Com. v. Johnson, Z. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ZARIYUS JOHNSON :
:
Appellant : No. 1077 EDA 2022
Appeal from the Judgment of Sentence Entered March 28, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000696-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 13, 2023
Appellant Zariyus Johnson appeals from the judgment of sentence
imposed after a jury convicted him of attempted rape, two counts of
kidnapping, and related offenses. Appellant challenges the sufficiency of the
evidence and the discretionary aspects of his sentence. Following our review,
we affirm Appellant’s convictions, the judgment of sentence in part, and
vacate in part as to the sentence of kidnapping at count two.
The trial court summarized the facts of this case as follows:
On June 16, 2018, at approximately 10:15 p.m., [the victim] was
walking home from her job in Norristown, PA on a back alley off
Chestnut Street when [Appellant] confronted her and pulled out a
gun from his waistband. [The victim] recognized [Appellant] from
an encounter the previous month in which she saw [Appellant]
while waiting for her mom outside of a Norristown convenience
store. Specifically, [Appellant] had asked [the victim] if she
wanted to purchase drugs and then provided her with his phone
number in the event she wanted to go out with him. [Appellant]
stated, “why didn’t you call me bitch?,” placed the gun into [the
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victim’s] back and forced her to walk away from her house and
towards the rear of a vacant house located on Chestnut Street.
[Appellant] forced [the victim] to walk down some steps and
pointed the gun at her face while stating that he was going to
force her to perform oral sex on him. [Appellant] proceeded to
pull his pants down and forced [the victim] to place his penis in
her mouth. [Appellant] eventually had [the victim] stop and
pressed the front of her body up against a wall while positioning
himself behind her. At this time [Appellant] removed [the
victim’s] pants and pressed his penis against her buttocks. [The
victim] begged [Appellant] to stop and informed him that she was
on her period. [Appellant] subsequently forced [the victim] to get
on her knees and perform oral sex on him again. [Appellant]
pulled [the victim’s] hair as this was happening, called her a bitch
several times and also smacked her in the face. [Appellant]
eventually ejaculated and his semen landed on [the victim’s] face
and hand. Following the encounter, [Appellant] put his pants back
on and threatened [the victim] to not say anything about what
had happened because he knew where she lived. Following his
issuance of this threat, [Appellant] walked casually down the alley
away from [the victim].
[The victim] subsequently ran home and told her sister and
mother what had happened. [The victim’s] mother called the
police and, upon their arrival, [the victim] showed them where the
assault had occurred. Medics later transported [the victim] to
Abington Hospital where she provided a statement to a nurse and
a rape kit was completed. The rape kit involved obtaining swabs
of [the victim’s] vagina, rectum, mouth, face, external genitalia
and hands. On June 19, 2018, [the victim] provided a formal
statement to the police in which she informed them regarding the
details of the assault three (3) days earlier. On June 25, 2018,
authorities interviewed [Appellant] and obtained consent to
perform a DNA swab of [Appellant’s] mouth. Authorities
submitted the swabs from the rape kit and from [Appellant] to the
Pennsylvania State Police (PSP) for analysis. The PSP analysis
report revealed that [Appellant’s] DNA matched the DNA
recovered from an oral swab obtained during [the victim’s] rape
kit. Authorities later arrested [Appellant].
Trial Ct. Op., 7/28/22, at 1-2 (some formatting altered).
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On October 20, 2021, following a two-day trial, a jury found Appellant
guilty of two counts of kidnapping, and one count each of attempted rape—
forcible compulsion, involuntary deviate sexual intercourse (IDSI)—forcible
compulsion, IDSI—threat of forcible compulsion, indecent assault without
consent, unlawful restraint, and possession of an instrument of crime (PIC).1
On March 28, 2022,2 the trial court sentenced Appellant to an aggregate
term of fifteen to thirty years’ imprisonment followed by six years of probation.
Id. at 7-8. Specifically, the trial court sentenced Appellant to consecutive
terms of 50 to 100 months’ imprisonment for kidnapping (count one), 60 to
120 months’ imprisonment and three years of probation for attempted rape—
forcible compulsion (count three), and 70 to 140 months’ imprisonment and
three years of probation for IDSI—forcible compulsion (count five). N.T.
Sentencing Hr’g, 3/28/22, at 6-7. The trial court also sentenced Appellant to
forty-one to eighty-two months’ imprisonment for kidnapping (count two) and
one to two months’ imprisonment for PIC (count thirteen), to be served
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1 18 Pa.C.S. §§ 2901(a)(2), 2901(a)(3), 901(a), 3123(a)(1), 3123(a)(2),
3126(a)(1), 2902(a)(1), and 907(a), respectively.
2 We note that the trial court initially imposed Appellant’s sentence on
February 28, 2022. After the trial court amended its original sentencing order
to include a consecutive term of mandatory probation, Appellant filed a post-
sentence motion in which he argued that the trial court erred because it did
not impose the amended sentence in open court. On March 28, 2022, the trial
court granted Appellant’s post-sentence motion, vacated the previous
judgment of sentence, and held a new sentencing hearing.
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concurrent to Appellant's sentence at count five.3 The trial court concluded
that, for purposes of sentencing, Appellant’s convictions for IDSI—threat of
forcible compulsion (count six) and indecent assault (count seven) merged
with count five and that unlawful restraint (count eleven) merged with count
one. Id. at 7-8. The trial court also ordered Appellant to register as a Tier
III offender under the Sexual Offender Registration and Notification Act 4
(SORNA) and issued a no-contact order.
Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a)
opinion addressing Appellant’s claims.
On appeal, Appellant raises the following issues for review:
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3 As noted, Appellant was convicted and sentenced for two counts of
kidnapping, one under 18 Pa.C.S. § 2901(a)(2) (count one) and one under 18
Pa.C.S. § 2901(a)(3) (count two). Although both charges were based on a
single criminal act, the trial court found that the kidnapping convictions did
not merge for sentencing purposes because each subsection required an
element that the other did not. See N.T. Sentencing Hr’g, 2/28/22, at 6; see
also 42 Pa.C.S. § 9765. In reaching that conclusion, the trial court relied on
Commonwealth v. Garner, 288 MDA 2014, 2015 WL 7302587 (Pa. Super.
filed Apr. 7, 2015) (unpublished mem.). See N.T. Sentencing Hr’g, 2/28/22,
at 6. However, because Garner is an unpublished decision by this Court that
was filed prior to May 1, 2019, it is not precedential and cannot be cited or
relied upon for its persuasive value. See, e.g., Commonwealth v. Finnecy,
249 A.3d 903, 910 n. 9 (Pa. Super. 2021); Pa.R.A.P. 126(b). In any event,
as explained below, this Court’s precedential opinion in Commonwealth v.
Rosario, 248 A.3d 599 (Pa. Super. 2021), appeal denied, 262 A.3d 1258 (Pa.
2021), cert. denied 142 S. Ct. 1143 (2022), compels us to conclude that the
kidnapping charges merge for sentencing purposes.
4 42 Pa.C.S. §§ 9799.10-9799.41.
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1. Pursuant to Commonwealth v. Karkaria, 625 A.2d 1167 (Pa.
1993) and its progeny did the internal inconsistencies in the
Commonwealth[’s] case, namely the inconsistencies between
the victim’s testimony, her statements to police, and her
statements to a forensic nurse examiner regarding the
numbers of times that she was forced to perform oral sex and
whether it occurred before [Appellant] attempted intercourse
as well as the lack of sperm on swabs taken from the victim’s
face when she claimed [Appellant] had ejaculated there, render
the Commonwealth’s evidence so unreliable that it was
insufficient to prove the charges in question beyond a
reasonable doubt?
2. At sentencing, did the lower court err in failing to find or
consider any mitigating circumstances when the Pre-Sentence
Investigation Report noted [Appellant] had in fact endured the
death of his father when he was a teenager and also had a
loving relationship with his children?
Appellant’s Brief at 4-5.5
Sufficiency of the Evidence
In his first issue, Appellant argues that the victim’s testimony was so
inconsistent as to “render any verdict based on it unreliable.” Appellant’s Brief
at 16 (citing Karkaria, 625 A.2d at 1170). Specifically, Appellant claims that
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5 The Commonwealth argues that Appellant waived his sufficiency challenge
because Appellant’s Rule 1925(b) statement does not specify the charges or
elements for which he claims the evidence was insufficient. Commonwealth’s
Brief at 6-7. Appellant’s Rule 1925(b) statement does not identify the
elements that Appellant claims the Commonwealth failed to prove at trial.
See Pa.R.A.P. 1925(b) Statement, 6/13/22, at 1. It is well settled that a
vague challenge to the sufficiency of the evidence may result in waiver. See
Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017). Here,
the trial court addressed Appellant’s sufficiency claims, and the case against
Appellant was relatively straightforward. See Trial Ct. Op. at 8-11. Therefore,
we decline to find waiver. See Commonwealth v. Laboy, 936 A.2d 1058,
1060 (Pa. 2007) (per curiam).
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the victim initially reported that her attacker first attempted to pull her pants
down and only later forced her to perform oral sex, but that the victim
presented those events in the opposite order during her testimony at trial.
Id. Appellant further contends that the victim’s testimony that her attacker
ejaculated on her face is inconsistent with testimony from the forensic nurse
examiner, who stated that she did not find any traces of semen on the swabs
taken from the victim’s face. Id. at 17.
The standard of review for a sufficiency challenge is well settled:
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations
omitted).
Generally, challenges to the verdict based on inconsistent testimony
implicate the weight of the evidence, not the sufficiency, because issues of
credibility are for the jury to resolve. See Commonwealth v. Smith, 181
A.3d 1168, 1186 (Pa. Super. 2018). However, our Supreme Court has
recognized an exception to “the general rule that the jury is the sole arbiter
of the facts where the testimony is so inherently unreliable that a verdict based
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upon it could amount to no more than surmise or conjecture.” Karkaria, 625
A.2d at 1170 (citation omitted); see also Smith, 181 A.3d at 1186 (quoting
Karkaria); accord Commonwealth v. Brown, 52 A.3d 1139, 1157 n.18
(Pa. 2012) (reiterating that in “extreme situations where witness testimony is
so inherently unreliable . . . that it makes the jury’s choice to believe that
evidence an exercise of pure conjecture, any conviction based on that
evidence may be reversed on the grounds of evidentiary insufficiency . . . .”).
In Karkaria, the defendant was charged with rape and other offenses
based on allegations that he sexually assaulted his stepsister approximately
300 times between April 9, 1984 and September 19, 1984 while he was
babysitting at the complainant’s home. Karkaria, 625 A.2d at 1167. At trial,
the complainant testified that the defendant assaulted her in 1981, which was
outside of the timeframe in which the charges were based. Id. at 1168.
Further, the complainant was unable to provide details concerning any other
instance of assault or specify when or how those assaults may have occurred.
Id. at 1171. The complainant also testified that she never experienced pain
during the sexual assaults and never objected to being in the defendant’s care.
Id. at 1168. On appeal, our Supreme Court explained:
In order for the jury in this case to have concluded that [the
complainant] was forcibly raped by [the defendant], the jury
would have had to conclude that [the complainant] had been
forced to submit to sexual intercourse at least once between April
9, 1984 and September 19, 1984. Since there was no direct
evidence of sexual intercourse between those dates, the jury in
order to convict, would have had to conclude, beyond a reasonable
doubt, that the [complainant] had been forced to submit to sexual
intercourse over 300 times, without ever feeling pain, without any
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physical evidence to support the contention that she was so
victimized, and without any specific recollection by [the
complainant] as to a date certain upon which even one of the
several hundred assaults occurred.
Id. at 1170-71. Therefore, the High Court concluded that “the evidence
presented at trial when carefully reviewed in its entirety, is so unreliable and
contradictory that it is incapable of supporting a verdict of guilty, and thus, is
insufficient as a matter of law.” Id. at 1172 (footnote omitted).
Instantly, the trial court addressed Appellant’s claim as follows:
[I]n contrast with the extreme irregularities surrounding the
[complainant’s] testimony in Karkaria, [] [the victim’s] testimony
is not riddled with inconsistencies nor is this a case where the jury
rendered a verdict based solely upon vague and contradictory
evidence that fails to establish the elements of the crimes
charged. . . .
* * *
[The evidence presented at trial] is vastly different from the
evidence at issue in Kakaria []. When viewed in a light most
favorable to the Commonwealth as the verdict winner, the
evidence plainly supports a finding beyond a reasonable doubt
that [Appellant] committed a sexual assault at gunpoint upon [the
victim] and kidnapped her during the course of this assault. The
slight variances between [the victim’s] trial testimony, her police
statement and her patient narrative, and the lack of any seminal
material on her face do not compel a different conclusion and
come nowhere close to constituting “exceptional circumstances”
wherein Karkaria [] is applicable.
The variances identified by [Appellant] were miniscule and do not
alter the main body of [the victim’s] testimony which sufficiently
established the elements of each of [Appellant’s] convictions. This
testimony was corroborated by evidence demonstrating that
[Appellant’s] DNA was the major component found in the seminal
material recovered from inside [the victim’s] mouth. Thus, any
inconsistencies within [the victim’s] trial testimony were questions
of credibility for the fact finder to resolve and any questions of
credibility relate to the weight, not sufficiency, of the evidence. It
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was within the sole province of the jury whether to believe all,
part or none of the testimony. The identified variances do not
bring this matter within the purview of Kakaria [] and therefore
cannot render the evidence insufficient as a matter of law.
Trial Ct. Op. at 8-11 (citations omitted and formatting altered).
Following our review of the record, and viewing the evidence in the light
most favorable to the Commonwealth as the verdict winner, we have no basis
to conclude that the victim’s testimony was so unreliable that it undermined
the validity of the jury’s verdict. See Karkaria, 625 A.2d at 1170; Brown,
52 A.3d at 1157 n.18. At trial, the victim identified Appellant as the assailant,
recounted the threats that Appellant made against her, and described the
sexual acts that Appellant forced her to perform. See N.T. Trial, 10/19/21, at
44-62. The victim’s trial testimony was also consistent with the statement
that she provided to police. See N.T. Trial, 10/20/21, at 7-17. Further, unlike
Karkaria, the Commonwealth presented physical evidence establishing that
Appellant’s DNA matched the DNA that the police gathered from the victim’s
rape kit. See N.T. Trial, 10/19/21, at 130-32, 134. Therefore, on this record,
we conclude that the evidence was sufficient to sustain Appellant’s conviction.
See Widmer, 744 A.2d at 751. For these reasons, Appellant is not entitled
to relief on this issue.
Discretionary Aspects of Sentencing
In his second issue, Appellant challenges the discretionary aspects of
his sentence. Appellant’s Brief at 19. Specifically, Appellant argues that the
trial court failed to consider mitigating factors, including his prior record score
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of zero and information from the pre-sentence investigation (PSI) report which
stated that Appellant’s father died when he was fourteen years old and that
Appellant is a loving father to his own children. Id.
It is well settled that
challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right. An appellant challenging the
discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted and formatting altered).
Here, the record reflects that Appellant did not raise this claim at
sentencing, nor was it included in a post-sentence motion.6 Accordingly,
Appellant’s claim is waived. See Proctor, 156 A.3d at 273; Pa.R.Crim.P.
720(b)(1).
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6 We note that when a trial court modifies a sentence pursuant to a timely
filed post-sentence motion, the defendant is not required to file another post-
sentence motion to preserve a sentencing issue for appeal if he raised that
issue in his prior post-sentence motion. See Pa.R.Crim.P. 720, Cmt.
However, Appellant did not raise this issue in his initial March 10, 2022 post-
sentence motion, nor did he file a post-sentence motion raising this issue after
the trial court imposed the instant sentence on March 28, 2022. Therefore,
Appellant’s claim is waived.
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Merger
Finally, we must address whether Appellant’s sentences for kidnapping
should have merged for sentencing purposes. Although Appellant does not
raise this issue on appeal, we may address such issues sua sponte. See
Commonwealth v. Watson, 228 A.3d 928, 941 (Pa. Super. 2020) (stating
that questions concerning merger implicate the legality of a sentence, and this
Court may address such issues sua sponte); see also Commonwealth v.
Tucker, 143 A.3d 955, 960 (Pa. Super. 2016) (citation omitted) (stating that
“[a]n illegal sentence must be vacated”).
When reviewing the legality of a sentence, “our standard of review is de
novo and our scope of review is plenary.” Commonwealth v. Tighe, 184
A.3d 560, 584 (Pa. Super. 2018) (citations omitted).
Section 9765 of the Sentencing Code provides as follows:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765.
This Court has explained, “[t]he statute’s mandate is clear. It prohibits
merger unless two distinct facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of one of the offenses are
included in the statutory elements of the other.” Commonwealth v.
Martinez, 153 A.3d 1025, 1030 (Pa. Super. 2016) (citations omitted).
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The crime of kidnapping is defined as follows:
(a) Offense defined.—Except as provided in subsection (a.1), a
person is guilty of kidnapping if he unlawfully removes another a
substantial distance under the circumstances from the place
where he is found, or if he unlawfully confines another for a
substantial period in a place of isolation, with any of the
following intentions:
(1) To hold for ransom or reward, or as a shield or hostage.
(2) To facilitate commission of any felony or flight thereafter.
(3) To inflict bodily injury on or to terrorize the victim or
another.
(4) To interfere with the performance by public officials of any
governmental or political function.
18 Pa.C.S. § 2901(a)(1)-(4) (emphasis added).
In Rosario, this Court addressed whether the defendant’s convictions
for kidnapping under two different subsections should merge for sentencing
purposes. In that case, the defendant was charged with kidnapping at two
separate subsections based on a single criminal act. Rosario, 248 A.3d at
619. On appeal, the defendant argued that his sentences for Subsection
2901(a)(2) and Subsection 2901(a)(3) violated the constitutional prohibition
against double jeopardy because both charges were based on the same
criminal act. Id.
Ultimately, the Rosario Court agreed with the defendant that the
kidnapping convictions should have merged for sentencing purposes. In
reaching that conclusion, the Court explained:
A person commits the single crime of kidnapping if he or she
satisfies, “any” of the intentions expressed in 18 Pa.C.S. §
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2901(a)(1)-(4). Therefore, 18 Pa.C.S. § 2901(a)(2) and 18
Pa.C.S. § 2901(a)(3) are not themselves separate offenses, but
rather are alternative means for satisfying 18 Pa.C.S. § 2901(a).
If a defendant is proven to have more than one of the expressed
intentions, he can be convicted under two sections of the statute,
but he cannot be sentenced under both, when only one criminal
offense, i.e., a single kidnapping, has been committed.
Id. at 621 (citations omitted and formatting altered). Therefore, the Rosario
Court vacated the defendant’s judgment of sentence and remanded for
resentencing. Id. at 622.
Here, like in Rosario, although Appellant was charged with kidnapping
under two separate subsections, both offenses were based on the same
underlying criminal act.7 See Criminal Information, 5/8/19, at 1 (stating that
Appellant unlawfully removed the victim a substantial distance or unlawfully
confined the victim for a substantial period with intents to (1) facilitate a felony
or flight thereafter and (2) inflict bodily injury on or to terrorize the victim);
see also N.T. Trial, 10/19/21, at 44-62 (reflecting that Appellant committed
a single act of unlawfully removing and confining the victim). Therefore,
Appellant’s kidnapping convictions should have merged for sentencing
purposes. See Rosario, 248 A.3d at 621; see also Martinez, 153 A.3d at
1030. Accordingly, we are constrained to vacate the sentence imposed for
kidnapping at count two. See, e.g., Tucker, 143 A.3d at 968 (affirming the
defendant’s convictions but vacating an illegal sentence). Further, we note
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7The trial court concluded at the first sentencing hearing that Appellant’s two
convictions for kidnapping did not merge. See N.T. Sentencing Hr’g, 2/28/22,
at 6. However, the trial court did not address merger any further in its Rule
1925(a) opinion.
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that because the trial court imposed a concurrent sentence for the kidnapping
conviction at count two, our disposition does not upset the trial court’s overall
sentencing scheme. Therefore, it is not necessary to remand this matter for
resentencing. See Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa.
Super. 2006).
For these reasons, we affirm Appellant’s convictions, vacate the
sentence imposed at count two, and affirm the judgment of sentence in all
other respects.
Judgment of sentence affirmed in part, and vacated in part as to the
sentence imposed at count two. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2023
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