Com. v. Moore, K.

• Court: Superior Court of Pennsylvania
• Decided: August 27, 2019
• Docket: 2203 EDA 2018
• Status: Unpublished

Opinion

J-S42006-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENNETH E. MOORE : : Appellant : No. 2203 EDA 2018

Appeal from the Judgment of Sentence Entered June 13, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004320-2017

BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.: FILED AUGUST 27, 2019

Kenneth E. Moore appeals from the judgment of sentence imposed on

June 13, 2018, in the Court of Common Pleas of Philadelphia County. This

followed his non-jury conviction of attempted sexual assault.1 On June 13,

2018, the trial court sentenced Moore to a term of 4½ to 9 years’

imprisonment. Contemporaneous with this appeal, Moore’s counsel has filed

a petition to withdraw from representation and an Anders brief. See Anders

v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434

A.2d 1185 (Pa. 1981). The three issues addressed in the Anders brief are

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 901 and 3124.1, respectively. J-S42006-19

challenges to the sufficiency of the evidence, weight of the evidence, and

discretionary aspects of Moore’s sentence.2 After a thorough review of the

submissions by the parties,3 relevant law, and the certified record, we affirm

and grant counsel’s petition to withdraw.

We take the underlying facts and procedural history in this matter from

our review of the certified record. On November 1, 2013, Moore and the victim

were relaxing in the backyard of a mutual acquaintance, Vincent Novitsky.

N.T., 2/21/2018, at 12-13. The victim had previously seen Moore in

Novitsky’s company but was not really acquainted with him. Id. at 15. After

drinking a couple of beers, the victim became tired and went inside to

Novitsky’s living room, wrapped herself in a blanket, and fell asleep on a sofa.

Id. at 13-14. The victim testified she always slept curled in a ball. Id. at 14.

When the victim awoke, she found Moore had removed the blanket,

straightened her legs, removed her stockings, hiked her long dress over her

waist, and was leaning over her, attempting to take her breasts out of her

dress. Id. at 16-17. When Moore realized the victim had awakened, he said,

“What, you don’t want to [f***k] me because I’m a [n****r]?” Id. at 17.

The victim was able to extricate herself and, scared for her safety, ran

upstairs and locked herself in one of the bedrooms of Novitsky’s house. Id.

2 We have reorganized the issues based on the nature of the arguments.

3 We note that, despite this Court granting it an extension of time, the Commonwealth has not filed a brief in this matter.

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at 17-18. The next morning, when the victim heard someone moving around,

she went downstairs and informed Novitsky and his roommate about the

incident. Id. at 18-20. The victim did not know Moore’s name and Novitsky

only knew his nickname, so the victim did not report the incident to the police.

Id. at 19-20.

The victim testified that, despite asking Novitsky not to allow Moore at

his residence, she saw Moore’s car parked there approximately two weeks

later. Id. at 20-21. The victim stated she immediately left Novitsky’s home,

but Moore followed her in his car, shouting at her. Id. The victim hid in an

alley until Moore drove away. Id. She did not report the incident to the police.

The victim averred that she again saw Moore’s car parked at Novitsky’s

house in July 2016. Id. at 22. She took a picture of the license plate and

reported the 2013 sexual assault to the police. Id. at 24-26.4

A bench trial took place on February 21, 2018. Along with the victim,

who testified as stated above, Novitsky testified and largely corroborated the

victim’s version of the events. Id. at 66-70. Novitsky acknowledged the

victim came downstairs early in the morning and said that Moore “tried to

climb on top of her.” Id. at 71, 73. He stated the victim was agitated and

very upset. Id. at 71-73.5

4 Initially, the victim erroneously told the police that the assault occurred in May of 2015. Id. at 38-39.

5 Despite this, Novitsky continued his friendship with Moore. Id. at 73-74.

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At the close of the Commonwealth’s case, the trial court granted defense

counsel’s motion for judgment of acquittal with respect to the charge of rape

but denied it with respect to the charge of attempted sexual assault. At the

close of trial, the trial court found Moore guilty of attempted sexual assault.

Following receipt of a pre-sentence investigation report (“PSI”), on May

10, 2018, the trial court sentenced Moore to 6 to 12 years’ imprisonment and

a consecutive sentence of 4 years’ probation. On May 18, 2018, Moore filed

a post-sentence motion challenging the discretionary aspects of sentence. On

June 13, 2018, the trial court held a hearing on the motion. At the hearing,

the trial court noted the previous sentence exceeded the statutory maximum

and was, therefore, illegal. The court resentenced Moore to 4½ to 9 years’

imprisonment, which was below the mitigated range. The instant, timely

appeal followed.6

Preliminarily, we note that when counsel files a petition to withdraw and

accompanying Anders brief, we must first examine the request to withdraw

before addressing any of the substantive issues raised on appeal. See

Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). Here,

6 On July 11, 2018, the trial court ordered Moore to file a concise statement of errors complained of on appeal. On July 31, 2018, trial counsel filed a petition to withdraw, which the court granted that same day. Following appointment of new counsel and the granting of several requests for extensions of time, in lieu of filing a Rule 1925(b) statement, defense counsel filed a notice of intent to file an Anders brief. The court declined to file a Rule 1925(a) opinion, citing counsel’s notice of intent to file an Anders brief.

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our review of the record reveals counsel has substantially complied with the

requirements for withdrawal outlined in Anders, supra, and its progeny.

Specifically, counsel requested permission to withdraw based upon his

determination that the appeal is “wholly frivolous,” filed an Anders brief

pursuant to the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361

(Pa. 2009), furnished a copy of the Anders brief to Moore and advised Moore

of his right to retain new counsel or proceed pro se. See Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Moreover, our

review of the record reveals no correspondence from Moore responding to the

Anders brief. Accordingly, we will proceed to examine the issue counsel

identified in the Anders brief, and then conduct “a full examination of all the

proceedings, to decide whether the case is wholly frivolous.”

Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super. 2018) (en

banc).7

First, Moore contends that the evidence was insufficient to support his

conviction for attempted sexual assault. See Moore’s Brief, at 31-38. We

disagree.

Our standard of review of a sufficiency claim is well settled:

Our standard for evaluating sufficiency of the evidence is whether the evidence, viewed in the light most favorable to the Commonwealth [as verdict winner], is sufficient to enable a reasonable [factfinder] to find every element of the crime beyond ____________________________________________

7 See also Commonwealth v. Dempster, 187 A.3d 266 (Pa. Super. 2018) (en banc).

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a reasonable doubt. [T]he entire trial record must be evaluated and all evidence actually received must be considered, whether or not the trial court's rulings thereon were correct. Moreover, [t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Shull, 148 A.3d 820, 844 (Pa. Super. 2016) (citation

omitted).

The Pennsylvania Crimes Code defines sexual assault as follows: “[A]

person commits a felony of the second degree when that person engages in

sexual intercourse or deviate sexual intercourse with a complainant without

the complainant's consent.” 18 Pa.C.S. § 3124.1. “A person commits an

attempt when, with intent to commit a specific crime, he does any act which

constitutes a substantial step toward the commission of that crime.” 18

Pa.C.S. § 901(a). Therefore, to convict Moore of attempted sexual assault,

the Commonwealth was required to prove (1) Moore intended to engage in

sexual intercourse with the victim; (2) without the victim’s consent; and (3)

Moore took a substantial step towards engaging in sexual intercourse with the

victim without her consent.

Moreover, we note that a conviction of attempted sexual assault does

not require proof of penetration. See, e.g., Commonwealth v. Pasley, 743

A.2d 521, 524 (Pa. Super. 1999) (finding evidence sufficient to support

conviction of attempted sexual assault where defendant, “who was only

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wearing shorts, threw the victim on his bed, straddled her, pushed up her shirt

and bra to her neck, and attempted to unbutton her pants,” during which

victim scratched and punched defendant until he bled), appeal denied, 759

A.2d 922 (Pa. 2000). Further, with regard to sexual offenses, it is well

established that the “testimony of a victim need not be corroborated.”

Commonwealth v. Poindexter, 646 A.2d 1211, 1214 (citation omitted),

appeal denied, 655 A.2d 51 (Pa. 1995). Indeed, “this court held that the

uncorroborated testimony of a [sexual assault] victim, if believed by the [fact

finder], is sufficient to support a [sexual assault] conviction and no medical

testimony is needed to corroborate a victim’s testimony if the testimony was

rendered credible by the [fact finder].” Id. at 1215 (citation omitted).

Here, a review of the record reveals the following: The victim testified

she was sleeping curled in a ball and wrapped in a blanket on Novitsky’s couch.

She awoke and found that Moore had pulled the blanket off, stretched out her

legs, removed her stockings, pushed up her skirt, and was leaning over her,

face-to-face, trying to remove her breasts from her dress. N.T., 2/21/2018,

at 16-19. Moore said to the victim, “What, you don’t want to [f**k] me

because I’m a [n****r]?” Id. at 17. The interaction ended when the victim

was able to “raise up off” the couch, flee, and lock herself in a room. Id. The

trial court specifically found the victim’s testimony to be credible. Id. at 119.

This evidence clearly established Moore intended to engage in sexual

intercourse with the victim, without her consent as she was asleep, and Moore

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took a substantial step towards engaging in sexual intercourse with the victim

without her consent when he attempted to remove the victim’s breasts from

her dress. See Pasley, supra. As such, Moore’s sufficiency claim does not

merit relief.

Next, Moore challenges the weight of the evidence. See Moore’s Brief

at 20-22. However, as counsel correctly notes, such a claim is frivolous

because Moore waived this claim. Id.

[A] challenge to the weight of the evidence must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607(A)(1)- (3). “The purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived.” Comment to Pa.R.Crim.P. 607. If an appellant never gives the trial court the opportunity to provide relief, then there is no discretionary act that this Court can review. Commonwealth v. Thompson, 93 A.3d 478, 491 (Pa. Super. 2014).

Commonwealth v. Jones, 191 A.3d 830, 834-835 (Pa. Super. 2018)

(footnotes omitted). Further, a party cannot raise an issue for the first time

on appeal. See Pa.R.A.P. 302(a).

Here, Moore did not raise the claim in his post-sentence motion or at

sentencing. Rather, he has raised the issue for the first time on appeal.

Accordingly, we conclude Moore waived his weight of the evidence claim for

failure to raise the issue with the trial court, and we need not address it

further.

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Lastly, Moore claims his sentence is manifestly excessive. See Moore’s

Brief at 23-31. However, again, as counsel correctly notes, Moore waived this

claim and, therefore, the issue is frivolous. Id.

A challenge to the discretionary aspects of a sentence is not absolute,

but rather, “must be considered a petition for permission to appeal.”

Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation and

internal citation omitted). To reach the merits of such a claim, this Court must

determine:

(1) whether the appeal is timely; (2) whether [the defendant] preserved [the] issue; (3) whether [the defendant’s] brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329–330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013). “[I]ssues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.” Commonwealth v. Cartrette, 83 A.3d 1030,

1042 (Pa. Super. 2013) (en banc).

In the present case, Moore did file a post-sentence motion challenging

his original sentence. However, on June 13, 2018, the trial court determined

it had originally imposed an illegal sentence and resentenced Moore to a lesser

sentence, below the mitigated range. See N.T., 6/13/2018, at 4, 12-13.

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Moore did not challenge the discretionary aspects of his new sentence during

the June 13, 2018, hearing or in a post-sentence motion filed within ten days

after the imposition of the new sentence. See Pa.R.Crim.P. 720(A)(1); see

also Commonwealth v. Broadie, 289 A.2d 218, 220 (Pa. Super. 1985).

Accordingly, Moore waived any challenge to the discretionary aspects of his

sentence, and his final claim fails.8

Lastly, in accordance with Yorgey, supra, we have independently

reviewed the certified record in order to determine if counsel’s analysis

regarding the frivolous nature of the present appeal is correct. Because we

agree with counsel’s assessment that this appeal is wholly frivolous, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

8 Moreover, the claim is without merit. The trial court sentenced Moore below the mitigated range of the sentencing guidelines. The record demonstrates the trial court had the benefit of a PSI. This Court has previously held that, where the trial court has the benefit of a PSI and sentences within, or, as in this case, below the standard range of the guidelines, the sentence is appropriate under the sentencing code. Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). Thus, any challenge to the discretionary aspects of sentence would lack merit. See Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (holding sentence not manifestly unreasonable where sentencing court considered PSI, details of crime, and explained reasons for sentence); see also Moury, supra at 171.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/27/19

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