J-S51010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALFRED KULAH

                            Appellant                  No. 2110 EDA 2014


             Appeal from the Judgment of Sentence June 20, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0008353-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                       FILED OCTOBER 30, 2015

        Appellant, Alfred Kulah, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his jury

trial conviction for statutory sexual assault.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.2

At approximately 11:00 p.m. on Friday, September 28, 2012, the victim was

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1
    18 Pa.C.S.A. § 3122.1(b).
2
   The facts are derived from the transcripts of Appellant’s jury trial.
Appellant was tried with two codefendants, whose cases are separately on
appeal with this Court, but only one set of transcripts was produced. The
transcripts were included in the certified record for the case of codefendant
Eddie A. Johnson (No. 2190 EDA 2014), but the Delaware County Clerk’s
Office indicated the transcripts are for use in all three appeals of Appellant
and his two codefendants.


_________________________

*Retired Senior Judge assigned to the Superior Court.
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walking home in West Philadelphia. The victim was fifteen years old at the

time. At one point, a car pulled up in front of her. The victim claims thirty-

five year old Appellant and codefendant Eddie Johnson emerged from the

vehicle and physically forced her into the car.         Codefendant Mortimah

Kesselly was the driver. Appellant and codefendants took the victim to their

apartment in Upper Darby, where all three men took turns having sex with

her. The victim said that Appellant and codefendants had sex with her again

on the following day, September 29, 2012.         The victim claimed all of the

sexual activity with Appellant and codefendants was against her will. On the

morning of September 30, 2012, Mr. Kesselly was watching television in the

same room as the victim. Mr. Kesselly then left the room. The victim said it

was the first time Appellant and codefendants left her alone since they had

abducted her.     The victim claims she waited approximately five minutes

before she ran out of the apartment and called her father, who ultimately

found the victim and brought her to a hospital.

        The Commonwealth charged Appellant in its amended information with

rape, statutory sexual assault, kidnapping, and conspiracy. Following trial, a

jury convicted Appellant of one count of statutory sexual assault and

acquitted him of all other charges. On April 14, 2014, Appellant filed a post-

trial motion for judgment of acquittal, which the court denied on May 16,

2014.     On June 20, 2014, the court sentenced Appellant to a term of

incarceration of one (1) year less one (1) day to two (2) years less one (1)


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day, followed by seven (7) years of probation. Appellant filed a timely post-

sentence motion on June 25, 2014, which the court denied on July 10, 2014.

Appellant filed a timely notice of appeal on July 18, 2014. On July 24, 2014,

the court ordered Appellant to file a concise statement of errors complained

of on appeal per Pa.R.A.P. 1925(b).              The court subsequently granted

Appellant’s request for an extension of time to file a Rule 1925(b) statement,

setting the deadline at September 1, 2014. Appellant filed his Rule 1925(b)

statement on September 2, 2014.3

       Appellant raises the following issues for our review:

          DID THE COURT ABUSE ITS DISCRETION BY NOT GIVING
          THE JURY A CHARGE OF MISTAKE AS TO AGE AFTER
          EVIDENCE WAS INTRODUCED AT TRIAL THAT THE VICTIM
          APPEARED OVER FIFTEEN?

          DID   THE   COURT   ABUSE    ITS DISCRETION  BY
          NOT…PERMITTING [APPELLANT’S] ATTORNEY TO ARGUE
          ABOUT MISTAKE IN AGE IN HER CLOSING ARGUMENT
          AFTER EVIDENCE WAS INTRODUCED AT TRIAL THAT THE
          VICTIM APPEARED OVER FIFTEEN[?]

(Appellant’s Brief at 5).

       In his issues combined, Appellant argues two witnesses, who saw the

victim on the weekend in question, testified to their belief that the victim

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3
   Although Appellant filed his Rule 1925(b) statement one day after the
court’s new deadline, that deadline fell on Labor Day, a court holiday. Thus,
Appellant’s statement was timely filed. Moreover, Appellant raised both
issues on appeal as a single issue in his Rule 1925(b) statement. When the
trial court wrote its Rule 1925(a) opinion, it had an adequate opportunity to
address each issue. Therefore, our review is unimpeded.



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was at least eighteen or twenty years old.              Appellant also avers a

photograph of the victim was admitted into evidence, which was taken close

in time to the incident.      Appellant asserts this evidence justified a jury

instruction on the “mistake of age” defense. Appellant contends the court

violated his constitutional privilege against self-incrimination when it refused

to charge the jury on mistake of age unless Appellant testified.        Appellant

likewise claims the court should have permitted defense counsel to argue

during summation that Appellant reasonably believed the victim was over

fifteen years old, regardless of Appellant’s decision not to testify. Appellant

concludes he is entitled to a new trial. We disagree.

      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011) (quoting

Commonwealth v. Galvin, 603 Pa. 625, 651, 985 A.2d 783, 798-99

(2009)).      “The trial court has broad discretion in formulating jury

instructions, as long as the law is presented to the jury in a clear, adequate,

and accurate manner.”        Commonwealth v. Lukowich, 875 A.2d 1169,

1174 (Pa.Super. 2005), appeal denied, 584 Pa. 706, 885 A.2d 41 (2005).

           The law is well settled that a trial court is not obligated to
           instruct a jury upon legal principles which have no
           applicability to the presented facts. There must be some
           relationship between the law upon which an instruction is
           requested and the evidence presented at trial. However, a
           defendant is entitled to an instruction on any recognized

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         defense which has been requested, which has been made
         an issue in the case, and for which there exists evidence
         sufficient for a reasonable jury to find in his or her favor.

Commonwealth v. Bohonyi, 900 A.2d 877, 883 (Pa.Super. 2006), appeal

denied, 591 Pa. 679, 917 A.2d 312 (2007) (citation omitted) (holding trial

counsel was not ineffective for failing to request “mistake of age” charge

where defendant failed to present any evidence in support of mistake of age

defense upon which jury could have found in his favor).

      Both prosecutors and defense counsel “must have reasonable latitude

in presenting a case to the jury and must be free to present [their]

arguments with logical force and vigor.” Commonwealth v. D'Amato, 514

Pa. 471, 489, 526 A.2d 300, 309 (1987).       “Counsels’ remarks to the jury

may contain fair deductions and legitimate inferences from the evidence

presented….” Id.

      Section 3102 of the Crimes Code sets forth the mistake of age defense

as follows:

         § 3102. Mistake as to age

         Except as otherwise provided, whenever in this chapter the
         criminality of conduct depends on a child being below the
         age of 14 years, it is no defense that the defendant did not
         know the age of the child or reasonably believed the child
         to be the age of 14 years or older. When criminality
         depends on the child’s being below a critical age older than
         14 years, it is a defense for the defendant to prove by a
         preponderance of the evidence that he or she reasonably
         believed the child to be above the critical age.

18 Pa.C.S.A. § 3102.


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       Instantly, Appellant cites the following evidence to support a mistake-

of-age defense.     Appellant’s cousin, Jayren Kutuakoi, testified that he was

living with Appellant and codefendants at the Upper Darby apartment during

the weekend in question.      Mr. Kutuakoi stated he saw the victim in the

apartment and she appeared to be between twenty and twenty-five years

old.   Another defense witness, Sekou Mamoud, testified that Mr. Kesselly

drove the victim to Mr. Mamoud’s apartment on September 29, 2012, to use

the shower because Appellant and codefendants’ apartment had no hot

water. Mr. Mamoud stated that the victim appeared to be at least eighteen

years old.    Additionally, a photograph of the victim was admitted in

evidence. The victim confirmed the photograph showed what she looked like

around the time of the incident.       Notably, however, Appellant failed to

present any evidence of his personal belief as to the victim’s age. Appellant

also points to no evidence introduced by codefendants or the Commonwealth

concerning his personal belief. Section 3102 required Appellant to prove by

a preponderance of the evidence that he, not somebody else, reasonably

believed the victim was above the threshold age.        See id.    Appellant’s

evidence—a photograph of the victim and other people’s subjective

impressions    of   the   victim’s   appearance—would    be   relevant   to   a

reasonableness determination but was insufficient to warrant a mistake-of-

age instruction, absent any evidence of Appellant’s own belief regarding the

victim’s age. Evidence of Appellant’s actual subjective belief was completely


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lacking.4

       Appellant did not have to testify as to his subjective belief to raise a

mistake-of-age defense, but he did need to produce some evidence of that

belief.   The court acknowledged near the end of trial that the evidence of

Appellant’s personal belief could have come from other sources:

            [I]f you do not get on the stand and testify to what you
            personally believed, and it has to…be you reasonably
            believe[d] that the alleged victim in this case was over 16
            years of age. Unless you do that,… I will not read the
            [mistake of age] instruction. I will not read this. This is
            what I would ordinarily read if you got on the stand and
            said—and testified to the fact that…when I met [the
            victim], and I’m going to follow up on this, through
            conversations I had with her and other surrounding
            circumstances around—I reasonably believed that she was
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4
  Appellant cites to Commonwealth v. A.W.C., 951 A.2d 1174 (Pa.Super.
2008), and Commonwealth v. Gallagher, 874 A.2d 49 (Pa.Super. 2005),
which are distinguishable because the defendant in each of those cases
presented evidence of his personal belief as to the victim’s age. Appellant
also analogizes the defense of mistake of age to self-defense, which similarly
concerns an actor’s “reasonable belief,” to argue that evidence of a
defendant’s reasonable belief may come from a source other than the
defendant’s own testimony. Appellant is correct on that limited point but
fails to recognize that in the context of self-defense, our Supreme Court has
explicitly stated “reasonable belief” has two components: (1) the actor’s
subjective belief; and (2) the objective reasonableness of that belief.
Evidence of both is required. See Commonwealth v. Mouzon, 617 Pa.
527, 551, 53 A.3d 738, 752 (2012) (stating: “The requirement of a
reasonable belief encompasses two aspects, one subjective and one
objective. First, the defendant ‘must have acted out of an honest, bona fide
belief that he was in imminent danger,’ which involves consideration of the
defendant’s subjective state of mind. Second, the defendant’s belief that he
needed to defend himself with deadly force, if it existed, must be reasonable
in light of the facts as they appeared to the defendant, a consideration that
involves an objective analysis”). Thus, Appellant’s case law undermines his
own argument.



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        over 16 years of age. There are other ways to do it,
        and I’m not saying this exists. There could have
        been a showing you of a phony ID card. It’s not in
        evidence. There’s nothing in evidence here and it’s
        never been talked about or other ways that you
        could have reasonably believed but we don’t have
        that and…the [c]ourt is ruling that unless we [have] it
        from you, evidence of that nature, you will not get the
        following charge that has previously been requested of this
        [court] to give this jury….

(N.T. Trial, 4/2/14, at 202-03) (emphasis added).     Absent evidence from

any source that Appellant personally believed the victim was at least sixteen

years old, the court properly denied Appellant’s request for a mistake of age

jury instruction. See 18 Pa.C.S.A. § 3102; Bohonyi, supra. For the same

reason, the court’s refusal to allow Appellant’s counsel to argue mistake of

age during closing argument was not an abuse of discretion. See D’Amato,

supra. Based on the foregoing, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2015




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