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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DWAYNE HILL, :
:
Appellant : No. 2354 EDA 2013
Appeal from the Judgment of Sentence Entered July 12, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0014013-2008.
BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 02, 2014
Appellant, Dwayne Hill, appeals from the judgment of sentence
entered on July 12, 2013, in the Philadelphia County Court of Common
Pleas. We affirm.
The relevant facts and procedural history of this matter were set forth
by the trial court as follows:
[Appellant] was arrested on August 24, 2008, and charged
with numerous offenses arising from the alleged rape of a 16
year old female [(“the victim”)]. His pretrial motion to suppress
the statement he gave to the police at the time of his arrest was
denied on December 22, 2009. At a jury trial concluded on May
25, 2012, he was convicted of Rape by Forcible Compulsion and
found not guilty of Involuntary Deviate Sexual Intercourse by
Forcible Compulsion, all of the other related charges having been
nolle prossed prior to trial. His post verdict motion for relief was
denied on April 19, 2013, he was sentenced to eight (8) to
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*Retired Senior Judge assigned to the Superior Court.
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sixteen (16) years incarceration on July 12th, and this timely
appeal was filed on August 9th. In short, the evidence showed
that shortly after midnight on June 11, 2008, he assaulted the
victim on a public sidewalk, dragged her into an alley and
forcibly raped her while threatening to use a knife. The state’s
case mainly consisted of the complainant’s testimony that
[Appellant] abducted her and forced her to engage in oral and
vaginal sex and her identification of him in court, [Appellant’s]
statement to the police, in which he at first denied but, after
being advised that his DNA had been found in the victim’s
vagina, then admitted to having had vaginal, but not oral, sex
with her at the time and location [the victim] had said that the
incident had occurred . . . .
Trial Court Opinion, 3/13/14, at 1-2 (footnotes omitted).
On appeal, Appellant raises the following issues for this Court’s
consideration:
1. Was not the evidence admitted at trial, including the
identification of [A]ppellant by the [victim], [A]ppellant’s
statement, and the DNA evidence insufficient to prove that
[A]ppellant was the perpetrator of the crime?
2. Did not the lower court err in denying [A]ppellant’s motion to
suppress his statement given to police inasmuch as the
Commonwealth failed to meet its burden that [A]ppellant, who
told police he was illiterate prior to the interrogation, made a
knowing, voluntary and intelligent waiver of his Miranda rights?
Appellant’s Brief at 4. We will address these issues in the order in which
they were presented.
In his first issue on appeal, Appellant challenges the sufficiency of the
evidence. In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the Commonwealth as
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verdict winner, was sufficient to prove every element of the offense beyond
a reasonable doubt. Commonwealth v. James, 46 A.3d 776 (Pa. Super.
2012). It is within the province of the fact-finder to determine the weight to
be accorded to each witness’s testimony and to believe all, part, or none of
the evidence. Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007);
Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence. Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011).
Moreover, as an appellate court, we may not re-weigh the evidence and
substitute our judgment for that of the fact-finder. Commonwealth v.
Ratsamy, 934 A.2d 1233 (Pa. 2007). Any doubts regarding a defendant’s
guilt may be resolved by the fact-finder unless the evidence is so
inconclusive that as a matter of law no probability of fact may be drawn
from the circumstances. Moreno, 14 A.3d at 133.
As noted above, Appellant was convicted of rape by forcible
compulsion. This crime is straightforwardly defined as follows: “A person
commits a felony of the first degree when the person engages in sexual
intercourse with a complainant … [b]y forcible compulsion.” 18 Pa.C.S. §
3121(a)(1).
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Upon review of the issue as presented, we agree with the
Commonwealth that Appellant is not challenging the sufficiency of the
evidence, but rather the weight of the evidence. Commonwealth’s Brief at
12. Appellant argues that his statement to police, the victim’s identification,
and the DNA evidence were “insufficient.” Appellant’s Brief at 17. However,
Appellant is actually challenging credibility, and thus, the weight of the
evidence in those issues.1
An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. Commonwealth v. Manley,
985 A.2d 256, 262 (Pa. Super. 2009) (citation omitted). Appellate review of
a challenge to the weight of the evidence is a review of the trial court’s
discretion, not of the underlying question of whether the verdict is against
the weight of the evidence. Id. (citation omitted). To grant a new trial on
the basis that the verdict is against the weight of the evidence, the evidence
must be so tenuous, vague, and uncertain that the verdict shocks the
conscience of the court. Id. (citations and quotation marks omitted).
In order to preserve a challenge to the weight of the evidence, the
defendant must present the claim either in an oral or written motion prior to
sentencing or in a timely-filed post-sentence motion. Commonwealth v.
1
The admissibility of Appellant’s statement to the police will be addressed
in our discussion of Appellant’s second issue.
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Lopez, 57 A.3d 74, 80 (Pa. Super. 2012) (citing Pa.R.Crim.P. 607). Here,
Appellant raised a challenge to the weight of the evidence in a pre-sentence
motion for extraordinary relief that was denied following a hearing on April
19, 2013. Accordingly, Appellant’s challenge to the weight of the evidence
was preserved.
In its opinion, the trial court responded to Appellant’s claim of error as
follows:
In his post verdict motion seeking an arrest of judgment or
a new trial7, counsel made no mention of the defendant’s
statement to the police or the victim’s identification, but simply
claimed, with regard to all the evidence in general, “. . . that the
verdict of the jury was so grossly inconsistent that a new trial is
mandated in the interests of justice” without specifying what
particular items of evidence were inconsistent, and, with regard
to the DNA,
“. . . that the scientific evidence introduced at trial
not only created a reasonable doubt but proved
conclusively that petitioner could not have
committed the rape because, while [t]he DNA
evidence presented by the prosecution disclosed that
a mixture containing DNA of the complainant and her
assailant was preserved in the normal course during
her examination immediately after she was
assaulted[, it] further established that there was a
DNA marker, or allele, that was foreign to the DNA
provided by petitioner and the complainant thereby
excluding petitioner as the person who committed
the crime and [a]t trial the prosecutor elicited
reasons for the existence of the aforementioned
allele from her forensic examiner which amounted to
conjecture and speculation and which had absolutely
no factual basis.”
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At the hearing on the motion, counsel’s argument as to the
inconsistent verdict was simply:
Judge, the main thrust of the motion, besides
the verdicts being so grossly inconsistent as to
render -- and to render them unreliable. I mean,
there is just no way in this case that the jury could
find the defendant guilty of one charge and not the
other charge.
Obviously, they didn’t even appreciate or
consider the evidence because it was an ID case, ID
in a scientific case.
The incident occurred. What happened to [the
victim] happened to [the victim]. There’s no question
about it. It was conceded. It was never argued. Yet,
the jury chose to completely disregard the predicate
act to the rape in this case and find him not guilty of
that charge.
In that sense, I don’t think that it’s just
something minor. I don’t think it’s something that
would give confidence to the jury verdict. In fact, I
don’t think it’s something that’s inconsequential. I
think it’s significant. I think it shocks the conscience
that the jury could hear an identification case and
make the decision that they did.
Notes of Testimony, Motion Volume 1, April 19, 2013, p. 5. His
argument on the DNA evidence, though very verbosely
presented, simply boiled down to, as indicted by the motion, that
it was faulty because the examiner found a single unmatched
marker in the sample in which he found the defendant’s and the
complainant’s markers. Id., pp. 5-20.
7
Motion for Extraordinary Relief, pars. 6, 2-5,
presented to and heard and denied by the court on
April 19, 2013.
As pointed out by the Commonwealth in its response to the
motion and by the court in its ruling, the apparent inconsistency
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in the two verdicts could simply have resulted from the jury
having found that all of the elements of the crime for which he
was convicted were proven to have occurred but that one or
more of the elements of the other were not, and that all of these
arguments were all thoroughly presented to the jury, which
obviously discounted them.8 The defendant’s arguments simply
represent an attempt to have the court view those minute pieces
of evidence in a light more favorable to the defendant than to
the verdict winner and completely disregard all the other
evidence, in particular the defendant’s undisputed admission that
he did have vaginal intercourse with the victim at the time and
place that she said he raped her.
THE COURT: It’s not necessarily inconsistent
because you have two sexual acts defined differently
under the Crimes Code and the jury comes back with
a guilty of one and a not guilty of another. During
the testimony there could have been some question
of whether the necessary element of penetration
relevant to the IDSI was actually achieved.
If the jury found that there was no penetration
however slight, then they can conceivably find him
not guilty of the IDSI and guilty of the rape where
they did find penetration was complete as a
necessary element. And it’s not necessarily an
inconsistent verdict.
Although it’s not dispositive and you cannot
ignore the DNA evidence in this case, I posit that you
could legitimately argue in this case, although it’s
capable of different interpretations, that you have no
contest as to the fact that there was a sexual act
performed on a complaining witness.
You can argue, as the Commonwealth did, that
in his statement the defendant agreed that he had
sex, although in his statement consensually for
money, $10 I believe, had sex. So the question of
whether there was sexual intercourse becomes
moot.
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The only question that remains is whether it
was consensual or not. And the complainant testified
it was not. The defendant, who need not be
identified since according to the argument made
based upon the statement that he had sex with the
lady, there’s no identity question.
If you take the DNA evidence totally out of the
case, what do you have? A sexual act that is
admitted by both sides. The only argument is
whether it was consensual or not. And the jury
rejected any argument that could be founded in
nonconsensual activity. However, DNA did, as
counsel quite correctly points out, form an important
part in this case.
On a motion for extraordinary relief, however,
the jury heard all these arguments and rejected
them. Counsel may not like it and find it illogical or
unreasonable that they rejected them, but they
rejected them.
And the Court sees nothing extraordinary
about that other than displeasure. As far as I’m
concerned, the motion is denied.
Id., pp. 21-2. With regard to the DNA, the only “conjecture and
speculation” that the examiner offered were simply his
explanations as to why the specimen he examined also
contained an unmatched marker, those being possible
contamination by the test kit makers or handlers; he
emphatically testified that the mere presence of such a minor
artifact in no way excluded or even raised a reasonable question
of the actual presence of both the complainant’s and the
defendant’s DNA nor the statistical probabilities that it was, in
fact, his DNA and not someone else’s. As for the verdicts in
general, there is no real inconsistency in finding a rape but not
an indecent assault.
8
The Commonwealth noted that the acquittal for
DST could have resulted from the facts that, while
the defendant admitted to the police to having had
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vaginal intercourse with the victim, he denied having
oral sex, and while the defendant’s DNA was found in
the victim’s vagina, none was found in her mouth.
Trial Court Opinion, 3/13/14, at 13-15.
We agree with the trial court. The jury weighed the victim’s
testimony, Appellant’s version of events, and the DNA evidence, and the
jurors chose to credit the Commonwealth’s case. Nothing in the verdict
shocks one’s conscience, and we conclude there was no abuse of discretion
in the trial court denying Appellant’s post-verdict motion challenging the
weight of the evidence.
Insofar as Appellant’s issue has raised a challenge to the sufficiency of
the evidence, we conclude that he is entitled to no relief. Here, the victim
testified that Appellant stopped her on the street and dragged her into an
alley while she was screaming. N.T., Trial, 5/22/12, at 88.2 She stated that
Appellant held her at knifepoint, forced her to her knees, and directed her to
perform fellatio. Id. at 90. She testified that when she tried to run,
Appellant grabbed her arm and exposed his penis forcing her to perform
fellatio. Id. at 91. Appellant then put a condom on and continued to
compel the victim to perform fellatio. Id. at 92. The victim testified that
2
We point out that there is an error in each of the volumes of the notes of
testimony from Appellant’s trial. While the trial was held in May of 2012, the
cover page and header from the notes of testimony state that the trial was
in May of 2013. As the record reveals that trial was in May of 2012, that is
the date we will utilize throughout our discussion.
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Appellant forced her on her hands and knees and penetrated her vagina with
his penis. Id. at 92. The victim stated that Appellant then turned her over
on her back and continued to penetrate her vagina with his penis. Id. at
93-94. She testified that she was crying, she could not get Appellant from
atop her, and that she had no choice in this attack. Id. When Appellant
completed his assault, he told the victim to count to 100, and he fled. Id. at
95. The victim then pulled her shorts back on and reported that she was
raped. Id. at 98.
It is well settled that “the uncorroborated testimony of a sexual assault
victim, if believed by the trier of fact, is sufficient to convict a defendant.”
Commonwealth v. McDonough, 96 A.3d 1067, 1069 (Pa. Super. 2014).
Here, the jury believed that the victim was raped and convicted Appellant.
Upon review, we are satisfied that, even if we were to discount all of the
additional evidence of Appellant’s guilt, the Commonwealth, through the
testimony of the victim alone, established sufficient evidence that Appellant
committed the crime of rape by forcible compulsion beyond a reasonable
doubt.
In his second issue, Appellant claims the trial court erred in denying
his motion to suppress the statement he made to the police. “The admission
of evidence is within the sound discretion of the trial court, and will be
reversed on appeal only upon a showing that the trial court clearly abused
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its discretion.” Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super.
2004) (en banc) (citing Commonwealth v. Lilliock, 740 A.2d 237 (Pa.
Super. 1999)). Abuse of discretion requires a finding of misapplication of
the law, a failure to apply the law, or judgment by the trial court that
exhibits bias, ill-will, prejudice, partiality, or was manifestly unreasonable, as
reflected by the record. Commonwealth v. Montalvo, 986 A.2d 84, 94
(Pa. 2009).
Moreover, we are aware that Pennsylvania Rule of Criminal Procedure
581, which addresses the suppression of evidence, provides in relevant part
as follows:
(H) The Commonwealth shall have the burden . . . of
establishing that the challenged evidence was not obtained in
violation of the defendant’s rights.
Pa.R.Crim.P. 581(H).
The standard of review an appellate court applies when
considering an order denying a suppression motion is well
established. An appellate court may consider only the
Commonwealth’s evidence and so much of the evidence for the
defense as remains uncontradicted when read in the context of
the record as a whole. Commonwealth v. Russo, 594 Pa. 119,
126, 934 A.2d 1199, 1203 (2007) (citing Commonwealth v.
Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004)). Where the
record supports the factual findings of the suppression court, the
appellate court is bound by those facts and may reverse only if
the legal conclusions drawn therefrom are in error. Id. It is
also well settled that the appellate court is not bound by the
suppression court’s conclusions of law. Id. (citing
Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455
(2003)). However, whether a confession is constitutionally
admissible is a question of law and subject to plenary review.
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Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879,
881 (1998).
Thus, this Court does not, nor is it required to, defer
to the suppression court’s legal conclusions that a
confession or Miranda[3] waiver was knowing or
voluntary. Instead, we examine the record to
determine if it supports the suppression court’s
findings of fact and if those facts support the
conclusion that, as a matter of law, Appellant
knowingly and intelligently waived his Miranda
rights. Preliminarily, we note:
Regardless of whether a waiver of
Miranda is voluntary, the
Commonwealth must prove by a
preponderance of the evidence that the
waiver is also knowing and intelligent.
Miranda holds that “the defendant may
waive effectuation” of the rights
conveyed in the warnings “provided the
waiver is made voluntarily, knowingly
and intelligently.” The inquiry has two
distinct dimensions. First the
relinquishment of the right must have
been voluntary in the sense that it was
the product of a free and deliberate
choice rather than intimidation, coercion
or deception. Second, the waiver must
have been made with a full awareness
both of the nature of the right being
abandoned and the consequences of the
decision to abandon it. Only if the
“totality of the circumstances
surrounding the interrogation” reveals
both an uncoerced choice and the
requisite level of comprehension may a
court properly conclude that Miranda
rights have been waived.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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Commonwealth v. Cephas, 522 A.2d 63, 65 (Pa.
Super. 1987) (emphasis in original).
In the Interest of T.B., 11 A.3d 500, 505-506 (Pa. Super.
2010).
***
In examining the totality of circumstances, we also consider: (1)
the duration and means of an interrogation; (2) the defendant’s
physical and psychological state; (3) the conditions attendant to
the detention; (4) the attitude of the interrogator; and (5) “any
and all other factors that could drain a person’s ability to
withstand suggestion and coercion.” Nester, 551 Pa. at 164,
709 A.2d at 882.
Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012).
Here, the trial court offered the following analysis regarding
Appellant’s claim that the statement was inadmissible:
In summary, the officer’s uncontradicted testimony clearly
showed that the defendant was properly apprehended by the
police based upon an apparently valid arrest warrant, was not
questioned until after he was told that he was being arrested for
the rape in question and was repeatedly advised of his rights to
remain silent, to speak to an attorney, with which he was
advised he would have been provided by the court if desired,
and that whatever he said could be used in court, was not under
the influence of any drugs or alcohol and was calm, alert,
responsive and cooperative, had not been threatened or abused,
was read everything that he told to the officer who had typed
everything verbatim, had some experience in such matters,
having been arrested twice and tried at least once previously for
other unspecified offenses, and that he fully acknowledged his
understanding of those rights and what he was purported to
have said both verbally and by initialing parts and signing the
complete statements of his rights and the facts he disclosed,
even, at one point, despite having claimed to be unable to read,
actually writing in and initialing a clarification on the typed
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statement.6 The defense did not present any evidence as to the
extent of the defendant’s illiteracy, nor any with regard to the
other allegations of impropriety in his arrest or questioning,
other than to emphasize on cross that he told the police he
couldn’t read, nor anything else to demonstrate any lack of an
ability to fully comprehend his rights or the consequences of
relinquishing them. Although the defendant did not explicitly
state that he waived his rights, neither did he at any time
express any desire to terminate the questioning or to speak to
and have an attorney present.
6
Id., pp. 5-23. On the bottom of one page he wrote
“I did not know what you were talking about at
first.”, followed by his initials. Id., p. 19. Also of note
is that the defendant acknowledged completing the
11th grade (Id., p. 13), and that the arrest and the
taking of his statement only took about an hour and
fifteen minutes (Id., pp. 6, 33).
Trial Court Opinion, 3/13/14, at 6-7 (verbatim).
We discern no error. Appellant was informed of his right to remain
silent and to have an attorney, and he chose to waive those rights. Despite
Appellant’s claimed illiteracy, he properly initialed and signed his statement,
in addition to handwriting an addendum. In examining the totality of the
circumstances, we cannot agree that Appellant’s degree of literacy in any
way impeded his ability to voluntarily, knowingly, and intelligently make the
statement to the police. Accordingly, we discern no error or abuse of
discretion in the trial court’s decision to deny Appellant’s suppression
motion.
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For the reasons set forth above, Appellant is entitled to no relief.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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