Com. v. Keefer (memorandum)

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J-S11015-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WOODROW WILSON KEEFER JR. Appellant No. 1492 MDA 2012 Appeal from the Judgment of Sentence March 20, 2012 In the Court of Common Pleas of Fulton County Criminal Division at No(s): CP-29-CR-0000191-2010 BEFORE: PANELLA, J., SHOGAN, J., and COLVILLE, J.* MEMORANDUM BY PANELLA, J. Filed: April 25, 2013 Appellant, Woodrow Wilson Keefer, Jr., appeals from the judgment of sentence entered March 20, 2012, by the Honorable Carol L. Van Horn, Court of Common Pleas of Fulton County.1 We affirm. This case arose out of Keefer s repeated sexual assault of his four young grandsons. At trial, the Commonwealth presented the testimony of JBH, age 17, and TJK, age 24. A third grandson, TAH, was precluded from testifying on motion by the defense, due to the hypnotic refreshing of his memory prior to trial. A fourth grandson, NRC, testified for the defense that he had no recollection of any assault perpetrated by Keefer. On December ____________________________________________ * Retired Senior Judge assigned to the Superior Court. Although Keefer purports to appeal from the order denying his post-trial motions, his appeal properly lies from the judgment of sentence. We have amended the caption accordingly. 1 J-S11015-13 16, 2011, a jury convicted Keefer of three counts each of rape of a person less than 13 years old,2 involuntary deviate sexual intercourse with a child,3 unlawful contact with a minor,4 and incest,5 seven counts of indecent assault of a person less than 13 years old,6 and two counts of indecent exposure.7 The trial court sentenced Keefer on March 20, 2012, and denied post-trial motions on July 19, 2012. This timely appeal followed. On appeal, Keefer raises the following issues for our review: 1. Whether the evidence presented by the Commonwealth at trial was sufficient to sustain the verdicts of the jury where the Commonwealth did not, among other things, establish the dates of the offenses with any reasonable certainty. 2. Whether the verdicts of the jury were against the weight of the evidence where only one of the alleged victims testified regarding the alleged incidents of sexual misconduct, and that witness gave prior inconsistent statements to law enforcement regarding the incidents and his testimony at trial was uncorroborated and contradicted by another of the grandchildren alleged to have been present during the incidents. 3. Whether the trial court abused its discretion in admitting evidence in the form of testimony regarding [Keefer s] alleged ordering of pornography that was not related to the charges at issue at trial, and which was highly prejudicial to [Keefer]? Appellant s Brief, at 4. ____________________________________________ 2 3 4 5 6 7 18 18 18 18 18 18 PA.CONS.STAT.ANN. PA.CONS.STAT.ANN. PA.CONS.STAT.ANN. PA.CONS.STAT.ANN. PA.CONS.STAT.ANN. PA.CONS.STAT.ANN. § § § § § § 3121(a)(6). 3123(a)(6). 6318(a)(1). 4302. 3126(a)(7). 3127. -2- J-S11015-13 Keefer first argues that the evidence is insufficient to support his convictions because the Commonwealth failed to establish with any certainty the dates on which the offenses occurred. Appellant s Brief, at 9. He cites the Pennsylvania Supreme Court s decision in Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975), for the proposition that due process requires that the Commonwealth prove the commission of the offenses charged upon a date fixed with reasonable certainty. It is well-established that the Commonwealth must be afforded broad latitude when attempting to fix the date of offenses which involve a continuous course of criminal conduct. Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa. Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008). It is true that the date of the commission of the offense must be fixed with reasonable certainty. Nevertheless, this rule has been somewhat relaxed when the victim is a child. In Commonwealth v. Groff, [548 A.2d 1247 (Pa. Super. 1988),] this Court stated that when a young child is a victim of crime, it is often impossible to ascertain the exact date when the crime occurred. He or she may only have a vague sense of the days of the week, the months of the year, and the year itself. If such children are to be protected by the criminal justice system, a certain degree of imprecision concerning times and dates must be tolerated. Commonwealth v. G.P., 765 A.2d 363, 369 (Pa. Super. 2000) (citation omitted). Keefer additionally challenges the weight of the evidence to support his convictions, alleging that the victim s testimony was inconsistent and -3- J-S11015-13 contradicted by the testimony of another victim. Appellant s Brief, at 10. Keefer preserved this issue by raising it in his post-sentence motion filed on March 30, 2012. Our standard of review is well-settled: The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses. As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury s verdict and grant a new trial only where the verdict is so contrary to the evidence as to shock one s sense of justice. A verdict is said to be contrary to the evidence such that it shocks one s sense of justice 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. Furthermore, 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. Cruz, 919 A.2d 279, 281-82 (Pa. Super. 2007) (citations omitted). Lastly, Keefer argues that the trial court abused its discretion when it admitted testimony from Keefer s daughters that pornography had been purchased at the Keefer home. Appellant s Brief, at 12. We note that -4- J-S11015-13 the admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact. Evidence, even if relevant, may be excluded if its probative value is outweighed by the potential prejudice. Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012) (internal citations omitted). Unfair prejudice supporting exclusion of relevant evidence means a tendency to suggest decision on an improper basis or divert the jury's attention away from its duty of weighing the evidence impartially. Commonwealth v. Wright, 599 Pa. 270, 325, 961 A.2d 119, 151 (2008). The function of the trial court is to balance the alleged prejudicial effect of the evidence against its probative value and it is not for an appellate court to usurp that function. Commonwealth v. Parker, 882 A.2d 488, 492 (Pa. Super. 2005), aff d on other grounds, 591 Pa. 526, 919 A.2d 943 (2007). The law does not require a court to sanitize a trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged. Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009), (citing Commonwealth v. Dillon, 592 Pa. 351, 366, 925 A.2d 131, 141 (2007)). -5- J-S11015-13 With our standards of review in mind, and after examining the briefs of the parties, the ruling of the trial court, as well as the applicable law, we find that Judge Van Horn s ruling is supported by the record and free of legal error. We further find that the trial court ably and methodically addressed Keefer s issues raised on appeal. Accordingly, we affirm on the basis of Judge Van Horn s thorough and well-written opinion. See Trial Court Opinion, filed 9/13/12. Judgment of sentence affirmed. Jurisdiction relinquished. -6-

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