J. S07035/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF:                       :     IN THE SUPERIOR COURT OF
L.D.W., A MINOR                           :           PENNSYLVANIA
                                          :
APPEAL OF: L.D.W., A MINOR                :          No. 3361 EDA 2017


           Appeal from the Dispositional Order, August 28, 2017,
              in the Court of Common Pleas of Carbon County
             Criminal Division at No. CP-13-JV-0000074-2015


BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 25, 2018

      L.D.W. (the “Juvenile”) appeals from the August 28, 2017 juvenile

dispositional order entered in the Court of Common Pleas of Carbon County

adjudicating him delinquent and placing him in a residential treatment

facility for juvenile sex offenders for delinquent acts constituting the crimes

of rape by forcible compulsion, involuntary deviate sexual intercourse by

forcible compulsion (“IDSI”), sexual assault, aggravated indecent assault

without consent, and indecent assault without consent.1 We affirm.

      The trial court set forth the following factual history:

            On the evening of August 23, 2015, [J.C. (“Victim”),
            then 15 years old,] was staying at the house of
            Marlon    Kirk    in   Lansford,    Carbon  County,
            Pennsylvania. The Victim’s mother, [S.T.], was a
            former girlfriend of Marlon Kirk from whom she had
            separated in June 2015. In addition to the Victim
            and Marlon Kirk, also in the home that evening were

1 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3125(a)(1), and
3126(a)(1), respectively.
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          [S.T.] and her son, [C.C.], the Victim’s brother, as
          well as the Juvenile, [then 14 years old,] and his
          mother, brother and sister, [F.S.], [M.K.], and
          [K.K.], respectively.

          [F.S.], who was also a former girlfriend of Mr. Kirk
          with whom she had several children, was moving
          into the home that same day from New York with her
          children. The Victim testified that the morning of
          August 23, 2015, was the first time she could recall
          meeting the Juvenile.

          Mr. Kirk’s home is a three-story home with three
          bedrooms on the second floor. On August 23, 2015,
          arrangements had been made for [F.S.] to sleep on
          the first floor in the living room with her son, [M.K.],
          and her daughter. Mr. Kirk and [S.T.] slept that
          night in one bedroom on the second floor of the
          home; [C.C.] and the Juvenile were to sleep in a
          middle bedroom on the second floor; and the Victim
          occupied the third bedroom at the other end of the
          hall.

          That evening, the Victim went to bed sometime
          between 10:30 and 11:00 P.M.             Approximately
          forty-five minutes later, while the Victim was lying in
          bed on her side facing the door, the Juvenile opened
          the bedroom door, entered, and closed the door
          behind him. The Victim was tired and believes she
          was most likely using her iPhone when this occurred.
          Before going to bed, the Victim had taken
          Trazodone, to help her sleep, and Lamictal for
          depression and a mood disorder. Both of these
          medications are prescribed and, according to the
          Victim, have no side effects.

          Upon entering the bedroom, the Juvenile first sat at
          the foot of the bed for a short period during which
          time the Victim and the Juvenile spoke briefly. When
          the Victim began to fall asleep, the Juvenile crawled
          onto the bed behind the Victim and laid down facing
          her back. The Juvenile began kissing the Victim on
          her neck, which offended the Victim, but which she
          did nothing to stop.


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          The Juvenile next pulled the Victim’s sweat pants
          and underwear down and began to insert his penis
          into her rectum. The Victim said nothing at first, she
          was scared and froze, but as the Juvenile continued
          and began thrusting and penetrating her anus, the
          Victim, who was in pain, began crying and
          repeatedly asked the Juvenile to stop. The Juvenile
          continued despite these requests, telling the Victim
          that it would be over soon, and that she should “just
          keep going with it.”

          When the Juvenile was finished, he withdrew his
          penis, grabbed the Victim’s hand, and made the
          Victim touch his penis. After a minute or two, the
          Victim removed her hand from the Juvenile’s penis
          and the Juvenile again put his penis inside the
          Victim’s     rectum      and     began       thrusting,
          notwithstanding that the Victim was crying, saying
          “no,” and begging him to stop. When the Juvenile
          finished penetrating the Victim a second time, the
          Victim needed to ask him to leave several times
          before he did so.       To keep the Juvenile from
          re-entering the room, the Victim barricaded her
          door, placing furniture and other items in front of the
          door to prevent the Juvenile from returning.

          At first, the Victim did not tell anyone what had
          happened, testifying that she was too scared to
          leave her bed. However, the next day, which was
          the first day of school, the Victim asked to see her
          counselor, Kevin Loch, and immediately told him that
          she had been raped: that the Juvenile had forced his
          way onto her and engaged in sexual intercourse as
          she was crying and trying to push him off. Mr. Loch
          described the       Victim as being upset and
          uncomfortable. Mr. Loch reported the incident to the
          proper authorities.

          That same day at approximately 7:00 p.m., the
          Victim was taken to the Scranton Child’s Advocacy
          Center (CAC) by her mother, where a sexual assault
          examination was performed by Cheryl Friedman, a
          board-certified family nurse practitioner, also


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            certified as a sexual assault nurse examiner (SANE).
            As part of a multi-disciplinary team at the Child
            Advocacy Center, Ms. Friedman’s expertise includes
            conducting physical examinations of the victims of
            sexual assault and familiarity with the psychological
            aspects of sexual assault.

            In addition to noting scratches on the Victim’s back,
            skin and abdomen during her genital examination of
            the Victim, Ms. Friedman observed excoriated skin at
            two areas of the Victim’s rectum consistent with the
            sexual    assault    described    by    the    Victim.
            Ms. Friedman testified that the excoriated skin was a
            recent injury since this area of the body heals
            rapidly, within several days.     Ms. Friedman also
            noted that the Victim was upset and crying during
            the examination, and opined that such behavior, as
            well as the Victim’s testimony that she was
            frightened and froze during the assault and did not
            scream out, that she blamed herself for what had
            happened, and that she had nightmares and was
            depressed for months afterwards was consistent with
            a young person who had just been sexually
            assaulted. It was Ms. Friedman’s opinion, taking into
            account the Victim’s medical history and description
            of what had occurred, together with her observations
            made during her examination of the Victim, that the
            Victim’s behavior was consistent with a sexual
            assault having occurred.

Trial court opinion, 10/18/17 at 2-6 (citations to notes of testimony

omitted).

      The record reflects that following a hearing held on July 20, 2017, the

trial court adjudicated L.W. delinquent of the above-mentioned offenses.

Additionally,

            [t]he Juvenile’s placement in a residential treatment
            facility at Abraxas Youth Center Sex Offender
            Program Secure in Morgantown, Pennsylvania, was



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             agreed upon by all parties and accepted by the court
             at a disposition hearing held on August 28, 2017.

             An appeal from the disposition order was filed on
             September 12, 2017. This appeal was accompanied
             by the Juvenile’s concise statement of the matters
             complained of and to be raised on appeal [pursuant
             to Pa.R.A.P. 1925(b)].

Id. at 2. Thereafter, the trial court filed its Rule 1925(a) opinion.

      The Juvenile raises the following issue for our review:

             Whether the evidence was sufficient to establish
             forcible compulsion for the crimes of rape by forcible
             compulsion     and    involuntary   deviate    sexual
             intercourse by forcible compulsion when the
             evidence established that [the Juvenile] engaged in
             anal sex with the victim without her consent but
             without facts establishing he used any type of force
             to overcome her will?

Juvenile’s brief at 4.

             Our standard of review for a challenge to the
             sufficiency of the evidence is well settled. We must
             view all the evidence in the light most favorable to
             the verdict winner, giving that party the benefit of all
             reasonable inferences to be drawn therefrom.
             Additionally, it is not the role of an appellate court to
             weigh the evidence or to substitute our judgment for
             that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143

(Pa. 2004) (citations omitted).

      The Crimes Code provides that a person commits rape when “the

person engages in sexual intercourse with a complainant [] [b]y forcible


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compulsion.”    18 Pa.C.S.A. § 3121(a)(1).         The Crimes Code also provides

that a person commits ISDI “when the person engages in deviate sexual

intercourse with a complainant [] by forcible compulsion[.]”               18 Pa.C.S.A.

§ 3123(a)(1).

     Common       to    each      of   these      crimes       is   the   element     of

“forcible compulsion.” The Crimes Code defines “forcible compulsion” as

“[c]ompulsion    by    use   of   physical,    intellectual,    moral,    emotional   or

psychological force, either express or implied. The term includes, but is not

limited to, compulsion resulting in another person’s death, whether the

death occurred before, during or after sexual intercourse.”               18 Pa.C.S.A.

§ 3101.

           It is well-established that in order to prove the
           “forcible      compulsion”      component,           the
           Commonwealth must establish, beyond a reasonable
           doubt, that the defendant “used either physical
           force, a threat of physical force, or psychological
           coercion, since the mere showing of a lack of consent
           does not support a conviction for rape . . . by forcible
           compulsion.” Commonwealth v. Brown, 556 Pa.
           131, 136, 727 A.2d 541, 544 (1999).                   In
           Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d
           1217 (1986), our Supreme Court stated that forcible
           compulsion 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.” Rhodes, 510
           Pa. at 555, 510 A.2d at 1226. Further, the degree of
           force required to constitute rape is relative and
           depends on the facts and particular circumstances of
           a given case. Commonwealth v. Ruppert, 397
           Pa.Super. 132, 579 A.2d 966, 968 (1990), appeal
           denied, 527 Pa. 593, 588 A.2d 914 (1991).



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Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa.Super. 2010).

        Moreover,

             A determination of forcible compulsion rests on the
             totality of the circumstances, including but not
             limited to this list of factors:

                    the respective ages of the victim and the
                    accused, the respective mental and
                    physical conditions of the victim and the
                    accused, the atmosphere and physical
                    setting in which the incident was alleged
                    to have taken place, the extent to which
                    the accused may have been in a position
                    of authority, domination or custodial
                    control over the victim, and whether the
                    victim was under duress.

             It is not mandatory to show that the victim resisted
             the assault in order to prove forcible compulsion. Id.
             The victim’s uncorroborated testimony is sufficient to
             support a rape conviction.

Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa.Super. 2015)

(internal citations omitted).

        In considering the totality of the circumstances, the trial court found

that:

             [t]he Victim was a minor of tender years. Prior to the
             date of this incident, the Victim had not met the
             Juvenile, and had not been involved with him
             romantically. Yet, without being invited, the Juvenile
             came unannounced into the Victim’s bedroom after
             she had gone to bed.          Adding to the Victim’s
             vulnerability were the effects of the medication she
             had taken to help her sleep and which caused her to
             be tired, and her petite size. The Juvenile in contrast
             is tall and athletic looking, and appeared from his
             comments to be sexually active and to have had
             frequent short term relationships with females


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          because he is easily bored.          These physical
          differences between the Juvenile and the Victim and
          the Juvenile’s attitude toward females are relevant
          factors to be considered, as are the actions of the
          Juvenile in removing the Victim’s clothing without
          any prodding or assistance from her, his penetrating
          the Victim twice without her consent and in the face
          of her repeated requests that he stop, his placement
          of the Victim’s hand on his genitals, and his
          insistence on finishing what he had started – his
          penetration of the Victim – all the while the Victim
          was in tears and saying “no.”

          All of this evidences the Juvenile’s “domination” and
          power over the Victim. These facts, combined with
          the Victim’s testimony that she froze, was scared,
          and didn’t know what to do, convinced us that the
          Victim was compelled to engage in sexual
          intercourse with the Juvenile against her will through
          forcible compulsion. While the force used was subtle
          and to a large extent psychological and emotional, it
          nevertheless was real and induced the Victim to
          submit against her will under the totality of the
          circumstances.[Footnote 2]

               [Footnote 2] That “physical force” was
               used is evidence by the Victim’s
               statements    to   Kevin   Loc[h],   her
               counselor at school, that the Juvenile
               had forced his way upon her and
               engaged her in sexual intercourse while
               she was crying and trying to push off.
               As a prompt complaint, these statements
               are not admissible for their truth or as
               substantive evidence, Commonwealth
               v. Freeman, 441 A.2d 1327, 1332
               (Pa.Super. 1982), but as an excited
               utterance, they are. Commonwealth v.
               Pettiford, 402 A.2d 532 (Pa.Super.
               1979).    Moreover, no objection was
               made to this evidence.




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Trial court opinion, 10/18/17 at 10-11 (citation to notes of testimony

omitted).

     Here, we have carefully reviewed the record, and it demonstrates that

the evidence admitted at the adjudication proceeding, as well as all

reasonable inferences drawn therefrom, viewed in the light most favorable

to the Commonwealth as the prevailing party at the adjudication proceeding,

was sufficient to support the forcible compulsion element of the offenses

rape and IDSI.

     Juvenile dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/25/18




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