Com. v. Widener, S.

CourtSuperior Court of Pennsylvania
DecidedMay 18, 2015
Docket1091 WDA 2014
StatusUnpublished

This text of Com. v. Widener, S. (Com. v. Widener, S.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Com. v. Widener, S., (Pa. Ct. App. 2015).

Opinion

J-S05031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

SCOTT ALAN WIDENER

Appellant No. 1091 WDA 2014

Appeal from the Judgment of Sentence entered March 26, 2014 In the Court of Common Pleas of Fayette County Criminal Division at No: CP-26-CR-0000682-2013

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED MAY 18, 2015

Appellant, Scott Alan Widener, appeals from the judgment of sentence

of the Court of Common Pleas of Fayette County entered on March 26, 2014.

Upon review, we affirm the judgment of sentence.

The trial court summarized the factual and procedural background as

follows:

The incidents giving rise to this case occurred during various periods of 2012 and were ultimately reported on November 5, 2012. Pennsylvania State Police Trooper Heather Clem-Johnston received a call from Fayette County Children and Youth Services [CYS] regarding a possible sexual assault of two (2) females, ages four (4) and six (6). The six-year-old victim was A.L.H., and the four-year-old victim was M.J.F. The girls were cousins. J-S05031-15

On November 13, 2012, a [f]orensic [i]nterview was conducted at A Child’s Place at Mercy in Pittsburgh, Pennsylvania.[ 1] Both victims told the interviewer, Sarah C. Johnson, that they had been assaulted by [Appellant]. M.J.F. told her that [Appellant] “put his finger up [her vagina].” A.L.H. stated that [Appellant] touched her vagina and licked the area of her breasts.

[Appellant] was charged with [a]ggravated [i]ndecent [a]ssault, [v]ictim [l]ess than 13 [y]ears of [a]ge and two (2) counts of [i]ndecent [a]ssault, [v]ictim [l]ess than 13 [y]ears of [a]ge. . . . Following a four-day jury trial, [Appellant] was convicted on all counts on December 13, 2013.

On March 2[6], 2014, a [s]exually [v]iolent [p]redator hearing took place, and it was determined that [Appellant] is a sexually violent predator. On the same day, the [trial c]ourt sentenced [Appellant] to a five (5) to ten (10) year term of incarceration and a consecutive two and one-half (2.5) to five (5) year term of incarceration.

Trial Court Opinion, 7/7/14 at 2-3.

On March 27, 2014, Appellant filed a post-sentence motion for

modification of sentence, alleging the sentence was excessive and

unconstitutional given it required lifetime registration, which is in excess of

the statutory maximum sentence applicable for his convictions. The trial

court denied the motion on March 31, 2014.

While there is no indication Appellant sought leave of court to file a

supplemental post-sentence motion,2 on April 3, 2014, new (current)

counsel filed another post-sentence motion. In its last iteration, the motion ____________________________________________

1 The interviews were taped and saved on a disk. 2 “The defendant may file a supplemental post-sentence motion in the judge’s discretion . . . .” Pa.R.Crim.720(B)(1)(b).

-2- J-S05031-15

included a “[m]otion for [j]udgment of [a]cquittal (against the [w]eight of

the [e]vidence), [a m]otion in [a]rrest of [j]udgment: [sic] and/or; [sic]

[and a m]otion for a [n]ew [t]rial.” Appellant’s Post Sentence Motion for

Modification of Sentence, 4/3/14, at 1. The trial court denied this motion on

July 7, 2014. This appeal followed.

On appeal, Appellant raises ten issues for our review:

1. Did the court err in permitting the Commonwealth to play the forensic interview prior to [sic] elements of the offense charge were presented?

2. Did the court err in permitting the Commonwealth to have multiple opportunities to present testimony by the alleged victims when the alleged victims never stated that Appellant had touched them in any way?

3. Did the court err in permitting the alleged victims to watch the recordings of their forensic interviews after the victims denied that Appellant had touched them?

4. Did the court err in failing to grant motions for mistrial when a witness testified as to the credibility regarding an indicated [CYS] report?

5. Did the Commonwealth fail to prove beyond a reasonable doubt that [Appellant] committed the act of aggravated indecent assault as they showed no corroborating physical evidence of penetration?

6. Did the court err in permitting the jury during deliberations to again watch the video recordings of the forensic interviews over the objection of defense counsel?

7. Was the jury verdict against the weight of the evidence to sustain a conviction based upon the testimony and evidence presented at trial by the Commonwealth?

-3- J-S05031-15

8. Did the court err in ruling that Appellant’s [sic] was sexually violent predator when the report was based in part on a criminal charge that did not result in a conviction?

9. Is it unconstitutional to require an Appellant to register for a lifetime when said registration requirement exceeds the statutory maximum penalty for Appellant’s offense?

10. Is the Adam Walsh statute unconstitutional in requiring the an [sic] Appellant to register for a lifetime?

Appellant’s Brief at 7-8.

In his first three issues, Appellant challenges the propriety of

evidentiary rulings the trial court made at the time of trial. Appellant,

however, addresses these issues in his brief as weight of the evidence

claims. Nonetheless, whether raised as a challenge to the admission of

evidence or as weight of the evidence claims, these claims are waived and

have no merit.

In connection with his first issue, after incorrectly stating the appellate

standard for reviewing a weight of the evidence claim,3 Appellant argues

____________________________________________

3 The appellate standard for reviewing a weight of the evidence claim is different from the standard employed by the trial court. See Commonwealth v. Johnson, 985 A.2d 915, 926 (Pa. 2009) (appellate review of a weight claim is a review of the trial court’s exercise of discretion, not of the underlying question of whether the verdict is or is not against the weight of the evidence).

With regard to rulings pertaining to the admission of evidence we employ the following standard: “An appellate court’s standard of review of a trial court’s evidentiary rulings which include rulings on the admission of hearsay is abuse of discretion.” In re N.C., 105 A.3d 1199, 1210 (Pa. 2014) (citations omitted). “An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the (Footnote Continued Next Page)

-4- J-S05031-15

that the Commonwealth should not have offered the forensic interviews

without first establishing the elements of the crimes charged. Appellant

does not cite or discuss a single case supporting his argument. The trial

court, similarly at loss with Appellant’s argument, noted Appellant provided

no authority for his argument.4 Trial Court Opinion, 9/23/14, at 4. This

issue is therefore waived. See Pa.R.A.P. 2119; Commonwealth v.

Rhodes, 54 A.3d 908, 915 (Pa. Super. 2012) (failure to adequately develop

argument results in waiver); Commonwealth v. Johnson, C., 889 A.2d

620, 621 n.1 (Pa. Super. 2005) (“Failure to cite to any authority can result

in the waiver of the claim.”).5

_______________________ (Footnote Continued)

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Com. v. Widener, S., Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-v-widener-s-pasuperct-2015.