Com. v. Izurieta, L. , 171 A.3d 803 ( 2017 )

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2017 PA Super 307COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LOUIS M. IZURIETA
Appellant No. 1283 MDA 2016
Appeal from the Judgment of Sentence June 30, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003965-2014
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
OPINION BY MOULTON, J.: FILED SEPTEMBER 27, 2017
Louis M. Izurieta appeals from the June 30, 2016 judgment of
sentence entered in the York County Court of Common Pleas following his
jury trial convictions for aggravated indecent assault (without consent),
aggravated indecent assault (complainant less than 16 years of age),
indecent assault (without consent), indecent assault (complainant less than
16 years of age), and corruption of minors.1 We affirm.
The well-reasoned opinion of the Honorable Harry M. Ness sets forth
the factual and procedural history underlying this appeal, which we adopt
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1
18 Pa.C.S. §§ 3125(a)(1), 3125(a)(8), 3126(a)(1), 3126 (a)(8), and
6301(a)(1), respectively.
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and incorporate herein. See Opinion in Support of Order Pursuant to
Pa.R.A.P. 1925(a), 12/14/16, at 1-11 (“1925(a) Op.”).
Izurieta raises two issues on appeal:
1. The jury verdict was against the greater weight of
the evidence presented at trial so as to shock one’s
sense of justice on the following grounds: the
Commonwealth’s evidence was contradictory within
itself; the Commonwealth’s evidence, specifically the
victim’s testimony, was inconsistent with other
Commonwealth evidence presented and the victim
gave different accounts as to what happened; the
evidence was so unreliable and/or contradictory as to
make the verdict based upon conjecture and
surmise; there was no DNA evidence linking
[Izurieta] to the offense; the victim’s testimony as to
force or acts without her consent was not
substantiated since there was no evidence of injury
to her person, which contradicted the victim’s
testimony as to injuries sustained, nor was there any
evidence presented of injuries to [Izurieta]; the
victim’s behavior, attending a high school wrestling
match after the alleged incident, was contradictory
to her version of events; while the victim alleged
past incidents of abuse, in the intervening years she
stayed alone with [Izurieta] and never requested her
mother or others not to leave her alone with
[Izurieta]; text messages presented at trial by and
between [Izurieta] and the victim contradicted the
victim’s claims of abuse by [Izurieta] and which is
inconsistent with someone who had been a victim of
sexual assaults.
2. The evidence at trial was insufficient to support the
verdict on the . . . grounds [asserted above in the
weight challenge].
Izurieta’s Br. at 4.
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For ease of disposition, we address Izurieta’s claims in reverse order.
This Court’s standard for reviewing sufficiency of the evidence claims is as
follows:
We must determine whether the evidence admitted at
trial, and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the
trier of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude
every possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented. It is
not within the province of this Court to re-weigh the
evidence and substitute our judgment for that of the fact-
finder. The Commonwealth’s burden may be met by
wholly circumstantial evidence and any doubt about the
defendant's guilt is to be resolved by the fact[-]finder
unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)
(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).
Izurieta argues that the victim’s testimony was internally inconsistent
and contradicted other Commonwealth evidence. Further, Izurieta contends
that there was neither DNA evidence nor evidence as to force or lack of
consent, and that the victim’s actions after the alleged assaults belie her
testimony.
A person may be convicted of aggravated indecent assault if:
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[that] person . . . engages 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, hygenic or law enforcement procedures . . .
[and]:
(1) the person does so without the complainant’s
consent; [or]
...
(8) the complainant is less than 16 years of age and
the person is four or more years older than the
complainant and the complainant and the person
are not married to each other.
18 Pa.C.S. § 3125(a).
A person may be convicted of indecent assault if
the person has indecent contact with the complainant,
causes the complainant to have indecent contact with the
person or intentionally causes the complainant to come
into contact with seminal fluid, urine or feces for the
purpose of arousing sexual desire in the person or the
complainant and:
(1) the person does so without the complainant’s
consent; [or]
...
(8) the complainant is less than 16 years of age and
the person is four or more years older than the
complainant and the complainant and the person
are not married to each other.
18 Pa.C.S. § 3126.
Corruption of minors is defined as:
Whoever, being of the age of 18 years and upwards, by
any course of conduct in violation of Chapter 31 (relating
to sexual offenses) corrupts or tends to corrupt the morals
of any minor less than 18 years of age, or who aids, abets,
entices or encourages any such minor in the commission of
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an offense under Chapter 31 commits a felony of the third
degree.
18 Pa.C.S. § 6301(a)(1)(ii).
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we conclude that the Commonwealth presented
sufficient evidence to support Izurieta’s convictions. Both Izurieta and the
victim testified that Izurieta penetrated the victim’s vagina with his penis on
May 30, 2014. N.T., 5/13/15, at 86-97; N.T., 5/14/15, at 275. Further, the
victim testified that she pushed Izurieta away and told him, “I can’t do this
anymore.” N.T., 5/13/15, at 87. In a state of shock, she then ran upstairs
to her room, locked the door, text messaged her friend Alex, and called her
mother. Id. at 85-87, 89. Under these circumstances, the Commonwealth
presented sufficient evidence to convict Izurieta of aggravated indecent
assault without consent and indecent assault without consent. See
Commonwealth v. Velez, 51 A.3d 260, 266 (Pa.Super. 2012) (concluding
that nine-year-old victim’s testimony that “[a]ppellant’s acts were bad, did
not feel right, and that she was afraid and angry at [a]ppellant” were
sufficient to establish victim’s lack of consent). Moreover, because Izurieta
committed a sexual offense against the minor victim and the victim testified
that Izurieta told her that she looked “pretty” and that “she want[ed] this,”
N.T., 5/13/15, at 81, 83, we also conclude that the Commonwealth
presented sufficient evidence to convict Izurieta of corruption of minors.
Further, the victim testified that in the spring of 2012, Izurieta had
penetrated her vagina with his fingers. Id. at 101. Because the victim was
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under the age of 16 at the time of this contact, see id. at 72, the
Commonwealth presented sufficient evidence to convict Izurieta of
aggravated indecent assault and indecent assault where the complainant is
less than 16 years of age. See Commonwealth v. McDonough, 96 A.3d
1067, 1069 (Pa.Super. 2014) (“The uncorroborated testimony of a sexual
assault victim, if believed by the trier of fact, is sufficient to convict a
defendant.”).
We also reject Izurieta’s claim that the Commonwealth’s failure to
present DNA evidence or evidence of injury rendered the evidence
insufficient. The Commonwealth presented sufficient evidence of
penetration without the use of DNA evidence, and Izurieta’s convictions did
not require the Commonwealth to show that he used force in assaulting the
victim.
Izurieta also argues that the verdicts were against the weight of the
evidence. Izurieta’s arguments regarding weight mirror his sufficiency
complaints, specifically that the victim’s testimony was inconsistent, the
Commonwealth’s evidence was devoid of DNA evidence or evidence of
injury, and the victim’s conduct after the alleged assaults in 2011 and 2012
belie her testimony.
Preliminarily, we must address a procedural issue Izurieta has raised.
The Honorable Thomas H. Kelley presided over Izurieta’s jury trial but left
the bench before sentencing Izurieta. The Honorable Harry M. Ness presided
over the sentencing proceedings. Judge Ness not only sentenced Izurieta
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but also denied Izurieta’s post-sentence motion, which included a weight of
the evidence challenge.
Izurieta argues that Judge Ness should not have reviewed his weight
of the evidence claim, as a “weight of the evidence claim is reserved
exclusively for the . . . judge who presided over the trial” because a court
cannot review a weight of the evidence claim based on a “cold” record.
Izurieta’s Br. at 23. Relying on dissenting opinions in both this Court and
our Supreme Court in Armbruster v. Horowitz, 744 A.2d 285 (Pa.Super.
1999), aff’d, 813 A.2d 698 (Pa. 2002), Izurieta argues that this Court should
vacate his conviction and remand for a new trial because the judge who
presided at his trial is unavailable to review his weight of the evidence claim.
We disagree.
Our Supreme Court has expressly rejected the remedy Izurieta seeks,
noting that
a rule automatically requiring the grant of new trial for any
properly preserved weight claim [where the actual trial
judge is unavailable to rule upon the claim] . . . would be
extremely disruptive to the integrity of verdicts and to the
judicial process . . . [and would] reverse[] the presumption
that credibility is for the fact-finder, make[] the
extraordinary the ordinary, and wrongly intrude[] upon the
jury function.
Armbruster v. Horowitz, 813 A.2d 698, 704 (Pa. 2002). Therefore,
Izurieta is not automatically entitled to a new trial, and his weight of the
evidence claim must be reviewed.
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In Armbruster, this Court reviewed the weight of the evidence claim
in the first instance, as no other trial court judge had ruled on the post-trial
motion. Id. at 700. Here, in contrast, Judge Ness reviewed Izurieta’s claim
in the first instance and determined that the jury’s verdict was not against
the weight of the evidence. Because we have a lower court judge’s opinion
as to the weight of the evidence, we must determine the appropriate
standard of review to apply to that opinion.
Where the presiding trial judge has ruled on a weight of the evidence
claim, we apply a discretionary standard of review because “[a]n appellate
court, by its nature stands on a different plane than that of a trial court.
Whereas a trial court’s decision to grant or deny a new trial is aided by an
on-the-scene evaluation of the evidence, an appellate court’s review rests
solely upon the cold record.” Id. at 703 (quotation omitted). However,
where the actual trial judge has not ruled on a weight of the evidence claim,
a successor, trial-level judge and an appellate tribunal stand in the “same
position . . . in ruling on the claim; both would be confined to the ‘cold
record’ of the trial proceedings in conducting their review.” Id. at 704 n.5.
In other words, the successor judge’s opinion should not be afforded the
level of discretion given to a judge who presided at the trial in question. The
successor judge, in this case Judge Ness, did not have the opportunity to
observe the trial proceedings and he is therefore in no different position, in
terms of the “cold” record, than is this Court. This is the position our
Supreme Court took in Armbruster in reviewing this Court’s analysis of a
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weight claim in the first instance. Id. at 705 (“Since the Superior Court was
in no better position than this Court to review the claim in the first instance,
our review is plenary.”). Accordingly, we conclude that under the current
circumstances, an appellate court’s scope of review should be plenary. Our
role, therefore, is to review the entire record and determine whether the
successor judge correctly determined that the jury’s verdict was not against
the weight of the evidence.
Courts apply the following standard to weight of the evidence
challenges:
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 clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny
justice. It has often been stated that a new trial should be
awarded 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 right may be given
another opportunity to prevail.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (internal
citations and quotations omitted).
In Armbruster, our Supreme addressed the appropriate standard
when the court considering the motion must rely only on a cold record,
noting that such courts should do so
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with an eye to the delicate balance that exists between the
jury’s exclusive role in assessing credibility, and our
longstanding recognition of the power in courts to allow
justice another opportunity to prevail when a verdict
nevertheless shocks the judicial conscience.
813 A.2d at 705.
In supporting of his weight of the evidence claim, Izurieta primarily
argues that the victim was not credible and testified inconsistently.
However, “the determination of the credibility of a witness is within the
exclusive province of the jury.” Commonwealth v. Crawford, 718 A.2d
768, 772 (Pa. 1998). It was within the jury’s purview to consider the
victim’s testimony in light of her continued contact with Izurieta between
assaults, and the jury’s verdict indicates that it found the victim credible.
Further, the victim testified consistently about the 2012 and 2014 assaults.
That the victim remained in contact with Izurieta between the assaults does
not render her testimony about the assaults incredible. As noted above,
Izurieta admitted penetrating the victim in the 2014 incident, the victim
testified that Izurieta digitally penetrated her in 2012, and the victim
testified that she was fearful, did not want this contact, and isolated herself
from Izurieta after the 2014 assault. In addition, the jury’s deadlock on five
of the charges, which notably included allegations of forcible compulsion,
indicates that the jury appropriately weighed and considered the evidence.
We therefore conclude that Judge Ness correctly determined that the jury’s
verdict was not against the weight of evidence.
Judgment of sentence affirmed.
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President Judge Emeritus Ford Elliott joins the opinion.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2017
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