Com. v. Wilbur, L. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LUKE MACGREGOR WILBUR
Appellant No. 592 MDA 2017
Appeal from the Judgment of Sentence September 7, 2016
in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0002127-2015
BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*
MEMORANDUM BY RANSOM, J.: FILED OCTOBER 04, 2017
Appellant, Luke MacGregor Wilbur, appeals from the judgment of
sentence of sixty to one hundred twenty months of incarceration, followed
by sixty months of probation, imposed September 7, 2016, following a jury
trial resulting in his conviction for rape of an unconscious victim. 1
Additionally, Appellant’s counsel, Jonathan C. Faust, Esq., seeks to withdraw
his representation of Appellant pursuant to Anders v. California, 87 S. Ct.
1936 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We affirm and grant counsel’s petition to withdraw.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3121(3).
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We adopt the following statement of facts from the trial court opinion,
which in turn is supported by the record. See Trial Court Opinion (TCO),
5/16/17, at 2-13. The victim, C.M., met Appellant through a mutual friend,
N.W., two summers prior to the trial. Although Appellant expressed
romantic interest in C.M., she repeatedly refused his advances. Regardless,
she had gone out with Appellant in the company of other people, and she
had previously danced with him. N.W. was aware of Appellant’s interest in
C.M. but also knew C.M. made it clear she was not interested in him. As of
August 9, 2015, C.M. had not seen Appellant for approximately one year and
was in a committed relationship with another man.
On that day, C.M. made plans to spend the weekend with N.W. The
two women went to two bars, where C.M. had three mixed drinks, two of
which contained Red Bull. Later that night, N.W. received two phone calls:
one from her husband, requesting she come home, and another from
Appellant, who wanted to know what she was doing because he was going to
a party. C.M. asked N.W. if she thought it was a good idea for her to go out
with Appellant. N.W., who trusted Appellant completely, thought it would be
fine. C.M. agreed to go to a bonfire gathering with Appellant in
Shippensburg.
Appellant picked C.M. up at N.W.’s house and drove her to the party.
Along the way, they talked about their lives but did not discuss romance.
They arrived at the party shortly after midnight. Approximately ten guests
were drinking heavily and playing cards. C.M. drank a beer, a shot of vodka,
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and smoked marijuana. C.M. and Appellant left the party at sunrise,
approximately 6:00 a.m. Appellant drove C.M. back to N.W.’s house. C.M.
remembered briefly talking to Appellant in the car but fell asleep in the car
shortly thereafter.
The next thing C.M. remembered was waking up and hearing N.W. and
her husband coming down the stairs. C.M. realized that her clothes were
askew and her phone was missing. Her genital area was wet, she smelled
“funny” and felt sore, like one would after sexual intercourse. It was
approximately 10:00 a.m. C.M. stated that between 6:00 a.m. and 10:00
a.m. she was completely unconscious.
C.M. began to panic and tried to explain her situation to N.W., but she
had trouble constructing a coherent sentence. She repeatedly told N.W.,
“Something is wrong.” When N.W. finally calmed her down, the two women
called Appellant. N.W. heard C.M. say something to the effect of, “I just
want you to know I’m not okay with what you did.” C.M. asked Appellant if
he understood the position he was putting her in. He stuttered “yes” and
hung up.
After C.M. left, N.W. found C.M.’s phone in the couch and answered
when Appellant called. She asked Appellant if he and C.M. had sexual
intercourse, because C.M. seemed very upset and had not been awake.
Appellant said yes, and that, “I don’t know what happened. I’ve never done
anything like that before, and I just should have stopped. I should have just
stopped and I feel really bad.”
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C.M. went to the hospital and had a rape kit completed. Christine
Morgan, a sexual assault nurse examiner, performed the examination.
There was no trauma to C.M.’s body, which is consistent with an unconscious
victim who would have been relaxed. C.M.’s statement to Ms. Morgan was
consistent with her trial testimony, except that C.M. did not admit to
smoking marijuana as she was embarrassed. Police responded to the
hospital and spoke with C.M. regarding the rape, secured the rape kit, and
took her statement. The kit was not sent for processing because there was
no dispute that sex had occurred.
Appellant was also interviewed by detectives; the interview was
videotaped and later viewed by the jury. Appellant admitted he knew C.M.;
went to the party with her; had a crush on her; had unprotected sex with
C.M.; and ejaculated inside of her. However, he claimed he had intended to
make sure C.M. got to bed safely. After covering her with a blanket, he
looked at her for five minutes and thought she was asleep. When he started
kissing her, he thought she enjoyed it. However, he acknowledged C.M. lay
still and did not talk to him. Appellant then took his pants off and had oral
and vaginal intercourse with C.M. He claimed that during the intercourse
she moved so he “could get at her better” and that at one point she opened
her eyes. He acknowledged that he had spoken with C.M. earlier and she
was not interested in a relationship with him; and that during the phone call,
she was upset with Appellant and tried to tell Appellant he had raped her.
He admitted he felt terrible about what had happened.
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Following trial, a jury convicted Appellant of rape of an unconscious
person. Prior to sentencing, trial counsel filed a motion to withdraw, which
was granted. Thereafter, the court appointed current counsel to represent
Appellant. On September 7, 2016, Appellant was sentenced to sixty to one
hundred twenty months of incarceration, followed by sixty months of
probation. That same day, the trial court extended the time for filing post-
sentence motions to ten days from the receipt of the trial transcripts. The
transcripts were lodged September 16, 2016, and filed on September 21,
2016. Appellant timely filed a post-sentence motion on September 26,
2016.
When it came to the trial court’s attention that Appellant’s motion had
not been acted upon within one hundred twenty days as required by
Pa.R.Crim.P. 720(B)(3)(a), on March 8, 2017, the trial court deemed the
motion to be denied by operation of law. Appellant timely filed a notice of
appeal on April 3, 2017, within thirty days of the entry of that order. See
Pa.R.Crim.P. 720(A)(2)(b). Appellant filed a court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal, and the court issued a
responsive opinion.
In this Court, Appellant’s counsel has filed an Anders brief, asserting
two issues Appellant might seek to raise: 1) whether the Commonwealth had
presented sufficient evidence to convict Appellant of rape of an unconscious
person, and 2) whether the verdict was against the weight of the evidence.
See Appellant’s Brief at 7.
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When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on
direct appeal under Anders, counsel must file a brief that meets the
requirements established by the Pennsylvania Supreme Court in Santiago,
namely:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel's conclusion that the appeal is frivolous;
and
(4) state counsel's reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Counsel also must provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client of his right to: “(1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points
that the appellant deems worthy of the court[’]s attention in
addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, only then may this Court “conduct an independent
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review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In the instant matter, Attorney Faust’s Anders brief complies with the
above-stated requirements. Namely, he includes a summary of the relevant
factual and procedural history; he refers to the portions of the record that
could arguably support Appellant’s claims; and he sets forth his conclusion
that Appellant’s appeal is frivolous. He explains his reasoning and supports
his rationale with citations to the record as well as pertinent legal authority.
Attorney Faust avers he has supplied Appellant with a copy of his Anders
brief and a letter explaining the rights enumerated in Nischan. Accordingly,
counsel has complied with the technical requirements for withdrawal. Thus,
we may independently review the record to determine if the issues Appellant
raises are frivolous and to ascertain if there are other non-frivolous issues he
may pursue on appeal.
First, Appellant contends that the evidence was insufficient to convict
him of rape of an unconscious victim. See Appellant’s Brief at 12. Appellant
contends the Commonwealth failed to prove the intercourse was not
consensual. Id. He claimed that five drinks and marijuana was not enough
to cause intoxication such that the victim could not consent, and that the
victim merely “did not remember” the consensual intercourse Id. at 12-13.
We review a challenge to the sufficiency of the evidence as follows.
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In determining whether there was sufficient evidentiary support
for a jury’s finding [], the reviewing court inquires whether the
proofs, considered in the light most favorable to the
Commonwealth as a verdict winner, are sufficient to enable a
reasonable jury to find every element of the crime beyond a
reasonable doubt. The court bears in mind that: the
Commonwealth may sustain its burden by means of wholly
circumstantial evidence; the entire trial record should be
evaluated and all evidence received considered, whether or not
the trial court’s rulings thereon were correct; and the trier of
fact, while passing upon the credibility of witnesses and the
weight of the evidence, is free to believe all, part, or none of the
evidence.
Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations
omitted).
A person commits the offense of rape when he engages in sexual
intercourse with a complainant who is unconscious, or where he knows that
the complainant is unaware that the sexual intercourse is occurring. See 18
Pa.C.S. § 3121(a)(3). Our Court has previously held that where a victim,
“during at least portions of the assault, lacked knowledge or awareness of
both her own sensations and external events, and was not in the normal
waking state, the evidence was sufficient to support the finding that she
was unconscious within the meaning of the statute.” See Commonwealth
v. Erney, 698 A.2d 56, 59 (Pa. 1997); see also Commonwealth v. Diaz,
152 A.3d 1040, 1045 (Pa. Super. 2016).
The evidence in the instant case was indeed sufficient to support the
jury’s verdict that, during the assault, the victim was unconscious within the
meaning of the statute. C.M. testified that she had no recollection of what
had happened to her between 6:00 a.m. and 10:00 a.m., when she woke up
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to find her clothes in disarray and other signs that intercourse had been
performed upon her. Appellant gave an inculpatory statement to the police
in which he admitted he should have stopped when C.M. just “lay there.”
Appellant’s argument that C.M.’s “movement” and eye opening during the
assault indicated consciousness is also without merit, as we have held that
intermittent unconsciousness satisfies the conditions of the statute so to
make consent impossible. See Erney, 698 A.2d at 59; Diaz, 152 A.3d at
1045. Accordingly, the evidence was sufficient to support Appellant’s
convictions. Id.
Next, Appellant contends that the verdict was against the weight of the
evidence because the victim’s testimony was incredible. Id. at 13.
Appellant points to the fact that the victim’s story regarding the substances
she had used changed from the initial report to the sexual assault nurse to
her trial testimony rendered her testimony unbelievable. Id.
Initially, we note that claims regarding the weight of the evidence are
within the sound discretion of the trial court and will not be disturbed absent
an abuse of that discretion. See Commonwealth v. Houser, 18 A.3d
1128, 1135-1136 (Pa. 2011). “The jury is free to believe all, part, or none
of the evidence and to determine the credibility of the witnesses, and a new
trial based on a weight of the evidence claim is only warranted where the
jury's verdict is so contrary to the evidence that it shocks one’s sense of
justice.” Id. Where the challenge to the weight of the evidence is
predicated on the credibility of trial testimony,
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our review of the trial court's decision is extremely limited.
Generally, unless the evidence is so unreliable and/or
contradictory as to make any verdict based thereon pure
conjecture, these types of claims are not cognizable on appellate
review.
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007)
(internal citations and quotations omitted); see also Commonwealth v.
Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015) (noting that this Court
may not re-assess the credibility of a witness’ testimony when ruling on a
weight of the evidence claim).
Here, C.M. testified before the jury and was accordingly subject to
cross-examination. The jury additionally viewed Appellant’s video-taped
statement to detectives. It was the jury’s role to evaluate this testimony
and give it such weight as they saw fit, and they properly found that there
was nothing inherently unreliable in C.M.’s testimony. See TCO at 17-18.
Thus, the jury heard the evidence, evaluated it, and found C.M.’s testimony
credible and Appellant’s statement not credible, and we decline to re-assess
the jury’s credibility determination. See Hankerson, 118 A.3d at 420.
Attorney Faust identifies one additional issue Appellant seeks to raise,
namely, whether the prosecutor committed misconduct by referring in
closing argument to “a fixed line” that Appellant stepped over. See
Appellant’s Brief at 14. However, Appellant did not object to this remark at
the time of trial and, accordingly, has waived the claim on appeal. See,
e.g., Commonwealth v. Tedford, 960 A.2d 1, 28–29 (Pa. 2008).
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In short, we agree with Attorney Faust that Appellant’s issues are
frivolous. We have independently reviewed the record and find no other
issues of arguable merit that he could pursue on appeal. Accordingly, we
affirm Appellant’s judgment of sentence and grant counsel’s petition to
withdraw.
Petition to withdraw granted. Judgment of sentence affirmed.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2017
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