J-S10023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
            v.                           :
                                         :
                                         :
MACDIJON WHITE                           :
                                         :
                  Appellant              :   No. 367 EDA 2017

          Appeal from the Judgment of Sentence January 9, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0012686-2014


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                               FILED MAY 30, 2018

      Appellant, Macdijon White, appeals from the judgment of sentence

entered on January 9, 2017. We affirm.

      The factual background of this case is as follows. On April 24, 2014,

Appellant invited B.P. (“Victim”), then 15½ years old, over to his apartment.

After smoking marijuana, Appellant forced Victim onto his bed.            He

performed oral sex on her while she attempted to push him away.

Thereafter, Victim stood up, pulled up her pants, and told Appellant she was

leaving. Appellant then removed his pants, pulled Victim’s pants down, and

forced his penis into Victim’s vagina while holding her down.
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        The procedural history of this case is as follows.   On December 2,

2014, the Commonwealth charged Appellant via criminal information with

rape,1 unlawful restraint,2 statutory sexual assault,3 indecent assault of a

person under the age of 16,4 sexual assault,5 indecent exposure,6 simple

assault,7 false imprisonment,8 and involuntary deviate sexual intercourse

with a person under the age of 16.9 On October 21, 2016, the trial court

convicted Appellant of rape, indecent assault of a person under the age of

16, sexual assault, and involuntary deviate sexual intercourse with a person

under the age of 16.           On January 9, 2017, the trial court sentenced




____________________________________________


1   18 Pa.C.S.A. § 3121(a)(1).

2   18 Pa.C.S.A. § 2902(a)(1).

3   18 Pa.C.S.A. § 3122.1(a)(1).

4   18 Pa.C.S.A. § 3126(a)(8).

5   18 Pa.C.S.A. § 3124.1.

6   18 Pa.C.S.A. § 3127(a).

7   18 Pa.C.S.A. § 2701(a).

8   18 Pa.C.S.A. § 2903(a).

9   18 Pa.C.S.A> § 3123(a)(7).




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Appellant to an aggregate term of four to eight years’ imprisonment. This

timely appeal followed.10

       Appellant presents two issues for our review:

     1. Should [Appellant] be discharged on rape and sexual assault[
        charges] because the evidence showed that [Appellant]’s
        conduct only rose to the level of statutory sexual assault?

     2. Should [Appellant] be discharged on the counts for indecent
        assault of a person under the age of 16, and involuntary deviate
        sexual intercourse with a person under the age of 16, because
        [Appellant] showed by a preponderance of the evidence that
        [he] reasonably believed [Victim] to be over the age of 16?

Appellant’s Brief at 4.

       Both of Appellant’s issues challenge the sufficiency of the evidence.

“The determination of whether sufficient evidence exists to support the

verdict is a question of law; accordingly, our standard of review is de novo

and our scope of review is plenary.”           Commonwealth v. Edwards, 177

A.3d 963, 969 (Pa. Super. 2018) (citation omitted). In assessing Appellant’s

sufficiency challenge, we must determine “whether viewing all the evidence

admitted at trial in the light most favorable to the [Commonwealth], there is

sufficient evidence to enable the fact-finder to find every element of the

crime beyond a reasonable doubt.” Commonwealth v. Sweitzer, 177 A.3d

____________________________________________


10 On July 12, 2017, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On July 30, 2017, Appellant filed his concise statement.
On August 15, 2017, the trial court issued its Rule 1925(a) opinion.
Appellant included both of his issues in his concise statement.



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253,   257   (Pa.   Super.   2017)   (citation   omitted).   “[T]he   facts   and

circumstances established by the Commonwealth need not preclude every

possibility of innocence. . . . [T]he 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. Davison,

177 A.3d 955, 957 (Pa. Super. 2018) (cleaned up).

       In his first issue, Appellant argues that there was insufficient evidence

to convict him of rape.       Specifically, Appellant argues that there was

insufficient evidence to prove that he used forcible compulsion when

engaging in vaginal intercourse with Victim. Forcible compulsion is defined

as “[c]ompulsion by use of physical, intellectual, moral, emotional[,] or

psychological force, either express or implied.”         18 Pa.C.S.A. § 3101.

Moreover,

       the force necessary to support a conviction of rape need only be
       such as to establish lack of consent and to induce the victim to
       submit without additional resistance.      The degree of force
       required to constitute rape is relative and depends on the facts
       and particular circumstance of the case.

Commonwealth v. Farmer, 758 A.2d 173, 181 (Pa. Super. 2000), appeal

denied, 771 A.2d 1279 (Pa. 2001) (cleaned up).

       Contrary to Appellant’s argument, the fact that Victim was not forced

into his apartment and did not scream during the intercourse does not prove

that Appellant failed to use forcible compulsion.        Appellant continued to

penetrate Victim’s vagina with his penis while she said no and attempted to


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push him away. N.T., 10/21/16, at 29. Moreover, Appellant physically held

Victim down during the assault. Id. at 29-30. These actions constituted the

use of forcible compulsion during the sexual assault sufficient to sustain the

rape conviction.     Accordingly, there was sufficient evidence to convict

Appellant of rape.

      Appellant also argues that there was insufficient evidence to convict

him of sexual assault. Our Supreme Court has held that an individual guilty

of rape by forcible compulsion is ipso facto guilty of sexual assault, i.e., that

sexual assault is a lesser included offense of rape by forcible compulsion.

Commonwealth v. Buffington, 828 A.2d 1024, 1031–1032 (Pa. 2003).

Hence, for the reasons set forth above, there was sufficient evidence to

convict Appellant of sexual assault.

      In his second issue, Appellant argues that there was insufficient

evidence to convict him of indecent assault of a person under the age of 16

and involuntary deviate sexual intercourse with a person under the age of

16. He argues that he reasonably believed that Victim was at least 16 years

of age at the time of the assault. With respect to both of these offense, “it is

a defense for the defendant to prove by a preponderance of the evidence

that he or she reasonably believed the child to be [at least 16 years of

age].”   18 Pa.C.S.A. § 3102.    At trial, Victim testified that she specifically

told Appellant that she was 15 years old. N.T., 10/21/16, at 70. The trial

court, sitting as fact-finder, credited this testimony over Appellant’s mother’s


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testimony that Victim told her that she was 17 years old. As noted above,

we must view the evidence in the light most favorable to the Commonwealth

when reviewing a challenge to the sufficiency of the evidence. In this case,

Victim’s testimony that she explicitly told Appellant that she was 15 years

old prior to the sexual assaults constituted sufficient evidence to rebut

Appellant’s mistake of age defense.      Accordingly, there was sufficient

evidence to convict him of indecent assault of a person under the age of 16

and involuntary deviate sexual intercourse with a person under the age of

16.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/18




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