J-S51008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MORTIMAH KESSELLY

                            Appellant                  No. 2038 EDA 2014


             Appeal from the Judgment of Sentence June 20, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0008349-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                       FILED OCTOBER 30, 2015

        Appellant, Mortimah Kesselly, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his jury

trial conviction for statutory sexual assault.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.2

At approximately 11:00 p.m. on Friday, September 28, 2012, the victim was
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1
    18 Pa.C.S.A. § 3122.1(b).
2
   The facts are derived from the transcripts of Appellant’s jury trial.
Appellant was tried with two codefendants, whose cases are separately on
appeal with this Court, but only one set of transcripts was produced. The
transcripts were included in the certified record for the case of codefendant
Eddie A. Johnson (No. 2190 EDA 2014), but the Delaware County Clerk’s
Office included a note in the supplemental certified record indicating the
transcripts are for use in all three appeals of Appellant and his two co-
defendants.


_________________________

*Retired Senior Judge assigned to the Superior Court.
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walking home in West Philadelphia. The victim was fifteen years old at the

time.     At one point, a car pulled up in front of her.   The victim claims

codefendants Eddie Johnson and Alfred Kulah emerged from the vehicle and

physically forced her into the car.    Forty-one-year-old Appellant was the

driver.    Appellant and codefendants took the victim to their apartment in

Upper Darby, where all three men took turns having sex with her. On the

following day, September 29, 2012, Appellant took the victim to another

apartment, where she took a shower.         Afterwards, Appellant drove the

victim to McDonald’s to get food before returning to Appellant and

codefendants’ apartment. The victim said Appellant subsequently attempted

to have the victim perform oral sex on him but she refused. Appellant and

the victim then had “regular sex.”     The victim claimed all of the sexual

activity with Appellant and codefendants was against her will.       On the

morning of September 30, 2012, Appellant was watching television in the

same room as the victim. Appellant then left the room. The victim said it

was the first time Appellant and codefendants left her alone since they had

abducted her.     The victim claims she waited approximately five minutes

before she ran out of the apartment and called her father, who ultimately

found the victim and brought her to a hospital.

        The Commonwealth charged Appellant in its amended information with

rape, statutory sexual assault, kidnapping, and conspiracy.     Following an

eight-day trial, a jury convicted Appellant of one count of statutory sexual


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assault. On April 16, 2014, Appellant filed a post-trial motion for judgment

of acquittal, which the court denied on May 16, 2014. On June 20, 2014,

the court sentenced Appellant to a term of incarceration of one (1) year less

one (1) day to two (2) years less one (1) day, followed by seven (7) years of

probation. Appellant filed a timely notice of appeal on July 18, 2014. The

court ordered Appellant to file a concise statement of errors complained of

on appeal per Pa.R.A.P. 1925(b); Appellant timely complied.

      Appellant raises the following issues for our review:

         WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE
         ALL THE ELEMENTS OF THE CRIME OF STATUTORY SEXUAL
         ASSAULT BEYOND A REASONABLE DOUBT WHERE THE
         COMMONWEALTH FAILED TO PRESENT ANY TESTIMONY
         OR OTHER PROOF THAT THE VICTIM WAS SEXUALLY
         PENETRATED.

         WHETHER THE COURT ERRED IN DENYING APPELLANT’S
         REQUESTED JURY INSTRUCTION REGARDING THE
         DEFENSE THEORY OF “MISTAKE AS TO AGE” UNDER 18
         PA.C.S.A. § 3102.

(Appellant’s Brief at 7).

      In his first issue, Appellant argues the Commonwealth’s evidence

vaguely established that Appellant and the victim engaged in some sort of

sexual activity that resulted in ejaculation. Appellant contends the victim’s

testimony, and Appellant’s statement to the police, did not describe the

specific nature of the sexual activity, i.e., whether penetration occurred.

Appellant asserts the victim’s statements in two police reports were admitted

for impeachment purposes only and cannot be used as substantive evidence


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that Appellant and the victim had statutorily defined sexual intercourse.

Appellant concludes the evidence was insufficient to support his conviction

for statutory sexual assault. We disagree.

      The following principles of review apply to a challenge to the

sufficiency of evidence:

          The standard we apply in reviewing the sufficiency of the
          evidence is whether viewing all the evidence admitted at
          trial in the light most favorable to the verdict winner, there
          is sufficient evidence to enable the fact-finder to find every
          element of the crime beyond a reasonable doubt. In
          applying [the above] test, we may not weigh the evidence
          and substitute our judgment for the fact-finder.            In
          addition, we note that the facts and circumstances
          established by the Commonwealth need not preclude every
          possibility of innocence.        Any doubts regarding a
          defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain
          its burden of proving every element of the crime beyond a
          reasonable doubt by means of wholly circumstantial
          evidence. Moreover, in applying the above test, the entire
          record must be evaluated and all evidence actually
          received must be considered. Finally, the [finder] of fact
          while passing upon the credibility of witnesses and the
          weight of the evidence produced, is free to believe all, part
          or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      The Crimes Code sets forth the elements of first-degree felony

statutory sexual assault as follows:

          § 3122.1. Statutory sexual assault

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                                 *    *    *

         (b) Felony of the first degree.—A person commits a
         felony of the first degree when that person engages in
         sexual intercourse with a complainant under the age of 16
         years and that person is 11 or more years older than the
         complainant and the complainant and the person are not
         married to each other.

18 Pa.C.S.A. § 3122.1(b). The Crimes Code defines “sexual intercourse” as

follows: “In addition to its ordinary meaning, includes intercourse per os or

per anus, with some penetration however slight; emission is not required.”

Id. § 3101. The term “sexual intercourse” encompasses vaginal, oral, and

anal sex. Commonwealth v. Kelley, 569 Pa. 179, 186-88, 801 A.2d 551,

555-56 (2002). Further, “circumstantial evidence may be used to prove the

element of penetration.” Commonwealth v. Stambaugh, 512 A.2d 1216,

1219 (Pa.Super. 1986).

      Instantly, at the time of the events in question, Appellant was forty-

one years old and the victim was fifteen years old. The victim repeatedly

testified at trial that Appellant had “sex” with her.   The victim stated that

after Appellant and codefendants initially took her to the apartment, they

placed her on a bed; and Appellant “started having sex with [her].” (N.T.

Trial, 3/27/14, at 43.) The victim stated Appellant and codefendants “took

their turns” having sex with her. Id. The victim testified that the following

day, Appellant “had sex with [her] again.” Id. at 48. The victim specified

that Appellant “tried to make [her] have oral sex with him,” but when she


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resisted, they instead had “regular sex.” Id. at 52-53. The jury could infer

that “regular sex,” as distinguished from oral sex, referred to vaginal

intercourse.   Additionally, Detective Brad Ross, who interviewed Appellant

following the incident, testified that Appellant admitted he had sex with the

victim. Appellant denied having anal sex with the victim but told Detective

Ross that the victim did in fact perform “oral sex” on Appellant. (N.T. Trial,

3/31/14, at 78.) Thus, the testimony of the victim and Detective Ross was

sufficient for the jury to conclude that Appellant’s sexual activity with the

victim resulted in “penetration, however slight.” See 18 Pa.C.S.A. § 3101;

Jones, supra. Therefore, Appellant’s conviction for statutory sexual assault

was supported by sufficient evidence.

      In his second issue, Appellant argues he reasonably believed the

victim was at least sixteen years old at the time of the incident. Appellant

asserts two witnesses, who saw the victim in the company of Appellant,

testified to their belief that the victim was at least eighteen or twenty years

old. Appellant also avers a large photograph of the victim was admitted into

evidence, which showed the jury what the victim looked like around the time

of the incident. Appellant claims this evidence justified a jury instruction on

the “mistake of age” defense.     Appellant contends the trial court wrongly

determined Appellant was not entitled to that instruction because he

presented no evidence regarding his personal belief as to the victim’s age.

Appellant concludes the court’s refusal to charge the jury on the mistake of


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age defense entitles him to a new trial. We disagree.

      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011) (quoting

Commonwealth v. Galvin, 603 Pa. 625, 651, 985 A.2d 783, 798-99

(2009)).      “The trial court has broad discretion in formulating jury

instructions, as long as the law is presented to the jury in a clear, adequate,

and accurate manner.”        Commonwealth v. Lukowich, 875 A.2d 1169,

1174 (Pa.Super. 2005), appeal denied, 584 Pa. 706, 885 A.2d 41 (2005).

           The law is well settled that a trial court is not obligated to
           instruct a jury upon legal principles which have no
           applicability to the presented facts. There must be some
           relationship between the law upon which an instruction is
           requested and the evidence presented at trial. However, a
           defendant is entitled to an instruction on any recognized
           defense which has been requested, which has been made
           an issue in the case, and for which there exists evidence
           sufficient for a reasonable jury to find in his or her favor.

Commonwealth v. Bohonyi, 900 A.2d 877, 883 (Pa.Super. 2006), appeal

denied, 591 Pa. 679, 917 A.2d 312 (2007) (citation omitted) (holding trial

counsel was not ineffective for failing to request “mistake of age” charge

where defendant failed to present any evidence in support of mistake of age

defense upon which jury could have found in his favor).

      Section 3102 of the Crimes Code sets forth the mistake of age defense

as follows:


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         § 3102. Mistake as to age

         Except as otherwise provided, whenever in this chapter the
         criminality of conduct depends on a child being below the
         age of 14 years, it is no defense that the defendant did not
         know the age of the child or reasonably believed the child
         to be the age of 14 years or older. When criminality
         depends on the child’s being below a critical age older than
         14 years, it is a defense for the defendant to prove by a
         preponderance of the evidence that he or she reasonably
         believed the child to be above the critical age.

18 Pa.C.S.A. § 3102.

      Instantly, Appellant cites the following evidence to support a mistake

of age defense. Jayren Kutuakoi testified that he was living with Appellant

and codefendants at the Upper Darby apartment during the weekend in

question. Mr. Kutuakoi stated he saw the victim in the apartment and she

appeared to be between twenty and twenty-five years old. Another defense

witness, Sekou Mamoud, testified that Appellant drove the victim to Mr.

Mamoud’s apartment on September 29, 2012, to use the shower because

Appellant’s apartment had no hot water. Mr. Mamoud stated that the victim

appeared to be at least eighteen years old. Additionally, a photograph of the

victim was admitted in evidence.      The victim confirmed the photograph

showed what she looked like around the time of the incident.            Notably,

however, Appellant failed to present any evidence of his personal belief as to

the victim’s age.   Appellant also points to no evidence introduced by the

Commonwealth concerning his personal belief.         Section 3102 required

Appellant to prove by a preponderance of the evidence that he, not


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somebody else, reasonably believed the victim was above the threshold age.

See id. Appellant’s evidence—a photograph of the victim and other people’s

subjective impressions of the victim’s appearance—would be relevant to a

reasonableness determination but was insufficient to warrant a mistake of

age instruction in the absence of any evidence of Appellant’s own belief

regarding the victim’s age. Evidence of Appellant’s actual subjective belief

was completely lacking.3

       Appellant did not have to testify as to his subjective belief to raise a

mistake of age defense but he did need to produce some evidence of that

belief.   The court acknowledged near the end of trial that the evidence of

Appellant’s personal belief could have come from other sources:

          [I]f you do not get on the stand and testify to what you
          personally believed, and it has to…be you reasonably
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3
  Appellant analogizes the defense of mistake of age to self-defense, which
also concerns an actor’s “reasonable belief,” to argue that evidence of a
defendant’s reasonable belief may come from a source other than the
defendant’s own testimony. Appellant is correct on that limited point but
fails to recognize that in the context of self-defense, our Supreme Court has
explicitly stated “reasonable belief” has two components: (1) the actor’s
subjective belief; and (2) the objective reasonableness of that belief.
Evidence of both is required. See Commonwealth v. Mouzon, 617 Pa.
527, 551, 53 A.3d 738, 752 (2012) (stating: “The requirement of a
reasonable belief encompasses two aspects, one subjective and one
objective. First, the defendant ‘must have acted out of an honest, bona fide
belief that he was in imminent danger,’ which involves consideration of the
defendant’s subjective state of mind. Second, the defendant’s belief that he
needed to defend himself with deadly force, if it existed, must be reasonable
in light of the facts as they appeared to the defendant, a consideration that
involves an objective analysis”). Thus, Appellant’s analogy to the law of
self-defense undermines his own argument.



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        believe[d] that the alleged victim in this case was over 16
        years of age. Unless you do that,… I will not read the
        [mistake of age] instruction. I will not read this. This is
        what I would ordinarily read if you got on the stand and
        said—and testified to the fact that…when I met this girl,
        and I’m going to follow up on this, through conversation I
        had with her and other surrounding circumstances
        around—I reasonably believed that she was over 16 years
        of age. There are other ways to do it, and I’m not
        saying this exists. There could have been a showing
        you of a phony ID card. It’s not in evidence. There’s
        nothing in evidence here and it’s never been talked
        about or other ways that you could have reasonably
        believed but we don’t have that and…the [c]ourt is
        ruling that unless we [have] it from you, evidence of that
        nature, you will not get the following charge that has
        previously been requested of this [court]…to give this
        jury….

(N.T. Trial, 4/2/14, at 202-03) (emphasis added).     Absent evidence from

any source that Appellant personally believed the victim was at least sixteen

years old, the court properly denied Appellant’s request for a mistake of age

jury instruction. See 18 Pa.C.S.A. § 3102; Bohonyi, supra. Based on the

foregoing, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2015




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