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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TONY L. WILLIAMS,
Appellant No. 701 EDA 2016
Appeal from the Judgment of Sentence November 23, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0012448-2013
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 04, 2017
Appellant, Tony L. Williams, appeals from the judgment of sentence
imposed after his bench conviction of unlawful contact with a minor,
corruption of minors, and indecent assault without consent.1 We affirm.
The trial court opinion aptly sets forth the pertinent facts as follows:
On March 10, 2013, around 3:00 a.m., the complainant
(“Z.H.”) was at her aunt’s father’s house on the 6800 block of
Dyer Street in the City and County of Philadelphia, PA. Z.H. was
sleeping in the living room area of the house when [Appellant],
who is Z.H.’s cousin, physically woke her up. [Appellant] asked
her to touch his private parts and Z.H. refused. [Appellant] then
touched Z.H. on her vagina, over her clothes two times.
[Appellant] then attempted to grab Z.H.’s waist. [Appellant] told
her that “if [she] wanted anything [she] could get it.” The
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6318(a)(1), 6301(a)(1)(i), and 3126(a)(1), respectively.
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incident occurred for twenty to thirty minutes. At the time of the
assault, Z.H. was thirteen years old. Z.H. reported the incident
to police the next day and gave a statement.
(Trial Court Opinion, 10/11/16, at 2-3) (record citations omitted).
On January 23, 2015, after a bench trial, the court convicted Appellant
of the foregoing offenses. The court deferred sentencing for the preparation
of a presentence investigation report (PSI) and an assessment by the Sexual
Offender Assessment Board (SOAB). On November 23, 2015, after a
hearing, the court found that the Commonwealth proved by clear and
convincing evidence that Appellant is a sexually violent predator (SVP). The
same day, Appellant was sentenced to a term of not less than one-and-one-
half nor more than five years’ incarceration on the unlawful contact with a
minor charge, followed by five years of sex offender probation. Appellant
filed a post-sentence motion on November 28, 2015 that the court denied on
February 3, 2016. On February 26, 2016, Appellant timely appealed.2
Appellant raises three questions for this Court’s review:
I. Whether the weight of the evidence was against
Appellant’s convictions for unlawful contact with a minor,
corruption of minors, and indecent assault without consent?
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2
On April 26, 2016, this Court granted Appellant’s petition for remand on
the basis of counsel’s per se ineffectiveness in failing to file a court-ordered
statement of errors complained of. See Pa.R.A.P. 1925(c)(3). On the same
date, Appellant filed his statement of errors complained of on appeal nunc
pro tunc. See Pa.R.A.P. 1925(b). The trial court filed an opinion on October
11, 2016. See Pa.R.A.P. 1925(a).
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II. Whether the evidence was insufficient to convict Appellant
of unlawful contact with a minor, corruption of minors, and
indecent assault without consent?
III. Whether the trial court abused its discretion when it
classified Appellant as [an SVP] and given [sic] an excessively
punitive sentence of one and a half [] to five [] years’
incarceration on the unlawful contact with a minor charge[?]
(Appellant’s Brief, at 8) (unnecessary capitalization and Crimes Code
citations omitted).
In his first issue, Appellant maintains that “[t]he weight of the
evidence is against [his] convictions.” (Id. at 17).3 Specifically, he argues
that “[t]he sum of ZH’s prior statements and in court testimony is an
implausible narrative, resulting in a failure of the Commonwealth to meet its
burden of proof beyond a reasonable doubt.” (Id. at 18). We disagree.
When we review a weight-of-the-evidence challenge, we
do not actually examine the underlying question; instead, we
examine the trial court’s exercise of discretion in resolving the
challenge. This type of review is necessitated by the fact that
the trial judge heard and saw the evidence presented. Simply
put, [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. A new trial is
warranted in this context only when the verdict is so contrary to
the evidence that it shocks one’s sense of justice and the award
of a new trial is imperative so that right may be given another
opportunity to prevail.
Of equal importance is the precept that, [t]he finder of fact
. . . exclusively weighs the evidence, assesses the credibility of
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3
Appellant raised this issue in his post-sentence motion. See Pa.R.Crim.P.
607(A)(3).
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witnesses, and may choose to believe all, part, or none of the
evidence.
Commonwealth v. Rayner, 153 A.3d 1049, 1056 (Pa. Super. 2016)
(citations and quotation marks omitted).
In this case, we decline Appellant’s invitation to re-weigh the evidence.
The trial court presided over Appellant’s trial as the finder of fact and found
Z.H.’s testimony that Appellant asked her to touch his private parts, touched
her vagina above her clothes twice, and told her “if [she] wanted anything
that [she] could get it[,]” to be credible. (Trial Ct. Op., at 3 (citing N.T.
Trial, 1/23/15, at 10)). The verdict is not shocking to this Court’s sense of
justice and the trial court did not abuse its discretion in denying Appellant’s
motion for a new trial. See Rayner, supra at 1056. Therefore, his first
issue does not merit relief.
In his second claim, Appellant argues that the evidence was
insufficient to support his conviction. (See Appellant’s Brief, at 18-19). This
issue is waived and would not merit relief.
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant’s Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. Such
specificity is of particular importance in cases where, as here,
the appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must
prove beyond a reasonable doubt.
Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super. 2015)
(citations and quotation marks omitted).
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Here, Appellant’s Rule 1925(b) statement argues only that “[t]he
Commonwealth presented insufficient evidence to sustain a conviction
beyond a reasonable doubt. There were simply too many people in the room
for this event to have occurred according to the complainant.” (Appellant’s
Rule 1925(b) Statement, at 1 ¶ 2). This statement does not identify which
element or elements of the crimes, or even which crimes, the
Commonwealth allegedly failed to prove. Therefore, Appellant’s second
issue is waived.4 See Freeman, supra at 1248.
Moreover, it would not merit relief. It is well-settled that:
In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial, and all
reasonable inferences drawn from that evidence, when viewed in
the light most favorable to the Commonwealth as verdict winner,
was sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Reese, 2017 WL 750789, at *5 (Pa. Super. filed Feb.
27, 2017) (citation omitted). Further, it is well-settled that, “under
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4
Appellant’s brief is similarly deficient. His entire “argument” regarding
sufficiency of the evidence is approximately one page long, cites only
boilerplate law on the standard of review of a sufficiency of the evidence
claim, and his “discussion” merely consists of a recitation of the facts in the
light most favorable to him, without any analysis of how those facts failed to
establish the elements necessary for a conviction of unlawful contact with a
minor, corruption of minors, and indecent assault. (See Appellant’s Brief, at
18-19). Therefore, we deem Appellant’s issue to be waived on this basis as
well. See Pa.R.A.P. 2101, 2119(a)-(b).
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prevailing Pennsylvania law, the uncorroborated testimony of a sexual
assault victim, if believed by the trier of fact, is sufficient to convict a
defendant[.]” Commonwealth v. Trippett, 932 A.2d 188, 201 (Pa. Super.
2007) (citation and internal quotation marks omitted).
In this case, the trial court convicted Appellant of unlawful contact with
a minor, corruption of minors, and indecent assault without consent. To
sustain a conviction for unlawful contact with a minor as charged in this
case, the Commonwealth must prove beyond a reasonable doubt that the
defendant intentionally contacted a minor, for the purpose of engaging in a
prohibited sexual offense. See 18 Pa.C.S.A. § 6318(a)(1). Section 6301,
corruption of minors, states, in relevant part that, “whoever, being of the
age of [eighteen] years and upwards, by any act corrupts or tends to corrupt
the morals of any minor less than [eighteen] years of age . . . commits a
misdemeanor of the first degree.” 18 Pa.C.S.A. § 6301(a)(1)(i).5 Finally,
section 3126 of the Crimes Code provides, in pertinent part, that a person is
guilty of indecent assault if, without the complainant’s consent, “the person
has indecent contact with the complainant [or] causes the complainant to
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5
“In deciding what conduct can be said to corrupt the morals of a minor,
[t]he common sense of the community, as well as the sense of decency,
propriety and the morality which most people entertain is sufficient to apply
the statute to each particular case, and to individuate what particular
conduct is rendered criminal by it.” Commonwealth v. Decker, 698 A.2d
99, 101 (Pa. Super. 1997), appeal denied, 705 A.2d 1304 (Pa. 1998)
(citations and quotation marks omitted).
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have indecent contact with the person . . . for the purpose of arousing
sexual desire in the person or the complainant[.]” 18 Pa.C.S.A. §
3126(a)(1).
Here, at the time of the incident, Appellant was over the age of
eighteen, and his cousin, Z.H., was thirteen years’ old. (See N.T. Trial, at
8). Z.H. testified that Appellant woke her up at approximately three a.m.,
asked her to touch his private parts, touched her on her vagina over her
clothes twice, and tried to grab her waist. (See id. at 8-10). During the
twenty to thirty minute incident, Appellant told Z.H. that “if [she] wanted
anything[,] [she] could get it.” (Id. at 10). Z.H. reported the incident to
the police the next day. (See id. at 17-18). Based on the foregoing, we
conclude that the trial court properly found that this evidence was sufficient
to sustain Appellant’s convictions. See Reese, supra at *5; see also
Trippett, supra at 201; 18 Pa.C.S.A. §§ 3126(a)(1), 6301(a)(1)(i),
6318(a)(1). Appellant’s second issue would not merit relief, even if properly
raised in his Rule 1925(b) statement.
In his third issue, Appellant makes two arguments, that he “was
incorrectly sentenced as [an SVP]” and that he “[was] given an excessively
punitive sentence[.]” (Appellant’s Brief, at 19) (unnecessary capitalization
omitted). Appellant’s issue does not merit relief.
We address Appellant’s SVP challenge first. Appellant argues that “the
Commonwealth did not meet their [sic] burden of clear and convincing
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evidence that Appellant is [an] SVP.” (Id. at 21). Although this claim
challenges the sufficiency of the evidence, Appellant’s Rule 1925(b)
statement again fails “[to] state with specificity the element or elements
upon which the appellant alleges that the evidence was insufficient.”
Freeman, supra at 1248 (citation omitted). Therefore, this argument is
waived. Moreover, it would not merit relief.
If a person appeals an SVP designation and contends the
evidence supporting that designation was insufficient, our
standard of review is clear. We do not weigh the evidence
presented to the sentencing court and do not make credibility
determinations. Instead, we view all the evidence and its
reasonable inferences in a light most favorable to the
Commonwealth. We will disturb an SVP designation only if the
Commonwealth did not present clear and convincing evidence to
enable the court to find each element required by the SVP
statutes.
Commonwealth v. Feucht, 955 A.2d 377, 381-82 (Pa. Super. 2008),
appeal denied, 963 A.2d 467 (Pa. 2008) (citations omitted).
In this case, Dr. Thomas F. Haworth, Ph.D., testified at the sentencing
hearing that, in his expert opinion, Appellant met the criteria for designation
as an SVP. (See N.T. Sentencing, 11/23/15, at 25). He reached this
conclusion after reviewing, inter alia, the SOAB investigator’s report,
Pennsylvania Justice Network (JNET) photo searches, the affidavit of
probable cause, the criminal complaint, Appellant’s mental health evaluation,
and the PSI. (See N.T. Sentencing, at 8; see also SVP Assessment,
4/10/15, at 1-2). He considered all of the factors required for conducting an
SVP assessment and concluded that Appellant suffers from antisocial
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personality disorder, which is associated with increased recidivism in sexual
offenders. (See N.T. Sentencing, at 10-25). Doctor Haworth noted that
Appellant’s criminal history includes a prior crime of sexual violence against
a thirteen-year-old, and that he has a pattern of callous indifference toward
the impact his exploitation of others has on them. (See id. at 20, 23). He
concluded that, due to this mental abnormality, Appellant has a likelihood of
engaging in predatory sexually violent offenses because his “antisocial
strivings [override] his volitional control.” (Id. at 24; see id. at 24-25).
The doctor concluded, to a reasonable degree of professional certainty, that
Appellant meets the criteria for designation as an SVP. (See id. at 25).
Based on the foregoing and our independent review of the record, we
conclude that the trial court did not abuse its discretion in finding that “the
Commonwealth [presented] clear and convincing evidence to enable [it] to
find each element required by the SVP statutes.” Feucht, supra at 382
(citation omitted). Appellant’s argument in this regard would not merit
relief, even if it were not waived.
Next, Appellant claims that the trial court abused its discretion when it
sentenced him to “an excessively punitive sentence of one and a half [] to
five [] years[’] incarceration on the unlawful contact with a minor charge.”
(Appellant’s Brief, at 10). He maintains that the sentence “was above the
guidelines [and] without sufficient explanation on the record[.]” (Id. at 26).
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This issue challenges the discretionary aspects of Appellant’s sentence,
which “should be considered a petition for allowance of appeal.”
Commonwealth v. Hicks, 151 A.3d 216, 226 (Pa. Super. 2016) (citation
omitted).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and 903; (2)
whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant’s brief has a fatal defect, [see] Pa.R.A.P.
2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not
appropriate under the Sentencing Code, [see] 42
Pa.C.S.A. § 9781(b).
Id. (case citation omitted).
In the case before us, Appellant’s Rule 2119(f) statement claims that
“the trial court abused its discretion when it imposed a manifestly excessive
sentence . . . of one and a half [] to five [] years’ incarceration for unlawful
contact with a minor[] . . . without putting its reasons on the record.”
(Appellant’s Brief, at 10) (unnecessary capitalization omitted).6 However, in
his post-sentence motion, although Appellant iterated the terms of his
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6
Appellant also improperly includes his SVP claim in the Rule 2119(f)
statement. (See Appellant’s Brief, at 10). As already discussed, this
allegation challenges the sufficiency of the evidence, not the discretionary
aspects of sentencing.
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sentence, he did not allege that it was excessive or that the court failed to
support it by placing its reasons on the record. (See Post-Sentence Motion,
11/28/15, at unnumbered page 1 ¶ 4). Therefore, Appellant failed to
preserve his discretionary aspects of sentence issue. See Commonwealth
v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008), appeal denied, 972 A.2d 521
(Pa. 2009) (“[F]or any claim that was required to be preserved, this Court
cannot review a legal theory in support of that claim unless that particular
legal theory was presented to the trial court.”) (citation omitted).
Moreover, although his claim does raise a substantial question, see
Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super. 2006), it would
not merit relief.
It is well-settled that “[s]entencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion.” Commonwealth v.
Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal denied, 95 A.3d
275 (Pa. 2014) (citation omitted). Importantly, “[w]here pre-sentence
reports exist, we shall . . . presume that the sentencing judge was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. A pre-sentence
report constitutes the record and speaks for itself.” Id. at 761 (citation
omitted).
In this case, before sentencing Appellant, the court stated:
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In fashioning its sentence, the [c]ourt has considered that 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 the
community, and the rehabilitative needs of [Appellant].
The [c]ourt has also considered the [PSI], the SOAB
report, the Commonwealth’s sentencing memorandum,
argument of counsel, testimony from [Appellant’s] mother [],
and [Appellant’s] allocution.
(N.T. Sentencing, at 52).
Based on the foregoing, particularly the fact that the trial court had
the benefit of a PSI, which “constitutes the record and speaks for itself[,]”
we conclude that the court provided sufficient reasons for imposing
Appellant’s sentence and that it did not abuse its discretion. Antidormi,
supra at 761 (citation omitted); see id. at 760. Therefore, this argument
would not merit relief, even if it had been properly raised with the trial court.
For all of the foregoing reasons, Appellant is not entitled to relief on
his three issues.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2017
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Com. v. Williams, T.
Combined Opinion