J-A19022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


                       v.

BREHON LA-VAAN RAWLINGS

                            Appellant                       No. 1597 EDA 2015


             Appeal from the Judgment of Sentence March 9, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002086-2013


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                 FILED NOVEMBER 17, 2016

        Brehon La-Vaan Rawlings appeals from the judgment of sentence

entered March 9, 2015, in the Delaware County Court of Common Pleas.

The trial court imposed an aggregate sentence of 25 to 50 years’

imprisonment      following    Rawlings’s      jury   conviction   of   rape,   robbery,

kidnapping, criminal conspiracy,1 and related charges for his participation in

the kidnapping and sexual assault of the victim on Christmas night in 2012.

On appeal, Rawlings challenges the trial court’s denial of his pre-trial motion

to suppress the victim’s out-of-court identification and his confession to

police, his challenge to the weight and sufficiency of the evidence supporting
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    See 18 Pa.C.S. §§ 3121, 3701(a)(1)(ii), 2901(a)(3), and 903, respectively.
J-A19022-16



his convictions, and his post-sentence motion for a new trial based upon a

Brady2 violation.3 For the reasons below, we affirm.

        The facts underlying Rawlings’s conviction, as gleaned from the trial

transcript, are as follows.      At approximately 11:30 p.m. on December 25,

2012, the victim was sitting alone in her car in the parking lot of George’s

Water Ice on Marshall Road in Upper Darby, Pennsylvania. She was looking

at her cell phone when three unknown black men approached her car door

and put a gun to the window.            The victim described the man holding the

gun, later identified as Rawlings, as wearing a blue hooded sweatshirt with

“Aero” written on the front and carrying a backpack.         She also stated he

wore tan gloves and a mask that covered the lower half of his face, although

she was able to see his eyes and his complexion.4 See N.T., 11/5/2014, at

89-92, 113.

        When the victim tried to leave the car, Rawlings hit her in the face

with the butt of the gun and told her to “move over.” Id. at 92. He forced

her into the passenger seat, and sat in the driver’s seat. The other two men

____________________________________________


2
    Brady v. Maryland, 373 U.S. 83 (1963).
3
    We have reordered Rawlings’s issues on appeal for purposes of disposition.
4
  While she was able to see her attackers during the first few minutes of the
ordeal, the victim acknowledged that shortly after the men entered her car,
she pulled her hooded sweatshirt over her face and cinched it so they would
think she did not see their faces. See N.T., 11/5/2015, at 138.




                                           -2-
J-A19022-16



entered the back seat of the car. The victim described one attacker, later

identified as co-defendant Kewon Matthews, as a dark-skinned male,

wearing a scarf around the lower part of his face, and a hooded sweatshirt

and jacket. She described the other male, later identified as co-defendant

Kevin Jones, as having very light skin, and copper-brown hair.5 See id. at

92-95.

       Rawlings demanded money from the victim. When she told him she

had no cash, he started driving towards Cobbs Creek, intending to have her

withdraw money from an account using one of her debit or credit cards.

See id. at 95-97.         About 20 minutes later, Rawlings pulled over and

Matthews moved to the front passenger seat, forcing the victim into the

back seat with Jones. See id. at 99-100. Jones told the victim she “was

going to have to perform oral sex on all of them if [she] ever wanted to see

[her] daughter again.” Id. at 100. He then forced her to perform oral sex

on him, while Matthews held the gun to her head. The victim stated that

she repeatedly vomited, causing Jones to briefly stop, and then force her to

continue again. At some point, Rawlings pulled the car over, and Matthews

____________________________________________


5
  Both Jones and Matthews entered guilty pleas, and testified for the
Commonwealth at Rawlings’s trial. Jones’s account of the incident largely
corroborated the victim’s testimony. See N.T., 11/5/2014, at 226-244.
Matthews’s statement to police corroborated the victim’s account, but he
denied making that prior statement at Rawlings’s trial.       See N.T.,
11/7/2014, at 156-166.




                                           -3-
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and Jones switched seats. See id. at 100-101. Matthews then forced the

victim to perform oral sex on him, while Jones held the gun to her head.

The victim continued to vomit, forcing Matthews to stop and start again.

See id. at 101-102. Finally, Rawlings pulled off the road again, and he then

entered the back seat, while Jones drove the car. Rawlings, too, forced the

victim to perform oral sex, however, when she continued to vomit, he

“pulled [her] pants down and raped [her] vaginally.”6 Id. at 102-103. She

claimed he told her, “You’re the first white girl I’ve ever had.” Id. at 103.

The victim stated Rawlings attempted to enter her anally, but he stopped

when she cried. See id. at 103-104.

       The men continued to drive around for several hours. They used the

victim’s cell phone to make calls, and stopped to purchase marijuana. The

victim stated: “At one point, they were smoking marijuana and asked me if

I were to smoke [it] if it would calm me the F down.”       Id. at 104.   She

refused.    They also forced her to speak briefly to her mother, who kept

calling her cell phone to find out where she was. See id. 105-106.

____________________________________________


6
  At trial, the victim testified she was unsure whether or not Rawlings wore a
condom, or ejaculated while he raped her. See N.T., 11/5/2014, at 115-
116, 157. However, Rawlings introduced into evidence a Rape Information
Sheet, completed by the investigating officer, which indicated the victim
stated Rawlings did not use a condom and did ejaculate when he vaginally
raped her. See id. at 157-160, Exhibit D-1, Rape Information Sheet, dated
12/26/2012. See also N.T., 11/7/2014, at 5, Exhibit C-26, Sexual Assault
Nurse Examiner (SANE) Notes, dated 12/26/2012 (victim reported assailant
ejaculated vaginally).



                                           -4-
J-A19022-16



       At approximately 5:00 a.m., the victim smelled kerosene and saw the

men wiping down the inside of her vehicle.      Before leaving, Rawlings told

her:

       [W]e’ve had a fun night. If you go to the police, we will kill you
       and your family and then he said now you can go home and take
       care of your kid and we’ll throw the keys under the car.

Id. at 111. The three assailants then left the scene with her Coach handbag

and wristlet, containing her credit cards and identification, her cell phone,

camera, GPS, and various items of jewelry. After waiting a short time until

she believed it was safe, the victim retrieved her keys and drove to a nearby

gas station to call her boyfriend.   See id. at 111-112.     When he did not

answer the call, she drove to his house. After the victim told him about the

ordeal, her boyfriend drove her directly to the police station.    See id. at

117-118.

       While the victim was at the police station, the officers received a

report of a disturbance at a home on Radbourne Road in Upper Darby. The

female homeowner reported she overheard “some kind of argument …

between her son and his friends and they said something about there being

a gun.” Id. at 200. When the officers arrived, the homeowner let them in

the house and they encountered four young males, one sleeping on the

couch and three others downstairs in her son’s room. The homeowner also




                                     -5-
J-A19022-16



told the officers that one other male had left with a bag before they arrived.7

The homeowner then asked the officers to go downstairs and look for a gun.

Although they did not recover a gun, they did find a Coach purse that

seemed out of place in a boy’s bedroom. See id. at 201-202.

       After confirming with the homeowner that the purse did not belong to

her, the officers sent a photo of the handbag to headquarters to see if it

matched the purse stolen from the rape victim.            The victim identified the

purse as the one stolen from her earlier that evening, and the police

transported her to the Radbourne Road address to see if she could identify

any of the four males as her attackers.          When the victim arrived, the police

brought out the men one at a time, and the victim positively identified

Jones8 and Matthews, as two of the three men who kidnapped and assaulted

her. She stated the other two young men were not involved.               See id. at

202-206.

       Both Jones and Matthews, who were 17 years old at the time of the

incident, were arrested and provided statements to the police admitting their

____________________________________________


7
  See N.T., 11/6/2014, at 87-88.      Both Jones and Mary Novoa, the
homeowner, identified Rawlings was the male who left the home before the
police arrived. See N.T., 11/5/2014, at 248-249; N.T., 11/7/2014, at 85-
86.
8
  Jones was wearing a scarf that matched the description provided by the
victim. One officer noticed Jones tried to discard the scarf when they
brought him out of the house for the show-up identification. See N.T.,
11/6/2014, at 91.



                                           -6-
J-A19022-16



involvement in the kidnapping, sexual assault, and robbery of the victim.

During the interview, Jones implicated Rawlings, whom he knew as “Bre.”

Id. at 261. He also took the officers to Rawlings’s home. Id. Thereafter,

the police created a black and white photo array of Rawlings and seven other

men with similar facial characteristics to show to the victim on the evening

of December 26, 2012. Without prompting, the victim positively identified

Rawlings as the man who vaginally raped her. See N.T., 11/6/2014, at 125-

127, 247-249. See also N.T., 10/25/2013, at 100 (victim testifying during

the suppression hearing that she was “[p]ositive” the man she identified in

the photo array was one of her attackers).

       The police subsequently obtained both an arrest warrant for Rawlings

and a search warrant for his home. When they executed the warrants, they

recovered the black backpack, mask, and tan gloves he used during the

robbery.     See N.T., 11/6/2014, at 128-129, 136-138.       Rawlings later

provided a statement to police admitting his involvement in the crime.9 See

id. at 269-272. During a break in the interview, he led police to a property

in East Lansdowne where he hid the gun used in the incident.10 See id. at

274-276.


____________________________________________


9
  In his signed statement, Rawlings admitted he used a condom when he
assaulted the victim. See N.T., 11/6/2014, at 271.
10
   The officer who accompanied Rawlings testified the gun was secreted
inside a used Cheetos bag that was hidden under leaves. Id. at 274-275.
(Footnote Continued Next Page)


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J-A19022-16



      Rawlings was subsequently arrested and charged with 40 crimes

including rape, robbery, kidnapping, and criminal conspiracy.            He filed a

pretrial   motion       seeking     suppression   of   the   victim’s   out-of-court

identification, as well as his statement to police.           Following a hearing

conducted on October 25, 2013, the court denied the suppression motion.

The case proceeded to a jury trial on November 3, 2014. Prior to trial, both

Jones and Matthews entered guilty pleas and both, consequently, testified

for the Commonwealth at Rawlings’s trial. On November 19, 2014, the jury

returned a verdict of guilty on all charges, namely, robbery of a motor

vehicle, rape, kidnapping, robbery, involuntary deviate sexual intercourse,

theft, indecent assault, terroristic threats, possession of a weapon, and five

counts of criminal conspiracy.11

      On March 9, 2015, Rawlings was sentenced to an aggregate term of 25

to 50 years’ imprisonment, followed by five years’ probation. 12          On March
                       _______________________
(Footnote Continued)

The officer emphasized the police would not have found the gun if Rawlings
had not led them there because “[t]he bag was not visible.” Id. at 275.
11
  See 18 Pa.C.S. §§ 3702(a), 3121(a), 2901(a)(3), 3701(a)(1)(ii), 3123(a),
3912(a), 3126(a)(2), 2706(a)(1), 907(b), and 903, respectively.
12
   The court imposed the following consecutive standard range sentences:
(1) rape, 72 to 144 months’ imprisonment; (2) robbery, 48 to 96 months’
imprisonment; (3) IDSI, 72 to 144 months’ imprisonment; (4) kidnapping,
48 to 96 months’ imprisonment; (5) conspiracy (rape), 60 to 120 months’
imprisonment; and (6) possession of a weapon, five years’ probation. The
trial court imposed concurrent terms of 36 to 72 months’ incarceration for
robbery of a motor vehicle, and six to 12 months’ incarceration for terroristic
threats. All of the remaining charges merged for sentencing purposes. We
(Footnote Continued Next Page)


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J-A19022-16



19, 2015, he filed two post-sentence motions, one seeking to reduce his

sentence, and the other challenging the weight of the evidence supporting

the verdict and seeking a new trial based on after-discovered evidence.

Following a hearing, the court amended Rawlings’s sentence so that his

probationary term for terroristic threats would run concurrently with his

prison term. In all other respects, the court denied Rawlings’s post-sentence

relief. This timely appeal followed.13

      In his first issue, Rawlings contends the trial court erred in denying his

motion to suppress the victim’s out-of-court identification. Rawlings argues

the photo array the police showed to the victim was “unduly suggestive”

since Rawlings was the only person in the array wearing a hooded

sweatshirt. Rawlings’s Brief at 24. He insists his “unique attire, matching

the type of shirt worn by the complainant’s attacker on Christmas night,

made his photograph stand out more than the others contained in the

array.” Id. at 23. Because the victim only saw a portion of her attacker’s

face, late at night, for a brief period, Rawlings argues the suggestiveness of
                       _______________________
(Footnote Continued)

also note the Sexual Offenders Assessment Board determined Rawlings did
not meet the criteria for classification as a sexually violent predator under
the Sexual Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S.
§§ 9799.10-9799.41. See N.T., 3/9/2015, at 4.
13
   On May 27, 2015, the trial court ordered Rawlings to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Rawlings complied with the court’s directive, and after receiving an
extension of time, filed a concise statement on September 11, 2015.




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the identification procedure “created a substantial likelihood for irreparable

misidentification.” Id. at 24. Moreover, because the search warrant for his

home was prepared based on the victim’s identification, he further asserts

the warrant was “constitutionally defective and invalid.” Id. at 26.

      Our review of an order denying a motion to suppress is well-

established:

      We 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. Where the
      record supports the factual findings of the trial court, we are
      bound by those facts and may reverse only if the legal
      conclusions drawn therefrom are in error.

      An appellate court, of course, is not bound by the suppression
      court’s conclusions of law. However, it is within the suppression
      court’s sole province as factfinder to pass on the credibility of
      witnesses and the weight to be given their testimony.

Commonwealth v. Davis, 17 A.3d 390, 393 (Pa. Super. 2011) (citation

omitted), appeal denied, 29 A.3d 371 (Pa. 2011).

      When considering a challenge to a photo array,

      [o]ur Supreme Court has instructed that a photographic
      identification is unduly suggestive if, under the totality of the
      circumstances, the identification procedure creates a substantial
      likelihood of misidentification. Commonwealth v. DeJesus,
      580 Pa. 303, 860 A.2d 102, 112 (2004) (citation omitted).

         Whether an out-of-court identification is to be suppressed
         as unreliable, and therefore violative of due process, is
         determined from the totality of the circumstances. We will
         not suppress such identification unless the facts
         demonstrate that the identification procedure was so
         impermissibly suggestive as to give rise to a very
         substantial likelihood of irreparable misidentification.



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J-A19022-16


     Commonwealth           v.    Burton,    770   A.2d   771,    782
     (Pa.Super.2001) (citations and quotations omitted)[, appeal
     denied, 868 A.2d 1197 (Pa. 2005), and overruled on other
     grounds, Commonwealth v. Mouzon, 812 A.2d 617 (Pa.
     2002)]. The variance between the photos in an array does not
     necessarily establish grounds for suppression of a victim’s
     identification. Id. “Photographs used in line-ups are not unduly
     suggestive if the suspect’s picture does not stand out more than
     those of the others, and the people depicted all exhibit similar
     facial characteristics.” Commonwealth v. Fisher, 564 Pa. 505,
     769 A.2d 1116, 1126 (2001). “[E]ach person in the array does
     not have to be identical in appearance.” Burton, 770 A.2d at
     782. The photographs in the array should all be the same size
     and     should     be     shot   against   similar  backgrounds.
     Commonwealth v. Thomas, 394 Pa.Super. 316, 575 A.2d 921
     (1990).

Commonwealth v. Kendricks, 30 A.3d 499, 504 (Pa. Super. 2011), appeal

denied, 46 A.3d 716 (Pa. 2012).

     Here, the trial court found the photo array prepared by the police was

not unduly suggestive. The court opined:

            [Upper Darby Police Detective Brad Ross] generated a
     random computer photographic array through the Pennsylvania
     Justice Network [(JNET)] that contained photographs of eight
     black men who appeared to be of similar age and had similar
     facial features and facial hair as [Rawlings]. The victim selected
     [Rawlings’s] picture quickly without prompting.            At the
     suppression      hearing,   [Detective]    Ross’ testimony    was
     uncontradicted. [Rawlings] presented no evidence or testimony
     that would establish that the identification procedure was so
     impermissibly suggestive as to give rise to a very substantial
     likelihood of irreparable misidentification.

                                  ****

           Here, [Rawlings’s] picture does not stand out from the
     other pictures in the photographic array; thus, there was no
     substantial likelihood of misidentification.

Order Denying Motion to Suppress and for Severance, 12/4/2013, at 12.



                                   - 11 -
J-A19022-16



       Upon our review of the record, we find no reason to disagree with the

trial court. Upper Darby Police Detective Brad Ross testified he used JNET to

randomly place Rawlings’s photo among photos of seven other young men.

See N.T., 10/25/2013, at 112. All of the men in the black and white photo

array are of comparable age, with similar hair and facial characteristics. See

id. at Exhibit CS-1, photo array. Although Rawlings appears to be the only

suspect wearing a hooded sweatshirt, that fact alone is not controlling. See

Burton, supra, 770 A.2d at 782 (defendant’s assertion that he was the only

person in the photo array wearing a white t-shirt, the attire worn by the

perpetrator, did not make the array unduly suggestive when all of the men

in the array were close in age, “with short haircuts and facial hair,” and

wearing light colored t-shirts, and one was wearing a white turtleneck).

Further, the victim testified that when the officers showed her the photo

array,    they    simply    asked    her    “if   anybody   looked   familiar.”     N.T.,

10/25/2013, at 100.             She stated she identified Rawlings, and she was

“positive” of the identification. Id. Because we agree Rawlings has failed to

demonstrate the identification procedure was “so impermissibly suggestive

as   to    give    rise    to    a   very    substantial    likelihood   of   irreparable

misidentification,” Rawlings’s first issue warrants no relief.14                  Burton,

supra, 770 A.2d at 782.

____________________________________________


14
  Likewise, because we conclude the photo array was not unduly suggestive
and the victim’s identification of Rawlings was, therefore, proper, we need
(Footnote Continued Next Page)


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      Next, Rawlings argues the trial court also abused its discretion when it

denied his motion to suppress his confession. Our review of the admissibility

of a defendant’s confession is well-settled:

             A    confession    obtained    during   a   custodial
             interrogation is admissible where the accused’s right
             to remain silent and right to counsel have been
             explained and the accused has knowingly and
             voluntarily waived those rights.       The test for
             determining the voluntariness of a confession and
             whether an accused knowingly waived his or her
             rights looks to the totality of the circumstances
             surrounding the giving of the confession.

          Commonwealth v. Jones, 546 Pa. 161, 170, 683 A.2d
          1181,     1189  (1996)   (citations   omitted).    ‘The
          Commonwealth bears the burden of establishing whether a
          defendant knowingly and voluntarily waived his Miranda
          ‘rights.’ Commonwealth v. Bronshtein, 547 Pa. 460,
          464, 691 A.2d 907, 913 (1997) (citation omitted).

      Commonwealth v. Davis, 861 A.2d 310, 317 (Pa.Super.2004),
      appeal denied, 582 Pa. 708, 872 A.2d 171 (2005).

          When deciding a motion to suppress a confession, the
          touchstone inquiry is whether the confession was
          voluntary. Voluntariness is determined from the totality of
          the circumstances surrounding the confession.          The
          question of voluntariness is not whether the defendant
          would have confessed without interrogation, but whether
          the interrogation was so manipulative or coercive that it
          deprived the defendant of his ability to make a free and
          unconstrained decision to confess. The Commonwealth
          has the burden of proving by a preponderance of the
          evidence that the defendant confessed voluntarily.

                       _______________________
(Footnote Continued)

not address Rawlings’s contention that the probable cause affidavit
supporting the search warrant of his home was tainted by the improper
identification. See Rawlings’s Brief at 24-27.



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J-A19022-16


      Commonwealth v. Nester, 551 Pa. 157, 162–163, 709 A.2d
      879, 882 (1998) (citations and footnote omitted).

         When assessing voluntariness pursuant to the totality of
         the circumstances, a court should look at the following
         factors: the duration and means of the interrogation; the
         physical and psychological state of the accused; the
         conditions attendant to the detention; the attitude of the
         interrogator; and any and all other factors that could drain
         a person’s ability to withstand suggestion and coercion.

      Id. at 164, 709 A.2d at 882 (citations omitted).          “The
      determination of whether a confession is voluntary is a
      conclusion of law and, as such, is subject to plenary review.”
      Commonwealth v. Templin, 568 Pa. 306, 310, 795 A.2d 959,
      961 (2002), citing Nester, supra.

Commonwealth v. Harrell, 65 A.3d 420, 433–434 (Pa. Super. 2013),

appeal denied, 101 A.3d 785 (Pa. 2014).

      In the present case, Rawlings contends his confession was involuntary

based upon the five factors listed above.      With regard to the first factor

(duration and means of interrogation), he argues that while the interrogation

lasted only “slightly over an hour,” he denied all involvement in the robbery

and sexual assault for the first ten to fifteen minutes until he was pressured

by Detective Ross to confess.   Rawlings’s Brief at 29.    He notes his initial

denials were not included in the statement, and he provided only one-word

answers when he finally acknowledged his involvement. Id. With regard to

the second factor (physical and psychological state of accused), Rawlings

emphasizes he was only 19 years old, and had been forcefully removed from

his home, where the police broke down his front door, before being

transported to the station. See id.




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        Rawlings asserts the third factor (conditions attendant to detention)

also “strikes against the voluntariness of [his] confession.” Id. at 30. He

explains he was alone in the police station after being “forced from his

home” and informed “that people he knew were now implicating him in the

crime” and the victim had identified him.          Id. Moreover, with regard to the

fourth factor (attitude of the interrogator), Rawlings insists Detective Ross

“had no interest in hearing [his] denial about his involvement in the robbery

and rape of the [victim].”        Id.     Indeed, Rawlings described himself as a

“[p]sychologically distraught” 19-year old who tried to explain to the

detective that he was not involved in the incident. Id. at 31. However, he

claims when his denials “f[e]ll on deaf ears, [he] felt he had no choice but to

confess to the crimes charged.” Id. at 31.

        The suppression court did not credit Rawlings’s testimony about the

custodial interrogation.       Based on the judge’s 53 Findings of Fact, she

concluded as a matter of law that Rawlings was provided with his Miranda15

warnings, which he knowingly and voluntarily waived. See Order Denying

Motion to Suppress and for Severance, 12/4/2013, at 1-13. The court noted

Rawlings “is an adult and had familiarity with the criminal justice system.”

Id. at 13. Further, the trial court opined:

              The ensuing interview was neither long nor overbearing,
        lasting a little over an hour. There is nothing in the record to
____________________________________________


15
     Miranda v. Arizona, 384 U.S. 436 (1966).



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J-A19022-16


       indicate the relentless grilling generally associated with coercive
       questioning. Rawlings gave absolutely no indication during the
       interview that he was unable to comprehend his rights or the
       significance of his waiver; he was not under the influence of
       drugs or alcohol; he was never denied food, drink, or the use of
       a bathroom; and he appeared cooperative.

              Finally, Rawlings’s statement itself amply demonstrated his
       ability to answer all questions put to him, concerning both his
       rights and the circumstances of the crime, in an intelligent,
       responsive fashion, demonstrating that he had sufficient
       perception and intelligence to appreciate his rights and the
       significance of his waiver. Additionally[,] Rawlings testified at
       the suppression hearing.        On examination by his attorney,
       Rawlings admitted that the gun he led police to was the gun
       used in the incident.[16]

Id.

       Our review of the record reveals no basis to disturb the ruling of the

trial court.   During the suppression hearing, Detective Ross acknowledged

that before he began questioning Rawlings, he explained to Rawlings why he

was arrested, that is, both his co-defendants and the victim identified

Rawlings as the third assailant.        See N.T., 10/25/2013, at 149.   Although

Rawlings initially denied his involvement, Detective Ross stated the denial

was short-lived, noting, “I think maybe we went back and forth for 10

minutes, maybe.” Id. Moreover, the detective testified he did not bring his

firearm into the interview, and Rawlings was not handcuffed.        See id. at

151. Further, Detective Ross also denied ever telling Rawlings he could go


____________________________________________


16
   See N.T., 10/25/2013, at 241-242 (Rawlings admitting the gun he led the
officers to was “the gun that was used” in the crime).



                                          - 16 -
J-A19022-16



home if he confessed or that things would be easier for him if he admitted

his involvement in the incident. See id. at 159.

       While we recognize Rawlings’s testimony differed from the detective’s

testimony,17 we remind him “it is the suppression court’s prerogative to pass

on the credibility of the witnesses and the weight to be given to their

testimony.” Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super.

2014), appeal denied, 106 A.3d 724 (Pa. 2014).                   Because the court’s

findings are supported by the record, and its legal conclusions are correct,

Rawlings is entitled to no relief on his second issue.

       In his next claim, Rawlings challenges the sufficiency of the evidence

supporting his conviction. Specifically, he argues “the Commonwealth failed

to provide evidence at trial that was sufficient to enable the jury to find that

[he] was the third attacker beyond a reasonable doubt.”            Rawlings’s Brief at

35.

       When     reviewing     the   sufficiency    of   the   evidence   supporting   a

conviction,



____________________________________________


17
    Specifically, Rawlings testified during the suppression hearing that the
officers who arrested him called him a “rapist” and banged his head against
the wall. See N.T., 10/25/2013, at 200. Further, he claimed Detective Ross
told him “if you didn’t confess you won’t see the day of light no more,” and
insisted the police had DNA and surveillance footage linking him to the
crime. Id. at 205. Rawlings also stated Detective Ross told him it would be
easier for him if he confessed to the crime, and that he was not entitled to a
lawyer since he was “grown.” Id. at 206, 209.



                                          - 17 -
J-A19022-16


      we consider whether the evidence presented at trial, and all
      reasonable inferences drawn therefrom, viewed in a light most
      favorable to the Commonwealth as the verdict winner, support
      the [fact finder’s] beyond a reasonable doubt. Commonwealth
      v. Murray, [623] Pa. [506], 83 A.3d 137, 150–51 (2013).
      Whether sufficient evidence exists to support the verdict is a
      question of law; thus, our standard of review is de novo and our
      scope of review is plenary. Id. at 151.

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014), cert. denied,

135 S. Ct. 1400 (U.S. 2015). Furthermore, “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[,]” and an appellate court will not

substitute its credibility determination for that of the jury. Commonwealth

v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007), cert. denied, 553 U.S. 1035

(2008).

      Preliminarily, we note that in his concise statement, Rawlings

presented this issue as follows: “The evidence was insufficient to support a

verdict of guilty on all the charges.”       Concise Statement of Matters

Complained of on Appeal, 9/11/2015, at ¶ 5.       Because Rawlings failed to

specify how the evidence was insufficient or “which element of the charges

the Commonwealth has failed to prove,” the trial court implied that we could

find this claim waived.     Trial Court Opinion, 10/14/2015, at 6.        See

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (finding

vague Rule 1925(b) statement was insufficient to preserve issue for appeal).

Nevertheless, rather than waiving the issue, the trial court discussed




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Rawlings’s sufficiency claim on the merits.   Accordingly, we too decline to

find Rawlings’s claim waived.

     The trial court addressed Rawlings’s sufficiency argument as follows:

     [T]here is overwhelming evidence supporting [Rawlings’s]
     convictions. The victim identified [Rawlings] from a photo array
     the day of the incident. The victim at trial also made a positive
     in-court identification of [Rawlings] as the male who approached
     her car with a weapon, hit her with the gun, shoved her into her
     car and then drove her car away with her in it. The victim
     thoroughly detailed [Rawlings’s] involvement in the crimes that
     night including his sexual assault and vaginal rape of her. The
     victim’s testimony was corroborated by the testimony of Kevin
     Jones, a co-defendant in this case. Mr. Jones admitted his
     involvement in these crimes and also testified about [Rawlings’s]
     involvement. The testimony of the victim and Mr. Jones was
     consistent as to what transpired that night and each actor’s
     involvement.

            Furthermore, [Rawlings] after his arrest provided a signed
     statement admitting his involvement in the crimes. During his
     initial interview by the [p]olice, [Rawlings] led them to a
     property in Upper Darby Township where he stated the gun used
     in the incident could be found on a lawn in a “Cheetos” bag. The
     police recovered the gun exactly where [Rawlings] said it was
     located. [Rawlings] testified at his suppression hearing. On
     examination by his attorney, [Rawlings] admitted that the gun
     he led police to was the gun used in the incident. Accordingly,
     [Rawlings’s] claims that the evidence was insufficient to support
     a verdict of guilty on all the charges is patently meritless.

Trial Court Opinion, 10/14/2016, at 7-8 (record citations omitted).

     On appeal, Rawlings does not contend the Commonwealth failed to

prove any of the specific elements of his convictions. Rather, he argues the

evidence was insufficient to prove he was the third assailant.        First, he

reiterates his claim that the photo array was suggestive and his confession

was involuntary. See Rawlings’s Brief at 35. As we have already concluded


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these claims are meritless, we need not address them again. See supra at

9-17.

        Second, he maintains both Jones and Matthews “had a material

interest in implicating [Rawlings] before and during trial.” Rawlings’s Brief

at 35. Notably, he states Matthews admitted he did not like Rawlings, and

Jones agreed to testify only in the hope of receiving a favorable plea deal.

Id.   The jury was well aware of the possible motives both Matthews and

Jones had for testifying against Rawlings. See N.T., 11/6/2014, at 21-23;

11/7/2014, at 172. As the finder of fact, the jury was permitted to believe

all, part, or none of the co-defendants’ testimony. Cousar, supra. Simply

because a witness had a motive to testify falsely does not render the

evidence insufficient. Here, the victim’s testimony and Rawlings’s confession

were more than sufficient to support the jury’s verdict.

        Third, Rawlings contends the victim’s testimony that he was the third

attacker is controverted by the physical evidence. He points to the victim’s

statement on the Rape Information Sheet, which indicates the rapist

ejaculated and did not wear a condom. See N.T., 11/5/2014, at 157-160,

Exhibit D-1, Rape Information Sheet, dated 12/26/2012. However, the

vaginal swabs from the victim’s rape kit produced none of Rawlings’s DNA.

Rawlings also emphasizes the police were never able to locate the distinctive

sweatshirt the third attacker wore, even though they recovered a black

backpack and face mask from Rawlings during his arrest.       See Rawlings’s

Brief at 36.    Moreover, one of the Commonwealth witnesses, who saw

                                    - 20 -
J-A19022-16



Rawlings both before and after the attack, described Rawlings as “wearing a

grey thermal shirt and red Nike jacket while carrying a green backpack.” Id.

See N.T., 11/7/2014, at 70-71.

      Nevertheless, despite these apparent inconsistencies, the jury was

presented with the victim’s positive identification of Rawlings, both Jones’s

and Matthews’s statements implicating Rawlings, and Rawlings’s own

statement admitting his culpability for the crimes.       Furthermore, Rawlings

led police to the exact spot where the gun used in the robbery was hidden.

The fact that none of his DNA was recovered from the victim’s clothing, the

sweatshirt he used in the crime was never found, and one witness testified

he was wearing different clothing is not dispositive. As this Court has often

stated:

      [T]he 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716, (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015).          See also id. at 721 (“The

victim’s   uncorroborated   testimony   is   sufficient   to   support   a   rape

conviction.”).   Accordingly, upon our review of the record, we agree with




                                   - 21 -
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the conclusion of the trial court that Rawlings’s sufficiency claim is

meritless.18

       Rawlings next argues the jury’s verdict was against the weight of the

evidence. Our review of a challenge to the weight of the evidence is well-

settled: 19

       A weight of the evidence claim concedes that the evidence is
       sufficient to sustain the verdict, but seeks a new trial on the
       ground that the evidence was so one-sided or so weighted in
____________________________________________


18
    Furthermore, to the extent Rawlings contends the evidence was
insufficient to support his conspiracy convictions, we again disagree.
Rawlings acknowledges the testimony of Jones and Raquan Burgess, if
believed, was sufficient to demonstrate he entered into an agreement to
commit robbery. See Rawlings’s Brief at 37-38. See also 18 Pa.C.S. §
903(a). However, he claims there was “no testimony presented regarding
any conspiratorial agreements to rob the [victim’s] motor vehicle, to rape
her, to commit involuntary deviate sexual intercourse with her, or to kidnap
her.” Rawlings’s Brief at 38. We remind Rawlings:

       The conspiratorial agreement can be inferred from a variety of
       circumstances including, but not limited to, the relation between
       the parties, knowledge of and participation in the crime, and the
       circumstances and conduct of the parties surrounding the
       criminal episode.

Commonwealth v. Feliciano, 67 A.3d 19, 26 (Pa. Super. 2013). Here, the
three cohorts specifically sought out a victim to rob, entered the victim’s car
together while pointing a gun at her, drove off in her car together, and took
turns sexually assaulting her while one of the others held a gun to her head.
Moreover, the victim testified Jones told her she “was going to have to
perform oral sex on all of them if [she] ever wanted to see [her] daughter
again.” N.T., 11/5/2014, at 100 (emphasis supplied). This evidence was
sufficient to establish the co-defendants entered into an agreement to
commit the crimes charged.
19
   We note Rawlings properly preserved his weight of the evidence challenge
in a timely filed post-sentence motion. See Pa.R.Crim.P. 607(A)(1).



                                          - 22 -
J-A19022-16


       favor of acquittal that a guilty verdict shocks one’s sense of
       justice. On review, an appellate court does not substitute its
       judgment for the finder of fact and consider the underlying
       question of whether the verdict is against the weight of the
       evidence, but, rather, determines only whether the trial court
       abused its discretion in making its determination.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations

omitted), cert. denied, 134 S.Ct. 1792 (U.S. 2014).

       Rawlings’s weight claim is a restatement of his prior arguments on

appeal. Namely, he asserts his confession was involuntary, and the victim’s

out-of-court identification was tainted by a suggestive photo array,

particularly since she admittedly saw his face for only a few minutes in the

dark before “she cinched the hood of her sweatshirt tightly around her face

to prevent her from seeing the attackers for the majority of the night.”

Rawlings’s Brief at 44, 45.        He also, once again, claims his co-defendants

had “vested interests in accusing [him] of committing these crimes[.]” Id.

Furthermore, he emphasizes the “crucial lack of [Rawlings’s] DNA in the

[victim’s] rape kit,”20 as well as the failure of the police to recover the

sweatshirt worn by the attacker. Id. at 45, 46.

       Here, the trial court denied Rawlings’s weight of the evidence claim,

finding “the evidence against [Rawlings] does not shock the Court’s sense of

justice.” Trial Court Opinion, 10/14/2015, at 9. Rawlings provides us with
____________________________________________


20
  Although Rawlings acknowledges his DNA was found mixed with vomit on
Jones’s pants, he contends that fact is irrelevant since “this DNA could have
gotten on the pants at any time.” Rawlings’s Brief at 46.




                                          - 23 -
J-A19022-16



no basis to conclude the court abused its discretion. Although some of the

evidence presented was contradictory and incomplete, the jury’s credibility

determinations were supported by the record and do not shock our

conscience.      Once believed, the victim’s identification of Rawlings as the

third attacker, and his inculpatory statement to police, clearly supported the

jury’s verdict. The lack of DNA evidence and the unrecovered sweatshirt do

not undermine the jury’s determination that Rawlings was the third

perpetrator.21      Accordingly, Rawlings’s challenge to the weight of the

evidence fails.

        Lastly, Rawlings argues the trial court erred when it denied his post-

sentence motion for a new trial based on a purported Brady22 violation.

Specifically, Rawlings claims the Commonwealth withheld from him at the

time of trial “material, impeachable statements” made by the victim, namely

the Victim Impact Statement submitted during the sentencing hearing.

____________________________________________


21
    Indeed, there are many explanations for the lack of DNA evidence,
including the victim may have been mistaken as to whether or not her rapist
wore a condom. See N.T., 11/5/2014, at 115-116 (victim admitting she did
not know whether Rawlings wore a condom when he raped her vaginally).
In fact, in his confession, Rawlings stated he did wear a condom. See N.T.,
11/6/2014, at 271. Further, the fact that Rawlings was observed wearing
different clothing before and after the robbery is immaterial since he clearly
attempted to disguise his appearance when he approached the victim
wearing a facemask. Moreover, particularly damaging to his claims, is the
fact that Rawlings knew exactly where the gun used in the robbery was
hidden.
22
     Brady v. Maryland, 373 U.S. 83 (1963).



                                          - 24 -
J-A19022-16



Rawlings’s Brief at 39. See also N.T., 4/21/2015, at 4-5. Rawlings claims

the victim averred in the statement that her attacker ejaculated during the

vaginal rape. Rawlings’s Brief at 40. He insists this statement was material

and exculpatory because (1) “it provides further contradiction to her in-court

testimony and could have led to her impeachment[,]” and (2) “the credibility

of the [victim’s] testimony and identification of [Rawlings] was vital to the

jury’s determination in this matter.” Id. at 41.

      Our review of an alleged Brady violation is guided by the following:

      To establish a Brady violation, a defendant must demonstrate
      that: (1) the evidence was suppressed by the Commonwealth,
      either willfully or inadvertently; (2) the evidence was favorable
      to the defendant; and (3) the evidence was material, in that its
      omission resulted in prejudice to the defendant. The burden
      rests with the defendant to “prove, by reference to the record,
      that evidence was withheld or suppressed by the prosecution.”

Commonwealth v. Antidormi, 84 A.3d 736, 747 (Pa. Super. 2014)

(internal citations omitted), appeal denied, 95 A.3d 275 (Pa. 2014). Indeed,

“[t]he withheld evidence must have been in the exclusive control of the

prosecution at the time of trial.”    Commonwealth v. Haskins, 60 A.3d

538, 547 (Pa. Super. 2012).

      Significantly, here, the Victim Impact Statement, upon which Rawlings

bases his Brady claim, is not included in the certified record on appeal. We

remind Rawlings: “Our law is unequivocal that the responsibility rests upon

the appellant to ensure that the record certified on appeal is complete in the

sense that it contains all of the materials necessary for the reviewing court

to perform its duty.”   Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.

                                     - 25 -
J-A19022-16



Super. 2006) (en banc).            Accordingly, because we cannot review the

statement, which he claims is crucial to his case, we are unable to determine

whether the victim’s statement was favorable and material to the defense. 23

       Moreover, Rawlings has also failed to establish the statement was in

the Commonwealth’s control at the time of trial. Although he acknowledges

he does not know when the statement was written by the victim, he asserts

the Commonwealth all but admitted it possessed the statement during his

trial. See Rawlings’s Brief at 41. Indeed, he bases this assumption on the

fact that, during the post-sentence hearing, the Commonwealth did not deny

the statement existed at the time of trial but rather discounted its

materiality. See id., citing N.T., 4/21/2015, at 6. This circular logic based

on assumptions and non-statements is simply insufficient to establish the

Commonwealth         either   willfully   or   inadvertently   withheld   exculpatory

evidence from Rawlings. Accordingly, Rawlings’s Brady claim fails.

       Judgment of sentence affirmed.




____________________________________________


23
  Assuming, however, the written statement is the same as the Victim
Impact Statement read by the prosecutor at Rawlings’s sentencing hearing,
we note that the victim made no mention of whether her rapist ejaculated.
See N.T., 3/9/2015, at 5-7.



                                          - 26 -
J-A19022-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




                          - 27 -
