” Trial Court Opinion, filed
3/22/16, at 10. The record does not contain a written presentence or post-
sentence motion challenging the weight of evidence to sustain his
convictions. Furthermore, Appellant did not request nunc pro tunc relief to
file a post-sentence motion in his PCRA petition, and the trial court granted
Appellant’s PCRA petition only with respect to his request to file a direct
appeal nunc pro tunc. Therefore, Pursuant to Pa.R.Crim.P. 607, Appellant
has not preserved his weight of the evidence claim for purposes of appellate
review, and we cannot reach the merits of this issue because it is waived.5
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4
Appellant had the responsibility to ensure that the record forwarded to this
Court contained those documents necessary to allow a complete and
judicious assessment of the issues raised on appeal. Commonwealth v.
Walker, 878 A.2d 887, 888 (Pa.Super. 2005).
5
Even had Appellant properly preserved his challenge to the weight of the
evidence pursuant to the requirements of Rule 607, we would have found he
has waived it for his failure to specify the reasons why the verdicts were
contrary to the weight of the evidence in his Pa.R.A.P. 1925(b) statement.
In Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super. 2015),
(Footnote Continued Next Page)
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Judgment of sentence affirmed.6
Judge Ott joins the memorandum.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
_______________________
(Footnote Continued)
this Court addressed whether an assertion in a Rule 1925(b) statement that
“[t]he verdict of the jury was against the weight of the evidence” was too
imprecise to preserve the issue for review where the appellant had been
convicted of multiple crimes. Because the appellant had failed to specify
which verdict or verdicts were contrary to the weight of the evidence or to
offer specific reasons as to why those verdicts were contrary to the
evidence's weight, we determined that the appellant had waived review of
his weight of the evidence challenge. In doing so, we reasoned the
appellant’s phrasing of this issue was “too vague to allow the court to
identify the issues raised on appeal” and was “the functional equivalent of no
Concise Statement at all.” Id (citation omitted) citing Commonwealth v.
Seibert, 799 A.2d 54, 62 (Pa.Super. 2002) (holding appellant waived his
challenge to the weight of the evidence where his 1925(b) statement
asserted simply “[t]he verdict of the jury was against the weight of the
credible evidence as to all of the charges”).
6
Despite the fact that the trial court disposed of Appellant’s sufficiency of
the evidence claim on the merits, we note that “[t]his Court is not bound by
the rationale of the trial court, and we may affirm the trial court on any
basis.” Commonwealth v. Williams, 73 A.3d 609, 617 n. 4 (Pa.Super.
2013), appeal denied, ___ Pa. ____, 87 A.3d 320 (2014).
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Com. v. Palmero, G.
Combined Opinion