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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KENNETH A. LEWIS
Appellant No. 2977 EDA 2013
Appeal from the Judgment of Sentence August 9, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002049-2011 CP-51-CR-0005295-
2011
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 03, 2015
Kenneth A. Lewis appeals from the judgment of sentence, imposed in
the Court of Common Pleas of Philadelphia County, following his conviction
for multiple crimes stemming from two separate incidents that were
consolidated for trial. After careful review of the record, we affirm.
The trial court set forth the facts of the case as follows:
On December 17, 2010, complainant, A.S., visited Lewis at his
apartment . . . . Shortly after A.S.’s arrival [they] began
drinking beer and consuming cocaine, which continued for most
of the day. At some point . . . [Lewis] began making sexual
advances toward [A.S.]. [A.S.] resisted, reminding [Lewis] that
she was a lesbian and in a relationship. [Lewis] became angry
and when [A.S.] attempted to leave he assaulted her and an
altercation ensued. [Lewis] punched [A.S.] in her right eye,
fracturing her orbital bone, nose, and jaw. [A.S.] attempted to
escape, running for the door, however, [Lewis] followed, put her
in a choke hold, threw her onto the bed, telling [A.S.] that he
was going to find his gun and kill her. [A.S.] struggled with
[Lewis] for approximately forty-five minutes while [Lewis]
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continued with his arms around [A.S.’s] neck, punching her in
the head multiple times. [Lewis] removed [A.S.’s] pants and
underwear, and he then inserted his penis into her vagina,
followed by his tongue, then his penis again. When [Lewis] was
finished his assault, he apologized to [A.S.] and offered to
transport her to the hospital but conditioned on her fabricating a
story that did not implicate him. [A.S.] agreed and [Lewis]
transported her to Pennsylvania Hospital. [Lewis] stayed with
[A.S.] in the hospital while police interviewed her and he left
when [A.S.’s] mother arrived. [A.S.] testified that she continued
to tell the fabricated story as she feared [Lewis] might do her
harm[.]
The following day [A.S.’s mother] . . . transported her to her
father’s home in Drexel Hill. After getting [A.S.] settled, [A.S.’s
mother] left. She returned an hour later and found Haverford
Township Police interviewing [A.S.] who was crying hysterically.
[A.S.] disclosed that [Lewis] was the perpetrator of the assault
and that he raped her. [A.S.] further stated that she received a
large number of threatening text messages from [Lewis] and
that he indicated that he knew where she lived detailing the
locations in Haverford Township. [A.S.] and her parents were
then escorted to the Philadelphia Police Special Victims’ Unit at
Episcopal Hospital where they gave statements to Detective
Joseph Jenkins. Thereafter, [A.S.] underwent a physical
examination and a rape kit was prepared.
Detective Jenkins described [A.S.’s] condition at the time of his
initial interview which included closed and blackened eyes, and a
bite mark on her back . . . . From [A.S.’s] cell phone, calls were
analyzed resulting in a search warrant for [Lewis’s] phone
records. As a result, positive identification was made that
[Lewis’s] account was used to transmit the calls to [A.S.]
By stipulation it was agreed that on February 17th of 2011,
Detective John Brady of the Philadelphia District Attorney’s Office
obtained an oral swab of saliva from Appellant that was
submitted to the Philadelphia Criminalistic DNA laboratory for
further examination. It was also stipulated that the rape kit
containing samples from the cervix, vulva, and the vagina of
[A.S.] was submitted to the Philadelphia Science Division for
analyses; that the sperm that was located in the vaginal swab
was compared to the oral swab taken from [A.S.]; and the result
was that [Lewis] was the source of the DNA from the sperm
recovered in the rape kit.
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[In the second matter involving Lewis,] Complainant [J.R.]
testified that in November 2010 she had been dating [Lewis] for
several months and at that time was trying to terminate their
relationship. She stated that [Lewis] wanted to continue the
relationship and harassed her with numerous calls and texts,
many threatening. As a result, [J.R.] felt threatened, filed a
police report, and ultimately obtained a protection from abuse
order. Philadelphia Detective John Frei was assigned to
investigate [J.R.’s] case and learned that there were forty text
messages sent by [Lewis] to [J.R.] between December 3, 2010
and December 4, 2010. One such message . . . states:
Bitch, you going to make me chase you all over the city.
Bitch, I won’t quit. Get on the phone. You better quit
school. I will be over Angel’s house every day . . . From
Kenny.
Trial Court Opinion, 3/18/14, at 2-4 (citations omitted).
On March 14, 2013, a jury convicted Lewis of rape, 1 involuntary
deviate sexual intercourse (IDSI),2 sexual assault,3 indecent assault,4
unlawful restraint,5 possessing an instrument of crime (PIC),6 intimidation of
a witness,7 aggravated assault,8 stalking,9 terroristic threats,10 and
harassment.11
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1
18 Pa.C.S. § 3121.
2
18 Pa.C.S. § 3123.
3
18 Pa.C.S. § 3124.1.
4
18 Pa.C.S. § 3126.
5
18 Pa.C.S. § 2902.
6
18 Pa.C.S. § 907.
7
18 Pa.C.S. § 4952.
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On August 9, 2013, the trial court sentenced Lewis to 55 to 110 years’
incarceration. Lewis filed timely post-sentence motions, which the court
denied on September 27, 2013. This timely appeal followed.
On appeal, Lewis raises the following issues for our review:
1. Is [Lewis] entitled to an arrest of judgment on the charges of
rape, aggravated assault, unlawful restraint, sexual assault,
indecent assault, PIC, IDSI, intimidating a witness and
terroristic threats where the evidence is insufficient to sustain
the verdict?
2. Is [Lewis] entitled to a new trial on rape and all related
charges where the greater weight of the evidence does not
support the conviction?
Appellant’s Brief, at 3.
Under Pennsylvania law, challenges to the sufficiency of the evidence
are generally limited to whether the Commonwealth has produced evidence
sufficient to establish every element of the crime. Commonwealth v.
Karkaria, 625 A.2d 1167, 1170 (Pa. 1993). Questions concerning the
“weight” of the evidence, including credibility determinations, are reserved
to the finder of fact for resolution. Commonwealth v. Farquharson, 354
_______________________
(Footnote Continued)
8
18 Pa.C.S. § 2702.
9
18 Pa.C.S. § 2709.1.
10
18 Pa.C.S. § 2706.
11
18 Pa.C.S. § 2709.
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A.2d 545, 550 (Pa. 1976). Appellate courts will not reweigh the evidence
and thereby substitute their judgment for that of the finder of fact. Id.
However, courts have recognized a narrow exception to this
general rule. In those extreme situations where witness
testimony is so inherently unreliable and contradictory that it
makes the jury’s choice to believe that evidence an exercise of
pure conjecture, any conviction based on that evidence may be
reversed on the grounds of evidentiary insufficiency, since no
reasonable jury could rely on such evidence to find all of the
essential elements of the crime proven beyond a reasonable
doubt.
Commonwealth v. Brown, 52 A.3d 1139, 1157 n.18 (Pa. 2012).
Lewis fails to satisfy this high standard. While ostensibly raising a
sufficiency claim, the substance of his challenge is actually directed at the
jury’s credibility determination that A.S.’s testimony concerning the events
in question was more believable than his own account. Lewis’s only
arguments consist of: (1) noting that his version of the events is consistent
with his actions; (2) attacking the credibility of A.S. as a witness; and (3)
conjecturing why A.S., who is a lesbian, decided to “cry rape” after engaging
in consensual sex with him. Appellant’s Brief, at 9-11.
It is clear that none of these arguments attempts to show that
evidence presented at trial was inherently unreliable or contradictory. By
challenging the credibility of A.S.’s testimony, Lewis asks us to reweigh the
evidence, which is not the function of an appellate court. “We may not
substitute our own judgment for jury’s, as it is the fact-finder’s province to
weigh the evidence, determine the credibility of witnesses and believe all,
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part or none of the evidence submitted.” Commonwealth v. Sanchez, 82
A.3d 943, 972 (Pa. 2013) (citation omitted). Accordingly, no arrest of
judgment is warranted.
With respect to his conviction for making terroristic threats to J.R.,
Lewis raises a straightforward sufficiency challenge, and claims that the
Commonwealth has failed to prove the requisite element of intent. We
disagree.
To obtain a conviction for making a terroristic threat under section
2706 of the Crimes Code, 18 Pa.C.S. § 2706, the Commonwealth must
prove that “(1) the defendant made a threat to commit a crime of violence;
and (2) such threat was communicated with the intent of terrorizing or with
reckless disregard for the risk of causing terror.” Commonwealth v.
Butcher, 644 A.2d 174, 176 (Pa. Super. 1994). The element of intent may
be inferred from the defendant’s actions and the message that has been
communicated. Commonwealth v. Kelley, 664 A.2d 123, 128 (Pa. Super.
1995).
Here, there is ample evidence to support a finding of intent to make
terroristic threats. The trial record is replete with violent and threatening
text messages from Lewis to J.R., in which Lewis threatened to kill, hurt, and
stalk her. That Lewis asserts the texts were part of a common course of
communication between the parties does not vitiate the element of intent,
which can be inferred from the violent language of the texts themselves.
The jury was free to believe J.R.’s testimony that these texts did not
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exemplify normal communications between Lewis and herself. Therefore,
the Commonwealth has met its burden of proving intent to terrorize. No
relief is due.
Lewis next claims that the trial court abused its discretion by denying
his motion for a new trial because the verdict was against the weight of the
evidence.12 Specifically, he alleges that the trial court’s judgment was
manifestly unreasonable and a misapplication of the law. We disagree.
When a defendant challenges the verdict as against the weight of the
evidence, a new trial shall be granted by the trial court only where the
verdict is “so contrary to the evidence as to shock one’s sense of justice.”
Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1985). The power to
grant such relief is vested in the sound discretion of the trial court, and we
will reverse only when the trial court has abused its discretion in making that
determination. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).
An abuse of discretion only occurs where the trial court’s decision is
manifestly unreasonable, the law was not applied, or the record reveals that
the decision was the result of partiality, prejudice, bias, or ill will. Id.
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12
Lewis develops this argument only with respect to his convictions for
crimes against A.S. Therefore, he has waived his claim to a similar
challenge with respect to his convictions for crimes committed against J.R.
See Commonwealth v. Ellis, 700 A.2d 948, 957 (Pa. Super. 1997) (failure
to develop legal argument or cite authority for vague contentions results in
waiver of claim).
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Lewis fails to show that the trial court abused its discretion. The only
argument advanced in his brief is that his actions following the encounter
with A.S. were consistent with his version of the events, thereby rendering
his testimony more credible. He argues that because he took A.S. to the
hospital and did not leave town, his actions confirm his testimony, while the
testimony of A.S. was less reliable because she changed her story from her
initial report to the police that she made at the hospital while he was
present.
Lewis’s arguments fail to show that the trial court’s judgment was
manifestly unreasonable. Credibility determinations are reserved for the
finder of fact, who may believe all, some, or none of the testimony adduced
at trial. See Sanchez, supra. While Lewis’s inferential arguments
concerning the credibility of witnesses are appropriate for attempting to
persuade the fact finder in the first instance, the arguments fail to show that
the verdict was “so contrary to the evidence as to shock one’s sense of
justice,” Brown, supra, much less that the trial court abused its discretion
by denying his motion for a new trial.
Despite his assertion, Lewis fails to develop an argument that the trial
court misapplied the law. Rather, a review of the trial court’s opinion shows
that the trial court applied the correct legal standard in denying his
challenge. Therefore, the trial court did not abuse its discretion in denying
Lewis’ motion for a new trial.
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For the forgoing reasons, we conclude that Lewis is not entitled to an
arrest of judgment or a new trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2015
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