J-S59004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BASILIO DONES                              :
                                               :
                       Appellant               :   No. 2055 EDA 2018

          Appeal from the Judgment of Sentence Entered June 4, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000783-2016


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 10, 2020

        Basilio Dones appeals from his judgment of sentence, 1 entered in the

Court of Common Pleas of Philadelphia County, after a jury convicted him of

rape of a child,2 unlawful contact with a minor,3 indecent assault,4 and


____________________________________________


1 While Dones’ notice of appeal states that he is appealing from the order
denying his motion for extraordinary relief for a judgment of acquittal, the
caption correctly reflects that the appeal is taken from his judgment of
sentence. See Commonwealth v. Chamberlain, 658 A.2d 395, 397 (Pa.
Super. 1995) (order denying post-sentence motion acts to finalize judgment
of sentence; thus, appeal is taken from judgment of sentence, not order
denying post-sentence motion).

2   18 Pa.C.S.A. § 3121(c).

3   18 Pa.C.S.A. § 6318(a)(1).

4   18 Pa.C.S.A. § 3126(a)(7).
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corruption of minors.5 On appeal, Dones contends that the evidence at trial

was so contradictory and unreliable that it was insufficient to sustain his

convictions. Upon careful review, we affirm.

        In or around 2006, the victim, S.O., moved to her home on Glenloch

Street in Philadelphia with her maternal grandmother, M.D., her aunt, J.V.,

and her uncle, C.V. N.T. Trial, 3/15/18, at 11-12, 59. In or around 2007,

Dones, S.O.’s 21-year-old cousin, moved into the Glenloch Street house to

live closer to Lincoln Technical Institute where he attended auto mechanic

classes. Trial Court Opinion, 4/30/18, at 3. At the time of the incidents, which

occurred between 2006 and 2008, S.O. was between the ages of seven and

eight. Id. At all times relevant hereto, S.O.’s father was incarcerated, and

S.O. saw her mother, U.V., approximately every other weekend. Id. at 2.

        The first incident happened after [Dones, S.O., and M.D.] had
        watched television when it was still light outside. After [M.D.]
        went upstairs to her room, [Dones] told [S.O.] to follow him to his
        room. [Dones] then told her to stand facing the corner of the
        bedroom. [S.O.] remembers her pants and underpants being
        down to her ankles, although she does not remember how they
        came off, and hearing the sound of “a wrapper being torn apart.”
        She glanced at the bed and saw that it was a condom wrapper.
        [S.O.] then felt [Dones] standing close behind her and making
        body motions “back and forth” against her. She could feel his
        weight on her back and felt his penis in between her legs. [Dones]
        would ask [S.O.] during [the assault,] “does it hurt.” [S.O.] does
        not know or remember feeling whether or not [Dones’] penis went
        into in any parts of her body. This back and forth motion would
        occur for “a little while,” then [Dones] would tell [S.O.] that she
        could pull up her pants and leave. Afterwards, [S.O.] went to
____________________________________________


5   18 Pa.C.S.A. § 6301(a)(1).


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     [M.D.’s] room, “cuddled up next to her and cried [herself] to
     sleep.” [S.O. also testified that during these experiences, she was
     “too young to understand” what was happening, and that “[her]
     body just shut down on [her], like [she] was just in shock.” N.T.
     Trial, 3/15/18, at 31, 65.]

     [Although she testified at the preliminary hearing that these
     assaults occurred two to four more times, S.O.] testified [at trial]
     that these assaults occurred more than five times in the same
     routine with her facing the wall, the condom being opened, and
     his motions back and forth with his penis while both [Dones] and
     [S.O.] were standing upright. When [S.O.] began experiencing
     pain and a burning sensation when urinating her grandmother
     took her to a doctor and she was prescribed antibiotics and other
     medicine and was diagnosed as having a vaginal infection. This
     infections [sic] lasted for “maybe months” and ceased when
     [Dones] moved out. [S.O.] did not speak to anyone, including
     family members, about [Dones’] actions until the ninth grade
     when [she] told her best friend Calvin Gainey and [another female
     friend] about what [Dones] did to her. During the period of time
     between the first incident and her ninth grade year, [S.O.]
     testified that she felt depressed and experienced traumatic
     flashbacks of the assaults.

     [S.O.] also testified as to another incident that happened several
     years later between 2014 and 2015 at the Lawrence Street
     residence after her high school classes had let out for the day.
     [Dones] and his mother were visiting while [S.O.] babysat her
     younger cousin. [Dones’] mother stepped out and [Dones] asked
     [S.O.] where his mother had gone. At the time, [S.O.] was on the
     phone with her friend, Calvin Gainey. She testified that at some
     point she [brought] her younger cousin upstairs. She testified
     that she remembered “running up the steps and [Dones] was
     chasing behind [her].” When [S.O.] went into her bedroom,
     [Dones] prevented her from shutting the door, which caused her
     to trip. [Dones] then pinned [S.O.] down on her bed with his
     weight on top of her. Before she tripped, [S.O.] was able to hit
     the “Face[T]ime button” on her phone so that Calvin Gainey could
     see what was happening from [the] front camera on her phone.
     She heard Calvin say “what the F you doing” twice to [Dones].




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       After the second time, [Dones] got off of [her]. He then left the
       bedroom and the house.6

       [S.O.] further testified that when she was fifteen (15) and living
       on Lawrence Street she felt depressed and began cutting herself.
       She attributed these feelings to the memories of what [Dones]
       had done to her. She would call her friend Calvin or her female
       friend whenever she saw [Dones]. She would also lock herself
       and her female friend in her bedroom to avoid [Dones].

       [S.O.] testified that that she had not spoken to her family about
       [Dones] sexually assaulting her because she felt “ashamed” and
       did not know how to file a report. However, during her tenth grade
       year in high school, [S.O.] told her paternal grandmother [N.M.]
       that she had been raped by [Dones]. [N.M] called the Philadelphia
       Department of Human Services [(DHS)] the following morning.
       When DHS came one or two days later, [M.D.] told [S.O.] to close
       the case over health concerns for [Dones’] father, who was
       [M.D.’s] brother.     After the visit from DHS, several family
       members questioned [S.O.] about the assaults. [S.O.] was

____________________________________________


6 Gainey testified about this incident between S.O. and Dones and also gave
a statement to the police about it. The trial court summarized Gainey’s
testimony as follows:

       During one of their regular conversations when they were talking
       on the phone using Face[T]ime, [Gainey] heard S.O. say, “oh shit,
       my cousin’s here.” He stated that he then was able to watch on
       his phone and saw [Dones] chase S.O. into her room while she
       shouted at him to get away. [Gainey] also saw [Dones] stick his
       foot in the doorway ‘so like he could prevent [S.O.] from shutting
       the door all the way fully.’ [Gainey] stated that he was in shock
       from witnessing this incident without being able to do anything.
       He testified that when he saw [Dones] pin S.O. to the bed, he
       yelled into his phone to [Dones], ‘what the fuck is you doing?’
       When [Gainey] told [Dones] to ‘get off’ of S.O., [Dones] grabbed
       the phone, saw [Gainey’s] face, and [got] off of [S.O.]. [Dones]
       then called [Gainey] a ‘pervert.’ [Gainey] testified that he had
       never met nor seen [Dones] prior to this [F]ace[T]ime call.
       Sometime around November of 2015, [Gainey] gave a statement
       to the police regarding this incident.

Trial Court Opinion, 4/30/18, at 8.

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      interviewed [on November 12, 2015 by Colleen Getz of the
      Philadelphia Children’s Alliance (PCA)].

Id. at 3-5.

      During that interview, S.O. explained that Dones raped her more than

once, and that “the main thing [she] remember[s] is [that she was] eight.”

Dones – Recorded Interview of S.O., 11/12/15, at 5:55-6:30.         She stated

during this interview that Dones said to her “let’s go upstairs” before the

assault, and asked her “did it hurt” during the incident. Id. at 8:55-10:49.

She described standing facing the corner of the bedroom, hearing a wrapper

opening, and seeing a condom wrapper on Dones’ bed. Id. S.O. stated that

Dones inserted his penis into her vagina and that “it hurt it.” Id. at 11:05-

12:39. At trial, the jury viewed this recorded interview. Michele Kline, Lead

Forensic Interview Specialist at the PCA, testified at trial that interviewers

including Colleen Getz typically refrain from asking children specifically about

when and how frequently abuse happened “because most children are not able

to accurately provide that information.” Trial Court Opinion, 4/30/19, at 11.

      Dones took the stand in his defense and denied that the 2015 incident

that Gainey and S.O. described ever occurred. Trial Court Opinion, 4/30/19,

at 12. He also testified that none of the sexual assaults that S.O. described

had occurred, and he denied ever being around S.O. while he was attending

Lincoln Technical Institute. Id. Dones testified that he never had any issue

with Gainey, N.M., or U.V., and that his relationships with M.D. and S.O. were

good. Id. at 204-206. He then testified that all of those witnesses against

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him were lying, and that they “probably want to take [him] down.” Id. at

207.

       According to Dones, S.O. and the other witnesses “just picked [him] out

of nowhere” to take the blame for raping S.O. “because basically [he] was

never around [S.O.] at that time,” he was “a good person,” and they were

“jealous of [him]” for having a job and a daughter. Id. at 203-209. On cross-

examination, the Commonwealth confronted Dones with contradictions in his

own testimony and in his statement to police regarding the 2015 incident. Id.

at 211-215.

       At trial, Dones presented several character witnesses.      Trial Court

Opinion, 4/30/19, at 12. Each witness testified to Dones’ good character and

that he was a peaceful, nonviolent person and had an excellent reputation in

the community. Id.

       After a three-day jury trial held in March 2018, a jury convicted7 Dones

of the above-mentioned crimes.8 On June 4, 2018, the trial court sentenced

____________________________________________


7 Dones was arrested and charged with rape, unlawful contact with a minor,
indecent assault, corruption of minors, unlawful restraint, simple assault, and
recklessly endangering another person. The Commonwealth withdrew the
latter three charges before trial.

8 Prior to Dones’ sentencing hearing, the court conducted a hearing on his
motion for a judgment of acquittal with respect to the rape charge. See
Pa.R.Crim.P. 704(B). The court denied the motion, stating:

       [S.O.] was very clear about this condom, this wrapper that was
       taken out each time. She was very clear that [Dones] was moving



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Dones to an aggregate term of 10 to 20 years’ incarceration.          Thereafter,

Dones filed a timely motion for reconsideration of sentence alleging his

sentence was excessive, which the court also denied.         Dones then filed a

timely notice of appeal and court-ordered statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). Dones raises a single issue for our

review: “Is the evidence sufficient to convict [Dones] of the charges of rape,

unlawful contact with a minor, indecent assault, and corruption of minors?”

Brief of Appellant, at 5.9




____________________________________________


       back and forth and pressing on her. She wasn’t completely clear
       whether the penis went in her, but the question is if somebody
       takes a condom out and somebody is moving back and forth
       behind somebody and has an [eight]-year-old to the wall and
       they’re feeling pressure, the jury can determine that there was
       penetration, however slight, which is what the issue is for the rape
       charge. From having reviewed all of the testimony of her, both
       direct and cross, I believe that there was a sufficient basis for the
       jury’s verdict and I am going to deny the motion for relief.

N.T. Sentencing, 6/4/18, at 10.

9  In its Rule 1925(a) opinion, the trial court interpreted Dones’ claim as a
challenge that the verdict was against the weight of the evidence. See Trial
Court Opinion, 4/30/19 at 13-16. In its Appellee’s brief, filed almost two
months late, the Commonwealth also addresses Dones’ appeal as a challenge
to the weight, rather than the sufficiency, of the evidence. However, Dones
raises no argument on appeal relating to the weight of the evidence in this
case; rather, the sole argument in his brief concerns the sufficiency of the
evidence presented at trial, arguing that the Commonwealth failed to satisfy
its burden of proving each element of each crime charged beyond a reasonable
doubt. Brief of Appellant, at 30-33. Thus, we confine our review to a
sufficiency of the evidence claim.


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      Dones argues that the evidence presented at trial is so unreliable and

contradictory that it is incapable of supporting a verdict of guilty, and thus, is

insufficient as a matter of law. Brief of Appellant, at 63. “Normally, evidence

is deemed to be sufficient where there is testimony offered to establish each

material element of the crime charged and to prove commission of the offense

by the accused beyond a reasonable doubt.” Commonwealth v. Smith, 467

A.2d 1120, 1122 (Pa. 1983). There is, however, an exception to this general

rule, known as the “Bennett principle.”     See Commonwealth v. Bennett,

303 A.2d 220 (Pa. Super. 1973); see also Commonwealth v. Farguharson,

354 A.2d 545, 550 (Pa. 1976).

      Our Court [has] recognized that, in those extreme situations
      where witness testimony is so unreliable and contradictory that it
      makes the jury’s choice to believe that evidence an exercise of
      pure conjecture, any conviction based on that evidence may be
      reversed on the grounds of evidentiary insufficiency, since no
      reasonable jury could rely on such evidence to find all of the
      essential elements of the crime proven beyond a reasonable
      doubt.

Commonwealth v. Brown, 52 A.3d 1139, 1156 n.18 (Pa. 2012).

      “The Bennett principle is applicable only where the party having the

burden of proof presents testimony to support that burden which is either so

unreliable or contradictory as to make any verdict based thereon obviously the

result of conjecture and not reason.” Farguharson, 354 A.2d at 550. The

Bennett principle, however, does not apply to every case involving allegedly

contradictory or inconsistent testimony. Commonwealth v. Grant, 135 A.3d

649 (Pa. Super. 2015).


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      In Bennett, the Commonwealth predicated its case upon the testimony

of one individual, Harry Jones, who sought to implicate the defendant in the

crime of receiving stolen property (an automobile). Bennett, 303 A.2d 220,

220 (Pa. Super. 1973). At trial, Jones gave

      several wholly different, conflicting and inconsistent versions of
      when and how he had told [the defendant] that the car had been
      in fact stolen by [Jones]. On a previous occasion, Jones had
      denied he ever conveyed to defendant knowledge of the car's
      theft. With each new version [of the car theft story,] Jones would
      recant the previous one and protest that the newest version was
      in fact the true one.

Id. On appeal, our Court reversed the defendant’s judgment of sentence,

noting that the Commonwealth presented the jury “not with a mere conflict or

contradiction in testimony which was reasonably reconcilable,” but instead

with testimony so contradictory on the basic issue as to make any verdict

based thereon pure conjecture.          Id. at 221 (emphasis added).           Cf.

Commonwealth v. Smith, 467 A.2d 1120, 1123 (Pa. 1983) (declining to

apply Bennett where reconciliation of conflicts in testimony not impossible).

      Our Supreme Court followed Bennett in Commonwealth v. Karkaria,

625 A.2d 1167 (Pa. 1993), the primary case relied upon by Dones to support

his argument on appeal.       In Karkaria, the victim’s testimony relating to

alleged incidents of sexual assault was so internally inconsistent that the Court

was “compelled to conclude” that the evidence presented at trial was

insufficient to support a guilty verdict. Id. at 1172. At trial, the victim offered

different, contradictory accounts of when the defendant assaulted her. Id. at


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1171. The victim initially testified that her stepbrother, A.K., was never in the

home during the assaults.     Id.   However, when confronted with her own

testimony that A.K. and the defendant spent every weekend in the same

household pursuant to a custody agreement, the victim testified that the

assaults occurred at another time, failing to specify when that particular

opportunity arose. Id. Moreover, the victim in Karkaria initially insisted that

every assault occurred while the defendant babysat her, and later she

admitted that the defendant no longer acted as her babysitter during the

period charged in the indictment. Id. See also Commonwealth v. Devlin,

333 A.2d 888 (Pa. 1975) (noting criminal prosecution requires proof beyond

reasonable doubt accused committed offense charged at time specified within

indictment).

      Additionally, the Karkaria Court pointed out that “no words were ever

spoken” between the victim and the defendant before, during, or after any of

the alleged assaults. Karkaria, supra, at 1171. Further, although the victim

had told one friend and two camp counselors that the defendant had “touched”

her, none of those individuals took any action in response, and, “[i]n fact,

none of the three witnesses testifying to the touching comments could recall

specific complaints of sexual assault.” Id.

      Upon review of the relevant case law and certified record on appeal, we

conclude that the Bennett principle is inapposite here. The Commonwealth’s

witnesses’ testimony was not so unreliable and contradictory as to make the


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guilty verdict the result of conjecture. S.O. testified consistently about the

timing, manner, and reporting of Dones’ abuse.      She testified consistently

about her history of vaginal infections, which coincided with the time Dones

lived with her, as well as the lasting psychological impact Dones’ assaults had

on her. Several members of S.O.’s family, Gainey, and Michele Kline of the

PCA corroborated S.O.’s testimony extensively.      The jury also considered

Dones’ own testimony,10 which likely provided an “indicium of trustworthiness

to the testimony of [the other witnesses] on the critical issue sufficient to

permit the question to be properly left to the trier of fact.” See Farguharson,

354 A.2d at 551 (Supreme Court concluded Bennett principle not applicable

where Commonwealth’s witness gave contradictory testimony that was

corroborated in part by defendant’s own testimony). Here, any misstatement

or discrepancy in witness testimony was easily reconcilable. Dones is entitled

to no relief.

       Judgment of sentence affirmed.




____________________________________________


10 Although Dones conceded that he had no issues with Gainey or any family
member, he was adamant that S.O. and the other witnesses were lying about
him, and that in order to protect the true assailant, an unidentified family
member, Dones was “picked [] out of nowhere” to take the blame for raping
S.O. N.T. Trial, 3/15/18, at 203-209. Dones steadfastly maintained that he
was conspired against “because basically [he] was never around [S.O.],” he
is “a good person,” and his family was “jealous of [him]” for having a daughter
and a job. Id.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/20




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