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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAMIAN CHRISTOPHER METZ :
:
Appellant : No. 1874 MDA 2018
Appeal from the Judgment of Sentence Entered June 14, 2018
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000384-2017
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 01, 2020
Damian Christopher Metz (“Metz”) appeals from the judgment of
sentence entered on June 14, 2018 following his conviction for indecent
assault of a person less than 13 years of age.1 He challenges the sufficiency
and weight of the evidence, as well as the application of the Sex Offender
Registration and Notification Act, 42 Pa.C.S.A. §§ 9799.10-9799.41
(“SORNA”), and the amendments thereto. We affirm the judgment of
sentence.
Metz was charged with various sexual offenses stemming from an
allegation that he inappropriately touched his cousin’s four-year-old daughter.
The evidence at trial revealed that in March of 2017, Metz attended a party
attended by approximately 15 adults and six children, including the victim.
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1 18 Pa.C.S.A. § 3126(a)(7).
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N.T., 3/15/18-3/16/18, at 152-153, 185-186, 202. Several weeks afterward,
the victim’s maternal grandmother was giving the victim a bath and the victim
reported that Metz had put his hand inside her pants and rubbed her vagina
while they were at the party. Id. at 20-22. The victim’s maternal grandmother
told the victim’s mother about what the victim had said. Id. at 22-23. The
victim’s mother then told the victim’s paternal great-grandmother who
reported the abuse to Children and Youth Services (“CYS”). Id. at 81-82, 172-
173, 175. CYS reported the allegations to the Pennsylvania State Police who
conducted an investigation. Id. at 147-148. State Trooper Jeffrey Hahn filed
charges against Metz on July 6, 2017. Id. at 157.
The child was examined by an emergency room doctor approximately
two months after the party, on May 18, 2017, and the doctor found no
evidence of sexual trauma. Id. at 54-55. The child was examined by a second
doctor on June 20, 2017 and July 12, 2017, who also concluded that there
was no evidence of sexual trauma. Id. at 143-145.
The child did not testify at the trial. However, a DVD of the child’s
forensic interview conducted by the Cambria County Child Advocacy Center
was played for the jury.2 During the forensic interview, the child disclosed that
Metz put his hand under her clothes and rubbed her vagina while they were
outside on the porch at the party. Commonwealth Exhibit 2.
____________________________________________
2Prior to trial, the trial court ruled that the child was unavailable as a witness
and that the DVD forensic interview was admissible.
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Metz did not testify at the trial. However, he presented several witnesses
who testified that they were at the party and did not see Metz and the victim
alone together at the party at any time. N.T., 3/15/18-3/16/18, at 185-186,
204, 230-231, 238, 242-243. Several defense witnesses also testified that the
victim’s mother was known in the community for her dishonesty. Id. at 178-
79, 186, 204-205, 214-215, 219, 224, 230, 239. Additionally, there was
testimony that there was an ongoing custody dispute of the child between the
maternal side of the family and the paternal side of the family. Id. at 26, 65,
173.3
The jury convicted Metz of indecent assault of a person less than 13
years of age. He was sentenced to 10 to 24 months of incarceration and was
ordered to register pursuant to SORNA. Metz filed a timely appeal raising the
following three issues for our review:
1. Is Mr. Metz entitled to a verdict of acquittal, given that
the evidence presented against him was so weak and
tenuous?
2. Alternatively, is Mr. Metz entitled to a new trial, given
that the great weight of the evidence demonstrated that
he was innocent, and that evidence discovered after trial
supports his innocence?
3. Should Mr. Metz be exempt from registration under the
Sex Offenders Registration and Notification Act, given
____________________________________________
3There was also testimony that the victim had been adjudicated dependent
and was in the legal custody of CYS for reasons unrelated to this case. N.T.,
3/15/18-3/16/18, at 51-52, 70-71. At the time of trial, the victim was placed
with her paternal great-grandmother. Id. at 71.
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that no constitutionally valid version of the Act was in
effect at the time of his alleged conduct?
Metz’s Br. at 3-4.
Metz first argues that the evidence against him at trial was insufficient
to support the conviction because it was weak and inconclusive. Metz’s Br. at
11. Metz contends, based on the victim’s demeanor in the forensic interview,
that the interview of the victim showed that the victim was inadvertently
coached by the forensic interviewer or actively coached by her mother. Id.
Metz also argues that the victim’s mother’s testimony was contradictory, as
she provided four different dates spanning a period of two weeks in May 2017
as to when she first learned of the allegations against Metz. Id. at 13.
Further, Metz maintains that the medical evidence regarding potential
injuries to the victim carried no conclusive weight in favor of the
Commonwealth since there was no medical evidence that the victim had
suffered sexual trauma. Id. at 14. Metz also argues his statements to the
police that he “never babysat [the victim] because he never wanted to be
accused of molesting kids” and that he played with the victim for 15 to 20
minutes at the party lacked any probative value and could not be accepted as
evidence against Metz. Id. at 14-15.
These arguments lack merit. When reviewing a challenge to the
sufficiency of the evidence, our standard of review is de novo, while “our scope
of review is limited to considering the evidence of record, and all reasonable
inferences arising therefrom, viewed in the light most favorable to the
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Commonwealth as the verdict winner.” Commonwealth v. Rushing, 99 A.3d
416, 420-21 (Pa. 2014). “Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime charged and
the commission thereof by the accused, beyond a reasonable doubt.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The
Commonwealth may sustain its burden by means of wholly circumstantial
evidence. Commonwealth v. Dix, 207 A.3d 383, 390 (Pa.Super. 2019).
Further, “any doubt about the defendant’s guilt is to be resolved by the fact-
finder unless the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined circumstances.”
Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa.Super. 2011) (quoting
Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa.Super. 2010)). Additionally,
“this Court may not substitute its judgment for that of the factfinder, and
where the record contains support for the convictions, they may not be
disturbed.” Commonwealth v. Smith, 146 A.3d 257, 261 (Pa.Super. 2016).
Metz was convicted of indecent assault of a person less than 13 years
of age. Indecent assault is defined, in relevant part, as follows:
(a) Offense defined.--A person is guilty of indecent assault
if the person has indecent contact with the complainant,
causes the complainant to have indecent contact with the
person or intentionally causes the complainant to come into
contact with seminal fluid, urine or feces for the purpose of
arousing sexual desire in the person or the complainant and:
…
(7) the complainant is less than 13 years of age[.]
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18 Pa.C.S.A. § 3126(a)(7).
Viewing all of the evidence admitted at trial in the light most favorable
to the Commonwealth as verdict-winner, the evidence was sufficient to
establish all of the elements of indecent assault. It was undisputed that the
victim was four years old at the time of the incident. The Commonwealth
presented the testimony of the victim’s maternal grandmother that while she
was giving the victim a bath, the victim voluntarily disclosed that Metz put his
hand inside her pants and rubbed her vagina while they were at the party.
The Commonwealth also presented the testimony of the victim’s mother, the
doctor who examined the child, the forensic interviewer, and the state trooper
who investigated the case.
Most significantly, the Commonwealth presented a DVD forensic
interview of the child to the jury, in which the child plainly disclosed that Metz
had rubbed her vagina under her pants. It is well-settled that “the
uncorroborated testimony of the complaining witness is sufficient to convict a
defendant of sexual offenses.” Commonwealth v. Lyons, 833 A.2d 245, 258
(Pa.Super. 2003) (citation omitted); see also 18 Pa.C.S.A. § 3106 (“The
credibility of a complainant of an offense under this chapter [regarding sexual
offenses] shall be determined by the same standard as is the credibility of a
complainant of any other crime. The testimony of a complainant need not be
corroborated in prosecutions under this chapter”). Moreover, the record is
devoid of any evidence that the child was “coached.” Accordingly, we conclude
the evidence was sufficient to sustain a conviction for indecent assault.
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Metz next challenges the weight of the evidence. He contends that six
defense witnesses testified that the only time that Metz and the victim were
both at the home where the party occurred at the same time was in March of
2017, and even then, they were never alone together. Metz’s Br. at 17.
Further, Metz argues that numerous witnesses testified that the victim’s
mother had a reputation for dishonesty. Id. at 17-18. Metz again asserts that
there was testimony presented at trial that the victim was the subject of an
ongoing custody battle between the maternal and paternal sides of the family.
Id. at 18. Metz states that the victim’s mother had motivation to fabricate an
accusation against the paternal side of the family, which included Metz, and
therefore coached her daughter to lie about the accusation against Metz. Id.
Metz’s argument is without merit.
When reviewing a weight challenge on appeal, we do not determine
ourselves whether the verdict was against the weight of the evidence. Rather,
we review the trial court’s exercise of its discretion in determining, in the first
instance, whether to sustain the challenge. Commonwealth v. Johnson, 192
A.3d 1149, 1152-1153 (Pa.Super. 2018) (citation omitted). The trial court
may grant a new trial based on a weight of the evidence claim only “where
the jury’s verdict is so contrary to the evidence that it shocks one’s sense of
justice.” Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011).
Further, “[w]hen the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s decision is
extremely limited.” Commonwealth v. Bowen, 55 A.3d 1254, 1262
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(Pa.Super. 2012) (citation omitted). Usually, “unless the evidence is so
unreliable and/or contradictory as to make any verdict based thereon pure
conjecture, these types of claims are not cognizable on appellate review.” Id.
Here, the trial court found the verdict was not against the weight of the
evidence, noting the jury was free to determine the credibility of the
witnesses. Trial Court Opinion, filed January 11, 2019, at 4. By virtue of the
verdict, it is clear that the jury, as the fact-finder and sole judge of credibility,
believed the victim’s statements over the testimony of the defense witnesses
and chose not to accept Metz’s theory of the case. The jury was free to believe
all, part, or none of the evidence presented in judging the credibility of the
witnesses, and presumably found the child to be credible. Houser, 18 A.3d at
1135-1136. The jury’s choice not to believe Metz’s version of the events was
purely within its discretion and will not be disturbed on appeal. See
Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160-161 (Pa.Super. 2007).
Metz essentially asks that we reassess and reweigh the evidence presented at
trial, which we will not do. Our review of the record indicates that the evidence
supporting the jury verdict is not tenuous, vague, or uncertain. Therefore, we
discern no abuse of discretion in the trial court’s denial of Metz’s weight
challenge.
Metz further argues that he should be granted a new trial because
evidence discovered after the trial supports his innocence. Metz’s Br. at 19.
Specifically, Metz’s attorney states that shortly after the trial, he was informed
by a witness who had testified at the trial that the victim had been reviewing
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family photographs with a family member and was unable to identify Metz
when viewing a photograph of him. Id. at 20. Metz states that this evidence
directly contradicts the evidence presented in the DVD forensic interview in
which the child identified Metz as the perpetrator of the crime. Id.
A new trial may be granted on the basis of after-discovered evidence
only if it is demonstrated that the evidence:
(1) could not have been obtained prior to the conclusion of
the trial by the exercise of reasonable diligence; (2) is not
merely corroborative or cumulative; (3) will not be used
solely to impeach the credibility of a witness; and (4) would
likely result in a different verdict if a new trial were granted.
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.Super. 2010) (quoting
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008)). “The test is
conjunctive; the defendant must show by a preponderance of the evidence
that each of these factors has been met in order for a new trial to be
warranted.” Id. Further, a trial court’s refusal to grant a new trial on the basis
of after-discovered evidence will not be disturbed on appeal absent a clear
abuse of discretion. Commonwealth v. Weis, 611 A.2d 1218, 1228
(Pa.Super. 1992).
Here, Metz’s purported after-discovered evidence would be used solely
to impeach the credibility of the victim, namely the victim’s identification of
Metz as the perpetrator. “A defendant seeking a new trial must demonstrate
he will not use the alleged after-discovered evidence solely to impeach a
witness’s credibility.” Commonwealth v. Griffin, 137 A.3d 605, 610
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(Pa.Super. 2016) (internal quotation marks and citation omitted). As such,
Metz has failed to satisfy the third prong of the after-discovered evidence test
and this issue is without merit.
Lastly, Metz argues that he should not be required to register under
SORNA because SORNA is unconstitutional as applied to him. Metz’s Br. at 23.
He points out that in Commonwealth v. Muniz, 164 A.3d 1189, 1195 (Pa.
2017), the Pennsylvania Supreme Court declared SORNA’s then-existing
registration provisions unconstitutional as applied to a defendant whose crime
occurred before SORNA’s passage in 2012. He also notes that since Muniz,
the General Assembly amended SORNA with the passage of Act 10, which had
an effective date of February 21, 2018. He claims that because his crime took
place in March 2017 – i.e., before Act 10’s effective date – application of
SORNA to him violates the Ex Post Facto Clauses of both the United States
and Pennsylvania Constitutions. Id.
An ex post facto violation can occur in several contexts, but only one is
relevant here. A law violates the Ex Post Facto Clause of the Pennsylvania and
United States Constitutions if it increases a crime’s punishment from that
which was in effect at the time of the crime’s commission. Muniz, 164 A.3d
at 1195.
SORNA came into existence in 2011, with an effective date of December
20, 2012. In Muniz, the Pennsylvania Supreme Court found that applying
SORNA to those who committed crimes before SORNA’s enactment violated
the Ex Post Facto Clause of the Pennsylvania Constitution. 164 A.3d at 1223.
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In response, the General Assembly enacted Acts 10 and 29 of 2018.
Commonwealth v. Alston, 212 A.3d 526, 529 (Pa.Super. 2019). The
General Assembly “modified Subchapter H’s registration requirements for
those offenders convicted of committing offenses that occurred on or after
SORNA’s” original effective date in 2012. Commonwealth v. Bricker, 198
A.3d 371, 375 (Pa.Super. 2018). It also created Subchapter I, which applies
to sexual offenders who committed an offense on or after April 22, 1996, but
before December 20, 2012, and contains less stringent reporting requirements
than Subchapter H. Alston, 212 A.3d at 529.
Metz’s argument is too undeveloped to afford him relief, as he does not
argue that the modified version of Subchapter H in effect in the wake of Acts
10 and 29 amounts to punishment, or that the punishment increased from
that in effect at the time of his crimes. See Pa.R.A.P. 2119.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2020
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