Opinion
691 MDA 2023 J-S35020-23
01-17-2024
COMMONWEALTH OF PENNSYLVANIA v. KEMYOE AKEEM MORGAN Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered March 29, 2023 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002346-2020
Benjamin D. Kohler, Esq.
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J. [*]
MEMORANDUM
McLAUGHLIN, J.
Kemyoe Akeem Morgan appeals from the judgment of sentence entered following his jury convictions for three counts of indecent assault, two counts each of rape, attempted involuntary deviate sexual intercourse ("IDSI"), and simple assault, and one count each of sexual assault and terroristic threats.He challenges the sufficiency of the evidence and the discretionary aspects of his sentence. We affirm.
18 Pa.C.S.A. §§ 3126(a)(1), (a)(2), (a)(3), 3121(a)(1), (a)(2), 901(a) (of 3123(a)(1), (a)(2)), 2701(a)(1), (a)(3), 3124.1, and 2706(a)(1), respectively.
We restate the relevant facts of this case as aptly summarized by the trial court.
On April 26, 2020, sixteen (16) year old J.R. was moving from her residence . . . to a new residence[.] . . . At
approximately 11:00 p.m., in rainy, wet, and cold weather, J.R. was walking to her new home to retrieve a phone charger that was left behind earlier in the day. A stranger came up behind her and put their arm around her and said, "Keep walking or I'll shoot you." J.R. felt something hard and cold that she believed to be a gun pressed to her side. The man walked her to the backyard area of the new apartment. J.R. was wearing sweatpants and a hoodie. Still photographs from surveillance cameras showing J.R. walking down the street with a man walking closely behind her were admitted as Commonwealth Exhibits 1 and 2.
When they reached the backyard, there was an area with benches. When J.R. reached the area with the benches, she was directed to face the wall and get on her knees. J.R. was on her hands and knees when the man attempted to pull J.R.'s pants down while she cried, whined, and moved. Her pants were pulled down to just above her knees. The man got down on top of her back and at least partially penetrated both her vagina and her anus. He then instructed her to move over to the bench. He punched her on the right side of her face with a closed fist when she kept crying after being told to "be quiet." He penetrated her vagina with his penis. J.R. continued to cry and was asked by her attacker, "Are you willing to die over this?" He patted her pockets for her phone and then pushed her and ran away. Surveillance cameras captured the attacker fleeing in a light colored four-door sedan. . . .
The still pictures made from the various surveillance videos were released to the public and an anonymous tip directed the police to [Morgan]. Surveillance videos from the area of the attack and area of [Morgan's] home, . . . were admitted as Commonwealth Exhibits 32, 33, and 34. The videos show the vehicle of the fleeing attacker parking in the area of [Morgan's] home. The distinctive hat of the attacker was able to be seen on the video. A hat matching the description was found inside [Morgan's] home. Boots, similar or the same as those worn by the attacker, were also found in [Morgan's] home. Pictures of these items were admitted as Commonwealth Exhibits 24, 25, and 26.
J.R. was subjected to an evaluation by a Sexual Assault Nurse Examiner at the Reading Hospital and samples were taken from her vagina and rectum. Lab analysis identified
semen from the samples. The vaginal swabs were also compared to a DNA (buccal) sample taken from [Morgan]. The vaginal sample results showed a mixed sample containing more than one person's DNA. The major component for the profile was a match for [Morgan]. The rectal samples were not tested for DNA.
Rule 1925(a) Op., filed 6/13/23, at 2-4.
A jury found Morgan guilty as above. At sentencing, the Commonwealth informed the court that Morgan had a prior record score of five. See N.T., Sentencing, 3/29/23, at 4. Morgan also testified and expressed remorse for his actions. The court imposed an aggregate term of 15 to 40 years' incarceration followed by nine years' reporting probation. The sentence for each charge is as follows: eight to 20 years for rape; a consecutive term of seven to 20 years for attempt to commit IDSI; a consecutive term of five years reporting probation for terroristic threats; and consecutive terms of two years reporting probation for each count of simple assault. Morgan filed a post-sentence motion, claiming that the consecutive sentence for attempted IDSI was "excessive under the circumstances of this case." Post-Sentence Motion for New Trial, filed 4/6/23, at ¶ 3. The court denied the motion and this timely appeal followed.
The remaining counts of rape and attempted IDSI, all counts of indecent assault, and the one count of sexual assault, all merged for sentencing purposes.
Morgan presents the following issues:
1. Whether the Sentencing Court abused [i]ts discretion i[n] ordering the sentence for attempt to commit involuntary
deviate sexual assault to run consecutive to the sentence for rape?
2. Whether the evidence was insufficient to support the conviction for the charge of attempt to commit involuntary deviate sexual assault?
Morgan's Br. at 9 (suggested answers omitted).
Morgan claims that the court erred in imposing consecutive sentences for rape and attempt to commit IDSI. Morgan's claim goes to the discretionary aspects of his sentence, for which there is no automatic right to appellate review. See Commonwealth v. Banks, 198 A.3d 391, 401 (Pa.Super. 2018). Rather, we must first determine whether: 1) the appeal is timely; 2) the issues were preserved at sentencing or in a post-sentence motion; 3) the appellant has included a Pa.R.A.P. 2119(f) statement in his brief to this Court; and 4) whether the Rule 2119(f) statement raises a substantial question. See id; Pa.R.A.P. 2119(f).
A substantial question is raised where the appellant claims that the sentence violates either the Sentencing Code or fundamental sentencing norms. See Banks, 198 A.3d at 401. In determining whether a substantial question is raised, we look solely to the appellant's Rule 2119(f) statement and the statement of questions presented. See Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012).
Morgan's appeal is timely, he preserved this claim in his post-sentence motion, and his brief includes a Rule 2119(f) statement. However, he fails to raise a substantial question.
In his Rule 2119(f) statement, Morgan claims that a substantial question has been raised because the court imposed a consecutive sentence for "offenses which, while they did not merge, were all essentially components of Count 1, Rape." Morgan's Br. at 10. His statement simply asks whether the court abused its discretion by ordering that the sentence for attempted IDSI run consecutively with his rape conviction. See id. at 9. Such bald claims do not raise a substantial question. Cf. Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super. 2010) (a substantial question is raised where the appellant alleges that "the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case").
Nevertheless, even if Morgan had raised a substantial question, we would conclude that it was meritless. Morgan threatened to kill the victim, a minor, before physically and sexually assaulting her. While assaulting the victim, he punched her in the head because she was crying too loudly and told her to "be quiet." When Morgan could not sufficiently penetrate the victim while he had her on the ground, he then forced her to a bench where he completed his aggressive sexual assault. Though Morgan expressed remorse for his actions to the court, it does not negate the violent nature of his crimes against the victim. The court properly exercised its discretion.
Morgan also challenges the sufficiency of the evidence. He claims that the evidence shows the victim "speculated" as to whether Morgan "was specifically attempting" to insert his penis into her anus. Morgan's Br. at 21. He notes that the victim testified that she was "not sure" if Morgan was trying to penetrate her anally or vaginally. Id. As such he claims that "the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances." Id. at 22.
Our standard of review for a challenge to the sufficiency of the evidence is well settled.
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Brockman, 167 A.3d 29, 38 (Pa.Super. 2017) (citation omitted).
A person commits IDSI by "engag[ing] in deviate sexual intercourse with a complainant . . . by forcible compulsion" or "by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution." 18 Pa.C.S.A. § 3123(a)(1), (a)(2). Deviate sexual intercourse involves "[s]exual intercourse per os or per anus between human beings[.]" See id. at § 3101 ("Deviate sexual intercourse."). Sexual intercourse "includes intercourse per os or per anus, with some penetration however slight; emission is not required." Id. ("Sexual intercourse."). A person commits criminal attempt when "with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." Id. at § 901(a).
Here, the victim testified that Morgan attempted to insert his penis into her anal and vaginal area. After several failed attempts, he then told her to move to a bench and bend over, at which point he vaginally raped her. Though the victim testified that she was not sure whether Morgan was trying to rape her vaginally or anally, when asked whether Morgan inserted his penis in her anal area, the victim said, "A little bit. Not that much." N.T., Trial, at 41, 42. Thus, Morgan took a substantial step towards intercourse per anus, with penetration however slight. Furthermore, though the victim testified that she was unsure of Morgan's intent, this is irrelevant. The victim's testimony regarding Morgan's attempts to penetrate her anally was sufficient to sustain Morgan's conviction for attempted IDSI.
Judgment of sentence affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.