J-S89024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ALFONSO BODDIE

                            Appellant                  No. 3734 EDA 2015


             Appeal from the Judgment of Sentence October 15, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0000248-2015


BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                         FILED FEBRUARY 28, 2017

       Alfonso Boddie appeals from the October 15, 2015 judgment of

sentence entered in the Philadelphia County Court of Common Pleas.         We

affirm.

       The trial court set forth the procedural and factual history of this

matter as follows:

               On October 26, 2014, [Boddie] was arrested and
            charged with inter-alia, 1) Aggravated Assault pursuant to
            18 Pa.C.S.A. §2702(a); 2) Rape by Forcible Compulsion
            pursuant to 18 Pa.C.S.A. §3121(a)(1); 3) Indecent Assault
            pursuant to 18 Pa.C.S.A. §3126(a)(1); 4) Sexual Assault
            pursuant to 18 Pa.C.S.A. §3124.1; 5) Unlawful Restraint
            /Serious Bodily Injury pursuant to 18 Pa.C.S.A.
            §2902(a)(1); 6) Recklessly Endangering Another Person

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
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       pursuant to 18 Pa.C.S.A. §2705(a); and 7)               False
       Imprisonment pursuant to 18 Pa.C.S.A. §2903(a).

                                    ...

          [At Boddie’s bench trial, the victim] testified that in the
       early morning hours of October 25, 2014, at approximately
       12:30 a.m., she left her apartment, in the City and County
       of Philadelphia, intending to go to her brother’s house in
       another part of the city. She left after an argument with
       her husband and without any money. (N.T., 6/26/15, pgs.
       26, 27, 28)      As she approached the 4400 block of
       Frankford Ave, she encountered a woman who offered to
       help her find a ride and who, a short while later,
       introduced her to [Boddie] who offered to take her to her
       brother’s house. (N.T., 6/26/15, pgs. 25, 26, 28, 48)

           [Boddie] appeared to be respectful and to be non-
       threatening, so [the victim] accompanied [Boddie] up to
       his apartment, where they talked and she drank a beer.
       (N.T., 6/26/15, pgs. 26, 32, 50) At approximately 2:00
       a.m. they drove to two separate locations looking to
       purchase more beer. They returned at approximately 3:30
       a.m. with a few beers and a water bottle containing a pink
       liquid. She went up to [Boddie]’s apartment and drank
       more beer. (N.T., 6/26/15, pgs. 26, 31, 52)

          A short while after returning, [Boddie] became angry
       when he couldn’t find the water bottle. Attempting to calm
       him down[, the victim] turned on the radio, to no avail.
       She testified that at this point [Boddie] grabbed her and
       started pulling her towards the bedroom. Stalling for time,
       she persuaded him the let her go into the kitchen to wash
       her hands where she found a knife which she put in her
       pants and returned to the couch. (N.T., 6/26/15, pgs. 33,
       34, 59) She testified that [Boddie] then pulled her onto
       the bed, she told him; “No, I don't want to do this.” (N.T.,
       6/26/15, pgs. 36) He then started to remove her clothes
       and “put his penis in [her].”       She also testified that
       although she attempted to fight [Boddie] off, he got
       further up on her and started to choke her in an attempt to
       further subdue her. (N.T., 6/26/15, pgs. 35, 36, 38, 62,
       74, 75, 80, 81)

         She told [Boddie] that she had to go to the bathroom,
       and instead she fled down the stairs. [Boddie], grabbing

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         her by her hair, caught her at the top of the stairs,
         whereupon, she turned around and started stabbing him.
         When [Boddie] loosened his grip, she dropped the knife
         and fled naked out into the street. (N.T., 6/26/15, pgs.
         37, 39, 40, 63, 81)

            Mr. Thomas Redstone-Brophy testified that he is
         employed as a sexual assault nurse examiner at the
         Philadelphia Sexual Assault Response Center and, that as
         part of his duties, he examined [the victim] that same day,
         at approximately 12:45 p.m. (N.T., 6/26/15, pgs. 88, 89)
         As part of his examination, he took pictures of her neck
         showing bruising, which he testified was consistent with
         strangulation. (N.T., 6/26/15, pgs. 92 -93)

                                     ...

            At the conclusion of his bench trial on June 26, 2015,
         [Boddie] was found guilty on charges of Rape, Indecent
         Assault, Sexual Assault and Unlawful Restraint. [Boddie]
         was found not guilty of the remaining charges.            On
         October 15, 2015, [Boddie] was sentenced to a period of
         confinement in a state correctional facility of 7 to 15 years
         on the charge of Rape. Having merged, no further penalty
         was imposed on the charges of Indecent Assault and
         Sexual Assault. The court imposed a sentence of no
         further penalty on the charge of Unlawful Restraint.

            On October 25, 2015, [Boddie] timely filed a Motion for
         Post Sentence Relief pursuant to the Pennsylvania Rules of
         Criminal Procedure, Pa.R.Crim.P. 720(A)(1), seeking an
         arrest of judgement [sic] and a new trial[.] Pa.R.Crim.P.
         720(B)(1)(a)(ii) and (iv). The Court, after a hearing,
         denied [Boddie]’s motion on November 25, 2015.

Opinion, 7/22/16, at 1-4 (“1925(a) Op.”).     On December 3, 2015, Boddie

filed a timely notice of appeal.




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       Boddie raises two issues on appeal:1

       1. Was [Boddie] deprived of his right to confront a witness
          against him, as secured by the Sixth Amendment to the
          United States Constitution as well as Article I, Section 9 of
          the Pennsylvania Constitution, when the trial court ordered
          trial counsel to cease a portion of his cross examination of
          the Commonwealth’s primary witness under threat of
          contempt?

       2. Was the evidence . . . insufficient to convict [Boddie] of
          unlawful restraint, where the Commonwealth failed to offer
          any evidence that the complaining witness was exposed to
          a risk of serious bodily injury?

Boddie’s Br. at 5 (trial court answers omitted).

       In his first issue, Boddie argues that the trial court deprived him of his

right to confront witnesses against him by threatening to hold his trial

counsel in direct criminal contempt for repeating a question on cross-

examination.      While cross-examining the victim, Boddie’s counsel asked

where the victim had placed the knife when she returned from the kitchen:

           [BODDIE’S COUNSEL]:      Why didn’t you – you had the
           knife. Where was the knife at that stage?


____________________________________________


       1
        In his Pennsylvania Rule of Appellate Procedure 1925(b) statement,
Boddie also raised two issues regarding the sufficiency of the evidence to
convict him of rape and sexual assault. However, Boddie has abandoned
these matters on appeal to this Court, as he neither presented them in his
statement of questions involved on appeal nor argued them in his brief. See
Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”);
Commonwealth v. Dunphy, 20 A.3d 1215, 1218 (Pa.Super. 2011)
(concluding that questions raised in appellant’s concise statement but not
subsequently developed in his brief are abandoned).



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         [VICTIM]:        It was under my – after he pulled my pants
         off, I put it under my butt and left it there.

N.T., 6/26/15, at 67 (“N.T. Trial”). Boddie’s counsel then asked whether the

victim attempted to fight off Boddie’s advances.       Id. at 67-68. When the

victim said she had not, Boddie’s counsel questioned her again about the

location of the knife:

         [BODDIE’S COUNSEL]:           Okay.    But you had the knife
         under your butt; right?

         [VICTIM]:       Yes, I did.

         [BODDIE’S COUNSEL]:        Can I mark this as D-1, which
         are the notes from the preliminary hearing? And I have a
         copy for the Court and for the witness.

         (Preliminary Hearing      Notes      marked   Exhibit   D-1   for
         identification)

         [BODDIE’S COUNSEL]:           Could I approach the witness,
         Your Honor? Page 14.

                                        ...

         [BODDIE’S COUNSEL]:      Well, first of all, do you
         remember giving testimony under oath at a preliminary
         hearing before the Honorable Karen Yvette Simmons on
         January the 8th of 2015?

         [VICTIM]:       Yes, I do.

         [BODDIE’S COUNSEL]:           Do you remember being under
         oath at that time?

         [VICTIM]:       Yes, I do.

         [BODDIE’S COUNSEL]:        Okay. I’m going to direct your
         attention to page 14, which I’ve opened before you, and
         I’ll read it and you just tell me if this is correct. “What
         happened—

         [THE COURT]: Line. What’s so hard about me saying page
         and line that you can’t follow that direction?


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       [BODDIE’S COUNSEL]:        Okay. The very top of the page,
       Your Honor.

       [THE COURT]: I don’t want to hear top of the page. I want
       to hear page and line.

       [BODDIE’S COUNSEL]:        Line 1, page 14, Your Honor.

       [THE COURT]: There we go.

       [BODDIE’S COUNSEL]:         “QUESTION:     What happened
       after he pulled off your shirt?

          ANSWER: He pushed me back like this and I had the
          knife like this and I went like this around the top of
          my neck and I put it in the pillow and I put my arms
          back like this with my right hand holding the knife,
          my right hand holding the knife in the pillow.

          QUESTION: So I can see – if I can get around what
          you described right for the record, you had the knife
          under your back?

          ANSWER Right—

       [VICTIM]:      Under my butt. This statement, this is not
       right.

       [BODDIE’S COUNSEL]:        Just one second.

          “—and when I went back, he was kind of bending
          down so he didn’t really see when I went like this, so
          I held it.

          QUESTION: So you reached for the knife with your
          hand and put it behind your head? Is that what
          you’re indicating?

          ANSWER: Yes.

          QUESTION: Where was it behind your head? Behind
          a pillow?

          ANSWER: It was under a pillow.”

       So did I read that correctly?

       [VICTIM]:      Okay, I don’t know – I’m going to explain
       this, how this is, okay, again. All right? I had the knife

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       under my butt. Okay? After that I pulled the knife out, I
       put it behind me after he pushed me back. He still didn’t
       have his clothes fully finish to be off. And this is what I
       did. And I stayed under the bed like this squeezing the
       knife with everything I had, and that’s it. That’s exactly
       what happened.

       [BODDIE’S COUNSEL]:     Okay.    But you would agree
       here that there’s no mention of having the knife behind
       your butt here; right?

       [VICTIM]:     There is – in another statement it’s under
       my butt.

       [BODDIE’S COUNSEL]:        Okay, but what I’ve shown you
       here—

       THE COURT:    Excuse me, [victim]—

       [VICTIM]:     Somebody made a mistake—

       THE COURT:    Excuse me.

       [VICTIM]:     Sorry.

       THE COURT: The way this works is you speak when
       you’re asked a question. All right? Now you’re just
       arguing with the witness. So move on.

       [BODDIE’S COUNSEL]:        Okay, Your Honor.

          So when you had the knife behind your butt, according
       to you, and he was like – he went further down on the bed
       and then you put the knife behind the pillow or behind
       your head. Is that what you’re testifying to?

       THE COURT: [Counsel], you’re just repeating yourself.
       She’s covered this. I said move on. Move on doesn’t
       mean ask the same question again. It means move on.
       Move on to another page, another issue, or just say you
       have no more questions. But move on.

       [BODDIE’S COUNSEL]:       So     when   you    had   the
       opportunity to move the knife from behind your butt—

       THE COURT: [Counsel], if you ask another question
       about the knife, the butt, the pillow, you will be in
       contempt of court. I have made my ruling. Move on.

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J-S89024-16


         [BODDIE’S COUNSEL]:         Your Honor, may I ask her why
         she didn’t use the knife to stab on that occasion?

         THE COURT:      She’s   already   answered   that    question.
         Move on.

Id. at 68-74.     Boddie argues that the trial court curtailed his Sixth

Amendment right to confront and “impeach the Commonwealth’s sole fact

witness.”   Boddie’s Br. at 20.      According to Boddie, his trial counsel

attempted to establish extrinsic evidence of a prior inconsistent statement

and, after the court admonished the victim for speaking over counsel and

admonished trial counsel for arguing with the victim, the trial court

improperly “ordered counsel to end that line of questioning.” Id. at 20-21.

Boddie argues that he was attempting to elicit crucial testimony that would

discredit the victim and “it is inconceivable that she would be able to sneak

the knife from tight pants and bring it up behind her head all while [Boddie]

was supposedly violently pulling her pants off.” Id. at 22.

      Both the Sixth Amendment to the United States Constitution and

Article One, Section Nine of the Pennsylvania Constitution secure the right of

the accused to confront witnesses against him. See U.S. Const. amend. VI;

Pa. Const. art. I, § 9.     “Whether [a]ppellant was denied [his] right to

confront a witness under the confrontation clause of the Sixth Amendment is

a question of law for which our standard of review is de novo and our scope

of review is plenary.”     Commonwealth v. Yohe, 39 A.3d 381, 384

(Pa.Super. 2012) (quoting Commonwealth v. Dyarman, 33 A.3d 104, 106

(Pa.Super. 2011)).



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       The Confrontation Clause “provides that all criminal defendants enjoy

‘the   right   to   confront   and    cross-examine    adverse    witnesses.’”

Commonwealth v. Rosser, 135 A.3d 1077, 1087-88 (Pa.Super. 2015)

(quoting Commonwealth v. Laird, 988 A.2d 618, 630 (Pa. 2010)). “The

main and essential purpose of confrontation is to secure for the opponent

the opportunity of cross-examination.”     Davis v. Alaska, 415 U.S. 308,

315-16 (1974) (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed.

1940)). However, this right “is not absolute.” Rosser, 135 A.3d at 1088.

“The trial court may place reasonable limits on defense counsel’s cross

examination of a prosecution witness ‘based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the witness’

safety, or interrogation that is repetitive or only marginally relevant.’” Id.

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). “Generally

speaking, the Confrontation Clause guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way,

and to whatever extent, the defense might wish.” Id. (quoting Delaware v.

Fensterer, 474 U.S. 15, 20 (1985)).

       In Rosser, we articulated a two-part test to determine “whether a

limitation on cross-examination violates the Confrontation Clause”:

         First, we inquire whether the limitation prejudiced the
         examination of that particular witness. In other words,
         absent the limitation, would the jury have received a
         “significantly different impression” of the witness’s
         credibility? [Van Arsdall, 475 U.S.] at 679-80[]. Second,
         if there was error, we must determine whether it was


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          harmless beyond a reasonable doubt; if so, reversal is not
          warranted. Id. at 681[].

Id.

        We conclude that Boddie’s first issue is meritless. The trial court, as

the fact-finder, instructed counsel to move on from the issue “[w]hen it

became clear to the Court that counsel’s questions regarding the placement

of the knife during Defendant’s assault . . . was becoming repetitive.”

1925(a) Op. at 6. When examined in the context of the exchange between

the trial court, counsel, and the victim, it is clear that the trial court would

not have received a “significantly different impression” of the victim’s

credibility had it allowed trial counsel to continue inquiring about the

preliminary hearing transcript.    Under these circumstances, we cannot say

that such testimony would have modified the victim’s credibility such that

Boddie was deprived of his right to confront the victim.

        Further, even if we were to assume such testimony was important in

assessing the victim’s credibility, it is clear that counsel’s line of questioning

became repetitive. After counsel had asked the victim about her preliminary

hearing testimony, he received an answer that varied from that preliminary

hearing testimony.      The trial court could readily see that the victim’s

testimony had changed from her preliminary hearing and it concluded that

further questioning would be repetitive or marginally relevant. 1925(a) Op.

at 7.     Considering that “trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on . . . cross-

examination based on concerns about . . . interrogation that is repetitive or

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only   marginally     relevant,”    Van Arsdall,   475   U.S.   at   679   (quoting

Fensterer, 474 U.S. at 20), we conclude that curtailing this line of

questioning did not violate Boddie’s right of confrontation.2

       In his second issue, Boddie argues that the evidence presented at trial

was insufficient to convict him of unlawful restraint because the victim did

not suffer serious bodily injury and the Commonwealth did not prove “that

she was in actual danger of such injury.” Boddie’s Br. at 24. According to

Boddie, the evidence presented showed that his grip on the victim’s throat,

“was clearly insufficient to hold her down, as she plainly testified that she

was able to roll away from him and get away.” Id. Boddie also points to

the testimony of the sexual assault nurse examiner, who did not suggest

that the injuries to the victim’s legs and throat were serious or that they

could lead to “a substantial risk of death or . . . cause[] serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Id.

____________________________________________


       2
         Boddie also attempts to raise an evidentiary issue within his
Confrontation Clause argument, alleging that under Pennsylvania Rule of
Evidence 613, counsel was merely attempting to “establish that the extrinsic
evidence says what counsel alleges it says,” and, when faced with this
evidence, the victim “instead . . . simply restated testimony from her direct
examination and then went on a rant unrelated to the simple question
posed.” Boddie’s Br. at 21. Boddie, however, did not raise this evidentiary
question at trial or in his 1925(b) statement and, thus, he has waived this
claim. See Commonwealth v. Smith, 606 A.2d 939, 942-43 (Pa.Super.
1992) (finding waiver where appellant failed to object at trial to court’s
limitation of cross-examination); Pa.R.A.P. 302; Pa.R.A.P. 1925(b)(4)(vii).



                                          - 11 -
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      This Court’s standard for reviewing sufficiency of the evidence claims is

well settled:

         We must determine whether the evidence admitted at trial,
         and all reasonable inferences drawn therefrom, when
         viewed in a light most favorable to the Commonwealth as
         verdict winner, support the conviction beyond a reasonable
         doubt. Where there is sufficient evidence to enable the
         trier of fact to find every element of the crime has been
         established beyond a reasonable doubt, the sufficiency of
         the evidence claim must fail.

         The evidence established at trial need not preclude every
         possibility of innocence and the fact-finder is free to
         believe all, part, or none of the evidence presented. It is
         not within the province of this Court to re-weigh the
         evidence and substitute our judgment for that of the fact-
         finder.    The Commonwealth’s burden may be met by
         wholly circumstantial evidence and any doubt about the
         defendant's guilt is to be resolved by the fact[-]finder
         unless the evidence is so weak and inconclusive that, as a
         matter of law, no probability of fact can be drawn from the
         combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

      A person may be convicted of unlawful restraint “if he knowingly . . .

restrains another unlawfully in circumstances exposing him to risk of serious

bodily injury.” 18 Pa.C.S. § 2902(a)(1). “Serious bodily injury” is “[b]odily

injury which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” 18 Pa.C.S. § 2301. The Commonwealth must

prove that the victim “was exposed to an actual danger of serious bodily




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injury.”   Commonwealth v. Schilling, 431 A.2d 1088, 1092 (Pa.Super.

1981).

      We conclude that the evidence was sufficient to convict Boddie of

unlawful restraint. The victim testified that after Boddie put his penis in her,

Boddie put his hand around her throat, squeezing until she could not breathe

and was “ready to go out.”       N.T. Trial at 38.   The nurse examiner also

testified that the victim had injuries consistent with strangulation, including

bruising and diffuse erythema. Id. at 92-94. In the context of aggravated

assault, we have held that choking a rape victim demonstrates an attempt to

inflict serious bodily injury.   See Commonwealth v. Russell, 460 A.2d

316, 320 (Pa.Super. 1983). Considering that both aggravated assault and

unlawful restraint use the same definition of “serious bodily injury” found in

section 2301 of the Crimes Code, we conclude that the evidence was

sufficient to support the trial court’s finding, beyond a reasonable doubt,

that Boddie placed the victim at risk of serious bodily injury.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2017


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