J-S55022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

LUKE MACGREGOR WILBUR

                            Appellant                 No. 592 MDA 2017


           Appeal from the Judgment of Sentence September 7, 2016
                in the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0002127-2015


BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.:                         FILED OCTOBER 04, 2017

        Appellant, Luke MacGregor Wilbur, appeals from the judgment of

sentence of sixty to one hundred twenty months of incarceration, followed

by sixty months of probation, imposed September 7, 2016, following a jury

trial resulting in his conviction for rape of an unconscious victim. 1

Additionally, Appellant’s counsel, Jonathan C. Faust, Esq., seeks to withdraw

his representation of Appellant pursuant to Anders v. California, 87 S. Ct.

1936 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

We affirm and grant counsel’s petition to withdraw.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(3).
J-S55022-17



        We adopt the following statement of facts from the trial court opinion,

which in turn is supported by the record.     See Trial Court Opinion (TCO),

5/16/17, at 2-13. The victim, C.M., met Appellant through a mutual friend,

N.W., two summers prior to the trial.          Although Appellant expressed

romantic interest in C.M., she repeatedly refused his advances. Regardless,

she had gone out with Appellant in the company of other people, and she

had previously danced with him. N.W. was aware of Appellant’s interest in

C.M. but also knew C.M. made it clear she was not interested in him. As of

August 9, 2015, C.M. had not seen Appellant for approximately one year and

was in a committed relationship with another man.

        On that day, C.M. made plans to spend the weekend with N.W. The

two women went to two bars, where C.M. had three mixed drinks, two of

which contained Red Bull. Later that night, N.W. received two phone calls:

one from her husband, requesting she come home, and another from

Appellant, who wanted to know what she was doing because he was going to

a party. C.M. asked N.W. if she thought it was a good idea for her to go out

with Appellant. N.W., who trusted Appellant completely, thought it would be

fine.     C.M. agreed to go to a bonfire gathering with Appellant in

Shippensburg.

        Appellant picked C.M. up at N.W.’s house and drove her to the party.

Along the way, they talked about their lives but did not discuss romance.

They arrived at the party shortly after midnight. Approximately ten guests

were drinking heavily and playing cards. C.M. drank a beer, a shot of vodka,

                                      -2-
J-S55022-17



and smoked marijuana.         C.M. and Appellant left the party at sunrise,

approximately 6:00 a.m. Appellant drove C.M. back to N.W.’s house. C.M.

remembered briefly talking to Appellant in the car but fell asleep in the car

shortly thereafter.

      The next thing C.M. remembered was waking up and hearing N.W. and

her husband coming down the stairs.       C.M. realized that her clothes were

askew and her phone was missing. Her genital area was wet, she smelled

“funny” and felt sore, like one would after sexual intercourse.       It was

approximately 10:00 a.m. C.M. stated that between 6:00 a.m. and 10:00

a.m. she was completely unconscious.

      C.M. began to panic and tried to explain her situation to N.W., but she

had trouble constructing a coherent sentence.      She repeatedly told N.W.,

“Something is wrong.” When N.W. finally calmed her down, the two women

called Appellant.     N.W. heard C.M. say something to the effect of, “I just

want you to know I’m not okay with what you did.” C.M. asked Appellant if

he understood the position he was putting her in. He stuttered “yes” and

hung up.

      After C.M. left, N.W. found C.M.’s phone in the couch and answered

when Appellant called.      She asked Appellant if he and C.M. had sexual

intercourse, because C.M. seemed very upset and had not been awake.

Appellant said yes, and that, “I don’t know what happened. I’ve never done

anything like that before, and I just should have stopped. I should have just

stopped and I feel really bad.”

                                      -3-
J-S55022-17



      C.M. went to the hospital and had a rape kit completed.        Christine

Morgan, a sexual assault nurse examiner, performed the examination.

There was no trauma to C.M.’s body, which is consistent with an unconscious

victim who would have been relaxed. C.M.’s statement to Ms. Morgan was

consistent with her trial testimony, except that C.M. did not admit to

smoking marijuana as she was embarrassed.           Police responded to the

hospital and spoke with C.M. regarding the rape, secured the rape kit, and

took her statement. The kit was not sent for processing because there was

no dispute that sex had occurred.

      Appellant was also interviewed by detectives; the interview was

videotaped and later viewed by the jury. Appellant admitted he knew C.M.;

went to the party with her; had a crush on her; had unprotected sex with

C.M.; and ejaculated inside of her. However, he claimed he had intended to

make sure C.M. got to bed safely.     After covering her with a blanket, he

looked at her for five minutes and thought she was asleep. When he started

kissing her, he thought she enjoyed it. However, he acknowledged C.M. lay

still and did not talk to him. Appellant then took his pants off and had oral

and vaginal intercourse with C.M.    He claimed that during the intercourse

she moved so he “could get at her better” and that at one point she opened

her eyes. He acknowledged that he had spoken with C.M. earlier and she

was not interested in a relationship with him; and that during the phone call,

she was upset with Appellant and tried to tell Appellant he had raped her.

He admitted he felt terrible about what had happened.

                                    -4-
J-S55022-17



        Following trial, a jury convicted Appellant of rape of an unconscious

person. Prior to sentencing, trial counsel filed a motion to withdraw, which

was granted. Thereafter, the court appointed current counsel to represent

Appellant. On September 7, 2016, Appellant was sentenced to sixty to one

hundred twenty months of incarceration, followed by sixty months of

probation. That same day, the trial court extended the time for filing post-

sentence motions to ten days from the receipt of the trial transcripts. The

transcripts were lodged September 16, 2016, and filed on September 21,

2016.     Appellant timely filed a post-sentence motion on September 26,

2016.

        When it came to the trial court’s attention that Appellant’s motion had

not been acted upon within one hundred twenty days as required by

Pa.R.Crim.P. 720(B)(3)(a), on March 8, 2017, the trial court deemed the

motion to be denied by operation of law. Appellant timely filed a notice of

appeal on April 3, 2017, within thirty days of the entry of that order. See

Pa.R.Crim.P. 720(A)(2)(b).       Appellant filed a court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal, and the court issued a

responsive opinion.

        In this Court, Appellant’s counsel has filed an Anders brief, asserting

two issues Appellant might seek to raise: 1) whether the Commonwealth had

presented sufficient evidence to convict Appellant of rape of an unconscious

person, and 2) whether the verdict was against the weight of the evidence.

See Appellant’s Brief at 7.

                                      -5-
J-S55022-17



     When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining

counsel’s request to withdraw.   Commonwealth v. Goodwin, 928 A.2d

287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on

direct appeal under Anders, counsel must file a brief that meets the

requirements established by the Pennsylvania Supreme Court in Santiago,

namely:

     (1) provide a summary of the procedural history and facts, with
     citations to the record;

     (2) refer to anything in the record that counsel believes arguably
     supports the appeal;

     (3) set forth counsel's conclusion that the appeal is frivolous;
     and

     (4) state counsel's reasons for concluding that the appeal is
     frivolous. Counsel should articulate the relevant facts of record,
     controlling case law, and/or statutes on point that have led to
     the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

     Counsel also must provide a copy of the Anders brief to his
     client. Attending the brief must be a letter that advises the
     client of his right to: “(1) retain new counsel to pursue the
     appeal; (2) proceed pro se on appeal; or (3) raise any points
     that the appellant deems worthy of the court[’]s attention in
     addition to the points raised by counsel in the Anders brief.”
     Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
     2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, only then may this Court “conduct an independent

                                   -6-
J-S55022-17



review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

      In the instant matter, Attorney Faust’s Anders brief complies with the

above-stated requirements. Namely, he includes a summary of the relevant

factual and procedural history; he refers to the portions of the record that

could arguably support Appellant’s claims; and he sets forth his conclusion

that Appellant’s appeal is frivolous. He explains his reasoning and supports

his rationale with citations to the record as well as pertinent legal authority.

Attorney Faust avers he has supplied Appellant with a copy of his Anders

brief and a letter explaining the rights enumerated in Nischan. Accordingly,

counsel has complied with the technical requirements for withdrawal. Thus,

we may independently review the record to determine if the issues Appellant

raises are frivolous and to ascertain if there are other non-frivolous issues he

may pursue on appeal.

      First, Appellant contends that the evidence was insufficient to convict

him of rape of an unconscious victim. See Appellant’s Brief at 12. Appellant

contends the Commonwealth failed to prove the intercourse was not

consensual. Id. He claimed that five drinks and marijuana was not enough

to cause intoxication such that the victim could not consent, and that the

victim merely “did not remember” the consensual intercourse Id. at 12-13.

      We review a challenge to the sufficiency of the evidence as follows.




                                     -7-
J-S55022-17


      In determining whether there was sufficient evidentiary support
      for a jury’s finding [], the reviewing court inquires whether the
      proofs, considered in the light most favorable to the
      Commonwealth as a verdict winner, are sufficient to enable a
      reasonable jury to find every element of the crime beyond a
      reasonable doubt.        The court bears in mind that: the
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence; the entire trial record should be
      evaluated and all evidence received considered, whether or not
      the trial court’s rulings thereon were correct; and the trier of
      fact, while passing upon the credibility of witnesses and the
      weight of the evidence, is free to believe all, part, or none of the
      evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations

omitted).

      A person commits the offense of rape when he engages in sexual

intercourse with a complainant who is unconscious, or where he knows that

the complainant is unaware that the sexual intercourse is occurring. See 18

Pa.C.S. § 3121(a)(3). Our Court has previously held that where a victim,

“during at least portions of the assault, lacked knowledge or awareness of

both her own sensations and external events, and was not in the normal

waking state, the evidence was sufficient to support the finding that she

was unconscious within the meaning of the statute.” See Commonwealth

v. Erney, 698 A.2d 56, 59 (Pa. 1997); see also Commonwealth v. Diaz,

152 A.3d 1040, 1045 (Pa. Super. 2016).

      The evidence in the instant case was indeed sufficient to support the

jury’s verdict that, during the assault, the victim was unconscious within the

meaning of the statute. C.M. testified that she had no recollection of what

had happened to her between 6:00 a.m. and 10:00 a.m., when she woke up


                                     -8-
J-S55022-17



to find her clothes in disarray and other signs that intercourse had been

performed upon her. Appellant gave an inculpatory statement to the police

in which he admitted he should have stopped when C.M. just “lay there.”

Appellant’s argument that C.M.’s “movement” and eye opening during the

assault indicated consciousness is also without merit, as we have held that

intermittent unconsciousness satisfies the conditions of the statute so to

make consent impossible. See Erney, 698 A.2d at 59; Diaz, 152 A.3d at

1045.       Accordingly, the evidence was sufficient to support Appellant’s

convictions. Id.

        Next, Appellant contends that the verdict was against the weight of the

evidence because the victim’s testimony was incredible.            Id. at 13.

Appellant points to the fact that the victim’s story regarding the substances

she had used changed from the initial report to the sexual assault nurse to

her trial testimony rendered her testimony unbelievable. Id.

        Initially, we note that claims regarding the weight of the evidence are

within the sound discretion of the trial court and will not be disturbed absent

an abuse of that discretion.     See Commonwealth v. Houser, 18 A.3d

1128, 1135-1136 (Pa. 2011). “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.”     Id.   Where the challenge to the weight of the evidence is

predicated on the credibility of trial testimony,

                                      -9-
J-S55022-17



     our review of the trial court's decision is extremely limited.
     Generally, unless the evidence is so unreliable and/or
     contradictory as to make any verdict based thereon pure
     conjecture, these types of claims are not cognizable on appellate
     review.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007)

(internal citations and quotations omitted); see also Commonwealth v.

Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015) (noting that this Court

may not re-assess the credibility of a witness’ testimony when ruling on a

weight of the evidence claim).

     Here, C.M. testified before the jury and was accordingly subject to

cross-examination.   The jury additionally viewed Appellant’s video-taped

statement to detectives.   It was the jury’s role to evaluate this testimony

and give it such weight as they saw fit, and they properly found that there

was nothing inherently unreliable in C.M.’s testimony.   See TCO at 17-18.

Thus, the jury heard the evidence, evaluated it, and found C.M.’s testimony

credible and Appellant’s statement not credible, and we decline to re-assess

the jury’s credibility determination. See Hankerson, 118 A.3d at 420.

     Attorney Faust identifies one additional issue Appellant seeks to raise,

namely, whether the prosecutor committed misconduct by referring in

closing argument to “a fixed line” that Appellant stepped over.          See

Appellant’s Brief at 14. However, Appellant did not object to this remark at

the time of trial and, accordingly, has waived the claim on appeal.      See,

e.g., Commonwealth v. Tedford, 960 A.2d 1, 28–29 (Pa. 2008).



                                   - 10 -
J-S55022-17



      In short, we agree with Attorney Faust that Appellant’s issues are

frivolous.   We have independently reviewed the record and find no other

issues of arguable merit that he could pursue on appeal.   Accordingly, we

affirm Appellant’s judgment of sentence and grant counsel’s petition to

withdraw.

      Petition to withdraw granted.        Judgment of sentence affirmed.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2017




                                  - 11 -
