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[U] Commonwealth v. Johnson

Superior Court of Pennsylvania

March 10, 2014



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




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 Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008) (citation omitted).

In light of the foregoing principles, our review reveals no basis to disturb the trial court's analysis of Appellant's sufficiency of the evidence claim. Specifically, the trial court observed:

[t]he condom [that the victim's sister] found in the residence had Appellant's DNA on it. Thus the question becomes whether Appellant's DNA found on the inside of the condom located in [the victim's] residence is sufficient for the jury to positively identify Appellant as the perpetrator.
The Commonwealth's expert witness testified the DNA found on the non-sperm sample from the condom matched Appellant's DNA profile. [The victim's sister] testified about finding the condom in her sister's residence. The Commonwealth also presented Ms. Laky's testimony to show that while [the victim] was hospitalized, she was the only person who was going into and out of [the victim's] house to feed the cats and never saw anyone else there at any point.

Trial Ct. Op. at 11.

Having reviewed the entire record, we agree with the trial court that there was ample evidence for the jury to conclude, beyond a reasonable doubt, that Appellant had perpetrated the rape. See Filer, 846 A.2d at 140. Moreover, we discern no merit to Appellant's argument that, as a matter of law, the absence of the victim's DNA on the outer surfaces of the condom precluded the jury from finding that he committed the crime of rape. See Commonwealth v. Brooks, 875 A.2d 1141, 1147 (Pa. Super. 2005) (noting that "[i]n DNA as in other areas, an absence of evidence is not evidence of absence."). Thus, Appellant's challenge to the sufficiency of the evidence warrants no relief.

Appellant next argues the trial court abused its discretion when it denied his post-sentence motion challenging the weight of the evidence. He claims he is entitled to a new trial because his conviction was based solely on DNA evidence obtained from the condom, and the victim's testimony that she believed her attacker was African-American based on the sound of his voice. We hold Appellant is not entitled to relief.

Our standard of review of claims implicating weight of the evidence is as follows:

An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence[,] do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
In other words, a court may grant a new trial because the verdict is against the weight of the evidence only when the verdict rendered is so contrary to the evidence as to shock one's sense of justice.

Commonwealth v. Stokes, 78 A.3d 644, 650-51 (Pa. Super. 2013) (citations omitted).

With respect to Appellant's weight of the evidence argument, the trial court opined:

[T]he presence of the condom is consistent with the rape perpetrated against [the victim]. It is also consistent with what she described of her attacker, who she testified wore gloves and a mask. These factors suggest Appellant took steps to ensure he would not be identified, and the use of a condom during the perpetration of a rape is consistent with that approach.
The DNA on the condom was enough for the jury to conclude Appellant was the perpetrator of the attack[.] The jury was able to evaluate the testimony offered by all of the witnesses and reach a verdict after consideration of all the evidence. The [c]ourt does not find the jury's verdict to be inconsistent with the weight of the evidence. The verdict does not shock one's sense of justice. To the contrary, it is a rational conclusion based on all of the evidence presented at trial.

Trial Ct. Op. at 13.

We find no abuse of discretion in the trial court's conclusion that the verdict did not shock the conscience and that Appellant was not entitled to a new trial. The jury was free to find credible Ms. Laky's testimony that she was the only person entering the victim's residence after the attack. See Bishop, 742 A.2d at 189. Furthermore, the jury's conclusion that Appellant had been in the victim's home, based on the presence of Appellant's DNA inside the condom discovered there, was reasonable. See id. Lastly, the jury was entitled to credit the victim's testimony and conclude that Appellant had perpetrated the rape. See Stokes, 78 A.3d at 650. Thus, Appellant's second issue does not merit relief.

For Appellant's third issue, he claims the evidence at the SVP hearing was insufficient for the trial court to sustain the SVP designation. Appellant specifically alleges that Dr. Valliere's testimony should not have been credited by the trial court because her opinions were based on a series of probation violations that were not included in Appellant's presentence report and on prison misconducts about which she knew no details. Appellant's Brief at 26. We discern no basis for relief.

Our standard of review of a court's determination of SVP status is well settled:

The determination of a defendant's SVP status may only be made following an assessment by the SOAB and hearing before the trial court. In order to affirm an SVP designation, we, as a reviewing court, must be able to conclude that the fact-finder found clear and convincing evidence that the individual is a sexually violent predator. As with any sufficiency of the evidence claim, we view all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. We will reverse a trial court's determination of SVP status only if the Commonwealth has not presented clear and convincing evidence that each element of the statute has been satisfied.
The standard of proof governing the determination of SVP status, i.e., clear and convincing evidence, has been described as an intermediate test, which is more exacting than a preponderance of the evidence test, but less exacting than proof beyond a reasonable doubt.
The clear and convincing standard requires evidence that is so clear, direct, weighty, and convincing as to enable the [trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts [in] issue.

Commonwealth v. Morgan, 16 A.3d 1165, 1168 (Pa. Super. 2011) (citations and quotation marks omitted). The trial court, as the finder 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. Brooks, 7 A.3d 852, 856 (Pa. Super. 2010). "As a reviewing court, we may not weigh the evidence and substitute our judgment for that of the fact-finder." Id. at 860.

An SVP is a "person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." 42 Pa.C.S. § 9792. A mental abnormality is defined as "[a] congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." Id.

The General Assembly directs that, to determine whether an individual should be classified as an SVP, the court must consider the following:

(1)Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime.
(vii) The mental capacity of the victim.
(2)Prior offense history, including:
(i) The individual's prior criminal record.
(ii) Whether the individual completed any prior sentences.
(iii) Whether the individual participated in available programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age of the individual.
(ii) Use of illegal drugs by the individual.
(iii) Any mental illness, mental disability or mental abnormality.
(iv) Behavioral characteristics that contribute to the individual's conduct.
(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoffense.

42 Pa.C.S. § 9795.4(b).

Instantly, the trial court considered the testimony given by Dr. Valliere in which she explained why she concluded Appellant is an SVP. The court engaged in a rigorous examination of Dr. Valliere with respect to the facts underlying her diagnosis and recommendation. Thereafter, the court noted that it evaluated the statutory factors in light of the evidence and found that (1) the instant offense involved the use of force in excess of the level necessary to achieve the offense of rape and sexual assault; (2) the victim was a stranger to Appellant; (3) the sexual contact involved forcible vaginal penetration; and (4) the victim's lack of consent was a matter of stimulation or excitement to Appellant. The trial court noted also that Appellant's criminal record reflects convictions for attempted robbery, unlawful restraint, and a home invasion. After a lengthy hearing and thorough examination of Dr. Valliere, the trial court concluded that the Commonwealth met its burden of demonstrating by clear and convincing evidence that Appellant is an SVP.

After carefully reviewing the record, and viewing this determination in the light most favorable to the Commonwealth as the verdict winner, we are constrained to agree. See Morgan, 16 A.3d at 1168. The evidence offered by the Commonwealth as set forth above was sufficient to support Appellant's designation as an SVP. Furthermore, to the extent Appellant argues Dr. Valliere's conclusion lacked the proper foundation, we must defer to the weight given to the evidence produced and the credibility determination made by the trial court. See Brooks, 7 A.3d at 856. Accordingly, Appellant is not entitled to relief on this issue.

Appellant's fourth and fifth issues on appeal challenge the discretionary aspects of his sentence. Appellant alleges that his aggregate sentence of sixteen to forty-five years' imprisonment is excessive and therefore unjust. He also claims that the trial court failed to place adequate reasons on the record to support the imposition of an aggravated sentence when the verdict was based on marginal evidence.

It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal.
[. . .] To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.

Commonwealth v. Mastromarino, 2 A.3d 581, 586 (Pa. Super. 2010). (citations omitted).[10]

Appellant filed a timely notice of appeal. He also timely filed a post-sentence motion in which he contended his aggregate sentence was excessive and unreasonable. Appellant has included in his brief a concise statement of the reasons relied on for allowance of appeal as to the discretionary aspects of his sentence. Thus, he has complied with the procedural requirements for seeking review of his discretionary claims. See id.

We next assess whether Appellant raised a substantial question for review. Appellant first claims that the sentence imposed was harsh and manifestly excessive because, after imposing an aggravated range sentence on the rape, and a standard range sentence for the burglary and aggravated assault, the trial court "aggravated the entire sentence by running the sentences consecutively." Appellant's Brief at 31.

Long standing precedent of this Court recognizes that 42 Pa.C.S.A. section 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed ..... Any challenge to the exercise of this discretion ordinarily does not raise a substantial question.

Id. at 586-87 (citations omitted).

To the extent Appellant complains about the court's decision to impose consecutive sentences, Appellant failed to raise a substantial question. Therefore, we decline to review Appellant's challenge. See id.

Appellant, in his Rule 2119(f) statement, also claimed the trial court failed to place adequate reasons on the record to support the imposition of an aggravated sentence. Appellant, however, failed to develop this argument in his brief. Accordingly, we find this issue waived. See Commonwealth v. Tha, 64 A.3d 704, 713 (Pa. Super. 2013).

Lastly, we note that Appellant, in the argument section of his brief, claims his sentence is harsh and manifestly excessive because he steadfastly maintains that he did not rape the victim and therefore will be ineligible for sex offender programs within the prison system that are necessary for him to be paroled. Appellant's Brief at 32-33. Consequently, he claims it is likely that Appellant will spend the maximum time of forty-five years in prison. Id. We note that Appellant did not raise this specific challenge to his sentence in his post-sentence motion, Rule 1925(b) statement, or Rule 2119(f) statement. Thus, this issue is likewise waived. See Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013) (holding issue raised for the first time in an appellant's brief waived). Accordingly, we affirm the judgment of sentence. See id. at 585-86.

Judgment of sentence affirmed.

Judgment Entered.

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