Com. v. Harris, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAHUL HARRIS,
Appellant No. 1442 EDA 2015
Appeal from the Judgment of Sentence November 30, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004909-2009
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 03, 2016
This is an appeal from the judgment of sentence entered by the Court
of Common Pleas of Philadelphia County after the trial court convicted
Appellant Rahul Harris of Involuntary Deviate Sexual Intercourse (IDSI),1
Sexual Assault,2 and Indecent Assault.3 Appellant challenges the sufficiency
of the evidence and raises two claims of ineffectiveness of counsel. After
careful review, we affirm.
Appellant’s convictions are based on the following factual background.
On November 28, 2008, Ms. Toi Williams (“the complainant”) was residing at
512 Adams Avenue in Philadelphia with her son along with Ms. Tracie Branch
____________________________________________
1
18 Pa.C.S. § 3123(a)(3).
2
18 Pa.C.S. § 3124.1.
3
18 Pa.C.S. § 3126.
*Former Justice specially assigned to the Superior Court.
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and her son. On the night in question, Appellant was spending the night in
the basement of home with Ms. Branch.
The complainant testified that she was sleeping in her bedroom on the
second floor of the home when she awoke at approximately 6:00 a.m. to
find her bedsheets pulled back and her underwear being pulled to the side.
She observed Appellant’s head between her legs and felt his tongue in her
vagina. The complainant could clearly see Appellant’s face as there was
sufficient lighting from the bathroom across the hall. Although the
complainant admitted she was on prescription pain medication for her
recovery from an automobile accident, she averred that the drugs did not
impair her awareness of what was happening that morning.
Asserting that she had not given Appellant permission to perform oral
sex, the complainant told Appellant to get out of her bedroom “before Tracie
kills you.” Notes of Testimony (N.T.), 7/15/11, at 23. After Appellant left
her bedroom, he returned a few moments later and asked the complainant
not to tell Ms. Branch. The complainant took a shower, left the house with
her son, and went to her neighbor’s home. She called her “godbrother” to
tell him what happened and asked that he come to the house to ensure
Appellant had left. Later that afternoon, the complainant told her mother
and Ms. Branch what had happened. At their insistence, the complainant
called 911 to report the assault. After the police investigated the scene of
the assault, they tested the complainant’s clothing for DNA evidence and
found her underwear contained traces of Appellant’s saliva.
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Ms. Branch claimed that on the early morning in question, she awoke
and found Appellant was not in bed with her. When she went to go look for
him, she observed him coming down the stairs. Ms. Branch went back to
bed, but she awoke a second time and again found Appellant was missing.
She then went to look for him and saw him run from the complainant’s room
into the bathroom. Ms. Branch noted the complainant was acting “very
weird.” N.T., 7/15/11, at 56. She immediately knew something was wrong,
but did not understand why the complainant was upset. After Ms. Branch
returned to the basement with Appellant, she attempted to return to talk
with the victim but was physically restrained by Appellant. Ms. Branch then
returned to sleep.
Appellant was charged with IDSI, Sexual Assault, Indecent Assault,
Simple Assault,4 and Recklessly Endangering Another Person (REAP).5
Appellant proceeded to a bench trial, after which the trial court convicted
him of IDSI, Sexual Assault, and Indecent Assault while acquitting him of
the remaining two charges. On November 20, 2011, the trial court
sentenced Appellant to two concurrent terms of three to ten years
imprisonment for the IDSI and Sexual Assault convictions. No additional
penalty was imposed on the Indecent Assault conviction.
____________________________________________
4
18 Pa.C.S. § 2701(a).
5
18 Pa.C.S. § 2705(a).
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On the day Appellant was sentenced, Appellant attempted to file a pro
se petition pursuant to the Post Conviction Relief Act (PCRA), raising
sufficiency and weight of the evidence claims as well as contending his trial
counsel was ineffective. On March 12, 2012, Emily Beth Cherniak, Esq. was
appointed to represent Appellant. On January 21, 2014, Appellant filed a
counseled PCRA petition asking for the reinstatement of his direct appeal
rights nunc pro tunc. On April 30, 2015, the lower court reinstated
Appellant’s direct appellate rights. This timely appeal followed. Appellant
complied with the trial court’s direction to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
In his appellate brief, Appellant raises the following claims for our
review:
A. Whether the verdict was insufficient as a matter of law to
convict the Appellant of the IDSI, sexual assault and related
charges where the testimony of the complaint [sic] was so
inconsistent it did not make out the elements of the crimes?
B. Whether Counsel was ineffective for failing to challenge the
DNA evidence in this case or requesting a continuance so that
he could hire an independent investigator to evaluate the DNA
evidence in this case?
C. Whether Counsel was ineffective for misadvising [Appellant]
on his right to testify on his own behalf and for failing to call
[Appellant] to testify?
Appellant’s Brief, at 5.
We begin by reviewing Appellant’s challenge to the sufficiency of the
evidence supporting his convictions. Our standard of review is as follows:
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The standard we apply in 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
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.
Commonwealth v. Britton, 134 A.3d 83, 86 (Pa. Super. 2016).
In claiming there was insufficient evidence to support his convictions
for IDSI, Sexual Assault, and Indecent Assault, Appellant does not challenge
any specific element of any of the offenses. Appellant takes issue with the
fact that the complainant did not immediately call the police after the
assault, but waited several hours to report the crime. In addition, Appellant
also points out that the complainant “had recently been in a car accident and
that she had taken pain medication.” Appellant’s Brief, at 10. Besides
stating these two facts, Appellant makes no argument, offers no analysis
and cites no authority to support his claim. As Appellant offers inadequate
advocacy, we find Appellant’s claim to be waived for lack of development.
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See Commonwealth v. Johnson, 604 Pa. 176, 985 A.2d 915, 924 (2009)
(finding “where an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived”) (citations
omitted)).
Appellant’s remaining two claims suggest that trial counsel rendered
ineffective assistance. Our Supreme Court has held that, “as a general rule,
a petitioner should wait to raise claims of ineffective assistance of trial
counsel until collateral review.” Commonwealth v. Grant, 572 Pa. 48, 67,
813 A.2d 726, 738 (2002). The Supreme Court subsequently held,
Grant's general rule of deferral to PCRA review remains the
pertinent law on the appropriate timing for review of claims of
ineffective assistance of counsel. … We recognize two
exceptions, however, both falling within the discretion of the trial
judge. First, we appreciate that there may be extraordinary
circumstances where a discrete claim (or claims) of trial counsel
ineffectiveness is apparent from the record and meritorious to
the extent that immediate consideration best serves the
interests of justice; and we hold that trial courts retain their
discretion to entertain such claims. [ ]
Second ... where the defendant seeks to litigate multiple or
prolix claims of counsel ineffectiveness, including non-record-
based claims, on post-verdict motions and direct appeal, we
repose discretion in the trial courts to entertain such claims, but
only if (1) there is good cause shown, and (2) the unitary review
so indulged is preceded by the defendant's knowing and express
waiver of his entitlement to seek PCRA review from his
conviction and sentence, including an express recognition that
the waiver subjects further collateral review to the time and
serial petition restrictions of the PCRA.
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Commonwealth v. Stollar, 624 Pa. 107, 135-36, 84 A.3d 635, 652 (Pa.
2014), cert. denied, ––– U.S.–––, 134 S. Ct. 1798 (2014) (quoting
Commonwealth v. Holmes, 621 Pa. 595, 598, 79 A.3d 562, 563–564 (Pa.
2013)).
In the instant appeal, Appellant has neither raised a claim where trial
counsel ineffectiveness is apparent from the record nor has knowingly and
expressly waived his collateral review rights. Therefore, we dismiss
Appellant's claims as they relate to the ineffective assistance of trial counsel
without prejudice for him to raise them on collateral review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2016
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