Com. v. Baer, D. ( 2019 )

J-S78006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARREN LEROY BAER, :
:
Appellant : No. 68 EDA 2017
Appeal from the Judgment of Sentence August 15, 2016
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004977-2015
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 11, 2019
Darren Leroy Baer appeals his judgment of sentence, entered in the
Court of Common Pleas of Montgomery County, after a jury convicted him of
rape by forcible compulsion,1 involuntary deviate sexual intercourse by
forcible compulsion,2 and sexual assault.3 Baer argues the verdict was against
the weight of the evidence and the trial court abused its discretion by not
ordering a new trial. Upon careful review, we affirm.
The trial court set forth the facts of the case as follows:
M.R.[, the complainant,] testified that she met [Baer] in the
summer of 2012 when she was sixteen (16) years old at the movie
theater where they both worked. They started dating in August
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1 18 Pa.C.S.A. § 3121(a)(1).
2 18 Pa.C.S.A. § 3123(a)(1).
3 18 Pa.C.S.A. § 3124.1.
____________________________________
* Former Justice specially assigned to the Superior Court.
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of [2012] and M.R. explained that [Baer] was very nice to her for
the first three months of their relationship.
M.R. testified about the emotional and psychological abuse [Baer]
subjected her to starting approximately three (3) months into
their relationship. She also testified in detail about the three (3)
incidents in the summer of 2013, October of 2014, and early in
2015 that led her to go to the police and accuse [Baer] of rape. A
couple of days after the second incident, M.R. testified that she
went to a doctor for bruising resulting from a fall after being
pushed by [Baer] and told the doctor that [Baer] had raped her
before.
While explaining why she stayed with [Baer] after he became
abusive, M.R. told the jury that [Baer] was her first boyfriend, her
first kiss and the first person she had been with sexually. She
testified about how [Baer] had isolated her from her friends, how
she was estranged from her father and that she was not getting
along with her mother. When asked why she waited to report the
abuse, M.R. explained ‘I felt embarrassed. I felt alone. I didn’t
have any evidence because I waited too long. . . . I don’t want to
be here. The only reason I’m here is because he really pushed
me to that point. I just wanted to let things go and move on with
my life.’ M.R. also testified about what made these three (3)
incidents different from the other times they had sex by explaining
‘I never wanted to be treated that way. I told him specifically that
I didn’t want to have sex, and I was crying. And at no point in
any other time that we had sex did I cry.”
During M.R.’s testimony, the Commonwealth offered Facebook
messages into evidence that M.R. and [Baer] had exchanged
during their relationship. Many of the messages [Baer] sent to
M.R. were inculpatory. M.R. testified that [Baer] continued to text
her every single day after breaking up with her in February of
2015 and that she blocked him on several different accounts and
he still found her.
On cross examination, Attorney Cooper questioned M.R. in
intimate detail about her relationship with [Baer]. Counsel’s
questions during cross examination proposed that M.R. was a very
willing participant in rough sex and role playing and that she cried
rape only after, and because, [Baer] had broken up with her.
Ms. Ulrich, M.R’s [a]unt, testified about a conversation she had
with M.R. that caused her concern about M.R.’s relationship with
[Baer] in the fall of 2013. Then[,] within a year from that
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conversation, Ms. Ulrich was unexpectedly visited during the day
by M.R. at her home. Ms. Ulrich testified that M.R. came to her
door unannounced and visibly very upset and told her aunt that
[Baer] had raped her.
Finally, the Commonwealth presented the testimony of Detective
[Heather] Long, the detective assigned to investigate M.R.’s
complaint. Detective Long testified in detail regarding the
statement she took from [Baer]. Therein, [Baer] admitted to
having sex with M.R. when M.R. had told him that she did not want
to have sex. Detective Long also testified regarding M.R.’s
medical records obtained during the investigation and [Baer’s]
letter to M.R. after his arrest asking her to recant her statement.
At the close of [Baer’s] case, the court instructed the jury, inter
alia, on judging the credibility of witnesses, including the failure
of M.R. to promptly complain. The jury returned from their
deliberations with a guilty verdict on all counts.
Trial Court Opinion, 1/24/17, at 7-10 (citations to record omitted).
After a three-day trial, Baer was convicted on two counts of rape by
forcible compulsion; one count of involuntary deviate sexual intercourse by
forcible compulsion; and three counts of sexual assault. On August 15, 2016,
Baer was sentenced to an aggregate term of 5 to 10 years’ incarceration,
followed by a 5-year probationary tail. Post-sentence motions were granted
in part and denied in part4 and Baer filed a timely notice of appeal to this
Court, followed by a court-ordered statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
Bear raises the following issue for our review:
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4The trial court granted Baer’s request to modify the conditions of his parole
and probation. Originally, the court had imposed restrictions on Baer’s use of
computers, viewing adult pornography and socializing with women or children.
Those conditions were stricken and vacated. See Trial Court Order, 12/16/16.
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Whether the trial judge’s denial of [Baer’s] motion for a new trial
was an abuse of discretion where the jury’s verdict on all counts,
two (2) counts of rape by forcible compulsion, one (1) count of
involuntary deviate sexual intercourse by forcible compulsion, and
three (3) counts of sexual assault, which stemmed from three
separate alleged sexual encounters, were against the weight of
the evidence where [M.R.] and [Baer], both teenagers, were
involved in a years-long highly emotionally- and sexually-charged
relationship characterized by daily sexual activity, role play,
[M.R.’s] encouragement of [Baer] to have rough sex with her,
mutual emotional and physical abuse, and where testimony of the
[M.R.] was self-contradictory, uncorroborated, unreliable,
imprecise ([M.R.] had difficulty naming even the months when
each of the alleged incidents occurred), infused with regret, and
motivated by a desire for revenge, and where [M.R.] did not report
the three alleged incidents until after [Baer] ended the
relationship?
Brief of Appellant, at 7.
Baer claims that the verdict was against the weight of the evidence. He
claims the judge abused his discretion and held a “stereotyped, partial, and
unsupported view of the relationship between the two teenagers.” Brief of
Appellant, at 36. He also argues that M.R.’s testimony was wholly unreliable.
We find the trial judge acted within his discretion in not ordering a new trial.
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
exercised and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.
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Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations
and internal quotation marks omitted).
Here, the jury heard the testimony of the witnesses, including that of
the victim, and viewed inculpatory Facebook messages between Baer and
M.R., as well as Baer’s statement to police. The jury concluded, beyond a
reasonable doubt, that Baer committed the crimes of rape, deviate sexual
intercourse and sexual assault. The trial court noted that there was sufficient
reliable testimony to sustain the jury’s verdict, and Baer does not raise a
sufficiency challenge.5 The trial court, which also observed the demeanor and
testimony of the witnesses, “disagrees with [Baer’s] characterization of M.R.’s
testimony.” Trial Court Opinion, 1/18/18, at 14. It is the jury’s role as fact
finder to weigh credibility and only if the result would “shock one’s sense of
justice” will a weight of the evidence claim be successful. Commonwealth
v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013). The trial court found Baer failed
to demonstrate how the verdict shocked one’s sense of justice. Trial Court
Opinion, 1/18/18, at 15. Based on our review of the record, we can discern
no abuse of discretion on the part of the trial court. Houser, supra.
Judgment of sentence affirmed.
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5A weight of the evidence claim concedes that sufficient evidence exists but
only questions if that evidence should be believed. See Commonwealth v.
Miller, 172 A.3d 632, 643 (Pa. Super. 2017).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/19
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