J-S38024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHNSON N. PORKA                           :
                                               :
                       Appellant               :   No. 1208 EDA 2018

           Appeal from the Judgment of Sentence February 12, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002393-2016


BEFORE:      OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 28, 2019

        Appellant, Johnson N. Porka, appeals from the February 12, 2018

Judgment of Sentence entered in the Delaware County Court of Common Pleas

following his jury conviction of Rape of a Mentally Ill Disabled Person, Sexual

Assault, and Institutional Sexual Assault.1 Appellant challenges the admission

of certain testimony and photographs, and the sufficiency of the evidence.

After careful review, we affirm.

        In the early morning hours of March 6, 2016, Pennsylvania State Police

responded to a call prompted by an eyewitness that Appellant had raped a

resident of the Elwyn Institute2 in Media, Delaware County, where he worked
____________________________________________


1   18 Pa.C.S §§ 3121(a)(5), 3124.1, and 3124.2(a), respectively.

2The Elwyn Institute is a licensed residential facility for intellectually disabled
people. The victim is an autistic woman resident with a chronological age of
39 and an intellectual age of 3.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S38024-19



as a residents’ life staff member. An ambulance transported the victim to the

hospital where she underwent a rape kit examination over the next 12 hours.

Following an investigation, the Commonwealth charged Appellant with the

above crimes.

        Appellant filed a Pre-Trial Motion in Limine seeking to prevent the

Commonwealth from introducing photographs of the victim’s genitals taken

during her rape examination,3 arguing that they would “upset the jury[.]”

N.T., 5/10/17, at 9.        The Commonwealth objected, explaining that “the

pictures are important to the jury’s understanding, you know, of how [rape]

examinations are done[,]” and “more importantly . . . these photos show the

actual injuries the Commonwealth is going to argue were inflicted by

[Appellant].”     Id. at 8.      The Commonwealth further explained that the

photographs “show internal injuries, internal to the vagina and also bruising

on the victim’s legs” and argued that “the jury has the right to see what the

injuries are.” Id. The court denied Appellant’s Motion in Limine, ruling that

“to the extent the [examination] nurse will be talking about the injuries and

can identify them in the photographs and indicate that they are a true and

accurate depiction of the condition of the [victim] at the time of the

examin[ation], I will allow it.” Id. at 9.

        Appellant’s two-day jury trial commenced on May 10, 2017. At trial, the

Commonwealth presented the testimony of Emanuel Kparyel, an Elwyn

____________________________________________


3   The victim, who is non-verbal, did not attend Appellant’s trial.

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employee and eyewitness to the crime; the victim’s father; and three other

employees of the Elwyn Institute. In addition, Colleen Hunt, a Sexual Assault

Nurse    Examiner   at   Riddle   Memorial   Hospital   testified   regarding   her

examination of the victim.

        Mr. Kparyel testified that while conducting his rounds between 12:00

AM and 12:30 AM, he observed that the door to the victim’s room was almost

completely closed and that, strangely, the bathroom door was open in a way

that blocked his direct line of sight into the room. Id. at 83.      He decided to

check on the victim by entering her room through the communal bathroom

the she shared with the resident in the adjacent room. Id. at 86, 88. Mr.

Kparyel testified that when he entered the victim’s room, he saw Appellant on

the victim’s bed in a “crouched position in between” the victim’s “raised” legs.

Id. at 89, 91. He also testified that he noticed that the victim’s pajama pants

were pulled down to about her ankles and that Appellant’s pants were “pulled

down a little bit” and “looked folded.” Id. at 89-90. Mr. Kparyel specified that

the victim’s feet were by Appellant’s armpits and Appellant was holding the

victim’s legs up from underneath her knees.        Id. at 90-91.      Mr. Kparyel

testified that this sight shocked him and he reacted by calling out Appellant’s

name twice. Id. at 92. Mr. Kparyel testified that Appellant responded by

immediately apologizing, and continuing to apologize repeatedly. Id. at 92-

100.     Mr. Kparyel also described Appellant, who is of Liberian decent,

performing a Liberian cultural gesture signifying that he was begging for Mr.




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Kparyel’s forgiveness. Id. at 100-01. Mr. Kparyel testified that, ultimately,

he reported Appellant to his supervisor, Bintu Wilks. Id. at 99.

       At the commencement of the testimony of Ms. Hunt, Riddle Hospital’s

Sexual Assault Nurse Examiner, the Commonwealth submitted Ms. Hunt’s CV

to the court. Ms. Hunt testified that she obtained her Bachelors of Science

degree in Nursing from Immaculata University, graduated with high honors,

and became a certified sexual assault nurse examiner by competing 40 hours

of training in 2012.4, 5 N.T. 5/10/17, at 173-75. At the time of Appellant’s

trial, she had completed 25 sexual assault exam kits. Id. at 175.

       Ms. Hunt testified in detail about the process by which a Sexual Assault

Nurse Examiner swabs a victim’s body to collect DNA evidence. Id. at 176-

79. She testified that she attempts to collect DNA samples on the swabs when

a victim alleges that penetration has occurred, but she is not sure whether the

forensic laboratory will find DNA on the swabs in every case.6 Id. at 179-80.

When the Commonwealth then asked Ms. Hunt “is it your understanding that


____________________________________________



4 Ms. Hunt explained that a sexual assault nurse examiner is a nurse who
collects evidence from a sexual assault victim by, among other things,
interviewing the victim and swabbing her for DNA evidence. N.T., 5/10/17,
at 175-76.

5Ms. Hunt testified that she did not obtain a certification in forensic nursing,
which is the “highest certification.” N.T., 5/10/17, at 175.
6The Commonwealth stipulated that forensic examiners did not identify
Appellant’s DNA on the victim. N.T., 5/10/17, at 3.



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every time penetration is alleged, DNA is recovered,” Appellant objected,

arguing that Ms. Hunt had already answered this question.7 Id. at 179. The

court overruled Appellant’s objection and Ms. Hunt restated her prior response

that “I’m attempting to collect [DNA], but I do not know the outcome.” Id.

       With respect to Ms. Hunt’s examination of the victim, Ms. Hunt testified

that the victim’s demeanor was “anxious” and “uncooperative” upon her

arrival at Riddle Hospital and for hours afterward.8 Id. at 183-84. Ms. Hunt

testified that, given the victim’s agitated state, it took almost 12 hours to

complete the victim’s sexual assault examination. Id. at 190-93. Ms. Hunt

explained that the examination process normally takes about three to four

hours, and that the passage of time can negatively affect an examiner’s ability

to collect DNA. Id. at 193. She also testified that the victim had urinated at

least twice before Ms. Hunt performed the sexual assault examination, which

makes DNA collection even less likely. Id. at 185-87, 193.

       Ms. Hunt further testified that she located bruising on the victim’s left

knee. Id. at 196. The Commonwealth asked Ms. Hunt how recently the victim

had sustained those bruises. Id. Appellant objected to Ms. Hunt providing
____________________________________________


7 Appellant’s counsel specifically objected on the grounds that Ms. Hunt had
“already qualified that she can’t answer that question.” N.T., 5/10/17, at
179.

8 Ms. Hunt testified that she administered two doses of Ativan and two doses
of Haldol before the victim calmed down enough so that Ms. Hunt could
perform the sexual assault examination. N.T., 5/10/17, at 187-88.




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this testimony without a “baseline.” Id. The Commonwealth rephrased the

question asking instead, and without further objection, “based on [your]

knowledge, experience, and training as a sexual assault nurse examiner and

based on your review of the coloring of the bruises . . . [when] would you say

those bruises were caused?”9 Id. at 196-97. Ms. Hunt testified that it was a

newer bruise caused within 24 hours prior to the examination. Id. at 197.

       Ms. Hunt also testified that she observed two lacerations and deep

purple bruising in the nature of a contusion on the victim’s right vaginal wall.

Id. at 200-01. Ms. Hunt testified, without objection, that a contusion inside

the victim’s vagina is an “abnormal finding” that “could be considered a blunt

force trauma injury” sustained within the previous 24 hours. Id. at 202-03,

209. Ms. Hunt identified the injuries to which she testified in the photographs

that the court had admitted as Commonwealth exhibits.           Id. at 204-10.

Appellant renewed his objection to the admission of the photographs, and the

court overruled his objection. Id. at 204-05.

       Appellant did not present any witness testimony.

       At the conclusion of Appellant’s trial, the jury returned a guilty verdict

on each of the charged offenses.

       On February 12, 2018, the trial court sentenced Appellant to an

aggregate term of seven to fifteen years’ incarceration.       On February 22,

____________________________________________


9By way of background, Ms. Hunt testified that she was also a wound care
nurse and part of the “dermal defense team” and, thus, had specific training
with respect to bruising. N.T., 5/10/17, at 195.

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2018, Appellant filed a Post-Sentence Motion to Modify Sentence, which the

court denied on March 27, 2018. This timely appeal followed.

      Appellant raises the following three issues on appeal:

      1. It was error to permit the expert testimony of Colleen Hunt
         when she was not qualified as an expert in regard to the
         medical and bruising testimony that she offered to the jury as
         well as impermissible medical opinions that she rendered
         without the proper foundation.

      2. It was error to deny the Motion in Limine to exclude
         photographs of the [victim’s] genital area.          These
         photographs were inflammatory and[,] given the other
         testimony regarding the examination[,] had no independent
         evidentiary value and[,] as such[,] served only to inflame
         the minds and passions of the jury.

      3. The evidence presented by the Commonwealth was
         insufficient to sustain the verdict of guilt as to Rape of a
         Mentally Disabled Person. There was insufficient evidence,
         physical or scientific, of intercourse or penetration or any
         other evidence sufficient to prove beyond a reasonable
         doubt this offense.

Appellant’s Brief at 13.

      Appellant’s first two issues challenge the trial court’s admission of

evidence. Our standard of review concerning a challenge to the admissibility

of evidence is as follows:

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous.




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Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

      In his first issue, Appellant claims Ms. Hunt “exceeded the scope of her

ability to competently testify when she provided ‘expert testimony’ to explain

the bruising on the [victim], the collection [of], including the presence or

absence of[,] DNA evidence, and types of trauma[,] such as blunt force

trauma.” Appellant’s Brief at 14. Appellant argues that the court erred in

permitting Ms. Hunt to offer her “specialized medical testimony, with

conclusions that are far beyond an ordinary lay person’s knowledge” when the

Commonwealth did not offer her, and the court did not qualify her, as an

expert. Id. at 14, 25. Appellant baldly asserts that this error prejudiced him

because it bolstered the Commonwealth’s theory of the case, and that the

outcome of the case would have been different were it not for this error. Id.

at 14-15.

      It is axiomatic that, in order to advance a claim of error in a ruling to

admit or exclude evidence, a party must make a specific and timely objection.

See Pa.R.E. 103(a)(1).      “We have long held that ‘[f]ailure to raise a

contemporaneous objection to the evidence at trial waives that claim on

appeal.’”   Commonwealth v. Tha, 64 A.3d 704, 713 (Pa. Super. 2013)

(citing, among others, Pa.R.A.P. 302(a)).

      Instantly, our review of the Notes of Testimony indicates that Appellant

did not object contemporaneously at trial to Ms. Hunt providing what he has

characterized as “expert testimony” on the specific grounds that Ms. Hunt was

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exceeding the scope of her competency to testify. Moreover, Appellant has

not directed this Court to the place in the record where he preserved this

objection. We have identified only two places where Appellant objected to Ms.

Hunt’s testimony: (1) Appellant objected to Ms. Hunt answering the

Commonwealth’s question about whether an examiner obtains a DNA sample

every time a victim alleges penetration took place on the grounds that Ms.

Hunt had already answered the question; and (2) Appellant requested that

the Commonwealth rephrase its question about age-dating bruises to include

a “baseline.”   See N.T., 5/10/17, at 179, 196.      Following the subsequent

rephrasing, Ms. Hunt answered the Commonwealth’s question without

objection. In lodging these objections, Appellant did not assert the grounds

that Ms. Hunt was improperly testifying as an expert. Because Appellant failed

to object to Ms. Hunt providing “expert testimony,’” we conclude that

Appellant has not preserved this claim.

      Moreover, to the extent Appellant argues in his Brief that the trial court

erred in permitting Ms. Hunt to provide testimony about the age of the victim’s

bruises on “baseline” grounds, we note that, at the time of the objection,

Appellant requested that the Commonwealth rephrase its question about age-

dating bruises. The Commonwealth complied, and Ms. Hunt responded to its

question, without further objection from Appellant.       Last, to the extent

Appellant complains about Ms. Hunt’s testimony regarding the possibility that

“blunt force trauma” caused the victim’s internal injuries, our review of the




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Notes of Testimony indicates that Appellant did not object at trial to the

admission of this testimony. These alternate claims are, thus, also waived.

      In his second issue, Appellant asserts that the trial court erred in

denying his pre-trial Motion in Limine to exclude the photographs of the

victim’s genital injuries.   Appellant’s Brief at 28-31.      He argues that the

photographs were cumulative of Ms. Hunt’s testimony and, therefore,

irrelevant. Id. at 28. He also claims that the photographs were inflammatory,

prejudicial, and lacked probative value. Id.

      “When reviewing a trial court’s denial of a motion in limine, this Court

applies an [ ] abuse of discretion standard of review.” Commonwealth v.

Schley, 136 A.3d 511, 514 (Pa. Super. 2016) (citation omitted). “An abuse

of discretion will not be found based on a mere error of judgment, but rather

exists where the court has reached a conclusion which overrides or misapplies

the law, or where the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will.” Id. (citation omitted).

      When considering the admissibility of photographs of victims over the

objection of a defendant, the trial court must engage in a two-part analysis:

      First, the court must determine whether the photograph is
      inflammatory. This Court has interpreted inflammatory to mean
      the photo is so gruesome it would tend to cloud the jury’s
      objective assessment of the guilt or innocence of the defendant.
      Next, if the trial court decides the photo is inflammatory, in order
      to permit the jury to view the photo as evidence, it must then
      determine whether it has essential evidentiary value.

Commonwealth v. Funk, 29 A.3d 28, 33 (Pa. Super. 2011) (internal

citations omitted).

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       Our review indicates that the certified record does not contain the

photographs to which Appellant objects. Our Supreme Court has determined

that when an appellant challenges the admissibility of photographs and the

record does not contain the photographs, we cannot assess the appellant’s

description and his claim. Commonwealth v. Powell, 956 A.2d 406, 423

(Pa. 2008). In finding waiver, the Supreme Court explained:

       An appellate court is “limited to considering only those facts that
       have been duly certified on appeal.”          Commonwealth v.
       Williams, 552 Pa. 451, 715 A.2d 1101, 1103 (1998). The Rules
       of Appellate Procedure place the burden on the appellant to ensure
       that the record contains what is necessary to effectuate appellate
       review, and they provide procedures to address gaps or oversights
       in the compilation and transmission of the record. See generally,
       Pa.R.A.P. Ch. 19.

Id.

       Given the foregoing, Appellant has waived his claim regarding the trial

court’s admission of photographs.10

       In his third issue, Appellant claims that the Commonwealth’s evidence

was insufficient to sustain his conviction of Rape of a Mentally Disabled Person.

Appellant’s Brief at 31-34.

       This Court’s standard of review of the challenge to the sufficiency of the

evidence is well-settled:


____________________________________________


10 Even if Appellant had not waived this issue, it would not merit relief. The
trial court explained that it found the photographs were a “fair and accurate
representation of the anatomical area depicted” and not “inflammatory or
unreasonably prejudicial.” Trial Ct. Op., 10/22/18, at 11. The trial court
properly exercised its discretion in admitting the photographs.

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      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial [ ] in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant's guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact, while passing upon the
      credibility of witnesses and the weight of the evidence produced[,]
      is free to believe all, part or none of the evidence.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      A person commits the offense of Rape of a Mentally Disabled Person

when he “engages in sexual intercourse with a complainant . . . [w]ho suffers

from a mental disability[,] which renders the complainant incapable of

consent.” 18 Pa.C.S. § 3121(a)(5).

      Appellant concedes that the victim was incapable of consent, but argues

that the Commonwealth did not introduce sufficient physical or scientific

evidence of intercourse or penetration. Appellant’s Brief at 32. He asserts

that, in the absence of DNA evidence, Mr. Kparyel’s testimony, as set forth

supra, was not enough to sustain a guilty verdict. Id. at 33.

      As noted above, the Commonwealth presented Mr. Kparyel’s eyewitness

testimony that he observed Appellant lying on the victim’s bed between the


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victim’s raised legs. The victim’s pajama bottoms were around her ankles and

Appellant’s pants were pushed down below his waist.         After Mr. Kparyel

discovered the assault, Appellant repeatedly apologized to Mr. Kparyel. In

addition, Ms. Hunt testified that she observed lacerations and bruising inside

the victim’s vagina that were consistent with blunt force trauma, and stated

that the victim was so highly agitated when she arrived at Riddle Memorial

Hospital that she required sedation in order to undergo examination.

      Our review of the record reveals that, viewing the totality of the

evidence in the light most favorable to the Commonwealth as verdict-winner,

the Commonwealth adduced sufficient direct and circumstantial evidence from

which the jury could conclude that Appellant had penetrated the victim.

Accordingly, Appellant’s challenge to his conviction for the Rape of a Mentally

Disabled Person is meritless.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/19




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