Com. v. Hart, W. ( 2017 )


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  • J. A32001/16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    :
    v.                     :
    :
    WILLIE HART,                               :
    :
    Appellant         :     No. 381 EDA 2016
    Appeal from the Judgment of Sentence January 8, 2016
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No.: CP-51-CR-0013669-2013
    BEFORE: DUBOW, RANSOM, AND PLATT, JJ.*
    MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 24, 2017
    Appellant, Willie Hart, appeals from the Judgment of Sentence entered
    by the Philadelphia County Court of Common Pleas following his convictions
    after a bench trial of Rape by Forcible Compulsion, Sexual Assault, Incest,
    Indecent Assault, Indecent Exposure, and Simple Assault.1        After careful
    review, we affirm Appellant’s convictions, vacate Appellant’s Judgment of
    Sentence, and remand for resentencing.
    The trial court stated the relevant facts in its Pa.R.A.P. 1925(a)
    Opinion as follows:
    In March of 2013, [M.M.] left her husband after being physically
    abused by him for many years. With little money and no place
    *
    Retired Senior Judge Assigned to the Superior Court.
    1
    18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3124.1; 18 Pa.C.S. § 4302; 18
    Pa.C.S. § 3126; 18 Pa.C.S. § 3127; and 18 Pa.C.S. § 2701, respectively.
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    to live, she turned to her father, [Appellant,] for support. She
    accepted his offer to live with him until she got back on her feet.
    Shortly after she moved in, [Appellant] started to go into her
    room as she slept. He would crawl into her bed, get on top of
    her, and then vaginally rape her. This occurred on multiple
    occasions. The last sexual assault occurred on October 9, 2013.
    During the months she resided with [] Appellant, [M.M.] tried to
    stay out of the house as much as possible. When she was in the
    home, she attempted to barricade herself in her bedroom by
    blocking her door so the Appellant could not get in.
    On October 11, 2013[,] Appellant became embroiled in a verbal
    altercation with the victim over her boyfriend.        Appellant
    threatened to kill her, grabbed her by her hair[,] and slammed
    her head into the wall. When she tried to escape [] Appellant by
    fleeing into her bedroom, he followed her, grabbed her legs[,]
    and pulled her off the bed. He punched her in the head and face
    multiple times. When the police arrested [Appellant,] the victim
    said to the police “Please don’t let him hurt me anymore. Please
    protect me.” She also disclosed to them that [] Appellant had
    been raping her for months.
    *     *     *
    On October 11, 2013[,] Appellant was arrested and charged with
    Rape, Sexual Assault, Incest[,] and related offenses. On May
    19, 2015, following a bifurcated waiver trial before this Court,
    Appellant was found guilty of Rape, Sexual Assault, Incest,
    Indecent Assault, Indecent Exposure[,] and Simple Assault. The
    matter was continued for a Megan’s Law assessment.             On
    January 8, 2016[,] Appellant was determined to be a Sexually
    Violent Predator and given his registration and reporting
    protocols. That same day he was sentenced to thirty (30) to
    sixty (60) years[’] imprisonment.       On January 20, 2016[,]
    Appellant filed a timely Notice of Appeal to the Superior Court of
    Pennsylvania and pursuant to Pa.R.A.P. 1925(b) Appellant was
    instructed to file a Statement of Errors Complained of on Appeal.
    Appellant requested additional time to respond to the 1925(b)
    order due to the unavailability of transcripts. That request was
    granted.     Appellant filed his 1925(b) Statement of Matters
    Complained of on Appeal on March 16, 2016.
    On March 14, 2016, following an initial review of the file, this
    Court discovered that the sentence imposed was in error and
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    wrote to the Superior Court requesting that the matter be
    remanded to correct the sentencing error. The Commonwealth
    responded on March 21, 2016[,] with a letter stating they were
    not opposed to the remand. Appellant filed an Application for
    Remand on March 27, 2016. That request was denied on May 3,
    2016.
    Trial Court Opinion, 5/25/16, at 1-3.
    Appellant presents six issues for our review:
    [1.] Where there was no evidence of forcible compulsion, was
    the evidence sufficient to find [Appellant] guilty beyond a
    reasonable doubt of Rape by Forcible Compulsion?
    [2.] Where the complaining witness, age 40 and competent,
    testified incoherently, inter alia, that “I don’t like black people”
    and was incapable of testifying about when any alleged sexual
    assault occurred or detailing any sexual assault, are guilty
    verdicts on all charges against the weight of the evidence,
    particularly where verdicts were rendered nine months after the
    facts finder’s [sic] last opportunity to assess credibility?
    [3.] Where Commonwealth witness John Fisher provided hearsay
    testimony under the “prompt complaint” exception, and there
    was no evidence whatsoever as to when the competent adult
    complainant informed this witness of the alleged sexual
    assault(s), did the [t]rial [c]ourt err in allowing this “prompt
    complaint” testimony over [Appellant’s] objections?
    [4.] Where [Appellant] was promised by the Commonwealth and
    the [t]rial [c]ourt that “No mandatories would be involved,”
    during his jury waiver colloquy, was his waiver of his right to a
    jury trial knowing, intentional[,] and voluntary?
    [5.] Where the Commonwealth expressly and repeatedly advised
    it would not be seeking mandatory sentences, was [Appellant’s]
    sentence of 25-50 years on the charge of Rape under 42
    Pa.S.C.[] § 9718.2(a)(1) improper?
    [6.] Did the [t]rial [c]ourt abuse the discretionary aspect of
    sentencing by imposing an aggregate sentence of 30-60 years[’]
    incarceration while failing to consider [Appellant’s] age, mental
    state[,] and other sentencing factors on the record?
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    Appellant’s Brief at 6-7.
    In his first issue, Appellant avers that, even “accepting all of the
    Commonwealth’s evidence as true, there was no evidence presented of the
    forcible compulsion necessary for a rape conviction.” Appellant’s Brief at 25.
    We review challenges to the sufficiency of the evidence by considering
    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.”
    Commonwealth v. Melvin, 
    103 A.3d 1
    , 39 (Pa. Super. 2014). The trier of
    fact—while passing on the credibility of the witnesses and the weight of the
    evidence—is free to believe all, part, or none of the evidence.    
    Id. at 40
    .
    Moreover, the trier of fact may base a conviction solely on circumstantial
    evidence. 
    Id.
     In conducting this review, the appellate court may not weigh
    the evidence and substitute its judgment for that of the fact-finder. 
    Id. at 39-40
    .
    Section 3121(a)(1) of the Crimes Code defines Rape by Forcible
    Compulsion as follows:
    (a) Offense defined.--A person commits a felony of the first
    degree when the person engages in sexual intercourse with a
    complainant:
    (1) By forcible compulsion.
    18 Pa.C.S. § 3121(a)(1).
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    The Crimes Code defines “forcible compulsion” in relevant part as
    “[c]ompulsion by use of physical, intellectual, moral, emotional[,] or
    psychological force, either express or implied.” 18 Pa.C.S. § 3101.
    It is well-established that in order to prove the “forcible
    compulsion” component, the Commonwealth must establish,
    beyond a reasonable doubt, that [Appellant] used either physical
    force, a threat of physical force, or psychological coercion, since
    the mere showing of a lack of consent does not support a
    conviction for rape by forcible compulsion. In [Commonwealth
    v. Rhodes, 510 A.2d. 1217 (Pa. 1986)], our Supreme Court
    stated that forcible compulsion includes “not only physical force
    or violence, but also moral, psychological[,] or intellectual force
    used to compel a person to engage in sexual intercourse against
    that person’s will.” Rhodes, [510 A.2d at 1226]. Further, the
    degree of force required to constitute rape is relative and
    depends on the facts and particular circumstances of a given
    case.
    Commonwealth v. Eckrote, 
    12 A.3d 383
    , 387 (Pa. Super. 2010) (some
    citations omitted).
    Thus, the element of “forcible compulsion” denotes a perpetrator’s use
    of superior force, physical or non-physical, to compel a person to engage in
    sexual intercourse against that person’s will.     Rhodes, supra at 1226.
    Stated another way, one can commit Rape by the application of superior
    psychological or emotional force, whether express or implied, in the
    complete absence of physical violence. Commonwealth v. Gonzalez, 
    109 A.3d 711
    , 720 (Pa. Super. 2015).       It is not necessary to prove that a
    perpetrator physically overpowered the complainant. Id. at 721; see also
    18 Pa.C.S. § 3107 (Resistance to physical force is not necessary to show
    forcible compulsion.).
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    Moreover, this Court has held:
    that the degree of force involved in rape is defined, not in terms
    of the physical injury to the victim, but in terms of the effect it
    has on the victim’s volition. Accordingly, the force necessary to
    support convictions for rape need only be such as to establish
    lack of consent and to induce the [victim] to submit without
    additional resistance. . . .
    Commonwealth v. Ables, 
    590 A.2d 334
    , 337 (Pa. Super. 1991) (citations
    and quotations omitted).
    To determine whether Appellant’s use of physical or psychological
    coercion is sufficient to have been compulsive, we examine the totality of
    the circumstances, including such factors as:
    the respective ages of the victim and the accused, the respective
    mental and physical conditions of the victim and the accused,
    the atmosphere and physical setting in which the incident was
    alleged to have taken place, the extent to which the accused
    may have been in a position of authority, domination[,] or
    custodial control over the victim, and whether the victim was
    under duress.
    Gonzalez, supra at 721 (quotation and emphasis omitted).
    A complainant’s testimony as to her state of duress and apprehension,
    as well as the defendant’s treatment of her, can be sufficient to sustain the
    verdict.   See Commonwealth v. Rough, 
    418 A.2d 605
    , 608 (Pa. Super.
    1980); Commonwealth v. Castelhun, 
    889 A.2d 1228
    , 1232 (Pa. Super.
    2005) (“[t]he uncorroborated testimony of the complaining witness is
    sufficient to convict a defendant of sexual offenses.” (citations and
    quotations omitted)).
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    The trial court rejected Appellant’s sufficiency challenge, concluding, in
    summary,       that there    was sufficient   evidence   to   support Appellant’s
    conviction for Rape by Forcible Compulsion because the victim testified that
    Appellant raped her six times from March to October of 2013, and disclosed
    her father’s crimes to John Fisher, her insurance agent, as well as to
    Detective Peter Marrero and a nurse.           We agree with the trial court’s
    assessment.
    The victim testified that Appellant forcibly raped her on at least six
    occasions.      Detective Marrero testified that, in responding to the call to
    Appellant’s home, he observed the bleeding victim cowering near the front
    door, trembling, and clutching her chest, which he will “never forget because
    it is the most fearful I’ve ever seen someone. [] Every time we spoke, she
    like shivered. She was absolutely terrified.” N.T. Trial, 5/19/15, at 34-35.
    In support of his sufficiency challenge, Appellant isolates certain self-
    serving portions of the victim’s testimony, and utterly ignores the important
    context of the controlling nature of his relationship with his vulnerable
    daughter. Viewing the totality of the evidence in the light most favorable to
    the Commonwealth as the verdict winner, it is clear that the Commonwealth
    proved each element of the offense. Appellant’s sufficiency challenge, thus,
    fails.
    Appellant next avers that the jury’s verdict was against the weight of
    the evidence because of a “nine month delay i[n] assessing credibility” and
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    because     the   victim’s   testimony    was   “rife   with   inconsistency   and
    incoherence[.]” Appellant’s Brief at 32.
    When considering challenges to the weight of the evidence, we apply
    the following precepts:
    The weight of the evidence is exclusively for the finder of
    fact, who is free to believe all, none or some of the
    evidence and to determine the credibility of witnesses.
    Appellate review of a weight claim is a review of the
    exercise of discretion, not the underlying question of
    whether the verdict is against the weight of the evidence.
    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. 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 and that a new trial should be granted in the
    interest of justice.
    Commonwealth v. Talbert, 
    129 A.3d 536
    , 545-46 (Pa. Super. 2015),
    appeal denied, 
    138 A.3d 4
     (Pa. 2016) (quotation marks and citations
    omitted).
    “Resolving contradictory testimony and questions of credibility are
    matters for the [finder of fact].”   Commonwealth v. Hopkins, 
    747 A.2d 910
    , 917 (Pa. Super. 2000). Further, “[i]n order for a defendant to prevail
    on a challenge to the weight of the evidence, the evidence must be so
    tenuous, vague[,] and uncertain that the verdict shocks the conscience of
    the court.” Talbert, supra at 546 (quotation marks and citation omitted).
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    It is well-settled that we cannot substitute our judgment for that of the trier
    of fact. Id. at 545.
    The trial court addressed Appellant’s weight of the evidence challenge,
    including the delay in proceedings, as follows:
    The verdict in the instant case is not at all contrary to the
    evidence and does not shock one’s sense of justice. Error was
    not committed.
    *     *     *
    Appellant asserts that this Court erred in allowing a nine-month
    bifurcation of his waiver trial.     He argues that “had the
    demeanor and substance of complainant’s testimony been fresh
    in the fact-finder’s mind at the time of the verdict, the outcome
    would have been very different.” While this is pure speculation
    with no support in the record, this Court had no difficulty
    recalling the demeanor and substance of the complainant’s
    testimony. Based on the overwhelming evidence of guilt there is
    no scenario which would have changed the outcome. Moreover,
    this Court made every effort to timely dispose of this case. The
    matter was bifurcated because a Commonwealth witness was
    not available the day of trial. There was no objection to the
    bifurcation. Thereafter the matter was listed for the conclusion
    of the testimony on October 6, 2014[,] where the defense
    requested a continuance; on November 24, 2014[,] where the
    defense requested a continuance; on January 20, 2015[,] where
    there was a joint request; on February 2, 2015[,] where there
    was a joint request; May 15, 2015[,] where there was a
    Commonwealth request[;] and May 19, 2015[,] where the trial
    resumed and testimony was concluded. While the delay was
    unfortunate, it in no way prejudiced Appellant and no error
    occurred.
    Trial Court Opinion at 6 (citations omitted). We agree with the trial court’s
    assessment.
    Appellant essentially asks us to reassess the credibility of the victim
    and reweigh the testimony and evidence presented at trial. Appellant’s Brief
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    at 30-37. We cannot and will not do so. The trial judge found credible the
    victim’s testimony that Appellant forcibly raped her, which was corroborated
    by other testimony and evidence. Thus, the verdict was not so contrary to
    the evidence as to shock the court’s conscience, and the trial court properly
    denied Appellant’s weight of the evidence claim.
    Appellant next claims that the trial court erred in permitting John
    Fisher to testify at trial as a “prompt complaint” witness under Pa.R.E.
    613(c) because “there is no way to ascertain the length of the delay in
    reporting by the [victim]” since Fisher “had no idea when the [victim]
    complained to him, not even the correct year.” Appellant’s Brief at 37-38.
    The “[a]dmission of evidence is within the sound discretion of the trial
    court and will be reversed only upon a showing that the trial court clearly
    abused its discretion.” Commonwealth v. Tyson, 
    119 A.3d 353
    , 357 (Pa.
    Super. 2015) (citation and quotation omitted). “[A]n abuse of discretion is
    not merely an error of judgment, but is rather the overriding or
    misapplication of the law, or the exercise of judgment that is manifestly
    unreasonable, or the result of bias, prejudice, ill-will[,] or partiality, as
    shown by the evidence or the record.” Commonwealth v. Cameron, 
    780 A.2d 688
    , 692 (Pa. Super. 2001) (citation and quotation omitted).
    With respect to the prompt complaint exception, this Court has stated
    the following:
    Pennsylvania Rule of Evidence 613(c)(1) allows evidence of prior
    consistent statements to rebut an express or implied charge of
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    fabrication, bias, improper influence or motive, or faulty
    memory. In cases involving sexual assault, Rule 613 authorizes
    the Commonwealth to present evidence in its case-in-chief of a
    prompt complaint by the victim because the alleged victim’s
    testimony is automatically vulnerable to attack by the defendant
    as recent fabrication in the absence of evidence of hue and cry
    on her part. Evidence of a complaint of a sexual assault is
    competent evidence, properly admitted when limited to establish
    that a complaint was made and also to identify the occurrence
    complained of with the offense charged.
    Commonwealth v. Bryson, 
    860 A.2d 1101
    , 1104 (Pa. Super. 2004) (en
    banc) (citations and quotations omitted).         See also Daniel J. Anders,
    Ohlbaum on the Pennsylvania Rules of Evidence § 613.31 (2016 ed.
    LexisNexis Matthew Bender).
    The trial court addressed Appellant’s evidentiary challenge as follows:
    Next[,] Appellant complains that this Court erred in admitting
    the testimony of John Fisher who testified as a prompt complaint
    witness.    The admissibility of evidence is within the sound
    discretion of the trial court and those evidentiary rulings will not
    be disturbed absent an abuse of that discretion. Fisher testified
    that he met the complainant at her father’s house. She came
    out to his car hysterical, incoherent[,] and distraught. It was not
    until she settled down that she told him her father had raped
    her. Although she did not state when he had raped her, the
    witness surmised based on her emotional condition that it had
    occurred the day before. This Court admitted the testimony of
    Fisher as an exception to the hearsay rule under the prompt
    complaint rule. In cases involving sexual assault, Rule 613
    authorizes the Commonwealth to present evidence in its case-in-
    chief of a prompt complaint by the victim because the alleged
    victim’s testimony is automatically vulnerable to attack by the
    defendant as recent fabrication in the absence of hue and cry on
    her part. Moreover, Fisher’s testimony corroborated the victim’s
    testimony in relevant parts.
    Trial Court Opinion at 6-7 (citations omitted).
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    We agree with the trial court’s assessment. Our review of the certified
    record shows that the trial court properly admitted Fisher’s testimony
    because the surrounding circumstances of the disclosure, including the
    content   of   the   victim’s   statements     and   her   demeanor,   sufficiently
    demonstrated the promptness of the complaint. It was within the province
    of the fact-finder to determine the weight and credibility of that testimony.
    The trial court did not abuse its discretion in admitting Fisher’s testimony.
    As a result, Appellant’s third issue merits no relief.
    Appellant’s next two issues pertain to the imposition of a mandatory
    minimum sentence, in derogation of his jury waiver agreement. Appellant
    contends that the trial court improperly imposed a mandatory minimum
    sentence pursuant to 42 Pa.C.S. § 9718.2 because he had waived his right
    to a jury trial in exchange for the Commonwealth’s promise not to pursue
    any mandatory minimum sentences. Appellant’s Brief at 39-43. Appellant
    also argues that the imposition of the mandatory minimum shows that his
    waiver of his right to a jury trial was not knowing, intentional, and voluntary.
    He is essentially seeking the “benefit of his bargain.”
    The Commonwealth and the trial court agree with Appellant that the
    trial court improperly imposed the mandatory minimum sentence and that
    this matter should be remanded for resentencing in accordance with the
    terms of the original waiver agreement.
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    “In determining whether a particular [] agreement [between a
    defendant and the Commonwealth] has been breached, we look to what the
    parties to [the] agreement reasonably understood to be the terms of the
    agreement.”    Commonwealth v. Hainesworth, 
    82 A.3d 444
    , 447 (Pa.
    Super. 2013) (citation and quotation marks omitted). “Such a determination
    is made based on the totality of the surrounding circumstances, and any
    ambiguities in the terms of the [] agreement will be construed against the
    Commonwealth.” 
    Id.
     (citation and quotation marks omitted).
    The trial court addressed Appellant’s sentencing issues as follows:
    Finally, Appellant raises a host of issues directed at his sentence.
    He argues that it was an error of law to accept his waiver of a
    jury trial because it was not knowing, intelligent[,] and
    voluntary. This argument is belied by the record. This Court
    conducted an on-the-record colloquy with the Appellant. In
    addition, counsel went over the written waiver colloquy form
    with Appellant in the courtroom and Appellant acknowledged
    going over the form with his attorney and understanding the
    rights he was giving up. That signed document was made part
    of the record in these proceedings. The waiver of a jury trial
    was knowing, intelligent[,] and voluntary.
    However, the sentence imposed was improper.          During the
    waiver colloquy, the Commonwealth clearly indicated they would
    not be seeking the mandatory minimum sentence for any of the
    charges. The fact that at sentencing the Commonwealth sought
    and received a mandatory sentence, renders the sentencing
    hearing a nullity and the matter should be remanded for
    sentencing consistent with the terms agreed upon during the
    waiver colloquy. As to all other aspects of Appellant’s appeal[,]
    the [J]udgment of [S]entence should be affirmed.
    Trial Court Opinion at 7-8 (citations omitted).
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    Our review of the certified record confirms that Appellant must be
    resentenced in accordance with the terms of his original agreement with the
    Commonwealth: that is, without consideration of the mandatory minimum
    sentencing provision pursuant to 42 Pa.C.S. § 9718.2.
    Because we are remanding for resentencing, we will not address
    Appellant’s remaining issue.
    Appellant’s convictions for Rape by Forcible Compulsion, Sexual
    Assault, Incest, Indecent Assault, Indecent Exposure, and Simple Assault
    affirmed. Judgment of Sentence vacated. Case remanded for resentencing
    only. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/24/2017
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