J-A24014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DUANE JONES                                :
                                               :
                       Appellant               :   No. 2803 EDA 2018

          Appeal from the Judgment of Sentence Entered April 27, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009523-2015


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED JANUARY 31, 2020

        Appellant, Duane Jones, appeals from the judgment of sentence of an

aggregate term of 6 to 12 years’ incarceration, followed by 4 years’ probation,

imposed after a jury convicted him of rape, 18 Pa.C.S. § 3121(a)(1),

involuntary deviate sexual intercourse (IDSI), 18 Pa.C.S. § 3123(a)(1), and

related offenses. Appellant solely challenges the sufficiency of the evidence

to prove the ‘forcible compulsion’ element of his rape and IDSI convictions.

We affirm.

        The trial court summarized the facts of this case, as established by the

evidence presented at Appellant’s trial, as follows:

        After an evening of drinking in celebration of Appellant’s birthday,
        [the victim] was getting a ride home from Appellant, along with
        her college friend, Appellant’s girlfriend, Gabby. Appellant was
        driving, while Gabby was in the front passenger seat and the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     [victim] was lying across the backseat. NT[,] 12/5/17, [at] 35.
     The [victim] was intoxicated. [Id. at] 33.

            As the [victim] lay too intoxicated to physically resist or
     articulate her lack of consent, Appellant reached over the back
     seat, put his hand under [the victim’s] skirt, circumvented her
     underwear, and digitally penetrated her. She mumbled her
     objection, but was unable to form words. [Id. at] 35-36.

           Appellant stopped in front of a house where he lived with
     Gabby. He and Gabby left the car while the [victim] remained
     partially conscious in the back seat. At some point, Appellant
     returned to the vehicle, opened the back door, pulled the [victim]
     partially out of the door by her legs, lifted her up and inserted his
     penis into her mouth. [Id. at] 37-39. When the [victim] was
     unable to engage in oral sex, Appellant dropped her back onto the
     car seat, again pulled her toward the car door, then inserted his
     penis into her vagina and engaged in intercourse. [Id. at] 37. At
     some point[,] the [victim’s] tampon was pushed from her vagina
     and ended up behind her cervix, where it was found by a nurse
     when the [victim] was examined at the Police Special Victims Unit
     the next day. [Id. at] 40-42, 48.

           The [victim] woke up the next day inside the apartment.
     Gabby and Appellant drove her to her mother’s house. Around
     6:30 am, the [victim] called a friend, Darrell Garrick, to take her
     to the hospital, but he was unable to do so. In the conversation
     with Darrell, the [victim] was crying as she told him that she had
     been sexually assaulted. [Id. at] 78-79. Another friend, Channel
     Roberts, ended up taking the [victim] to the hospital. [Id. at] 92.
     The [victim] also told Channel what had happened to her. [Id.
     at] 92-94.

            The [victim] also notified Gabby, and she was crying while
     she spoke to Gabby. [Id. at] 46-47; NT[,] 12/6/17, [at] 78. The
     [victim’s] friend then got on the phone and told Gabby that
     Appellant had raped the [victim]. [Id. at] 78; NT[,] 12/5/17, [at]
     93-95. Gabby then confronted Appellant by phone, who confessed
     to having intercourse with the [victim]. NT[,] 12/6/17, [at] 106-
     []07, 116.

            Gabby arrived at the hospital and was present while the
     [victim] described the incident to the doctor. At some point[,] the
     doctor asked Gabby to step out, at which point Gabby left the
     hospital. [Id. at] 80-81; NT[,] 12/5/17, [at] 47. Police responded


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     to the hospital and spoke with the [victim].    The police officer
     recorded that complaint as:

        [The victim] states offender drove her home from the bar at
        approximately two o’clock a.m. The offender parked outside
        his house. The offender went into the rear of the vehicle
        and put fingers and penis into vagina and mouth. Complaint
        didn’t know the location of occurrence. States the offender
        is her friend’s boyfriend. NT[,] 12/5/17, [at] 111-[]12; C5.

         The [victim] was transferred to the Special Victims Unit by the
     officer, where she was interviewed and examined by a trained
     sexual assault nurse. The information the [victim] gave the nurse
     about the incident was the same as her testimony at trial. NT[,]
     12/6/17, [at] 8-16; C-6. Upon physical examination, the nurse
     found the [victim’s] tampon past her cervix. [Id. at] 15-16. The
     nurse removed the tampon and preserved it for evidence. She
     also took a vaginal swab[,] which tested positive for Appellant’s
     DNA. [Id.]

        Gabby testified that no one was really drinking that night, and
     the [victim] was not drinking at all, but perhaps the two of them
     shared a sip of a drink. [Id. at] 62, 64, 95. She further testified
     that the [victim] was not intoxicated. [Id. at] 100. Gabby
     testified that she had one drink that night. [Id. at] 77.

        Appellant likewise testified that the [victim] was not
     intoxicated. [Id. at] 136. He claimed that even though the long
     evening’s events were to celebrate his birthday, he drank little.
     [Id. at] 136, 143. Gabby also testified that neither she nor
     Appellant were drunk, although she testified that people were
     buying him birthday drinks. [Id. at] 64, 68. He denied digitally
     penetrating the [victim] as he drove, although he admitted that
     his girlfriend was asleep in the front seat during the ride home.
     [Id. at] 151-[]52.

        Appellant testified that his girlfriend went into the house as
     soon as they arrived because she had to use the bathroom, but
     he and the [victim] followed “right behind, seconds behind.” [Id.
     at] 131. Gabby described the time[-]period as three to four
     minutes. [Id. at] 72. He denied attempting to engage in oral sex
     with the [victim] or have intercourse in the car. [Id. at] 132,
     137[]. Instead, he said that after his girlfriend Gabby went to
     bed, the [victim] approached him in the kitchen/living room, undid
     his belt[,] and proceeded to fellate him. She then lifted her skirt
     and they had consensual intercourse on the couch. [Id. at] 135-

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      []36. He denied any knowledge of [victim]’s tampon. [Id. at]
      152-[]53.

         Appellant did not speak to [victim] the next day, but drove her
      [to her] mother’s [house,] accompanied by Gabby, and at [the
      victim’s] direction. [Id. at] 75-76, 138, 155.

Trial Court Opinion (TCO), 11/7/18, at 2-5.

      At the close of trial, the jury convicted Appellant of the above-stated

rape and IDSI offenses, as well as aggravated indecent assault, 18 Pa.C.S. §

3125(a)(1), sexual assault, 18 Pa.C.S. § 3124.1, and indecent assault, 18

Pa.C.S. § 3126(a)(1).      On April 27, 2018, Appellant was sentenced to

concurrent terms of 6 to 12 years’ incarceration for his rape and IDSI

convictions, and a consecutive, aggregate term of 4 years’ probation for his

remaining crimes. He filed a timely post-sentence motion that was denied on

August 20, 2018. Appellant then filed a timely appeal, and he complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.      The court filed its Rule 1925(a) opinion on

November 7, 2018. Herein, Appellant states a single question for our review:

“Was the evidence insufficient to sustain the charges of rape and IDSI by

forcible compulsion because the record is devoid of any evidence of either

forcible compulsion or the threat thereof?” Appellant’s Brief at 4 (unnecessary

capitalization omitted).

      Preliminarily, we recognize that:

           In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d

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      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Appellant challenges his conviction for rape under 18 Pa.C.S. §

3121(a)(1), and IDSI under 18 Pa.C.S. § 3123(a)(1), both of which require

proof that he used forcible compulsion to engage in sexual intercourse with

the 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. § 3101.

      Essentially, Appellant avers that the victim’s testimony established that

she was so intoxicated that she did not verbally or physically resist his

advances, and he did not use force, but simply “moved her into a position so

he could insert his penis into her mouth[,]” and then “moved her into a

position so he could insert his penis into her vagina.” Appellant’s Brief at 19.

Appellant maintains that his actions did not constitute ‘forcible compulsion’

under our Supreme Court’s definition of that term in Commonwealth v.

Berkowitz, 641 A.2d 1161 (Pa. 1994). There, the Court held that, “where

there is a lack of consent, but no showing of either physical force, a threat of

physical force, or psychological coercion, the ‘forcible compulsion’ requirement

… is not met.” Id. at 1164.

      Appellant’s argument is unconvincing. This Court has explained that,



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       [a] determination of forcible compulsion rests on the totality of
       the circumstances, including but not limited to this list of factors:

          [T]he respective ages of the victim and the accused, the
          respective mental and physical conditions of the victim and
          the accused, the atmosphere and physical setting in which
          the incident was alleged to have taken place, the extent to
          which the accused may have been in a position of authority,
          domination or custodial control over the victim, and whether
          the victim was under duress.

       Commonwealth v. Rhodes, … 510 A.2d 1217, 1226 ([Pa.]
       1986)…. It is not necessary to show that the victim physically
       resisted the assault in order to prove forcible compulsion. Id.
       The victim’s uncorroborated testimony is sufficient to support a
       rape conviction. Commonwealth v. Wall, 953 A.2d 581, 584
       (Pa. Super. 2008).

Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa. Super. 2015).

       Instantly, the victim’s testimony established that she was not entirely

unconscious during Appellant’s assault, and that she knew that Appellant was

assaulting her.1       However, she could not verbally or physically resist

Appellant’s advances because she was so intoxicated that she could not clearly

speak, and she had no physical strength. These facts establish that the victim

was incapacitated both mentally and physically. Appellant, on the other hand,

testified that he had had “[v]ery little” to drink that night. N.T., 12/6/17, at

143. This evidence supports a conclusion that Appellant was in a superior

____________________________________________


1 Consequently, contrary to Appellant’s suggestion, the facts of this case are
not more appropriately suited to a charge of rape under 18 Pa.C.S. §
3121(a)(3) (where the victim “is unconscious or where the person knows that
the [victim] is unaware that the sexual intercourse is occurring”), or IDSI
under 18 Pa.C.S. § 3123(a)(3) (where the victim “is unconscious or where the
person knows that the [victim] is unaware that the sexual intercourse is
occurring”).


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position to the victim both mentally and physically. Appellant then used this

position of dominance, as well as physical force, to rape and commit IDSI of

the victim. Namely, he pushed aside the victim’s underwear and inserted his

fingers into her vagina; pulled her body toward him by her legs, lifted her up,

and inserted his penis into her mouth; and pulled her body toward him again,

after she fell back onto the seat, and inserted his penis into her vagina so

forcefully that her tampon was pushed behind her cervix. Thus, the evidence

was sufficient to prove that Appellant used forcible compulsion to commit the

rape and IDSI of the victim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/20




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