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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTHONY MCCAULEY
Appellant No. 380 WDA 2015
Appeal from the Judgment of Sentence February 3, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003188-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 17, 2016
Appellant, Anthony McCauley, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his jury
trial convictions for rape of a child, involuntary deviate sexual intercourse
(“IDSI”) with a child, statutory sexual assault, unlawful contact with a minor,
unlawful restraint of a minor, indecent assault, corruption of minors, and
endangering welfare of children (“EWOC”).1 We affirm the convictions but
vacate the judgment of sentence and remand with instructions.
The relevant facts and procedural history of this appeal are as follows.
Appellant entered into a relationship with the victim’s mother, J.S., when the
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1
18 Pa.C.S.A. §§ 3121(c), 3123(b), 3122.1(b), 6318(a)(1), 2902(b)(2),
3126(a)(7), 6301(a)(1)(i) and (a)(1)(ii), 4304(a)(1), respectively.
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victim was approximately four years old. Appellant, J.S., the victim, and the
victim’s brother lived together for the next eight or nine years. When the
victim was six or seven years old, Appellant began to have sexual contact
with her. At first, Appellant digitally penetrated the victim’s vagina. The
encounters soon escalated, and Appellant started having vaginal and oral
intercourse with the victim. The abuse culminated in August 2013 when the
victim was twelve years old. In the most recent incident, the victim was
sitting on the couch watching television in the living room when Appellant
approached her and pulled her to the edge of the couch. Appellant then
removed the victim’s pants, held her hands above her head, and had vaginal
intercourse with her. Afterward, Appellant placed twenty dollars on the
table. The next day, the victim called her grandmother, B.P., and said,
“Grandma, I can’t take no more. Can you please come and get me?” B.P.
drove to the house and picked up the victim, who was upset and crying.
B.P. subsequently notified the police. The victim lived with B.P. for several
months before moving in with the victim’s father.
A jury convicted Appellant of one (1) count each of rape of a child,
IDSI with a child, statutory sexual assault, unlawful contact with a minor,
unlawful restraint of a minor, indecent assault, and EWOC, and two (2)
counts of corruption of minors. On February 3, 2015, the court sentenced
Appellant to consecutive terms of ten (10) to twenty (20) years’
incarceration for the rape and IDSI convictions. The court imposed no
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further penalty for the remaining counts. Appellant filed a timely notice of
appeal on March 5, 2015. The court ordered Appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
After the court granted an extension, Appellant timely complied.
Appellant raises the following issues for our review, which we have
reordered for purposes of disposition:
WAS THE EVIDENCE UPON WHICH THE JURY RELIED IN
FINDING [APPELLANT] GUILTY AT COUNTS 1 THROUGH 9,
SO UNRELIABLE AND CONTRADICTORY THAT IT WAS
INCAPABLE OF SUPPORTING THE VERDICTS, AND
THEREFORE, WAS INSUFFICIENT AS A MATTER OF LAW?
DID THE TRIAL COURT ERR IN SENTENCING [APPELLANT]
TO THE MANDATORY MINIMUM SENTENCE AT COUNTS 1
AND 2 PURSUANT [TO] 42 PA.C.S.A. § 9718, BECAUSE
THAT STATUTE HAS BEEN FOUND TO BE
UNCONSTITUTIONAL AND THEREFORE, [APPELLANT’S]
SENTENCE IS ILLEGAL?
(Appellant’s Brief at 5).
In his first issue, Appellant argues numerous Commonwealth witnesses
gave inconsistent, false, or unreliable testimony throughout trial. Appellant
contends the victim’s testimony was internally inconsistent with respect to
when and where the abuse began and whether she screamed during the last
incident. Appellant asserts the testimony of the victim’s cousin that she
spoke to the victim about the abuse was not credible because the victim’s
cousin did not say anything to the police until two-and-a-half years after
Appellant was arrested. Appellant submits the testimony of the victim’s
cousin also contradicted the victim’s statement that she had only told one
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person about the assaults before she ultimately informed her grandmother.
Appellant claims the police investigation was flawed, emphasizing the failure
of the police to collect physical evidence from the scene. Appellant avers the
victim and B.P. disregarded police instructions not to discuss the incidents
prior to the victim’s forensic interview, which tainted the testimony of the
victim and other Commonwealth witnesses. Appellant maintains the victim
falsely testified that she had followed police instructions not to discuss the
incidents with anyone. Appellant contends the victim was motivated to
fabricate the allegations because of her desire to move out of the house and
live with her grandmother. Appellant concludes the evidence was
insufficient to support his convictions because the testimony of the
Commonwealth witnesses was so unreliable and contradictory as to make
the jury’s verdict a result of pure conjecture. We disagree.
The following principles of review apply to a challenge to the
sufficiency of evidence:
The standard we apply in reviewing the sufficiency of the
evidence 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 Commonwealth may sustain
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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)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)). Challenges to witness credibility generally implicate the weight, not
the sufficiency, of the evidence. See Commonwealth v. Price, 616 A.2d
681, 683 (Pa.Super. 1992) (explaining sufficiency challenge asks whether
evidence exists on record to support conviction, whereas argument that
witness’ account is not credible goes to weight). Nevertheless,
[I]n 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, 617 Pa. 107, 136 n.18, 52 A.3d 1139, 1156
n.18 (2012). “[T]he uncorroborated testimony of a rape victim, if believed
by the jury, is sufficient to support a rape conviction and no medical
testimony is needed to corroborate a victim’s testimony if the testimony was
rendered credible by the jury.” Commonwealth v. Poindexter, 646 A.2d
1211, 1214 (Pa.Super. 1994), appeal denied, 540 Pa. 580, 655 A.2d 512
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(1995).
Instantly, the trial court reasoned as follows:
[T]he evidence presented at trial established that since she
was four (4) years old, [the victim] lived with her mother,
[Appellant,] and [the victim’s] younger brother…first on
Becks Run Road and then in the Sharpsburg area.
Beginning when [the victim] was seven (7) years old and
continuing until she was 12 years old, [Appellant]
repeatedly had oral and vaginal sex with her in various
rooms of the house. On the last occasion, when [the
victim] was 12, [Appellant] gave her $20 after having
intercourse with her. The next day, [the victim] called her
grandmother, …who picked up [the victim] from the home
and then called the police to report the assaults.
It is clear from a review of the record that the evidence
was more than sufficient to establish [Appellant’s]
improper physical contact with [the victim]. [The victim’s]
testimony clearly established multiple incidents of oral and
vaginal sexual intercourse, and the jury clearly found her
testimony to be credible. The lack of physical evidence is
not demonstrative of [Appellant’s] innocence, but rather is
only reflective of the fact that too much time had elapsed
between the incidents and the report for any forensic
evidence to be recovered. [The victim’s] testimony
credibly established multiple incidents of improper contact
and was clearly sufficient to support [Appellant’s]
convictions at all counts.
(Trial Court Opinion, filed September 22, 2015, at 6). The record supports
the court’s analysis. Appellant mischaracterizes some of the trial testimony.
The victim’s cousin testified that she had witnessed “weird” interactions
between Appellant and the victim, including the manner in which Appellant
bathed the victim on one occasion. The victim’s cousin also testified vaguely
that the victim had mentioned “some things” regarding Appellant when the
victim was eight or nine years old. The victim’s cousin, however, did not
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directly contradict the victim’s testimony that she had not told anybody
except a friend about the actual sexual abuse until after the last incident.
Additionally, the jury was not required to discredit all of the victim’s
testimony because she had discussed the incidents prior to the forensic
interview, even though a detective had advised her not to do so. Likewise,
the victim’s inability to remember every peripheral detail of the abuse, such
as exactly when and where it started years earlier or how many times she
screamed during the last incident, was not fatal in light of the victim’s
otherwise consistent testimony. Appellant brought these credibility issues to
the jury’s attention during cross-examination. Appellant simply disagrees
with the jury’s credibility determinations. This case does not present the
rare and “extreme” situation 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.” See Brown, supra. Therefore,
Appellant’s sufficiency challenge merits no relief.
In his second issue, Appellant argues the court imposed mandatory
minimum sentences under 42 Pa.C.S.A. § 9718 for his rape and IDSI
convictions. Appellant contends Section 9718 is unconstitutional and void in
its entirety pursuant to Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super.
2014). Appellant concludes this Court should vacate the judgment of
sentence and remand for resentencing. We agree that resentencing is
necessary if the court actually applied Section 9718.
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Section 9718(a)(1) sets forth a mandatory minimum sentence of ten
(10) years’ imprisonment where a defendant is convicted of IDSI involving a
victim who is less than sixteen (16) years of age. Section 9718(a)(3)
establishes a mandatory minimum sentence of ten (10) years’ imprisonment
where a defendant is convicted of rape of a child. Section 9718(c) states
these statutory provisions shall not be an element of the crime and
applicability of the statute shall be determined at sentencing by a
preponderance of the evidence. 42 Pa.C.S.A. § 9718(c).
Recently, this Court directly addressed the constitutionality of Section
9718 in Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), where
the trial court had imposed mandatory minimum sentences for multiple IDSI
convictions, pursuant to Section 9718(a)(1). On appeal, this Court struck
down Section 9718 as facially unconstitutional. Id. (citing Alleyne v.
United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)).
Alleyne is applicable to all criminal cases pending on direct review.
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).
Instantly, before sentencing, the Commonwealth filed notice of its
intent to seek mandatory minimum sentences for Appellant’s rape and IDSI
charges, pursuant to Section 9718. At the sentencing hearing, the
Commonwealth reminded the court of the filed notice. Appellant’s
consecutive sentences of ten (10) to twenty (20) years’ incarceration for
rape and IDSI were consistent with the minimum terms mandated by
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Section 9718. In its Rule 1925(a) opinion, the court did not dispute
Appellant’s contention that the court had applied Section 9718. Given this
Court’s binding decision in Wolfe, any application of Section 9718 would
have been unlawful. The court’s oral pronouncement of sentence, however,
did not refer to the imposition of any mandatory minimum term. Likewise,
the written sentencing order, guideline sentence forms, and court
commitment form do not indicate that a mandatory minimum sentence was
imposed. Thus, the certified record is inconsistent on whether the court
actually applied Section 9718 when it sentenced Appellant. Therefore, we
affirm Appellant’s convictions, but vacate the judgment of sentence and
remand the matter to the trial court to clarify whether Appellant was
sentenced pursuant to the mandatory provisions of Section 9718, and, if
necessary, to resentence Appellant without imposition of a mandatory
minimum term. If Section 9718 was not applied, the court shall re-impose
Appellant’s original sentence. Accordingly, we affirm Appellant’s convictions
but vacate the judgment of sentence and remand with instructions.
Judgment of sentence vacated; case remanded with instructions.
Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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