J. A32001/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
WILLIE HART,                               :
                                           :
                         Appellant         :     No. 381 EDA 2016

            Appeal from the Judgment of Sentence January 8, 2016
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0013669-2013

BEFORE: DUBOW, RANSOM, AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 24, 2017

        Appellant, Willie Hart, appeals from the Judgment of Sentence entered

by the Philadelphia County Court of Common Pleas following his convictions

after a bench trial of Rape by Forcible Compulsion, Sexual Assault, Incest,

Indecent Assault, Indecent Exposure, and Simple Assault.1        After careful

review, we affirm Appellant’s convictions, vacate Appellant’s Judgment of

Sentence, and remand for resentencing.

        The trial court stated the relevant facts in its Pa.R.A.P. 1925(a)

Opinion as follows:

        In March of 2013, [M.M.] left her husband after being physically
        abused by him for many years. With little money and no place


*
    Retired Senior Judge Assigned to the Superior Court.
1
  18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3124.1; 18 Pa.C.S. § 4302; 18
Pa.C.S. § 3126; 18 Pa.C.S. § 3127; and 18 Pa.C.S. § 2701, respectively.
J. A32001/16


     to live, she turned to her father, [Appellant,] for support. She
     accepted his offer to live with him until she got back on her feet.
     Shortly after she moved in, [Appellant] started to go into her
     room as she slept. He would crawl into her bed, get on top of
     her, and then vaginally rape her. This occurred on multiple
     occasions. The last sexual assault occurred on October 9, 2013.
     During the months she resided with [] Appellant, [M.M.] tried to
     stay out of the house as much as possible. When she was in the
     home, she attempted to barricade herself in her bedroom by
     blocking her door so the Appellant could not get in.

     On October 11, 2013[,] Appellant became embroiled in a verbal
     altercation with the victim over her boyfriend.        Appellant
     threatened to kill her, grabbed her by her hair[,] and slammed
     her head into the wall. When she tried to escape [] Appellant by
     fleeing into her bedroom, he followed her, grabbed her legs[,]
     and pulled her off the bed. He punched her in the head and face
     multiple times. When the police arrested [Appellant,] the victim
     said to the police “Please don’t let him hurt me anymore. Please
     protect me.” She also disclosed to them that [] Appellant had
     been raping her for months.

                               *     *     *

     On October 11, 2013[,] Appellant was arrested and charged with
     Rape, Sexual Assault, Incest[,] and related offenses. On May
     19, 2015, following a bifurcated waiver trial before this Court,
     Appellant was found guilty of Rape, Sexual Assault, Incest,
     Indecent Assault, Indecent Exposure[,] and Simple Assault. The
     matter was continued for a Megan’s Law assessment.             On
     January 8, 2016[,] Appellant was determined to be a Sexually
     Violent Predator and given his registration and reporting
     protocols. That same day he was sentenced to thirty (30) to
     sixty (60) years[’] imprisonment.       On January 20, 2016[,]
     Appellant filed a timely Notice of Appeal to the Superior Court of
     Pennsylvania and pursuant to Pa.R.A.P. 1925(b) Appellant was
     instructed to file a Statement of Errors Complained of on Appeal.
     Appellant requested additional time to respond to the 1925(b)
     order due to the unavailability of transcripts. That request was
     granted.     Appellant filed his 1925(b) Statement of Matters
     Complained of on Appeal on March 16, 2016.

     On March 14, 2016, following an initial review of the file, this
     Court discovered that the sentence imposed was in error and


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      wrote to the Superior Court requesting that the matter be
      remanded to correct the sentencing error. The Commonwealth
      responded on March 21, 2016[,] with a letter stating they were
      not opposed to the remand. Appellant filed an Application for
      Remand on March 27, 2016. That request was denied on May 3,
      2016.

Trial Court Opinion, 5/25/16, at 1-3.

      Appellant presents six issues for our review:

      [1.] Where there was no evidence of forcible compulsion, was
      the evidence sufficient to find [Appellant] guilty beyond a
      reasonable doubt of Rape by Forcible Compulsion?

      [2.] Where the complaining witness, age 40 and competent,
      testified incoherently, inter alia, that “I don’t like black people”
      and was incapable of testifying about when any alleged sexual
      assault occurred or detailing any sexual assault, are guilty
      verdicts on all charges against the weight of the evidence,
      particularly where verdicts were rendered nine months after the
      facts finder’s [sic] last opportunity to assess credibility?

      [3.] Where Commonwealth witness John Fisher provided hearsay
      testimony under the “prompt complaint” exception, and there
      was no evidence whatsoever as to when the competent adult
      complainant informed this witness of the alleged sexual
      assault(s), did the [t]rial [c]ourt err in allowing this “prompt
      complaint” testimony over [Appellant’s] objections?

      [4.] Where [Appellant] was promised by the Commonwealth and
      the [t]rial [c]ourt that “No mandatories would be involved,”
      during his jury waiver colloquy, was his waiver of his right to a
      jury trial knowing, intentional[,] and voluntary?

      [5.] Where the Commonwealth expressly and repeatedly advised
      it would not be seeking mandatory sentences, was [Appellant’s]
      sentence of 25-50 years on the charge of Rape under 42
      Pa.S.C.[] § 9718.2(a)(1) improper?

      [6.] Did the [t]rial [c]ourt abuse the discretionary aspect of
      sentencing by imposing an aggregate sentence of 30-60 years[’]
      incarceration while failing to consider [Appellant’s] age, mental
      state[,] and other sentencing factors on the record?


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Appellant’s Brief at 6-7.

      In his first issue, Appellant avers that, even “accepting all of the

Commonwealth’s evidence as true, there was no evidence presented of the

forcible compulsion necessary for a rape conviction.” Appellant’s Brief at 25.

      We review challenges to the sufficiency of the evidence by considering

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.”

Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014). The trier of

fact—while passing on the credibility of the witnesses and the weight of the

evidence—is free to believe all, part, or none of the evidence.    Id. at 40.

Moreover, the trier of fact may base a conviction solely on circumstantial

evidence. Id. In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for that of the fact-finder. Id. at

39-40.

      Section 3121(a)(1) of the Crimes Code defines Rape by Forcible

Compulsion as follows:

      (a) Offense defined.--A person commits a felony of the first
      degree when the person engages in sexual intercourse with a
      complainant:

         (1) By forcible compulsion.

18 Pa.C.S. § 3121(a)(1).




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      The Crimes Code defines “forcible compulsion” in relevant part as

“[c]ompulsion by use of physical, intellectual, moral, emotional[,] or

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

      It is well-established that in order to prove the “forcible
      compulsion” component, the Commonwealth must establish,
      beyond a reasonable doubt, that [Appellant] used either physical
      force, a threat of physical force, or psychological coercion, since
      the mere showing of a lack of consent does not support a
      conviction for rape by forcible compulsion. In [Commonwealth
      v. Rhodes, 510 A.2d. 1217 (Pa. 1986)], our Supreme Court
      stated that forcible compulsion includes “not only physical force
      or violence, but also moral, psychological[,] or intellectual force
      used to compel a person to engage in sexual intercourse against
      that person’s will.” Rhodes, [510 A.2d at 1226]. Further, the
      degree of force required to constitute rape is relative and
      depends on the facts and particular circumstances of a given
      case.

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

citations omitted).

      Thus, the element of “forcible compulsion” denotes a perpetrator’s use

of superior force, physical or non-physical, to compel a person to engage in

sexual intercourse against that person’s will.     Rhodes, supra at 1226.

Stated another way, one can commit Rape by the application of superior

psychological or emotional force, whether express or implied, in the

complete absence of physical violence. Commonwealth v. Gonzalez, 109

A.3d 711, 720 (Pa. Super. 2015).       It is not necessary to prove that a

perpetrator physically overpowered the complainant. Id. at 721; see also

18 Pa.C.S. § 3107 (Resistance to physical force is not necessary to show

forcible compulsion.).


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      Moreover, this Court has held:

      that the degree of force involved in rape is defined, not in terms
      of the physical injury to the victim, but in terms of the effect it
      has on the victim’s volition. Accordingly, the force necessary to
      support convictions for rape need only be such as to establish
      lack of consent and to induce the [victim] to submit without
      additional resistance. . . .

Commonwealth v. Ables, 590 A.2d 334, 337 (Pa. Super. 1991) (citations

and quotations omitted).

      To determine whether Appellant’s use of physical or psychological

coercion is sufficient to have been compulsive, we examine the totality of

the circumstances, including such factors as:

      the respective ages of the victim and the accused, the respective
      mental and physical conditions of the victim and the accused,
      the atmosphere and physical setting in which the incident was
      alleged to have taken place, the extent to which the accused
      may have been in a position of authority, domination[,] or
      custodial control over the victim, and whether the victim was
      under duress.

Gonzalez, supra at 721 (quotation and emphasis omitted).

      A complainant’s testimony as to her state of duress and apprehension,

as well as the defendant’s treatment of her, can be sufficient to sustain the

verdict.   See Commonwealth v. Rough, 418 A.2d 605, 608 (Pa. Super.

1980); Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa. Super.

2005) (“[t]he uncorroborated testimony of the complaining witness is

sufficient to convict a defendant of sexual offenses.” (citations and

quotations omitted)).


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         The trial court rejected Appellant’s sufficiency challenge, concluding, in

summary,       that there    was sufficient   evidence   to   support Appellant’s

conviction for Rape by Forcible Compulsion because the victim testified that

Appellant raped her six times from March to October of 2013, and disclosed

her father’s crimes to John Fisher, her insurance agent, as well as to

Detective Peter Marrero and a nurse.           We agree with the trial court’s

assessment.

         The victim testified that Appellant forcibly raped her on at least six

occasions.      Detective Marrero testified that, in responding to the call to

Appellant’s home, he observed the bleeding victim cowering near the front

door, trembling, and clutching her chest, which he will “never forget because

it is the most fearful I’ve ever seen someone. [] Every time we spoke, she

like shivered. She was absolutely terrified.” N.T. Trial, 5/19/15, at 34-35.

         In support of his sufficiency challenge, Appellant isolates certain self-

serving portions of the victim’s testimony, and utterly ignores the important

context of the controlling nature of his relationship with his vulnerable

daughter. Viewing the totality of the evidence in the light most favorable to

the Commonwealth as the verdict winner, it is clear that the Commonwealth

proved each element of the offense. Appellant’s sufficiency challenge, thus,

fails.

         Appellant next avers that the jury’s verdict was against the weight of

the evidence because of a “nine month delay i[n] assessing credibility” and



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because     the   victim’s   testimony    was   “rife   with   inconsistency   and

incoherence[.]” Appellant’s Brief at 32.

      When considering challenges to the weight of the evidence, we apply

the following precepts:

          The weight of the evidence is exclusively for the finder of
          fact, who is free to believe all, none or some of the
          evidence and to determine the credibility of witnesses.

          Appellate review of a weight claim is a review of the
          exercise of discretion, not the underlying question of
          whether the verdict is against the weight of the evidence.
          Because the trial judge has had the opportunity to hear
          and see the evidence presented, an appellate court will
          give the gravest consideration to the findings and reasons
          advanced by the trial judge when reviewing a trial court’s
          determination that the verdict is against the weight of the
          evidence. One of the least assailable reasons for granting
          or denying a new trial is the lower court’s conviction that
          the verdict was or was not against the weight of the
          evidence and that a new trial should be granted in the
          interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015),

appeal denied, 138 A.3d 4 (Pa. 2016) (quotation marks and citations

omitted).

      “Resolving contradictory testimony and questions of credibility are

matters for the [finder of fact].”   Commonwealth v. Hopkins, 747 A.2d

910, 917 (Pa. Super. 2000). Further, “[i]n 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.” Talbert, supra at 546 (quotation marks and citation omitted).



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It is well-settled that we cannot substitute our judgment for that of the trier

of fact. Id. at 545.

      The trial court addressed Appellant’s weight of the evidence challenge,

including the delay in proceedings, as follows:

      The verdict in the instant case is not at all contrary to the
      evidence and does not shock one’s sense of justice. Error was
      not committed.

                                *     *     *

      Appellant asserts that this Court erred in allowing a nine-month
      bifurcation of his waiver trial.     He argues that “had the
      demeanor and substance of complainant’s testimony been fresh
      in the fact-finder’s mind at the time of the verdict, the outcome
      would have been very different.” While this is pure speculation
      with no support in the record, this Court had no difficulty
      recalling the demeanor and substance of the complainant’s
      testimony. Based on the overwhelming evidence of guilt there is
      no scenario which would have changed the outcome. Moreover,
      this Court made every effort to timely dispose of this case. The
      matter was bifurcated because a Commonwealth witness was
      not available the day of trial. There was no objection to the
      bifurcation. Thereafter the matter was listed for the conclusion
      of the testimony on October 6, 2014[,] where the defense
      requested a continuance; on November 24, 2014[,] where the
      defense requested a continuance; on January 20, 2015[,] where
      there was a joint request; on February 2, 2015[,] where there
      was a joint request; May 15, 2015[,] where there was a
      Commonwealth request[;] and May 19, 2015[,] where the trial
      resumed and testimony was concluded. While the delay was
      unfortunate, it in no way prejudiced Appellant and no error
      occurred.

Trial Court Opinion at 6 (citations omitted). We agree with the trial court’s

assessment.

      Appellant essentially asks us to reassess the credibility of the victim

and reweigh the testimony and evidence presented at trial. Appellant’s Brief


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at 30-37. We cannot and will not do so. The trial judge found credible the

victim’s testimony that Appellant forcibly raped her, which was corroborated

by other testimony and evidence. Thus, the verdict was not so contrary to

the evidence as to shock the court’s conscience, and the trial court properly

denied Appellant’s weight of the evidence claim.

      Appellant next claims that the trial court erred in permitting John

Fisher to testify at trial as a “prompt complaint” witness under Pa.R.E.

613(c) because “there is no way to ascertain the length of the delay in

reporting by the [victim]” since Fisher “had no idea when the [victim]

complained to him, not even the correct year.” Appellant’s Brief at 37-38.

      The “[a]dmission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.

Super. 2015) (citation and quotation omitted). “[A]n abuse of discretion is

not merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will[,] or partiality, as

shown by the evidence or the record.” Commonwealth v. Cameron, 780

A.2d 688, 692 (Pa. Super. 2001) (citation and quotation omitted).

      With respect to the prompt complaint exception, this Court has stated

the following:

      Pennsylvania Rule of Evidence 613(c)(1) allows evidence of prior
      consistent statements to rebut an express or implied charge of


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      fabrication, bias, improper influence or motive, or faulty
      memory. In cases involving sexual assault, Rule 613 authorizes
      the Commonwealth to present evidence in its case-in-chief of a
      prompt complaint by the victim because the alleged victim’s
      testimony is automatically vulnerable to attack by the defendant
      as recent fabrication in the absence of evidence of hue and cry
      on her part. Evidence of a complaint of a sexual assault is
      competent evidence, properly admitted when limited to establish
      that a complaint was made and also to identify the occurrence
      complained of with the offense charged.

Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004) (en

banc) (citations and quotations omitted).         See also Daniel J. Anders,

Ohlbaum on the Pennsylvania Rules of Evidence § 613.31 (2016 ed.

LexisNexis Matthew Bender).

      The trial court addressed Appellant’s evidentiary challenge as follows:

      Next[,] Appellant complains that this Court erred in admitting
      the testimony of John Fisher who testified as a prompt complaint
      witness.    The admissibility of evidence is within the sound
      discretion of the trial court and those evidentiary rulings will not
      be disturbed absent an abuse of that discretion. Fisher testified
      that he met the complainant at her father’s house. She came
      out to his car hysterical, incoherent[,] and distraught. It was not
      until she settled down that she told him her father had raped
      her. Although she did not state when he had raped her, the
      witness surmised based on her emotional condition that it had
      occurred the day before. This Court admitted the testimony of
      Fisher as an exception to the hearsay rule under the prompt
      complaint rule. In cases involving sexual assault, Rule 613
      authorizes the Commonwealth to present evidence in its case-in-
      chief of a prompt complaint by the victim because the alleged
      victim’s testimony is automatically vulnerable to attack by the
      defendant as recent fabrication in the absence of hue and cry on
      her part. Moreover, Fisher’s testimony corroborated the victim’s
      testimony in relevant parts.

Trial Court Opinion at 6-7 (citations omitted).




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      We agree with the trial court’s assessment. Our review of the certified

record shows that the trial court properly admitted Fisher’s testimony

because the surrounding circumstances of the disclosure, including the

content   of   the   victim’s   statements     and   her   demeanor,   sufficiently

demonstrated the promptness of the complaint. It was within the province

of the fact-finder to determine the weight and credibility of that testimony.

The trial court did not abuse its discretion in admitting Fisher’s testimony.

As a result, Appellant’s third issue merits no relief.

      Appellant’s next two issues pertain to the imposition of a mandatory

minimum sentence, in derogation of his jury waiver agreement. Appellant

contends that the trial court improperly imposed a mandatory minimum

sentence pursuant to 42 Pa.C.S. § 9718.2 because he had waived his right

to a jury trial in exchange for the Commonwealth’s promise not to pursue

any mandatory minimum sentences. Appellant’s Brief at 39-43. Appellant

also argues that the imposition of the mandatory minimum shows that his

waiver of his right to a jury trial was not knowing, intentional, and voluntary.

He is essentially seeking the “benefit of his bargain.”

      The Commonwealth and the trial court agree with Appellant that the

trial court improperly imposed the mandatory minimum sentence and that

this matter should be remanded for resentencing in accordance with the

terms of the original waiver agreement.




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      “In determining whether a particular [] agreement [between a

defendant and the Commonwealth] has been breached, we look to what the

parties to [the] agreement reasonably understood to be the terms of the

agreement.”    Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa.

Super. 2013) (citation and quotation marks omitted). “Such a determination

is made based on the totality of the surrounding circumstances, and any

ambiguities in the terms of the [] agreement will be construed against the

Commonwealth.” Id. (citation and quotation marks omitted).

      The trial court addressed Appellant’s sentencing issues as follows:

      Finally, Appellant raises a host of issues directed at his sentence.
      He argues that it was an error of law to accept his waiver of a
      jury trial because it was not knowing, intelligent[,] and
      voluntary. This argument is belied by the record. This Court
      conducted an on-the-record colloquy with the Appellant. In
      addition, counsel went over the written waiver colloquy form
      with Appellant in the courtroom and Appellant acknowledged
      going over the form with his attorney and understanding the
      rights he was giving up. That signed document was made part
      of the record in these proceedings. The waiver of a jury trial
      was knowing, intelligent[,] and voluntary.

      However, the sentence imposed was improper.          During the
      waiver colloquy, the Commonwealth clearly indicated they would
      not be seeking the mandatory minimum sentence for any of the
      charges. The fact that at sentencing the Commonwealth sought
      and received a mandatory sentence, renders the sentencing
      hearing a nullity and the matter should be remanded for
      sentencing consistent with the terms agreed upon during the
      waiver colloquy. As to all other aspects of Appellant’s appeal[,]
      the [J]udgment of [S]entence should be affirmed.

Trial Court Opinion at 7-8 (citations omitted).




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      Our review of the certified record confirms that Appellant must be

resentenced in accordance with the terms of his original agreement with the

Commonwealth: that is, without consideration of the mandatory minimum

sentencing provision pursuant to 42 Pa.C.S. § 9718.2.

      Because we are remanding for resentencing, we will not address

Appellant’s remaining issue.

      Appellant’s convictions for Rape by Forcible Compulsion, Sexual

Assault, Incest, Indecent Assault, Indecent Exposure, and Simple Assault

affirmed. Judgment of Sentence vacated. Case remanded for resentencing

only. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2017




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