J-S05038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DEVIN THOMAS COOPER,

                            Appellant                 No. 483 MDA 2016


           Appeal from the Judgment of Sentence February 23, 2016
             in the Court of Common Pleas of Cumberland County
               Criminal Division at No.: CP-21-CR-0001463-2015


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

MEMORANDUM BY PLATT, J.:                              FILED APRIL 13, 2017

        Appellant, Devin Thomas Cooper, appeals from the judgment of

sentence imposed on February 23, 2016, following his jury conviction of one

count each of sexual assault, criminal trespass,1 false imprisonment, and


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  We recognize that in Leach v. Commonwealth, 141 A.3d 426, 435 (Pa.
2016), our Supreme Court concluded that Act 192 of 2014, which included,
inter alia, amendments to 18 Pa.C.S.A. § 3503(b.1)(1)(iv) and
§ 3503(b.1)(2), (criminal trespass to steal defined secondary metals),
violated the single-subject rule of Article III, Section 3 of the Pennsylvania
Constitution. Accordingly, the High Court declared Act 192 void in its
entirety. See id. However, the holding in Leach does not affect this case
because Appellant was not convicted of trespass to steal secondary metals.
Rather, he was convicted and sentenced under subsection 3503(a)(1)(i)
(surreptitious entry or remaining in building or occupied structure).
J-S05038-17


simple assault.2      On appeal, Appellant challenges the sufficiency of the

evidence and the trial court’s denial of his motion in limine to exclude

evidence of prior bad acts. For the reasons discussed below, we affirm the

judgment of sentence.

       We take the underlying facts and procedural history in this matter

from the trial court’s July 15, 2016 opinion and our independent review of

the reproduced record.

              The events relevant to this case occurred on the morning
       of May 27, 2015, when [the victim] was attacked in her
       apartment.       [The victim] and [Appellant] previously were
       involved in a romantic relationship over the course of two years
       and have a daughter together. At approximately [eight] in the
       morning, while [the victim] was preparing for work, the power to
       her apartment shut off. After the power went out, [the victim]
       looked out her window and noticed a truck that she believed
       belonged to her landlord in the apartment complex parking lot.
       Just outside of the front door to [the victim’s] apartment is the
       electrical utility room for the apartment complex. Neither the
       external door leading into the complex nor the door to the
       electrical utility room were customarily kept locked. While she
       was looking out of the window to her apartment, [the victim]
       heard a knock on her door. Believing her landlord might have
       been working on electrical repairs, [the victim] walked to her
       front door and twisted the doorknob to unlock it. Upon opening
       the door enough to look out, [the victim] saw that [Appellant]
       was in the hallway.       Though she tried to close the door,
       [Appellant] forced his way into her apartment. Once inside the
       apartment, [Appellant] grabbed [the victim] by the arms. [The
       victim] broke away and retreated to her bedroom to obtain her
       phone in order to call for help. [Appellant] pursued her and a
       struggle broke out over the phone.          During this struggle,
       [Appellant] grabbed [the victim] and placed his hands over her
____________________________________________


2
   18 Pa.C.S.A.       §§   3124.1, 3503(a)(1)(i),   2903(a),   and 2701(a)(1),
respectively.



                                           -2-
J-S05038-17


     mouth and throat, making it difficult for her to breath[e]. He
     eventually pushed her face-down onto the floor and sat on her
     back, alternatively reading texts on her phone and suffocating
     her by placing his hands over her mouth and nose when he read
     a text that angered him. Eventually [Appellant] got up off of
     [the victim] and allowed her to get up. Around this time [the
     victim’s] phone was ringing as her manager and co-worker were
     calling her because she was late for her work shifted [sic] which
     started at 9:45 a.m.

            [Appellant] remained in the apartment after allowing [the
     victim] to get up off of the floor[,] claiming he wanted to see his
     daughter. At this time, [the victim] went into the living room to
     change her pants, as the pants she was wearing were covered in
     dog hair from being on the floor. [Appellant] followed her into
     the living room, pushed [the victim] onto the couch, and
     proceeded to pull down her underwear and pants while also
     undoing his own pants. [Appellant] then proceeded to have
     sexual intercourse with [the victim], despite her verbal
     protestations. When he was finished, [Appellant] went into the
     daughter’s room and changed her diaper while [the victim]
     finished getting dressed. At this point [Appellant] allowed [the
     victim] and their daughter to leave and walked outside with
     them to [the victim’s] car. [The victim] got into her car, called
     911, and started driving to her aunt’s house. During the call she
     spoke with Officer [Richard] Grove who told her to go to the
     Carlisle Hospital. At the hospital [the victim] met Officer Grove
     and submitted herself to a rape kit examination, which included
     a vaginal swab and photographs of any bruising or markings on
     [her] body. [The victim] had markings and bruises on her arms,
     chest, and face.

           Later that evening [the victim] went to the police station
     and filed a written report on the incident. At the urging of
     Officer Grove, [the victim] called [Appellant] from the police
     station and allowed the call to be recorded. [Appellant] was
     subsequently arrested and charged with the above captioned
     offenses.

            At trial, [the victim] testified that, over the course of their
     previous relationship, [Appellant] had physically assaulted and
     threatened her. Specifically, she briefly testified that he tackled
     her to the ground when she was six months pregnant and, at a
     different time, attempted to put her hands in a ceiling fan.

                                     -3-
J-S05038-17


        Partially as a result of these prior actions, [the victim] took the
        [Appellant’s] threats seriously.

(Trial Court Opinion, 7/15/16, at 2-5) (footnote omitted).

        On August 21, 2015, the Commonwealth filed a criminal information

charging Appellant with two counts of rape,3 and one count each of

burglary,4 sexual assault, criminal trespass, terroristic threats,5 false

imprisonment,      and    simple    assault.     (See   Information,   8/21/15,   at

unnumbered pages 1-2). Immediately prior to the start of trial, on October

26, 2015, Appellant moved to exclude all evidence of prior violent episodes

during his relationship with the victim. (See N.T. Trial, 10/26/15, at 3-4).

After hearing argument, the trial court denied the motion. (See id. at 4-5).

        A jury trial took place on October 26, 27, and 28, 2015.          The jury

acquitted Appellant of rape, burglary, and terroristic threats, but found him

guilty of sexual assault, criminal trespass, false imprisonment, and simple

assault.    On February 23, 2016, the trial court sentenced Appellant to an

aggregate term of incarceration of not less than three and one-half nor more

than seven years, to be followed by a two-year term of probation.

        The instant, timely appeal followed. On March 28, 2016, the trial court

ordered Appellant to file a concise statement of errors complained of on
____________________________________________


3
    18 Pa.C.S.A. §§ 3121(a)(1) and (a)(2).
4
    18 Pa.C.S.A. § 3502(a)(1).
5
    18 Pa.C.S.A. § 2706(a)(1).



                                           -4-
J-S05038-17


appeal.      See Pa.R.A.P. 1925(b).    Appellant filed a timely Rule 1925(b)

statement on April 15, 2016. See id. On July 15, 2016, the trial court filed

an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

      I.      Did the court err when it admitted [the victim’s] testimony
              about a prior bad act [Appellant] committed during their
              relationship?

      II.     Was the evidence insufficient to support a conviction of
              sexual assault?

      III.    Was the evidence insufficient to support a conviction of
              simple assault?

      IV.     Was the evidence insufficient to support a conviction for
              false imprisonment?

      V.      Was the evidence insufficient to support a conviction for
              criminal trespass?

(Appellant’s Brief, at 5) (unnecessary capitalization omitted).

      In his first issue, Appellant maintains that the trial court erred in

denying his motion in limine to preclude evidence of Appellant’s prior use of

force against the victim. (See id. at 9-12). Specifically, Appellant claims it

was prejudicial error to admit the testimony because it allowed a jury to

draw an improper inference that Appellant had a propensity towards violence

against the victim. (See id. at 11-12). We disagree.

      Our standard of review concerning the grant or denial of a motion in

limine is well settled.

            When reviewing a trial court’s denial of a motion in limine,
      this Court applies an evidentiary abuse of discretion standard of

                                      -5-
J-S05038-17


      review. An abuse of discretion will not be found based on a
      mere error of judgment, but rather exists where the court has
      reached a conclusion which overrides or misapplies the law, or
      where the judgment exercised is manifestly unreasonable, or the
      result of partiality, prejudice, bias or ill-will.

             This Court has stated the well-established standard of
      review for admission of evidence claims as follows:         [I]n
      reviewing a challenge to the admissibility of evidence, we will
      only reverse a ruling by the trial court upon a showing that it
      abused its discretion or committed an error of law. . . . To
      constitute reversible error, an evidentiary ruling must not only
      be erroneous, but also harmful or prejudicial to the complaining
      party.

Commonwealth v. Schley, 136 A.3d 511, 514-15 (Pa. Super. 2016)

(citations and quotation marks omitted).

      Further, evidence is relevant: “(a) if it has any tendency to make a

fact more or less probable than it would be without the evidence; and (b)

the fact is of consequence in determining the action.”           Pa.R.E. 401.

“Evidence is relevant if it logically tends to establish a material fact in the

case, tends to make a fact at issue more or less probable or supports a

reasonable    inference   or   presumption    regarding   a   material      fact.”

Commonwealth v. Loughnane, 128 A.3d 806, 818 (Pa. Super. 2015),

appeal granted in part, 2016 WL 5819328 (Pa. 2016) (citation omitted).

This Court has stated:

            Relevant evidence may nevertheless       be excluded if its
      probative value is outweighed by the danger    of unfair prejudice,
      confusion of the issues, or misleading          the jury, or by
      considerations of undue delay, waste of        time, or needless
      presentation of cumulative evidence.




                                     -6-
J-S05038-17


            Because all relevant Commonwealth evidence is meant to
      prejudice a defendant, exclusion is limited to evidence so
      prejudicial that it would inflame the jury to make a decision
      based upon something other than the legal propositions relevant
      to the case. As this Court has noted, a trial court is not required
      to sanitize the trial to eliminate all unpleasant facts from the
      jury’s consideration where those facts form part of the history
      and natural development of the events and offenses with which
      [a] defendant is charged.

Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super. 2004), appeal

denied, 876 A.2d 392 (Pa. 2005) (quotation marks, footnote, and citations

omitted).

      Here, Appellant argues that the trial court improperly admitted

evidence under Pennsylvania Rule of Evidence 404, which provides in

pertinent part:

      (b) Crimes, Wrongs or Other Acts.

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person’s character in order to show
      that on a particular occasion the person acted in accordance with
      the character.

      (2) Permitted Uses.       This evidence may be admissible for
      another purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake, or
      lack of accident. In a criminal case this evidence is admissible
      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

      In the instant matter, the relevant testimony was as follows:

      [The Commonwealth]: I want to talk now about how your
      relationship ended. Had there been prior threats by [Appellant]
      or acts of violence against you close in time to this incident, I
      guess?

                                     -7-
J-S05038-17



      [The Victim]: There have been. When I was six months
      pregnant, [Appellant] pushed me flat on the ground almost like
      football tackling me to the ground. When I was pregnant[,] he
      also tried to put my hands in a ceiling fan.

      [The Commonwealth]:         When    you   were   pregnant[,]   that
      happened?

      [The Victim]: Correct.

      [The Commonwealth]: Did you take him seriously when this was
      happening?

      [The Victim]: Yes.

(N.T. Trial, 10/26/15, at 37). The Commonwealth explained that it offered

the evidence to explain intent, why the victim did not wish to allow Appellant

into her apartment, why she did not wish to have sexual intercourse with

him, and the basis of her fear of Appellant. (See id. at 4-5).

      We have reviewed the evidence in question and conclude that the trial

court did not abuse its discretion in admitting it. The evidence was clearly

probative because it explained why the victim was afraid of Appellant and

did not want him in her apartment, and her conduct of attempting to placate

Appellant during the incident. See Commonwealth v. Ivy, 146 A.3d 241,

252 (Pa. Super. 2016) (reversing trial court decision excluding admission of

protection from abuse order obtained by victim against appellant and noting

that evidence of prior abuse between appellant and victim is generally

admissible); Commonwealth v. Jackson, 900 A.2d 936, 940 (Pa. Super.

2006), (holding that history of prior domestic violence between appellant


                                    -8-
J-S05038-17


and murder victim was admissible as part of sequence of events which

formed history of case as well as to show motive, malice, intent and ill-will

towards victim).

     Moreover, even if we were to find error, Appellant has not shown that

he was prejudiced. Our Supreme Court has stated:

     An error will be deemed harmless where the appellate court
     concludes beyond a reasonable doubt that the error could not
     have contributed to the verdict.      If there is a reasonable
     possibility that the error may have contributed to the verdict, it
     is not harmless. In reaching that conclusion, the reviewing court
     will find an error harmless where the uncontradicted evidence of
     guilt is overwhelming, so that by comparison the error is
     insignificant. . . .

Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003) (citation

omitted).

     Here, as noted above, the evidence regarding the prior incidents of

domestic violence was a brief mention of two incidents in response to the

Commonwealth’s question. (See N.T. Trial, 10/26/15, at 37). Appellant has

failed to show any evidence that these brief statements unduly prejudiced

the jury, who acquitted Appellant of the most serious charges. Given this,

the prejudice arising from a brief mention of two prior incidents of domestic

violence was de minimis.    See Commonwealth v. Passmore, 857 A.2d

697, 711 (Pa. Super. 2004), appeal denied, 868 A.2d 1199 (Pa. 2005) (error

is harmless when “the prejudice was de minimis[.]”) (citation omitted).

Because the evidence was both relevant and not unduly prejudicial, the trial

court did not err in denying Appellant’s motion in limine.     See Schley,

                                    -9-
J-S05038-17


supra at 514-15; Broaster, supra at 592.           Appellant’s first claim lacks

merit.

     In his remaining four claims, Appellant challenges the sufficiency of

the evidence underlying his conviction.      (See Appellant’s Brief, at 13-17).

However, Appellant waived these claims.

           Pennsylvania Rule of Appellate Procedure 1925(b)
     provides, inter alia, “Issues not included in the Statement and/or
     not raised in accordance with the provisions of this paragraph
     (b)(4)    are    waived.”        Pa.R.A.P.1925(b)(4)(vii).      In
     Commonwealth v. Garland, 63 A.3d 339 (Pa. Super. 2013),
     this Court found the appellant had waived his sufficiency of the
     evidence claim where his 1925(b) statement simply averred the
     evidence was legally insufficient to support the convictions and
     in doing so reasoned:

                  In order to preserve a challenge to the
           sufficiency of the evidence on appeal, an appellant’s
           Rule 1925(b) statement must state with specificity
           the element or elements upon which the appellant
           alleges that the evidence was insufficient. “Such
           specificity is of particular importance in cases where,
           as here, the appellant was convicted of multiple
           crimes each of which contains numerous elements
           that the Commonwealth must prove beyond a
           reasonable doubt.”         Here, as is evident, [the
           a]ppellant . . . failed to specify which elements he
           was challenging in his Rule 1925(b) statement. . . .
           Thus, we find [his] sufficiency claim waived on this
           basis.

           Id. at 344 (citations omitted).

In the Interest of J.G., 145 A.3d 1179, 1189 (Pa. Super. 2016).

     In this case, Appellant’s Rule 1925(b) statement merely states, “[t]he

Commonwealth failed to introduce sufficient evidence to convict [Appellant]

beyond a reasonable doubt of the above-captioned offenses.”                (See

                                   - 10 -
J-S05038-17


Appellant’s Rule 1925(b) Statement, 11/15/16, at 1). Appellant’s statement

of the questions involved is equally vague.     (See Appellant’s Brief, at 5).

Appellant does not list the elements of the crime, state which element he is

challenging, or explain why he believes the evidence was insufficient.

Accordingly, we deem Appellant’s issue waived. See J.G., supra at 1189.

      Moreover, even if we were to address the merits of Appellant’s

sufficiency claim, it would fail. Our standard of review for sufficiency of the

evidence claims is well settled:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed
      in a light most favorable to the Commonwealth as verdict
      winner, support the conviction beyond a reasonable doubt.
      Where there is sufficient evidence to enable the trier of fact to
      find every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and 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.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted) (emphasis added).

      Appellant challenges the sufficiency of the evidence with respect to his

conviction for sexual assault, criminal trespass, false imprisonment, and

simple assault. Initially, we note that Appellant’s argument disregards our

                                     - 11 -
J-S05038-17


standard of review, which requires that we view the evidence in a light most

favorable to the Commonwealth as verdict winner, because Appellant only

discusses the evidence in the light most favorable to him, and ignores any

unfavorable testimony by the victim.         (See Appellant’s Brief, at 13-17).

Further, Appellant overlooks the fact that this Court does not re-weigh the

evidence nor do we engage in credibility determinations.     (See id.).

      The crime of sexual assault occurs when a “person engages in sexual

intercourse or deviate sexual intercourse with a complainant without the

complainant’s consent.”    18 Pa.C.S.A. § 3124.1.       An individual commits

simple assault if he “attempts to cause or intentionally, knowingly or

recklessly causes bodily injury to another[.]”      18 Pa.C.S.A. § 2701(a)(1).

The phrase, “[b]odily injury” is defined as “[i]mpairment of physical

condition or substantial pain.” 18 Pa.C.S.A. § 2301. An individual commits

the crime of false imprisonment if he “knowingly restrains another unlawfully

so as to interfere substantially with his liberty.”    18 Pa.C.S.A. § 2903(a).

False imprisonment “covers restraints which are less serious than those

necessary for the offenses of kidnapping and unlawful restraint.”         In the

Interest of M.G., 916 A.2d 1179, 1181-82 (Pa. Super. 2007) (footnotes

and citations omitted). Rather it concerns instances “where an individual’s

liberty is interfered with in an ample or considerable manner.” Id. (citation

omitted).   Lastly, an appellant is guilty of criminal trespass where he

“enters, gains entry by subterfuge or surreptitiously remains in any building


                                    - 12 -
J-S05038-17


or occupied structure or separately secured or occupied portion[.]”         18

Pa.C.S.A. § 3503(a)(1)(i). An occupied structure is “[a]ny structure, vehicle

or place adapted for overnight accommodations of persons, or for carrying

on business therein, whether or not a person is actually present.”          18

Pa.C.S.A. § 3501.

       Here, the evidence at trial, as discussed above, clearly demonstrated

that Appellant, who was not on the lease and did not have a key to the

victim’s apartment, force his way in without her permission. He grabbed the

victim by the arms, causing bruises.      When the victim attempted to get

away from him to call for help, he grabbed her phone and struggled with

her.   During the struggle, he forcibly held his hands over her mouth and

throat, making breathing difficult. He pushed her face down onto the floor

and sat on her back, holding her in place, and alternately choking her and

reading texts from her phone. When he let go of the victim, he followed her

into her living room, pushed her onto the couch, pulled down her pants and

underwear    and had sexual intercourse       with her    over   her repeated

objections. He ultimately allowed the victim to leave her apartment. The

victim had visible bruises on her arms, chest, face, and neck for at least a

week, and complained of soreness. (See generally, N.T. Trial, 10/26/15, at

11-56; see also Trial Ct. Op., at unnumbered pages 2-5).

       This evidence was clearly sufficient to sustain Appellant’s convictions.

See Commonwealth v. Benito, 133 A.3d 333, 336 (Pa. Super. 2016),


                                     - 13 -
J-S05038-17


appeal denied, 141 A.3d 477 (Pa. 2016) (holding evidence sufficient to

sustain conviction for criminal trespass where estranged husband, whose

name was not on lease and did not have key to apartment, forced himself in

without wife’s permission); M.G., supra at 1182 (holding evidence sufficient

to sustain conviction for false imprisonment where defendant was in area he

was not permitted to be, stood between victim and door and locked door);

Commonwealth v. Emler, 903 A.2d 1273, 1277-78 (Pa. Super. 2006)

(holding evidence sufficient to sustain conviction for simple assault where

defendant pinned victim to ground and vigorously choked him, causing

soreness to neck and shoulders); Commonwealth v. Castelhun, 889 A.2d

1228, 1232 (Pa. Super. 2005) (“[T]he uncorroborated testimony of the

complaining witness is sufficient to convict a defendant of sexual offenses.”)

(citations omitted); Commonwealth v. Davis, 650 A.2d 452, 455 (Pa.

Super. 1994), affirmed, 674 A.2d 214 (Pa. 1996) (victim’s uncorroborated

testimony if believed by trier of fact is sufficient to support conviction even if

defense presents countervailing evidence).

      Moreover, Appellant’s claim is, in essence, a contention that the jury

should have credited his testimony that the victim invited him over and they

had consensual sex.     (See Appellant’s Brief, at 13-17). However, such an

argument goes to the weight of the evidence, not the sufficiency of the

evidence.   See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa.

Super. 2007) (claim that jury should have believed appellant’s version of


                                      - 14 -
J-S05038-17


event rather than that of victim goes to weight, not sufficiency of evidence);

Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003)

(review of sufficiency of evidence does not include assessment of credibility

of testimony; such claim goes to weight of evidence); Commonwealth v.

Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997) (credibility determinations

are made by finder of fact and challenges to those determinations go to

weight, not sufficiency of evidence).        Accordingly, even if it had been

properly preserved, Appellant’s sufficiency of the evidence claim lacks merit.

      Appellant’s issues are either waived or lack merit. Thus, we affirm the

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




                                    - 15 -
