Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

BRIAN KEITH LEFEVER,

Appellant No. 781 MDA 2016 Appeal from the Judgment of Sentence March 18, 2016 the Court of Common Pleas of Lancaster County Criminal Division at No.: CP-36-CR-0005604-2014 BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.* FILED MARCH 2017

MEMORANDUM BY PLATT, J.: Appellant, Brian Keith Lefever, appeals judgment of sentence imposed March 18, 2016, following his jury conviction of one count of unlawful contact with minor,' one count criminal attempt of indecent assault,2 two counts of corruption of minors.3 On appeal, Appellant challenges the weight of the evidence legality sentence. We * Retired Senior Judge assigned to the Superior Court.

' 18 Pa.C.S.A. § 6318(a)(1). 18 Pa.C.S.A. §§ 901(a) 3126(a)(8). Pa.C.S.A. § 6301(a)(1)(i). vacate the judgment sentence in part and remand for imposition of twenty -five-year period registration under SORNA.4

We take the underlying facts and procedural history matter from the court's July 7, 2016 opinion and our independent review of the certified record.

After 7:00 p.m. on May 2013, Amanda Jean Ready and her friend, Lauren Parish, were finishing dinner at the Panera restaurant Fruitville Pike Manheim Township, Bread [Appellant][5] and victim Lancaster County, Pennsylvania. [one][a] were sitting booth approximately two feet away Ms. Ready so that she and [Appellant] were about five feet apart. Ms. Ready was facing [Appellant] victim [one] and Ms. Parish had her back to them.

[a] Both victims are relatives who have same first, middle last initials. The [trial c]ourt [] refer[s] them as victim [one] victim [two] in [its] opinion.

Initially, victim [one] sitting next [Appellant], but later sitting on his lap for few minutes prior moving to [Appellant's] other side. While Ms. Ready was observing them, victim [one] were engaged prolonged, closed mouth kissing lips for approximately ten seconds each occasion. This activity had continued about [twenty] [thirty] minutes when Ms. Ready reported what she saw an employee who told the manager. manager told Ms. Ready would not call police so Ms. Ready did so. Ms. Ready Sex Offender Registration Notification Act, Pa.C.S.A. §§ 9799.10- 9799.41. We briefly note Appellant victims' estranged biological father.

Both victims' mother were long-term drug abusers had no contact with the victims until 2012 or 2013. Mother's sister adopted both girls, well as younger sibling.

believed [Appellant] to be in his [forties] or [fifties] and victim [one] to be a [nine] year old girl. that her attention was drawn to

Ms. Parish stated [Appellant] by Ms. Ready. She described a man and a child "like kissing and making out and was pulling her on his lap and just inappropriate behavior." When victim [one] was on his lap, Ms. Parish said [Appellant's] hands were "on her hips, kind all over her." addition to the lips, she also observed [Appellant] kissing victim [one] the cheek and neck. Ms. Parish indicated victim [one] appeared to be [twelve] or [thirteen] years old. Ms. Parish turned around to observe what was occurring behind her about dozen times and described it something dating couple would do.

No criminal charges were filed in connection with this incident until after the incident with victim [two].

On August 2014, at about lunch time, John Moore was in the parking lot of the Pizza Hut restaurant Manheim Pike in Lancaster County, Pennsylvania, which adjacent to McDonald's restaurant. His vehicle was parked facing grayish Saab about five ten feet away in the McDonald's lot. He saw [Appellant] driver's seat of Saab and victim [two] in the passenger seat. He saw [Appellant] rubbing victim [two] up and down her breast to her stomach, mouth mouth kissing [thirty] seconds to minute and [Appellant] pulling victim [two's] head chest then down to his lap. Mr. Moore observed this activity for approximately ten minutes, called report it then drove from the Pizza Hut lot the McDonald's lot parked close to [Appellant's] vehicle.

Mr. Moore tapped the window of SUV parked next [Appellant] told the woman occupying it, who was also watching what occurring, he had called police. He then stood almost directly front [Appellant's] vehicle watched [Appellant] continue what Mr. Moore had previously seen. When police arrived, victim [two] got out of the Saab said, "Oh, shit, the police are here" and ran into McDonald's restaurant.

Diane Geib McDonald's parking lot eating her lunch when victim [two] got into the vehicle parked next to hers. Ms. Geib saw victim [two] half sitting on

- 3 - [Appellant's] lap with her back to the steering wheel. She saw [Appellant] give victim [two] three quick kisses on lips. When Ms. Gelb looked over again, she saw victim [two] lying flat seat with [Appellant] on top her. Victim [two] looked scared and had her hand [Appellant's] chest. Ms. Geib was going to call police when Mr. Moore tapped her window told her he had already done so.

Detective Christopher Dissinger of the Manheim Township Police Department testified both victim [one] [two] were under [eighteen] years of age at the time of these incidents[b] [Appellant] was over [eighteen] years of age.`] He also obtained the cell phones of [Appellant] victim [two], obtained consent to conduct forensic search retrieved certain messages. Among these messages were the following from [Appellant] victim [two] prior the events the McDonald's parking lot:

"Ah, you're so sweet. I want you so bad." "all I need is you, baby"

"I will kiss you so much it will just become normal" "aww, you make me want you so bad" "just want kiss you so bad"

"101, God, I want you so bad. Is that weird" [d] [b] Victim [one] was born August 26, 1999, and victim [two] was born May 27, 2001.

[C] [Appellant's] date of birth April 1969.

[d] quoted messages do not include all messages offered into evidence or victim [two's] responses. All of the messages both parties are reflected trial transcript pages [eighty- three] [eighty-nine]. addition the Commonwealth's evidence summarized

above, presented evidence at trial.

John Struble testified he employed at Panera Bread on the date of the incident involving victim [one], that received complaint from customer about [Appellant] young girl booth. Mr. Struble, who wearing his employee name tag, took manager's binder with paperwork

- - in it to a table in view [Appellant] see what was happening. the [twenty] Mr. Struble saw nothing inappropriate during minute period was the area stated [Appellant] victim [one] looked like they were playing a game a cell phone. [one] testified she was at Panera Bread with

Victim [Appellant] they were sitting a booth playing a game on [Appellant's] cell phone. [Appellant] gave her quick kiss on lips once and nothing inappropriate occurred.

Victim [two] testified she and [Appellant] were at McDonald's for about an hour spent [forty-five] minutes inside restaurant. She and [Appellant] were car for [ten] [fifteen] minutes waiting her [adoptive mother] text victim [two] that [she] was at home. During this period, [Appellant] gave her quick kiss and she put her head on his [two] denied anything shoulder once or twice. Victim inappropriate occurred, offered her explanation for the text messages with [Appellant].

Finally, [adoptive mother] victims [one] [two] she never had concerns about [Appellant's] testified behavior.

At the conclusion of the trial, found guilty of all charges.

(Trial Court Opinion, 7/07/16, 2-6) (record citations omitted).

On March 18, following review of the pre -sentence investigation report, trial court sentenced Appellant aggregate term of incarceration of not less than nine nor more than twenty-three months be followed by seven-year term probation. court also determined subject lifetime registration requirement under SORNA, Tier III offender because he had "been convicted of these offenses[.]" (N.T. Sentencing, 3/18/16, at 23).

On March 23, 2016, Appellant filed post -sentence motions, including motion to vacate the jury verdict as against the weight of the evidence. On April 13, and 19, 2016, the trial court denied the motions. instant, timely appeal followed. On May 20, 2016, the trial court directed Appellant file concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed timely Rule 1925(b) statement June 15, 2016. See id. On July 7, 2016, the trial court issued opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review. Did court err finding that jury's verdict of I. guilty of two counts of corruption of minors, attempt commit indecent assault, unlawful contact with minor was [not] against the weight of the evidence so contrary thereto as to shock conscience, where the testimony of the witnesses to each incident so contradictory render any verdict based on testimony unreliable?

II. Where convicted same date of one count of unlawful contact with [a] minor, violation 18 Pa.C.S.[A.] § one count criminal attempt commit indecent assault, violation Pa.C.S.[A.] § and 18 Pa.C.S.[A.] § 3126(a)(8), the offenses were docketed same information number, should have been sentenced [twenty-five] years of sex offender registration pursuant to 42 Pa.C.S.[A.] §§ 9799.14 9799.15, rather than lifetime registration?

(Appellant's Brief, 6).6 acknowledges he did not raise legality of sentence issue first issue, claims the verdict against the weight of the evidence because the witnesses' testimony "so contradictory as to render any verdict based on testimony unreliable." (Appellant's Brief, at 20). We disagree.

Our scope standard of review of weight of the evidence claim is as follows: 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 determines the credibility of the witnesses.

As an appellate court, we cannot substitute our judgment of the finder of fact. Therefore, we will reverse jury's verdict grant new trial only where the verdict is so contrary to evidence to shock one's sense of justice. A verdict is said be contrary to the evidence such it shocks one's sense justice when the figure of Justice totters her pedestal, or when the jury's verdict, at the time its rendition, causes the trial judge lose his breath, temporarily, and causes him to almost fall bench, then it is truly shocking the judicial conscience.

Furthermore, where the trial court has ruled weight claim below, appellate court's role is not to consider the underlying question whether verdict is against the weight of the evidence. Rather, appellate review limited whether court palpably abused its discretion ruling weight claim.

Commonwealth v. Boyd, A.3d 1274-75 (Pa. Super. 2013) (en banc) (citation internal quotation marks omitted). "Thus, the trial (Footnote Continued)

Commonwealth v. Dickson, 918 A.2d 95, (Pa. 2007) ("challenges sentences based upon their legality" are not subject waiver); (see also Appellant's Brief, at 6).

court's denial of motion for new trial based on weight of the evidence claim is the least assailable of its rulings." Commonwealth v. Diggs, 949 A.2d 879-80 (Pa. 2008), cert. denied, U.S. (2009) (citation omitted).

Here, the court rejected Appellant's weight of the evidence claim; it discussed the differences between the various witnesses' testimonies and pointed out those differences could be explained by the different vantage points periods of time during which they viewed Appellant victims. (See Trial Ct. Op., 7-8). We agree. Moreover, fact-finding credibility determinations are matters for jury. The record reflects the jury chose to credit the testimony of the Commonwealth's witnesses chose reject the defense's theory of the case. jury, sitting as finder of fact, free believe the Commonwealth's witnesses disbelieve the defense. See Commonwealth v. Griscavage, 517 A.2d 1256, 1259 (Pa. 1986). "[I]t is fact -finder to make credibility determinations, finder fact may believe all, part, or none witness's testimony." Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation omitted). Thus, Appellant's weight of the evidence claim without merit. second issue challenges the legality his sentence

pursuant Pennsylvania Supreme Court's decisions Commonwealth v. Lutz -Morrison, A.3d 891 (Pa. 2016) A.S. v. Pennsylvania State Police, 143 A.3d 896 (Pa. 2016). (See Appellant's Brief, at 27). He claims that trial court erred imposing life -time registration rather than a twenty-five year period registration.' (See id. at 6). We agree.

We briefly note is pure question of law therefore, our standard of review de novo our scope of review is plenary. See Commonwealth v. Wolfe, 106 A.3d 802 (Pa. Super. 2014), appeal dismissed, 145 A.3d 727 (Pa. 2016). Lutz-Morrison, our Supreme Court clarified Section

9799.14(d)(16) SORNA "requires act, conviction, subsequent act to trigger lifetime registration for multiple offenses otherwise subject fifteen- or twenty -five-year period registration." Lutz-Morrison, supra 895; accord A.S., supra at 908 (applying registration requirements of Megan's Law II). Here, court imposed the lifetime registration requirement based solely multiple Tier I and II offenses,8 included in same information, of which the jury convicted Appellant. Under Lutz- Morrison, Appellant's conviction of multiple Tier I and Tier II offenses contained single criminal complaint, did not subject him to Tier III See 42 Pa.C.S.A. § 9799.15. See Pa.C.S.A. § 9799.14. lifetime registration requirement because there no "subsequent act" following his conviction. Lutz-Morrison, supra 895.9

Therefore, we vacate Appellant's judgment of sentence in part, as classification Tier III offender, remand court for imposition of twenty -five-year registration requirement under Section 9799.15(a)(2).

Judgment of sentence affirmed part, vacated part. Case remanded proceedings consistent with decision. Jurisdiction relinquished.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 3/20/2017 Commonwealth strenuously argues instant matter is

distinguishable from Lutz -Morrison because it involves two separate events with multiple victims took place over one year apart. (See Commonwealth's Brief, at 15-16). However, Lutz -Morrison clearly requires act followed by conviction, followed by another act separate conviction. See Lutz -Morrison, supra at 895. This simply not present the instant matter.

- - below, but correctly notes challenges to the legality of sentence are non-waivable may be raised first time appeal. See (Footnote Continued Next Page)