Com. v. Pena, P. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PETER STEVEN PENA :
:
Appellant : No. 9 MDA 2024
Appeal from the Judgment of Sentence Entered March 17, 2023
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002813-2021
BEFORE: PANELLA, P.J.E., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.E.: FILED: NOVEMBER 4, 2024
Peter Steven Pena appeals from the judgment of sentence entered on
March 17, 2023, for his convictions of sexual assault, simple assault, false
imprisonment, and intimidation of witness or victim.1 Pena asserts the
evidence for the sexual assault conviction was insufficient or against the
weight of the evidence. We affirm.
The trial court aptly set forth the factual history:
Testimony of Victim
On the evening of December 19, 2020, Jeshae Shepherd
Anderson (hereinafter, “Victim”) was at home with her and
[Pena’s] seven-month-old child. [Pena] and Victim had been in a
relationship for about two to three years, and Victim was six weeks
pregnant with their second child at the time of the incident. Two
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3124.1, 2701(a)(1), 2903(a), and 4952(a)(1), respectively.
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days prior, on December 17, 2020, [Pena] had taken her
automobile, which is registered in Victim’s mother’s name, and a
police report was filed for a stolen car. On December 19, 2020,
[Pena] arrived at Victim’s apartment to return the car and they
were relaxing for about an hour before the incident occurred.
While at the apartment, [Pena] began looking through
Victim’s phone. [Pena] became enraged by messages he viewed
between Victim and her mother and Victim and another man.
When [Pena] began yelling at Victim, she laughed at him, and
[Pena] slapped Victim across the face. Victim ran to the bathroom,
but [Pena] followed and locked himself in there with her. While in
the bathroom, [Pena] put Victim in a headlock, and choked her
with his hands while Victim cried out.
Shortly thereafter, [Pena] proceeded to open the bathroom
door, and Victim went out to the hallway and cried over the
incident that transpired. At this point, [Pena] dragged Victim into
their daughter’s bedroom, and stated that he wanted to have sex.
When Victim told [Pena] “no” and “I don’t want to” multiple times,
[Pena] began to hit her on her back, stomach, and sides with a
closed fist. Despite Victim’s attempts to fight him back, [Pena]
demanded [she] get on the floor on her hands and knees, ripped
off her underwear, and performed sexual intercourse. Victim
initially attempted to fight off [Pena] but gave up because she was
scared for herself and child. After the encounter ended, [Pena]
asked Victim if she was happy, and she demanded he leave the
apartment. Approximately five minutes after the assault, Victim
called her parents and then the police to report [Pena’s] actions.
Testimony of Matthew Kieselowsky
During the trial, the Commonwealth called the responding
officer, Matthew Kieselowsky (hereinafter “Officer Kieselowsky”)
to testify to his knowledge of the events that transpired. On the
evening of December 19, 202[0], Officer Kieselowsky was
dispatched to Victim’s home for a report of a physical and sexual
assault. When he arrived on scene, Victim was present with her
father, and relayed to Officer Kieselowsky that her car was stolen,
and she was both physically and sexually assaulted. Victim
expressed that she only wanted to file a PFA against [Pena] and
not press charges. However, after calling his supervisor, the
officer was advised to file charges against [Pena].
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While still at Victim’s apartment, Officer Kieselowsky found
the ripped black underwear in Victim’s daughter’s bedroom and
collected it as evidence. After submitting her written statement,
Victim agreed to have the officer take her to Harrisburg Hospital
to have a sexual assault kit performed and check on her unborn
child.
Testimony of Nicole Baselj
The jury also heard the testimony of Commonwealth’s
witness, nurse Nicole Baselj (hereinafter, “Baselj”). Baselj works
at UPMC Pinnacle and specializes as a Forensic Nurse, commonly
known as a SAFE or SANE nurse, meaning she deals with patients
who have reported a crime, such as sexual abuse. On the night of
the incident, Baselj was the SAFE nurse on duty, and was called
to further evaluate Victim’s sexual assault and physical assault.
Victim consented to receive a SAFE examination. While there were
no visual findings of strangulation, there was tenderness on both
sides of Victim’s neck. In addition, while Baselj indicated there was
no visible bruising, she concluded that was not indicative of lack
of assault. Rather, there are several reasons why one might not
bruise, such as location and skin tone. The Commonwealth
showed a series of photographs, one revealing a four-centimeter
red scratch down Victim’s back.
As for the sexual assault examination, Baselj testified that
Victim reported nonconsensual vaginal intercourse. While Baselj
reported there was no injury to the vaginal canal, such as tears,
that is normal due to the female anatomy and is not indicative as
to whether there was an assault. In fact, Baselj stated that even
when there are tears and injury, it does not necessarily lead a
SAFE nurse to believe there was a definitive assault.
Testimony of Christopher M. Seiler
The final witness called by the Commonwealth was
Detective Christopher M. Seiler (hereinafter “Detective Seiler”) of
the Swatara Township Police Department. Detective Seiler works
in the Special Victim’s Unit and deals primarily with child abuse,
sexual assault, and other abuse. Detective Seiler testified that he
had reached out to Victim to get a statement. However, on the
day of their appointment, Victim did not show up, claiming she
forgot. Additionally, Victim advised that she did not want to pursue
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the sexual component of the incident, so Detective Seiler closed
out the sexual component of the investigation.
After this conversation, Detective Seiler was contacted by
District Attorney Adams, who advised that after a preliminary
hearing, Victim was now interested in pursuing the sexual assault
component of the investigation. The District Attorney asked
Detective Seiler to interview Victim and re-evaluate the sexual
assault component. When Detective Seiler briefly met with Victim
on March 16, 2021, he asserts that she provided no additional
information. Before the meeting, Victim provided a written
statement and body cam[era] footage from the night of the
incident, so no other statement was needed. Unfortunately, the
body camera footage was unintentionally deleted, so Detective
Seiler never viewed it.
While Detective Seiler was on the witness stand, the
Commonwealth played phone calls that [Pena] made to the Victim
while he was in the Dauphin County Prison. It was asserted that
there were hundreds of calls placed by [Pena] to Victim. These
phone calls established that [Pena] would constantly call Victim,
often begging Victim to drop the charges and asking whether there
was a rape kit performed.
Trial Court Opinion, 4/5/24, at 2-5 (record citations omitted).
Pena proceeded to a jury trial December 12, through December 13,
2022. On March 17, 2023, the trial court sentenced Pena to an aggregate
sentence of 5-15 years’ incarceration followed by 3 years’ probation. Pena
filed a timely appeal and complied with the trial court’s order to file a Rule
1925(b) statement. See Pa.R.A.P. 1925(b).
Pena raises two claims for our review:
Whether the trial court erred in accepting the jury’s verdict where
the Commonwealth failed to present sufficient evidence [Pena] did
engage in sexual intercourse without the complainant’s consent[?]
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Whether the trial court erred in accepting the jury’s verdict which
was contrary to the weight of the evidence presented which was
not believed by the jury[?]
Appellant’s Brief, at 4.
Before we address the merits of Pena’s first claim, we must address the
Commonwealth’s contention that this claim is waived for Pena’s failure to raise
it in his Rule 1925(b) statement. See Appellee’s Brief, at 7. It is axiomatic
that “any issue not raised in a Rule 1925(b) statement will be deemed waived
for appellate review.” Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa.
Super. 2020) (citation omitted). In his Rule 1925(b) statement, Pena argued:
The trial court abused its discretion, erred, and infringed upon Mr.
Pena’s constitutional rights including his right to Due Process of
Law under the Constitution of the United States and under the
Constitution of Pennsylvania by accepting the jury verdict where
the Commonwealth failed to present sufficient evidence to prove
the charge of Intimidation of a Victim/Witness, specifically the
Commonwealth failed to introduce any evidence that the
defendant intimidated the victim.
The trial court abused its discretion, erred, and infringed on Mr.
[Pena’s] constitutional rights including [his] right to Due Process
of Law under the Constitution of Pennsylvania by accepting the
jury verdict where the weight of the evidence established a
consensual sexual act and not a sexual assault.
Rule 1925(b) Statement, 3/14/24, at 1-2 (unpaginated).
Pena’s Rule 1925(b) statement clearly raises a sufficiency challenge, but
only as to his conviction for intimidation of witness or victim. Pena did not
raise a sufficiency challenge to his conviction for sexual assault. Pena asserted
his conviction for sexual assault was against the weight of the evidence in his
Rule 1925(b) statement, which is a distinct claim. See Commonwealth v.
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Arias, 286 A.3d 341, 349 (Pa. Super. 2022) (noting the distinctions between
weight and sufficiency of the evidence challenges). Pena’s first claim is
therefore waived for failure to raise it in his Rule 1925(b) statement.
Even if we were not to find the claim waived, Pena would not be entitled
to relief. Pena asserts the evidence regarding sexual assault was insufficient
because the jury must have disbelieved Victim as the jury acquitted him of
rape. See Appellant’s Brief, at 11-12. We disagree.
Our scope and standard of review regarding sufficiency challenges is
well-established:
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. Johnson, 180 A.3d 474, 478 (Pa. Super. 2018) (citation
and brackets omitted).
Regarding inconsistent verdicts, we have consistently held:
Inconsistent verdicts, while often perplexing, are not
considered mistakes and do not constitute a basis for reversal.
Rather, the rational for allowing inconsistent verdicts is that it is
the jury’s sole prerogative to decide on which counts to convict in
order to provide a defendant with sufficient punishment.
Moreover, it is well-settled that an acquittal cannot be interpreted
as a specific finding in relation to some of the evidence.
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Commonwealth v. Barkman, 295 A.3d 721, 738 (Pa. Super. 2023)
(citations, quotation marks, and brackets omitted). We therefore review
whether there was sufficient evidence for Pena’s conviction for sexual assault,
without consideration of the jury’s acquittal of rape.
Sexual assault occurs when a defendant “engages in sexual intercourse
or deviate sexual intercourse with a complainant without the complainant’s
consent.” 18 Pa.C.S.A. § 3124.1. “[T]he uncorroborated testimony of the
complaining witness is sufficient to convict a defendant of sexual offenses.”
Commonwealth v. Cramer, 195 A.3d 594, 602 (Pa. Super. 2018) (citation
omitted).
The testimony of Victim established Pena forced himself on her. Victim
explained she was crying after Pena put her in a headlock. Pena decided he
wanted to have sex, so he dragged Victim into their daughter’s bedroom, and
when Victim resisted, he punched her in the back, stomach, and sides to get
her to comply. Pena then ripped off her underwear, later preserved by police
as evidence, and penetrated her. The evidence was clearly sufficient for the
jury to find Pena guilty of sexual assault. Therefore, even if not waived, Pena’s
first issue would not entitle him to relief.
Next, Pena claims the conviction for sexual assault is against the weight
of the evidence because the jury must not have believed Victim as Pena was
acquitted of rape. See Appellant’s Brief, at 14-15.
Our scope and standard of review is well-established:
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A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the role
of the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
It has often been stated that a new trial should be awarded when
the jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying
question of whether the verdict is against the weight
of the evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the evidence.
One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interests of justice.
Commonwealth v. Dewald, 317 A.3d 1020, 1037 (Pa. Super. 2024)
(citation omitted).2
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2 We note Pena does not argue the trial court abused its discretion in denying
his weight of the evidence claim. See Appellant’s Brief, at 12-15. Pena is
arguing to this Court the verdict is against the weight of the evidence. See id.This is the incorrect standard of review, and we remind counsel that a weight
of the evidence claim is presented to the sound discretion of the trial court,
and we only review a weight claim for an abuse of that discretion.
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The trial court aptly found the verdict was not against the weight of the
evidence:
In the instant matter, the jury was required to weigh the
testimony of the Victim, Officer Kieselowsky, Baselj, and Detective
Seiler, all which strongly inferred that [Pena] sexually assaulted
Victim. The testimony of the Victim showed that [Pena] dragged
Victim into their daughter’s bedroom, demanded her onto her
hands and knees, and despite the Victim telling [Pena] “no” and
“I don’t want to” multiple times, [Pena] proceeded with the
assault. Moreover, during Baselj’s SAFE exam, she indicated that
there were observable physical injuries, such as tenderness to the
neck due to strangulation and being punched in the face, as well
as a 4-centimeter scratch down her back.
The jury, in finding [Pena] guilty of Sexual Assault, evidently
found the objective testimony of the Commonwealth’s witnesses
to be credible. This Court has no reason to doubt the jury’s
credibility determination. Therefore, this Court certainly did not
lose its breath or almost fall from the bench when the jury found
[Pena] guilty of Sexual Assault, nor was it remotely shocking to
the judicial conscience. Consequently, [Pena’s] weight of the
evidence claim must fail.
Trial Court Opinion, 4/5/24, at 8-9.
Pena essentially asks us to reassess the credibility of Victim. “We are
precluded from reweighing the evidence and substituting our judgment for
that of the factfinder.” Interest of D.J.K., 303 A.3d 499, 507 (Pa. Super.
2023) (citation omitted). The trial court did not abuse its discretion in finding
the verdict did not shock its conscience. The evidence established Pena
engaged in sexual intercourse without Victim’s consent. The minor
discrepancies Pena now points out were for the jury to evaluate. See
Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006) (“The
weight of the evidence is exclusively for the finder of fact who is free to believe
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all, part, or none of the evidence and to determine the credibility of the
witnesses.”) (citation omitted). Pena’s final issue does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/04/2024
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