Com. v. Thompson, J.

• Court: Superior Court of Pennsylvania
• Decided: May 17, 2024
• Docket: 3162 EDA 2022
• Status: Unpublished

Opinion

J-S40042-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JERRE THOMPSON : : Appellant : No. 3162 EDA 2022

Appeal from the Judgment of Sentence Entered August 8, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003676-2021

BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED MAY 17, 2024

Appellant, Jerre Thompson, appeals from the aggregate judgment of

sentence of 111/2 to 23 months’ incarceration plus 3 years’ probation imposed

by the Court of Common Pleas of Philadelphia County following his bench trial

conviction of sexual assault and simple assault.1 For the reasons set forth

below, we affirm.

This case arises out of Appellant’s sexual activity with a woman (Victim)

without her consent on February 28, 2021 at Appellant’s house. On March 1,

2021, Appellant was charged with rape, involuntary deviate sexual

intercourse, sexual assault, simple assault, and other offenses. Appellant

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3124.1 and 2701, respectively. J-S40042-23

waived his right to a jury trial and the charges were tried at a one-day bench

trial on April 4, 2022.

At Appellant’s trial, Victim testified that she was at a bus stop at 3:00

in the morning on February 28, 2021 with no place to stay for the night and

that Appellant’s roommate invited her to stay at his and Appellant’s house.

N.T. Trial at 7-9. Victim went with the roommate and another man to

Appellant’s house and Appellant let them in. Id. at 8-11. Victim testified that

Appellant brought out a plate of methamphetamine and propositioned her to

go up to his bedroom with him and that she declined, telling him that she was

not a prostitute. Id. at 11-12. She testified that Appellant kept urging her to

go upstairs, that she did later go upstairs, and that Appellant then blocked the

door, grabbed her around the throat and told her to take off her clothes or he

would kill her. Id. at 12-16. Victim testified that Appellant punched her,

penetrated her vaginally with his penis twice, and forced her to perform oral

sex on him before letting her leave hours later and that she did not consent

to have sex with Appellant. Id. at 16-22, 29.

Victim testified that when she was able to leave, she went to the hospital

and reported the assault and that rape kit swabs were taken at the police

special victims unit. N.T. Trial at 23-26. The Commonwealth introduced in

evidence Victim’s medical records and stipulated testimony of a police officer

showing that Victim reported the assault that day and that that rape kit swabs

of Victim were collected. Id. at 77-80. The Commonwealth and Appellant

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stipulated that DNA testing of the rape kit found Appellant’s sperm in Victim’s

cervical swab. Id. at 80-83.

Victim admitted that she used heroin and methamphetamine in

Appellant’s room, and it was stipulated that she had convictions for theft,

robbery, and criminal trespass. N.T. Trial at 22, 27, 33-34. During her

testimony, the Commonwealth asked Victim why she was testifying against

Appellant and Victim testified:

Because I want to make sure that he goes to jail for what he did. I’m afraid that -- well, first of all, I’m afraid that if he gets out that he’s going to kill me.

Id. at 28. Appellant objected to this testimony and the trial court overruled

the objection on the ground that it was relevant to Victim’s state of mind. Id.

Victim’s testimony concerning when she took drugs at Appellant’s house

differed from some statements in her preliminary hearing testimony and

statement to police. Id. at 39-41, 43-48. Appellant introduced a stipulation

that the mother of Appellant’s child, who has known him for 12 years, would

testify that Appellant enjoys a good reputation as being a peaceful and non-

violent individual and introduced no other evidence. Id. at 83.

The trial court found Appellant guilty of sexual assault and simple

assault and acquitted him of the other charges. N.T. Trial at 97. On August

8, 2022, the trial court sentenced Appellant to 111/2 to 23 months’

incarceration followed by 3 years’ probation for the sexual assault conviction

and imposed no further penalty for the simple assault conviction. Sentencing

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Order. Appellant filed a post sentence motion on August 14, 2022, seeking a

new trial on the ground that the verdict was against the weight of the

evidence, which was denied by the trial court. This timely appeal followed.

Appellant raises the following two issues in this appeal: (1) whether he

is entitled to a new trial because the trial court erred in overruling his objection

to Victim’s testimony that she was afraid that Appellant would kill her if he

gets out of jail; and (2) whether he is entitled to a new trial on the ground

that the verdict was against the weight of the evidence. Neither of these

issues merits relief.

Appellant argues that Victim’s fear of him at the time of trial and her

motive for testifying were irrelevant and that the danger of prejudice from her

testimony that she was afraid that Appellant would kill her outweighed any

relevance. The admission of evidence is committed to the sound discretion of

the trial court, and this Court may reverse a ruling regarding the admission of

evidence only on a showing that the trial court abused its discretion.

Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015);

Commonwealth v. McFadden, 156 A.3d 299, 309 (Pa. Super. 2017). An

abuse of discretion is not merely an error in judgment, but can be found only

where there is an overriding or misapplication of the law or an exercise of

judgment that is manifestly unreasonable or the result of bias, prejudice, ill-

will, or partiality. Commonwealth v. Gill, 206 A.3d 459, 466-67 (Pa. 2019);

Christine, 125 A.3d at 398. Moreover, even if an abuse of discretion is

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shown, an error in the admission of evidence does not constitute reversible

error if it did not contribute to the verdict. McFadden, 156 A.3d at 309;

Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016).

Victim’s testimony that she was testifying because she was afraid that

Appellant would kill her had no significant potential to cause unfair prejudice

here, as Victim’s fear of Appellant was based on his threats and actions during

the assault, all of which were relevant and properly admitted, and there was

no issue of misidentification in light of the DNA evidence. Even assuming

arguendo that the admission of the testimony was an abuse discretion,

however, it is not reversible error because it plainly did not contribute to the

verdict in any way. This was a bench trial, not a jury trial. A trial court acting

as the factfinder is presumed to know the law, ignore prejudicial statements,

and disregard inadmissible evidence. McFadden, 156 A.3d at 309; Konias,

136 A.3d at 1022. In addition, the trial court specifically stated that this

testimony had no effect on its verdict. Trial Court Opinion at 3. Where, as

here, the trial court was the factfinder and has stated that the evidence at

issue did not have any effect on its verdict, any error in admitting that

evidence is harmless and does not constitute grounds for reversal.

Commonwealth v. Coon, 695 A.2d 794, 801 (Pa. Super. 1997) (admission

of irrelevant evidence that defendant was intoxicated in nonjury trial not

ground for new trial where trial court stated that it did not consider that

evidence), overruled on different issue, Commonwealth v. Fedorek, 946

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A.2d 93 (Pa. 2008); Commonwealth v. Hart, 414 A.2d 1071, 1073-74 (Pa.

Super. 1979) (admission of testimony in nonjury trial that witness was afraid

of defendant was not ground for new trial where trial court stated that it did

not consider that evidence).

Appellant’s second issue likewise fails. A new trial may be granted on

the ground that the verdict is against the weight of the evidence only where

the verdict was so contrary to the evidence that it shocks one’s sense of

justice. Konias, 136 A.3d at 1022; Commonwealth v. Antidormi, 84 A.3d

736, 758 (Pa. Super. 2014). Our review of the denial of a motion for a new

trial based on weight of the evidence is limited. We review whether the trial

court abused its discretion in concluding that the verdict was not against the

weight of the evidence, not whether the verdict, in this Court’s opinion, was

against the weight of the evidence. Commonwealth v. Clemons, 200 A.3d

441, 463-64 (Pa. 2019); Konias, 136 A.3d at 1022.

Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge …. One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence.

Antidormi, 84 A.3d at 758 (quoting Commonwealth v. Clay, 64 A.3d 1049,

(Pa. 2013)) (brackets omitted).

Here, the trial court concluded that its verdict that Appellant was guilty

of sexual assault and simple assault did not shock its sense of justice. Trial

Court Opinion at 4. That was not an abuse of discretion, as its verdict was

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amply supported by Victim’s testimony, which it found to be credible, and her

testimony was corroborated by the DNA test and her immediate reporting of

the assault after she left Appellant’s house. N.T. Trial at 13-22, 29, 77-83;

Trial Court Opinion at 4.

Appellant argues that the guilty verdict must be held to be against the

weight of the evidence because Victim had crimen falsi convictions and had

made inconsistent statements, because the medical records showed no

injuries, and because he had a good reputation for peacefulness. None of

these arguments has merit.

Neither the fact that a witness has crimen falsi convictions or the fact

that there are some inconsistencies between her testimony and prior

statements requires a factfinder to find that witness incredible.

Commonwealth v. Dunkins, 229 A.3d 622, 634 (Pa. Super. 2020), aff'd,

263 A.3d 247 (Pa. 2021); Commonwealth v. Smith, 181 A.3d 1168, 1187

(Pa. Super. 2018); In re C.S., 63 A.3d 351, 357-58 (Pa. Super. 2013).

Indeed, a key witness’s crimen falsi convictions and inconsistencies do not

require a court to find a guilty verdict against the weight of the evidence even

where the witness has been convicted of perjury with respect to the subject

of his testimony and the witness’s testimony is completely contrary to prior

sworn testimony. Dunkins, 229 A.3d at 634. Here, Victim’s crimen falsi

convictions were unrelated to this case and did not involve false testimony.

In addition, the inconsistencies did not relate to the details of the sexual

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assault and simple assault themselves, and Victim’s testimony on what

Appellant did to her was consistent with her prior statements. N.T. Trial at

13-22, 77-79.

Absence of evidence of physical injury to the victim does not require a

trial court to reject her credibility or find a sexual assault conviction against

the weight of the evidence. Commonwealth v. Banniger, 303 A.3d 1085,

1095-96 (Pa. Super. 2023); Commonwealth v. Gonzalez, 109 A.3d 711,

720-24 (Pa. Super. 2015). Indeed, the crime of sexual assault requires only

proof that the defendant engaged in sexual intercourse or deviate sexual

intercourse with the victim without the victim’s consent, 18 Pa.C.S. § 3124.1,

not that he used any force that would cause injury. Here, the fact that

Appellant engaged in sexual intercourse with Victim was corroborated by DNA

evidence and the lack of consent was corroborated by her prompt complaint.

Appellant’s evidence that he has a reputation for being peaceable and

non-violent likewise does not make the verdict contrary to the evidence. While

a factfinder may conclude that evidence of good character is sufficient by itself

to create a reasonable doubt, Commonwealth v. Weiss, 606 A.2d 439, 442

(Pa. 1992); Commonwealth v. Neely, 561 A.2d 1, 3 (Pa. 1989), such

evidence does not require that the factfinder find a defendant not guilty, and

where, as here, there is ample evidence of guilt, a guilty verdict is not against

the weight of the evidence, despite the defendant’s good character.

Commonwealth v. Fallon, 275 A.3d 1099, 1107-08 (Pa. Super. 2022);

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Commonwealth v. Brown, 48 A.3d 426, 432 (Pa. Super. 2012);

Commonwealth v. Price, 616 A.2d 681, 685 (Pa. Super. 1992).

For the foregoing reasons, we conclude that neither of Appellant’s issues

merits relief. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Date: 5/17/2024

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