Com. v. Drayton, L. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LAMARCUS EUGENE DRAYTON
Appellant No. 1742 MDA 2018
Appeal from the Judgment of Sentence entered August 20, 2018
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0002609-2016
BEFORE: STABILE, McLAUGHLIN, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 24, 2020
Appellant, Lamarcus Eugene Drayton, appeals from the judgment of
sentence entered on August 20, 2018 in the Court of Common Pleas of
Dauphin County following his conviction of two counts of involuntary deviate
sexual intercourse—person less than 16 years of age (“IDSI”), and one count
each of unlawful contact with a minor, indecent assault, and corruption of
minors.1 Appellant argues that the verdict was against the weight of the
evidence and that the trial court erred in denying admission of a prior
inconsistent statement of the victim. Upon review, we affirm.
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1 18 Pa.C.S.A. §§ 3123(a)(7), 6318(a)(1), 3126(a)(8), and 6301(a)(1)(i),
respectively.
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Following a jury trial in May 2018, Appellant was convicted of the crimes
listed above. On August 10, 2018, he was sentenced to an aggregate term of
ten to twenty years in prison, followed by five years’ probation.
Appellant filed a post-sentence motion, which the trial court denied on
September 27, 2018. This timely appeal followed. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
Appellant asks us to consider two issues in this appeal:
1. Did the trial court commit reversible error in refusing to grant
Appellant a new trial despite the jury’s verdict being so contrary
to the weight of the evidence presented as to shock one’s sense
of justice?
2. Did the trial court abuse its discretion in refusing to permit the
jury to learn of prior inconsistent statements of the alleged
victim, which were being proffered at trial by Appellant for both
substantive and impeachment purposes?
Appellant’s Brief at 5.
In its Rule 1925(a) opinion, the trial court summarized the testimony
presented at trial, with references to the notes of testimony. The trial court
noted that the Commonwealth presented three witnesses. The first, Biancha
Lackey (“Lackey”), testified that she is the grandmother of M.B., the victim in
this case. Lackey contacted Children and Youth in May of 2015 after noticing
a bruise on M.B.’s neck. She was granted physical custody and guardianship
of M.B. Trial Court Opinion, 12/13/18, at 2 and 5. The second witness was
Linda Sharretts, a licensed professional counselor, to whom M.B. reported
sexual assault allegations against Appellant. Id. at 2-3. The third witness
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was M.B., who is Appellant’s nephew. M.B., who was fifteen years old at the
time of trial, testified in detail about a number of instances of sexual abuse
perpetrated by Appellant against M.B. These events occurred over several
years at different houses where M.B.’s family resided in Harrisburg. Id. at 3-
5.
The defense presented two witnesses, both of whom were M.B.’s
cousins. The first cousin recounted a conversation with M.B. during which
M.B. admitted that he lied when he made allegations against Appellant. On
cross-examination, the witness acknowledged he did not report the
conversation to police. Id. at 5. The second cousin testified that she
overheard the conversation and that M.B. admitted he was lying so he would
not have to go back and live with his mother. As the trial court noted, this
witness was supposedly sleeping when the conversation took place between
M.B. and the other cousin. Id.2
Appellant’s first challenge is to the weight of the evidence. Appellant
preserved this issue by raising it in his post-sentence motion, seeking a new
trial on that basis.
“The weight of the evidence is a matter exclusively for the finder of fact,
who is free to believe all, part, or none of the evidence and to determine the
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2The witness testified, “Like technically I wasn’t sleepin’, but I was sleepin’.”
Notes of Testimony, Trial, (“N.T.”), at 171. She then stated she was
pretending to be asleep. Id.
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credibility of the witnesses.” Commonwealth v. Baker, 201 A.3d 791, 799
(Pa. Super. 2018) (quoting Commonwealth v. Gonzalez, 109 A.3d 711, 723
(Pa. Super. 2015)). “To successfully challenge the weight of the evidence, a
defendant must prove the evidence is ‘so tenuous, vague and uncertain that
the verdict shocks the conscience of the court.’” Commonwealth v.
Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017) (quoting Commonwealth
v. Mucci, 143 A.3d 399, 411 (Pa. Super. 2016) (additional citation omitted)).
As our Supreme Court explained in Commonwealth v. Clay, 64 A.3d
1049 (Pa. 2013), “[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.” Id. at 1054-55 (citing Commonwealth v. Widmer, 744 A.2d 745,
751-52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.
1994)). “[T]he 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.’” Id. at 1055
(quoting Widmer, 744 A.2d at 752).
The Court in Clay further instructed:
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Brown, 648
A.2d at 1189. Because the trial judge has had the
opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the
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findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is
against the weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). 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 and that a new
trial should be granted in the interest of justice.
Id. at 1055 (quoting Widmer, 744 A.2d at 753) (emphasis in original).
Here, Appellant complains there was “a complete dearth of any physical
evidence at Appellant’s trial. The only evidence the Commonwealth presented
was in the form of the alleged victim’s testimonial evidence.” Appellant’s Brief
at 12. Appellant contends that the verdict “rest[ed] unsoundly on the cringe
worthy credibility of M.B.’s testimony, which on balance, was so inherently
unreliable that the rendered verdict was likely based on conjecture.” Id.
Appellant suggests M.B.’s testimony was “inherently unreliable” and
“incredulous,” consisting of “false and misleading narratives.” Id. at 18. He
argues the “baseline veracity of M.B.’s allegations were demonstrably proven
to be fictitious by two (2) separate witnesses.” Id. at 20.
As the trial court recognized, this Court has held “that the
uncorroborated testimony of a sexual assault victim, if believed by the trier of
fact, is sufficient to convict a defendant, despite contrary evidence from
defense witnesses.” Trial Court Opinion, 12/13/18 (quoting Commonwealth
v. Davis, 650 A.2d 452, 455 (Pa. Super. 1994), aff’d on other grounds, 674
A.2d 214 (Pa. 1996)). Here, the verdict reflects that the jury believed M.B.,
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in spite of rigorous cross-examination by the defense and the testimony of the
defense witnesses.
Appellant complains the trial court failed “to conduct a qualitative (or
quantitative) analysis of the testimonial evidence, to reach a dispassionate
conclusion of witness believability.” Appellant’s Brief at 17. We cannot agree.
As the trial court explained:
The Commonwealth introduced evidence that, if believed,
established a finding of guilt on the [crimes charged]. The victim,
M.B., gave a compelling and detailed account of the sexual abuse
endured at the hands of Appellant. M.B. gave a vivid recollection
of sexual abuse at several houses that he lived at while growing
up. M.B. testified that the Appellant would make him perform oral
sex and that Appellant would touch his penis and butt. M.B. also
testified that on one occasion, he was made to lie down and put
his legs in the air while Appellant tried to stick his penis in his anal
area. Here, the jury found the victim’s testimony credible and
chose not to believe Appellant’s witnesses. It was within the
province of the jury as fact-finder to resolve all issues of
credibility, resolve conflicts in evidence, make reasonable
inferences from the evidence, believe all, none, or some of the
evidence, and ultimately adjudge Appellant guilty.
Commonwealth v. Gooding, 818 A.2d 546 (Pa. Super. 2003).
Accordingly, the jury properly weighed the testimony presented
and found Appellant guilty of the afore-mentioned crimes. The
testimony, if believed, does not shock one’s sentence of justice.
Further, this court found M.B.’s testimony credible as well as
compelling.
Trial Court Opinion, 12/13/18, at 6-7.3
____________________________________________
3 We have taken the liberty of making slight alterations to the quoted excerpt
that do not affect the substance of the court’s statement. For instance, the
court referred to the victim as “MB” whereas we have identified him as “M.B.”
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Just as this Court did in Gooding, we have likewise reviewed the record
for ourselves, and “our sense of justice is not shocked by the verdict.”
Gooding, 818 A.2d at 552. Again, the weight of the evidence is for the finder
of fact and this Court will not substitute its judgment for that of the finder of
fact. Finding no abuse of discretion in the trial court’s refusal to grant a new
trial based on weight of the evidence, we dismiss Appellant’s first issue for
lack of merit.
Appellant next argues that the trial court abused its discretion by
refusing to admit a prior inconsistent statement attributed to M.B. As this
Court reiterated in Commonwealth v. Crosley, 180 A.3d 761 (Pa. Super.
2018):
“Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and a reviewing court will not
reverse the court’s decision on such a question absent a clear
abuse of discretion.” Commonwealth v. Hernandez, 862 A.2d
647, 650 (Pa. Super. 2004) (citations omitted). “An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.”
Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa. Super.
2007).
Id. at 768.
In Henkel, we stated:
The general rule is that a prior inconsistent statement of a
declarant is admissible to impeach the declarant. Prior
inconsistent statements also can be admitted as substantive
evidence provided the declarant testifies at trial and is subject to
cross-examination concerning the statement and one of the
following is true: 1) the prior inconsistent statement was given
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under oath subject to the penalty of perjury at a trial, hearing,
deposition, or other proceeding; 2) the prior inconsistent
statement is contained within a signed writing adopted by the
declarant; and/or, 3) the rendition of the statement offered is a
verbatim contemporaneous recording of an oral statement.
Commonwealth v. Chmiel, 558 Pa. 478, 738 A.2d 406, 419
(1999), writ of certiorari denied, 528 U.S. 1131, 120 S. Ct. 970,
145 L. Ed. 2d 841 (2000), citing Commonwealth v. Lively, 530
Pa. 464, 610 A.2d 7, 8 (1992)[.]
Henkel, 938 A.2d at 442-43 (some citations omitted).
Appellant argues that the trial court “palpably abused its discretion in
denying Appellant his right to impeach and confront his alleged victim through
the introduction of M.B.’s prior inconsistent statements, which disavowed the
occurrence of the very crimes as charged.” Appellant’s Brief at 22 (footnote
omitted). He asserts that “M.B’s previous statement denying Appellant
committed any wrongdoing is unmistakably inconsistent with his trial
testimony claiming Appellant is the perpetrator of the sexually based
offenses.” Id. at 23-24.
The statement at issue is a transcription of a statement given to the
Children’s Resource Center (“CRC”) in 2009 when M.B. was six years old.
According to Appellant, “[t]he 2009 statement contradicts M.B.’s 2015
statement made in a subsequent interview with the CRC, whereby M.B.
recalled being sexual[ly] abuse[d] by Appellant beginning back when he was
six (6) years old.” Id. at 28. “M.B.’s factual account during both these
interviews differs further from his testimony at Appellant’s trial – in which M.B.
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testified on direct examination that Appellant began sexually abusing him
when he was between 8 and 9 years old.” Id.
We first note that Appellant’s counsel cross-examined M.B. on the
statement made in the 2015 interview (in which M.B. stated the abuse started
when he was six years old) and highlighted the inconsistency with his
testimony on direct examination (when M.B. testified he was between eight
and nine years old when the abuse began). Although Appellant complains
about the court’s refusal to permit introduction of “prior inconsistent
statements,” it is clear Appellant was able to challenge M.B.’s comments
from the 2015 statement. Therefore, as the trial court suggests, it appears
the focus of Appellant’s second issue is the trial court’s denial of admission of
the 2009 interview “that took place when the child was six years old and prior
to the incidents charged.” Trial Court Opinion, 12/13/18, at 7. As the court
explained:
Here, the Commonwealth did not elicit any testimony regarding a
CRC interview with the victim that occurred in 2009 when the
victim was only 6 years old. Thus, defense counsel would be
unable to cross-examine the witness using the CRC video to
refresh the recollection of the victim’s testimony because he did
not testify on direct examination about the CRC video. [Pa.R.E.
803.1(3)—Recorded Recollection of Declarant-Witness4] does not
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4 Pa.R.E. 803.1 outlines exceptions to the rule against hearsay under
circumstances when the testimony of the declarant is necessary. They include
the recorded recollection of a declarant-witness as provided in Rule 803.1(3),
which provides that statement is not excluded by the hearsay rule if the
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address an inability to recall the statement. Instead, the Rule
speaks to whether the witness can recall the matter. The Rule
contemplates that the questioner will ask the witness about the
actual events at issue prior to inquiring about a past statement
given. Here, defense counsel did not ask the victim whether he
remembered any of the actual events that occurred but instead
asked whether he remembered giving a statement to CRC when
he was only six years old in hopes of introducing the transcript of
the interview.10 Accordingly, the victim did not remember the
statement given at that time. N.T. at 149.
10We further note that the interview was not given under oath and that
the victim was six years old when the statement was given.
Id. at 8 (emphasis in original).
After recognizing that a prior inconsistent statement may be offered not
only to impeach a witness, but also as substantive evidence if additional
requirements of reliability are met, as reflected in the Henkel excerpt above,
the trial court announced:
____________________________________________
declarant testifies and is subject to cross-examination about the prior
statement, which is
[a] memorandum or record made or adopted by a declarant-
witness that:
(A) is on a matter the declarant-witness once knew about but now
cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the declarant-witness when the
matter was fresh in his or her memory; and
(C) the declarant-witness testifies accurately reflects his or her
knowledge at the time when made.
Pa.R.E. 803.1(3)—Recorded Recollection of Declarant-Witness.
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This court finds that the reliability of a statement given to a CRC
interviewer that is not under oath and not signed by a six year old
child is not demonstrably reliable and trustworthy. Defense
counsel attempts to get into a series of questions regarding the
CRC interview because they are “probative to the witness’s state
of mind.” N.T. at 149. We are unable to discern what exactly
defense counsel was trying to prove by getting into the state of
mind of a six year old child. Here the victim testified that the
events occurred after the CRC interview. The victim also testified
that he did not remember giving a CRC interview when he was six
years old. The victim was never asked whether he remembered
these events occurring when he was six years old (i.e. whether he
was sexually abused at six years old). The victim was only asked
if he remembered giving a CRC interview.
Id. at 9.
The court continued, noting that should this Court determine it was error
not to permit introduction of the 2009 interview, Appellant was not prejudiced
by the court’s ruling.
[Appellant] fails to set forth (and thus properly preserve) what
was essential in the 2009 CRC interview that would have
vindicated his innocence. Additionally, trial counsel thoroughly
cross-examined the victim and drew out any inconsistencies
between a CRC interview given in 2015 and the trial testimony.
The Appellant’s overall trial strategy was to challenge the
credibility of the accuser by pointing to the lack of physical
evidence, the inconsistencies in the victim’s testimony, and the
introduction of two witness[es] who testified that the victim was
not telling the truth. As such, assuming arguendo that the
transcript was improperly precluded, Appellant was not prejudiced
by the failure of the introduction of the [2009] CRC transcript and
no relief is due.
Id. at 9-10.
Based on our review, we find no abuse of discretion in the trial court’s
ruling that precluded admission of the 2009 CRC interview. Therefore, we will
not disturb it.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/24/2020
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