Com. v. Jackson, R., Jr. ( 2017 )

J-A15025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT EMANUEL JACKSON, JR.
Appellant No. 1027 MDA 2016
Appeal from the Judgment of Sentence dated March 29, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0003688-2014
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 02, 2017
Appellant, Robert Emanuel Jackson, Jr., appeals from the judgment of
sentence imposed after he was convicted by a jury of rape, aggravated
assault, and related offenses.1 We affirm.
We state the facts in the light most favorable to the Commonwealth,
as verdict-winner. See Commonwealth v. McFadden, 156 A.3d 299, 303
(Pa. Super. 2017). As the trial court explained, in December 2013, the
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1 Specifically, Appellant was convicted of rape by threat of forcible
compulsion, 18 Pa.C.S. § 3121(a)(2); involuntary deviant sexual intercourse
by threat of forcible compulsion, id. § 3123(a)(2); burglary of a building
adapted for overnight accommodations while a person is present, id.
§ 3502(a)(1); sexual assault, id. § 3124.1; aggravated assault, id.
§ 2702(a)(4); possession of a firearm by a person prohibited from
possession, id. § 6105(a)(1); criminal trespass by entry of a building or
occupied structure, id. § 3503(a)(1)(i); unlawful restraint creating a risk of
serious bodily injury, id. § 2902(a)(1); terroristic threats with intent to
terrorize another, id. § 2706(a)(1); and simple assault, id. § 2701(a)(3).
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victim, Jennifer Woodard, began a romantic relationship with Appellant.
Trial Ct. Op. at 2; N.T. Trial at 60-61. Then —
In September 2014, she unilaterally ended the relationship.
Despite the end of the relationship, [Appellant] would not stop
contacting the victim by phone and social media[,] forcing her to
block him electronically on all platforms. All this
notwithstanding, on October 21, [2014, Appellant] showed up at
[Ms. Woodard]’s house unannounced and uninvited, pushed his
way in and pressured [Ms. Woodard] into a discussion about
their relationship. Ultimately, she convinced him to leave, which
he did without harming her, though he was extremely angry she
had not permitted him to stay overnight.
Trial Ct. Op. at 2; see also N.T. Trial at 63.
On October 31, 2014, Ms. Woodard was alone in her home getting
ready to go out with friends. Trial Ct. Op. at 2; see also N.T. Trial at 64-65.
Appellant knocked on her door, and, when she answered it, he pulled a gun
on her, pressed it against her head, and forced his way inside. “With the
gun held to her head, he said, ‘I’m going to kill you, bitch, and I’m going to
kill myself.’” Trial Ct. Op. at 2 (quoting N.T. Trial at 66). Appellant “hit
[Ms. Woodard] across the face, and [she] fell down.” N.T. Trial at 66.
Ms. Woodard later testified that Appellant hit her with “[h]is hand . . . [o]n
the left side of [her] face” “several times”; she added: “I don’t know if he
punched me [or] hit me with an open hand.” Id. When asked if Appellant
“hit you hard,” Ms. Woodard answered affirmatively. Id. at 92.
Appellant “then grabbed [Ms. Woodard] by her hair and pulled her
across the floor into her bedroom while she begged for her life.” Trial Ct.
Op. at 2; see also N.T. Trial at 66-67. He closed the door and pointed the
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gun at her. Trial Ct. Op. at 2. The trial court then described Appellant’s
assault:
As he forced [Ms. Woodard] to take her clothes off, he taunted
her by tracing the point from the laser scope of the gun over
various parts of her body. He demanded she perform oral sex
on him and threatened that if she failed to comply her children
would never see her again. During these threats, [Appellant]
removed the jacket he was wearing but kept his clothes on while
he had his penis out and was masturbating. [Appellant] began
counting out loud[,] threatening that if [Ms. Woodard] did not
comply with his demands by the time he reached 10 he would
kill her. In fear for her life and against her will, [Ms. Woodard]
complied, and performed oral sex on [Appellant]. During the
entire time she was being forced to have [Appellant]’s penis in
her mouth, he had the gun pressed against her head.
After a period of time, [Appellant] forced [Ms. Woodard] onto
her bed and penetrated her vaginally. He was not wearing a
condom and ejaculated almost immediately. He then attempted
to penetrate her anally but, in pain, she screamed and jumped
away. At that moment, [Appellant]’s demeanor suddenly
changed. With seeming remorse, he said he couldn’t believe he
hit her and raped [her] and that he could not go to jail. Still in
fear for her life, as [Appellant] remained armed, [Ms. Woodard]
told him that she would never tell anyone what happened and
tried to convince him to consider his love for his children and
just to leave peacefully.
Id. at 2-3; see also N.T. Trial at 67, 70.
In an apparent attempt to explain his actions and state of mind,
Appellant then forced Ms. Woodard to read aloud entries from a personal
journal that were stored on his cellular telephone. Cmwlth. Ex. 20,
Attachment #2; N.T. Trial at 70-74. In the journal, Appellant wrote:
My feelings all over the place. I have been talking to my friend,
the one who have been listening. Sometimes I feel she hears
what she wants to hear and not what I’m saying. Sometimes I
don’t even know what I’m saying.
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I miss my son. He’s 15 and I haven’t seen him since he was 6.
His mother and I never got along. I married her because she
was pregnant. I thought I loved her but never did. . . . I never
knew there were so much raw emotions inside me. Never knew
the level of my hurt until now. . . . I want to badly share this
with Jennifer but I know she doesn’t care one bit about me. . . .
The anger is fading; my focus and future seem bright. . . . For so
long, too long I have been hurting. For nothing but the love of
God can ease my pain. I became numb to this pain, never
knowing it was killing me slowly only surfacing to cause damage
to those around me, to those I love.
My hurtful words were, are a result of that pain. . . . I caused
pain that no apologies can heal. . . . Many thoughts flooding my
mind, a lot of what ifs, could’ve been. If this keeps up its going
to be a long day. . . . Reached out to three Therapists this
morning that accepts my insurance. . . . First appointment is
Friday October 31, 2014. To be honest, I’m a little bit nervous.
No correction, I’m scared to death! . . . Its 3:00 and I can only
imagine the smile on her face because she just got off. . . . Here
I go again, thinking about her. . . . Now the drive home with
nothing but my thoughts. . . . To say I wasn’t thinking about
Jennifer would be a lie. . . . Really don’t want to be here. Sitting
here thinking. . . . Do I really want that? . . . Only in my mind
have I spoken with her. . . . I’ve been talking to a great friend
about my feelings these last few days. . . . While talking to my
friend I must have called Jennifer the “b” word a hundred times.
I have never called her out of her name before so I don’t know
why I am so angry. . . . I don’t know but something is causing
my anger towards her and I can’t fully explain it. . . . Really not
in the mood to write, talk or whatever it is I’m doing here.
Starting to wonder what the purpose is anyway. . . . These
feelings. Where the hell are they coming from? Why do I feel
the way I do? No damn wonder I am 48 and alone. . . . I’m
sitting at work and really didn’t feel like coming in but I’m glad I
am here. I don’t know if I could stand the random thoughts that
flood my mind if I had nothing to focus on all day. I’ve been
there before the pain, damn to say the least. Not a good feeling.
. . . I think I smiled a little. Haven’t really thought about
Jennifer too much. Don’t know if that’s good or bad. . . .
Thinking about Jennifer again. Wondering if she misses me, is
her heart aching like mine? . . . So embarrassing to say the
least. . . . The thoughts, images and unknown are consuming
me. She is all I think about. I want bad to contact her but I
know she wouldn’t take my calls, answer my text or email. . . .
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But to be honest, I’m scared of the things she will pull out of my
head. . . . Was she afraid of what was in her head, was it too
much?
I’m feeling anxious! Man, I hate this feeling....
Cmwlth. Ex. 20, Attachment #2, at 1-4. The journal also included what the
trial court described as “an entry written just before the assault occurred
addressed to [Ms. Woodard] describing how [Appellant] missed [her] and
wanted to get back together with her”; the court added that this passage
had an “ominous ending.” Trial Ct. Op. at 7; see also Cmwlth. Ex. 20,
Attachment #2, at 1. The entry reads:
Dear Jennifer,
Words cannot describe how much you mean to me. When I look
at our pictures I smile, cry and laugh all at once. I will forever
be grateful of the time we spent together. You were that once
great love I let get away. For that, I’m the fool.
Remember Me,
Robert
Journal complete, outcome UNKNOWN
Id. (capitalization in original).
The trial court continued:
After [Ms. Woodard] finished reading the journal entries[,
Appellant] professed his love for her repeatedly and then left.
As a result of the attack, [Ms. Woodard] suffered facial bruising
and fear for her life and safety and the safety of her children.
In extreme distress and afraid [Appellant] may return,
[Ms. Woodard]’s first concern was for her two children who were
out with friends. She left to pick up her children . . . On the ride
over, she called 911.
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Trial Ct. Op. at 3-4; see also N.T. Trial at 70-75. Ms. Woodard had a rape
kit examination performed by a nurse at Harrisburg Hospital, and the DNA
analysis from it “resulted in a match for Appellant’s semen.” Trial Ct. Op. at
4; see also N.T. Trial at 78, 148, 293-94. A medical examination also noted
that Ms. Woodard’s face was bruised and she had blood in her nasal
passage. Trial Ct. Op. at 3.
Police found Appellant’s coat in Ms. Woodard’s residence. Trial Ct. Op.
at 4; see also N.T. Trial at 78-79. In a search of Appellant’s residence, they
found a loaded gun with a laser sight that Ms. Woodard later identified as
the gun used during Appellant’s assault. Id. at 85, 208-10. They also found
an iPad that contained a document titled “Diary of a Broken Man”; it made
several references to Ms. Woodard and contained passages that
Ms. Woodard identified as matching those from the journal that Appellant
forced her to read on the night of the assault. Id. at 70, 210-11, 262.
At 6:43 P.M. on November 1, 2014, under the supervision of police,
Ms. Woodard made a recorded phone call to Appellant in which she
confronted him about the attack. Appellant said he was driving to North
Carolina, ended the call because of poor cell phone reception, and then
called Ms. Woodard back. Appellant’s return call also was recorded by the
police. Trial Ct. Op. at 4; see also Cmwlth. Ex. 10 (recording of call).
During the calls, Appellant did not admit assaulting Ms. Woodard but said he
did not plan to hurt her and would be sending her a letter.
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Ultimately, Appellant was arrested and charged with numerous
offenses. Prior to his trial, he moved to exclude the iPad document (which
was referred to during a pretrial hearing on his motion as Appellant’s
“diary”) and the November 1, 2014 recorded calls on the ground that they
included inadmissible hearsay. The trial court denied those motions. It
found that the calls were “not hearsay” and “not more prejudicial than
probative.” N.T. Trial at 14-15.2 Similarly, it found that “the contents of the
diary are not hearsay and are relevant to the elements of various offenses.”
Id. at 15.
Appellant was tried before a jury on December 14-17, 2015. During
the trial, Ms. Woodard provided a chronology of events, as well as graphic
and detailed testimony about the Appellant’s crimes. N.T. Trial at 60-75, 78.
In the midst of her testimony, the two recorded phone calls were played for
the jury. See id. at 86. Officer Jason Reed of the East Pennsboro Township
Police Department testified that when he went to Ms. Woodard’s home the
day after the assault, he found a coat on the floor that Ms. Woodard
reported belonged to Appellant. Id. at 124, 128. Detective Shane Cohick of
the East Pennsboro Township Police Department testified that a search of
Appellant’s bedroom at his West Virginia residence recovered a black metal
box that contained a .40 caliber Glock pistol that was loaded with a full
magazine, including a bullet inside the barrel, with a laser sight. Id. at 202,
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2The hearing immediately preceded the trial, and it was transcribed as part
of the trial transcript.
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205-08, 210. The jury heard testimony from a representative of AT&T
Wireless, the service provider for Appellant’s cellular telephone, that cell
phone tower location records for Appellant’s phone corroborated
Ms. Woodard’s timeline of events and confirmed Appellant’s presence in the
vicinity of Ms. Woodard’s home at the time of the attack. Id. at 246, 252-
55; Trial Ct. Op. at 4. Special Agent Matthew Zahm of the computer
forensics unit of the Pennsylvania Office of Attorney General testified that he
had found a document entitled “Diary of a Broken Man” on Appellant’s iPad,
and he related some of its contents; later, in response to a request from the
jury, the jury was given a copy of that document for its review in the jury
room. N.T. Trial at 260, 262, 373-74. Forensic DNA scientist
Brittni Andaloro testified that Appellant’s DNA was present inside
Ms. Woodard’s vagina. N.T. Trial at 286, 293-94; Trial Ct. Op. at 4.
On December 17, 2015, the jury convicted Appellant of the above
offenses. Appellant then was sentenced to an aggregate sentence of 20.5 to
43 years in a State Correctional Facility. Trial Ct. Op. at 4-5. At the time of
sentencing, the trial court stated that “a lesser sentence would depreciate
the seriousness of the crimes involved.” N.T. Sentencing at 7.
On April 8, 2016, Appellant filed post-sentence motions for
modification of sentence and for a new trial on the basis that the verdict was
against the weight of the evidence. The post-sentence motion did not
challenge the sufficiency of the evidence. On May 24, 2016, the trial court
denied Appellant’s post-sentence motions.
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On June 23, 2016, Appellant filed a notice of appeal. Appellant raises
four issues for our review:
I. Did the trial court abuse its discretion when it denied
Appellant’s pre-trial motion to exclude a consensualized phone
call and Appellant’s journal from the Commonwealth’s case in
chief?
II. Whether the evidence was insufficient to prove beyond a
reasonable doubt that Appellant is guilty of aggravated assault
with a deadly weapon where Appellant’s conduct never caused
any bodily injury with the deadly weapon?
III. Did the trial court err in denying Appellant’s motion for a
new trial when the jury’s verdict was against the weight of the
evidence because the Commonwealth failed to meet its burden
to sustain the alleged charges?
IV. Did the trial court abuse its discretion when it imposed
consecutive sentences where Appellant’s conduct was not so
egregious to warrant a twenty[] and one-half to forty-three
(2[0].5-43) year sentence?[3]
Appellant’s Brief at 10 (reordered to facilitate disposition, and suggested
answers omitted).
Admission of Evidence
The admission of evidence is committed to the sound discretion
of the trial court and an appellate court may reverse only upon a
showing that the trial court clearly abused its discretion.
Admissibility depends on relevance and probative value.
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue
more or less probable, or supports a reasonable inference
or presumption regarding a material fact. Once evidence
is found to be relevant, it will be inadmissible only if its
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3Appellant repeatedly states incorrectly in his brief that he was sentenced to
21.5-40 years. Appellant’s Brief at 10, 23-24.
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probative value is substantially outweighed by the danger
of unfair prejudice or confusion.
Unfair prejudice is a tendency to suggest a decision on an
improper basis or to divert the jury’s attention away from its
duty of weighing the evidence impartially.
McFadden, 156 A.3d at 309 (citations and quotation marks omitted).
Recorded Telephone Calls
Appellant argues:
The trial court abused its discretion when it denied Appellant’s
pre-trial motion to exclude . . . consensualized phone call[s] . . .
from the Commonwealth’s case in chief . . . under theories of
hearsay and that the evidence was more prejudicial than
probative. . . . [N]othing in [the recorded calls] would amount to
an admission that would warrant admission under the current
rule of evidence.
Appellant’s Brief at 33. The Commonwealth answers that “the trial court
properly admitted the recording of the consensual phone conversation . . .
because [it] qualif[ies] as admissible hearsay under the Rules of Evidence.”
Commonwealth’s Brief at 25; see also id. at 27. The Commonwealth
continues that, when Appellant’s “statement is considered in the context of
Ms. Woodard confronting [Appellant] about the attack that occurred the
previous night, it is clear that it qualifies as an admission by an opposing
party and is admissible under Rule 803(25)(A).” Id. In holding that the
recordings were admissible, the trial court agreed with the Commonwealth:
During the taped conversation, [Appellant] made numerous
statements that can be characterized as admissions. . . .
[Appellant’s] comments, considered in the context of the victim
confronting [Appellant] the day after his brutal attack upon
her[,] constitute sufficient admissions to permit them to be
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offered against [Appellant]. This [trial] court did not err in
admitting the recording of the telephone call.
Trial Ct. Op. at 6.
Although, generally, “[a]ll relevant evidence is admissible,” Pa.R.E.
402, hearsay evidence, even if relevant, is usually not admissible. Pa.R.E.
802. “‘Hearsay’ means a statement that (1) the declarant does not make
while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.”
Pa.R.E. 801(c). However, an opposing party’s admission is not excluded
under the hearsay rule. Rule of Evidence 803(25)(A) states:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
...
An Opposing Party’s Statement. The statement is offered
against an opposing party and:
(A) was made by the party in an individual or representative
capacity . . . .
Pa.R.E. 803(25)(A). We have explained this exception as follows:
Party admissions are not subject to hearsay exclusion because it
is fair in an adversary system that a party’s prior statements be
used against him if they are inconsistent with his position at
trial. In addition, a party can hardly complain of his inability to
cross-examine himself. A party can put himself on the stand
and explain or contradict his former statements. Thus, in
criminal cases, th[e Supreme Court of Pennsylvania] has
consistently held that a defendant’s out-of-court statements are
party admissions and are exceptions to the hearsay rule.
Commonwealth v. Edwards, 903 A.2d 1139, 1157-58 (Pa. 2006)
(citations omitted; some formatting added), cert. denied, 549 U.S. 1344- 11 -
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(2007).
Appellant’s arguments in opposing admissibility of this evidence (and,
to some extent, the responses by the Commonwealth) are based on a
misunderstanding of Rule 803(25)’s hearsay exception for statements by an
opposing party. To be admissible, the statement does not need to be a
confession to the crime. Commonwealth v. Simmons, 662 A.2d 621, 635
(Pa. 1995), cert. denied, 516 U.S. 1128 (1996). Indeed, it need not even
be contrary to the declarant’s interest. As we observed in Commonwealth
v. Hoyman, 561 A.2d 756, 761 (Pa. Super. 1989), “declarations against
interest and admissions are at times misunderstood by lawyers. A
declaration against interest must have been against the declarant’s interest
when made. No such requirement exists with respect to admissions.” 4 To
dispel the confusion, the drafters of the Rules of Evidence removed the
common term “admission” when describing the exception in Rule 803(25),
making clear that any “statement” by an opposing party is admissible, not
just an “admission.” Pa.R.E. 803, Comment. Thus, Pennsylvania decisions
frequently admit statements by a criminal defendant that fall far short of an
admission of guilt.5 There is no dispute that the statements made during
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4 Declarations against interest fall under a different Rule of Evidence relating
to hearsay exceptions applicable where the declarant is unavailable as a
witness. See Pa.R.E. 804(b)(3).
5 See, e.g., Commonwealth v. Paddy, 800 A.2d 294, 312 & n.11 (Pa.
2002) (defendant’s warning that witness was “saying things she shouldn’t
say” was admissible as a statement by a party opponent); Commonwealth
(Footnote Continued Next Page)
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the recorded phone calls at issue here were made by Appellant. Accordingly,
they were statements by a party opponent that were admissible on
introduction by the Commonwealth under Rule 803(25); they are not
inadmissible hearsay.
The trial court held that Appellant’s statements during the phone calls
not only were admissible exceptions to the hearsay rule but were probative
and not unduly prejudicial. We agree. During the first of the November 1,
2014 phone calls, when Ms. Woodard asked for an explanation of Appellant’s
conduct the night before, Appellant, who expressed a concern that
Ms. Woodard might be recording the call, responded, “You’re going to get a
letter in the mail.” Cmwlth. Ex. 10, First Recorded Call, at approx. 5:55;
see id. at approx. 2:26 (inquiry by Appellant about whether call was being
recorded).6 In response to Ms. Woodard’s repeated pleas for an explanation,
(Footnote Continued) _______________________
v. Smith, 540 A.2d 246, 257 (Pa. 1988) (defendant’s statement asking
whether witness had seen decedent was admissible as an opposing party’s
statement); Commonwealth v. Tervalon, 345 A.2d 671, 676 (Pa. 1975)
(defendant’s statement contradicting wife’s statement about his
whereabouts on night crime committed admissible as party admission;
“extrajudicial statements made by a defendant may be used against that
defendant although they contain no admission of guilt”).
6 We have been hampered in our review of this issue by the absence from
the certified record of a transcript of the telephone calls. During the pretrial
hearing, the Commonwealth stated that it had a transcript of the recorded
calls “here somewhere” that it would provide to the trial court. N.T. Trial at
7. But it appears that the transcript never was provided, since the certified
record does not include it. The record does, however, contain a compact
disc that contains the audio recordings that were played before the jury, see
Cmwlth. Ex. 10, and we have listened to those recordings in deciding this
issue.
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Appellant stated that “I don’t have the words to help you right now” and “I
never planned on hurting you, killing you.” Id. at approx. 9:34, 11:27.
Appellant made similar statements in the second call and, after again
expressing concern that he was being recorded, ended the call by stating
that he would tell Ms. Woodard what she wanted to know in another call that
he would make to her at an unscheduled time the next day. Id., Second
Recorded Call, at approx. 0:45, 1:25, 7:25; see id. at approx. 4:43
(expressed concern about recording of call).
Although Appellant’s statements during these calls were ambiguous,
we agree with the trial court that they were probative and admissible. They
evidenced an understanding that events had occurred about which
Ms. Woodard was seeking an explanation, a desire to disclaim an intent to
harm or kill Ms. Woodard, and an intention to provide an explanation at a
later time when police might not be listening. In opposing admission of the
statements, Appellant argues that they suggest that he had “a less than
rational state of mind” and “was questioning his sanity.” Appellant’s Brief at
34-35. In the context of the facts of this case, we do not view that
possibility as so prejudicial to Appellant as to make these statements
inadmissible. The appropriate meaning and interpretation to give the
statements was a question for the jury, which also was in the best position
to decide what weight should be assigned to them. The trial court did not
err in admitting the statements.
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Appellant’s Journal
Appellant also contends that the trial court abused its discretion when
it denied Appellant’s pretrial motion to exclude his journal (or “diary”) from
the Commonwealth’s case in chief. Appellant’s Brief at 33. The journal, as
described by the trial court, “included an entry written just before the
assault occurred” that was addressed to Ms. Woodard and included “an
ominous ending: ‘Journal complete[, o]utcome [UNKNOWN].” Trial Ct. Op.
at 7; see also Cmwlth. Ex. 20, Attachment #2, at 1. Appellant asserts that
the journal was written by him before the incident at issue but “contain[s]
no plans to rape or injure [Ms.] Woodard.” Appellant’s Brief at 34-35. He
asserts that the admission of the journal was improper “under theories of
hearsay and that the evidence was more prejudicial than probative.” Id. at
35.
The Commonwealth argues that Appellant’s “diary was comprised of
admissible hearsay as it showed his state of mind directly prior to the attack.
. . . [Appellant]’s diary meets the requirements of Rule 803(3) and was
properly admitted.” Commonwealth’s Brief at 27-28. The trial court
concluded: “Obsessive diary entries addressed to the victim written hours
before she was attached by [Appellant] are clearly relevant to establishing
his state of mind and motive on the night of the crime.” Trial Ct. Op. at 7.
There is no dispute that the journal was written by Appellant. We
therefore conclude that its content was admissible because it contained
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statements by a party opponent under Rule 803(25). We also conclude that
the journal was admissible under Pa.R.E. 803(3), which states:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
. . . A statement of the declarant’s then-existing state of mind
(such as motive, intent or plan) or emotional, sensory, or
physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the
validity or terms of the declarant’s will.
Throughout the journal, written in the days and hours immediately
preceding his crimes, Appellant wrote about his “feelings,” his “emotions,”
and how he “feel[s].” Cmwlth. Ex. 20, Attachment #2, at 1-2. Specifically,
he wrote about Ms. Woodard – what he “wants” from her, that he “know[s]
she doesn’t care one bit about [him],” and that he is “so angry” with her and
feels “anger towards her.” Id. at 1-2. These statements demonstrate
Appellant’s “state of mind” and his “emotional . . . condition,” both in
general and explicitly about Ms. Woodard. Pa.R.E. 803(3). Thus, the
journal was not excluded by the rule against hearsay.
Appellant’s argument that the journal was unduly prejudicial mirrors
his argument regarding his statements during the recorded telephone calls,
and we reject it for the same reasons. We therefore hold that the trial court
did not abuse its discretion by permitting admission of the journal.
Sufficiency
Appellant contends that “the evidence was insufficient to prove beyond
a reasonable doubt that Appellant committed aggravated assault with a
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deadly weapon where the Commonwealth’s evidence failed to establish that
Appellant caused any bodily injury with a deadly weapon . . . or attempted
to cause bodily injury with a deadly weapon[.]” Appellant’s Brief at 19-20.
Our standard of review for a sufficiency of the evidence
challenge is well established:
A claim challenging the sufficiency of the evidence
presents a question of law. We must determine whether
the evidence is sufficient to prove every element of the
crime beyond a reasonable doubt. We must view evidence
in the light most favorable to the Commonwealth as the
verdict winner, and accept as true all evidence and all
reasonable inferences therefrom upon which, if believed,
the fact finder properly could have based its verdict.
McFadden, 156 A.3d at 303 (citations omitted).
Appellant argues that Ms. Woodard testified that he “struck” her “with
his hand knocking her to the floor, then drug her to the bedroom by her
hair.” Appellant’s Brief at 20 (citing N.T. Trial at 66). Appellant continues
that, “[o]n cross examination Ms. Woodard specifically stated that she was
punched or struck with an[] open hand three times on the left side of her
face knocking her to the floor.” Id. at 21 (citing N.T. Trial at 92). Appellant
maintains that this testimony demonstrates that he “never caused or
attempted to cause bodily injury with a deadly weapon.” Id. at 22. He
concludes: “Although Appellant did possess a weapon, it was never used on
[Ms.] Woodard. Thus, the Commonwealth has failed to provide sufficient
evidence to show that Appellant caused or attempted to cause the requisite
bodily injury with a deadly weapon.” Id.
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The Commonwealth insists that “[t]here is sufficient evidence to
sustain [Appellant]’s conviction of aggravated assault as the victim suffered
injury when [Appellant] forcibly raped her at gunpoint.” Commonwealth’s
Brief at 13. The Commonwealth asserts that Appellant’s argument “is
without merit as [Appellant] forcibly pressed the gun into the victim’s head
and face causing injury.” Id. The Commonwealth states:
In this case, the evidence clearly supports [Appellant]’s
conviction as Ms. Woodard testified that [Appellant] charged into
her home with a handgun, shoved the handgun against her
head, and proceeded to rape her at gunpoint. . . . Clearly, the
jury’s finding of guilt is supported by sufficient evidence and
[Appellant] must be denied relief.
Id. at 14-15.7
The trial court stated that “this issue is waived,” because Appellant
“failed to raise this issue in any way” in his post-sentence motion. Trial Ct.
Op. at 10. However, because a challenge to the sufficiency of the evidence
may be raised for the first time on appeal, Appellant did not waive this
claim, even though he did not include it in his post-sentence motions. See
Pa.R.Crim.P. 606(A)(7); Commonwealth v. Wertelet, 696 A.2d 206, 208
n.2 (Pa. Super. 1997).
The trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014). Moreover,
____________________________________________
7 The Commonwealth adds that Appellant’s “sentence on Aggravated Assault
is concurrent to sentences on several other charges. Even if this Court were
to find that there is insufficient evidence, [Appellant]’s aggregate sentence
would not change.” Commonwealth’s Brief at 15 n.11.
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J-A15025-17
the trier of fact may base a conviction solely on circumstantial evidence. In
reviewing the evidence, the appellate court may not weigh the evidence and
substitute its judgment for that of the fact-finder. Id.“A person is guilty of aggravated assault if he attempts to cause or
intentionally or knowingly causes bodily injury to another with a deadly
weapon[.]” 18 Pa.C.S. § 2702(a)(4). Section 2301 of the Crimes Code
defines “bodily injury” as “[i]mpairment of physical condition or substantial
pain.” 18 Pa.C.S. § 2301. Section 2301 likewise defines “deadly weapon”
as:
Any firearm, whether loaded or unloaded, or any device
designed as a weapon and capable of producing death or serious
bodily injury, or any other device or instrumentality which, in the
manner in which it is used or intended to be used, is calculated
or likely to produce death or serious bodily injury.
Id.
Here, viewing the evidence in a light most favorable to the
Commonwealth as the verdict winner, the record establishes that Appellant
repeatedly pressed his firearm against Ms. Woodard’s head, and she suffered
facial bruising. See McFadden, 156 A.3d at 303; see also Trial Ct. Op. at
3. The jury, as factfinder, properly could have based its verdict on the
reasonable inference that Ms. Woodard’s facial bruising was caused by
Appellant pressing the firearm to her face and head. See McFadden, 156
A.3d at 303; see also Trial Ct. Op. at 3. We have held that bruising may
constitute “bodily injury” as defined in Section 2301. See In the Interest
of M.H., 758 A.2d 1249, 1252 (Pa. Super. 2000), appeal denied, 766 A.2d
- 19 -
J-A15025-17
1250 (Pa. 2001). Although the firearm that inflicted this injury was not used
in the traditional way, it still meets Section 2301’s definition of a “deadly
weapon” (“[a]ny firearm, whether loaded or unloaded”). Hence, the
evidence was sufficient to prove every element of 18 Pa.C.S. § 2702(a)(4)
beyond a reasonable doubt. See McFadden, 156 A.3d at 303. Appellant’s
sufficiency challenge therefore fails.
Weight of the Evidence
Next, Appellant contends:
The trial court erred in denying Appellant’s motion for a new trial
when the jury’s guilty verdict was against the weight of the
evidence because the Commonwealth failed to meet its burden
to sustain the charges of rape, [involuntary deviant sexual
intercourse], burglary, sexual assault, aggravated assault,
possession of a firearm prohibited, criminal trespass, unlawful
restraint, terroristic threats, and simple assault.
Appellant’s Brief at 27.
A motion for a new trial alleging that the verdict was against the
weight of the evidence is addressed to the discretion of the trial
court. An appellate court, therefore, reviews the exercise of
discretion, not the underlying question [of] whether the verdict
is against the weight of the evidence.
Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation
omitted).
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 the witnesses.
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. 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
- 20 -
J-A15025-17
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.
In 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.
. . . [A]n appellate court cannot substitute its judgment for that
of the finder of fact.
Commonwealth v. Talbert, 129 A.3d 536, 545–46 (Pa. Super. 2015)
(internal citations and quotation marks omitted; some formatting added),
appeal denied, 138 A.3d 4 (Pa. 2016).
Here, the trial court addressed Appellant’s weight of the evidence
challenge as follows:
At the hearing on [Appellant]’s Post-sentence Motion, his counsel
argued that the jury’s verdict was against the weight of the
evidence because even though the alleged attack occurred on
Halloween night in a crowded residential neighborhood, a police
canvass of the area revealed no witnesses who heard the attack.
He also argued that despite [Ms. Woodard]’s account of the
attack, there were no visible extreme physical injuries on her
body to substantiate her claims.
These allegations are insufficient to shock the court’s conscience
and compel us to order a new trial. First, whether people who
may have been outside of [Ms. Woodard]’s home heard the
attack is really not relevant. Next, [Appellant] raped
[Ms. Woodard] at gunpoint thereby using the weapon to force
her compliance which would help explain the lack of extreme
physical injuries. Also, as noted by the nurse’s testimony at
trial, lack of evidence of physical trauma is not necessarily
evidence that a rape did not occur. Finally, [t]here was DNA
evidence showing [Appellant] had had intercourse with
[Ms. Woodard] and his coat was left at the scene of the crime.
Based on these facts and all the evidence introduced at trial the
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court is well-satisfied that the jury’s verdicts are not against the
weight of the evidence.
Trial Ct. Op. at 8. We agree with the trial court’s reasoning.
Appellant essentially asks us to reassess Ms. Woodard’s credibility and
to reweigh the testimony and the evidence presented at trial. Appellant’s
Brief at 27-32. We cannot and will not do so. See Talbert, 129 A.3d at
546. The jury found credible Ms. Woodard’s testimony, which was
corroborated by other testimony and physical evidence. See id. at 545.
Thus, the verdict was not so contrary to the evidence as to shock the court’s
conscience, see id., and we discern no abuse of discretion by the trial court.
See Ramtahal, 33 A.3d at 609.
Sentencing
Lastly, Appellant argues:
The trial court erred when it denied Appellant’s post-sentence
motion for modification of sentence where Appellant’s
incarceration for twenty[] and a half to forty-three years
(2[0].5-43), essentially amounts to a life sentence, and fails to
consider the issues of protection of the public, gravity of the
offense as it relates to the victim and the community, and the
rehabilitative needs of the Appellant as required by 42 Pa.C.S.A.
§9721(b).
Appellant’s Brief at 23. Appellant also maintains that his sentence is
“manifestly excessive such that it constitutes too severe a punishment where
Appellant’s incarceration for twenty[] and a half to forty-three (2[0].5-43)
years[] essentially amounts to a life sentence[.]” Id. at 23-24. Additionally,
Appellant insists that the “[t]rial court failed to consider the relationship
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J-A15025-17
between the [A]ppellant and [Ms.] Woodard” and that “[Ms.] Woodard
suffered no physical injury as a result of the offenses.” Id. at 25.
The Commonwealth responds that the trial court “did not abuse its
discretion” when Appellant’s “sentence is within the standard guideline range
and when [Appellant] brutally raped the victim at gunpoint.”
Commonwealth’s Brief at 16.
The trial court observed that Appellant’s sentence “is a standard range
sentence and in light of the horrible violence inflicted on the victim, it was
wholly appropriate.” Trial Ct. Op. at 9. The trial court reiterated that “a
lesser sentence would depreciate the seriousness of the crimes involved.”
Id. It “submits that this standard range sentence is not disproportionate to
[Appellant]’s crimes.” Id.
“A challenge to the discretionary aspects of a sentence is not
appealable as of right.” Commonwealth v. Luketic, 162 A.3d 1149, 1159
(Pa. Super. 2017) (citation and internal brackets omitted). We will exercise
our discretion to consider such a petition only if (1) the appellant has filed a
timely notice of appeal; (2) he has preserved the sentencing issue at the
time of sentencing or in a motion to reconsider and modify his sentence; (3)
he presents the issue in a properly framed statement in his brief under Rule
2119(f) of the Rules of Appellate Procedure, pursuant to Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987); and (4) in the words of Section
9781(b) of the Sentencing Code, 42 Pa.C.S. § 9781(b), “it appears that
there is a substantial question that the sentence imposed is not appropriate
- 23 -
J-A15025-17
under this chapter.” See, e.g., Commonwealth v. Haynes, 125 A.3d 800,
807 (Pa. Super. 2015), appeal denied, 140 A.3d 12 (Pa. 2016);
Commonwealth v. Zelinski, 573 A.2d 569, 574-75 (Pa. Super.), appeal
denied, 593 A.2d 419 (Pa. 1990). “A defendant presents a substantial
question when he sets forth a plausible argument that the sentence violates
a provision of the Sentencing Code or is contrary to the fundamental norms
of the sentencing process.” Luketic, 162 A.3d at 1160 (citation omitted).
Here, Appellant filed a timely notice of appeal, preserved his
sentencing issue in a post-sentence motion to modify his sentence, and
presented the issue in a properly framed statement in his brief pursuant to
Pa.R.A.P. 2119(f). See Appellant’s Brief at 17-18; see also Tuladziecki,
522 A.2d 17; Haynes, 125 A.3d at 807; Zelinski, 573 A.2d at 574-75.
Finally, Appellant presents a substantial question by setting forth an
argument that his sentence violates 42 Pa.C.S. § 9721(b), a provision of the
Sentencing Code. Appellant’s Brief at 18; see also Luketic, 162 A.3d at
1160. We will thus exercise our discretion to consider Appellant’s sentencing
claim. See Haynes, 125 A.3d at 807; Zelinski, 573 A.2d at 574-75.
Our standard of review follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In order to establish that
the sentencing court abused its discretion, the defendant must
establish, by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision. The rationale behind such
broad discretion and the concomitantly deferential standard of
- 24 -
J-A15025-17
appellate review is that the sentencing court is in the best
position to determine the proper penalty for a particular offense
based upon an evaluation of the individual circumstances before
it. To determine whether the trial court made the proper
considerations during sentencing, an appellate court must, of
necessity, review all of the judge’s comments. As this Court has
stated, the judge’s statement must clearly show that he has
given individualized consideration to the character of the
defendant. . . . [I]t is an abuse of discretion when the nature of
the criminal act is used as the sole basis for the determination of
the length of sentence.
Luketic, 162 A.3d at 1162-63, 1165 (internal brackets, citations, and
quotation marks omitted).
We will address each of Appellant’s reasons for contesting his sentence
in turn. First, Appellant contends that his sentence “essentially amounts to a
life sentence.” Appellant’s Brief at 23; see also id. at 23-24. In
Commonwealth v. Baker, 72 A.3d 652, 664 (Pa. Super. 2013), appeal
denied, 86 A.3d 231 (Pa. 2014), we held that a sentence of 15-31 years’
imprisonment for various drug offenses was not unreasonable, despite the
fact that the defendant was seventy years old, because the sentencing court
considered the defendant’s personal characteristics, including his age. We
held that so long as that the sentencing court was aware of the defendant’s
age and considered it during sentencing, a sentence that may result in the
defendant spending the remainder of his life incarcerated is not an abuse of
discretion. Id.Here, Appellant was fifty years old at his sentencing hearing and was
sentenced to 20.5-43 years’ confinement. As in Baker, the trial court was
aware of Appellant’s age, because defense counsel informed it that Appellant
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J-A15025-17
was fifty years old during the hearing on Appellant’s post-sentence motion.
Trial Ct. Op. at 9. 8 Hence, the trial court did take Appellant’s age into
consideration.
Next, Appellant argued that his sentence “fails to consider the issues
of protection of the public, gravity of the offense as it relates to the victim
and the community[.]” Appellant’s Brief at 23. Appellant adds that the
“[t]rial court failed to consider the relationship between the [A]ppellant and
[Ms.] Woodard.” Appellant’s Brief at 25. The record belies these
contentions, as the trial court specifically considered these factors, stating
that it reflected upon “the horrible violence inflicted on the victim” and that
“a lesser sentence would depreciate the seriousness of the crimes involved,”
i.e., the gravity of the offense. Trial Ct. Op. at 9 (quoting N.T. Sentencing at
7); see also Appellant’s Brief at 23.9
As for Appellant’s related assertion that “[Ms.] Woodard suffered no
physical injury as a result of the offenses,” Appellant’s Brief at 25, we agree
with the trial court’s observation that Appellant has “sought to minimize the
____________________________________________
8 In Baker, the defendant potentially would have been released when he
was 85 years old upon completing his minimum sentence. Here, Appellant
will be just over 70 years old (the same age as the Baker defendant at the
time of his sentencing) upon completing his minimum sentence.
9 Appellant’s argument that the trial court failed to consider “the relationship
between the [A]ppellant and [Ms.] Woodward” is that: “This was not the act
of a serial rapist; this was an incident between two people who had dated for
almost a year.” Appellant’s Brief at 25. It is not entirely clear what Appellant
is suggesting by this argument, but we discern no ground to conclude that
Appellant’s rape of Ms. Woodward at gunpoint following their earlier dating
relationship should in any way be deemed mitigating.
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J-A15025-17
degree of physical violence employed by [him] during the assault.” Trial Ct.
Op. at 9. Ms. Woodard was raped at gunpoint and also suffered facial
bruising, id. at 3, therefore belying Appellant’s claim that she “suffered no
physical injury.” Appellant’s Brief at 25.
Appellant further maintains that the trial court did not consider his
rehabilitative needs. Appellant’s Brief at 15, 23-26. But Appellant fails to
explain what these rehabilitative needs are, and, thus, we conclude he has
not established entitlement to relief on this point.
For all of these reasons, we conclude that all of Appellant’s issues on
appeal are meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2017
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Circulated 10/10/2017 04:06 PM
COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
ROBERT JACKSON CP-21-CR-3688-2014
OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE
PROCEDURE 1925
Masland, J., October 6, 2016:--
The Defendant, Robert Emanuel Jackson, Jr., following his convictions and
judgment of sentence for the offenses of Rape, Involuntary Deviate Sexual Intercourse,
Burglary, Sexual Assault, Aggravated Assault, Criminal Trespass, Unlawful Restraint,
Terroristic Threats, Simple Assault, and Person Not to Possess a Firearm, complains of
the following matters on appeal:
1. The trial court erred by denying [Defendant's] pre-trial
motion to exclude the recorded phone conversation between
[Defendant] and the victim.
2. The trial court erred by denying [Defendant's] pre-trial
motion to exclude the contents of [Defendant's] diary seized
by the Commonwealth.
3. The trial court abused its discretion when it sentenced
[Defendant] disproportionately to the crimes for which he
was convicted.
4. The trial court erred when it denied [Defendant's] post
sentence motion based on the Jury's verdict being against :,"'
;~"ti;('°') ~..:.)"'\
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the weight of the evidence.
5. The trial court erred by denying [Defendant's] motion for {:};~ ~::
judqrnent of acquittal pertaining to the sufficiency of the 2'.i::;~ o'-i r:.:.,:.,:;:,~
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evidence for the aggravated assault - causing bodily injury nn":)
(-, .:q .{"!':t,o,,;'1:1
tho
with a deadly weapon count.
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. .\1
Statement of Matters Complained of on Appeal, filed August 19, 2016.
CP-21-CR-3688-2014
I. Facts
. In December 2013, the victim, J.W., began a romantic relationship with the
Defendant, Robert Jackson, whom she had met online. In September 2014, she
unilaterally ended the relationship. Despite the end of the relationship, the Defendant
would not stop contacting the victim by phone and social media forcing her to block him
electronically on all platforms. All this notwithstanding, on October 21, the Defendant
showed up at the victim's house unannounced and uninvited, pushed his way in and
pressured the victim into a discussion about their relationship. Ultimately, she
convinced him to leave, which he did without harming her, though he was extremely
angry she had not permitted him to stay overnight.
Ten days later, on Halloween night, the victim was alone in her home getting
ready to go out with friends. There was a knock at her door and, again, it was
Defendant arriving uninvited. She told him to leave and refused to allow him inside.
However, Defendant begged and pleaded that he only wanted to speak to her for five
minutes. Eventually, the victim opened the door and the Defendant entered with a gun
drawn which he put to her head. She screamed and he pushed her inside the house.
He struck her in the face with his hand knocking her to the floor. With the gun held to
her head, he said, "I'm going to kill you, bitch, and I'm going to kill myself." Notes of
Testimony, December 14, 15, 16, and 17 at 66 (hereafter N.T. at_). The Defendant
then grabbed the.victim by her hair and pulled her across the floor into her bedroom
while she begged for her life.
Once in the bedroom, the Defendant closed the door and pointed the gun at the
victim. As he forced the victim to take her clothes off, he taunted her by tracing the
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CP-21-CR-3688-2014
point from the laser scope of the gun over various parts of her body. He demanded she
perform oral sex on him and threatened that if she failed to comply her children would
never see her again. During these threats the Defendant removed the jacket he was
wearing but kept his clothes on while he had his penis out and was masturbating. The
Defendant began counting out loud threatening that if the victim did not comply with his
demands by the time he reached 1 O he would kill her. In fear for her life and against her
will, the victim complied, and performed oral sex on the Defendant. During the entire
time she was being forced to have the Defendant's penis in her mouth, he had the gun
pressed against her head.
After a period of time, the Defendant forced the victim onto her bed and
penetrated her vaginally. He was not wearing a condom and ejaculated almost
immediately. He then attempted to penetrate her anally but, in pain, she screamed and
jumped away. At that moment, the Defendant's demeanor suddenly changed. With
seeming remorse, he said he couldn't believe he hit her and raped and that he could not
go to jail. Still in fear for her life, as the Defendant remained armed, the victim told him
that she would never tell anyone what happened and tried to convince him to consider
his love for his children and just to leave peacefully.
In an apparent attempt to explain his actions and state of mind, the Defendant
then forced the victim to read out loud entries from his personal journal that were stored
on his cellular phone. After, the victim finished reading the journal entries the
Defendant professed his love for her repeatedly and then left. As a result of attack, the
victim suffered facial bruising and fear for her life and safety and the safety of her
children.
-3-
CP-21-CR-3688-2014
In extreme distress and afraid the Defendant may return, the victim's first
concern was for her two children who were out with friends. She left to pick up her
children and took them to the home of a close friend. On the ride over, she called 911
to report the attack. After leaving her children with her friend, the victim proceeded to
the East Pennsboro Police Department. The court notes that at trial defense counsel
attacked some of the victim's recollection of the precise series of events that would
follow. Regardless, she credibly testified that in the ensuing hours she made a
statement to police, had a rape kit examination performed on her at Harrisburg Hospital,
and then later went with an officer to inspect her house,
Shortly thereafter, under the supervision of police, the victim made a recorded
phone call to the Defendant where she confronted him about the attack. During the call
he was apologetic and made several statements that could be construed as admissions.
Police also discovered Defendant's coat at the scene of the crime. Further investigation
revealed an iPad belonging to the Defendant that contained a file entitled "Journal" that
contained statements similar to those included in the digital journal the victim was
forced to read on the night of the attack. Police also discovered a handgun with a laser
scope matching the one used in the attack in the Defendant's home in West Virginia.
Cell phone tower location records for the Defendant's phone also corroborated the
victim's timeline of events and confirmed the Defendant's presence in the vicinity of the
victim's home at the time of the attack. Finally, the rape kit examination and DNA
analysis resulted in a match for the Defendant's semen.
Based on these facts, the Defendant was arrested and charged with numerous
sexual offenses. Following a jury trial, he was convicted of the majority of those
-4-
)
CP-21-CR-3688-2014
offenses and was sentenced to an aggregate sentence of 20.5 to 43 years in a State
Correctional Facility.
II. Discussion
A. Phone Conversation
The Defendant argues the court erred by denying his pre-trial motion to exclude
the recorded phone conversation between himself and the victim on the basis that it
constituted impermissible hearsay.
'The admission 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. Mitchell, 902 A.2d 430, 452 (Pa. 2006). Even if a trial court makes
an erroneous evidentiary ruling, that mistake will not justify a new trial if it constitutes
harmless error. Harmless error exists where:
(1) the error did not prejudice the defendant or the prejudice
was de minimis; (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or
(3) the properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial effect of the
error was so insignificant by comparison that the error could
not have contributed to the verdict.
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002).
Hearsay is an out-of-court statement offered in evidence to prove the truth of the
matter asserted. Pa.RE. 801(c). Generally, hearsay testimony is inadmissible at trial.
Pa.RE. 802. However, Rule 803 provides several exceptions to the hearsay rule,
relevant here:
Rule 803. Exceptions to the Rule Against Hearsay-
Regardless of Whether the Declarant Is Available as a
Witness
-5-
CP-21-CR-3688-2014
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
***
(25) An Opposing Party's Statement. The statement is
offered against an opposing party and:
(A) was made by the party in an individual or representative
capacity[.]
Pa.RE. 803(25)(E).1
During the taped conversation, the Defendant made numerous statements that
can be characterized as admissions. When confronted by the victim, the Defendant
said, "I never meant to hurt you. I'll write you a letter and explain everything to you."
N.T. at 7. These comments, considered in the context of the victim confronting the
Defendant the day after his brutal attack upon her constitute sufficient admissions to
permit them to be offered against the Defendant. This court did not err in admitting the
recording of the telephone call.
B. Diary
Next, the Defendant argues the court erred in allowing the contents of his diary to
be admitted into evidence on the grounds that it is hearsay and contains no admissions
that would make it otherwise admissible. The Commonwealth argued that it was
admissible to show the Defendant's present state of mind. As previously recited there
are several exceptions to the hearsay doctrine. The Rules provide for the admissibility
of "[a] statement of the declarant's then-existing state of mind (such as motive, intent or
1
The Explanatory Comment to Rule 803(25)(E) provides:
The statements in this exception were traditionally, and in prior versions of both the Federal Rules
of Evidence and the Pennsylvania Rules of Evidence, called admissions, although in many cases
the statements were not admissions as that term is employed in common usage. The new
phrase used in fhefederal rules--an opposing party's statement--more accurately describes these
statements and is adopted here.
Pa.R.E(803)(25)(E) (Explanatory Comment).
-6-
CP-21-CR-3688-2014
plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or
bodily health) .... Pa.RE. 803(3).
Here, the diary included an entry written just before the assault occurred
addressed to the victim describing how the Defendant missed the victim and wanted to
get back together with her. It also included an ominous ending: "Journal complete.
Outcome unknown." N.T. at 10. Obsessive diary entries addressed to the victim written
hours before she was attacked by the Defendant are clearly relevant to establishing his
state of mind and motive on the night of the crime. Accordingly, the evidence was both
admissible and relevant.
C. Weightof the Evidence
The Defendant contends that the court erred when it denied his post-sentence
motion based on the jury's verdicts being against the weight of the evidence. Our
Superior Court has stated:
An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court. Our
Supreme Court has explained that 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. A motion for new trial on the
grounds that the verdict is contrary to the weight of the
evidence, concedes that there is sufficient evidence to
sustain the verdict. Thus, the trial court is under no obligation
to view the evidence in the light most favorable to the verdict
winner. A new trial should be awarded when the jury's
verdict is so 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 another opportunity to prevail.
Stated another way, . . . this Court has explained that the
evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.
-7-
CP-21-CR-3688-2014
Commonwealth v. Sullivan, 820 A.2d 795, 805-06 (Pa. Super. 2003) (citations and
internal quotation marks omitted).
At the hearing on the Defendant's Post-sentence Motion, his counsel argued that
the jury's verdict was against the weight of the evidence because even though the
alleged attack occurred on Halloween night in a crowded residential neighborhood, a
police canvass of the area revealed no witnesses who heard the attack. He also argued
that despite the vlctlm's account of the attack, there were no visible extreme physical
injuries on her body to substantiate her claims.
These allegations are insufficient to shock the court's conscience and compel us
to order a new trial. First, whether people who may have been outside of the victim's
home heard the attack is really not relevant. Next, the Defendant raped the victim at
gunpoint thereby using the weapon to force her compliance which would help explain
the lack of extreme physical injuries. Also, as noted by the nurse's testimony at trial,
lack of evidence of physical trauma is not necessarily evidence that a rape did not
occur. Finally, here was DNA evidence showing the Defendant had had intercourse
with the victim and his coat was left at the scene of the crime. Based on these facts and
all the evidence introduced at trial the court is well-satisfied that the jury's verdicts are
not against the weight of the evidence.
D. Disproportionate Sentence
The Defendant complains that the court erred by sentencing his
disproportionately to the crime for which he was convicted. Following the Defendant's
convictions, the court sentenced him to an aggregate sentence of not less than 20 and
one half years to not more than 43 years. At the hearing on the Defendant's post-
-8-
~ CP-21-CR-3688-2014
sentence motion, his counsel argued that this court's judgment of sentence was too
harsh as it ignored the protective needs of the community as the Defendant only had
one victim rather than several. Counsel also noted that as the Defendant was 50 years
old, such a sentence would amount to a life sentence. Counsel also sought to minimize
the degree of physical violence employed by the Defendant during the assault.
As the Commonwealth noted, the sentence imposed is a standard range
sentence and in light of the horrible violence inflicted on the victim, it was wholly
appropriate. This court agreed and stated, "a lesser sentence would depreciate the
seriousness of the crimes involved." In re Transcript of Proceedings Motion to Modify
Sentence, May 23, 2016 at 7. The court submits that this standard range sentence is
not disproportionate to the Defendant's crimes.
E. Sufficiency of the Evidence - Aggravated Assault (Causing Bodily Injury with a
Deadly Weapon)
The Defendant argues the court erred by denying his motion for judgment of
acquittal pertaining to the sufficiency of the evidence for the aggravated assault -
causing bodily injury with a deadly weapon count.
"The standard of reviewing the sufficiency of the evidence is whether the
evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed
in the light most favorable to the Commonwealth as the verdict winner, is sufficient to
support all the elements of the offense beyond a reasonable doubt." Commonwealth v.
Strouse, 909 A.2d 368, 368-69 (Pa. Super. 2006). "The Commonwealth need not
preclude every possibility of innocence or establish the defendant's guilt to a
mathematical certainty." Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa. Super.
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.
CP-21-CR-3688-2014
2005). "The finder of fact-here, the jury-exclusively weighs the evidence, assesses
the credibility of witnesses, and may choose to believe all, part, or none of the
evidence." Commonwealth v. Sanchez, 36 A. 3d 24, 39 (Pa. 2011) (internal citations
omitted).
To establish aggravated assault- causing bodily injury with a deadly weapon,
the Commonwealth must prove the Defendant "attempt[ed] to cause or intentionally or
knowingly cause[dJ bodily injury to another with a deadly weapon ... " 18 Pa.C.S. §
2702(a)(4). Bodily injury is defined asan "[iJmpairment of physical condition or
substantial pain." 18 Pa.C.S. §2301. The statutory definition of deadly weapon
includes, "(a]ny firearm, whether loaded or unloaded .... " Id.
First, this issue is waived. At the close of the case, the Defendant moved for
acquittal on this count, which the court denied, noting at the time that this could present
an issue to be handled post trial. However, in his post-sentence motion, the Defendant
failed to raise this issue in any way, thus depriving the court the opportunity to
reevaluate its previous decision. The Defendant cannot now revive his objection by
raising it in his concise statement of matter complained of on appeal. Further, even if
the court were to reach this issue on the merits, the victim credibly testified that during
the assault the Defendant forcefully pressed the gun against her head and that she
suffered bruising on her face; though it is not totally clear what contact caused the
bruising, some harm occurred. On these facts and allowing full deference to the jury's
role as fact-finder, the jury's verdict of guilty for aggravated assault - cause bodily injury
with a deadly weapon is supported by substantial evidence.
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CP-21-CR-3688-2014
Ill. Conclusion
For all these reasons, this jury's verdicts of guilty and this court's judgment of
sentence should be affirmed in all respects.
By the Court,
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Albert H. Masland, J.
Charles J. Volkert, Jr., Esquire
For the Commonwealth
Eric Delp, Esquire
For Defendant
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Copies mailed on _
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