J-S60027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STEVEN DOUGLAS HESS

                            Appellant                 No. 167 MDA 2014


      Appeal from the Judgment of Sentence entered December 17, 2013
             In the Court of Common Pleas of Cumberland County
               Criminal Division at No: CP-21-CR-0000643-2012


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 12, 2015

        Appellant, Steven Douglas Hess, appeals from the judgment of

sentence imposed on December 17, 2013 in the Court of Common Pleas of

Cumberland County following his convictions of involuntary deviate sexual

intercourse (“IDSI”), sexual assault, and two counts of indecent assault.1

Appellant argues the evidence was insufficient to sustain his IDSI conviction.

Following review, we affirm.

        In its 1925(a) opinion, the trial court summarized the testimony and

evidence presented at Appellant’s trial as follows:

        [Victim], (hereinafter L.H.), testified that he met [Appellant] at
        Carlisle Cares, a local homeless shelter. At the shelter, they
        became friends but were not very close. L.H. is diagnosed with
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1
    18 Pa.C.S.A. §§ 3123, 3124.1 and 3126, respectively.
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     two different types of severe arthritis and walks with a cane.
     L.H. eventually acquired an apartment for himself at 45 Wolf’s
     Bridge Road, Middlesex Township in Cumberland County,
     Pennsylvania. It was an efficiency apartment that had its own
     entrance, living room, bathroom, and kitchen. L.H. had a futon
     set up in the living room for him to sleep on.

     On February 28, 2012, L.H. had beer and wine at his apartment
     and [Appellant] came over to help L.H. with painting. L.H. set
     up a sleeping bag for [Appellant] in the living room. L.H. stated
     that [Appellant] kept going in and out of his apartment to talk to
     the other neighbors, and never actually painted the apartment
     for him.      Throughout the evening, L.H. became pretty
     intoxicated and he thought [Appellant] was also drinking. At
     some point, [Appellant] told L.H. he wanted to do something
     nice for him and “said something about a blow job.” At the time,
     L.H. just took this as vulgar talk. Sometime between 11:00 p.m.
     and 12:00 a.m., [Appellant] said he was leaving and would be
     back. L.H. informed him that if he was not back within an hour
     he would not let him back inside. After [Appellant] left, L.H.
     locked the door and passed out on the futon still wearing his
     jeans, boxers, shirt, belt, socks, and shoes.

     The next thing L.H. remembers was seeing [Appellant] over him.
     L.H. described feeling his legs being pulled up and hitting the
     end of the futon. He then saw [Appellant] with his penis in his
     mouth. [Appellant] was also fondling and putting his fingers
     inside L.H.’s rectum. L.H. testified that he was unaware this was
     occurring when it began and at no point did he consent to
     [Appellant’s] actions.

     As L.H. became more coherent, he started kicking and
     eventually was able to get up. L.H. remembers screaming and
     telling [Appellant] to get out of his house. He started hitting
     [Appellant] with his cane, but [Appellant] pushed him down.
     L.H. then remembers going into the kitchen where he grabbed a
     knife and told [Appellant] that if he didn’t leave he would kill
     him. [Appellant] came over and punched L.H. in the arm and
     L.H. slashed at [Appellant] to get him away. L.H. stated he
     probably made contact with [Appellant’s] arm. L.H. was able to
     push [Appellant] toward the door, and [Appellant] eventually
     took off. As he was leaving, L.H. testified that [Appellant] asked
     him not to call the police and told him they could work
     something out.

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     L.H. had heard previously that [Appellant] carried a small gun
     and knifes [sic] with him. Although he never saw [Appellant]
     with a weapon that evening, L.H. stated [Appellant] kept going
     near his backpack, which made him nervous and ultimately led
     to L.H. getting the knife. L.H. stated that he really felt that
     [Appellant] would have killed him that night if he did not make
     his last cry and desperate attempt against him. In fact, L.H.
     recalled [Appellant] saying he was going to kill him that evening.

     L.H. called the police; and Officer Carver arrived at the scene,
     where L.H. provided him with a written statement. Officer
     Carver described L.H.’s demeanor when he arrived as
     “[d]isturbed, distraught” and “scared and angry at the same
     time.” L.H. was able to provide his assailant’s name as Steve,
     but was unable to provide a last name. Officer Carver took
     pictures of the scene and noted there was a “significant amount
     of blood” on the floor that he believed belonged to the assailant.
     L.H. was taken to the Carlisle Hospital that night where they
     took swabs from his genital area as part of a rape kit. The
     hospital report indicated that there was no trauma to L.H.’s
     genitals.

     That night, Sergeant Patterson identified Steve as Steven Hess
     [Appellant] to Officer Carver. Officer Carver printed out an
     identification photo of [Appellant] and had it sitting on top of his
     laptop in the police vehicle. When he picked up L.H. at the
     hospital, L.H. saw the photo and pointed out that it was the
     person who sexually assaulted him.

     Officer Carver arrested [Appellant] that night, informing him he
     was being charged with sexual assault. Officer Carver did not
     provide [Appellant] with any details about the assault or who the
     complaining victim was. [Appellant] told Officer Carver “I am
     not a freak,” “I don’t fucking suck dick.” [Appellant] also stated
     that L.H. was dreaming.          Thus, [Appellant] made these
     statements to Officer Carver before the Officer had disclosed to
     [Appellant] that L.H. was the complaining victim. [Appellant]
     denied all the allegations. During another conversation on March
     14, 2012, [Appellant] told Officer Carver that “his pants might
     have been down,” referring to L.H.

     Katherine Cross, a forensic biologist and DNA technical leader at
     Guardian Forensic Science testified at trial as an expert in

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     forensic biology, serology, and DNA analysis. As part of her
     duties, Ms. Cross examines evidence for body fluids, performs
     DNA analysis, and tries to determine who the DNA belongs to.
     Ms. Cross obtained and performed testing on the rape kit in this
     case. After Ms. Cross tested the general and dried secretion
     swabs, she was able to determine that an unknown individual
     was the major contributor of DNA while the minor contributor
     was consistent with L.H.’s DNA. She also concluded it was likely
     that the major contributor’s DNA was from saliva or from the
     cells on the inside of the mouth because of how much DNA was
     recovered from the sample. Ms. Cross was eventually provided
     with a sample of [Appellant’s] DNA and was able to state to a
     degree of scientific certainty that the unknown individual and
     major contributor was, in fact, [Appellant].

     [Appellant] testified at trial and presented a somewhat different
     version of events. He agreed that he met L.H. at Carlisle Cares
     and went over to L.H.’s to help him paint his new apartment.
     [Appellant] testified that when he arrived to paint, L.H. asked
     him if he wanted to watch a pornographic movie, but [Appellant]
     passed it off. [Appellant] ran out to get more paint; and when
     he came back, L.H. had taken out alcohol. [Appellant] stated he
     had five or six shots of vodka. [Appellant] then explained that
     L.H. was the one that initiated the sexual contact and both of
     them performed oral sex on the other. [Appellant] maintained
     that L.H. at no time was unconscious and that he always knew
     what he was doing.

     After the sexual contact, [Appellant] testified that L.H. accused
     him of stealing a key and they got into a fight. [Appellant]
     stated L.H. hit him with his cane, although [Appellant] described
     the cane as more of a wooden oak staff than a cane. [Appellant]
     was hit on the head with the cane and had to have three stiches
     [sic] on the inside and seven staples on the outside. [Appellant]
     was also injured on his elbow from the cane. As [Appellant] was
     putting his boots on to leave, [Appellant] stated L.H. came
     rushing at him with a knife and stabbed him in the hand.
     [Appellant] then left the apartment and testified that L.H. told
     him not to call the cops. When first questioned by the police,
     [Appellant] said that he never engaged in sexual contact with
     L.H. He testified he did not tell his side of the story to police
     because he did not think that L.H. would take the issue this far.




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Trial Court Opinion (“T.C.O.”), 3/21/14, at 2-7 (references to Notes of

Testimony omitted).

      On September 10 2013, at the conclusion of a two-day trial, the jury

found Appellant guilty of IDSI, sexual assault, indecent assault—unconscious

or unaware victim, and indecent assault—lack of consent. The jury acquitted

Appellant on a charge of simple assault.    T.C.O. at 1.   On December 17,

2013, the trial court sentenced Appellant to a term of seven to 20 years’

imprisonment for IDSI and ordered Appellant to comply with lifetime

reporting requirements under Megan’s Law. Sentencing Order, 12/17/13, at

1. On the sexual assault conviction, the trial court sentenced Appellant to a

term of five to ten years in prison and directed Appellant to comply with

Megan’s Law reporting requirements. Id. The sexual assault sentence was

to run concurrently with the IDSI sentence for a total period of incarceration

of seven to 20 years. Id. The remaining convictions merged with the IDSI

and sexual assault convictions for purposes of sentencing. Id. at 1-2.

      Appellant filed a Motion for Judgment of Acquittal on December 26,

2013. The trial court denied the motion on January 6, 2014 and this timely

appeal followed.

      In the sole issue raised in this appeal, Appellant argues that the

evidence, viewed in the light most favorable to the Commonwealth, was

insufficient as a matter of law to convince a reasonable fact finder that




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Appellant was guilty of IDSI. Appellant’s Brief at 8.       Appellant is not

challenging the remaining convictions.

     With respect to a sufficiency challenge, our Supreme Court has stated:

     A claim challenging the sufficiency of the evidence is a question
     of law. 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. Commonwealth v. Karkaria, 533 Pa. 412,
     625 A.2d 1167 (1993). Where the evidence offered to support
     the verdict is in contradiction to the physical facts, in
     contravention to human experience and the laws of nature, then
     the evidence is insufficient as a matter of law. Commonwealth
     v. Santana, 460 Pa. 482, 333 A.2d 876 (1975).              When
     reviewing a sufficiency claim the court is required to view the
     evidence 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. Chambers, 528
     Pa. 558, 599 A.2d 630 (1991).

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).             Further, as

this Court has recognized:

     We may not weigh the evidence or substitute our judgment for
     that of the fact-finder. Additionally, the evidence at trial need
     not preclude every possibility of innocence, and the fact-finder is
     free to resolve any doubts regarding a defendant’s guilt unless
     the evidence is so weak and inconclusive that as a matter of law
     no facts supporting a finding of guilt may be drawn. The fact-
     finder, when evaluating the credibility and weight of the
     evidence, is free to believe all, part, or none of the evidence.

Commonwealth v. Oliver, 946 A.2d 1111, 1112 (Pa. Super. 2008)

(quoting Commonwealth v. Stevenson, 894 A.2d 759, 773 (Pa. Super.

2006) (citations and quotations omitted)).

     IDSI is defined in 18 Pa.C.S.A. § 3123 and provides, in pertinent part,

that “[a] person commits a felony of the first degree when the person

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engages in deviate sexual intercourse with a complainant: (1) by forcible

compulsion; [or] . . . (3) who is unconscious or where the person knows that

the complainant is unaware that the sexual intercourse is occurring.”                18

Pa.C.S.A. § 3123(a)(3).      Deviate sexual intercourse is defined as “sexual

intercourse per os or per anus between human beings.”                  18 Pa.C.S.A.

§ 3101.      “A person is unconscious for purposes of the statute when they

lack the conscious awareness they would possess in the normal waking

state.”     Widmer, 744 A.2d at 753 (citations omitted).              A person acts

recklessly with respect to a victim’s unconsciousness by consciously

disregarding    a   substantial   and   unjustifiable   risk   that   the   victim   is

unconscious.     See 18 Pa.C.S.A. § 302(3).        “The risk must be of such a

nature and degree that, considering the nature and intent of the actor’s

conduct and the circumstances known to him, its disregard involves a gross

deviation from the standard of conduct that a reasonable person would

observe in the actor’s situation.”      Id.   “Furthermore, it is well-established

that the uncorroborated testimony of the complaining witness is sufficient to

convict a defendant of sexual offenses.”        Commonwealth v. Castelhun,

889 A.2d 1228, 1232 (Pa. Super. 2005) (internal quotations and citations

omitted).

      With the above principles in mind, we turn to Appellant’s contention

that the evidence presented at trial was insufficient to sustain his conviction

for IDSI. In his brief, Appellant “adopts the Statement of Facts in the [trial


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court’s] opinion . . . as if set forth in this brief in its entirety.” Appellant’s

Brief at 9. Appellant then argues that L.H.’s testimony, i.e., “that he was

fully dressed when he went to sleep and did not know what was going on

until his belt was loosened, his pants were taken off, his underwear was

lowered and the Appellant was having oral sex with him,” is incredible.

Appellant’s Brief at 12. “Where the evidence offered to support the verdict

is in contradiction to the physical facts, and contravention to human

experience and laws of nature, then the evidence is insufficient as a matter

of law.”     Id. (citing Commonwealth v. Santana, 333 A.2d 876 (Pa.

1975).2

        The Commonwealth counters that Appellant’s argument is without

merit    because    “the    jury   believed    the   victim   and   not   [Appellant’s]

inconsistent and self-serving statements.            [Appellant] implies that a man

cannot have his pants removed, be pinned down, and then be digitally

violated and fellated while in an alcoholic stupor.” Appellee’s Brief at 10.

        Our review of the evidence presented at trial, as aptly summarized by

the trial court in its opinion and viewed in the light most favorable to the

Commonwealth as verdict winner, leads us to conclude that the elements of
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2
   The Commonwealth challenges Appellant’s reliance on Santana as
“disingenuous,” noting that Santana recognized that it is physically
impossible to unlock a deadbolt lock from the outside without a key whereas
here it is physically possible for one man to physically and sexually assault
another man who is in an alcoholic stupor. Appellee’s Brief at 12-13. We
agree and find Appellant’s reliance on Santana misplaced.



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IDSI have been established beyond a reasonable doubt.           The evidence

supports a finding that an act of deviate sexual intercourse was forcibly

performed by Appellant on L.H. without his consent and while L.H. was

unconscious and unaware that the sexual intercourse was occurring.

      As the trial court explained, there was no question that Appellant’s

DNA was present on L.H.’s genitals. While Appellant contended that he and

L.H. performed oral sex on each other, it was for the jury to decide which

witness to believe, either Appellant or L.H. T.C.O. at 8. “As the fact-finder,

the jury was free to observe the demeanor of both L.H. and [Appellant] and

make credibility determinations. The jury found L.H. to be credible.” Id. at

9. Further, “[Appellant’s] defense theory shifted from absolutely nothing

happened to, yes, there was sexual activity but it was consensual. Clearly

one of these statements was a lie. Accordingly, the jury could reasonably

surmise that [Appellant] was capable of lying.” Id. at 10.

      The evidence of record was sufficient to prove the elements of IDSI

beyond a reasonable doubt.     Appellant’s assertions to the contrary fail for

lack of arguable merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2015

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