J-S34003-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

SKILER ADAM BOOSE,

                         Appellant                    No. 1074 MDA 2014

           Appeal from the Judgment of Sentence May 27, 2014
           In the Court of Common Pleas of Cumberland County
           Criminal Division at No(s): CP-21-CR-0002981-2013


BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                               FILED JUNE 22, 2015

      Skiler Adam Boose appeals from the judgment of sentence of six and

one-half to thirteen years imprisonment that the trial court imposed after a

jury convicted Appellant of rape, sexual assault, reckless endangerment,

simple assault, and terroristic threats. We affirm.

      The trial court outlined the violence that Appellant perpetrated upon

his then girlfriend and her two children over the course of twenty-four hours:

            On Sunday 13 October 2013, Victim took a sleeping pill.
      Victim awoke the next day to find the underwear she wore to
      bed lying on the floor. She confronted Defendant, and he
      admitted to having sex with her while she slept. Victim testified
      that she was confused and disgusted but overall did not really
      know how to react to the actions of Defendant. While she tried
      to process what had happened, Victim and Defendant followed
      their normal morning routine, which included Victim dropping
      Defendant off at work. When Victim picked up Defendant from
      work, she was not in an amorous mood, and Defendant took
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     offense to her mood. Defendant insisted that Victim should just
     forget about the incident because the incident was in the past.

           In response, Victim asserted that Defendant would not be
     allowed to treat Victim like Defendant had treated her in the
     past. Defendant became angry, pushed Victim onto the bed,
     picked up her son, ran down the hallway, and locked himself and
     Victim's son in the bathroom. Victim, her son, and her daughter
     were crying and screaming during this time.         Within two
     minutes, Defendant emerged, "practically threw her son at her"
     and told Victim "he could do whatever he wanted to do."

            Following this incident, Victim resigned herself to calming
     the children and trying to reinitiate the normal night-time
     routine. Victim testified that, at this time, she felt that her
     relationship with Defendant was over, but she did not feel safe
     trying to escape because she was worried about the children's
     safety, as Defendant was in the same [motel] room as the Victim
     and her children. Furthermore, Victim testified that, for the
     same reasons, she felt she could not safely call for help, despite
     having a cellular telephone. At some point, Victim texted a
     friend, inquiring about a cheaper place to live, and Defendant
     took Victim's phone from her, claiming that they would remain
     living together.

           After the children were put to bed, Defendant made sexual
     advances toward the unwilling Victim and "held her hands above
     her head and pushed off her pants and her underwear and had
     sex with her." During this time, Victim cried and repeatedly told
     Defendant "no" in a voice that was loud enough to wake her
     children.    Defendant told Victim again that he could "do
     whatever he wanted" and that if she didn't shut up he would kill
     her and the kids." Due to the commotion, Victim's children woke
     up. Victim calmed down the children and put her children back
     to bed, and then, at the behest and promise of no wrongdoing
     by Defendant, Victim took another sleeping pill and begrudgingly
     returned to bed. Victim resisted the effects of the sleeping pill,
     and her resistance seemed to infuriate Defendant. Defendant
     pulled Victim across the bed and, as Victim fought against him,
     Defendant "pulled her leg so hard it felt like it had gone out of
     place." While pulling Victim's leg, Defendant put a pillow over
     her face and put his arm across her throat.



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           The fighting again woke Victim's daughter, who stood near
     the bed, crying. Defendant produced a box cutter and held it to
     Victim's throat while Defendant simultaneously covered Victim's
     daughter's face with his hand and pushed the child back into the
     bed. Throughout this altercation, Defendant repeatedly told
     Victim that he "could do whatever he wanted," that he knew how
     to hurt Victim "without leaving marks," and that he would kill the
     children if Victim did not stop screaming. Victim again testified
     that she did not feel as though she and her children could safely
     leave the motel room in order to escape Defendant.

           After the altercation concluded, Defendant forced Victim to
     sleep in the bed with him "where she f---king belonged." Again,
     Defendant made sexual advances toward Victim.           Although
     Victim did not want to engage in sexual activity with Defendant,
     Victim "just let him have sex with [her] and did not fight or
     scream this time.” Eventually, Victim managed to sleep for
     approximately thirty minutes, near 5:00 a.m. on 15 October
     2013. When Victim awoke, she and Defendant followed their
     normal morning routine, and she dropped him off at work.

            After dropping Defendant off at work, Victim returned to
     the motel, packed her belongings, and filed a police report.
     Victim filled out a written statement. Next, at the suggestion of
     police, Victim made a phone call to Defendant and attempted to
     elicit statements concerning the events that had transpired.
     That same day, Victim visited a hospital to undergo a rape kit,
     but the tests were inconclusive because Victim had previously
     been having consensual sex with Defendant. In addition, police
     escorted Victim to the motel and, with her permission, searched
     the room and took the box cutter as evidence. Lastly, police
     interviewed an occupant of a neighboring motel room who
     testified at trial that, on the nights in question, she heard yelling
     and arguments coming from Victim and Defendant's room but
     had chosen not to call police.

Trial Court Opinion, 9/15/14, at 3-7 (footnotes omitted).

     Appellant raises the following issues for our review:

     I. Whether the trial court erred in denying [Appellant’s] post-
     sentence motions because there was insufficient evidence to
     prove every element of the charges beyond a reasonable doubt

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      to support the verdicts of guilt even viewing the evidence in
      favor of the Commonwealth.

      II. Whether the trial court abused its discretion in denying
      [Appellant’s] motion in limine and permitting, over objection, the
      clandestine telephone recording between complainant and
      Appellant which had miniscule probative value and was
      outweighed by the fear and emotion it instilled in the jury
      swaying them to convict [Appellant] when he made no
      admissions on the recording.

      III. Whether the trial court abused its discretion when sentencing
      Appellant where the trial court failed to consider Appellant's
      rehabilitative needs, the particular circumstances of the offenses,
      and, instead, focused exclusively on the severity of offenses as
      charged.

Appellant’s brief at 8.

      Appellant’s first contention relates to the sufficiency of the evidence.

Our standard of review in this context is as follows:

            Whether, viewing all the evidence admitted at trial in the
      light most favorable to the Commonwealth as the verdict winner,
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      the above test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence.           Any 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015).




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        Appellant first maintains his conviction of rape1 is infirm since the

Commonwealth did not establish the element of forcible compulsion.                                He

suggests that “Commonwealth's case failed to prove that [Appellant]

sufficiently frustrated Ms. Metzger's will to resist having sexual intercourse

with her         then boyfriend so                 as to    constitute     forcible   compulsion[.]”

Appellant’s brief at 21. Rape is committed, in relevant part, when a person

“engages in sexual intercourse with a complainant . . . by forcible

compulsion.” 18 Pa.C.S. § 3121(a)(1).                        Forcible compulsion is defined as,

“Compulsion           by     use      of       physical,   intellectual,    moral,    emotional    or

psychological force, either express or implied.” 18 Pa.C.S. § 3101. Thus,

“in order to prove the ‘forcible compulsion’ component, the Commonwealth

must establish, beyond a reasonable doubt, that the defendant used either

physical force, a threat of physical force, or psychological coercion[.]”

Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa.Super. 2010).                                       The

crime of rape is not proven when the Commonwealth establishes nothing

more than a lack of consent. Id.; Commonwealth v. Berkowitz, 641 A.2d

1161 (Pa. 1994).

        Herein, the victim did much more than indicate that she did not want

to engage in intercourse.                      While she was crying no, Appellant held the

____________________________________________
1
  Appellant was not charged in connection with the incident where he had
sex with the sleeping victim. His rape conviction is premised upon the
October 14, 2013, assault.


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victim’s hands and forcibly removed her clothes.           The victim fought

Appellant, who threatened to kill her and her children if she did not permit

him to engage in sexual intercourse. Then, Appellant pulled the victim’s leg,

placed a pillow over her face, and put his arm across her neck. Finally, he

placed a box cutter against her throat.           Appellant’s actions clearly

constituted physical force. In addition, Appellant’s threat to kill the victim

and her children was a threat of physical force.       Hence, the element of

forcible compulsion was present herein. Eckrote, supra.

      Appellant also assails the evidence supporting his simple assault and

terroristic threats convictions. His specific argument is that his threats were

made impulsively and in the heat of the moment during a domestic dispute.

He maintains that he had no intent to place the victim in fear.       A person

commits simple assault if he, in relevant part, “attempts by physical menace

to put another in fear of imminent serious bodily injury[.]”      18 Pa.C.S. §

2701(a)(3). A person is guilty of terroristic threats if he, inter alia,

“communicates, either directly or indirectly, a threat to commit any crime of

violence with intent to terrorize another.” 18 Pa.C.S. § 2706(a)(1). Mere

spur-of-the moment threats made during the course of an argument with

the victim do not constitute terroristic threats. Commonwealth v. Tizer,

684 A.2d 597 (Pa.Super. 1996).

      Initially, we reject Appellant’s position that his threats occurred during

a heated argument.     He assaulted the victim, and she was resisting that

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assault. In order to overcome the victim’s physical resistance to his sexual

assault, Appellant threatened to kill her, put a pillow over her face, and held

a box cutter against her throat.     At that time, the victim simply was not

involved in any type of verbal exchange with him.            Hence, we reject

Appellant’s position that his threat was impulsively made in the course of a

heated discourse with the victim.

      Appellant committed physical menace consisting of placing a pillow on

the victim’s face, his arm on her throat, and a box cutter against her throat.

He then threatened her with serious bodily injury, i.e., death.       This proof

established an intent to terrorize her, and, concomitantly, the crime of

simple assault. Appellant threatened to commit a crime of violence, murder,

so that the victim would cease her resistance to his sexual assault.          He

likewise evidenced an intent to carry through with that threat by placing a

pillow on her face and a box cutter against her throat. Thus, his conviction

of terroristic threats is based upon sufficient proof.

      Finally, Appellant challenges the sufficiency of the evidence as to his

conviction of reckless endangerment, which is committed when a person

“recklessly engages in conduct which places or may place another person in

danger of death or serious bodily injury.”      18 Pa.C.S. § 2705.     Appellant

maintains that the Commonwealth presented no proof that he had the actual

ability to kill or cause serious bodily injury since there was no indication that

the box cutter blade was exposed when he put it against the victim’s throat.

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        Whether or not the blade was exposed at that precise moment is of no

consequence herein. The fact remains that Appellant had a box cutter with a

blade and thus had the present ability to cut the victim’s neck with the

blade. Additionally, he had a pillow and could have smothered the victim.

Finally, he could have choked the victim with the arm that he placed against

her neck. Since Appellant had the present ability to inflict death or serious

bodily injury on the victim, we reject this challenge to the reckless

endangerment conviction.

        Appellant’s second complaint is that the probative value of a recorded

conversation that he had with the victim was outweighed by its prejudicial

effect, and that the trial court erred in permitting its use by the

Commonwealth. The conversation was recorded the day after the assault,

after the victim went to police and reported the crimes.2

              The admission of evidence is a matter vested within the
        sound discretion of the trial court, and such a decision shall be
        reversed only upon a showing that the trial court abused its
        discretion. In determining whether evidence should be admitted,
        the trial court must weigh the relevant and probative value of
        the evidence against the prejudicial impact of the evidence.
        Evidence is relevant if it logically tends to establish a material
        fact in the case or tends to support a reasonable inference
        regarding a material fact. Although a court may find that
____________________________________________
2
   Appellant herein does not claim that the telephone conversation was
intercepted in violation of the Wiretapping and Electronic Surveillance
Control Act. 18 Pa.C.S. §§ 5701 et seq. We note that no court approval is
required for the intercept of a conversation when one party to it agrees to
the recording and when a designated assistant district attorney or district
attorney authorizes the intercept. 18 Pa.C.S. § 5704(2)(ii).


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      evidence is relevant, the court may nevertheless conclude that
      such evidence is inadmissible on account of its prejudicial
      impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014)

(citation omitted).

      Herein, Appellant’s argument is based upon the premise that “the

recording did not possess the essential evidentiary value in relation to the

Commonwealth’s burden of proof, i.e., the recording did not prove or

disprove whether the Defendant committed any of the essential elements of

the misdemeanor or felony charges beyond a reasonable doubt.” Appellant’s

brief at 32-33.       We first reject Appellant’s flawed suggestions that a

statement is incriminatory only if the defendant specifically admits to

commission of an element of a crime.       Herein, the recorded conversation

was highly inculpatory.

      When the victim called Appellant, he was expecting her to be in the

process of retrieving him from work. After he responded to her telephone

call, Appellant asked where she was. She responded that she was not going

to come get him because he placed her and her children in danger the

previous night.       Appellant admitted that he had endangered them by

responding, “I’m not gonna f       ‘n hurt you anymore.”     Commonwealth’s

Exhibit 4 at 2 (emphasis added).    The victim then insisted, “I’m not going to

pick you up.      I’m not gonna let you hurt me or the kids again.”        Id.

Appellant rejoined with, “I’m not going to.” Id. at 3. The victim retorted,

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“You said that last night and you hurt me again.” Id. Appellant then said,

“I’m trying, okay, I’m done with that. It’s over, done with. I’m done.” Id.

Thus, Appellant again admitted that he had hurt her the previous night.

      Next, Appellant acknowledged that he had committed an element of

the offenses of rape and simple assault.          Specifically, the victim accused

Appellant of having the victim’s daughter “on the bed with us whenever you

were putting a pillow over my face and your arm across my neck, across my

throat.”   Id. at 4.   Appellant said, “Okay, yes I know.”         Id. (emphasis

added).    Thus, Appellant admitted to the “forcible compulsion” element of

rape and to physically menacing the victim. When the victim continued to

refuse to retrieve Appellant, he threatened her again, saying “Don’t f           ‘n

piss me off or when I do f   ‘n find your ass I am gonna f        ‘n kill you.” Id.

Thus, we conclude that the taped conversation was relevant in that it had a

tendency to establish that Appellant was guilty.

      Appellant’s   secondary   argument     in    connection   with   the   tape’s

introduction is that the recorded conversation was unfairly prejudicial. “The

court may exclude relevant evidence if its probative value is outweighed by a

danger of one or more of the following: unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Pa.R.E. 403; see Antidormi, supra. The

comment to Pa.R.E. 403 clarifies the definition of unfair prejudice, which

“means a tendency to suggest decision on an improper basis or to divert the

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jury's attention away from its duty of weighing the evidence impartially.”

Pa.R.E. 403, Comment.

      The fact that Appellant made inculpatory remarks is not an improper

basis for a verdict; otherwise, confessions would be inadmissible. Indeed,

evidence is not excluded as prejudicial based upon the fact that it is harmful

to a defendant.     Antidormi, supra.       Exclusion of probative evidence is

“limited to evidence so prejudicial that it would inflame the jury to make a

decision based upon something other than the legal propositions relevant to

the case.” Id. at 750. Nothing in the taped conversation incited the jury to

make a decision upon a basis other than the applicable law.               Hence, we

affirm the trial court’s evidentiary ruling herein.

      Appellant’s final position is that we should reverse the sentence as

manifestly unreasonable since the sentencing court focused “exclusively on

the severity of the offenses” and “failed to consider many existing mitigating

factors,   such   as    Appellant's    personal       background,   his    personal

characteristics, his relative culpability, and his prospects for rehabilitation.”

Appellant’s brief at 35. This sentencing issue is waived because no objection

to the sentence was made during the sentencing proceeding and Appellant

did not file a post-sentence motion. Commonwealth v. Trinidad, 96 A.3d

1031 (Pa.Super. 2014). Furthermore, the sentencing court had a pre-

sentence report, and we are therefore required to presume that it weighed




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the mitigating factors herein. Commonwealth v. Devers, 546 A.2d 12, 18

(Pa. 1988); Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013).

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/22/2015




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