Com. v. Gleason, J. ( 2022 )

J-S30042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMIAH LEE GLEASON :
:
Appellant : No. 102 MDA 2021
Appeal from the Judgment of Sentence Entered December 15, 2020
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006226-2019
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: MARCH 18, 2022
Jeremiah Lee Gleason appeals from the judgment of sentence imposed
following a jury trial in which Gleason was convicted of rape of a child,
attempted rape of a child, attempted involuntary deviate sexual intercourse,
aggravated indecent assault of a child, indecent assault, and corruption of
minors.1 For these offenses, Gleason received twenty-seven to fifty-four years
of incarceration, to be followed by three years of probation. On appeal,
Gleason singularly contends that the court abused its discretion when it denied
his challenge to the weight of the evidence as to four of his convictions.
Recognizing the great latitude afforded to trial courts in making weight of the
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 Retired Senior Judge assigned to the Superior Court.
1See 18 Pa.C.S.A. § 3121(c); 18 Pa.C.S.A. § 901(a) (section defining criminal
attempt)/18 Pa.C.S.A. § 3121(c); 18 Pa.C.S.A. § 901(a)/18 Pa.C.S.A. §
3123(b); 18 Pa.C.S.A. § 3125(a)(7); 18 Pa.C.S.A. § 3126(a)(7); and 18
Pa.C.S.A. § 6301(a)(1)(ii), respectively.
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evidence determinations, we disagree that the court abused its discretion and
affirm.
By way of background, the victim, who was nine at the time of trial, and
Gleason are second cousins. Gleason lived with the victim and her family for
at least two lengthy periods of time. The victim indicated that Gleason had
abused her for several years. Throughout his presence at the victim’s house,
Gleason would be tasked with babysitting the victim by himself, inherently
giving him access to the victim on many occasions.
In 2019, the victim confided in her mother that Gleason had sexually
abused her the previous night while the mother was out of the house.
Thereafter, the victim conveyed to the victim’s father that Gleason had, inter
alia, touched her genital area. Based on this information, the mother and
father decided to immediately call the police and file a report.
Predicated on the advice of a police officer, the mother took the victim
to the hospital for a sexual assault forensic exam. Other than finding some
redness of her labia majora, no other injuries were documented from this
exam. However, later at trial, experts on both sides would opine about it being
normal for a child not to exhibit signs of injuries after a sexual assault. The
exam revealed no seminal fluid, and no DNA was found matching Gleason’s.
York County’s Child Advocacy Center (CAC) conducted an interview with
the victim, who was seven at the time, wherein mother and father were not
allowed to attend. It was at this point that the victim disclosed she had been
penetrated by Gleason. The contents of this interview were made part of the
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record via a motion filed by the Commonwealth prior to trial, which was
submitted to the court pursuant to 42 Pa.C.S.A. § 5985.1.
At this interview, as summarized by the trial court:
The CAC interview was conducted by Ms. Roberti on April
16, 2019, of [the victim]. [The victim] told Ms. Roberti she was at
the CAC because [Gleason] “basically touched my private parts.”
[The victim] stated after identifying the “front part” as her vagina
that [Gleason] touched the “inner and the outside.” [The victim]
went on to state that it hurt a little when [Gleason] touched the
“inner” and that [Gleason’s] fingers touched her “inner.” [The
victim] identified [Gleason’s] “front” as his “wiener.” [The victim]
also said [Gleason] took her “panties [and] pants off” when she
was alone in the basement with him. [The victim] went on to say
that her “front” touched [Gleason’s] “front” and that it “hurt in the
inside.” [The victim] continued that [Gleason] would kiss her on
the neck.
[The victim] stated that [Gleason’s] body would be very
close to her body. [The victim’s] clothes would “basically be on”
while [Gleason] would keep on his clothes so he would not get in
trouble. [Gleason’s] “front” was out when he would unbutton his
pants and it would “pop out” and then “try to make [the victim]
get on it. Sometimes [Gleason] would make [the victim] go on it
when [Gleason] would “lay down” and [the victim’s] stomach
would be facing down on top of [Gleason] as well as making [the
victim] wrap her legs around [Gleason].
[Gleason’s] “front” also touched [the victim’s] anus.
[Gleason] tried to make his “front” go into her anus, in which [the
victim] told [Gleason] “no way José” and that [Gleason] tried “the
humping.” [The victim] tried to push away [Gleason] when
attempting to put his “front” in her anus but it “didn’t work
because [Gleason] was stronger than [the victim.]” [The victim]
described when [Gleason] would put his “front” on her anus “it felt
like I was going to have a child” and “something is poking it” and
“feels disgusting.” [The victim] stated multiple times that
[Gleason’s] “front” and “his fingers,” specifically his pointer finger
touched her anus. [The victim] spoke to [Gleason’s] “front”
touching her vagina, [Gleason’s] front touching her buttocks,
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[Gleason’s] hands touching her “boobies” and squeezing her chest
under her clothes and would “wiggle it in there.”
Trial Court Opinion, 3/3/21, at 23-25 (citations to the record omitted).
Conversely, at trial, the victim specified that she had not been
penetrated, only touched in her vaginal area by Gleason’s hands. The victim
said that Gleason’s hands remained on the outside of that body part, but that
it had happened multiple times. The victim testified that no other part of
Gleason touched her body and that both her and Gleason’s clothing remained
on when the touching occurred. Gleason also told the victim not to tell her
mother or father what had happened. Despite her testimony, the victim also
stated that she could remember what had happened better when she first
disclosed that she had been assaulted.
As a result of the penetrative discrepancy, the court issued the following
jury instruction:
You have heard the evidence that [the victim] made a statement
on an earlier occasion that was inconsistent with her testimony in
the courtroom, and that of course would be the CAC interview
versus her statement from the witness stand. You may, if you
choose, regard this evidence as proof of the truth of anything that
the witness said in the earlier statement. You may also consider
this evidence to help you judge the credibility and weight of the
testimony given by the witness during the trial.
The testimony of [the victim] standing alone, if believed by you,
is sufficient proof upon which to find [Gleason] guilty in this case.
The testimony of the victim in a case such as this need not be
supported by other evidence in order to sustain a conviction. Thus,
you may find [Gleason] guilty, if the testimony of [the victim]
convinces you beyond a reasonable doubt that the [Gleason] is
guilty.
N.T., 7/15/20, at 501.
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Ultimately, a jury found Gleason guilty of the aforementioned offenses,
and at sentencing, Gleason received, inter alia, an aggregate twenty-seven to
fifty-four years of incarceration. Additionally, he was designated a sexually
violent predator.
Following sentencing, Gleason filed a post-sentence motion, which was
denied. Gleason then filed a timely notice of appeal. The relevant parties have
complied with their respective obligations under Pennsylvania Rule of
Appellate Procedure 1925, and accordingly, the matter is ripe for review.
On appeal, Gleason’s sole issue asks:
1. Did the court abuse its discretion in denying his challenge to
the weight of the evidence regarding his rape of a child,
attempted rape of a child, attempted involuntary deviate
sexual intercourse, and aggravated assault of a child given that
the victim affirmatively testified that there was no penetration
at trial, and the victim’s prior inconsistent statement was
wholly uncorroborated and contradicted by other trial
evidence?
Our well-settled standard of review for claims challenging that the
verdict was against the weight of the evidence 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 witness. An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, we may
only reverse the lower court's 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.
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Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa. Super. 2013) (citation
omitted). Moreover, we note that a challenge to the weight of the evidence is
“[o]ne of the least assailable reasons for granting or denying a new trial.”
Thompson v. City of Philadelphia, 493 A.2d 669, 671 (Pa. 1985).
The gravamen of Gleason’s argument is that, because the
Commonwealth impeached the victim’s testimony at trial, wherein she stated
there had been no penetration, with her statements made during the CAC
interview, which indicated that there had been penetration, “the weight of the
evidence was against these convictions [that statutorily required
penetration].” Appellant’s Brief, at 25. Gleason continues in support of his
claim by stating that his convictions “hinged on [the victim’s] credibility, as
there was no physical evidence[,] and Gleason did not admit to any
wrongdoing.” Id. Gleason frames the victim’s trial testimony as “an outright
disavowal of a critical component of her prior allegations.” Id., at 28.
Moreover, Gleason asserts that no “other evidence corroborated the notion
that penetration took place.” Id., at 29-30 (supporting this statement with
the fact that the sexual assault forensic examination yielded no physical
evidence).
We agree with Gleason that his challenged offenses required
penetration. See, e.g., Commonwealth v. Hawk, 709 A.2d 373, 377 (Pa.
1998) (“Penetration, however slight, is therefore an essential element of
rape.”). We also agree that, at trial, the victim did not indicate that Gleason
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had penetrated her. However, we do not conclude that the evidence was “so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court[.]” Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).
The lower court found that the victim’s CAC interview constituted a
“contemporaneous, verbatim recording of [the victim’s] statements.”2 Trial
Court Opinion, 3/3/21, at 27; see also Commonwealth v. Lively, 610 A.2d
7, 10 (Pa. 1992) (“[A] prior inconsistent statement may be used as
substantive evidence … [if it is] a statement that is a contemporaneous
verbatim recording of the witness’s statements.”). The court then went on to
conclude:
The jury was free to believe all, part, or none of the evidence and
to determine the credibility of [the victim,] both at trial and during
the CAC interview. . . . [The victim] stated multiple times during
her CAC interview that both penile and digital penetration
occurred. The incident was reported to police on March 15, 2019,
the CAC interview occurred on April 16, 2019, and [the victim]
testified on July 13, 2020. [The victim] testified that it was easier
for her to remember the details that occurred back when she first
told others then when she was testifying that day in trial.
Trial Court Opinion, 3/3/21, at 28 (citation to the record omitted).
Although there are obvious discrepancies between the victim’s CAC
interview and the testimony she adduced at trial, Gleason has not
demonstrated that the verdict rendered in this case shocks the conscience.
To start, Gleason has not presented any analogous authority
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2 While Gleason casts doubt on the veracity of the victim’s statements during
this interview, he does not contest whether they could have been admitted.
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demonstrating the necessity for reversal in a situation such as this, i.e., one
involving disparate victim statements between pre-trial and at trial, with the
further caveat that the victim was under the age of ten. In addition, we
emphasize that the jury was freely able to resolve issues of the victim’s
credibility in a way that it deemed appropriate. We also recognize the trial
court’s on-point jury instruction that sought to rectify, for jury determination,
any ambiguity or contradictions in the victim’s statements.
“In assessing the weight to be afforded a witness’ testimony, it is
important to consider the context within which the testimony relates.”
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). The victim
stated at trial that she could more readily remember the details of the sexual
assaults when she originally disclosed that they had happened, rather than
over a year later at trial. Stated another way, the statement the victim made
at the CAC interview was much closer in temporal proximity to the sexual
assaults she experienced.
Expert testimony established that, following a sexual assault, many
victims, especially those being children, do not experience any physical
manifestation of trauma or injury. Further expert testimony provided a basis
as to why a child might recant earlier statements. See N.T., 7/15/20, at 432
(indicating that, if a child feels any pressure associated with what might
happen to the accused, he or she might repudiate something admitted to
prior).
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While Gleason suggests that: (1) CAC should have conducted a follow
up interview with the victim; (2) Gleason was out of state for “large periods”
of time during the timeframe the victim specified he had been abusing her;
and (3) the father’s testimony established that Gleason was never alone with
the victim for extended periods of time, Appellant’s Reply Brief, at 4-5, even
accepting these facts as true and within the context of the victim’s “conflict …
as to whether penetration occurred,” id., at 4, we cannot conclude that the
verdict “causes Lady Justice to totter on her pedestal, or temporarily takes
away the trial judge’s breath or makes him almost fall from the bench.”
Commonwealth v. Cruz, 919 A.2d 279, 282 (Pa. Super. 1997).
We acknowledge the core element of Gleason’s position, that the
discrepancies between the victim’s testimony at trial and her CAC interview
are obvious. However, and more importantly, Gleason has not demonstrated
that this conflict extends beyond a credibility determination, exclusively within
the province of the jury, to the point of warranting a reversal of the trial court’s
weight of the evidence determination.3 As such, we are constrained to find no
abuse of discretion in the trial court’s disposition and affirm Gleason’s
judgment of sentence.
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3 Gleason does not contest whether the victim’s statements made throughout
the CAC interview establish the necessary element of penetration.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2022
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