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[U] Commonwealth v. Johnson

Superior Court of Pennsylvania

March 10, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DEMETRIUS JOHNSON, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence October 15, 2012 In the Court of Common Pleas of Lehigh County Criminal Division No(s).: CP-39-CR-0003412-2009

BEFORE: ALLEN, MUNDY and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Demetrius Johnson, appeals from the judgment of sentence entered in the Lehigh County Court of Common Pleas following his conviction for rape,[1] sexual assault,[2] burglary,[3] aggravated assault,[4] and simple assault[5] following a jury trial. On appeal, Appellant challenges the sufficiency and weight of the evidence presented by the Commonwealth, his designation as an Sexually Violent Predator[6] ("SVP"), and the discretionary aspects of his sentence. We affirm.

We adopt the facts as set forth by the trial court. See Trial Ct. Op., 5/10/13, at 1-7. Following a jury trial, Appellant was convicted of the above crimes on April 12, 2012. On July 10, 2012, the Commonwealth moved to classify Appellant as an SVP based on a report prepared by Veronique Valliere, Psy. D., of the Pennsylvania Sexual Offenders Assessment Board ("SOAB").

The trial court held an SVP and sentencing hearing on October 15, 2012. At the SVP portion of the hearing, Dr. Valliere testified that Appellant declined her request for an interview. N.T. Sentencing Hr'g., 10/15/12, at 13-14. Consequently, she based her assessment of Appellant on a review of documents commonly relied upon in conducting a forensic examination. Those documents included the affidavit of probable cause, the application for a search warrant, the criminal investigation reports, the investigation report of the SOAB investigator, a memorandum from the District Attorney's office, the trial transcript, the criminal complaint, the records from the prison, including records from the prison treatment department, and the warrant from the arrest. Id. at 14, 26-28. Dr. Valliere ultimately diagnosed Appellant with a "personality disorder not otherwise specified" and opined that he was likely to commit sexually violent offenses. Id. at 15, 23. Based on Dr. Valliere's testimony, the court designated Appellant as an SVP.

Immediately following the SVP portion of the hearing, the trial court proceeded to a sentencing hearing after which it imposed an aggregate sentence of sixteen to forty-five years' imprisonment. Specifically, the court sentenced Appellant to seven and a half to twenty years' imprisonment for the rape, a consecutive three to ten years' imprisonment for the burglary, and a consecutive five and a half to fifteen years' imprisonment for the aggravated assault.[7]

On October 24, 2012, Appellant's trial counsel filed a post-sentence motion and a petition to withdraw as counsel. The trial court permitted counsel to withdraw on October 26, 2012, and appointed Appellant new counsel. The trial court denied Appellant's post-sentence motion on January 25, 2013. This timely appeal followed.[8]

Appellant raises the following issues for our review:

Did the court err in failing to grant a new trial [sic] where there was insufficient evidence to establish guilt beyond a reasonable doubt because the physical evidence did not support the testimonial evidence at trial?
Did the court err in failing to grant a new trial where the verdict was against the weight of the evidence?
Did the court err in finding [Appellant] to be an [SVP] where the opinion of the expert was based on incorrect information?
Is there a substantial question for which the Superior Court should grant allowance of appeal from the discretionary aspects of the sentence?
Is the sentence harsh and manifestly excessive, and, therefore, unjust and unreasonable?

Appellant's Brief at 4.[9]

For his first issue, Appellant claims the Commonwealth's evidence was insufficient to prove beyond a reasonable doubt that he was the perpetrator of the rape. Appellant argues it was unlikely that a condom discovered in the victim's home had been inside the victim's vagina because it had little or no DNA on its outer surface and only contained Appellant's non-sperm DNA in its interior. Appellant's Brief at 24. Appellant also claims that "[t]he physical evidence . . . did not agree" with the victim's testimony because "when [she] testified that she felt penetration, it was at a time when she was admittedly losing consciousness, and was almost definitely in a reduced state of awareness." Id. We find no relief is due.

This Court has stated the following:

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 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.

Commonwealth v. Filer, 846 A.2d 139, 140 (Pa. Super. 2004) (citation omitted). "Moreover, it is within the province of the fact-finder to resolve all issues of credibility, resolve conflicts in evidence, make reasonable inferences from the evidence, and believe all, none, or some of the evidence presented." Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. 1999) (citation omitted).

Rape is defined, in relevant part, as follows:

(a) Offense defined.-A person commits a felony of the first degree when the person engages in sexual intercourse with a complainant:
(1) By forcible compulsion.

18 Pa.C.S. § 3121(a)(1). The Crimes Code defines "sexual intercourse" as "in addition to its ordinary meaning . . . intercourse per os or anus, with some penetration however slight; emission is not required." 18 Pa.C.S. § 3101; see also ...


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