J-S15037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GERALD A. BERRY,

                            Appellant                No. 3319 EDA 2014


            Appeal from the Judgment of Sentence October 24, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0014860-2013


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 02, 2016

        Appellant, Gerald A. Berry, appeals from the judgment of sentence

imposed following his jury conviction of rape, 18 Pa.C.S.A. § 3121(a);

involuntary deviate sexual intercourse (IDSI), 18 Pa.C.S.A. § 3123(a)(1);

indecent assault, 18 Pa.C.S.A. § 3126(a)(2) and related offenses. Appellant

challenges the sufficiency of the evidence. Specifically, he denies proof of

the element of forcible compulsion for rape, IDSI, and indecent assault. We

affirm.

        We derive our facts from the trial court’s opinion, and our independent

review of the record, including the trial transcript. (See Trial Court Opinion,

4/01/15, at 1-4; N.T. Trial, 7/15/14-7/17/14).

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      On the evening of July 13, 2013, Appellant entered the victim’s

apartment through an unlocked window and began rummaging through her

purse. When she awoke and saw him, she screamed. Appellant leapt on top

of her and raped her anally, vaginally and anally again. The victim felt a gun

pressed to her head. (See N.T. Trial, 7/15/14, at 65). Appellant repeatedly

threatened to shoot her.       (See id. at 67).       After the assault was over,

Appellant told the victim not to go to the police, because he knew where she

lived, and what she looked like. (See id. at 66).

      After some initial hesitation, the victim did go to the Philadelphia Police

Special Victims Unit. There was a rape kit examination, which substantiated

tearing of her genitalia and numerous other sex-related injuries. Eventually,

fingerprint and DNA evidence linked Appellant to the sexual offenses.

      The   jury   convicted   Appellant   of   all   charges:   rape   by   forcible

compulsion, IDSI by forcible compulsion, indecent assault by forcible

compulsion, sexual assault, burglary, intimidation of a witness or victim,

possession of an instrument of crime, and terroristic threats.           (See id.,

7/17/14, at 109-12).    When polled, the jury was unanimous.            (See id. at

114-15).

      On October 24, 2014, the trial court imposed an aggregate sentence of

not less than fifteen nor more than thirty years’ incarceration followed by a




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consecutive period of twenty years’ probation.         (See N.T. Sentencing,

10/24/14, at 33). This timely appeal followed.1

       Appellant raises one question for our review:

            Was the evidence sufficient to prove beyond a reasonable
       doubt that the Appellant used forcible compulsion on the
       complainant to support convictions for Rape, Involuntary Deviate
       Sexual Intercourse and Indecent Assault?

(Appellant’s Brief, at 3).

       Appellant argues that “[a]bsent any other evidence of non-sexual

injury or direct proof of a firearm,” evidence of “one verbal threat (‘I should

just shoot you now’) . . . is insufficient to sustain guilty verdicts on . . .

charges [of rape, IDSI, and indecent assault].” (Id. at 11). We disagree.

            We are guided by the following standard of review when
       presented with a challenge to the sufficiency of the evidence
       supporting a defendant’s conviction:

         As a general matter, our standard of review of sufficiency
         claims requires that we evaluate the record “in the light
         most favorable to the verdict winner giving the prosecution
         the benefit of all reasonable inferences to be drawn from
         the evidence.” Commonwealth v. Widmer, 560 Pa. 308,
         744 A.2d 745, 751 (2000). “Evidence will be deemed
         sufficient to support the verdict when it establishes each
         material element of the crime charged and the commission
         thereof by the accused, beyond a reasonable doubt.”
____________________________________________


1
  Appellant filed a court-ordered statement of errors on December 22, 2014.
Without leave of court, Appellant filed an amended statement on February 9,
2015. Following controlling authority, we would be inclined to disregard
Appellant’s unapproved amended statement and deem his supplemental
arguments waived. However, the trial court considered the supplemental
claims in its Rule 1925(a) opinion. Therefore, in the interest of judicial
economy, we will review Appellant’s claim. See Pa.R.A.P. 1925.



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        Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.
        Super. 2005). Nevertheless, “the Commonwealth need not
        establish guilt to a mathematical certainty.” Id.; see also
        Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.
        Super. 2000) (“[T]he facts and circumstances established
        by the Commonwealth need not be absolutely incompatible
        with the defendant’s innocence”). Any doubt about the
        defendant’s guilt is to be resolved by the fact finder unless
        the evidence is so weak and inconclusive that, as a matter
        of law, no probability of fact can be drawn from the
        combined circumstances.          See Commonwealth v.
        DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).

        The Commonwealth may sustain its burden by means of
        wholly circumstantial evidence. See Brewer, 876 A.2d at
        1032. Accordingly, “[t]he fact that the evidence
        establishing a defendant’s participation in a crime is
        circumstantial does not preclude a conviction where the
        evidence coupled with the reasonable inferences drawn
        therefrom overcomes the presumption of innocence.” Id.
        (quoting Commonwealth v. Murphy, 795 A.2d 1025,
        1038–39 (Pa. Super. 2002)). Significantly, we may not
        substitute our judgment for that of the fact finder; thus, so
        long as the evidence adduced, accepted in the light most
        favorable to the Commonwealth, demonstrates the
        respective elements of a defendant’s crimes beyond a
        reasonable doubt, the appellant’s convictions will be
        upheld.

Commonwealth v. Rahman, 75 A.3d 497, 500-01 (Pa. Super. 2013)

(some citations omitted).

     Here, in a collective argument which addresses all three offenses

together, Appellant maintains that his threat to shoot the victim and the

victim’s testimony that she felt a gun to her head is insufficient to prove

forcible compulsion beyond a reasonable doubt. (See Appellant’s Brief, at

12). Appellant’s claim has no merit.




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      In pertinent part, our Crimes Code defines “Forcible compulsion” as

follows:   “Compulsion by use of physical, intellectual, moral, emotional or

psychological force, either express or implied.” 18 Pa.C.S.A. § 3101.

      Forcible compulsion is a determination made in each case based on the

totality of the circumstances that have been presented to the fact finder.

See Commonwealth v. Smolko, 666 A.2d 672, 675 (Pa. Super. 1995);

see also Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986)

(holding that ‘forcible compulsion’ as used in section 3121(1) includes not

only physical force or violence but also moral, psychological or intellectual

force used to compel a person to engage in sexual intercourse against that

person’s will).

      Here, Appellant’s argument that Smolko supports his claim is both

legally erroneous and belied by the record. (See Appellant’s Brief, at 12).

In pertinent part, Smolko held that a physical deficiency which prevents a

person from defending himself against unwanted sexual encounters can be

the basis for a finding of forcible compulsion beyond a reasonable doubt.

See Smolko, at 674.

      Even more basically, Appellant’s supposition that in this case there was

no showing of physical force, threat of physical force, or psychological

coercion is transparently contradicted by the evidence of record. Appellant,

a burglar, physically forced himself on the victim, resulting in documented

injuries. He repeatedly threatened to shoot her. The victim felt a gun to her


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head.     Before he departed, Appellant warned her not to call the police

because he knew where she lived. (See N.T. Trial, 7/15/14, at 61-66).

        Under our standard of review, viewing the evidence in the light most

favorable to the Commonwealth as verdict winner, together with all

reasonable inferences, we have no hesitation whatsoever in concluding that

evidence of Appellant’s threats to shoot the victim, putting a gun to her

head, and the physical force used in the rapes themselves, which resulted in

documented substantial injuries, was more than sufficient to prove forcible

compulsion. See Rahman, supra at 500-01. Because Appellant does not

attempt to differentiate his argument with respect to the three identified

offenses, further analysis is unnecessary.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




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