Com. v. Collins, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AARON L. COLLINS :
:
Appellant : No. 1157 WDA 2020
Appeal from the Order Entered October 5, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000817-2019
BEFORE: SHOGAN, J., DUBOW, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED: JUNE 11, 2021
Appellant, Aaron L. Collins, appeals from the October 5, 2020 order
denying his motion for dismissal pursuant to the double jeopardy clause of the
Fifth Amendment. After review, we affirm.
The trial court set forth the following factual and procedural recitation:
At trial, the alleged victim, [“the Victim”], testified to two
separate occurrences of alleged assault with “one involving
cigarettes and/or a game box and a second involving flowers.”[1]
____________________________________________
1 Trooper Adam Sikorski, a Uniontown detective who responded to the report
of the sexual assault, testified at trial. N.T., 1/7/20, at 50. Trooper Sikorski
interviewed the Victim on September 13, 2018, and memorialized that
interview in an incident report. His testimony provided a cogent recitation of
the facts and allegations as they relate to each incident. After reviewing the
report, Trooper Sikorski provided the following synopsis of the first incident:
[The Victim] and [the Victim’s sister] were at their place in
Connellsville when [Appellant] comes over and, apparently, they
(Footnote Continued Next Page)
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Jury Charge, N.T., 1/8/20, at 7. These two separate occurrences
formed the basis for the Commonwealth charging [Appellant] with
two counts each of [Involuntary Deviate Sexual Intercourse
(“IDSI”)] Forcible Compulsion, Indecent Assault Forcible
Compulsion, and Sexual Assault.[2]
The jury rendered verdicts of acquittal to both counts of
IDSI Forcible Compulsion. As to Indecent Assault Forcible
Compulsion and Sexual Assault, the jury verdicts were split. The
jury acquitted [Appellant] with regards to the first incident
[involving cigarettes and/or a game box] at Counts 3 and 5. The
jury was unable to render a verdict as to the second incident
[involving flowers] at Counts 4 and 6.
____________________________________________
wanted an Xbox controller or something Xbox related, that
[Appellant] had at his residence. So, [the Victim] said he would
go with him to get this game or controller and on the way there
he was offered a pack of cigarettes if [Appellant] could have sex
with him. So, they get there and he obviously declined, and said
he declined too. And they get there, he goes inside, and he found
himself in the bedroom and then [Appellant] pulls down his pants,
puts Vaseline on him and proceeds to have sex with him.
Id. at 61. As to the second incident, Trooper Sikorski testified as follows:
[The Victim] wanted to get flowers for his girlfriend, and
[Appellant] was at the residence again. As you know, they buy
weed from him, so he was over there often, and [Appellant]
offered to get him flowers and they were going to stop and get
him flowers, but they went directly to [Appellant’s] address. And
as you heard, [the Victim] was hesitant to go inside but he was
waiting on [Appellant] to come out. I guess he couldn’t provide
the snips to get the flowers right away, so [Appellant] said it was
okay for him to come inside. [The Victim] comes inside and at
the time he’s forcibly put against the wall and his pants taken
down and taken advantage of again.
Id. at 61-62.
2 18 Pa.C.S. §§ 3123(a)(1), 3126(a)(2), and 3124.1, respectively.
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Order, 10/5/20, at 1-2. The jury handed down the verdict on January 8,
2020. The trial court declared a hung jury as to counts four and six, Indecent
Assault Forcible Compulsion and Sexual Assault, respectively, and dismissed
the other charges. Orders, 1/9/20. Appellant filed a Motion for Dismissal
Pursuant to the Double Jeopardy Clause of the Fifth Amendment on February
25, 2020. The trial court denied the motion on October 5, 2020. Appellant
filed a Notice of Interlocutory Appeal Pursuant to Pa.R.A.P. 313 on October
26, 2020. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Order, 10/27/20. Appellant
timely filed his Rule 1925(b) concise statement on November 6, 2020.
On November 9, 2020, this Court ordered Appellant to show cause as to
why the appeal satisfied the three-prong test set forth in Pa.R.A.P. 313(b) or
why the appeal should not be quashed for failure to raise any other exception
to the final order rule. Order, 11/9/2020 (per curiam). Appellant responded
on November 18, 2020. This Court discharged the rule and allowed the
appeal to proceed, with the caveat that the parties should be prepared to
address the issue should the panel have any concerns. Order, 11/20/20 (per
curiam).
Appellant presents the following questions for our review:
1. Whether Appellant’s right to an interlocutory appeal from
the trial court’s order denying Appellant’s motion for
dismissal pursuant to the Double Jeopardy Clause of the
Fifth Amendment is specifically authorized by Pennsylvania
Rule[] of Appellate Procedure (Pa.R.A.P.) 313[?]
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2. Whether the court erred when the court failed to dismiss
[Appellant’s] charges pursuant to the double jeopardy
clause of the fifth amendment; because the not guilty
verdict in the previous trial in regards to counts one and
two IDSI [F]orcible [C]ompulsion; count three indecent
assault forcible compulsion; and count five sexual assault
precludes his retrial on count four indecent assault forcible
compulsion; and count six sexual assault?
Appellant’s Brief at 3 (full capitalization omitted).
In his first issue, Appellant argues that his interlocutory appeal is
specifically authorized by Pa.R.A.P. 313. Appellant’s Brief at 7. That Rule
and accompanying note state as follows:
(a) General rule.--An appeal may be taken as of right from a
collateral order of a trial court or other government unit.
(b) Definition.--A collateral order is an order separable from
and collateral to the main cause of action where the right
involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.
Note: If an order meets the definition of a collateral
order, it is appealed by filing a notice of appeal or
petition for review.
Pa.R.A.P. 313 is a codification of existing case law with
respect to collateral orders. See Pugar v. Greco, 394
A.2d 542, 545 (Pa. 1978) (quoting Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949)).
Pennsylvania appellate courts have found a number of
classes of orders to fit the collateral order definition.
Collateral order cases are collected and discussed in
Darlington, McKeon, Schuckers and Brown,
Pennsylvania Appellate Practice 2015-2016 Edition,
§§ 313:1-313:201 Examples include an order denying
a petition to permit the payment of death
taxes, Hankin v. Hankin, 487 A.2d 1363 (Pa. Super.
1985), and an order denying a petition for removal of
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an executor, Re: Estate of Georgiana, 458 A.2d 989(Pa. Super. 1983), aff’d, 475 A.2d 744 (Pa. 1984),
and an order denying a pre-trial motion to dismiss on
double jeopardy grounds if the trial court does not also
make a finding that the motion to dismiss is
frivolous. See Commonwealth v. Brady, 508 A.2d
286, 289-91 (Pa. 1986) (allowing an immediate
appeal from denial of double jeopardy claim
under collateral order doctrine where trial court
does not make a finding of
frivolousness); Commonwealth v. Orie, 22 A.3d
1021 (Pa. 2011). An order denying a pre-trial motion
to dismiss on double jeopardy grounds that also finds
that the motion to dismiss is frivolous is not
appealable as of right as a collateral order, but may
be appealable by permission under Pa.R.A.P.
1311(a)(3).
Pa.R.A.P. 313 (emphasis added). Appellant argues that pursuant to the note
accompanying Rule 313 and our Supreme Court’s decision in Commonwealth
v. Brady, 508 A.2d 286 (Pa. 1986), his appeal is proper. We agree.
“Pennsylvania law has traditionally provided a criminal defendant the
right to an immediate appeal from an order denying a pretrial motion to
dismiss on double jeopardy grounds.” Commonwealth v. Gross, 232 A.3d
819, 830 (Pa. Super. 2020) (citing Commonwealth v. Orie, 22 A.3d 1021,
1024 (Pa. 2011)). Indeed, we have repeatedly held that “[p]re-trial orders
denying double jeopardy claims are immediately appealable in the absence of
a written finding of frivolousness by the hearing court.” Commonwealth v.
Feaser, 723 A.2d 197, 199 n.2 (Pa. Super. 1999) (quotation omitted). In the
instant case, the trial court did not make a finding of frivolousness in its order;
thus, we may properly exercise jurisdiction over the appeal. Id. (“Because
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there has been no discrete finding of frivolousness by the trial court, we have
jurisdiction to entertain this appeal.”)
In his second question, Appellant argues that the trial court erred when
it denied his motion to dismiss on double jeopardy grounds. Appellant’s Brief
at 11. Our standard of review is as follows:
An appeal grounded in double jeopardy raises a question of
constitutional law. This [C]ourt’s scope of review in making a
determination on a question of law is, as always, plenary. As with
all questions of law, the appellate standard of review is de novo[.]
To the extent that the factual findings of the trial court impact its
double jeopardy ruling, we apply a more deferential standard of
review to those findings:
Where issues of credibility and weight of the evidence are
concerned, it is not the function of the appellate court to substitute
its judgment based on a cold record for that of the trial court. The
weight to be accorded conflicting evidence is exclusively for the
fact finder, whose findings will not be disturbed on appeal if they
are supported by the record.
Commonwealth v. Miller, 193 A.3d 1187, 1191 (Pa. Super. 2018).
Appellant advances two arguments in support of his appeal. First, he
argues that it is unclear which counts of Indecent Assault Forcible Compulsion
and Sexual Assault relate to which incident. Appellant’s Brief at 15.
Therefore, Appellant posits, it is unclear whether the jury was unable to reach
a verdict on the counts related to the first or second incident. Id. Appellant
then asserts that in order for the Commonwealth to prosecute him for counts
four and six, the Commonwealth would have to retry the entire case, which is
barred by double jeopardy. Id. Second, Appellant argues that his acquittal
on both counts of IDSI Forcible Compulsion collaterally estops the
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Commonwealth from proceeding with the prosecution of Appellant for counts
four, Indecent Assault Forcible Compulsion, and six, Sexual Assault. Id. at
15-16.
Preliminarily, we note that “[a]ny issues not raised in a Pa.R.A.P.
1925(b) statement will be deemed waived.” Commonwealth v. Castillo,
888 A.2d 775, 780 (Pa. 2005) (citing Commonwealth v. Lord, 719 A.2d 306,
309 (Pa. 1998)). Appellant’s concise statement included the following single
issue:
1. Whether the [c]ourt erred when the [c]ourt failed to dismiss
[Appellant’s] charges pursuant to the Double Jeopardy
Clause of Fifth Amendment; because the not guilty verdict
in the previous trial in regards to counts one and two IDSI
Forcible Compulsion; count three Indecent Assault Forcible
Compulsion; and count five Sexual Assault precludes his
retrial on count four Indecent Assault Forcible Compulsion;
and count six Sexual Assault?
Concise Statement of Issues on Appeal, 11/6/20. Appellant did not raise the
precise argument relating to which counts were associated with which incident
of abuse in his Rule 1925(b) statement, and therefore, the trial court did not
address the issue in its Statement in Lieu of Opinion Pursuant to Pa.R.A.P.
1925. Rather, therein, the trial court relied on its October 2020 order, as it
reviewed Appellant’s Rule 1925(b) Statement and found that the order
“previously addressed all issues.” Statement in Lieu of Opinion Pursuant to
Pa.R.A.P. 1925, 11/9/20.
It is well established that:
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[w]hen a court has to guess what issues an appellant is appealing,
that is not enough for meaningful review. When an appellant fails
adequately to identify in a concise manner the issues sought to be
pursued on appeal, the trial court is impeded in its preparation of
a legal analysis which is pertinent to those issues.
In other words, a Concise Statement which is too vague to allow
the court to identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all. While Lord and its
progeny have generally involved situations where an appellant
completely fails to mention an issue in his Concise Statement, for
the reasons set forth above we conclude that Lord should also
apply to Concise Statements which are so vague as to prevent the
court from identifying the issue to be raised on appeal.
Commonwealth v. Dowling, 778 A.2d 683, 686–687 (Pa. Super. 2001).
Failure to include an issue in a Rule 1925(b) statement generally waives that
issue for purposes of appellate review. Commonwealth v. Pantalion, 957
A.2d 1267, 1270 n.6 (Pa. Super. 2008). A review of Appellant’s concise
statement makes clear that he did not raise this issue relating to which counts
correspond to which incident, and we find the argument waived for that
reason.
Even if we did not find waiver, Appellant is not due relief on these
grounds. First, we note that the charging documents in this case state, “When
there is more than one offense, each offense should be numbered
chronologically.” Police Criminal Complaint, 1/14/19, at 3. In the instant
case, there were two alleged incidents of abuse. Despite his intellectual
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difficulties,3 the Victim was unwavering that the incident involving Appellant
promising cigarettes and/or a game box occurred before the second incident,
which involved Appellant allegedly luring the Victim to his home by promising
to help the Victim procure flowers for his girlfriend. N.T., 1/7/20, at 18, 19,
31, 34, 36. This testimony was corroborated by the Victim’s sister and Trooper
Sikorski. Id. at 47-48, 61. Thus, it logically flows that the first counts of IDSI
Forcible Compulsion, Indecent Assault Forcible Compulsion, and Sexual
Assault–counts one, three, and five–refer to the first incident, and the second
counts of IDSI Forcible Compulsion, Indecent Assault Forcible Compulsion and
Sexual Assault–counts two, four, and six–refer to the second incident.
Moreover, in his Motion for Dismissal Pursuant to the Double Jeopardy Clause
of the Fifth Amendment, Appellant stated:
These charges resulted from what was alleged to have been two
separate incidents between [Appellant] and the Victim;
specifically, onset of the three (3) offenses listed in Paragraph 1
(Counts 1, 3, and 5) were said to have occurred on one date, with
the remaining set of three (3) offenses listed in Paragraph
1 (Counts 2, 4, and 6) were said to have occurred
subsequent to the first date.
Motion for Dismissal Pursuant to the Double Jeopardy Clause of the Fifth
Amendments, 2/25/20, at 1, ¶ 2 (emphasis added). Finally, to the extent
____________________________________________
3 The scope of the Victim’s intellectual disability is not clear from the certified
record, although he testified that he had to take special education classes in
high school and had trouble reading. N.T., 1/7/20, at 12. He further testified
that although he is twenty-one years of age, and lives alone, he is unable to
“keep-up” after himself, and his sister, who lives next door, regularly “comes
over to make sure I’m okay because I have epilepsy.” Id. at 33.
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Appellant argues that the entire case would have to be retried, we note that
in its brief, the Commonwealth maintains that at retrial, it would present
evidence that pertained only to counts four and six, relating to the flower
incident. Commonwealth’s Brief at 6. The Commonwealth correctly states:
Both incidents are severable from each other and do not share
any common facts that would be dependent on each other.
Therefore, the second incident would be able to be presented to a
jury independently and without mention of the first incident
involving the gaming system; the incident … which a jury has
found [Appellant] not guilty of committing.
Id. Thus, even if we were to reach the merits of Appellant’s claim, we would
find he is due no relief on those grounds.
Appellant next argues that the trial court erred because a jury acquitted
Appellant of both charges of IDSI Forcible Compulsion, and the doctrine of
collateral estoppel prevents the Commonwealth from prosecuting Appellant on
count four, Indecent Assault Forcible Compulsion, or count six, Sexual Assault.
Appellant’s Brief at 15-16.
Preliminarily, we note that “retrial after a hung jury normally does not
violate the double jeopardy clause.” Commonwealth v. Brockington-
Winchester, 205 A.3d 1279, 1283 (Pa. Super. 2019). Indeed:
The doctrine of collateral estoppel is a part of the Fifth
Amendment’s guarantee against double jeopardy, which was
made applicable to the states through the Fourteenth
Amendment. The phrase “collateral estoppel,” also known as
“issue preclusion,” simply means that when an issue of law,
evidentiary fact, or ultimate fact has been determined by a valid
and final judgment, that issue cannot be litigated again between
the same parties in any future lawsuit. Collateral estoppel does
not automatically bar a subsequent prosecution, but rather, it bars
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redetermination in a second prosecution of those issues
necessarily determined between the parties in a first proceeding
that has become a final judgment.
Traditionally, Pennsylvania courts have applied the
collateral estoppel doctrine only if the following threshold
requirements are met: 1) the issues in the two actions are
sufficiently similar and sufficiently material to justify invoking the
doctrine; 2) the issue was actually litigated in the first action; and
3) a final judgment on the specific issue in question was issued in
the first action. An issue is actually litigated when it is properly
raised, submitted for determination, and then actually
determined. For collateral estoppel purposes, a final judgment
includes any prior adjudication of an issue in another action that
is sufficiently firm to be accorded conclusive effect.
Id. at 1283-1284. Our Supreme Court has set forth the following analysis on
collateral estoppel in the criminal context:
In the criminal law arena, the difficulty in applying collateral
estoppel typically lies in deciding whether or to what extent an
acquittal can be interpreted in a manner that affects future
proceedings, that is, whether it reflects a definitive finding
respecting a material element of the prosecution’s subsequent
case. We ask whether the fact-finder, in rendering an acquittal in
a prior proceeding, could have grounded its verdict upon an issue
other than that which the defendant seeks to foreclose from
consideration. If the verdict must have been based on resolution
of an issue in a manner favorable to the defendant with respect to
a remaining charge, the Commonwealth is precluded from
attempting to relitigate that issue in an effort to resolve it in a
contrary way. See Commonwealth v. Zimmerman, ... 445 A.2d
92, 96 ([Pa.] 1981) (acquittal on simple assault precluded retrial
on hung murder charges because simple assault was a constituent
element of all grades of homicide in the case); Commonwealth
v. Wallace, ... 602 A.2d 345, 349–50 ([Pa. Super.] 1992)
(Commonwealth’s concession that the jury’s acquittal meant
appellant did not possess a gun collaterally estopped
Commonwealth from any subsequent prosecution based on
appellant’s possession of a gun); Commonwealth v. Klinger, ...
398 A.2d 1036, 1041 ([Pa. Super.] 1979) (appellant’s acquittal on
murder precluded the Commonwealth from bringing a subsequent
perjury prosecution based on appellant’s trial testimony that he
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did not kill the victim) .... Conversely, where an acquittal cannot
be definitively interpreted as resolving an issue in favor of the
defendant with respect to a remaining charge, the Commonwealth
is free to commence with trial as it wishes. See [Commonwealth
v.] Buffington, 574 Pa. 29, 828 A.2d [1024,] 1033 [(2003)]
(acquittal of rape and IDSI did not establish that Commonwealth
failed to prove an essential element of sexual assault);
[Commonwealth v.] Smith, 518 Pa. 15, 540 A.2d [246,] 253–
54 [(1988)] (acquittal of gun possession charge did not
collaterally estop Commonwealth from proceeding on charges of
murder and possession of an instrument of crime, as acquittal
could have been based on any number of reasons);
Commonwealth v. Harris, ... 582 A.2d 1319, 1323 ([Pa. Super.]
1990) (robbery acquittal did not preclude retrial on hung charge
of aggravated assault) ....
Commonwealth v. States, 938 A.2d 1016, 1021-1022 (Pa. 2007). Finally,
“the party seeking to invoke preclusion principles … bears the burden of
establishing that the issue he seeks to foreclose from consideration in a
subsequent proceeding was necessarily resolved in his favor in the prior
proceeding.” Buffington, 828 A.2d at 1032-1033.
The crimes for which Appellant was charged are defined as follows:
§ 3123 Indecent Deviate Sexual Intercourse Forcible Compulsion is
defined as:
(a) Offense defined.--A person commits a felony of the first
degree when the person engages in deviate sexual
intercourse with a complainant:
(1) by forcible compulsion;
18 Pa.C.S. § 3123(a)(1). § 3126 Indecent Assault Forcible Compulsion
is defined as:
(a) Offense defined.--A person is guilty of indecent assault if
the person has indecent contact with the complainant,
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causes the complainant to have indecent contact with the
person or intentionally causes the complainant to come into
contact with seminal fluid, urine or feces for the purpose of
arousing sexual desire in the person or the complainant and:
***
(2) the person does so by forcible compulsion;
18 Pa.C.S. § 3126(a)(2). § 3124.1 Sexual Assault is defined as follows:
Except as provided in section 3121 (relating to rape) or 3123
(relating to involuntary deviate sexual intercourse), a person
commits a felony of the second degree when that person engages
in sexual intercourse or deviate sexual intercourse with a
complainant without the complainant’s consent.
18 Pa.C.S. § 3124.1.
Finally, we note that “forcible compulsion” is defined as “Compulsion by
use of physical, intellectual, moral, emotional or psychological force, either
express or implied.” 18 Pa.C.S. § 3101. “Sexual intercourse” is defined as
“[i]n addition to its ordinary meaning, includ[ing] intercourse per os or per
anus, with some penetration however slight; emission is not required.” Id.
In support of this argument, Appellant argues that the Victim testified
that Appellant “touched the top of my penis and put his penis in my butt – the
second time and the first time.” Appellant’s Brief at 16 (citing N.T., 1/7/20,
at 20, 35). Appellant asserts that the touching and penetration of the Victim
constitute a single act, which the jury found did not occur. Appellant’s Brief
at 16. Specifically, he posits, “The jury by finding [Appellant] not guilty of
both charges of [IDSI Forcible Compulsion] obviously did not believe [the
Victim’s] testimony and found that this sexual assault did not occur.” Id.
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Appellant avers that if the Commonwealth is given another opportunity to
proceed with his prosecution, the Commonwealth will be given another
opportunity to prove the sexual acts occurred, which is prohibited by the
doctrine of collateral estoppel. Id.
We disagree. First, although the Victim testified as Appellant sets forth
in his brief, he also testified that the first incident lasted approximately one
hour and that the second lasted the “same time as what the first did.” N.T.,
1/7/20, at 17, 19. During trial, the Victim stated that he did not have oral sex
with Appellant, but he also testified he told the investigating officer that
Appellant performed oral sex on him. Id. at 35. Further, during trial Trooper
Sikorksi testified that the Victim told him that he and Appellant engaged in
oral sex following the second incident of anal sex. Id. at 60. He explained
that during the second incident the Victim was at Appellant’s residence from
early afternoon until 1:00 a.m. the following morning. Id. The Victim’s sister
testified that Appellant told her that Appellant “made [the Victim] come ten
times.” Id at 45. Thus, Appellant’s contention that there was a single incident
of sexual contact in both cases is belied by the record.
Second, Appellant was found not guilty of IDSI Forcible Compulsion. A
conviction for IDSI Forcible Compulsion requires that an individual engage in
deviate sexual intercourse–which specifically requires penetration–by forcible
compulsion. 18 Pa.C.S. § 3123(a)(1). Indecent Assault Forcible Compulsion,
however, requires only indecent contact, not sexual intercourse. 18 Pa.C.S.
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§ 3126(a)(2). Thus, we find that that the jury could have found Appellant did
not commit IDSI Forcible Compulsion because the Commonwealth failed to
prove that either penetration occurred or that Appellant used forcible
compulsion to do so.
Indeed, a review of the trial transcript reveals that Appellant’s use of
force and the Victim’s consent, or lack thereof, was an issue in this case.
Counsel for Appellant, on cross-examination, specifically asked the Victim if
Appellant threatened him or held him down during the sexual encounters.
N.T., 1/7/19, at 28. In response, the Victim testified that Appellant told him
not to tell anyone what happened, that Appellant told the Victim’s sister that
he would burn her house down, and that Appellant held him down during both
encounters. Id. Appellant’s counsel also questioned the Victim’s sister about
whether Appellant made any statements to her regarding the sexual contact
between him and the Victim, and whether that contact was consensual. The
Victim’s sister responded that Appellant told her, as discussed above, that he
made the Victim come ten times and that based on Appellant’s description, “it
sounded like they both–like it was consensual.” Id. at 48. Counsel further
questioned the Victim’s sister about whether Appellant “forcibly pulled” the
Victim out of his sister’s home prior to either incident of sexual contact. Id.
As such, we find that the fact-finder, in rendering an acquittal in the
prior proceeding, could have grounded its verdict upon the fact that the
Commonwealth failed to prove that penetration occurred or because the
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Commonwealth failed to prove Appellant used forcible compulsion when he
engaged in sexual intercourse with the Victim. Because, as stated above,
penetration is an element of IDSI Forcible Compulsion and not an element
Indecent Assault Forcible Compulsion, the acquittal on the IDSI Forcible
Compulsion charge does not foreclose consideration of whether Appellant had
indecent contact with the Victim. Buffington, 828 A.2d at 1033. Thus, we
find the trial court did not err when it denied Appellant’s motion to dismiss as
to count four, Indecent Assault Forcible Compulsion.
As to count six, Sexual Assault, codified at 18 Pa.C.S. § 3124.1, we note
that the elements of Sexual Assault are sexual intercourse without the victim’s
consent. As discussed above, sexual intercourse requires penetration.4
However, unlike IDSI Forcible Compulsion, the crime of Sexual Assault does
not require the use of force, only a lack of consent. Indeed, “in order to prove
the forcible compulsion component, the Commonwealth must establish,
beyond a reasonable doubt, that the defendant used either physical force, a
threat of physical force, or psychological coercion, since the mere showing of
____________________________________________
4 We note that in its order, the trial court mistakenly found that neither
Indecent Assault Forcible Compulsion nor Sexual Assault require the element
of penetration. Order, 10/5/20, at 3. This is incorrect. The crime of Sexual
Assault requires sexual intercourse or deviate sexual intercourse, both of
which are defined as requiring intercourse “with some penetration however
slight.” 18 Pa.C.S. §§ 3124.1, 3101. “We may affirm the trial court’s
determination on any grounds, even where those grounds were not suggested
to or known by the trial court.” Commonwealth v. Gatlos, 76 A.3d 44, 62
n.14 (Pa. Super. 2013).
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a lack of consent does support a conviction for rape … by forcible compulsion.”
Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010). We have
repeatedly held that “‘forcible compulsion” means ‘something more’ than mere
lack of consent.” Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa.
Super. 2015) (quoting Commonwealth v. Smolko, 666 A.2d 672, 676 (Pa.
1995)). Thus, the jury finding that Appellant did not commit IDSI Forcible
Compulsion does not mean that it found Appellant did not have sexual
intercourse with the Victim without the Victim’s consent. Buffington, 828
A.2d 1033. As discussed supra, “We ask whether the fact-finder, in rendering
an acquittal in the prior proceeding ‘could have grounded its verdict upon an
issue other than that which the defendant seeks to foreclose from
consideration.’” States, 938 A.2d at 1021. Further, “an acquittal cannot be
interpreted as a specific finding in relation to some of the evidence.”
Commonwealth v. Miller, 657 A.2d 946, 948 (Pa. Super. 1995). The jury
may have found that Appellant visited non-consensual sexual intercourse on
the Victim, without forcible compulsion. Thus, we find the Commonwealth is
not collaterally estopped from retrying Appellant on count six, Sexual Assault.
Based upon our standard of review and the record before us, we discern
no abuse of discretion or trial court error in denying Appellant relief on his
double jeopardy claim.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/11/2021
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