J-S75020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

KENNETH A. LEWIS

                         Appellant                     No. 2977 EDA 2013


          Appeal from the Judgment of Sentence August 9, 2013
           In the Court of Common Pleas of Philadelphia County
 Criminal Division at No(s): CP-51-CR-0002049-2011 CP-51-CR-0005295-
                                   2011


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 03, 2015

      Kenneth A. Lewis appeals from the judgment of sentence, imposed in

the Court of Common Pleas of Philadelphia County, following his conviction

for multiple crimes stemming from two separate incidents that were

consolidated for trial. After careful review of the record, we affirm.

      The trial court set forth the facts of the case as follows:

      On December 17, 2010, complainant, A.S., visited Lewis at his
      apartment . . . . Shortly after A.S.’s arrival [they] began
      drinking beer and consuming cocaine, which continued for most
      of the day. At some point . . . [Lewis] began making sexual
      advances toward [A.S.]. [A.S.] resisted, reminding [Lewis] that
      she was a lesbian and in a relationship. [Lewis] became angry
      and when [A.S.] attempted to leave he assaulted her and an
      altercation ensued. [Lewis] punched [A.S.] in her right eye,
      fracturing her orbital bone, nose, and jaw. [A.S.] attempted to
      escape, running for the door, however, [Lewis] followed, put her
      in a choke hold, threw her onto the bed, telling [A.S.] that he
      was going to find his gun and kill her. [A.S.] struggled with
      [Lewis] for approximately forty-five minutes while [Lewis]
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     continued with his arms around [A.S.’s] neck, punching her in
     the head multiple times. [Lewis] removed [A.S.’s] pants and
     underwear, and he then inserted his penis into her vagina,
     followed by his tongue, then his penis again. When [Lewis] was
     finished his assault, he apologized to [A.S.] and offered to
     transport her to the hospital but conditioned on her fabricating a
     story that did not implicate him. [A.S.] agreed and [Lewis]
     transported her to Pennsylvania Hospital. [Lewis] stayed with
     [A.S.] in the hospital while police interviewed her and he left
     when [A.S.’s] mother arrived. [A.S.] testified that she continued
     to tell the fabricated story as she feared [Lewis] might do her
     harm[.]

     The following day [A.S.’s mother] . . . transported her to her
     father’s home in Drexel Hill. After getting [A.S.] settled, [A.S.’s
     mother] left. She returned an hour later and found Haverford
     Township Police interviewing [A.S.] who was crying hysterically.
     [A.S.] disclosed that [Lewis] was the perpetrator of the assault
     and that he raped her. [A.S.] further stated that she received a
     large number of threatening text messages from [Lewis] and
     that he indicated that he knew where she lived detailing the
     locations in Haverford Township. [A.S.] and her parents were
     then escorted to the Philadelphia Police Special Victims’ Unit at
     Episcopal Hospital where they gave statements to Detective
     Joseph Jenkins.      Thereafter, [A.S.] underwent a physical
     examination and a rape kit was prepared.

     Detective Jenkins described [A.S.’s] condition at the time of his
     initial interview which included closed and blackened eyes, and a
     bite mark on her back . . . . From [A.S.’s] cell phone, calls were
     analyzed resulting in a search warrant for [Lewis’s] phone
     records.     As a result, positive identification was made that
     [Lewis’s] account was used to transmit the calls to [A.S.]

     By stipulation it was agreed that on February 17th of 2011,
     Detective John Brady of the Philadelphia District Attorney’s Office
     obtained an oral swab of saliva from Appellant that was
     submitted to the Philadelphia Criminalistic DNA laboratory for
     further examination. It was also stipulated that the rape kit
     containing samples from the cervix, vulva, and the vagina of
     [A.S.] was submitted to the Philadelphia Science Division for
     analyses; that the sperm that was located in the vaginal swab
     was compared to the oral swab taken from [A.S.]; and the result
     was that [Lewis] was the source of the DNA from the sperm
     recovered in the rape kit.

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        [In the second matter involving Lewis,] Complainant [J.R.]
        testified that in November 2010 she had been dating [Lewis] for
        several months and at that time was trying to terminate their
        relationship. She stated that [Lewis] wanted to continue the
        relationship and harassed her with numerous calls and texts,
        many threatening. As a result, [J.R.] felt threatened, filed a
        police report, and ultimately obtained a protection from abuse
        order.     Philadelphia Detective John Frei was assigned to
        investigate [J.R.’s] case and learned that there were forty text
        messages sent by [Lewis] to [J.R.] between December 3, 2010
        and December 4, 2010. One such message . . . states:

           Bitch, you going to make me chase you all over the city.
           Bitch, I won’t quit. Get on the phone. You better quit
           school. I will be over Angel’s house every day . . . From
           Kenny.

Trial Court Opinion, 3/18/14, at 2-4 (citations omitted).

        On March 14, 2013, a jury convicted Lewis of rape, 1 involuntary

deviate sexual intercourse (IDSI),2 sexual assault,3 indecent assault,4

unlawful restraint,5 possessing an instrument of crime (PIC),6 intimidation of

a    witness,7   aggravated      assault,8     stalking,9   terroristic   threats,10   and

harassment.11
____________________________________________


1
    18 Pa.C.S. § 3121.
2
    18 Pa.C.S. § 3123.
3
    18 Pa.C.S. § 3124.1.
4
    18 Pa.C.S. § 3126.
5
    18 Pa.C.S. § 2902.
6
    18 Pa.C.S. § 907.
7
    18 Pa.C.S. § 4952.




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         On August 9, 2013, the trial court sentenced Lewis to 55 to 110 years’

incarceration.     Lewis filed timely post-sentence motions, which the court

denied on September 27, 2013. This timely appeal followed.

         On appeal, Lewis raises the following issues for our review:

         1. Is [Lewis] entitled to an arrest of judgment on the charges of
            rape, aggravated assault, unlawful restraint, sexual assault,
            indecent assault, PIC, IDSI, intimidating a witness and
            terroristic threats where the evidence is insufficient to sustain
            the verdict?

         2. Is [Lewis] entitled to a new trial on rape and all related
            charges where the greater weight of the evidence does not
            support the conviction?

Appellant’s Brief, at 3.

         Under Pennsylvania law, challenges to the sufficiency of the evidence

are generally limited to whether the Commonwealth has produced evidence

sufficient to establish every element of the crime.          Commonwealth v.

Karkaria, 625 A.2d 1167, 1170 (Pa. 1993).              Questions concerning the

“weight” of the evidence, including credibility determinations, are reserved

to the finder of fact for resolution. Commonwealth v. Farquharson, 354




                       _______________________
(Footnote Continued)
8
    18 Pa.C.S. § 2702.
9
    18 Pa.C.S. § 2709.1.
10
     18 Pa.C.S. § 2706.
11
     18 Pa.C.S. § 2709.



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A.2d 545, 550 (Pa. 1976).     Appellate courts will not reweigh the evidence

and thereby substitute their judgment for that of the finder of fact. Id.

      However, courts have recognized a narrow exception to this
      general rule.    In those extreme situations where witness
      testimony is so inherently unreliable and contradictory that it
      makes the jury’s choice to believe that evidence an exercise of
      pure conjecture, any conviction based on that evidence may be
      reversed on the grounds of evidentiary insufficiency, since no
      reasonable jury could rely on such evidence to find all of the
      essential elements of the crime proven beyond a reasonable
      doubt.

Commonwealth v. Brown, 52 A.3d 1139, 1157 n.18 (Pa. 2012).

      Lewis fails to satisfy this high standard.   While ostensibly raising a

sufficiency claim, the substance of his challenge is actually directed at the

jury’s credibility determination that A.S.’s testimony concerning the events

in question was more believable than his own account.            Lewis’s only

arguments consist of: (1) noting that his version of the events is consistent

with his actions; (2) attacking the credibility of A.S. as a witness; and (3)

conjecturing why A.S., who is a lesbian, decided to “cry rape” after engaging

in consensual sex with him. Appellant’s Brief, at 9-11.

      It is clear that none of these arguments attempts to show that

evidence presented at trial was inherently unreliable or contradictory.     By

challenging the credibility of A.S.’s testimony, Lewis asks us to reweigh the

evidence, which is not the function of an appellate court.      “We may not

substitute our own judgment for jury’s, as it is the fact-finder’s province to

weigh the evidence, determine the credibility of witnesses and believe all,


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part or none of the evidence submitted.” Commonwealth v. Sanchez, 82

A.3d 943, 972 (Pa. 2013) (citation omitted).        Accordingly, no arrest of

judgment is warranted.

      With respect to his conviction for making terroristic threats to J.R.,

Lewis raises a straightforward sufficiency challenge, and claims that the

Commonwealth has failed to prove the requisite element of intent.          We

disagree.

      To obtain a conviction for making a terroristic threat under section

2706 of the Crimes Code, 18 Pa.C.S. § 2706, the Commonwealth must

prove that “(1) the defendant made a threat to commit a crime of violence;

and (2) such threat was communicated with the intent of terrorizing or with

reckless disregard for the risk of causing terror.”       Commonwealth v.

Butcher, 644 A.2d 174, 176 (Pa. Super. 1994). The element of intent may

be inferred from the defendant’s actions and the message that has been

communicated. Commonwealth v. Kelley, 664 A.2d 123, 128 (Pa. Super.

1995).

      Here, there is ample evidence to support a finding of intent to make

terroristic threats.   The trial record is replete with violent and threatening

text messages from Lewis to J.R., in which Lewis threatened to kill, hurt, and

stalk her.   That Lewis asserts the texts were part of a common course of

communication between the parties does not vitiate the element of intent,

which can be inferred from the violent language of the texts themselves.

The jury was free to believe J.R.’s testimony that these texts did not

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exemplify normal communications between Lewis and herself.              Therefore,

the Commonwealth has met its burden of proving intent to terrorize.            No

relief is due.

       Lewis next claims that the trial court abused its discretion by denying

his motion for a new trial because the verdict was against the weight of the

evidence.12      Specifically, he alleges that the trial court’s judgment was

manifestly unreasonable and a misapplication of the law. We disagree.

       When a defendant challenges the verdict as against the weight of the

evidence, a new trial shall be granted by the trial court only where the

verdict is “so contrary to the evidence as to shock one’s sense of justice.”

Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1985). The power to

grant such relief is vested in the sound discretion of the trial court, and we

will reverse only when the trial court has abused its discretion in making that

determination. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).

An abuse of discretion only occurs where the trial court’s decision is

manifestly unreasonable, the law was not applied, or the record reveals that

the decision was the result of partiality, prejudice, bias, or ill will. Id.



____________________________________________


12
   Lewis develops this argument only with respect to his convictions for
crimes against A.S.    Therefore, he has waived his claim to a similar
challenge with respect to his convictions for crimes committed against J.R.
See Commonwealth v. Ellis, 700 A.2d 948, 957 (Pa. Super. 1997) (failure
to develop legal argument or cite authority for vague contentions results in
waiver of claim).



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      Lewis fails to show that the trial court abused its discretion. The only

argument advanced in his brief is that his actions following the encounter

with A.S. were consistent with his version of the events, thereby rendering

his testimony more credible.     He argues that because he took A.S. to the

hospital and did not leave town, his actions confirm his testimony, while the

testimony of A.S. was less reliable because she changed her story from her

initial report to the police that she made at the hospital while he was

present.

      Lewis’s arguments fail to show that the trial court’s judgment was

manifestly unreasonable.     Credibility determinations are reserved for the

finder of fact, who may believe all, some, or none of the testimony adduced

at trial.   See Sanchez, supra.          While Lewis’s inferential arguments

concerning the credibility of witnesses are appropriate for attempting to

persuade the fact finder in the first instance, the arguments fail to show that

the verdict was “so contrary to the evidence as to shock one’s sense of

justice,” Brown, supra, much less that the trial court abused its discretion

by denying his motion for a new trial.

      Despite his assertion, Lewis fails to develop an argument that the trial

court misapplied the law. Rather, a review of the trial court’s opinion shows

that the trial court applied the correct legal standard in denying his

challenge. Therefore, the trial court did not abuse its discretion in denying

Lewis’ motion for a new trial.




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      For the forgoing reasons, we conclude that Lewis is not entitled to an

arrest of judgment or a new trial.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




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