J-A24002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
OROBOSA ENAGBARE
Appellant No. 785 EDA 2016
Appeal from the Judgment of Sentence September 21, 2015 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002279-2012
BEFORE: BOWES, OTT AND SOLANO, JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 08, 2017
Orobosa Enagbare appeals from the judgment of sentence of four and
one-half years to nine years of incarceration, followed by a consecutive
period of five years probation, imposed after a jury convicted him of, inter
alia, rape of an unconscious person. We affirm.
On the evening of May 26, 2012, the victim, a female college student,
went to a bar in West Chester to celebrate the end of the semester. She
sent text messages inviting most of the people she knew, including
Appellant, to join her. The group consumed alcohol throughout the evening
and danced. Sometime between 1:45 a.m. and 2:00 a.m., Appellant asked
the victim if she would like to be walked home. The victim accepted the
offer. The two left the bar by themselves and began the walk back to her
apartment, which was approximately fifteen minutes away. J-A24002-16
Due to her intoxication, the victim’s recollection of the details of what
next occurred was somewhat hazy. She recalled walking with Appellant,
entering her residence, and changing her clothes. The next thing she
remembered is waking up and experiencing vaginal pain. She saw Appellant
on top of her and felt his penis inside her. She told him to stop, and
attempted to push him away. Appellant did not stop, and she again fell
asleep. She testified that she did not consent to sex at any point.
Around 9:00 a.m., the victim awoke with vaginal pain and told a friend
she had been raped. She proceeded to a hospital, where an examination
was performed and evidence collected for a rape kit. A police officer told the
victim to contact Detective Stan Billie.
On May 29, 2012, the victim contacted Detective Billie, who initiated
an investigation. The victim agreed to call Appellant and have that
conversation recorded. Two separate recorded phone calls were played to
the jury, which reveal the following facts. The victim asked Appellant if he
remembered what happened on the 26th. Appellant initially stated that she
invited him in and that they kissed for a few minutes, but she fell asleep so
he carried her upstairs and left. She told him something more must have
happened. Appellant again denied that anything happened. When the
victim revealed that she remembered seeing him on top of her, and told him
to stop lying. Appellant then stated, “I just f---ed up,” and told the victim
that he used a condom which he took with him and threw away in a public
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trashcan. When Appellant was asked if he thought about stopping when she
tried to push him off, he said no and admitted that he continued to have sex
with her for five to ten more minutes. Appellant said, “I’m saying I f---ed up
and I mean, I know obviously it wasn’t consensual. It was never
consensual. None of it was okay.” N.T. Vol. I, 5/12/15, at 158.
Based on this incident, Appellant was charged with rape by forcible
compulsion, rape of an unconscious person, sexual assault, and aggravated
and indecent assault. Appellant proceeded to a jury trial on February 11,
2013, which resulted in a mistrial on February 13, 2013. The mistrial was
granted at Appellant’s request, after the trial court determined that the
Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963).
On or about February 28, 2013, counsel filed a motion to bar retrial,
averring that the Commonwealth’s failure to provide the Brady material
constituted prosecutorial misconduct.1 The trial court held a hearing, and
issued an order denying the motion on March 26, 2013.2
On April 9, 2013, Appellant filed a motion to suppress a statement
given by Appellant to Detective Billie, which was granted on April 30, 2013 ____________________________________________
1 This motion was not docketed until March 20, 2013. The certified March 20, 2013 filing includes a fax from Appellant’s counsel stating that the judge’s chambers informed counsel that the motion was never docketed. We note that a March 18, 2013 postponement is in the certified record stating, “motion to bar re-trial pending.” 2 The transcript of this hearing is not in the certified record.
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after an evidentiary hearing. The Commonwealth, pursuant to Pa.R.A.P.
311(d), certified that the order would terminate or substantially handicap its
prosecution and appealed; we affirmed on April 17, 2014. Commonwealth
v. Enagbare, 102 A.3d 535 (Pa.Super. 2014) (unpublished memorandum).
The Commonwealth sought review with our Supreme Court, which denied
that request on September 30, 2014. Commonwealth v. Enagbare, 101
A.3d 101 (Pa. 2014). The court of common pleas received the record on
October 29, 2014. Thereafter, the matter was continued several times.
On or about May 6, 2015, Appellant sought dismissal pursuant to the
prompt-trial provisions outlined in Pa.R.Crim.P. 600.3 The trial judge
addressed that motion4 and several other pre-trial matters on May 11, 2015,
immediately prior to jury selection.
The second jury trial commenced on May 12, 2015. On May 15, 2015,
Appellant was acquitted of rape by forcible compulsion and convicted of the
remaining offenses. Appellant’s bond was revoked and sentencing was ____________________________________________
3 Rule 600 requires the Commonwealth to try a criminal defendant within 365 days from the date that the criminal complaint is filed. Following filing of the criminal complaint Rule 600 was revised, with the current version effective July 1, 2013. The order granting the mistrial predates the July 1, 2013 enactment. We therefore apply the prior version of Rule 600 to the facts of this case. See Commonwealth v. Wilson, 145 A.3d 194, 195, n.2 (Pa.Super. 2016) (applying version of Rule 600 in effect on date matter was remanded from Superior Court for further proceedings). 4 This motion was never docketed. The Commonwealth’s brief states that its office received a copy and does not contest its filing. Its omission is not an impediment to our review due to the nature of the claim.
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deferred to September 21, 2015, whereupon Appellant received the above-
referenced sentence.
Appellant timely filed post-sentence motions and a notice of appeal
following their denial. Appellant and the trial court complied with the
mandates of Pa.R.A.P. 1925 and the matter is ready for our review.
Appellant poses the following questions for our consideration:
I. Did the lower court err in denying Appellant’s motion to dismiss the charges pursuant to Pennsylvania Rule of Criminal Procedure 600 where the Commonwealth failed to exercise due diligence in bringing Appellant to trial?
II. Did the lower court err in denying Appellant’s motion to dismiss and bar retrial on the grounds of double jeopardy where the Commonwealth’s withholding of exculpatory evidence was only one instance of prosecutorial misconduct and Appellant has demonstrated that the Commonwealth engaged in a pattern of misconduct designed to deprive him of a fair trial?
III. Did the lower court violate the corpus delecti rule when it admitted Appellant’s inculpatory wiretap conversations into evidence where the Commonwealth failed to establish that a crime had occurred by a preponderance of the evidence and where it allowed the jury to consider Appellant’s admissions during its deliberations even though the Commonwealth had failed to prove that a crime had occurred beyond a reasonable doubt?
IV. Were Appellant’s convictions supported by the clear weight of the evidence where the complainant’s trial testimony was contradicted by her statements to the police and at a previous trial?
Appellant’s brief at 5-6 (first two issues reordered for ease of discussion).
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Since Appellant’s Rule 600 arguments are incorporated in his double
jeopardy claim, we elect to address it first. Our standard and scope of
review in evaluating Rule 600 issues is well-settled. We determine
whether the trial court abused its discretion. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. 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 ill will, as shown by the evidence or the record, discretion is abused.
The proper scope of review is limited to the evidence on the record of the Rule [600] evidentiary hearing, and the findings of the [trial] court. An appellate court must view the facts in the light most favorable to the prevailing party.
Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013) (citing
Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa.Super. 2007) (en
banc) (alterations in original due to rule renumbering)). “The proper
application of discretion requires adherence to the law, and we exercise
plenary review of legal questions.” Commonwealth v. Baird, 975 A.2d
1113, 1118 (Pa. 2009) (citing Commonwealth v. Chamberlain, 731 A.2d
593, 595 (Pa. 1999)).
Since Appellant was on bail during the first trial, the pertinent
provision of Rule 600 required the Commonwealth to commence Appellant’s
trial within 365 days of the order granting the mistrial. See Former Rule
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600(D)(1).5 The first step is calculating the ‘mechanical run date,’ which is
arrived at by adding 365 days to the date of the order granting the mistrial.
Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa.Super. 2013).
Therefore, trial was required to commence within one year of February 13,
2013 (on or before February 13, 2014). Appellant filed the motion to
dismiss on or about May 6, 2015.
Since trial did not commence within the mechanical run date, we must
determine whether the trial occurred within the adjusted run date. To
calculate the adjusted run date, we add all periods of delay caused by the
defendant which were statutorily excluded from the speedy-trial
computation. See Former Rule 600(C)(1)-(3) (effective until July 1, 2013).
Our precedents interpreting the former Rule also added periods of
“excusable delay.” This concept was derived from former Rule 600(G),
which
includes an explicit exception, neither explicitly nor implicitly included in Rule 600(E). The additional language provides the Commonwealth with the ability to obtain what this Court ... termed to be “an extension” of the 365–day time limit, as opposed to a Rule 600(C) “exclusion,” to the extent the Commonwealth has exercised due diligence such that
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5 “When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within 120 days after the date of the order granting a new trial, if the defendant is incarcerated on that case. If the defendant has been released on bail, trial shall commence within 365 days of the trial court's order.”
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circumstances occasioning a postponement are beyond its control. Commonwealth v. Dixon, 907 A.2d 468, 474 (Pa. 2006). Thus, if the
Commonwealth exercised due diligence during the challenged time periods,
the 365–day time limit would be extended. Due diligence, in turn, “is a fact-
specific concept that must be determined on a case-by-case basis. Due
diligence does not require perfect vigilance and punctilious care, but rather a
showing by the Commonwealth that a reasonable effort has been put forth.”
Ramos, supra at 1102. Finally, mindful of the Rule's dual purposes, where
“there has been no misconduct on the part of the Commonwealth in an effort
to evade the fundamental speedy trial rights of an accused, Rule 600 must
be construed in a manner consistent with society's right to punish and deter
crime.” Id. at 1100.
Appellant argues that the entire time period during which the
Commonwealth appealed the grant of suppression should be counted against
the Commonwealth. The trial court’s Rule 1925(a) opinion refers to the
conclusions set forth on-the-record, where the court stated the following:
THE COURT: Let me address the Rule 600 issue first. In the absence of any appellate decision in Pennsylvania or the absence of any statutory provision or rule, rule which would enable me to reach the conclusion the defense wants me to is that the appellate review days, let’s refer to them as, are against the Commonwealth, against or the proper measure by which to calculate the speedy trial rule in a retrial scenario would include the days that went before the first trial.
I agree with the calculation of time stated in the Commonwealth’s response to the Rule 600 Motion. I suppose
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we could quibble over a couple of days here and a couple of days there. I don’t intend to do that.
If I need to reconstruct it precisely, I will do it in the context of a 1925 opinion, but I’m taking it at face value, Ms. Capuano’s representation to the Court.
If you exclude the appellate consideration period, and don’t count the days that got us to the commencement of trial, that 195 days by her calculations are charged to the Commonwealth. That doesn’t get us anywhere close to the infraction of the 365 day timeframe . . . and therefore, defendant’s motion to dismiss the charges pursuant to Rules of Criminal Procedure 600 is denied.
N.T., 5/11/15, at 76-77.
The dispositive issue in this case is whether the 518 days during which
the Commonwealth appealed the suppression order is chargeable to the
Commonwealth. “[I]t is clear that if the delay occasioned by the
Commonwealth’s appeal to the Superior Court and then to the Supreme
Court is counted against the Commonwealth, then [A]ppellant’s speedy trial
rights have been violated.”6 Appellant’s brief at 32-33. Appellant challenges
the trial court’s calculation by claiming that the Commonwealth failed to
exercise due diligence when it filed the appeal. “Appellant respectfully
asserts that the Commonwealth’s decision to appeal the trial court’s
6 This calculation is correct. A total of 812 days elapsed between the date granting mistrial, February 13, 2013, and the date Appellant presented his motion to dismiss, May 6, 2015. If the 518 days are not included in the adjusted run date, then the remaining 294 days (812 minus 518) would extend the adjusted run date only to December 4, 2014. Thus, the 518 day period controls the outcome.
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suppression order, despite the lack of any legal support for its position,
precludes a finding that the Commonwealth exercised due diligence.” Id. at
35-36.
We disagree. The leading case on this matter, Commonwealth v.
Matis, 710 A.2d 12 (Pa. 1998), holds that the Commonwealth acts with due
diligence for purposes of Rule 600 when it certifies for appeal that a pre-trial
order terminates or substantially handicaps the prosecution. In Matis, the
trial court had denied a Commonwealth request for a continuance to secure
the presence of a witness. Id. at 15. The Commonwealth appealed, but
failed to seek permission from the trial court to appeal an interlocutory order
pursuant to Pa.R.A.P. 312; instead, the Commonwealth certified that the
court’s order substantially handicapped its prosecution under Pa.R.A.P.
311(d). This appeal was ultimately quashed. Id.
Following quashal, Matis sought discharge under Rule 600, arguing
that the appeal time period was chargeable to the Commonwealth since the
Commonwealth (1) failed to exercise due diligence and (2) filed a frivolous
appeal in bad faith from a non-appealable interlocutory order for the sole
purpose of delaying trial. Id. The trial court granted the motion. The court
found that the Commonwealth did not act in bad faith in filing the appeal.
However, the trial court concluded that the Commonwealth was not duly
diligent. Our Supreme Court disagreed, finding “that the filing of a . . .
certification is sufficient safeguard to prevent the Commonwealth from filing
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appeals to delay a trial when a court has denied a motion to continue.” Id.
at 18. The Court compared this situation to Commonwealth v.
Malinowski, 671 A.2d 674 (Pa. 1996), wherein the Commonwealth did not
file a certification and instead opted to withdraw its appeal before the
deadline for filing a brief.
Appellant seeks to circumvent Matis by claiming that our prior panel
memorandum affirming the trial court’s grant of suppression admonished the
Commonwealth for filing an appeal of the suppression order. In a footnote,
we stated:
Enagbare also challenges the Commonwealth's good faith certification that the suppression order will terminate or substantially handicap its prosecution. See Pa.R.A.P. 311. Enagbare asserts that the prosecution has two alternate, valid sources of evidence that are substantively identical to the evidence at issue. The question of whether the evidence is sufficient for the Commonwealth to meet its burden of proof is not before us at this time and we will not address it. We remind the Commonwealth that such certifications are to be made in good faith and caution that the filing of a certification no longer requires blind acceptance and this Court is permitted to examine the basis of such certifications. See Commonwealth v. Cosnek, 836 A.2d 871 (Pa.2003); see also Commonwealth v. White, 910 A.2d 648 (Pa.2006).
Enagbare, supra, unpublished memorandum at n.2. Appellant contends
that this footnote, in conjunction with our affirming the trial court, proves
that the Commonwealth was not duly diligent. However, as the trial court
correctly recognized, we addressed the merits of the appeal and therefore
this statement was dicta.
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Moreover, the cases cited in this dictum do not affirmatively state that
we may question the basis for the certification when reviewing an appeal of
a suppressed inculpatory statement. Following our memorandum decision,
this Court issued Commonwealth v. Woodard, 136 A.3d 1003 (Pa.Super.
2016), in which we quashed a Commonwealth appeal from a denial of
motion for joinder. In reaching this conclusion, we discussed our jurisdiction
to review Commonwealth appeals:
Although Rule 311(d) permits an appeal as of right, prior case law has continually placed limits on the scope of this right as it pertains to non-evidentiary issues. Thus, the court will not “accept blindly the Commonwealth's certification of substantial hardship” when appeal is sought for non- evidentiary interlocutory orders. White I, supra at 558. As illustrated by the White cases, the law regarding Commonwealth appeals under Rule 311(d) is far from settled.
Id. at 1005 (emphasis added). In other words, our ability to examine the
Commonwealth’s certification has, to date, extended only to Commonwealth
appeals pertaining to non-evidentiary rulings. The order suppressing
Appellant’s confession was, of course, an evidentiary ruling.
Additionally, the Commonwealth’s motivation in pursuing an appeal
poses a factual question, as opposed to a question of law implicating our
jurisdiction to consider a Commonwealth appeal. Matis, supra at 15 (“This
Court is therefore bound by the trial court’s factual finding that the
Commonwealth did not act in bad faith.”) (emphasis added). Hence, Matis
applies, and the Commonwealth exercised due diligence. Since the trial
court did not find the Commonwealth acted in bad faith in pursuing its
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appeal, the 518 days constituted excusable time that is added to the
mechanical run date. This yields an adjusted run date of July 16, 2015.
Therefore, trial commenced within the permitted time period.
We next address Appellant’s double jeopardy claim, which was
litigated prior to the motion to suppress and accompanying Commonwealth
appeal. Appellant alleged that the Commonwealth’s failure to provide the
Brady material was prosecutorial misconduct. The trial court held a hearing
and issued an order denying relief on March 26, 2013, which included
findings of fact.7
An appeal grounded in double jeopardy raises a question of
constitutional law, and our scope of review is plenary and the standard of
review de novo. Commonwealth v. Kearns, 70 A.3d 881 (Pa.Super.
2013), sets forth the applicable principles:
“The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). However, the “Double Jeopardy Clause is no bar to retrial” when “the defendant moves for a mistrial[.]” Id. at at 673, 102 S.Ct. 2083 (1982). The Supreme Court of the United States has recognized a limited exception to this rule, holding that: ____________________________________________
7 The trial court did not determine whether the motion to dismiss was frivolous. See Pa.R.Crim.P. 587(B)(4) (if motion to dismiss on double jeopardy grounds is denied, the findings of fact shall include a finding as to frivolousness). The Commonwealth does not suggest that the issue is waived or otherwise non-appealable at this juncture; thus, we shall address the merits.
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[T]he circumstances under which ... a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.
Id. at 679, 102 S.Ct. 2083.
Our Supreme Court has determined that the Double Jeopardy Clause of Pennsylvania's constitution provides greater protection than its federal counterpart:
[T]he double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.
Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325 (1992).
Id. at 884. To the extent factual findings bear on the double jeopardy
question, we apply the more deferential standard of review to the trial
court’s findings. Id.
Preliminarily, we note that Appellant’s double jeopardy claim rested
solely on the Brady violation. Indeed, Appellant’s Pa.R.A.P. 1925(b)
statement was similarly limited: “Did the lower court err in denying
appellant’s motion to bar retrial of his case where his first trial ended in a
mistrial as a result of the Commonwealth’s withholding of exculpatory
evidence?” Rule 1925(b) Statement, 3/24/16, at 1.
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Appellant now seeks to raise additional matters not presented to the
trial court, claiming that “the Commonwealth engaged in a pattern of
misconduct designed to deprive him of a fair trial.” Appellant’s brief at 17.
Specifically, Appellant folds in the Rule 600 argument, supra, and claims that
the Commonwealth’s appeal was purely dilatory. Appellant also cites to the
testimony of Detective Billie, who was called by Appellant during trial. He
testified that the District Attorney’s office ordered the rape kit destroyed and
did not perform any DNA analysis of the kit. N.T. Vol. III, 5/13/15, at 199.8
However, Appellant did not raise these matters to the trial court nor
did he include them in the Pa.R.A.P. 1925 statement. We therefore agree
with the Commonwealth that these additional theories have been waived.
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). We therefore confine our
analysis to the actual claim raised and addressed by the trial court.9
Thus limited, we find that the trial court correctly denied this claim. As
applied to Brady violations, intentionality is a necessary prerequisite for ____________________________________________
8 The Commonwealth argued during closing arguments that the kit was not tested because Appellant’s intercepted recording admitted that he used a condom. N.T. Vol. IV, 5/14/15, at 65. 9 Appellant cites Commonwealth v. Anderson, 38 A.3d 828 (Pa.Super. 2011), in support of his position. Anderson holds that a defendant seeking to bar retrial on prosecutorial misconduct grounds is not limited to relying on conduct that occurred before or during the first trial. However, this does not mean that Appellant is relieved of his obligation to present the issue to the trial court.
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double jeopardy relief. In Kearns, supra, we reversed a trial court’s order
barring retrial following a Brady violation that resulted in a mistrial. The
trial court opined that the prosecutor’s failure to disclose exculpatory
material was grossly negligent, but not intentional. Id. at 886. We held
that finding mandated reversal:
In this instance, we accept the factual determinations of the trial court regarding the Commonwealth's conduct and, further, we accept its legal conclusion that the Commonwealth was grossly negligent in withholding discoverable evidence from the defense based upon those factual determinations. Nevertheless, gross negligence on the part of the Commonwealth is never a sufficient basis upon which to bar retrial on double jeopardy grounds.
Id. (emphasis in original).
Herein, the trial court’s order denying the motion to bar retrial
specifically found that the Brady violation was unintentional. As an initial
matter, we note the nature of the Brady violation during the first trial.
Following the close of the Commonwealth’s case-in-chief, the prosecutor
informed the court that several supplemental pages of reports prepared by
Detective Billie were not turned over to Appellant. N.T., 2/13/15, at 127.
Appellant’s brief states that these missing reports contained a supplemental
interview Detective Billie conducted with the victim, an interview with the
victim’s boyfriend, and a synopsis of an interview with another person who
was at the bar the evening of the incident. Appellant’s brief at 17. The
Commonwealth’s brief agrees with this description. Commonwealth’s brief
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at 8. The trial court took testimony on the motion to bar retrial, and issued
the following findings of fact:
Initially, we observe that there is no indication that any representative of the Chester County District Attorney’s Office who at any time has had responsibility for handling this case, from Mr. Carmody through Mr. O’Keefe, has ever demonstrated any personal act of misconduct. Rather, the issue here is solely with police department actions.
In this case, Detective Billie testified that he believed the entire report was turned over to the Commonwealth. The court finds his testimony credible, and therefore concludes that the failure to turn over the missing pages was inadvertent, and not willful or intentional.
Order, 5/26/13, at n.1, 3-4. This credibility finding binds us. Thus, as a
matter of law, the trial court correctly denied the motion. Kearns.
Appellant’s third issue challenges the admission of Appellant’s
statements introduced through the audiotaped recordings of his
conversations with the victim as violating the corpus delicti rule. That rule is
“rooted in the hesitancy to convict a person of a crime solely on the basis of
that person’s statements.” Commonwealth v. Turza, 16 A.2d 401, 404
(1940). Therefore:
Before introducing an extra-judicial admission, the Commonwealth must establish by independent evidence that a crime has in fact been committed; however, the Commonwealth is not required to prove the existence of a crime beyond a reasonable doubt.
Commonwealth v. Reyes, 681 A.2d 724, 727 (Pa. 1996).
Application of the corpus delicti rule may occur at two levels. The first
level is a matter governing evidentiary admissibility, applying a prima facie
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standard, which is subject to an abuse of discretion. Commonwealth v.
Otterson, 947 A.2d 1239, 1249 (Pa.Super. 2008). The second tier requires
proof beyond a reasonable doubt, such that the factfinder may consider the
statements in deciding guilt.
After the court has made its initial determination that the Commonwealth has proved the corpus delicti by a preponderance of the evidence and has ruled the confession to be admissible, the corpus delicti rule additionally requires that the Commonwealth prove to the jury's satisfaction beyond a reasonable doubt, the corpus delicti of the crimes charged.
Reyes, supra at 728 (quoting Commonwealth v. Ahlborn, 657 A.2d 518
(Pa.Super. 1995)) (emphases supplied by Ahlborn). “The crucial
determination in applying the corpus delicti rule is whether, at the close of
the case, the proof of the corpus delicti was sufficient to permit the fact
finder to consider defendant's admission or confession.” Commonwealth
v. Cuevas, 61 A.3d 292, 295 (Pa.Super. 2013) (quoting Commonwealth v.
Hogans, 584 A.2d 347, 349 (Pa.Super. 1990)).
The trial court found that this issue has been waived, and, in the
alternative, is meritless. We agree on both counts. Appellant failed to raise
a corpus delicti issue at trial. Appellant’s Rule 1925(b) statement asked the
trial court to find the issue preserved “because he reasonably believed the
Commonwealth would introduce evidence obtained from the complainant’s
rape kit[.]” Rule 1925(b) Statement, 3/24/16, at 1, n.1. However,
Appellant does not explain why that belief excuses his failure to object, nor
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does it explain why Appellant did not object to the jury’s ability to consider
the statements in deliberations.
Nevertheless, we have reviewed Appellant’s argument and find that
Appellant is not entitled to relief. There is no corpus delicti issue if the
evidence, excluding the confession, establishes that the crime was
committed. In Reyes, supra, the trial court incorrectly applied the second
tier of the corpus delicti rule by considering the statements themselves in
conducting the beyond a reasonable doubt inquiry. The Court proceeded to
review the sufficiency of the evidence without regard to the statements:
As such, we agree with Appellant that although the trial court employed the proper standard for admitting his extra-judicial statements, the trial court failed to utilize the correct standard regarding its consideration of the statement. However, even excluding the alleged erroneously admitted inculpatory statements of Appellant, and the Coroner's report as well, the circumstantial evidence alone was sufficient to convict Appellant of murder. ....
Based upon the aforementioned facts, we are satisfied that there was sufficient evidence to support the trial court's conclusion that the Commonwealth proved Appellant's guilt beyond a reasonable doubt even excluding Appellant's extra-judicial statements.
Id. at 730. Herein, the victim testified that she was asleep as a result of
intoxication, woke up and saw Appellant on top of her, felt his penis inside
her, attempted to push him off, and did not consent to sexual intercourse at
any point. This testimony easily satisfies the elements of the two charged
rape crimes. Commonwealth v. Gonzalez, 109 A.3d 711, 720 (Pa.Super.
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2015) (“The Crimes Code defines rape in pertinent part as follows: “A person
commits a felony of the first degree when the person engages in sexual
intercourse with a complainant . . . by forcible compulsion.”);
Commonwealth v. Price, 616 A.2d 681, 683 (Pa.Super. 1992) (a victim
who is sleeping when sexual intercourse is initiated is considered
unconscious for rape of an unconscious person charge). As the trial court
noted in addressing the merits of this claim, the victim’s testimony standing
alone is sufficient to convict. “A rape victim’s uncorroborated testimony to
penal penetration is sufficient to establish sexual intercourse and thus
support a rape conviction.” Commonwealth v. Wall, 953 A.2d 581, 583
(Pa.Super. 2008). Thus, the corpus delicti issue is meritless.
Finally, Appellant raises a challenge to the weight of the evidence.
Appellant properly preserved this issue in a post-sentence motion and the
trial court addressed the claim. Commonwealth v. Stiles, 143 A.3d 968,
980 (Pa.Super. 2016) (“[A] defendant must present his challenge to the
weight of the evidence to the trial court for a review in the first instance.”).
The trial court found that the weight of the evidence supported the jury’s
verdict, setting forth its reasoning as follows:
[T]he specific points of evidence raised to support [the weight] claim are attacks upon the credibility of the victim. The credibility of witnesses is an element of the weight of the evidence, 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. Therefore, we will examine Defendant’s claim through the lens of the weight of the evidence. A verdict is against the weight of the evidence only when that verdict is so
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contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. When considering a weight of the evidence claim, the role of the trial court is to determine that notwithstanding all the evidence, certain facts are so clearly of greater weight that to ignore them, or to give them equal weight with all the facts, is to deny justice. A court reviewing the evidence cannot substitute its judgment for that of the jury on issues of credibility.
In the instant case, Defendant’s conviction is not so contrary to the evidence as to shock one’s sense of justice. . . . Even though there were inconsistencies in the victim’s statements over the course of the investigation, the jury chose to find her trial testimony credible. The jury, as the factfinder, was entitled to believe some, all, or none of the various statements made by the victim, and chose to accept her testimony that she was raped by Defendant and render a guilty verdict. Moreover, the jury heard an audio recording wherein Defendant admitted his culpability in a telephone call with the victim recorded by police. The jury’s verdict was not against the weight of the evidence presented by the Commonwealth, therefore Defendant’s motion must be denied.
Order Denying Post-Sentence Motions, 2/23/16, at 1-2 (quotation marks and
citations omitted). The foregoing discussion cogently sets forth the
applicable law and the rationale for denying the claim. In reviewing this
conclusion, we do not review the underlying weight of the evidence claim;
instead, we review the judge’s exercise of discretion in ruling on the claim.
“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. Smith, 146 A.3d 257, 264–265 (Pa.
Super. 2016) (citation omitted). We discern no such abuse of discretion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/8/2017
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