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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KYLE BYRD
Appellant No. 1328 EDA 2015
Appeal from the Judgment of Sentence June 10, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009478-2009
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 23, 2016
Kyle Byrd files this direct appeal from his judgment of sentence for
involuntary deviate sexual intercourse (“IDSI”), sexual assault and terroristic
threats.1 We affirm.
On January 6, 2011, a jury found Byrd guilty of IDSI, sexual assault,
and terroristic threats but not guilty of rape, unlawful restraint, and
possession of an instrument of crime. On June 10, 2011, the trial court
sentenced Byrd to consecutive periods of imprisonment of 4-20 years for
IDSI and 2-10 years for sexual assault, for a total period of confinement of
6-30 years, followed by a consecutive term of 5 years’ probation for
terroristic threats. Byrd filed a timely appeal, but on August 29, 2011, the
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1
18 Pa.C.S. §§ 3123(a)(1), 3124.1, and 2706, respectively.
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Superior Court dismissed his appeal for failure to file a docketing statement.
On October 12, 2012, Defendant filed a timely petition under the Post
Conviction Relief Act (“PCRA”) seeking reinstatement of his direct appellate
rights. On April 23, 2015, by agreement of the Commonwealth, the trial
court granted Byrd’s petition to reinstate his direct appeal rights. On April
28, 2015, Byrd filed a timely notice of appeal. Both Byrd and the trial court
have complied with Pa.R.A.P. 1925.
Byrd raises three issues in this appeal, which we have re-ordered for
purposes of disposition:
1. Whether the verdict [of guilt for IDSI and sexual assault] was
contrary to law?
2. Whether the [trial] court abused its discretion when it denied
[Byrd’s] motion for mistrial?
3. Whether the trial court abused its discretion in sentencing
[Byrd] to a harsh and excessive sentence?
Brief For Appellant, at 7.
Byrd’s first argument is a challenge to the sufficiency of the evidence.
When examining such challenges, the standard we apply 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 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
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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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011).
The trial court accurately summarized the evidence adduced during
trial as follows:
The complainant, [Z.P.], testified that on June 8, 1998, she was
19 years old, lived in the City of Philadelphia, and was only a few
weeks away from graduating high school. At that time, [Z.P.]
worked after school to earn some money at a neighborhood
bakery called Cookie Jar. Because she did not own a car she
usually walked to and from work. On June 8, 1998, [Z.P.] left
work around 5:00 p.m. and was walking towards her boyfriend’s
house when [Byrd], a casual acquaintance whom she only knew
by the name of ‘Rob’, drove up alongside her and started a
conversation. After talking with her for a few minutes, [Byrd]
offered her a ride to her boyfriend’s house. She accepted
because [Byrd] seemed very friendly and her boyfriend lived
only a few blocks away.
When [Z.P.] noticed [Byrd] had driven past her boyfriend’s
house she told him to stop. She testified that when she tried to
get out, she heard [Byrd] lock the car doors, including the
childproof locks, preventing her from opening the passenger
door. At this point she became frightened because she was
trapped inside [Byrd]’s car.
[Byrd] then demanded that she give him oral sex, which she
quickly refused. [Byrd] became upset and pulled his car over
behind a Pep Boys. She testified that [Byrd] grabbed her by her
hair and dragged her into the back seat. She screamed and
fought with [Byrd], but he overpowered her and removed her
clothes. She kept trying to get back up, but [Byrd] repeatedly hit
her in the face, knocking her back down. [Byrd] then jumped on
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top of her and penetrated her vaginally. He then told her to put
her clothes back on and get in the front seat.
[Byrd] then drove [Z.P.] to an empty parking lot several blocks
away. She testified that as soon as they arrived, [Byrd]
attacked her a second time and removed her clothes. [Byrd]
twisted her head until she faced the back seat. He forced her to
lie in between the driver and passenger seat on her stomach,
and penetrated her both anally and vaginally. She testified that
she struggled with [Byrd] and tried to fight him off, but she was
overpowered.
Afterwards, [Byrd] drove [Z.P.] to a park a block away from her
boyfriend’s house. She testified that before [Byrd] released her,
he warned her: ‘I know where you live at. If you tell anyone, I’m
coming for you. Just remember this face,’ and showed her a
knife that he had in his glove compartment. She testified that
after [Byrd] threatened her, he finally released her and quickly
drove away.
[Z.P.] testified that she was in a tremendous amount of pain but
walked as quickly as she could from the park to her boyfriend’s
house. When her boyfriend’s sisters opened the door for her, she
told them that she had just been raped. The sisters called an
ambulance for her because she had passed out. When [Z.P.]
arrived at the hospital, the staff performed a series of tests on
her, including a rape kit.
[L.P.], [Z.P.’s] mother, testified that she was at home with her
husband when she received a call from the hospital. On arriving
at the hospital she found her daughter ‘sitting in a corner in a
chair. She was crying. She looked beat up, bruised up. Her eyes
were red. She was holding on to her clothes.’ She testified that
[Z.P.] was too upset to tell her what had happened for over a
year, and that her daughter’s personality changed because of
the traumatic experience.
At some point after leaving the hospital, [Z.P.] gave a statement
to the police and met with a sketch artist to create a composite
of her attacker. The police also took photographs to capture her
bruises, cuts, and black eye. She testified that her face was
scratched and bruised, she had a black eye from being hit, and
she was unable to use the bathroom for several days due to her
anal abrasions. For months after leaving the hospital she had a
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difficult time controlling her emotions because the assault
constantly played over and over again in her head. She also
testified that she is still suffering from chronic neck pain and
takes pain relief medicine daily.
[Z.P.] testified that for the first year after the assault, she
constantly called the police to see if her attacker had been
caught, but was always told, ‘We are doing what we need to do
to catch him. When we catch him, we’ll give you a call.’ She
thought the police had forgotten about her and stopped calling.
Almost 11 years later in 2009, she was contacted by the
Philadelphia Police and asked to come in to give a statement.
She testified that the police took a second statement from her
and showed her a photo array, from which she positively
identified [Byrd]’s photo.
Philadelphia Police Detective Kevin Gage testified that he is a 13
year veteran of the Special Investigations Unit investigating cold
cases. He testified that although [Z.P.]’s case had been classified
as a cold case, it became active after new evidence was
discovered, at which time, in January 2009, he was assigned to
her case. He testified that [Z.P.]’s rape kit, prepared at
Jefferson Hospital at the time of her assault, had been submitted
to the police department’s chemical lab to test for evidence. He
further testified that almost 11 years later in 2009, the chemical
lab notified his office that [Byrd] was a possible match to the
DNA found in [Z.P.]’s rape kit. Detective Gage located [Byrd]
and obtained a fresh comparison, and he testified that [Byrd]’s
DNA was in fact an exact match. Based on this DNA evidence,
Detective Gage prepared a photo array of 8 photos containing
[Byrd]’s photo to display to [Z.P.] He testified that on displaying
the photo array to [Z.P.], she immediately identified [Byrd] as
her attacker, and ‘she was sure that he was her attacker.’
Detective Gage then prepared an arrest warrant for [Byrd], who
later turned himself into the police.
Pa.R.A.P. 1925(a) Opinion, at 3-7. To this summary, we add that Z.P.
testified that she did not want to have sexual intercourse with Byrd. N.T.,
1/4/11, at 54.
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The IDSI statute provides in relevant part: “A person commits a felony
of the first degree when the person engages in deviate sexual intercourse
with a complainant: (1) by forcible compulsion...” 18 Pa.C.S. § 3123(a)(1).
The sexual assault statute provides in relevant part: “Except as provided in
section 3121 (relating to rape) or 3123 (relating to involuntary deviate
sexual intercourse), a person commits a felony of the second degree when
that person engages in sexual intercourse or deviate sexual intercourse with
a complainant without the complainant’s consent.” 18 Pa.C.S. § 3124.1
“Deviate sexual intercourse” includes “sexual intercourse per os or per anus
between human beings... The term also includes penetration, however
slight...” 18 Pa.C.S. § 3101.
The Crimes Code defines “forcible compulsion” in relevant part as
“compulsion by use of physical, intellectual, moral, emotional or
psychological force, either express or implied.” 18 Pa.C.S. § 3101. This Court
has observed that “forcible compulsion” is the exercise of sheer physical
force or violence and has also come to mean an 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. Ables,
590 A.2d 334, 337 (Pa.Super.1991). A determination of forcible compulsion
rests on the totality of the circumstances, including but not limited to this list
of factors:
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the respective ages of the victim and the accused, the respective
mental and physical conditions of the victim and the accused,
the atmosphere and physical setting in which the incident was
alleged to have taken place, the extent to which the accused
may have been in a position of authority, domination or custodial
control over the victim, and whether the victim was under
duress.
Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa.1986). It is not
mandatory to show that the victim resisted the assault in order to prove
forcible compulsion. Id. The victim’s uncorroborated testimony is sufficient
to support a rape conviction. Commonwealth v. Wall, 953 A.2d 581, 584
(Pa.Super.2008).
“Forcible compulsion” has a different meaning than “lack of consent”.
With regard to consent, the Crimes Code states: “The consent of the victim
to conduct charged to constitute an offense or to the result thereof is a
defense if such consent negatives an element of the offense or precludes the
infliction of the harm or evil sought to be prevented by the law defining the
offense.” 18 Pa.C.S. § 311(a). “Forcible compulsion” means “something
more” than mere lack of consent. Commonwealth v. Smolko, 666 A.2d
672, 676 (Pa.Super.1995). “Where there is a lack of consent, but no
showing of either physical force, a threat of physical force, or psychological
coercion, the ‘forcible compulsion’ requirement ... is not met.” Id.
Here, Z.P. testified that Byrd sexually assaulted her twice inside his
car: first vaginally behind a Pep Boys, and then both anally and vaginally in
an empty parking lot. On both occasions, Byrd physically overpowered her.
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She never gave consent to Byrd. Construed in the light most favorable to
the Commonwealth, this evidence was sufficient to prove the offenses of
IDSI and sexual assault. Although Byrd points out several inconsistencies in
Z.P.’s testimony – for example, her trial testimony that Byrd showed her a
knife contradicted her statement to police that he showed her a gun – these
discrepancies do not render the Commonwealth’s evidence “so weak and
inconclusive that as a matter of law no probability of fact may be drawn
from the combined circumstances.” Hansley, 24 A.3d at 416.
In his second argument, Byrd contends that the trial court abused its
discretion by denying his motion for a mistrial.
The factual backdrop for this claim is as follows. During Z.P.’s direct
testimony, the prosecutor asked her to look at Commonwealth exhibit C-1.
Z.P. stated that she was legally blind as of 2004 (six years after her
encounter with Byrd). Z.P. testified that her blindness “actually happened
[in] 2004. They said it was developing for a while, but it just started
actually coming to the surface in 2004. They asked me when I went to the
eye doctor, they asked me have I ever been hit in the eye before.” N.T.,
1/4/11, at 35. Byrd objected on the ground that there were no medical
records to substantiate this testimony. Id. The court overruled Byrd’s
objection because Z.P.’s testimony was not offered to prove that Byrd
caused the eye injury. Pa.R.A.P. 1925(a) Opinion, at 11. Upon overruling
the objection, the Court instructed the jury that this testimony was not being
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introduced to prove anything “except that somebody said to [Z.P.]: Were
you hit in the eye?” N.T., 1/4/11, at 36.
Z.P. testified that in 1998, the year of the incident with Byrd, her
vision was not 20/20 because she had astigmatism at that time, but her eye
condition was “nothing close to what it is right now.” N.T., 1/4/11, at 37.
When asked if she had a degenerative condition, she answered: “It’s not
actually a degenerative thing. I also have a disease called sarcoidosis. It
attacks certain parts of your body. Because my eye was so weak, it kind of
attacked that, too. The eye was weak again because the doctor said I was
hit in the eye. That eye was already a little bit weak because of the
astigmatism. When somebody dealt a blow to it, it made it ten times
weaker than what it already was.” Id. at 37-38. The prosecutor asked if
she would have a tough time reading exhibit C-1, adding: “That’s the reason
I am asking you these questions.” Id. at 38. She answered: “I can see it.
It will be hard for me to read it.” Id.
At the conclusion of Z.P.’s direct testimony, Byrd requested production
of her medical records relating to her eye treatment. N.T., 1/4/11, at 56.
When it became apparent that the Commonwealth was unable to produce
these records, Byrd moved for a mistrial due to his inability to confront Z.P.
about her statements. Id. at 57. Byrd argued that Z.P.’s testimony created
the implication that she now is blind due to her incident with Byrd, but the
absence of medical documents left Byrd unable to confront Z.P. with any
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contrary evidence in the documents. Id. at 56-57. The court took Byrd’s
motion under advisement, stating: “After you conclude your cross-
examination, we will see.” Id. At the conclusion of cross-examination, Byrd
did not renew his objection.
Preliminarily, we determine that Byrd did not waive his motion for a
mistrial by failing to renew his objection after Z.P.’s cross-examination.
“Once an issue has been raised, counsel is not required to continue
repeating the objection.” Drum v. Shaull Equipment and Supply Co.,
787 A.2d 1050, 1055 (Pa.Super.2001).
We apply the following standard of review when addressing the denial
of a motion for a mistrial:
The trial court is in the best position to assess the effect of a
prejudicial statement on the jury. Thus, the decision of whether
to grant a mistrial is within the sound discretion of the trial
court, and will not be reversed on appeal absent an abuse of
that discretion. The remedy of a mistrial is an extreme one that
is required only when an incident is of such a nature that its
unavoidable effect is to deprive the defendant of a fair and
impartial trial by preventing the jury from weighing and
rendering a true verdict. Furthermore, a mistrial is not necessary
if a court’s cautionary instructions adequately cure any
prejudice.
Commonwealth v. Begley, 780 A.2d 605, 624 -25 (Pa.2001).
The trial court properly reasoned in its Pa.R.A.P. 1925(a) opinion that
the events in question did not warrant a mistrial. According to Byrd, Z.P.
implied that Byrd struck her in the eye, thus causing her to go blind six
years later in 2004. Z.P. said nothing of the kind. The most that we can
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extract from her testimony is that she went blind due to sarcoidosis, a
disease that attacked her eyes because she had been struck in the eye on an
unspecified occasion by an unidentified source. This is a far cry from an
accusation that Byrd struck her in the eye or caused her vision loss.
Further, the Commonwealth asked Z.P. about her poor eyesight not to
attribute her vision loss to Byrd but for a different and completely proper
purpose, viz., to demonstrate why she had trouble reading a Commonwealth
exhibit.
Nor did Byrd suffer prejudice from Z.P.’s statement about her
eyesight. The court gave the jury a curative instruction that this testimony
proved nothing except that “somebody said to [Z.P.]: were you hit in the
eye?” N.T., 1/4/11, at 36. Through this directive, the court told the jury not
to construe this testimony as an accusation against Byrd. When, as here,
the court provides cautionary instructions to the jury, the law presumes that
the jury will follow the instructions. Commonwealth v. Parker, 957 A.2d
311, 319 (Pa.Super.2008). Nothing in the record renders this presumption
inapposite. Furthermore, Byrd’s acquittal of several serious charges (rape,
unlawful restraint, and possession of an instrument of crime) indicates that
the momentary references to Z.P.’s eye condition did not poison the jury.
See Commonwealth v. Valerio, 712 A.2d 301, 304 (Pa.Super.1998) (fact
that jury acquitted defendant of several serious offenses indicated that
reference to unrelated criminal activity did not cause prejudice).
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In his final argument, Byrd contends that his aggregate sentence of 6-
30 years’ imprisonment is excessive, because he should have received
concurrent sentences on his IDSI and sexual assault convictions instead of
consecutive sentences.
There is no automatic right to appeal from the discretionary aspects of
a sentence; instead an appellant must petition this Court for allowance of
appeal. 42 Pa.C.S. § 9781(b). An appellant challenging the discretionary
aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part
test: (1) whether appellant has filed a timely notice of appeal;
(2) whether the issue was properly preserved at sentencing or in
a motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011).
Here, defendant failed to preserve his claim at sentencing or in a
motion to reconsider and modify sentence. See Commonwealth v. Jones,
858 A.2d 1198, 1204 (Pa. Super. 2004) ( “We have held that an objection to
a discretionary aspect of a sentence is clearly waived if it was neither raised
at the sentencing hearing nor raised in a motion to modify the sentence
imposed at that hearing”).
In addition, Byrd fails to raise a substantial question that his sentence
is inappropriate. “Where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
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Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010). Furthermore, the imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.
Id. at 171-72. In this case, Byrd’s minimum IDSI sentence of 6 years falls
within the standard Guidelines range of 60-78 months, and his minimum
sexual assault sentence of 2 years falls below the standard Guidelines range
of 48-66 months. N.T., 6/10/11, at 45. Additionally, given the violent and
serious nature of Byrd’s crimes, a consecutive sentence was not unduly
harsh.
For these reasons, we decline to review Byrd’s challenge to the
discretionary aspects of his sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2016
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