Com. v. Stalter, J.

Opinion

J-S16045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA :

Appellee :

v. :

:

JOSEPH PAUL STALTER :

:

Appellant : No. 895 MDA 2017 :

Appeal from the Judgment of Sentence April 30, 2014 in the Court of Common Pleas of York County Criminal Division at No.: CP-67-CR-0004612-2013

BEFORE: BOWES, J., MURRAY, J., and PLATT*, J. MEMORANDUM BY PLATT, J.: FILED JULY 20, 2018 Appellant, Joseph Paul Stalter, appeals from the judgment of sentence entered in the York County Court of Common Pleas following his conviction by a jury of involuntary deviate sexual intercourse by threat of forcible compulsion,1 involuntary deviate sexual intercourse with a child (less than thirteen years of age),2 indecent assault without complainant’s consent,3

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1 18 Pa.C.S.A. § 3123(a)(2). 2 18 Pa.C.S.A. § 3123(b). 3 18 Pa.C.S.A. § 3126(a)(1).

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* Retired Senior Judge assigned to the Superior Court.

J-S16045-18

corruption of minors,4 and terroristic threats.5 The jury acquitted Appellant of aggravated indecent assault of a child. The court imposed an aggregate sentence of not less than ten nor more than twenty years of incarceration in a state correctional institution. Appellant did not file a post-sentence motion. On appeal, this Court affirmed judgment of sentence and our Supreme Court denied allowance of appeal. Pursuant to that appeal, the trial court filed a Rule 1925(a) opinion. (See Trial Court Opinion, 6/25/14) y; see also Pa.R.A.P. 1925.

This appeal follows the court’s permission to file a post-sentence motion (nunc pro tunc), and the court’s subsequent denial of that motion. On appeal, Appellant challenges the sufficiency and the weight of the evidence. We affirm on the basis of the trial court opinions.

In its opinions, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them at length here. For the convenience of the reader, we note briefly that the complainant, K.K. (Victim), told family members and a friend that on two occasions, her mother’s then-boyfriend forced her to perform oral sex and related acts, with the threat that he would harm her and her mother if she did not. Appellant also hit the Victim when she bit his penis to stop the

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4 18 Pa.C.S.A. § 6301. 5 18 Pa.C.S.A. § 2706(a)(1).

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J-S16045-18

oral sex. The Victim was between nine and ten years of age at the relevant times. Her mother was away working at a third shift job when the incidents occurred. When the Victim told other family members, they called the police.

Appellant presents three questions for our review:

I. Whether the trial court erred in concluding that the jury’s finding of guilty on the charges of Involuntary Deviate Sexual Intercourse, Involuntary Deviate Sexual Intercourse with a Child Less than 13 Years Old, Indecent Assault and Corruption of Minors was sufficient based on the evidence presented at trial, as it relates to K.K.?

II. Whether the trial court erred in concluding that the jury’s finding of guilty on the charges of Involuntary Deviate Sexual Intercourse, Involuntary Deviate Sexual Intercourse with a Child Less than 13 Years Old, Indecent Assault and Corruption of Minors was not against the weight of the evidence presented at trial, as it relates to K.K.?

III. Whether the trial court erred in concluding that the jury’s finding of guilty on the charge of Terroristic Threats was not against the weight and sufficiency of the evidence presented at trial, as it relates to K.K.?

(Appellant’s Brief, at 5).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the trial court, we conclude that there is no merit to the issues Appellant has raised on appeal. The trial court opinions properly dispose of the questions presented. (See Trial Court Opinion, 7/11/17, at 4-11; (see also Trial Ct. Op., 6/25/14, at 1-8) (concluding: (1) uncorroborated testimony of complaining witness, if believed by jury, is sufficient to convict Appellant of sexual offenses; (2) Commonwealth proved all elements of every count for which jury convicted

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J-S16045-18

Appellant, beyond a reasonable doubt; (3) jury found Victim credible; and (4) weight of evidence was not so contrary as to shock trial court’s sense of justice). Accordingly, we affirm on the basis of the trial court’s opinions.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/20/2018

Circulated 06/27/2018 10:49 AM

IN THE COURT OF COMMON PLEAS YORK COUNTY PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA : Docket No. CP-67-CR-4612-2013 v. : 895 MDA 2017

JOSEPH STALTER

Defendant

OPINION PURSUANT TO RULE 1925(a) OF THE PENNSYLVANIA RULES OF APPELLATE PROCEDURE

This matter is before the Court again on Defendant's appeal of our order of May 3, 2017, denying post -sentence motions filed by Defendant. The motions were filed as a result of a PCRA proCeeding which resulted in an April 24, 2017 order granting relief and permitting Defendant to file the post-sentence motions.

FACTUAL AND PROCEDURAL HISTORY:

4"4 N.1 4r),

On January 24, 2014, the Defendant, Joseph Stalter, was convicted, after a

Lt ,ial by jury, of Involuntary Deviate Sexual Intercourse, Involuntary Deviate z:c.

5Dc5- exoal Intercourse less than 13 years of age`, Indecent Assault', Corruption of

1 18 Pa.C.S.A. § 3123(a)(2)

2 18 Pa.C.S.A. § 3123(b)

3 18 Pa.C.S.A. § 3126(a)(1)

Minors4, and Terroristic Threats5, and acquitted on the charge of Aggravated Indecent Assault of a Child, after a jury trial prosecuted by Assistant District Attorney Stephen R. McDonald, Esq., at which the Defendant was represented by J. Richard Robinson, Esq. On April 30, 2014, Defendant was sentenced to serve 5-

10 years' incarceration on the involuntary deviate sexual intercourse count, 10-20 years' incarceration on the involuntary deviate sexual intercourse less than 13 years of age count, 1-2 years' incarceration on the indecent assault count, 12 months of probation for the corruption of minors count, and 12 months of probation for the terroristic threats count. All counts were set to run concurrently to one another, giving the Defendant a total aggregate sentence of 10 to 20 years'

incarceration.

On May 6, 2014, Defendant, through counsel, filed a Notice of Appeal to the Superior Court. On April 24, 2015, the Superior Court denied Defendant's appeal. On June 1, 2015, Defendant filed a petition for allowance of appeal to the Pennsylvania Supreme Court. On October 27, 2015, the Pennsylvania Supreme Court denied Defendant's petition for an appeal.

On October 25, 2016, Defendant filed his first PCRA petition, pro se. On October 28, 2016, the Court appointed T. Korey Leslie, Esq. as counsel for the

4 18 Pa.C.S.A. § 6301(a)(1) 5 18 Pa.C.S.A. § 2706(a)(1)

Defendant's case. On April 24, 2017, we issued an order granting Defendant's PCRA petition and permitted Defendant to file post -sentence motions. On May 1,

2017, Defendant filed a motion for post -sentence relief pursuant to Pennsylvania. Rule of Criminal Procedure 720. On May 3, 2017, we denied Defendant's post - sentence motion.

On June 2, 2017, Defendant filed a Notice of Appeal to the Superior Court.

On June 6, 2017, we issued an order directing Defendant to file a statement of errors complained of pursuant to Pa.R.A.P. 1925(b). On June 26, 2017, Defendant filed the 1925(b) statement.

For a more complete factual and procedural history of this case, the Court references its previous 1925(a) Opinion filed in this case on June 25, 2014, pages 1 through 8.

ISSUES:

The Defendant alleges three issues in his PCRA petition.

a) The Defendant avers that the evidence presented by the Commonwealth at trial was not sufficient to support the convictions handed down by the jury. The Defendant notes the lack of physical evidence to corroborate the allegations of sexual assault to support the convictions for the offenses of Involuntary Deviate Sexual Intercourse with a Child Less than 13 Years of Age, Indecent Assault, and Corruption of Minors.

b) The Defendant avers that his conviction was against the weight of the evidence presented at trial. The Defendant avers the victim's testimony was not credible and was contradicted by the testimony of other witnesses who testified at trial. As such, the testimony of the victim should not have been relied upon by the jury to convict the Defendant of Involuntary Deviate Sexual Intercourse with a Child Less than 13 Years Old, Indecent Assault, and Corruption of Minors as the weight of the evidence was in the Defendant's favor.

c) The Defendant avers that his conviction for Terroristic Threats was against the weight and the sufficiency of the evidence presented at trial. Specifically, the Defendant avers the Commonwealth did not present sufficient evidence to convict him of Terroristic Threats where the evidence presented at trial did not prove beyond a reasonable doubt that the Defendant intended to terrorize the victim with a threat of violence. Further, the testimony of the victim should not have been relied upon by the jury where it was not corroborated by other testimony and the jury's reliance upon the testimony was improper in light of the other evidence presented at trial.

DISCUSSION:

Sufficiency of the Evidence Defendant's first and third issues argue that the evidence was insufficient to convict him of Involuntary Deviate Sexual Intercourse with Child less than 13 Years of Age, Indecent Assault, Corruption of Minors, and Terroristic Threats. Defendant specifically alleges there was a lack of physical evidence presented to support these convictions by the jury. We will consolidate the sufficiency of the evidence arguments in issues one and three into one argument.

The standard of review for an appellate court reviewing a sufficiency of the evidence claim is well settled:

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`The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact -finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact -finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact -finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact 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.'

Commonwealth v. Charlton, 902 A.2d 554, 563 (Pa. Super. 2006) (quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).

This Court has previously addressed the sufficiency of the evidence of all charges in its 1925(a) Opinion filed June 25, 2014. For a review of the sufficiency of the evidence on Involuntary Deviate Sexual Intercourse, please see this Court's 1925(a) Opinion, June 25, 2014, pages ten through twelve. For a review of the sufficiency of the evidence on Indecent Assault, please see same opinion, page thirteen. For a review of the sufficiency of the evidence on Corruption of Minors, please see same opinion, page fourteen. For a review of the sufficiency of the evidence on Terroristic Threats, please see same opinion, page fourteen.

In regards to Defendant's argument that there was a lack of physical evidence to corroborate the charges, the Court notes that "it is well -established that the

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`uncorroborated testimony of the complaining witness is sufficient to convict a defendant of sexual offenses.'" Commonwealth v. Castelhun, 889 A.2d 1228, 1233 (Pa. Super. 2005) (quoting Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. 1999).

The Court finds that the Commonwealth proved all of the elements of every count Defendant was convicted of beyond a reasonable doubt. The testimony of the victim provided all of the necessary facts needed to prove all of the elements and the jury was free to believe all, part, or none of the victim's testimony. Therefore, in viewing all of the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact - finder to convict Defendant of Involuntary Deviate Sexual Intercourse with a Child Less than 13 Years Old, Indecent Assault, Corruption of Minors, and Terroristic Threats.

Weight of the Evidence Defendant's second issue argues that his conviction was against the weight of the evidence presented at trial. Defendant argues that the victim's testimony was not credible and was contradicted by the testimony of other witnesses. The Court disagrees.

"The finder of fact . . . exclusively weighs the evidence, assesses the credibility of witnesses, and may choose to believe all, part, or none of the evidence." Commonwealth v. Sanchez, 36 A.3d 24, 26-27 (Pa. 2011); citing Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004). "A challenge to the weight of the evidence is directed to the discretion of the trial judge, who heard the same evidence and who possesses only narrow authority to upset a jury verdict. Id.; citing Commonwealth v. Blakeney, 946 A.2d 645, 652-53 (Pa. 2008). "The trial judge may not grant relief based merely on 'some conflict in testimony or because the judge would reach a different conclusion on the same facts.'" Id; Blakeney, 946 A.2d at 653. "Relief on a weight of the evidence claim is reserved for 'extraordinary circumstances, when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that the right may be given another opportunity to prevail." Id. "On appeal, [the] Court cannot substitute its judgment for that of the jury on issues of credibility, or that of the trial judge respecting weight." Id.; DeJesus, 860 A.2d at 107. "[The appellate court's] review is limited to determining whether the trial court abused its discretion; the Court's role precludes any de novo consideration of the underlying weight question." Id.; citing Commonwealth v. Vandivner, 962 A.2d 1170, 1178 (Pa. 2009).

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This case was tried before a jury for two days on January 23, 2014 and January 24, 2014. The Commonwealth presented testimony from the victim,

KalbKam, the victim's mother, Lorena Kin, the victim's sister, las Kis, and one of the victim's friends, JIM DM. The Defense called Detective Hine and four character witnesses for Defendant: Bobby Shull, Mark Hoover, Karen

Bickings, and Rafael Resto.

AM Alas testimony began on page 87 of the first day of trial and ended on page 116. KUM KIIRdid not recall specific dates when the two assaults

occurred; initially saying she was nine or ten years old when Defendant assaulted

her. (Notes of Testimony, 01/23/2014, p. 88.) On redirect, KalliKtOstated the assaults happened between sixth and eighth grades because that is when she was

living with the Defendant. Id. at 113-14. KalliKdliPwas able to give specific

details of both assaults when she testified. For the first assault, Kalltestified that Defendant came into her room, laid on the bed; touched her breasts and around her

vagina, and made her touch his penis. Id. at 91-92. KM remembered that Defendant grabbed her arms tightly and told her that he would hurt her if she

didn't do what he wanted. Id. at 93. In addition, there were specific details about the Defendant lying in bed with her after the assault for a half an hour and that the assault happened at 1:00 a.m. Id.

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For the second assault, Kin remembered specific details about getting out of the shower, the Defendant hiding in the closet in her room, and the fact that

Defendant was wearing his work shirt and sweatpants. Id. at 95-96. IcilateVfied that she was forced to give Defendant oral sex and bit Defendant on his penis to

make the assault stop. Id. at 96. KIM also remembered that Defendant slapped her across the face for biting him and called her: "slut", "whore" and "bitch." Id.

Finally,i14111 was very specific that there were only two assaults that occurred and gave specific details of what happened during those two assaults. Id.

at 97. The Court finds that the testimony given by KIS Allis enough that a jury could find her testimony to be credible.

The testimony of other witnesses in the case did not contradict Kall Kip's testimony, but rather provided evidence of Defendant's conduct around

Kos testified that her mother, Lorena 111111, worked third shift at Frito Lay when the first assault happened. Id. at 105. Lorena KIK testified that, shp was fired from this job at Frito Lay because 1' would ask her to stay home from work and she

accumulated too many absent points. Id. at 118-19. Lorena also testified that

Defendant approached her about Kill locking her bedroom door and that Kin became depressed and was failing in school. Id. at 121-22.

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Km's sister, Kdwai, testified that Kali came into her room one night and appeared to be "really scared." Id. at 130. Kin had asked Kai if she could sleep with her that night because she didn't want to be alone. Id. at 130-31.

After Kag came in, Defendant came into her room drunk and "kept apologizing

and I didn't know what for." Id. at 129-30. KIS testified that Defendant came in four or five times that night, between midnight and about three or four in the

morning, after Ka', came into the room to sleep with K and only stopped

after Kak threatened to call the police. Id. at 130-32.

Klab's friend, 111111111D111, testified that Kea told her that Defendant "molested her" and began to get upset to the point where she "was on the brink of

crying." Id. at 141-42.

Defense called Detective Michael Hine to the stand. Detective Hine testified about J Dalik's reluctance to talk to the police about confession to her about Defendant. Id. at 154-55. Detective Hine also testified that when he interviewed 141111 Kai, she never told him that Defendant said to her: "I won't do anything any longer". Id. at 153. Defense also called four character witnesses, Bobby Shull, Mark Hoover, Karen Bickings, and Rafael Resto who all testified that they never heard anyone in the community make negative comments about Defendant's reputation for moral chastity around children. Id. at 159-163.

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The jury was free to believe all, part, or none of all of the witness testimony

in the case. The jury found Kar Kill's testimony was credible. The Court does not find that any of Kalb,Kaii's testimony was contradicted in a manner that

would cause this Court to find the verdict is against the weight of the evidence. The Court finds that the weight of the evidence,is not so contrary as to shock our sense of justice. Therefore, the Court does not find that the Defendant is entitled to relief on his weight of the evidence claim.

CONCLUSION:

For the reasons stated above, and those we previously set forth in our pervious 1925 opinion, we respectfully submit that the Defendant's arguments on appeal are without merit.

Copies of this statement shall be sent to counsel for the parties.

BY

Ric and K. Renn, Judge

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