J-A20029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYRONE CHARLES BRANTLEY                    :
                                               :
                       Appellant               :   No. 730 WDA 2017

             Appeal from the Judgment of Sentence April 18, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0013724-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED SEPTEMBER 14, 2018

       Tyrone Charles Brantley appeals from the judgment of sentence,

entered in the Court of Common Pleas of Allegheny County, following his

conviction for sexual assault, 18 Pa.C.S.A. § 3124.1, and related offenses.1

After careful review, we affirm.

       On October 11, 2015, Brantley and the victim were together at their

shared residence. That evening, the victim performed oral sex on Brantley.

Brantley, displeased with the manner in which she performed oral sex on him,

demanded she repeat the act again. Brantley remained displeased with the

victim following her second performance of oral sex on him. In retaliation, he

took a bottle of urine, which he had collected previously, and poured it on the

____________________________________________


1 Terroristic threats, 18 Pa.C.S.A. § 2706; unlawful restraint serious bodily
injury, 18 Pa.C.S.A. § 2902; simple assault, 18 Pa.C.S.A. § 2701; and
recklessly endangering another person (“REAP”) 18 Pa.C.S.A. § 2705.
J-A20029-18



victim’s person. The victim, who did not consent to this act, showered and

went to bed.

      The next morning, Brantley and the victim conversed about the previous

evening, during which he restated that he was displeased with her

performance of oral sex. Brantley then verbally intimidated the victim into

removing all of her clothing and commanded her to punch herself in the face.

Brantley was holding a leather belt and threatened to hit her if she did not

comply. Brantley used his cell phone to record the victim hitting herself in the

face, mouth and nose. After the victim struck herself multiple times, Brantley

commanded her to perform oral sex on him. Eventually, Brantley engaged in

vaginal intercourse with the victim.

      Following the vaginal intercourse, Brantley relented and allowed the

victim to put her on clothes.          The victim, unbeknownst to Brantley,

photographed her injuries with her cellphone and sent them to her mother,

her best friend, and Brantley’s mother, along with a text message that read,

“This is what I had to do to myself.”      The same day, the victim’s brother

informed police that Brantley had harmed the victim, and the police arrested

him that evening.

      Following Brantley’s arrest, Police Officer Jeremy Zuber interviewed the

victim. The victim informed Officer Zuber of Brantley’s sexual assault, which

occurred both the previous evening and that morning. The same day, the

victim consented to being photographed by a sex assault nurse and was

administered a rape kit.

                                       -2-
J-A20029-18



      On July 18, 2016, Brantley’s nonjury trial commenced. At trial, Officer

Zuber testified as follows:

      OFFICER ZUBER: [The victim] stated that the previous night . . .
      [Brantley] had wanted sexual favors.        [The victim] started
      performing them. [Brantley] had told her that she was doing it
      bad and wrong. So [the victim] stopped. [Brantley] had become
      upset, and he poured a pop bottle that was full of urine on top of
      her. [The victim] said they both went to bed. [The victim] woke
      up early the next day . . . and she said she had to get ready for
      work.

                                      ...

      During the course of [the victim] trying to get ready[,] [Brantley]
      had taken her cell phone. [Brantley] told her to get undressed,
      that he wanted to continue again with sexual acts. [The victim]
      said that she obeyed [] because she was afraid of him. During
      the course of that [Brantley and the victim] stopped again, and he
      had made her beat herself, punch herself in the face, while he
      stood there and watched with a brown leather belt and said she
      was doing it wrong, assaulting herself, and if she didn’t hit herself
      harder he would do it for her.

N.T. Trial, 6/18/16, at 41-42.

      On July 20, 2016, following a three-day nonjury trial, the trial court

found Brantley not guilty of rape and guilty of the remaining charges. The

trial court sentenced Brantley to an aggregate term of three to six years’

imprisonment followed by three years’ probation. On December 29, 2016,

Brantley filed a timely post-sentence motion, which the trial court denied on

April 18, 2017. On May 5, 2017, Brantley filed a timely notice of appeal. Both

Brantley and the trial court have complied with Pa.R.A.P. 1925. On appeal,

Brantley raises the following issues for our review:




                                      -3-
J-A20029-18


      1. Did the [t]rial [c]ourt err when it found that the Commonwealth
         presented sufficient evidence to establish beyond a reasonable
         doubt that [] Brantley committed the crime of [s]exual
         [a]ssault where the Commonwealth’s evidence was so
         contradictory to render any guilty verdict pure conjecture.

      2. Whether the [t]rial [c]ourt abused its discretion in not granting
         [] Brantley a new trial when the verdict of guilty for [s]exual
         [a]ssault was against the weight of the evidence when the
         Commonwealth relied on the complainant’s testimony at a
         preliminary hearing despite her trial testimony and numerous
         other statements to responding emergency personnel to the
         contrary?

      3. Did the [t]rial [c]ourt abuse its discretion by admitting hearsay
         testimony through Officer Jeremy Zuber of prior inconsistent
         statements made by [a Commonwealth Witness], who had not
         yet testified?

Brief of Appellant, at 6.

      Brantley first challenges the sufficiency of the evidence as it relates to

his conviction for sexual assault. Specifically, Brantley argues that the victim

consented to the sexual acts.

      “Because evidentiary sufficiency is a question of law, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Ballard, 80 A.3d 380, 390 (Pa. 2013) (citation omitted).         Specifically, we

must determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crime charged is

established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable doubt by means



                                      -4-
J-A20029-18



of wholly circumstantial evidence.” Commonwealth v. Brown, 23 A.3d 544,

559 (Pa. Super. 2011) (en banc) (quoting Commonwealth v. Hutchinson,

947 A.2d 800, 805–06 (Pa. Super. 2008)).

      Furthermore, “[a]s an appellate court, we do not assess credibility nor

do we assign weight to any of the testimony of record.” Commonwealth v.

Kinney, 863 A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore,

we will not disturb the verdict “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.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super.

2007) (quoting Commonwealth v. Frisbie, 889 A.2d 1271, 1274–75 (Pa.

Super. 2005)).

      Section 3124.1 of the Crimes Code defines sexual assault as follows:

      § 3124.1. Sexual assault

      Except as provided in section 3121 (relating to rape) or 3123
      (relating to involuntary deviate sexual intercourse), a person
      commits a felony of the second degree when that person engages
      in sexual intercourse or deviate sexual intercourse with a
      complainant without the complainant’s consent.

18 Pa.C.S.A. § 3124.1.

      “[T]he uncorroborated testimony of a sexual assault victim, if believed

by the trier of fact, is sufficient to convict a defendant, despite contrary

evidence from defense witnesses.” Commonwealth v. Charlton, 902 A.2d

554, 562 (Pa. Super. 2006) (quoting Commonwealth v. Davis, 650 A.2d

452, 455 (Pa. Super. 1994)).



                                     -5-
J-A20029-18



      Here, the Commonwealth established that the victim only acquiesced to

Brantley’s demand for oral and vaginal sex because she feared further physical

abuse and humiliation if she refused to do so. Brantley threatened to beat

the victim with a belt and intimidated her into physically abusing herself; the

victim reasonably believed failing to comply with Brantley’s request for oral

and vaginal sex would result in further harm. Therefore, we find Brantley’s

sufficiency issue merits no relief. See Trial Court Opinion, 2/20/18, at 13-14.

      Brantley next avers that the guilty verdict for sexual assault was against

the weight of the evidence because: (1) the victim’s testimony was incredible;

(2) prior to trial, the victim sent letters to the District Attorney’s Office

claiming she was not sexually assaulted; and (3) his conviction shocks one’s

sense of justice.

      An appellate court reviews the denial of a motion for a new trial based

on a claim the verdict is against the weight of the evidence for an abuse of

discretion.   Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

“Because the trial judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing a trial court’s

determination that the verdict is against the weight of the evidence.” Id. at

1055 (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).

      A trial court should not grant a new trial “because of a mere conflict in

the testimony or because the judge on the same facts would have arrived at

a different conclusion.” Id. Rather, to grant a new trial, the trial court must

                                     -6-
J-A20029-18



“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. (quoting Widmer, 744 A.2d at 752). Stated

differently, a trial court should not award a new trial unless “the jury’s verdict

is so contrary to the evidence as to shock one’s sense of justice and the award

of a new trial is imperative so that right may be given another opportunity to

prevail.” Id. (quoting Widmer, 744 A.2d at 752).

      The trial court aptly stated as follows:

      [Brantley’s] claim that the verdict was against the weight of the
      evidence concedes there was sufficient evidence to support the
      trial court’s verdict. . . . Here, the victim’s written, signed and
      adopted statement to Officer Thomas, as well as her testimony
      under oath at the preliminary hearing, was credible and
      convincing as to [her] non-consent to the sexual acts. This
      [weight] claim is meritless. The verdict does not shock one’s
      sense of justice.

Trial Court Opinion, 2/20/18, at 16. Upon review of the record, we do not find

that the trial court abused its discretion in finding that Brantley’s weight claim

is meritless. Clay, supra.

      Last, Brantley claims the trial court abused its discretion in allowing the

Commonwealth      to   present   evidence   of   the   victim’s   prior   consistent

statements.

      Admission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial court
      clearly abused its discretion. Admissibility depends on relevance
      and probative value. Evidence is relevant if it logically tends to
      establish a material fact in the case, tends to make a fact at issue
      more or less probable or supports a reasonable inference or
      presumption regarding a material fact.

                                      -7-
J-A20029-18



     Judicial discretion requires action in conformity with law, upon
     facts and circumstances judicially before the court, after hearing
     and due consideration. An abuse of discretion is not merely an
     error of judgment, but if in reaching a conclusion the law is
     overridden or misapplied or the judgment exercised is manifestly
     unreasonable, or the result of partiality, prejudice, bias, or ill will,
     as shown by the evidence or the record, discretion is abused.

Commonwealth v. Schoff, 911 A.2d 147, 154 (Pa. Super. 2006) (quoting

Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super. 2006) (en

banc)). Furthermore,

     the trial court in a non-jury trial has the authority to control the
     order and presentation of evidence. [Pa.R.E.] 611 provides that
     [] “the court should exercise reasonable control over the mode
     and order of examining witnesses and presenting evidence” for
     three purposes:

           (1) make those procedures effective for determining
            the truth;

           (2) avoid wasting time; and

           (3) protect witnesses from harassment or undue
           embarrassment.

     Pa.R.E. 611(a).

     In addition, Pennsylvania’s evidentiary rules specify that trial
     courts make preliminary and, in due course, final decisions about
     the admissibility of evidence. Pa.R.E. 104(a) (“The court must
     decide any preliminary question about whether . . . evidence is
     admissible. In so deciding, the court is not bound by evidence
     rules, except those on privilege.”). See also Commonwealth v.
     Alicia, [] 92 A.3d 753, 760 (Pa. 2014) (“The admissibility of
     evidence is within the sound discretion of the trial court[.]”). By
     providing that the trial court is not bound by evidentiary rules in
     determining the admissibility of evidence, except those regarding
     privilege, Rule 104(a) recognizes that the judge “should be
     empowered to hear any relevant evidence to resolve questions of
     admissibility.” Pa.R.E. 104 cmt.

                                      -8-
J-A20029-18



Commonwealth v. Safka, 141 A.3d 1239, 1249 (Pa. Super. 2016).

      Judge Ignelzi presided over a bench trial, and, thus, acted as both the

fact-finder and gatekeeper, ruling on the admissibility of evidence. “It is of

the essence of the judicial function to hear or view proffered evidence,

whether testimonial or in exhibit form, and to decide whether or not it should

be admitted into evidence, or if admitted initially or provisionally, should later

be excluded or disregarded.” Commonwealth v. Dent, 837 A.2d 571, 582

(Pa. Super. 2003) (citation omitted). In other words, in a nonjury trial, the

fact-finder “is presumed to know the law, ignore prejudicial statements, and

disregard inadmissible evidence.” Commonwealth v. McFadden, 156 A.3d

299, 309 (Pa. Super. 2017) (citation omitted); see also Commonwealth v.

Lambert, 765 A.2d 306, 362 (Pa. Super. 2000) (“[W]here a criminal case

proceeds before a judge sitting without a jury, there is a presumption that his

knowledge, experience and training will enable him to disregard inadmissible

evidence and other improper elements.”).

      At trial, the Commonwealth sought to introduce testimony from Officer

Zuber regarding the victim’s statement about Brantley’s abuse. In ruling that

Officer Zuber’s testimony was admissible, the trial court determined that his

statement was admissible under Rule 613(c), which states as follows:

      (c)     Witness’s       Prior     Consistent       Statement         to
      Rehabilitate. Evidence of a witness’s prior consistent statement
      is admissible to rehabilitate the witness's credibility if the opposing
      party is given an opportunity to cross-examine the witness about
      the statement and the statement is offered to rebut an express or
      implied charge of:


                                       -9-
J-A20029-18



     (1) fabrication, bias, improper influence or motive, or faulty
     memory and the statement was made before that which has been
     charged existed or arose; or

     (2) having made a prior inconsistent statement, which the witness
     has denied or explained, and the consistent statement supports
     the witness’s denial or explanation.

Pa.R.E. 613(c) (emphasis added).

     Furthermore, “[i]n cases involving sexual assault, Rule 613 authorizes

the Commonwealth to present evidence in its case-in-chief of a prompt

complaint by the victim ‘because [the] alleged victim’s testimony is

automatically vulnerable to attack by the defendant as recent fabrication in

the absence of evidence of hue and cry on her part.’” Commonwealth v.

Bryson, 860 A2d 1101, 1104 (Pa. Super. 2004). “Evidence of a complaint of

sexual assault [(e.g., victim statement to police)] is ‘competent evidence,

properly admitted when limited to establish that a complaint was made and

also to identify the occurrence complained of with the offense charged.’” Id.

Additionally, it is axiomatic that in a rape case, the credibility of the

complaining witness is always at issue.     Id., citing Commonwealth v.

Freeman, 441 A.2d 1327, 1331 (Pa. Super. 1982).

     The Commonwealth sought to introduce Officer Zuber’s testimonial

account of the victim’s post-assault statement because it became apparent

that she would recant her previous statement that Brantley had sexually




                                   - 10 -
J-A20029-18



assaulted her.2     However, the Commonwealth, anticipating that the victim

would recant her previous incriminating testimony and/or testify falsely,

proffered Officer Zuber’s testimony prior to the victim’s testimony. Initially,

we note, it was inappropriate for the trial court to allow the Commonwealth to

examine preemptively Officer Zuber regarding the victim’s prior statement

about Brantley’s sexual abuse.

       Nevertheless, we find the instant circumstances comparable to those in

Bryson. There, defendant raped the victim, A.M.; the next day, A.M. confided

to a friend, A.W., that defendant had raped her. At trial, the Commonwealth

proffered the testimony of A.W. before A.M. testified, but the trial court

allowed A.W.’s testimony under the “prompt complaint” exception pursuant to

Rule 613(C).       This Court, in deciding Bryson, acknowledged that A.W.

testified “out of order, meaning, before A.M. testified,” Bryson, 860 A2d at

1104, and thus, it was not technically a prior consistent statement used for

rehabilitation. However, because the credibility of the victim is always at issue

in a rape case, Bryson, supra, this Court determined that A.W.’s out-of-order
____________________________________________


2 On November 11, 2016, the victim wrote a letter to the Allegheny County
District Attorney’s Office Domestic Violence Unit recanting her statement to
Officer Zuber that Brantley had sexually assaulted and raped her and
requesting that the District Attorney drop all charges against Brantley. See
Victim Letter 1 (Exhibit C), 11/6/15. The same day, the victim sent the same
letter to the Allegheny County Public Defender’s Office. See Victim Letter 2
(Exhibit D), 11/6/15. The record also indicates that on November 2, 2015,
prior to sending these two letters, the victim also sent a letter to the
Magisterial District Court Judge requesting the Magistrate Judge drop the
charges of terroristic threats, rape and sexual assault. In light of the victim’s
recantation of her previous testimony, the Commonwealth anticipated that the
victim would testify inconsistently at trial.

                                          - 11 -
J-A20029-18



testimony regarding A.M.’s “prompt complaint” was harmless, and, thus, the

trial court did not abuse its discretion in permitting the testimony.

      As previously mentioned, Officer Zuber testified that the victim made a

prompt complaint of Brantley’s sexual assault to police. The manner in which

the Commonwealth presented Officer Zuber’s testimony was, like in Bryson,

out-of-order.   The trial court, in its Rule 1925(a) opinion, aptly addressed

Officer Zuber’s testimony, stating that

      [t]he victim told Officer Zuber she obeyed [Brantley’s] request
      because she was afraid of him.             While this was occurring,
      [Brantley] made the victim punch herself in the face while
      threatening her with a leather belt. Since this was a [n]on-[j]ury
      trial, the [trial court] had no hesitation in allowing Officer Zuber
      to testify to the victim’s statement although the victim had not
      testified at that point in the trial. In light of the victim’s eventual
      trial testimony, unequivocally the testimony of Officer Zuber
      constitutes a prior consistent statement to rehabilitate pursuant
      to Pa.R.[E.] 613(c). Officer Zuber’s testimony was consistent with
      the victim’s original written statement[.] . . . A fair reading of that
      statement allows the inference to be drawn the threatening
      conduct by [Brantley] occurred at or near the sexual acts in
      question.

Trial Court Opinion, 2/20/18, at 16-19. Similar to Bryson, we do not find that

the trial court’s decision to allow Officer Zuber to testify prejudiced Brantley’s

defense, and therefore the trial court’s error was harmless. The trial court

afforded Brantley an opportunity to cross-examine the victim, and the trial

court assured him that it would strike Officer Zuber’s testimony from the

record if the victim did not testify. See Pa.R.E. 613(c); see N.T. Trial, 6/18-

20/18, at 40 (“[The Commonwealth] is permitted to introduce the [prior

consistent] statement if you cross-examine the victim[.] . . . If she doesn’t


                                      - 12 -
J-A20029-18



take the stand the [c]ourt will strike the statements[.]”). Furthermore, we

presume that the trial court, acting as the gatekeeper of evidence,

dispassionately applied the law when determining whether Officer Zuber’s

statements were admissible, ignored any prejudicial statements, and

disregarded any inadmissible evidence.           McFadden, supra.   Therefore,

Brantley’s final claim on appeal is meritless.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2018




                                     - 13 -
