Com. v. Tounkara, D.

• Court: Superior Court of Pennsylvania
• Decided: May 29, 2026
• Docket: 1098 EDA 2024
• Status: Unpublished
• Author: Lazarus

Opinion

J-A08011-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEVON TOUNKARA : : Appellant : No. 1098 EDA 2024

Appeal from the Judgment of Sentence Entered November 3, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006624-2021

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and STEVENS, P.J.E. *

MEMORANDUM BY LAZARUS, P.J.: FILED MAY 29, 2026

Devon Tounkara appeals1 from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his convictions of

one count each of rape—forcible compulsion, 2 sexual assault,3 strangulation,4

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* Former Justice specially assigned to the Superior Court.

1 On July 15, 2025, this Court dismissed Tounkara’s appeal for failure to file a

brief. See Order, 7/15/25, at 1. On August 1, 2025, Tounkara filed an application to reinstate his direct appeal, which this Court granted on August 4, 2025. See Order, 8/4/25, at 1. Tounkara filed a compliant appellate brief on August 31, 2025.

2 18 Pa.C.S.A. § 3121(a)(1).

3 Id. at § 3124.1.

4 Id. at § 2718(a)(1). J-A08011-26

indecent assault—forcible compulsion,5 terroristic threats,6 simple assault,7

and recklessly endangering another person.8 After review, we affirm.

In light of our disposition, a lengthy recitation of the facts is

unnecessary. On July 1, 2021, Philadelphia Police Officer Michael Davis

responded to a report of sexual assault at an apartment building on the 500

block of Martin Street in Philadelphia. Upon arrival, Officer Davis located

Tounkara and T.P., the victim, in the stairwell. T.P. immediately accused

Tounkara of raping her. Officer Davis observed signs of a struggle in T.P.’s

apartment, as well as bruising and swelling on T.P.’s face and neck. As a

result, Officer Davis detained Tounkara. After Tounkara was detained, T.P.

made several statements to Officer Davis in her apartment and in the squad

car on the way to the police station. At the police station, T.P. made additional

statements to Officer Miquon Wilson, who also photographed T.P.’s injuries. 9

Ultimately, Tounkara was arrested and charged with the above-mentioned

offenses. A subsequent DNA test revealed that Tounkara’s DNA was present

5 Id. at § 3126(a)(2).

6 Id. at § 2706(a)(1).

7 Id. at § 2701(a).

8 Id. at § 2705.

9 We refer to T.P.’s statements to Officers Davis and Wilson as the “hearsay

statements.” These statements are more thoroughly set forth in the trial court’s opinion. See Trial Court Opinion, 12/31/24, at 1-3.

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inside T.P.’s rectum. Relevantly, T.P. refused to testify against Tounkara

throughout this case.

On January 18, 2023, the Commonwealth filed a motion in limine, in

which it requested that it be permitted to present Officers Davis and Wilson’s

testimony regarding the hearsay statements through the excited utterance

exception to the hearsay rule. See Motion in Limine, 1/18/23, at 1-4.

Tounkara did not file a response. On April 14, 2023, the trial court 10 granted

the Commonwealth’s motion in limine and concluded that all of T.P.’s hearsay

statements satisfied the excited utterance exception.

Later that same day, the trial court conducted a non-jury trial, after

which it found Tounkara guilty of the above-mentioned offenses. The trial

court ordered the preparation of a pre-sentence investigation report, a sexual

offender assessment, and deferred sentencing.

On November 3, 2023, the trial court conducted a sentencing hearing

and sentenced Tounkara to an aggregate sentence of 8½ to 17 years’

10 The Honorable Giovanni O. Campbell presided over the pre-trial motions filed in this case. However, the Honorable Zachary Shaffer presided over the trial. Judge Shaffer authored the instant trial court opinion. In light of our disposition, we refer to both judges as the “trial court.”

Further, we express our frustration that some of the transcripts from Judge Campbell’s motions court have not been provided to us in the certified record. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc) (it is appellant’s duty to ensure certified record is complete); see also Commonwealth v. Midgley, 289 A.3d 1111, 1120 (Pa. Super. 2023) (appellant’s failure to include needed item in certified record results in waiver of any claim that requires it).

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incarceration, two concurrent terms of 10 years’ probation, and lifetime

registration under the Sexual Offender Registration and Notification Act.11

Tounkara filed a timely post-sentence motion, which was denied by operation

of law.

Tounkara filed a timely notice of appeal and a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Tounkara now

raises the following claim for our review: “Did the trial court err in granting

the Commonwealth’s motion in limine allowing the Commonwealth to admit

testimonial hearsay evidence at trial in violation of [Tounkara]’s rights under

Crawford v. Washington[,] 541 U.S. 36 (2004) and its Pennsylvania

progeny?” Brief for Appellant, at 4 (unnecessary capitalization omitted).

In his brief, Tounkara argues that the trial court erred in concluding the

hearsay statements were admissible, while simultaneously conceding that the

Commonwealth was correct and the hearsay statements satisfy the excited

utterance exception to hearsay. See id. at 12-16; id. at 12 (Tounkara

conceding T.P.’s hearsay statements were excited utterances).

We conclude that Tounkara waived and abandoned his claims on appeal.

First, Tounkara, in his brief, has conceded that the hearsay statements were

excited utterances.12 See id. at 12. Second, Tounkara raises his Crawford

claim for the first time in his Rule 1925(b) statement. See Pa.R.A.P. ____________________________________________

11 42 Pa.C.S.A. §§ 9799.10-9799.42.

12In light of our disposition, we make no determination as to whether the hearsay statements satisfied the excited utterance exception.

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1925(b)(4)(vii); Pa.R.A.P. 302(a) (“[I]ssues not raised in the [trial] court are

waived and cannot be raised for the first time on appeal.”); see also

Commonwealth v. Williams, 900 A.2d 906, 909 (Pa. Super. 2006)

(“including an issue in a [c]oncise [s]tatement does not revive issues that

were waived in earlier proceedings”). Further, Tounkara does not direct this

Court to anywhere in the record where he preserved his Crawford claim other

than his Rule 1925(b) statement. See Williams, supra; see also

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“This Court

will not act as counsel and will not develop arguments on behalf of an

appellant.”). Accordingly, Tounkara has waived and abandoned the only

challenge he raises on appeal and, thus, we affirm his judgment of sentence.

Judgment of sentence affirmed.

Date: 5/29/2026

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