J-S34006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARK KENNETH MORNINGSTAR,

Appellant No. 1087 MDA 2014

Appeal from the Judgment of Sentence March 3, 2014

In the Court of Common Pleas of Huntingdon County

Criminal Division at No(s): CP-31-CR-0000399-2012

BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J: FILED AUGUST 13, 2015

Mark Kenneth Morningstar appeals from the judgment of sentence of 

eight years and ten months to twenty-five years incarceration imposed after 

a jury found him guilty of involuntary deviate sexual intercourse (“IDSI”) 

with a person less than thirteen years of age, indecent assault with a person 

less than thirteen years of age, and corruption of a minor. We affirm.

The victim in this matter and his former stepmother first reported 

incidents of sexual abuse in 2004 to the Mount Union Borough Police. Police 

interviewed the victim with his stepmother and also questioned Appellant. 

The victim, who at that time was eight years old, alleged that Appellant had 

touched and licked the victim’s penis approximately five times. The police 

did not file charges. In May of 2012, the victim, now sixteen, and having 
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been adopted by a new family, appeared with his adoptive mother at the 

Pennsylvania State Police barracks and again reported the abuse. Trooper 

Andrew Corl of the Pennsylvania State Police contacted the Mount Union 

Borough Police. Corporal Robert Lippman of the Mount Union police force 

reopened the investigation. He interviewed Appellant, who adamantly 

denied the charges. The victim’s allegations in 2012 were substantially the 

same as in 2004. He maintained that Appellant had rubbed his penis on five 

or six occasions and performed oral sex on the victim two or three times. 

The Commonwealth charged Appellant with five counts each of IDSI 

with a person less than thirteen, unlawful contact with a minor, corruption of 

a minor, and indecent assault of a person less than thirteen.1 The 

information set forth the offense date for the crimes as February 20, 2004. 

Appellant proceeded to trial, and the Commonwealth elected only to pursue 

one count each of the aforementioned crimes. During closing arguments, 

Appellant highlighted that the Commonwealth had not presented evidence 

from the victim’s former stepmother or his biological father. The 

Commonwealth in its summation responded that Appellant had the ability to 

subpoena witnesses in his defense. Counsel immediately objected and 

argued that the Commonwealth was improperly shifting the burden to 

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1 The Commonwealth proceeded on all of the indecent assault charges, one 

count each of IDSI of a child less than thirteen and corruption of a minor, 

and dismissed the unlawful contact counts. 
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Appellant. The trial court overruled the objection, concluding that Appellant 

opened the door to such argument. 

Subsequently, the court instructed the jury that the Commonwealth 

was not required to establish a specific date of the offense. It informed the 

jury that all the Commonwealth needed to prove was that the crimes 

occurred during the statute of limitations for the offenses, which it stated did 

not begin to run until after the victim was eighteen. Appellant objected, 

pointing out that the Commonwealth had alleged in the criminal information 

that the crimes occurred on February 20, 2004. The court overruled the 

objection. The jury returned guilty verdicts. Thereafter, the court 

sentenced the defendant to consecutive sentences of seven and one-half to 

twenty years incarceration for the IDSI charge and one year and four 

months to five years imprisonment for corruption of a minor.2 Appellant 

filed timely post-sentence motions, which the court denied. This timely 

appeal ensued. Appellant raises four issues for our review. 

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2

 The Commonwealth sought to invoke the mandatory minimum sentence of 

ten years under 42 Pa.C.S. § 9718, which has since been deemed 

unconstitutional. Appellant astutely observed, however, that the mandatory 

minimum sentence at the time of the commission of the crimes was five 

years. He therefore argued for imposition of the five-year mandatory 

minimum sentence. The court declined to impose the mandatory and 

imposed a greater sentence; accordingly, we are not faced with a legal 

sentencing question.
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I. Whether the District Attorney committed prosecutorial 

misconduct by stating the Defendant could have 

subpoenaed certain witnesses in his defense.

II. Whether the Lower Court improperly instructed the jury 

that the Commonwealth did not have to prove the date of 

the offense when the Defense presented evidence that 

Defendant was not at the alleged victim’s home in the time 

period in question?

III. Whether there was insufficient evidence to support the 

jury’s guilty verdict on all of the charges?

IV. Whether the jury’s verdict was against the weight of the 

evidence?

Appellant’s brief at 12.

In Appellant’s third issue, he contests the sufficiency of the evidence. 

Since such a claim entitles a defendant to discharge rather than a re-trial, 

we address that issue at the outset. Commonwealth v. Stokes, 38 A.3d 

846 (Pa.Super. 2011). In performing a sufficiency review, we consider all of 

the evidence admitted, even improperly admitted evidence. 

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). 

We view the evidence in a light most favorable to the Commonwealth as the 

verdict winner, drawing all reasonable inferences from the evidence in favor 

of the Commonwealth. Id. 

The evidence “need not preclude every possibility of innocence and the 

fact-finder is free to believe all, part, or none of the evidence presented.” 

Id. When evidence exists to allow the fact-finder to determine beyond a 
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reasonable doubt each element of the crimes charged, the sufficiency claim 

will fail. Id. In addition, the Commonwealth can prove its case by 

circumstantial evidence. Where “the evidence is so weak and inconclusive 

that, as a matter of law, no probability of fact can be drawn from the 

combined circumstances[,]” a defendant is entitled to relief. Id. This Court

does not “re-weigh the evidence and substitute our judgment for that of the 

fact-finder.” Id. 

Although Appellant purports to raise a sufficiency position, his 

arguments actually sound in the nature of a challenge to the weight of the 

evidence. He sets forth that the evidence “was insufficient to establish the 

elements of the offenses due to the inconsistency in the alleged victim’s 

testimony, the lack of corroborating evidence and the extensive evidence 

[Appellant] presented that he had not stayed at the victim’s house during 

the time period in question.” Appellant’s brief at 23. Appellant has 

disregarded our standard of review. We view the evidence of the 

Commonwealth in a light most favorable to it without reweighing the 

evidence. The victim’s testimony alone establishes the elements of the 

offenses in question. Appellant’s sufficiency claim is devoid of merit. 

Having concluded that sufficient evidence exists to support the jury’s 

verdict, we address Appellant’s remaining positions. Appellant’s initial claim 

is that the prosecutor committed misconduct during his closing summation 

by setting forth that Appellant could have subpoenaed witnesses in his 
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defense. Specifically, the prosecutor stated, “[Appellant’s attorney] could 

subpoena people just like I can subpoena people. He has the same 

subpoena power that I do.” N.T., 3/18/13, at 131. 

Appellant submits that the prosecutor improperly asked the jury to 

believe that he had to produce evidence in his favor thereby shifting the 

burden of proof from the Commonwealth to him. He maintains that he was 

not required to call the victim’s biological father or former stepmother. The 

Commonwealth echoes the trial court’s rationale that the prosecutor’s 

statement was in fair response to Appellant’s argument that the 

Commonwealth did not corroborate the victim’s testimony by presenting his 

biological father or former stepmother. 

We consider whether a new trial is mandated due to prosecutorial 

misconduct based on an abuse of discretion standard. Commonwealth v. 

Culver, 51 A.3d 866, 871 (Pa.Super. 2012). A prosecutor’s comments will 

not be reversible error “unless the unavoidable effect of such comments 

would be to prejudice the jury, forming in their minds fixed bias and hostility 

toward the defendant so that they could not weigh the evidence objectively 

and render a true verdict.” Commonwealth v. Hawkins, 701 A.2d 492, 

503 (Pa. 1997). Further, “comments by a prosecutor must be examined 

within the context of defense counsel's conduct.” Id.

It is axiomatic that the Commonwealth bears the burden of proof in a 

criminal matter and that the defendant is not required to present any 
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evidence. Commonwealth v. Wiggins, 328 A.2d 520 (Pa.Super. 1974). 

While we disapprove of the prosecutor’s statement that Appellant could have 

subpoenaed witnesses and find that the trial court’s conclusion that 

Appellant opened the door to such an argument to be improper, we cannot 

agree that Appellant suffered any prejudice. Here, the trial court properly 

instructed the jury that, 

It is not the Defendant’s burden to prove that he is not 

guilty. Instead[,] it is the Commonwealth that always has the 

burden of proving each and every element of each crime charged 

and that the Defendant is guilty of that crime beyond a 

reasonable doubt.

Again[,] I repeat to you persons accused of a crime are not 

required to present evidence or to prove anything in their own 

defense.

N.T., 3/18/13, at 139-140. A jury is presumed to follow the court’s 

instructions. Commonwealth v. Mollett, 5 A.3d 291 (Pa.Super. 2010). 

Since the court comprehensively and appropriately instructed the jury 

regarding the Commonwealth’s burden of proof and that Appellant was not 

required to present any evidence, we find the prosecutor’s misstatement 

does not warrant a new trial. See Commonwealth v. Johnson, 838 A.2d 

663, 679 (Pa. 2003).

Appellant’s next claim is that the trial court erred in instructing the 

jury that the Commonwealth was not required to prove the date of the 

offense. The court instructed the jury as follows:
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There has been in this case talk about dates and I want to 

make something clear. Particularly with crimes committed 

against children, it is sometimes impossible, impossible to prove 

that an act or an event occurred on a specific date. I say to you 

that the Commonwealth has no burden of proof that a crime 

occurred on a specific date or a specific month or for that matter 

a specific year. The Commonwealth must prove that a crime 

occurred within the statute of limitations and in crimes 

committed against children; the statute of limitations does not 

even being to run until the child reaches the age of 18.

N.T., 3/18/13, at 142-143. Appellant immediately objected and, as 

mentioned previously, highlighted that the Commonwealth included a date of 

offense in the criminal information. According to Appellant, the above 

instruction was improper in this case because he presented evidence that he 

was not at the victim’s residence during the period in question. Appellant 

notes that the Commonwealth’s theory was that the crimes occurred 

between February 20, 2004 and March 15, 2004. He adds that he presented 

testimony from his then girlfriend that he stayed with her every weekend 

during that period. In addition, Appellant worked a night shift from 3:00 

p.m. to 1:00 a.m. Monday through Friday in that time span. In light of this 

evidence, Appellant contends that the instruction was erroneous despite his 

failure to provide a notice of alibi or seek an alibi instruction. 

In further support, Appellant relies on Commonwealth v. Devlin, 

333 A.2d 888 (Pa. 1975). In Devlin, the defendant allegedly sodomized a 

mentally retarded twenty-two-year-old man. The victim reported the 

incident to police on April 14, 1972. The indictment returned by the grand 
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jury indicated that the crime occurred on or about April 16, 1972. The 

Commonwealth presented evidence that the defendant had known the victim 

since February 1971 and that the crime occurred sometime between 1971 

and April 14, 1972. The Supreme Court reversed Devlin’s conviction on the 

basis that the Commonwealth failed to fix the date of the commission of the 

offense with reasonable certainty. Although rejecting the position that the 

Commonwealth is bound by a date included in an indictment, it further 

declined to find that the rule only applied in cases where a defendant 

proffered an alibi defense. 

We agree with Appellant to the limited extent that his failure to ask for 

an alibi instruction or present a notice of alibi does not justify the court’s 

instruction. See Devlin, supra. Moreover, in those instances where the 

Commonwealth includes a date of offense in its information, though not 

bound by that date in a sex offense case such as this,3it is imprudent to 

inform the jury that the Commonwealth is not required to establish the date 

of the commission of the offense with a reasonable degree of certainty. See 

id. Nonetheless, we find that Appellant is not entitled to relief. 

In this case, unlike Devlin, the Commonwealth’s evidence narrowed 

the date of the commission of the offenses to a time period between 

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3

Proof of an exact date is, of course, not necessary. See Commonwealth 

v. Devlin, 333 A.2d 888, 892 (Pa. 1975); Commonwealth v. Niemetz, 

422 A.2d 1369 (Pa.Super. 1980). 
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February and March of 2004. This is a far less expansive period than that at 

issue in Devlin. Appellant’s defense was in no manner inhibited, as he knew 

of the Commonwealth’s theory and presented his former girlfriend as an alibi 

witness and provided evidence of his work schedule. The court’s instruction 

also could not have wiped out Appellant’s defense since the Commonwealth’s 

evidence was that the crime occurred within an approximate one-month 

window. Necessarily, the jury had to decide whether the crimes occurred 

during the period alleged by the victim. 

Appellant’s final issue is a challenge to the weight of the evidence. A 

weight claim must be preserved in a timely post-sentence motion.

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012). 

“Appellate review of a weight claim is a review of the exercise of discretion, 

not of the underlying question of whether the verdict is against the weight of 

the evidence.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) 

(emphases removed). Accordingly, “[o]ne of the least assailable reasons for 

granting or denying a new trial is the lower court's conviction that the 

verdict was or was not against the weight of the evidence and that a new 

trial should be granted in the interest of justice.” Id.

A trial judge should not grant a new trial due to “a mere conflict in the 

testimony or because the judge on the same facts would have arrived at a 

different conclusion.” Id. Instead, the trial court must examine whether 

“‘notwithstanding all the facts, certain facts are so clearly of greater weight 
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that to ignore them or to give them equal weight with all the facts is to deny 

justice.’” Id. (citation omitted). Only where the jury verdict “is so contrary 

to the evidence as to shock one's sense of justice” should a trial court afford 

a defendant a new trial. Id. A weight of the evidence issue concedes that 

sufficient evidence was introduced. Commonwealth v. Charlton, 902 A.2d 

554, 561 (Pa.Super. 2006).

Appellant properly preserved his issue. He argues that for the reasons 

articulated in his sufficiency claim that the jury’s verdict was so contrary to 

the evidence that it shocks one’s sense of justice. We disagree. The mere 

fact that the victim’s testimony and Appellant’s evidence were contradictory 

does not warrant relief. Appellant’s evidence was not the type of evidence 

that is so clearly of greater weight than the testimony of the victim that 

crediting the victim would deny justice. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/13/2015