Com. v. T.G.

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2021
• Docket: 258 MDA 2021
• Status: Unpublished

Opinion

J-S22031-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : T.G. : : Appellant : No. 258 MDA 2021

Appeal from the Judgment of Sentence Entered August 19, 2020 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001437-2018

BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: AUGUST 9, 2021

T.G.1 appeals from the judgment of sentence2 imposed in the Court of

Common Pleas of Lebanon County (trial court) after his jury conviction of rape

of a child, criminal attempt/rape, involuntary deviate sexual intercourse

(IDSI) with a child, aggravated indecent assault of a child, intimidation,

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Initials are used to denote the names of most of the individuals throughout

this Memorandum to protect the identity of the minor child involved. See Superior Court I.O.P. 424(A).

2 T.G.’s notice of appeal states that the appeal is from the order denying his

post-sentence motion. However, in a criminal action, an appeal properly lies from the judgment of sentence made final by the denial of post-sentence motions. Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation omitted), appeal denied, 800 A.2d 932 (Pa. 2002). We have amended the caption accordingly. J-S22031-21

intentional obstruction with child abuse report or investigation, indecent

assault-person less than thirteen years of age, corruption of minors,

endangering welfare of children and indecent exposure.3 We affirm.

I.

This case arises from T.G.’s September 6, 2018 arrest for the sexual

assault of J.P. at the daycare run by his wife, C.G, in their home. A two-day

trial commenced in this matter on February 24, 2020,4 and the following facts

were adduced.

A.

On Sunday, June 10, 2018, J.P. called 911, crying and scared, to report

that T.G. had raped her and had been sexually abusing her for a long time,

with the last time being on June 8, 2018, the last day she and her siblings

were at his home. (See N.T. Trial, 2/24-25/20, at 44, 121-22). A tape of the

911 call was played for the jury. (See id. at 12). J.P.’s mother testified that

she learned about the abuse that day when speaking with the 911 dispatcher.

(See id. at 44). Police immediately were dispatched to J.P.’s home, conducted

a minimal facts interview with J.P., and sent her and her mother to Harrisburg

3 18 Pa.C.S. §§ 3121(c), 901(a), 3123(b), 3125(b), 4958(a)(1), 3126(a)(7),

6301(a)(1)(ii), 4304(a)(1), 3127(a).

4 This case had two trials, the first of which resulted in a hung jury.

2 J-S22031-21

Hospital, where J.P. underwent an examination by a S.A.F.E.5 nurse, Ellen M.

Dyer, CRNP. (See id. at 45-46, 58, 64). Nurse Dyer testified that although

the physical examination results were normal, that does not mean the abuse

never happened because, in her experience, less than five percent of sexually

abused children exhibit any physical changes. (See id. at 108-09).

J.P. testified that T.G. and his wife babysat her and her siblings every

week, and that starting when she was ten to eleven years old, T.G. would

sexually abuse her early in the morning or during the afternoon when the

younger children were napping. (See id. at 9, 11, 13). She described him

removing her pants/underwear and using his hands to touch her breasts,

genitals and buttocks. (See id. at 13-14). On multiple occasions, he put his

penis, tongue and/or fingers inside her vagina. (See id. at 15-18). She was

afraid to tell anyone because T.G. told her not to or she could get into trouble.

(See id. at 19). Despite her fear, she finally called 911 because she was

afraid of getting pregnant. (See id. at 11, 19).

J.P. and her siblings did not return to T.G.’s home on Monday, June 11,

2018, for their scheduled day of daycare, as their mother immediately quit

her job so she could stay home with them. After the children failed to appear,

5 Sexual Assault Forensic Examination.

3 J-S22031-21

T.G. and his wife terminated daycare services for them. (See id. at 45, 50-

51, 121, 124).

Children and Youth Services (CYS) began their investigation that week.

As part of the investigation, J.P. was sent to the Children’s Resource Center

(CRC) for a forensic interview conducted by Violet Witter, at which she asked

J.P. “open-ended, non-leading, non-suggestive questions.” (Id. at 83). The

Commonwealth entered a transcript of the interview and Ms. Witter’s report

as exhibits. (See id. at 85-86).

On June 15, 2018, CYS child abuse investigator and caseworker Angelica

Farissi went to T.G.’s home as part of the investigation. (Id. at 64). T.G. was

out of the home and came back at some point in the afternoon. He stated

that he was like a grandfather to J.P. and her siblings, and that he and his

wife had terminated daycare services for J.P. and her siblings on Monday, June

11, 2018, due to lack of payment. (See id. at 66, 69). After realizing that

Ms. Farissi was a child abuse investigator, he said that if there had been any

complaints, it was that family. (See id. at 68).

On June 21, 2018, Detective David Lauver of the North Lebanon

Township Police Department and Ms. Farissi interviewed T.G. and C.G. at CYS

and testified they noted contradictions in his statement. (See id. at 69-70,

125). Specifically, although T.G. initially said that he had no physical contact

with J.P. and her siblings and barely interacted with them at all, he eventually

stated that he loved them and they are like grandkids to him. (See id. at 70, 4 J-S22031-21

125). He said he would hug the children and J.P. watched movies in his

bedroom. (See id. at 125-26). At the interview, T.G. said the abuse report

was J.P. and her family’s attempt to retaliate against him and his wife because

they had terminated daycare services, although services were terminated the

week after the June 10, 2018 911 phone call. (See id. at 69, 126). He

accused J.P.’s father of being the actual perpetrator. Ms. Farissi testified that

although T.G. said he had sleep apnea, he did not appear tired at either of her

meetings with him. (See id. at 67, 70).

T.G. testified on his own behalf and denied sexually assaulting J.P. (See

id. at 200-01). He stated for the first time that due to medication, he did not

interact much with the children, slept most of the day and is unable to

maintain an erection. (See id. at 197-99). C.G. corroborated T.G.’s

testimony that the medication made him tired and rendered him unable to

have sex. (See id. at 145-46). She testified that care for J.P. and her siblings

was terminated due to a series of non-payments and no-shows and would

have been effective June 8, 2018, although she did not tell them that. (See

id. at 158, 160). T.G.’s adult daughter and son testified that his medication

affected his sleeping habits, rendering him sleepy during the day due to being

awake at night. (See id. at 172, 179).

B.

At the conclusion of trial, the jury convicted T.G. of all counts. On

August 19, 2020, the trial court sentenced him to an aggregate term of not 5 J-S22031-21

less than six nor more than twenty years’ incarceration plus $8,728.97 in

restitution, payable to the Crime Victim’s Compensation Board for payments

made to J.P. and her family to reimburse them for costs associated with this

matter. T.G.’s August 28, 2020 post-sentence motions were denied6 and he

timely appealed. He and the court have complied with Rule 1925. See

Pa.R.A.P. 1925.

II.

On appeal, T.G. challenges the weight and sufficiency of the evidence

and the court’s restitution order. (See T.G.’s Brief, at 4). He argues that the

verdict was against the sufficiency and weight of the evidence where J.P. was

the only person who testified to first-hand knowledge of the criminal acts, and

the restitution award was excessive where the record reflects that he is unable

to pay.7 (See id. 11-12).

6 The 120-day period for a decision on T.G.’s post-sentence motion expired on

Monday, December 28, 2020. See Pa.R.Crim.P. 720(B)(3)(a). However, the clerk of courts failed to enter an order deeming the motion denied on that date. See Pa.R.Crim.P. 720(B)(3)(c). Instead, the trial court ruled on the motion on February 12, 2021, outside the 120-day period, and T.G. appealed within thirty days of that order. See Pa.R.Crim.P. 720(A)(2)(b). Ordinarily, the appeal would be untimely. However, we decline to quash where the untimeliness was caused by a breakdown of the court. See Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa. Super. 2007) (court breakdown occurs where clerk fails to enter order deeming post-sentence motions denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(c)).

7 The argument section of T.G.’s brief is woefully inadequate.He fails to divide it into the three questions to be argued with a distinctive heading identifying (Footnote Continued Next Page)

6 J-S22031-21

In his first argument, T.G. challenges the sufficiency of the evidence to

support his conviction.8 (See T.G.’s Brief, at 10-12). The Commonwealth

posits that this argument is waived because the Rule 1925(b) statement failed

to identify which element of the multiple crimes charged the Commonwealth

failed to prove. (See Commonwealth’s Brief, at 8, 12). As the Commonwealth

observes, “[i]n 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

“the particular point to be treated therein” and, although he provides footnotes with presumably pertinent caselaw, he does not include any real discussion thereof. See Pa.R.A.P. 2119(a); see id. at 2101, 2119(b); (T.G.’s Brief, at 10-13).

8 Our standard of review is well-settled.

When reviewing a sufficiency of the evidence claim, an appellate court must view all the evidence and reasonable inferences therefrom in a light most favorable to the Commonwealth as the verdict winner and must determine whether the evidence was such as to enable a fact finder to find that all of the elements of the offense[ ] were established beyond a reasonable doubt.

Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005) (citation omitted). “In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.” Id. (citation omitted). 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. Id. (citation omitted).

7 J-S22031-21

was insufficient.” Commonwealth v. Rivera, 238 A.3d 482, 496 (Pa. Super.

2020). Failure of an appellant to do so results in waiver of the issue. See id.

Here, T.G.’s Rule 1925(b) statement vaguely alleges that the verdict was

against the weight and sufficiency of the evidence for the Commonwealth’s

failure to present evidence of his alleged acts, other than the victim’s

testimony. (See Rule 1925(b) Statement, at 1-2). This fails to identify which

element or elements the Commonwealth failed to prove of the nine crimes

with which he was convicted.

Similarly, T.G.’s brief suffers from the same deficiency where the

argument section does not set forth or dispute any specific elements of the

numerous crimes T.G. was convicted of, nor does it argue which particular

elements were not met. Instead, T.G. argues the evidence was insufficient to

support his conviction because the Commonwealth did not present any DNA

evidence or corroborating testimony to support the victim’s claims, which

failed to provide specific dates or times for the sexual assault. (See id. at 10-

11). Therefore, he has waived this claim. Rivera, supra at 496. Moreover,

it would not merit relief.

It is beyond dispute that “[t]he uncorroborated testimony of the

complaining witness is sufficient to convict a defendant of sexual offenses.”

Castelhun, supra at 1232 (citations omitted). This remains true even where

the defendant presents countervailing evidence, so long as the finder of fact

believes the testimony of a sexual assault victim. See Commonwealth v. 8 J-S22031-21

Davis, 650 A.2d 452, 455 (Pa. Super. 1994), aff’d on other grounds, 674 A.2d

214 (Pa. 1996). “[N]o medical testimony is needed to corroborate a victim’s

testimony if the testimony was rendered credible by the jury.”

Commonwealth v. Poindexter, 646 A.2d 1211, 1214 (Pa. Super. 1994).

Although T.G. fails to identify exactly which of the nine crimes he is

challenging, they all arise out of the same basic set of facts, his sexual assault

of J.P. when she was under thirteen years old and he was over eighteen. J.P.

consistently testified T.G. began sexually abusing her when she was ten to

eleven years old and she was at his home for babysitting. She described

T.G.’s sexual assaults in detail, stating that they occurred early in the morning

or during the afternoon when the younger children were napping. She

described him removing her pants/underwear on multiple occasions and

touching her breasts, genitals and buttocks and putting his penis, tongue

and/or fingers inside her vagina. J.P. stated that she did not tell anyone

because T.G. told her not to or she could get into trouble, and she only finally

called 911 when she was afraid of getting pregnant.

Ms. Farissi and Detective Lauver testified about J.P.’s statements during

their investigations, which mirrored her trial testimony. The jury watched the

forensic interview in which J.P. detailed the abuse and they heard the 911 call

initially made by J.P. to the police. J.P.’s story remained consistent throughout

trial and in interviews with the police, CYS and the Children’s Resource Center.

9 J-S22031-21

Hence, the Commonwealth presented sufficient evidence to prove the

sexual abuse claims against T.G. See Castelhun, 889 A.2d 1228, 1232.

T.G. abandons the weight of the evidence issue in the argument section

of his brief. (See T.G.’s Brief, at 10-13). However, even if interpreted as a

weight of the evidence challenge,9 his claim would lack merit.

A jury is free to believe all, part or none of the evidence when passing

on the credibility of the witnesses and the weight of the evidence. See

Commonwealth v. Whitacre, 878 A.2d 96, 99 (Pa. Super. 2005), appeal

denied, 892 A.2d 823 (Pa. 2005); see also Castelhun, supra at 1232. A

claim challenging the weight of the evidence posits that a jury’s verdict is so

contrary to the evidence as to shock one’s sense of justice. See

Commonwealth v. Bellini, 482 A.2d 997, 999 (Pa. Super. 1984). A trial

court’s determination that the verdict was not against the weight of the

9 When evaluating a challenge to the weight of the evidence to support a conviction, this court does not reweigh the evidence presented at trial, but rather evaluates the trial court’s denial of the motion for a new trial for an abuse of discretion. An abuse of discretion occurs “where the course pursued represents not merely an error of judgment, but 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.” Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citation omitted).

10 J-S22031-21

evidence is “[o]ne of the least assailable reasons for granting a new trial.”

Clay, supra at 1054-55 (citation omitted).

As stated above, the evidence was sufficient for the Commonwealth to

prove the charges against T.G. J.P. testified with specificity about the sexual

abuse and the jury heard testimony from other witnesses who corroborated

that her story had remained consistent throughout the investigation and

litigation. Her mother testified to J.P.’s changed demeanor during the relevant

time, the jury saw a video of her statement and heard her 911 call. It also

heard from T.G. and his witnesses about his medical condition and his version

of events.

The jury was free to believe all, some or none of this evidence, weigh it

and make credibility determinations, and its resulting verdict does not shock

our sense of justice. See Whitacre, supra at 99; Bellini, supra at 999.

Hence, the trial court did not abuse its discretion in denying T.G.’s motion for

a new trial. See Clay, supra at 1054-55. This issue would lack merit.

C.

Finally, T.G. argues that the trial court’s order directing him to pay

$8,728.97 in restitution to the Crimes Victims Compensation Board is not

supported by the record.10 (See T.G.’s Brief, at 12). He argues that “the

10 “An appeal from an order of restitution based upon a claim that a restitution

is unsupported by the record challenges the legality, rather than the (Footnote Continued Next Page)

11 J-S22031-21

record clearly states that he has not worked in years and has no foreseeable

opportunity of gainful employment[.]” (Id.).

Section 1106 of the Crimes Code provides, in relevant part that:

(1) The court shall order full restitution:

(i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss. The court shall not reduce a restitution award by any amount that the victim has received from the Crime Victim’s Compensation Board or other government agency but shall order the defendant to pay any restitution ordered for loss previously compensated by the board to the Crime Victim’s Compensation Fund ….

18 Pa.C.S. § 1106(c)(1)(i) (emphasis added).

Based on this clear language, the trial court was required to order T.G.

to pay the Crime Victim’s Compensation Board the total costs incurred “to

provide [J.P.] with the fullest compensation for [her] loss … [r]egardless of

[his] current financial resources.” Id.

Claims filed with the court reflect that the Crime Victim’s Compensation

Board paid J.P.’s family a total of $8,728.97 in compensation for various costs

incurred because of the sexual assault, including those associated with

Pinnacle Health Systems and J.P.’s medical exam and forensic interview.

discretionary aspects, of sentencing. When we address the legality of a sentence, our standard of review is plenary and is limited to determining whether the trial court erred as a matter of law.” Commonwealth v. McKee, 38 A.3d 879, 881 (Pa. Super. 2012) (citations and internal quotation marks omitted). 12 J-S22031-21

Defense counsel was provided with copies. Hence, the court did not commit

an error of law where it was statutorily mandated to order T.G. to pay

$8,728.97 in restitution to the Crime Victim’s Compensation Board for any

financial loss incurred by J.P. and her family resulting from T.G.’s criminal

actions. See McKee, supra at 881. This issue fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/09/2021