J-S45004-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
SHAWN WILLIAMS,
Appellant No. 2388 EDA 2012
Appeal from the Judgment of Sentence July 11, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012558-2010
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 28, 2014
Shawn Williams appeals from the judgment of sentence of fifteen to
thirty years imprisonment that was imposed after he was convicted at a
nonjury trial of rape, unlawful contact with a minor, unlawful restraint, and
endangering the welfare of a child. We affirm.
The victim, A.H., was thirteen years old on August 17, 2010, the day
of the attack. The evening of August 16, 2010, A.H. was at the Philadelphia
home her sister, Monica, shared with her husband, Appellant and their baby
daughter. At approximately 11:00 p.m., Appellant and Monica began to
argue, and about one hour later, Appellant evicted Monica from the house.
She was not permitted to take either the baby or her sister with her.
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S45004-14
A.H. was watching television with her niece. Shortly after Monica left,
A.H. put her niece to bed. As A.H. was returning to the first floor to turn off
the television, Appellant came into the hallway. A.H. described what
bed my right arm and had pulled
me into the [bed]room, and he put both hands on my shoulder[s] and
Id
to av
vagina, and then placed his mouth on her vagina. A.H. continued to push
and scratch Appellant and tell him to get off her. Appellant ignored A.H.,
Id. at 29. A.H. reported that the pain fro
penis was a nine on a scale of one to ten. Id. at 46. Appellant also placed
his hands and mouth on her breasts. At that point, Appellant placed a pillow
When Appellant stopped his assault, A.H. dressed herself and retrieved
her niece, who had been crying and screaming during the crime. She went
downstairs with the child and began to watch television. Then, Appellant
he said
Id. at 30-31. Eventually, A.H. fell asleep
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August 17th. After Appellant left the house, A.H. immediately told her
mother about the assault, and they went to the police station. Police
transported the victim to the hospital, where she was physically examined.
Id. at 35. A.H.
reported that, at the hospital, the pain continued to be a nine. Id. at 47.
There were various stipulations entered into evidence after A.H.
Id. at 74. A rape test
kit was administered at the hospital, the hospital gave the kit to the Special
or hair up
taken from the residence but not tested.
Finally, it was stipulated that two police officers proceeded to
observed the defendant walk up to the front porch of the property, look
Id. at 74. Police followed Appellant
in their car, and Appellant began to run away. He was apprehended after a
brief pursuit.
Based on this evidence, Appellant was convicted of the above-
described charges. Appellant was sentenced to ten to twenty years
incarceration for rape and a consecutive term of five to ten years in jail for
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unlawful contact with a minor. Concurrent sentences were imposed on the
other two crimes at issue herein. Appellant filed a motion to modify his
sentence. This appeal followed its denial. Appellant raises the following
issues on appeal: of the right to trial by jury was knowing, voluntary, and intelligent?
B. Was the evidence sufficient to sustain any of the guilty verdicts entered by the trial court?
C. Were the guilty verdicts entered by the trial court, against the great weight of the evidence where the trial court did not provide
based on a foundation of reason and not caprice or partiality?
D. Did the trial court . . . abuse its discretion in imposing an excessive sentence?
Since Appellant would be entitled to discharge rather than a new trial if
he prevails in his sufficiency challenges, we address his second issue at the
outset.1 See Commonwealth v. Nypaver, 69 A.3d 708 (Pa.Super. 2013).
We review a sufficiency argument pursuant to the following principles:
The standard we apply when 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 ____________________________________________
were waived. Appellant included a challenge to the sufficiency of the evidence in his Pa.R.A.P. 1925(b) statement, and the trial court addressed the sufficiency of the evidence supporting the verdict.
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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. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence. Furthermore, when reviewing a sufficiency claim, our Court is required to give the prosecution the benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Slocum, 86 A.3d 272, 275 (Pa.Super. 2014) (citation
omitted).
Appellant was convicted of rape by forcible compulsion. A person
into her vagina by force. He challenges that conviction by maintaining that
concedes that the elements of unlawful contact with a minor were established
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by the Commonwealth.2 t 23. To challenge this conviction,
which she was attacked, the number of bedrooms in the house, and whether
or not she called her mother following the attack.
the rape and unlawful contact offenses are actually challenges to the weight
rather than sufficiency of the evidence. Commonwealth v. W.H.M., Jr.,
d
preliminary hearing testimony relate to the weight of the evidence, which
2 The offense of unlawful contact with a minor is outlined in 18 Pa.C.S. § 6318(a), which provides in pertinent part:
(a) Offense defined.--A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).
18 Pa.C.S. § 6318(a)(1). Rape is an offense set forth in chapter 31 of the Crimes Code.
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also is for the factfinder to determine. Commonwealth v. Stays, 70 A.3d
1256 (Pa.Super. 2013).
since i
credibility. Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013)
Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super.
is free to believe all, part, or none of the evidence, and to assess the
credibility of the witnesses. . . . It is not for this Court to overturn the
credibility determinations of the fact-
that Appellant is mistaken since the victim had two lacerations on her labia
when she was examined following the incident. While Appellant makes an
obtuse argument that the Commonwealth did not prove that the lacerations
were caused by an adult male penis, this position is a non sequitur. The
laceratio
supported her allegations.
Secondarily, we note that the physical evidence neither supported nor
since the kit was lost, and there was no other DNA testing conducted. The
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that Appellant pulled her pajama bottoms down to her ankles before she was
raped.
testimony of a sexual assault victim, if believed by the trier of fact, is
Commonwealth v. Andrulewicz, 911
A.2d 162, 166 (Pa.Super. 2006) (quoting Commonwealth v. Charlton, 902
A.2d 554, 562 (Pa.Super. 2006)). Thus, the fact that there was no physical
render the evidence insufficient to support the rape and indecent assault
convictions.
Appellant next challenges his unlawful restraint conviction. 3 A person
circumstances exposing him to risk of serious bo
§ 2902(a)(1), (b)(1). In connection with this offense, Appellant maintains
that the record failed to establish that A.H. sustained serious bodily injury
after being forcibly raped. As noted by the Commonwealth, Appellant ____________________________________________
3 Appellant raises some of the same arguments with respect to the unlawful restraint and child endangerment convictions as he did regarding the rape and unlawful contact offenses. Our resolution of those positions as to the rape and unlawful contact crimes applies with equal force to any identical position that Appellant raises to the unlawful restraint or child endangerment charges.
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misconstrues the elements of this crime. The victim does not have to be
seriously injured to support an unlawful restraint conviction; rather, the
perpetrator must expose the victim to a risk of serious bodily injury.
In Commonwealth v. Byers, 502 A.2d 1324 (Pa.Super. 1986), we
noted that unlawful restraint is committed when a defendant restrains
another and exposes the victim to a risk of serious bodily injury. We
injury to the victi Id. at 1331. We more specifically delineated in
Commonwealth v. Kerrigan, 920 A.2d 190 (Pa.Super. 2007), that a victim
of unlawful intercourse is exposed to a risk of numerous venereal diseases as
ent that he did not
expose A.H. to a risk of serious bodily injury when he forcibly raped the
victim.
Appellant also assails his child endangerment conviction. The elements
or other person supervising the welfare of a child under 18 years of age, or a
person that employs or supervises such a person, commits an offense if he
knowingly endangers the welfare of the child by violating a duty of care,
n, Appellant suggests that the evidence did not
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We disagree. The victim was thirteen years old, and the offense
occurred while she was staying
evidence was that Appellant evicted the only other adult in the home, Monica,
and refused to allow Monica to take her sister. Hence, the evidence was
sufficient to establish that Appellant was the adult in charge and was
supervising A.H. when he raped her. See Commonwealth v. Trippett, 932
A.2d 188, 195 (Pa.Super. 2007).
properly waive his right to a jury trial. Pa.R.Crim.P. 620 provides:
In all cases, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending, and elect to have the judge try the case without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge, and the defendant's attorney as a witness.
chosen from members of the community thereby producing a jury of his
peers; (b) any verdict rendered by a jury must be unanimous, that is, all
twelve jurors must agree before they can return a verdict of guilty; and (c)
Commonwealth v. Mallory, 941 A.2d 686, 690 (Pa. 2008).
The colloquy conducted by the trial court under Pa.R.Crim.P. 620 does
not have to include an on-the-record colloquy concerning the fundamentals
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of a trial by jury. Mallory, supra. A written colloquy will suffice. Id.
Herein, Appellant signed an extensive written document providing a detailed
explanation of all the rights that he was waiving by proceeding to a non-jury
trial. That document encompassed the three concepts in question.
Additionally, Appellant specifically signed yes to the following paragraph:
Do you understand that if you are tried by a jury you cannot be convicted unless all twelve jurors are convinced beyond a reasonable doubt that you are guilty? This is because a jury verdict is required by law to be unanimous which means that all twelve jurors must agree on the verdict, thus if all twelve vote
Written Jury Trial Waiver Colloquy, 5/24/11, at ¶ 35.
The written waiver was supplemented by an oral colloquy conducted
by defense counsel in front of the trial judge that actually delineated two of
the three fundamental rights involved in a jury trial.
THE COURT: I have in front of me a written colloquy waiver form that has been completed, signed by your client. Would you do a brief oral colloquy referencing this form that you went over with him attached.
MR. GAY [defense counsel]: Mr. Williams, you signed a form indicating to the Court that you're aware of your right to a jury trial, that you're choosing today to proceed by way of nonjury trial and have the Judge decide this case. Do you understand that?
THE DEFENDANT: Yes.
MR. GAY: Did you and I discuss that prior to you appearing here today?
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MR. GAY: Well, in order for someone to give up their right to a jury trial, of course, they need to be informed exactly what is involved in a jury trial, and so I'm going to go over some of the things on that form and ask, first of all, did you and I go over that form?
MR. GAY: And did you place your initials on each page of this form and sign on the fourth page?
MR. GAY: Now, if I were to ask each one of those questions that were on that form to you again, would your answers be the same?
MR. GAY: Now, you understand that you do have a constitutionally guaranteed right to a jury trial?
MR. GAY: That's guaranteed by [the] federal Constitution as well as [the] Pennsylvania Constitution; you understand that?
MR. GAY: If we were to proceed by way of jury trial, we would bring approximately 40 people selected at random into this courtroom, and you and I and the District Attorney would go through those people to pick 12 people plus two alternates to be on the jury; you understand that?
MR. GAY: You understand that the reason that you would have the two alternates is just in case one of the original 12 jurors was unable to sit for the duration of the trial, then we would have one of those alternates fill in for them, understand?
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MR. GAY: During the jury selection process, do you understand that you would have an unlimited number of strikes for what we call cause, if you could prove someone could not be fair in this particular case?
MR. GAY: You also understand that you also have seven peremptory [strikes] that you can remove prospective jurors from the jury panel if you're not comfortable with them as a juror, but the Court has decided that they could be fair; you understand?
MR. GAY: And you understand that you could use those peremptory challenges as long as you're not discriminating against someone on the basis of race, religion, national [origin.]
MR. GAY: Have you ever been diagnosed with a mental illness of any sort?
THE DEFENDANT: No.
MR. GAY: Are you taking any medication today?
MR. GAY: I know this is a silly question, but are you under the influence of any alcohol or drugs as we're here in court today?
MR. GAY: So do you understand everything that I have explained to you so far?
MR. GAY: Any questions for either me, the District Attorney or Judge Trent?
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THE COURT: All right. I'm satisfied that the waiver is knowing, intentional and voluntary.
N.T. Trial, 5/24/11, at 6-11.
Thus, the only fundamental right not encompassed by the oral colloquy
his
jury-trial waiver was defective in that trial counsel, during the oral colloquy,
forgot to inform Appellant that a jury verdict must be unanimous. However,
that omission was vitiated by the fact that Appellant was told about that
concept in the written colloquy. Commonwealth v. Smith, 450 A.2d 973,
explanation of the unanimity and defendant-participation requirements [for a
jury trial], the written form signed by respondent, his counsel, and the court
states that respondent was indeed fully aware of these requirements. This
Hence, no relief is due.
Appellant also raises a challenge to the weight of the evidence. We
preserved since, after he was convicted and prior to sentencing, Appellant
filed a motion for extraordinary relief raising the weight issue. Pa.R.Crim.P.
be raised with the trial judge in a motion for a new trial: (1) orally, on the
record, at any time before sentencing; (2) by written motion at any time
before sentencing; or (3) in a post-
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Our standard of review in this context is extremely limited and well-
ensconced:
A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. [Commonwealth v.] Widmer, 744 A.2d [745,] 751 52 [Pa. 2000]; Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1189 (1994). A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Widmer,
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 Id. at 320, 744 A.2d at 752. It has often been stated
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 Brown, 648 A.2d at 1189.
An appellate court's standard of review when presented with a weight
of the evidence claim is distinct from the standard of review applied by the
trial court:
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. Brown, 648 A.2d at 1189. 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 when reviewing a trial court's determination that the verdict is against the weight of the evidence. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). 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.
Widmer, 744 A.2d at 753.
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Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa.Super. 2014)
(quoting Commonwealth v. Clay, 64 A.3d 1049, 1054 55 (Pa. 2013)).
The Trial Court in rendering its verdict of guilt at the time of trial, did not issue any findings of fact, or conclusions of law that would permit a reviewing court to adequately determine whether the verdict was based on a foundation of reason or whether it was based on prejudice, personal motivations, caprice or arbitrary actions.
The fundamental flaw in this position is that there is no legal
requirement that a trial court, acting as factfinder in a criminal proceeding,
issue findings of fact and conclusions of law. Identical to a jury, the trial
judge in a criminal proceeding merely issues a general verdict of guilt as to
each offense charged against the defendant.
Trial Court Opinion, 11/13/13, at 6.
Id. As outlined above, the trial judge,
l as that of
Appellant. Page, supra
Blackham, supra at 320 (The
weight of the evidence is exclusively for the finder of fact, which is free to
believe all, part, or none of the evidence, and to assess the credibility of the
witnesses. . . . It is not for this Court to overturn the credibility
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determinations of the fact-
weight claim.
Appellant also maintains that the convictions are in contradiction to
the physical evidence. We have analyzed and rejected this position in
connection with the sufficiency positions. Not only was there physical
lacerations, there was no physical proof to controvert it. The physical
evidence neither proved nor disproved the allegations herein.
sentence imposed. We have articulated on numerous occasions that:
Before this Court may reach the merits of a challenge to the discretionary aspects of a sentence, we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence see Pa.R.A.P. 2119(f); and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. If the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013) (citation
The appeal is timely. Appellant maintained in his post-sentence
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Motion for Reconsideration and/or Modification of Sentence, 7/20/14, at ¶¶
court sentenced [Appellant] to a sentencing range above the aggregate[d]
range with no consideration for the mitigation [evidence] presented by
11.
statement, however, recites incorrect facts. He alleges that his prior record
y either the
prior record score of one, (1) was based in part on two prior convictions for
finding of forcible compulsion under the statutes mandated imposition of a
Id.
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We are aware of no mandatory minimum sentence for rape by forcible
compulsion, and § 3121 contains none. The outlined sentence of ten to
twenty years imprisonment is not a mandatory minimum sentence; rather, it
is the maximum sentence that can be imposed for rape by forcible
compulsion. See 18 Pa.C.S. § 3121(a)(1) (rape by forcible compulsion is a
first-degree felony); 18 Pa.C.S. § 1103(1) (maximum sentence for a first-
shall impose a minimum sentence of confinement which shall not exceed
one-
ntence for rape by
forcible compulsion resulted from imposition of a sentence that was above
the guidelines and his consecutive sentence of five to ten years for unlawful
contact was within the standard range. The sentences on the unlawful
restraint and child endangerments offenses were imposed concurrently. The
sentencing court had the benefit of a pre-sentence report and mental health
of the guidelines called for a minimum sentence of seven years. The
11. The sentence imposed on the unlawful contact conviction was within the
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standard range since the unlawful contact charge was also graded as a first-
degree felony. 18 Pa.C.S. § 6318(b)(1).
The trial court addressed the allegation raised in the Pa.R.A.P. 1925(b)
statement, which was that the sentence on rape exceeded the guidelines
ranges, was excessive, and was imposed without consideration of mitigating
evidence. The court reported that the claim that it did not consider
false. The court certainly appreciated the
evidence presented by the defense, including the testimony of numerous
-12. It noted that it
Id. at
12.
On appeal, Appellant does not aver that the court failed to justify its
decision to deviate from the guidelines. Rather, it is clear that his sole
challenge on appeal is to the fact that the sentence for unlawful contact was
imposed consecu -31.
He suggests that the fifteen to thirty year sentence was manifestly excessive
since the ten to twenty year term for rape was sufficient for the crimes in
ile Appellant did preserve a challenge
to the consecutive nature of the sentence in his post-sentence motion, it is
not contained in the Pa.R.A.P. 1925(b) statement. Even if the present
sentencing issue had been contained in that statement, it would not present
a substantial question permitting appellate review. We have observed that
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Commonwealth v. Harvard, 64 A.3d 690,
703 ly speaking, the court's exercise of
discretion in imposing consecutive as opposed to concurrent sentences is not
viewed as raising a substantial question that would allow the granting of
Commonwealth v. Gonzalez-Dejusus, 994 A.2d
595, 598 (Pa.Super. 2010).
Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (citations
omitted). Herein, Appellant forcibly raped a thirteen-year old child while she
was under his care and then threatened to kill her and her family if she
reported the crime. In light of the criminal conduct at issue herein, we
cannot conclude that the aggregate sentence of fifteen to thirty years is
excessive, on its face, and we find that Appellant failed to raise a substantial
question as to the appropriateness of the sentence imposed.
Commonwealth v. Mastromarino, 2 A.3d 581 (Pa.Super. 2010);
Gonzalez-Dejusus, supra; cf. Dodge, supra (substantial question was
raised where aggregate sentence of forty years, seven months to eighty-one
years and two months incarceration resulted from imposition of consecutive
sentences on victimless property crimes).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/28/2014
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