Com. v. Simpson, R. ( 2021 )

J-A03045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
RICHARD A. SIMPSON
Appellant : No. 506 MDA 2020
Appeal from the Judgment of Sentence Entered October 23, 2019
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000937-2018
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED: FEBRUARY 22, 2021
Richard A. Simpson appeals from the judgment of sentence, entered in
the Court of Common Pleas of Lebanon County, following his convictions of
two counts of unlawful contact with a minor! and one count each of criminal
use of a communication facility? and open lewdness.? After review, we affirm
based on the opinion authored by the Honorable Bradford H. Charles.
In late evening of January 20, 2018, and continuing into the early
morning hours of January 21, 2018, Simpson contacted the minor victim? via
Facebook Messenger, and sent her a picture of alcohol and cherries. He later
118 Pa.C.S.A. § 6318(a)(4).
218 Pa.C.S.A. § 7512(a).
3 18 Pa.C.S.A. § 5901.
4 The victim, who was sixteen years old at the time, knew Simpson because
she dated his son.
J-A03045-21
sent pictures of his genitals to her on Facebook Messenger, requesting she
send him inappropriate pictures of herself. At some point early in the
conversation, the victim disclosed the communication to Tim Discuillio, her
mother’s friend, and to her mother. At trial, the parties agreed Discuillio was
aware of the communication and pictures. Later, Simpson appeared at the
victim’s home, believing she would be alone. When Simpson arrived, Discuillio
and the victim’s mother confronted him and summoned the police.
A jury convicted Simpson on April 25, 2019. On October 23, 2019, the
court sentenced Simpson to 21-42 months’ incarceration. On November 1,
2019, Simpson filed post-sentence motions, which the court denied on
February 25, 2020. On March 17, 2020, Simpson filed this timely appeal.
Simpson raises two issues for our review:
1. Should [Simpson’s] motion for judgment of acquittal be
granted because the Commonwealth failed to present
sufficient evidence at trial to prove beyond a reasonable
doubt that [Simpson] was in communication with a minor
when sending and requesting inappropriate photographs?
2. Should [Simpson’s] motion for new trial be granted because
the jury placed too great a weight on the testimony of both
the victim [] and Tim Discuillo, and failed to properly
consider the contradictions between their testimonies at
trial and their original reports to police?
Appellant’s Brief, at 4.
When reviewing a sufficiency of the evidence claim, this Court
must review the evidence and all reasonable inferences in the light
most favorable to the Commonwealth as the verdict winner, and
we must determine if the evidence, thus viewed, is sufficient to
enable the fact-finder to find every element of the offense beyond
a reasonable doubt.
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Commonwealth v. Goins, 867 A.2d 526, 527 (Pa. Super. 2004).
When examining a challenge to the weight of the evidence, our standard
of review is as follows:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of the
finder of fact. Thus, we may only reverse the. . . verdict if
it is so contrary to the evidence as to shock one’s sense of
justice.
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 whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal
citations omitted). A “trial court’s denial of a motion for a new trial based on
a weight of the evidence claim is the least assailable of its rulings.”
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).
With respect to both challenges, after a thorough review of the record,
the briefs of the parties, the applicable law, and the well-reasoned opinion of
Judge Charles, we conclude Simpson’s claims merit no relief. The trial court’s
opinion properly addresses and disposes of those issues. (See Trial Court
Opinion, 2/25/20, at 3-8). We, therefore, rely on Judge Charles’ opinion to
affirm Simpson’s judgment of sentence. We direct the parties to attach a copy
of that opinion in the event of further proceedings.
Judgment of sentence affirmed.
J-A03045-21
Judgment Entered.
Joseph D. Seletyn, Es
Prothonotary
Date: 02/22/2021
Circulated 02/10/2021 04:04 PM
ENTERED & FILED "4
CLERK OF COURTS
IN THE COURT OF COMMON PLEAS LEBANGREGUUNAY
PENNSYLVANIA —= fqn FEB 25 PA 3 39
CRIMINAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA
NO. CP-38-CR-937-2018
Vv.
RICHARD SIMPSON
APPEARANCES
Megan E. Ryland-Tanner, Esquire For Commonwealth of Pennsylvania
DISTRICT ATTORNEY'S OFFICE
Vienna M. Vasquez, Esquire For Richard Simpson
PUBLIC DEFENDER’S OFFICE
OPINION BY CHARLES, J., February 25, 2020
Defendant Richard Simpson (hereafter DEFENDANT) has filed Post-
Sentence Motions challenging the sentence we imposed following an April
25, 2019 jury trial, at which he was found guilty of Unlawful Contact with a
Minor, Criminal! Use of Communication Facility and, Open Lewdness. The
DEFENDANT’s Post-Sentence Motions challenge the propriety of his
sentence as well as the weight and sufficiency of evidence. We author this
Opinion to address DEFENDANT’s arguments.
I. FACTS
The DEFENDANT was charged with Unlawful Contact with a
Minor, Criminal Use of a Communication Facility, Corruption of Minors
and, Open Lewdness. The charges stemmed from an incident, initiated
by DEFENDANT, which started late evening January 20, 2018 and
continued until the early morning hours of January 21, 2018. The
DEFENDANT sent nude images of himself to the minor victim
(hereinafter S.K.) and requested the same of her. At some point during
the conversation, S.K. disclosed the communication with DEFENDANT
to her father, Tim Discuillo. Following the conversation between
DEFENDANT and S.K., DEFENDANT appeared at S.K.'s home because
he believed that she would be home alone. He was confronted by the
victim’s father and police were eventually summoned. As a result of the
ensuing investigation, charges were filed.
A jury trial was held on April 25, 2019. The jury returned a
verdict of guilty on all counts except Corruption of Minors. Sentencing
was held on October 23, 2019 and the tria! judge imposed a sentence
of 21 to 42 months. The DEFENDANT filed timely Post-Sentence
motions in which he challenged weight and sufficiency of evidence as
well as the sentence he imposed.
II. DISCUSSION
A. Argument of Parties
The DEFENDANT avers that inconsistent statements proffered by
S.K. and Mr. Discuillo rendered the Commonwealth's evidence insufficient
to establish guilt. Additionally, Defendant argues that he should be
granted a new trial because the Jury placed too much weight on the
testimony of $.K and Mr. Discuitio. Furthermore, Defendant argues that
the Sentencing Court erred because it failed to give proper weight to the
mitigating factors provided in 42 Pa.C.S. § 9721(b).
The Commonwealth responds by relying on Commonwealth v.
Burns, 765 A.2d 1144 (Pa. Super. 2000) which provides that it is
ultimately up to the jury to determine the credibility of witnesses in
criminal matters. Next, the Commonwealth responds to DEFENDANT's
weight of evidence argument by proffering that the verdict is not shocking
to one's sense of justice. Lastly, the Commonwealth responds to
DEFENDANT's third averment by arguing that the Triai Court did not
abuse its discretion when it imposed its sentence and that DEFENDANT's
claim fails to establish a “substantia! question” that the sentence imposed
was Inappropriate under the Sentencing Code.
B. Legai Principles
Although closely related, there is a distinction between challenges to
sufficiency and lack of weight of evidence. That distinction was laid out in
Commonwealth v. Whiteman, 485 A.2d 459 (Pa.Super. 1984):
A motion for new trial on grounds that the verdict is
contrary to the weight of the evidence concedes that
there is sufficient evidence to sustain the verdict but
contends, nevertheless, that the verdict is against the
weight of the evidence. Whether a new triai should be
granted on the grounds that the verdict is against the
weight of the evidence is addressed to the sound
discretion of the trial judge... The test is not whether the
court would have decided the case in the same way but
whether the verdict is so contrary to the evidence as to
make the award of a new trial imperative so that right |
may be given another opportunity to prevail.
id. at 462, citing Commonwealth v. Taylor, 471 A.2d 1228, 1229-1230
(Pa.Super. 1984). If there is insufficient evidence to support a jury's
verdict, the double jeopardy clause of the Fifth Amendment to the United
States Constitution precludes retrial. See Commonwealth v. Whiteman,
supra, citing Hudson v. Louisiana, 450 U.S. 40, 67 L.Ed.2d 30 (S.Ct.
1981). On the other hand, “a new trial is a proper remedy when the verdict
is found to be against the weight of the evidence’. Commonwealth v.
Whiteman, supra at 461.
When reviewing a sufficiency of the evidence claim, we apply a two-step
inquiry. First, we consider all of the evidence in the light most favorable to
the Commonwealth, accepting as true all evidence upon which the fact-
finder couid have based the verdict. Commonwealth v. Walker, 874 A.2d
667, 677 (Pa.Super. 2005). Second, we must ask whether that evidence,
along with all reasonable inferences to be drawn therefrom, was sufficient
4
to prove guilt beyond a reasonable doubt. Commonwealth v. Azim, 459
A.2d 1244, 1246 (Pa.Super. 1983).
In passing upon the credibility of witnesses and the weight to be
afforded the evidence produced, the jury Is at liberty to believe all, part, or
none of the evidence. Commonwealth v. Price, 810 A.2d 488 (Pa.Super.
1992). We are not to engage in post-verdict credibility discussions, nor are
we permitted to substitute our opinion regarding the facts for that of the
jury. Commonwealth v. Brown, 486 A.2d 441 (Pa.Super. 1984). If the
fact-finder could have reasonably determined from the evidence that all of
the necessary elements of the crime were established, then that evidence
will be deemed sufficient te support the verdict. Commonwealth v.
Hopkins, 747 A.2d 910, 913-14 (Pa.Super, 2000).
The standard to be applied when assessing a challenge to the weight
of evidence imposes a ‘heavy burden” upon the defendant.
Commonwealth v. Staton, 1998 WL 1297080 (C.P. Philadelphia 1998). A
jury’s verdict will be overturned only when it is “so contrary to the evidence
as to shock one’s sense of justice.” Commonwealth v. Schwartz, 615
A.2d 350, 361 (Pa.Super. 1992). This standard has been described as
follows: “When the figure of Justice totters on her pedestal, or when the
jury’s verdict, at the time of its rendition, causes the trial judge to lose his
breath, temporarily, and causes him to almost fall from the bench then it is
truly shocking to the judicial conscience.” Commonwealth v. Davidson,
860 A.2d 575, 581 (Pa.Super. 2004) (citations omitted).
The weight of the evidence is exclusively for the finder of fact who is
free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses. Commonwealth v. Simmons, 662 A.2d 621,
630 (Pa. 1995). The function of the fact finder is to pass on the credibility
of witnesses and determine the weight to be accorded to a particular piece
of evidence. Hd.
The trial court is vested with sound discretion when sentencing a
criminal defendant. Absent an abuse of that discretion, [the] Court will not
vacate the sentence imposed. Commonwealth v. Janes, 433 Pa.Super.
266, 269-71, 640 A.2d 914 {1994}. An abuse of discretion will 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 iack of support so as to be
clearly erroneous. Commonwealth v. Travagiia, 28 A.3d 868, 873-74
(Pa.2071}. To prevail on a challenge to some discretionary aspect of
sentencing, a defendant must establish a “substantial question” that the
sentence imposed is not appropriate under the Sentencing Code. 42
Pa.C.S.A. § 9781(b); Commonwealth v. Marts, 889 A.2d 608 (Pa.Super.
2005). The determination of whether a particular issue raises a
substantial question is to be evaluated on a case-by-case basis; in order
to establish a “substantial question”, one must show. actions by tne
sentencing court inconsistent with the Sentencing Code or contrary to the
fundamental norms underlying the sentencing process. /d. at 612.
C. Analysis
The jury convicted the DEFENDANT of Unlawful Contact with a Minor,
Criminal Use of Communication Facility and Open Lewdness. The elements
of these offenses are:
1. Uniawful Contact with a Minor occurs when a person
is intentionally in contact with a minor for the purposes of
engaging in sexual offenses, or open lewdness, oF
prostitution, or sexual abuse of children, or sexual
exploitation of children.
2. Criminal Use of Communication Facility occurs when
a person uses a communication facility’ to commit, cause,
or facilitate the commission, or the attempt thereof, of any
crime which constitutes a felony.
3. Open Lewdness is any lewd act which he knows is
likely to be observed by others who would be alarmed.
Viewed in the tight most favorable to the Commonwealth, the evidence
presented in this case established the following:
* The victim was a minor at the time of the communication with
DEFENDANT.
e The DEFENDANT knew the victim was a minor.
1 “Communication Facility’ means a public or private instrumentality used or useful in the transmission of signs,
signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part, including, but not
limited to, telephone, wire, radio, electromagnetic, photo electronic, photo-optical systems or the mail.
7
* The DEFENDANT had a conversation with the minor victim in
which he sent her nude photographs of himself and requested
the same of her.
* At some point during the conversation, the victim alerted her
father, Tim Discuillio.
« The victim was the only individual actually communicating with
DEFENDANT via Facebook Messenger, although Mr. Discuillo
was coaching her on what to say.
Ultimately, it is within the Jury’s right to believe all, part, or none of
the evidence. In the instant case, the Jury obviously concluded that the
Commonweaith proffered credible testimony. in essence, the jury believed
that DEFENDANT was in fact conversing with the minor victim, and not
merely with her father. Clearly, S.K. and her father provided testimony that
established each element of the crimes for which the DEFENDANT was
convicted, The evidence of guilt was thus sufficient. to support a finding of
guilt. Moreover, the Jury’s determination of credibility did not shock our
conscious. The DEFENDANT knew S.K. was a minor: DEFENDANT knew
he should not communicate with a minor in a sexually explicit manner and;
DEFENDANT had every opportunity to cease the inappropriate
communication.
With respect to sentencing, the DEFENDANT's sentence of 21-42
months fell within his standard sentencing guideline range. The sentencing
court reviewed and considered a pre-sentence report, all relevant
information and, yes, mitigating factors as well. In fact, at the sentencing
hearing, the Court noted that the bottom of the sentencing range would be
imposed because there were some mitigating factors taken into
consideration. DEFENDANT's dissatisfaction with the imposed sentence
does not give rise to a “substantial question” because all relevant factors
were considered and the sentence fell within the proscribed sentencing
range. Thus, the sentence should not be disturbed on appeal.
None of the DEFENDANT’s arguments have any merit. Therefore, we
will deny all of them. An Order to accomplish this will be entered
simultaneous with this Opinion.