J-S10034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ROBERT ENDRIKAT

                            Appellant               No. 1839 EDA 2014


            Appeal from the Judgment of Sentence March 14, 2014
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000505-2012


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                            FILED MAY 05, 2015

       Appellant, Robert Endrikat, appeals from the judgment of sentence

entered in the Monroe County Court of Common Pleas, following Appellant’s

jury trial convictions of involuntary deviate sexual intercourse (“IDSI”)—

forcible compulsion, unlawful contact with a minor, corruption of minors,

sexual assault, indecent assault—without consent, and indecent assault—

forcible compulsion.1 We affirm.

       The trial court’s opinion sets forth the relevant facts and procedural

history of this case as follows:


____________________________________________


1
  18 Pa.C.S.A. §§ 3123(a)(1), 6318(a)(1),           6301(a)(1)(ii),   3124.1,
3126(a)(1), and 3126(a)(2), respectively.


_________________________

*Retired Senior Judge assigned to the Superior Court.
J-S10034-15


          On May 21, 2012, the Commonwealth filed the Information
          charging [Appellant] with Rape by Forcible Compulsion,
          [IDSI], Unlawful Contact with a Minor, Sexual Assault,
          Corruption of Minors and Indecent Assault.

          On January 15, 2013, [Appellant] filed an Omnibus Motion
          challenging the prima facie case. On March 21, 2013, [the
          court] held a hearing on the Omnibus Motion. On June 6,
          2013, [the court] issued an opinion and order denying
          [Appellant’s] Omnibus Motion.

          On August 20, 2013, after a trial by jury, [Appellant] was
          convicted of all charges with the exception of Rape by
          Forcible Compulsion. Trial counsel, an attorney with the
          Public Defender’s Office, then filed a petition for withdrawal
          after stating that relations with [Appellant] had broken
          down.    On November 6, 2013, [the] [c]ourt allowed
          counsel to withdraw and appointed [new counsel] to act as
          counsel for [Appellant].

          On December 9, 2013, [the court] granted [Appellant’s]
          Motion for Transcripts.

          On March 14, 2014, [the court] sentenced [Appellant] to a
          term of six years to twelve years on each of the charges of
          [IDSI], Unlawful Contact, and Corruption of Minors. All
          sentences were to run concurrently. [The court] also
          found that the charges of Sexual Assault, Indecent Assault
          without Consent and Indecent Assault by Forcible
          Compulsion merged with [IDSI] for sentencing purposes.
          Therefore, [the court] imposed no additional sentence on
          those charges.

          On March 24, 2014, [Appellant] filed the Post-Sentence
          Motions. The Commonwealth also filed its own Motion for
          Reconsideration of sentence.[2]


____________________________________________


2
  The Commonwealth complained Appellant’s sentence was too lenient and
sought imposition of consecutive terms of incarceration in the aggravated
range of the sentencing guidelines.



                                           -2-
J-S10034-15


         On May 23, 2014, [the court] held a hearing on the [post-
         sentence] motions and the parties filed briefs. …

(Post-Sentence Motion Opinion, filed June 4, 2014, at 1-2).      The court

subsequently denied both Appellant’s and the Commonwealth’s post-

sentence motions on June 4, 2014. On June 24, 2014, Appellant timely filed

a notice of appeal. The court ordered Appellant on July 10, 2014, to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant timely complied on July 31, 2014.

      Appellant raises the following issues for our review:

         WHETHER IT WAS AN ABUSE OF DISCRETION TO DENY
         [APPELLANT’S] MOTION FOR MISTRIAL AFTER THE
         ALLEGED VICTIM’S OUTBURST?

         WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN
         THE VERDICT WHERE THERE WAS NO EVIDENCE OF
         FORCIBLE   COMPULSION,   THREAT    OF   FORCIBLE
         COMPULSION, OR THAT THE ALLEGED VICTIM WAS
         UNCONSCIOUS OR MENTALLY DEFICIENT AND INCAPABLE
         OF CONSENT.

         WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF
         THE EVIDENCE BASED ON THE CONFLICTING TESTIMONY
         OF THE ALLEGED VICTIM, AND THE LACK OF EVIDENCE OF
         FORCIBLE COMPULSION OR LACK OF CONSENT.

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
         RELYING ON AGGRAVATING CIRCUMSTANCES THAT ARE
         ENCOMPASSED IN THE ELEMENTS OF THE OFFENSES AND
         TAKEN INTO CONSIDERATION BY THE OFFENSE GRAVITY
         AND STATUTORY CLASSIFICATIONS OF THE CRIME.

(Appellant’s Brief at 7).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Stephen M.

                                     -3-
J-S10034-15


Higgins, we conclude Appellant’s issues one through three merit no relief.

The trial court’s opinion comprehensively discusses and properly disposes of

the questions presented.      (See Post-Sentence Motion Opinion at 7-15)

(finding: (1) court issued curative instruction to jury to disregard victim’s

outbursts and conduct concerning anger towards Appellant; court reiterated

curative instruction after closing arguments and told jury not to allow

emotion to prejudice determination of facts; presumption exists that jury

followed court’s instructions; outburst did not unfairly prejudice Appellant,

because jury already knew victim was angry with Appellant; likewise,

Appellant made no effort to explain how victim’s outburst unduly prejudiced

Appellant; Appellant’s failure to raise at trial or in post-sentence motion

challenge to victim’s characterization of Appellant’s behavior prevented court

from considering prejudice in this circumstance as basis for mistrial; (2)

victim’s initial statement that “Billy” raped victim does not indicate mistaken

identity because Commonwealth’s DNA expert testified that swabs of victim’s

penis revealed twenty-three-trillion-to-one chance that Appellant’s DNA was

present in form of saliva, victim identified Appellant as rapist, victim’s first

meeting of Appellant on day of incident could explain why victim used wrong

name to identify Appellant as “Billy” instead of “Bob”; Appellant’s claim that

another individual named “Billy” raped victim lacks any support; jury could

reasonably believe victim’s representations and determine Appellant was

properly identified as rapist; Appellant cites no authority to support claim


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J-S10034-15


that expert testimony was necessary, nor does he specify what required

expert testimony; Appellant did not raise objection at trial regarding lack of

expert testimony; evidence of victim’s “mental deficiency” was not present

in case, as Commonwealth did not proceed under theory that victim was

intellectually disabled; evidence of victim’s “emotional deficiency” was

relevant factor in considering whether victim suffered psychological forcible

compulsion;      expert   evidence   of    victim’s    “emotional   deficiency”   was

unnecessary because jury learned victim was adjudicated delinquent, victim

testified   to   emotional   instability    due   to   anger   issues,   and   victim

demonstrated emotional difficulties at trial by breaking down on stand,

refusing to testify, and yelling at Appellant; several factors supported jury’s

guilty verdict, including: Appellant was in his fifties and victim was only

sixteen years old, Appellant was larger than victim, Appellant deceived

victim by representing to his mother that Appellant mentored youth and was

trained in therapeutic methods, Appellant isolated victim by bringing him to

Appellant’s home at night in rural setting with which victim was unfamiliar,

Appellant purported to have authority by telling victim that Appellant knew

of therapy for dealing with anger, Appellant used his legs to pin victim’s

arms during one of massages, Appellant grabbed victim’s penis without

informing victim or asking for his consent, Appellant continued with charade

that massages were medical treatment even after Appellant asked victim if

he wanted more and victim replied “no,” victim looked for opportunity to


                                           -5-
J-S10034-15


escape and ran to neighbor’s home without shoes, victim began crying when

he reached neighbor’s home and indicated he had been raped, Appellant was

observed near neighbor’s home looking for victim with flashlight, Appellant

left in his car and was stopped by state police, Appellant’s DNA was found on

victim’s penis corroborating victim’s account of events, and victim’s mother

called Appellant three times to speak with victim, but each time Appellant

represented that victim was unavailable for various reasons; victim’s age,

lack of judgment, and emotional vulnerability made him prime target for

Appellant and allowed Appellant to manipulate victim; evidence at trial was

sufficient to find forcible compulsion; (3) verdict was not against weight of

evidence; evidence that forcible compulsion was largely non-physical, victim

did not fight Appellant, and victim voluntarily complied with Appellant’s

instructions were explained by surrounding circumstances, which allowed

jury to determine reasonably that victim was forcibly compelled; all evidence

in support of sufficiency indicates Appellant is not entitled to relief).   The

record supports the trial court’s decision to deny relief on these issues.

Therefore, we see no reason to disturb it. Accordingly, we affirm Appellant’s

issues one through three on the basis of the trial court’s opinion.

      In his final issue, Appellant argues the aggravating circumstances of

Appellant being in a position of trust, his seeking to take advantage of the

young victim to assault him sexually, and the victim’s suffering after the

sexual assault occurred, were improperly considered in the imposition of


                                     -6-
J-S10034-15


Appellant’s sentence. Appellant contends the court already considered these

circumstances in the elements of the offenses, the offense gravity score, and

the statutory classifications of the crimes. Specifically, Appellant maintains

his position of trust was considered in determining the sufficiency of the

evidence for forcible compulsion, the victim’s youth was encompassed in the

examination of the evidence for unlawful contact with a minor and corruption

of a minor, and the victim’s suffering was accounted for when the court took

the effect of the crime on the victim into consideration for the classification

of Appellant’s offenses and his offense gravity score.    Appellant concludes

this Court should vacate the judgment of sentence and remand for further

proceedings. Appellant challenges the discretionary aspects of his sentence.

Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super. 2003) (stating

claim that court considered improper factors at sentencing refers to

discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.     Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).      Prior to reaching the merits of a discretionary

sentencing issue:

         [W]e 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. 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

                                      -7-
J-S10034-15


           Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

      When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness     of   the   sentence    under      the   Sentencing   Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). The concise statement must indicate “where the sentence falls in

relation to the sentencing guidelines and what particular provision of the

code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super.

2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super.

2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)).                  “The

requirement that an appellant separately set forth the reasons relied upon

for allowance of appeal ‘furthers the purpose evident in the Sentencing Code

as a whole of limiting any challenges to the trial court’s evaluation of the

multitude of factors impinging on the sentencing decision to exceptional

cases.’”   Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super.

1989) (en banc).

           [O]nly where the appellant’s Rule 2119(f) statement
           sufficiently articulates the manner in which the sentence
           violates either a specific provision of the sentencing
           scheme set forth in the Sentencing Code or a particular
           fundamental norm underlying the sentencing process, will
           such a statement be deemed adequate to raise a

                                     -8-
J-S10034-15


         substantial question so as to permit a grant of allowance of
         appeal of the discretionary aspects of the sentence. See
         [Commonwealth v. Koehler, 558 Pa. 334, 370, 737 A.2d
         225, 244 (1999)] (party must articulate why sentence
         raises doubts that sentence was improper under the
         Sentencing Code).

Mouzon, supra at 435, 812 A.2d at 627.

     The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.”    Sierra, supra at 912-13.       An appellant raises a

substantial question where he alleges an excessive sentence due to the

court’s reliance on impermissible factors. Commonwealth v. McNabb, 819

A.2d 54 (Pa.Super. 2003).

     Instantly, Appellant preserved his discretionary aspects of sentencing

claim in his post-sentence motion and Rule 2119(f) statement. See Evans,

supra.   Moreover, Appellant’s claim raises a substantial question.      See

McNabb, supra. Nevertheless, the court determined:

         First, that [Appellant] was in a position of trust.
         [Appellant] was given supervision of the victim by the
         victim’s mother, allegedly to employ the victim and to
         engage in mentoring. The trial record supports this. Being
         in a position of trust is clearly not an element of the crime
         and we believed it to be an appropriate aggravating factor
         in considering [Appellant’s] sentence.

                                     -9-
J-S10034-15



        Second, that [Appellant] sought to take advantage of a
        youthful victim to sexually assault him.            This is
        approximately the wording employed in the Pre-Sentence
        Investigation and the way the aggravator was discussed at
        the sentencing hearing.     We did not understand this
        wording to mean that [Appellant] engaged in conduct[,]
        which constituted some form of sexual assault.           By
        definition, that is the offense itself and is necessarily
        considered in the sentencing guidelines. As such, we do
        not believe it could constitute a legitimate aggravator.
        Rather, we viewed this aggravator as having to do with
        [Appellant’s] planning to commit this crime and the
        predatory nature of what he planned to do, i.e. the
        targeting of a vulnerable youth. This is not an element of
        the crime and not all rapes necessarily include this type of
        behavior. This conduct certainly worsens [Appellant’s]
        offense and we properly considered it as an aggravator in
        sentencing.

        Third, and finally, we considered the victim’s suffering
        after being raped by [Appellant]. This particular victim
        was already a “troubled youth” prior to being raped by
        [Appellant] and his subsequent suffering from this
        encounter has done him more harm. Every victim suffers
        and is harmed, in a near permanent way, from such a
        violating and severe betrayal by a fellow human being.
        However, we viewed the inherent seriousness of rape
        alongside the particular suffering of this victim in
        considering how this should aggravate [Appellant’s]
        sentence.

        In sum, we properly considered these aggravators in
        determining [Appellant’s] sentence.

(Post-Sentence Motion Opinion at 16-17) (internal citations and footnotes

omitted). We accept the court’s conclusions. Thus, Appellant’s discretionary

aspects of sentencing claim merits no relief.   Accordingly, we affirm the

judgment of sentence.

     Judgment of sentence affirmed.

                                   - 10 -
J-S10034-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2015




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                 COURT OF COMMON PLEAS OF MONROE COUNTY
                       FORTY-TfilRD IBDICIAL DISTRICT
                     COMMONWEAL TH OF PENNSYLVANIA


COMMONWEALTH OF PENNSYLVANIA                                  NO. SOS CRIMINAL 2012

                      v.

ROBERT ENDRIKAT,
              Defendant.                                      POST-SENTENCE MOTION


                                              OPINION

               The two matters before us are the Post-Sentence Motion filed by Robert Endrikat

("Defendant") and the Motion for Reconsideration of sentence filed by the Commonwealth. In

the Post-Sentence Motion, the Defendant requests arrest of judgment or a new trial, and alleges

as grounds for relief: (1) insufficiency of evidence; (2) weight of the evidence; (3) failure to

colloquy the Defendant; ( 4) failure to direct a mistrial; and (5) error in allowing the

Commonwealth to amend the information. Alternatively, the Defendant also requests

reconsideration of his sentence, alleging that (6) the aggravators could not lawfully be considered

and (7) the sentence was unreasonable and excessive. On the other hand, the Commonwealth

 feels that the sentence of incarceration for six to twelve years was too lenient and asks that we re-

 sentence the Defendant to consecutive terms of incarceration in the aggravated range. The

 relevant procedural history is as follows:

                On May 21, 2012, the Commonwealth filed the Information charging the

 Defendant with Rape by Forcible Compulsion, Involuntary Deviate Sexual Intercourse, Unlawful

 Contact with a Minor, Sexual Assault, Corruption of Minors and Indecent Assault.
                                                                                Circulated 04/09/2015 02:17 PM



                  On January 15, 2013, the Defendant filed an Omnibus Motion challenging the

prima facie case. On March 21, 2013, we held a hearing on the Omnibus Motion. On June 6,

2013, we issued an opinion and order denying the Defendant's Omnibus Motion.

                  On August 20, 2013, after a trial by jury, the Defendant was convicted of all

charges with the exception of Rape by Forcible Compulsion. Trial counsel, an attorney with the

Public Defender's Office, then filed a petition for withdrawal after stating that relations with the

Defendant had broken down. On November 6, 2013, this Court allowed counsel to withdraw and

appointed Donald Leeth, Esq. to act as counsel for the Defendant.

                  On December 9, 2013, we granted the Defendant's Motion for Transcripts.

                  On March 14, 2014, we sentenced the Defendant to a term of six years to twelve

years on each of the charges ofl.D.S.I., Unlawful Contact and Corruption of Minors. All

sentences were to run concurrently. We also found that the charges of Sexual Assault, Indecent

Assault without Consent and Indecent Assault by Forcible Compulsion merged with I.D.S.I. for

sentencing purposes. Therefore, we imposed no additional sentence on those charges.

                  On March 24, 2014, the Defendant filed the Post-Sentence Motions. The

Commonwealth also filed its own Motion for Reconsideration of sentence.

                  On May 23, 2014, we held a hearing on the instant motions and the parties filed

briefs. At the hearing, the Defendant waived his claim that this Court failed to colloquy him on

his right to testify. 1 The Defendant had also indicated that his claim regarding the amendment of

the information depends on the sufficiency of evidence. Thus, we will not address the

amendment claim beyond examining the sufficiency of evidence.


1
 A trial court is not required to colloquy the defendant on his right to testify. Com, v. Todd, 820 A.2d 707, 712 (Pa.
Super. Ct. 2003); Com. v, Duffy, 832 A.2d 1132, 1141 th. 3 (Pa. Super. Ct. 2003). After filing Post-Sentence
Motions, defense counsel had discussed the colloquy issue with his client and explained to him that this claim would
more properly be raised as the ineffective assistance of counsel during collateral proceedings.
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               We will now address the merits of the remaining claims.

                                    1) Sufficiency of the Evidence

               Evidence is sufficient to support the verdict where it establishes each material

element of the crime charged and the commission thereof by the accused, beyond a reasonable

doubt. Com. v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Where the evidence offered to support

the verdict is in contradiction to the physical facts, in contravention to human experience and the

laws of nature, then the evidence is insufficient as a matter of law. Id. When reviewing a

sufficiency claim the court is required to view the evidence in the light most favorable to the

verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from

the evidence. Id.

               Generally, how to resolve inconsistencies in testimony or other evidence is a

question for the jury. See Com. v. Baker, 511 A.2d 777, 783 (Pa. 1986) (credibility

determinations are for the jury); Com. v. Sullivan, 371 A.2d 468, 478 (Pa. 1977) ("the facts and

circumstances need not be absolutely incompatible with defendant's innocence, but the question

of any doubt is for the jury ... "). The jury's verdict will not be overturned "unless the evidence

be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the

combined circumstances." Sullivan, 371 A.2d at 478.

               To decide the Defendant's challenge vis-a-vis forcible compulsion and lack of

consent, we only need discuss the sufficiency of evidence for Involuntary Deviate Sexual

Intercourse by Forcible Compulsion. Our disposition for this charge is dispositive of the other

charges at issues because the majority of the Defendant's convictions were lesser-included

offenses ofl.D.S.I. by Forcible Compulsion. The remaining convictions, i.e. Unlawful Contact




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and Corruption of a Minor, are not implicated in the Defendant's sufficiency challenge as those

charges do not include forcible compulsion or lack of consent as elements.

                    Here, the Defendant alleges that the record is "riddled with critical

inconsistencies" and these inconsistencies support his conclusion that there was insufficient

evidence. These alleged inconsistences are (1) testimony that the victim initially claimed an

individual named "Billy" raped him; (2) the victim's failure to indicate his lack of consent or to

physically resist the Defendant; and (3) the lack of evidence that the victim was mentally or

emotionally deficient.2 The Defendant also cites caselaw stating that there is insufficient

evidence where the jury would be forced to decide between two equally reasonable and mutually

inconsistent inferences.3

                    The critical showing at issue is "forcible compulsion." See 18 Pa.C.S.A. §

3123(a)(l) (I.D.S.l. by forcible compulsion). The Crimes Code defines forcible compulsion in

the following manner:

           "Forciblecompulsion." Compulsion by use of physical, intellectual, moral,
           emotional or psychological force, either express or implied. The term includes,
           but is not limited to, compulsion resulting in another person's death, whether the
           death occurred before, during or after sexual intercourse.

18 Pa.C.S.A. § 3101 (definitions).

                    Forcible compulsion requires something more than a lack of consent. Com. v.

Berkowitz, 641 A.2d 1161, 1164 (Pa. 1994). For example, forcible compulsion cannot be shown

where the only evidence is that the victim told the defendant "no" and offered no physical

resistance. Id.

                     To show forcible compulsion, the 'force' needs to be such as to demonstrate an

absence of consent inducing submission without further resistance. Com. v. Buffington, 828

2    Def.'s Brief, 5/23/14 at unnumbered pages 3-7.
 3
     Def.'s Brief, 5/23/14 at unnumbered pages 2-3.

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A.2d 1024, 1031 (Pa. 2003). As defined in the statute, the 'force' exerted may be intellectual,

moral, psychological or emotional. Com. v. Eckrote, 12 A.3d 383, 387 (Pa. Super. Ct. 2010)

( citation omitted).

                 Determining forcible compulsion is based on the totality of the circumstances of a

particular case. Com. v. Frank, 577 A.2d 609, 618 (Pa. Super. Ct. 1990). Significant factors

include "the respective ages of the victim and the accused, the respective mental and physical

conditions of the victim 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." Com. v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986). This is a non-exclusive

list. Id. Ultimately, the question of forcible compulsion aims at determining whether the victim

was compelled to do a thing against his will. See id. at 1227.

                 In Frank, the Superior Court considered whether there was psychological forcible

compulsion sufficient to convict the defendant of Rape. In that case, the defendant was a

counselor and the victim was a minor, age eleven or twelve. Com. v. Frank, 577 A.2d 609, 619

(Pa. Super. Ct. 1990). The alleged rape lacked any physical force. Id. The victim's adoptive

mother brought the victim to the defendant for psychological counseling. Id. During the course

of multiple counseling sessions, the defendant first asked the victim to sit on his lap, then to kiss

his cheek, eventually masturbating the victim and finally directing him to engage in fellatio. Id.

 The defendant threatened that he could interfere with the victim's adoption and cause bad things

 to happen to persons that the victim cared about ifhe told anyone about what had happened. Id.

 The Court also noted how the victim was isolated behind the closed doors of the counseling

 room and the defendant occupied a position of authority, both as a counselor and an adult. Id.



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The Superior Court considered the above facts in finding psychological forcible compulsion and

quoted the following language with approval: "[w]hile the force used to overcome the will of the

victim in this case was to a large extent subtle and psychological, it nonetheless satisfies the

element of forcible compulsion."        Id. (citation omitted).

                 In Eckrote, the Superior Court again considered psychological compulsion to

support a charge of Rape. The defendant grabbed the victim, apparently a minor," and took her

to an undisclosed location. Com. v. Eckrote, 12 A.3d 383, 387 (Pa. Super. Ct. 2010). There, he

told her that he wanted to have sex with her to which the victim adamantly told the defendant

"no." Id. The defendant then stated he wanted to kill himself and ordered her to remove her

pants. Id. The victim complied and the defendant climbed on top of her and raped her. Id.

Without elaboration, the Superior Court concluded that there was forcible psychological

compulsion, based on the totality of the circumstances. Id.

                 The Defendant correctly states that evidence is insufficient to convict where the

record merely supports two mutually inconsistent but equally reasonable inferences leading to

guilt and innocence. See Com. v. Montalvo, 986 A.2d 84, 99 (Pa. 2009) ("When two equally

reasonable and mutually inconsistent inferences can be drawn from the same set of

circumstances, a jury must not be permitted to guess which inference it will adopt..."). The

criminal standard of proof is enough to make it obvious that the presentation of inherently

 ambiguous evidence cannot support a criminal conviction. In practice such circumstances rarely

 arise, however, and the Defendant overzealously suggests that this legal theory applies to the

 situation at hand.




 4In Eckrote the victim's age was never disclosed. However, she was apparently old enough to drive a car as the
 defendant grabbed victim's car keys during the kidnapping. Eckrote, 12 A.3d at 385.

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                 The Defendant claims that another person, Billy, was implicated as the rapist at

trial. The trial testimony revealed that the victim initially referred to the Defendant as "Billy"

when speaking to the neighbors who he ran to for help and to the police. 5 However, this is by no

means a case of mistaken identity. As the Commonwealth's DNA expert testified, the DNA

recovered from the swabs of the victim's penis indicated a twenty-three trillion to one chance

that the Defendant's DNA was present, purportedly in the form of saliva.6 The victim himself

also clearly identified the Defendant as the rapist. 7 Moreover, the victim was only just

acquainted with the Defendant that day,8 which could explain why the victim used the wrong

name for him at the time, i.e. Billy instead of Bob. The suggestion in the Defendant's brief that

it was actually another person named "Billy" who raped the victim9 is without any support in the

record and is completely spurious. In short, the jury could reasonably have determined that the

Defendant was properly identified as the rapist by believing the victim's representations.

                 The Defendant cursorily argues that there was no expert evidence that the victim

was mentally or emotionally deficient. The Defendant cites no authority in support of his claim

that expert testimony was necessary and he does not even specify what evidence required expert

testimony.l'' Neither did the Defendant raise such an objection at the time of trial. Evidence of

'mental deficiency' was not presented in this case as the Commonwealth did not proceed under

the theory that the victim was intellectually disabled. Evidence of 'emotional deficiency,'

however, understood in its lay usage, was relevant as a factor in considering whether the victim

suffered psychological forcible compulsion. See Rhodes, 510 A.2d at 1226 (non-exclusive



5
  N.T., 8/19/13 at 36-42 (neighbor); 127 (police officer).
6
  N.T., 8/19/13 at201-02.
7
  N.T., 8/19/13 at 84-85.
8
  N.T., 8/19/13 at 85.
9
  Def.'s Brief, 5/23/14 at unnumbered page 7.
10
   The Defendant merely references the Commonwealth's opening statements in his brief.

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factors include respective mental condition of defendant and victim, duress, etc.). Such evidence

was presented at trial. First, the jury learned that the victim was adjudicated delinquent, which is

evidence of instability in a person's life if nothing else.11 The victim went on to testify to his

emotional instability due to 'anger issues,'ofwhich the Defendant was well aware.12 If that were

not enough, the victim demonstrated his difficulties to the jury by breaking down on the stand,

refusing to testify further and yelling threats and obscenities at the Defendant.13 One does not

need to be an expert to tell that the victim was emotionally unstable. Even so, this was only one

of a variety of factors that was used by the jury to find forcible compulsion.

                 The mainstay of the Defendant's claim seems to be that, under the facts at trial, it

was just as likely that the victim consented as that he was forcibly compelled. We cannot agree.

It is true that the victim did not offer physical resistance, apart from fleeing, nor did he

constantly reiterate that he disapproved of the Defendant's conduct, apart from telling the

Defendant that he objected after the initial, uninvited sexual advance. However, the trial

testimony included the following factors which could be viewed by the jury to support a verdict

of guilty:

     •   Respective age and physical strength. At the time, the Defendant was in his 50s while
                                                 14
         the victim was only 16 years old.            The Defendant was larger than the victim 15 and

         worked in construction, adding to his physical strength.

     •   Planning and deception.         The Defendant initially solicited the victim's presence by

         representing to his mother that he was trained in therapeutic methods, that he mentored

         other youth and that he would offer the victim work in his business and odd jobs to help

11
   N.T., 8/19/13 at 50 (probation and court fines), 102 ("Send me back to juvvie now").
12
   N.T., 8/19/13 at 61-62.
13
   N.T., 8/19/13 at 102.
14
   N.T., 8/19/13 at 59 (victim's age).
15
   N.T., 8/19/13 at 82.

                                                          8
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              pay off the victim's court costs.16 The victim's mother was given the impression that

              another boy, whom she knew because he was a neighbor and a friend of her son, would

                                                                         17
              also be present while her son was with the Defendant.           The neighbor boy was initially

              present that day, but the Defendant returned later to pick up the victim after the neighbor

              boy had left. 18

       •      Isolation. The Defendant isolated the victim by bringing him to the Defendant's house,

              at night and in a relatively rural setting with few neighbors. 19 The victim was not

             familiar with the area and had never been there before.i" The Defendant's trailer was

             small and cluttered, making it difficult for the victim to leave without the Defendant's

             interference. 21

       •     Purported authority. The Defendant told the victim that he knew a simple therapy for
                                    22
             dealing with anger.         The Defendant did not provide details, but represented that this

             involved caffeine, sugar, smoking and massage. The Defendant engaged in an repetitive

             ruse that therapy was being performed, directing the victim where to go, how to lay,

             when to take clothes off and put them back on, and questioning him on whether he was

             feeling the proper 'tingling' in his fingers. 23 The victim testified that he had previously

             been to a chiropractor and the massage itself was similar to what a chiropractor would

             do.24 The Defendant's authority over the victim was also endorsed by the victim's

             mother, who had consented to allow her son to do work for the Defendant.


16
   N.T.,     8/19/13   at 51-52.
17
   N.T.,     8/19/13   at 51, 54.
18
   N.T.,     8/19/13   at 63-64.
19N.T.,
             8/19/13   at41-42.
20
  N.T.,      8/19/13   at 83.
21
  N.T.,      8/19/13   at 67.
22N.T.,
             8/19/13   at 62.
23
     N.T.,   8/19/13   at 71-82.
24
     N.T.,   8/19/13   at 93.

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     •    Physical force and unsolicited sexual conduct. During one of these massages, the

          Defendant used his legs to pin the victim's arms.25 He then grabbed the victim's penis

          without informing the victim or asking for his consent. The Defendant then proceeded to

          put the victim's penis in his mouth. Afterwards, he asked if the victim wanted more to

          which the victim responded "no."26 The Defendant continued with the charade that this

          was a medical treatment. The victim testified that he did not ask to go home because he

          was smaller than the Defendant and he was scared of what the Defendant would do. 27

          The Defendant also inserted his penis into the victim's mouth.

     •    Corroborating circumstances and evidence of a guilty mind. The victim texted his

          girlfriend to call his mother because he had just been raped.28 The victim looked for an

          opportunity to escape and eventually ran barefoot to a neighbor's house in February

          weather, leaving his shoes behind because he would have had to have gone past the

          Defendant to retrieve them.29 The victim sat with his knees clutched to his chest,
                    30
          crying.        He told the lady who lived there that he had been raped by the Defendant; he

          started to explain the 'massage therapy' but was interrupted by the need to vomit.31 The

          Defendant was observed around the exterior of the neighbor's house, apparently looking

          for the victim with a flashlight.32 Although he knew that the victim's mother was coming

          to the house to retrieve him, the Defendant started to leave in his car.33 However, the

          Defendant was stopped by the state police. The Defendant told the state police that the


25
   N.T., 8/19/13   at 80-81.
26N.T.,
         8/19/13   at 81.
27
   N.T., 8/19/13   at 82.
28
   N.T., 8/19/13   at 117.
29
   N.T., 8/19/13   at 83.
30
   N.T., 8/19/13   at 37.
31
   N.T., 8/19/13   at 37-39.
32
   N.T., 8/19/13   at 39-40.
33
   N.T., 8/19/13   at 123-126 (defendant leaving scene and being stopped by police).

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           victim had just left his house; he neglected to mention any sexual contact between

           himself and the victim or to explain what precipitated the victim's flight. The

           Defendant's DNA was found on the victim's penis, corroborating the victim's version of

           events.34

     •     Furtherdeception and isolation. At 10:00p.m., the victim's mother had returned from

           work and found that her son was not at home. She called the Defendant three times and

           each time the Defendant represented that the victim was unavailable for various reasons,

           i.e. he was in the bathroom, he was smoking a cigarette, he was outside. Eventually, she

           grew suspicious and told the Defendant she was coming to pick her son up. 35 The

           Defendant asked if the victim could spend the night, to which she replied "no. "36 On the

           way to the Defendant's house, she got a call from the Pennsylvania State Police

           informing her that her son had been assaulted and was on the way to the hospital."

                   Considering all the above circumstances, the evidence supports a finding of

forcible compulsion. To summarize some relevant facts, the 16 year old victim told the

Defendant that he did not want sexual contact, and the Defendant continued despite this

statement. The Defendant planned this sexual encounter, deceiving the victim and his mother

into believing he would only offer mentoring and chores. After isolating the victim, the

Defendant initiated sexual contact, without seeking consent, and employed force in holding the

victim's arms down. The subsequent flight of the Defendant adds to the other support for his

guilty mind.




34
   N.T., 8/19/13 at 201-02.
35
   N.T., 8/19/13 at 52-53.
36          .
   N.T., 8/19/13 at 57.
37
   N.T., 8/19/13 at 53.
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                 It required significant naivete for the victim to believe that the Defendant's

proposed treatment was good faith therapy. However, this victim was a particularly vulnerable

sixteen year old. The victim's age, lack of judgment and emotional vulnerability are exactly

what the Commonwealth proposed made him a target for the Defendant and gave the Defendant

the tools to manipulate him.

                 In sum, the evidence at trial was sufficient to find forcible compulsion and we

decline to dismiss the jury's verdict. 38

                                            2) Weight of the Evidence

                 It is within the trial court's discretion to grant relief based upon the weight of the

evidence. Com. v. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007). The jury generally retains the

authority to believe all, part, or none of the evidence and to determine the credibility of the

witnesses. See id. In deciding a weight of the evidence claim, however, the trial court need not

view the evidence in the light most favorable to the verdict winner. Com. v. Vogel, 461 A.2d

604, 609 (Pa. 1983). Instead, the court may weigh the evidence and in so doing evaluate for

itself the credibility of the witnesses. Id. If the trial court concludes that, despite the abstract

sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily

against the verdict that a serious miscarriage of justice may have occurred, we may set aside the

verdict, grant a new trial, and submit the issues for determination by another jury. Id.

                  However, a new trial should not be granted because of a mere conflict in the

testimony or because the trial court on the same facts would have arrived at a different



38
  We note that we substantially discussed this issue in our omnibus opinion dated June 6, 2013 dealing with the
Defendant's challenge to the prima facie case. In our omnibus opinion, we did not consider how the Defendant
pinned the victim's arms prior to initiating sexual contact. Obviously, that fact adds support to our decision here.
On the other hand, we do not consider the victim's prior testimony that the Defendant would repeatedly look at a
drawer of knives in the kitchen and that the victim took this as an implied threat. While introduced into evidence for
the omnibus hearing, this testimony was not repeated by the victim at trial.

                                                          12
                                                                    Circulated 04/09/2015 02:17 PM



conclusion. Com. v. Widmer, 744 A.2d 745, 752 (Pa 2000). The court must do more than

reassess the credibility of the witnesses and allege that he would not have assented to the verdict

ifhe were a juror. Id. The court does not sit as the thirteenthjuror. Id. Rather, the role of the

court is to determine that "notwithstanding all the facts, certain facts are so clearly of greater

weight that to ignore them or to give them equal weight with all the facts is to deny justice." Id.

(citation omitted).

               Again, the Defendant alleges that "critical inconsistencies" undermine the verdict.

He enumerates the previously alleged confusion as to who was the rapist, i.e. "Billy," and goes

on to claim that the Defendant's 'therapeutic' method could not possibly compel the victim to

engage in sexual contact. Moreover, the Defendant suggests that the victim actually consented to

the conduct, rather than being compelled to it.

               We heard the testimony at trial and the evidence presented by both sides and we

do not agree that the verdict was against the weight of the evidence.. As in many cases of this

nature, the jury undoubtedly had a difficult job in deciding who to believe and how to interpret

the interaction between the Defendant and the victim. This was a difficult case for the jury to

decide, particularly because it dealt with the unusual subject of a forcible compulsion that was

largely non-physical. We are also well aware of the content of the Defendant's cross-

examination of the victim, which solicited that the victim did not fight the Defendant, that the

victim complied with the Defendant's directions 'voluntarily' and that the victim followed the

Defendant's directions without physical restraint. The cross-examination also questioned why

the victim would remain in this encounter ifhe objected to it. That being said, however, these

issues were answered by a plenitude of other evidence which explained the surrounding

circumstances of the situation and allowed the jury to reasonably determine that the victim was



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                                                                         Circulated 04/09/2015 02:17 PM



forcibly compelled. To a large extent, this dispute simply involved credibility determinations.

We have already discussed the trial evidence at length in our examination of sufficiency and will

not repeat that examination here.

                    In sum, considering all the evidence at trial as well as the arguments presented by

the Defendant, we do not believe this case cries out for equitable relief and we will deny his

claim.

                                                   3) Mistrial

                    A motion for a mistrial is within the discretion of the trial court. Com. v. Tejeda,

834 A.2d 619, 623 (Pa. Super. Ct. 2003) (citations omitted). A mistrial is required only when an

incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and

impartial trial. Id.; see also Com. v. Brown, 786 A.2d 961, 972 (Pa. 2001) ( defendant has the

right to have his case heard by a fair, impartial, and unbiased jury).       It is within the trial court's

discretion to determine whether a defendant was prejudiced by the incident that is the basis of a

motion for a mistrial. Tejeda, 834 A.2d at 623. After the jury views potentially prejudicial

misconduct, the trial court may implement any appropriate remedy, including offering a remedial

instruction, removing the responsible person or declaring a mistrial. See Com. v. Sanchez, 36

A.3d 24, 47-48 (Pa. 2011) (discussing same for spectator misconduct).

                    This trial involved the less-than-shocking revelation that the testifying

complainant was extremely angry at the Defendant. This came in the form of a short outburst

from the victim. In any criminal case involving an alleged victim, jurors could reasonably

assume that the victim is angry. Nevertheless, we issued a curative instruction at the time that

the jury was to disregard the victim's outbursts and conduct.39 See Com. v. Philistin, 774 A.2d

741, 743 (Pa. 2001) (prejudice that might result from a spectator outburst can be cured through a
39
     N.T., 8/19/13 at 105.
                                                      14
                                                                                 Circulated 04/09/2015 02:17 PM



remedial instruction to the jury). After closing arguments, we reiterated this instruction

regarding the victim's outbursts and also told the jury that they were not to allow emotion to

prejudice their determination of the facts. 40 The law presumes that the jury will follow this

Court's instructions and neither do we believe that the jury became unfairly prejudiced against

the Defendant simply because they knew the victim was angry at him.

                    The Defendant has made absolutely no effort to explain how he was prejudiced by

this event. See Com. v. Styles, 431 A.2d 978, 981 (Pa. 1981) (affirming denial of motion for

mistrial where defendant made no showing of prejudice). Moreover, the victim's angry outburst

might have as easily been used by the defense to undermine the victim's testimony or suggest

some other motive for accusing the Defendant. The jury's view of the victim's outburst was

only another opportunity to assess the genuineness of the victim's anger and, as a consequence,

his credibility.

                    In the Defendant's brief, for the first time, he also complains that the victim was

hesitant to answer questions and characterized the sexual encounter with the Defendant as

'disgusting.' The Defendant did not raise these grounds at the time of trial, or even in his post-

sentence motion. Instead, the Defendant's mistrial motion was based upon the threats and angry

gesturing of the victim.41 The Defendant's attempt to add additional arguments to his motion for

mistrial is essentially a different motion for mistrial. This new motion is untimely and prevents

us from dealing with any supposed prejudice through curative instructions. See Pa.R.Crim.P.

605(B) (motion shall be made when the prejudicial event is disclosed); see also Com. v. Boring,

684 A.2d 561, 568 (Pa. Super. Ct. 1996) (denying motion for mistrial as untimely because it

occurred after relevant testimony had concluded).


40
     N.T., 8/20/13 at 38-39.
41
     N.T., 8/19/13 at 102-03; ~ also Def. 's Post-Sentence Motion, 3/24/14 at ,r4.

                                                            15
                                                                                Circulated 04/09/2015 02:17 PM




                 Thus, we will deny the Defendant's motion.

                                        4) Colloquy on Right to Testify

                 As discussed above, this claim was waived by the Defendant and will be

dismissed.

                                        5) Amendment of Information

                 As discussed above, the Defendant indicated this claim depends on the sufficiency

of evidence. We have already disposed of the sufficiency claim and we will not separately

address the amendment of the information.

                                        6) Illegal AggravatingFactors

                 The Defendant claims that this Court improperly considered certain aggravating

factors in sentencing him because those factors are already represented in the elements of the

offense and the offense gravity score.42

                 The sentencing statute provides that "the court shall follow the general principle

that the 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. § 972l(b). The statute

also directs us to consider the sentencing guidelines in imposing sentence. Id. The guidelines

and the Sentencing Code are designed to rein in unfettered judicial discretion in sentencing.

Com. v. Mitchell, 883 A.2d 1096, 1107 (Pa. Super. Ct. 2005). The guidelines include

recommendations as to the appropriate sentence based, in part, on the presence of aggravating

and mitigating circumstances. 204 Pa.Code§ 303.13. But while the guidelines suggest the

consideration of aggravating and mitigating circumstances, those terms are not defined. See id.


42
  Def.'s Post-Sentence Motion, 3/24/14 at 111. The Defendant did not file a motion for the sentencing transcript
and said transcript is not present in the record at this time.
                                                         16
                                                                          Circulated 04/09/2015 02:17 PM



                 A sentencing court may not deviate from a standard range sentence based solely

upon criterion already incorporated into the sentencing guidelines. Com. v. Darden, 531 A.2d

1144, 1148-49 (Pa. Super. Ct. 1987).

                At sentencing, we found three aggravating factors.

                 First, that the Defendant was in a position of trust. The Defendant was given

supervision of the victim by the victim's mother, allegedly to employ the victim and to engage in

mentoring. The trial record supports this. Being in a position of trust is clearly not an element of

the crime and we believed it to be an appropriate aggravating factor in considering the

Defendant's sentence.

                 Second, that the Defendant sought to take advantage of a youthful victim to

sexually assault him. 43 This is approximately the wording employed in the Pre-Sentence

Investigation and the way the aggravator was discussed at the sentencing hearing. We did not

understand this wording to mean that the Defendant engaged in conduct which constituted some

form of sexual assault. By definition, that is the offense itself and is necessarily considered in

the sentencing guidelines. As such, we do not believe it could constitute a legitimate aggravator.

See Darden, 531 A.2d at 1148-49. Rather, we viewed this aggravator as having to do with the

Defendant's planning to commit this crime and the predatory nature of what he planned to do,

i.e. the targeting of a vulnerable youth.44 This is not an element of the crime and not all rapes

necessarily include this type of behavior. This conduct certainly worsens the Defendant's

offense and we properly considered it as an aggravator in sentencing.




43
   The Defendant was convicted of Involuntary Deviate Sexual Intercourse by Forcible Compulsion, Unlawful
Contact with a Minor, etc. Here, we use rape and sexual assault in a colloquial sense.
44
   We use the common meaning of predatory and do not mean to revisit the Sexual Offender Assessment Board's
opinion and recommendation.
                                                      17
                                                                    Circulated 04/09/2015 02:17 PM




               Third, and finally, we considered the victim's suffering after being raped by the

Defendant. This particular victim was already a 'troubled youth' prior to being raped by the

Defendant and his subsequent suffering from this encounter has done him more harm. Every

victim suffers and is harmed, in a near permanent way, from such a violating and severe betrayal

by a fellow human being. However, we viewed the inherent seriousness of rape alongside the

particular suffering of this victim in considering how this should aggravate the Defendant's

sentence.

               In sum, we properly considered these aggravators in determining the Defendant's.

sentence.

            7) Excessive Sentence and Commonwealth's Motion for Reconsideration

               Finally, both the Commonwealth and the Defendant ask us to modify our sentence

because it is either too lenient, or too harsh. We carefully considered the appropriate sentence in

this case, including the aggravating factors we have just discussed, and we believe that removing

the Defendant from society for six to twelve years is appropriate in balancing the protection of

the public, the gravity of the offenses and the rehabilitation of the Defendant. We see no reason

to revisit that sentence now. Considering all the evidence at the sentencing hearing and trial,

including the Defendant's prior record score, background and character witnesses, we remain

satisfied that the sentence was appropriate.

               Accordingly, we enter the following order:




                                                 18
                                                                   Circulated 04/09/2015 02:17 PM




                 COURT OF COMMON PLEAS OF MONROE COUNTY
                       FORTY-THIRD JUDICIAL DISTRICT
                      COMMONWEALTH   OF PENNSYLVANIA


COMMONWEAL         TH OF PENNSYLVANIA                        NO. 505 CRIMINAL 2012

                      v.
ROBERT ENDRIKAT,
              Defendant                                      POST-SENTENCE MOTIONS

                                              ORDER
                                      't\;t
              AND NOW, this.!:!--- day of June, 2014, after hearing and consideration of the

Defendant's Post-Sentence Motions and the Commonwealth's Motion for Reconsideration, said

Motions are DENIED.        Pursuant to Pa.R.Crim.P. 720(8)(4), this order also serves to notify the

Defendant of the following:

       (a) the Defendant has thirty (30) days from the date of this order to file a notice of appeal

       to the Superior Court.

       (b) the Defendant has the right to assistance of counsel in the preparation of the appeal;

       (c) the Defendant has the rights, if indigent, to appeal in forma pauperis and to proceed

       with assigned counsel as provided in Pa.R.Crim.P. 122; and

       (d) the Defendant has the qualified right to bail under Pa.R.Crim.P. 521(8).

                                       BY THE COURT:



                                       STEPHEN M. HIGGINS, JUDG ·
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                                                                   1.       rr·                  ;,,::

cc:    Michael Rakaczewski, Esq., assistant district attorney
                                                                                     ""'t)      0
       Donald Leeth, Esq., defense counsel                                           ::::3      0
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       Clerk of Courts                                                               w          ;:.;
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