Com. v. Berlin, G.

Superior Court of Pennsylvania

Com. v. Berlin, G.

DecidedJune 30, 2015

Docket1574 WDA 2014

StatusUnpublished

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Com. v. Berlin, G., (Pa. Ct. App. 2015).

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Opinion

J-S25024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

GEORGES SAGE BERLIN

Appellant No. 1574 WDA 2014

Appeal from the Judgment of Sentence entered September 5, 2014 In the Court of Common Pleas of Westmoreland County Criminal Division at No: CP-65-CR-0004430-2012

BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 30, 2015

Appellant Georges Sage Berlin appeals from the judgment of sentence

entered in the Court of Common Pleas of Westmoreland County (“trial

court”), following his jury conviction for two counts of rape,1 two counts of

involuntary deviate sexual intercourse (“IDSI”),2 aggravated indecent

assault,3 two counts of indecent assault,4 unlawful restraint,5 and stalking.6

Upon review, we affirm. ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. § 3121(a)(1), (2). 2 18 Pa.C.S.A. § 3123(a)(1), (2). 3 18 Pa.C.S.A. § 3125(a)(1). 4 18 Pa.C.S.A. § 3126(a)(1), (2) 5 18 Pa.C.S.A. § 2902(a)(2). 6 18 Pa.C.S.A. § 2709.1(a)(2). J-S25024-15

The trial court summarized the facts and procedural history of this

case as follows.

The charges in this case arose from an incident that occurred on or about October 18, 2012 in Murrysville, Westmoreland County. The testimony at trial established that the victim, HW, lived with her two minor daughters on Impala Drive in the municipality of Murrysville in 2012. HW testified that she met [Appellant] through Facebook, and that they had become romantically involved in the summer of 2012. The relationship was rocky, however, and HW ended the relationship with [Appellant] in September 2012. Although [Appellant] sought reconciliation, HW, was not “sold” on the idea that it was a good decision. Eventually, HW broke off all contact with [Appellant] because of his troubling behavior towards her. On October 18, 2012, HW was at home getting ready for bed when she heard the doorbell ring. When she reached the door, [Appellant] asked her to let him into her home, and created a scene. Concerned for her neighbors, HW did allow [Appellant] to enter her house, but as soon as she did, he pushed her up against the wall and told her repeatedly that they were meant to be together. HW asked [Appellant] to leave, but he continued to “rant.” She was eventually able to move into her living room, hoping to diffuse [sic] the situation, but [Appellant] continued to insist that she was meant to be his, making little sense, and becoming more agitated. HW asked him repeatedly to leave her home, but [Appellant] began grabbing at her breasts, pushed her down on the couch and physically and sexually assaulted her. HW fought against [Appellant] and became hysterical when she felt that she could not breathe. [Appellant] stopped the assault at that point and apologized for trying to rape her, telling her that we was sorry but that he was crazy over her and that she was his. HW believed that [Appellant] was then going to leave, but he attacked her again before she was able to call for help. He resumed the assault, and although HW fought against him, [Appellant] raped and sexually assaulted her. After the rape, HW was able to get into her bathroom and lock the door behind her. [Appellant] used a kitchen knife to pry the bathroom door open, and he helped her back into her clothing but would not let her leave the bathroom. He again began speaking in a rambling and a subtly threatening manner. Finally, [Appellant] told HW that he and his family would “take care” of her ex-husband, and he threatened that if he ever saw her with another man, he would kill her. When [Appellant] left shortly thereafter, HW believed that it was the early morning hours of October 19, 2012. Her children were still asleep upstairs.

-2- J-S25024-15

HW testified that she locked all of the doors and went upstairs to her bedroom. She texted a friend, but her friend did not answer the phone. She then located the number for a women’s shelter and spoke to a counselor from the Blackburn Center. She testified that she did not call the police because she did not want her neighbors and her children to be awakened. Although she was in considerable pain, she waited until her children were on the bus to school before she went to Forbes Regional Hospital in Monroeville. There, she was examined, a rape kit was performed, and her clothing was collected. She then agreed to meet with Murrysville Police, and gave a written statement. After she left the police station, and as she was driving home, HW noticed that a vehicle was following her. When the car flashed its lights at her to pull over, she did so. [Appellant] was driving the car, which HW then recognized as being his mother’s vehicle, and he rolled down the window as if he wanted to speak with her. HW testified that she was afraid, and so she immediately pulled away and called the police. [Appellant] continued to follow her, at times pulling in front of her vehicle to block her progress, but HW was eventually able to drive back to the police station. [Appellant] called HW’s cell phone on numerous occasions and left several voice messages, which HW recorded to a separate medium. HW agreed to return [Appellant’s] phone calls while having the conversation recorded by law enforcement. In that recorded conversation, [Appellant] apologized repeatedly to HW for his actions and begged her to forgive him for raping her.

Trial Court Rule 1925(a) Opinion, 11/13/14, at 1-3. Following the jury

conviction on all charges, the trial court sentenced Appellant to an aggregate

of 17 to 34 years’ imprisonment, followed by five consecutive years’

probation. Appellant timely appealed to this Court.

In his Pa.R.A.P. 1925(b) statement of errors complained of on appeal,

Appellant argued, inter alia, that “[t]here is insufficient evidence of force or

threat of force to sustain the convictions of [r]ape, IDSI, [a]ggravated

[i]ndecent [a]ssault, and [i]ndecent [a]ssault.”7 Appellant’s Rule 1925(b) ____________________________________________

7 “A claim challenging the sufficiency of the evidence is a question of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). (Footnote Continued Next Page)

-3- J-S25024-15

Statement, 10/17/14. Appellant also argued the trial court erred in

prohibiting Appellant from introducing evidence of HW’s contraction of a

sexually transmitted disease.”8 Id.

_______________________ (Footnote Continued)

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered.

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