J-S26011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    DIONE MAURICE ANDREWS,

                             Appellant                No. 1221 EDA 2017


         Appeal from the Judgment of Sentence Entered March 3, 2017
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0006345-2016


BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JULY 10, 2018

        Appellant, Dione Maurice Andrews, appeals from the judgment of

sentence of time served to 23 months’ incarceration, imposed after he was

convicted by a jury of indecent assault, 18 Pa.C.S. § 3126(a)(1). Appellant

challenges the weight of the evidence to sustain his conviction, as well as an

evidentiary ruling by the trial court. We affirm.

        The trial court briefly summarized the facts and procedural history of

Appellant’s case, as follows:

              During the time of the incident, April 27, 2016, [Appellant]
        was living at the home of his friend Robert Hagler. Hagler
        arranged to meet up with the victim, D.M.[,] in the early morning
        hours. They went back to Hagler’s home. D.M. believed that only
        Hagler and his grandmother were present. She was unaware that
        [Appellant] was also present in the home. Hagler and the victim
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      engaged in consensual sexual intercourse. When Hagler left the
      dark bedroom, [Appellant] walked in and attempted to have
      sexual intercourse with D.M. without consent, and only stopped
      because he was suffering from erectile dysfunction.

             On March 3, 2017, a two-day jury trial concluded. The jury
      found [Appellant] guilty of indecent assault without consent. The
      jury acquitted him of rape, sexual assault and indecent assault -
      forcible compulsion. Also on March 3, 2017, [Appellant] was
      sentenced to a term of imprisonment of time served to twenty-
      three months[’ incarceration]. A timely post-sentence motion was
      filed, challenging the weight of the evidence. The motion was
      denied on March 16, 2017. This timely appeal followed.

Trial Court Opinion, 7/5/17, at 1-2.

      On April 19, 2017, the trial court ordered Appellant to file a Pa.R.A.P.

1925(b) statement. On May 10, 2017, the court granted Appellant a 10-day

extension of time to file his Rule 1925(b) statement. Appellant subsequently

requested another extension of time to file his concise statement, but the

court seemingly did not rule on that request. Appellant filed his Rule 1925(b)

statement on May 25, 2017, beyond the 10-day extension initially granted by

the court.   Notwithstanding the untimeliness of Appellant’s Rule 1925(b)

statement, the trial court issued an opinion on July 5, 2017, addressing the

merits of his issues. As such, we need not remand, and we will examine the

two issues Appellant presents herein. See Commonwealth v. Burton, 973

A.2d 428, 433 (Pa. Super. 2009). Those issues are as follows:

      1. The verdict was against the weight of the evidence.

      2. The trial court erred in precluding evidence that indicated that
         Appellant did not assault the complainant.

Appellant’s Brief at 6 (unnecessary capitalization omitted).

      In regard to Appellant’s first issue, we begin by noting that,

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      [a] claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the verdict
      was against the weight of the evidence. It is well[-]settled that
      the jury is free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses, and a new trial based
      on a weight of the evidence claim is only warranted where the
      jury’s verdict is so contrary to the evidence that it shocks one’s
      sense of justice. In determining whether this standard has been
      met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable abuse
      of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Here, Appellant claims that the greater weight of the evidence

demonstrated that he believed D.M. was a consenting participant in their

sexual encounter and, thus, he lacked the intent to assault her. In support,

he cites his own trial testimony that Hagler told him that D.M. wanted to have

sex with him, thus ‘duping’ Appellant into believing that D.M. was consenting

to the sexual intercourse. See N.T. Trial, 3/2/17, at 126.        Appellant also

relies on his and D.M.’s testimony that, during their sexual encounter, Hagler

“peep[ed] in the room, smile[d] and then closed the door,” id. at 18, and

D.M.’s testimony that, because she initially thought that Appellant was Hagler,

she was ‘amorous’ with Appellant at the outset of the encounter, id. at 16.

Appellant claims that as soon as D.M. said the word “rape,” he realized she

was not consenting and he “immediately stopped any amorous gestures….”

Id. at 19.    Finally, Appellant points out that after the incident, Hagler



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“harassed [D.M.] on the streets and called her vile names,” which Appellant

characterizes as “inculpatory” behavior. Id. at 22. Appellant also stresses

that he presented evidence that his “reputation in the community was

impeccable.” Id. In light of all of this evidence, Appellant maintains that the

jury’s verdict “truly shocks the conscience.” Id. at 23.

      The trial court disagreed with Appellant and, after reviewing the record,

we discern no abuse of discretion in that decision. Even accepting that when

Appellant entered the bedroom and initiated the physical contact with D.M.,

he believed that she was a consenting participant, D.M. testified that once she

realized that Appellant was not Hagler, she “kept repeating, ‘Get off of me.

Get off of me. Get off of me.’ And [Appellant] didn’t.” N.T. Trial at 66. D.M.

further stated that, as she was telling Appellant to get off her, she “was trying

to push him off me, push his shoulders, you know, so he would get off me.

But as I was doing that he was, you know, forcefully coming back down.” Id.

When asked what Appellant “was doing with his body[,]” D.M. explained that

“[a]s [she] was pushing, he was rejecting that force” and “[j]ust continuing

on with what he came in there to do.” Id. at 66, 67. D.M. clarified that she

“felt [Appellant’s] penis try to insert [into] my vagina[,]” and that “maybe a

small portion” of Appellant’s penis did enter her vagina. Id. at 67. It was at

this point that D.M. asked Appellant, “Are you really going to rape me?” and

Appellant then got off her, apparently because “he was having erectile

dysfunction and he was embarrassed….” Id. D.M. also testified that Hagler

opened the door, looked in, and then shut the door after she had told Appellant

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to ‘get off her,’ but she did not know if Hagler “knew exactly what was going

on….” Id. at 70.1 Additionally, the Commonwealth admitted evidence that

after the incident, Appellant messaged D.M. on social media and agreed with

D.M. that what had happened between them “wasn’t right” because Appellant

knew “what [he] was doing” and D.M. did not. Id. at 79.

       In light of this evidence, the trial court did not abuse its discretion in

rejecting Appellant’s weight-of-the-evidence claim. The jury was clearly free

to believe D.M.’s testimony that Appellant continued to force himself on her

after she verbally and physically rejected his advances. This is true even in

light of the minor inconsistencies in the witnesses’ testimony, the evidence

that Hagler ‘duped’ Appellant, Hagler’s alleged ‘inculpatory’ conduct after the

incident, and Appellant’s good reputation in the community.            Therefore,

Appellant’s first issue does not warrant relief.

       In Appellant’s second issue, he argues that the trial court erred by not

allowing him to question D.M. about a phone call she had with Appellant that

was recorded by the police.          Specifically, during the cross-examination of

D.M., the following exchange occurred:



____________________________________________


1 Hagler testified that when he opened the door to the room, he saw Appellant
on top of D.M. and heard her say, “Get off of me.” N.T. Trial at 24. Hagler
claimed that he repeatedly told Appellant to get off D.M., but Appellant “just
kept doing what he was doing.” Id. Hagler testified that “[b]ecause
[Appellant] wasn’t listening to [him,]” he left the room and waited outside
until D.M. left. Id. at 24, 25.


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      [Defense Counsel:] You made this phone call to be recorded,
      correct?

      [D.M.:] Yes.

      [Defense Counsel:] And the purpose of that phone call was to see
      if you could get [Appellant] to basically say that he assaulted you,
      correct?

      [D.M.:] Yes.

      [Defense Counsel:] And he didn’t say that, did he --

      [The Commonwealth:] Objection; hearsay.

      [The Court:] Sustained.

N.T. Trial at 98 (emphasis added).

      Appellant contends that the above-emphasized question sought to elicit

testimony about “[w]hat [he] did not say” and, thus, it did not constitute

hearsay. Appellant’s Brief at 26 (emphasis added). He also argues that the

question “was a fair retort to the Commonwealth’s questioning of [D.M.] that

suggested Appellant was guilty.” Id. Appellant avers that because “[t]his

was a case that turned solely on credibility[,] … preventing the question from

being answered substantially contributed to his conviction.” Id.

      In response, the Commonwealth asserts that the question was clearly

designed to elicit “an out-of-court statement offered for its truth” and, thus,

D.M.’s answer would have been hearsay. Commonwealth’s Brief at 15; see

also Pa.R.E. 801(c) (defining hearsay as “a statement that [] the declarant

does not make while testifying at the current trial or hearing; and [] a party

offers in evidence to prove the truth of the matter asserted in the statement”).

Nevertheless, the Commonwealth also stresses that Appellant



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      fails … to articulate how the victim’s testimony that, on a prior
      occasion he said he did not do it, would have changed the outcome
      of his trial, especially where he testified at trial that he did not do
      it. The jury was perfectly capable of assessing his credibility when
      he was on the witness stand. That it rejected his story does not
      somehow make the court’s ruling excluding inadmissible hearsay
      improper or otherwise entitle him to relief.

Id. at 16.

      While we agree with Appellant that the wording of the question posed

to D.M. seemingly sought a response about what Appellant did not say, rather

than what he did, we need not determine whether such a response would

constitute hearsay. Even if D.M. had testified that Appellant did not admit to

assaulting her during their recorded phone conversation, that testimony would

not have changed the outcome of Appellant’s trial.        As the Commonwealth

stresses, Appellant himself took the stand and testified that he did not assault

D.M. Clearly, the jury believed D.M.’s testimony to the contrary, which was

bolstered by Hagler’s testimony that he heard D.M. repeatedly telling

Appellant to get off her, and by Appellant’s messages to D.M. after the incident

admitting that what had happened was wrong. Therefore, we are convinced

by the Commonwealth’s ‘harmless error’ argument, and we conclude that the

trial court’s precluding D.M.’s testimony did not impact the jury’s verdict.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/18




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