J-A14013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRUCE R. SCHMIDT,

Appellant No. 1271 MDA 2014

Appeal from the Judgment of Sentence entered June 17, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0003819-2013

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 23, 2015

Bruce Schmidt (Appellant) appeals from the June 17, 2014 judgement 

of sentence of an aggregate term of 6 to 23 months’ imprisonment following 

a jury trial at which Appellant was found guilty of indecent assault of a 

complainant less than 13 years of age1and corruption of minors.2 Appellant 

now challenges the lower court’s failure to grant a motion challenging the 

weight of the evidence. After careful review, we affirm.

We set forth a factual summary of this matter as follows:

Mother and Father were the biological parents of the victim, A.C. and 

her two siblings, B.C. and R.C. Notes of Testimony, Trial (N.T.T.), 3/11/14, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3126(a)(7).

2 18 Pa.C.S. § 6301(a)(1)(ii).
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at 129-130. A.C.’s parents were divorced and living separately during the 

events at issue. N.T.T., at 130. Father would not permit Mother to have 

unsupervised visitations with the children. N.T.T., at 135-36. Father and 

Mother prepared a visitation agreement that included Appellant as the 

primary supervisor of Mother’s visitations. N.T.T., at 135-36.

The visitations would take place in Appellant’s trailer. N.T.T., at 131. 

The trailer included a bedroom in which Appellant slept, another bedroom at 

the opposite end of the trailer in which Mother slept, and a pull-out couch on 

which the three children would sleep. N.T.T., at 231.

Appellant was charged with touching the vaginal area of A.C. during 

visitations in 2012. A.C. testified that while sleeping Appellant would pick 

her up and take her into the bedroom. N.T.T., at 102. Her siblings, B.C. 

and R.C. corroborated her testimony when they testified that Appellant 

would take A.C. to his bedroom while they were sleeping. N.T.T., at 115, 

123. Father, Father’s girlfriend, and Kari Stanley (the forensic interviewer at 

the Lancaster County Children’s Alliance) produced A.C.’s out of court 

statements at trial that further supported her testimony. N.T.T., at 132, 

146-47, 179. A.C. testified that while in Appellant’s bedroom he would 

touch her. N.T.T., at 103. She said that the touching happened “[i]n my 

private.” N.T.T., at 104. And, that her “private” referenced that part of her 

body that she uses to pee. N.T.T., at 104.

After a trial by jury, Appellant was found guilty and sentenced as 

stated above. He filed a post-sentence motion including, inter alia, a motion 
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challenging the weight of the evidence. The trial court denied the postsentence motion in its entirety. Appellant filed a timely notice of appeal and 

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement.

Appellant now presents the following issue for our review:

Did the lower court abuse its discretion by failing to grant a new 

trial on the basis that the guilty verdict was against the weight of 

the evidence when the totality of the evidence on the basic 

issues of the case was so inconsistent as to be irreconcilable?

Appellant’s Brief, at 4.

We review Appellant’s challenge to the weight of the evidence 

according to the following standards:

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 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. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations 

omitted).

“An abuse of discretion is not merely an error of judgment, 

but if in reaching a conclusion the law is overridden or 

misapplied, or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or illwill, as shown by the evidence or the record, discretion is 

abused.”
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Commonwealth v. Stollar, 84 A.3d 635, 650 (Pa. 2014) (citations 

omitted).

The trial court found the evidence reliable and further corroborated by 

supporting testimony. Accordingly, the trial court held that Appellant’s claim 

is meritless. Trial Court Opinion (T.C.O.), 10/8/2013, at 2-3. We agree. 

“[A] case should not go to the jury where the party having the burden offers 

testimony of a witness, or of various witnesses, which is so contradictory on 

the essential issues that any finding by the jury would be a mere guess.” 

Commonwealth v. Bennett, 303 A.2d 220, 221 (Pa. Super. 1973). 

Appellant argues that the trial court did not apply this rule correctly and in 

so doing committed reversible error. 

Appellant’s argument is premised on the assertion that the testimony 

of Commonwealth’s witnesses was so contradictory on the essential issue, 

common to both offenses, as to amount to an abuse of discretion. See

Appellant’s Brief, at 13-18. To establish this claim, Appellant provides the 

four following series of testimony which are contradictory in location, 

manner, and frequency as to the illegal acts:

She gave multiple accounts regarding the location of “tickle 

fights” and whether “tickle fights” were the means by which 

[Appellant] touched her vaginal area:

 The tickle fights occurred only in [Appellant]’s 

bedroom.

 The tickle fights occurred only in the living room.

 When [Appellant] engaged in tickle fights with her, 

he would touch her vaginal area.
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 When [Appellant] touched her vaginal area, it was 

not in connection with a tickle fight, but was mere 

“touching.”

She gave multiple accounts of the location of the vaginal 

touching:

 The vaginal touching occurred in only one location, 

[Appellant]’s bedroom.

 The vaginal touching occurred in two locations, 

[Appellant]’s bedroom and the back room where 

[Mother] slept.

She gave multiple accounts of the manner in which [Appellant] 

touched her vaginal area:

 [Appellant] touched her over her clothing.

 [Appellant]’s fingers came into contact with the bare 

skin of her “private.”

She gave multiple accounts of the frequency of the incidents of 

vaginal touching:

 The vaginal touching occurred over an extended time 

period, i.e., “for a while” or “on multiple occasions.”

 The vaginal touching occurred on only one occasion.

 The vaginal touching occurred on only two occasions.

Id. at 17-18.

Appellant summarizes by stating: “In view of all the foregoing, the 

contradictions were so great that they were not subject to reconciliation by 

the jury. The totality of the evidence was so contradictory on the essential 

issues that the jury’s verdict was against the weight of the evidence.” 

Appellant’s Brief, at 18.

In ruling on Appellant’s motion, the trial court applied the following 

reasoning:
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Here, the [c]ourt did not abuse its discretion by allowing 

the jury verdict to stand since the verdict was not against the 

weight of evidence. The [c]ourt viewed the evidence and 

testimony in the light most reasonable and held a tender years 

hearing held on March 10, 2014. The [c]ourt held that “With 

regard to the Commonwealth’s Tender Years motion, I do find 

that the evidence is relevant in terms of this proceeding and that 

the time, content and circumstances of these statements provide 

sufficient indicia of their reliability.

Further, the Commonwealth corroborated the victim’s 

testimony with testimony from other witnesses. At trial, the 

Commonwealth presented evidence that [Appellant] was friends 

with the victim’s mother and had a formal agreement with the 

victim’s father that gave [Appellant] the right of guardianship 

with the mother when the children would visit at his home. In 

addition, the victim’s siblings [] also testified to visiting and 

staying at [Appellant]’s home with the victim. Both siblings also 

testified that the victim slept in [Appellant]’s room.

T.C.O., at 2-3 (citations to the record omitted).

In weighing Appellant’s claim, we apply the aforementioned rules. To 

summarize, the rules state that our review is limited to whether the trial 

court exercised its judgment in a manifestly unreasonable manner when it 

concluded that the testimony of Commonwealth’s witnesses was not so 

contradictory on the essential issues as to render the jury’s finding a mere 

guess.3

____________________________________________

3 See generally Champney, 832 A.2d at 408 (holding that appellate review 

is limited to whether the trial court abused its discretion). See also Stollar, 

84 A.3d at 650 (defining an abuse of discretion). Cf. Bennett, 303 A.2d at 

221 (providing the rule which Appellant argues that the trial court applied 

incorrectly).
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The essential issue under scrutiny is the touching of A.C.’s sexual or 

intimate parts.4 This evidence was testified to at trial by the victim and 

corroborated by other witnesses for the Commonwealth. The jury was free 

to believe all, part, or none of the testimony, and as evidenced by the guilty 

verdict, did believe that Appellant had touched A.C.’s sexual or intimate 

parts regardless of inconsistencies in location and frequency. Further, there 

were no facts in this case which so contradicted the essential issue as to 

render the jury’s finding a mere guess. Accordingly, we conclude the trial 

court did not exercise its judgment in a manifestly unreasonable manner 

when it found that the verdict was not contrary to the weight of the 

evidence.

Judgment of sentence AFFIRMED.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/23/2015

____________________________________________

4 See 18 Pa.C.S. § 3126(a)(7). See also 18 Pa.C.S. § 6301(a)(1)(ii). 

Indecent contact is defined as, “[a]ny touching of the sexual or other 

intimate parts of the person for the purpose of arousing or gratifying sexual 

desire, in any person.” 18 Pa.C.S. § 3101.