Com. v. Peifer, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
MICHAEL DAVID PEIFER :
:
Appellant : No. 1061 WDA 2019
Appeal from the Judgment of Sentence Entered February 26, 2019
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000151-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED JULY 08, 2020
Michael David Peifer (Appellant) appeals from the judgment of sentence
imposed following his convictions of indecent assault of a person less than 13
years of age and corruption of minors.1 We affirm.
The trial court summarized the facts and history:
On October 11, 2016, [Appellant] was charged with two
counts of aggravated indecent assault-person less than 13 years
of age; two counts of indecent assault-person less than 13 years
of age; and two counts [of] corruption of minors. The
Commonwealth charged [Appellant] with two counts of each
offense based upon its allegation that [Appellant] assaulted a [six-
year-old] child, [Victim], on two separate occasions[:] once in
[Appellant’s] swimming pool and once in his living room.
A jury trial was held on October 15, 2018[.] The jury
acquitted [Appellant] of the aggravated [indecent] assault
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3126(a)(7) and 6301(a)(1)(ii).
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charges, but convicted him of the remaining charges. On
February 26, 2019, this [c]ourt sentenced [Appellant] to an
aggregate sentence of 9 to 18 months’ incarceration followed by
5 years’ supervised probation.
On March 5, 2019, [Appellant] filed a post-sentence motion
for judgment of acquittal based upon the sufficiency of the
evidence and motions for a new trial based upon the weight of the
evidence and ineffective assistance of counsel. The motions were
granted in part and denied in part. Specifically, [the trial court]
held that the Commonwealth failed to present sufficient evidence
to enable a jury to conclude beyond a reasonable doubt that
[Appellant] assaulted [the Victim] in his living room. Accordingly,
[the trial court] vacated the sentences relating to the living room
incident (i.e., one count of indecent assault and one count of
corruption of minors). [The court] denied [Appellant’s] motion for
a new trial based upon the weight of the evidence, after finding
that the jury’s verdict did not shock our sense of justice. [The
court] also denied the motion for a new trial based upon trial
counsel’s alleged ineffectiveness. [The trial court] found that the
ineffective assistance claim did not warrant consideration and
relief on direct review under the limited exception recognized in
Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2017).
Accordingly, the convictions arising from the swimming pool
incident remained in effect. Because [Appellant’s] sentences
arising from the swimming pool incident were to be served
concurrently with the sentences arising from the living room
incident, [Appellant’s] sentence remained 9 to 18 months’
incarceration, followed by 5 years’ supervised probation.
On July 15, 2019, [Appellant] filed a [notice of appeal],
which was followed, on August 14, 2019, by the filing of a concise
statement of errors complained of on appeal. . . .
Trial Court Opinion, 10/23/19, at 1-3 (some citations and footnotes omitted).
The trial court filed its 1925(a) opinion on October 23, 2019.
Appellant presents three issues for review:
[1.] WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
CONVICTIONS OF INDECENT ASSAULT AND CORRUPTION OF
MINORS REGARDING AN INCIDENT THAT ALLEGEDLY OCCURRED
ON AUGUST, 10, 2016, INSOFAR AS THIS WAS AN EXTREME
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SITUATION WHERE “THE TESTIMONY PRESENTED TO THE JURY
WAS SO UNRELIABLE AND CONTRADICTORY THAT THE JURY’S
CHOICE TO BELIEVE THAT EVIDENCE WAS AN EXERCISE OF PURE
CONJECTURE?”
[2.] ALTERNATIVELY, DID THE TRIAL COURT ABUSE ITS
DISCRETION IN DENYING APPELLANT’S POST SENTENCE MOTION
THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE?
[3.] SHOULD [APPELLANT] BE SUBJECT TO THE REGISTRATION
REQUIREMENTS AND RESTRICTIONS UNDER ACT 10 OF 2018
INSOFAR AS THE ACT IS PUNITIVE, UNLAWFUL AND
UNCONSTITUTIONAL BECAUSE IT REQUIRES A DEFENDANT TO
REGISTER FOR LIFE FOR A FIRST DEGREE MISDEMEANOR THAT
CARRIES A MAXIMUM PENALTY OF FIVE YEARS IMPRISONMENT,
IT IS BASED SOLELY ON THE POSSIBILITY OF FUTURE
DANGEROUSNESS, AND IT IS MANIFESTLY IN EXCESS OF WHAT
IS NEEDED TO ENSURE COMPLIANCE WITH THE LAW?
Appellant’s Brief at 5.
In his first issue, Appellant purports to challenge the sufficiency of the
evidence. See Appellant’s Brief at 17-29. In arguing the evidence was
insufficient, Appellant solely challenges the credibility of Victim’s testimony.
Id. at 18 (“[Victim] provided few details, and when she did offer them, she
was uncertain, vague, and contradicted herself.”); at 19 (“Throughout her
direct and redirect examinations, it was evident that [Victim] was trying to
give the answers that she believed the prosecutor wanted her to give -
answers that, in fact, she was frequently prompted to give.”); at 23
(“[Victim’s] credibility was crucial to the resolution of this case.”); id.
(“[Victim], whom her mom conceded had lied in the past, had a number of
reasons to ‘stretch the truth,’ if not completely fabricate what occurred.”).
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Appellant’s challenge goes to the weight, not the sufficiency, of the
evidence. See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014)
(“An argument regarding the credibility of a witness’[] testimony goes to the
weight of the evidence, not the sufficiency of the evidence.”);
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)
(“variances in testimony go to the credibility of the witnesses and not the
sufficiency of the evidence”). Our Supreme Court has confirmed that an
“appellant’s challenge to the sufficiency of the evidence must fail” where an
appellant phrases an issue as a challenge to the sufficiency of the evidence,
but the argument that appellant provides goes to the weight of the evidence.
Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999). Accordingly,
Appellant’s sufficiency claim lacks merit.
In his next claim, Appellant properly challenges the weight of the
evidence supporting his convictions for indecent assault and corruption of
minors.2 We have explained:
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is so
unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not cognizable
on appellate review. 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
____________________________________________
2 Appellant preserved this issue in compliance with Pa.R.Crim.P. 607 by raising
it with the trial court in a post-sentence motion. Appellant’s Post-Sentence
Motion, 3/5/19, at 2-4.
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whether the trial court palpably abused its discretion in ruling on
the weight claim.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations
omitted). “[I]t is for the fact-finder to make credibility determinations, and
the finder of fact may believe all, part, or none of a witness’s testimony.” Id.
(citation omitted). Therefore, “[a]n appellate court will give the gravest
consideration to the 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, as the trial judge is in the best positon to view the evidence
presented.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super.
2006) (citation omitted). To allow an appellant “to prevail on a challenge to
the weight of the evidence, the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.”
Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2016) (citation
omitted).
Appellant argues the trial court erred in denying his motion for a new
trial based upon the weight of the evidence because Victim’s “testimony in
this case preponderates heavily against the verdict[,] . . . such that a serious
miscarriage of justice occurred.” Appellant’s Brief at 31.
The trial court explained:
[Appellant] first asserts that we erred in denying the motion
for a new trial because “the Commonwealth’s evidence was of low
quality, tenuous, vague and uncertain as to make the verdict of
guilty pure conjecture.” [Appellant’s] Concise Statement at 3.
Specifically, [Appellant] asserts that [the Victim’s] history of
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“touching herself” and knowledge of her mother’s disapproval
rendered [the Victim’s] testimony and report to her mother on the
night of the incident unreliable because she had a motive to
fabricate the claims against [Appellant]. Additionally, [Appellant]
asserts that, because [Victim] aims at pleasing others and is
susceptible to suggestibility, “it is highly probable that she
exaggerated” the incident. Id. at 4. Last, [Appellant] argues
[that Victim’s] description of the pool incident could lead to the
conclusion that [Appellant] was merely helping [Victim] either
“get out of the pool, or flipping her over during horseplay.” Id.
In essence, [Appellant] disagrees with the jury’s credibility
determination and asserts that it should have adopted an
alternative interpretation of [Victim’s] testimony.
“The weight of the evidence is exclusively for the finder of
fact, which is free to believe all, part, or none of the evidence.”
Commonwealth v. DeJesus, [] 860 A.2d 102, 107 ([Pa.] 2004).
Thus, a trial court may grant a defendant a new trial based upon
a weight of the evidence claim only if “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, 1055 (Pa. 2013). “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.”
[Id.] at 1055.
Further, while the standard controlling our review of the
jury’s verdict already affords it great deference, the jury’s
credibility determinations are particularly unassailable. A jury is
the ultimate fact-finder, and, as such, it is “the sole arbiter of
credibility of each of the witnesses.” Commonwealth v. Jacoby,
170 A.3d 1065, 1080 (Pa. 2017). Accordingly, “a jury is entitled
to resolve any inconsistencies in the Commonwealth’s evidence in
the manner that it sees fit.” Id.
In this case, [Appellant’s] challenge to the jury’s verdict
rests upon his assertion that [Victim’s] age, history of touching
her own genitals, and suggestibility rendered her testimony
incredible. [Appellant] posits that the jury should have concluded
from this evidence that [Victim] fabricated her account to avoid
reprimand and please others. This [c]ourt agrees that certain
parts of the evidence could have led the jury to find that [Victim]
fabricated her account. However, we disagree that the jury
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necessarily should have made such a finding since, in our
estimation, there was other evidence that was presented that just
as readily lent itself to a finding that [Victim] was truthful.
The testimonies from Trooper [Donald T.] Neisner, [Victim’s
mother], and Victim, in addition to [Victim’s] recorded statement
during the forensic interview, were largely consistent. On the
night of the incident, at both hospitals, and during the forensic
interview, [Victim] consistently reported that [Appellant] touched
her genitalia in and outside of her bathing suit. [Appellant’s]
testimony at trial did not significantly depart from this account,
other than adding that [Appellant’s] hand was also inside of her
genitalia. When asked whether [Victim] would lie to please
others, [Victim’s mother] answered that [Victim] would not do so.
Additionally, [Victim] testified that her mother did not instruct her
to testify in a particular manner, only to tell the truth. The mere
presence of a motivation to lie was not of such great weight that
it required the jury to conclude that [Victim] actually fabricated
the assault. Indeed, [Appellant’s] consistent reporting and
testimony as to her truthfulness support the jury’s decision to
forgo [Appellant’s] characterizations of [Victim’s] allegations and
testimony. Thus, the jury acted squarely within its prerogative to
find the testimonies credible and resolve any inconsistencies as it
did.
Because the jury acted as the fact-finder, we were not
entitled to disturb its determinations absent extraordinary
circumstances. After reviewing all evidence according to the
respective roles of a jury and a court, we could not conclude that
the jury’s verdict was against the weight of the evidence. The
jury’s credibility determinations, inferences, and resolutions of
incongruities in the evidence were reasonable. Consequently, its
verdict did not shock our sense of justice.
Trial Court Opinion, 10/23/19, at 8-10 (emphasis in original, citations
omitted).
We agree with the trial court. The Victim testified at trial that while in
Appellant’s swimming pool, Appellant stuck his hand down the bottom portion
of her swimsuit and put his hand inside her ”girl parts.” N.T., 10/15/18, at
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92, 94-95. The Victim’s mother testified that on the night of August 10, 2016,
after returning home from swimming at Appellant’s house, the Victim told her
that Appellant touched her “privates, in her girl parts” while they were
swimming. Id. at 63-65. The investigating police officer, Trooper Neisner,
testified that during the forensic interview conducted of the Victim, she
reported that Appellant rubbed her “girl parts” with his hand under her
clothing while in Appellant’s swimming pool. Id. at 54-55.
It was within the sole province of the jury to determine the weight of
the evidence, including resolving conflicts in the testimony and credibility
questions. See Jacoby, 170 A.3d at 1080. “[T]he evidence [was not] so
tenuous, vague and uncertain that the verdict shocks the [collective]
conscience of the [C]ourt.” Talbert, 129 A.3d at 545 (citation omitted).
Therefore, Appellant’s second claim does not merit relief.
In his third claim, Appellant argues that his lifetime sex offender
registration requirement under Pennsylvania’s Sexual Offender Registration
and Notification Act (SORNA) is an illegal sentence because it constitutes
criminal punishment, and consequently, it exceeds his sentence beyond the
lawful maximum sentence for indecent assault of a person less than 13 years
of age. Appellant’s Brief at 32-34. “Because this issue presents a question of
law, our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Horning, 193 A.3d 411, 414 (Pa. Super. 2018).
“The Pennsylvania General Assembly passed [SORNA] as Act 111 of
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2011, signed December 20, 2011. In so doing, it provided for the expiration
of prior registration requirements, commonly referred to as Megan’s Law, 42
Pa.C.S.A §§ 9791–9799.9, as of December 20, 2012, and for the effectiveness
of SORNA on the same date.” In re J.B., 107 A.3d 1, 3 (Pa. 2014). On July
19, 2017, the Pennsylvania Supreme Court issued its Opinion Announcing the
Judgment of the Court in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), which found SORNA to be punitive in nature and held that retroactive
application of the registration and reporting requirements of SORNA to
criminal defendants violated the ex post facto clauses of the United States and
Pennsylvania Constitutions. Id. at 1223; see also Commonwealth v.
Wood, 208 A.3d 131, 138 (Pa. Super. 2019) (en banc) (“[A]pplication of
SORNA to sexual offenders for offenses committed before its effective date
violates the ex post facto clauses of the United States and Pennsylvania
Constitution.”).
Following Muniz, the General Assembly passed legislation that
attempted to cure the constitutional defects of SORNA. Regarding this
legislation, we have explained:
In response to our Supreme Court’s decision in Muniz . . . ,
the Pennsylvania General Assembly passed Acts 10 and 29 of
2018 [(SORNA II)]. The express purpose of these legislative
enactments was, inter alia, to “[p]rotect the safety and general
welfare of the people of this Commonwealth by providing for
registration, community notification and access to information
regarding sexually violent predators and offenders who are about
to be released from custody and will live in or near their
neighborhood[,]” and to cure SORNA’s constitutional defects by
“address[ing] [Muniz].” See 42 Pa.C.S.A. § 9799.51(b)(1),(4).
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Specifically, our General Assembly modified Subchapter H’s
registration requirements for those offenders convicted of
committing offenses that occurred on or after SORNA’s effective
date of December 20, 2012. The General Assembly also added
Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets
forth the registration requirements that apply to all offenders
convicted of committing offenses on or after Megan’s Law I’s
effective date (April 22, 1996), but prior to SORNA’s effective
date.
Commonwealth v. Bricker, 198 A.3d 371, 375-76 (Pa. Super. 2018).
In this case, the offense date for the actions underlying Appellant’s
indecent assault conviction was August 10, 2016. Thus, the trial court
appropriately ordered Appellant to register as a Tier III sex offender for life
under Subchapter H of SORNA II. See 42 Pa.C.S.A. §§ 9799.14(d)(8),
9799.15(a)(3).
Appellant’s indecent assault conviction was a first-degree misdemeanor
for which the maximum sentence is five years. See 18 Pa.C.S.A. § 1104(1).
As this Court has recently explained, “a sentencing requirement for a
defendant to register as a sexual offender for a period of time exceeding the
lawful statutory maximum for his offense is not illegal.” Commonwealth v.
Martin, 205 A.3d 1247, 1250 (Pa. Super. 2019); Bricker, 198 A.3d at 376-
77. The only difference between Martin and Bricker and the instant matter
is that the appellants in Martin and Bricker were convicted of felonies, as
opposed to a misdemeanor. As the analysis of those cases is dispositive here,
we quote it in detail:
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With regard to Appellant’s assertion that Muniz held SORNA’s
registration requirements constituted punishment, and, therefore,
Subsection H cannot be imposed upon him as [it] exceeds the
lawful statutory maximum for his offense which is seven (7) years,
we observe that this Court recently held that SORNA’s registration
requirements are not governed by the statutory maximum
sentences set forth in Chapter 11 of the Crimes Code. See
Commonwealth v. Strafford, 194 A.3d 168, 172-73 (Pa. Super.
2018). Observing this issue appeared to be one of first impression
post-Muniz, we reasoned as follows:
Appellant correctly observes that the Muniz Court found
that the registration requirement mandated by SORNA is
punitive. See Muniz, supra at 1218[.] We, thus, begin
our analysis of Appellant’s challenge with a review of various
statutes and legal principles relating to punishments.
Our Supreme Court has explained the well-settled
principle that the General Assembly “has the exclusive
power to pronounce which acts are crimes, to define crimes,
and to fix the punishment for all crimes. The legislature also
has the sole power to classify crimes[.]” Commonwealth
v. Eisenberg, 98 A.3d 1268, 1283 ([Pa.] 2014) (citation
and quotation omitted).
Our General Assembly has authorized courts to impose
specific punishments when fashioning a sentence, and
specified maximum terms and amounts of those
punishments. These categories of punishment include (1)
partial or total confinement, (2) probation, (3) state or
county intermediate punishment, (4) a determination of
guilt without further penalty, and (5) a fine. 42 Pa.C.S.A. §
9721.
With respect to the punishment of incarceration, 18
Pa.C.S.A. § 1103 governs the maximum authorized
sentence of imprisonment for felony convictions. By a
separate statute, these maximum allowable terms also
apply to probationary sentences, a different category of
punishment authorized by the General Assembly. In 42
Pa.C.S.A. § 9754(a), the legislature directed that “[i]n
imposing an order of probation the court shall specify at the
time of sentencing the length of any term during which the
defendant is to be supervised, which term may not exceed
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the maximum term for which the defendant could be
confined, and the authority that shall conduct the
supervision.” Id. (emphasis added). Thus, the legislature
explicitly connected the authorized punishments of
incarceration and probation by statute.
However, most sentencing alternatives are not tied to the
maximum authorized term of incarceration. For example,
the legislature has authorized courts to include in sentences
the requirement that a defendant pay a fine or restitution.
These categories of punishment are not limited by the
maximum period of incarceration; rather, the legislature set
different maximum authorized amounts of punishment a
court may impose as part of its sentence. See, e.g., 18
Pa.C.S.A. § 1101 (defining maximum fines); 18 Pa.C.S.A. §
1106 (providing statutory scheme for restitution for injuries
to person or property).
In SORNA the legislature authorized courts to include
periods of registration as part of a sentence. Similar to the
treatment of the payment of fines or restitution, the
legislature did not tie the period of registration to the length
of incarceration. See 42 Pa.C.S.A. § 9799.14 (“Sexual
offenses and tier system”); 42 Pa.C.S.A. § 9799.15 (“Period
of registration”). SORNA’s registration provisions are not
constrained by Section 1103. Rather, SORNA’s registration
requirements are an authorized punitive measure separate
and apart from Appellant’s term of incarceration. The
legislature did not limit the authority of a court to impose
registration requirements only within the maximum
allowable term of incarceration; in fact, the legislature
mandated the opposite and required courts to impose
registration requirements in excess of the maximum
allowable term of incarceration.
Martin, 205 A.3d at 1251-52 (Pa. Super. 2019) (quoting Bricker, 198 A.3d
at 376-77).
It is well-settled that “[t]his Court is bound by existing precedent under
the doctrine of stare decisis and continues to follow controlling precedent as
long as the decision has not been overturned by our Supreme Court.”
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Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super. 2014). Based on
our decisions in Martin and Bricker, we conclude that Appellant’s lifetime
registration requirement under SORNA II does not constitute an illegal
sentence. Accordingly, Appellant’s third claim fails.
For the forgoing reasons, Appellant’s appeal is without merit and we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2020
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