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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID BROOKS
Appellant No. 972 MDA 2016
Appeal from the Judgment of Sentence March 22, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003977-2014
BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 10, 2017
David Brooks appeals from the March 22, 2016 judgment of sentence
of life imprisonment, a consecutive term of twenty-five to fifty years
imprisonment, and a concurrent term of imprisonment of ten to twenty
years, which was imposed following his conviction of rape by forcible
compulsion, corruption of minors, and unlawful contact or communication
with a minor. His sole challenge is that the jury verdict is against the weight
of the evidence. We remand the record to the trial court for the preparation
of a Pa.R.A.P. 1925(a) opinion addressing the weight of the evidence with
the benefit of the notes of testimony from trial.
Appellant was charged with rape, attempted rape, sexual assault,
attempted sexual assault, corruption of minors and unlawful contact or
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communication with a minor based on events that occurred the morning of
June 5, 2014. The following facts were adduced at the jury trial. The
complainant, a sixteen-year-old female, lived with her mother and
stepfather, Appellant herein. That morning, her mother had already left for
work as was customary and the complainant was getting ready to go to
school. She put on her bra and underwear and a pink robe and went
downstairs to the basement to get clothes out of the dryer that she intended
to wear that day. While she was in the basement, Appellant grabbed her
from behind, restrained her arms, tackled her to the ground and got on top
of her. She started screaming and told him to get off her, but he covered
her mouth and ripped off her panties. She struggled, but she was no match
for the 210-pound Appellant. The complainant begged him not to take her
virginity, and threatened to commit suicide if he did this to her. She
reached over and grabbed a speaker cable and tried to wrap it around
Appellant’s neck, but her efforts failed. According to the complainant, he
tried to penetrate her two times but “was only able to get the head of his
penis into the entrance of her vagina[,]” not full penetration. N.T., 1/12-
13/16, at 90. When she was on her back, Appellant said, “I’ve been looking
at you for a long time.” Id. at 93.
Appellant dragged her to another area of the basement where he
picked up Vaseline, and then, while attempting to return to the area of the
pool table, complainant lost her footing and they fell to their knees.
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Appellant lost his grip, she elbowed him in the chest, and she ran for the
stairway. Appellant grabbed her by the waist and tried to pull her back.
She reached for a steam cleaner, grabbed the handle and tried to hit him
with it. Appellant released his grip and she ran up the stairs and out of the
house.
A neighbor, Michelle Green, heard pleas for help and looked outside.
She saw the complainant standing in the street calling for help, wearing only
a bra and a headscarf, with blood running down her legs. Ms. Green
assisted the young girl into her house. The complainant told her that her
stepfather tried to rape her. Ms. Green’s spouse called 911, her adult
daughter provided sweat pants and a shirt for the complainant to wear, and
Ms. Green provided a phone so the complainant could call her mother.
Before police and her mother arrived, the complainant told Ms. Green what
had happened. She was hysterical.
Investigation at the scene by Penbrook Police officers revealed blood
on the floor of the kitchen, a pink robe on the steps, a steamer mop in two
pieces, and a shirt, sanitary napkin and panties on the floor near the pool
table in the basement. The victim was taken to the hospital and a rape kit
was utilized to obtain evidence of the sexual assault.
At 11:05 p.m. that night, Officer Jesse Foltz responded to a 911 call
regarding a disturbance at 3011 George Street. He was aware that there
was an arrest warrant for Appellant and that Appellant was associated with
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that address. A man invited the officer into the house and advised him that
Appellant was in the basement. The officer told Appellant to come upstairs,
and, as he did so, family members of the victim berated him for assaulting
and raping the victim. Appellant responded, “I know I f__ed up, I’m sorry.”
Id. at 131. As the officer was cuffing him, Appellant asked that he not
tighten the cuffs as he had tried to cut his wrists.
During the trial, the jury heard from a DNA expert that the vaginal
sample from the victim contained sperm cells and that Appellant could not
be excluded as the major contributor to the sample. Id. at 226. The odds
of someone else in the general population having that same profile was one
in seven trillion, more than the world’s population, and the highest and
strongest statistic that is reported from DNA testing. Id. at 232. In
addition, telephone calls from Appellant to the victim’s mother were played
for the jury. In one call, Appellant told her that he would plead guilty to
everything; in another, he said that the drugs made him do it and that he
was overcome by a demon.
Appellant waived his right to counsel and represented himself at trial
with the assistance of stand-by counsel. His own testimony was the only
evidence he offered on his own behalf. He maintained that the complainant
was lying, he did not rape her, and she manufactured the story because she
was biased against him.
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The jury found Appellant guilty of rape, corruption of minors, and
unlawful contact or communication with a minor. Sentencing was deferred
for ninety days at the Commonwealth’s request to allow for an evaluation
from the Sexual Offender Assessment Board (“SOAB”) and a pre-sentence
investigation.
On March 22, 2016, Appellant appeared pro se at sentencing but
advised the court that he wanted his stand-by counsel to represent him on
appeal. The Commonwealth represented to the court that it notified
Appellant it would be seeking mandatories for a second crime of sexual
violence pursuant to 42 Pa.C.S. § 9718.1 and for a third crime of violence
pursuant to § 9714, and provided the certified records to establish the
application of the mandatories. Although the SOAB concluded there was not
enough evidence to classify Appellant as a sexually violent predator under
42 Pa.C.S. § 9799.24, the Commonwealth pointed out that Appellant
previously had been convicted of sexual assault for grabbing a woman from
behind on the street, dragging her into his home, and sexually assaulting
her. In light of the fact that he had shown no remorse, the Commonwealth
asked for a life sentence for society’s protection.
Appellant told the court that, during his thirty-year criminal history, he
had been battling severe drug and alcohol addiction. He had nine years of
sobriety during which he worked, was active in his church, and engaged in
community service. He maintained that he was innocent of the crimes. The
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court explained that Appellant had forfeited his right to be a member of the
community due to his savage and violent past. Finding that he was beyond
rehabilitation, the court stated that its only recourse was life imprisonment.
Appellant filed a timely post-sentence motion on March 29, 2016
requesting that his sentence be vacated and a new trial granted as the
verdict was against the weight of the evidence. The trial court denied the
motion on April 22, 2016, and Appellant filed a pro se notice of appeal on
June 2, 2016.1 Counsel filed an unopposed motion to file a notice of appeal
out of time on Appellant’s behalf on June 9, 2016, filed an appeal that same
day, and the court granted the motion on June 17, 2016. Appellant
complied with the court’s order to file a Pa.R.A.P. 1925(b) concise statement
of matters complained of on appeal, and the trial court issued a Rule
1925(a) opinion stating that it could not address the sufficiency and weight
of the evidence arguments raised in the statement as Appellant failed to
order the trial transcripts. Appellant filed a petition for transcripts on August
2, 2016, which was granted, and the certified record has been supplemented
with those documents.
Appellant’s only issue on appeal is, “Did the trial court commit
reversible error when it allowed the verdict to stand as the finding of guilt
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1
That appeal was dismissed as duplicative by this Court on August 3, 2016.
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was against the greater weight of the evidence presented at trial?”
Appellant’s brief at 4 (unnecessary capitalization omitted).
The law is settled that “a weight of the evidence claim is primarily
addressed to the discretion of the judge who presided at trial. The trial
court should grant a new trial on this basis “only in truly extraordinary
circumstances, i.e., when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is imperative so
that right may be given another opportunity to prevail.” Id. at 1148-1149
(quoting Armbruster v. Horowitz, 813 A.2d 698, 703 (Pa. 2002)).
Our standard of review is distinct from that of the trial court. As our
High Court reiterated in Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.
2013):
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. Because
the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination that the
verdict is against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial is the
lower court's conviction that the verdict was or was not against
the weight of the evidence and that a new trial should be
granted in the interest of justice.
Id. at 432 (emphasis in original) (internal citations omitted) (quoting
Widmer, supra at 753).
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Since Appellant preserved his weight challenge in a post-sentence
motion and petitioned to supplement the record with the notes of testimony,
we decline to find waiver. Nonetheless, we cannot engage in appellate
review of this issue without the trial court’s ruling and rationale. For that
reason, we remand the record as supplemented to the trial court for its
opinion limited to Appellant’s weight of the evidence claim.
Case and record remanded. Jurisdiction retained.
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