J-S26011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DIONE MAURICE ANDREWS,
Appellant No. 1221 EDA 2017
Appeal from the Judgment of Sentence Entered March 3, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006345-2016
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 10, 2018
Appellant, Dione Maurice Andrews, appeals from the judgment of
sentence of time served to 23 months’ incarceration, imposed after he was
convicted by a jury of indecent assault, 18 Pa.C.S. § 3126(a)(1). Appellant
challenges the weight of the evidence to sustain his conviction, as well as an
evidentiary ruling by the trial court. We affirm.
The trial court briefly summarized the facts and procedural history of
Appellant’s case, as follows:
During the time of the incident, April 27, 2016, [Appellant]
was living at the home of his friend Robert Hagler. Hagler
arranged to meet up with the victim, D.M.[,] in the early morning
hours. They went back to Hagler’s home. D.M. believed that only
Hagler and his grandmother were present. She was unaware that
[Appellant] was also present in the home. Hagler and the victim
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* Former Justice specially assigned to the Superior Court.
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engaged in consensual sexual intercourse. When Hagler left the
dark bedroom, [Appellant] walked in and attempted to have
sexual intercourse with D.M. without consent, and only stopped
because he was suffering from erectile dysfunction.
On March 3, 2017, a two-day jury trial concluded. The jury
found [Appellant] guilty of indecent assault without consent. The
jury acquitted him of rape, sexual assault and indecent assault -
forcible compulsion. Also on March 3, 2017, [Appellant] was
sentenced to a term of imprisonment of time served to twenty-
three months[’ incarceration]. A timely post-sentence motion was
filed, challenging the weight of the evidence. The motion was
denied on March 16, 2017. This timely appeal followed.
Trial Court Opinion, 7/5/17, at 1-2.
On April 19, 2017, the trial court ordered Appellant to file a Pa.R.A.P.
1925(b) statement. On May 10, 2017, the court granted Appellant a 10-day
extension of time to file his Rule 1925(b) statement. Appellant subsequently
requested another extension of time to file his concise statement, but the
court seemingly did not rule on that request. Appellant filed his Rule 1925(b)
statement on May 25, 2017, beyond the 10-day extension initially granted by
the court. Notwithstanding the untimeliness of Appellant’s Rule 1925(b)
statement, the trial court issued an opinion on July 5, 2017, addressing the
merits of his issues. As such, we need not remand, and we will examine the
two issues Appellant presents herein. See Commonwealth v. Burton, 973
A.2d 428, 433 (Pa. Super. 2009). Those issues are as follows:
1. The verdict was against the weight of the evidence.
2. The trial court erred in precluding evidence that indicated that
Appellant did not assault the complainant.
Appellant’s Brief at 6 (unnecessary capitalization omitted).
In regard to Appellant’s first issue, we begin by noting that,
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[a] claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court’s discretion; it does not answer for itself whether the verdict
was against the weight of the evidence. It is well[-]settled that
the jury is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses, and a new trial based
on a weight of the evidence claim is only warranted where the
jury’s verdict is so contrary to the evidence that it shocks one’s
sense of justice. In determining whether this standard has been
met, appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable abuse
of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations
and internal quotation marks omitted).
Here, Appellant claims that the greater weight of the evidence
demonstrated that he believed D.M. was a consenting participant in their
sexual encounter and, thus, he lacked the intent to assault her. In support,
he cites his own trial testimony that Hagler told him that D.M. wanted to have
sex with him, thus ‘duping’ Appellant into believing that D.M. was consenting
to the sexual intercourse. See N.T. Trial, 3/2/17, at 126. Appellant also
relies on his and D.M.’s testimony that, during their sexual encounter, Hagler
“peep[ed] in the room, smile[d] and then closed the door,” id. at 18, and
D.M.’s testimony that, because she initially thought that Appellant was Hagler,
she was ‘amorous’ with Appellant at the outset of the encounter, id. at 16.
Appellant claims that as soon as D.M. said the word “rape,” he realized she
was not consenting and he “immediately stopped any amorous gestures….”
Id. at 19. Finally, Appellant points out that after the incident, Hagler
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“harassed [D.M.] on the streets and called her vile names,” which Appellant
characterizes as “inculpatory” behavior. Id. at 22. Appellant also stresses
that he presented evidence that his “reputation in the community was
impeccable.” Id. In light of all of this evidence, Appellant maintains that the
jury’s verdict “truly shocks the conscience.” Id. at 23.
The trial court disagreed with Appellant and, after reviewing the record,
we discern no abuse of discretion in that decision. Even accepting that when
Appellant entered the bedroom and initiated the physical contact with D.M.,
he believed that she was a consenting participant, D.M. testified that once she
realized that Appellant was not Hagler, she “kept repeating, ‘Get off of me.
Get off of me. Get off of me.’ And [Appellant] didn’t.” N.T. Trial at 66. D.M.
further stated that, as she was telling Appellant to get off her, she “was trying
to push him off me, push his shoulders, you know, so he would get off me.
But as I was doing that he was, you know, forcefully coming back down.” Id.
When asked what Appellant “was doing with his body[,]” D.M. explained that
“[a]s [she] was pushing, he was rejecting that force” and “[j]ust continuing
on with what he came in there to do.” Id. at 66, 67. D.M. clarified that she
“felt [Appellant’s] penis try to insert [into] my vagina[,]” and that “maybe a
small portion” of Appellant’s penis did enter her vagina. Id. at 67. It was at
this point that D.M. asked Appellant, “Are you really going to rape me?” and
Appellant then got off her, apparently because “he was having erectile
dysfunction and he was embarrassed….” Id. D.M. also testified that Hagler
opened the door, looked in, and then shut the door after she had told Appellant
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to ‘get off her,’ but she did not know if Hagler “knew exactly what was going
on….” Id. at 70.1 Additionally, the Commonwealth admitted evidence that
after the incident, Appellant messaged D.M. on social media and agreed with
D.M. that what had happened between them “wasn’t right” because Appellant
knew “what [he] was doing” and D.M. did not. Id. at 79.
In light of this evidence, the trial court did not abuse its discretion in
rejecting Appellant’s weight-of-the-evidence claim. The jury was clearly free
to believe D.M.’s testimony that Appellant continued to force himself on her
after she verbally and physically rejected his advances. This is true even in
light of the minor inconsistencies in the witnesses’ testimony, the evidence
that Hagler ‘duped’ Appellant, Hagler’s alleged ‘inculpatory’ conduct after the
incident, and Appellant’s good reputation in the community. Therefore,
Appellant’s first issue does not warrant relief.
In Appellant’s second issue, he argues that the trial court erred by not
allowing him to question D.M. about a phone call she had with Appellant that
was recorded by the police. Specifically, during the cross-examination of
D.M., the following exchange occurred:
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1 Hagler testified that when he opened the door to the room, he saw Appellant
on top of D.M. and heard her say, “Get off of me.” N.T. Trial at 24. Hagler
claimed that he repeatedly told Appellant to get off D.M., but Appellant “just
kept doing what he was doing.” Id. Hagler testified that “[b]ecause
[Appellant] wasn’t listening to [him,]” he left the room and waited outside
until D.M. left. Id. at 24, 25.
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[Defense Counsel:] You made this phone call to be recorded,
correct?
[D.M.:] Yes.
[Defense Counsel:] And the purpose of that phone call was to see
if you could get [Appellant] to basically say that he assaulted you,
correct?
[D.M.:] Yes.
[Defense Counsel:] And he didn’t say that, did he --
[The Commonwealth:] Objection; hearsay.
[The Court:] Sustained.
N.T. Trial at 98 (emphasis added).
Appellant contends that the above-emphasized question sought to elicit
testimony about “[w]hat [he] did not say” and, thus, it did not constitute
hearsay. Appellant’s Brief at 26 (emphasis added). He also argues that the
question “was a fair retort to the Commonwealth’s questioning of [D.M.] that
suggested Appellant was guilty.” Id. Appellant avers that because “[t]his
was a case that turned solely on credibility[,] … preventing the question from
being answered substantially contributed to his conviction.” Id.
In response, the Commonwealth asserts that the question was clearly
designed to elicit “an out-of-court statement offered for its truth” and, thus,
D.M.’s answer would have been hearsay. Commonwealth’s Brief at 15; see
also Pa.R.E. 801(c) (defining hearsay as “a statement that [] the declarant
does not make while testifying at the current trial or hearing; and [] a party
offers in evidence to prove the truth of the matter asserted in the statement”).
Nevertheless, the Commonwealth also stresses that Appellant
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fails … to articulate how the victim’s testimony that, on a prior
occasion he said he did not do it, would have changed the outcome
of his trial, especially where he testified at trial that he did not do
it. The jury was perfectly capable of assessing his credibility when
he was on the witness stand. That it rejected his story does not
somehow make the court’s ruling excluding inadmissible hearsay
improper or otherwise entitle him to relief.
Id. at 16.
While we agree with Appellant that the wording of the question posed
to D.M. seemingly sought a response about what Appellant did not say, rather
than what he did, we need not determine whether such a response would
constitute hearsay. Even if D.M. had testified that Appellant did not admit to
assaulting her during their recorded phone conversation, that testimony would
not have changed the outcome of Appellant’s trial. As the Commonwealth
stresses, Appellant himself took the stand and testified that he did not assault
D.M. Clearly, the jury believed D.M.’s testimony to the contrary, which was
bolstered by Hagler’s testimony that he heard D.M. repeatedly telling
Appellant to get off her, and by Appellant’s messages to D.M. after the incident
admitting that what had happened was wrong. Therefore, we are convinced
by the Commonwealth’s ‘harmless error’ argument, and we conclude that the
trial court’s precluding D.M.’s testimony did not impact the jury’s verdict.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/18
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Com. v. Andrews, D.
Combined Opinion