J-A06033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ROBERT M. CALLAHAN                         :
                                               :
                      Appellant                :   No. 629 EDA 2016

           Appeal from the Judgment of Sentence September 2, 2015
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0000141-2015


BEFORE:      PANELLA, J., SHOGAN, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                                  FILED JUNE 13, 2017

        Appellant, Robert M. Callahan, appeals from the judgment of sentence

of three to six years of incarceration and a concurrent fourteen years of

probation with Megan’s Law registration, imposed on September 2, 2015,

following a jury trial resulting in his conviction for rape by forcible

compulsion, aggravated indecent assault by forcible compulsion, and sexual

assault.1 We affirm.

        The trial court summarized the facts of the case as follows:

        At the time of the events on trial, the victim was 54 years old
        and lived in Souderton, Montgomery County. She worked as a
        part-time employee at a Wa[w]a store in Horsham, Montgomery
        County. Her regular shift at the Wa[w]a was 6:00 a.m. to 2:00
        to 3:00 p.m. [Appellant] resided in Warminster Township, Bucks
        County. The victim and [Appellant] had dated on and off for
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1
    18 Pa.C.S.§§ 3121(a)(1), 3125(a)(2), 3124.1, respectively.
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     approximately three years and had what the victim described as
     a “rocky” relationship.

     On November 15, 2014, the victim arose at 4:30 a.m. and
     worked from 6:00 a.m. to 2:30 p.m. at the Wawa. At the end of
     her shift, the victim discovered that [Appellant] had left her
     voice and text messages on her cell phone asking her to call
     him. She later spoke to [Appellant] and agreed to meet at his
     home. While they were at [Appellant]’s residence, the victim
     and [Appellant] engaged in consensual sexual intercourse.
     Afterward, the victim told [Appellant] that she wanted to sleep
     because she was tired and had to be up early the next morning
     for work. In response, [Appellant] told her that she “was going
     to f--- him all night long.” The victim testified that [Appellant]
     then used physical force to have sex with her. The victim
     testified that, although she yelled and screamed and told
     [Appellant] to stop, [Appellant] ignored her and forced his penis
     into her vagina. [Appellant], who was aware that the victim had
     previously suffered a broken neck, pinned the victim to the bed
     and wrapped both hands around her neck, squeezing and
     twisting her neck as he did so. [Appellant] told the victim that
     he was going to hurt her. In fear, the victim cried out for her
     deceased mother. [Appellant] responded by punching her with a
     closed fist in the face. The victim continued to scream and cry
     and told [Appellant] to get off of her. When he did not do so,
     she punched him, scratched him and bit his face, all to no avail.

     After the assault, the victim, unclothed, grabbed her bag and
     fled the residence. She was able to retrieve some clothes and
     her cellphone when [Appellant] threw them out the back door of
     the residence. The victim called her daughter from her car. She
     then drove to her daughter’s residence in Willow Grove,
     Montgomery County, where she lived with her fiancé. At trial,
     the victim’s daughter and the daughter’s fiancé testified that the
     victim was crying and hysterical when she called and that she
     was still crying when she arrived at their residence. They noted
     that she was “pretty banged up” and had marks on her neck and
     eye. The victim was then taken to Abington Memorial Hospital
     where she underwent a sexual assault examination. At that
     time, the victim was described as disheveled and distraught.
     The examination revealed an abrasion/bruise on her left cheek,
     bruising on the right side of her neck, bruising on the left side of
     her neck/mandible, bruising on her right chest, bruising on her
     right hand in the area of her wrist, bruising on left arm, bruising
     on the inside of both thighs, and an abrasion on the right thigh.

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     Photographs of the injuries were admitted at trial. The victim
     reported the incident to the police while she was at the hospital.

     The following day, November 16, 2014, investigators from the
     Bucks County District Attorney's Office and the Warminster
     Township     Police  Department     intercepted    a   telephone
     conversation between the victim and [Appellant] with the
     victim's consent in accordance with the provision of the
     Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.
     §§ 5701 to 5782.23. Throughout that conversation, the victim
     accused [Appellant] of rape. [Appellant] made several
     incriminating statements. He told the victim, "I was begging you
     and you wouldn't give me." He stated, "I obviously didn't wanna
     take your no for an answer, I guess.” When he was asked "Why
     did you hold me down like that?" [Appellant] responded, "I don't
     know why." On multiple occasions, he told the victim that he was
     sorry.

     [Appellant] was arrested on November 17, 2015. At that time,
     Sergeant Carol Battistini of the Warminster Township Police
     Department noted that [Appellant] had fresh scratch marks on
     the left side and the right of his face and an abrasion on the
     back of his right hand.      Photographs of the injuries were
     admitted at trial.

     On that same date, [Appellant] gave a statement to Sergeant
     Battistini. During that statement, [Appellant] stated that he
     could not remember if he told the victim he wanted to have sex
     again. At trial, [Appellant] testified that he told the victim he
     wanted to "do it all night long" as the victim reported. In his
     statement, [Appellant] could not explain how the victim
     sustained her injuries. Nor could he explain the scratches to his
     face. [Appellant] told Sergeant Battistini that he assumed the
     victim scratched his face. At trial, [Appellant] explained the
     injuries as follows: The scratches to one side of his face were
     caused when the victim, for no apparent reason, slapped his
     face. The scratches to the other side of his face were caused
     when the victim bit his face. The victim's wrist injury was
     caused when he grabbed the victim by the wrist and pushed her
     down on the bed, restraining her by placing his arm across her
     chest. The victim's face was injured when his head struck her
     face while he was in the process of restraining her. [Appellant]
     could not explain the injury to the victim's neck.         In his
     statement to police, [Appellant] admitted that he knew that the
     victim was tired, wanted to go to sleep and did not want to

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J-A06033-17


     engage in sexual intercourse a second time. He admitted that
     he and the victim had a "fight" as a result and that she left
     because she was "mad" at him. At trial, [Appellant] admitted
     that during the "fight" he used physical force against the victim
     and that the victim screamed for her mother during that
     struggle. Finally, while he was speaking to Sergeant Battistini,
     [Appellant] mentioned that he spoke to the victim by phone the
     morning after the incident. Unware of the fact that investigators
     were recording the conversation, [Appellant] lied about the
     content of that conversation, denying that the victim accused
     him of having sex against her will.

Trial Court Opinion, 5/16/16, at 1-5 (footnotes omitted).

     In April 2015, a jury trial commenced, after which Appellant was found

guilty of the aforementioned crimes. He was sentenced as outlined above.

Appellant timely filed a post sentence motion, which was denied by the trial

court in February 2016. Appellant timely appealed and filed a court-ordered

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The trial court issued a responsive statement.

     Appellant raises the following issues for review:

     A. Did the trial court err by failing to properly instruct the jury
        on the law needed to determine the issues, mens rea,
        consent, mistake of fact, credibility, and totality of the
        circumstances?

     B. Did the trial court err in finding that there was sufficient
        evidence of forcible compulsion, mens rea, and to negate the
        defenses of consent and mistake of fact?

     C. Did the trial court err in determining that the jury’s verdict
        was not against the weight of the evidence of forcible
        compulsion, mens rea, and to negate the defenses of consent,
        and mistake of fact?

     D. Did the trial court err in allowing Appellant’s confession to be
        played three times during deliberations while also precluding
        contextual and contradictory evidence resulting in an abuse of

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J-A06033-17


          discretion, prejudice to the defense, disparate treatment of
          evidence, and skewed presentation to the jury?

Appellant’s Brief at 5-6.

       Appellant’s first contention is that the trial court failed to instruct the

jury properly. According to Appellant, the court (1) “eliminate[d] the mens

rea requirement” necessary to establish culpability; (2) refused to instruct

the jury on his asserted defenses, including consent and mistake of fact; and

(3) failed to instruct the jury that it must consider the totality of the

circumstances surrounding the parties’ relationship. Appellant’s Brief at 23-

36.2

       Our standard of review is well-settled:

       When reviewing a challenge to jury instructions, the reviewing
       court must consider the charge as a whole to determine if the
       charge was inadequate, erroneous, or prejudicial. The trial court
       has broad discretion in phrasing its instructions, and may choose
       its own wording so long as the law is clearly, adequately, and
       accurately presented the jury for its consideration. A new trial is
       required on account of an erroneous jury instruction only if the
       instruction under review contained fundamental error, misled, or
       confused the jury.

Commonwealth v. Miskovitch, 64 A.3d 672, 684 (Pa. Super. 2013). “A

trial court has broad discretion in phrasing its jury instructions and is not


____________________________________________


2
 Appellant’s brief is rambling, in places nonsensical and nearly unintelligible;
however we attempt to decipher Appellant’s claim. See Commonwealth v.
Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008) (waiver results when
appellant fails to properly develop an issue or cite to authority to support his
contention in his appellate brief).



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J-A06033-17



required to read the Standard Jury Instructions verbatim.” Commonwealth

v. Pope, 14 A.3d 139, 144 n.1 (Pa. Super. 2011). “Therefore, a charge will

be found adequate unless the issues are not made clear to the jury or the

jury was palpably misled by what the trial judge said.” Commonwealth v.

Grimes, 982 A.2d 559, 564 (Pa. Super. 2009).

      According to Appellant, the trial court erred in denying his request for

defense instructions regarding consent and mistake of fact.         Appellant’s

claim regarding consent is without merit. The trial court clearly instructed

the jury regarding consent, instructing as follows:

      Consent, you must decide consent based on what occurred on
      the occasion that the rape - - the rape charge deals with.
      Because you consent on one occasion does not mean that you
      consented on another occasion.

Notes of Testimony, 4/16/15 at 42-43.

      Again the trial court issued the following instruction regarding consent:

      [S]exual assault is committed when the person does not
      consent. Consent is an act of free will. Active opposition is not
      a prerequisite to finding the victim did not consent. Again, that
      means that resistance is not required - - failure to resist is not
      necessarily evidence of consent.

Id. at 46. As such, Appellant’s claim is without merit.

      Appellant further asserts that the trial court erred in denying his

request for a mens rea jury instruction as it relates to his mistake of fact

defense.   Specifically, Appellant next sought a jury instruction applying

recklessness to the forcible compulsion crimes, Appellant argued:



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      The Court:    You are saying there should be recklessness on
      rape?

                                     ...

      Mr. Hone: I believe it is tied into my mistake of fact defense. I
      believe there is a mistake of fact and consent that has to be - -

      The Court: Okay, Okay. The mistake of fact I think I am bound
      by the Superior Court case of 2000. That is why I am not giving
      it.

      Mr. Hone: Okay

      The Court: The other is lack of consent has to be known or
      recklessly ignored. Force is something that is being applied by
      the defendant, so he doesn’t - - I don’t know that there is any
      element that - - what mens rea element am I applying
      recklessness to? Or is it just mistake of fact?

      Mr. Hone: I think it relates because it relates to the mistake of
      fact.

      The Court: Okay.

Notes of Testimony, 4/16/15 at 57-58.

      The trial court properly denied Appellant’s request, as mistake of fact

is not a defense to the forcible compulsion crimes. Mistake of fact is defined

as follows:

      Ignorance or mistake as to a matter of fact, for which there is
      reasonable explanation or excuse, is a defense if:

         (1)   The ignorance or mistake negates the intent,
               knowledge, belief, recklessness, or negligence
               required to establish a material element of the
               offense; or

         (2)   The law provides that the state of mind established
               by such ignorance or mistake constitutes a defense.

18 Pa.C.S. § 304.



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J-A06033-17



        However, this Court has long held that mistake of fact is not a defense

to rape.    See Commonwealth v. Williams, 439 A.2d 765 (Pa. Super.

1982) (holding that the defendant’s state of mind is not a defense as to the

crime of rape), see also Commonwealth v. Farmer, 758 A.2d 173 (Pa.

Super. 2000) (applying Williams in an ineffective assistance of counsel

claim).

        Appellant further claims that the trial court did not allow the jury to

consider the totality of the circumstances. This claim is without merit. The

trial   court   specifically   instructed    the   jury   to   “consider   all   of   the

circumstances in deciding whether or not the decision to engage in sexual

intercourse was overcome by forcible compulsion, whether or not the victim

consented.”      Notes of Testimony, 4/16/15, at 46.            Appellant appears to

conflate two distinct considerations.        The jury is permitted to consider the

nature of the parties’ prior, consensual conduct; however, a jury is never

permitted to infer a victim’s consent to engage in similar conduct from prior

examples of consent. See Commonwealth v. Johnson, 638 A.2d 940 (Pa.

1994) (holding that the purpose of the Rape Shield Law is to prevent a

sexual assault trial from degenerating into an attack upon the victim’s

reputation for chastity).

        Appellant suggests that these errors cumulatively result in a violation

of his right to due process. The claim is waived, as Appellant failed to raise

a due process claim in his 1925(b) statement.              See Commonwealth v.

Lord, 719 A.2d 306 (Pa. 1998) (“Any issues not raised in a 1925(b)

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statement will be deemed waived.”). Nevertheless, in light of our disposition

of each individual claim, Appellant’s cumulative claim is without merit. 3

       Appellant’s second issue is that the evidence was insufficient to sustain

his conviction for rape by forcible compulsion under 18 Pa.C.S.A. §

3121(a)(1). Specifically, Appellant contends there was insufficient evidence

to establish the element of forcible compulsion.4

       The standard of review for a challenge to the sufficiency of evidence is

de novo, as it presents a question of law.       Commonwealth v. Ratsamy,

934 A.2d 1233, 1235 (Pa. 2007).

       The critical inquiry on review of the sufficiency of the evidence to
       support a criminal conviction . . . does not require a court to ask
       itself whether it believes that the evidence at the trial
       established guilt beyond a reasonable doubt. Instead, it must
       determine simply whether the evidence believed by the fact-
       finder was sufficient to support the verdict.

Id. at 1235-36 (emphasis in original) (internal punctuation modified;

citation omitted).      “When reviewing the sufficiency of the evidence, an

appellate court must determine whether the evidence, and all reasonable
____________________________________________


3
  Appellant also asserts that the trial court abused its discretion in permitting
the Commonwealth to withdraw charges for certain, lesser included offenses.
Appellant’s Brief at 28. This claim was not preserved for appellate review in
Appellant’s Pa.R.A.P. 1925(b) statement. Accordingly, we deem it waived.
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).
4
  In this context, Appellant also challenges the credibility of the victim’s
testimony. See Appellant’s Brief at 40. Such a claim is more appropriately
directed to the weight of the evidence, not its sufficiency. See, e.g.,
Commonwealth v. Sullivan, 864 A.2d 1246, 1249-50 (Pa. Super. 2004).



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J-A06033-17



inferences deducible from that, viewed in the light most favorable to the

Commonwealth as verdict winner, are sufficient to establish all of the

elements of the offense beyond a reasonable doubt.” Id. at 1237 (citation

omitted).

      Appellant was convicted of rape by forcible compulsion which provides,

in relevant part, that “[a] person commits a felony of the first degree when

the person engages in sexual intercourse with a complainant: (1) [b]y

forcible compulsion.”   18 Pa.C.S.A. §3121(a)(1).      “[P]enetration, however

slight,” of the female genitals with the penis is necessary to establish the

element of sexual intercourse.     18. Pa.C.S.A. §3101.      “Something more”

than mere lack of consent is necessary to establish “forcible compulsion.”

Commonwealth v. Smolko, 666 A.2d 672, 676 (Pa. Super. 1995);

Commonwealth v. Riley, 643 A.2d 1090 (Pa. Super. 1994).                 Forcible

compulsion is a determination made in each case based on the totality of the

circumstances that have been presented to the fact-finder.        Smolko, 666

A.2d at 675.

      Here, Appellant concedes that he engaged in sexual intercourse with

C.F.; however, he contends that the Commonwealth failed to establish

forcible compulsion and lack of consent. Appellant’s Brief at 39.

      In rejecting Appellant’s sufficiency of the evidence claim, the trial court

determined:

      The evidence in the instant case was clearly sufficient to
      establish the element of forcible compulsion and lack of consent.
      Viewed in the light most favorable to the Commonwealth, the

                                     - 10 -
J-A06033-17


      evidence established that [Appellant] held the victim down, that
      he strangled her and that he punched her in the face. The
      victim made her lack of consent verbally known by screaming,
      yelling, telling [Appellant] to stop and telling him to “get off” of
      her.    She made her lack of consent physically known by
      punching, scratching and biting him.”

Trial Court Opinion, at 6-7.

      Appellant argues that his past sexual history with the victim negates

the finding of forcible compulsion.    Appellant’s Brief at 39.    We disagree.

The mere fact that the victim consented to sexual intercourse earlier that

evening does not establish blanket consent for future sexual encounters. In

the instant case, there are clearly two separate sexual encounters, the first

encounter was consensual, the second encounter was not. It is evident that

the victim withdrew her consent and the subsequent sexual encounter

formed the basis for the rape conviction.

      Appellant relies on Commonwealth v. Berkowitz, 641 A.2d 1161

(Pa. 1994), in support of his argument.         In Berkowitz, the parties were

both college students, and the victim entered a dormitory room looking for a

friend. Id. at 1163. The victim instead found the defendant, and the two

engaged in sexual intercourse.        Id.      The defendant was subsequently

charged with rape and indecent assault.           Id.   The victim testified that

defendant “put [her] down on the bed” and described it as “kind of like a

push”. Id. at 1164. This Court reversed the defendant’s rape conviction,

holding the complainant failed to establish the accused compelled her to

engage in sexual intercourse as required under Section 3121.           Id. 1165.


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J-A06033-17



The decision was upheld by the Pennsylvania Supreme Court who opined,

“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.

      The incident in Berkowitz is not analogous to this case. Here, there

is a clear showing of physical force.

      [Appellant], who was aware that the victim had previously
      suffered a broken neck, pinned the victim to the bed and
      wrapped both hands around her neck, squeezing and twisting
      her neck as he did so. [Appellant] told the victim that he was
      going to hurt her. In fear, the victim cried out for her deceased
      mother. [Appellant] responded by punching her with a closed
      fist in the face. The victim continued to scream and cry and told
      [Appellant] to get off of her. When he did not do so, she
      punched him, scratched him and bit his face, all to no avail.

Trial Court Opinion at 2, footnote omitted.

      The evidence of Appellant’s physical force used in the rape, which

resulted in documented bodily injuries to the victim, was more than

sufficient   to   prove   forcible   compulsion.          18   Pa.C.S.A.   §3121;

Commonwealth v. Riley, 643 A.2d 1090 (Pa. Super. 1994).

      Appellant next asserts that the verdict was against the weight of the

evidence.    See Appellant’s Brief at 41.        Appellant asserts that he and the

victim had a long-standing history of rough, consensual intercourse.           Id.

Appellant also challenges the victim’s credibility. Id.

      The law regarding weight of the evidence claims is well-settled. “The

weight of the evidence is a matter exclusively for the finder of fact, who is


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free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711,

723 (Pa. Super. 2015) (citing Commonwealth v. Forbes, 867 A.2d 1268,

1273-74 (Pa. Super. 2005)).       A new trial is not warranted because of a

“mere conflict in the testimony”. Id. (citing Commonwealth v. Bruce, 916

A.2d 657, 665 (2007)). On appeal, “our purview is extremely limited and is

confined to whether the trial court abused its discretion in finding that the

jury verdict did not shock its conscience. Thus, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.” Commonwealth v. Knox, 50 A.3d 732, 738 (Pa.

Super. 2012).

      After reviewing the record and trial transcripts, we conclude the trial

court did not abuse its discretion in finding Appellant’s convictions were

supported by the weight of the evidence.                The jury made the credibility

determinations and was permitted to believe all, part, or none of the

testimony and evidence. Although Appellant may believe the victim was not

a   credible   witness,   we   cannot    and     will    not   disturb   the   credibility

determinations made by the jury.

      In its Rule 1925(a) opinion, the trial court fully and satisfactorily

explains why Appellant’s weight of the evidence claim is unsuccessful:

      In support of his challenge to the weight of the evidence, the
      [Appellant] relies on the same facts and circumstances he
      advanced in support of his challenge to the sufficiency of the

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      evidence, i.e. the prior sexual relationship between the parties,
      inconsistent statements of the victim, the alleged brevity of the
      incident and the lack of vaginal trauma.          Those facts and
      circumstances, considered alone or considered together, are not
      sufficient to overturn the jury’s verdict for the reasons set forth
      above. In addition, a jury verdict cannot be overturned based
      on a claim the verdict is against the evidence because of a “mere
      conflict in the testimony.” Such a claim must have a stronger
      foundation than a reassessment of the credibility of witnesses.
      Moreover, the [Appellant]’s argument as to the lack of vaginal
      trauma does not entitle him to relief since that evidence does
      not exculpate him. The jury was, therefore, free to reject the
      [Appellant]’s arguments as to that evidence.

Trial Court Opinion at 9-10.

      For the reasons given by the trial court, we conclude that it properly

exercised its discretion in denying Appellant’s challenge to the weight of the

evidence.

      In his final claim, Appellant asserts that the trial court erred in allowing

the jury to hear during its deliberations the recorded telephone conversation

between the victim and Appellant. Appellant’s Brief at 45. Appellant’s trial

counsel failed to object to having the recording played back to the jury.

Furthermore, when the trial court specifically asked counsel if he had an

objection, counsel responded “no problem.” Notes of Testimony 4/17/16 at

4.   Thus, this issue is waived and cannot be raised on appeal.              See

Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he

failure to make a timely and specific objection before the trial court at the

appropriate stage of the proceedings will result in waiver of the issue.”);

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”)

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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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