Com. v. Dunlap, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES DUNLAP, JR. :
:
Appellant : No. 1273 WDA 2018
Appeal from the Judgment of Sentence Entered July 16, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003662-2017
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
MEMORANDUM BY OLSON, J.: FILED MAY 21, 2019
Appellant, James Dunlap, Jr., appeals from the judgment of sentence
entered on July 16, 2018, as made final by the denial of Appellant’s
post-sentence motion on July 30, 2018. We affirm.
In 2017, the Commonwealth charged Appellant with committing
multiple sexual crimes against S.C. (hereinafter “the Victim”). During
Appellant’s jury trial, the Victim testified that, on the night of October 13,
2017, she was at home and heard a knock on her door. N.T. Trial, 4/10/18,
at 18. She answered the door and saw Appellant standing there. Id. at 19.
As she testified, at the time, she had known Appellant for approximately five
or six years and they had previously been in a sexual relationship. Id. at 19-
20.
The Victim testified that Appellant asked whether he could enter her
home, so that they could talk. Id. at 21. When the Victim refused, Appellant
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* Retired Senior Judge assigned to the Superior Court.
J-S27014-19
“pushed his way in” and locked the Victim’s door from the inside. Id. at 21
and 23. The Victim testified that she told Appellant to leave. Id. at 22.
However, Appellant refused, backed the Victim into a corner, and started
licking her neck. Id. She testified that she told Appellant to get off of her
and tried to unlock her door. As the Victim testified:
He runs behind me, put my arms like this and he pushes me
into my room . . . [and] on my bed. . . . [H]e has me by
[the] back of my neck holding me like this and I’m like James
what are you doing, get the fuck off me. . . .
He uses his other hand and then he inserts his penis into –
at first he tried to insert it into my anus. . . . He got like half
– that much in . . . [my] anus. . . . It went in about that
much. I felt about the tip. . . . [And then] I lifted up on my
toes, so it lifted my anus higher out the way. . . . [A]nd he
shoved [his penis] in . . . [m]y vagina.
Id. at 23-24 and 29.
As the Victim testified, during this time, she was continuously telling
Appellant to stop what he was doing, but Appellant refused. Id. at 24-25 and
27-29.
She testified that she was eventually able to move her body in such a
way that Appellant’s penis fell out of her; the Victim then grabbed her phone.
Id. at 30-31. She testified that Appellant ordered her to take a shower, but
she refused, told Appellant to leave, and began to operate her phone. Id. at
31. At that point, Appellant left the Victim’s house and the Victim called the
police. Id. at 32-33.
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When the police arrived, they escorted the Victim to the hospital and
the hospital performed a forensic examination on the Victim. Id. at 37.
Appellant’s DNA was found on samples taken from the Victim’s breast and
neck. N.T. Trial, 4/11/18, at 18 and 19-20.
Appellant testified in his own defense and told the jury that he and the
Victim had consensual intercourse on the night in question. See id. at 48-58.
The jury found Appellant guilty of sexual assault, unlawful restraint, and
indecent assault;1 it found Appellant not guilty of rape, involuntary deviate
sexual intercourse, and criminal trespass. Id. at 134. On July 16, 2018, the
trial court sentenced Appellant to serve an aggregate term of 50 to 100
months in prison, followed by six years of probation, for his convictions. N.T.
Sentencing, 7/16/18, at 14.
The trial court denied Appellant’s post-sentence motion on July 30, 2018
and Appellant filed a timely notice of appeal. Appellant raises one claim on
appeal:
Did the Commonwealth present insufficient evidence to
sustain each of Appellant’s convictions as (1) the testimony
was so contradictory on the essential issues that the jury’s
findings were based on speculation and conjecture, and (2)
the verdicts are entirely inconsistent?
Appellant’s Brief at 7 (some capitalization omitted).
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1 18 Pa.C.S.A. § 3124.1, 2902(a)(1), and 3126(a)(2), respectively.
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Appellant claims that the evidence was insufficient to sustain his
convictions. We review Appellant's sufficiency of the evidence challenge under
the following standard:
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 [that of] 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. Brown, 23 A.3d 544, 559–560 (Pa. Super. 2011) (en
banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805–806 (Pa.
Super. 2008).
First, Appellant claims, the evidence was insufficient to sustain his
convictions because “the testimony was so contradictory on the essential
issues that the jury’s findings were based on mere conjecture and
speculation.” Appellant’s Brief at 21; see also Commonwealth v. Brown,
52 A.3d 1139, 1156 n.18 (Pa. 2012) (holding: a claim that “the testimony
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presented to the [fact-finder] was so unreliable and contradictory that the[]
verdict could only have been arrived at through speculation and conjecture .
. . [is] a challenge to the sufficiency [of the evidence]”).
On appeal, Appellant argues that the following inconsistencies support
his claim: a) the Victim testified that “she did not want to have sex with
Appellant” on the night in question “because she already had another man
coming over;” however, “this man never arrived that evening;” b) the Victim
“presented conflicting testimony/statements as to whether Appellant locked
her front door or her bedroom door;” c) the Victim “testified that Appellant
tried to penetrate her anus with his penis, but never mentioned this to the
forensic nurse;” d) the Victim testified that, “after the incident, Appellant
wanted her to take a shower, turned on the water and asked to shower with
her, but told the forensic nurse that Appellant tried to push her into the shower
and told [Erie County Detective Matthew Gustafson] that Appellant only asked
[her] to wipe up;” e) the Victim described a struggle with Appellant, but she
also testified that Appellant “managed to get his pants and hooded sweatshirt
off before she [] broke free;” and, f) the Victim “testified that Appellant drank
from her glass of juice after raping her, but never mentioned this detail to
[Detective] Gustafson.” Appellant’s Brief at 24-25 (citations omitted).
Appellant cites Commonwealth v. Karkaria, 625 A.2d 1167 (Pa.
1993) in support of his argument that the contradictory evidence presented
at trial was insufficient to establish guilt. Karkaria, however, is
distinguishable from the case at bar. In Karkaria, the Commonwealth relied
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upon the testimony of the complainant to establish the defendant’s guilt.
However, the complainant’s statements and testimony repeatedly
contradicted each other from the time the investigation began through trial.
Thus, our Supreme Court found that the evidence was insufficient to convict
Karkaria. Id. at 1168; see also Commonwealth v. Bennett, 303 A.2d 220(Pa. Super. 1973) (holding that the evidence was insufficient to support the
defendant’s convictions where the only witness who testified against the
defendant continually changed his story and gave contradictory testimony as
to the “essential issues” in the case).
On appeal, Appellant cites to multiple tangential issues in which, he
claims, the Victim contradicted herself. Appellant’s Brief at 24-25. These
tangential issues do not provide Appellant with an avenue of relief, as any
contradiction regarding these issues is not so significant as to render the
Victim’s testimony unworthy of any weight.
The only “essential issue” Appellant notes concerns his claim that the
Victim “testified [] Appellant tried to penetrate her anus with his penis, but
never mentioned this to the forensic nurse.” See Appellant’s Brief at 24.
Initially, we note that this is an example of an omission – not a contradiction.
Further, and at any rate, the Victim’s testimony regarding Appellant’s sexual
assault, indecent assault, and unlawful restraint of her on the night in question
was detailed, consistent, and unwavering. See N.T. Trial, 4/10/18, at 12-98.
Appellant’s single citation to an omission, in the Victim’s statement to the
forensic nurse, of Appellant’s penetration of her anus does not render the
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Victim’s testimony regarding Appellant’s actions that night “so inherently
unreliable that a verdict based upon [her testimony] could amount to no more
than surmise or conjecture.” Karkaria, 625 A.2d at 1170 (quotations and
citations omitted). Appellant’s claim to the contrary fails.
Appellant also claims that the evidence was insufficient to support his
convictions because the jury’s verdict was inconsistent. Appellant’s Brief at
25-28. As we have held:
it is well-settled that inconsistent verdicts are permissible in
this Commonwealth.
...
[I]nconsistent verdicts, while often perplexing, are not
considered mistakes and do not constitute a basis for
reversal. Consistency in verdicts in criminal cases is not
necessary. When an acquittal on one count in an indictment
is inconsistent with a conviction on a second count, the court
looks upon the acquittal as no more than the jury's
assumption of a power which they had no right to exercise,
but to which they were disposed through lenity. Thus, this
Court will not disturb guilty verdicts on the basis of apparent
inconsistencies as long as there is evidence to support the
verdict. The rule that inconsistent verdicts do not constitute
reversible error applies even where the acquitted offense is a
lesser included offense of the charge for which a defendant is
found guilty.
Commonwealth v. Barnes, 167 A.3d 110, 120 (Pa. Super. 2017) (en banc)
(quotations and citations omitted).
Appellant acknowledges the above precedent and recognizes that we
are bound by the holding of Barnes. See Appellant’s Brief at 26-27.
Nevertheless, Appellant declares that he is advancing his current argument to
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“preserv[e] the issue for potential review in the Supreme Court of
Pennsylvania.” Id. at 28 n.1. We appreciate Appellant’s candor. However,
as Appellant is aware, we are bound by Barnes. Therefore, Appellant’s claim
that he is entitled to relief “due to the indisputable inconsistency of the
verdict[]” necessarily fails. See Barnes, 167 A.3d at 120.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2019
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