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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
L.D.W., A MINOR : PENNSYLVANIA
:
APPEAL OF: L.D.W., A MINOR : No. 3361 EDA 2017
Appeal from the Dispositional Order, August 28, 2017,
in the Court of Common Pleas of Carbon County
Criminal Division at No. CP-13-JV-0000074-2015
BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 25, 2018
L.D.W. (the “Juvenile”) appeals from the August 28, 2017 juvenile
dispositional order entered in the Court of Common Pleas of Carbon County
adjudicating him delinquent and placing him in a residential treatment
facility for juvenile sex offenders for delinquent acts constituting the crimes
of rape by forcible compulsion, involuntary deviate sexual intercourse by
forcible compulsion (“IDSI”), sexual assault, aggravated indecent assault
without consent, and indecent assault without consent.1 We affirm.
The trial court set forth the following factual history:
On the evening of August 23, 2015, [J.C. (“Victim”),
then 15 years old,] was staying at the house of
Marlon Kirk in Lansford, Carbon County,
Pennsylvania. The Victim’s mother, [S.T.], was a
former girlfriend of Marlon Kirk from whom she had
separated in June 2015. In addition to the Victim
and Marlon Kirk, also in the home that evening were
1 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3125(a)(1), and
3126(a)(1), respectively.
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[S.T.] and her son, [C.C.], the Victim’s brother, as
well as the Juvenile, [then 14 years old,] and his
mother, brother and sister, [F.S.], [M.K.], and
[K.K.], respectively.
[F.S.], who was also a former girlfriend of Mr. Kirk
with whom she had several children, was moving
into the home that same day from New York with her
children. The Victim testified that the morning of
August 23, 2015, was the first time she could recall
meeting the Juvenile.
Mr. Kirk’s home is a three-story home with three
bedrooms on the second floor. On August 23, 2015,
arrangements had been made for [F.S.] to sleep on
the first floor in the living room with her son, [M.K.],
and her daughter. Mr. Kirk and [S.T.] slept that
night in one bedroom on the second floor of the
home; [C.C.] and the Juvenile were to sleep in a
middle bedroom on the second floor; and the Victim
occupied the third bedroom at the other end of the
hall.
That evening, the Victim went to bed sometime
between 10:30 and 11:00 P.M. Approximately
forty-five minutes later, while the Victim was lying in
bed on her side facing the door, the Juvenile opened
the bedroom door, entered, and closed the door
behind him. The Victim was tired and believes she
was most likely using her iPhone when this occurred.
Before going to bed, the Victim had taken
Trazodone, to help her sleep, and Lamictal for
depression and a mood disorder. Both of these
medications are prescribed and, according to the
Victim, have no side effects.
Upon entering the bedroom, the Juvenile first sat at
the foot of the bed for a short period during which
time the Victim and the Juvenile spoke briefly. When
the Victim began to fall asleep, the Juvenile crawled
onto the bed behind the Victim and laid down facing
her back. The Juvenile began kissing the Victim on
her neck, which offended the Victim, but which she
did nothing to stop.
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The Juvenile next pulled the Victim’s sweat pants
and underwear down and began to insert his penis
into her rectum. The Victim said nothing at first, she
was scared and froze, but as the Juvenile continued
and began thrusting and penetrating her anus, the
Victim, who was in pain, began crying and
repeatedly asked the Juvenile to stop. The Juvenile
continued despite these requests, telling the Victim
that it would be over soon, and that she should “just
keep going with it.”
When the Juvenile was finished, he withdrew his
penis, grabbed the Victim’s hand, and made the
Victim touch his penis. After a minute or two, the
Victim removed her hand from the Juvenile’s penis
and the Juvenile again put his penis inside the
Victim’s rectum and began thrusting,
notwithstanding that the Victim was crying, saying
“no,” and begging him to stop. When the Juvenile
finished penetrating the Victim a second time, the
Victim needed to ask him to leave several times
before he did so. To keep the Juvenile from
re-entering the room, the Victim barricaded her
door, placing furniture and other items in front of the
door to prevent the Juvenile from returning.
At first, the Victim did not tell anyone what had
happened, testifying that she was too scared to
leave her bed. However, the next day, which was
the first day of school, the Victim asked to see her
counselor, Kevin Loch, and immediately told him that
she had been raped: that the Juvenile had forced his
way onto her and engaged in sexual intercourse as
she was crying and trying to push him off. Mr. Loch
described the Victim as being upset and
uncomfortable. Mr. Loch reported the incident to the
proper authorities.
That same day at approximately 7:00 p.m., the
Victim was taken to the Scranton Child’s Advocacy
Center (CAC) by her mother, where a sexual assault
examination was performed by Cheryl Friedman, a
board-certified family nurse practitioner, also
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certified as a sexual assault nurse examiner (SANE).
As part of a multi-disciplinary team at the Child
Advocacy Center, Ms. Friedman’s expertise includes
conducting physical examinations of the victims of
sexual assault and familiarity with the psychological
aspects of sexual assault.
In addition to noting scratches on the Victim’s back,
skin and abdomen during her genital examination of
the Victim, Ms. Friedman observed excoriated skin at
two areas of the Victim’s rectum consistent with the
sexual assault described by the Victim.
Ms. Friedman testified that the excoriated skin was a
recent injury since this area of the body heals
rapidly, within several days. Ms. Friedman also
noted that the Victim was upset and crying during
the examination, and opined that such behavior, as
well as the Victim’s testimony that she was
frightened and froze during the assault and did not
scream out, that she blamed herself for what had
happened, and that she had nightmares and was
depressed for months afterwards was consistent with
a young person who had just been sexually
assaulted. It was Ms. Friedman’s opinion, taking into
account the Victim’s medical history and description
of what had occurred, together with her observations
made during her examination of the Victim, that the
Victim’s behavior was consistent with a sexual
assault having occurred.
Trial court opinion, 10/18/17 at 2-6 (citations to notes of testimony
omitted).
The record reflects that following a hearing held on July 20, 2017, the
trial court adjudicated L.W. delinquent of the above-mentioned offenses.
Additionally,
[t]he Juvenile’s placement in a residential treatment
facility at Abraxas Youth Center Sex Offender
Program Secure in Morgantown, Pennsylvania, was
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agreed upon by all parties and accepted by the court
at a disposition hearing held on August 28, 2017.
An appeal from the disposition order was filed on
September 12, 2017. This appeal was accompanied
by the Juvenile’s concise statement of the matters
complained of and to be raised on appeal [pursuant
to Pa.R.A.P. 1925(b)].
Id. at 2. Thereafter, the trial court filed its Rule 1925(a) opinion.
The Juvenile raises the following issue for our review:
Whether the evidence was sufficient to establish
forcible compulsion for the crimes of rape by forcible
compulsion and involuntary deviate sexual
intercourse by forcible compulsion when the
evidence established that [the Juvenile] engaged in
anal sex with the victim without her consent but
without facts establishing he used any type of force
to overcome her will?
Juvenile’s brief at 4.
Our standard of review for a challenge to the
sufficiency of the evidence is well settled. We must
view all the evidence in the light most favorable to
the verdict winner, giving that party the benefit of all
reasonable inferences to be drawn therefrom.
Additionally, it is not the role of an appellate court to
weigh the evidence or to substitute our judgment for
that of the fact-finder.
Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),
appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.
Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143
(Pa. 2004) (citations omitted).
The Crimes Code provides that a person commits rape when “the
person engages in sexual intercourse with a complainant [] [b]y forcible
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compulsion.” 18 Pa.C.S.A. § 3121(a)(1). The Crimes Code also provides
that a person commits ISDI “when the person engages in deviate sexual
intercourse with a complainant [] by forcible compulsion[.]” 18 Pa.C.S.A.
§ 3123(a)(1).
Common to each of these crimes is the element of
“forcible compulsion.” The Crimes Code defines “forcible compulsion” as
“[c]ompulsion by use of physical, intellectual, moral, emotional or
psychological force, either express or implied. The term includes, but is not
limited to, compulsion resulting in another person’s death, whether the
death occurred before, during or after sexual intercourse.” 18 Pa.C.S.A.
§ 3101.
It is well-established that in order to prove the
“forcible compulsion” component, the
Commonwealth must establish, beyond a reasonable
doubt, that the defendant “used either physical
force, a threat of physical force, or psychological
coercion, since the mere showing of a lack of consent
does not support a conviction for rape . . . by forcible
compulsion.” Commonwealth v. Brown, 556 Pa.
131, 136, 727 A.2d 541, 544 (1999). In
Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d
1217 (1986), our Supreme Court stated that forcible
compulsion includes “not only physical force or
violence, but also moral, psychological or intellectual
force used to compel a person to engage in sexual
intercourse against that person’s will.” Rhodes, 510
Pa. at 555, 510 A.2d at 1226. Further, the degree of
force required to constitute rape is relative and
depends on the facts and particular circumstances of
a given case. Commonwealth v. Ruppert, 397
Pa.Super. 132, 579 A.2d 966, 968 (1990), appeal
denied, 527 Pa. 593, 588 A.2d 914 (1991).
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Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa.Super. 2010).
Moreover,
A determination of forcible compulsion rests on the
totality of the circumstances, including but not
limited to this list of factors:
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.
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. Gonzalez, 109 A.3d 711, 721 (Pa.Super. 2015)
(internal citations omitted).
In considering the totality of the circumstances, the trial court found
that:
[t]he Victim was a minor of tender years. Prior to the
date of this incident, the Victim had not met the
Juvenile, and had not been involved with him
romantically. Yet, without being invited, the Juvenile
came unannounced into the Victim’s bedroom after
she had gone to bed. Adding to the Victim’s
vulnerability were the effects of the medication she
had taken to help her sleep and which caused her to
be tired, and her petite size. The Juvenile in contrast
is tall and athletic looking, and appeared from his
comments to be sexually active and to have had
frequent short term relationships with females
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because he is easily bored. These physical
differences between the Juvenile and the Victim and
the Juvenile’s attitude toward females are relevant
factors to be considered, as are the actions of the
Juvenile in removing the Victim’s clothing without
any prodding or assistance from her, his penetrating
the Victim twice without her consent and in the face
of her repeated requests that he stop, his placement
of the Victim’s hand on his genitals, and his
insistence on finishing what he had started – his
penetration of the Victim – all the while the Victim
was in tears and saying “no.”
All of this evidences the Juvenile’s “domination” and
power over the Victim. These facts, combined with
the Victim’s testimony that she froze, was scared,
and didn’t know what to do, convinced us that the
Victim was compelled to engage in sexual
intercourse with the Juvenile against her will through
forcible compulsion. While the force used was subtle
and to a large extent psychological and emotional, it
nevertheless was real and induced the Victim to
submit against her will under the totality of the
circumstances.[Footnote 2]
[Footnote 2] That “physical force” was
used is evidence by the Victim’s
statements to Kevin Loc[h], her
counselor at school, that the Juvenile
had forced his way upon her and
engaged her in sexual intercourse while
she was crying and trying to push off.
As a prompt complaint, these statements
are not admissible for their truth or as
substantive evidence, Commonwealth
v. Freeman, 441 A.2d 1327, 1332
(Pa.Super. 1982), but as an excited
utterance, they are. Commonwealth v.
Pettiford, 402 A.2d 532 (Pa.Super.
1979). Moreover, no objection was
made to this evidence.
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Trial court opinion, 10/18/17 at 10-11 (citation to notes of testimony
omitted).
Here, we have carefully reviewed the record, and it demonstrates that
the evidence admitted at the adjudication proceeding, as well as all
reasonable inferences drawn therefrom, viewed in the light most favorable
to the Commonwealth as the prevailing party at the adjudication proceeding,
was sufficient to support the forcible compulsion element of the offenses
rape and IDSI.
Juvenile dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/18
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