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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SUMO DUKULAH
Appellant No. 1955 EDA 2015
Appeal from the Judgment of Sentence February 17, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0007817-2013
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 09, 2017
Appellant, Sumo Dukulah, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas. Appellant
challenges the sufficiency of the evidence, the weight of the evidence, the
admission of testimony and the discretionary aspects of his sentence. We
affirm.
We adopt the facts as set forth by the trial court’s opinion. See Trial
Ct. Op., 11/12/15, at 2-5. All charges at issue in this case concern
Appellant’s conduct with his niece, K.D., from the time she was
approximately age ten until age sixteen.
During his jury trial, Appellant’s counsel discussed K.D.’s lack of
physical injuries during his opening statement:
*
Former Justice specially assigned to the Superior Court.
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The physician who did [the rape kit] will testify in this trial.
What they will tell you is that the rape kit exam shows no
signs of sexual abuse or sexual activity. She had no—they
examined her vagina and her anus and her mouth. They
found no cuts, no tears, no scrapes, no scratches, no
bruises, no sign on her vagina or anus of any sexual
contact at all. Her hymen was still intact.
N.T. 3/26/2014, at 89.
In response, the Commonwealth sought to present the testimony of
Dr. Laura K. Brennan, an attending physician in the pediatrics division at the
Children’s Hospital of Philadelphia who was qualified as an expert in the field
of child sexual abuse. The Commonwealth argued outside the jury’s
presence:
Your Honor, during the defense’s opening yesterday they
made a statement that the Commonwealth believes
deliberately presented a falsehood to the jury. They
deliberately—the defense opened on the fact that the
complaining witness' hymen was intact and therefore she
was never penetrated and that that was the evidence they
were going to hear. Respectfully, to this Court, that is a
deliberate misleading of the jury. Because the defense is
on notice that, A, a sperm was found by the lab, and, more
importantly, the complainant told the doctor and the
detective that she had had consensual sex in the past with
someone her own age.
So they are on knowledge that the complainant has been
penetrated in the past. And to say that the condition of her
hymen therefore means she was never penetrated is
deliberately misleading the jury. So, based on that, the
Commonwealth believes they’ve opened the door. And we
would ask to call an expert for the limited purpose to say
that the fact that the hymen is not damaged or intact does
not mean that they were never penetrated.
And, as Your Honor knows, the experts testify to a study
that was done of a number of pregnant teenagers who all
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had hymens that were intact. You can’t un—ring that bell.
The defense put in their mind that her hymen being intact
or being not damaged therefore means she was never
penetrated.
It was not the Commonwealth’s original—because there is
no trauma in this case, and because the DNA is not an
issue, the Commonwealth was not originally intending to
proceed down that path, but now we're forced to rectify
that. And so we would ask to call an expert for that
limited purpose for those three or four questions, because
the defense has put that into an issue and has put that
idea already in the minds of the jury.
N.T., 3/27/2014, 16-17.
Appellant sought to exclude Dr. Brennan’s testimony on the ground
that the Commonwealth failed to reveal its intention to procure expert
testimony prior to trial. The trial court admitted this testimony, concluding
that Appellant “opened the door” during opening statements. On April 2,
2014, Appellant was convicted of rape,1 rape of a child,2 involuntary deviate
sexual intercourse,3 unlawful contact with a minor,4 endangering the welfare
of a child5 and corruption of minors.6
1
18 Pa.C.S. § 3121(a)(1).
2
18 Pa.C.S. § 3121(c).
3
18 Pa.C.S. § 3123(a)(1).
4
18 Pa.C.S. § 6318(a)(1).
5
18 Pa.C.S. § 4304(a)(1).
6
18 Pa.C.S. § 6301(a)(1)(ii).
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Prior to sentencing, in August 2014, Appellant filed a motion for
extraordinary relief, attaching a handwritten letter, purportedly authored by
K.D., recanting her trial testimony. The Commonwealth responded with a
motion to remove defense counsel, Michael Van Der Veen, Esquire, for his
alleged involvement in procuring the recantation letter. The trial court
granted the Commonwealth’s request and removed Attorney Van Der Veen
from the case for purposes of Appellant’s motion for extraordinary relief.
Trial Ct. Order, 8/29/14. William Christopher Montoya was appointed to
represent Appellant regarding the motion. The trial court conducted two
hearings concerning the motion, on November 7, 2014 and December 16,
2014. At the first hearing, K.D. revealed that her family had encouraged her
to lie by recanting her trial testimony. N.T., 11/7/14, at 111-122. Further,
K.D. explained that Attorney Van Der Veen told her that if she wrote a letter
recanting, Appellant would be released and sent back to Africa. Id. at 122-
124. Further, K.D. testified that she copied exactly what a family member
told her to write when creating the recantation letter. Id. at 129-135. The
trial court denied Appellant’s motion for extraordinary relief.
On February 17, 2015, the trial court sentenced Appellant to
consecutive terms of five to ten years’ imprisonment for rape, fifteen to
thirty years for rape of a child, five to ten years for involuntary deviate
sexual intercourse and five to ten years for unlawful contact with minor. The
trial court also imposed sentences of one to three years’ imprisonment for
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both endangering the welfare of a child and for corruption of minors, to run
concurrent with each other but consecutive to the remainder of the
sentence. The resulting aggregate sentence was thirty-one to sixty-three
years’ imprisonment.
On February 25, 2015, Appellant filed a post-sentence motion, which
the trial court denied on May 21, 2015. Appellant filed a timely notice of
appeal and an amended court-ordered Pa.R.A.P. 1925(b) statement of errors
complained of on appeal on August 27, 2015.7 The trial court filed a
responsive opinion.
Appellant raises the following issues for our review:
A. Was the evidence insufficient to sustain Appellant’s
convictions because the complainant’s testimony was
inconsistent and contradictory, so much so that to sustain
the convictions amounts to a violation of due process?
B. Were the verdicts against the weight of the evidence
and did the trial court commit an abuse of discretion by
not granting Appellant a new trial?
C. Did the trial court err by permitting the Commonwealth
to call Dr. Brennan as an expert witness after the start of
trial?
7
In his Rule 1925(b) statement, Appellant included, inter alia, the general
contention that “the evidence was insufficient to find Appellant guilty of the
charges against him, where the alleged victim’s testimony was inconsistent,
and she regularly contradicted herself on the stand.” Appellant’s Rule
1925(b) Statement, 8/27/15. Attorney Montoya filed Appellant’s Rule
1925(b) statement but the instant appellate brief was filed by Attorney Van
Der Veen.
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D. Did the trial court commit an abuse of discretion by
imposing an excessive sentence without considering the
circumstances of the case and the character of Appellant?
Appellant’s Brief at 4.
In his first issue on appeal, Appellant contends that the evidence was
insufficient to support his convictions. The crux of his argument lies in his
contention that K.D.’s testimony was “replete with inconsistencies and
contradictions.” Id. at 34. Appellant also points to a “lack of physical
evidence” and an “incomplete police investigation.” Id. at 42. The
Commonwealth counters that Appellant waived his sufficiency claim due to a
lack of specificity and, in the alternative, maintains that K.D.’s testimony
alone provided more than ample evidence to support Appellant’s
convictions.8 Commonwealth’s Brief at 11-17. No relief is due.
Our review of a sufficiency of the evidence claim is governed by the
following principles:
[O]ur scope of review is plenary. Our standard of review is
de novo. Scope of review refers to the confines within
which an appellate court must conduct its examination. . .
. In other words, it refers to the matters (or what) the
appellate court is allowed to examine. In contrast,
standard of review refers to the manner in which (or ‘how’)
that examination is conducted. A standard of review is the
degree of deference given by the reviewing court to the
8
Despite receiving three extensions, the Commonwealth filed its brief thirty-
five days after the third extended deadline. Hence, we are in receipt of
Appellee’s motion to strike the Commonwealth’s brief. Although we
admonish the Commonwealth for failing to file a timey brief, we decline to
strike the brief pursuant to Pa.R.A.P. 2118 because Appellant was not
prejudiced by the late filing.
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decision under review. In other words, it is the power of
the lens through which the appellate court looks at the
issue in a particular case.
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict. [A]ll of the evidence and any
inferences drawn therefrom must be viewed in the light
most favorable to the Commonwealth as the verdict
winner.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007)
(quotation marks and citations omitted). Indeed, this Court has held that a
“victim’s uncorroborated testimony is sufficient to support a rape
conviction.” Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa. Super.
2015) (citation omitted).
In addition, regarding the need for specificity in a sufficiency claim,
this Court has held:
[W]hen challenging the sufficiency of the evidence
on appeal, the [a]ppellant’s 1925 statement must
“specify the element or elements upon which the
evidence was insufficient” in order to preserve the
issue for appeal. Such specificity is of particular
importance in cases where, as here, the [a]ppellant
was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt. Here, [the
a]ppellant . . . failed to specify which elements he
was challenging in his 1925 statement . . . . While
the trial court did address the topic of sufficiency in
its opinion, we have held that this is “of no moment
to our analysis because we apply Pa.R.A.P.1925(b) in
a predictable, uniform fashion, not in a selective
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manner dependent on an appellee’s argument or a
trial court’s choice to address an unpreserved claim.”
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
2009) [ ].
Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (some
citations omitted).
As a prefatory matter, we consider whether Appellant has waived his
sufficiency of the evidence claim. As noted above, Appellant’s Rule 1925(b)
statement failed to “specify the element or elements upon which the
evidence was insufficient” and failed to specify which convictions he was
challenging. See Garang, 9 A.3d at 244. Thus, we are constrained to
conclude that Appellant’s sufficiency issue is waived. See id. Moreover,
even were we not to conclude that Appellant’s sufficiency issue is waived, we
agree with the trial court that ample evidence supported Appellant’s
convictions. See Ratsamy, 934 A.2d at 1235-36. As noted by the trial
court, K.D.’s testimony established that Appellant, the man she thought of
as her father, repeatedly raped her over a six-year period, starting when she
was only ten years old. This testimony was sufficient for the jury as the
fact-finder to find Appellant guilty, and we see no reason why this
determination should be disturbed by this Court. See Gonzalez, 109 A.3d
at 721. Thus, no relief is due.
Appellant also maintains that his guilty verdicts were against the
weight of the evidence. To that end, Appellant points to inconsistencies in
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K.D.’s testimony regarding the timing of the sexual assaults at issue, K.D.’s
letter recanting her trial testimony, the lack of any physical evidence and
“the utter lack of corroborating evidence.” Appellant’s Brief at 48. To the
contrary, the Commonwealth emphasizes that any inconsistencies in K.D.’s
testimony were minor and the trial court found that the recantation letter
was engineered by others. Commonwealth’s Brief at 19-23. Further, the
Commonwealth highlights that five other corroborating witnesses testified
that K.D. had confessed Appellant’s abuse to them individually. Id. at 23.
Once again, we disagree with Appellant and decline to award relief.
The principles governing a challenge to the weight of the evidence are
well settled.
A verdict is against the weight of the evidence “only
when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice.” A weight of the evidence
claim is primarily directed to the discretion of the judge
who presided at trial, who only possesses “narrow
authority” to upset a jury verdict on a weight of the
evidence claim. Assessing the credibility of witnesses at
trial is within the sole discretion of the fact-finder. A trial
judge cannot grant a new trial merely because of some
conflict in testimony or because the judge would reach a
different conclusion on the same facts, but should only do
so in extraordinary circumstances, “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.” . . .
Commonwealth v. Blakeney, 946 A.2d 645, 652-53 (Pa. 2008) (citations
omitted).
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An appellate court reviews the exercise of discretion by the trial court,
“not . . . the underlying question of whether the verdict is against the weight
of the evidence.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)
(citation and emphasis omitted).
In this case, the trial court aptly concluded that the jury’s verdicts
were not contrary to the weight of the evidence and “shock[ ] no one’s sense
of justice.” Trial Ct. Op. at 9; see also Blakeney, 946 A.2d at 652-53.
We agree. K.D.’s testimony regarding Appellant’s continual sexual abuse,
and the corroborating witnesses who testified that K.D. had confided in them
about the abuse, was ample evidentiary support for the trial court’s decision.
Thus, we hold that the trial court did not abuse its discretion in determining
that the verdicts were not contrary to the weight of the evidence. See Clay,
64 A.3d at 1055. Therefore, Appellant’s second issue warrants no relief.
Turning to Appellant’s third issue, he contends that the trial court
erred by admitting the testimony of Commonwealth witness Dr. Brennan
“because Appellant did not open the door to the testimony, the admission of
the testimony constituted trial by ambush, and the opinions expressed by
the doctor lacked evidentiary support and amounted to a regurgitation of
findings made by someone else.” Appellant’s Brief at 32. The
Commonwealth responds that Dr. Brennan’s testimony regarding the ability
for a sexual assault victim to still have an “intact hyman” was necessary to
refute Appellant’s suggestion that K.D. could not have been sexually
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assaulted. Commonwealth’s Brief at 25-27. The Commonwealth also
emphasizes that Dr. Brennan, as a supervising physician in the pediatrics
division at the Children’s Hospital of Philadelphia, had extensive personal
experience examining suspected sexual abuse victims, and utilized that
experience, together with K.D.’s doctor’s report, to inform her trial
testimony. See id at 28. We conclude that Appellant’s argument regarding
the admission of Dr. Brennan’s testimony does not merit relief.
In cases involving the admission of expert testimony we note:
Generally speaking, the admission of expert testimony is a
matter left largely to the discretion of the trial court, and
its rulings thereon will not be reversed absent an abuse of
discretion. An expert’s testimony is admissible when it is
based on facts of record and will not cause confusion or
prejudice.
Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citation
omitted).
In addition, it is beyond cavil that “when expert opinion evidence is
admitted, the factfinder is free to reject it, accept it, or give it some weight
between the two.” Commonwealth v. Stephens, 74 A.3d 1034, 1041 (Pa.
Super. 2013) (citation omitted). Further, “a litigant opens the door to
inadmissible evidence by presenting proof that creates a false impression
refuted by the otherwise prohibited evidence.” Commonwealth v.
Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) (citation omitted).
In the case sub judice, the trial court properly determined that
Appellant “opened the door” to Dr. Brennan’s testimony by referring to
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K.D.’s “intact hyman” in counsel’s opening statement as evidence that K.D.
was not the victim of sexual assault. See Nypaver, 69 A.3d at 716.
Further, the decision to accept Dr. Brennan’s opinion as to whether, in her
substantial experience, it was “possible” that K.D. had been the victim of
sexual assault even without direct physical evidence was a matter properly
left to the factfinder’s discretion. See Stephens, 74 A.3d at 1041.
Therefore, we conclude that the trial court did not abuse its discretion by
admitting the testimony of Dr. Brennan. See Huggins, 68 A.3d at 966.
In his last issue, Appellant argues that the trial court abused its
discretion in imposing an aggregate sentence of thirty-one to sixty-three
years’ imprisonment. Appellant specifically avers that his sentence was
unreasonable and manifestly excessive because it was imposed
consecutively rather than concurrently. Appellant’s Brief at 68-69. He
further contends that the trial court focused on the seriousness of the
offense rather than Appellant’s circumstances and rehabilitative needs. Id.
at 70-71.
This Court has stated:
discretionary aspects of [an appellant’s] sentence [ ] are
not appealable as of right. Rather, an appellant
challenging the sentencing court’s discretion must invoke
this Court’s jurisdiction by satisfying a four-part test.
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P.
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720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some
citations omitted).
Instantly, Appellant timely filed his appeal, preserved the issue of an
excessive sentence in his post-sentence motion, and included a statement in
his brief, which conforms with Pa.R.A.P. 2119(f). See Appellant’s Brief at
63-65. Accordingly, we ascertain whether Appellant has raised a substantial
question. See Leatherby, 116 A.3d at 83.
“We conduct a case-by-case analysis to determine what allegations
constitute a substantial question.” Commonwealth v. Malovich, 903 A.2d
1247, 1252 (Pa. Super. 2006) (citation omitted); see also 42 Pa.C.S. §
9781(b). “A claim that a sentence is manifestly excessive such that it
constitutes too severe a punishment raises a substantial question.”
Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011);
Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (appellant
raised a substantial question when he claimed that a sentencing court
imposed an excessive sentence and failed to consider substantial mitigating
factors). “[A]n averment that the court sentenced based solely on the
seriousness of the offense and failed to consider all relevant factors raises a
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substantial question.” Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa.
Super. 2012) (citation omitted).
We find that Appellant’s Rule 2119(f) statement presents a substantial
question. See id.; Kelly, 33 A.3d at 640; Perry, 883 A.2d at 602. Our
standard of review is as follows:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. An abuse
of discretion is more than just an error in judgment and,
on appeal, the trial court will not be found to have abused
its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the
following guidance to the trial court’s sentencing
determination:
[T]he sentence imposed should call for confinement
that is consistent with the protection of the public,
the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and
the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b).
Furthermore,
Section 9781(c) specifically defines three instances
in which the appellate courts should vacate a
sentence and remand: (1) the sentencing court
applied the guidelines erroneously; (2) the sentence
falls within the guidelines, but is “clearly
unreasonable” based on the circumstances of the
case; and (3) the sentence falls outside of the
guidelines and is “unreasonable.” 42 Pa.C.S. §
9781(c). Under 42 Pa.C.S. § 9781(d), the appellate
courts must review the record and consider the
nature and circumstances of the offense, the
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sentencing court’s observations of the defendant, the
findings that formed the basis of the sentence, and
the sentencing guidelines. The weighing of factors
under 42 Pa.C.S. § 9721(b) is exclusively for the
sentencing court, and an appellate court could not
substitute its own weighing of those factors. The
primary consideration, therefore, is whether the
court imposed an individualized sentence, and
whether the sentence was nonetheless unreasonable
for sentences falling outside the guidelines, or clearly
unreasonable for sentences falling within the
guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Bricker, 41 A.3d at 875-76 (alterations and some citations omitted).
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the
character of the defendant. In considering these factors,
the court should refer to the defendant’s prior criminal
record, age, personal characteristics and potential for
rehabilitation. Where pre-sentence reports exist, we shall
. . . presume that the sentencing judge was aware of
relevant information regarding the defendant’s character
and weighed those considerations along with mitigating
statutory factors. A pre-sentence report constitutes the
record and speaks for itself.
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014)
(quotation marks and citations omitted).
The trial court stated that prior to sentencing, it considered the
sentencing guidelines and also read the Commonwealth’s sentencing
memorandum, which raised grave concerns regarding Appellant’s lack of
potential for rehabilitation. N.T., 2/17/15, at 51. The trial court also
indicated that it carefully reviewed the presentence report and mental health
evaluation. Trial Ct. Op. at 11. The trial court specifically noted that the
cruelty involved in the case over a prolonged period of time and Appellant’s
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lack of any remorse or compassion for the victim were important factors in
the sentence imposed. N.T., 2/17/15, at 51.
After a careful consideration of the record, we find no abuse of
discretion. See Bricker, 41 A.3d at 875-76. The trial court considered the
presentence report. See Antidormi, 84 A.3d at 761. Further, the trial
court also properly weighed the gravity of Appellant’s actions and his lack of
propensity toward rehabilitation. See id. Therefore, Appellant’s fourth issue
on appeal also must fail. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed. Motion to strike denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2017
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Com. v. Dukulah, S.
Combined Opinion