J-S24024-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JAMIEL DOWDY

                             Appellant                 No. 673 EDA 2019


       Appeal from the Judgment of Sentence entered September 6, 2018
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0002031-2014


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 11, 2020

        Appellant, Jamiel Dowdy, appeals from the judgment of sentence

imposed on September 6, 2018 following his convictions of sexual assault,

terroristic threats, and indecent assault.1    Appellant argues the trial court

erred by admitting prior acts evidence and contends the verdict was against

the weight of the evidence. Upon review, we affirm.

        The trial court provided the following factual background:

        On January 1, 2014 around 2:00 A.M. Complainant and her
        boyfriend left a New Year’s Eve party after they had a verbal
        altercation. Their argument escalated into physical violence upon
        their return home, and ultimately, Complainant was kicked out
        into the street with no shoes or coat. The Complainant went
        around the corner from her house, sat on a ramp, and was crying

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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3124.1, 2706, and 3126, respectively.
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      when she encountered Appellant who pulled up in a white van,
      parked and inquired why she was upset. Appellant’s offer to take
      the Complainant to the nearest police station was accepted and
      she got into his vehicle. Instead, Appellant drove around the
      neighborhood before parking at his residence.

      At his residence Appellant said he needed to go inside to get a
      phone charger. The Complainant did not want to go inside,
      however, Appellant dragged her out of the car by her hair into the
      residence, and up the stairs to a second floor bedroom where he
      sexually assaulted her. Throughout the assault, the Appellant
      kept control over the Complainant by holding her hair, forcibly
      engaging her in oral and vaginal intercourse. The Complainant
      begged the Appellant to use a condom to which he complied. He
      did not ejaculate. When Appellant attempted anal intercourse, the
      Complainant screamed and he stopped. The sexual assault was
      accompanied by Appellant’s threats such as “You better do it or
      else I’ll fuck you up, bitch. I will kill you.” When the Appellant
      finished he apologized, ‘chuckled’ and stated, “I’m sorry, I
      basically just raped you.” When Complainant first asked to leave,
      Appellant responded, “Don’t make me turn into a asshole again.”
      Eventually, the Complainant was returned to her neighborhood,
      went to the home of her boyfriend’s cousin who lived across the
      street, and reported the incident. The Complainant was taken to
      the police Special Victims Unit, gave a statement to detectives,
      and was given a sexual assault examination.

Trial Court Opinion, 7/18/19, at 2-3 (footnote and references to notes of

testimony omitted).

      At the conclusion of Appellant’s bench trial, the trial judge announced

her verdict, finding Appellant guilty of sexual assault (a felony of the second

degree), terroristic threats, and indecent assault (both misdemeanors), but

not guilty of the remaining charges, which included first-degree felony charges

of kidnapping, rape, and intentional deviate sexual intercourse, as well as

other misdemeanor offenses.       On September 6, 2018, the trial court

sentenced Appellant to a term of five to ten years in prison for sexual assault

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along with concurrent sentences of two to four years in prison for terroristic

threats and two years’ probation for indecent assault. Appellant filed a post-

sentence motion, which the trial court denied on January 31, 2019.           This

appeal followed.2 Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant asks us to consider two issues in this appeal:

        I.    Did not the lower court err in admitting prior acts evidence
              against [Appellant] where it was only relevant to show
              [Appellant] acted in conformity with the prior act?

        II.   Were the verdicts so contrary to the weight of the evidence
              as to shock one’s sense of justice and be based on pure
              conjecture?

Appellant’s Brief at 2.

        Appellant’s first issue stems from the trial court’s September 7, 2016

ruling following a hearing on the Commonwealth’s motion to permit other acts

evidence.      The “other act” at issue was a rape that occurred under

circumstances similar to those involved in the instant case, leading to

Appellant’s conviction for that crime.




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2 To be timely, Appellant’s appeal had to be filed by Monday, March 4, 2019.
Because the trial court docket reflects a March 5, 2019 filing date, we issued
a rule to show cause why the appeal should not be dismissed as untimely.
Appellant filed a response, contending the appeal was timely filed on March 4,
and attached as proof a time-stamped copy of the notice reflecting filing on
March 4, 2019 at 4:23 p.m. We issued an order that discharged the rule and
referred the matter to this merits panel. In light of the March 4, 2019 time
stamp, we conclude the appeal was timely filed.

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       When considering a challenge to an evidentiary ruling of the trial court,

“our standard of review is limited. A trial court’s decision will not be reversed

absent a clear abuse of discretion.”           Commonwealth v. Conte, 198 A.3d

1169, 1180 (Pa. Super. 2018) (quoting Commonwealth v. Aikens, 990 A.2d

1181, 1184 (Pa. Super. 2010) (citations omitted)).

       As our Supreme Court has explained:

       Generally, evidence of prior bad acts or unrelated criminal activity
       is inadmissible to show that a defendant acted in conformity with
       those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).
       However, evidence of prior bad acts may be admissible when
       offered to prove some other relevant fact, such as motive,
       opportunity, intent, preparation, plan, knowledge, identity, and
       absence of mistake or accident.             Pa.R.E. 404(b)(2).     In
       determining whether evidence of other prior bad acts is
       admissible, the trial court is obliged to balance the probative value
       of such evidence against its prejudicial impact.

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (citations

omitted).

       At trial, the prosecutor read the following stipulation into the record:

       Your Honor, there is a stipulation that [Appellant] has a prior
       conviction for similar acts. On December 12, 1996, [Appellant]
       saw the victim [R.P.P.][3] at a club around 2:30 in the morning.
       She asked him if he could give her a ride home and he agreed.
       [R.P.P.] got into the car with [Appellant and another person].

       But instead of driving her home, [Appellant] drove[] her to his
       house at 1737 Newkirk Street. He told [R.P.P.] he needed to get
       permission from his cousin to use the car to go to New Jersey so
       they all went into the house.
____________________________________________


3 Although the victim was identified by name in the stipulation, we see no
reason to name her here, just as the trial court did not identify the
Complainant by name in its opinion.

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      Once inside, he told her that he wanted to have sex with her and
      she said no. [Appellant] pulled out a gun and threatened her. He
      then forced [R.P.P.] to perform oral sex on him and when he made
      his intentions clear that he was going to vaginally rape her, she
      begged him to use a condom, which he did.

      Afterwards . . . they walked together for a few blocks before
      [R.P.P] began screaming and [Appellant] ran. Police arrested
      [Appellant] and after trial, he was convicted of rape, involuntary
      deviate sexual intercourse, and related offenses[.]

Trial Court Opinion, 7/18/19, at 5 (quoting Notes of Testimony, Trial, 6/13/18,

at 128-29).

      As the trial court explained:

      There were shared similarities between the two cases, such as:
      both victims were young African American females who
      encountered Appellant in the early morning hours; the crimes
      were committed in close proximity to each other; the Appellant
      gave a ride to both victims; both victims were driven to Appellant’s
      residence instead of their intended destinations; both victims were
      forced to perform oral sex on Appellant; both victims begged
      Appellant to use a condom to which he complied; both victims
      were vaginally raped; and both victims were threatened.

Id. at 5 (citing Notes of Testimony, Hearing, 9/7/16, at 5-6).

      The trial court concluded that “[t]he striking similarities established a

common scheme, plan or design and an absence of mistake or accident.” Id.

Similarly, in finding evidence of prior crimes admissible, our Supreme Court

in Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017), stated:

      These similarities not only establish the required logical
      connection between the prior assaults and the circumstances
      surrounding the victim’s death, they also present a “virtual
      signature” for purposes of proving common scheme, intent and
      identity. They are not mere insignificant details of crimes of the


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      same class, where there is nothing distinctive to separate them
      from, for example, common street crimes.

Id. at 1128 (citing, inter alia, Commonwealth v. Weakley, 972 A.2d 1182,

1189 (Pa. Super. 2009) (sufficient commonality of factors between crimes

dispels notion they are merely coincidental and permits conclusion they are

so logically connected as to share a perpetrator)).

      Again, as our Supreme Court recognized in Sherwood, Pa.R.Crim.P.

404(b)(2) provides that evidence of other crimes may be admissible to show,

inter alia, opportunity, intent, preparation or plan, if the probative value

outweighs the potential for unfair prejudice. Sherwood, 982 A.2d at 487.

Here, the similarities between Appellant’s earlier crime and the circumstances

of the present case likewise establish a logical connection between the

assaults and present a “virtual signature” for “proving common scheme, intent

and identity,” permitting a “conclusion they are so logically connected as to

share a perpetrator.” See Hicks, 156 A3d at 1128. The trial court weighed

the probative value against the prejudicial impact and concluded, “On balance,

the evidence was relevant, outweighed any prejudice, and was properly

admitted.” Trial Court Opinion, 7/18/19, at 5.

      Based on our review of the evidence and relevant authorities, we find

no abuse of discretion in the trial court’s determination that evidence of

Appellant’s previous crime demonstrated a common scheme and that the




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probative value of that evidence outweighed the potential for unfair prejudice.

Appellant is not entitled to relief on his first issue.4

       In his second issue, Appellant contends the verdicts were against the

weight of the evidence. Our Supreme Court has instructed:

       In reviewing a trial court’s adjudication of a weight of the evidence
       claim, “an appellate court determines whether the trial court
       abused its discretion based upon review of the record; its role is
       not to consider the underlying question in the first instance.”
       Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 653
       (2008). Thus, a weight of the evidence claim must be presented
       to the trial court so that it may address it in the first instance.
       Commonwealth v. Widmer, 547 Pa. 137, 689 A.2d 211, 212
       (1997). See also Commonwealth v. Karkaria, 533 Pa. 412,
       625 A.2d 1167, 1170 n. 3 (1993) (“An allegation that the verdict
       is against the ‘weight’ of the evidence is a matter to be resolved
       by the trial court.”).

       Once a weight of the evidence claim has been presented to the
       trial court, it then reviews the evidence adduced at trial and
       determines whether “notwithstanding all the facts, certain facts
       are so clearly of greater weight that to ignore them or to give
       them equal weight with all the facts is to deny justice.”
       [Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055
       (2013)]. A trial court should award a new trial if the verdict of the
       fact finder “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. Stated another
       way, “[a] weight of the evidence claim concedes that the evidence
       is sufficient to sustain the verdict, but seeks a new trial on the
       ground that the evidence was so one-sided or so weighted in favor
       of acquittal that a guilty verdict shocks one’s sense of justice.”
       Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, 1067
       (2013).
____________________________________________


4 The trial court also determined that the prior acts evidence issue was waived
in light of Appellant’s acceptance of the stipulation and failure to object to it.
However, the stipulation was agreed to between the parties based on the trial
court’s September 7, 2016 pre-trial ruling allowing the evidence. We do not
find the issue waived.

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In re J.B., 106 A.3d 76, 95 (Pa. 2014). Relief on a weight of the evidence

claim is available in an appellate court only if it can be said that the trial court

acted capriciously or palpably abused its discretion. In re M.B., 228 A.3d

555, 573 (Pa. Super. 2020) (citing Commonwealth, Dept of Gen. Servs. v.

U.S. Mineral Prods. Co., 956 A.2d 967, 973 (Pa. 2008)).

      Here, the trial court considered the evidence presented at trial and

concluded:

      The evidence presented by the Commonwealth was more than
      sufficient to prove the Appellant guilty of the crimes charged.
      Complainant’s testimony was credible and corroborated with other
      evidence, such as the video evidence which corroborated her
      account of the initial encounter with Appellant in the white van.
      While the Commonwealth’s case was devoid of incriminating
      physical evidence, as the DNA results did not implicate the
      Appellant who was wearing a condom and did not ejaculate, the
      Complainant’s testimony was detailed and believable beyond a
      reasonable doubt.

      The Complainant’s credible account set forth the reasons why she
      was out in the cold during the early morning hours of January 1,
      2014, barefoot and dressed only in a sweater and pants.
      Appellant’s sexual assault was vividly explained, step by step,
      from being forced out of the van, up the stairs into a bedroom
      where the Complainant was positioned for oral, vaginal, and
      unconsummated anal sex. The Complainant described: the fear
      she felt because of Appellant’s threats; how she threw up as
      Appellant forced her with threats to keep performing oral sex; how
      she screamed when Appellant tried to penetrate her anally; and,
      how ultimately she complied with Appellant’s demands so she “can
      make this out alive, out of this situation alive.” The Complainant’s
      ordeal was punctuated at its conclusion when Appellant with a
      ‘chuckle’ admitted to her “I felt like I just raped you.”

      At trial, Appellant presented evidence that was unconvincing
      and/or of little evidentiary value. The testimony of Appellant’s
      friends, Adams and Wagstaff, to the effect that they had seen the

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      Complainant in Appellant’s van prior to January, 2014 lacked
      credibility. Also of minimal value was the testimony of Appellant’s
      mother regarding her two sisters, who lived with Appellant at the
      family home at the time of the incident, one of which, Trudy
      Tolliferreo required a loud oxygen machine every day. Tolliferreo,
      who was elderly and infirm, by way of stipulation, testified that
      she didn’t hear anything or see the Complainant when the incident
      reportedly occurred.

      In addition to the Complainant’s credibility which was not undercut
      by the defense presentation, there was Appellant’s attempt to
      elude police by hiding in a crawl space under his basement steps.
      Such attempts at concealment portrays [sic] his consciousness of
      guilt. The court’s verdict is not contrary to, nor is it against, the
      weight of the evidence and [shocks no one’s conscience]. No relief
      is warranted.

Trial Court Opinion, 7/18/19, at 3-4 (references to notes of testimony and

some capitalization omitted).

      Based on our review of the record, we do not discern any abuse of

discretion on the part of the trial court in rejecting Appellant’s weight of the

evidence claim. Therefore, we shall not disturb it.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2020




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