Opinion
J-S57009-15 No. 1525 EDA 2014
11-23-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. DENNISON REHM Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 25, 2013
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001154-2013 BEFORE: MUNDY, J., OTT, J., and STABILE, J. MEMORANDUM BY MUNDY, J.:
Appellant, Dennison Rehm, appeals from the November 25, 2013 judgment of sentence of four and a half to ten years' incarceration, imposed after a jury convicted Appellant of sexual assault, aggravated indecent assault, and indecent assault. After careful review, we affirm.
18 Pa.C.S.A. §§ 3124.1, 3125(a)(1), and 3126(a)(1), respectively.
The trial court detailed the factual background leading to Appellant's convictions as follows.
On May 11, 2012, [J.G.] reported to the
Pennridge Regional Police Department ("PRPD") that she was raped by Appellant. The investigation was conducted by Detective Daryl Lewis of PRPD.
On Thursday, May 10, 2012, J.G. and a friend, [H.S.], went to sing karaoke at the Horse Tavern &
Grill in West Rockhill Township to celebrate the end of her spring semester at college. [H.S.]'s boyfriend drove J.G. and [H.S.] to the bar before it started at approximately 9:30 or 10:00, and the two stayed until karaoke finished later that night. J.G.'s boyfriend was supposed to join them at karaoke, but did not meet the two women there. Still, J.G. and [H.S.] chose to stay at karaoke without J.G.'s boyfriend.
Near the end of the karaoke session, J.G. and [H.S.] were joined by some of [H.S.]'s friends, including Appellant. J.G. and Appellant did not meet prior to that evening. The two interacted socially among the group of friends, with Appellant buying J.G. a drink while at the bar. J.G. possibly sat on Appellant's lap at some point during the night; however, there was no other physical contact such as kissing, hugging, or her placing her arms around him.
J.G., [H.S.], Appellant and two other friends then returned to [H.S.]'s boyfriend's house after karaoke ended. After arriving back at the house, which was a two bedroom trailer, the group shared a celebratory shot together. At this point, [H.S.]'s two other friends left for the evening and her boyfriend went to sleep in another room. J.G. then went to sleep on a futon in the living room. After J.G. was asleep, [H.S.] set up a sleeping bag for Appellant which she placed in the living room near the futon.
J.G. went to sleep alone, with her clothes on and hearing aid turned down, and did not consent to anyone touching her or having sex with her. She later awoke with her pants and underwear removed and with Appellant on top of her penetrating her vagina with his penis. J.G. told Appellant to stop and that she had a boyfriend. She tried calling to her friend in the other room for help, but Appellant used his hand to cover her mouth. Given Appellant's heavier weight and the fact that she was still feeling the effects of the alcohol she consumed that evening, J.G. could not remove Appellant from on
top of her body. After Appellant stopped having sex with J.G., Appellant helped with her underwear and leggings and then went to bed. J.G. then passed out and went back to sleep on the futon.
After waking up the next morning, J.G., [H.S.], and Appellant ordered pizza and other food, which J.G. did not eat much of. When Appellant left the house sometime in the early afternoon after eating, J.G. went to the bathroom and observed blood on a piece of toilet tissue that she had just used. Soon after, J.G. told [H.S.] what had happened the previous night, and J.G. then reported the incident to PRPD.
Detective Daryl Lewis of the PRPD conducted the investigation into J.G.'s claims against Appellant. The Detective transported J.G. to Doylestown Hospital for an exam, where [a specialized sexual assault nurse examiner] found evidence of multiple abrasions inside J.G.'s vaginal area that indicated blunt force trauma. Detective Lewis later conducted an interview with Appellant at Appellant's residence. When asked about J.G., Appellant denied having any knowledge of her. After observing a photograph, Appellant still denied recognizing her or having sex with her. Appellant never contacted Detective Lewis to revise his statements and declined to give his DNA when asked, accusing the police of going on a "fishing expedition."
The Detective obtained a search warrant for Appellant's DNA to test against the sample found on J.G.'s underwear that was preserved in the sexual assault kit. When Detective Lewis arrived to collect Appellant's DNA in accordance with the search warrant, Appellant stated that he would not voluntarily give the Detective a sample of his DNA. Appellant did not resist when the Detective collected his DNA, but he continually maintained that he was not voluntarily giving his sample. On November 16, 2012, Detective Lewis received the results of the DNA comparison from State Police, and Appellant was a match for the DNA recovered from J.G.'s
clothing. Appellant later admitted that he lied to Detective Lewis when questioned at his home. Appellant also contended that the sexual encounter was consensual, even going so far as to say J.G. not only instigated the encounter, but even acted "whorish" in their interactions.Trial Court Opinion, 5/4/15, 2-5 (internal citations and footnote omitted).
Based upon the above evidence, the jury returned a guilty verdict on the charges of Sexual Assault, Aggravated Indecent Assault, and Indecent Assault.
In his appeal to this Court, Appellant presents us with the following two evidentiary issues.
A. Should the Commonwealth have been permitted to elicit testimony that Appellant refused to voluntarily submit a DNA sample?Appellant's Brief at 4.
B. Should defense witness, Dave Edelsberger, have been subject to cross examination on the topic of liquor code violations when they were not relevant to his credibility as a witness?
We initially note that generally, a trial court's ruling on the admissibility of evidence will only be reversed upon a showing that the trial court abused its discretion. See , e.g., Commonwealth v. Buford , 101 A.3d 1182, 1195 (Pa. Super. 2014) (citation omitted), appeal denied, 114 A.3d 415 (Pa. 2015). In particular, an appellate court may reverse a trial court's ruling on the admissibility of testimonial evidence only upon a showing that the trial court abused its discretion. Commonwealth v. Randall , 758 A.2d 669, 679 (Pa. Super. 2000). An abuse of discretion is more than just an error in judgment, and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Commonwealth v. Randall , 758 A.2d 669, 679 (Pa. Super. 2000), appeal denied, 764 A.2d 1067 (Pa. 2001).
In his first issue, Appellant asserts that his "refusal to comply with the warrant for a DNA sample should not have been presented to the jury as evidence of his guilt." Appellant's Brief at 11. Appellant maintains that "to allow testimony on the topic of Appellant's refusal to comply with a Commonwealth search warrant unfairly penalizes Appellant's good faith, if misguided, exercise of constitutional protections." Id .
The testimony to which Appellant refers is as follows.
COMMONWEALTH: Mr. Brocco, you are employed as a law enforcement officer in Montgomery County; is that correct?
OFFICER BROCCO: Yes.
COMMONWEALTH: And on or about August 27, 2012, were you contacted by Detective Lewis here of the Pennridge Regional Police Department to contact [Appellant] regarding whether or not he would provide a DNA sample?
OFFICER BROCCO: Yes.
COMMONWEALTH: And did you, in fact, contact [Appellant] by phone to see if he would provide that sample?
OFFICER BROCCO: Yes, I did.
COMMONWEALTH: And what was [Appellant's] response to you regarding providing that sample?Appellant's Brief at 12-13, citing N.T., 7/15/13, at 74-75.
OFFICER BROCCO: First it was, I didn't have enough gas money to go up to Pennridge. And I provided him with a different meeting arrangement and he said that he wasn't willing to help with their fishing expedition.
COMMONWEALTH: And you relayed that information to Detective Lewis?
OFFICER BROCCO: I did later.
In addition, Appellant references the following testimony from Detective Lewis.
COMMONWEALTH: And describe the interaction between you and [Appellant] when you arrived at [Appellant's] home to serve the search warrant?
DETECTIVE LEWIS: I arrived at the residence. I went up to a landing. It is the second floor apartment. His mother was on the landing. I advised her that I need to speak to [Appellant]. She went inside and eventually [Appellant] came outside. I advised him that I had a search warrant to obtain a sample of his DNA.
COMMONWEALTH: What was his reaction to this?
DETECTIVE LEWIS: He advised that he was not going to voluntarily give me a DNA sample.
COMMONWEALTH: Did he use the term consent, voluntarily consent to a DNA sample?
DETECTIVE LEWIS: Correct.
COMMONWEALTH: Did he give a reason as to why he would not consent to the DNA sample?Id ., citing N.T., 7/15/13, at 27-28.
DETECTIVE LEWIS: He advised that his attorney had advised him that he did not have to give a sample pursuant to the search warrant.
COMMONWEALTH: Okay. And what did you tell [Appellant], if anything, at that point?
DETECTIVE LEWIS: I advised him the search warrant is a legal document that gives us a right to legally obtain the DNA sample.
COMMONWEALTH: And describe the rest of the interaction between you and [Appellant].
DETECTIVE LEWIS: At some point his mother went inside, came back outside and said she phoned their attorney and their attorney said that he should give the DNA sample. At that point again he said he was not going to voluntarily give consent or give up his DNA. I advised him that the search warrant states that we are entitled to it or we have a right to his DNA, and then he basically said that he was not—he was not resisting to give DNA, he was just not voluntarily giving it. At that point I put rubber gloves, latex gloves on my hand, opened up two swabs and I swabbed the inside of his mouth for the DNA.
Upon review, we conclude that the trial court did not abuse its discretion in admitting the foregoing testimony, and has ably addressed this issue in its opinion, referencing Pennsylvania Rule of Evidence 803(25) and voluntary extrajudicial statements. See Trial Court Opinion, 5/4/15, at 10-12. The trial court determined that each of Appellant's statements "represents an admission by a party opponent and was validly admitted into evidence." Id. at 11. In addition, the trial court concluded that "even if Appellant's statements refusing to voluntarily give DNA evidence are protected by Pennsylvania law, they were still validly admitted into evidence as Appellant's counsel opened the door to their admission in her opening statement." Id. at 12. Accordingly, we discern no abuse of discretion by the trial court, and adopt the trial court's reasoning as our own in disposing of Appellant's first evidentiary issue. See Buford , supra.
In his second evidentiary issue, Appellant argues that the trial court erred in permitting his defense witness, Mr. David Edelsberger, who owns the Horse Tavern & Grill, to be cross-examined about liquor code violations "when they were not relevant to his credibility as a witness." Appellant's Brief at 20. Appellant maintains that the "Commonwealth eclipsed the bounds of permitted impeachment testimony when it commenced questioning on liquor code violations." Id. Although Appellant cites Pa.R.E. 607, noting that "[t]he credibility of a witness may be impeached by any evidence relevant to that issue, except as otherwise provided by state of these rules," he otherwise fails to develop his argument, citing only one case, Commonwealth v. Robinson , 491 A.2d 107 (Pa. 1985), for the general proposition that "bias, improper motive, and prejudice are fertile grounds for impeachment of a witness's credibility." Id.
The Commonwealth recognizes the deficiency of Appellant's argument, stating that Appellant's "bald, unsupported statement does not serve to provide him with a meritorious claim. It is therefore waived." Commonwealth Brief at 24. We agree.
We recently detailed such waiver as follows.
We need not reach the merits of [an] issue [where] the argument section of Appellant's brief merely consists of general statements unsupported by any discussion and analysis of relevant legal authority. Pennsylvania Rule of Appellate Procedure 2119 addresses the argument section of appellate briefs and provides, in part, as follows:
Rule 2119. Argument
(a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and shall have ... such discussion and citation of authorities as are deemed pertinent.
Pa.R.A.P. 2119(a).
"The Rules of Appellate Procedure state unequivocally that each question an appellant raises is to be supported by discussion and analysis of pertinent authority." Estate of Haiko v. McGinley , 799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P. 2119(b). "Appellate arguments which fail to adhere to these rules may be considered waived, and arguments which are not appropriately developed are waived. Arguments not appropriately developed include those where the party has failed to cite any authority in support of a contention." Lackner v. Glosser , 892 A.2d 21, 29-30 (Pa. Super. 2006) (citations omitted). This Court will not act as counsel and will not develop arguments on behalf of an appellant. Irwin Union National Bank and Trust Company v. Famous and Famous and ATL Ventures , 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007)). Moreover, we observe that the Commonwealth Court, our sister appellate court, has aptly noted that "[m]ere issue spotting without
analysis or legal citation to support an assertion precludes our appellate review of [a] matter." Boniella v. Commonwealth , 958 A.2d 1069, 1073 n. 8 (Pa. Cmwlth. 2008) (quoting Commonwealth v. Spontarelli , 791 A.2d 1254, 1259 n. 11 (Pa. Cmwlth. 2002)).Coulter v. Ramsden , 94 A.3d 1080, 1088-1090 (Pa. Super. 2014), appeal denied, 110 A.3d 998 (Pa. 2014), cert. denied, Coulter v . Allegheny Cnty. Bar Assoc., --- S. Ct. ---, 14-1316 (2015).
Here, the argument portion of [Appellant]'s brief does not contain meaningful discussion of, or citation to, relevant legal authority. Appellant's Brief at 19-21. While the portion of the argument pertaining to [Appellant]'s issue does contain reference to case law regarding contents of the certified record, this section completely lacks any discussion or developed analysis relevant to the issue. This lack of analysis precludes meaningful appellate review. Accordingly, ... we conclude that the issue is waived.
Similarly, we find that Appellant in this case has failed to develop his second issue, such that we are precluded from meaningful review, and the issue is waived.
In sum, we find no abuse of discretion by the trial court with regard to the testamentary evidence challenged by Appellant in his first issue, and deem Appellant's second issue waived for lack of development. We thus affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/23/2015
Image materials not available for display.