Commonwealth v. Kerrigan

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J. A32034/06because the evidence was insufficient to establish that any penetrationoccurred in Pennsylvania. Brief for Appellant at 23. Pursuant to statute,the convictions that require penile penetration are Rape of a Child, Rape of aChild (Serious Bodily Injury), Involuntary Deviate Sexual Intercourse, andInvoluntary Deviate Sexual Intercourse (Serious Bodily Injury). 7 In reviewing a sufficiency claim, we must view all the evidence in thelight most favorable to the Commonwealth as the verdict winner todetermine if the fact-finder could have found each element of the crimeproven beyond a reasonable doubt. See Commonwealth v. Hughes, 555A.2d 1264, 1267 (Pa. 1989).We may not weigh the evidence, nor“substitute our judgment for that of the fact-finder.” Commonwealth v.Zingarelli, 839 A.2d 1064, 1069 (Pa. Super. 2003) (citation omitted).In addition, we note that the facts and circumstances establishedby the Commonwealth need not preclude every possibility ofinnocence. Any doubts regarding a defendant's guilt may beresolved by the fact-finder unless the evidence is so weak andinconclusive that as a matter of law no probability of fact may bedrawn from the combined circumstances. The Commonwealthmay sustain its burden of proving every element of the crimebeyond a reasonable doubt by means of wholly circumstantialevidence. Moreover, in applying the above test, the entire recordmust be evaluated and all evidence actually received must beconsidered. Finally, the trier of fact while passing upon thecredibility of witnesses and the weight of the evidence produced,is free to believe all, part or none of the evidence.Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) (citationomitted).-6-
J. A32034/06 8 In support of this question, Kerrigan argues that A.R.’s testimony onwhether the abuse occurred in Pennsylvania or New Jersey is contradictoryand that the jury could do more than guess as to whether the abuseoccurred in Pennsylvania. Brief for Appellant at 23.Specifically, he arguesthat initially A.R. denied penile contact in Pennsylvania when she spoke withDetective Rentko, a detective that spoke with her following the allegations ofabuse, but that in a second interview, she stated that Kerrigan penetratedher. Brief for Appellant at 25. Kerrigan argues that “A.R.’s severelycontradicted hearsay statements” are insufficient evidence that any penilepenetration occurred in Pennsylvania. Brief for Appellant at 25. Kerriganalso claims that A.R.’s trial testimony only discussed events which occurredin New Jersey. Brief for Appellant at 25. 9 Kerrigan misstates the record and the testimony of Detective Rentko.A.R. testified, on cross-examination, that Kerrigan abused her inPennsylvania as well as in New Jersey. During cross-examination, thefollowing exchange took place between A.R. and Kerrigan’s counsel:Q: Okay. Where all have you lived that there was some formof abuse?A: Well, we started in New Jersey, and then Pennsylvania. . .****Q: Okay. Did anything take place in Pennsylvania?-7-
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Commonwealth v. Kerrigan

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