Com. v. Carr, S.

J-A02006-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN CARR :
:
Appellant : No. 1428 WDA 2019

Appeal from the Judgment of Sentence Entered July 23, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011720-2018

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.: FILED: May 25, 2021

Shawn Carr appeals from his July 23, 2019 judgment of sentence of five

to ten years of incarceration, which was imposed after a jury found him guilty

of sexual assault. We affirm.

We glean the following factual and procedural history from the certified

record and trial transcripts. Appellant’s conviction stems from events that

transpired on January 24, 2007, in a Goodwill store located in Pittsburgh,

Pennsylvania, where Appellant and the victim, Linda Lou Franklin, were both

participating in adult education classes geared towards the hearing impaired.

See N.T. Trial, 4/23/19, at 53-54. Both Appellant and Ms. Franklin are deaf

and communicate primarily through the use of American Sign Language

(“ASL”). In January 2007, Ms. Franklin was approximately fifty-two years old

and Appellant was twenty-two years old. We also note that Ms. Franklin is

intellectually disabled to the extent that she is not capable of independent
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living, but she is able to function well socially and reads at approximately a

third-grade level. Id. at 39-41, 46-47.

At Appellant’s trial, Ms. Franklin testified that she was “working” at the

Goodwill on the day in question, when Appellant followed her into one of the

store’s bathrooms, grabbed her by the wrists, and would not let her leave.

See N.T. Trial, 4/23/19, at 4-5, 9. While she was so restrained, Ms. Franklin

stated that Appellant forced her to engage in vaginal and anal sex. Id. at 8.

Ms. Franklin also testified that she signed “no” to Appellant “repeatedly”

during the attack, but that her communication was ignored. Id. Afterwards,

Ms. Franklin asserted Appellant took “an amount of money” out of her purse.

Id. at 10. The police were summoned by other Goodwill employees.

Ms. Franklin was transported to UPMC Mercy Hospital, where a rape kit

was performed. See N.T. Trial, 4/24/19, at 70-71. Several days later,

Appellant was interviewed by the Pittsburgh Police Department in connection

with these allegations. Id. at 85. Appellant denied being present in the

Goodwill at the time of the assault and volunteered to provide a DNA sample

to authorities. Id. at 87. Thereafter, no further action was taken on the case

for approximately ten years. During the investigation of a separate incident

involving Appellant, this case was reopened and Ms. Franklin’s rape kit was

submitted for analysis. On October 10, 2018, a DNA sample was collected

from Appellant. Id. at 98. Ultimately, Appellant’s DNA matched the samples

contained in Ms. Franklin’s rape kit. Id. at 116.

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On August 29, 2018, Appellant was charged with rape, involuntary

deviate sexual intercourse (“IDSI”), and sexual assault. A three-day jury trial

was held from April 23 through April 25, 2019. The Commonwealth’s evidence

set forth the version of events described above.1 At the close of the

Commonwealth’s case, Appellant submitted a motion for acquittal based upon

an allegation that the victim’s testimony could not support Appellant’s guilt

beyond a reasonable doubt because it was sometimes difficult to understand

her responses. Id. at 131-32 (“I was not able to cross-examine her to such

a degree that it could support a finding of guilty beyond a reasonable doubt.”).

The trial court denied the motion, and specifically found that Appellant’s right

to confront and cross-examine witnesses was not violated by the victim’s

testimony. Id. at 133

Appellant’s defense relied solely upon the testimony of Ms. Franklin’s

niece, Willa Stotts, who testified extensively regarding a series of written

questions that she posed to Ms. Franklin on the day after the assault.2

Specifically, Ms. Stotts wrote out a series of “yes” and “no” questions, which
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1 Ms. Franklin testified at length regarding the assault. See N.T. Trial,
4/23/19, at 3-31. Ms. Franklin’s sister-in-law, Charlene Franklin, also testified
regarding Ms. Franklin’s behavior and statements she made after returning
from the hospital on the night of the assault. Id. at 32-51. A deaf adult
educator, Paul Mente, who was working at Goodwill at the time of the assault
also testified that Ms. Franklin disclosed to him that Appellant had attacked
her and “slapped her all over.” Id. at 53-60. A number of police officers,
analysts, and medical personnel also testified regarding the collection,
preservation, and testing of a DNA sample collected from Appellant.

2 According to Ms. Stotts’s testimony, she resorted to using written questions
because Ms. Franklin was very agitated and difficult to understand.

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Ms. Franklin responded to by checking the appropriate box. The defense

introduced an incomplete version of this document at trial. Id. at 140, 149-

50. In sum, Ms. Franklin’s responses to these questions indicated that,

contrary to her testimony at trial, her sexual encounter with Appellant had

been a consensual transaction for money. Id. at 152-55. Ms. Stotts also

asserted that Ms. Franklin sometimes uses the term “rape” interchangeably to

describe consensual and non-consensual sexual intercourse. Id. at 155-56.

Ultimately, the jury found Appellant guilty of sexual assault and found

him not guilty of the remaining charges. The trial court sentenced Appellant

to a term of five to ten years of incarceration. Appellant filed a timely post-

sentence motion that raised the following issues: (1) Appellant’s conviction

was supported by insufficient evidence; (2) Appellant’s conviction was against

the weight of the evidence; and (3) Appellant’s right to confront witnesses

was violated due to the nature of Ms. Franklin’s testimony. See Appellant’s

Post-Sentence Motions, 8/1/19, at ¶¶ 7-11. By order dated August 15, 2019,

the trial court denied the motions. Appellant filed a timely notice of appeal to

this Court. Although Appellant filed a timely concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), the trial court did not

file an opinion pursuant to Rule 1925(a) due to unavailability.3

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3 The original trial judge in this case was the Hon. Mark V. Tranquilli, who was
unavailable to author an opinion pursuant to Pa.R.A.P. 1925(a). See Letter,
3/19/20, at 1 (“Due to the Court’s unavailability and the unforeseeable nature
of its duration, . . . [t]he record shall be transmitted without an opinion as

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Appellant has raised the following issues for our consideration:

I. Was the verdict against the sufficiency of the evidence when
Linda Franklin’s definition of both nonconsensual sex (rape) and
consensual sex was the same, i.e., “when people touch you all
over”?

II. Was the verdict rendered contrary to the weight of the
evidence presented in that the Commonwealth’s evidence was too
weak, inconsistent, vague and uncertain and the verdict shocks
the conscience of the court?

III. Was [Appellant] denied his Sixth Amendment rights under
the Confrontation Clause, U.S. Const.[,] Amend. VI, and under
Article [I], Section 9 of the [Pennsylvania] Constitution, because
he was unable effectively to cross-examine the victim, Linda
Franklin?

IV. [Were Appellant’s] due process rights for a speedy trial and
to be tried without undue delay under the Sixth Amendment of
the United States Constitution and Article I[,] Section 9 of the
Pennsylvania Constitution violated when the improper 11-year
delay in his prosecution caused undue prejudice to [Appellant] in
the form of the loss of memories and unavailability of other
evidence?

Appellant’s brief at 5 (issues reordered).

Appellant’s first claim challenges the sufficiency of the evidence adduced

by the Commonwealth to sustain Appellant’s conviction for sexual assault.

Specifically, Appellant asserts that “there was insufficient evidence that the

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required under [Rule] 1925(a) in order to avoid undue delay.”). Where the
original trial judge is “unavailable to provide a supplemental opinion,” we are
permitted to review both “legal issues” and “factual findings” without the
benefit of a Rule 1925(a) opinion. See, e.g., Dolan v. Hurd Millwork
Company, Inc., 195 A.3d 169, 176 (Pa. 2018). Although Dolan is a civil
matter, we can discern no reason why its holding regarding Rule 1925 should
not apply with equal force in the criminal context.

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sex act was nonconsensual.” Appellant’s brief at 16; see also 18 Pa.C.S. §

3124.1 (“[A] person commits a felony of the second degree when that person

engages in sexual intercourse or deviate sexual intercourse with a complainant

without the complainant’s consent.” (emphasis added)). Our standard of

review in this context is de novo and our scope of review is plenary. See

Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa.Super. 2018). We are

also mindful of the following well-established legal principles:

[W]e evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilty to a mathematical
certainty. Any doubt about the defendant’s guilt is to be resolved
by the fact finder unless the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from
the combined circumstances.

The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, the fact that the evidence
establishing a defendant’s participation in a crime is circumstantial
does not preclude a conviction where the evidence coupled with
the reasonable inferences drawn therefrom overcomes the
presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019).

Appellant’s arguments concerning sufficiency are focused upon alleged

inconsistencies in Ms. Franklin’s testimony regarding whether her sexual

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contact with Appellant was consensual.4 See Appellant’s brief at 19-25.

Viewing the evidence and testimony adduced at trial in the light most

favorable to the Commonwealth, there is more than sufficient support in the

record for the jury’s finding that Appellant’s sexual assault of Ms. Franklin was

non-consensual. Indeed, she testified as follows during direct examination:

Q. And did you try to stop [Appellant] from putting his penis into
your vagina?

A. I told [Appellant] no repeatedly. I did tell him no repeatedly.
Q. Okay, and –

A. I was very scared. I was very scared when that was
happening.

Q. Did you tell [Appellant] no in sign language?

A. Yes, I did. I signed no. Yes, I did. I signed no.

N.T. Trial, 4/23/19, at 8.

“[T]he uncorroborated testimony of a sexual assault victim, if believed

by the trier of fact, is sufficient to convict a defendant, despite contrary

evidence from defense witnesses.” Commonwealth v. Charlton, 902 A.2d

554, 562 (Pa.Super. 2006). “Although Appellant contends that the

Commonwealth failed to prove that [the victim] did not consent to the sexual

contact, it is for the fact finder to make credibility determinations, and the

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4 To the extent that Appellant’s sufficiency arguments implicate the credibility
of Ms. Franklin’s testimony, we note that “a review of the sufficiency of the
evidence does not include an assessment of the credibility of testimony; such
a claim goes to the weight of the evidence.” Commonwealth v. Gibbs, 981
A.2d 274, 282 (Pa.Super. 2009) (emphasis added).

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finder of fact may believe all, part, or none of a witness’s testimony.”

Commonwealth v. Andrulewicz, 911 A.2d 162, 166 (Pa.Super. 2006).

Instantly, Ms. Franklin’s above-quoted testimony readily presented sufficient

evidence to find that Appellant’s sexual assault was non-consensual. No relief

is due on Appellant’s first claim.

Appellant’s second claim concerns the weight of the evidence adduced

by the Commonwealth and asserts that “the Commonwealth’s evidence was

of such low quality, tenuous, vague and uncertain as to make the verdict of

guilty pure conjecture.” Appellant’s brief at 40. Our standard of review over

this issue is generally well-settled:

The essence of appellate review for a weight claim appears to lie
in ensuring that the trial court’s decision has record support.
Where the record adequately supports the trial court, the trial
court has acted within the limits of its discretion.

A motion for a new trial based on claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.

An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court. Appellate review of a weight claim is a
review of the exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the evidence.

Commonwealth v. Windslowe, 158 A.3d 698, (Pa.Super. 2017).

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Although we do not have the benefit of a Rule 1925(a) opinion from the

trial court, we note that the trial court denied Appellant’s post-sentence

motion asserting that the verdict was against the weight of the evidence. See

Order, 8/15/19, at 1. Consequently, we will review the record to ascertain

whether there is support for the trial court’s denial.5 See Dolan v. Hurd

Millwork Company, Inc., 195 A.3d 169, 174-76 (Pa. 2018) (holding that an

appellate court should address legal and factual issues in the first instance

where the original trial judge is unavailable to author a Rule 1925(a) opinion).

Appellant’s substantive arguments are focused upon a number of

alleged inconsistencies in Ms. Franklin’s testimony, which was adduced with

the assistance of two ASL translators.6 During cross-examination, Appellant’s

attorney competently identified several minor inconsistencies in the victim’s

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5 See also, e.g., Armbruster v. Horowitz, 813 A.2d 698, 705 (Pa. 2002)
(“[W]here a properly preserved weight of the evidence claim is raised on
appeal and the judge who presided at trial failed to rule on the claim and is
now permanently unavailable to do so, the claim must be reviewed by the
appellate tribunal in the first instance.”). Instantly, the trial court issued a
ruling on Appellant’s post-sentence motion challenging the weight of the
evidence, but did not author a Rule 1925(a) opinion to explain its reasoning.
Read together, Dolan, supra at n.1, and Armbruster empower an appellate
court to review a weight of the evidence claim even in the absence of an
obvious rationale from the trial court. In such circumstances, the Superior
Court should “review the entire record and ultimately determine whether the
trial court correctly decided the legal issues” and whether its “factual findings”
are supported by “competent evidence.” Dolan, supra at 176.

6During Ms. Franklin’s testimony, one ASL translator “switched” with another.
See N.T. Trial, 4/23/19, at 11. This occurrence is not relevant to our inquiry.

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testimony, including her conflicting statements as to which floor of the

Goodwill the assault took place, whether Appellant had “slapped” her during

the assault, when she first informed Ms. Stotts of these events, and whether

she knew Appellant prior to the assault. N.T. Trial, 4/23/19, at 14-18, 21-22.

Furthermore, Appellant’s arguments focus upon the questionnaire prepared

by Ms. Stotts, which the victim answered in a manner indicating that her

sexual encounter with Appellant was consensual.7 Id. at 22-25.

These minor inconsistencies do not undermine the credibility of the core

of the Commonwealth’s case. Ms. Franklin positively identified Appellant and

provided a cogent description of the assault and the events that followed it.

Although she often asked for questions to be repeated or for further

clarification, her testimony was generally responsive and indicative of full

comprehension. She succinctly described Appellant following her into the

Goodwill bathroom, restraining her there by the wrists, and forcing her to

engage in non-consensual vaginal and anal intercourse. Id. at 4-8. As noted

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7 This questionnaire was introduced and used during the examination of
witnesses at Appellant’s trial, but it was incomplete due to several pages of
questions being destroyed at some point. See N.T. Trial, 4/23/19, at 49-50.
Additionally, the victim’s former guardian, Charlene Franklin, testified that the
victim’s reading skills were very “limited” and expressed doubt as to the
veracity of the document. Id. at 45 (“I believe there is some confusion when
it comes to Linda’s responses, because she did answer yes but did not fully
understand the extent of what she was saying.”).

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above, she also testified that she told Appellant “no” throughout the assault.8

Id. at 8, 10-12. Ms. Franklin also testified that she was examined at Mercy

Hospital, where a rape kit was taken. Id. at 12. The Commonwealth also

adduced definitive evidence that Appellant’s DNA matched the rape kit. Id.

at 98, 116. Overall, we discern no basis to conclude that the trial court’s

failure to find that the verdict shocked its conscience was the product of an

error of law, was manifestly unreasonable, or was “a result of partiality,

prejudice, bias or ill-will.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.

2013) (internal quotation marks omitted).

In Appellant’s third claim, he asserts that his rights under the

Confrontation Clause of the Sixth Amendment were violated at trial. See

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8 Appellant devotes a significant portion of his brief to arguing that Ms.
Franklin’s inability to define rape during cross-examination indicates that she
cannot differentiate between consensual and non-consensual intercourse.
This line of argument focuses upon the following exchange:

Q. Do you know the difference between rape and consensual sex?

A. Sexy is when someone touches you all over, and rape is also
when someone touches you all over. Yes, it was rape.

Q. So are you unable to tell the difference between rape and
consensual sex?

A. Rape is rape. I don’t know.

N.T. Trial, 4/23/19, at 27. However, the victim’s earlier testimony indicated
that she repeatedly asked Appellant to “stop” during the assault. Id. at 8,
10-12. Regardless of whether the victim was able to produce a textbook
definition of rape on demand, her testimony demonstrates that she
understands the concept of consent and withheld it from Appellant.

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Appellant’s brief at 26-27 (“Every important area of cross-examination was

completely foreclosed by the impossibility of receiving any meaningful

response to any question involving her direct testimony . . . . Her inability to

answer these questions artificially protected her from any reasonable attack

or raise a reasonable doubt in the Commonwealth’s case.”). “[W]hether a

defendant has been denied his right to confront a witness under the

Confrontation Clause of the Sixth Amendment . . . is a question of law, for

which our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa.Super. 2020).

The Confrontation Clause of the Sixth Amendment provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” U.S. CONST., Amend. VI. “‘Generally

speaking, the Confrontation Clause guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way,

and to whatever extent, that the defense might wish.’” Commonwealth v.

Segarra, 228 A.3d 943, 956-57 (Pa.Super. 2020) (quoting Delaware v.

Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). Writing for the majority in

U.S. v. Owens, 484 U.S. 554, 559 (1988), Justice Antonin Scalia opined:

that opportunity is not denied when a witness testifies as to his
current belief but is unable to recollect the reason for that belief.
It is sufficient that the defendant has the opportunity to bring out
such matters as the witness’[s] bias, his lack of care and
attentiveness, his poor eyesight, and even . . . the very fact that
he has a bad memory.

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“Thus, ‘the Confrontation Clause is generally satisfied when the defense is

given a full and fair opportunity to probe and expose these forgetfulness,

confusion, or evasion infirmities through cross-examination.’” Segarra,

supra at 957 (quoting Fensterer, supra at 20).

Both at trial and before this Court, Appellant has invoked this

constitutional provision to argue that the victim was unavailable for cross-

examination. See Appellant’s brief at 25-39. We strongly disagree.

Contrary to Appellant’s arguments, our review of the trial transcripts

reveals that his counsel was able to conduct a thorough and effective cross-

examination of the victim. See N.T. Trial, 4/23/19, at 14-30. Indeed, the

trial court concluded that “Linda Franklin was available for cross-examination.

Defense had a full and fair opportunity to cross-examine the witness.” N.T.

Trial, 4/24/19, at 133 (citing Commonwealth v. Mollett, 5 A.3d 291, 308

(Pa.Super. 2010)). During this questioning, Appellant’s counsel touched upon

the inconsistencies in the victim’s testimony that were described at length

earlier in this writing, including her inability to define the term “rape” and her

conflicting answers to Ms. Stotts’s questionnaire. While Ms. Franklin was

evasive and non-responsive at various junctures during this cross-

examination, Appellant’s counsel had ample opportunity to press for further

responses and to draw the jury’s attention to these points of contention.

Accordingly, the victim’s responses on cross-examination were not so

non-responsive that she was rendered unavailable under the Confrontation

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Clause of the U.S. Constitution. At worst, Ms. Franklin’s testimony on cross-

examination evinced that she did not remember certain details surrounding

the assault. However, “witnesses who testify as to lack of memory are not

considered unavailable for cross-examination.” Mollett, supra at 308 (citing

Owens, supra at 559-60). Thus, Appellant’s third claim necessarily fails.

Appellant’s fourth claim asserts that his constitutional rights to a speedy

trial were violated by the approximately eleven-year delay between the

assault and the filing of charges by the Commonwealth. See Appellant’s brief

at 44-50. Appellant’s arguments purport to implicate provisions of both the

United States and Pennsylvania Constitutions. See U.S. CONST., Amend VI;

PA. CONST., Art. I, § 9. In relevant part, our standard of review is de novo and

our scope of review is plenary. See Commonwealth v. Pi Delta Psi, Inc.,

211 A.3d 875, 886 (Pa.Super. 2019).

Appellant did not raise this issue in the trial court.9 Thus, this claim is

waived under Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived

and cannot be raised for the first time on appeal.”).10 See Commonwealth

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9 In his brief, Appellant baldly claims that he “asserted his [speedy trial] right
almost immediately when counsel was assigned after the charges were filed
in 2018.” Appellant’s brief at 49. However, there is no citation to any such
preservation in the certified record as required by Pa.R.A.P. 2119(e). Our
independent review of the record has revealed no such argument or claim.

10 Appellant also failed to raise this issue in his Rule 1925(b) concise
statement, which also results in waiver. See also Pa.R.A.P. 1925(b)(v)(vii).

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v. Strunk, 953 A.2d 577, 579 (Pa.Super. 2008) (“Even issues of constitutional

dimension cannot be raised for the first time on appeal.”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/25/2021

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