J-A10042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHESTER VERNON ROBERTS

                            Appellant               No. 1278 MDA 2014


             Appeal from the Judgment of Sentence June 26, 2014
             In the Court of Common Pleas of Huntingdon County
              Criminal Division at No(s): CP-31-CR-0000353-2012


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED APRIL 17, 2015

        Chester Vernon Roberts files this direct appeal from his judgment of

sentence for rape by forcible compulsion.1 We affirm.

        The relevant procedural history is as follows. On August 3, 2011, the

police filed a criminal complaint charging Roberts with rape and other

offenses.2    Roberts was not arrested until June 25, 2012.   On January 4,

2013, Roberts filed a motion to dismiss under Pa.R.Crim.P. 600. Following a

hearing, the trial court denied the Rule 600 motion. On November 13-14,

2013, the case proceeded to trial. A jury found Roberts guilty of rape, and

the trial court sentenced Roberts to 77-240 months’ imprisonment, a fine of
____________________________________________


1
    18 Pa.C.S. § 3121(a)(1).
2
  All charges other than rape by forcible compulsion were dismissed before
trial.
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$1,000.00 and restitution in the amount of $750.00.      Roberts filed timely

post-sentence motions, all of which the trial court denied except for a motion

to modify Roberts’ sentence. On June 26, 2014, the trial court re-sentenced

Roberts to the same terms of imprisonment and restitution but removed his

fine. Roberts filed a timely notice of appeal, and both Roberts and the trial

court complied with Pa.R.A.P. 1925.

      The trial court summarized the evidence against Roberts as follows:

            [Roberts], who is 32 years of age, testified that he
            spent the evening of May 25, 2011, drinking beer at
            the Friendly Tavern in downtown Huntingdon. He
            was at the time separated from his girlfriend, Jerrica
            Spell, the half-sister of [S.M.], the victim in this
            case. [Roberts] left the Friendly around 11:00 and
            walked several blocks to his sister’s residence where
            he planned to spend the night. He said he was
            ‘buzzed’ but not drunk and his intention was to sleep
            a couple hours before meeting his brother to go to
            Williamsport to do a roofing job. At his sister’s he
            reported changing into his work clothes and then
            laying down on a bed.

            At 12:02 a.m., May 26 [] Roberts texted [S.M.]
            ‘what’s up’. At 12:03 [S.M.] responded ‘not much
            why?’. [Roberts] answered ‘my cousin, Kenny, wants
            to meet you, l told him about you and don’t tell
            Zack.’ [S.M.], who was 19 years of age on the date
            of the incident, lived with her boyfriend, Zack
            Hydrick, several blocks from [Roberts]’s sister’s
            residence. She testified that she knew [Roberts]
            since she and her sister, Jerrica, were very close and
            ‘hung out’ every day with Jerrica’s baby. She said
            that while she didn’t like Vernon, she had no reason
            not to trust him and that’s why she responded to his
            text which she admitted she found weird.

            At 12:06 [S.M.] texted ‘who is your cousin, Kenny,
            and why does he wanna meet me lol’. [Roberts]

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          answered at 12:09 ‘he is cool and if you want to
          meet him tell Zack you have to walk somewhere and
          meet us in the alley from where you live, trust me
          you will like him’. [S.M.] decided to go out and see
          what was going on. She told her boyfriend what she
          was doing and they agreed to keep in contact. She
          was wearing, she said, a blue tank top, a pair of jean
          shorts and flip-flops. She had a messenger bag.

          Outside she found [Roberts] waiting and the two
          started walking in the direction of the J. C. Blair
          Hospital since [Roberts] had told her that Kenny
          lived near the hospital. At 12:33 [S.M.] texted Zack
          ‘Everything seems okay … I’ll text you.’ At the
          intersection of 12th Street and Warm Springs
          Avenue there is a path that leads to houses near the
          top of a hill that is adjacent to the hospital.
          [Roberts], [S.M.] said, told her that his cousin lived
          in one of the houses and [S.M.] testified she could
          see lights on in one of the houses. They started up
          the path and [S.M.] indicated it was dark in a text to
          Zack. She testified that the path was kind of paved
          and then it stopped and started getting rough with
          leaves and stuff. She said she questioned [Roberts]
          as to whether or not there was a front way up to the
          house. She said she started to turn around to go
          back down the path when [Roberts] grabbed her
          from behind and pushed her onto the ground. She
          tried to stand up, she said, when he grabbed her
          around the face. She grabbed his free hand and
          testified there was something in it. At first she said
          she didn’t know what the object was so she held on.
          The object was a knife and she asked him what he
          was going to do. He told her, she said, that if she
          yelled he would stick her. She promised not to yell
          and he loosened his grasp and pulled the knife out of
          her hand. Although, [S.M.] said, she never saw the
          instrument, she is certain it was a knife because her
          hand was cut.

          [Roberts] started pulling her shorts off and kept
          telling her he had always wanted her. Her glasses
          got knocked off and she said she was in shock. It
          was a grassy area she said, but [Roberts] was

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          unsuccessful in getting her clothes off. She lost an
          earring but eventually stood up and managed to go
          back down the hill a couple steps toward the streets.
          She was however pulled down again, she said, and
          this time he was able to pull her pants off. He turned
          her around, she said, and attempted anal sex with
          no success. He turned her around again and made
          her touch him which made it possible for him to have
          vaginal intercourse with her. She didn’t know, she
          said, if he had a condom and she could not say if he
          ejaculated inside her. He penetrated her, she said,
          three (3) or four (4) times over a thirty (30) second
          period. The area where the actual intercourse
          occurred, she testified, was leaf covered.

          [Roberts] stood up then and got dressed. He couldn’t
          find his phone. [S.M.] said she tried to act normal
          and with the use of her cell phone helped him find
          his. Her phone, she said, started ringing and she
          answered. It was Zack calling and she did not tell
          him what had just happened. They walked out and
          with the benefit of street lights she saw her hand
          was bleeding. He was wearing dark jeans, sneakers
          and a grey sweatshirt, she said. Also, she said, he
          was wearing work gloves.

          At home she told Zack what had happened. At 1:16
          [Roberts] texted her ‘l am sorry please believe me
          on Nevaeh[‘s] life’. Nevaeh is the baby [Roberts] and
          Jerrica have together. [S.M.] responded at 1:19
          ‘IDK.’  At 1:23 [Roberts] texted ‘Please don’t hate
          me will you text me tomorrow’. Curiously at 1:24
          [S.M.] texted ‘Yes’ to which at 1:25 [Roberts]
          responded ‘Do you hate me’.

          [S.M.] and Zack then went to her mother’s home
          and from there to the J.C. Blair Hospital where they
          arrived at 1:45 a.m. At 2:04 ER staff at the hospital
          notified the Huntingdon Borough Police. The hospital
          records indicated that [S.M.] presented ‘tearful,
          covered in dirt, leaves in hair. No shoes. Blood on
          clothing and holding blood covered paper towels in
          left hand’. [S.M.]’s statement to the ER personnel as


                                  -4-
J-A10042-15


          to what happened was remarkably consistent with
          her testimony at trial.

          Ms. Stephanie Stratton, a sexual assault nurse
          examiner, testified she was called from home to do
          an evaluation. She arrived at the hospital at 2:50 to
          do her examination which she allowed is quite
          intrusive.

          Nurse Stratton reported that [S.M.] was physically,
          visibly upset, crying, disheveled. She had leaves, she
          said, and bruises and abrasions on her body. In this
          regard, she noted on her report that above her right
          eye she had redness and an abrasion and laceration.
          Also, the nurse documented a laceration to the
          bottom lip and that the patient was complaining that
          her jaw was sore. A bruise on her right arm and left
          elbow was charted and, according to the nurse, both
          breasts had abrasions and lacerations. Nurse
          Stratton testified she saw and documented a right
          bruise on her lower leg as well as abrasions and
          lacerations to the left leg. Both knees, she said, were
          red and bruised. Finally, Ms. Stratton reported that
          the left hand of [S.M.] had been sutured by Dr. Delp,
          the ER doctor that evening.

          As noted, the Huntingdon Borough Police became
          involved at 2:04 a.m. Cpl. John Stevens, a twenty-
          eight (28) year veteran of the department, testified
          that he secured the scene of the incident at 3:11
          a.m. The Pennsylvania State Police were notified and
          a trooper who specializes in forensically collecting
          evidence and diagraming scenes was sent to assist
          the Huntingdon Borough Police. The scene, he said,
          was divided into two (2) areas. Cpl. Stevens
          described the first area as grassy and with a slight
          slope uphill. Cpl. Stevens reported that three (3)
          items of evidence were recovered in this area. They
          were a condom, an earring and grass with possible
          bloodstains. The second area that was identified and
          marked on a map was near a retaining wall and was
          covered with leaves. In that area Stevens said they
          recovered a glove, a flip-flop shoe, a belt, a condom


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          wrapper, a tampon and leaves with possible blood on
          them.

          Officer Shannon Gummo, the prosecutor in the case,
          testified and indicated she met the victim at the J. C.
          Blair Hospital, and took a brief statement. The
          following day, she said, [S.M.] came to the station
          and provided a twelve (12) page written statement.
          Officer Gummo also testified that she participated in
          taking a statement from [Roberts] on May 26 at the
          police offices. Present were an assistant district
          attorney, the chief public defender, Chief of Police
          Rufus Brenneman, [Roberts] and Officer Gummo.
          The process began at 10:00 a.m. and was tape
          recorded. Without objection, the taped statement
          was played at trial. In it [Roberts] admitted sex with
          [S.M.] and the fact that he lured her out of her
          house with a bogus story about his cousin, Kenny.
          But, he was adamant that the sex was consensual
          and equally certain that he had no knife.

          Sara Harner, an employee of the Pennsylvania State
          Police, testified and was accepted as an expert in
          DNA analysis. She expressed an opinion that blood
          found on the glove recovered at the scene matched
          the DNA profile of [S.M.]. [Roberts] testified and his
          testimony dovetailed in most respects to his taped
          statement taken May 26, 2011. He acknowledged
          that he initiated contact with [S.M.] that morning
          and that he fabricated as a reason for meeting a
          desire on the part of his cousin, Kenny, to meet
          [S.M.]. He testified however that [S.M.] was a willing
          partner that morning and that he in no way forced
          her to have sex. He said he had no knife and saw no
          blood. Nor did she, according to [Roberts], complain
          of any injury. He allowed that there was a possibility
          he had work gloves in his back pocket that early
          morning, but, he said, he didn’t wear a glove. He
          explained his text messages after the sex as guilt
          and the fact he didn’t want [S.M.] mad at him.

          On these facts, the jury convicted [Roberts] of the
          crime of rape.


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Memorandum Sur Roberts’ Motion For Post-Sentence Relief, June 5, 2014,

pp. 2-10 (incorporated by reference into Pa.R.A.P. 1925(a) opinion).

      Roberts raises three issues in this appeal:

            Did the trial court err in denying [Roberts’] Motion to
            Dismiss per Pa.R.Crim.P. 600?

            Did the trial court err in denying [Roberts’] Motion
            For Judgment of Acquittal based on the insufficiency
            of the evidence in establishing each and every
            element of the charge of Rape - Forcible
            Compulsion?

            Did the trial court err in denying [Roberts’] Motion in
            Arrest of Judgment and For a New Trial in that the
            weight of the evidence did not support the guilty
            verdict as to the charge of Rape - Forcible
            Compulsion?

Brief for Appellant, p. 6.

      Roberts first argues that the trial court erred in denying his pretrial

motion to dismiss the rape charge against him under Pa.R.Crim.P. 600,

Pennsylvania’s speedy trial rule. We disagree.

      Our standard and scope of review in evaluating Rule 600 claims are

well-settled:

            ‘Our standard of review in evaluating Rule 600 issues
            is whether the trial court abused its discretion …’
            ‘The proper scope of review in determining the
            propriety of the trial court’s ruling is limited to the
            evidence on the record of the Rule [600] evidentiary
            hearing and the findings of the lower court. In
            reviewing the determination of the hearing court, an
            appellate court must view the facts in the light most
            favorable to the prevailing party.’




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Commonwealth v. Matis, 710 A.2d 12, 15 (Pa.1998); Commonwealth v.

Bowes, 839 A.2d 422, 424 (Pa.Super.2003).

      A speedy trial analysis typically involves a two-step inquiry: “(1)

whether the delay violated [Rule 600]; and, if not, then (2) whether the

delay violated the defendant’s right to a speedy trial guaranteed by the Sixth

Amendment to the United States Constitution and by Article I, Section 9 of

the Pennsylvania Constitution.”    Commonwealth v. DeBlase, 665 A.2d

427, 431 (Pa.1995). Where the first inquiry is answered in the affirmative,

or where the constitutional dimension of a speedy trial issue is not raised (as

is the case, here), there is no need to engage in the latter. Id.

      Rule 600 provides in relevant part:

              (A)(2)(a) Trial in a court case in which a written
            complaint is filed against the defendant, when the
            defendant is at liberty on bail, shall commence no
            later than 365 days from the date on which the
            complaint is filed.
                                      ...

             (B) For the purpose of this rule, trial shall be
            deemed to commence on the date the trial judge
            calls the case to trial, or the defendant tenders a
            plea of guilty or nolo contendere.

             (C) In determining the period for commencement
            of trial, there shall be excluded therefrom:

             (1) the period of time between the filing of the
            written complaint and the defendant’s arrest,
            provided that the defendant could not be
            apprehended because his or her whereabouts were
            unknown and could not be determined by due
            diligence;


                                     -8-
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             (2) any period of time for which the defendant
            expressly waives Rule 600;

             (3) such period of delay at any stage of the
            proceedings as results from:

             (a) the unavailability of the defendant or the
            defendant’s attorney;

             (b) any continuance granted at the request of the
            defendant or the defendant’s attorney.

Id. There is a three-step process for determining whether there has been a

Rule 600 violation.      Commonwealth v. Ramos, 936 A.2d 1097, 1103

(Pa.Super.2007) (en banc).    The first step is to determine the mechanical

run date, i.e., the 365th day after the filing of the criminal complaint. Id.

The second step is determining the amount of excludable and excusable

delay. Id. Excludable delay includes any delay attributable to defendant or

his counsel.     Pa.R.Crim.P. 600(c)(3)(a); Commonwealth v. Dixon, 907

A.2d 468, 474 (Pa.2006) (any delay attributable to defendant’s requests or

conduct is excludable from 365-day period in which trial must commence).

Excusable delay is delay that occurs as a result of circumstances beyond the

Commonwealth’s control and despite its due diligence. Ramos, 936 A.2d at

1103. Periods of delay which are attributable to court congestion constitute

excusable      delay.   Commonwealth    v.   Frye,   909   A.2d   853,   859

(Pa.Super.2006).

     The third step is adding excludable and excusable delay to the

mechanical run date to arrive at an adjusted run date. Ramos, 936 A.2d at


                                    -9-
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1103. A Rule 600 violation occurs if trial does not begin before the adjusted

run date. Id.

       Here, on August 3, 2011, the police filed a criminal complaint against

Roberts.     Trial commenced on November 13, 2013, 866 days later.          The

record demonstrates, however, that there were 522 days of excludable and

excusable time. As a result, the adjusted run date was later than November

13, 2013, and Roberts’ trial was timely under Rule 600.

       In chronological order, there were four periods of excludable and

excusable time:

       1. 327 day delay between the filing of the complaint, August 3, 2011,

to the date of Roberts’ arrest, June 25, 2012. The period of time between

the filing of the complaint and the defendant’s arrest is excludable, provided

that   the   defendant could not     be   apprehended because      his or   her

whereabouts were unknown and could not be determined by due diligence.

Comment, Pa.R.Crim.P. 600. “Due diligence” in this context is “fact-specific,

to be determined case-by-case; it does not require perfect vigilance and

punctilious care, but merely a showing the Commonwealth has put forth a

reasonable effort.”    Commonwealth v. Selenski, 994 A.2d 1083, 1089

(Pa.2010).    To determine whether the police acted with due diligence, the

court employs a balancing test where,

              using a common sense approach, [it] examines the
              activities of the police and balances this against the
              interest of the accused in receiving a fair trial. The
              actions must be judged by what was done, not by

                                      - 10 -
J-A10042-15


            what was not done.       The efforts need only be
            reasonable; lack of due diligence should not be found
            simply because other options were available or, in
            hindsight, would have been more productive.

Commonwealth v. Ingram, 591 A.2d 734, 737 (Pa.Super.1991) (internal

citations omitted). In other words, “it is simply not required that the

Commonwealth exhaust every conceivable method of locating a defendant.

Rather, reasonable steps must be taken.” Commonwealth v. Jones, 389

A.2d 1167, 1170 (Pa.Super.1978).

      The police exercised due diligence in their attempts to locate Roberts

following the filing of the criminal complaint. Officer Shannon Gummo of the

Huntingdon Borough Police Department attempted numerous times to

contact Mary Bumgardner, mother of Roberts’ paramour. N.T. 1/13/13, at

8.   Officer Gummo also (1) contacted the Lewistown Police Department in

neighboring Mifflin County based upon a tip that Roberts was residing with

an acquaintance in that jurisdiction, Id.; (2) contacted the Mount Union

Police Department in Huntingdon County and the State Police, Id. at 9, 12;

(3) contacted Roberts’ sister on several occasions, Id. at 9; (4) checked job

sites of Roberts’ employer to see if Roberts was present, Id.; and (5)

entered Roberts’ name into the NCIC system, as well as what is known as

the BOLO (“Be On Look Out”) system, Id. at 11-12. Trooper Eric Glunt of

the Pennsylvania State Police and his colleagues went to the residence of

Roberts’ relative, where he was believed to be staying.    Id. at 20.   They

found indicia of Roberts’ occupancy, but Roberts was not present. Id. They

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returned to that address one other time but to no avail, and they looked for

Roberts at his mother’s residence on two occasions. Id. Trooper Glunt also

(1) spoke to neighbors of Roberts’ mother, who said they had not seen

Roberts at that address, Id.; (2) investigated another address at which

Roberts was reported to be residing, Id.; (3) repeatedly checked the

address of Roberts’ paramour, Id.; and (4) went to another location on

information from the FBI that Roberts had applied for assistance benefits

using that address. Id. at 22. Finally, Trooper Glunt went to the post office

and discovered that Roberts had his mail forwarded to his sister’s address.

Id. at 23.    Trooper Glunt searched his sister’s residence without success.

Id. Trooper Glunt estimated that he attempted to serve the arrest warrant

for Roberts eight or nine times. Id. at 24.

       These efforts to apprehend Roberts were at least as diligent as efforts

that   we    have   found   adequate     in   other   speedy     trial   cases.       See

Commonwealth v. Gratkowski, 430 A.2d 998, 1000 (Pa.Super.1981)

(Commonwealth       acted   with   due    diligence   in   locating      and    arresting

defendant, where police attempted to locate defendant at his last known

address, recurrently asked about him at restaurant where he was last known

to be employed, and contacted other police agencies concerning his

whereabouts);       Commonwealth         v.     Laurie,    483     A.2d        890,   892

(Pa.Super.1987) (Commonwealth acted with due diligence where police

made only one telephone call to defendant’s last known address, contacted


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his family and Department of Welfare, placed an advertisement in local

newspaper containing his photograph and description, and entered his name

into national and local crime databases).

      2.   14 day delay due to defense counsel’s request for continuance.

After Roberts’ arrest, defense counsel requested and obtained a continuance

of the preliminary hearing from July 3, 2012 to July 17, 2012, a period of

fourteen days. This delay was excludable under Rule 600. Commonwealth

v. Jones, 886 A.2d 689, 701 (Pa. Super. 2005) (delay of 80 days between

date of defendant’s originally-scheduled preliminary hearing and date of

rescheduled preliminary hearing, resulting from defense counsel’s requests

for two continuances, was excludable).

      3. 125 day delay due to Roberts’ pretrial motion to dismiss under Rule

600. The docket demonstrates that the court originally scheduled trial for

January 7, 2013, but due to Roberts’ pretrial motion to dismiss under Rule

600, the court continued trial until March 4, 2013. On January 31, 2013, the

court held a hearing on the Rule 600 motion. After the hearing, the court

rescheduled trial for March 20, 2013.       On March 2, 2013, the court again

continued trial until May 6, 2013.    On March 13, 2013, the court denied

Roberts’ Rule 600 motion.

      The period of 69 days from the filing of the Rule 600 motion on

January 4, 2013 until its denial on March 13, 2013 is excludable time.

Commonwealth v. Hyland, 875 A.2d 1175, 1191 (Pa.Super.2005) (time


                                     - 13 -
J-A10042-15


between filing of defendant’s Rule 600 motion and court’s denial of motion

was excludable). The 56 day delay from the denial of the Rule 600 motion

on March 13, 2013 to the next available jury selection date of May 6, 2013

was excusable as well.       Commonwealth v. Frye, 909 A.2d 853, 859

(Pa.Super.2006)     (delay   resulting   from   court   congestion   constitutes

excusable delay).

      4. 56 day delay due to Roberts’ motion for funds to hire an expert and

motion for continuance. On April 29, 2013, one week before the scheduled

trial date of May 6, 2013, Roberts filed a motion for funds with which to hire

an expert in DNA analysis and a motion for continuance. The court granted

the motions and continued trial until July 1, 2013, 56 days after May 6 th.

This delay was excludable under Rule 600. Jones, 886 A.2d at 701.

      These four periods of excludable or excusable delay total 522 days.

Only 344 of the 866 days of delay are chargeable to the Commonwealth,

within Rule 600’s boundary of 365 days.         Thus, the trial court properly

denied Roberts’ Rule 600 motion.

      In his second argument on appeal, Roberts challenges the sufficiency

of the Commonwealth’s evidence with regard to his conviction for rape by

forcible compulsion. Roberts insists that the evidence demonstrates that he

had consensual intercourse with S.M. We disagree.

      Our standard of review for challenges to the sufficiency of the evidence

is well-settled:


                                     - 14 -
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            [W]hether[,] 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.    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. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted).

      The crime of rape by forcible compulsion has three elements: (1) the

defendant engaged in sexual intercourse with the complainant; (2) the

defendant procured intercourse by using force or the threat of force; and (3)

intent. 18 Pa.C.S. § 3121. “[P]enetration, however slight,” of the female

genitals with the penis is necessary to establish the element of sexual

intercourse. 18 Pa.C.S. § 3101. A victim’s testimony, even uncorroborated,

as to   penetration   is sufficient to   establish the    element of “sexual

intercourse”. Commonwealth v. Wall, 953 A.2d 581, 584 (Pa.Super.2008).

“Forcible compulsion” means “something more” than mere lack of consent.

Commonwealth v. Smolko, 666 A.2d 672, 676 (Pa.Super.1995). “Where

there is a lack of consent, but no showing of either physical force, a threat of

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physical   force,   or   psychological   coercion,    the   ‘forcible   compulsion’

requirement … is not met.”      Id.   Finally, intent may be inferred from the

actions and of the defendant in light of all the attendant circumstances.

Commonwealth v. Chance, 458 A.2d 1371, 1374 (Pa.Super.1983).

       Construed in the light most favorable to the Commonwealth, S.M.’s

testimony establishes all of these elements. She testified that Roberts

grabbed her from behind, pushed her to the ground and told her to “get

down”. N.T. 11/13/2013 at 165. When she tried to get back up, Roberts

tried to hold her down and grabbed her around the face and neck. Id. S.M.

testified she thought Roberts was going to try to suffocate her, so she

grabbed Roberts’s other hand. Id. In that hand, the victim felt what she

realized was a knife; the knife cut her hand.        Id. Roberts told the victim

that if she yelled, he would “stick” her. Id. at 167. He started pulling S.M.’s

shorts off, and S.M. said she “didn’t want to do this.” Id. at 168. She was

able to stand up, pull her shorts up, and move a few steps away before

Roberts again pushed her to the ground.        Id. at 171.     Roberts pulled the

victim’s shorts off, pulled his pants down and penetrated her vagina with his

penis “three or four” times for about “30 seconds” altogether. Id. at 172,

174.    These facts are sufficient to establish the “forcible compulsion”,

“sexual intercourse” and “intent” elements of the crime of rape.

       In his third and final argument, Roberts challenges the weight of the

evidence adduced during trial. The law pertaining to weight of the evidence


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claims is well-settled. The weight of the evidence is a matter exclusively for

the finder of fact, who is free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses.         Commonwealth v.

Forbes, 867 A.2d 1268, 1273–74 (Pa.Super.2005). A new trial is not

warranted because of “a mere conflict in the testimony” and must have a

stronger foundation than a reassessment of the credibility of witnesses.

Commonwealth v. Bruce, 916 A.2d 657, 665 (Pa.Super.2007). Rather, the

role of the trial judge is to determine that notwithstanding all the facts,

certain facts are so clearly of greater weight that to ignore them or to give

them equal weight with all the facts is to deny justice. Id.

      On appeal, “our purview is extremely limited and is confined to

whether the trial court abused its discretion in finding that the jury verdict

did not shock its conscience. Thus, appellate review of a weight claim

consists of a review of the trial court’s exercise of discretion, not a review of

the underlying question of whether the verdict is against the weight of the

evidence.” Commonwealth v. Knox, 50 A.3d 732, 738 (Pa.Super.2012).

An appellate court may not reverse a verdict unless it is so contrary to the

evidence as to shock one’s sense of justice. Forbes, 867 A.2d at 1273–74.

      Roberts contends that several facts demonstrate that the verdict was

against the weight of the evidence. He claims: (1) S.M. left her home and

boyfriend at midnight after a call from Roberts, her sister’s ex-boyfriend,

and readily agreed to take a walk with him; (2) Roberts and S.M. walked to


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a dark nearby area, while she texted her boyfriend to make sure he was still

back at their house; (3) S.M. had her cellphone in her hand throughout the

entire incident, stated that she could text without looking at the keyboard,

and did not call for help from her boyfriend, police, or family members

during or after the incident; (4) although the site of the sexual encounter

was within close proximity to six houses and the emergency room entrance

for J.C. Blair Memorial Hospital, S.M. did not try to call for help or run away

to these buildings; (5) after the sexual encounter, S.M. took a phone call

from her boyfriend and fabricated a story as to why she was still out with

Roberts; and (6) the knife found at the scene of the sexual encounter

belonged to the alleged victim, given the testimony of S.M.’s sister that S.M.

owned and used knives and even practiced self-cutting, so S.M. most likely

cut herself on her own knife instead of being cut by Roberts.

      While this evidence might have facilitated a spirited defense, we

cannot say that it warrants a new trial.      This case boiled down to the

credibility of S.M. and Roberts. Both sides had full and fair opportunity to

present their versions of events to the jury, but the jury had the final say on

their credibility.   The jury chose to believe S.M. and find Roberts guilty.

Based on the cold record, we find that the trial court acted within its

discretion by concluding that the verdict did not shock its conscience.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




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