Com. v. Gagot, M. (memorandum)

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J-S03044-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. MARCUS ANTHONY GAGOT, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA Nos. 943, 959 WDA 2013 Appeal from the Judgment of Sentence entered on February 14, 2013 in the Court of Common Pleas of Beaver County, Criminal Division, No. CP-04-CR-0001892-2011 BEFORE: BOWES, ALLEN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED: April 25, 2014 Marcus Anthony Gagot ( Gagot ) appeals from the judgment of sentence imposed following his convictions of four counts each of aggravated indecent assault and indecent assault, two counts of rape, and one count each of statutory sexual assault, sexual assault, and corruption of minors. See 18 Pa.C.S.A. ยงยง 3125(a)(1), (2), (4), (8); 3126(a)(1), (2), (4), (8); 3121(a)(1), (3); 3122.1; 3124.1; 6301(a)(1). We affirm. The trial court set forth the relevant underlying facts as follows: [O]n April 7, 2010, Detective Jeff Lansberry of the Beaver Falls Police Department received a call from the Heritage Valley Hospital in Beaver regarding a young female that was the victim of a sexual assault. Detective Lansberry reported to the hospital and spoke with the 13-year-old victim and her mother. The victim told Detective Lansberry that, on the night of April 5, 2010, she was sexually assaulted by her mother s boyfriend, who she identified as [Gagot (d/o/b 7/8/73)]. She stated that, at approximately 11:30 p.m., while her mother was working a night shift, [Gagot] entered her bedroom and asked if she J-S03044-14 wanted a back massage. [Gagot] then put his hands under her shirt and proceed to give the victim a back massage. According to the victim, she eventually fell asleep and awoke some time later in her mother s bedroom. Upon waking, she realized that [Gagot] was on top of her with his pants off and that her shorts and underwear had been removed. She told Detective Lansberry that [Gagot] was moving back and forth on top of her and that she could feel [Gagot s] penis inside of her. The victim indicated that she asked [Gagot] to stop but he did not respond. She further stated that, following the assault, [Gagot] told her not to tell anyone about the incident. On February 3, 2011, Detective Lansberry filed a Criminal Complaint in connection with the incident. [Gagot] was charged with [the above-mentioned crimes.] A preliminary hearing was conducted on October 4, 2011, and, following the preliminary hearing, all of the charges against [Gagot] were held for court. Trial in this matter commenced on November 1, 2012, and on November 5, 2012, the jury returned a verdict of guilty on all of the charges against [Gagot]. On February 14, 2013, [Gagot] was sentenced to undergo imprisonment in a state correctional facility for not less than 15 years nor more than 30 years. On February 25, 2013,[1] [Gagot] filed a Post Sentence Motion in which he questioned the sufficiency and the weight of the evidence presented against him at trial. [Gagot] also requested and was granted a 30-day extension to file a supplemental motion, but [Gagot] failed to file a supplemental motion. After reviewing the record and considering [Gagot s] arguments, the [trial c]ourt denied [Gagot s] Post Sentence Motion on May 6, 2013. [Gagot] filed a timely Notice of Appeal on May 28, 2013. [The trial court ordered Gagot to file a Pa.R.A.P. 1925(b) concise statement. Gagot filed a timely Concise Statement.] Trial Court Opinion, 7/5/13, at 1-2 (footnote added). On appeal, Gagot raises the following question for our review: Whether the guilty verdict as to all counts, rendered by the jury[,] would 1 February 24, 2013, was a Sunday. Thus, Gagot s Post Sentence Motion was timely filed. See Pa.R.Crim.P. 720(A). -2- J-S03044-14 shock the conscience as being against the weight of the evidence[?] Brief for Appellant at 4. Our standard of review for weight of the evidence claims 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. Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa. Super. 2013) (citation omitted). Gagot contends that the verdict was against the weight of the evidence because the Commonwealth s evidence was not believable and therefore shocks the conscience. Brief for Appellant at 8. Gagot argues that while the victim testified that she was raped while she was asleep/unconscious, the testimony only demonstrates that the victim took melatonin, a sleeping aid. Id. Gagot asserts that the Commonwealth did not present any documentation to establish that the victim actually had melatonin in her system or any evidence demonstrating the effects of melatonin. Id. at 8-9. Gagot also argues that the emergency room doctor who performed the physical examination on the victim testified that there was no physical trauma to the victim s vaginal area. Id. at 9. Gagot further -3- J-S03044-14 argues that the State Police Laboratory only recovered a single, solitary sperm, even though normal ejaculation would produce 100-600 million sperm. Id. at 10; see also id. at 11 (wherein Gagot contends that crosscontamination may have resulted in the placement of sperm in the underwear). Gagot additionally claims that while the victim states that she was physically restrained, there was no testimony regarding emotional or psychological pressures. Id. at 10. Gagot thus asserts that the medical and scientific testimony and evidence was contradictory to the victim s testimony and that the verdicts cannot stand. Id. at 10-11. Here, the trial court addressed Gagot s weight of the evidence claim and determined that it is without merit. See Trial Court Opinion, 7/5/13, at 12-15; see also id. at 5-6, 6-7 (wherein the trial court detailed the victim s testimony regarding the assault). Contrary to Gagot s arguments, the jury was free to believe the victim s testimony, including her version of the assault and whether she was sleeping at the time of the assault. See Collins, 70 A.3d at 1251 (stating that the fact-finder is free to believe all, part, or none of the evidence presented). Thus, we agree with the sound reasoning of the trial court and conclude that it did not abuse its discretion in denying Gagot s weight of the evidence claim. See Trial Court Opinion, 7/5/13, at 12-15. Judgment of sentence affirmed. -4- J-S03044-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/25/2014 -5-

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