J-S49020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

TROY D. POSEY

                        Appellant                    No. 1869 EDA 2015


           Appeal from the Judgment of Sentence May 22, 2015
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0003465-2014


BEFORE: PANELLA, OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 10, 2016

     Appellant, Troy Posey, appeals from the judgment of sentence entered

on May 22, 2015. We affirm.

     The trial court ably summarized the underlying facts of this case:

        On March 22, 2014, at approximately [10:00 p.m., J.P.,
        aged 19,] exited a [SEPTA] train at 69th Street Terminal in
        Upper Darby, Pennsylvania, after visiting her boyfriend in
        Northeast Philadelphia.      [J.P. (hereinafter “J.P.” or “the
        victim”)] had been traveling on the train from Philadelphia,
        and planned to take a bus from the 69th Street Terminal to
        her residence in West Chester, Pennsylvania. However,
        after some inquiries, [J.P.] realized she had missed the last
        bus to West Chester. She did not have anyone at home to
        contact to pick her up. [J.P.] was stranded in an unfamiliar
        location, at a late hour[,] and sought help.

        . . . [D]uring the course of the trial, testimony revealed that
        [J.P. had] been diagnosed with Asperger’s Syndrome, a
        social disorder. . . . This disorder affects how [J.P.] handles
        “high pressure situations,” and interactions with strangers.



*Former Justice specially assigned to the Superior Court.
J-S49020-16


       Initially, [J.P.] approached two police officers who directed
       her to walk two blocks to the police station for help. Upon
       arrival at the police station, [J.P.] was unable to get into the
       building. [J.P.] then went across the street to knock on the
       door of the fire station, but there was no response, and the
       building was locked. [J.P.] then went to a nearby [WaWa]
       food market to ask for some money for a taxi ride home,
       but was asked to leave.

       [J.P.] then sought shelter at the Bethel Community Baptist
       Church located at 7766 Wayne Avenue, Upper Darby,
       Pennsylvania, located behind the [WaWa].            [J.P.] saw
       [Appellant] outside the church smoking, and asked if she
       could stay at the church until the next bus arrived in the
       morning. [Appellant] introduced himself as “Frank” and
       invited her inside the church. He brought her into an office
       inside the church and told her she could sleep on the couch,
       while he sat on a recliner. [Appellant] told [J.P.] to come sit
       next to him in front of the recliner. [J.P. testified at trial]
       that she did not want to move closer to him, but did so
       because she was scared and did not know what would
       happen if she did not comply with his request.

       [Appellant] began rubbing [J.P.’s] head, shoulders, and
       breasts over and underneath her clothing, and unhooked
       her bra.    [J.P.] asked [Appellant] to stop[;] however,
       [Appellant] did not [stop]. [J.P.] then asked if she could go
       back to the couch because she was tired, and [Appellant]
       followed her there.

       [J.P.] fell asleep and awoke to [Appellant on top of her,]
       turning her onto her back[,] and pulling off her pants.
       [Appellant] had his penis out . . . , and with his hands he
       was holding down [J.P.’s] hips. [J.P.] attempted to slide
       away from [Appellant], pushing against the couch to try to
       get away, but [Appellant] held her down. [Appellant] then
       began to insert his penis into [J.P.’s] vagina.       [J.P.]
       repeatedly told [Appellant] during intercourse that she
       “needed to go” and “needed to leave”; however, [Appellant]
       would not let her up. She also testified as to saying [“no”
       multiple times]. . . .

       [Appellant] then performed oral sex on [J.P.’s] vagina and
       anus, which again was without her consent. After he was

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J-S49020-16


       done, he told her to go into the bathroom and clean up.
       [Appellant] then forced [J.P.] to pose nude and he took
       photographs of her with his cell phone. Appellant told [J.P.]
       to pose doing a “peace sign” “and make myself seem like I
       wanted to do that and like I enjoyed it, which I did not.”
       [J.P.] did not want to take these pictures, but complied
       because she was too afraid to leave, because she did not
       want to get hurt. When asked why [she] didn’t just run for
       the door[, J.P.] answered: “I didn’t know what he was
       capable of doing.”

       [J.P.] then got dressed and sat back down on the couch and
       [Appellant] told her to get undressed again. [J.P.] then got
       undressed again and stated she did so because she “didn’t
       know what was going to happen if I didn’t. Like if I can get
       hurt or worse, I didn’t want to risk it.” [Appellant] then
       began to rape [J.P.] again. Again, he inserted his penis into
       her vagina against her protests. [J.P.] verbally stated that
       she wanted to leave.       [Appellant] also touched [J.P.’s]
       breasts and butt and had sexual intercourse with her
       against her will. Afterwards, [Appellant] again made [J.P.]
       go into the bathroom and clean off. [J.P.] got redressed
       afterwards.

       [Appellant] then for a third time told [J.P.] to get undressed
       and [J.P.] did so. She [testified that] she complied with
       [Appellant] because “I was really scared.” [Appellant] then
       raped [J.P.] for a third time by inserting his penis into her
       vagina. He also attempted to insert his penis into her anus
       but was unsuccessful. Again, [J.P.] tried to move away
       from [Appellant], but could not because [Appellant] was
       holding her down. During the third sexual attack, [J.P.]
       again verbally stated “no,” that she did not want to have
       sex, and that she “had to go.” [J.P.] also testified as to
       crying during all three occasions. After the third and final
       instance, [Appellant] again instructed [J.P.] to wash off,
       however [J.P.] refused. . . .

       After the entire ordeal, at approximately 6:00 a.m.,
       [Appellant] sat next to [J.P.] on the couch and apologized.
       [As J.P. testified, Appellant said “I’m so sorry I did this to
       you. I should have never did this to you”]. He also stated
       that he wanted to marry [J.P.] and have her move in with
       him. [Appellant] finally allowed [J.P.] to leave and gave her

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J-S49020-16


         money. [J.P.] then took a bus from the 69th Street Terminal
         and arrived home in West Chester at approximately 11:00
         a.m.

         [J.P.] did not initially report this to anyone. A few days
         later, she finally told her sister what had happened to her.
         Then, at school[,] she was researching “rape” and another
         student told the administration at school. She then told her
         parents and filed a police report the following day.
         [Appellant was arrested on April 3, 2014].

Trial Court Opinion, 11/10/15, at 1-5 (internal citations omitted).

       On December 4, 2014, a jury found Appellant guilty of rape by forcible

compulsion, sexual assault, indecent assault without consent, and indecent

assault by forcible compulsion.1         The trial court sentenced Appellant to an

aggregate term of 106 to 212 months in prison, followed by 5 years of

probation. This timely appeal followed.

       Appellant presents two questions for review:2

         1) Whether the evidence is insufficient to sustain the
         conviction for rape since the Commonwealth failed to prove,
         beyond a reasonable doubt, that [Appellant] engaged in
         sexual intercourse with a complainant by forcible
         compulsion or threat of forcible compulsion?

         2) Whether the evidence is insufficient to sustain the
         conviction for indecent assault since the Commonwealth
____________________________________________


1
   18 Pa.C.S.A.       §§ 3121(a)(1),      3124.1,   3126(a)(1),   and   3126(a)(2),
respectively.
2
  The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).      Appellant complied and, within his Rule 1925(b)
statement, Appellant listed the claims he currently raises on appeal.




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        failed to prove, beyond a reasonable doubt, that [Appellant]
        made indecent contact with a complainant without consent,
        by forcible compulsion, or threat of forcible compulsion?

Appellant’s Brief at 5.

      We review Appellant’s sufficiency of the evidence challenges under the

following standard:

        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 [that of] 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 trier 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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806

(Pa. Super. 2008).

      Appellant first challenges the sufficiency of the evidence to support his

rape conviction. Appellant’s Brief at 5.




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J-S49020-16


     A person commits the crime of rape by engaging in sexual intercourse

with another by forcible compulsion or threat of forcible compulsion.

Commonwealth v. Buffington, 828 A.2d 1024, 1031 (Pa. 2003); 18

Pa.C.S.A. § 3121(a)(1).       Appellant concedes that he engaged in sexual

intercourse with the complainant.      His sufficiency argument concerns the

element of forcible compulsion. Appellant’s Brief at 10. Appellant contends

that, because the victim did not resist or attempt to escape in any way he

deems significant, the Commonwealth cannot demonstrate that Appellant

used forcible compulsion to accomplish the sexual acts. Id. at 12-13.

     The Crimes Code defines “forcible compulsion” in relevant part as

“compulsion   by   use   of    physical,   intellectual,   moral,   emotional,   or

psychological force, either express or implied.” 18 Pa.C.S.A. § 3101.

        It is well-established that in order to prove the “forcible
        compulsion” component, the Commonwealth must establish,
        beyond a reasonable doubt, that the [Appellant] used either
        physical force, a threat of physical force, or psychological
        coercion, since the mere showing of a lack of consent does
        not support a conviction for rape . . . by forcible
        compulsion. In Commonwealth v. Rhodes, 510 A.2d
        1217 (Pa. 1986), our Supreme Court stated that forcible
        compulsion includes “not only physical force or violence, but
        also moral, psychological[,] or intellectual force used to
        compel a person to engage in sexual intercourse against
        that person’s will.” Rhodes, 510 A.2d at 1226. Further,
        the degree of force required to constitute rape is relative
        and depends on the facts and particular circumstances of a
        given case.

Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010). Thus,

the element of “forcible compulsion” denotes a perpetrator’s use of superior


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J-S49020-16


force, physical or non-physical, to compel a person to engage in sexual

intercourse against that person’s will. Rhodes, 510 A.2d at 1226. Stated

another way, one can commit rape by the application of superior

psychological or emotional force, whether express or implied, in the

complete absence of physical violence. Commonwealth v. Gonzalez, 109

A.3d 711, 720 (Pa. Super. 2015).       It is not necessary to prove that a

perpetrator physically overpowered the complainant. Rhodes, 510 A.2d at

1227 n.15; see also 18 Pa.C.S.A. § 3107 (Resistance to physical force is not

necessary to show forcible compulsion.).

        The Superior Court has held that the degree of force
        involved in rape is defined, not in terms of the physical
        injury to the [complainant], but in terms of the effect it has
        on the [complainant’s] volition.      Accordingly, the force
        necessary to support convictions for rape need only be such
        as to establish lack of consent and to induce the
        [complainant] to submit without additional resistance.

Commonwealth v. Ables, 590 A.2d 334, 337 (Pa. Super. 1991) (internal

quotations, citations, and corrections omitted).

      To determine whether Appellant’s use of physical or psychological

coercion is sufficient to have been compulsive, we examine the totality of

the circumstances, including such factors as:

        the respective ages of the victim and the accused, the
        respective mental and physical conditions of the victims and
        the accused, the atmosphere and physical setting in which
        the incident was alleged to have taken place, the extent to
        which the accused may have been in a position of authority,
        domination[,] or custodial control over the victim, and
        whether the victim was under duress.


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Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa. Super. 2015)

(internal quotations, citations, and emphasis omitted).

      A complainant’s testimony as to her state of duress and apprehension,

as well as the defendant’s treatment of her, can be sufficient to sustain the

verdict.   See Commonwealth v. Rough, 418 A.2d 605, 608 (Pa. Super.

1980); see also Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.

Super. 2005) (“[t]he uncorroborated testimony of the complaining witness is

sufficient to convict a defendant of sexual offenses”) (internal quotations and

citations omitted).

      The victim encountered Appellant alone and in an unfamiliar location,

having exhausted any other options for a safe return home and afraid to call

her mother.    Once inside the church, Appellant touched her breasts and

upper body, over and underneath her clothing, without her consent.        N.T.

12/2/14, at 253-254.    The victim testified that she was scared and asked

Appellant to stop, but that she did not resist because she was afraid of “what

he might do.” Id. at 189 and 253-254. She was tired and wanted to sleep,

and she asked Appellant if she could go lie down on the couch, essentially

asking permission to remove herself from his advances.            Id. at 191.

Appellant instead followed her and waited until she fell asleep. The victim

awoke to Appellant, on top of her with his penis out and his hands on her

hips. She attempted to maneuver away from Appellant on the couch, but

was unable because of the force of his body against hers. Id. at 196-197.


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The victim testified that she could not escape him “because he was on top of

me and it was difficult to try to get out.” Id. at 260. She testified:

        Q: Why couldn’t you maneuver out of there?

        A: His weight and the way I was positioned.

Id. at 210. Appellant then penetrated her vaginally, before performing oral

sex on her against her will. Id. at 199. Further, the victim testified that she

only felt it was safe for her to try to leave after Appellant committed his third

act of nonconsensual intercourse with her. Id. at 212. She testified:

        Q: Okay. After all of that did you – what happened next?

        A: Then I was finally allowed to leave.

Id. at 213.

      Appellant used physical force to remove the victim’s pants as she was

sleeping, and then used the force of his body against hers to restrain her

movement as he completed the act. The victim’s testimony is sufficient to

establish these facts, and the jury was free to credit her testimony over

Appellant’s   theory   of   the   case.     Castelhun,   889   A.2d   at   1232;

Commonwealth v. Hlatky, 626 A.2d 575, 580 (Pa. Super. 1993).

      Furthermore, Appellant acted from a position of superior psychological

and emotional force, in circumstances where the victim was particularly

vulnerable. Alone with a stranger in an unfamiliar place, she could not have

known what he might or might not do should she choose to oppose him.

Meanwhile, she was temporarily dependent on Appellant for safety and


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J-S49020-16


shelter during the late hours of the night. In this situation, the implication

that the victim could face further harm if she chose to fight or flee could

induce a person to submit “without additional resistance.” Ables, 590 A.2d

at 337.     Even if Appellant had not used physical force to accomplish

nonconsensual intercourse, the coercive, psychological impact of the victim’s

distressful and foreboding situation would be sufficient to show forcible

compulsion. See Rhodes, 510 A.2d at 1226; Gonzalez, 109 A.3d at 720;

Ables, 590 A.2d at 337. The victim’s testimony as to her apprehension and

fear is sufficient to prove this element, if credited by the trier of fact.

Rough, 418 A.2d at 608.

      To show the degree of force required to constitute rape, we note the

trial court’s application of the Gonzalez factors to this case:

          (1) There was a fairly significant age difference between
          [the victim] and the Appellant. [The victim] was 19-years-
          old, and the Appellant was 49-years-old at the time of the
          incident. (2) There were fairly significant differences in both
          the mental and physical conditions of [the victim] and the
          Appellant.    [The victim] was diagnosed with Asperger’s
          Syndrome, a social disorder, two years prior to the incident.
          This disorder affected how [the victim] handled “high
          pressure situations,” and interactions with strangers. [The
          victim] was in a state of distress as she was alone, in an
          unfamiliar place, in the early morning hours, and was
          desperately seeking shelter for the night. (3) The physical
          setting in which the incident took place was very isolated
          and the atmosphere was one which left [the victim] very
          vulnerable. . . . Appellant brought [the victim] into a
          private office in the church, no one else other than the
          Appellant was in the church at the time of the incident, and
          [the victim] was tired, nervous, and frightened from the
          prior events of that evening. (4) The Appellant was in a
          position of authority over the Appellant as he was

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        significantly older, she was in his place of employment, and
        she was relying on him for safety and shelter. (5) The
        Appellant was not in custodial control over [the victim]. (6)
        [The victim] was under duress, although the Appellant did
        not directly threaten [the victim], there was psychological
        duress. [The victim] was alone in the Appellant’s place of
        employment, she was significantly younger than the
        Appellant, she was nervous and frightened by the preceding
        events of the night, and she had no means of transportation
        to get home.

Trial Court Opinion, 11/10/15, at 10-11. Given the power disparity inherent

in this situation, a rape conviction does not require proof of overwhelming,

physical force.

      For the foregoing reasons, we find the evidence sufficient to prove that

Appellant used physical force and complainant’s position of vulnerability and

distress to compel her to engage in intercourse against her will.         The

evidence is sufficient to sustain Appellant’s conviction for rape beyond a

reasonable doubt.

      We now turn to Appellant’s challenge to the evidentiary sufficiency of

his indecent assault convictions.

      The Crimes Code defines indecent assault in relevant part as:

        A person is guilty of indecent assault if the person has
        indecent contact with the complainant, causes the
        complainant to have indecent contact with the person or
        intentionally causes the complainant to come into contact
        with seminal fluid, urine or feces for the purpose of arousing
        sexual desire in the person or the complainant and: (1) the
        person does so without the complainant’s consent; or (2)
        the person does so by forcible compulsion.

18 Pa.C.S.A. § 3126(a)(1) and (2).


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       The jury convicted Appellant of indecent assault without consent,

under Subsection (a)(1), and indecent assault by forcible compulsion, under

Subsection (a)(2). According to the Commonwealth, Appellant, and the trial

court, Appellant’s indecent assault convictions arose from Appellant’s

touching of the victim’s breasts prior to sexual intercourse.3               Trial Court

Opinion, 11/10/15, at 15 and 25-27; Appellant’s Brief at 19.                   Appellant

concedes that he touched the victim’s breasts and upper body and that this

could constitute “indecent contact.”               As above, he argues that the

Commonwealth failed to prove that he made indecent contact without

consent    or   that   he   made     indecent      contact   by   forcible   compulsion.

Appellant’s Brief at 18.

       As to his indecent assault without consent conviction, Appellant argues

that the evidence is insufficient because the victim never unequivocally

communicated her non-consent to him. Appellant’s Brief at 20. Appellant’s

argument is reliant upon the victim’s testimony during cross-examination:

          Q: Yes. So you didn’t tell him to stop?

          A: I might have thought I did but I wouldn’t – it probably
          didn’t come out.

N.T. Trial, 12/2/14, at 256.
____________________________________________


3
  We conclude that the evidence was sufficient to support Appellant’s
indecent assault convictions for his touching of the victim’s breasts prior to
sexual intercourse.     Therefore, we will not determine whether the
convictions could have been supported by Appellant’s other actions on the
night in question.



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      Yet, Appellant’s claim on appeal fails because the victim specifically

testified that, while Appellant was touching her, she told Appellant to stop.

The victim testified:

      Q: He actually – he unhooked your bra at that point in time,
      didn't he?

      A: Yes.

      Q: And he asked you if it was okay, didn’t he?

      A: No.

      Q: He didn’t ask you if it was okay, if you were comfortable?

      A: Not that I remember.

      Q: Not that you remember. Were you rubbing his legs at this
      point in time?

      A: No.

      Q: You were not?

      A: No.

      Q: Did you ask him to stop what he was doing?

      A: At one point I said stop.

N.T. Trial, 12/2/14, at 254.

Further, the victim testified:

      Q: All right. Did he say anything to you at that point?

      A: He told me to move more closer to him.

      Q: What’s going through your head at this point?      I mean did
      you want to move closer to him?

      A: No.

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      Q: Did you end up actually doing it, moving closer?

      A: Yes.

      Q: Why?

      A: I was scared and I didn’t know what would happen.

                                     ...

      Q: Okay. Did you want him to rub your head?

      A: No.

      Q: Did you do anything to try to, you know, kind of like express
      interest that you wanted him to touch you?

      A: No.

Id. at 189-190.

      The testimony and the sequence of events seen as a whole, viewed in

the light most favorable to the Commonwealth, establishes that the victim

stated her opposition to Appellant’s initial touching of her breasts.

Therefore, Appellant’s claim to the contrary fails. See Hlatky, 626 A.2d at

580; Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000)

(en banc).

      Next, Appellant challenges the sufficiency of his conviction for indecent

assault by forcible compulsion because, he argues, he did not make indecent

contact with the victim’s body by physical force or restraint.     Appellant’s

Brief at 19-20.

      The element of forcible compulsion required to sustain a conviction

under Subsection (a)(2) is the same as that for rape by forcible compulsion,

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as related above. See Pa.C.S.A. § 3101 (defining forcible compulsion for all

sexual offenses in Chapter 31 of the Crimes Code). As above, viewing the

evidence in the light most favorable to the Commonwealth, the entire

sequence   of   sexual   acts   was   committed   through   physical   coercion,

psychological coercion, and the implied threat of force. This is sufficient to

meet the element of forcible compulsion. The Commonwealth need not prove

that Appellant used physical force, restraint, or express threats to

accomplish the touching of complainant’s chest. See Rhodes, 510 A.2d at

1226 (“we hold that ‘forcible compulsion’ as used in section 3121(1) includes

not only physical force or violence but also moral, psychological or

intellectual force used to compel a person to engage in sexual intercourse

against that person's will”); Gonzalez, 109 A.3d at 720 (same); Ables, 590

A.2d at 337.

      After review, we find that all of Appellant’s challenges to the

sufficiency of the evidence are without merit.

      Judgment of sentence affirmed.




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