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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
PATRICK T. FRIES, : No. 2627 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, May 17, 2016,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0004483-2015
BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 15, 2017
Appellant, Patrick T. Fries, appeals from the May 17, 2016 judgment of
sentence entered in the Court of Common Pleas of Delaware County after a
jury convicted him of rape of a child, aggravated indecent assault of a child,
and indecent assault -- complainant less than 13 years old.1 The trial court
imposed an aggregate sentence of 15 to 30 years of imprisonment. We
affirm.
The trial court set forth the following factual history:
Due to the on-again, off-again incarceration of
their mother [], the victim in this matter B.M., then
12 years old, and her younger sister M.M. were in
the legal custody of their grandmother[].
[Grandmother] enlisted the help of the [a]ppellant to
help care for the victim and her sister. Appellant
was a friend of the children’s mother.
1
18 Pa.C.S.A. §§ 3121(c), 3125(b), and 3126(a)(7), respectively.
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At trial, the victim testified that she was at
[a]ppellant’s home on January 10, 2015. After
several hours there, she went to sleep and she
awoke in the middle of the night to find the
[a]ppellant on top of her with his penis in her vagina.
On January 21, 2015, the victim went to the home of
her friend, [B.M.], age 13, and told her friend that
she had been raped by the [a]ppellant. The victim’s
mother and grandmother were contacted shortly
thereafter and the next day they went to the
Prospect Park Police Department to make formal
allegations to Sgt. William Bozeman. Subsequently,
they were directed to Taylor Hospital where a
physical examination of the victim was conducted by
emergency room physician, Dr. Tameka King.
The [a]ppellant was subsequently arrested and
charged with Rape of a Child and related charges. At
trial, all of the aforementioned persons testified on
behalf of the Commonwealth. In addition thereto,
Dr. June Messam was qualified at trial as an expert
in the field of child sexual abuse evaluations and
pediatrics. She examined the victim on March 11,
2015 and testified that on the date of the
examination, the victim had physical findings
“consistent with a patient like [B.M.] reporting that
she was sexually assaulted[.”]
The [a]ppellant testified in his own defense.
He denied raping the victim or ever touching her. He
further testified that earlier in the day in which she
originally reported the assault, he and the victim had
an argument concerning his disciplining of her and
her wanting her mother back in her life and him out
of it. He testified that she told him “if you don’t
allow my mom to come back I am going to say that
you did something. . . . I will make it up if I have
to. . . .”
Additionally, the [a]ppellant’s mother,
Maureen Fries, testified that on the night in question
she observed the victim sleeping alone in a chair in
the downstairs living room on multiple occasions
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throughout the night as opposed to the [a]ppellant’s
bedroom on the second floor where the victim
testified the assault took place. The defense also
introduced a series of text messages sent back and
forth between the victim and the [a]ppellant
covering the period between the actual assault and
the day she first reported it (11 days later) which
could be characterized as friendly in nature and not
consistent with something being exchanged between
a victim and her rapist. Finally, the [a]ppellant
offered several character witnesses testifying to his
good character as a law abiding and non-violent
person.
Trial court opinion, 12/6/16 at 2-3 (citations to notes of testimony and
footnote omitted; ellipses in original).
The record reflects that following his conviction and imposition of
sentence, appellant filed both a post-trial motion and a motion for
reconsideration of sentence, which the trial court denied. The trial court
then appointed counsel to represent appellant on direct appeal. Appellant
filed a timely notice of appeal, and the trial court ordered appellant to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant
complied, and the trial court then filed its Pa.R.A.P. 1925(a) opinion.
Appellant raises the following issues for our review:
[1.] Did the Trial Court abuse its discretion when it
denied the Appellant’s Motion in Limine to
exclude prior bad acts?
[2.] Whether the evidence was sufficient to support
the convictions?
[3.] Whether the convictions were against the
weight of the evidence?
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Appellant’s brief at 7.
Appellant first complains that the trial court abused its discretion when
it denied appellant’s motion in limine to exclude prior bad acts.
“On appeals challenging an evidentiary ruling of the trial court, our
standard of review is limited. A trial court’s decision will not be reversed
absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d
1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not
merely an error of judgment, but rather 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.” Id. at 1184-
1185 (citations omitted).
Generally, evidence of prior bad acts or
unrelated criminal activity is inadmissible to show
that a defendant acted in conformity with those past
acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad
acts may be admissible when offered to prove some
other relevant fact, such as motive, opportunity,
intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Pa.R.E. 404(b)(2).[ 2]
2
Rule 404. Character Evidence; Crimes or Other
Acts
....
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a
crime, wrong, or other act is not
admissible to prove a person’s
character in order to show that on
a particular occasion the person
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In determining whether evidence of other prior bad
acts is admissible, the trial court is obliged to
balance the probative value of such evidence against
its prejudicial impact.
Id. at 1185 (citations to case law omitted).
Here, the record reflects that the trial court permitted the
Commonwealth to introduce evidence of prior bad acts; specifically, the
victim’s testimony that during a trip to North Carolina, the victim fell asleep
on a pull-out couch and awoke in appellant’s bed; that there were other
incidents that occurred at appellant’s home where the victim would wake up
in appellant’s bed, despite falling asleep elsewhere, and that her clothes
would be disheveled or removed; and that appellant would have the victim
exercise at his home. (Order granting Commonwealth’s motion to admit
evidence under Pa.R.E. 404(b), 1/19/16.)
acted in accordance with the
character.
(2) Permitted Uses. This evidence
may be admissible for another
purpose, such as proving motive,
opportunity, intent, preparation,
plan, knowledge, identity, absence
of mistake, or lack of accident. In
a criminal case this evidence is
admissible only if the probative
value of the evidence outweighs its
potential for unfair prejudice.
....
Pa.R.E. 404(b)(1)-(2).
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The trial court permitted the Commonwealth to present this evidence:
for the purpose of: (1) demonstrating [appellant’s]
intent in regard to his actions toward the
child-victim, (2) to refute any claim of mistake in
regard to the nature of [appellant’s] actions, and
(3) evidence which formed part of the chain or
sequence of events, the res gestae exception,
leading to the alleged crime at issue and it enhanced
the natural development of the facts.
[] The prior incidents involving the same child-victim
were part of the history of the case. In addition, the
Court held that the probative value of the additional
evidence outweighed any potential prejudice against
[a]ppellant. The evidence established [appellant’s]
intent, common plan, scheme or design to engage in
unlawful, and similar, sexual conduct with the
alleged victim.
Trial court opinion, 12/6/16 at 9-10; see also order granting
Commonwealth’s motion to admit evidence under Pa.R.E. 404(b), 1/19/16 at
unnumbered page 4, ¶¶ 12-13.
Appellant complains that the admission of the victim’s testimony that
she fell asleep with knowledge of how she was dressed and with knowledge
that appellant was in close physical proximity, only to wake up --
sometimes in appellant’s bed -- to find her clothes in disarray, backwards,
and/or removed was an abuse of discretion because this testimony was not
corroborated; no expert testified that “the victim had been the victim of
numerous prior sexual assaults”; the victim did not testify that appellant was
“in any way responsible for these clothing incidents;” that “[i]t is an
unnatural leap to suggest that because a young woman woke on occasions
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with her clothes in disarray that it shows: Intent to rape; absence of
mistake as to [a]ppellant’s actions; or the history of the case” and that the
“prejudice outweighs ANY probative value.” (Appellant’s brief at 18
(emphasis in original).) We disagree.
First, we are aware of no law, and appellant fails to cite to any, that
requires that the victim’s testimony be corroborated to be admissible as a
prior bad act. Second, the victim’s testimony was not admitted to
demonstrate that appellant had sexually assaulted her in the past. Rather,
the testimony was admitted for the purpose of showing appellant’s intent to
commit the crimes of which he was convicted, absence of mistake in the
commission of those crimes, and to set forth the natural development of the
facts of the case giving rise to the crimes of which appellant was convicted.
Finally, appellant has failed to demonstrate how this testimony was so
prejudicial as to cause the jury to decide the case on an improper basis.
This court has emphasized that “evidence will not be prohibited merely
because it is harmful to the defendant. [A trial] court . . . is not required to
sanitize the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at hand.”
Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa.Super. 2009). See
Commonwealth v. Foley, 38 A.3d 882, 891 (Pa.Super. 2012) (exclusion of
evidence on the grounds that it is prejudicial “is limited to evidence so
prejudicial that it would inflame the jury to make a decision based upon
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something other than the legal propositions relevant to the case”). Here,
the victim did not testify that appellant had previously sexually assaulted her
or that appellant was responsible for removing her clothes or causing them
to be in disarray while she was asleep. To the contrary, the victim merely
testified to occasions where she would fall asleep in one state of dress and
inexplicably wake up in another -- and, on some of those occasions, she
would wake up in appellant’s bed. We find no abuse of discretion.
Appellant next complains that the evidence was insufficient to support
his convictions. Preliminarily, it is well settled that when challenging the
sufficiency of the evidence on appeal, that in order to preserve that issue for
appeal, an appellant’s Rule 1925(b) statement must specify the element or
elements upon which the evidence was insufficient. Commonwealth v.
Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670
(Pa. 2010) (citation and internal quotation marks omitted).
Here, in his Rule 1925(b) statement, appellant fails to identify which
element or elements of the crimes of which he was convicted were
insufficient. Rather, appellant meagerly frames his sufficiency challenge, as
follows: “The evidence was insufficient to support the jury’s verdict of guilty
[of] Rape of a Child, Aggravated Indecent Assault of a Child under 13 years
of age and Indecent Assault of a Person under 13 years of age.”
(Appellant’s concise statement of matters complained of on appeal pursuant
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to Pa.R.A.P. 1925(b), 10/17/16 at unnumbered page 2, ¶ 5.) Therefore,
appellant failed to preserve his sufficiency challenge for appeal.
Nevertheless, a reading of appellant’s brief reveals that appellant
challenges the sufficiency and the weight of the evidence within the same
argument, contending that the “record is rife with inconsistencies.”
(Appellant’s brief at 19.) Appellant’s sole challenge with respect to the
evidence, therefore, is to its weight, not its sufficiency. See
Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003) (a
review of the sufficiency of the evidence does not include a credibility
assessment; such a claim goes to the weight of the evidence);
Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997) (the
fact-finder makes credibility determinations and challenges to those
determinations go to the weight of the evidence, not the sufficiency of the
evidence).
The essence of appellate review for a weight claim
appears to lie in ensuring that the trial court’s
decision has record support. Where the record
adequately supports the trial court, the trial court
has acted within the limits of its discretion.
....
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. 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.
Rather, the role of the trial judge is to determine
that notwithstanding all the facts, certain facts are so
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clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny
justice.
....
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.
Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations
and quotation marks omitted). “In order for a defendant to prevail on a
challenge to the weight of the evidence, ‘the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the court.’”
Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013).
In his brief, appellant invites us to do nothing more than assess
witness credibility and reweigh the evidence in an attempt to convince us to
reach a different result than the jury reached. We decline appellant’s
invitation. The jury, as fact-finder, had the duty to determine the credibility
of the testimony and evidence presented at trial. See Talbert, 129 A.3d at
546 (citation omitted). Appellate courts cannot and do not substitute their
judgment for that of the fact-finder. See id.
Our review of the record supports our conclusion that the trial court
properly exercised its discretion in denying appellant’s weight of the
evidence claim.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2017
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