Com. v. Nzo-miseng, S. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SALVATOR NZO-MISENG, : No. 382 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, December 13, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0002634-2006
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 14, 2015
This is an appeal from the judgment of sentence imposed on
December 13, 2013, in the Court of Common Pleas of Allegheny County.
Following a jury trial, appellant was found guilty of one count of rape,
18 Pa.C.S.A. § 3121(a)(3), one count of involuntary deviate sexual
intercourse, 18 Pa.C.S.A. § 3123(a)(3), and one count of sexual assault,
18 Pa.C.S.A. § 3124.1. Appellant was sentenced to 42 to 84 months’
incarceration. We affirm.
We adopt the facts as summarized by the trial court:
[M.S.] was a freshman student at LaRoche
College in the fall of 2006. (Trial Transcript p. 109).
One evening she visited an acquaintance in his
dormitory room and consumed at least four shots of
vodka. (Trial Transcript p. 112). While she was
there, Defendant appeared and started talking to
her. (Trial Transcript p. 113). At some point, [M.S.]
* Retired Senior Judge assigned to the Superior Court.
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passed out. (Trial Transcript p. 116). She briefly
gained consciousness to find a man on top of her
having vaginal sex with her. (Trial Transcript
p. 117). She recalled that the man who was
engaging in intercourse with her was wearing a black
shirt with a red stripe down the sleeve. (Trial
Transcript p. 118). This was the outfit Defendant
was wearing when he entered the dormitory room.
(Trial Transcript p. 118). [M.S.] again lost
consciousness. (Trial Transcript p. 119). When she
awoke, she was completely naked lying on the floor
of her acquaintance’s dormitory room. (Trial
Transcript p. 119). She quickly gathered her clothes
and ran to her room. She immediately showered,
then contacted the counselor in the dormitory and
reported that she thought she was raped. (Trial
Transcript p. 119-22).
[M.S.] then was transported to UPMC
Passavant Hospital where she underwent the
standard post-rape examination. Susan Hirth, the
emergency room nurse who examined [M.S.],
testified that the standard procedure for a post-rape
examination is fairly invasive. (Trial Transcript
p. 184-85). As part of this examination, numerous
photographs are taken of all parts of the victim’s
body where there is evidence of injury. (Trial
Transcript p. 185, 191). In this case, Ms. Hirth
noticed bruising and abrasions on the right side of
her face, and ulceration on her labia. (Trial
Transcript p. 185). All of these injuries were
photographed and admitted into evidence.
....
Defendant testified at trial and admitted that
he had sexual intercourse with [M.S.], however, he
maintained that the victim consented to the sexual
act.
Trial court opinion, 10/15/14 at 3-5.
Appellant raises the following issues for our review:
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I. DID THE LOWER COURT ABUSE ITS
DISCRETION WHEN IT ADMITTED AN
IRRELEVANT AND INFLAMMATORY
PHOTOGRAPH OF THE ACCUSER’S GENITALS,
CAUSING UNFAIR PREJUDICE AGAINST
MR. NZO-MISENG?
II. WAS THE VERDICT RENDERED CONTRARY TO
THE WEIGHT OF THE EVIDENCE PRESENTED
WHERE THE ACCUSER ADMITTEDLY LIED TO
MEDICAL STAFF DURING HER “RAPE KIT”
EXAMINATION, TO THE POLICE DURING THE
INVESTIGATION, AND TO THE JURY AT TRIAL
REGARDING HER LEVEL OF INTOXICATION?
Appellant’s brief at 5.
In his first claim, appellant contends that the trial court abused its
discretion in allowing photographs of M.S.’s genital area to be admitted as
evidence at trial. Appellant argues that the photographs were inflammatory
by their very nature and were irrelevant.
“The admission of photographs is a matter resting with the discretion
of the trial court.” Commonwealth v. Tharp, 830 A.2d 519, 530 (Pa.
2003). In Commonwealth v. Malloy, 856 A.2d 767 (Pa. 2004), our
supreme court outlined a two-part test for the admissibility of photographs.
First, the court must decide whether a photograph is
inflammatory by its very nature. If the photograph
is deemed inflammatory, the court must determine
whether the essential evidentiary value of the
photograph outweighs the likelihood that the
photograph will improperly inflame the minds and
passions of the jury.
Id. at 776.
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Appellant contends the graphic photos taken during a medical
examination did not assist the jury in any factual determination before it.
Appellant asserts the only purpose of the photographs from M.S.’s rape kit
examination was to improperly inflame the passions and sympathies of the
jury, thereby distracting it from the matter actually at issue in the trial.
To be deemed inflammatory, the photograph “must be of such a
gruesome nature or be cast in such an unfair light that it would tend to cloud
an objective assessment of the guilt or innocence of the defendant.”
Commonwealth v. Dotter, 589 A.2d 726, 729 (Pa.Super. 1991) (citation
and quotation omitted). Having reviewed the Commonwealth’s Exhibit 11,
we cannot conclude the trial court abused its discretion in determining the
photographs were not inflammatory. The colored photographs were taken in
a hospital setting. While they are intimate, they are not gruesome or
particularly shocking, as the jury, obviously comprised of adults, would be
familiar with female genitalia. The photos were were a fair and accurate
depiction of M.S’s physical condition after the incident. Thus, they were
relevant and tended to corroborate M.S.’s testimony.
Additionally, the trial court addressed the evidentiary value of the
photographs as follows:
Prior to admission of this particular
photograph, this court viewed the photograph and
concluded that it was not prejudicial. Further, this
court stated, I don’t see a whole lot there. I think
you would be able to cross-examine that. I don’t see
how it is prejudicial. Thus, this photograph fails the
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first prong of the Malloy test in that it is not an
inflammatory photograph. Further, as is noted
above, [M.S.] underwent a very invasive post-rape
examination. The testimony of the emergency room
nurse established that there was an ulceration in the
vaginal area of [M.S.] that was found during the rape
examination. Given that the victim does not recall
with specificity the events of that evening, any
evidence of damage to the vaginal area would be
highly probative of the facts at issue. Further, the
photograph was taken by a medical provider during
the course of an examination. As such, it was not
inflammatory or prejudicial to such an extent that
would cause the jury to be inflamed by its admission.
Thus, the relevant photograph was properly
admitted.
Trial court opinion, 10/15/14 at 7 (internal citations omitted).
The record indicates M.S. testified that she had not had pain in her
vagina prior to the date of this incident, but did have pain after being
assaulted.
[The Commonwealth] Did you have any pain in any
part of your body?
[M.S.] Yes.
Q. Where did you feel the pain?
A. Both my vaginal and rectum area.
Q. Did you have that pain before September 6,
2005?
A. No.
Notes of testimony, 7/9/13 at 128.
Emergency Room Nurse Susan Hirth testified regarding the injuries
she observed on M.S. during her treatment at the hospital:
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Q. While you are doing the exam for [M.S.], did
you notice any injuries to her?
A. Yes. She had bruising, abrasions like on the
right side of her face, right cheek, right
eyebrow area. And then on the vaginal exam
she had like an ulceration on her labia.
....
A. I mean, she complained of discomfort in the
vaginal area, but not in the rectum.
Id. at 185, 197.
The Commonwealth was permitted to introduce a photograph of the
ulceration of the victim’s vagina as evidenced by the following:
Q. I’m going to show you what has been marked
as Commonwealth Exhibit 11.
A. This is a picture of her -- we do a close-up and
a full body picture. And then the bottom two
show the area of the ulceration near her
vagina.
Q. Do those pictures fairly and accurately
represent what you saw on September 7,
2005, when you examined [M.S.]?
A. Yes.
Id. at 192.
Based on the above, we agree with the trial court’s reasoning in
permitting the photographs to be admitted into evidence.
In his next claim, appellant contends the verdict was against the
weight of the evidence. Specifically, appellant asserts the jury gave
improper weight to the testimony of M.S., who acknowledged lying to the
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police and medical professionals and who did not remember saying “yes” or
“no” on the night in question. (Appellant’s brief at 27.) This claim lacks
merit.
Our standard of review is as follows:
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witness. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we
may only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of
justice. Moreover, where the trial court has ruled on
the weight claim below, an appellate court’s role is
not to consider the underlying question of whether
the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the
trial court palpably abused its discretion in ruling on
the weight claim.
Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013), appeal
denied, 80 A.3d 774 (Pa. 2013).
The record indicates the 18-year-old victim, a college freshman, did
not initially tell either the police or hospital personnel that she had been
drinking prior to the assault and that she had passed out from alcohol.
(Notes of testimony, 7/9/13 at 135-136.) However, she admitted she
initially lied and explained that she did so because she was scared and
embarrassed.
[Attorney Shrager]: You have already said to the
jury that you don’t know why you lied to the police
about saying you drank Pepsi?
[M.S.]: I do know why I lied.
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Q. When I asked you a few minutes ago, what did
you say? When I asked you why you lied.
A. I was scared, embarrassed.
Id. at 151. M.S. was further questioned regarding her reasons for not
telling the police she had been drinking:
[The Commonwealth]: [M.S.], you indicated you
didn’t tell the police you were drinking when you
initially spoke to them on September 7, 2005. Can
you explain to the jury why you didn’t tell them you
were drinking that particular morning?
[M.S.]: I was scared, I was embarrassed. I didn’t
want them to think it was my fault because I was
drinking.
Q. Did you ever meet with the detective after that
day, after September 7?
A. I think so, yes. Yes, I did.
Q. At the subsequent meetings, what did you tell
him about the drinking on that particular day?
A. I told him I was drinking.
Id. at 175-176.
Based on the above, the jury was informed of the initial false
statement concerning the role of alcohol that evening and M.S.’s explanation
for being untruthful. Appellant testified the sex was consensual. (Id. at
277.) This matter hinged on credibility determinations as to the presence or
absence of consent. Clearly, the jury believed the victim, M.S., to be more
credible. It was within the exclusive province of the finder-of-fact to resolve
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conflicts in the testimony and to believe all, part, or none of the evidence.
Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa.Super. 2006), appeal
denied, 911 A.2d 933 (Pa. 2006). We conclude the trial court did not abuse
its discretion in denying the weight of the evidence claim.
The judgment of sentence is affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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