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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                   v.                     :
                                          :
RAFIQ SMITH,                              :          No. 1777 EDA 2015
                                          :
                        Appellant         :


           Appeal from the Judgment of Sentence, May 15, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0003850-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 11, 2016

      Rafiq Smith appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County on May 15, 2015, after a jury

convicted him of rape, involuntary deviate sexual intercourse (“IDSI”),

robbery, sexual assault, and kidnapping.1           The trial court sentenced

appellant to an aggregate term of incarceration of 20 to 40 years.        We

affirm.

      The trial court set forth the following factual history:

                 On March 6, 2013, at 5:00 P.M., the
            complainant attended a wine and pizza party at
            work. She had approximately four glasses of wine at
            the party. After the party, the complainant and
            some of her co-workers went to a nearby restaurant,

1
  18 Pa.C.S.A. § 3121(a)(1), 18 Pa.C.S.A. § 3123(a)(1), 18 Pa.C.S.A.
§ 3701(a)(1), 18 Pa.C.S.A. § 3124.1, and 18 Pa.C.S.A. § 2901(a)(2),
respectively.
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          where the complainant had approximately three
          frozen margaritas.       The complainant left the
          restaurant with one of her co-workers to catch the
          train home. She felt the effects of the alcohol as
          they walked to the station. Once they arrived, the
          complainant and her co-worker parted ways to catch
          their respective trains.

                As the complainant was walking toward her
          train, [appellant] approached her.         Although
          [appellant] was a complete stranger, he linked his
          arm with the complainant’s arm and started leading
          her away. He took the complainant’s pocketbook
          and removed her knife, cell phone, bus pass, lighter,
          and cash.     After taking these items, [appellant]
          returned the pocketbook to complainant. He told her
          that if she did as he said, she would not get hurt.
          Even though there were other people in the vicinity,
          the complainant went with [appellant] out of
          fear.[Footnote 8]

                [Footnote 8] Video footage from the
                train station showed [appellant] and
                complainant     walking  together  at
                approximately    10:30  P.M.      The
                complainant identified the image as
                having been taken before [appellant]
                sexually assaulted her.

                [Appellant] continued to physically hold the
          complainant and direct her through the station until
          they reached an isolated area. The complainant
          became disoriented because they walked a “very
          long time,” and it was “pitch black.” They walked
          through a metal door and approached a set of
          concrete steps.     [Appellant] sat the complainant
          down on the steps. After telling the complainant
          that he wanted her to “suck his dick,” [appellant] put
          his penis in the complainant’s mouth without her
          consent and then ejaculated. [Appellant] also put a
          white powdery substance -- which he said was
          cocaine -- in the complainant’s mouth.




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                Next, [appellant] took down the complainant’s
          pants and inserted his penis in her vagina without
          her consent. She was still too afraid to say or do
          anything. [Appellant] said, “I bet this is the first big
          black dick you’ve ever had before, huh?”           After
          [appellant] vaginally penetrated complainant, he
          helped her pull up her pants and walked her back
          through the metal doors and to the restroom.
          [Appellant] told the complainant to clean herself up
          in the restroom and not to look back.

                Once in the bathroom, the complainant saw
          that she had blood in her underpants that had not
          been there before the assault.[Footnote 9]    She
          cleaned herself up, walked over to the station’s
          waiting area, and sat down. After processing what
          had happened, she reported the assault to transit
          police.

                [Footnote   9]       The   54 year-old
                complainant    had      gone  through
                menopause years earlier and was no
                longer menstruating.

                 On March 7, 2013, at approximately midnight,
          Southeastern     Pennsylvania     Transit   Authority
          (“SEPTA”) Police Officer Thomas Krouse responded
          to the police radio call for a reported robbery and
          rape. Officer Krouse had seen the complainant in
          the train station approximately an hour and a half
          before getting the radio call. When he saw her,
          [appellant] had his arm around her and appeared to
          be escorting her through the station. Officer Krouse
          recalled thinking that the complainant was
          intoxicated and that [appellant] was holding her up.

                The complainant was visibly upset when
          Officer Krouse approached her in response to the
          police radio call. She told him that she had been
          robbed and raped. The complainant was brought to
          the Special Victims Unit where she gave a statement
          to Detective Thomas Martinka in the early morning
          hours of March 7, 2013. After the complainant’s
          interview with Detective Martinka, sexual assault


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          nurse examiner Karen Dougherty, [R.N.,] examined
          the complainant at the Philadelphia Sexual Assault
          Center.    Nurse Dougherty gathered information
          concerning the complainant’s medical history,
          [appellant], and the nature of the assault. Based on
          the complainant’s account, Nurse Dougherty noted
          that [appellant] had grabbed the complainant and
          told her she would be okay if she listened to him.
          Nurse Dougherty recorded the complainant’s
          allegation that [appellant] had penetrated her
          vaginally with his penis, and had inserted his penis in
          her mouth.[Footnote 10]        Nurse Dougherty also
          noted the complainant’s allegation that [appellant]
          forced her to ingest cocaine.

                [Footnote 10] Nurse Dougherty noted
                the     complainant’s  allegation that
                [appellant] penetrated her vagina with
                his finger.

                 Nurse    Dougherty’s  physical   examination
          revealed that the complainant’s head was swollen
          and tender, and that she had lacerations on and
          directly below her knee. Nurse Dougherty observed
          abrasions on the complainant’s genitals, blood
          coming from her cervix, and redness to the
          perineum.     Swabs of the complainant’s vaginal,
          cervical, and perianal areas all tested positive for
          sperm. Using a bucal [sic] swab collected from
          [appellant], Lynn Haimowitz from the Philadelphia
          DNA Laboratory concluded that the complainant’s
          perianal swabs tested positive for the presence of
          [appellant’s] sperm.

                 At approximately 12:45 A.M., SEPTA Police
          Officer Darrell James stopped [appellant] at the
          Walnut-Locust Street train concourse in response to
          flash information he received over police radio.
          From [appellant] he recovered a cell phone (later
          identified as the complainant’s), $45.00, and what
          he believed to be cocaine. The substance recovered
          ultimately tested negative for the presence of a
          controlled substance and narcotics.



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Trial court opinion, 11/6/15 at 2-5 (citations to notes of testimony omitted).

      The trial court set forth the following procedural history:

                   On April 10, 2014, a jury found [appellant]
            guilty of rape, involuntary deviate sexual intercourse
            (“IDSI”), robbery, sexual assault, and kidnapping.
            The court deferred sentencing for a pre-sentence
            investigation and a Megan’s Law[2] assessment by
            the Sexual Offenders Assessment Board ([“SOAB”]).
            SOAB member Barry Zakireh, Ph.D. issued a report
            on July 7, 2014 [] concluding that [appellant] meets
            the statutory criteria for classification as a sexually
            violent predator (“SVP”). Following a May 15, 2015
            hearing, the court found [appellant] to be an SVP
            and sentenced him to an aggregate term of twenty
            to forty years.[Footnote 7]         [Appellant] filed a
            post-sentence motion on May 21, 2015, which the
            court denied without a hearing on June 12, 2015.
            On June 16, 2015, [appellant] filed this appeal.

                   [Footnote 7]      The court sentenced
                   [appellant] to consecutive terms of ten
                   to twenty years on the rape and IDSI
                   convictions.    On the robbery and
                   kidnapping    convictions,   the  court
                   sentenced [appellant] to ten to twenty
                   year terms, both to run concurrent with
                   the rape sentence.

Id. at 1-2 (footnotes 1-6 omitted).

      Appellant raises the following issue for our review:

            Was not the verdict so contrary to the weight of the
            evidence as to shock one’s sense of justice and a
            new trial should be awarded?

Appellant’s brief at 3.



2
  Sex Offender Registration and Notification Act, 42 Pa.C.S.A. § 9791,
et seq.


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             The essence of appellate review for a weight claim
             appears to lie in ensuring that the trial court’s
             decision has record support.         Where the record
             adequately supports the trial court, the trial court
             has acted within the limits of its discretion.

             ....

             A motion for a new trial based on a claim that the
             verdict is against the weight of the evidence is
             addressed to the discretion of the trial court. A new
             trial should not be granted because of a mere conflict
             in the testimony or because the judge on the same
             facts would have arrived at a different conclusion.
             Rather, the role of the trial judge is to determine
             that notwithstanding all the facts, certain facts are so
             clearly of greater weight that to ignore them or to
             give them equal weight with all the facts is to deny
             justice.

             ....

             An appellate court’s standard of review when
             presented with a weight of the evidence claim is
             distinct from the standard of review applied by the
             trial court. 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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations

and quotation marks omitted).       “In order for a defendant to prevail on a

challenge to the weight of the evidence, ‘the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.’”

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013).

     Here,     appellant   complains   about   “various   discrepancies   in   the

complainant’s testimony,” including the number of alcoholic beverages she



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consumed prior to the rape, the exact manner in which appellant

maneuvered her to the rape site, the precise location of the rape, the items

appellant took from her pocketbook, and the reason why she failed to ask

for help when she allegedly had the opportunity. (Appellant’s brief at 7-9,

12-13.)

      We decline appellant’s invitation to assess the complainant’s credibility

and reweigh the evidence.       The jury, as fact-finder, had the duty to

determine the credibility of the testimony and evidence presented at trial.

Talbert, 129 A.3d at 546 (citation omitted). Appellate courts cannot and do

not substitute their judgment for that of the fact-finder. See id. Here, a

jury of appellant’s peers found complainant credible.          After carefully

reviewing the record, we conclude that the jury’s verdict was not so contrary

to the evidence that it shocks the conscience of this court.      Rather, our

review of the record supports our conclusion that the trial court properly

exercised its discretion in denying appellant’s weight of the evidence claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016




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