Com. v. Groce, F. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FATEEN GROCE :
:
Appellant : No. 412 EDA 2022
Appeal from the Judgment of Sentence Entered November 3, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002098-2018
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 17, 2023
Fateen Groce appeals from the judgment of sentence entered following
his convictions for rape of an unconscious person, sexual assault, and indecent
assault.1 He contends his prosecution was barred by the statute of limitations
and argues a Confrontation Clause violation. He also challenges the sufficiency
of evidence supporting the finding that he is a sexually violent predator (SVP).
We affirm.
The victim called 911 in July 2002 to report a sexual assault. When
police interviewed her, she told them that she was staying in the one-bedroom
apartment of a friend, Kim Hadley, for a few months until they got an
apartment together. The victim slept on the sofa, while Hadley used the
bedroom. See Motion to Dismiss Pursuant to Statute of Limitations, Ex. A,
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1 18 Pa.C.S.A. §§ 3121(a)(3), 3124.1, and 3126(a)(1), respectively.
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Investigation Interview Record, 7/31/02, at 1 (unpaginated). Hadley had
“passed out drunk” before the victim went to sleep. The victim told police that
when she awoke in the morning, her vagina was wet and “smelled like sex.”
Id. However, she did not remember having sex or anyone touching her
because she had taken Tylenol PM and was “knocked out.” Id. She said she
had had a male visitor, but he went home before she went to sleep at around
2:00 AM or 2:30 AM. Id. The victim stated she had left the apartment door
unlocked, although the outside door leading to the apartments was locked.
Id. The front door also leads to two other apartments. Id. at 2. The victim
told Philadelphia police that one of those apartments was occupied by an older
man, while she believed a woman and her children lived in the other
apartment with one of the children’s fathers. Id.2
When the victim woke up in the morning, Groce was in bed in Hadley’s
room, and the apartment door had been locked. Id. Groce had not been in
the apartment when the victim went to sleep. Id. Hadley told the victim that
Groce had keys to the apartment and had arrived around 4:00 AM, and that
she had locked the apartment door after he arrived. Id. According to a police
incident report, the victim told police that she believed “that she was raped
by unk[nown] person[.]” Motion to Dismiss Pursuant to Statute of Limitations,
Ex. C, Complaint or Incident Report, 7/31/02, at 1 (unpaginated).
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2 But see Motion to Dismiss Pursuant to Statute of Limitations, Ex. D,
Investigation Report, 8/5/02, at 1 (unpaginated) (“She stated that the other
apartments are occupied by women and children with the exception of an
elderly male that lives in the other 1st floor apartment.”).
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Police officers took the victim to the hospital where a rape kit was
collected. Id. at 1; Motion to Dismiss Pursuant to Statute of Limitations, Ex.
D, Investigation Report, 8/5/02, at 1 (unpaginated). Police conducted criminal
history checks and found that Hadley had no prior record. Groce had five prior
arrests for narcotics, theft, and simple assault. See id. at 2. Police submitted
the rape kit for testing, which produced positive test results for sperm. See
Motion to Dismiss Pursuant to Statute of Limitations, Ex. E, Criminalistics
Laboratory Report, 8/16/02, at 1 (unpaginated). No DNA testing was
performed, and police did not interview Hadley or Groce at that time.
The victim’s rape kit was not subjected to DNA testing until 14 years
later, in 2016, when Philadelphia received a grant and submitted a backlog of
rape kits to private laboratories. See N.T. Trial, 12/2/2020, at 188. The
victim’s kit was sent to Bode Cellmark Forensics (“Bode Lab”), which produced
a report dated July 2016 containing a DNA profile. Philadelphia police uploaded
the DNA profile to the local Combined DNA Index System (“CODIS”) database
and sent the profile to the Pennsylvania State Police. In November 2017, the
State Police informed Philadelphia that the DNA profile had matched Groce’s
DNA profile in the state CODIS database. Philadelphia police obtained a buccal
swab from Groce that produced a DNA profile consistent with that obtained
from the rape kit.
In January 2018, Police interviewed Hadley. She told them that she and
Groce were asleep in her room on the morning in question. See Motion to
Dismiss Pursuant to Statute of Limitations, Ex. B, Investigation Interview
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Record, 1/31/18, at 2 (unpaginated). The bedroom door flew open, and police
officers told her and Groce to get out of bed. According to Hadley, the victim
pointed at Groce and said, “That bastard raped me.” Id. at 2. On February 1,
2018, the Commonwealth charged Groce.
Groce moved to dismiss the case on the ground that the statute of
limitations had run. The Commonwealth countered that a statutory exception
for genetic identification evidence applied. That exception applies where
evidence of certain offenses – including offenses with which Groce was
charged – contains DNA that “is subsequently used to identify an otherwise
unidentified individual as the perpetrator of the offense.” 42 Pa.C.S.A. §
5552(c.1). In such cases, the prosecution for such offenses may begin either
within the statute of limitations provided for the offenses or one year after the
individual’s identity is determined, whichever is later. Id. Groce maintained
that the exception did not apply to him because he was not an “otherwise
unidentified individual.” He argued that this was so because police had
identified him as a suspect during the investigation in 2002. The trial court
denied Groce’s motion.
Groce also filed a motion to suppress all forensic evidence including the
2016 Bode Lab Report. See N.T. Motion Volume 1, 1/10/20, at 21. Groce
argued that the report was inadmissible and pursuant to the Confrontation
Clause, the Commonwealth could only admit the report if they called the
analyst who conducted the report. Id. at 21-23. The court denied Groce’s
motion. See N.T. Motion Volume 1, 1/10/20.
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At Groce’s bench trial, the Commonwealth presented the testimony of
David Hawkins, a forensic scientist at the Philadelphia Police Department’s
DNA Laboratory.3 He testified that he had conducted a full technical review of
the Bode Lab’s documentation to determine that all the laboratory work was
done according to standard operating procedures and that the DNA profile
listed in the 2016 Bode Lab Report was the same information that he observed
in the raw data. See N.T. Trial at 162-78. According to the trial court,
[a]fter Hawkin’s technical review was completed, Brian Pfleegor,
the forensic scientist who manages the PPD DNA Laboratory’s local
Combined DNA Index System (CODIS) database, uploaded the
male DNA profile from the 2016 Bode Lab Report to the CODIS
database and sent the information to the Pennsylvania State
Police. See [N.T. Trial] at 185, 188-91. Eventually, the
Pennsylvania State Police notified Pfleegor that the DNA profile
uploaded in this case matched with [Groce’s] DNA profile in
CODIS. See id. at 188-89, 192. Pfleegor generated a CODIS
Convicted Offender Match Report dated November 10, 2017, that
reflected this information. See id. at 189-90; Exhibit C
(hereinafter 2017 CODIS Report). At that point, Philadelphia
police obtained a buccal swab from [Groce] that both parties
stipulated had been placed on a property receipt numbered
3341824 that was dated February 2, 2018. See N.T. Trial at 191,
195-96, 201; Exhibit C-8.
Finally, an DNA Laboratory Report dated March 28, 2018, and
signed by Lynn Haimowitz concluded that the DNA profile
observed in [Groce’s] buccal swab was consistent with the DNA
profile detected in the sample from [the victim’s] cervical swab;
“[e]xcluding an identical twin, Fateem Groce is the source of the
DNA detected in these samples.” See Exhibit C-10 (hereinafter
2018 DNA Lab Report).
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3 Groce objected to the Commonwealth calling Hawkins as a witness, raising
the same Confrontation Clause argument as he made in his motion to
suppress. See N.T. Trial, 12/2/20, at 148.
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Trial Court Opinion, filed 7/20/22, at 1-3 (footnotes omitted).
The court found Groce guilty of the above-referenced offenses. The
Commonwealth then moved to have him declared a Sexually Violent Predator.
The court conducted an SVP hearing at sentencing, and the Commonwealth
presented the testimony of a licensed psychologist, Dr. Cristine Dudley, who
had evaluated Groce for the Sexual Offenders Assessment Board. The
Commonwealth also introduced into evidence Dr. Dudley’s expert report. Dr.
Dudley testified that she did not interview Groce because he had declined to
be interviewed. See N.T. Sentencing Hearing, 11/3/21, at 13. However, she
maintained that this did not inhibit her assessment. Id.
Dr. Dudley testified that she concluded that Groce was an SVP after
considering several factors, including, but not limited to, the facts surrounding
the case, Groce’s criminal history, and any mental illness, disability, or
abnormality from which Groce suffered. Id. at 15-20. Dr. Dudley stated that
Groce had previously been diagnosed with “personality disorder not otherwise
specified" during a mental health evaluation, and she found he met the criteria
for antisocial personality disorder. Id. at 20. She based her diagnosis on
Groce’s “pervasive disregard for and violation of the rights of others since he
was 12. His criminal versatility, his arresting conviction record and misconduct
charges incurred while incarcerated.” Id. She stated that the diagnosis was
also based on Groce “having several different alias[es], not admitting to
sexually assaulting [the victim] despite knowing her or seeing her distressed
the day that she discovered that she had been sexually violated.” Id. at 20-
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21. She testified that though Groce had not been convicted of any sex crimes
since 2002, “he has displayed personal violence” consistent with antisocial
personality disorder. Id. at 40, 41.
Dr. Dudley also stated that she found Groce’s actions were predatory.
Id. at 24. She explained that “he went into where the victim was located and
sexually assaulted [the victim], despite seeing that she was unconscious . . .
for the sole purpose of meeting his sexual needs without regard to her health
and well-being.” Id.
Dr. Dudley also found Groce likely to re-offend:
Mr. Groce has engaged in illegal behavior since he was 12 years
old, if not earlier. He has had multiple arrests and convictions as
an adult, and it is evident that Mr. Groce has a wanton disregard
for the rules of society and the rights of others, and he will engage
in sexual behaviors with people against their will when having the
opportunity to meet his own needs.
Id. at 22.
The court found Groce was an SVP and sentenced him to five to 10 years
in prison. Groce filed a post-sentence motion challenging the weight of the
evidence. The court denied the motion, and this timely appeal followed.
Groce argues the following issues:
I. Where the accuser provided police with [Groce’s]
name as the assailant on the day of the alleged crime,
does the five-year applicable statute of limitations bar
the filing the criminal complaint on the current
charges fifteen years later, thereby requiring a
dismissal?
II. Was there a violation of Mr. Groce’s Confrontation
Clause rights pursuant to the Federal and State
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Constitutions where inadmissible testimonial forensic
reports were used to establish an essential element of
the offenses – identity – and were the only proof of
that element?
III. Was the evidence insufficient to find by clear and
convincing proof that Mr. Groce is a sexually violent
predator?
Groce’s Br. at 4 (answers of trial court omitted).
Groce maintains that the statute of limitations barred the
Commonwealth from prosecuting him. He argues that Section 5552(c.1) does
not apply here because he was not an “otherwise unidentified individual.” See
42 Pa.C.S.A. § 5552(c.1). He states that at trial, the victim testified that she
told police that Groce was the perpetrator on the day of the incident. He
asserts that Hadley testified that the victim barged into her room and said,
“[T]hat bastard raped me, pointing her finger at [Groce].” Groce’s Br. at 18,
19 (citing N.T. Trial, at 116).
Noting that Section 5552(c.1) does not define an “otherwise unidentified
individual,” Groce maintains that the plain meaning of the words precludes
their application to him. He argues that a person is not “unidentified” if “their
identity is known to the police and the police possess probable cause or more
to investigate or charge that person with a crime.” Id. at 25. Groce argues
that “[i]n every possible way” he was “‘identified’ as the suspect to police”
such that Section 5552(c.1) is inapplicable. Id. at 27.
Statutory interpretation is a question of law. Our standard of review is
de novo and our scope of review is plenary. See Commonwealth v. Giulian,
141 A.3d 1262, 1266 (Pa. 2016). Our task in conducting statutory construction
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is to ascertain and effectuate the General Assembly’s intent. 1 Pa.C.S.A. §
1921(a). “A statute’s plain language generally provides the best indication of
legislative intent.” Giulian, 141 A.3d at 1267. “In construing the language,
however, and giving it effect, we should not interpret statutory words in
isolation, but must read them with reference to the context in which they
appear.” Id. (citation and internal quotation marks omitted). “Words and
phrases shall be construed according to rules of grammar and according to
their common and approved usage[.]” 1 Pa.C.S.A. § 1903(a). We may
examine dictionary definitions when determining the ordinary meaning of
words and phrases. See Commonwealth v. Gamby, 283 A.3d 298, 307 (Pa.
2022). In ascertaining the intent of the General Assembly, we presume that
it “does not intend a result that is absurd, impossible of execution],] or
unreasonable.” 1 Pa.C.S.A. § 1922(1); see Mercury Trucking, Inc. v. Pa.
Pub. Util. Comm’n, 55 A.3d 1056, 1068 (Pa. 2012).
The statute at issue, Section 5552(c.1), provides:
Genetic identification evidence.--Notwithstanding any
provision of law to the contrary, if evidence of a
misdemeanor sexual offense set forth in subsection (c)(3)
or (3.1) or a felony offense is obtained containing human
deoxyribonucleic acid (DNA) which is subsequently used to
identify an otherwise unidentified individual as the
perpetrator of the offense, the prosecution of the offense
may be commenced within the period of limitations provided
for the offense or one year after the identity of the individual
is determined, whichever is later.
42 Pa.C.S.A. § 5552(c.1).
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Merriam-Webster defines “unidentified” as “not having a known or
established identity.” Unidentified, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/unidentified (accessed
9/20/23). Similarly, Brittanica Dictionary defines “unidentified” as “not known
or identified.” Unidentified, Brittanica Dictionary,
https://www.britannica.com/dictionary/unidentified (accessed 9/20/23).
We read Section 5552(c.1) as applying where DNA evidence has been
used to identify a person otherwise “not having a known or established
identity” as the perpetrator of the offense. Groce’s suggested reading – that
“unidentified” means only persons whose identities are unknown to police – is
absurd and unreasonable. Employing that definition would result in the
extension being inapplicable to many people whom authorities had no basis
to suspect but whose names they nonetheless knew. Cf. Commonwealth v.
Shiffler, 879 A.2d 185, 194(Pa. 2005) (choosing alternative construction of
mandatory sentencing provision to avoid absurd incongruity with graduated
sentencing scheme).
Groce was “an otherwise unidentified individual as the perpetrator of the
offense.” The Commonwealth first obtained DNA evidence identifying the
perpetrator of the victim’s rape in 2017. Although the police knew of Groce in
2002, the record does not show that he was identified at that time as the
perpetrator of the victim’s rape. The victim did not identify Groce as her
attacker when she gave her statement to the police in 2002. In fact, according
to her statement, she did not remember anyone touching her body. See
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Defense Exhibit 1. Although Hadley testified at trial that the victim had
accused Groce in 2002, the record shows that the Commonwealth did not
know this information until Hadley gave her statement in 2018, after the
Commonwealth had filed charges against Groce. See N.T. Trial, at 119
(Hadley agreeing that she did not give a statement to police until January
2018). The record refutes Groce’s claim that he was not an “unidentified
individual as the perpetrator of the offense.”
Next, Groce alleges that his Confrontation Clause rights were violated
when the trial court allowed the Commonwealth to admit the Bode Lab Report
into evidence. He directs our attention to Commonwealth v. Yohe, 79 A.3d
520 (Pa. 2013), stating that forensic reports are testimonial. Groce’s Br. at
28. As such he maintains there is “no question” as to whether the report was
testimonial in nature. Id. at 31. He notes Hawkins was not an employee of
Bode and was not “involved either directly or as a supervisor in the analysis
or preparation of the report.” Id. at 30. Because the Commonwealth did not
have the analyst of the report testify, Groce argues that the court violated his
right to confrontation and this error was not harmless.
A claim that an appellant’s right to confront a witness under the
Confrontation Clause of the United States and Pennsylvania Constitutions is a
question of law. See Commonwealth v. Yohe, 39 A.3d 381, 384 (Pa.Super.
2012). Our standard of review is de novo and our scope of review is plenary.
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The Confrontation Clause of the Sixth Amendment of the United States
Constitution provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him. . . .” U.S.
Const. amend. VI; see also Commonwealth v. Geiger, 944 A.2d 85, 97 n.6
(Pa.Super. 2008) (“Pennsylvania’s Constitution affords the same protection as
its federal counterpart with regard to the Confrontation Clause”). This right to
confrontation “applies to witnesses against the accused – in other words,
those who bear testimony. Testimony, in turn, is typically a solemn declaration
or affirmation made for the purpose of establishing or proving some fact.”
Crawford v. Washington, 541 U.S. 36, 51 (2004) (cleaned up). The
confrontation right extends to forensic or scientific reports that are testimonial
in nature. See Commonwealth v. Brown, 185 A.3d 316, 319 n.3 (Pa. 2018).
Even assuming purely for purposes of argument that there was a
Confrontation Clause violation here, the admission of the 2016 Bode Lab
Report was at most harmless error. Harmless error analysis applies to claims
of Confrontation Clause violations, and we may raise harmless error sua
sponte. See id. at 330; Commonwealth v. Holt, 273 A.3d 514, 540 (Pa.
2022).
An error is harmless where:
(1) it did not prejudice the defendant or the prejudice was de
minimis; or
(2) the erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to the
erroneously admitted evidence; or
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(3) the properly admitted and uncontradicted evidence of guilt
was so overwhelming and the prejudicial effect of the error was
so insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Green, 162 A.3d 509, 519 (Pa.Super. 2017) (en banc)
(emphasis omitted).
Here, we find the third category applies: any confrontation error was
harmless because the “properly admitted and uncontradicted evidence” of
Groce’s guilt was overwhelming and any prejudicial effect of the claimed error
was so insignificant that it could not have contributed to the verdict. The
victim’s rape kit tested positive for sperm and Groce was the only male in the
apartment while she was sleeping. The victim also testified that she did not
remember having sex with anyone when she went to sleep that night. Most
damning, according to the DNA recovered from the buccal swab, which was
not submitted to Bode Lab, excluding an identical twin, Groce was the source
of the DNA recovered from the victim’s rape kit.
Groce’s final claim challenges the court’s acceptance of Dr. Dudley’s
conclusion that Groce qualified as an SVP. He claims that Dr. Dudley’s
assessment was based on “fallible and minimal information that did not
comport with the record.” Groce’s Br. at 43. He challenges Dr. Dudley’s
diagnosis of antisocial personality disorder on the ground that such a diagnosis
was not reflected in Groce’s prior mental health evaluation. Groce also
maintains that Dr. Dudley’s conclusion ignored many of the factors to be
considered during an SVP assessment.
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“We will reverse a trial court’s determination of SVP status only if the
Commonwealth has not presented clear and convincing evidence that each
element of the statute has been satisfied.” Commonwealth v. Fuentes, 991
A.2d 935, 942 (Pa.Super. 2010) (citation omitted). We view the evidence of
record in the light most favorable to the Commonwealth. See id.A sexually violent predator is defined as:
A person who has been convicted of a sexually violent
offense set forth in Section 9795.1 (relating to registration)
and who is determined to be a sexually violent predator
under 9795.4 (relating to assessments) due to a mental
abnormality or personality disorder that makes the person
likely to engage in predatory sexually violent offenses.
Commonwealth v. Leatherby, 116 A.3d 73, 84 (Pa.Super. 2015) (citation
omitted). The evidence must also show that the defendant’s conduct was
predatory. See id. “The salient inquiry to be made by the trial court is the
identification of the impetus behind the commission of the crime and the
extent to which the offender is likely to reoffend.” Commonwealth v.
Morgan, 16 A.3d 1165, 1169 (Pa.Super. 2011) (quoting Fuentes, 991 A.2d
at 943) (emphasis omitted). However, a likelihood of re-offense is not required
for an SVP designation. See id. at 1169, 1173.
While Groce claims that Dr. Dudley ignored many of the factors of
consideration for an SVP assessment, he fails to specify the factors she
allegedly ignored. Our review of the record shows that Dr. Dudley thoroughly
testified regarding the evidence or lack thereof for each factor. See N.T.
Sentencing Hearing, 15-21. She also testified that based on Groce’s antisocial
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personality diagnosis, Groce has a mental abnormality that makes it likely that
he will re-offend. She explained that Groce has engaged in criminal activity
since the age of 12, had multiple arrests and convictions as an adult, and had
a “wonton disregard for the rules of society and the rights of others[.]” Id. at
22. In line with his antisocial personality traits, Dr. Dudley concluded that
Groce “will engage in sexual behaviors with people against their will when
having the opportunity to meet his own needs.” Id. To the extent Groce
maintains that her diagnosis was improper because it allegedly did not
comport with his prior mental health assessment, any such inconsistency goes
to the weight and not the sufficiency of the evidence. It is not so grave an
inconsistency as to render the evidence less than clear and convincing. Viewed
in the light most favorable to the Commonwealth and considering the
Commonwealth’s burden, the evidence supporting the SVP determination was
sufficient.
Judgment of sentence affirmed.
Judge Nichols joins the memorandum.
Judge Olson concurs in the result.
Date: 10/17/2023
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