J-S89040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                               IN THE SUPERIOR COURT OF
                                                                 PENNSYLVANIA
                      v.

SUMO DUKULAH

                                  Appellant                   No. 1955 EDA 2015


           Appeal from the Judgment of Sentence February 17, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0007817-2013

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                                 FILED MARCH 09, 2017

        Appellant, Sumo Dukulah, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas.                       Appellant

challenges the sufficiency of the evidence, the weight of the evidence, the

admission of testimony and the discretionary aspects of his sentence. We

affirm.

        We adopt the facts as set forth by the trial court’s opinion. See Trial

Ct. Op., 11/12/15, at 2-5.               All charges at issue in this case concern

Appellant’s    conduct     with    his    niece,   K.D.,    from   the   time   she   was

approximately age ten until age sixteen.

        During his jury trial, Appellant’s counsel discussed K.D.’s lack of

physical injuries during his opening statement:


*
    Former Justice specially assigned to the Superior Court.
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         The physician who did [the rape kit] will testify in this trial.
         What they will tell you is that the rape kit exam shows no
         signs of sexual abuse or sexual activity. She had no—they
         examined her vagina and her anus and her mouth. They
         found no cuts, no tears, no scrapes, no scratches, no
         bruises, no sign on her vagina or anus of any sexual
         contact at all. Her hymen was still intact.

N.T. 3/26/2014, at 89.

      In response, the Commonwealth sought to present the testimony of

Dr. Laura K. Brennan, an attending physician in the pediatrics division at the

Children’s Hospital of Philadelphia who was qualified as an expert in the field

of child sexual abuse.      The Commonwealth argued outside the jury’s

presence:

         Your Honor, during the defense’s opening yesterday they
         made a statement that the Commonwealth believes
         deliberately presented a falsehood to the jury. They
         deliberately—the defense opened on the fact that the
         complaining witness' hymen was intact and therefore she
         was never penetrated and that that was the evidence they
         were going to hear. Respectfully, to this Court, that is a
         deliberate misleading of the jury. Because the defense is
         on notice that, A, a sperm was found by the lab, and, more
         importantly, the complainant told the doctor and the
         detective that she had had consensual sex in the past with
         someone her own age.

         So they are on knowledge that the complainant has been
         penetrated in the past. And to say that the condition of her
         hymen therefore means she was never penetrated is
         deliberately misleading the jury. So, based on that, the
         Commonwealth believes they’ve opened the door. And we
         would ask to call an expert for the limited purpose to say
         that the fact that the hymen is not damaged or intact does
         not mean that they were never penetrated.

         And, as Your Honor knows, the experts testify to a study
         that was done of a number of pregnant teenagers who all


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           had hymens that were intact. You can’t un—ring that bell.
           The defense put in their mind that her hymen being intact
           or being not damaged therefore means she was never
           penetrated.

           It was not the Commonwealth’s original—because there is
           no trauma in this case, and because the DNA is not an
           issue, the Commonwealth was not originally intending to
           proceed down that path, but now we're forced to rectify
           that. And so we would ask to call an expert for that
           limited purpose for those three or four questions, because
           the defense has put that into an issue and has put that
           idea already in the minds of the jury.

N.T., 3/27/2014, 16-17.

        Appellant sought to exclude Dr. Brennan’s testimony on the ground

that the Commonwealth failed to reveal its intention to procure expert

testimony prior to trial. The trial court admitted this testimony, concluding

that Appellant “opened the door” during opening statements.       On April 2,

2014, Appellant was convicted of rape,1 rape of a child,2 involuntary deviate

sexual intercourse,3 unlawful contact with a minor,4 endangering the welfare

of a child5 and corruption of minors.6


1
    18 Pa.C.S. § 3121(a)(1).
2
    18 Pa.C.S. § 3121(c).
3
    18 Pa.C.S. § 3123(a)(1).
4
    18 Pa.C.S. § 6318(a)(1).
5
    18 Pa.C.S. § 4304(a)(1).
6
    18 Pa.C.S. § 6301(a)(1)(ii).




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       Prior to sentencing, in August 2014, Appellant filed a motion for

extraordinary relief, attaching a handwritten letter, purportedly authored by

K.D., recanting her trial testimony.    The Commonwealth responded with a

motion to remove defense counsel, Michael Van Der Veen, Esquire, for his

alleged involvement in procuring the recantation letter.          The trial court

granted the Commonwealth’s request and removed Attorney Van Der Veen

from the case for purposes of Appellant’s motion for extraordinary relief.

Trial Ct. Order, 8/29/14.    William Christopher Montoya was appointed to

represent Appellant regarding the motion.       The trial court conducted two

hearings concerning the motion, on November 7, 2014 and December 16,

2014. At the first hearing, K.D. revealed that her family had encouraged her

to lie by recanting her trial testimony. N.T., 11/7/14, at 111-122. Further,

K.D. explained that Attorney Van Der Veen told her that if she wrote a letter

recanting, Appellant would be released and sent back to Africa. Id. at 122-

124.    Further, K.D. testified that she copied exactly what a family member

told her to write when creating the recantation letter. Id. at 129-135. The

trial court denied Appellant’s motion for extraordinary relief.

       On February 17, 2015, the trial court sentenced Appellant to

consecutive terms of five to ten years’ imprisonment for rape, fifteen to

thirty years for rape of a child, five to ten years for involuntary deviate

sexual intercourse and five to ten years for unlawful contact with minor. The

trial court also imposed sentences of one to three years’ imprisonment for



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both endangering the welfare of a child and for corruption of minors, to run

concurrent with each other but consecutive to the remainder of the

sentence.   The resulting aggregate sentence was thirty-one to sixty-three

years’ imprisonment.

     On February 25, 2015, Appellant filed a post-sentence motion, which

the trial court denied on May 21, 2015.    Appellant filed a timely notice of

appeal and an amended court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal on August 27, 2015.7          The trial court filed a

responsive opinion.

     Appellant raises the following issues for our review:

        A. Was the evidence insufficient to sustain Appellant’s
        convictions because the complainant’s testimony was
        inconsistent and contradictory, so much so that to sustain
        the convictions amounts to a violation of due process?

        B. Were the verdicts against the weight of the evidence
        and did the trial court commit an abuse of discretion by
        not granting Appellant a new trial?

        C. Did the trial court err by permitting the Commonwealth
        to call Dr. Brennan as an expert witness after the start of
        trial?




7
  In his Rule 1925(b) statement, Appellant included, inter alia, the general
contention that “the evidence was insufficient to find Appellant guilty of the
charges against him, where the alleged victim’s testimony was inconsistent,
and she regularly contradicted herself on the stand.” Appellant’s Rule
1925(b) Statement, 8/27/15.      Attorney Montoya filed Appellant’s Rule
1925(b) statement but the instant appellate brief was filed by Attorney Van
Der Veen.



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          D. Did the trial court commit an abuse of discretion by
          imposing an excessive sentence without considering the
          circumstances of the case and the character of Appellant?

Appellant’s Brief at 4.

        In his first issue on appeal, Appellant contends that the evidence was

insufficient to support his convictions. The crux of his argument lies in his

contention that K.D.’s testimony was “replete with inconsistencies and

contradictions.”    Id. at 34.    Appellant also points to a “lack of physical

evidence” and an “incomplete police investigation.”           Id. at 42.     The

Commonwealth counters that Appellant waived his sufficiency claim due to a

lack of specificity and, in the alternative, maintains that K.D.’s testimony

alone    provided   more   than    ample    evidence   to   support   Appellant’s

convictions.8 Commonwealth’s Brief at 11-17. No relief is due.

        Our review of a sufficiency of the evidence claim is governed by the

following principles:

          [O]ur scope of review is plenary. Our standard of review is
          de novo. Scope of review refers to the confines within
          which an appellate court must conduct its examination. . .
          . In other words, it refers to the matters (or what) the
          appellate court is allowed to examine.        In contrast,
          standard of review refers to the manner in which (or ‘how’)
          that examination is conducted. A standard of review is the
          degree of deference given by the reviewing court to the

8
  Despite receiving three extensions, the Commonwealth filed its brief thirty-
five days after the third extended deadline. Hence, we are in receipt of
Appellee’s motion to strike the Commonwealth’s brief.          Although we
admonish the Commonwealth for failing to file a timey brief, we decline to
strike the brief pursuant to Pa.R.A.P. 2118 because Appellant was not
prejudiced by the late filing.



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            decision under review. In other words, it is the power of
            the lens through which the appellate court looks at the
            issue in a particular case.

            [T]he critical inquiry on review of the sufficiency of the
            evidence to support a criminal conviction . . . does not
            require a court to ask itself whether it believes that the
            evidence at the trial established guilt beyond a reasonable
            doubt. Instead, it must determine simply whether the
            evidence believed by the fact-finder was sufficient to
            support the verdict.      [A]ll of the evidence and any
            inferences drawn therefrom must be viewed in the light
            most favorable to the Commonwealth as the verdict
            winner.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007)

(quotation marks and citations omitted). Indeed, this Court has held that a

“victim’s    uncorroborated    testimony   is   sufficient   to   support   a   rape

conviction.” Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa. Super.

2015) (citation omitted).

      In addition, regarding the need for specificity in a sufficiency claim,

this Court has held:

              [W]hen challenging the sufficiency of the evidence
              on appeal, the [a]ppellant’s 1925 statement must
              “specify the element or elements upon which the
              evidence was insufficient” in order to preserve the
              issue for appeal. Such specificity is of particular
              importance in cases where, as here, the [a]ppellant
              was convicted of multiple crimes each of which
              contains numerous elements that the Commonwealth
              must prove beyond a reasonable doubt. Here, [the
              a]ppellant . . . failed to specify which elements he
              was challenging in his 1925 statement . . . . While
              the trial court did address the topic of sufficiency in
              its opinion, we have held that this is “of no moment
              to our analysis because we apply Pa.R.A.P.1925(b) in
              a predictable, uniform fashion, not in a selective


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               manner dependent on an appellee’s argument or a
               trial court’s choice to address an unpreserved claim.”

         Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
         2009) [ ].

Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (some

citations omitted).

      As a prefatory matter, we consider whether Appellant has waived his

sufficiency of the evidence claim. As noted above, Appellant’s Rule 1925(b)

statement failed to “specify the element or elements upon which the

evidence was insufficient” and failed to specify which convictions he was

challenging.     See Garang, 9 A.3d at 244.        Thus, we are constrained to

conclude that Appellant’s sufficiency issue is waived.      See id.     Moreover,

even were we not to conclude that Appellant’s sufficiency issue is waived, we

agree with the trial court that ample evidence supported Appellant’s

convictions.     See Ratsamy, 934 A.2d at 1235-36.        As noted by the trial

court, K.D.’s testimony established that Appellant, the man she thought of

as her father, repeatedly raped her over a six-year period, starting when she

was only ten years old.      This testimony was sufficient for the jury as the

fact-finder to find Appellant guilty, and we see no reason why this

determination should be disturbed by this Court. See Gonzalez, 109 A.3d

at 721. Thus, no relief is due.

      Appellant also maintains that his guilty verdicts were against the

weight of the evidence. To that end, Appellant points to inconsistencies in



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K.D.’s testimony regarding the timing of the sexual assaults at issue, K.D.’s

letter recanting her trial testimony, the lack of any physical evidence and

“the utter lack of corroborating evidence.” Appellant’s Brief at 48. To the

contrary, the Commonwealth emphasizes that any inconsistencies in K.D.’s

testimony were minor and the trial court found that the recantation letter

was engineered by others.     Commonwealth’s Brief at 19-23.        Further, the

Commonwealth highlights that five other corroborating witnesses testified

that K.D. had confessed Appellant’s abuse to them individually. Id. at 23.

Once again, we disagree with Appellant and decline to award relief.

      The principles governing a challenge to the weight of the evidence are

well settled.

             A verdict is against the weight of the evidence “only
         when the jury’s verdict is so contrary to the evidence as to
         shock one’s sense of justice.” A weight of the evidence
         claim is primarily directed to the discretion of the judge
         who presided at trial, who only possesses “narrow
         authority” to upset a jury verdict on a weight of the
         evidence claim. Assessing the credibility of witnesses at
         trial is within the sole discretion of the fact-finder. A trial
         judge cannot grant a new trial merely because of some
         conflict in testimony or because the judge would reach a
         different conclusion on the same facts, but should only do
         so in extraordinary circumstances, “when the jury’s verdict
         is so contrary to the evidence as to shock one’s sense of
         justice and the award of a new trial is imperative so that
         right may be given another opportunity to prevail.” . . .

Commonwealth v. Blakeney, 946 A.2d 645, 652-53 (Pa. 2008) (citations

omitted).




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      An appellate court reviews the exercise of discretion by the trial court,

“not . . . the underlying question of whether the verdict is against the weight

of the evidence.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)

(citation and emphasis omitted).

      In this case, the trial court aptly concluded that the jury’s verdicts

were not contrary to the weight of the evidence and “shock[ ] no one’s sense

of justice.” Trial Ct. Op. at 9;    see also Blakeney, 946 A.2d at 652-53.

We agree.    K.D.’s testimony regarding Appellant’s continual sexual abuse,

and the corroborating witnesses who testified that K.D. had confided in them

about the abuse, was ample evidentiary support for the trial court’s decision.

Thus, we hold that the trial court did not abuse its discretion in determining

that the verdicts were not contrary to the weight of the evidence. See Clay,

64 A.3d at 1055. Therefore, Appellant’s second issue warrants no relief.

      Turning to Appellant’s third issue, he contends that the trial court

erred by admitting the testimony of Commonwealth witness Dr. Brennan

“because Appellant did not open the door to the testimony, the admission of

the testimony constituted trial by ambush, and the opinions expressed by

the doctor lacked evidentiary support and amounted to a regurgitation of

findings   made   by   someone     else.”      Appellant’s   Brief   at   32.   The

Commonwealth responds that Dr. Brennan’s testimony regarding the ability

for a sexual assault victim to still have an “intact hyman” was necessary to

refute Appellant’s suggestion that K.D. could not have been sexually



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assaulted.    Commonwealth’s Brief at 25-27.        The Commonwealth also

emphasizes that Dr. Brennan, as a supervising physician in the pediatrics

division at the Children’s Hospital of Philadelphia, had extensive personal

experience examining suspected sexual abuse victims, and utilized that

experience, together with K.D.’s doctor’s report, to inform her trial

testimony. See id at 28. We conclude that Appellant’s argument regarding

the admission of Dr. Brennan’s testimony does not merit relief.

      In cases involving the admission of expert testimony we note:

         Generally speaking, the admission of expert testimony is a
         matter left largely to the discretion of the trial court, and
         its rulings thereon will not be reversed absent an abuse of
         discretion. An expert’s testimony is admissible when it is
         based on facts of record and will not cause confusion or
         prejudice.

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citation

omitted).

      In addition, it is beyond cavil that “when expert opinion evidence is

admitted, the factfinder is free to reject it, accept it, or give it some weight

between the two.” Commonwealth v. Stephens, 74 A.3d 1034, 1041 (Pa.

Super. 2013) (citation omitted).     Further, “a litigant opens the door to

inadmissible evidence by presenting proof that creates a false impression

refuted by the otherwise prohibited evidence.”            Commonwealth v.

Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) (citation omitted).

      In the case sub judice, the trial court properly determined that

Appellant “opened the door” to Dr. Brennan’s testimony by referring to


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K.D.’s “intact hyman” in counsel’s opening statement as evidence that K.D.

was not the victim of sexual assault.        See Nypaver, 69 A.3d at 716.

Further, the decision to accept Dr. Brennan’s opinion as to whether, in her

substantial experience, it was “possible” that K.D. had been the victim of

sexual assault even without direct physical evidence was a matter properly

left to the factfinder’s discretion. See Stephens, 74 A.3d at 1041.

Therefore, we conclude that the trial court did not abuse its discretion by

admitting the testimony of Dr. Brennan. See Huggins, 68 A.3d at 966.

     In his last issue, Appellant argues that the trial court abused its

discretion in imposing an aggregate sentence of thirty-one to sixty-three

years’ imprisonment.    Appellant specifically avers that his sentence was

unreasonable    and    manifestly   excessive   because   it   was    imposed

consecutively rather than concurrently.      Appellant’s Brief at 68-69.   He

further contends that the trial court focused on the seriousness of the

offense rather than Appellant’s circumstances and rehabilitative needs. Id.

at 70-71.

     This Court has stated:

        discretionary aspects of [an appellant’s] sentence [ ] are
        not appealable as of right.            Rather, an appellant
        challenging the sentencing court’s discretion must invoke
        this Court’s jurisdiction by satisfying a four-part test.

            We conduct a four-part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal,
            see Pa.R.A.P. 902 and 903; (2) whether the issue
            was properly preserved at sentencing or in a motion
            to reconsider and modify sentence, see Pa.R.Crim.P.


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            720; (3) whether appellant’s brief has a fatal defect,
            Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted).

      Instantly, Appellant timely filed his appeal, preserved the issue of an

excessive sentence in his post-sentence motion, and included a statement in

his brief, which conforms with Pa.R.A.P. 2119(f).          See Appellant’s Brief at

63-65. Accordingly, we ascertain whether Appellant has raised a substantial

question. See Leatherby, 116 A.3d at 83.

      “We conduct a case-by-case analysis to determine what allegations

constitute a substantial question.” Commonwealth v. Malovich, 903 A.2d

1247, 1252 (Pa. Super. 2006) (citation omitted); see also 42 Pa.C.S. §

9781(b).    “A claim that a sentence is manifestly excessive such that it

constitutes too severe a punishment raises a substantial question.”

Commonwealth          v.   Kelly,   33   A.3d     638,   640   (Pa.   Super.   2011);

Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (appellant

raised a substantial question when he claimed that a sentencing court

imposed an excessive sentence and failed to consider substantial mitigating

factors).   “[A]n averment that the court sentenced based solely on the

seriousness of the offense and failed to consider all relevant factors raises a




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substantial question.” Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa.

Super. 2012) (citation omitted).

      We find that Appellant’s Rule 2119(f) statement presents a substantial

question.   See id.; Kelly, 33 A.3d at 640; Perry, 883 A.2d at 602.     Our

standard of review is as follows:

         Sentencing is a matter vested in the sound discretion of
         the sentencing judge, and a sentence will not be disturbed
         on appeal absent a manifest abuse of discretion. An abuse
         of discretion is more than just an error in judgment and,
         on appeal, the trial court will not be found to have abused
         its discretion unless the record discloses that the judgment
         exercised was manifestly unreasonable, or the result of
         partiality, prejudice, bias, or ill-will.

         More specifically, 42 Pa.C.S.A. § 9721(b) offers the
         following guidance to the trial court’s sentencing
         determination:

            [T]he sentence imposed should call for confinement
            that is consistent with the protection of the public,
            the gravity of the offense as it relates to the impact
            on the life of the victim and on the community, and
            the rehabilitative needs of the defendant.

         42 Pa.C.S.A. § 9721(b).

         Furthermore,

            Section 9781(c) specifically defines three instances
            in which the appellate courts should vacate a
            sentence and remand: (1) the sentencing court
            applied the guidelines erroneously; (2) the sentence
            falls within the guidelines, but is “clearly
            unreasonable” based on the circumstances of the
            case; and (3) the sentence falls outside of the
            guidelines and is “unreasonable.”      42 Pa.C.S. §
            9781(c). Under 42 Pa.C.S. § 9781(d), the appellate
            courts must review the record and consider the
            nature and circumstances of the offense, the


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              sentencing court’s observations of the defendant, the
              findings that formed the basis of the sentence, and
              the sentencing guidelines. The weighing of factors
              under 42 Pa.C.S. § 9721(b) is exclusively for the
              sentencing court, and an appellate court could not
              substitute its own weighing of those factors. The
              primary consideration, therefore, is whether the
              court imposed an individualized sentence, and
              whether the sentence was nonetheless unreasonable
              for sentences falling outside the guidelines, or clearly
              unreasonable for sentences falling within the
              guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Bricker, 41 A.3d at 875-76 (alterations and some citations omitted).

         When imposing sentence, a court is required to consider
         the particular circumstances of the offense and the
         character of the defendant. In considering these factors,
         the court should refer to the defendant’s prior criminal
         record, age, personal characteristics and potential for
         rehabilitation. Where pre-sentence reports exist, we shall
         . . . presume that the sentencing judge was aware of
         relevant information regarding the defendant’s character
         and weighed those considerations along with mitigating
         statutory factors. A pre-sentence report constitutes the
         record and speaks for itself.

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014)

(quotation marks and citations omitted).

      The trial court stated that prior to sentencing, it considered the

sentencing guidelines and also read the Commonwealth’s sentencing

memorandum, which raised grave concerns regarding Appellant’s lack of

potential for rehabilitation.    N.T., 2/17/15, at 51.      The trial court also

indicated that it carefully reviewed the presentence report and mental health

evaluation.    Trial Ct. Op. at 11. The trial court specifically noted that the

cruelty involved in the case over a prolonged period of time and Appellant’s


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lack of any remorse or compassion for the victim were important factors in

the sentence imposed. N.T., 2/17/15, at 51.

      After a careful consideration of the record, we find no abuse of

discretion. See Bricker, 41 A.3d at 875-76.     The trial court considered the

presentence report.   See Antidormi, 84 A.3d at 761.        Further, the trial

court also properly weighed the gravity of Appellant’s actions and his lack of

propensity toward rehabilitation. See id. Therefore, Appellant’s fourth issue

on appeal also must fail.   Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed. Motion to strike denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2017




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