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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JESSIE JAMES HOLLEY :
:
Appellant : No. 1353 WDA 2017
Appeal from the Judgment of Sentence August 8, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014168-2014
BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 15, 2018
Appellant, Jessie James Holley, appeals from the judgment of sentence
entered on August 8, 2017, as made final by the denial of his post-sentence
motion on August 24, 2017. We affirm.
On September 27, 2014, Appellant’s girlfriend was scheduled to babysit
11-year-old A.M. (“Victim”). She, however, sent Appellant to watch Victim.
While Victim was playing video games, Appellant touched her legs, breasts,
and vagina while kissing her neck. Victim retreated to a bedroom. Appellant
convinced her to open the door and then entered the bedroom. He touched
her vagina and then penetrated her vagina with his fingers. Appellant took
Victim’s clothes off, performed oral sex on her, and raped her. The next
morning, Victim reported the assault.
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* Retired Senior Judge assigned to the Superior Court.
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On November 18, 2014, the Commonwealth charged Appellant via
criminal information with 11 offenses. Appellant proceeded to trial in
September 2015. The jury was unable to reach a unanimous verdict and the
trial court declared a mistrial. Appellant proceeded to a second trial in
December 2016. The trial court declared a mistrial after evidence was not
provided to both parties. A third trial was held in March 2017. The trial court
declared a mistrial after evidence was not disclosed to either party.
Finally, a fourth trial was held in May 2017. Appellant was convicted of
two counts of indecent assault of a child under 13 years old,1 rape of a child,2
involuntary deviate sexual intercourse with a child,3 aggravated indecent
assault of a child,4 unlawful contact with a minor,5 aggravated indecent assault
of a child under 13 years old,6 corruption of minors,7 and indecent exposure.8
On August 8, 2017, the trial court sentenced Appellant to an aggregate term
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1 18 Pa.C.S. § 3126(a)(7).
2 18 Pa.C.S.A. § 3121(c).
3 18 Pa.C.S.A. § 3123(b).
4 18 Pa.C.S.A. § 3125(b).
5 18 Pa.C.S. § 6318(a)(1).
6 18 Pa.C.S. § 3125(a)(7).
7 18 Pa.C.S. § 6301(a)(1)(ii).
8 18 Pa.C.S. § 3127(a).
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of 35 to 70 years’ imprisonment. On August 24, 2017, the trial court denied
Appellant’s timely post-sentence motion. This timely appeal followed.9
Appellant presents two issues for our review:
1. [Was the verdict against the weight of the evidence?
2. Did the trial court abuse its discretion by sentencing Appellant
to an aggregate term of 35 to 70 years’ imprisonment?]
Appellant’s Brief at 9.
In his first issue, Appellant argues that the verdict was against the
weight of the evidence. A defendant is entitled to a new trial based on the
weight of the evidence “only when the verdict is so contrary to the evidence
that it shocks one’s sense of justice[.]” Commonwealth v. Smith, 181 A.3d
1168, 1187 (Pa. Super. 2018) (citation omitted). “[W]hen an appellate court
reviews a weight claim, the court is reviewing the exercise of discretion by the
trial court, not the underlying question of whether the verdict was against the
weight of the evidence.” Commonwealth v. Jacoby, 170 A.3d 1065, 1080
(Pa. 2017) (citation omitted).
Appellant contends that the verdict was against the weight of the
evidence for several reasons. First, he argues that Victim’s testimony he
penetrated her vagina with his fingers and penis was inconsistent with her
prior testimony and statements to investigators. It is well-settled that
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9Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
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“questions regarding [a witness’] motives or prior inconsistent statements
[are] classic issues of credibility to be decided by the jury.” Commonwealth
v. Sanchez, 36 A.3d 24, 40 (Pa. 2011). This is particularly true where the
defendant had “ample opportunity to impeach [a witness’] credibility during
cross-examination and, indeed, was able to develop the [witness’] motives
and highlight inconsistencies [with prior testimony].” Id.
Appellant’s counsel cross-examined Victim regarding her prior
inconsistent testimony. Moreover, Appellant’s counsel cross-examined the
investigators regarding Victim’s inconsistent statements. Although Victim
conceded that her trial testimony was inconsistent with some of her prior
testimony and prior statements to investigators, there was also evidence that
showed Victim’s trial testimony was consistent with past statements.
Specifically, an investigator testified that Victim told him that Appellant
penetrated her vagina with his fingers and penis. See N.T., 5/3/17, at 145-
146. Hence, Victim’s testimony was not inconsistent with all of her prior
statements. Instead, Victim clarified her prior inconsistent statements at trial.
Appellant drew the jury’s attention to these inconsistent statements; however,
the jury believed Victim’s trial testimony. Cf. Commonwealth v. Brown,
186 A.3d 985, 991 (Pa. Super. 2018) (citation omitted) (The jury, “while
passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.”). Accordingly,
the trial court reasonably exercised its discretion by finding the verdict was
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not against the weight of the evidence because of Victim’s prior inconsistent
statements regarding penetration.
Appellant also argues that the verdict was against the weight of the
evidence because Victim testified that she looked at a clock in the bedroom to
note the time the assault occurred. A photograph of the bedroom, however,
did not show a clock in the bedroom. This argument fails for two reasons.
First, the location of the clock that Victim used to note the time of the assault
was tangential to the key questions the jury decided. Second, the owner of
the house testified that the bedroom contained a clock and was unsure why
the photograph did not show the clock. The jury could have inferred that the
clock was moved after the assault and prior to taking the photograph. Hence,
the trial court reasonably exercised its discretion by finding the verdict was
not against the weight of the evidence because of Victim’s testimony regarding
the clock.
Next, Appellant argues that the scientific evidence was inconclusive.
Appellant’s DNA was found in two locations – on the washcloth in the bathroom
and on the sheet that covered the bed upon which the Victim was raped.
Victim testified that she used that washcloth to wipe away Appellant’s semen
after the rape. She also testified that Appellant used the bathroom after
raping her. According to Appellant, his DNA could have been transferred to
the washcloth after using the restroom and the semen present on the
washcloth could have come from a different source. This is pure conjecture.
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The most reasonable inference from this evidence was that Appellant’s DNA
was on the washcloth because Victim used it to wipe away Appellant’s semen.
Hence, the trial court reasonably exercised its discretion by finding the verdict
was not against the weight of the evidence because of inconclusive scientific
evidence.
Victim testified that she reported the assault while upstairs. Her aunt
testified that she reported the assault downstairs in the kitchen. According to
Appellant, this contradictory evidence shows that the verdict was against the
weight of the evidence. This argument is without merit because Victim’s
testimony was generally consistent with her aunt’s testimony. Both testified
that Victim reported the rape via a note she passed to the aunt. The exact
location of where the note was given to Victim’s aunt was tangential to the
central issues the jury was tasked with deciding. Hence, the trial court
reasonably exercised its discretion by finding the verdict was not against the
weight of the evidence because of the inconsistent testimony regarding the
location the note was handed to Victim’s aunt.
Victim testified that Appellant hit his head on the nightstand when she
pushed him off of her. Appellant argues that this testimony shows that the
verdict was against the weight of the evidence because there was no bruise
present on his head. It is common sense, however, that a bruise does not
form every time an individual bangs his or her head against a hard surface.
Hence, the trial court reasonably exercised its discretion by finding the verdict
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was not against the weight of the evidence because of the testimony that
Appellant hit his head after being pushed off of Victim.
Finally, Appellant argues that the verdict was against the weight of the
evidence because of Victim’s statements regarding semen on her stomach.
This argument is based on a misreading of Victim’s trial testimony. At trial,
Victim testified that Appellant did not ejaculate on her stomach. N.T., 5/3/17,
at 101. She did not testify that her stomach was dry. Victim told investigators
that Appellant rubbed his penis on her stomach. See N.T., 5/4/17, at 197-
198. In other words, Victim’s stomach was wet even though Appellant did not
ejaculate on her stomach. Therefore, her trial testimony was not inconsistent
with her statements to investigators. Hence, the trial court reasonably
exercised its discretion by finding the verdict was not against the weight of
the evidence because of the testimony regarding Victim’s wet stomach.
We have reviewed the entire trial transcript. Taken as a whole, we are
unable to conclude that the trial court abused its discretion by finding that the
guilty verdict did not shock its sense of justice. Accordingly, Appellant is not
entitled to relief on his weight of the evidence claim.
In his second issue, Appellant argues that the trial court abused its
discretion by sentencing him to an aggregate term of 35 to 70 years’
imprisonment. This argument challenges the discretionary aspects of his
sentence. Pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
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Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id.
In order to reach the merits of a discretionary aspects claim,
we must engage in a four part analysis to determine: (1) whether
the appeal is timely; (2) whether the appellant preserved his or
her issue; (3) whether the appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question that the
sentence is appropriate under the Sentencing Code.
Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018) (cleaned
up). Appellant filed a timely notice of appeal, preserved the issue in his post-
sentence motion, and included a Pennsylvania Rule of Appellate Procedure
2119(f) statement in his appellate brief. Thus, we turn to whether Appellant
raises a substantial question related to the discretionary aspects of his
sentence.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Radecki, 180 A.3d
441, 468 (Pa. Super. 2018) (citation omitted). “A substantial question is
raised when an appellant advances a colorable argument that the trial court’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Patterson, 180 A.3d 1217, 1232 (Pa. Super.
2018) (cleaned up).
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In his Rule 2119(f) statement, Appellant argues that the trial court failed
to offer specific reasons for its harsh sentence. This argument presents a
substantial question. See Commonwealth v. Dunphy, 20 A.3d 1215, 1222
(Pa. Super. 2011) (citation omitted). Accordingly, we proceed to analyze the
merits of Appellant’s discretionary aspects challenge.
“Sentencing is a matter vested in the sound discretion of the [trial
court], and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super.
2017) (en banc) (citation omitted). Pursuant to statute, “the sentence
imposed should call for confinement that is consistent with the protection of
the public, the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of the
defendant.” 42 Pa.C.S.A. § 9721(b). “The [trial] court is not required to
parrot the words of the Sentencing Code, stating every factor that must be
considered under Section 9721(b), however, the record as a whole must
reflect due consideration by the court of the statutory considerations at the
time of sentencing.” Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa.
Super. 2017), appeal denied, 184 A.3d 944 (Pa. 2018) (cleaned up).
Moreover, when a trial court reviews a presentence investigation report prior
to imposing a sentence, “we can assume the trial court was aware of the
relevant information regarding the defendant’s character and weighed those
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considerations along with mitigating statutory factors.” Radecki, 180 A.3d at
471 (cleaned up).
When sentencing a defendant, the trial court is required to consider the
sentencing guidelines. Commonwealth v. Melvin, 172 A.3d 14, 21 (Pa.
Super. 2017) (citation omitted). Because the trial court sentenced Appellant
within the sentencing guidelines, he is only entitled to relief on his
discretionary aspects claim if “the application of the guidelines would be
clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).
Appellant contends that the trial court did not meaningfully consider the
section 9721(b) factors and did not offer specific reasons for its harsh
sentence. We disagree. The trial court did not parrot the words of the
Sentencing Code; however, its explanation of the sentence indicates it
considered all of the section 9721(b) factors and that it offered specific
reasons for the harsh sentence. Specifically, the trial court referenced
Appellant’s threat to the community while he was being supervised by the
judicial system, i.e., the need to protect the public. N.T., 8/8/17, at 6-7.
Second, the trial court noted the serious nature of the offenses, i.e., the
gravity of the offense as it relates to the victim and the community. See id.
Finally, the trial court found that Appellant was incapable of rehabilitation, i.e.,
the rehabilitative needs of the defendant. See id.
Although the trial court did not use the Sentencing Code’s terminology,
the record reflects that it meaningfully considered all of the relevant section
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9721(b) factors and offered specific reasons for its sentence. Hence, this case
is distinguishable from Commonwealth v. Coulverson, 34 A.3d 135 (Pa.
Super. 2011), the case relied on by Appellant. In that case, the trial court did
not give meaningful consideration to the section 9721(b) factors and failed to
offer specific reasons for its harsh sentence. Moreover, in Coulverson the
trial court sentenced the defendant to a maximum period of incarceration two
and one-half times that required by statute given the minimum sentence. Cf.
42 Pa.C.S.A. § 9756(b)(1) (minimum sentence must be no more than one-
half the maximum sentence). In this case, the trial court sentenced Appellant
to a maximum term of imprisonment that was the least required by statute
given the minimum sentence of 35 years’ imprisonment.
A sentence of 35 to 70 years’ imprisonment “fits” Appellant’s
circumstances. See Appellant’s Brief at 43. He was in a position of trust –
babysitting for Victim. He abused that trust by sexually assaulting Victim
while she played video games. When she retreated to the bedroom, he
followed her and convinced her to open the door. He then viciously raped an
11-year-old child.
Appellant’s history indicates that he is not a good candidate for
rehabilitation. He continued his criminal activity after being released from
both state and county incarceration and had trouble complying with the terms
of his supervision. Considering all of these factors, we are unable to hold that
a sentence of 35 to 70 years’ imprisonment was “clearly unreasonable.” 42
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Pa.C.S.A. § 9781(c)(2). Hence, Appellant is not entitled to relief on his
discretionary aspects challenge.
Judgment of sentence affirmed.
McLaughlin, J., joins.
Strassburger, J., files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2018
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