Com. v. Khokhar, I.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IJAZ KHOKHAR
Appellant No. 112 WDA 2016
Appeal from the Judgment of Sentence December 21, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005915-2015
BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED APRIL 7, 2017
Ijaz Khokhar appeals from the December 21, 2015 judgment of
sentence entered in the Allegheny County Court of Common Pleas following
his convictions for involuntary deviate sexual intercourse (“IDSI”) – forcible
compulsion, and sexual assault.1 We affirm.
The trial court summarized the factual history of this matter as
follows:
At the time of trial [Victim] was a twenty-year old
nursing student at Duquesne University. In the late hours
of March 21, 2015 and the early morning hours of March
22, 2015, [Victim] was drinking with her friends in
Pittsburgh's South Side at an establishment named Charlie
Murdoch’s. [Victim] testified that she and her friends took
a shuttle bus from campus to the South Side where she
used a fake ID to obtain alcohol. [Victim] testified that
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1
18 Pa.C.S. §§ 3123(a)(1) and 3124.1, respectively.
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when she left her seat to use the restroom she left her
cellphone on a bar stool and that she ultimately left
without her phone at 1:30 a.m. [Victim] stated that she
left to go to a friend’s house when she realized (to her
dismay) that she had left her phone behind. Left without a
way to contact her friends [Victim] returned to Charlie
Murdoch’s at about 2:30 a.m. in an attempt to find her
phone, but was denied entry. Upset, intoxicated, and
crying – [Victim] began walking back towards Duquesne
when she was approached by two individuals from the
Hookah Lounge who comforted her and invited her inside.
[Victim] testified that a man offered to give her a ride back
to her dorm and she identified [Khokhar] as that
individual. [Victim] accompanied [Khokhar] to his vehicle
which she identified as an “old, red, four-door Honda.”
[Victim] identified on a map routes and locations of the
incident.
Shortly after leaving the Hookah Lounge, [Khokhar]
locked the doors of the vehicle and sped up. [Khokhar]
unbuckled his pants, exposed his penis, and told [Victim]
“you are going to have to do something for me.”
[Khokhar] had [Victim] give directions back to her dorm as
she performed oral sex on him. Upon arriving at the
dormitory [Khokhar] unlocked the door and [Victim] got
out, and by the time she had turned around he had driven
away. [Victim] stated that she was scared and thought
“what would happen if I said no because he was driving
away from where I lived, so I was scared.” Victim
explained that she accepted the ride because she was
scared to walk back to campus as she would have had to
go through a tunnel where “homeless people” sleep. She
was unable to get a ride without her cell phone. [Victim]
ultimately reported the crime eighteen days later. [Victim]
stated that she reported on that occasion when, after
jogging with a friend, she saw [Khokhar] opening the
Hookah Lounge[, and] saw it as a “sign” that she should
do something.
The jury heard testimony from Nicholas Kiener a friend
and fellow student of [Victim]. Mr. Kiener testified that on
the night of the crime [Victim] visited the dorm room of
himself and his roommate Scott Zuefle. She revealed to
them that she had been “sexually harassed by a male” and
had been forced into performing “oral sex.” He and his
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roommate Mr. Zuefle attempted to calm [Victim], and
encouraged her to report the crime to the police. Mr.
Zuefle also testified to the veracity of the encounter
between his roommate and [Victim].
Officer Georgette Scafede, a thirty-five-year veteran of
the City of Pittsburgh Police Force was the desk officer who
took down [Victim’s] initial complaint. Officer Scafede
testified that [Victim] was crying and shaking and had to
stop the interview several times. Detective [Jeffery]
Abraham of the Sex Assault Crime and Crisis Office for the
City of Pittsburgh Bureau of Police was then assigned to
the case. Detective Abraham stated that [his partner]
Detective Brust (who did not have any knowledge of the
case) presented the victim with a photo array containing
Mr. Khokhar's photo. [Victim] identified Mr. Khokhar in
the array as the man who assaulted her. On April 21,
2015 Detective Abraham interviewed [Khokhar] at his
South Side Hookah Lounge. After informing [Khokhar] of
his rights concerning the interview Mr. Khokhar waived his
rights and agreed to speak with Detective Abraham. When
asked about the allegations he stated he did not remember
[Victim] and that he never received oral sex from anyone
but his girlfriend. Mr. Khokhar told Detective Abraham
that sometimes “females are jealous of his lounge and try
to catch him the wrong way.”
After further questioning Mr. Khokhar admitted that he
did remember [Victim] and she had indeed given him oral
sex in his vehicle. Mr. Khokhar stated that [Victim] gave
him oral sex out of gratitude for the ride. Mr. Khokhar told
Detective Abraham he believed [Victim] was upset that
evening about her boyfriend. Detective Abraham testified
that after his interview with Mr. Khokhar, he asked
[Victim] to identify for him the route taken by herself and
Mr. Khokhar the evening of the assault. Detective Abraham
drew the route he took with [Victim] on a map for the jury.
[Khokhar’s] younger brother, Noel Khokhar, testified he
was the DJ at the Hookah Lounge on the evening of the
assault. Noel Khokhar testified that [Khokhar] was in the
next room kissing “the young lady” and that the situation
seemed consensual. Noel did not recall seeing [Khokhar]
leave with [Victim] that evening. When questioned by the
prosecution as to what the “young lady” looked like the
only descriptor Noel could offer was that she was “white.”
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He could not recall what she was wearing, if anyone else
was in the room with them, or why he walked into the side
room where he saw his brother and the “young lady.”
Noel testified that he helps his brother at the Hookah
Lounge but does not receive any compensation for his
work and that he and [Khokhar] live together. When
asked why he had not stepped forward[, and] informed
anyone he saw his brother kissing [Victim], his response
was “I never thought of [it].”
[Khokhar] testified that he opened his Hookah Lounge
in December of 2014. He further testified that he had a
video surveillance system in place in March of 2015 but the
footage gets overwritten every two weeks. Mr. Khokhar
claimed that [Victim] was walking down the street very
upset and he invited her inside and gave her a bottle of
water. Mr. Khokhar testified that [Victim] was clearly
intoxicated, as she smelled of alcohol. Mr. Khokhar
claimed that [Victim] claimed she was upset over the loss
of her cellphone and “something” with her boyfriend, that
she then cheered up and they began “making out.” T.T.
p.p. 226. Mr. Khokhar then testified he informed his
brother that he was going to give [Victim] a ride and would
return. Mr. Khokhar denied that he ever locked the doors
of his vehicle while [Victim] was in the car. He then drew
the route he used to take [Victim] home from the Hookah
Lounge. Mr. Khokhar then testified that “on 10th Street,
before Muriel Street and 10th Street, I took my penis out,
whichever, and we was talking and was kissing and she
started playing with it and she started giving oral sex.”
Mr. Khokhar stated than when Detective Abraham
interviewed him, the night of the assault was, “blurry, like
I didn't know like what happened that day clearly.” Mr.
Khokhar stated that only after a month in jail did he
remember that he “made out” with [Victim] that evening –
a fact he did not “remember” at the time of his interview
with Detective Abraham. [Khokhar] testified that [Victim]
was so intoxicated that she had trouble walking straight.
He testified that the victim was the one that grabbing him
and making out with him. On rebuttal, [Victim] testified
that she was not so intoxicated she could not walk, that
she did not “make out” with [Khokhar], and she did not
voluntarily give him oral sex.
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Opinion, 5/23/16, at 2-8 (“1925(a) Op.”) (internal citations omitted).
On September 24, 2015, following a jury trial, Khokhar was convicted
of one count of IDSI and one count of sexual assault. On December 21,
2015, the trial court sentenced Khokhar to 4 to 8 years’ incarceration,
followed by 5 years’ probation.
On December 23, 2015, Khokhar filed a post-sentence motion for
reconsideration of the trial court’s denial of his request for bail pending
appeal, which the trial court denied the same day. On January 20, 2016,
Khokhar filed a timely notice of appeal.
Khokhar raises the following issues on appeal:
I. WHETHER THE COMMONWEALTH PROVIDED EVIDENCE
SUFFICIENT TO CONVICT APPELLANT OF VIOLATING 18
Pa.C.S. § 3123(a)(1) INVOLUNTARY DEVIATE SEXUAL
INTERCOURSE – FORCIBLE COMPULSION?
II. WHETHER THE COMMONWEALTH PROVIDED EVIDENCE
SUFFICIENT TO CONVICT APPELLANT OF VIOLATING 18
Pa.C.S. § 3124.1 SEXUAL ASSAULT?
III. WHETHER TRIAL COURT ERRED IN PERMITTING
WITNESS DETECTIVE JEFFERY ABRAHAM TO PRESENT
HEARSAY EVIDENCE AND PROVIDE LOCATIONS DERIVED
FROM SUCH HEARSAY ON A MAP?
Khokhar’s Br. at 5.
We apply the following standard when reviewing a sufficiency of the
evidence claim: “[W]hether viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond a
reasonable doubt.” Commonwealth v. Lehman, 820 A.2d 766, 772
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(Pa.Super. 2003) (quoting Commonwealth v. DiStefano, 782 A.2d 574,
582 (Pa.Super. 2001)). In applying this standard, “we may not weigh the
evidence and substitute our judgment for the fact-finder.” Id. Further, “the
facts and circumstances established by the Commonwealth need not
preclude every possibility of innocence.” Id. Moreover, “[a]ny doubts
regarding a defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no probability
of fact may be drawn from the combined circumstances.” Id. In applying
the above test, we must evaluate the entire record. Id. Further, “the trier
of fact[,] while passing upon the credibility of witnesses and the weight of
the evidence produced, is free to believe all, part or none of the evidence.”
Id.
First, we address Khokhar’s challenge to the sufficiency of the
evidence to support his conviction for IDSI – forcible compulsion.2 Khokhar
contends that his statements to Victim did not demonstrate “forcible
compulsion” but rather “amounted to nothing more than a solicitation for
oral sex.” Khokhar’s Br. at 19.
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2
As a threshold matter, we note that Khokhar, in part, discusses 18
Pa.C.S. § 3123(a)(2), which prohibits IDSI “by threat of forcible compulsion
that would prevent resistance by a person of reasonable resolution.”
Because Khokhar was charged and convicted of IDSI pursuant to 18 Pa.C.S.
§ 3123(a)(1), which is IDSI “by forcible compulsion,” we will not address his
section 3121(a)(2) argument.
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A person commits IDSI “‘when he or she engages in deviate sexual
intercourse with a complainant by . . . forcible compulsion.’”
Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa.Super. 2003) (quoting
18 Pa.C.S. § 3123(a)(1)). Deviate sexual intercourse is “sexual intercourse
per os or per anus between human beings.” Id. (quoting 18 Pa.C.S. §
3101). “Forcible compulsion” is “[c]ompulsion by use of physical,
intellectual, moral, emotional or psychological force, either express or
implied.” 18 Pa.C.S. § 3101.
[T]he “force necessary to support convictions for rape and
involuntary deviate sexual intercourse need only be such
as to establish lack of consent and to induce the woman to
submit without additional resistance . . . The degree of
force required to constitute rape [or involuntary deviate
sexual intercourse] is relative and depends upon the facts
and particular circumstance of the case.”
Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986) (quoting
Commonwealth v. Williams, 439 A.2d 765, 768 (Pa.Super. 1982)).
When forcible compulsion (used or threatened) consists of
moral, phychological [sic] or intellectual force, the force
may be less tangible but is not less susceptible of proof,
and the critical circumstances and evidence here will be
those which tend to prove or disprove compulsion or lack
of consent, i.e. that such force was used to compel a
person to engage in sexual intercourse against that
person’s will.14
14
It is not necessary to prove that the victim actually
resisted in order to prove that the act of sexual
intercourse was against the victim's will and/or
without consent. Section 3107 provides that the
“victim need not resist the actor in prosecutions
under” chapter 31 and makes it clear that lack of
consent is not synonymous with lack of resistance.
18 Pa.C.S.A. § 3107.
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Id. at 1226-27 (internal quotation marks omitted).
At trial, Victim testified that when Khokhar made a right turn instead
of a left turn to return to Duquesne University, she was scared. N.T.,
9/24/15, at 55-56. Similarly, when Khokhar locked the doors of the car,
Victim “felt so helpless and scared.” Id. During the drive, Khokhar started
unbuckling his pants, which again made Victim feel “scared and helpless.”
Id. at 56-57. Khokhar also told Victim, “[Y]ou’re going to have to do
something for me” and later, while touching himself and motioning to Victim
to give him oral sex, said, “[Y]ou better get at it.” Id. at 57-58. Victim
testified that she was not flirting with Khokhar and had not discussed
anything sexual with him. Id. at 60-61. In addition, Victim testified as
follows:
Q. So at any point during your ride back to Duquesne with
this individual, did you want to give him oral sex?
A. No.
Q. Did he ask you if it was okay for you to give him oral
sex?
A. No.
Q. And when he said these things to you, you better –
what exactly did he say?
A. He said, you better go do something for me.
Q. Did he say anything after that?
A. No.
Q. And when he said these things to you, did you think
that you had any way to say no?
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A. No. I was terrified because the thought that came in
my mind was, what would happen if I said no because he
was driving away from where I lived, so I was scared.
Id. at 63.
Accordingly, we conclude that the evidence presented at trial was
sufficient to sustain Khokhar’s conviction for IDSI, such that Victim was
compelled to engage in sexual intercourse against her will through forcible
compulsion.3 That Victim allegedly “did not make an affirmative statement
that she had no interest in [Khokhar’s] sexual advances,” Khokhar’s Br. at
18, is irrelevant.
Next, we address Khokhar’s challenge to the sufficiency of the
evidence to support his sexual assault conviction. “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. “Resistance to sexual assault is not required
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3
Despite the language of section 3101 that includes intellectual,
moral, and emotional force within the definition of forcible compulsion,
Khokhar suggests that forcible compulsion may only be met by physical
and/or psychological force. See Khokhar’s Br. at 16-18. Khokhar relies on
Commonwealth v. Berkowitz, 641 A.2d 1161, 1164 (Pa. 1994), for the
proposition that “where there is a lack of consent, but no showing of either
physical force, a threat of physical force, or psychological coercion, the
‘forcible compulsion requirement’” is not met. The obvious flaw in this
argument is that “[l]ess than one year after the Berkowitz decision, the
legislature amended the sexual assault law by adding a definition for forcible
compulsion.” See Commonwealth v. Fischer, 721 A.2d 1111, 1116
(Pa.Super. 1998) (noting that the legislature thus added a “broader
definition” of forcible compulsion than set out in Berkowitz). Accordingly,
in the instant matter, Berkowitz does not control.
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to sustain a conviction.” Commonwealth v. Smith, 863 A.2d 1172, 1176
(Pa.Super. 2004). “[I]t is for the fact finder to make credibility
determinations, and the finder of fact may believe all, part, or none of a
witness’s testimony.” Commonwealth v. Andrulewicz, 911 A.2d 162, 166
(Pa.Super. 2006). As this Court has recognized:
[T]he uncorroborated testimony of a sexual assault victim,
if believed by the trier of fact, is sufficient to convict a
defendant, despite contrary evidence from defense
witnesses. If the factfinder reasonably could have
determined from the evidence adduced that all of the
necessary elements of the crime were established, then
that evidence will be deemed sufficient to support the
verdict.
Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa.Super. 2006)
(citations and quotation marks omitted).
As the trial court stated, the jury did not believe Khokhar’s version of
events. 1925(a) Op. at 10. The jury instead credited Victim’s testimony
and reasonably could have determined that the Commonwealth established
all of the necessary elements of the crime, including that Victim did not
consent. Accordingly, the evidence was sufficient to support Khokhar’s
sexual assault conviction.
Finally, we address Khokhar’s contention that the trial court erred in
admitting hearsay evidence during the testimony of Detective Abraham. In
particular, Detective Abraham described and drew the route taken by
Khokhar and Victim the night of the crime, based on information Victim had
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provided to him during a ride along. The trial court overruled Khokhar’s
hearsay objection.
“Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Commonwealth v. McCrae, 832 A.2d 1026, 1034 (Pa.
2003); see Pa.R.E. 801(c). Hearsay is not admissible “except as provided
by the Pennsylvania Rules of Evidence, [by other rules prescribed by the
Supreme Court of Pennsylvania], or by statute.” McCrae, 832 A.2d at
1034; see Pa.R.E. 802.
After reviewing the trial transcript, we conclude that the trial court
erred in admitting Detective Abraham’s testimony regarding the route taken
by Khokhar and Victim. In its 1925(a) opinion, the trial court concluded that
Detective Abraham’s testimony regarding Victim’s out-of-court statements
was admissible for two reasons: (1) for the statements’ effect on the
listener; and (2) as prior consistent statements of Victim. 1925(a). Op. at
10-11. Neither basis supports the admission of the statements.
When an out-of-court statement is used to show its effect on the
listener, and not for the truth of the matter asserted, it is non-hearsay. See
Schmalz v. Manufacturers & Traders Trust Co., 67 A.3d 800, 803 n.3
(Pa.Super. 2013). Similarly, it is well-established that “certain out-of-court
statements offered to explain a course of police conduct are admissible.
Such statements do not constitute hearsay since they are not offered for the
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truth of the matters asserted; rather, they are offered merely to show the
information upon which police acted.” Commonwealth v. Palsa, 555 A.2d
808, 810 (Pa. 1989). The admission of prior consistent statements is
governed by Pennsylvania Rule of Evidence 613(c),4 which under certain
circumstances allows the admission of prior consistent statements to
rehabilitate the witness’s credibility.
Based on our review of Detective Abraham’s trial testimony, see N.T.,
9/23/15, at 164-66, we conclude that Victim’s out-of-court statements were
offered for their truth, that is, to prove Khokhar’s route that night, rather
than for the effect these statements had on Detective Abraham or to
properly bolster Victim’s credibility. The conduct of Detective Abraham that
the statements purportedly affected – his re-tracing of the route described
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4
Rule 613(c) reads as follows:
(c) Witness’s Prior Consistent Statement to Rehabilitate.
Evidence of a witness’s prior consistent statement is
admissible to rehabilitate the witness’s credibility if the
opposing party is given an opportunity to cross-examine
the witness about the statement and the statement is
offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or
motive, or faulty memory and the statement was
made before that which has been charged existed or
arose; or
(2) having made a prior inconsistent statement,
which the witness has denied or explained, and the
consistent statement supports the witness’s denial or
explanation.
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by Victim – was only relevant as corroboration of the statements
themselves. And the introduction of Victim’s out-of-court statements
satisfied neither prong of Rule 613(c)’s exception for prior consistent
statements. Accordingly, this portion of Detective Abraham’s testimony was
hearsay and should not have been admitted.
We conclude, however, that the error was harmless. “The harmless
error doctrine, as adopted in Pennsylvania, reflects the reality that the
accused is entitled to a fair trial, not a perfect trial.” Commonwealth v.
Drummond, 775 A.2d 849, 853 (Pa.Super. 2001).
The Commonwealth bears the burden of establishing the
harmlessness of the error. This burden is satisfied when
the Commonwealth is able to show that: (1) the error 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 (3) the properly admitted and uncontradicted evidence
of guilt was so overwhelming and the prejudicial effect of
the error so insignificant by comparison that the error
could not have contributed to the verdict.
Commonwealth v. Levanduski, 907 A.2d 3, 21 (Pa.Super. 2006). We
conclude that the trial court’s error did not so “confuse the jury” as Khokhar
argues, Khokhar’s Br. at 21, as to prejudice Khokhar; and even if it did, any
such prejudice was de minimis.
Khokhar argues that the route described by Detective Abraham was
“inaccurate, and demonstrated a route significantly more off course that
[sic] the Complainant’s expected route of travel.” Khokhar’s Br. at 21.
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Khokhar further argues that Detective Abraham’s testimony “was used in
effort [sic] to characterize Appellant as having no intention to drive towards
Duquesne University that evening.” Id. These arguments do not merit
relief. The relevance of the route taken by Khokhar was its impact on
Victim’s perception of the danger posed by Khokhar. Victim testified that
Khokhar made a right turn instead of a left turn when he pulled out of the
parking lot and locked the car doors, which made her feel helpless and
scared. She also testified that Khokhar drove very fast, went the wrong way
down a one-way street at one point, and did not stop at stop signs. While
Khokhar strongly contested certain aspects of Victim’s testimony concerning
his driving, N.T., 9/24/15, at 234, 255, 256 (testifying that he did not lock
the doors, did not speed, did not go the wrong way down a one-way street,
and did not ignore stop signs), he himself admitted turning right rather than
left out of the parking lot, id. at 234-35. Khokhar’s claim on appeal that
Detective Abraham’s testimony about the route was central to the
Commonwealth’s case is belied by the fact that neither party referenced that
testimony in closing arguments. The prejudicial effect, if any, of the
admission of Detective Abraham’s hearsay testimony was insignificant.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2017
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