Com. v. Keyes, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEROME KEYES :
:
Appellant : No. 987 WDA 2019
Appeal from the Judgment of Sentence Entered May 31, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003276-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED JULY 21, 2020
Jerome Keyes (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of rape and simple assault – bodily injury.1
Upon review, we affirm.
In the early morning hours of October 17, 2018, the victim, D.V., walked
to a convenience store in Erie to buy cigarettes. N.T., 4/10/19, at 11-12.
D.V. exited the store and began to walk back to her home, which was nearby.
Id. at 13. While D.V. was walking, a man, whom D.V. later identified as
Appellant, approached her and held a pointed object to her neck. Id. at 15-
16. D.V. put her hands in the air and Appellant demanded that she enter his
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3121(a)(1), 2701(a)(1).
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semi-truck, which was parked nearby. Id. at 16-17. D.V., fearing for her life,
complied. Id. at 17.
Appellant followed D.V. into the truck, drove off, and demanded that
D.V. enter the rear cabin area and take off her clothes. Id. at 18, 22.
Appellant parked the truck and joined D.V. in the cabin area, where she was
lying on a bed. Id. at 23-26, 28. D.V. testified that she had no means of
escape. Id. at 31. Appellant removed his clothes and told D.V. to lay on her
stomach. Id. at 24, 28. Appellant penetrated her anus with his penis, which
“hurt really bad” and caused her to evacuate her bowels. Id. at 29-30.
Appellant also penetrated her vagina. Id. at 31. Appellant forced D.V. to
perform oral sex on him. Id. at 32. This caused her to gag, and Appellant
smacked her on the right side of her head. Id. at 33-34. Appellant also (1)
punched D.V. in the eye when she begged him to stop the painful sex, id. at
34; (2) ripped out multiple patches of D.V.’s hair and choked her, id. at 37;
and (3) threatened to kill D.V. if she did not comply with his demands. Id. at
37-38. Appellant kept repeating the pattern of anal, vaginal and oral sex,
which, D.V. estimated, lasted an hour. Id. at 32, 35-37.
D.V. testified that Appellant eventually stopped the assault to clean
himself, and she seized the opportunity to try to escape. Id. at 36. When
Appellant noticed, he grabbed D.V. and stabbed her in the leg with a sharp
object. Id. at 36, 42. D.V. managed to evade Appellant’s grip and jump out
of the truck completely naked. Id. at 36, 41-43.
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D.V. ran from the truck and waved at passing vehicles, pleading for
them to stop. Id. at 43. D.V. eventually knocked on the front door of a
nearby home. Id. at 44. The homeowner, Beverly Denning (Denning),
testified that she opened her front door at approximately 2:00 a.m. and
discovered D.V., completely naked and trembling. N.T., 4/9/19, at 25-26, 28.
Denning invited D.V. into her home. Id. at 26. D.V. stated that she had just
been raped by a man in his truck; in response, Denning called 911. Id. at 27,
30.
At trial, D.V. testified that she lacks bowel continence as a result of the
rape. N.T., 4/10/19, at 47. She also suffered a concussion, as well as injuries
to her leg, feet and ovaries. Id. The assault caused D.V. to lose vision in one
eye, and to need glasses. Id. at 49.
When the police interviewed D.V., she gave a physical description of her
assailant and described the semi-truck as being a midnight blue or black, with
no trailer, and bearing a white placard with white lettering on the side. Id. at
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220-21.2 D.V. later identified Appellant from a photographic line-up as her
assailant. Id. at 247. The police arrested Appellant and obtained a search
warrant for his truck. Id. at 248. Forensic testing of a pillowcase taken from
the truck revealed DNA from both D.V. and Appellant. Id. at 251.
Appellant testified that on the day of the assault, he was driving his
truck and noticed D.V. on the sidewalk, waving at him and jumping up and
down. N.T., 4/11/19, at 68. Appellant pulled over and parked, and D.V.
immediately opened the passenger door and sat down. Id. at 69. According
to Appellant, D.V. told him that she was “trying to make some money”; she
then grabbed his penis and took off her shirt while he was driving. Id. at 71.
Appellant stated that he denied D.V.’s sexual advances, and gave her cash to
help her children. Id. at 72. Appellant stated that D.V. said she had been
fighting with her husband, who hit her in the head while the couple was
arguing over crack cocaine. Id. at 77-78. According to Appellant, D.V. was
persistent in engaging in sex acts, and directed him to park his truck to that
end. Id. at 73-74, 83. Appellant complied, went to the cabin area of the
truck, and found D.V. naked and smoking crack cocaine. Id. at 97-98.
Appellant detailed numerous sex acts that D.V. allegedly performed upon
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2 The Commonwealth presented surveillance camera footage taken at a corner
located near the scene of the assault. N.T., 4/10/19, at 186-88. The video
showed a midnight blue semi-truck, with no trailer, circling the general area
where the assault occurred. Id. at 189-190. Surveillance video taken from a
separate camera in the area showed the same semi-truck, with matching
logos, in the area, and D.V. running from the truck. Id. at 232-35.
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herself to entice Appellant. Id. at 97, 109-11; see also id. at 112 (Appellant
stating that D.V. “raped herself” and defecated on herself while performing
these acts). Appellant claimed he encouraged D.V. to put her clothes back on
so they could leave; however, D.V. refused and proceeded to ingest more
drugs. Id. at 124-26. Appellant stated that D.V. became increasingly
paranoid and ran naked from the truck. N.T, 4/11/19, at 12-15. Appellant
denied engaging in sex acts with D.V. and denied hitting her. Id. at 21-22.
The Commonwealth charged Appellant with rape and simple assault –
bodily injury; the Commonwealth additionally charged Appellant with
involuntary deviate sexual intercourse, sexual assault, indecent assault, and
simple assault by physical menace (collectively “the remaining offenses”).
Trial convened in April 2019, after which the jury convicted Appellant of rape
and simple assault – bodily injury. The jury found Appellant not guilty of the
remaining offenses.
By Order entered April 15, 2019, the trial court directed Pennsylvania’s
Sexual Offenders Assessment Board to perform an evaluation as to whether
Appellant met the requirements for classification as a sexually violent predator
(SVP).
On May 31, 2019, the trial court sentenced Appellant to six to 20 years
in prison for rape, and imposed a consecutive six to 12 months for simple
assault. Additionally, the Commonwealth notified Appellant of his obligation
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to register as a sex offender for his lifetime, pursuant to the Sexual Offender
Registration and Notification Act (SORNA), 42 Pa.C.S.A. § 9799.10 et seq.3
The certified record does not contain an order relative to Appellant’s SVP
classification/SOAB evaluation. However, a guideline sentence form, filed on
June 5, 2019, indicates that the trial court found Appellant to be an SVP.4
Appellant filed a timely notice of appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
On appeal, Appellant presents three issues for review:
1. Did the Commonwealth present insufficient evidence to
establish that Appellant committed rape and simple assault
(causing bodily injury)[,] as the jury’s inconsistent verdicts on
the other related charges demonstrate that the Commonwealth
could not have established the elements of the offenses beyond
a reasonable doubt?
2. Does SORNA’s lifetime registration requirement constitute an
illegal sentence[,] as the registration/notification provisions
constitute punishment and effectively extend Appellant’s
maximum sentence without a jury’s finding of the offender’s
future dangerousness?
3. Does Appellant’s lifetime registration requirement constitute an
illegal sentence [] violative of the state and federal
constitutional protections against cruel and unusual
punishment?
Appellant’s Brief at 9.
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3 SORNA mandates that based on Appellant’s conviction of rape, a Tier III
sexual offense, he must report as a sex offender for his lifetime. 42 Pa.C.S.A.
§ 9799.15(a)(3).
4Under SORNA, SVPs are required to report as sex offenders for their lifetime.
42 Pa.C.S.A. § 9799.15(a)(6).
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Appellant first argues that the Commonwealth failed to present sufficient
evidence for the jury to convict him of rape and simple assault, because the
jury acquitted him of the remaining offenses. See id. at 27-32.
In reviewing a challenge to the sufficiency of the evidence:
. . . we evaluate the record in the light most favorable to the
verdict winner[,] giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances. The
Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, [t]he fact that the evidence
establishing a defendant’s participation in a crime is circumstantial
does not preclude a conviction where the evidence[,] coupled with
the reasonable inferences drawn therefrom[,] overcomes the
presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
defendant’s crimes beyond a reasonable doubt, the [] convictions
will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329 at 336-37 (Pa. Super. 2019)
(citation and paragraph break omitted).
Appellant argues:
Given that a jury found beyond a reasonable doubt that Appellant
committed rape, one can only conclude that the jury found the
factual predicate of that offense was proven beyond a reasonable
doubt, namely, that Appellant had sexual intercourse (which
would include oral, anal or vaginal intercourse) with [the victim]
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by forcible compulsion.[5] If the jury concluded that this factual
predicate was proven, how did the jury conclude that Appellant
had not also committed [the remaining offenses]?
Appellant’s Brief at 29 (footnote added); see also id. at 30 (Appellant making
the same argument concerning the jury’s convicting him of simple assault –
bodily injury, but not simple assault by physical menace).
Appellant’s claim is unavailing. It is well settled that inconsistent
verdicts are permissible in Pennsylvania. Commonwealth v. Rose, 960 A.2d
149, 158 (Pa. Super. 2008).
Inconsistent verdicts, while often perplexing, are not considered
mistakes and do not constitute a basis for reversal. Rather,
the rationale for allowing inconsistent verdicts is that it is the
jury’s sole prerogative to decide on which counts to convict in
order to provide a defendant with sufficient punishment. When
an acquittal on one count is inconsistent with a conviction on a
second count, the court looks upon the acquittal as no more than
the jury’s assumption of 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 sufficient evidence to support
the verdict. Further, an acquittal cannot be interpreted as a
specific finding in relation to some of the evidence.
Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015) (emphasis
added; citations, brackets, quotes and paragraph break omitted).
Appellant acknowledges the above authority. However, he argues “this
line of cases should be revisited by the Supreme Court of Pennsylvania, as the
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5 Appellant references the statutory definitions of some of the remaining
offenses, of which Appellant was acquitted, including, inter alia, sexual assault
and indecent assault. See Appellant’s Brief at 29 (citing 18 Pa.C.S.A. §§
3124.1, 3126(a)(2)).
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Court should not simply speculate that a jury’s inconsistent verdict was the
product of lenity rather than mistake or confusion.” Appellant’s Brief at 31.
Even if we were to agree with Appellant’s claim — we do not — we are
bound by the prior published decisions of this Court and the Pennsylvania
Supreme Court. See Commonwealth v. Alston, 212 A.3d 526, 529, n.4
(stating “this Court is bound by existing precedent and continues to follow
controlling precedent unless it is overturned by our Supreme Court.” (Pa.
Super. 2019) (citation omitted)).
In addition, the evidence adduced at trial, as summarized in our factual
recitation, supra, is sufficient to sustain Appellant’s convictions of rape and
simple assault – bodily injury,6 where:
(1) D.V. described Appellant’s numerous, horrific assaults in
great detail, see N.T., 4/10/19, at 18-43;
(2) Once D.V. was able to flee after Appellant had repeatedly
raped and struck her, she immediately reported the rape to
Denning, see id. at 43-44; N.T., 4/9/19, at 25-28;
(3) Surveillance video showed D.V., naked, running from
Appellant’s truck, see N.T., 4/10/19, at 32-35;
(4) D.V. identified Appellant as her assailant shortly after the
incident, see id. at 247; and
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6The Crimes Code provides that a person commits rape, a felony of the first
degree, “when the person engages in sexual intercourse with a complainant
… [b]y forcible compulsion.” 18 Pa.C.S.A. § 3121(a)(1). To obtain a
conviction of simple assault, the Commonwealth must prove that the
defendant attempted “to cause or intentionally, knowingly or recklessly causes
bodily injury to another[.]” Id. § 2701(a)(1).
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(5) The police discovered DNA from both D.V. and Appellant on a
pillowcase seized from Appellant’s truck. Id. at 251.
Here, the jury, as fact-finder, was free to believe all, part, or none of
the testimony presented, and credibility determinations are solely within its
province. Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super.
2018). The jury ostensibly accepted the testimony proffered by D.V. and the
Commonwealth’s witnesses, and discredited Appellant’s self-serving account
of events. Further, the testimony of D.V., alone, was sufficient to support the
jury’s guilty verdict. See Commonwealth v. Izurieta, 171 A.3d 803, 807
(Pa. Super. 2017) (stating that the uncorroborated testimony of a sexual
assault victim, if believed, alone is sufficient to support a sex offense
conviction); see also 18 Pa.C.S.A. § 3106. Thus, Appellant’s first issue is
meritless.
In his second issue, Appellant contends that the requirement that he
register as a sex offender for his lifetime under SORNA is unlawful pursuant
to precedent.7 See Appellant’s Brief at 33-37.8 Appellant relies upon the
decisions in Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017)
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7 Appellant does not mention or challenge his classification as an SVP.
8 The Commonwealth asserts that Appellant waived this issue – as well as his
third issue, which likewise implicates the legality of his sentence – for his
failure to raise it in his court-ordered Rule 1925(b) concise statement. See
Commonwealth Brief at 6. However, the Commonwealth disregards that
issues implicating the legality of a sentence cannot be waived. See
Commonwealth v. Olson, 179 A.3d 1134, 1137 n.4 (Pa. Super. 2018).
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(holding that SORNA’s registration requirements constitute criminal
punishment, as opposed to a civil penalty; therefore, their retroactive
application violates the ex post facto clauses of the United States and
Pennsylvania Constitutions), and Commonwealth v. Butler, 173 A.3d 1212,
1218 (Pa. Super. 2017) (Butler I) (applying Muniz and holding that SORNA’s
SVP determination procedure was unconstitutional, pursuant to Alleyne v.
United States, 570 U.S. 99, 108 (2013), since it increases the criminal
penalty to which a defendant is exposed without the fact-finder making the
necessary factual findings beyond a reasonable doubt). See Appellant’s Brief
at 34-37.
“Issues relating to the legality of a sentence are questions of law. Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Prieto, 206 A.3d 529, 534 (Pa. Super.
2019) (citation omitted).
To the extent Appellant relies upon Butler I, supra, that case is no
longer good law. In reversing Butler I, the Pennsylvania Supreme Court
recently held that SORNA’s (1) lifetime sex offender registration and reporting
requirements applicable to SVPs do not constitute criminal punishment; and
(2) the procedure for designating offenders as SVPs does not violate Alleyne,
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supra. Commonwealth v. Butler, 226 A.3d 972, 987-93 (Pa. 2020)
(Butler II).9
Moreover, Appellant’s registration requirement does not run afoul of
Muniz, supra (finding an ex post facto violation in the retroactive application
of SORNA’s registration provisions to defendants whose crimes occurred prior
to SORNA’s effective date (December 20, 2012)). In this case, Appellant was
sentenced after SORNA’s effective date – and after the effective date of the
amendments to SORNA.10 SORNA mandates that based on Appellant’s
conviction of a Tier III sexual offense, he must register as a sex offender for
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9 Butler II was decided on March 26, 2020, during the pendency of this
appeal. We note:
When th[e Pennsylvania Supreme] Court issues a ruling that
overrules prior law, [or] expresses a fundamental break from
precedent, upon which litigants may have relied, … th[e Supreme]
Court announces a new rule of law. One of the hallmarks of whether
th[e Supreme] Court has issued a new rule of law is if the decision
overrules, modifies, or limits any previous [appellate] opinions
…. While retroactive application of a new rule of law is a matter of
judicial discretion usually exercised on a case-by-case basis, the
general rule is that the decision announcing a new rule of law is
applied retroactively so that a party whose case is pending on direct
appeal is entitled to the benefit of the changes in the law.
In the Interest of L.J., 79 A.3d 1073, 1087 (Pa. 2013) (citations and
quotation marks omitted); see also In re J.C., 2020 PA Super 115, **12-13
(Pa. Super. 2020) (en banc) (applying the new rule of law announced in
Butler II retroactively).
10 See H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018
(effective February 21, 2018); H.B. 1952, 202 Gen. Assem., Reg. Sess. (Pa.
2018), Act 29 of 2018 (effective June 12, 2018).
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life. See 42 Pa.C.S.A. § 9799.15(a)(3). Therefore, there was no retroactive
application of SORNA. See Prieto, 206 A.3d at 535 (relying upon
Commonwealth v. Golson, 189 A.3d 994, 1003 (Pa. Super. 2018) (directing
“trial courts to apply only the applicable tier-based registration period, as
those periods apply based on the conviction itself, and not due to any
additional fact not found, under SORNA’s procedures, by the fact-finder.”)).
Appellant’s second issue is meritless.
In his third and final issue, Appellant asserts that SORNA’s lifetime
registration requirement violates his constitutional protection against cruel
and unusual punishment. See Appellant’s Brief at 38-40. We disagree, based
upon this Court’s prior decisions rejecting this same argument. See Prieto,
206 A.3d at 536; see also In re J.C., 2020 PA Super 115, **14-15.
Accordingly, Appellant’s third issue fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2020
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