Opinion
J-S79013-18 No. 516 MDA 2018
01-24-2019
COMMONWEALTH OF PENNSYLVANIA v. DENNIS R. STEELE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 12, 2017
In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000308-2012 BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY SHOGAN, J.:
Dennis R. Steele ("Appellant") appeals from the judgment of sentence entered after a jury convicted him of involuntary deviate sexual intercourse ("IDSI"), sexual assault, aggravated indecent assault, and indecent assault. We affirm.
18 Pa.C.S. §§ 3123(a)(1), 3124.1, 3125(a)(1), and 3126(a)(1), respectively.
This case stems from Appellant sexually assaulting his nineteen-year-old granddaughter ("the Complainant") at approximately 7:00 a.m. on February 14, 2012, by fondling her breasts, digitally penetrating her vagina, and performing oral sex on her. N.T., 9/14/17, at 26-32. The Complainant and her grandmother reported the incident on February 16, 2012. Id. at 34, 38. Upon returning from a truck-driving route, Appellant voluntarily went to the Pennsylvania State Police on February 20, 2012, for an interview. Id. at 49-50. During the interview, Appellant admitted to engaging in sexual activity with the Complainant as alleged, but he claimed it was consensual. Id. at 51-53, Commonwealth Exhibit 1.
Appellant was arrested on February 21, 2012, and a criminal information was filed against him on April 13, 2012. Appellant filed a motion to suppress his statement to the police, which the trial court denied following a hearing. Motion to Suppress, 7/16/12; Opinion and Order, 10/4/12.
Appellant proceeded to trial on October 17, 2013. The trial court declared a mistrial, finding manifest necessity after Appellant's counsel intentionally subverted the Rape Shield Law during cross-examination of the Complainant. N.T., 10/17/13, at 44. Appellant filed a motion to dismiss the charges on double jeopardy grounds, which the trial court denied. Motion to Dismiss, 11/26/13; Order, 1/13/14. On appeal, we affirmed the order denying Appellant's motion to dismiss. Commonwealth v. Steele , 120 A.2d 390, 197 MDA 2014 (Pa. Super. filed February 24, 2015).
Appellant went to trial again on September 14, 2017, and the jury convicted him of all charges. On December 12, 2017, the trial court sentenced Appellant to incarceration as follows: a term of fifty-seven months to ten years on the IDSI count and a consecutive term of one to two years on the indecent assault count. The trial court did not impose a sentence on the charges of sexual assault or aggravated indecent assault. Appellant filed a post-sentence motion for judgment of acquittal on the IDSI conviction, which the trial court denied. Post-Sentence Motion, 12/21/17; Order, 3/12/18. This appeal followed. Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following questions for our consideration:
1. Whether the evidence is insufficient to sustain the jury's guilty verdict on the charge of involuntary deviate sexual intercourse because the evidence is insufficient to show that Appellant exercised forcible compulsion which caused the complainant to have sexual intercourse with him?Appellant's Brief at 7 (full capitalization omitted).
2. Whether the trial court erred in denying Appellant's motion to suppress an incriminating statement that he made to an officer of the Pennsylvania State Police?
Appellant's first issue assails the sufficiency of the evidence supporting his conviction of IDSI by forcible compulsion. We analyze arguments challenging the sufficiency of the evidence under the following parameters:
Our standard when reviewing the sufficiency of the evidence is whether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all elements of the offense beyond a reasonable doubt. We may not weigh the evidence or substitute our judgment for that of the fact-finder. Additionally, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant's guilt 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. When evaluating the credibility and weight of the evidence, the fact-finder is free to believe all, part or none of the evidence. For purposes of our review under these principles, we must review the entire record and consider all of the evidence introduced.Commonwealth v. Trinidad , 96 A.3d 1031, 1038 (Pa. Super. 2014) (quoting Commonwealth v. Emler , 903 A.2d 1273, 1276-1277 (Pa. Super. 2006)).
To prove forcible compulsion, the Commonwealth is "required to establish beyond a reasonable doubt that Appellant used either physical force, a threat of physical force, or psychological coercion . . . ." Commonwealth v. Brown , 727 A.2d 541, 544 (Pa. 1999). The degree of force is relative and depends on the totality of the facts and circumstances of the particular case. Commonwealth v. Rhodes , 510 A.2d 1217, 1226 (Pa. 1986). "[R]esistance to sexual assault is not required to sustain a conviction." Commonwealth v. Smith , 863 A.2d 1172, 1176 (Pa. Super. 2004). Furthermore, the uncorroborated testimony of the complaining witness is sufficient to convict a defendant of sexual offenses. Commonwealth v. Castelhun , 889 A.2d 1228, 1232 (Pa. Super. 2005) (citation omitted).
According to Appellant, "there is insufficient evidence to show that Appellant used either physical force, threat of physical force or psychological coercion causing the Complainant to have sexual activity with him." Appellant's Brief at 10. Yet, Appellant quotes the trial court's analysis in support of its denial of the motion for acquittal. Appellant's Brief at 12 (citing Trial Court Supplemental Opinion, 7/2/18, at 3-4). That analysis describes the physical force Appellant used while sexually assaulting the Complainant:
In this case, [the] Complainant testified that she repeatedly told Appellant "no" and was crying during the entire encounter. When Appellant attempted to pull her shirt up, she pushed it down and asking [sic] Appellant not to do it. She also testified
that she pulled her knees up to her chest and Appellant had to pull them down to straighten her body when he decided to perform oral sex on her. [The] Complainant further testified that Appellant repeatedly told her "don't fight it." She tried to keep her pants up but Appellant overpowered her and pulled them down. [The] Complainant testified that when Appellant finally stopped performing oral sex, she curled up and turned away from him, but he grabbed her hand and pulled it to his penis. She pulled it away and Appellant grabbed it again and pulled it back. Each of these acts indicates that Appellant indeed used physical force.Trial Court Supplemental Opinion, 7/2/18, at 3-4 (emphasis supplied).
The Commonwealth argues that this case is similar to Commonwealth v. Riley , 643 A.2d 1090 (Pa. Super. 1994), wherein:
the Court held the defendant by his actions in laying on top of [the Complainant] and pinning her with his weight, not stopping when the [Complainant] told him to stop, and frustrating her attempts to avoid being kissed when she kept moving her head from side to side, demonstrated [Appellant] exerted enough force to overcome any resistance, and that his actions thwarted her attempt to resist.Commonwealth's Brief at 4-5. Applying Riley , the Commonwealth continues:
Herein, [Appellant's] actions in pulling up the [Complainant's] shirt, even after she pulled it back down, straightening out her legs even after the [Complainant] said no while she was crying, and his statement not to resist as he was going to do it anyway, all the while she was trying to prevent him from pulling her pants down clearly establishes [Appellant] exerted enough force to overcome her resistance, and thwarted her attempt to resist sexual contact.Id. at 5.
Viewing the evidence in a light most favorable to the Commonwealth, we reject Appellant's argument that the evidence was insufficient to prove the use of forcible compulsion, both physical and psychological. On the contrary, the evidence sufficiently established that Appellant physically and psychologically exerted enough force to overcome the Complainant's resistance. Riley , 643 A.2d at 1092.
The record confirms that the Complainant lived with Appellant in a loving relationship. N.T., 9/14/17, at 23. On the morning of February 14, 2012, Appellant entered the Complainant's room while she was sleeping and asked to pet her "pussy," which she assumed meant her cat. Id. at 26. After petting the cat, Appellant used physical force to pull up the Complainant's shirt, pull down her knees, pull down her pants, and twice grab her hand, despite her resistance, telling him "no" and asking him to stop. N.T., 9/14/17, at 26-32. Additionally, the record reveals that Appellant instructed the Complainant "not to resist because he was just going to do it anyway," and he said, "[H]e will make love to me and if I ever told anyone he would deny it." Id. at 28, 32. Such statements lead to a reasonable inference that Appellant would assault the Complainant again. Thus, considering the totality of the circumstances, the Complainant's testimony was sufficient to establish the use of forcible compulsion, and the jury was free to credit the Complainant's testimony over Appellant's theory of the case. Riley , 643 A.2d at 1091; Castelhun , 889 A.2d at 1232.
Despite the overwhelming evidence of forcible compulsion, Appellant asserts that the Complainant's testimony on cross-examination, i.e., she froze, did not scream or try to escape, "is devoid of any statement which clearly or adequately describes the use of force or the threat of force against her." Appellant's Brief at 14. Appellant's reliance on this testimony is disingenuous. On direct examination, the Complainant testified to the use of force. On cross-examination, the Complainant described her reaction to the assault as it was unfolding and after it ended. The fact that her responses to defense counsel's questions did not again describe the use of force is of no moment. Accordingly, we conclude that Appellant's challenge to the sufficiency of the evidence supporting his conviction of IDSI by forcible compulsion lacks merit.
In his second issue, Appellant challenges the denial of his motion to suppress the statement he gave to police. Appellant's Brief at 14. Specifically, Appellant complains that, "although the videotaped interview which took place at the Pennsylvania State Police barracks started as non-custodial, the actions of the police officer conducting the interrogation became accusatory and transitioned the interrogation to one of a custodial nature." Appellant's Brief at 15. In support of his position, Appellant refers to the trooper's position as an "authority figure," the trooper "having [Appellant] cornered in a room," the trooper's use of "interrogation techniques that he is trained in," and Appellant's belief that he was "being restricted in his freedom of movement." Id. at 15, 16, 17.
Our standard of review is limited to determining whether the record supports the suppression court's factual findings and whether the legal conclusions drawn from those facts are correct. Commonwealth v. Williams , 176 A.3d 298, 315 (Pa. Super. 2017) (citations omitted). Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts. Id. Moreover, it is within the lower court's province to pass on the credibility of witnesses and determine the weight to be given to their testimony. Commonwealth v. Clemens , 66 A.3d 373, 378 (Pa. Super. 2013). The scope of review of orders granting or denying motions to suppress is limited to the evidence presented at the suppression hearing. In the Interest of L.J., 79 A.3d 1073, 1085 (Pa. 2013).
Upon review of the parties' briefs, the certified record, and the opinion of the trial court, we conclude that Appellant's suppression challenge lacks merit. In reaching this conclusion, we adopt as our own the well-reasoned opinion and order of the trial court, wherein the Honorable President Judge Nancy L. Butts concluded that "the incriminating statements made by [Appellant] were done during a non-custodial interview with police." Trial Court Opinion and Order, 10/4/12, at 6. Thus, Appellant was not entitled to suppression of his confession, and the trial court did not err in denying him relief.
The parties are directed to attach a copy of the trial court's October 4, 2012 opinion and order to any future filings in this matter. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 01/24/2019
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