J-S59008-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                         Appellee         :
                                          :
            v.                            :
                                          :
DWAYNE HILL,                              :
                                          :
                         Appellant        :     No. 2354 EDA 2013


       Appeal from the Judgment of Sentence Entered July 12, 2013,
          In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0014013-2008.


BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 02, 2014

      Appellant, Dwayne Hill, appeals from the judgment of sentence

entered on July 12, 2013, in the Philadelphia County Court of Common

Pleas. We affirm.

      The relevant facts and procedural history of this matter were set forth

by the trial court as follows:

            [Appellant] was arrested on August 24, 2008, and charged
      with numerous offenses arising from the alleged rape of a 16
      year old female [(“the victim”)]. His pretrial motion to suppress
      the statement he gave to the police at the time of his arrest was
      denied on December 22, 2009. At a jury trial concluded on May
      25, 2012, he was convicted of Rape by Forcible Compulsion and
      found not guilty of Involuntary Deviate Sexual Intercourse by
      Forcible Compulsion, all of the other related charges having been
      nolle prossed prior to trial. His post verdict motion for relief was
      denied on April 19, 2013, he was sentenced to eight (8) to
 ______________________________
*Retired Senior Judge assigned to the Superior Court.
J-S59008-14



      sixteen (16) years incarceration on July 12th, and this timely
      appeal was filed on August 9th. In short, the evidence showed
      that shortly after midnight on June 11, 2008, he assaulted the
      victim on a public sidewalk, dragged her into an alley and
      forcibly raped her while threatening to use a knife. The state’s
      case mainly consisted of the complainant’s testimony that
      [Appellant] abducted her and forced her to engage in oral and
      vaginal sex and her identification of him in court, [Appellant’s]
      statement to the police, in which he at first denied but, after
      being advised that his DNA had been found in the victim’s
      vagina, then admitted to having had vaginal, but not oral, sex
      with her at the time and location [the victim] had said that the
      incident had occurred . . . .

Trial Court Opinion, 3/13/14, at 1-2 (footnotes omitted).

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      1. Was not the evidence admitted at trial, including the
      identification of [A]ppellant by the [victim], [A]ppellant’s
      statement, and the DNA evidence insufficient to prove that
      [A]ppellant was the perpetrator of the crime?

      2. Did not the lower court err in denying [A]ppellant’s motion to
      suppress his statement given to police inasmuch as the
      Commonwealth failed to meet its burden that [A]ppellant, who
      told police he was illiterate prior to the interrogation, made a
      knowing, voluntary and intelligent waiver of his Miranda rights?

Appellant’s Brief at 4.   We will address these issues in the order in which

they were presented.

      In his first issue on appeal, Appellant challenges the sufficiency of the

evidence. In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as


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verdict winner, was sufficient to prove every element of the offense beyond

a reasonable doubt. Commonwealth v. James, 46 A.3d 776 (Pa. Super.

2012). It is within the province of the fact-finder to determine the weight to

be accorded to each witness’s testimony and to believe all, part, or none of

the evidence.       Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007);

Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011).                            The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.    Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011).

Moreover, as an appellate court, we may not re-weigh the evidence and

substitute our judgment for that of the fact-finder.         Commonwealth v.

Ratsamy, 934 A.2d 1233 (Pa. 2007). Any doubts regarding a defendant’s

guilt may be resolved by the fact-finder unless the evidence is so

inconclusive that as a matter of law no probability of fact may be drawn

from the circumstances. Moreno, 14 A.3d at 133.

      As    noted    above,   Appellant   was   convicted   of   rape    by   forcible

compulsion.     This crime is straightforwardly defined as follows: “A person

commits a felony of the first degree when the person engages in sexual

intercourse with a complainant … [b]y forcible compulsion.”             18 Pa.C.S. §

3121(a)(1).




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      Upon    review   of   the   issue   as    presented,   we   agree   with   the

Commonwealth that Appellant is not challenging the sufficiency of the

evidence, but rather the weight of the evidence. Commonwealth’s Brief at

12. Appellant argues that his statement to police, the victim’s identification,

and the DNA evidence were “insufficient.” Appellant’s Brief at 17. However,

Appellant is actually challenging credibility, and thus, the weight of the

evidence in those issues.1

      An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court. Commonwealth v. Manley,

985 A.2d 256, 262 (Pa. Super. 2009) (citation omitted). Appellate review of

a challenge to the weight of the evidence is a review of the trial court’s

discretion, not of the underlying question of whether the verdict is against

the weight of the evidence. Id. (citation omitted). To grant a new trial on

the basis that the verdict is against the weight of the evidence, the evidence

must be so tenuous, vague, and uncertain that the verdict shocks the

conscience of the court. Id. (citations and quotation marks omitted).

      In order to preserve a challenge to the weight of the evidence, the

defendant must present the claim either in an oral or written motion prior to

sentencing or in a timely-filed post-sentence motion. Commonwealth v.



1
  The admissibility of Appellant’s statement to the police will be addressed
in our discussion of Appellant’s second issue.



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Lopez, 57 A.3d 74, 80 (Pa. Super. 2012) (citing Pa.R.Crim.P. 607). Here,

Appellant raised a challenge to the weight of the evidence in a pre-sentence

motion for extraordinary relief that was denied following a hearing on April

19, 2013. Accordingly, Appellant’s challenge to the weight of the evidence

was preserved.

      In its opinion, the trial court responded to Appellant’s claim of error as

follows:

            In his post verdict motion seeking an arrest of judgment or
      a new trial7, counsel made no mention of the defendant’s
      statement to the police or the victim’s identification, but simply
      claimed, with regard to all the evidence in general, “. . . that the
      verdict of the jury was so grossly inconsistent that a new trial is
      mandated in the interests of justice” without specifying what
      particular items of evidence were inconsistent, and, with regard
      to the DNA,

            “. . . that the scientific evidence introduced at trial
            not only created a reasonable doubt but proved
            conclusively that petitioner could not have
            committed the rape because, while [t]he DNA
            evidence presented by the prosecution disclosed that
            a mixture containing DNA of the complainant and her
            assailant was preserved in the normal course during
            her examination immediately after she was
            assaulted[, it] further established that there was a
            DNA marker, or allele, that was foreign to the DNA
            provided by petitioner and the complainant thereby
            excluding petitioner as the person who committed
            the crime and [a]t trial the prosecutor elicited
            reasons for the existence of the aforementioned
            allele from her forensic examiner which amounted to
            conjecture and speculation and which had absolutely
            no factual basis.”




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     At the hearing on the motion, counsel’s argument as to the
     inconsistent verdict was simply:

                Judge, the main thrust of the motion, besides
          the verdicts being so grossly inconsistent as to
          render -- and to render them unreliable. I mean,
          there is just no way in this case that the jury could
          find the defendant guilty of one charge and not the
          other charge.

                 Obviously, they didn’t even appreciate or
          consider the evidence because it was an ID case, ID
          in a scientific case.

                The incident occurred. What happened to [the
          victim] happened to [the victim]. There’s no question
          about it. It was conceded. It was never argued. Yet,
          the jury chose to completely disregard the predicate
          act to the rape in this case and find him not guilty of
          that charge.

                In that sense, I don’t think that it’s just
          something minor. I don’t think it’s something that
          would give confidence to the jury verdict. In fact, I
          don’t think it’s something that’s inconsequential. I
          think it’s significant. I think it shocks the conscience
          that the jury could hear an identification case and
          make the decision that they did.

     Notes of Testimony, Motion Volume 1, April 19, 2013, p. 5. His
     argument on the DNA evidence, though very verbosely
     presented, simply boiled down to, as indicted by the motion, that
     it was faulty because the examiner found a single unmatched
     marker in the sample in which he found the defendant’s and the
     complainant’s markers. Id., pp. 5-20.
          7
            Motion for Extraordinary Relief, pars. 6, 2-5,
          presented to and heard and denied by the court on
          April 19, 2013.

          As pointed out by the Commonwealth in its response to the
     motion and by the court in its ruling, the apparent inconsistency


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     in the two verdicts could simply have resulted from the jury
     having found that all of the elements of the crime for which he
     was convicted were proven to have occurred but that one or
     more of the elements of the other were not, and that all of these
     arguments were all thoroughly presented to the jury, which
     obviously discounted them.8 The defendant’s arguments simply
     represent an attempt to have the court view those minute pieces
     of evidence in a light more favorable to the defendant than to
     the verdict winner and completely disregard all the other
     evidence, in particular the defendant’s undisputed admission that
     he did have vaginal intercourse with the victim at the time and
     place that she said he raped her.

                THE COURT: It’s not necessarily inconsistent
          because you have two sexual acts defined differently
          under the Crimes Code and the jury comes back with
          a guilty of one and a not guilty of another. During
          the testimony there could have been some question
          of whether the necessary element of penetration
          relevant to the IDSI was actually achieved.

                If the jury found that there was no penetration
          however slight, then they can conceivably find him
          not guilty of the IDSI and guilty of the rape where
          they did find penetration was complete as a
          necessary element. And it’s not necessarily an
          inconsistent verdict.

                Although it’s not dispositive and you cannot
          ignore the DNA evidence in this case, I posit that you
          could legitimately argue in this case, although it’s
          capable of different interpretations, that you have no
          contest as to the fact that there was a sexual act
          performed on a complaining witness.

                You can argue, as the Commonwealth did, that
          in his statement the defendant agreed that he had
          sex, although in his statement consensually for
          money, $10 I believe, had sex. So the question of
          whether there was sexual intercourse becomes
          moot.




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                 The only question that remains is whether it
          was consensual or not. And the complainant testified
          it was not. The defendant, who need not be
          identified since according to the argument made
          based upon the statement that he had sex with the
          lady, there’s no identity question.

                 If you take the DNA evidence totally out of the
          case, what do you have? A sexual act that is
          admitted by both sides. The only argument is
          whether it was consensual or not. And the jury
          rejected any argument that could be founded in
          nonconsensual activity. However, DNA did, as
          counsel quite correctly points out, form an important
          part in this case.

                On a motion for extraordinary relief, however,
          the jury heard all these arguments and rejected
          them. Counsel may not like it and find it illogical or
          unreasonable that they rejected them, but they
          rejected them.

               And the Court sees nothing extraordinary
          about that other than displeasure. As far as I’m
          concerned, the motion is denied.

     Id., pp. 21-2. With regard to the DNA, the only “conjecture and
     speculation” that the examiner offered were simply his
     explanations as to why the specimen he examined also
     contained an unmatched marker, those being possible
     contamination by the test kit makers or handlers; he
     emphatically testified that the mere presence of such a minor
     artifact in no way excluded or even raised a reasonable question
     of the actual presence of both the complainant’s and the
     defendant’s DNA nor the statistical probabilities that it was, in
     fact, his DNA and not someone else’s. As for the verdicts in
     general, there is no real inconsistency in finding a rape but not
     an indecent assault.
          8
            The Commonwealth noted that the acquittal for
          DST could have resulted from the facts that, while
          the defendant admitted to the police to having had


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             vaginal intercourse with the victim, he denied having
             oral sex, and while the defendant’s DNA was found in
             the victim’s vagina, none was found in her mouth.

Trial Court Opinion, 3/13/14, at 13-15.

       We agree with the trial court.        The jury weighed the victim’s

testimony, Appellant’s version of events, and the DNA evidence, and the

jurors chose to credit the Commonwealth’s case.         Nothing in the verdict

shocks one’s conscience, and we conclude there was no abuse of discretion

in the trial court denying Appellant’s post-verdict motion challenging the

weight of the evidence.

       Insofar as Appellant’s issue has raised a challenge to the sufficiency of

the evidence, we conclude that he is entitled to no relief. Here, the victim

testified that Appellant stopped her on the street and dragged her into an

alley while she was screaming. N.T., Trial, 5/22/12, at 88.2 She stated that

Appellant held her at knifepoint, forced her to her knees, and directed her to

perform fellatio.   Id. at 90.    She testified that when she tried to run,

Appellant grabbed her arm and exposed his penis forcing her to perform

fellatio.   Id. at 91.   Appellant then put a condom on and continued to

compel the victim to perform fellatio.    Id. at 92. The victim testified that



2
  We point out that there is an error in each of the volumes of the notes of
testimony from Appellant’s trial. While the trial was held in May of 2012, the
cover page and header from the notes of testimony state that the trial was
in May of 2013. As the record reveals that trial was in May of 2012, that is
the date we will utilize throughout our discussion.

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Appellant forced her on her hands and knees and penetrated her vagina with

his penis. Id. at 92. The victim stated that Appellant then turned her over

on her back and continued to penetrate her vagina with his penis.        Id. at

93-94. She testified that she was crying, she could not get Appellant from

atop her, and that she had no choice in this attack.      Id.   When Appellant

completed his assault, he told the victim to count to 100, and he fled. Id. at

95. The victim then pulled her shorts back on and reported that she was

raped. Id. at 98.

      It is well settled that “the uncorroborated testimony of a sexual assault

victim, if believed by the trier of fact, is sufficient to convict a defendant.”

Commonwealth v. McDonough, 96 A.3d 1067, 1069 (Pa. Super. 2014).

Here, the jury believed that the victim was raped and convicted Appellant.

Upon review, we are satisfied that, even if we were to discount all of the

additional evidence of Appellant’s guilt, the Commonwealth, through the

testimony of the victim alone, established sufficient evidence that Appellant

committed the crime of rape by forcible compulsion beyond a reasonable

doubt.

      In his second issue, Appellant claims the trial court erred in denying

his motion to suppress the statement he made to the police. “The admission

of evidence is within the sound discretion of the trial court, and will be

reversed on appeal only upon a showing that the trial court clearly abused




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its discretion.” Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super.

2004) (en banc) (citing Commonwealth v. Lilliock, 740 A.2d 237 (Pa.

Super. 1999)).    Abuse of discretion requires a finding of misapplication of

the law, a failure to apply the law, or judgment by the trial court that

exhibits bias, ill-will, prejudice, partiality, or was manifestly unreasonable, as

reflected by the record.    Commonwealth v. Montalvo, 986 A.2d 84, 94

(Pa. 2009).

      Moreover, we are aware that Pennsylvania Rule of Criminal Procedure

581, which addresses the suppression of evidence, provides in relevant part

as follows:

      (H) The Commonwealth shall have the burden . . . of
      establishing that the challenged evidence was not obtained in
      violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

            The standard of review an appellate court applies when
      considering an order denying a suppression motion is well
      established.    An appellate court may consider only the
      Commonwealth’s evidence and so much of the evidence for the
      defense as remains uncontradicted when read in the context of
      the record as a whole. Commonwealth v. Russo, 594 Pa. 119,
      126, 934 A.2d 1199, 1203 (2007) (citing Commonwealth v.
      Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004)). Where the
      record supports the factual findings of the suppression court, the
      appellate court is bound by those facts and may reverse only if
      the legal conclusions drawn therefrom are in error. Id. It is
      also well settled that the appellate court is not bound by the
      suppression court’s conclusions of law.               Id. (citing
      Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455
      (2003)).    However, whether a confession is constitutionally
      admissible is a question of law and subject to plenary review.



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        Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879,
        881 (1998).

             Thus, this Court does not, nor is it required to, defer
             to the suppression court’s legal conclusions that a
             confession or Miranda[3] waiver was knowing or
             voluntary.    Instead, we examine the record to
             determine if it supports the suppression court’s
             findings of fact and if those facts support the
             conclusion that, as a matter of law, Appellant
             knowingly and intelligently waived his Miranda
             rights. Preliminarily, we note:

                   Regardless of whether a waiver of
                   Miranda         is    voluntary,        the
                   Commonwealth       must   prove     by    a
                   preponderance of the evidence that the
                   waiver is also knowing and intelligent.

                   Miranda holds that “the defendant may
                   waive     effectuation”  of    the    rights
                   conveyed in the warnings “provided the
                   waiver is made voluntarily, knowingly
                   and intelligently.” The inquiry has two
                   distinct    dimensions.         First    the
                   relinquishment of the right must have
                   been voluntary in the sense that it was
                   the product of a free and deliberate
                   choice rather than intimidation, coercion
                   or deception. Second, the waiver must
                   have been made with a full awareness
                   both of the nature of the right being
                   abandoned and the consequences of the
                   decision to abandon it.       Only if the
                   “totality     of     the    circumstances
                   surrounding the interrogation” reveals
                   both an uncoerced choice and the
                   requisite level of comprehension may a
                   court properly conclude that Miranda
                   rights have been waived.


3
    Miranda v. Arizona, 384 U.S. 436 (1966).

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             Commonwealth v. Cephas, 522 A.2d 63, 65 (Pa.
             Super. 1987) (emphasis in original).

     In the Interest of T.B., 11 A.3d 500, 505-506 (Pa. Super.
     2010).

                                    ***

     In examining the totality of circumstances, we also consider: (1)
     the duration and means of an interrogation; (2) the defendant’s
     physical and psychological state; (3) the conditions attendant to
     the detention; (4) the attitude of the interrogator; and (5) “any
     and all other factors that could drain a person’s ability to
     withstand suggestion and coercion.” Nester, 551 Pa. at 164,
     709 A.2d at 882.

Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012).

     Here,    the   trial   court   offered   the   following   analysis   regarding

Appellant’s claim that the statement was inadmissible:

     In summary, the officer’s uncontradicted testimony clearly
     showed that the defendant was properly apprehended by the
     police based upon an apparently valid arrest warrant, was not
     questioned until after he was told that he was being arrested for
     the rape in question and was repeatedly advised of his rights to
     remain silent, to speak to an attorney, with which he was
     advised he would have been provided by the court if desired,
     and that whatever he said could be used in court, was not under
     the influence of any drugs or alcohol and was calm, alert,
     responsive and cooperative, had not been threatened or abused,
     was read everything that he told to the officer who had typed
     everything verbatim, had some experience in such matters,
     having been arrested twice and tried at least once previously for
     other unspecified offenses, and that he fully acknowledged his
     understanding of those rights and what he was purported to
     have said both verbally and by initialing parts and signing the
     complete statements of his rights and the facts he disclosed,
     even, at one point, despite having claimed to be unable to read,
     actually writing in and initialing a clarification on the typed


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      statement.6 The defense did not present any evidence as to the
      extent of the defendant’s illiteracy, nor any with regard to the
      other allegations of impropriety in his arrest or questioning,
      other than to emphasize on cross that he told the police he
      couldn’t read, nor anything else to demonstrate any lack of an
      ability to fully comprehend his rights or the consequences of
      relinquishing them. Although the defendant did not explicitly
      state that he waived his rights, neither did he at any time
      express any desire to terminate the questioning or to speak to
      and have an attorney present.
            6
               Id., pp. 5-23. On the bottom of one page he wrote
            “I did not know what you were talking about at
            first.”, followed by his initials. Id., p. 19. Also of note
            is that the defendant acknowledged completing the
            11th grade (Id., p. 13), and that the arrest and the
            taking of his statement only took about an hour and
            fifteen minutes (Id., pp. 6, 33).

Trial Court Opinion, 3/13/14, at 6-7 (verbatim).

      We discern no error.     Appellant was informed of his right to remain

silent and to have an attorney, and he chose to waive those rights. Despite

Appellant’s claimed illiteracy, he properly initialed and signed his statement,

in addition to handwriting an addendum.        In examining the totality of the

circumstances, we cannot agree that Appellant’s degree of literacy in any

way impeded his ability to voluntarily, knowingly, and intelligently make the

statement to the police.      Accordingly, we discern no error or abuse of

discretion in the trial court’s decision to deny Appellant’s suppression

motion.




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     For the reasons set forth above, Appellant is entitled to no relief.

Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2014




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