Opinion
J-S19035-18 No. 2535 EDA 2016
07-13-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. ABDELLAH ELKADDI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 26, 2016 in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0005373-2015 BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Abdellah Elkaddi, appeals from the judgment of sentence imposed following his jury conviction of sexual assault, 18 Pa.C.S.A. § 3124.1; aggravated indecent assault, 18 Pa.C.S.A. § 3125(a)(1); and indecent assault without consent, 18 Pa.C.S.A. § 3126(a)(1). Appellant challenges the sufficiency of the evidence. We affirm on the basis of the trial court opinion.
The jury acquitted Appellant of rape, and a separate count of aggravated indecent assault. The Commonwealth nolle prossed a charge of aggravated indecent assault/forcible compulsion.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. ( See Trial Court Opinion, 10/18/17, at 2-9). Therefore, we have no reason to restate them at length here.
For the convenience of the reader, we note briefly that M.M., the Victim, then a twenty-four year old intern, promptly reported that she was raped by her Uber driver, Appellant, when she fell asleep on the way home after an evening of social drinking with her co-workers, and various incidental mishaps. When the police followed up with him, Appellant denied everything (including, apparently, transporting the Victim), until confronted with seminal, DNA, and other evidence.
At trial, defense counsel had to concede that Appellant lied. He then proceeded to try to make a liar out of the Victim. The defense strategy shifted to a claim of consensual sex. The Victim steadfastly insisted there was no consent, in testimony the trial court found "compelling." (Trial Ct. Op., at 12). Appellant exercised his constitutional right against self-incrimination, and declined to testify.
Defense counsel continually attacked the credibility of the Victim, challenging both real and conjectural inconsistencies in her testimony. He repeatedly insisted that the Victim lied to cover up her immediate regret for a spontaneous sexual encounter with Appellant, whom she had just met that night. Defense counsel also argued the physical unfeasibility of having non-consensual sex in the front passenger seat of Appellant's Chevrolet Malibu.
The prosecutor argued to the jury that if the Victim had an immediate attack of regret over consensual sex with Appellant, the most sensible course of action would have been not to tell anybody, rather than to claim rape.
After his conviction, Appellant received an aggregate sentence of not less than seven and one-half nor more than fifteen years of incarceration, followed by five years of probation. This timely appeal followed.
The trial court determined Appellant not to be a Sexually Violent Predator.
Appellant raises one question for our review:
I. Was the evidence insufficient to prove Appellant's guilt of the crimes of sexual assault, aggravated indecent assault, and indecent assault without consent?(Appellant's Brief, at 4).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, we conclude that there is no merit to the issue Appellant has raised on appeal. The trial court opinion properly disposes of the question presented. ( See Trial Ct. Op. at 9-13) (concluding that: (1) the Commonwealth presented sufficient evidence to establish every element of each crime for which Appellant was convicted; and (2) "the uncorroborated testimony of a sexual assault victim, if believed by the trier of fact, is sufficient to convict a defendant, despite contrary evidence from defense witnesses." Commonwealth v. Diaz , 152 A.3d 1040, 1047 (Pa. Super. 2016), appeal denied, 169 A.3d 544 (Pa. 2017) (quoting Commonwealth v. Charlton , 902 A.2d 554, 562 (Pa. Super. 2006) appeal denied, 911 A.2d 933 (Pa. 2006)).
Moreover, we note that Appellant's Rule 1925(b) general claim of insufficiency, which fails to identify any specific defect in the Commonwealth's evidence, is too vague to enable meaningful appellate review, and would therefore be waived. ( See Concise Statement, 10/14/16, at 2).
"[W]hen challenging the sufficiency of the evidence on appeal, the [a]ppellant's [Rule] 1925 statement must 'specify the element or elements upon which the evidence was insufficient' in order to preserve the issue for appeal." Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010) (quoting Commonwealth v. Williams , 959 A.2d 1252, 1257 (Pa. Super. 2008)). "Such specificity is of particular importance in cases where, as here, the Appellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt." Id. (quoting Williams at 1258 n.9).
Furthermore, as aptly observed by the Commonwealth, Appellant's attack on the Victim's credibility actually goes to weight, not sufficiency. ( See Commonwealth's Brief, at 8-10). However, Appellant failed to preserve a weight claim by raising it with the trial court judge. See Pa.R.Crim.P. 607. It would also be waived for failure to include it in the Pa.R.A.P. 1925(b) statement. See Commonwealth v. Castillo , 888 A.2d 775, 780 (Pa. 2005).
In any event, even if properly raised and preserved, a weight claim would not merit relief.
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice.Commonwealth v. Champney , 832 A.2d 403, 408 (Pa. 2003), cert. denied, 542 U.S. 939 (2004) (citations omitted).
It was the province of the jury sitting as factfinder to weigh the evidence and assess credibility. Its verdict does not shock this Court's sense of justice. For all these reasons, we affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/13/2018
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