J-A21004-17

                              2017 PA Super 360



COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

CODY MARK ALAN STAHL,

                         Appellant                  No. 203 WDA 2017


             Appeal from the Order Entered January 11, 2017
             In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0001772-2015


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

OPINION BY BENDER, P.J.E.:                FILED NOVEMBER 14, 2017

      Appellant, Cody Mark Alan Stahl, appeals from trial court’s order

denying his motion for judgment of acquittal following the court’s declaration

of a mistrial after Appellant’s trial for rape and related offenses.     After

careful review, we affirm.

      Briefly, the instant matter arises from events which occurred on a

Saturday night in October of 2014.      The alleged victim was drinking at

various bars in Windber, PA, and eventually was driven home by Appellant

and Robert Kachur (“Kachur”).         The three then engaged in sexual

intercourse together, which the Commonwealth and the victim maintain was

nonconsensual because the victim was either unconscious or unaware to an

extent that rendered her incapable of providing her consent.        Appellant

maintains that the victim was conscious throughout the encounter and,
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therefore, she was not only capable of providing her consent, but that she

actually initiated the three-way sexual encounter.                After initially being

charged as a co-defendant in this matter, Kachur ultimately entered a plea

deal   with    the   Commonwealth         and,   in   exchange,     testified   for   the

Commonwealth at Appellant’s trial. Nevertheless, Kachur’s testimony largely

supported Appellant’s version of events, both with respect to the victim’s

initiation of the sexual encounter, and her capacity to consent throughout.

       The Commonwealth charged Appellant with rape, 18 Pa.C.S. §

3121(a)(3) (unconscious or unaware victim); involuntary deviate sexual

intercourse, 18 Pa.C.S. § 3123(a)(3) (unconscious or unaware victim);

aggravated indecent assault, 18 Pa.C.S. § 3125(a)(4) (unconscious or

unaware victim); and indecent assault, 18 Pa.C.S. § 3126(a)(1) (lack of

consent).1 Appellant was tried for these offenses on December 5-7, 2016.

After determining that the jury was hopelessly deadlocked, the trial court

declared a mistrial. Subsequently, on December 16, 2016, Appellant timely

filed a motion for judgment of acquittal which, if successful, would have

prevented the Commonwealth from pursuing a retrial. Following a hearing

held on January 9, 2017, the trial court denied the motion, see Opinion and




____________________________________________


1
 Several other charges initially filed in the original criminal information on
December 2, 2015, were ultimately dropped when the Commonwealth filed
an amended criminal information on October 5, 2016.



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Order (“TCO”), 1/11/17, at 4, leading Appellant to file the instant, timely,

interlocutory appeal pursuant to Pa.R.A.P. 311(a)(6).

      Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on

February 27, 2017. On March 1, 2017, the trial court issued a statement in

lieu of a Rule 1925(a) opinion, indicating that the court would rely on the

reasoning set forth in its January 11, 2017 Opinion and Order denying

Appellant’s motion.       Appellant now presents the following question for our

review:

      Whether the Commonwealth's evidence was insufficient as a
      matter of law to meet its burden of proving the element of
      unconsciousness or unawareness beyond a reasonable doubt,
      where one of the Commonwealth's principal witnesses, a
      participant in the three-way sexual encounter at issue, testified
      that the complainant was conscious and aware throughout the
      incident, and, moreover, that the complainant instigated the
      sexual activity[?]

Appellant’s Brief at 7.

      Instantly, Appellant claims that the evidence was insufficient because

the Commonwealth’s own witness, Kachur, directly contradicted the victim’s

testimony that she had been unconscious or otherwise incapacitated to a

degree that rendered her incapable of consenting to the three-way sexual

encounter she had with Appellant and Kachur. The victim’s purported lack of

consent is a critical element of all of the charges for which Appellant was

tried. If the Commonwealth failed to offer sufficient evidence of the victim’s

incapacity to consent, the trial court should have granted Appellant’s motion

for judgment of acquittal.


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       Before we address the merits of Appellant’s claim, we must first

consider whether our standard of review for sufficiency claims is affected by

the procedural circumstances before us.                 Appellant filed a motion for

judgment of acquittal following the trial court’s declaration of a mistrial due

to a deadlocked jury, pursuant to Pa.R.Crim.P. 608 (A)(2) (“A written motion

for judgment of acquittal shall be filed within 10 days after the jury has been

discharged    without     agreeing        upon   a   verdict.”).      Appellant’s    motion

challenged    the     sufficiency    of    the   Commonwealth’s        evidence.        See

Pa.R.Crim.P. 606(A)(3) (stating that a “defendant may challenge the

sufficiency of the evidence to sustain a conviction” in “a motion for judgment

of acquittal filed within 10 days after the jury has been discharged without

agreeing upon a verdict”).          Under Pa.R.A.P. 311(a)(6), the order denying

Appellant’s motion for judgment of acquittal was appealable by right.

Pa.R.A.P. 311(a)(6) (“An appeal may be taken as of right…” from “an order

in a criminal proceeding awarding a new trial where the defendant claims

that   the   proper     disposition       of   the   matter   would     be   an     absolute

discharge[.]”). If successful, Appellant’s motion would have prevented the

Commonwealth from seeking a new trial.

       “A motion for judgment of acquittal challenges the sufficiency of the

evidence to sustain a conviction on a particular charge, and is granted only

in cases in which the Commonwealth has failed to carry its burden regarding

that charge.” Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa. Super.

2014). Therefore, in usual circumstances, we apply the following standard

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J-A21004-17



of review to sufficiency claims which arise in the context of a motion for

judgment of acquittal:

            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. 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.          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. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted) (emphasis added).

      Appellant emphasizes that the Commonwealth was not the “verdict-

winner” in this case given that the jury was deadlocked, resulting in a

mistrial.    Appellant’s Brief at 13.   As such, Appellant asserts that while

reviewing the sufficiency of the evidence at issue, this Court may not view

that evidence in a ‘light most favorable’ to the Commonwealth, or give the

prosecution ‘the benefit of all reasonable inferences,’ when the ostensible

predicate for those presumptions – that the Commonwealth was the verdict

winner – is not applicable in this case.       Id.   Consequently, Appellant

contends that we may not consider only the victim’s testimony, but must

view the entirety of the Commonwealth’s evidence “though a clear lens[.]”

Id. at 16.     From this starting point, Appellant argues that the evidence of

his guilt is at best equivocal, because of the conflicting testimony provided


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by Kachur. The Commonwealth counters that Appellant is merely presenting

a weight-of-the-evidence claim disguised as a sufficiency-of-the-evidence

claim.

      We are not convinced by Appellant’s arguments that the sufficiency

standard is watered-down in such a manner simply because of the

procedural posture of this case. First, Appellant has not presented any case

law which adopts his arguments either explicitly or implicitly. This fact alone

gives us great pause. At a minimum, Appellant’s claim is completely novel,

and not grounded in any established legal principles.

      Second, we do not find that the dissonance between past recitations of

the sufficiency standard, such as was set forth in Widmer, supra, and the

procedural uniqueness of this case (the absence of a “verdict-winner”), are

as significant as Appellant contends.      Generally, in the vast majority of

circumstances, this Court reviews sufficiency claims in the context of a

criminal conviction; hence, when the Commonwealth is the “verdict-winner.”

This much is obvious, and conceded by Appellant. Appellant’s Brief at 15.

Accordingly, the language of our case law defining the sufficiency standard

has understandably developed to address the ubiquitous procedural scenario

of a defendant’s appeal from a criminal conviction. Consequently, the term

“verdict-winner” has little significance beyond being a contextual synonym

for the terms ‘government,’ ‘Commonwealth,’ or ‘prosecution.’          Indeed,

there are no circumstances in which a sufficiency claim arises where a

defendant was the “verdict-winner,” as the Commonwealth has no right to

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J-A21004-17



appeal from acquittals. Commonwealth v. Arnold, 258 A.2d 885, 886 (Pa.

Super. 1969) (“If the order of the lower court [could] be considered an

acquittal, then the Commonwealth has no right to appeal.”).

      Third, we find persuasive the standard followed by the 5th Circuit Court

of Appeals, which has been adopted in both North Dakota and the District of

Columbia:

      Whether the sufficiency of the evidence is questioned on motion
      for judgment of acquittal made at the close of the Government's
      case, at the close of all the evidence, or after the return of a
      guilty verdict, the test is the same: viewing the case in the light
      most favorable to the Government, could a reasonably-minded
      jury . . . accept the relevant evidence as adequate and sufficient
      to support the conclusion of the defendant's guilt beyond a
      reasonable doubt.

U.S. v. Austin, 585 F.2d 1271, 1273 (5th Cir. 1978) (quotation marks,

citation, and footnote omitted); see also State v. Lambert, 539 N.W.2d

288, 289 n.2 (N.D. 1995); U.S. v. Hubbard, 429 A.2d 1334, 1338 (D.C.

App. 1981).

      In two of those scenarios, there is no jury verdict and, therefore, no

“verdict-winner.” This supports our theory that the term “verdict-winner” is

merely a synonym for the government/prosecution and has only found its

way into our criminal sufficiency standard by historical accident or, perhaps,

through careless borrowing of terminology from civil law. Nevertheless, our

courts have also routinely recited the sufficiency standard without the use of

the term “verdict-winner.”    See Commonwealth v. Duncan, 373 A.2d

1051, 1053 (Pa. 1977) (“The test to be applied in ruling on either a


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demurrer or a claim that the evidence is insufficient to support a conviction

is whether accepting as true the prosecution's evidence and all reasonable

inferences therefrom, it is sufficient to support a finding by the jury that the

defendant is guilty beyond a reasonable doubt.”); Commonwealth v.

Hankins, 380 A.2d 415, 416 (Pa. Super. 1977) (“The test of sufficiency is

whether, accepting as true all the Commonwealth's evidence plus its

reasonable inferences, and viewing it in the light most favorable to the

Commonwealth, such evidence and inferences, in combination, are sufficient

in law to establish each element of the crimes charged beyond a reasonable

doubt.”).     In sum, we reject Appellant’s contention that the sufficiency

standard changes when a criminal trial results in a hung or deadlocked jury.

The standard is not dependent on a jury’s decision, or lack thereof.

      Turning to the evidence in this case, we find that it was clearly

sufficient to support a guilty verdict. Appellant conceded that he engaged in

sexual intercourse with the victim, and that she was intoxicated at the time.

Appellant’s Brief at 22. Thus, the Commonwealth had the burden of proving

that the victim was “unconscious or … unaware that the sexual intercourse is

occurring[.]”    18 Pa.C.S. § 3121(a)(3); see also 18 Pa.C.S. § 3125(a)(4)

(requiring a showing that the victim was “unconscious or … unaware that the

penetration     is   occurring”).   Such   a   showing   would   also   suffice   to

demonstrate lack of consent for purposes of Section 3126(a)(1).

      The victim testified that on the evening in question, she had become

intoxicated to such an extent that she was denied entry into the Geistown

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J-A21004-17



Country Club. N.T., 12/5/16, at 55. Soon thereafter, she recalled “vomiting

profusely” into a bag, while a passenger in a car with Appellant and Kachur.

Id. at 56. She believed they intended to take her home. Id. She could not

recall anything else before waking up in bed, in pain, while Appellant was

having anal sex with her, and, at the same time, Kachur was attempting to

entice her to perform oral sex on him. Id. at 57.      She made a brief attempt

to stop the anal sex, but passed out again when Appellant began having

vaginal sex with her. Id. at 59. She did not wake up again until the next

morning.    Id. at 60.       This evidence, if believed, was sufficient to

demonstrate that the victim was either unconscious or unaware while she

was being sexually assaulted by Appellant and Kachur. Her testimony was

clear that she did not recall being conscious when the sexual encounter

began, and she specifically remembered waking up, briefly, during the

encounter, only to pass out again. To the extent that Kachur’s testimony for

the   Commonwealth     contradicted   the   victim’s   account   regarding   her

awareness or consciousness during the encounter, that fact is immaterial, as

any such credibility conflict would go to the weight, not the sufficiency of the

evidence. See Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super.

1997) (“[C]redibility determinations are made by the fact finder and that

challenges thereto go to the weight, and not the sufficiency, of the

evidence.”). Accordingly, we conclude that the trial court did not err when it

denied Appellant’s post-verdict motion for judgment of acquittal on

sufficiency grounds.

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J-A21004-17



     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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