J-A06033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT M. CALLAHAN :
:
Appellant : No. 629 EDA 2016
Appeal from the Judgment of Sentence September 2, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000141-2015
BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JUNE 13, 2017
Appellant, Robert M. Callahan, appeals from the judgment of sentence
of three to six years of incarceration and a concurrent fourteen years of
probation with Megan’s Law registration, imposed on September 2, 2015,
following a jury trial resulting in his conviction for rape by forcible
compulsion, aggravated indecent assault by forcible compulsion, and sexual
assault.1 We affirm.
The trial court summarized the facts of the case as follows:
At the time of the events on trial, the victim was 54 years old
and lived in Souderton, Montgomery County. She worked as a
part-time employee at a Wa[w]a store in Horsham, Montgomery
County. Her regular shift at the Wa[w]a was 6:00 a.m. to 2:00
to 3:00 p.m. [Appellant] resided in Warminster Township, Bucks
County. The victim and [Appellant] had dated on and off for
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1
18 Pa.C.S.§§ 3121(a)(1), 3125(a)(2), 3124.1, respectively.
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approximately three years and had what the victim described as
a “rocky” relationship.
On November 15, 2014, the victim arose at 4:30 a.m. and
worked from 6:00 a.m. to 2:30 p.m. at the Wawa. At the end of
her shift, the victim discovered that [Appellant] had left her
voice and text messages on her cell phone asking her to call
him. She later spoke to [Appellant] and agreed to meet at his
home. While they were at [Appellant]’s residence, the victim
and [Appellant] engaged in consensual sexual intercourse.
Afterward, the victim told [Appellant] that she wanted to sleep
because she was tired and had to be up early the next morning
for work. In response, [Appellant] told her that she “was going
to f--- him all night long.” The victim testified that [Appellant]
then used physical force to have sex with her. The victim
testified that, although she yelled and screamed and told
[Appellant] to stop, [Appellant] ignored her and forced his penis
into her vagina. [Appellant], who was aware that the victim had
previously suffered a broken neck, pinned the victim to the bed
and wrapped both hands around her neck, squeezing and
twisting her neck as he did so. [Appellant] told the victim that
he was going to hurt her. In fear, the victim cried out for her
deceased mother. [Appellant] responded by punching her with a
closed fist in the face. The victim continued to scream and cry
and told [Appellant] to get off of her. When he did not do so,
she punched him, scratched him and bit his face, all to no avail.
After the assault, the victim, unclothed, grabbed her bag and
fled the residence. She was able to retrieve some clothes and
her cellphone when [Appellant] threw them out the back door of
the residence. The victim called her daughter from her car. She
then drove to her daughter’s residence in Willow Grove,
Montgomery County, where she lived with her fiancé. At trial,
the victim’s daughter and the daughter’s fiancé testified that the
victim was crying and hysterical when she called and that she
was still crying when she arrived at their residence. They noted
that she was “pretty banged up” and had marks on her neck and
eye. The victim was then taken to Abington Memorial Hospital
where she underwent a sexual assault examination. At that
time, the victim was described as disheveled and distraught.
The examination revealed an abrasion/bruise on her left cheek,
bruising on the right side of her neck, bruising on the left side of
her neck/mandible, bruising on her right chest, bruising on her
right hand in the area of her wrist, bruising on left arm, bruising
on the inside of both thighs, and an abrasion on the right thigh.
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Photographs of the injuries were admitted at trial. The victim
reported the incident to the police while she was at the hospital.
The following day, November 16, 2014, investigators from the
Bucks County District Attorney's Office and the Warminster
Township Police Department intercepted a telephone
conversation between the victim and [Appellant] with the
victim's consent in accordance with the provision of the
Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.
§§ 5701 to 5782.23. Throughout that conversation, the victim
accused [Appellant] of rape. [Appellant] made several
incriminating statements. He told the victim, "I was begging you
and you wouldn't give me." He stated, "I obviously didn't wanna
take your no for an answer, I guess.” When he was asked "Why
did you hold me down like that?" [Appellant] responded, "I don't
know why." On multiple occasions, he told the victim that he was
sorry.
[Appellant] was arrested on November 17, 2015. At that time,
Sergeant Carol Battistini of the Warminster Township Police
Department noted that [Appellant] had fresh scratch marks on
the left side and the right of his face and an abrasion on the
back of his right hand. Photographs of the injuries were
admitted at trial.
On that same date, [Appellant] gave a statement to Sergeant
Battistini. During that statement, [Appellant] stated that he
could not remember if he told the victim he wanted to have sex
again. At trial, [Appellant] testified that he told the victim he
wanted to "do it all night long" as the victim reported. In his
statement, [Appellant] could not explain how the victim
sustained her injuries. Nor could he explain the scratches to his
face. [Appellant] told Sergeant Battistini that he assumed the
victim scratched his face. At trial, [Appellant] explained the
injuries as follows: The scratches to one side of his face were
caused when the victim, for no apparent reason, slapped his
face. The scratches to the other side of his face were caused
when the victim bit his face. The victim's wrist injury was
caused when he grabbed the victim by the wrist and pushed her
down on the bed, restraining her by placing his arm across her
chest. The victim's face was injured when his head struck her
face while he was in the process of restraining her. [Appellant]
could not explain the injury to the victim's neck. In his
statement to police, [Appellant] admitted that he knew that the
victim was tired, wanted to go to sleep and did not want to
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engage in sexual intercourse a second time. He admitted that
he and the victim had a "fight" as a result and that she left
because she was "mad" at him. At trial, [Appellant] admitted
that during the "fight" he used physical force against the victim
and that the victim screamed for her mother during that
struggle. Finally, while he was speaking to Sergeant Battistini,
[Appellant] mentioned that he spoke to the victim by phone the
morning after the incident. Unware of the fact that investigators
were recording the conversation, [Appellant] lied about the
content of that conversation, denying that the victim accused
him of having sex against her will.
Trial Court Opinion, 5/16/16, at 1-5 (footnotes omitted).
In April 2015, a jury trial commenced, after which Appellant was found
guilty of the aforementioned crimes. He was sentenced as outlined above.
Appellant timely filed a post sentence motion, which was denied by the trial
court in February 2016. Appellant timely appealed and filed a court-ordered
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The trial court issued a responsive statement.
Appellant raises the following issues for review:
A. Did the trial court err by failing to properly instruct the jury
on the law needed to determine the issues, mens rea,
consent, mistake of fact, credibility, and totality of the
circumstances?
B. Did the trial court err in finding that there was sufficient
evidence of forcible compulsion, mens rea, and to negate the
defenses of consent and mistake of fact?
C. Did the trial court err in determining that the jury’s verdict
was not against the weight of the evidence of forcible
compulsion, mens rea, and to negate the defenses of consent,
and mistake of fact?
D. Did the trial court err in allowing Appellant’s confession to be
played three times during deliberations while also precluding
contextual and contradictory evidence resulting in an abuse of
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discretion, prejudice to the defense, disparate treatment of
evidence, and skewed presentation to the jury?
Appellant’s Brief at 5-6.
Appellant’s first contention is that the trial court failed to instruct the
jury properly. According to Appellant, the court (1) “eliminate[d] the mens
rea requirement” necessary to establish culpability; (2) refused to instruct
the jury on his asserted defenses, including consent and mistake of fact; and
(3) failed to instruct the jury that it must consider the totality of the
circumstances surrounding the parties’ relationship. Appellant’s Brief at 23-
36.2
Our standard of review is well-settled:
When reviewing a challenge to jury instructions, the reviewing
court must consider the charge as a whole to determine if the
charge was inadequate, erroneous, or prejudicial. The trial court
has broad discretion in phrasing its instructions, and may choose
its own wording so long as the law is clearly, adequately, and
accurately presented the jury for its consideration. A new trial is
required on account of an erroneous jury instruction only if the
instruction under review contained fundamental error, misled, or
confused the jury.
Commonwealth v. Miskovitch, 64 A.3d 672, 684 (Pa. Super. 2013). “A
trial court has broad discretion in phrasing its jury instructions and is not
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2
Appellant’s brief is rambling, in places nonsensical and nearly unintelligible;
however we attempt to decipher Appellant’s claim. See Commonwealth v.
Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008) (waiver results when
appellant fails to properly develop an issue or cite to authority to support his
contention in his appellate brief).
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required to read the Standard Jury Instructions verbatim.” Commonwealth
v. Pope, 14 A.3d 139, 144 n.1 (Pa. Super. 2011). “Therefore, a charge will
be found adequate unless the issues are not made clear to the jury or the
jury was palpably misled by what the trial judge said.” Commonwealth v.
Grimes, 982 A.2d 559, 564 (Pa. Super. 2009).
According to Appellant, the trial court erred in denying his request for
defense instructions regarding consent and mistake of fact. Appellant’s
claim regarding consent is without merit. The trial court clearly instructed
the jury regarding consent, instructing as follows:
Consent, you must decide consent based on what occurred on
the occasion that the rape - - the rape charge deals with.
Because you consent on one occasion does not mean that you
consented on another occasion.
Notes of Testimony, 4/16/15 at 42-43.
Again the trial court issued the following instruction regarding consent:
[S]exual assault is committed when the person does not
consent. Consent is an act of free will. Active opposition is not
a prerequisite to finding the victim did not consent. Again, that
means that resistance is not required - - failure to resist is not
necessarily evidence of consent.
Id. at 46. As such, Appellant’s claim is without merit.
Appellant further asserts that the trial court erred in denying his
request for a mens rea jury instruction as it relates to his mistake of fact
defense. Specifically, Appellant next sought a jury instruction applying
recklessness to the forcible compulsion crimes, Appellant argued:
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The Court: You are saying there should be recklessness on
rape?
...
Mr. Hone: I believe it is tied into my mistake of fact defense. I
believe there is a mistake of fact and consent that has to be - -
The Court: Okay, Okay. The mistake of fact I think I am bound
by the Superior Court case of 2000. That is why I am not giving
it.
Mr. Hone: Okay
The Court: The other is lack of consent has to be known or
recklessly ignored. Force is something that is being applied by
the defendant, so he doesn’t - - I don’t know that there is any
element that - - what mens rea element am I applying
recklessness to? Or is it just mistake of fact?
Mr. Hone: I think it relates because it relates to the mistake of
fact.
The Court: Okay.
Notes of Testimony, 4/16/15 at 57-58.
The trial court properly denied Appellant’s request, as mistake of fact
is not a defense to the forcible compulsion crimes. Mistake of fact is defined
as follows:
Ignorance or mistake as to a matter of fact, for which there is
reasonable explanation or excuse, is a defense if:
(1) The ignorance or mistake negates the intent,
knowledge, belief, recklessness, or negligence
required to establish a material element of the
offense; or
(2) The law provides that the state of mind established
by such ignorance or mistake constitutes a defense.
18 Pa.C.S. § 304.
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However, this Court has long held that mistake of fact is not a defense
to rape. See Commonwealth v. Williams, 439 A.2d 765 (Pa. Super.
1982) (holding that the defendant’s state of mind is not a defense as to the
crime of rape), see also Commonwealth v. Farmer, 758 A.2d 173 (Pa.
Super. 2000) (applying Williams in an ineffective assistance of counsel
claim).
Appellant further claims that the trial court did not allow the jury to
consider the totality of the circumstances. This claim is without merit. The
trial court specifically instructed the jury to “consider all of the
circumstances in deciding whether or not the decision to engage in sexual
intercourse was overcome by forcible compulsion, whether or not the victim
consented.” Notes of Testimony, 4/16/15, at 46. Appellant appears to
conflate two distinct considerations. The jury is permitted to consider the
nature of the parties’ prior, consensual conduct; however, a jury is never
permitted to infer a victim’s consent to engage in similar conduct from prior
examples of consent. See Commonwealth v. Johnson, 638 A.2d 940 (Pa.
1994) (holding that the purpose of the Rape Shield Law is to prevent a
sexual assault trial from degenerating into an attack upon the victim’s
reputation for chastity).
Appellant suggests that these errors cumulatively result in a violation
of his right to due process. The claim is waived, as Appellant failed to raise
a due process claim in his 1925(b) statement. See Commonwealth v.
Lord, 719 A.2d 306 (Pa. 1998) (“Any issues not raised in a 1925(b)
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statement will be deemed waived.”). Nevertheless, in light of our disposition
of each individual claim, Appellant’s cumulative claim is without merit. 3
Appellant’s second issue is that the evidence was insufficient to sustain
his conviction for rape by forcible compulsion under 18 Pa.C.S.A. §
3121(a)(1). Specifically, Appellant contends there was insufficient evidence
to establish the element of forcible compulsion.4
The standard of review for a challenge to the sufficiency of evidence is
de novo, as it presents a question of law. Commonwealth v. Ratsamy,
934 A.2d 1233, 1235 (Pa. 2007).
The critical inquiry on review of the sufficiency of the evidence to
support a criminal conviction . . . does not require a court to ask
itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. Instead, it must
determine simply whether the evidence believed by the fact-
finder was sufficient to support the verdict.
Id. at 1235-36 (emphasis in original) (internal punctuation modified;
citation omitted). “When reviewing the sufficiency of the evidence, an
appellate court must determine whether the evidence, and all reasonable
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3
Appellant also asserts that the trial court abused its discretion in permitting
the Commonwealth to withdraw charges for certain, lesser included offenses.
Appellant’s Brief at 28. This claim was not preserved for appellate review in
Appellant’s Pa.R.A.P. 1925(b) statement. Accordingly, we deem it waived.
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).
4
In this context, Appellant also challenges the credibility of the victim’s
testimony. See Appellant’s Brief at 40. Such a claim is more appropriately
directed to the weight of the evidence, not its sufficiency. See, e.g.,
Commonwealth v. Sullivan, 864 A.2d 1246, 1249-50 (Pa. Super. 2004).
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inferences deducible from that, viewed in the light most favorable to the
Commonwealth as verdict winner, are sufficient to establish all of the
elements of the offense beyond a reasonable doubt.” Id. at 1237 (citation
omitted).
Appellant was convicted of rape by forcible compulsion which provides,
in relevant part, that “[a] person commits a felony of the first degree when
the person engages in sexual intercourse with a complainant: (1) [b]y
forcible compulsion.” 18 Pa.C.S.A. §3121(a)(1). “[P]enetration, however
slight,” of the female genitals with the penis is necessary to establish the
element of sexual intercourse. 18. Pa.C.S.A. §3101. “Something more”
than mere lack of consent is necessary to establish “forcible compulsion.”
Commonwealth v. Smolko, 666 A.2d 672, 676 (Pa. Super. 1995);
Commonwealth v. Riley, 643 A.2d 1090 (Pa. Super. 1994). Forcible
compulsion is a determination made in each case based on the totality of the
circumstances that have been presented to the fact-finder. Smolko, 666
A.2d at 675.
Here, Appellant concedes that he engaged in sexual intercourse with
C.F.; however, he contends that the Commonwealth failed to establish
forcible compulsion and lack of consent. Appellant’s Brief at 39.
In rejecting Appellant’s sufficiency of the evidence claim, the trial court
determined:
The evidence in the instant case was clearly sufficient to
establish the element of forcible compulsion and lack of consent.
Viewed in the light most favorable to the Commonwealth, the
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evidence established that [Appellant] held the victim down, that
he strangled her and that he punched her in the face. The
victim made her lack of consent verbally known by screaming,
yelling, telling [Appellant] to stop and telling him to “get off” of
her. She made her lack of consent physically known by
punching, scratching and biting him.”
Trial Court Opinion, at 6-7.
Appellant argues that his past sexual history with the victim negates
the finding of forcible compulsion. Appellant’s Brief at 39. We disagree.
The mere fact that the victim consented to sexual intercourse earlier that
evening does not establish blanket consent for future sexual encounters. In
the instant case, there are clearly two separate sexual encounters, the first
encounter was consensual, the second encounter was not. It is evident that
the victim withdrew her consent and the subsequent sexual encounter
formed the basis for the rape conviction.
Appellant relies on Commonwealth v. Berkowitz, 641 A.2d 1161
(Pa. 1994), in support of his argument. In Berkowitz, the parties were
both college students, and the victim entered a dormitory room looking for a
friend. Id. at 1163. The victim instead found the defendant, and the two
engaged in sexual intercourse. Id. The defendant was subsequently
charged with rape and indecent assault. Id. The victim testified that
defendant “put [her] down on the bed” and described it as “kind of like a
push”. Id. at 1164. This Court reversed the defendant’s rape conviction,
holding the complainant failed to establish the accused compelled her to
engage in sexual intercourse as required under Section 3121. Id. 1165.
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The decision was upheld by the Pennsylvania Supreme Court who opined,
“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. at 1164.
The incident in Berkowitz is not analogous to this case. Here, there
is a clear showing of physical force.
[Appellant], who was aware that the victim had previously
suffered a broken neck, pinned the victim to the bed and
wrapped both hands around her neck, squeezing and twisting
her neck as he did so. [Appellant] told the victim that he was
going to hurt her. In fear, the victim cried out for her deceased
mother. [Appellant] responded by punching her with a closed
fist in the face. The victim continued to scream and cry and told
[Appellant] to get off of her. When he did not do so, she
punched him, scratched him and bit his face, all to no avail.
Trial Court Opinion at 2, footnote omitted.
The evidence of Appellant’s physical force used in the rape, which
resulted in documented bodily injuries to the victim, was more than
sufficient to prove forcible compulsion. 18 Pa.C.S.A. §3121;
Commonwealth v. Riley, 643 A.2d 1090 (Pa. Super. 1994).
Appellant next asserts that the verdict was against the weight of the
evidence. See Appellant’s Brief at 41. Appellant asserts that he and the
victim had a long-standing history of rough, consensual intercourse. Id.
Appellant also challenges the victim’s credibility. Id.
The law regarding weight of the evidence claims is well-settled. “The
weight of the evidence is a matter exclusively for the finder of fact, who is
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free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711,
723 (Pa. Super. 2015) (citing Commonwealth v. Forbes, 867 A.2d 1268,
1273-74 (Pa. Super. 2005)). A new trial is not warranted because of a
“mere conflict in the testimony”. Id. (citing Commonwealth v. Bruce, 916
A.2d 657, 665 (2007)). On appeal, “our purview is extremely limited and is
confined to whether the trial court abused its discretion in finding that the
jury verdict did not shock its conscience. Thus, appellate review of a weight
claim consists of a review of the trial court’s exercise of discretion, not a
review of the underlying question of whether the verdict is against the
weight of the evidence.” Commonwealth v. Knox, 50 A.3d 732, 738 (Pa.
Super. 2012).
After reviewing the record and trial transcripts, we conclude the trial
court did not abuse its discretion in finding Appellant’s convictions were
supported by the weight of the evidence. The jury made the credibility
determinations and was permitted to believe all, part, or none of the
testimony and evidence. Although Appellant may believe the victim was not
a credible witness, we cannot and will not disturb the credibility
determinations made by the jury.
In its Rule 1925(a) opinion, the trial court fully and satisfactorily
explains why Appellant’s weight of the evidence claim is unsuccessful:
In support of his challenge to the weight of the evidence, the
[Appellant] relies on the same facts and circumstances he
advanced in support of his challenge to the sufficiency of the
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evidence, i.e. the prior sexual relationship between the parties,
inconsistent statements of the victim, the alleged brevity of the
incident and the lack of vaginal trauma. Those facts and
circumstances, considered alone or considered together, are not
sufficient to overturn the jury’s verdict for the reasons set forth
above. In addition, a jury verdict cannot be overturned based
on a claim the verdict is against the evidence because of a “mere
conflict in the testimony.” Such a claim must have a stronger
foundation than a reassessment of the credibility of witnesses.
Moreover, the [Appellant]’s argument as to the lack of vaginal
trauma does not entitle him to relief since that evidence does
not exculpate him. The jury was, therefore, free to reject the
[Appellant]’s arguments as to that evidence.
Trial Court Opinion at 9-10.
For the reasons given by the trial court, we conclude that it properly
exercised its discretion in denying Appellant’s challenge to the weight of the
evidence.
In his final claim, Appellant asserts that the trial court erred in allowing
the jury to hear during its deliberations the recorded telephone conversation
between the victim and Appellant. Appellant’s Brief at 45. Appellant’s trial
counsel failed to object to having the recording played back to the jury.
Furthermore, when the trial court specifically asked counsel if he had an
objection, counsel responded “no problem.” Notes of Testimony 4/17/16 at
4. Thus, this issue is waived and cannot be raised on appeal. See
Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he
failure to make a timely and specific objection before the trial court at the
appropriate stage of the proceedings will result in waiver of the issue.”);
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2017
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