J-S07001-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                    v.

DAVID BROOKS

                         Appellant                      No. 972 MDA 2016


           Appeal from the Judgment of Sentence March 22, 2016
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0003977-2014


BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                            FILED FEBRUARY 10, 2017

      David Brooks appeals from the March 22, 2016 judgment of sentence

of life imprisonment, a consecutive term of twenty-five to fifty years

imprisonment, and a concurrent term of imprisonment of ten to twenty

years, which was imposed following his conviction of rape by forcible

compulsion, corruption of minors, and unlawful contact or communication

with a minor. His sole challenge is that the jury verdict is against the weight

of the evidence. We remand the record to the trial court for the preparation

of a Pa.R.A.P. 1925(a) opinion addressing the weight of the evidence with

the benefit of the notes of testimony from trial.

      Appellant was charged with rape, attempted rape, sexual assault,

attempted sexual assault, corruption of minors and unlawful contact or
J-S07001-17



communication with a minor based on events that occurred the morning of

June 5, 2014.       The following facts were adduced at the jury trial.        The

complainant,    a   sixteen-year-old   female,   lived   with   her   mother   and

stepfather, Appellant herein. That morning, her mother had already left for

work as was customary and the complainant was getting ready to go to

school.   She put on her bra and underwear and a pink robe and went

downstairs to the basement to get clothes out of the dryer that she intended

to wear that day.     While she was in the basement, Appellant grabbed her

from behind, restrained her arms, tackled her to the ground and got on top

of her. She started screaming and told him to get off her, but he covered

her mouth and ripped off her panties. She struggled, but she was no match

for the 210-pound Appellant. The complainant begged him not to take her

virginity, and threatened to commit suicide if he did this to her.             She

reached over and grabbed a speaker cable and tried to wrap it around

Appellant’s neck, but her efforts failed.    According to the complainant, he

tried to penetrate her two times but “was only able to get the head of his

penis into the entrance of her vagina[,]” not full penetration.        N.T., 1/12-

13/16, at 90. When she was on her back, Appellant said, “I’ve been looking

at you for a long time.” Id. at 93.

      Appellant dragged her to another area of the basement where he

picked up Vaseline, and then, while attempting to return to the area of the

pool table, complainant lost her footing and they fell to their knees.

                                       -2-
J-S07001-17



Appellant lost his grip, she elbowed him in the chest, and she ran for the

stairway.   Appellant grabbed her by the waist and tried to pull her back.

She reached for a steam cleaner, grabbed the handle and tried to hit him

with it. Appellant released his grip and she ran up the stairs and out of the

house.

      A neighbor, Michelle Green, heard pleas for help and looked outside.

She saw the complainant standing in the street calling for help, wearing only

a bra and a headscarf, with blood running down her legs.          Ms. Green

assisted the young girl into her house. The complainant told her that her

stepfather tried to rape her. Ms. Green’s spouse called 911, her adult

daughter provided sweat pants and a shirt for the complainant to wear, and

Ms. Green provided a phone so the complainant could call her mother.

Before police and her mother arrived, the complainant told Ms. Green what

had happened. She was hysterical.

      Investigation at the scene by Penbrook Police officers revealed blood

on the floor of the kitchen, a pink robe on the steps, a steamer mop in two

pieces, and a shirt, sanitary napkin and panties on the floor near the pool

table in the basement. The victim was taken to the hospital and a rape kit

was utilized to obtain evidence of the sexual assault.

      At 11:05 p.m. that night, Officer Jesse Foltz responded to a 911 call

regarding a disturbance at 3011 George Street.      He was aware that there

was an arrest warrant for Appellant and that Appellant was associated with

                                     -3-
J-S07001-17



that address. A man invited the officer into the house and advised him that

Appellant was in the basement. The officer told Appellant to come upstairs,

and, as he did so, family members of the victim berated him for assaulting

and raping the victim. Appellant responded, “I know I f__ed up, I’m sorry.”

Id. at 131.     As the officer was cuffing him, Appellant asked that he not

tighten the cuffs as he had tried to cut his wrists.

      During the trial, the jury heard from a DNA expert that the vaginal

sample from the victim contained sperm cells and that Appellant could not

be excluded as the major contributor to the sample. Id. at 226. The odds

of someone else in the general population having that same profile was one

in seven trillion, more than the world’s population, and the highest and

strongest statistic that is reported from DNA testing.      Id. at 232.   In

addition, telephone calls from Appellant to the victim’s mother were played

for the jury.   In one call, Appellant told her that he would plead guilty to

everything; in another, he said that the drugs made him do it and that he

was overcome by a demon.

      Appellant waived his right to counsel and represented himself at trial

with the assistance of stand-by counsel.      His own testimony was the only

evidence he offered on his own behalf. He maintained that the complainant

was lying, he did not rape her, and she manufactured the story because she

was biased against him.




                                      -4-
J-S07001-17



      The jury found Appellant guilty of rape, corruption of minors, and

unlawful contact or communication with a minor. Sentencing was deferred

for ninety days at the Commonwealth’s request to allow for an evaluation

from the Sexual Offender Assessment Board (“SOAB”) and a pre-sentence

investigation.

      On March 22, 2016, Appellant appeared pro se at sentencing but

advised the court that he wanted his stand-by counsel to represent him on

appeal.   The Commonwealth represented to the court that it notified

Appellant it would be seeking mandatories for a second crime of sexual

violence pursuant to 42 Pa.C.S. § 9718.1 and for a third crime of violence

pursuant to § 9714, and provided the certified records to establish the

application of the mandatories. Although the SOAB concluded there was not

enough evidence to classify Appellant as a sexually violent predator under

42 Pa.C.S. § 9799.24, the Commonwealth pointed out that Appellant

previously had been convicted of sexual assault for grabbing a woman from

behind on the street, dragging her into his home, and sexually assaulting

her. In light of the fact that he had shown no remorse, the Commonwealth

asked for a life sentence for society’s protection.

      Appellant told the court that, during his thirty-year criminal history, he

had been battling severe drug and alcohol addiction. He had nine years of

sobriety during which he worked, was active in his church, and engaged in

community service. He maintained that he was innocent of the crimes. The

                                      -5-
J-S07001-17



court explained that Appellant had forfeited his right to be a member of the

community due to his savage and violent past. Finding that he was beyond

rehabilitation, the court stated that its only recourse was life imprisonment.

        Appellant filed a timely post-sentence motion on March 29, 2016

requesting that his sentence be vacated and a new trial granted as the

verdict was against the weight of the evidence. The trial court denied the

motion on April 22, 2016, and Appellant filed a pro se notice of appeal on

June 2, 2016.1 Counsel filed an unopposed motion to file a notice of appeal

out of time on Appellant’s behalf on June 9, 2016, filed an appeal that same

day, and the court granted the motion on June 17, 2016.                Appellant

complied with the court’s order to file a Pa.R.A.P. 1925(b) concise statement

of matters complained of on appeal, and the trial court issued a Rule

1925(a) opinion stating that it could not address the sufficiency and weight

of the evidence arguments raised in the statement as Appellant failed to

order the trial transcripts. Appellant filed a petition for transcripts on August

2, 2016, which was granted, and the certified record has been supplemented

with those documents.

        Appellant’s only issue on appeal is, “Did the trial court commit

reversible error when it allowed the verdict to stand as the finding of guilt


____________________________________________


1
    That appeal was dismissed as duplicative by this Court on August 3, 2016.



                                           -6-
J-S07001-17



was against the greater weight of the evidence presented at trial?”

Appellant’s brief at 4 (unnecessary capitalization omitted).

      The law is settled that “a weight of the evidence claim is primarily

addressed to the discretion of the judge who presided at trial.      The trial

court should grant a new trial on this basis “only in truly extraordinary

circumstances, i.e., when the jury’s verdict is so contrary to the evidence as

to shock one’s sense of justice and the award of a new trial is imperative so

that right may be given another opportunity to prevail.” Id. at 1148-1149

(quoting Armbruster v. Horowitz, 813 A.2d 698, 703 (Pa. 2002)).

      Our standard of review is distinct from that of the trial court. As our

High Court reiterated in Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.

2013):

      Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. Because
      the trial judge has had the opportunity to hear and see the
      evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the trial
      judge when reviewing a trial court's determination that the
      verdict is against the weight of the evidence. One of the least
      assailable reasons for granting or denying a new trial is the
      lower court's conviction that the verdict was or was not against
      the weight of the evidence and that a new trial should be
      granted in the interest of justice.

Id. at 432 (emphasis in original) (internal citations omitted) (quoting

Widmer, supra at 753).




                                     -7-
J-S07001-17



      Since Appellant preserved his weight challenge in a post-sentence

motion and petitioned to supplement the record with the notes of testimony,

we decline to find waiver.    Nonetheless, we cannot engage in appellate

review of this issue without the trial court’s ruling and rationale.   For that

reason, we remand the record as supplemented to the trial court for its

opinion limited to Appellant’s weight of the evidence claim.

      Case and record remanded. Jurisdiction retained.




                                     -8-
