J-S40024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CHRISTINA REGUSTERS,                       :
                                               :
                      Appellant                :   No. 869 EDA 2016

             Appeal from the Judgment of Sentence October 5, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0005630-2013


BEFORE: OTT, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                                FILED AUGUST 31, 2017

        Appellant, Christina Regusters, appeals from the October 5, 2015

Judgment of Sentence entered in the Philadelphia County Court of Common

Pleas following a jury trial. After careful review, we affirm.

        We summarize the relevant factual and procedural history, as gleaned

from the trial court’s Pa.R.A.P. 1925(a) Opinion, as follows. On the morning

of January 14, 2013, the victim’s mother dropped N.R., the five-year-old

victim, off at Bryant Elementary School.1 Approximately ten minutes later,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  In her brief, Appellant refers to the minor victim by her full name. Not
only do we disapprove of this practice, but it is also contrary to 42 Pa.C.S. §
5988, which makes it a criminal offense for an officer or employee of the
court to reveal the name of a minor victim of sexual abuse in documents
available to the public.
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Appellant signed N.R. out of school, claiming to be her mother. Like N.R.’s

mother, Appellant wore full Muslim garb covering everything but her eyes.

She also appeared to be pregnant.          After the school day was over,

employees of the daycare N.R. attended came to pick her up as they do

every day.    When they arrived at school, they discovered that someone

other than her mother had signed her out for the day.

      N.R. remained missing until approximately 4:00 A.M. the next morning

when a man heard her calling for help from inside a playground. Wearing

nothing but an oversized t-shirt, N.R. told the man that she had escaped

from her kidnappers.        The man immediately called the police, who

transported her to the Children’s Hospital of Philadelphia.

      A physical examination revealed evidence of extensive sexual abuse,

specifically vaginal and anal penetration by a foreign object. The anal injury

was so “severe and divertive that a colostomy was required to allow the

injury to heal properly.”   Trial Court Opinion, filed 8/24/16 at 4.    While

doctors found liquid stool in her anal and genital areas, they did not recover

any sperm. Investigators also swabbed the t-shirt she was wearing for DNA

evidence, and found Appellant’s DNA, N.R.’s DNA, and the DNA of the man

who found N.R. at the park.

      On the same day she was found, N.R. recounted the details of her

abduction briefly to a member of the Special Victims Unit of the Philadelphia

Police Department, and later, in more detail, to a forensic investigator


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assigned to the case.        N.R. also described her experience to the forensic

investigator on a second occasion ten days later.             She recalled that

Appellant, who first introduced herself to N.R. as Rashida, picked her up

from school, walked her to a house where she lifted her over a stone wall,

placed her in a bag that she removed from under her Muslim garb, carried

her into the house, and took her into a bedroom. Subsequently Appellant

ordered N.R. to remove her clothes and glasses, put on a blindfold, and get

under the bed.

       Later, Appellant joined N.R. under the bed and introduced herself

again, this time as a woman named China.                Significantly, China was

Appellant’s childhood nickname.           While under the bed, Appellant warned

N.R. about a deaf man, briefly showing her his picture.2 She warned that

N.R. must be quiet, or else the man would harm her.             N.R. stated that

Appellant penetrated her vagina and anus with something that felt like a

stick or a toothpick because it was sharp. Afterwards, Appellant gave N.R. a

bath, and brought her to the playground where she was eventually found at

4:00 A.M.

       While   Appellant kept N.R. blindfolded throughout most of the

encounter, she had removed the blindfold briefly while they were underneath

____________________________________________


2
  While Appellant showed N.R. a picture of the deaf man, there is no
evidence to suggest that he actually existed or took part in the kidnapping or
sexual assault of N.R.



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the bed to show N.R. the picture of the deaf man, when she gave N.R. a

bath, and when she walked N.R. to the playground where she was found.

N.R. described China as having light skin and light eyes.

      N.R. also remembered hearing a talking bird that repeated the phrase

“You’re fired.”   Detectives used the information about the talking bird to

solicit tips from the public, leading them to Appellant.    Additionally, when

detectives drove N.R. around the neighborhood where she was found, she

pointed to a home with a green door near the garage of a home as the

location to which she was taken. Both Appellant and the talking bird resided

in that home.

      At the time of the kidnapping, Appellant was an employee of the same

daycare that N.R. attended, and she had previously interacted with her. On

the day of the kidnapping, however, Appellant was serving a three-day

suspension from the daycare for an unrelated incident and was not working.

Appellant claimed she slept in at home that day because she was feeling ill.

She lived with her Aunt, Valerie Williams, and her young cousins.

      Police searched Appellant’s home and seized all computers and cell

phones.   A digital search of Appellant’s computer found that a user had

conducted Internet searches for Muslim clothing, child pornography featuring

young girls, whether taking a bath could remove DNA evidence, what type of

evidence police collect in a rape kit, and for information regarding N.R.’s

disappearance and the investigation that followed. It was not immediately


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clear who had conducted the searches, as the computer was not password

protected and multiple people lived in the home. None of the victim’s DNA

was found in the house; Appellant’s aunt testified that Appellant had

recently disposed of the rug that had previously been underneath the bed.

Appellant matched the description N.R. provided and lived in the home N.R.

identified, and police arrested her.

       Appellant’s case proceeded to a jury trial, where, inter alia, N.R.,

N.R.’s mother, the detectives who interviewed N.R., the forensic investigator

who interviewed N.R., and Appellant’s aunt, Valerie Williams, testified. 3 On

February 12, 2015, the jury convicted Appellant of Aggravated Assault,

Involuntary Deviate Sexual Intercourse with a Child (Serious Bodily Injury),

Kidnapping, Unlawful Restraint of a Minor–Risk of Bodily Injury, and

Concealment of the Whereabouts of a Child. She was sentenced to 40 years’

to life imprisonment followed by 20 years’ probation.

       Appellant timely appealed. Appellant and the trial court both complied

with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:

       1. Whether the Commonwealth adduced sufficient evidence from
          which a trier of fact could conclude beyond a reasonable
          doubt that Appellant Regusters committed the crimes for
          which she was found guilty.

____________________________________________


3
  The trial court questioned N.R. in the presence of defense counsel and the
prosecution and found her competent to testify. N.T., 8/27/14, at 126.



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      2. Whether     the Court abused its discretion in failing to order a
         new trial   where, in light of the inconclusiveness of inculpatory
         evidence     proving that the Appellant engaged in criminal
         activity,   the guilty verdict was against the weight of the
         evidence    and constituted a miscarriage of justice.

Appellant’s Brief at 4.

                             Sufficiency of the Evidence

      Appellant first challenges the sufficiency of the evidence, averring that

the evidence presented at trial was insufficient to establish beyond a

reasonable doubt that she was the person who committed the crimes of

which the jury convicted her.

      Evidentiary sufficiency is a question of law; thus, our standard of

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

Diamond, 83 A.3d 119, 126 (Pa. 2013).             In determining whether the

evidence was sufficient to support a verdict, we view the evidence and all

reasonable inferences to be drawn therefrom in the light most favorable to

the verdict winner, the Commonwealth herein. Commonwealth v. Watley,

81 A.3d 108, 113 (Pa. Super. 2013) (en banc).

      When reviewing the sufficiency of the evidence, a court does not need

to be convinced that the evidence supports the conviction beyond a

reasonable doubt. Commonwealth v. Martin, A.3d 706, 729 (Pa. 2014).

Rather, “a court must determine simply whether the evidence believed by

the fact-finder was sufficient to support the verdict.”     Id.   Moreover, the




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Commonwealth can sustain its burden “by means of wholly circumstantial

evidence.” Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).

      Here, Appellant challenges the evidence supporting her identification

as the perpetrator of the crimes.           Regarding the issue of identity, our

Supreme Court has stated that in order to sustain a conviction, the

Commonwealth must prove beyond a reasonable doubt regarding the

identity   of   the   accused   as   the    person   who   committed   the   crime.

Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973). Such proof

need not be positive, certain, or even direct, as a defendant may be

convicted based wholly upon circumstantial evidence. Id.

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

applicable law, and the trial court Opinion, we conclude that Appellant’s

claim lacks merit.     While no one could positively identify Appellant as the

person who committed the crimes charged, there was overwhelming

circumstantial evidence to sustain the jury’s verdict finding her guilty.

      The t-shirt N.R. wore when she was found contained DNA from the

Appellant. Additionally, N.R.’s mother did not recognize the t-shirt and had

never seen her wearing it. N.T., 8/27/14, at 38.

      When detectives drove N.R. around the neighborhood where she was

found, she pointed to the green door leading into the garage area of

Appellant’s house, and identified it as the house where she was taken.

Critically, the victim told police that she had heard a talking bird in the


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house that repeated the phrase “You’re fired.”    When detectives searched

Appellant’s residence, they came across a talking bird that repeated that

same phrase.

      As an employee of the daycare that N.R. attended, Appellant knew

N.R. and was aware that her mother wore Muslim garb that covered

everything but her eyes. Video surveillance near Appellant’s house showed

N.R. wearing a jacket that belonged to Appellant’s aunt walking with the

woman in Muslim garb.

      When investigators asked N.R. for information about her captor, not

only did her description of China as having light skin and light eyes match

Appellant’s description, but also the name China was Appellant’s childhood

nickname.

      Further, Appellant’s Internet search history revealed a trove of

incriminating activity.   A forensic analysis of Appellant’s computer showed

searches for child pornography, involving the type of sexual acts performed

on the victim, in addition to where to buy Muslim garb, whether taking a hot

bath or shower could remove any DNA evidence, what type of evidence

authorities collect in a rape kit, and for information on the police

investigation into the victim’s case.

      Here, in support of her sufficiency challenge, Appellant claims that she

could not have been the perpetrator because she was not pregnant.        This

claim falls flat.   N.R. had recounted to her mother that the woman who


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abducted her had an enlarged stomach not because she was pregnant, but

because of a bag stuffed in her clothing.     N.R. had stated that, prior to

taking her into the home, Appellant had taken the bag out of her clothing,

put N.R. in the bag, and carried her into the house. Moreover, Appellant’s

aunt testified that she saw Appellant carrying something into the house at

approximately 9:00 A.M. on the morning the abduction took place, which

corroborated N.R.’s allegations. At the time, she noted to herself that it was

odd that Appellant had been out so early in the morning, considering she

claimed to be ill at the time.     The testimony of Appellant’s aunt also

contradicted Appellant’s claim that she slept in that morning.

      Although Appellant concedes that circumstantial evidence can support

a verdict, she nonetheless argues, with a self-serving characterization of the

evidence, that the evidence presented at trial does not establish with

certainty that she was the person who abducted and sexually assaulted N.R.

Her argument ignores our standard of review. This court must view all of

the evidence in the light most favorable to the Commonwealth as the verdict

winner, and we may not reweigh the evidence and substitute our judgment

for that of the fact-finder. Commonwealth v. Melvin, 103 A.3d 1, 39-40.

(Pa. Super. 2014).    Contrary to Appellant’s argument, the inferences the

jury drew were reasonable regarding Appellant as the perpetrator in light of

the overwhelming circumstantial evidence.




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      Viewing these facts and all reasonable inferences to be drawn

therefrom in the light most favorable to the verdict winner, we conclude that

the circumstantial evidence presented at trial connecting Appellant to the

crimes charged was sufficient to sustain the convictions.

                             Weight of the Evidence

      We next address Appellant’s assertion that the jury’s verdict was

against the weight of the evidence because the “paucity of inculpatory

evidence in the instant case constituted a shocking miscarriage of justice.”

Appellant’s Brief at 47.

      A challenge to the weight of the evidence concedes that there was

sufficient evidence to sustain the verdict. Commonwealth v. Widmer, 744

A.2d 745, 751 (Pa. 2000). For that reason, the trial court need not view the

evidence in the light most favorable to the verdict winner, and may instead

use its discretion in concluding whether the verdict was against the weight of

the evidence. Id.

      Since the trial court judge was present for the trial and heard the

evidence presented, this Court “will give the gravest consideration” to the

determinations made by the trial judge as to whether the verdict was

against the weight of the evidence and that a new trial should be granted in

the interest of justice. Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.

Super. 2013).     Consequently, appellate review of a weight claim solely




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assesses whether the trial court judge committed an abuse of discretion in

determining whether the verdict was against the weight of the evidence. Id.

      Challenges to a trial court’s determination that the jury’s verdict is not

against the weight of the evidence is one of the least assailable reasons for

granting or denying a new trial. Id. Furthermore, “in order for a defendant

to prevail on a challenge to the weight of the evidence, the evidence must

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

of the court.” Id. (quotation marks and citation omitted).

      Appellant asks this court to reweigh the evidence against her,

including the credibility of the victim’s testimony, which it cannot do. As the

trial court noted, “the significant evidence gathered from the subsequent

interviews with the family, forensic data from the electronic devices, and

surveillance footage created adequate circumstantial evidence to support the

verdict.” Trial Court Opinion at 11. Moreover, the trial court also stated that

any potential discrepancies in the victim’s testimony “did not result in a

verdict that shocks the conscience.” Trial Court Opinion at 11.

      We agree with the trial court that the jury’s verdict was not against the

weight of the evidence.

      Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2017




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