Commonwealth v. Hunzer

868 A.2d 498, 2005 Pa. Super. 13, 2005 Pa. Super. LEXIS 12
CourtSuperior Court of Pennsylvania
DecidedJanuary 12, 2005
StatusPublished
Cited by204 cases

This text of 868 A.2d 498 (Commonwealth v. Hunzer) 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
Commonwealth v. Hunzer, 868 A.2d 498, 2005 Pa. Super. 13, 2005 Pa. Super. LEXIS 12 (Pa. Ct. App. 2005).

Opinion

OPINION BY

TAMILIA, J.:

¶ 1 Adam Hnnzer appeals from the December 15, 2003, aggregate judgment of sentence of 30 to 60 months imprisonment and a consecutive 5 years of probation imposed after a jury found him guilty of aggravated indecent assault1 and endangering the welfare of children.2 After careful review, we affirm the judgment of sentence.

¶ 2 This case arises from appellant’s sexual assault of his then three-year-old daughter on June 28, 2000. He was found guilty of the aforementioned charges , on August 28, 2003 and post-sentence motions were denied by the court on April 19, 2004. This appeal followed.

¶ 3 Appellant raises multiple issues on appeal. We begin by addressing appellant’s claim the evidence was insufficient to sustain his conviction for aggravated indecent assault. Appellant’s brief at 3, 16. Specifically, appellant argues “there is insufficient evidence of record to conclude that [he] digitally penetrated his daughter’s vagina.” Id. at 15. We disagree.

¶ 4 Our standard of review in assessing a challenge to the sufficiency of the evidence is well-settled.

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. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001) (citations and quotations omitted).

¶5 A person will be found guilty of aggravated indecent assault if they engage “in penetration, however slight, of the genitals or anus of a complainant with a part of the person’s body for any purpose other than good faith medical, hygienic or law enforcement procedures.” 18 Pa.C.S.A. § 3125(a), Offenses defined.

¶ 6 Viewing the evidence in the light most favorable to the Commonwealth, we conclude there is ample evidence to support the finding that appellant penetrated his daughter’s vagina in violation of § 3125. This Court has determined “that the term ‘penetration, however [506]*506slight’ is not limited to penetration of the vagina; entrance in the labia is sufficient.” Commonwealth v. Hawkins, 419 Pa.Super. 37, 614 A.2d 1198, 1200; footnote 1 (Pa.Super.1992) (citations omitted).

¶ 7 In this case, the testimony of both the victim and Deborah Deitrick, the victim’s grandmother, was sufficient to establish the element of penetration. The victim, who was six at the time of trial, testified appellant hurt her “[b]y sticking his tongue and his finger in my private area.” N.T., 8/26/03, at 292, 294-. She l'eiterated this fact at least four times during cross-examination. Id. at 319, 323, 325-326. Using an anatomically correct doll, the victim further demonstrated the manner in which appellant placed his finger in and around her vagina on the day in question. Id. at 299-301, 614 A.2d 1198.

¶ 8 Deborah Deitrick testified to the victim’s unusual actions and statements on the day following the offense. Specifically, Deitrick testified that the victim poked her great grandmother in the vaginal area twice. Id. at 360-361. She further testified that the victim told her appellant had “stuck his finger in my hole and then he licked me down there.” Id. at 367-368. Deitrick also testified the victim then demonstrated oral and digital contact in the corresponding area of a toy bear. Id.

¶ 9 Hazleton City Police Detective Gino Fedullo testified that he interviewed appellant on August 29, 2000 and appellant admitted to touching and playing with his daughter’s vagina in a sexual manner. N.T., 8/27/03, at 554-556. Officer James Sharratta of the Plains Police Department also interviewed appellant and testified that appellant admitted he remembered sticking his finger into his daughter but did not remember licking her on the day in question. Id. at 588-589.

¶ 10 “[T]he 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. Gooding, 818 A.2d 546, 549 (Pa.Super.2003). “If the factfinder reasonably could have determined from the evidence adduced that all of the necessary elements of the crime were established, then that evidence will be deemed sufficient to support the verdict.” Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa.Super.2000) (citation omitted). In this case, the jury obviously concluded there was sufficient evidence to establish appellant’s guilt of aggravated indecent assault, including the element of penetration. We are precluded from reweighing the evidence and substituting our judgment for that of the factfinder. Commonwealth v. Chiari, 741 A.2d 770, 775 (Pa.Super.1999). Accordingly, appellant’s claim must fail.

¶ 11 Appellant next argues his conviction for aggravated indecent assault was against the weight of the evidence. Appellant’s brief at 3, 19. Scrutiny of whether a verdict is against the weight of the evidence is governed by the standard set forth in Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403 (2003).

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment, for that of the finder of fact. Thus, we may only reverse the lower court’s verdict if it is so contrary to the evidence as to shock one’s sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the [507]*507trial court palpably abused its discretion in ruling on the weight claim.

Id. at 443, 832 A.2d at 408 (citations omitted).

¶ 12 Appellant contends “even if it is deemed that there is some evidence of improper digital penetration, such evidence is so greatly outweighed by contrary evidence that the jury’s conviction of aggravated indecent assault constitutes a miscarriage of justice.” Appellant’s brief at 19. We disagree.

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Bluebook (online)
868 A.2d 498, 2005 Pa. Super. 13, 2005 Pa. Super. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-hunzer-pasuperct-2005.