Com. v. Cooper, D. ( 2017 )

J-S05038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEVIN THOMAS COOPER,
Appellant No. 483 MDA 2016
Appeal from the Judgment of Sentence February 23, 2016
in the Court of Common Pleas of Cumberland County
Criminal Division at No.: CP-21-CR-0001463-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 13, 2017
Appellant, Devin Thomas Cooper, appeals from the judgment of
sentence imposed on February 23, 2016, following his jury conviction of one
count each of sexual assault, criminal trespass,1 false imprisonment, and
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*
Retired Senior Judge assigned to the Superior Court.
1
We recognize that in Leach v. Commonwealth, 141 A.3d 426, 435 (Pa.
2016), our Supreme Court concluded that Act 192 of 2014, which included,
inter alia, amendments to 18 Pa.C.S.A. § 3503(b.1)(1)(iv) and
§ 3503(b.1)(2), (criminal trespass to steal defined secondary metals),
violated the single-subject rule of Article III, Section 3 of the Pennsylvania
Constitution. Accordingly, the High Court declared Act 192 void in its
entirety. See id. However, the holding in Leach does not affect this case
because Appellant was not convicted of trespass to steal secondary metals.
Rather, he was convicted and sentenced under subsection 3503(a)(1)(i)
(surreptitious entry or remaining in building or occupied structure).
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simple assault.2 On appeal, Appellant challenges the sufficiency of the
evidence and the trial court’s denial of his motion in limine to exclude
evidence of prior bad acts. For the reasons discussed below, we affirm the
judgment of sentence.
We take the underlying facts and procedural history in this matter
from the trial court’s July 15, 2016 opinion and our independent review of
the reproduced record.
The events relevant to this case occurred on the morning
of May 27, 2015, when [the victim] was attacked in her
apartment. [The victim] and [Appellant] previously were
involved in a romantic relationship over the course of two years
and have a daughter together. At approximately [eight] in the
morning, while [the victim] was preparing for work, the power to
her apartment shut off. After the power went out, [the victim]
looked out her window and noticed a truck that she believed
belonged to her landlord in the apartment complex parking lot.
Just outside of the front door to [the victim’s] apartment is the
electrical utility room for the apartment complex. Neither the
external door leading into the complex nor the door to the
electrical utility room were customarily kept locked. While she
was looking out of the window to her apartment, [the victim]
heard a knock on her door. Believing her landlord might have
been working on electrical repairs, [the victim] walked to her
front door and twisted the doorknob to unlock it. Upon opening
the door enough to look out, [the victim] saw that [Appellant]
was in the hallway. Though she tried to close the door,
[Appellant] forced his way into her apartment. Once inside the
apartment, [Appellant] grabbed [the victim] by the arms. [The
victim] broke away and retreated to her bedroom to obtain her
phone in order to call for help. [Appellant] pursued her and a
struggle broke out over the phone. During this struggle,
[Appellant] grabbed [the victim] and placed his hands over her
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2
18 Pa.C.S.A. §§ 3124.1, 3503(a)(1)(i), 2903(a), and 2701(a)(1),
respectively.
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mouth and throat, making it difficult for her to breath[e]. He
eventually pushed her face-down onto the floor and sat on her
back, alternatively reading texts on her phone and suffocating
her by placing his hands over her mouth and nose when he read
a text that angered him. Eventually [Appellant] got up off of
[the victim] and allowed her to get up. Around this time [the
victim’s] phone was ringing as her manager and co-worker were
calling her because she was late for her work shifted [sic] which
started at 9:45 a.m.
[Appellant] remained in the apartment after allowing [the
victim] to get up off of the floor[,] claiming he wanted to see his
daughter. At this time, [the victim] went into the living room to
change her pants, as the pants she was wearing were covered in
dog hair from being on the floor. [Appellant] followed her into
the living room, pushed [the victim] onto the couch, and
proceeded to pull down her underwear and pants while also
undoing his own pants. [Appellant] then proceeded to have
sexual intercourse with [the victim], despite her verbal
protestations. When he was finished, [Appellant] went into the
daughter’s room and changed her diaper while [the victim]
finished getting dressed. At this point [Appellant] allowed [the
victim] and their daughter to leave and walked outside with
them to [the victim’s] car. [The victim] got into her car, called
911, and started driving to her aunt’s house. During the call she
spoke with Officer [Richard] Grove who told her to go to the
Carlisle Hospital. At the hospital [the victim] met Officer Grove
and submitted herself to a rape kit examination, which included
a vaginal swab and photographs of any bruising or markings on
[her] body. [The victim] had markings and bruises on her arms,
chest, and face.
Later that evening [the victim] went to the police station
and filed a written report on the incident. At the urging of
Officer Grove, [the victim] called [Appellant] from the police
station and allowed the call to be recorded. [Appellant] was
subsequently arrested and charged with the above captioned
offenses.
At trial, [the victim] testified that, over the course of their
previous relationship, [Appellant] had physically assaulted and
threatened her. Specifically, she briefly testified that he tackled
her to the ground when she was six months pregnant and, at a
different time, attempted to put her hands in a ceiling fan.
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Partially as a result of these prior actions, [the victim] took the
[Appellant’s] threats seriously.
(Trial Court Opinion, 7/15/16, at 2-5) (footnote omitted).
On August 21, 2015, the Commonwealth filed a criminal information
charging Appellant with two counts of rape,3 and one count each of
burglary,4 sexual assault, criminal trespass, terroristic threats,5 false
imprisonment, and simple assault. (See Information, 8/21/15, at
unnumbered pages 1-2). Immediately prior to the start of trial, on October
26, 2015, Appellant moved to exclude all evidence of prior violent episodes
during his relationship with the victim. (See N.T. Trial, 10/26/15, at 3-4).
After hearing argument, the trial court denied the motion. (See id. at 4-5).
A jury trial took place on October 26, 27, and 28, 2015. The jury
acquitted Appellant of rape, burglary, and terroristic threats, but found him
guilty of sexual assault, criminal trespass, false imprisonment, and simple
assault. On February 23, 2016, the trial court sentenced Appellant to an
aggregate term of incarceration of not less than three and one-half nor more
than seven years, to be followed by a two-year term of probation.
The instant, timely appeal followed. On March 28, 2016, the trial court
ordered Appellant to file a concise statement of errors complained of on
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3
18 Pa.C.S.A. §§ 3121(a)(1) and (a)(2).
4
18 Pa.C.S.A. § 3502(a)(1).
5
18 Pa.C.S.A. § 2706(a)(1).
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appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b)
statement on April 15, 2016. See id. On July 15, 2016, the trial court filed
an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
I. Did the court err when it admitted [the victim’s] testimony
about a prior bad act [Appellant] committed during their
relationship?
II. Was the evidence insufficient to support a conviction of
sexual assault?
III. Was the evidence insufficient to support a conviction of
simple assault?
IV. Was the evidence insufficient to support a conviction for
false imprisonment?
V. Was the evidence insufficient to support a conviction for
criminal trespass?
(Appellant’s Brief, at 5) (unnecessary capitalization omitted).
In his first issue, Appellant maintains that the trial court erred in
denying his motion in limine to preclude evidence of Appellant’s prior use of
force against the victim. (See id. at 9-12). Specifically, Appellant claims it
was prejudicial error to admit the testimony because it allowed a jury to
draw an improper inference that Appellant had a propensity towards violence
against the victim. (See id. at 11-12). We disagree.
Our standard of review concerning the grant or denial of a motion in
limine is well settled.
When reviewing a trial court’s denial of a motion in limine,
this Court applies an evidentiary abuse of discretion standard of
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review. An abuse of discretion will not be found based on a
mere error of judgment, but rather exists where the court has
reached a conclusion which overrides or misapplies the law, or
where the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will.
This Court has stated the well-established standard of
review for admission of evidence claims as follows: [I]n
reviewing a challenge to the admissibility of evidence, we will
only reverse a ruling by the trial court upon a showing that it
abused its discretion or committed an error of law. . . . To
constitute reversible error, an evidentiary ruling must not only
be erroneous, but also harmful or prejudicial to the complaining
party.
Commonwealth v. Schley, 136 A.3d 511, 514-15 (Pa. Super. 2016)
(citations and quotation marks omitted).
Further, evidence is relevant: “(a) if it has any tendency to make a
fact more or less probable than it would be without the evidence; and (b)
the fact is of consequence in determining the action.” Pa.R.E. 401.
“Evidence is relevant if it logically tends to establish a material fact in the
case, tends to make a fact at issue more or less probable or supports a
reasonable inference or presumption regarding a material fact.”
Commonwealth v. Loughnane, 128 A.3d 806, 818 (Pa. Super. 2015),
appeal granted in part, 2016 WL 5819328 (Pa. 2016) (citation omitted).
This Court has stated:
Relevant evidence may nevertheless be excluded if its
probative value is outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
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Because all relevant Commonwealth evidence is meant to
prejudice a defendant, exclusion is limited to evidence so
prejudicial that it would inflame the jury to make a decision
based upon something other than the legal propositions relevant
to the case. As this Court has noted, a trial court is not required
to sanitize the trial to eliminate all unpleasant facts from the
jury’s consideration where those facts form part of the history
and natural development of the events and offenses with which
[a] defendant is charged.
Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super. 2004), appeal
denied, 876 A.2d 392 (Pa. 2005) (quotation marks, footnote, and citations
omitted).
Here, Appellant argues that the trial court improperly admitted
evidence under Pennsylvania Rule of Evidence 404, which provides in
pertinent part:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
In the instant matter, the relevant testimony was as follows:
[The Commonwealth]: I want to talk now about how your
relationship ended. Had there been prior threats by [Appellant]
or acts of violence against you close in time to this incident, I
guess?
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[The Victim]: There have been. When I was six months
pregnant, [Appellant] pushed me flat on the ground almost like
football tackling me to the ground. When I was pregnant[,] he
also tried to put my hands in a ceiling fan.
[The Commonwealth]: When you were pregnant[,] that
happened?
[The Victim]: Correct.
[The Commonwealth]: Did you take him seriously when this was
happening?
[The Victim]: Yes.
(N.T. Trial, 10/26/15, at 37). The Commonwealth explained that it offered
the evidence to explain intent, why the victim did not wish to allow Appellant
into her apartment, why she did not wish to have sexual intercourse with
him, and the basis of her fear of Appellant. (See id. at 4-5).
We have reviewed the evidence in question and conclude that the trial
court did not abuse its discretion in admitting it. The evidence was clearly
probative because it explained why the victim was afraid of Appellant and
did not want him in her apartment, and her conduct of attempting to placate
Appellant during the incident. See Commonwealth v. Ivy, 146 A.3d 241,
252 (Pa. Super. 2016) (reversing trial court decision excluding admission of
protection from abuse order obtained by victim against appellant and noting
that evidence of prior abuse between appellant and victim is generally
admissible); Commonwealth v. Jackson, 900 A.2d 936, 940 (Pa. Super.
2006), (holding that history of prior domestic violence between appellant
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and murder victim was admissible as part of sequence of events which
formed history of case as well as to show motive, malice, intent and ill-will
towards victim).
Moreover, even if we were to find error, Appellant has not shown that
he was prejudiced. Our Supreme Court has stated:
An error will be deemed harmless where the appellate court
concludes beyond a reasonable doubt that the error could not
have contributed to the verdict. If there is a reasonable
possibility that the error may have contributed to the verdict, it
is not harmless. In reaching that conclusion, the reviewing court
will find an error harmless where the uncontradicted evidence of
guilt is overwhelming, so that by comparison the error is
insignificant. . . .
Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003) (citation
omitted).
Here, as noted above, the evidence regarding the prior incidents of
domestic violence was a brief mention of two incidents in response to the
Commonwealth’s question. (See N.T. Trial, 10/26/15, at 37). Appellant has
failed to show any evidence that these brief statements unduly prejudiced
the jury, who acquitted Appellant of the most serious charges. Given this,
the prejudice arising from a brief mention of two prior incidents of domestic
violence was de minimis. See Commonwealth v. Passmore, 857 A.2d
697, 711 (Pa. Super. 2004), appeal denied, 868 A.2d 1199 (Pa. 2005) (error
is harmless when “the prejudice was de minimis[.]”) (citation omitted).
Because the evidence was both relevant and not unduly prejudicial, the trial
court did not err in denying Appellant’s motion in limine. See Schley,
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supra at 514-15; Broaster, supra at 592. Appellant’s first claim lacks
merit.
In his remaining four claims, Appellant challenges the sufficiency of
the evidence underlying his conviction. (See Appellant’s Brief, at 13-17).
However, Appellant waived these claims.
Pennsylvania Rule of Appellate Procedure 1925(b)
provides, inter alia, “Issues not included in the Statement and/or
not raised in accordance with the provisions of this paragraph
(b)(4) are waived.” Pa.R.A.P.1925(b)(4)(vii). In
Commonwealth v. Garland, 63 A.3d 339 (Pa. Super. 2013),
this Court found the appellant had waived his sufficiency of the
evidence claim where his 1925(b) statement simply averred the
evidence was legally insufficient to support the convictions and
in doing so reasoned:
In order to preserve a challenge to the
sufficiency of the evidence on appeal, an appellant’s
Rule 1925(b) statement must state with specificity
the element or elements upon which the appellant
alleges that the evidence was insufficient. “Such
specificity is of particular importance in cases where,
as here, the appellant was convicted of multiple
crimes each of which contains numerous elements
that the Commonwealth must prove beyond a
reasonable doubt.” Here, as is evident, [the
a]ppellant . . . failed to specify which elements he
was challenging in his Rule 1925(b) statement. . . .
Thus, we find [his] sufficiency claim waived on this
basis.
Id. at 344 (citations omitted).
In the Interest of J.G., 145 A.3d 1179, 1189 (Pa. Super. 2016).
In this case, Appellant’s Rule 1925(b) statement merely states, “[t]he
Commonwealth failed to introduce sufficient evidence to convict [Appellant]
beyond a reasonable doubt of the above-captioned offenses.” (See
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Appellant’s Rule 1925(b) Statement, 11/15/16, at 1). Appellant’s statement
of the questions involved is equally vague. (See Appellant’s Brief, at 5).
Appellant does not list the elements of the crime, state which element he is
challenging, or explain why he believes the evidence was insufficient.
Accordingly, we deem Appellant’s issue waived. See J.G., supra at 1189.
Moreover, even if we were to address the merits of Appellant’s
sufficiency claim, it would fail. Our standard of review for sufficiency of the
evidence claims is well settled:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed
in a light most favorable to the Commonwealth as verdict
winner, support the conviction beyond a reasonable doubt.
Where there is sufficient evidence to enable the trier of fact to
find every element of the crime has been established beyond a
reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth’s
burden may be met by wholly circumstantial evidence and any
doubt about the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation
omitted) (emphasis added).
Appellant challenges the sufficiency of the evidence with respect to his
conviction for sexual assault, criminal trespass, false imprisonment, and
simple assault. Initially, we note that Appellant’s argument disregards our
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standard of review, which requires that we view the evidence in a light most
favorable to the Commonwealth as verdict winner, because Appellant only
discusses the evidence in the light most favorable to him, and ignores any
unfavorable testimony by the victim. (See Appellant’s Brief, at 13-17).
Further, Appellant overlooks the fact that this Court does not re-weigh the
evidence nor do we engage in credibility determinations. (See id.).
The crime of sexual assault occurs when a “person engages in sexual
intercourse or deviate sexual intercourse with a complainant without the
complainant’s consent.” 18 Pa.C.S.A. § 3124.1. An individual commits
simple assault if he “attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another[.]” 18 Pa.C.S.A. § 2701(a)(1).
The phrase, “[b]odily injury” is defined as “[i]mpairment of physical
condition or substantial pain.” 18 Pa.C.S.A. § 2301. An individual commits
the crime of false imprisonment if he “knowingly restrains another unlawfully
so as to interfere substantially with his liberty.” 18 Pa.C.S.A. § 2903(a).
False imprisonment “covers restraints which are less serious than those
necessary for the offenses of kidnapping and unlawful restraint.” In the
Interest of M.G., 916 A.2d 1179, 1181-82 (Pa. Super. 2007) (footnotes
and citations omitted). Rather it concerns instances “where an individual’s
liberty is interfered with in an ample or considerable manner.” Id. (citation
omitted). Lastly, an appellant is guilty of criminal trespass where he
“enters, gains entry by subterfuge or surreptitiously remains in any building
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or occupied structure or separately secured or occupied portion[.]” 18
Pa.C.S.A. § 3503(a)(1)(i). An occupied structure is “[a]ny structure, vehicle
or place adapted for overnight accommodations of persons, or for carrying
on business therein, whether or not a person is actually present.” 18
Pa.C.S.A. § 3501.
Here, the evidence at trial, as discussed above, clearly demonstrated
that Appellant, who was not on the lease and did not have a key to the
victim’s apartment, force his way in without her permission. He grabbed the
victim by the arms, causing bruises. When the victim attempted to get
away from him to call for help, he grabbed her phone and struggled with
her. During the struggle, he forcibly held his hands over her mouth and
throat, making breathing difficult. He pushed her face down onto the floor
and sat on her back, holding her in place, and alternately choking her and
reading texts from her phone. When he let go of the victim, he followed her
into her living room, pushed her onto the couch, pulled down her pants and
underwear and had sexual intercourse with her over her repeated
objections. He ultimately allowed the victim to leave her apartment. The
victim had visible bruises on her arms, chest, face, and neck for at least a
week, and complained of soreness. (See generally, N.T. Trial, 10/26/15, at
11-56; see also Trial Ct. Op., at unnumbered pages 2-5).
This evidence was clearly sufficient to sustain Appellant’s convictions.
See Commonwealth v. Benito, 133 A.3d 333, 336 (Pa. Super. 2016),
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appeal denied, 141 A.3d 477 (Pa. 2016) (holding evidence sufficient to
sustain conviction for criminal trespass where estranged husband, whose
name was not on lease and did not have key to apartment, forced himself in
without wife’s permission); M.G., supra at 1182 (holding evidence sufficient
to sustain conviction for false imprisonment where defendant was in area he
was not permitted to be, stood between victim and door and locked door);
Commonwealth v. Emler, 903 A.2d 1273, 1277-78 (Pa. Super. 2006)
(holding evidence sufficient to sustain conviction for simple assault where
defendant pinned victim to ground and vigorously choked him, causing
soreness to neck and shoulders); Commonwealth v. Castelhun, 889 A.2d
1228, 1232 (Pa. Super. 2005) (“[T]he uncorroborated testimony of the
complaining witness is sufficient to convict a defendant of sexual offenses.”)
(citations omitted); Commonwealth v. Davis, 650 A.2d 452, 455 (Pa.
Super. 1994), affirmed, 674 A.2d 214 (Pa. 1996) (victim’s uncorroborated
testimony if believed by trier of fact is sufficient to support conviction even if
defense presents countervailing evidence).
Moreover, Appellant’s claim is, in essence, a contention that the jury
should have credited his testimony that the victim invited him over and they
had consensual sex. (See Appellant’s Brief, at 13-17). However, such an
argument goes to the weight of the evidence, not the sufficiency of the
evidence. See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa.
Super. 2007) (claim that jury should have believed appellant’s version of
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event rather than that of victim goes to weight, not sufficiency of evidence);
Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003)
(review of sufficiency of evidence does not include assessment of credibility
of testimony; such claim goes to weight of evidence); Commonwealth v.
Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997) (credibility determinations
are made by finder of fact and challenges to those determinations go to
weight, not sufficiency of evidence). Accordingly, even if it had been
properly preserved, Appellant’s sufficiency of the evidence claim lacks merit.
Appellant’s issues are either waived or lack merit. Thus, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2017
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