J-S67039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SAMUEL MERRIWEATHER
Appellant No. 3013 EDA 2015
Appeal from the Judgment of Sentence October 24, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012832-2012
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 04, 2016
Appellant Samuel Merriweather appeals the judgment of sentence
entered by the Court of Common Pleas of Philadelphia County after the trial
court convicted Appellant of rape by forcible compulsion, involuntary sexual
deviate intercourse (“IDSI”) by forcible compulsion, sexual assault, indecent
exposure, terroristic threats, indecent assault, simple assault, and recklessly
endangering another person.1 Appellant claims his convictions are not
supported by sufficient evidence and argues that his aggregate sentence of
165 to 330 months imprisonment is excessive. We affirm.
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18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3127(a), 2706(a)(1),
3126(a)(1), 2701(a), and 2705, respectively.
*Former Justice specially assigned to the Superior Court.
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The trial court aptly summarized the factual background of this case as
follows:
1. Rape of [D.D., (the victim)] in 2002
On December 1, 2002, [D.D.] went to the Kensington
section of Philadelphia to purchase heroin. Upon obtaining the
heroin, she entered an abandoned warehouse at the intersection
of Somerset Street and Jasper Street to get high. To enter the
warehouse, [D.D.] walked through a grass lot and up a set of
metal steps to the second floor. The second floor was a large
empty room with one entrance. She had been to the warehouse
one time previous to this day. There was trash and debris
scattered throughout the room. After getting high, [D.D.] went
to a brick wall in a corner of the room to urinate.
While [D.D.] urinated, she noticed [Appellant] enter the
room. [Appellant] was wearing a black ski cap, light blue jeans,
and a blue one-piece jumpsuit over a hooded sweatshirt. [D.D.]
asked him to turn around while she finished. [Appellant] ignored
her request and walked rapidly toward her. [D.D.] became
anxious, quickly pulled up her pants, and attempted to walk
toward the door to exit the warehouse. Instead of leaving the
warehouse, [Appellant] grabbed [D.D.] and pushed her face
against the wall. [Appellant] told her to pull her pants down. He
then forced her to have vaginal sex.
[D.D.] was afraid that [Appellant] would hurt her. She
said, “I have two kids at home waiting for me.” [Appellant] told
her not to scream and that she would not be hurt as long as she
complied with his demands. [Appellant] forced [D.D.] to her
hands and knees, and then forced his penis into her anus. Next,
he pushed [D.D.] onto her back and forced his penis into her
vagina. [D.D.] told [Appellant] not to ejaculate in her vagina.
He responded that he wanted to ejaculate in her mouth.
[Appellant] continued to alternate between forcing his penis into
her vagina and into her mouth. The assault lasted
approximately 45 minutes. When [Appellant] was finished, he
pulled up his pants and instructed [D.D.] to face the wall and not
move until she could no longer hear him. [Appellant] then left
the warehouse.
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Once [D.D.] heard [Appellant] descend the metal steps,
she pulled up her pants and exited the warehouse. She
recognized a group of men outside the warehouse. One of the
men stayed with her until she was able to locate a police officer.
[D.D.] was transported to Episcopal Hospital where a rape kit
was performed. [D.D.] was then taken to the Special Victims
Unit where she provided a signed statement to Detective Mike
O’Brien regarding the assault. More than ten years later, [D.D.]
was able to positively identify [Appellant] during an in-person
lineup.
At trial, [D.D.] testified that she never consented to sexual
intercourse with [Appellant], and that she never made any deal
with him to trade sex for money. She admitted that she
formerly engaged in prostitution near a Kensington bar to earn
money for drugs. During the trial, she was able to identify the
blue jumpsuit recovered by police outside of the warehouse on
the day of the incident, as well as pictures taken of the scene in
2002. On cross-examination, [D.D.] conceded that she did not
notice any tattoos on [Appellant’s] neck even though it was
uncovered during the attack. She also conceded that she was
unable to recognize [Appellant] in a photo array but was able to
immediately identify him at the lineup. After looking at the
other individuals in the lineup, she began to cry when she looked
into [Appellant’s] eyes, because she “felt like it was him.” [She]
acknowledged that she was poor at assessing one’s height when
asked about the inaccuracy of [Appellant’s] height that she
provided to Detective O’Brien in her original statement.
2. Testimony of Police Officer Michael Cahill And Detective Bill
Urban.
On December 1, 2002, at approximately 10:30 am, Police
Officer Michael Cahill and his partner were on routine patrol in
the area of the 2700 block of Jasper Street when [D.D.] gained
their attention. [D.D.] told Officer Cahill that she had just been
raped inside the adjacent abandoned warehouse at Somerset
and Jasper Street. Officer Cahill observed that [D.D.] was
crying, seemed in shock, was “out of it,” and “very shaken up.”
While searching the area for a suspect, Officer Cahill recovered a
blue jumpsuit in the grass lot outside of the warehouse.
On October 22, 2012, Detective Bill Urban of the Special
Victims Unit conducted a live eyewitness identification lineup.
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While Detective Urban conducted the lineup, he observed that
[D.D.] was shaking and crying. [D.D.] viewed each individual
through a large window from approximately three feet away. As
soon as Detective Urban returned to the room where [D.D.] was
viewing the individuals, she immediately replied that [Appellant]
“stood out to me.” Detective Urban had [D.D.] sign a statement
of her positive identification of [Appellant].
3. The Forensic Evidence Linking [Appellant] to The Rape of
[D.D.]
Detective Daniel O’Malley of the Special Victims Unit is
assigned to investigate long-term cold cases involving DNA.
Acting on information received from the Combined DNA Index
System (“CODIS”) database, Detective O’Malley obtained a
voluntary DNA sample from [Appellant]. The DNA sample
collected from [Appellant] by Detective O’Malley matched the
original rape kit performed on [D.D.] in 2002.
Greg Vanalstine testified as an expert in forensic DNA
analysis. Based upon his review of certain samples from the
rape kit performed on [D.D.] and a buccal swab from
[Appellant], he testified, inter alia, that [Appellant] was the male
source of the DNA mixture contained in the sperm fraction of the
perianal swab.
4. [Appellant’s] Testimony
At trial, [Appellant] testified that he knew [D.D.] from
when she was a prostitute in Kensington. [Appellant] testified
that he had sex with [D.D.] on three previous occasions,
including one time at the warehouse and twice in his room above
a bar on Somerset Street in Kensington. [Appellant] denied that
he raped [D.D.] on December 1, 2002. He testified that each
time he paid her for sex. On cross-examination, [Appellant]
stated that in 2002 he lived on Mulberry Street in Frankford and
would go to Kensington to look for girls. [Appellant] conceded
that – in his statement following his arrest – he denied [knowing
D.D.] and denied that he had sex with her in the abandoned
warehouse.
Trial Court Opinion (T.C.O.), 12/14/15, at 1-5 (internal citations and
footnotes omitted).
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After Appellant was charged with the aforementioned offenses, he
waived his right to a jury trial. On July 16, 2013, the trial court convicted
Appellant of rape and the related offenses. On October 24, 2013, the trial
court deemed Appellant a sexually violent predator and imposed three
consecutive sentences: 78 to 156 months imprisonment for the rape
conviction, 78 to 156 months imprisonment for the IDSI conviction, and 9 to
18 months for the terroristic threats conviction. The trial court imposed no
further penalty on the remaining convictions. On November 1, 2013,
Appellant filed a motion for reconsideration of sentence, which the trial court
denied. Appellant did not file a direct appeal.
On April 30, 2014, Appellant filed a timely pro se PCRA petition,
seeking the reinstatement of his direct appellate rights. On September 29,
2015, the PCRA court granted Appellant his requested relief without
objection from the Commonwealth. The same day, Appellant filed this
appeal and subsequently complied with the lower court’s direction to submit
a concise statement of errors complained of on appeal pursuant to Rule
1925(b).
Appellant first claims the evidence was insufficient to support his
convictions. Our standard of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
the above test, we may not weigh the evidence and substitute
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our judgment for the fact-finder. In addition, we note that
the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Britton, 134 A.3d 83, 86 (Pa.Super. 2016).
In claiming that all of his convictions were supported by insufficient
evidence, Appellant does not argue that the Commonwealth failed to prove
any of the specific elements of the crimes charged, but contends that the
trial court should have found the testimony of the victim, D.D., to be
incredible and unreliable. Specifically, Appellant claims that his convictions
cannot stand because the nearly ten-year period between the crime and his
arrest was too attenuated and the victim’s testimony was unreliable as she
“was a heroin addict, who stole and was a prostitute.” Appellant’s Brief, at
10. Moreover, Appellant claims D.D.’s inability to correctly assess his height
in giving her statement to police and her failure to identify Appellant initially
in a photo array shows the inconsistency of her identification,
notwithstanding that his DNA matched that from the victim’s rape kit taken
immediately after the crime.
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It is well established that “[a]n argument regarding the credibility of a
witness's testimony goes to the weight of the evidence, not the sufficiency of
the evidence.” Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa.Super.
2014) (quoting Commonwealth v. Gibbs, 981 A.2d 274, 281–82
(Pa.Super. 2009)). Our Supreme Court has emphasized that an “appellant's
challenge to the sufficiency of the evidence must fail” where an appellant
phrases an issue as a challenge to the sufficiency of the evidence, but the
argument that appellant provides goes to the weight of the evidence.
Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 672 (1999); see
also Gibbs, 981 A.2d at 281-82 (finding that a sufficiency claim raising
weight of the evidence arguments would be dismissed).
To the extent that Appellant is raising a weight of the evidence claim,
we find this argument to be waived by his failure to raise the issue before
the trial court. “A weight of the evidence claim must be preserved either in
a post-sentence motion, by a written motion before sentencing, or orally
prior to sentencing. Failure to properly preserve the claim will result in
waiver, even if the trial court addresses the issue in its opinion.”
Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013) (citing
Pa.R.Crim.P. 607) (other citations omitted). As Appellant did not raise this
claim at sentencing or in his motion to reconsider his sentence, the issue is
waived on appeal.
Appellant also claims that the trial court abused its discretion in
imposing an excessive sentence. “A challenge to the discretionary aspects
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of sentencing does not entitle an appellant to review as of right.”
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super.
2016). In order to invoke this Court’s jurisdiction to address such a
challenge, the appellant must satisfy the following four-part test: the
appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P. 902,
903; (2) preserve the issues at sentencing or in a timely post-sentence
motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief
does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set
forth a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code under 42 Pa.C.S. § 9781(b). Id.
After reviewing the record, we find Appellant filed a timely post-
sentence motion and a timely notice of appeal. He also satisfies his
obligation to include a Rule 2119(f) statement in his brief and his appellate
brief complies with our appellate rules. See Appellant's Brief at 12-13. We
proceed to determine whether Appellant raised a substantial question for our
review. With respect to this inquiry, this Court has held the following:
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.”
Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa.Super.
2013) (citations omitted). “A substantial question exists only
when the appellant advances a colorable argument that the
sentencing judge's actions were either: (1) inconsistent with a
specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” Id.
(citations omitted). “Additionally, we cannot look beyond the
statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists.”
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Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.Super.
2012).
Commonwealth v. Diehl, 140 A.3d 34, 44–45 (Pa.Super. 2016).
Specifically, Appellant alleges that the trial court abused its discretion
in sentencing him when it overemphasized the protection of the public and
did not consider Appellant’s rehabilitative needs. Moreover, Appellant
asserts that when this sentence is added to a consecutive sentence he is
serving on a different unrelated docket, he has a cumulative minimum
sentence of over thirty years imprisonment, which he characterizes as a life
sentence.
In analyzing Appellant’s claim that his sentence is excessive, we
emphasize that:
[a] defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges if the
case involves circumstances where the application of the
guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due
to the consecutive nature of a sentence will not raise a
substantial question.
Id. at 45 (quoting Commonwealth v. Dodge, 77 A.3d 1263, 1270
(Pa.Super. 2013)). To the extent that Appellant challenges the trial court’s
discretion to impose a sentence consecutive to another docket, we find
Appellant’s bald claim of excessiveness does not raise a substantial question.
However, Appellant’s argument that the sentencing court failed to
consider his rehabilitative needs while solely focusing on the protection of
the public does raise a substantial question for our review. However, an
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appellant’s mere dissatisfaction with the sentencing court's weighing of
sentencing considerations is not sufficient to raise a substantial question for
our review. See Commonwealth v. Moury, 992 A.2d 162, 175 (Pa.Super.
2010) (noting that the appellant’s allegation that the sentencing court
“refused to weigh the proposed mitigating factors as Appellant wished,
absent more, does not raise a substantial question”).
Even assuming arguendo that Appellant had raised a substantial
question for our review, his challenge to the trial court’s sentencing
discretion has no merit. Consistent with this finding, the trial court
explained its rationale for its sentence as follows:
[A]fter considering both mitigating and aggravating factors, the
trial court sentenced [Appellant] to guideline sentences that ran
consecutively for his convictions of rape, IDSI, and terroristic
threats; the trial court imposed an aggregate sentence of 165
months to 330 months incarceration. In imposing the sentence,
the trial court considered, inter alia, the report of the Sex
Offender Assessment Board that classified [Appellant] as a
sexually violent predator, [Appellant’s] pre-sentence
investigation (including his employment history and education),
[Appellant’s] mental health evaluation and treatment (including
his history of drug and alcohol abuse), [Appellant’s] prior
unsuccessful court supervision as a juvenile, the sentencing
memoranda submitted by [Appellant] and the Commonwealth,
its opportunity to observe [Appellant] during the trial and
sentencing hearing, counsel’s arguments, observations of the
victim as she testified, and [Appellant’s] continued lack of
remorse despite the verdict. The trial court also considered the
particular factual circumstances of this crime, i.e., that
[Appellant] cornered the victim in an abandoned warehouse and
threatened her with physical harm so that she would acquiesce
to his prolonged sexual assault. Given all of these
considerations, the trial court imposed a sentence that
considered the protection of the public, the impact on the victim
and the community, and [Appellant’s] rehabilitative needs.
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T.C.O. at 12-13 (footnote omitted).
In light of the foregoing, we conclude that the trial court properly
exercised its discretion in fashioning Appellant’s sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2016
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Com. v. Merriweather, S.
Combined Opinion