J-A29019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

IJAZ KHOKHAR

                            Appellant                  No. 112 WDA 2016


            Appeal from the Judgment of Sentence December 21, 2015
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0005915-2015


BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                              FILED APRIL 7, 2017

       Ijaz Khokhar appeals from the December 21, 2015 judgment of

sentence entered in the Allegheny County Court of Common Pleas following

his convictions for involuntary deviate sexual intercourse (“IDSI”) – forcible

compulsion, and sexual assault.1 We affirm.

       The trial court summarized the factual history of this matter as

follows:

                At the time of trial [Victim] was a twenty-year old
            nursing student at Duquesne University. In the late hours
            of March 21, 2015 and the early morning hours of March
            22, 2015, [Victim] was drinking with her friends in
            Pittsburgh's South Side at an establishment named Charlie
            Murdoch’s. [Victim] testified that she and her friends took
            a shuttle bus from campus to the South Side where she
            used a fake ID to obtain alcohol. [Victim] testified that
____________________________________________


       1
           18 Pa.C.S. §§ 3123(a)(1) and 3124.1, respectively.
J-A29019-16


       when she left her seat to use the restroom she left her
       cellphone on a bar stool and that she ultimately left
       without her phone at 1:30 a.m. [Victim] stated that she
       left to go to a friend’s house when she realized (to her
       dismay) that she had left her phone behind. Left without a
       way to contact her friends [Victim] returned to Charlie
       Murdoch’s at about 2:30 a.m. in an attempt to find her
       phone, but was denied entry. Upset, intoxicated, and
       crying – [Victim] began walking back towards Duquesne
       when she was approached by two individuals from the
       Hookah Lounge who comforted her and invited her inside.
       [Victim] testified that a man offered to give her a ride back
       to her dorm and she identified [Khokhar] as that
       individual. [Victim] accompanied [Khokhar] to his vehicle
       which she identified as an “old, red, four-door Honda.”
       [Victim] identified on a map routes and locations of the
       incident.

           Shortly after leaving the Hookah Lounge, [Khokhar]
       locked the doors of the vehicle and sped up. [Khokhar]
       unbuckled his pants, exposed his penis, and told [Victim]
       “you are going to have to do something for me.”
       [Khokhar] had [Victim] give directions back to her dorm as
       she performed oral sex on him. Upon arriving at the
       dormitory [Khokhar] unlocked the door and [Victim] got
       out, and by the time she had turned around he had driven
       away. [Victim] stated that she was scared and thought
       “what would happen if I said no because he was driving
       away from where I lived, so I was scared.”           Victim
       explained that she accepted the ride because she was
       scared to walk back to campus as she would have had to
       go through a tunnel where “homeless people” sleep. She
       was unable to get a ride without her cell phone. [Victim]
       ultimately reported the crime eighteen days later. [Victim]
       stated that she reported on that occasion when, after
       jogging with a friend, she saw [Khokhar] opening the
       Hookah Lounge[, and] saw it as a “sign” that she should
       do something.

          The jury heard testimony from Nicholas Kiener a friend
       and fellow student of [Victim]. Mr. Kiener testified that on
       the night of the crime [Victim] visited the dorm room of
       himself and his roommate Scott Zuefle. She revealed to
       them that she had been “sexually harassed by a male” and
       had been forced into performing “oral sex.” He and his

                                   -2-
J-A29019-16


       roommate Mr. Zuefle attempted to calm [Victim], and
       encouraged her to report the crime to the police. Mr.
       Zuefle also testified to the veracity of the encounter
       between his roommate and [Victim].

          Officer Georgette Scafede, a thirty-five-year veteran of
       the City of Pittsburgh Police Force was the desk officer who
       took down [Victim’s] initial complaint. Officer Scafede
       testified that [Victim] was crying and shaking and had to
       stop the interview several times.        Detective [Jeffery]
       Abraham of the Sex Assault Crime and Crisis Office for the
       City of Pittsburgh Bureau of Police was then assigned to
       the case. Detective Abraham stated that [his partner]
       Detective Brust (who did not have any knowledge of the
       case) presented the victim with a photo array containing
       Mr. Khokhar's photo. [Victim] identified Mr. Khokhar in
       the array as the man who assaulted her. On April 21,
       2015 Detective Abraham interviewed [Khokhar] at his
       South Side Hookah Lounge. After informing [Khokhar] of
       his rights concerning the interview Mr. Khokhar waived his
       rights and agreed to speak with Detective Abraham. When
       asked about the allegations he stated he did not remember
       [Victim] and that he never received oral sex from anyone
       but his girlfriend. Mr. Khokhar told Detective Abraham
       that sometimes “females are jealous of his lounge and try
       to catch him the wrong way.”

          After further questioning Mr. Khokhar admitted that he
       did remember [Victim] and she had indeed given him oral
       sex in his vehicle. Mr. Khokhar stated that [Victim] gave
       him oral sex out of gratitude for the ride. Mr. Khokhar told
       Detective Abraham he believed [Victim] was upset that
       evening about her boyfriend. Detective Abraham testified
       that after his interview with Mr. Khokhar, he asked
       [Victim] to identify for him the route taken by herself and
       Mr. Khokhar the evening of the assault. Detective Abraham
       drew the route he took with [Victim] on a map for the jury.
       [Khokhar’s] younger brother, Noel Khokhar, testified he
       was the DJ at the Hookah Lounge on the evening of the
       assault. Noel Khokhar testified that [Khokhar] was in the
       next room kissing “the young lady” and that the situation
       seemed consensual. Noel did not recall seeing [Khokhar]
       leave with [Victim] that evening. When questioned by the
       prosecution as to what the “young lady” looked like the
       only descriptor Noel could offer was that she was “white.”

                                  -3-
J-A29019-16


       He could not recall what she was wearing, if anyone else
       was in the room with them, or why he walked into the side
       room where he saw his brother and the “young lady.”
       Noel testified that he helps his brother at the Hookah
       Lounge but does not receive any compensation for his
       work and that he and [Khokhar] live together. When
       asked why he had not stepped forward[, and] informed
       anyone he saw his brother kissing [Victim], his response
       was “I never thought of [it].”

          [Khokhar] testified that he opened his Hookah Lounge
       in December of 2014. He further testified that he had a
       video surveillance system in place in March of 2015 but the
       footage gets overwritten every two weeks. Mr. Khokhar
       claimed that [Victim] was walking down the street very
       upset and he invited her inside and gave her a bottle of
       water. Mr. Khokhar testified that [Victim] was clearly
       intoxicated, as she smelled of alcohol.         Mr. Khokhar
       claimed that [Victim] claimed she was upset over the loss
       of her cellphone and “something” with her boyfriend, that
       she then cheered up and they began “making out.” T.T.
       p.p. 226. Mr. Khokhar then testified he informed his
       brother that he was going to give [Victim] a ride and would
       return. Mr. Khokhar denied that he ever locked the doors
       of his vehicle while [Victim] was in the car. He then drew
       the route he used to take [Victim] home from the Hookah
       Lounge. Mr. Khokhar then testified that “on 10th Street,
       before Muriel Street and 10th Street, I took my penis out,
       whichever, and we was talking and was kissing and she
       started playing with it and she started giving oral sex.”

          Mr. Khokhar stated than when Detective Abraham
       interviewed him, the night of the assault was, “blurry, like
       I didn't know like what happened that day clearly.” Mr.
       Khokhar stated that only after a month in jail did he
       remember that he “made out” with [Victim] that evening –
       a fact he did not “remember” at the time of his interview
       with Detective Abraham. [Khokhar] testified that [Victim]
       was so intoxicated that she had trouble walking straight.
       He testified that the victim was the one that grabbing him
       and making out with him. On rebuttal, [Victim] testified
       that she was not so intoxicated she could not walk, that
       she did not “make out” with [Khokhar], and she did not
       voluntarily give him oral sex.


                                  -4-
J-A29019-16



Opinion, 5/23/16, at 2-8 (“1925(a) Op.”) (internal citations omitted).

      On September 24, 2015, following a jury trial, Khokhar was convicted

of one count of IDSI and one count of sexual assault.      On December 21,

2015, the trial court sentenced Khokhar to 4 to 8 years’ incarceration,

followed by 5 years’ probation.

      On December 23, 2015, Khokhar filed a post-sentence motion for

reconsideration of the trial court’s denial of his request for bail pending

appeal, which the trial court denied the same day. On January 20, 2016,

Khokhar filed a timely notice of appeal.

      Khokhar raises the following issues on appeal:

         I. WHETHER THE COMMONWEALTH PROVIDED EVIDENCE
         SUFFICIENT TO CONVICT APPELLANT OF VIOLATING 18
         Pa.C.S. § 3123(a)(1) INVOLUNTARY DEVIATE SEXUAL
         INTERCOURSE – FORCIBLE COMPULSION?

         II. WHETHER THE COMMONWEALTH PROVIDED EVIDENCE
         SUFFICIENT TO CONVICT APPELLANT OF VIOLATING 18
         Pa.C.S. § 3124.1 SEXUAL ASSAULT?

         III. WHETHER TRIAL COURT ERRED IN PERMITTING
         WITNESS DETECTIVE JEFFERY ABRAHAM TO PRESENT
         HEARSAY EVIDENCE AND PROVIDE LOCATIONS DERIVED
         FROM SUCH HEARSAY ON A MAP?

Khokhar’s Br. at 5.

      We apply the following standard when reviewing a sufficiency of the

evidence claim: “[W]hether 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.”     Commonwealth v. Lehman, 820 A.2d 766, 772

                                     -5-
J-A29019-16


(Pa.Super. 2003) (quoting Commonwealth v. DiStefano, 782 A.2d 574,

582 (Pa.Super. 2001)). In applying this standard, “we may not weigh the

evidence and substitute our judgment for the fact-finder.” Id. Further, “the

facts and circumstances established by the Commonwealth need not

preclude every possibility of innocence.”        Id.   Moreover, “[a]ny 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.” Id. In applying

the above test, we must evaluate the entire record. Id. Further, “the trier

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.”

Id.

       First, we address Khokhar’s challenge to the sufficiency of the

evidence to support his conviction for IDSI – forcible compulsion.2 Khokhar

contends that his statements to Victim did not demonstrate “forcible

compulsion” but rather “amounted to nothing more than a solicitation for

oral sex.” Khokhar’s Br. at 19.


____________________________________________


       2
        As a threshold matter, we note that Khokhar, in part, discusses 18
Pa.C.S. § 3123(a)(2), which prohibits IDSI “by threat of forcible compulsion
that would prevent resistance by a person of reasonable resolution.”
Because Khokhar was charged and convicted of IDSI pursuant to 18 Pa.C.S.
§ 3123(a)(1), which is IDSI “by forcible compulsion,” we will not address his
section 3121(a)(2) argument.



                                           -6-
J-A29019-16


     A person commits IDSI “‘when he or she engages in deviate sexual

intercourse        with   a   complainant    by   .   .   .   forcible   compulsion.’”

Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa.Super. 2003) (quoting

18 Pa.C.S. § 3123(a)(1)). Deviate sexual intercourse is “sexual intercourse

per os or per anus between human beings.”                 Id. (quoting 18 Pa.C.S. §

3101).    “Forcible       compulsion”   is   “[c]ompulsion    by   use   of physical,

intellectual, moral, emotional or psychological force, either express or

implied.” 18 Pa.C.S. § 3101.

         [T]he “force necessary to support convictions for rape and
         involuntary deviate sexual intercourse need only be such
         as to establish lack of consent and to induce the woman to
         submit without additional resistance . . . The degree of
         force required to constitute rape [or involuntary deviate
         sexual intercourse] is relative and depends upon the facts
         and particular circumstance of the case.”

Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986) (quoting

Commonwealth v. Williams, 439 A.2d 765, 768 (Pa.Super. 1982)).

         When forcible compulsion (used or threatened) consists of
         moral, phychological [sic] or intellectual force, the force
         may be less tangible but is not less susceptible of proof,
         and the critical circumstances and evidence here will be
         those which tend to prove or disprove compulsion or lack
         of consent, i.e. that such force was used to compel a
         person to engage in sexual intercourse against that
         person’s will.14
              14
                 It is not necessary to prove that the victim actually
              resisted in order to prove that the act of sexual
              intercourse was against the victim's will and/or
              without consent. Section 3107 provides that the
              “victim need not resist the actor in prosecutions
              under” chapter 31 and makes it clear that lack of
              consent is not synonymous with lack of resistance.
              18 Pa.C.S.A. § 3107.

                                         -7-
J-A29019-16


Id. at 1226-27 (internal quotation marks omitted).

      At trial, Victim testified that when Khokhar made a right turn instead

of a left turn to return to Duquesne University, she was scared.           N.T.,

9/24/15, at 55-56.      Similarly, when Khokhar locked the doors of the car,

Victim “felt so helpless and scared.” Id. During the drive, Khokhar started

unbuckling his pants, which again made Victim feel “scared and helpless.”

Id. at 56-57.       Khokhar also told Victim, “[Y]ou’re going to have to do

something for me” and later, while touching himself and motioning to Victim

to give him oral sex, said, “[Y]ou better get at it.”    Id. at 57-58.   Victim

testified that she was not flirting with Khokhar and had not discussed

anything sexual with him.      Id. at 60-61.    In addition, Victim testified as

follows:

           Q. So at any point during your ride back to Duquesne with
           this individual, did you want to give him oral sex?

           A. No.

           Q. Did he ask you if it was okay for you to give him oral
           sex?

           A. No.

           Q. And when he said these things to you, you better –
           what exactly did he say?

           A. He said, you better go do something for me.

           Q. Did he say anything after that?

           A. No.

           Q. And when he said these things to you, did you think
           that you had any way to say no?



                                      -8-
J-A29019-16


           A. No. I was terrified because the thought that came in
           my mind was, what would happen if I said no because he
           was driving away from where I lived, so I was scared.

Id. at 63.

       Accordingly, we conclude that the evidence presented at trial was

sufficient to sustain Khokhar’s conviction for IDSI, such that Victim was

compelled to engage in sexual intercourse against her will through forcible

compulsion.3 That Victim allegedly “did not make an affirmative statement

that she had no interest in [Khokhar’s] sexual advances,” Khokhar’s Br. at

18, is irrelevant.

       Next, we address Khokhar’s challenge to the sufficiency of the

evidence to support his sexual assault conviction.     “A person commits a

felony of the second degree when that person engages in sexual intercourse

or deviate sexual intercourse with a complainant without the complainant's

consent.” 18 Pa.C.S. § 3124.1. “Resistance to sexual assault is not required
____________________________________________


       3
         Despite the language of section 3101 that includes intellectual,
moral, and emotional force within the definition of forcible compulsion,
Khokhar suggests that forcible compulsion may only be met by physical
and/or psychological force. See Khokhar’s Br. at 16-18. Khokhar relies on
Commonwealth v. Berkowitz, 641 A.2d 1161, 1164 (Pa. 1994), for the
proposition 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. The obvious flaw in this
argument is that “[l]ess than one year after the Berkowitz decision, the
legislature amended the sexual assault law by adding a definition for forcible
compulsion.” See Commonwealth v. Fischer, 721 A.2d 1111, 1116
(Pa.Super. 1998) (noting that the legislature thus added a “broader
definition” of forcible compulsion than set out in Berkowitz). Accordingly,
in the instant matter, Berkowitz does not control.




                                           -9-
J-A29019-16


to sustain a conviction.” Commonwealth v. Smith, 863 A.2d 1172, 1176

(Pa.Super. 2004).        “[I]t is for    the fact finder to make credibility

determinations, and the finder of fact may believe all, part, or none of a

witness’s testimony.” Commonwealth v. Andrulewicz, 911 A.2d 162, 166

(Pa.Super. 2006). As this Court has recognized:

           [T]he uncorroborated testimony of a sexual assault victim,
           if believed by the trier of fact, is sufficient to convict a
           defendant, despite contrary evidence from defense
           witnesses. If the factfinder reasonably could have
           determined from the evidence adduced that all of the
           necessary elements of the crime were established, then
           that evidence will be deemed sufficient to support the
           verdict.

Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa.Super. 2006)

(citations and quotation marks omitted).

      As the trial court stated, the jury did not believe Khokhar’s version of

events.    1925(a) Op. at 10.    The jury instead credited Victim’s testimony

and reasonably could have determined that the Commonwealth established

all of the necessary elements of the crime, including that Victim did not

consent.     Accordingly, the evidence was sufficient to support Khokhar’s

sexual assault conviction.

      Finally, we address Khokhar’s contention that the trial court erred in

admitting hearsay evidence during the testimony of Detective Abraham. In

particular, Detective Abraham described and drew the route taken by

Khokhar and Victim the night of the crime, based on information Victim had




                                        - 10 -
J-A29019-16


provided to him during a ride along.      The trial court overruled Khokhar’s

hearsay objection.

      “Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Commonwealth v. McCrae, 832 A.2d 1026, 1034 (Pa.

2003); see Pa.R.E. 801(c). Hearsay is not admissible “except as provided

by the Pennsylvania Rules of Evidence, [by other rules prescribed by the

Supreme Court of Pennsylvania], or by statute.”         McCrae, 832 A.2d at

1034; see Pa.R.E. 802.

      After reviewing the trial transcript, we conclude that the trial court

erred in admitting Detective Abraham’s testimony regarding the route taken

by Khokhar and Victim. In its 1925(a) opinion, the trial court concluded that

Detective Abraham’s testimony regarding Victim’s out-of-court statements

was admissible for two reasons:        (1) for the statements’ effect on the

listener; and (2) as prior consistent statements of Victim. 1925(a). Op. at

10-11. Neither basis supports the admission of the statements.

      When an out-of-court statement is used to show its effect on the

listener, and not for the truth of the matter asserted, it is non-hearsay. See

Schmalz v. Manufacturers & Traders Trust Co., 67 A.3d 800, 803 n.3

(Pa.Super. 2013). Similarly, it is well-established that “certain out-of-court

statements offered to explain a course of police conduct are admissible.

Such statements do not constitute hearsay since they are not offered for the


                                     - 11 -
J-A29019-16


truth of the matters asserted; rather, they are offered merely to show the

information upon which police acted.” Commonwealth v. Palsa, 555 A.2d

808, 810 (Pa. 1989).          The admission of prior consistent statements is

governed by Pennsylvania Rule of Evidence 613(c),4 which under certain

circumstances allows the admission of prior consistent statements to

rehabilitate the witness’s credibility.

       Based on our review of Detective Abraham’s trial testimony, see N.T.,

9/23/15, at 164-66, we conclude that Victim’s out-of-court statements were

offered for their truth, that is, to prove Khokhar’s route that night, rather

than for the effect these statements had on Detective Abraham or to

properly bolster Victim’s credibility. The conduct of Detective Abraham that

the statements purportedly affected – his re-tracing of the route described
____________________________________________


       4
           Rule 613(c) reads as follows:

            (c) Witness’s Prior Consistent Statement to Rehabilitate.
            Evidence of a witness’s prior consistent statement is
            admissible to rehabilitate the witness’s credibility if the
            opposing party is given an opportunity to cross-examine
            the witness about the statement and the statement is
            offered to rebut an express or implied charge of:

                 (1)     fabrication, bias, improper influence or
               motive, or faulty memory and the statement was
               made before that which has been charged existed or
               arose; or

                 (2) having made a prior inconsistent statement,
               which the witness has denied or explained, and the
               consistent statement supports the witness’s denial or
               explanation.



                                          - 12 -
J-A29019-16


by Victim – was only relevant as corroboration of the statements

themselves.     And the introduction of Victim’s out-of-court statements

satisfied neither prong of Rule 613(c)’s exception for prior consistent

statements. Accordingly, this portion of Detective Abraham’s testimony was

hearsay and should not have been admitted.

      We conclude, however, that the error was harmless.           “The harmless

error doctrine, as adopted in Pennsylvania, reflects the reality that the

accused is entitled to a fair trial, not a perfect trial.”    Commonwealth v.

Drummond, 775 A.2d 849, 853 (Pa.Super. 2001).

         The Commonwealth bears the burden of establishing the
         harmlessness of the error. This burden is satisfied when
         the Commonwealth is able to show that: (1) the error did
         not prejudice the defendant or the prejudice was de
         minimis; or (2) the erroneously admitted evidence was
         merely cumulative of other untainted evidence which was
         substantially similar to the erroneously admitted evidence;
         or (3) the properly admitted and uncontradicted evidence
         of guilt was so overwhelming and the prejudicial effect of
         the error so insignificant by comparison that the error
         could not have contributed to the verdict.

Commonwealth v. Levanduski, 907 A.2d 3, 21 (Pa.Super. 2006).                  We

conclude that the trial court’s error did not so “confuse the jury” as Khokhar

argues, Khokhar’s Br. at 21, as to prejudice Khokhar; and even if it did, any

such prejudice was de minimis.

      Khokhar argues that the route described by Detective Abraham was

“inaccurate, and demonstrated a route significantly more off course that

[sic] the Complainant’s expected route of travel.”           Khokhar’s Br. at 21.



                                     - 13 -
J-A29019-16


Khokhar further argues that Detective Abraham’s testimony “was used in

effort [sic] to characterize Appellant as having no intention to drive towards

Duquesne University that evening.”         Id.   These arguments do not merit

relief.     The relevance of the route taken by Khokhar was its impact on

Victim’s perception of the danger posed by Khokhar.         Victim testified that

Khokhar made a right turn instead of a left turn when he pulled out of the

parking lot and locked the car doors, which made her feel helpless and

scared. She also testified that Khokhar drove very fast, went the wrong way

down a one-way street at one point, and did not stop at stop signs. While

Khokhar strongly contested certain aspects of Victim’s testimony concerning

his driving, N.T., 9/24/15, at 234, 255, 256 (testifying that he did not lock

the doors, did not speed, did not go the wrong way down a one-way street,

and did not ignore stop signs), he himself admitted turning right rather than

left out of the parking lot, id. at 234-35.      Khokhar’s claim on appeal that

Detective Abraham’s testimony about the route was central to the

Commonwealth’s case is belied by the fact that neither party referenced that

testimony in closing arguments.        The prejudicial effect, if any, of the

admission of Detective Abraham’s hearsay testimony was insignificant.

          Judgment of sentence affirmed.




                                      - 14 -
J-A29019-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2017




                          - 15 -
