Com. v. Hoover, L. ( 2022 )

J-A12012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUKE WILLIAM HOOVER :
:
Appellant : No. 828 WDA 2021
Appeal from the Judgment of Sentence Entered July 12, 2021
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0000350-2018
BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: May 13, 2022
Luke William Hoover (Appellant) appeals from the judgment of sentence
entered in the Westmoreland County Court of Common Pleas, following his
jury convictions of attempted rape1 and related offenses. He argues the trial
court erred in: (1) admitting evidence of his prior bad acts, under Pa.R.E.
404(b), to show intent to commit attempted rape; and (2) denying his motion
for judgment of acquittal for attempted rape. We affirm.
I. Facts
The underlying facts are largely not disputed on appeal. The charges
against Appellant arose from an incident on September 4, 2017, at Winnie
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 901(a), 3121(a)(1) (rape by forcible compulsion).
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Palmer Nature Reserve, which is a part of the Saint Vincent College campus
in Latrobe, Westmoreland County. N.T. Trial, 4/13/21, at 51, 105-06.2 The
trial court summarized the trial testimony of M.B. (the Victim), a Saint Vincent
College student, as follows:
[The Victim] went on a hike through the . . . Nature Reserve[,
which] was not crowded on that day[. T]he path . . . split into a
[“Y”] and on the left side of the split, a taller man wearing an
American flag t-shirt and a hat was facing the shrubs . . . . Victim
took a right at the [“Y”] and continued along her path until making
a left at the end of the trail. [N.T. Trial at 51-54.]
Victim saw the [same man] walking towards her [and made]
eye contact with [him. A]fter the man passed her, he took a few
steps before coming back to her and putting her in a chokehold.
[T]he man [stood] behind her with his forearm around her neck
[and] his bicep on the side of her neck as he squeezed her neck.
[I]t was difficult for [the Victim] to breathe . . . but she was able
to ask him what he was doing. [N.T. Trial at 55-58.]
Victim testified that the man attempted to pull her onto the
ground by pulling with his right arm still around her neck and his
left arm around her torso. Victim attempted to pull his forearm
off her neck with her hands and elbowed him in the abdomen[.
S]he fell to the ground as the man eventually released her. [The
Victim] ran away while the man apologized and said he thought
she was someone else. [N.T. Trial at 58-60.]
Trial Ct. Op., 8/31/21, at 2-3 (paragraph break added).
The Victim reported the incident to the college public safety office that
same day, and the Pennsylvania State Police were contacted. Trial Ct. Op. at
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2 While the cover of the trial transcript identifies the dates of trial as both April
13 and 14, 2021, for ease of citation we cite only the April 13th date.
Additionally, in block-quoting the trial court’s opinion, below, we consolidate
the court’s citations to the transcript.
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3. Meanwhile, the Nature Preserve provided a photograph of the suspect —
who was Appellant — and the Victim identified him as the person who attacked
her. Id.
The State Police learned Appellant, then 20 years old, was a resident of
Adelphoi Village, located approximately one mile from the Nature Reserve.
Adelphoi Village was a group home for juvenile offenders with mental health
and sexual offender issues, and all the residents, including Appellant, have
been committed there by a court.3 N.T. Trial at 108, 129-30. Appellant had
received a weekend “home pass,” permitting him to leave the facility with a
guardian. Trial Ct. Op. at 4. Appellant’s grandmother had taken him to the
Nature Reserve that day, but she stayed in the car. N.T. Trial at 115.
On September 21, 2017, 17 days after the assault, Pennsylvania State
Trooper John Zalich interviewed Appellant at the group home. See N.T. Trial
at 111. The trooper testified at trial about the statements Appellant made:
[Appellant] admitted he was walking down the same path as
Victim[. W]hen their paths split and they eventually passed each
other again, he wanted to talk to her so he grabbed her from
behind around her neck. [Appellant] also told Zalich that he knew
the path would eventually reconnect after a circle so he would
pass Victim again after the first encounter. . . .
Trial Ct. Op. at 4. Trooper Zalich further testified:
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3We note Appellant did not object to the introduction of this evidence — that
he had been committed by a court to reside at a group home for juvenile sex
offenders.
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I asked [Appellant] if he had sexual tendencies during the
interaction with the victim. At that point . . . there was a lull, like,
he didn’t answer me. So, I reworded it and . . . toned . . . down
[the terminology] and . . . asked him if he was having any urges
and he said he was. Then I followed up with [asking] him if he
needed more treatment and he said he did. [A]t that time the
interview concluded.
N.T. Trial at 115-16 (emphasis added). Trooper Zalich explained that the term
“treatment” meant the sexual offender treatment offered at Adelphoi Village.
Id. at 116.
II. Procedural History
Appellant was charged with attempted rape, aggravated assault,
strangulation, simple assault, and stalking.4
On February 5, 2021, the Commonwealth filed a motion in limine,
seeking to introduce evidence of two “prior bad acts” under Pa.R.E. 404(b).5
First, from 2013 to 2014, Appellant, then 16 years old, “was in a relationship
with” a 12-year old girl, T.E., with whom he repeatedly had forcible sexual
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4 18 Pa.C.S. §§ 2702(a)(1), 2718(a)(1), 2701(a)(1), 2709.1(a)(1),
respectively.
5On November 19, 2018, Appellant filed a motion to suppress the statements
he made to Trooper Zalich, alleging a Miranda violation. See Miranda v.
Arizona, 384 U.S. 436 (1966). The trial court conducted a hearing on
December 20th and denied the motion on February 27, 2019.
We note the lapse of three years between the filing of the criminal
complaint, on January 25, 2018, and the Commonwealth’s motion in limine of
February 5, 2021. The trial docket entries show numerous continuances,
some related to the COVID-19 pandemic.
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intercourse. See N.T. Trial at 124. Appellant initiated these “encounters by
choking [the girl] with his hands around her throat and pulling her pants off.”
Id. For these acts, Appellant was placed at Adelphoi Village by the Somerset
County juvenile court. Id. at 124-25. Second, in July of 2015, Appellant was
at home and asked D.D., a 37-year old family acquaintance, to his room to
speak “in private.” Id. at 125. Once inside, Appellant grabbed D.D. “by the
throat, pushed her down onto his bed, pinned her down, and unzipped her
pants. As [Appellant] attempted to pull down [her] pants, D.D. was able to”
escape.6 Id. The Commonwealth sought to introduce both prior acts to
establish Appellant’s intent to commit attempted rape in the instant case, by
showing a “common method of grabbing females by the throat in an effort to
advance his plan to remove their clothes and have forcible intercourse[.]”
Commonwealth’s Motion in Limine at 3.
Appellant filed an objection to the Commonwealth’s motion in limine.
The trial court granted the Commonwealth’s motion on March 25, 2021,7
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6 In its motion in limine, the Commonwealth stated Appellant was placed at
Adelphoi Village due to the offenses committed against T.E., as well as
“violations of the supervision conditions for the July 2015 assault” against D.D.
Commonwealth’s Motion in Limine, 2/5/21, at 3 (unpaginated).
7 While the trial court scheduled a hearing for March 24, 2021, it is not
apparent from the record whether the hearing was held. Neither the parties’
briefs nor the trial court’s opinion refer to a hearing. Upon informal inquiry
by this Court, the trial court advised it did not have any transcript of a motion
in limine hearing.
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finding the probative value outweighed the potential for prejudice, and the
court agreed to give a cautionary instruction to the jury.
The charges proceeded to a two-day jury trial commencing April 13,
2021. The Commonwealth presented the testimony of the Victim, Trooper
Zalich, as well as the responding state trooper, and Appellant’s supervisor at
Adelphoi Village. Additionally, the parties stipulated that if T.E. and D.D. were
called at trial, they would testify to the prior bad act incidents as described
above. N.T. Trial at 124-25. Immediately thereafter, the trial court gave a
cautionary instruction to the jury, that Appellant was not on trial for any past
sexual misconduct. Id. at 126. Instead, the evidence was presented “for a
limited purpose[,] of tending to show [Appellant’s] intent” in this case, and
the evidence must not be regarded as showing Appellant “is a person of bad
character or criminal tendencies [sic].” Id. at 127.
Following the Commonwealth’s case-in-chief, Appellant moved for a
judgment of acquittal on all charges. N.T. Trial at 138. The trial court granted
the motion as to stalking, but denied it as to the remaining charges. Id. at
149.
Appellant did not testify or present any evidence. N.T. Trial at 160. The
jury found him guilty of attempted rape, aggravated assault, strangulation,
and simple assault.
On July 12, 2021, the trial court imposed the following sentences: (1)
five to 10 years’ imprisonment on the attempted rape charge, to be served
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consecutively to Appellant’s Somerset County sentence; (2) a concurrent five
to 10 years’ imprisonment for aggravated assault; and (3) a concurrent two
to four years’ imprisonment for strangulation.8 The aggregate sentence was
thus five to 10 years. The trial court also noted Appellant’s attempted rape
conviction was a Tier III offense under the Sexual Offender Registration and
Notification Act9 (SORNA). N.T. Sentencing at 10.
Appellant took this timely appeal and complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
III. Statement of Questions Involved
Appellant raises two issues for this Court’s review.
I. Whether the trial court erred by ruling that the 404(b) evidence
was admissible to prove intent on the date in question, where the
facts of a prior conviction were not so similar as to be considered
a signature?
II. Whether the trial court [committed] reversible error in denying
Appellant’s motion of judgment of acquittal as to count 1,
attempted rape, in that there was no evidence of a substantial
step toward committing a rape as required by 18 Pa.C.S. . . .
§ 901?
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8 The trial court’s opinion mistakenly stated Appellant’s sentence for
strangulation was five to 10 years. See Trial Ct. Op. at 2.
9 42 Pa.C.S. §§ 9799.10 to 9799.41. See also 42 Pa.C.S. §§ 9799.14(d)(14)
(attempt to commit rape is a Tier III offense), 9799.15(a)(3) (individual
convicted of a Tier III sexual offense shall register for life).
At the sentencing hearing, the Commonwealth indicated the Sexual
Offender Assessment Board found Appellant did not meet the criteria for a
sexually violent predator. N.T. Sentencing, 7/12/21, at 3. See 42 Pa.C.S.
§ 9799.24 (sexually violent predator assessments).
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Appellant’s Brief at 7.
IV. Admission of Prior Bad Acts
Appellant first challenges the trial court’s admission of the prior bad acts
evidence under Pa.R.E. 404(b). “The admission of evidence is a matter vested
within the sound discretion of the trial court, and such a decision shall be
reversed only upon a showing that the trial court abused its discretion.”
Commonwealth v. Gilliam, 249 A.3d 257, 270-71 (Pa. Super. 2021)
(citation omitted). “Abuse of discretion is not merely an error of judgment,
but rather where the judgment is manifestly unreasonable or where the law
is not applied or where the record shows that the action is a result of partiality,
prejudice, bias or ill will.” Commonwealth v. Golphin, 161 A.3d 1009, 1021
(Pa. Super. 2017) (citation omitted).
This Court has explained:
Generally, evidence of prior bad acts or unrelated criminal activity
is inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).
However, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Pa.R.E. 404(b)(2). . . .
Gilliam, 249 A.3d at 271-72. “This list is non-exclusive.” Commonwealth
v. Brown, 52 A.3d 320, 325 (Pa. Super. 2012).
In addition, “[o]ur Supreme Court has consistently recognized that
admission of distinct crimes may be proper where it is part of the history or
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natural development of the case, i.e., the res gestae exception.” Brown, 52
A.3d at 326.
[T]he “res gestae” exception . . . is also known as the “complete
story” rationale, i.e., evidence of other criminal acts is admissible
“to complete the story of the crime on trial by proving its
immediate context of happenings near in time and place.”
Id. (citations omitted).
We have stated:
To establish one of the exceptions set forth in Rule 404(b)(2),
there must be “a close factual nexus sufficient to demonstrate the
connective relevance of the prior bad acts to the crime in
question[.]” Additionally, the term “unfair prejudice” in Rule
404(b)(2) “means a tendency to suggest a decision on an
improper basis or to divert the jury’s attention away from its duty
of weighing the evidence impartially.” “[W]hen weighing the
potential for prejudice, a trial court may consider how a cautionary
jury instruction might ameliorate the prejudicial effect of the
proffered evidence.”
* * *
[T]he trial court must assure that the probative value of
the evidence is not outweighed by its potential prejudicial
impact upon the trier of fact. To do so, the court must
balance the potential prejudicial impact of the evidence
with such factors as the degree of similarity established
between the incidents of criminal conduct, the
Commonwealth’s need to present evidence under the
common plan exception, and the ability of the trial court
to caution the jury concerning the proper use of such
evidence by them in their deliberations.
Gilliam, 249 A.3d at 271-72 (emphasis added and citations omitted).
[T]he [trial] court is not . . . required to sanitize the trial to
eliminate all unpleasant facts from the jury’s consideration where
those facts are relevant to the issues at hand and form part of the
history and natural development of the events and offenses for
which the defendant is charged.
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Commonwealth v. Dillon, 863 A.2d 597, 601 (Pa. Super. 2004) (citation
omitted).
Here, Appellant argues the trial court erred in admitting the prior bad
acts evidence, because any similarities with the present charges “were too
remote . . . to develop the necessary logical connection.” Appellant’s Brief at
15. In support, he points out differences between the prior incidents and the
instant offenses: (1) while he knew the individuals in both prior incidents, the
Victim in this case “was a complete stranger[;]” (2) there was no commonality
in the victims’ ages, where T.E. was 12 years old, D.D. was 37, and the Victim
was approximately 18; (3) the incidents occurred in dissimilar locations or
environments; (4) while “it could be easily inferred . . . that Appellant used a
face-to-face front choke” on the prior two victims, here, the Victim testified
that he stood behind her; and (5) while Appellant attempted to remove the
pants of the prior two victims, here, there was no testimony he attempted to
disrobe the Victim. Id. at 16-18. Appellant thus concludes there was
insufficient evidence to show “the acts were so nearly identical as to form a
signature.” Id. at 19. Finally, Appellant alleges the probative value of the
evidence did not outweigh the potential for prejudice. Id. at 15.
The Commonwealth states that while there is scarce case authority on
the admission of prior bad acts to show solely intent, decisional law “often
covers common scheme evidence in conjunction with intent and/or identity.”
Commonwealth’s Brief at 6. Here, the identity of the assailant was not at
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issue, and thus Appellant’s argument — highlighting the differences between
the two prior bad acts and the present offense — is misplaced. Id. at 7-8.
The Commonwealth concedes that even with Appellant’s statement that “he
was having sexual ‘urges,’” it was “nearly impossible to prove [he] intended
to commit a forcible rape[.]” Commonwealth’s Brief at 4-5; see N.T. Trial at
116. The Commonwealth thus asserts the prior acts evidence in this case was
needed, where it was the Victim’s ability to escape that “prevent[ed] any
further acts [by Appellant] to demonstrate his intent.” Commonwealth’s Brief
at 5, 12. The Commonwealth maintains that with all three victims, Appellant
applied pressure to their throats and pulled them to the ground as a precursor
to an alleged sexual assault. Id. at 10. Finally, the Commonwealth notes the
trial court gave a cautionary instruction, and denies the prior bad acts
evidence increased the risk of undue prejudice to Appellant.10 Id.at 5-6, 11.
Consistent with the Commonwealth’s discussion, we have not
discovered any case authority involving the admission of prior bad acts
evidence to show intent only. Instead, several decisions address evidence
presented to show intent along with motive, a common scheme, plan, and/or
identity. See Gilliam, 249 A.3d at 262-63, 273 (evidence — that defendant,
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10The Commonwealth maintains that, “in order to present these facts in as
non-prejudicial manner as possible,” it stipulated to the anticipated testimony
by T.E. and D.D. Commonwealth’s Brief at 11. However, it does not cite to
the place in the trial record that supports such an articulated intent. See id.
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a masseuse, was initially “appropriate and professional” and gained prior
clients’ trust, but subsequently “deviated from [his] usual professional
massages and worked his way further up the [prior clients’] leg[s] until he
touched their vaginas” — was admissible to show a common plan and/or lack
of mistake with regard to present charges that defendant committed same
behavior with victims); Golphin, 161 A.3d at 1016, 1021-22 (evidence of
defendant’s past physical abuse of his paramour and her young children was
admissible to show, inter alia, a common scheme or plan with respect to
instant charges of aggravated assault and third-degree murder of one of the
children).
We emphasize that our standard of review of an evidentiary ruling is an
abuse of discretion. See Gilliam, 249 A.3d at 270-71. Here, the trial court
considered both parties’ arguments and concluded that despite the differences
between the three incidents, Appellant’s “act of placing his hands around a
victim’s neck was a “signature” action, which “establish[ed] a logical
connection between the prior acts and the incident in this case.” See Trial Ct.
Op. at 7 (emphasis added). The court further reasoned:
Additionally, in [the prior incident with D.D., Appellant] waited
until the victim was in an area away from other people by asking
her to his bedroom but still attempted an assault with other people
in the house. . . .
In the present case, [Appellant] waited until Victim was in an
area away from other people and placed his arm around her throat
to gain control of her. N.T. [Trial] at 52, 56. Similarly to the
assault of [D.D., Appellant] did not take Victim to a completely
secluded area as his grandmother was waiting for him in the car
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and the Nature Reserve is a public park. In fact, Victim was able
to find a couple to direct her out of the Nature Reserve a short
distance away from where the assault took place. [Id.] at 62. . . .
Trial Ct. Op. at 6-7. Appellant does not challenge this latter analysis.
Appellant likewise does not address the Commonwealth’s point that any
further conduct against the Victim — that is, any additional step toward
committing rape — was thwarted only by the Victim’s ability to escape.
Additionally, we note the prior bad acts evidence provided explanation
to Appellant’s statement, in his police interview, that he had “urges” and
“needed more treatment.” See N.T. Trial at 115. The prior acts committed
against T.E. and D.D. led to Appellant’s placement, through the justice
system, in a group home for juvenile sexual offenders. Id. at 108, 129-30.
Without this prior acts evidence, the terms — “urges” and “treatment” —
would have lacked proper context. See id. Thus, we would further conclude
the introduction of the evidence was consistent with the res gestae exception,
as it was a part of the history or natural development of the case. See Brown,
52 A.3d at 326.
Finally, we consider that the trial court properly gave a cautionary
instruction to the jury, immediately after the introduction of the evidence.
See Gilliam, 249 A.3d at 272. The court instructed the jury that Appellant
was not on trial for the past sexual misconduct, and instead, the evidence was
presented only to show his intent in this case, and could not be considered to
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show he was a person of bad character or had criminal tendencies. See N.T.
Trial at 126-27.
After review of the trial court’s opinion, the parties’ arguments, the trial
record, and the relevant authority set forth above, we find no abuse of
discretion, nor partiality, prejudice, bias, or ill will in the court’s evidentiary
ruling. See Gilliam, 249 A.3d at 271; Golphin, 161 A.3d at 1021. The court
reasonably concluded that “the details and surrounding circumstances of each
criminal incident [showed] criminal conduct which is distinctive and so nearly
identical as to become the signature of the same perpetrator.” See Gilliam,
249 A.3d at 272. Thus, we do not disturb the court’s admission of the Rule
404(b) evidence.
V. Sufficiency of Evidence for Attempted Rape
Next, Appellant argues the trial court erred in denying his motion for
judgment of acquittal as to the attempt rape charge. We note the relevant
standard of review:
A motion for judgment of acquittal challenges the sufficiency of
the evidence to sustain a conviction on a particular charge, and is
granted only in cases in which the Commonwealth has failed to
carry its burden regarding that charge.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to
find every element of the crime beyond a reasonable
doubt. [W]e may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note
that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
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innocence. 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. . . . Moreover, in applying the above
test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the trier
of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006)
(citations omitted).
The Pennsylvania Crimes Code defines the offense of attempt as follows:
“A person commits an attempt when, with intent to commit a specific crime,
he does any act which constitutes a substantial step toward the commission
of that crime.” 18 Pa.C.S. § 901(a). “The substantial step test broadens the
scope of attempt liability by concentrating on the acts the defendant has done
and does not . . . focus on the acts remaining to be done before the actual
commission of the crime.” Commonwealth v. Zingarelli, 839 A.2d 1064,
1069 (Pa. Super. 2003) (citation omitted). Finally, we note the Crimes Code’s
definition of rape by forcible compulsion: “A person commits a felony of the
first degree when the person engages in sexual intercourse with a complainant
. . . [b]y forcible compulsion.” 18 Pa.C.S. § 3121(a)(1).
At this juncture, we set forth the trial court’s reasoning in denying
Appellant’s motion for judgment of acquittal. The court noted that “[a]n array
of acts has been found to be a substantial step for attempted rape, including
incidents where no sexual act had been specifically attempted and . . . no
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clothing was removed.” Trial Ct. Op. at 8. In support, the court cited the
following decisional authority: (1) Commonwealth v. Simpson, 462 A.2d
821, 824 (Pa. Super. 1983) (defendant’s applying pressure to victim’s throat
and starting to take off his own pants constituted a substantial step toward
commission of rape); (2) Commonwealth v. Martin, 452 A.2d 1066, 1070
(Pa. Super. 1982) (grabbing victim, threatening her, and expressing intent to
have sex with her “clearly amount[ed] to a substantial step in effectuating an
intended rape”); (3) Commonwealth v. Keeler, 448 A.2d 1064, 1072 (Pa.
Super. 1982) (telling victim, “I’m going to rape you,” pushing victim to
ground, and punching and kicking her was sufficient to sustain attempted rape
conviction); and (4) Commonwealth v. Bullock, 393 A.2d 921, 923 (Pa.
Super. 1978) (en banc) (ripping victim’s shirt, “pulling down her bra, and
attempting to remove her pants” supported a finding that defendant took a
substantial step toward rape).
On appeal, Appellant argues that in each of the cases relied upon by the
trial court, there existed “some act that can be tangentially related to a sex
offense[:]” “a threat of rape, the removal or attempt to remove clothing, or
the touching of the sexual parts of the victim’s body.” Appellant’s Brief at 20,
21. Appellant construes these same cases to stand for the proposition “that
the lack of a sexual element to [an] assault . . . is insufficient for [an]
attempted rape” charge. Id. at 22-23. Here, he asserts, there was no
evidence of any “sexual element” related to the assault. Id. at 23.
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Nevertheless, we note Appellant also concedes the Commonwealth presented
the prior bad acts evidence — although he continues to argue it was
“improperly admitted” — as well as Trooper Zalich’s testimony that Appellant
told him he “was having ‘urges.’” Id. at 21. We conclude no relief is due.
Appellant cogently points out that the cases cited by the trial court
involved some additional act that is not present here — for example, the
removal of clothing, statements of a sexual nature. However, as Appellant
discreetly acknowledges, this case involves the prior bad acts evidence, which
the Commonwealth introduced in order to establish his intent with respect to
the attempted rape charge. We have concluded above that this evidence was
properly admitted. The trial court reasoned,
In the present case the [Rule] 404(b) evidence introduced to
prove intent demonstrates that the act of waiting until Victim was
in a secluded area and placing her in a chokehold while bringing
her to the ground is a signature of how [Appellant] has committed
prior sexual assaults. . . .
Trial Ct. Op. at 8. We also consider the testimony of Trooper Zalich, that
Appellant responded in the affirmative when asked if “was having any urges”
during the attack of the Victim, and whether Appellant “needed more
treatment.” See N.T. Trial at 115-16. The trial court aptly observes:
“Although there may be more steps necessary to complete a rape, the proper
evaluation of whether a substantial step has occurred examines the steps
already taken by the [d]efendant.” Trial Ct. Op. at 8.
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We thus agree with the trial court that after “viewing all the evidence
admitted at trial in the light most favorable to the [Commonwealth as the]
verdict winner,” the jury could find every element of attempted rape, including
“a substantial step,” beyond a reasonable doubt. See Andrulewicz, 911 A.2d
at 165.
VI. Conclusion
Having concluded that no relief is due on Appellant’s issues, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2022
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