J-S64037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

NOEL LLOYD SMILE

                            Appellant                       No. 161 EDA 2016


             Appeal from the Judgment of Sentence April 23, 2013
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004456-2012


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED AUGUST 23, 2016

        Appellant appeals nunc pro tunc from the judgment of sentence

entered in the Court of Common Pleas of Delaware County following his

conviction at a bench trial on the charges of rape by forcible compulsion,

burglary, and simple assault.1                 Appellant alleges the evidence was

insufficient to sustain his convictions. We affirm.

        Appellant was arrested in connection with the rape of S.H., and on

December 4, 2012, represented by counsel, he proceeded to a bench trial.

The trial court has aptly summarized the testimony and evidence presented

at trial as follows:

____________________________________________


1
    18 Pa.C.S.A. §§ 3121(a)(1), 3502(a)(1), and 2701(a)(1).


*Former Justice specially assigned to the Superior Court.
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            On May 24, 2012, at approximately midnight, [S.H.] went
     to sleep in her apartment. . .in Delaware County. (N.T. 12/4/12
     p. 26). She was awakened by her upstairs neighbor, Appellant,
     knocking on her window. He motioned for her to open the
     outside door for him and she complied. From the hallway, not in
     her apartment yet, he said: “[O]h, [S.H.], you’re playing with
     me because you know you wants me. You wants me [a] long
     time and I’m not giving in. . . .” (Id. p. 49). [S.H. testified
     Appellant then] grabbed her throat, shoved her backwards into
     her apartment and onto a table. (Id.). He said, “[S.H.], you—
     do you know that I should kill you right now.” (Id.). [S.H.
     testified Appellant] lifted her up and shoved her into the
     bedroom onto her bed. (Id.). [S.H.] tried to get up and fought
     Appellant. (Id. pp. 50-51). He [went on top of her and] hit her
     with a closed fist in the face several times. (Id. pp. 49-50). He
     stood her up, [held her by the throat,] removed her clothes, and
     then removed his own clothes. (Id. pp. 51-61). Then, he sat on
     the bed, [shoved S.H. into a kneeling position,] and forced her
     to perform oral sex upon him. (Id. pp. 66-69). [S.H. testified
     that she did not want to engage in oral sex with Appellant and]
     [s]he was crying throughout the ordeal. (Id. pp. 69, 74, 75).
     [S.H. testified she complied with Appellant’s demand to perform
     oral sex because, “I didn’t want him to hit me anymore.” (Id. p.
     70)]. [Appellant then] shoved her on the bed and had vaginal
     sex with her. (Id. pp. 73-74). [S.H. testified that she was
     “crying, praying for her boyfriend to come.” (Id. p. 74)].
     Thereafter, she ran out the back door, called her boyfriend, and
     then called the police. (Id. p. 75).

            Patrolman James J. Murray of the Colwyn Borough Police
     Department testified that he responded to the area of Third and
     Walnut Streets. . .in the early morning hours of May 24, 2012[,]
     for a call relating to the sexual assault of [S.H.] [S.H.] was
     transported to Mercy Fitzgerald Hospital in Darby, Pennsylvania
     for her injuries. The officer observed “a fresh lump under her
     left eye.” (N.T. 12/5/12 p. 6).

           As Officer Murray and a second officer, Officer Croddock,
     looked for Appellant, at [S.H.’s] residence, they “heard a loud
     crash towards the rear of the residence.” (Id. p. 7). They heard
     a fence rattling and heard somebody hopping a fence. They
     followed and found Appellant on the ground attempting to hide
     underneath a bow window. Appellant [had] broke[n] his leg in
     his attempt to flee the apartment building. (Id. pp. 7-8). The


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     Officer later testified that he believed Appellant rolled off the
     awning which extended from the second floor, where Appellant’s
     apartment was located. (Id. p. 14).

           Without the Officers asking questions, Appellant blurted
     out a denial. [Officer Murray testified,] “When I first came upon
     [Appellant], his first statement is that he didn’t do it. She—that
     he didn’t know why she was saying that. That she doesn’t know
     why he—he doesn’t know why she would say that he did it.”
     (Id. pp. 9-10). Another Officer, Detective Dave Taylor, who was
     also on the scene at about [4:00 a.m.], testified that Appellant
     subsequently consented to a DNA swab and when he was
     obtaining the swab from Appellant he blurted out: “[S]he knows
     I didn’t do that to her. I don’t know why she’s doing that to
     me.” (Id. p. 19).

            Dr. Michael McCollum, an [emergency room] physician at
     Mercy Fitzgerald, testified that he examined [S.H.] on May 24,
     2012. He determined that there was a bruise on her left cheek
     with an abrasion and there was swelling around the thyroid area
     and the neck in general. (N.T. 12/4/12 p. 124). The Doctor
     determined that the injuries he observed were consistent with
     his interview of [S.H.] When the District Attorney showed Dr.
     McCollum Exhibit C-10, a photograph of [S.H.] in her hospital
     bed, and asked him about the freshness of the wound, he
     testified: “[W]ell they look relatively fresh. There’s very little
     discoloration underneath the skin. The abrasion looks fresh. It
     has not—a scab has not developed on the skin, so it looks within
     a few hours old.” (Id. p. 126). The Doctor also testified to
     [S.H.’s] entire eye socket being swollen, her cheek being
     swollen, and her vaginal mucosa being swollen. He testified
     within a reasonable degree of medical certainty that her vaginal
     injury was consistent with penetration force. (Id. pp. 130-33).

            Appellant [testified at trial]. [Specifically, he] testified that
     he never forced [S.H.] to perform oral and vaginal sex with him,
     rather the sex was consensual. (12/5/12 pp. 45-82). [Appellant
     testified that S.H. initiated the encounter, and he denied that he
     ever grabbed S.H. by the throat or hit her. (Id. at 49-79).
     Appellant testified that, prior to their sexual encounter on May
     24, 2012, he and S.H. were friends. (Id. at 64-65)].




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Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed 3/16/16, at 1-3 (footnote

omitted).

        At the conclusion of the bench trial, the trial court convicted Appellant

of the offenses indicated supra, and on April 23, 2013, the trial court

imposed the following sentence: rape by forcible compulsion-six to twelve

years in prison, to be followed by five years of probation; burglary-two to

four years in prison, to run concurrently to the sentence imposed for rape by

forcible compulsion; and simple assault-two years probation, to run

consecutively to the sentence imposed for rape by forcible compulsion.

Further, Appellant was found to be a sexually violent predator and subjected

to lifetime registration under Megan’s Law.

        Appellant filed a timely motion for reconsideration of his sentence in

which he sought a lesser sentence due to mitigating circumstances, and the

trial court denied his motion on May 13, 2013. Appellant did not file a timely

direct appeal; however, on January 24, 2014, Appellant filed a timely pro se

PCRA2 petition seeking to file a direct appeal nunc pro tunc.          By order

entered on May 1, 2014, the PCRA court reinstated Appellant’s direct appeal

rights nunc pro tunc.

        Thereafter, Appellant filed pro se correspondence indicating that he did

not wish to file a direct appeal; but rather, he wished to have his remaining

____________________________________________


2
    Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.



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PCRA claims litigated.        On May 30, 2014, the PCRA court ordered that

Appellant’s direct appeal rights be reinstated nunc pro tunc.         Further, the

PCRA court specifically clarified that “in [Appellant’s] filing of a nunc pro tunc

appeal, he is not waiving his rights under the [PCRA] and may proceed with

his PCRA petition at the conclusion of appellate review of his direct appeal.”

PCRA Court’s Order, filed 5/30/14, at 1 n.1 (italics in original).3

       Appellant did not file a direct appeal nunc pro tunc to this Court; but

rather, on April 24, 2015, Appellant filed a pro se PCRA petition,4 which was

to be considered a timely first PCRA petition.5      The PCRA court appointed

counsel to represent Appellant, and counsel averred that previous counsel

was ineffective in failing to file a direct appeal nunc pro tunc following the
____________________________________________


3
  We note that a lower court may modify its order within thirty days if an
appeal is not taken therefrom. 42 Pa.C.S.A. § 5505.
4
  Although this petition was docketed on April 29, 2015, we deem it to have
been filed when Appellant handed it to prison officials on April 24, 2015.
See Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011)
(discussing the prisoner mailbox rule).
5
   “This Court has explained that when a PCRA petitioner's direct appeal
rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent
PCRA petition will be considered a first PCRA petition for timeliness
purposes.” Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super.
2013) (citations omitted). Therefore, in the case at bar, the time for filing a
PCRA petition restarted thirty days after the May 30, 2014, order reinstating
Appellant's direct appeal rights, and a PCRA petition filed on or before
approximately June 30, 2015, will be considered a timely first PCRA petition.
See id. The fact Appellant did not timely file a direct appeal nunc pro tunc
following the entry of the May 30, 2014, order does not alter this analysis
and conclusion. See id. at 1286 n.3.




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PCRA court’s May 30, 2014, order.              The PCRA court agreed and, thus, by

order filed on November 10, 2015, the PCRA court again reinstated

Appellant’s direct appeal rights nunc pro tunc.6             This counseled appeal

followed on January 7, 2016,7 and all Pa.R.A.P. 1925 requirements have

been met.

       On appeal, Appellant challenges the sufficiency of the evidence

sustaining his convictions. Our standard of review in assessing a challenge

to the sufficiency of the evidence is well-settled. “The standard we apply in

reviewing the sufficiency of the evidence is whether viewing all of 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. Garland, 63

____________________________________________


6
  Due to counsel’s ineffectiveness in failing to file a requested direct appeal
nunc pro tunc following the PCRA court’s May 30, 2014, order, the PCRA
court was permitted to again reinstate Appellant’s direct appeal rights nunc
pro tunc via the subsequent timely PCRA petition, which was filed on April
24, 2015. See Turner, supra; Commonwealth v. Ousley, 21 A.3d 1238
(Pa.Super. 2011).
7
  We note that an appeal must be filed within thirty days of the entry of the
order reinstating direct appeal rights. Pa.R.A.P. 903(a). However, in this
case, the PCRA court specifically provided in its November 10, 2015, order
that Appellant had sixty days to file a direct appeal nunc pro tunc. See
PCRA Court’s Order, filed 11/10/15, at 1.           Due to the PCRA court’s
misstatement of the appeal period, which constitutes a breakdown in the
court’s operation, we shall overlook the untimeliness of the instant appeal.
See Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa.Super. 2001)
(declining to quash an appeal where the failure to file a timely appeal was
the result of the trial court’s misstatement of the appeal period).



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A.3d 339, 344 (Pa.Super. 2013).       “Any doubts concerning an appellant's

guilt [are] to be resolved by the trier of fact unless the evidence was so

weak and inconclusive that no probability of fact could be drawn therefrom.”

Commonwealth v. West, 937 A.2d 516, 523 (Pa.Super. 2007). Further,

“the Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.”     Commonwealth v. Perez, 931 A.2d 703, 707 (Pa.Super.

2007).

      Here, Appellant was convicted of rape by forcible compulsion under 18

Pa.C.S.A. § 3121(a)(1), which provides, in relevant part, that “[a] person

commits a felony of the first degree when the person engages in sexual

intercourse with a complainant. . .by forcible compulsion.”    “[P]enetration,

however slight,” of the female genitals with the penis is necessary to

establish the element of sexual intercourse. 18 Pa.C.S.A. § 3101. Moreover,

the Crimes Code defines “forcible compulsion” as “[c]ompulsion by use of

physical, intellectual, moral, emotional or psychological force, either express

or implied.”   18 Pa.C.S.A. § 3101.    “Something more” than mere lack of

consent is necessary to establish “forcible compulsion.” Commonwealth v.

Smolko, 666 A.2d 672, 676 (Pa.Super. 1995). Forcible compulsion is a

determination made in each case based on the totality of the circumstances

that have been presented to the fact-finder. See id. at 675.




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      Here, Appellant does not dispute that he and S.H. engaged in sexual

intercourse on May 24, 2012. However, he contends the record reveals the

encounter was consensual and lacking any evidence of forcible compulsion.

      In rejecting Appellant’s sufficiency of the evidence claim, the trial court

determined:

            [S.H.] testified that as she opened the door to her
      apartment, Appellant grabbed her by the throat, shoved her into
      the bedroom, punched her, forced her into performing oral sex
      upon him and then vaginally raped her. Appellant inserted his
      penis into [S.H.’s] vagina without [her] consent. [S.H.] testified
      that she did not want to have sex with Appellant. She cried
      during the ordeal.

             [S.H.’s] testimony at trial is sufficient to support a
      conviction for the charge of Rape by Forcible Compulsion.
      Appellant grabbing her by the throat, shoving her into the
      bedroom, and punching her established the use of physical
      force[.] Based upon [S.H.’s] credible testimony that Appellant
      forcibly grabbed her throat and with a closed-fist punched her in
      the face in order to engage in sexual intercourse with her, there
      was sufficient evidence to sustain the Rape by Forcible
      Compulsion conviction in this case. Further, Dr. McCollum’s
      testimony as to the physical injuries to [S.H.’s] neck and eye
      area corroborated her version of the facts. The Doctor testified
      that the abrasion looked fresh, it didn’t have a scab on it, and so
      it looked within a few hours old. The Doctor also testified to
      [S.H.’s] entire eye socket being swollen, her cheek being
      swollen, and her vaginal mucosa being swollen. He testified
      within a reasonable degree of medical certainty that [S.H.’s]
      vaginal injury was consistent with penetration by force.

Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed 3/16/16, at 9-10.

      The record supports the trial court’s findings in this regard. Under our

standard of review, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences,



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we conclude the evidence of Appellant’s physical force used in the rape,

which resulted in documented bodily injuries to the victim, was more than

sufficient to prove forcible compulsion. 18 Pa.C.S.A. § 3101; Smolko,

supra.

      Appellant was also convicted of burglary under 18 Pa.C.S.A. §

3502(a)(1), which provides, in relevant part, that:

      A person commits the offense of burglary if, with the intent to
      commit a crime therein, the person: (1) enters a building or
      occupied structure, or separately secured or occupied portion
      thereof that is adapted for overnight accommodations in which
      at the time of the offense any person is present[.]

18 Pa.C.S.A. § 3502(a)(1).     Relevantly, it is a defense to burglary if the

“actor is licensed or privileged to enter.” 18 Pa.C.S.A. § 3502(b).

      As our Supreme Court has indicated:

      Under Pennsylvania law the crime of burglary is defined as an
      unauthorized entry with the intent to commit a crime after entry.
      18 Pa.C.S.[A.] § 3502; Commonwealth v. Wilamowski, 534
      Pa. 373, 633 A.2d 141 (1993). The intent to commit a crime
      after entry may be inferred from the circumstances surrounding
      the incident. This intent may be inferred from actions as well as
      words. However, actions must bear a reasonable relation to the
      commission of a crime.

Commonwealth v. Alston, 539 Pa. 202, 206-07, 651 A.2d 1092, 1094

(1994) (footnote and citations omitted).    Moreover, the Commonwealth is

not required to specify what crime the defendant was intending to commit

upon entering the premises. See id.

      In the case sub judice, Appellant contends the evidence reveals that

S.H. gave him permission to enter her residence and that he did not intend

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to commit a crime after entry. In rejecting Appellant’s sufficiency claim, the

trial court stated the following:

            [S.H.] had gone to sleep for the evening but was
      awakened by Appellant “knocking on [her] window.” (N.T.
      12/4/12 p. 39). She moved the curtain and saw that it was
      Appellant, her upstairs neighbor. He gesture[d] for her to open
      the door. The apartments are configured such that Appellant
      and [S.H.] can both enter the front door and enter into a
      common hallway. The common hallway leads to [S.H.’s]
      apartment door on the first floor and Appellant enters his
      apartment upstairs, on the second floor. [S.H.] thought that he
      was locked out of the front door but in fact he was in the
      common hallway and was trying to enter her apartment. (Id. p.
      44). Appellant then said: “[Y]ou better stop playing with me. I
      know you want me.” [S.H. testified that then] “he held [her] by
      [her] throat.”     (Id. p. 47).   [He] forced his way into her
      apartment. She testified [on direct examination]:
            Q: Was he still right on the other side of the door or
            was he in your. . . .
            A: [U]m-hum[.]
            Q: [S]o he was on the other side?
            A: Right.
            Q: And you were right inside your apartment?
            A: Right.
                                      ***
            Q: And he grabbed you by your throat?
            A: Right.
            Q: What did he do after he grabbed you by your
            throat?
            A: He grabbed me by my throat and shoved me in
            my living room on this table right here [in the
            photo]. . . .
            Q: So he pushed you backwards[?]
            A: He shoved me, right. And I went on the table.
      (Id. pp. 47-48).
            Here, Appellant entered. . .[S.H.’s] apartment. He entered
      the apartment with the intent to commit the crime of [r]ape[.]
      [S.H.’s] apartment was not open to the public. Appellant did not
      have permission to enter [S.H.’s] apartment, he forced his way
      into the apartment. Finally, [S.H.’s] apartment was an occupied
      structure, that was adapted for overnight accommodations (she


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      testified she was raped in her bedroom) and at the time of the
      offense [S.H.] was present. . . .
             [T]he evidence [reveals] that Appellant gained entrance
      only by grabbing [S.H.’s] throat and forcing her backwards
      through the door, [which] he entered only to attack her, and
      that he never stated to her any reason or purpose for the entry
      but to attack her[.] [S.H.’s testimony] permitted the fact-finder
      to infer that Appellant was neither licensed nor privileged to
      enter the apartment. Therefore, there was sufficient evidence to
      sustain Appellant’s conviction for the charge of [b]urglary.

Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed 3/16/16, at 11-13.

      The record supports the trial court’s findings in this regard. Under our

standard of review, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences,

we conclude the evidence of Appellant’s use of physical force upon S.H. in

order to gain entry into her apartment during the evening hours is sufficient

to sustain Appellant’s conviction for burglary. 18 Pa.C.S.A. § 3502(a)(1).

Contrary to Appellant’s assertion, the evidence sufficiently establishes that

Appellant intended to commit a crime (rape) when he entered S.H.’s

apartment and he was not given permission to enter the apartment.

Although Appellant would have us view the evidence in the light most

favorable to him, and accept his version of events, such is not the

appropriate standard of review. Garland, supra.

      Finally, Appellant was convicted of simple assault under 18 Pa.C.S.A. §

2701(a)(1), which provides that “[e]xcept as provided under section 2702

(relating to aggravated assault), a person is guilty of assault if he: (1)

attempts to cause or intentionally, knowingly or recklessly causes bodily

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injury to another[.]” 18 Pa.C.S.A. § 2701(a)(1). “Bodily injury” is defined

as “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. §

2301.

               Furthermore, it is axiomatic that simple assault does not
        require a victim to suffer actual bodily injury. The attempt to
        inflict bodily injury may be sufficient.     This intent may be
        inferred from the circumstances surrounding the incident if a
        specific intent to cause bodily injury may reasonably be inferred
        therefrom.

Commonwealth v. Polston, 616 A.2d 669, 679 (Pa.Super. 1992) (citations

omitted).

        In the case sub judice, Appellant contends the evidence reveals that

S.H. received the injuries at issue from a physical altercation with her

boyfriend, and not from any incident occurring between her and Appellant.

In rejecting Appellant’s claim, the trial court indicated the following:

              Here, Appellant hit [S.H.] in the face with a closed fist.
        (N.T. 12/4/12 pp. 49-50). [S.H. testified that] [“[h]e] shoved
        me on the bed and then went over me, came over me, and then
        hit me twice in my face again.” She was required to go to the
        hospital to seek treatment for her injury. Dr. McCollum, the
        [emergency room] physician, described her injury: “[T]he area
        around her left eye is swollen and bruised and there’s an
        abrasion beneath her left eye. Her upper eyelid here is also—
        appears to be bruised.” (Id. p. 130). He continued: “[T]he
        entire eye socket is swollen and her check. . . is also swollen
        there, too.” (Id. p. 130).

Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed 3/13/16, at 14.

        The record supports the trial court’s findings in this regard. Under our

standard of review, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences,

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we conclude the evidence establishes that S.H. suffered actual bodily injury

as a result of Appellant’s assault upon her. 18 Pa.C.S.A. § 2701(a)(1).

Thus, the evidence is sufficient to sustain Appellant’s conviction for simple

assault on this basis.

      For all of the foregoing reasons, we affirm Appellant’s judgment of

sentence.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2016




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