Appeal from the Judgment of Sentence January 22, 2013 in the Court of Common Pleas of Delaware County, Criminal Division, at No(s): CP-23-CR-0004050-2012
BEFORE: BENDER, P.J., OTT, J. and STRASSBURGER, [*] J.
Brian A. Trimble (Appellant) appeals from his January 22, 2013 judgment of sentence of 48 to 96 months of imprisonment, a consecutive five years of probation, and lifetime sexual offender registration, following his convictions of aggravated indecent assault by forcible compulsion and indecent assault by forcible compulsion. We affirm.
The trial court summarized the underlying facts as follows.
On the afternoon of May 31, 2012, Ashley Harnett met Brad Patch, an ex-boyfriend, and Appellant in the parking lot of Bally's Gym in Woodlyn, PA, to help unlock a friend's car. Ms. Hartnett testified that she had never met Appellant prior to this encounter. Once the car was unlocked, Ms. Hartnett mentioned to Mr. Patch that she needed some furniture moved at her house, and Mr. Patch and Appellant offered to move the furniture. After the three stopped at a local bar for beers, Mr. Patch and Appellant followed Ms. Hartnett to her house in Ridley Park, Delaware County, PA. When they arrived at her house, Ms. Hartnett, Mr. Patch, and Appellant went inside, and they all chatted for a while, during which time Ms. Hartnett described her tattoos. Then, the two men moved two dressers for her, which took about twenty (20) minutes, and then talked to her for another ten (10) minutes. Ms. Hartnett testified that during this time, she noticed Appellant received a text message and put his phone into his pocket. Then, Mr. Patch said he needed to leave, both men left the house, and Ms. Hartnett remained there alone. Ms. Hartnett testified that up to this point, her interactions with Appellant were normal and not flirtatious.
About fifteen (15) minutes later Appellant returned to Ms. Hartnett's house alone, claiming that he left his cell phone there. After Ms. Hartnett gave him permission to look for his phone, Appellant spent a brief time upstairs and a brief time in the basement and then returned to the living room without finding his phone. Ms. Hartnett testified that she then questioned him about putting his phone in his pocket, and he responded by looking at her and lifting up his shirt, at which time she saw the black handle of a gun tucked into Appellant's pants.
After seeing the gun, she sat down on the middle cushion of her couch, and Appellant asked her for a cigarette and sat down next to her. Ms. Hartnett testified that after engaging in small-talk for a while, Appellant touched her knee without saying anything and attempted to touch other parts of her leg. She testified that she reacted by moving his hand away, to which Appellant responded, "you know you want to, " and "you so small. You're breakable." Ms. Hartnett testified that when she moved to the corner of the couch, Appellant grabbed her ankles and pulled her horizontally onto her back so that she was lying down on the couch. She also testified that Appellant held her arms down, said that he wanted to see the tattoo on her leg, and removed her jeans. She testified that Appellant then said he wanted to see the tattoos on her back and told her to take off her shirt. She testified that she turned over, that Appellant began kissing her neck, and that she tried to but could not move her head. She testified she told Appellant she "didn't want to do this" and "to stop, " and in response he pressed harder on her shoulders with his hands. Ms. Hartnett testified that Appellant then physically turned her over and, still holding her shoulders with one hand, unzipped his pants. She testified that she said no and told him to stop, but he vaginally penetrated her. She testified that Appellant then zipped his pants, said "nobody has to know about this, right?, " and left her house.
After Appellant left, Ms. Hartnett went to her bedroom and fell asleep. The next day Ms. Hartnett told Ms. Lisa Lee that she was raped the previous night, and Ms. Lee called the police. The police came to Ms. Hartnett's house, spoke with Ms. Hartnett, and called an ambulance so that Ms. Hartnett could go to the hospital and receive a rape kit. Ms. Foresman-Capuzzi performed a physical examination of Ms. Hartnett at Taylor Hospital. The only injuries she found were two marks on Ms. Hartnett's labia minora, but she testified that she could not determine what caused the injuries or if the marks were made as a result of consensual sexual contact.
Appellant's testimony significantly conflicted with the testimony of Ms. Hartnett. Appellant testified that he met Ms. Hartnett one week prior to May 31, 2012 in a bar. He also testified that when he, Mr. Patch, and Ms. Hartnett arrived at Ms. Hartnett's house, she made Appellant a cup of coffee and was "making out" with Mr. Patch in front of him. In addition, Appellant testified that he was carrying two cell phones on the night of the incident. He also testified that when he returned to the house to look for his old phone, he initially sat down on a separate couch from the one Ms. Hartnett was sitting on and later moved to the same couch as her, after asking if he could do so, because he was smoking a cigarette and needed to be near an ashtray on the coffee table. He testified that he asked Ms. Hartnett if she wanted him to leave, and she responded that he could stay.
According to Appellant's testimony, after they were sitting on the same couch Ms. Hartnett began giving him flirtatious looks, asked if he wanted to rub her back, and then took her shirt and bra off after he asked if he could do so. Appellant testified that Ms. Hartnett then started talking about her tattoos, Appellant asked to see the tattoo on her leg, and Ms. Hartnett removed her pants to show him the tattoo. He testified that he massaged her back, and then the two began kissing and eventually had consensual sexual intercourse. He also testified that he remained at Ms. Hartnett's house for over an hour after that, and Ms. Hartnett said that Appellant should not tell anyone about anything that happened because "this was a one time deal." He also testified that before leaving he asked if he could call her later and kissed and hugged her. Finally, Appellant testified that he has never owned a gun.
Trial Court Opinion (TCO), 6/21/2013, at 1-5 (citations omitted).
On June 8, 2012, Appellant was charged with rape by threat of forcible compulsion, aggravated indecent assault without consent, indecent assault without consent, terroristic threats, and possession of instruments of crime. Following a preliminary hearing and arraignment, Appellant proceeded to a jury trial. On October 17, 2012, at the close of its case-in-chief, the Commonwealth sought to amend the charges of rape, aggravated indecent assault, and indecent assault. The trial court allowed the amendments over Appellant's objection, adding the charge of rape by forcible compulsion, 18 Pa.C.S. § 3121(a)(1); and substituting aggravated indecent assault by forcible compulsion and indecent assault by forcible compulsion, 18 Pa.C.S. §§ 3125(a)(2) and 3126(a)(2), for the original charges of committing those crimes without ...