J-S07001-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA


                       v.

DAVID BROOKS

                            Appellant                        No. 972 MDA 2016


            Appeal from the Judgment of Sentence March 22, 2016
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0003977-2014


BEFORE: BOWES, LAZARUS, AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.:                                     FILED APRIL 10, 2017

       David Brooks appeals from the March 22, 2016 judgment of sentence

of life imprisonment, a consecutive term of twenty-five to fifty years

imprisonment, and a concurrent term of imprisonment of ten to twenty

years.1    The sentence was imposed following his conviction of rape by

forcible   compulsion,      corruption    of   minors,    and   unlawful   contact   or

communication with a minor. His sole challenge is that the jury verdict is

against the weight of the evidence. We affirm.


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1
  Appellant’s life sentence is based on the mandatory sentence for a second
crime of sexual violence pursuant to 42 Pa.C.S. § 9718; the term of twenty-
five to fifty years imprisonment was a mandatory imposed pursuant to 42
Pa.C.S. § 9714, for conviction of a third crime of violence.
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       We set forth our prior recitation of the facts underlying Appellant’s

convictions.2

              Appellant was charged with rape, attempted rape, sexual
       assault, attempted sexual assault, corruption of minors and
       unlawful contact or communication with a minor based on events
       that occurred the morning of June 5, 2014. The following facts
       were adduced at the jury trial. The complainant, a sixteen-year-
       old female, lived with her mother and stepfather, Appellant
       herein. That morning, her mother had already left for work as
       was customary and the complainant was getting ready to go to
       school. She put on her bra and underwear and a pink robe and
       went downstairs to the basement to get clothes out of the dryer
       that she intended to wear that day. While she was in the
       basement, Appellant grabbed her from behind, restrained her
       arms, tackled her to the ground and got on top of her. She
       started screaming and told him to get off her, but he covered
       her mouth and ripped off her panties. She struggled, but she
       was no match for the 210-pound Appellant. The complainant
       begged him not to take her virginity, and threatened to commit
       suicide if he did this to her. She reached over and grabbed a
       speaker cable and tried to wrap it around Appellant’s neck, but
       her efforts failed. According to the complainant, he tried to
       penetrate her two times but “was only able to get the head of his
       penis into the entrance of her vagina[,]” not full penetration.
       N.T., 1/12-13/16, at 90. When she was on her back, Appellant
       said, “I’ve been looking at you for a long time.” Id. at 93.

             Appellant dragged her to another area of the basement
       where he picked up Vaseline, and then, while attempting to
       return to the area of the pool table, complainant lost her footing
       and they fell to their knees. Appellant lost his grip, she elbowed
       him in the chest, and she ran for the stairway. Appellant
       grabbed her by the waist and tried to pull her back. She
       reached for a steam cleaner, grabbed the handle and tried to hit

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2
 We previously remanded this case to the trial court for the preparation of a
Pa.R.A.P. 1925(a) opinion, but retained jurisdiction of the appeal. The trial
court complied with our order and the matter is ripe for our review.



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     him with it. Appellant released his grip and she ran up the stairs
     and out of the house.

            A neighbor, Michelle Green, heard pleas for help and
     looked outside. She saw the complainant standing in the street
     calling for help, wearing only a bra and a headscarf, with blood
     running down her legs. Ms. Green assisted the young girl into
     her house. The complainant told her that her stepfather tried to
     rape her. Ms. Green’s spouse called 911, her adult daughter
     provided sweat pants and a shirt for the complainant to wear,
     and Ms. Green provided a phone so the complainant could call
     her mother.       Before police and her mother arrived, the
     complainant told Ms. Green what had happened. She was
     hysterical.

           Investigation at the scene by Penbrook Police officers
     revealed blood on the floor of the kitchen, a pink robe on the
     steps, a steamer mop in two pieces, and a shirt, sanitary napkin
     and panties on the floor near the pool table in the basement.
     The victim was taken to the hospital and a rape kit was utilized
     to obtain evidence of the sexual assault.

           At 11:05 p.m. that night, Officer Jesse Foltz responded to
     a 911 call regarding a disturbance at 3011 George Street. He
     was aware that there was an arrest warrant for Appellant and
     that Appellant was associated with that address. A man invited
     the officer into the house and advised him that Appellant was in
     the basement. The officer told Appellant to come upstairs, and,
     as he did so, family members of the victim berated him for
     assaulting and raping the victim. Appellant responded, “I know I
     f__ed up, I’m sorry.” Id. at 131. As the officer was cuffing him,
     Appellant asked that he not tighten the cuffs as he had tried to
     cut his wrists.

            During the trial, the jury heard from a DNA expert that the
     vaginal sample from the victim contained sperm cells and that
     Appellant could not be excluded as the major contributor to the
     sample. Id. at 226. The odds of someone else in the general
     population having that same profile was one in seven trillion,
     more than the world’s population, and the highest and strongest
     statistic that is reported from DNA testing. Id. at 232. In
     addition, telephone calls from Appellant to the victim’s mother
     were played for the jury. In one call, Appellant told her that he

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        would plead guilty to everything; in another, he said that the
        drugs made him do it and that he was overcome by a demon.

              Appellant waived his right to counsel and represented
        himself at trial with the assistance of stand-by counsel. His own
        testimony was the only evidence he offered on his own behalf.
        He maintained that the complainant was lying, he did not rape
        her, and she manufactured the story because she was biased
        against him.

Commonwealth v. Brooks, 972 MDA 2016 (Pa.Super. February 10, 2017).

        The jury found Appellant guilty of rape, corruption of minors, and

unlawful contact or communication with a minor.         He was sentenced as

aforesaid on March 22, 2016. Appellant filed a timely post-sentence motion

on March 29, 2016 requesting that his sentence be vacated and a new trial

granted as the verdict was against the weight of the evidence.        The trial

court denied the motion on April 22, 2016, explaining that it could not

address the sufficiency and weight of the evidence arguments raised in the

statement as Appellant failed to order the trial transcripts.

        Appellant filed a pro se notice of appeal on June 2, 2016.3    Counsel

filed an unopposed motion to file a notice of appeal out of time on

Appellant’s behalf on June 9, 2016, filed an appeal that same day, and the

court granted the motion on June 17, 2016. Appellant subsequently filed a

petition for transcripts on August 2, 2016, which was granted, the certified


____________________________________________


3
    That appeal was dismissed as duplicative by this Court on August 3, 2016.



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record was supplemented with those documents, and the trial court has

submitted its opinion on the issue.

      Appellant’s sole issue on appeal is, “Did the trial court commit

reversible error when it allowed the verdict to stand as the finding of guilt

was against the greater weight of the evidence presented at trial?”

Appellant’s brief at 4 (unnecessary capitalization omitted).

      In making a weight of the evidence determination, the trial court

exercises its discretion. As we acknowledged in Commonwealth v. Clay,

64 A.3d 1049, 1055 (Pa. 2013), this discretion is not unfettered, but

requires the court to exercise “judgment, wisdom and skill” on the

“foundation of reason” to “reach a dispassionate conclusion within the

framework of the law.” Id. (quoting Commonwealth v. Widmer, 744 A.2d

745, 753 (Pa. 2000).

      Our standard of review is distinct from that of the trial court. As our

High Court emphasized in Clay:

      Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. Because
      the trial judge has had the opportunity to hear and see the
      evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the trial
      judge when reviewing a trial court's determination that the
      verdict is against the weight of the evidence. One of the least
      assailable reasons for granting or denying a new trial is the
      lower court's conviction that the verdict was or was not against
      the weight of the evidence and that a new trial should be
      granted in the interest of justice.



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Clay, supra, at 1055 (emphasis in original) (internal citations omitted)

(quoting   Widmer,    supra,    at   753).   “[O]nly   in   truly   extraordinary

circumstances, i.e., when the jury’s verdict is so contrary to the evidence as

to shock one’s sense of justice and the award of a new trial is imperative so

that right may be given another opportunity to prevail.”        Clay, supra at

1148-1149 (quoting Armbruster v. Horowitz, 813 A.2d 698, 703 (Pa.

2002)).

      The trial court reviewed the evidence.     It determined, “[t]here was

strong evidence for the jury to conclude that the Appellant committed rape,

corruption of minors, and unlawful contact with a minor.”             Trial Court

Opinion, 3/3/17 at 7. The court pointed to physical and DNA evidence that

corroborated the minor victim’s testimony that Appellant forcibly penetrated

her. The court characterized Appellant’s defense that the victim was lying

due to bias against him as weak and unsupported, especially in light of

Appellant’s statement, “I know I f__ed up, I am sorry.” N.T., 1/13/16, at

131. In short, after reviewing the record, the court concluded the verdict

did not shock its conscience.

      The trial court applied the proper legal standard, provided reasons in

support of its view of the evidence, and reached the dispassionate conclusion

that the jury’s verdict was not against the weight of the evidence. We find

no abuse of discretion.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2017




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