Com. v. Bernat, L. ( 2018 )

J-A06031-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LOGAN HUNTER BERNAT, :
:
Appellant : No. 33 WDA 2017
Appeal from the Judgment of Sentence November 18, 2016
in the Court of Common Pleas of Clarion County
Criminal Division, at No(s): CP-16-CR-0000442-2015
BEFORE: BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY: STRASSBURGER, J. FILED APRIL 13, 2018
Logan Hunter Bernat (Appellant) appeals from the judgment of sentence
imposed after a jury found him guilty of sexual assault. We affirm.
On September 27, 2015, Victim, a freshman at Clarion University, met
Appellant between parties. Appellant and others went to Victim’s dorm room
and ordered pizza. The others began leaving approximately one hour after
the pizza was ordered, eventually leaving Appellant alone in the room with
Victim. Appellant then had sexual intercourse with Victim against her will.
During the assault, Victim sent text messages seeking help. Two of Victim’s
friends then came to her room, and Appellant pulled up his pants and fled.
The police were called, and photographs of Victim’s room were taken,
including photographs showing blood on a blanket on Victim’s bed. Victim
went to the hospital, where she was examined and photographs of her
* Retired Senior Judge assigned to the Superior Court.
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condition were taken. Of import to this appeal, one of those photographs is a
close-up of Victim’s genitalia revealing substantial abrasions.
Appellant was charged with several crimes related to his assault of
Victim. Before trial, he unsuccessfully sought, via a motion in limine, to
exclude the photographs described above. Following a jury trial, Appellant
was convicted of sexual assault, but acquitted of rape and simple assault.
Appellant was sentenced to 40 to 80 months of imprisonment. After
Appellant’s timely-filed post-sentence motion was denied, Appellant timely
filed a notice of appeal to this Court. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant presents three questions for this Court’s review, which amount
to two issues: whether the evidence was sufficient to sustain Appellant’s
conviction, and whether the trial court erred in denying Appellant’s motion in
limine seeking to exclude the photographs of the bloody blanket and Victim’s
genitalia.
We address Appellant’s sufficiency arguments mindful of the following:
[i]n reviewing sufficiency of evidence claims, 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 the
elements of the offense. Additionally, to sustain a conviction, the
facts and circumstances which the Commonwealth must prove,
must be such that every essential element of the crime is
established beyond a reasonable doubt. Admittedly, guilt must be
based on facts and conditions proved, and not on suspicion or
surmise. Entirely circumstantial evidence is sufficient so long as
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the combination of the evidence links the accused to the crime
beyond a reasonable doubt. 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 fact
finder is free to believe all, part, or none of the evidence presented
at trial.
Commonwealth v. Cline, 177 A.3d 922, 925 (Pa. Super. 2017) (quoting
Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011)).
The relevant criminal statute provides that “a person commits a felony
of the second degree when that person engages in sexual intercourse or
deviate sexual intercourse with a complainant without the complainant’s
consent.” 18 Pa.C.S. § 3124.1. Sexual intercourse, “[i]n addition to its
ordinary meaning, includes intercourse per os or per anus, with some
penetration however slight; emission is not required.” 18 Pa.C.S. § 3101.
Because the statute does not specify otherwise, the default mens rea of
“intentionally, knowingly or recklessly” applies. 18 Pa.C.S. § 302(c).
In maintaining that the Commonwealth did not establish each element
of sexual assault, Appellant does not argue that the evidence was insufficient
to establish that his actions against Victim were done without her consent, or
that he acted at least recklessly. Rather, Appellant focuses on the contention
that the evidence was insufficient to prove that he penetrated Victim’s vagina.
Appellant acknowledges that the testimony of the complainant is sufficient to
convict a defendant of sexual assault, but contends that the evidence is
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insufficient to prove sexual intercourse beyond a reasonable doubt “where the
elicited testimony (and other evidence) leaves open the question of whether
the defendant’s penis penetrated the vagina[.]” Appellant’s Brief at 21.
The evidence in the instant case did not leave the question of
penetration open. Victim was asked “Now, … when you say that he had sex
with you, does that mean that his penis penetrated your vagina?” N.T.,
8/1/2016, at 178. Her answer: “Yes.” Id. This testimony was corroborated
by Marina Meholick, one of the people who responded to Victim’s request for
help, who testified that Appellant reported that he had been having sex with
Victim. Id. at 107. Accordingly, Appellant’s claim that the Commonwealth
did not prove penetration is meritless.
With his remaining sufficiency challenge, Appellant contends that the
trial court erred in denying his motion for judgment of acquittal because the
evidence is so full of contradictions that “it was not possible for the jury to
reach a rational conclusion regarding the incident.” Appellant’s Brief at 24.
Appellant cites Commonwealth v. Bennett, 303 A.2d 220 (Pa. Super.
1973), in support of his argument. In Bennett, the Commonwealth’s case
was based on the testimony of one witness, Jones. This Court found that
Jones’s testimony was insufficient to support Bennett’s conviction of receiving
of stolen property.
Jones (who had been contradictory with respect to his own
perpetration of the larceny) sought to implicate the defendant by
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giving several wholly different, conflicting and inconsistent
versions of when and how he had told her that the car had been
in fact stolen by him. On a previous occasion Jones had denied
he had ever conveyed to defendant knowledge of the car’s theft.
With each new version Jones would recant the previous one and
protest that the newest version was in fact the true one. This
situation presented the jury not with a mere conflict or
contradiction in testimony which was reasonably reconcilable by
them, but a situation falling within the rule: ... a case should not
go to the jury where the party having the burden offers testimony
of a witness, or of various witnesses, which is so contradictory on
the essential issues that any finding by the jury would be a mere
guess…. When the testimony is so contradictory on the basic
issues as to make any verdict based thereon pure conjecture the
jury should not be permitted to consider it.
Id. at 220-21 (internal quotation and citation omitted).
The evidence offered in Bennett is not at all analogous to the situation
in the instant case. The “contradictions” cited by Appellant, see Appellant’s
Brief at 23-24 (noting that others who were there for pizza thought Appellant
was remaining in the room afterwards with Victim’s consent; that Victim
texted for help instead of shouting; and that Victim smiled for a photograph
later at the hospital), in no way presented irreconcilable guesswork for the
jury. The jury was free to conclude, for example, that a person’s allowing
someone to remain in her room does not constitute consent to hold her down
and have intercourse with her while she says “stop,” and “I don’t want to do
this.” N.T., 8/1/2016, at 176. See also id. at 103 (Meholick testifying that
she heard “concerning noises” and “ow and stop” coming from Victim’s room
while Victim was alone with Appellant).
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In sum, the evidence against Appellant was not weak or inconclusive.
The inconsistencies among witnesses about things such as at what exact time
the pizza arrived does not negate the Commonwealth’s clear evidence that
Appellant had sexual intercourse with Victim without her consent.
Accordingly, the trial court did not err in denying Appellant’s motion for
judgment of acquittal.
We turn to Appellant’s remaining claims: that the trial court should have
excluded as inflammatory and prejudicial the photographs of Victim’s bloody
blanket and genitalia. Our standard of review is for an abuse of discretion.
A trial court has broad discretion to determine whether
evidence is admissible and a trial court’s ruling on an evidentiary
issue will be reversed only if the court abused its discretion.
Accordingly, a ruling admitting evidence will not be disturbed on
appeal unless that ruling reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support to be
clearly erroneous.
Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (internal
quotation and citations omitted).
When considering the admissibility of photographs of a crime scene or
victim, which by their very nature can be unpleasant, disturbing, and even
brutal, the trial court must engage in a two-step analysis:
First a [trial] court must determine whether the photograph is
inflammatory. If not, it may be admitted if it has relevance and
can assist the jury’s understanding of the facts. If the photograph
is inflammatory, the trial court must decide whether or not the
photographs are of such essential evidentiary value that their
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need clearly outweighs the likelihood of inflaming the minds and
passions of the jurors.
Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003) (citation omitted).
“The fact that blood is visible does not necessarily require a finding that a
photograph is inflammatory.” Commonwealth v. Lewis, 567 A.2d 1376,
1382 (Pa. 1989). Additionally, “[e]ven where the body’s condition can be
described through testimony from a medical examiner, such testimony does
not obviate the admissibility of photographs.” Commonwealth v. Begley,
780 A.2d 605, 622–23 (Pa. 2001) (quoting Commonwealth v. Jacobs, 639
A.2d 786, 789 (Pa. 1994)).
Appellant notes that “there is a dearth of case law addressing the
inflammatory nature of photo[graph]s of genitals” and posits that this
suggests that such images “are not frequently presented as evidence because
of their inherently prurient nature, which almost certainly inflames the
passions of the jury.” Appellant’s Brief at 17. He also contends that the
blanket photo was inflammatory because it gruesomely showed a substantial
amount of blood. Id. at 18.
The trial court viewed the photographs prior to trial and determined that
they were not inflammatory.
Here, the photographs were not of such a gruesome nature
or cast in such an unfair light that they would tend to cloud the
jury’s assessment of the guilt or innocence of [Appellant]. The
photographs were not gruesome or inflammatory. They were fair
and accurate depictions of [Victim’s] bed and her physical
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condition on [the] night of the incident. As such, they were
relevant evidence and they tended to corroborate the testimony
that [Appellant] had penetrated [Victim’s] vagina with his penis.
Trial Court Opinion, 4/25/2017, at 4-5 (unnumbered).
We discern no abuse of discretion in the trial court’s ruling. The
photograph of the blanket reveals blood on the bed in the area where Victim’s
genitals would have been, given her account of Appellant’s being on top of
her. While it is certainly not a pleasant sight, it is far from what has been
deemed gruesome in the cases relied upon by Appellant. Appellant’s Brief at
17-19 (citing Commonwealth v. Scaramuzzino, 317 A.2d 225, 226-27 (Pa.
1974) (holding it was error to show, for over ten minutes, color autopsy
photographs, including those of the victim’s heart removed from the body,
where the minimal value in helping the jury understand the pathologist’s
testimony concerning cause of death was “clearly outweighed by the likelihood
of inflaming the minds and passions of the jurors”)).
Likewise, while viewing the photograph of Victim’s abraded vaginal area
likely caused discomfort to the jury, the photograph presents only relevant
information, not a prurient depiction designed to inflame the passions of the
jurors. Appellant complains of the fact that it is a close-up image; however,
the detail to be seen—the blood and abrasions—would not be discernable from
a more remote view. Further, to minimize any risk of inflammation, the trial
court took the precaution of prohibiting the photograph from being published
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on the television monitor or passed among the jurors. We cannot conclude
that the trial court’s decision was an abuse of discretion. See, e.g.,
Commonwealth v. Dotter, 589 A.2d 726, 729 (Pa. Super. 1991) (“The
photographs in the instant case were neither gruesome nor inflammatory. The
testimony was that they were fair and accurate depictions of [the victim’s]
physical condition on the morning after the incident for which [Dotter] was on
trial. As such, they were relevant evidence and tended to corroborate [the
victim’s] testimony that [Dotter] had exercised forcible compulsion to achieve
sexual satisfaction.”).
Accordingly, Appellant has failed to convince us that the trial court
committed an error of law or abuse of discretion that warrants relief from this
Court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2018
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