Com. v. Johnson, R. ( 2019 )


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  • J-S13018-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                         :
    :
    :
    ROBERT HENRY JOHNSON, JR.                :
    :
    Appellant            :   No. 970 WDA 2018
    Appeal from the Judgment of Sentence Entered May 24, 2018
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0006041-2017
    BEFORE:      BENDER, P.J.E., OTT, J., and STRASSBURGER*, J.
    MEMORANDUM BY OTT, J.:                                  FILED MAY 14, 2019
    Robert Henry Johnson, Jr., appeals from the judgment of sentence
    imposed May 24, 2018, in the Allegheny County Court of Common Pleas. The
    trial court sentenced Johnson to an aggregate term of two to four years’
    imprisonment, following his jury conviction of simple assault and indecent
    assault for the April 10, 2017, attack on his former girlfriend, A.G. On appeal,
    Johnson challenges the sufficiency of the evidence supporting his conviction
    of simple assault, the weight of the evidence supporting his conviction of
    indecent assault, and the trial court’s erroneous imposition of sexual offender
    registration requirements regarding his conviction of simple assault. For the
    reasons below, we vacate the judgment of sentence, in part, and remand for
    the trial court to enter a corrected sentencing order. In all other respects, we
    affirm.
    ____________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-S13018-19
    The facts underlying Johnson’s conviction, as developed during his jury
    trial, are as follows. On the evening of April 10, 2017, the victim, A.G., and
    Johnson were in the home where they both lived. A.G. testified that while the
    two had dated for two years, she considered them separated for about a year
    and was dating another man, although she still lived with Johnson.1           She
    acknowledged Johnson still considered them to be dating. See N.T., 2/27-
    28/2018, at 48-50.
    At approximately 8:00 p.m., A.G. and Johnson began fighting.           A.G.
    testified Johnson asked her if she wanted to sell marijuana, and when she
    refused, “[h]e got really irate about it.” 
    Id. at 51.
    A.G. claimed Johnson
    began “chasing” her around a table before he “threw [her] on the living room
    chaise.” 
    Id. Although she
    pleaded with him to stop, he stated, “I don’t give
    an F, I’m going to jail anyway.” 
    Id. He then
    forced her upstairs on her back.
    At some point, Johnson ripped her panties off her. See 
    id. at 51-52.
    A.G.
    described what happened next as follows:
    He got me on the bed. He forced me on the bed. He had my arms
    down. Once he got on top of me he had me hanging off the bed.
    He literally put his tongue in my mouth and I bit it really hard. So
    then after that he couldn’t perform so he ended up getting
    Vaseline and he made me, you know, rub his penis.
    
    Id. at 52.
    A.G. testified Johnson tried to penetrate her, but he was unable to
    maintain an erection. See 
    id. at 53.
    He then forced oral sex on her, while
    she was “clenching [her] knees on to his temples.” 
    Id. at 52.
    All the while,
    ____________________________________________
    1 A.G. stated she intended to move out of the home in June when her son
    finished school. See N.T., 2/27-28/2018, at 49.
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    A.G. begged him to stop. See 
    id. at 52-53.
    When he eventually did so, A.G.
    went to the bathroom to wipe herself off. See 
    id. at 53.
    When A.G. went downstairs, she asked Johnson where her underwear
    and pants were. He responded by stating, “you are not going to use this as
    evidence.”     
    Id. at 54.
        She then retreated upstairs to dress.   When she
    returned downstairs again, Johnson said to her, “I know you want to call the
    police,” and one of them dialed 911 on her cell phone.2 
    Id. As A.G.
    waited
    for the police to arrive, Johnson stuffed her underwear and pants in a duffle
    bag and left the residence. When the police arrived, A.G. told them Johnson
    raped her. See 
    id. at 56.
    Pittsburgh Police Officer Reggie Eiland responded to the 911 call. He
    stated A.G. was “shaking, crying and upset” when he arrived.          
    Id. at 80.
    Officer Eiland observed bruises on A.G.’s “right arm and on the inside of her
    left thigh.”   
    Id. at 81.
        He described the bruises as “red marks and dark
    bruising as if someone was struck or hit.” 
    Id. at 82.
    After A.G. explained
    what had happened, the officer requested a sergeant to come to the scene,
    and Sergeant Tracey Clinton responded.3           While Sergeant Clinton was
    speaking to the victim, the victim received a phone call from Johnson. A.G.
    handed the phone to Sergeant Clinton who asked Johnson to return to the
    ____________________________________________
    2 Under cross-examination, A.G. admitted she told the 911 operator that she
    was not injured. However, at trial, she clarified she was scared because
    Johnson was still there with her. See N.T., 2/27-28/2018, at 70.
    3   Sergeant Clinton was formerly a sexual assault detective. See 
    id. at 84.
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    home so they could discuss the incident. She said Johnson replied, “No, I’m
    not coming because I will go to jail for what I did.” 
    Id. at 85.
    A.G. was then transported to the hospital where Sexual Assault Nurse
    Examiner (“SANE”) Betty Jessop performed a sexual assault examination, and
    took photos of contusions on A.G.’s right upper arm, left inner calf, posterior
    right leg, and left inner elbow. See 
    id. at 102-103.
    Nurse Jessop testified
    the bruises appeared to be fresh because there was “redness and a deeper
    bruise which is black to brown,” rather than a “yellowing to green” bruise,
    which is generally not a fresh bruise. 
    Id. at 104.
    She also explained that
    while there was no trauma discovered during the genital exam, that is not
    unusual in sexual assault cases. See 
    id. Under cross-examination,
    Nurse
    Jessop agreed that she could not state definitively when A.G. received the
    bruises that she photographed. See 
    id. at 109-110.
    However, she explained
    under redirect that the different colors of the bruises reflected the force of the
    trauma, not the age of the bruise: “The more force into the soft tissue, the
    darker the bruise.” 
    Id. at 111.
    The Commonwealth submitted cervical and rectal swabs taken from A.G.
    for DNA testing. Forensic scientist Kristin McCann testified she compared DNA
    samples from Johnson, as well as A.G.’s boyfriend, to the samples obtained
    during the sexual assault exam. See 
    id. at 117-118.
    A.G.’s boyfriend was
    identified as the major contributor to the sperm sample obtained from the
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    cervical exam.4 McCann could reach no conclusion as to the contributor of
    skin cell samples, and a minor sperm cell contributor, because the samples
    were too small to be identified. See 
    id. at 123-124.
    As noted above, the jury found Johnson guilty of simple assault and
    indecent assault, but acquitted him of the remaining charges. On May 24,
    2018, he was sentenced to a consecutive term of one to two years’
    imprisonment on each conviction. On June 1, 2018, Johnson filed a post-
    sentence motion challenging the weight of the evidence supporting his
    convictions. The trial court promptly denied the motion on June 4, 2018. This
    timely appeal followed.5
    In his first issue on appeal, Johnson contends the evidence was
    insufficient to sustain his conviction of simple assault. Our standard of review
    is well-settled:
    In reviewing a sufficiency of the evidence claim, we must
    determine whether the evidence admitted at trial, as well as all
    reasonable inferences drawn therefrom, when viewed in the light
    most favorable to the verdict winner, are sufficient to support all
    elements of the offense. Additionally, we may not reweigh the
    evidence or substitute our own judgment for that of the fact
    finder. The evidence may be entirely circumstantial as long as it
    links the accused to the crime beyond a reasonable doubt.
    ____________________________________________
    4A.G. admitted she had sex with her then boyfriend within seven days of the
    assault. See N.T., 2/27-28/2018, at 72.
    5 On July 10, 2018, the trial court ordered Johnson to file a concise statement
    of errors complained of on appeal. Johnson complied with the court’s directive
    and filed a concise statement on August 3, 2018, 21 days after receiving the
    trial transcript.
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    Commonwealth v. Walker, 
    139 A.3d 225
    , 229 (Pa. Super. 2016), appeal
    denied, 
    158 A.3d 1243
    (Pa. 2016) (citations omitted).
    Pursuant to Section 2701 of the Crimes Code, “a person is guilty of
    [simple] assault if he … attempts to cause or intentionally, knowingly or
    recklessly causes bodily injury to another[.]” 18 Pa.C.S. § 2701(a)(1). Bodily
    injury is defined as “[i]mpairment of physical condition or substantial pain.”
    18 Pa.C.S. § 2301.
    The Commonwealth need not establish the victim actually suffered
    bodily injury; rather, it is sufficient to support a conviction if the
    Commonwealth establishes an attempt to inflict bodily injury. This
    intent may be shown by circumstances, which reasonably suggest
    that a defendant intended to cause injury.
    Commonwealth v. Martuscelli, 
    54 A.3d 940
    , 948 (Pa. Super. 2012)
    (internal citations omitted).
    Here, Johnson argues the Commonwealth “failed to offer any evidence
    that he caused or attempted to cause an injury to [the victim].” Johnson’s
    Brief at 16.     He emphasizes the victim never testified at trial about her
    bruises, i.e., how she got them or who caused them.              See 
    id. at 19.
    Furthermore, although the SANE nurse documented bruising on the victim’s
    arms and legs, she acknowledged “she could not determine when the bruises
    occurred.”     
    Id. Moreover, the
    victim told the 911 operator she was not
    injured.   See 
    id. at 16.
       Accordingly, Johnson insists “the Commonwealth
    failed to show [he] was the but-for cause of complainant’s injuries.” 
    Id. at 19.
    Rather, he asserts:
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    The sum total of the Commonwealth’s evidence is that
    complainant had last been with Mr. Johnson and that she was then
    found to have bruises. This is not enough to establish the
    heightened burden of causation in a criminal case.
    
    Id. at 20.
    In addressing the sufficiency claim, the trial court noted Johnson ignored
    the testimony of the victim, which revealed “a physical struggle leading up to
    and during the sexual assault.” Trial Court Opinion, 10/3/2018, at 3. We
    agree. A.G. testified Johnson chased her around the table and then “threw
    her on the living room chaise” when she refused to sell marijuana for him.
    N.T., 2/27-28/2018, at 51. He pushed her up the stairs on her back before
    forcing her on the bed, and holding her arms down as he attempted to sexually
    assault her. See 
    id. at 52.
    Furthermore, both the responding police officer
    and the SANE nurse observed, and documented, bruises on her arms and legs.
    See 
    id. at 81-82,
    102-104. See also 
    id. at 57-58
    (A.G. responding “Yes”
    when asked when asked if they took photos of her injuries during sexual
    assault exam). Viewed in the light most favorable to the Commonwealth, as
    verdict winner, we agree the evidence was sufficient to demonstrate beyond
    a reasonable doubt that Johnson attempted to inflict bodily injury upon A.G.
    in order to force her to submit to his sexual assault.6   Accordingly, Johnson’s
    first issue fails.
    ____________________________________________
    6 See In re M.H., 
    758 A.2d 1249
    , 1252 (Pa. Super. 2000) (affirming
    adjudication of delinquency for simple assault when juvenile grabbed school
    aide’s arm “in a clearly aggressive fashion, and pushed her against a wall”
    resulting in bruising), appeal denied, 
    766 A.2d 1250
    (Pa. 2001).
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    Next, Johnson challenges the weight of the evidence supporting his
    conviction of indecent assault.7 When we review a challenge to the weight of
    the evidence supporting a conviction, our review is limited to the “trial court’s
    exercise of discretion.” Commonwealth v. Roane, ___ A.3d ___, ___, 
    2019 Pa. Super. 56
    , *2 (Pa. Super. Feb. 22, 2019) (quotation omitted). Indeed,
    [t]he weight of the evidence is exclusively for the finder of fact,
    who is free to believe all, none or some of the evidence and to
    determine the credibility of the witnesses. The fact-finder also
    has the responsibility of resolving contradictory testimony and
    questions of credibility.
    
    Id. (internal punctuation
    and citations omitted).
    Moreover, when a trial court finds that the evidence was not
    against the weight of the evidence, we must give the gravest
    consideration to the trial court’s conclusion because it is the trial
    court, and not the appellate court, that “had the opportunity to
    hear and see the evidence presented.” Furthermore, a defendant
    will only prevail on a challenge to the weight of the evidence when
    the evidence is “so tenuous, vague and uncertain that the verdict
    shocks the conscience of the court.”
    Commonwealth v. Cramer, 
    195 A.3d 594
    , 600–601 (Pa. Super. 2018)
    (internal citations omitted).
    In the present case, Johnson maintains his indecent assault conviction
    was against the weight of the evidence because the Commonwealth presented
    “minimal evidence” to corroborate the victim’s version of events, which
    Johnson insists, contained “significant and glaring inconsistencies.” Johnson’s
    Brief at 21. He notes the victim claimed she was afraid of Johnson and stated
    ____________________________________________
    7We note Johnson properly preserved this claim by raising it in a timely filed
    post-sentence motion. See Pa.R.Crim.P. 607(A)(3); Omnibus Post-Sentence
    Motion, 6/1/2018, at 2-3.
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    they had been separated for about a year, but continued to live with him and
    share his bed.      See 
    id. at 21.
           Moreover, he emphasizes her testimony
    describing her resistance to Johnson’s advances was “vague,” and she did not
    explain the time gap between the assault (8:00 p.m.) and when the police
    arrived (10:00 p.m.). See 
    id. at 26,
    27. With regard to the Commonwealth’s
    purported evidentiary deficiencies,            Johnson notes   the   Commonwealth
    neglected to test for his DNA on the victim’s bed sheets or the item she
    allegedly used to wipe herself off, nor did it test her for the presence of
    Vaseline to corroborate her story. See 
    id. at 24.
    Johnson contends these
    inconsistencies and omissions, coupled with the fact that the victim admitted
    Johnson was the one who dialed 911,8 support his assertion that he is entitled
    to a new trial. See 
    id. at 28.
    The trial court addressed Johnson’s weight claim as follows:
    [Johnson’s] contention that a single witness is incapable of
    providing sufficient evidence to support a conviction is not only
    unsupported by case law, but is contrary to statute. Title 18
    Pa.C.S. § 3106 provides: “The credibility of a complainant of an
    offense under this chapter [dealing with sexual offenses] shall be
    determined by the same standard as is the credibility of a
    complainant in any other crime. The testimony of a complainant
    need not be corroborated in prosecutions under this chapter. No
    instructions shall be given cautioning the jury to view the
    complainant’s testimony in any other way than that in which all
    complainants’ testimony is viewed.”
    ____________________________________________
    8We note the victim stated that although Johnson dialed 911 on her phone,
    she believed she was the one who hit the “send” button to initiate the call.
    See N.T., 2/27-28/2018, at 68, 70.
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    A person is guilty of Indecent Assault if the person has
    indecent contact with the complainant, causes the complainant to
    have indecent contact with the person, or intentionally causes the
    complainant to come into contact with seminal fluid, urine or feces
    for the purpose of arousing sexual desire in the person or the
    complainant and, as charged in the present case, does so without
    the complainant’s consent. 18 Pa.C.S. § 3126(a)(1).
    The victim testified at trial about multiple acts by [Johnson]
    that would satisfy the elements of Indecent Assault and she was
    consistent in her accounts, as demonstrated by the testimony of
    the police and nurse witnesses. As cited above, a victim’s
    testimony need not be supported and the jury, which has
    exclusive province in determining credibility, clearly found [A.G.]
    credible. The jury’s verdict, in and of itself, indicates that they
    appropriately weighed her testimony along with the other
    evidence submitted at trial. Thus, the Court did not err in denying
    the Post Sentence Motion filed by [Johnson].
    Trial Court Opinion, 10/30/2018, at 5-6.
    Bearing in mind our standard of review, we find Johnson has failed to
    establish the trial court abused its discretion in denying his challenge to the
    weight of the evidence. See 
    Roane, supra
    . Although Johnson acknowledges
    that a sexual assault victim’s testimony need not be corroborated by physical
    evidence and a victim need not prove she resisted her attacker, 9 he ignores
    these principles when presenting his argument. As the trial court stated in its
    opinion, the version of events A.G. provided at trial was consistent with the
    story she told both the police, as reflected in the probable cause affidavit, and
    the SANE nurse, as reflected in notes from the examination. See Criminal
    Complaint, 4/11/2017, Probable Cause Affidavit at 2; N.T., 2/27-28/2018, at
    ____________________________________________
    9   See Johnson’s Brief at 23 n.2, 25 n.3.
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    51-54, 96-97.      The credibility of her story was for the jury to evaluate.10
    Accordingly, we conclude Johnson failed to demonstrate the trial court abused
    its discretion in denying his weight of the evidence challenge.
    Lastly, Johnson asserts his sentence is illegal because the trial court
    improperly imposed a SORNA registration requirement on his conviction of
    simple assault, a non-SORNA conviction. We agree.
    As noted above, Johnson was convicted of both indecent assault and
    simple assault. Under SORNA, a conviction of indecent assault, pursuant to
    Section 3126(a)(1), is a Tier 1 sexual offense, which subjects the defendant
    to a registration period of 15 years.          See 42 Pa.C.S. §§ 9799.14(b)(6),
    9799.15(a)(1). Simple assault, however, is not a registerable offense. See
    42 Pa.C.S. § 9799.14.
    At the sentencing hearing, the attorney for the Commonwealth stated
    that based on Johnson’s conviction, “he must register under SORNA for 15
    years.”    N.T., 5/24/2018, at 5.         After the court insured defense counsel
    reviewed the presentence investigation report with Johnson, the following
    exchange took place:
    ____________________________________________
    10 Johnson underscores the fact that, at the preliminary hearing, A.G. testified
    he ejaculated during their encounter, but she changed her testimony at trial.
    See Johnson’s Brief at 24. However, Johnson cross-examined A.G. regarding
    this fact at trial, and she explained that she “got it mixed up” at the earlier
    hearing. N.T., 2/27-28/2018, at 66. Indeed, both the responding police
    officer and the SANE nurse testified A.G. told them Johnson did not ejaculate.
    See 
    id. at 96,
    142.
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    THE COURT: And did you also complete with [Johnson] a
    form setting forth his obligation under SORNA as a registrant?
    [Defense Counsel]: Not until you sentence him on that,
    Your Honor. I didn’t have the opportunity to do that.
    THE COURT: All right.
    [Prosecutor]: I have a form that I filled out that I left for
    [defense counsel] there.
    [Defense Counsel]: I could just do that right now.
    Your Honor, we have the form for you.
    …
    THE COURT: All right. So, Mr. Johnson, did you have an
    opportunity to review your obligations under the Sexual Offender
    Registration Notification Act that are contained in this form?
    [Johnson]: Yes.
    
    Id. at 6-7.
    The court then proceeded to inform Johnson of his registration
    requirements. See 
    id. at 6-9.
    Nevertheless, as the Commonwealth concedes, “the transcripts do not
    clarify [under] which conviction the registration applied,” noting that,
    “presumably the Commonwealth, defense counsel and the court were all
    aware that the indecent assault conviction was the relevant conviction.”
    Commonwealth’s Brief at 28. However, the written sentencing order indicates
    the SORNA 15-year registration requirement applies to both convictions. See
    Order, 5/4/2018. The registration requirement is listed as a condition under
    Count 5 - simple assault, while Count 6 – indecent assault states, “Same
    conditions as count 5 apply.” 
    Id. Thus, on
    the face of sentencing order, the
    court improperly applied the SORNA registration requirements to Johnson’s
    simple assault conviction.   Although it seems clear this was simply a
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    scrivener’s error, “[t]he written sentencing order, signed by the trial judge,
    constitutes the sentence imposed by the court.” Commonwealth v. Motley,
    
    177 A.3d 960
    , 962 (Pa. Super. 2018). See also Commonwealth v. Borrin,
    
    80 A.3d 1219
    , 1226 (Pa. 2013) (“In Pennsylvania, the text of the sentencing
    order, and not the statements a trial court makes about a defendant’s
    sentence, is determinative of the court’s sentencing intentions and the
    sentence imposed.”).
    Accordingly, because the sentencing order reflects the trial court illegally
    imposed SORNA registration requirements on Johnson’s simple assault
    conviction, we vacate the judgment of sentence, in part, and remand for the
    trial court to impose a corrected order, which properly reflects Johnson’s
    SORNA registration requirements. In all other respects, we affirm.
    Judgment of sentence vacated in part, and affirmed in part.           Case
    remanded for proceedings consistent with this memorandum.             Jurisdiction
    relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/14/2019
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Document Info

Docket Number: 970 WDA 2018

Filed Date: 5/14/2019

Precedential Status: Precedential

Modified Date: 5/14/2019