J-S67039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

SAMUEL MERRIWEATHER

                            Appellant                   No. 3013 EDA 2015


           Appeal from the Judgment of Sentence October 24, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012832-2012


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED OCTOBER 04, 2016

       Appellant Samuel Merriweather appeals the judgment of sentence

entered by the Court of Common Pleas of Philadelphia County after the trial

court convicted Appellant of rape by forcible compulsion, involuntary sexual

deviate intercourse (“IDSI”) by forcible compulsion, sexual assault, indecent

exposure, terroristic threats, indecent assault, simple assault, and recklessly

endangering another person.1            Appellant claims his convictions are not

supported by sufficient evidence and argues that his aggregate sentence of

165 to 330 months imprisonment is excessive. We affirm.



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1
  18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3127(a), 2706(a)(1),
3126(a)(1), 2701(a), and 2705, respectively.


*Former Justice specially assigned to the Superior Court.
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      The trial court aptly summarized the factual background of this case as

follows:

      1. Rape of [D.D., (the victim)] in 2002

            On December 1, 2002, [D.D.] went to the Kensington
      section of Philadelphia to purchase heroin. Upon obtaining the
      heroin, she entered an abandoned warehouse at the intersection
      of Somerset Street and Jasper Street to get high. To enter the
      warehouse, [D.D.] walked through a grass lot and up a set of
      metal steps to the second floor. The second floor was a large
      empty room with one entrance. She had been to the warehouse
      one time previous to this day. There was trash and debris
      scattered throughout the room. After getting high, [D.D.] went
      to a brick wall in a corner of the room to urinate.

            While [D.D.] urinated, she noticed [Appellant] enter the
      room. [Appellant] was wearing a black ski cap, light blue jeans,
      and a blue one-piece jumpsuit over a hooded sweatshirt. [D.D.]
      asked him to turn around while she finished. [Appellant] ignored
      her request and walked rapidly toward her. [D.D.] became
      anxious, quickly pulled up her pants, and attempted to walk
      toward the door to exit the warehouse. Instead of leaving the
      warehouse, [Appellant] grabbed [D.D.] and pushed her face
      against the wall. [Appellant] told her to pull her pants down. He
      then forced her to have vaginal sex.

             [D.D.] was afraid that [Appellant] would hurt her. She
      said, “I have two kids at home waiting for me.” [Appellant] told
      her not to scream and that she would not be hurt as long as she
      complied with his demands. [Appellant] forced [D.D.] to her
      hands and knees, and then forced his penis into her anus. Next,
      he pushed [D.D.] onto her back and forced his penis into her
      vagina. [D.D.] told [Appellant] not to ejaculate in her vagina.
      He responded that he wanted to ejaculate in her mouth.
      [Appellant] continued to alternate between forcing his penis into
      her vagina and into her mouth.               The assault lasted
      approximately 45 minutes. When [Appellant] was finished, he
      pulled up his pants and instructed [D.D.] to face the wall and not
      move until she could no longer hear him. [Appellant] then left
      the warehouse.



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           Once [D.D.] heard [Appellant] descend the metal steps,
     she pulled up her pants and exited the warehouse.             She
     recognized a group of men outside the warehouse. One of the
     men stayed with her until she was able to locate a police officer.
     [D.D.] was transported to Episcopal Hospital where a rape kit
     was performed. [D.D.] was then taken to the Special Victims
     Unit where she provided a signed statement to Detective Mike
     O’Brien regarding the assault. More than ten years later, [D.D.]
     was able to positively identify [Appellant] during an in-person
     lineup.

           At trial, [D.D.] testified that she never consented to sexual
     intercourse with [Appellant], and that she never made any deal
     with him to trade sex for money.           She admitted that she
     formerly engaged in prostitution near a Kensington bar to earn
     money for drugs. During the trial, she was able to identify the
     blue jumpsuit recovered by police outside of the warehouse on
     the day of the incident, as well as pictures taken of the scene in
     2002. On cross-examination, [D.D.] conceded that she did not
     notice any tattoos on [Appellant’s] neck even though it was
     uncovered during the attack. She also conceded that she was
     unable to recognize [Appellant] in a photo array but was able to
     immediately identify him at the lineup. After looking at the
     other individuals in the lineup, she began to cry when she looked
     into [Appellant’s] eyes, because she “felt like it was him.” [She]
     acknowledged that she was poor at assessing one’s height when
     asked about the inaccuracy of [Appellant’s] height that she
     provided to Detective O’Brien in her original statement.

     2. Testimony of Police Officer Michael Cahill And Detective Bill
        Urban.

           On December 1, 2002, at approximately 10:30 am, Police
     Officer Michael Cahill and his partner were on routine patrol in
     the area of the 2700 block of Jasper Street when [D.D.] gained
     their attention. [D.D.] told Officer Cahill that she had just been
     raped inside the adjacent abandoned warehouse at Somerset
     and Jasper Street. Officer Cahill observed that [D.D.] was
     crying, seemed in shock, was “out of it,” and “very shaken up.”
     While searching the area for a suspect, Officer Cahill recovered a
     blue jumpsuit in the grass lot outside of the warehouse.

           On October 22, 2012, Detective Bill Urban of the Special
     Victims Unit conducted a live eyewitness identification lineup.

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     While Detective Urban conducted the lineup, he observed that
     [D.D.] was shaking and crying. [D.D.] viewed each individual
     through a large window from approximately three feet away. As
     soon as Detective Urban returned to the room where [D.D.] was
     viewing the individuals, she immediately replied that [Appellant]
     “stood out to me.” Detective Urban had [D.D.] sign a statement
     of her positive identification of [Appellant].

     3. The Forensic Evidence Linking [Appellant] to The Rape of
        [D.D.]

            Detective Daniel O’Malley of the Special Victims Unit is
     assigned to investigate long-term cold cases involving DNA.
     Acting on information received from the Combined DNA Index
     System (“CODIS”) database, Detective O’Malley obtained a
     voluntary DNA sample from [Appellant].         The DNA sample
     collected from [Appellant] by Detective O’Malley matched the
     original rape kit performed on [D.D.] in 2002.

           Greg Vanalstine testified as an expert in forensic DNA
     analysis. Based upon his review of certain samples from the
     rape kit performed on [D.D.] and a buccal swab from
     [Appellant], he testified, inter alia, that [Appellant] was the male
     source of the DNA mixture contained in the sperm fraction of the
     perianal swab.

     4. [Appellant’s] Testimony

           At trial, [Appellant] testified that he knew [D.D.] from
     when she was a prostitute in Kensington. [Appellant] testified
     that he had sex with [D.D.] on three previous occasions,
     including one time at the warehouse and twice in his room above
     a bar on Somerset Street in Kensington. [Appellant] denied that
     he raped [D.D.] on December 1, 2002. He testified that each
     time he paid her for sex. On cross-examination, [Appellant]
     stated that in 2002 he lived on Mulberry Street in Frankford and
     would go to Kensington to look for girls. [Appellant] conceded
     that – in his statement following his arrest – he denied [knowing
     D.D.] and denied that he had sex with her in the abandoned
     warehouse.

Trial Court Opinion (T.C.O.), 12/14/15, at 1-5 (internal citations and

footnotes omitted).


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      After Appellant was charged with the aforementioned offenses, he

waived his right to a jury trial. On July 16, 2013, the trial court convicted

Appellant of rape and the related offenses. On October 24, 2013, the trial

court deemed Appellant a sexually violent predator and imposed three

consecutive sentences: 78 to 156 months imprisonment for the rape

conviction, 78 to 156 months imprisonment for the IDSI conviction, and 9 to

18 months for the terroristic threats conviction. The trial court imposed no

further penalty on the remaining convictions. On November 1, 2013,

Appellant filed a motion for reconsideration of sentence, which the trial court

denied. Appellant did not file a direct appeal.

      On April 30, 2014, Appellant filed a timely pro se PCRA petition,

seeking the reinstatement of his direct appellate rights. On September 29,

2015, the PCRA court granted Appellant his requested relief without

objection from the Commonwealth.         The same day, Appellant filed this

appeal and subsequently complied with the lower court’s direction to submit

a concise statement of errors complained of on appeal pursuant to Rule

1925(b).

      Appellant first claims the evidence was insufficient to support his

convictions. Our standard of review is as follows:

           The standard we apply in reviewing the sufficiency of the
           evidence is whether 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. In applying
           the above test, we may not weigh the evidence and substitute


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           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.                   The
           Commonwealth may sustain its burden of proving every
           element of the crime beyond a reasonable doubt by means of
           wholly circumstantial evidence. Moreover, in applying the
           above test, the entire record must be evaluated and all
           evidence actually received must be considered. Finally, 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.

Commonwealth v. Britton, 134 A.3d 83, 86 (Pa.Super. 2016).

         In claiming that all of his convictions were supported by insufficient

evidence, Appellant does not argue that the Commonwealth failed to prove

any of the specific elements of the crimes charged, but contends that the

trial court should have found the testimony of the victim, D.D., to be

incredible and unreliable. Specifically, Appellant claims that his convictions

cannot stand because the nearly ten-year period between the crime and his

arrest was too attenuated and the victim’s testimony was unreliable as she

“was a heroin addict, who stole and was a prostitute.” Appellant’s Brief, at

10. Moreover, Appellant claims D.D.’s inability to correctly assess his height

in giving her statement to police and her failure to identify Appellant initially

in   a    photo   array   shows   the    inconsistency   of   her   identification,

notwithstanding that his DNA matched that from the victim’s rape kit taken

immediately after the crime.




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      It is well established that “[a]n argument regarding the credibility of a

witness's testimony goes to the weight of the evidence, not the sufficiency of

the evidence.”     Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa.Super.

2014)   (quoting    Commonwealth      v.   Gibbs,   981   A.2d   274,   281–82

(Pa.Super. 2009)). Our Supreme Court has emphasized that an “appellant's

challenge to the sufficiency of the evidence must fail” where an appellant

phrases an issue as a challenge to the sufficiency of the evidence, but the

argument that appellant provides goes to the weight of the evidence.

Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 672 (1999); see

also Gibbs, 981 A.2d at 281-82 (finding that a sufficiency claim raising

weight of the evidence arguments would be dismissed).

      To the extent that Appellant is raising a weight of the evidence claim,

we find this argument to be waived by his failure to raise the issue before

the trial court. “A weight of the evidence claim must be preserved either in

a post-sentence motion, by a written motion before sentencing, or orally

prior to sentencing.   Failure to properly preserve the claim will result in

waiver, even if the trial court addresses the issue in its opinion.”

Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013) (citing

Pa.R.Crim.P. 607) (other citations omitted). As Appellant did not raise this

claim at sentencing or in his motion to reconsider his sentence, the issue is

waived on appeal.

      Appellant also claims that the trial court abused its discretion in

imposing an excessive sentence. “A challenge to the discretionary aspects

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of sentencing does not entitle an appellant to review as of right.”

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super.

2016).   In order to invoke this Court’s jurisdiction to address such a

challenge, the appellant must satisfy the following four-part test: the

appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P. 902,

903; (2) preserve the issues at sentencing or in a timely post-sentence

motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief

does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set

forth a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code under 42 Pa.C.S. § 9781(b). Id.

      After reviewing the record, we find Appellant filed a timely post-

sentence motion and a timely notice of appeal. He also satisfies his

obligation to include a Rule 2119(f) statement in his brief and his appellate

brief complies with our appellate rules. See Appellant's Brief at 12-13. We

proceed to determine whether Appellant raised a substantial question for our

review. With respect to this inquiry, this Court has held the following:

             The determination of what constitutes a substantial
      question must be evaluated on a case-by-case basis.”
      Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa.Super.
      2013) (citations omitted). “A substantial question exists only
      when the appellant advances a colorable argument that the
      sentencing judge's actions were either: (1) inconsistent with a
      specific provision of the Sentencing Code; or (2) contrary to the
      fundamental norms which underlie the sentencing process.” Id.
      (citations omitted). “Additionally, we cannot look beyond the
      statement of questions presented and the prefatory 2119(f)
      statement to determine whether a substantial question exists.”



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      Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.Super.
      2012).

Commonwealth v. Diehl, 140 A.3d 34, 44–45 (Pa.Super. 2016).

      Specifically, Appellant alleges that the trial court abused its discretion

in sentencing him when it overemphasized the protection of the public and

did not consider Appellant’s rehabilitative needs.        Moreover, Appellant

asserts that when this sentence is added to a consecutive sentence he is

serving on a different unrelated docket, he has a cumulative minimum

sentence of over thirty years imprisonment, which he characterizes as a life

sentence.

      In analyzing Appellant’s claim that his sentence is excessive, we

emphasize that:

      [a] defendant may raise a substantial question where he
      receives consecutive sentences within the guideline ranges if the
      case involves circumstances where the application of the
      guidelines would be clearly unreasonable, resulting in an
      excessive sentence; however, a bald claim of excessiveness due
      to the consecutive nature of a sentence will not raise a
      substantial question.

Id. at 45 (quoting Commonwealth v. Dodge, 77 A.3d 1263, 1270

(Pa.Super. 2013)). To the extent that Appellant challenges the trial court’s

discretion to impose a sentence consecutive to another docket, we find

Appellant’s bald claim of excessiveness does not raise a substantial question.

      However, Appellant’s argument that the sentencing court failed to

consider his rehabilitative needs while solely focusing on the protection of

the public does raise a substantial question for our review.      However, an



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appellant’s mere dissatisfaction with the sentencing court's weighing of

sentencing considerations is not sufficient to raise a substantial question for

our review. See Commonwealth v. Moury, 992 A.2d 162, 175 (Pa.Super.

2010) (noting that the appellant’s allegation that the sentencing court

“refused to weigh the proposed mitigating factors as Appellant wished,

absent more, does not raise a substantial question”).

      Even assuming arguendo that Appellant had raised a substantial

question for our review, his challenge to the trial court’s sentencing

discretion has no merit.       Consistent with this finding, the trial court

explained its rationale for its sentence as follows:

      [A]fter considering both mitigating and aggravating factors, the
      trial court sentenced [Appellant] to guideline sentences that ran
      consecutively for his convictions of rape, IDSI, and terroristic
      threats; the trial court imposed an aggregate sentence of 165
      months to 330 months incarceration. In imposing the sentence,
      the trial court considered, inter alia, the report of the Sex
      Offender Assessment Board that classified [Appellant] as a
      sexually     violent   predator,    [Appellant’s]   pre-sentence
      investigation (including his employment history and education),
      [Appellant’s] mental health evaluation and treatment (including
      his history of drug and alcohol abuse), [Appellant’s] prior
      unsuccessful court supervision as a juvenile, the sentencing
      memoranda submitted by [Appellant] and the Commonwealth,
      its opportunity to observe [Appellant] during the trial and
      sentencing hearing, counsel’s arguments, observations of the
      victim as she testified, and [Appellant’s] continued lack of
      remorse despite the verdict. The trial court also considered the
      particular factual circumstances of this crime, i.e., that
      [Appellant] cornered the victim in an abandoned warehouse and
      threatened her with physical harm so that she would acquiesce
      to his prolonged sexual assault.            Given all of these
      considerations, the trial court imposed a sentence that
      considered the protection of the public, the impact on the victim
      and the community, and [Appellant’s] rehabilitative needs.

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T.C.O. at 12-13 (footnote omitted).

      In light of the foregoing, we conclude that the trial court properly

exercised its discretion in fashioning Appellant’s sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2016




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