J-S17036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STANFORD ALLEN RUSSELL
Appellant No. 1551 WDA 2014
Appeal from the Judgment of Sentence August 12, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0002015-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 13, 2015
Appellant, Stanford Allen Russell, appeals from the judgment of
sentence entered in the Fayette County Court of Common Pleas, following
his jury trial conviction for attempted rape by forcible compulsion, simple
assault, and harassment (18 Pa.C.S.A. §§ 901(a) (3121(a)(1) related),
2701(a)(1), and 2709(a)(1), respectively). We affirm.
The trial court’s opinion fully and correctly sets forth the relevant facts
and procedural history of this case.1 Therefore, we have no reason to
____________________________________________
1
On page 4 of the trial court’s opinion, the court cites to Commonwealth
v. Rhoades, 510 A.2d 1217, 1225 (Pa. 1986). Nevertheless, the correct
spelling is Commonwealth v. Rhodes, 510 A.2d 1217, 1225 (Pa. 1986).
___________________________
*Former Justice specially assigned to the Superior Court.
J-S17036-15
restate them.2
Appellant raises the following issues for our review:
DID THE COURT ERR IN FAILING TO GRANT
[APPELLANT’S] MOTION FOR JUDGMENT OF ACQUITTAL
AS TO THE BURGLARY AND ATTEMPTED RAPE?
____________________________________________
2
As a general rule, this Court has jurisdiction only over final orders.
Commonwealth v. Rojas, 874 A.2d 638 (Pa.Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007),
appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). If a defendant in a
criminal case files a timely post-sentence motion, the judgment of sentence
does not become final for the purposes of an appeal until the trial court
disposes of the motions or the motions are denied by operation of law.
Commonwealth v. Borrero, 692 A.2d 158, 160 (Pa.Super. 1997). The
denial of a timely post-sentence motion becomes the triggering event for
filing a notice of appeal. Pa.R.Crim.P. 720(A)(2). Generally, where a
defendant timely files a post-sentence motion, the court shall decide the
motion within 120 days of the filing; otherwise, the motion shall be deemed
denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a). When an
appellant files a notice of appeal before the court has ruled on his post-
sentence motions, the judgment of sentence has not become “final,” and
any purported appeal will be interlocutory and unreviewable. Borrero,
supra. In those circumstances, the proper remedy is to quash the appeal,
relinquish jurisdiction, and remand for the trial court to consider the post-
sentence motions nunc pro tunc. Id. at 161. Nevertheless, if the court
subsequently denies an appellant’s post-sentence motions, “[this Court] will
treat [an] appellant’s premature notice of appeal as having been filed after
entry of [an] order denying post-sentence motions.” See Commonwealth
v. Ratushny, 17 A.3d 1269, 1271 n. 4 (Pa.Super. 2011). Instantly, the
court sentenced Appellant on August 12, 2014, and Appellant timely filed a
post-sentence motion on August 15, 2014. On August 26, 2014, the court
entered an order amending Appellant’s judgment of sentence to reflect credit
for time served. Thereafter, Appellant filed a notice of appeal on September
23, 2014, before the court ruled on his post-sentence motion. The court
subsequently denied Appellant’s post-sentence motion on October 1, 2014.
Thus, we will relate Appellant’s premature notice of appeal forward to
October 1, 2014, to resolve any jurisdictional impediments. See id.
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DID THE COMMONWEALTH FAIL TO PROVE BEYOND A
REASONABLE DOUBT THAT [APPELLANT] ENTERED THE
RESIDENCE WITH THE INTENT TO COMMIT A RAPE?
DID THE COMMONWEALTH FAIL TO PROVE BEYOND A
REASONABLE DOUBT THAT [APPELLANT] TOOK A
SUBSTANTIAL ATTEMPT TOWARD COMMITTING A RAPE?
(Appellant’s Brief at 7).3
In reviewing a challenge to the sufficiency of the evidence, the
standard we apply is as follows:
[W]hether 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 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 [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
____________________________________________
3
Appellant explicitly withdraws his second issue on appeal in light of the
jury’s “not guilty” verdict for burglary. (Appellant’s Brief at 7). Therefore,
we will not address Appellant’s second issue.
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(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Steve P.
Leskinen, we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed November 20, 2014, at 3-5)
(finding: (1) Victim testified Appellant exercised physical force in attempt to
have sexual intercourse with Victim against her will; evidence of Appellant’s
use of physical force against Victim included photographs of scratches and
bruises on Victim’s body, and Sergeant Reese’s testimony that he observed
Victim’s injuries; jury found photographs and Sergeant Reese’s testimony
were consistent with Victim’s account of events; Appellant’s comment to
Victim that if she would just give Appellant sex he would not have to force
himself on Victim was indicative of rape by forcible compulsion; court
properly denied Appellant’s motion for judgment of acquittal for attempted
rape; (3) Appellant grabbed Victim, jumped on top of her, held her down,
and attempted to remove bottom half of her clothing while demanding she
have sex with him despite Victim’s demand that Appellant stop and leave her
residence immediately; Appellant’s actions constituted substantial step
toward committing rape by forcible compulsion; jury properly found
Commonwealth sustained its burden of proof for attempted rape). The
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record supports the trial court’s decision; therefore, we have no reason to
disturb it. Accordingly, we affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2015
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IN THE COUR. T OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA CRIMINAL DIVISION
v.
STANFORD ALLEN RUSSELL, No. 2015 of 2013
Defendant.
OPINION
Meghann E. Mikluscak, Esq. Assistant District Attorney
Michael J. Garofalo, Esq. for the Defendant
LESKINEN, J.
Before this Court is a "Concise Statement of Matters Complained of on Appeal"
filed on behalf of Defendant Stanford Allen Russell (hereinafter "Defendant"). On April
8, 2014, a jury convicted Defendant of Attempted Rape by Forcible Compulsion and
Simple Assault, and the undersigned convicted him of summary Harassment. On
August 12, 2014, he was deemed a sexually violent predator by the Pennsylvania
Sexual Offender's Assessment Board and was sentenced to seven (7) to fourteen (14)
years of incarceration to run concurrent with Case Nos. 1756 of 2005 and 174 of 2014.
Defendant raises three (3) issues in his "Concise Statement":
"ISSUE NO. 1: DID THE COURT ERR IN FAILING TO GRANT
DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL AS TO THE BURGLARY AND
A TIEMPTED RAPE?
ISSUE NO. 2: DID THE COMMONWEALTH FAIL TO PROVE
BEYOND A REASONABLE DOUBT THAT THE
DEFENDANT ENTERED THE RESIDENCE
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UNINVITED WITH THE INTENT TO COMMIT A
RAPE?
ISSUE NO. 3: DID THE COMMONWEAL TH FAIL TO PROVE
BEYOND A REASONABLE DOUBT THAT THE
DEFENDANT TOOK A SUBSTANTIAL ATTEMPT
TOWARDS COMMITTING A RAPE?"
For the reasons set forth below, the Court cannot agree with Defendant's
arguments.
BACKGROUND
During the evening hours of August 27, 2013, Defendant entered the residence
of Franki Ross located at 1001 Sycamore Street, Connellsville, Fayette County,
Pennsylvania. N. T., April 7, 2014, p. 29. Defendant and Ms. Ross are former intimate
partners, and Defendant fathered one of Ms. Ross's children. Id. at p. 44. On that
particular evening, Ms. Ross stated that she did not invite Defendant into her home, and
he had no reason to believe he was welcome into her home. Id. at pp. 30-31. When
Defendant entered her bedroom, he "grabbed" and "hugged" Ms. Ross while she was in
bed, and she demanded that he "get off' her and "get home" before he awakened her
children. Id. Defendant left the bedroom but quickly returned. Id. According to Ms.
Ross, Defendant "got in my bed on top of me, had his one hand around my throat,
holding me on top of my bed, was trying to grab my shorts and pull them down." Id. at
pp. 31-32. Ms. Ross "begged him to leave," and Defendant told her, "Bitch, if you would
just give me pussy, this wouldn't happen." Id.
Ms. Ross stated that she feared for her life and sustained scratches and bruises,
which were documented in photographs, during the approximately fifteen (15) minute
altercation with Defendant. Id. Even though Ms. Ross did not contact police until the
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evening of August 28, 2014, Sergeant Ryan Reese of the City of Connellsville Police
Department was still able to observe the physical injuries on Ms. Ross's body and take
a statement from her. Id. at pp. 60-61.
Defendant was charged with Burglary, Attempted Rape by Forcible Compulsion,
Simple Assault, and summary Harassment. On December 16, 2013, the charges were
bound over to the Court of Common Pleas by Magisterial District Judge Ronald J.
Haggerty, Jr. On January 21, 2014, Defendant's Omnibus Pretrial Motion in the form of
a Writ of Habeas Corpus was denied by the Honorable Gerald R. Solomon, Senior
Judge.
Defendant's jury trial took place before this Court on April 7-8, 2014, and he was
acquitted of the Burglary charge but convicted of the remaining charges. On August 12,
2014, Defendant was deemed a sexually violent predator by the Pennsylvania Sexual
Offender's Assessment Board, and this Court subsequently sentenced him to seven (7)
to fourteen (14) years of incarceration to run concurrent with Case Nos. 1756 of 2005
and 174 of 2014.
Defendant filed a timely Post-Sentence Motion on August 15, 2014, which this
Court denied on October 1, 2014. This timely appeal followed.
DISCUSSION
First, Defendant argues that the Court erred in denying his Motion for Judgment
of Acquittal as to the Burglary and Attempted Rape. Since Defendant was ultimately
acquitted of Burglary, the Court will only address the Attempted Rape charge.
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In accordance with Pennsylvania law, a person commits Criminal Attempt when.
"with intent to commit a specific crime, he does any act which constitutes a substantial
step toward the commission of that crime." See, 18 Pa.C.S.A. § 901 (a).
For the purposes of this case, Rape is the specific crime in question, which is
defined in relevant part as "engaging in sexual intercourse with a complainant by
forcible compulsion." See, 18 Pa.C.S.A. § 3121 (a)(1). The Pennsylvania Supreme
Court has defined "forcible compulsion" as follows:
In common usage, therefore, the phrase ''forcible compulsion" clearly
connotes more than the exercise of sheer physical force or violence as the
Superior Court has so limited section 3121(1) in this case and others. The
phrase also connotes the act of using superior force-physical, moral
psychological, or intellectual-to compel a person to do a thing against
that person's volition and/or will.
Commonwealth v. Rhoades, 510 A.2d 1217, 1225 (Pa. 1986).
In the case sub judice, the victim, Ms. Ross, testified in great detail as to her
ordeal with Defendant on the evening in question. She stated that he exercised
physical force in an attempt to have sexual intercourse with her against her will. The
result of that physical force was evidenced in the photographs of the scratches and
bruises on Ms. Ross's body and Sgt. Reese's observations of them, which the jury
properly found to be consistent with her account of the events that had occurred.
Furthermore, Defendant's demand to Ms. Ross that if she would just give him sex, he
would not have to force himself on her was also indicative of an Attempted Rape by
Forcible Compulsion. It should be noted that Defendant was substantially larger in
stature than Ms. Ross. For these reasons, the Court denied Defendant's Motion.
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Next, Defendant argues that the Commonwealth did not prove beyond a
reasonable doubt that Defendant entered Ms. Ross's residence uninvited with the intent
to commit a rape therein. Again, the jury acquitted Defendant of Burglary, which is
defined as in relevant part as follows: "[W]ith the intent to commit a crime therein, the
person: enters a building or occupied structure, or separately secured or occupied
portion thereof that is adapted for overnight accommodations in which at the time of the
offense any person is present." See, 18 Pa.C.S.A. § 3502 (a)(1). By acquitting him, it is
evident that the jury did not believe the Commonwealth met its burden of proof with
respect to that charge. Accordingly, this issue need not be further addressed by this
Court.
Third and finally, Defendant claims that the Commonwealth failed to prove
beyond a reasonable doubt that he took a substantial step toward committing the crime
of Rape by Forcible Compulsion.
As stated by Ms. Ross, Defendant grabbed her, jumped on top of her, held her
down, and attempted to remove the bottom half of her clothing while demanding that
she have sex with him. During the entire incident, Ms. Ross demanded that he stop and
leave her residence immediately. Those actions constituted a substantial step toward
committing Rape by Forcible Compulsion; therefore, the jury properly found that the
Commonwealth met its burden of proof.
CONCLUSION
For the aforementioned reasons, this Court disagrees with Defendant's
assertions that the denial of his Motion for Judgment of Acquittal was improper, and that
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the Commonwealth failed to prove beyond a reasonable doubt that Defendant
committed Attempted Rape by Forcible Compulsion.
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