Com. v. McCready, P. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PHILIP REID MCCREADY
Appellant No. 1455 WDA 2014
Appeal from the Judgment of Sentence May 15, 2014
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001616-2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 20, 2015
Phillip Reid McCready appeals from the judgment of sentence, entered
in the Court of Common Pleas of Blair County, after he was convicted by a
jury of rape of a child,1 incest,2 and related offenses.3 The convictions arose
out of McCready’s repeated sexual abuse of his niece, S.L.H. After careful
review, we affirm.
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1
18 Pa.C.S. § 3121(c).
2
18 Pa.C.S. § 4302.
3
McCready was also convicted of rape, 18 Pa.C.S. § 3121, involuntary
deviate sexual intercourse person less than 13 years of age, 18 Pa.C.S. §
3123(b), false imprisonment, 18 Pa.C.S. § 2903, indecent assault, 18
Pa.C.S. § 3126, indecent assault person less than 13 years of age, 18
Pa.C.S. § 3126(a)(7), and corruption of minors, 18 Pa.C.S. § 6301.
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The trial court summarized the facts of this case as follows:
S.L.H., who was 11 when she testified at trial in January, 2014,
testified that in the summers of 2009 and 2010 [McCready], [her
uncle] who was approximately in his [thirties], stuck his penis in
her bottom and made her hold his penis. She also said he put
his penis in her bottom and in her vagina a little bit, and that he
stuck his penis in her mouth and peed a little in her mouth,
which felt really nasty and gross. S.L.H. testified further that
[McCready] trapped her in the bedroom and physically restrained
her from leaving. The jury found this testimony4 credible and
convicted [McCready] of all charges levied against him.
Trial Court Opinion, 9/24/14, at 2.
Prior to sentencing, on April 9, 2014, McCready filed a motion
asserting that after-discovered evidence exists that would demonstrate his
innocence. Specifically, the motion was based upon the fact that after the
trial in the instant matter, S.L.H.’s paternal uncle was under investigation for
sex crimes allegedly committed against a different victim, an adult family
member. Prior to a scheduled interview with police, the paternal uncle
committed suicide. McCready presented this information in an attempt to
shift responsibility for S.L.H.’s victimization to her paternal uncle. The
motion requested various forms of relief, including, among other things, that
McCready’s sentencing be stayed, that the suicide be investigated, and that
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4
Additionally, a forensic interview of S.L.H. was conducted at the Children’s
Resource Center of Pinnacle Health in Harrisburg, Pennsylvania. A video
recording of the interview was admitted into evidence and played for the
jury during the trial.
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S.L.H. be referred for a forensic interview regarding the paternal uncle. The
motion was denied on April 29, 2014, following an evidentiary hearing.
McCready was sentenced on May 6, 2014, to an aggregate term of 25
to 50 years’ incarceration. McCready filed a post-sentence motion, which
was denied. This timely appeal followed.
McCready raises the following issues5 on appeal:
1. Whether the trial court committed error when it admitted the
child forensic interview into evidence without sufficient
foundation – no [C]ommonwealth witness testified to the
interview method or was subject to cross examination
establishing the appropriateness of the method actually
used[,] violating [McCready’s] rights to due process and
confrontation.
2. Whether the court erred in giving jury instruction 4.13B – in
that giving the jury instruction vouches for the
Commonwealth’s evidence[,] sending the message to the jury
that the court was on the side of the Commonwealth.
3. Whether the court erred in finding sufficient evidence to
support the verdict because the sole evidence offered
originated from the victim and [McCready] countered with
alibi-like witnesses.
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5
McCready initially raised an additional issue in his court-ordered Pa.R.A.P.
1925(b) statement, arguing that the trial court improperly sentenced him to
a mandatory minimum sentence. McCready indicated that the
Commonwealth had not provided the requisite notice that it would be
seeking a mandatory minimum sentence. However, the trial court
specifically stated at the sentencing hearing that it was not sentencing
McCready on a mandatory minimum basis. McCready has apparently
abandoned this issue, as it has been omitted from his brief. Moreover, we
discern no error on the part of the trial court where the court and the parties
understood at the time of sentencing that the sentence was not being
fashioned according to a mandatory minimum scheme.
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4. Whether the court erred in giving the evidence adduced at
trial substantial weight supporting the verdict.
5. Whether the court erred in denying [McCready’s] after
acquired evidence motion where the evidence alleged was not
available or discoverable prior to trial and has a fair likelihood
of revealing an alternative perpetrator in the victim’s
[paternal uncle] who committed suicide post-trial.
6. Whether the trial court erred by basing [its finding that
McCready is a sexually violent predator] on the opinion of the
[Pennsylvania Sexual Offenders Assessment Board] assessor
where that opinion is not based on empirical data.
Appellant’s Brief, at 8-9.
In reviewing the admissibility of evidence, “an appellate court may
only reverse upon a showing that the trial court abused its discretion. An
abuse of discretion is not a mere error in judgment but, rather, involves
bias, ill will, partiality, prejudice, manifest unreasonableness, or
misapplication of law.” Commonwealth v. Cox, 115 A.3d 333, 336 (Pa.
Super. 2015) (citations omitted).
In his first issue, McCready challenges the trial court’s decision to
admit the videotaped interview of S.L.H. into evidence. McCready asserts
that due process required the Commonwealth to present the individual who
interviewed S.L.H. to be cross-examined regarding the methodology used to
complete the interview. Rather than asserting a lack of confrontation of the
witness, McCready claims that “the unique facts of this case present a new
question of law and fact[, which is] when and to what extent [] a defendant
[has] the right to challenge the veracity of the method used in the exercise
of [a] child forensic interview.” Appellant’s Brief, at 14.
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The tender years exception provides for the admissibility of certain
statements, that otherwise may be considered hearsay, as follows:
(a) General rule.--An out-of-court statement made by a child
victim or witness, who at the time the statement was made was
12 years of age or younger, describing any of the offenses
enumerated in 18 Pa.C.S. [§ 31 (relating to sexual offenses)],
not otherwise admissible by statute or rule of evidence, is
admissible in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
circumstances of the statement provide sufficient indicia of
reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
42 Pa.C.S. § 5985.1(a).
Pursuant to section 5985.1(a), once the court determines that out-of-
court statements are relevant and possess the required indicia of reliability,
they will be admissible provided the child testifies at trial or is unavailable.
This exception was created due to the fragile nature of child victims of
sexual abuse. Commonwealth v. Fink, 791 A.2d 1235 (Pa. Super. 2002).
The standard for determining whether the statements possess the required
indicia of reliability was set forth in Idaho v. Wright, 497 U.S. 805 (1990).
Obvious factors tending to demonstrate reliability include: (1) the
spontaneity and consistent repetition of the statements; (2) the mental state
of the declarant; (3) the use of terminology unexpected in a child of similar
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age; and (4) the lack of a motive to fabricate. Commonwealth v. Walter,
93 A.3d 442, 451 (Pa. 2014).
Instantly, the trial court conducted an in camera review of S.L.H.’s
videotaped interview. The court found that the video was relevant and that
“the time, content, and circumstances of the statement provides sufficient
indicia of reliability” to make the video admissible under section 5985.1.
N.T. Jury Trial, 1/22/14, at 20.
The record reveals that prior to trial, S.L.H. was determined to be
competent to testify. The statements S.L.H. made at trial and in the
interview were consistent. The record indicates no motive for S.L.H. to
fabricate, nor does it indicate that S.L.H.’s memory or testimony was tainted
in any way. For these reasons, we can discern no abuse of discretion on the
part of the trial court in determining that the videotaped interview contained
indicia of reliability satisfying subsection 5985.1(a)(1). S.L.H. testified at
trial, thus satisfying the remaining prong in subsection 5985.1(a)(2)(i).
Moreover, McCready makes no claim that S.L.H.’s memory actually
was tainted. Instead, he argues that he is entitled to an opportunity to
cross-examine the interviewer to potentially determine that the interview
was somehow improperly conducted. However, McCready’s argument that
the video should not have been admissible because he could not cross-
examine the interviewer simply has no basis in the statutory language of the
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tender years exception.6 The trial court therefore did not err or abuse its
discretion in permitting the videotaped interview to be admitted into
evidence and be viewed by the jury.
In his next issue, McCready claims that the trial court erred in its
instruction to the jury that S.L.H.’s uncorroborated testimony, if found
credible, provided sufficient evidence to convict him. This argument is
unpersuasive, however, since Pennsylvania law specifically provides that
“the uncorroborated testimony of a sexual assault victim, if believed by the
trier of fact, is sufficient to convict a defendant.” Commonwealth v.
Charlton, 902 A.2d 554, 562 (Pa. Super. 2006). Moreover, as we stated in
Commonwealth v. Trippett, 932 A.2d 188, 201 (Pa. Super. 2007), “the
instruction tracked the Suggested Standard Jury Instructions” in
Pa.S.S.Crim.J.I. § 4.13(B) and was appropriately given to the jury where the
defendant was charged with IDSI and the victim provided uncorroborated
testimony that defendant placed his tongue in her vagina, performed oral
sex on her, and forced her to place his penis in her mouth. Thus, we find no
merit in McCready’s claim.
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6
Indeed, the trial court noted that the manner in which the interview was
conducted actually supported the reliability of the videotaped statements
since “the interviewer was essentially a question-asking conduit and not a
participant in the sense of whether the events occurred or whether they did
not.” N.T. Jury Trial, 1/22/14, at 21.
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Next, McCready challenges the sufficiency and weight of the evidence
to convict him.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner[,] giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. 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. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)
(internal citations and quotation marks omitted).
S.L.H. testified that her uncle, who was in his thirties, put his penis in
her bottom and her vagina and made her hold his penis. She stated that
McCready put his penis in her mouth and “peed a little” inside her mouth.
Additionally, S.L.H. testified that McCready trapped her in a bedroom and
physically restrained her from leaving. This testimony provides for all of the
elements of the crimes for which McCready was found guilty.7 Thus, the
evidence was sufficient to convict McCready.
As to the weight of the evidence,
[t]he finder of fact is the exclusive judge of the weight of the
evidence, as the fact finder is free to believe all, part, or none of
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7
See 18 Pa.C.S. §§ 2903, 3121, 3121(c), 3123(b), 3126, 3126(a)(7), 4302,
and 6301.
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the evidence presented and determines the credibility of the
witnesses. As an appellate court, we cannot substitute our
judgment for that of the finder of fact. Therefore, we will
reverse a jury’s verdict and grant a new trial only where the
verdict is so contrary to the evidence as to shock one’s sense of
justice. Our appellate courts have repeatedly emphasized that
one of the least assailable reasons for granting or denying a new
trial is the lower court’s conviction that the verdict was or was
not against the weight of the evidence.
Furthermore,
[W]here 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 trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)
(citations and quotations omitted).
Instantly, McCready asserts that the verdict is against the weight of
the evidence because S.L.H.’s testimony was the sole evidence supporting
his convictions and he presented evidence that he would not have been able
to be alone with S.L.H. Considering that the jury is tasked with credibility
determinations and may believe all, some, or none of the evidence
presented, we discern no error on the part of the trial court in denying
McCready’s weight claim. Rabold, supra.
McCready next asserts that the trial court erred in denying his motion
regarding after-discovered evidence. Our test for awarding a new trial
based upon after-discovered evidence is well-settled and involves four
prongs: “[t]he evidence (1) could not have been obtained prior to trial by
exercising reasonable diligence; (2) is not merely corroborative or
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cumulative; (3) will not be used solely to impeach a witness’s credibility; and
(4) would likely result in a different verdict.” Commonwealth v. Castro,
93 A.3d 818, 821 n.7 (Pa. 2014).
Here, the information presented in the after-discovered evidence
motion is not actually evidence. It is merely speculation that S.L.H.’s
paternal uncle committed suicide out of guilt and that because he was being
investigated for a sex crime against a different victim, he must have also
been the perpetrator of the crimes against S.L.H. This is pure conjecture
that is unlikely to change the outcome of the matter. Moreover, if the fact of
the paternal uncle’s suicide were somehow introduced at trial, its sole
purpose would be to call into question S.L.H.’s credibility in unequivocally
identifying McCready as the perpetrator. Castro, supra. For these reasons,
the trial court correctly denied the after-discovered evidence motion.
In his final issue on appeal, McCready claims that the trial court erred
in finding that he is a sexually violent predator (SVP) based upon testimony
provided by a member of the Pennsylvania Sexual Offenders Assessment
Board (SOAB), since such opinion is not based on empirical data. Here,
Corrine Scheuneman, a member of the SOAB, was qualified by the trial court
as an expert witness regarding sex offender assessment and evaluation. At
McCready’s sentencing hearing, Scheuneman testified that she had
evaluated McCready based upon interviewing him and reviewing documents
obtained in an investigation by the SOAB regarding this matter.
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Scheuneman testified that, based upon her evaluation, McCready meets the
statutory criteria to be classified as a sexually violent predator.
Our Supreme Court has held that the opinion of a criminal justice
expert is a sufficient basis to determine a defendant’s SVP status. See
Commonwealth v. Conklin, 897 A.2d 1168, 1178 (Pa. 2006) (“[I]n order
to carry its burden of proving that an offender is an SVP, the Commonwealth
is not obliged to provide a clinical diagnosis by a licensed psychiatrist or
psychologist; the opinion of a qualifying criminal justice expert suffices.”).
Thus, because Scheuneman was qualified as an appropriate criminal justice
expert prior to rendering her opinion regarding McCready’s SVP status, the
trial court did not err in classifying McCready as a sexually violent predator.
Conklin, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
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