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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BASILIO DONES :
:
Appellant : No. 2055 EDA 2018
Appeal from the Judgment of Sentence Entered June 4, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000783-2016
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 10, 2020
Basilio Dones appeals from his judgment of sentence, 1 entered in the
Court of Common Pleas of Philadelphia County, after a jury convicted him of
rape of a child,2 unlawful contact with a minor,3 indecent assault,4 and
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1 While Dones’ notice of appeal states that he is appealing from the order
denying his motion for extraordinary relief for a judgment of acquittal, the
caption correctly reflects that the appeal is taken from his judgment of
sentence. See Commonwealth v. Chamberlain, 658 A.2d 395, 397 (Pa.
Super. 1995) (order denying post-sentence motion acts to finalize judgment
of sentence; thus, appeal is taken from judgment of sentence, not order
denying post-sentence motion).
2 18 Pa.C.S.A. § 3121(c).
3 18 Pa.C.S.A. § 6318(a)(1).
4 18 Pa.C.S.A. § 3126(a)(7).
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corruption of minors.5 On appeal, Dones contends that the evidence at trial
was so contradictory and unreliable that it was insufficient to sustain his
convictions. Upon careful review, we affirm.
In or around 2006, the victim, S.O., moved to her home on Glenloch
Street in Philadelphia with her maternal grandmother, M.D., her aunt, J.V.,
and her uncle, C.V. N.T. Trial, 3/15/18, at 11-12, 59. In or around 2007,
Dones, S.O.’s 21-year-old cousin, moved into the Glenloch Street house to
live closer to Lincoln Technical Institute where he attended auto mechanic
classes. Trial Court Opinion, 4/30/18, at 3. At the time of the incidents, which
occurred between 2006 and 2008, S.O. was between the ages of seven and
eight. Id. At all times relevant hereto, S.O.’s father was incarcerated, and
S.O. saw her mother, U.V., approximately every other weekend. Id. at 2.
The first incident happened after [Dones, S.O., and M.D.] had
watched television when it was still light outside. After [M.D.]
went upstairs to her room, [Dones] told [S.O.] to follow him to his
room. [Dones] then told her to stand facing the corner of the
bedroom. [S.O.] remembers her pants and underpants being
down to her ankles, although she does not remember how they
came off, and hearing the sound of “a wrapper being torn apart.”
She glanced at the bed and saw that it was a condom wrapper.
[S.O.] then felt [Dones] standing close behind her and making
body motions “back and forth” against her. She could feel his
weight on her back and felt his penis in between her legs. [Dones]
would ask [S.O.] during [the assault,] “does it hurt.” [S.O.] does
not know or remember feeling whether or not [Dones’] penis went
into in any parts of her body. This back and forth motion would
occur for “a little while,” then [Dones] would tell [S.O.] that she
could pull up her pants and leave. Afterwards, [S.O.] went to
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5 18 Pa.C.S.A. § 6301(a)(1).
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[M.D.’s] room, “cuddled up next to her and cried [herself] to
sleep.” [S.O. also testified that during these experiences, she was
“too young to understand” what was happening, and that “[her]
body just shut down on [her], like [she] was just in shock.” N.T.
Trial, 3/15/18, at 31, 65.]
[Although she testified at the preliminary hearing that these
assaults occurred two to four more times, S.O.] testified [at trial]
that these assaults occurred more than five times in the same
routine with her facing the wall, the condom being opened, and
his motions back and forth with his penis while both [Dones] and
[S.O.] were standing upright. When [S.O.] began experiencing
pain and a burning sensation when urinating her grandmother
took her to a doctor and she was prescribed antibiotics and other
medicine and was diagnosed as having a vaginal infection. This
infections [sic] lasted for “maybe months” and ceased when
[Dones] moved out. [S.O.] did not speak to anyone, including
family members, about [Dones’] actions until the ninth grade
when [she] told her best friend Calvin Gainey and [another female
friend] about what [Dones] did to her. During the period of time
between the first incident and her ninth grade year, [S.O.]
testified that she felt depressed and experienced traumatic
flashbacks of the assaults.
[S.O.] also testified as to another incident that happened several
years later between 2014 and 2015 at the Lawrence Street
residence after her high school classes had let out for the day.
[Dones] and his mother were visiting while [S.O.] babysat her
younger cousin. [Dones’] mother stepped out and [Dones] asked
[S.O.] where his mother had gone. At the time, [S.O.] was on the
phone with her friend, Calvin Gainey. She testified that at some
point she [brought] her younger cousin upstairs. She testified
that she remembered “running up the steps and [Dones] was
chasing behind [her].” When [S.O.] went into her bedroom,
[Dones] prevented her from shutting the door, which caused her
to trip. [Dones] then pinned [S.O.] down on her bed with his
weight on top of her. Before she tripped, [S.O.] was able to hit
the “Face[T]ime button” on her phone so that Calvin Gainey could
see what was happening from [the] front camera on her phone.
She heard Calvin say “what the F you doing” twice to [Dones].
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After the second time, [Dones] got off of [her]. He then left the
bedroom and the house.6
[S.O.] further testified that when she was fifteen (15) and living
on Lawrence Street she felt depressed and began cutting herself.
She attributed these feelings to the memories of what [Dones]
had done to her. She would call her friend Calvin or her female
friend whenever she saw [Dones]. She would also lock herself
and her female friend in her bedroom to avoid [Dones].
[S.O.] testified that that she had not spoken to her family about
[Dones] sexually assaulting her because she felt “ashamed” and
did not know how to file a report. However, during her tenth grade
year in high school, [S.O.] told her paternal grandmother [N.M.]
that she had been raped by [Dones]. [N.M] called the Philadelphia
Department of Human Services [(DHS)] the following morning.
When DHS came one or two days later, [M.D.] told [S.O.] to close
the case over health concerns for [Dones’] father, who was
[M.D.’s] brother. After the visit from DHS, several family
members questioned [S.O.] about the assaults. [S.O.] was
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6 Gainey testified about this incident between S.O. and Dones and also gave
a statement to the police about it. The trial court summarized Gainey’s
testimony as follows:
During one of their regular conversations when they were talking
on the phone using Face[T]ime, [Gainey] heard S.O. say, “oh shit,
my cousin’s here.” He stated that he then was able to watch on
his phone and saw [Dones] chase S.O. into her room while she
shouted at him to get away. [Gainey] also saw [Dones] stick his
foot in the doorway ‘so like he could prevent [S.O.] from shutting
the door all the way fully.’ [Gainey] stated that he was in shock
from witnessing this incident without being able to do anything.
He testified that when he saw [Dones] pin S.O. to the bed, he
yelled into his phone to [Dones], ‘what the fuck is you doing?’
When [Gainey] told [Dones] to ‘get off’ of S.O., [Dones] grabbed
the phone, saw [Gainey’s] face, and [got] off of [S.O.]. [Dones]
then called [Gainey] a ‘pervert.’ [Gainey] testified that he had
never met nor seen [Dones] prior to this [F]ace[T]ime call.
Sometime around November of 2015, [Gainey] gave a statement
to the police regarding this incident.
Trial Court Opinion, 4/30/18, at 8.
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interviewed [on November 12, 2015 by Colleen Getz of the
Philadelphia Children’s Alliance (PCA)].
Id. at 3-5.
During that interview, S.O. explained that Dones raped her more than
once, and that “the main thing [she] remember[s] is [that she was] eight.”
Dones – Recorded Interview of S.O., 11/12/15, at 5:55-6:30. She stated
during this interview that Dones said to her “let’s go upstairs” before the
assault, and asked her “did it hurt” during the incident. Id. at 8:55-10:49.
She described standing facing the corner of the bedroom, hearing a wrapper
opening, and seeing a condom wrapper on Dones’ bed. Id. S.O. stated that
Dones inserted his penis into her vagina and that “it hurt it.” Id. at 11:05-
12:39. At trial, the jury viewed this recorded interview. Michele Kline, Lead
Forensic Interview Specialist at the PCA, testified at trial that interviewers
including Colleen Getz typically refrain from asking children specifically about
when and how frequently abuse happened “because most children are not able
to accurately provide that information.” Trial Court Opinion, 4/30/19, at 11.
Dones took the stand in his defense and denied that the 2015 incident
that Gainey and S.O. described ever occurred. Trial Court Opinion, 4/30/19,
at 12. He also testified that none of the sexual assaults that S.O. described
had occurred, and he denied ever being around S.O. while he was attending
Lincoln Technical Institute. Id. Dones testified that he never had any issue
with Gainey, N.M., or U.V., and that his relationships with M.D. and S.O. were
good. Id. at 204-206. He then testified that all of those witnesses against
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him were lying, and that they “probably want to take [him] down.” Id. at
207.
According to Dones, S.O. and the other witnesses “just picked [him] out
of nowhere” to take the blame for raping S.O. “because basically [he] was
never around [S.O.] at that time,” he was “a good person,” and they were
“jealous of [him]” for having a job and a daughter. Id. at 203-209. On cross-
examination, the Commonwealth confronted Dones with contradictions in his
own testimony and in his statement to police regarding the 2015 incident. Id.
at 211-215.
At trial, Dones presented several character witnesses. Trial Court
Opinion, 4/30/19, at 12. Each witness testified to Dones’ good character and
that he was a peaceful, nonviolent person and had an excellent reputation in
the community. Id.
After a three-day jury trial held in March 2018, a jury convicted7 Dones
of the above-mentioned crimes.8 On June 4, 2018, the trial court sentenced
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7 Dones was arrested and charged with rape, unlawful contact with a minor,
indecent assault, corruption of minors, unlawful restraint, simple assault, and
recklessly endangering another person. The Commonwealth withdrew the
latter three charges before trial.
8 Prior to Dones’ sentencing hearing, the court conducted a hearing on his
motion for a judgment of acquittal with respect to the rape charge. See
Pa.R.Crim.P. 704(B). The court denied the motion, stating:
[S.O.] was very clear about this condom, this wrapper that was
taken out each time. She was very clear that [Dones] was moving
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Dones to an aggregate term of 10 to 20 years’ incarceration. Thereafter,
Dones filed a timely motion for reconsideration of sentence alleging his
sentence was excessive, which the court also denied. Dones then filed a
timely notice of appeal and court-ordered statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). Dones raises a single issue for our
review: “Is the evidence sufficient to convict [Dones] of the charges of rape,
unlawful contact with a minor, indecent assault, and corruption of minors?”
Brief of Appellant, at 5.9
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back and forth and pressing on her. She wasn’t completely clear
whether the penis went in her, but the question is if somebody
takes a condom out and somebody is moving back and forth
behind somebody and has an [eight]-year-old to the wall and
they’re feeling pressure, the jury can determine that there was
penetration, however slight, which is what the issue is for the rape
charge. From having reviewed all of the testimony of her, both
direct and cross, I believe that there was a sufficient basis for the
jury’s verdict and I am going to deny the motion for relief.
N.T. Sentencing, 6/4/18, at 10.
9 In its Rule 1925(a) opinion, the trial court interpreted Dones’ claim as a
challenge that the verdict was against the weight of the evidence. See Trial
Court Opinion, 4/30/19 at 13-16. In its Appellee’s brief, filed almost two
months late, the Commonwealth also addresses Dones’ appeal as a challenge
to the weight, rather than the sufficiency, of the evidence. However, Dones
raises no argument on appeal relating to the weight of the evidence in this
case; rather, the sole argument in his brief concerns the sufficiency of the
evidence presented at trial, arguing that the Commonwealth failed to satisfy
its burden of proving each element of each crime charged beyond a reasonable
doubt. Brief of Appellant, at 30-33. Thus, we confine our review to a
sufficiency of the evidence claim.
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Dones argues that the evidence presented at trial is so unreliable and
contradictory that it is incapable of supporting a verdict of guilty, and thus, is
insufficient as a matter of law. Brief of Appellant, at 63. “Normally, evidence
is deemed to be sufficient where there is testimony offered to establish each
material element of the crime charged and to prove commission of the offense
by the accused beyond a reasonable doubt.” Commonwealth v. Smith, 467
A.2d 1120, 1122 (Pa. 1983). There is, however, an exception to this general
rule, known as the “Bennett principle.” See Commonwealth v. Bennett,
303 A.2d 220 (Pa. Super. 1973); see also Commonwealth v. Farguharson,
354 A.2d 545, 550 (Pa. 1976).
Our Court [has] recognized that, in those extreme situations
where witness testimony is so 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, 52 A.3d 1139, 1156 n.18 (Pa. 2012).
“The Bennett principle is applicable only where the party having the
burden of proof presents testimony to support that burden which is either so
unreliable or contradictory as to make any verdict based thereon obviously the
result of conjecture and not reason.” Farguharson, 354 A.2d at 550. The
Bennett principle, however, does not apply to every case involving allegedly
contradictory or inconsistent testimony. Commonwealth v. Grant, 135 A.3d
649 (Pa. Super. 2015).
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In Bennett, the Commonwealth predicated its case upon the testimony
of one individual, Harry Jones, who sought to implicate the defendant in the
crime of receiving stolen property (an automobile). Bennett, 303 A.2d 220,
220 (Pa. Super. 1973). At trial, Jones gave
several wholly different, conflicting and inconsistent versions of
when and how he had told [the defendant] that the car had been
in fact stolen by [Jones]. On a previous occasion, Jones had
denied he ever conveyed to defendant knowledge of the car's
theft. With each new version [of the car theft story,] Jones would
recant the previous one and protest that the newest version was
in fact the true one.
Id. On appeal, our Court reversed the defendant’s judgment of sentence,
noting that the Commonwealth presented the jury “not with a mere conflict or
contradiction in testimony which was reasonably reconcilable,” but instead
with testimony so contradictory on the basic issue as to make any verdict
based thereon pure conjecture. Id. at 221 (emphasis added). Cf.
Commonwealth v. Smith, 467 A.2d 1120, 1123 (Pa. 1983) (declining to
apply Bennett where reconciliation of conflicts in testimony not impossible).
Our Supreme Court followed Bennett in Commonwealth v. Karkaria,
625 A.2d 1167 (Pa. 1993), the primary case relied upon by Dones to support
his argument on appeal. In Karkaria, the victim’s testimony relating to
alleged incidents of sexual assault was so internally inconsistent that the Court
was “compelled to conclude” that the evidence presented at trial was
insufficient to support a guilty verdict. Id. at 1172. At trial, the victim offered
different, contradictory accounts of when the defendant assaulted her. Id. at
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1171. The victim initially testified that her stepbrother, A.K., was never in the
home during the assaults. Id. However, when confronted with her own
testimony that A.K. and the defendant spent every weekend in the same
household pursuant to a custody agreement, the victim testified that the
assaults occurred at another time, failing to specify when that particular
opportunity arose. Id. Moreover, the victim in Karkaria initially insisted that
every assault occurred while the defendant babysat her, and later she
admitted that the defendant no longer acted as her babysitter during the
period charged in the indictment. Id. See also Commonwealth v. Devlin,
333 A.2d 888 (Pa. 1975) (noting criminal prosecution requires proof beyond
reasonable doubt accused committed offense charged at time specified within
indictment).
Additionally, the Karkaria Court pointed out that “no words were ever
spoken” between the victim and the defendant before, during, or after any of
the alleged assaults. Karkaria, supra, at 1171. Further, although the victim
had told one friend and two camp counselors that the defendant had “touched”
her, none of those individuals took any action in response, and, “[i]n fact,
none of the three witnesses testifying to the touching comments could recall
specific complaints of sexual assault.” Id.
Upon review of the relevant case law and certified record on appeal, we
conclude that the Bennett principle is inapposite here. The Commonwealth’s
witnesses’ testimony was not so unreliable and contradictory as to make the
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guilty verdict the result of conjecture. S.O. testified consistently about the
timing, manner, and reporting of Dones’ abuse. She testified consistently
about her history of vaginal infections, which coincided with the time Dones
lived with her, as well as the lasting psychological impact Dones’ assaults had
on her. Several members of S.O.’s family, Gainey, and Michele Kline of the
PCA corroborated S.O.’s testimony extensively. The jury also considered
Dones’ own testimony,10 which likely provided an “indicium of trustworthiness
to the testimony of [the other witnesses] on the critical issue sufficient to
permit the question to be properly left to the trier of fact.” See Farguharson,
354 A.2d at 551 (Supreme Court concluded Bennett principle not applicable
where Commonwealth’s witness gave contradictory testimony that was
corroborated in part by defendant’s own testimony). Here, any misstatement
or discrepancy in witness testimony was easily reconcilable. Dones is entitled
to no relief.
Judgment of sentence affirmed.
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10 Although Dones conceded that he had no issues with Gainey or any family
member, he was adamant that S.O. and the other witnesses were lying about
him, and that in order to protect the true assailant, an unidentified family
member, Dones was “picked [] out of nowhere” to take the blame for raping
S.O. N.T. Trial, 3/15/18, at 203-209. Dones steadfastly maintained that he
was conspired against “because basically [he] was never around [S.O.],” he
is “a good person,” and his family was “jealous of [him]” for having a daughter
and a job. Id.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/20
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