Com. v. Thompson, Z.

J-S24004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZACHARY SCOTT THOMPSON :
:
Appellant : No. 1087 MDA 2017
Appeal from the Judgment of Sentence January 31, 2017
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000998-2016
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 29, 2018
Appellant, Zachary Scott Thompson, appeals from the judgment of
sentence entered on January 31, 2017, as made final by the denial of
Appellant’s post-sentence motion on June 8, 2017. We affirm.
The trial court ably summarized the underlying facts of this case. As
the trial court explained:
Around Thanksgiving of 2016, [H.F. (hereinafter “the
Victim”)] (then 16) was visiting [Appellant] (then 18 and her
cousin) at [Appellant’s] home and while there began drinking
alcohol he provided. After drinking more than she had ever
drunk before, she became nauseous and didn’t feel right.
She lay down in [Appellant’s] bed at which point he lay down
behind her and began to touch her vagina and her butt
without her consent. Not knowing how to respond to this
unwanted touching by her cousin, the [V]ictim attempted to
sleep. Ultimately, [Appellant] went to sleep and the event
ended. . . .
The second . . . incident occurred [] at [Appellant’s] home
during a birthday party for [Appellant’s] younger brother that
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featured copious underage drinking by [Appellant] and the
[V]ictim. . . . After too many shots of [whiskey], the [16-
year-old Victim] became sick and was taken to the shower by
the girlfriend [of Appellant’s father] and another adult female
who washed the vomit off of [the Victim]. Then, she was
dressed, taken to [Appellant’s] bedroom and positioned on
his bed with a bowl and a towel nearby should the vomiting
recur. When [Appellant] returned to his bedroom . . . he
proceeded to force himself on the [V]ictim at various times
throughout the night.
Trial Court Opinion, 11/8/17, at 2-3 (internal citations omitted).
Specifically, the Victim testified:
I had fallen asleep, and there [were] about four people in the
room. I know it was [Appellant] and a few other people I
didn’t know. And then I fell asleep, and throughout the night
I was in and out of consciousness.
The first time I woke up, no one was around except for
[Appellant], and he was passed out next to me. And then I
woke up again later, and he was touching me, and I felt his
mouth on my lips. And I had fallen asleep, and I woke up
and he was trying to push my head down on him. And I was
trying to put my hand on him to get him to stop, and then
after [a while] he did stop. And then I had fallen back to
sleep, and then I woke up on my stomach . . . and my pants
were pulled down. And he was on top of me, and he was
hurting me. . . . His penis was inside of me. . . . He was in
my anus [and he was g]oing in and out of me.
N.T. Trial, 10/25/16, at 46 and 51-52.
The Victim testified that, when she woke up the next morning, “[m]y
butt hurt, my vaginal area hurt, my . . . inner thigh was hurting.” Id. at 53.
She testified that none of those “areas hurt prior to that night.” Id.
Appellant was arrested and, following trial, the jury found Appellant
guilty of one count of sexual assault, one count of indecent assault, and two
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counts of corruption of minors.1, 2 N.T. Trial, 10/26/16, at 157-159. On
January 31, 2017, the trial court sentenced Appellant to serve an aggregate
term of three to six years in prison, followed by four years of probation, for
his convictions. N.T. Sentencing Hearing, 1/31/17, at 13-14.
On June 8, 2017, the trial court denied Appellant’s timely post-sentence
motion. Appellant filed a timely notice of appeal on July 7, 2017. Appellant
raises one issue on appeal:
Did the Commonwealth present sufficient evidence on every
element of the crimes to adequately support the jury’s guilty
verdicts on the charge of sexual assault, corruption of a
minor, or indecent assault (w/out consent of another)?
Appellant’s Brief at 6 (some internal capitalization omitted).
We review Appellant’s sufficiency of the evidence challenges under the
following standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether 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. In applying
the above test, we may not weigh the evidence and substitute
our judgment for [that of] the fact-finder. In addition, we
note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any 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
____________________________________________
1 18 Pa.C.S.A. §§ 3124.1, 3126(a)(1), and 6301(a)(1)(i), respectively.
2 The jury found Appellant not guilty of rape and involuntary deviate sexual
intercourse.
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may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, 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.
Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.
Super. 2008).
Appellant’s Rule 2116 “statement of questions involved” purports to
challenge the sufficiency of all of his convictions. However, the argument
section of Appellant’s brief only contends that the evidence was insufficient to
support his sexual assault and indecent assault convictions. See Appellant’s
Brief at 9-10. Therefore, Appellant has waived any claim that the evidence
was insufficient to support his two corruption of minors convictions.
Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1999) (“[the
Pennsylvania Supreme Court] has held that an issue will be deemed to be
waived when an appellant fails to properly explain or develop it in his brief”).
First, Appellant claims that the evidence was insufficient to support his
sexual assault conviction. In relevant part, the crime of sexual assault is
defined as follows:
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.
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18 Pa.C.S.A. § 3124.1.3
On appeal, Appellant claims that the evidence was insufficient to support
his sexual assault conviction because the Victim “did not say ‘no’ or ‘yes’, and
just groaned during the relevant episode of anal intercourse.” Appellant’s
Brief at 9. This claim is meritless.
The evidence is clearly sufficient to support Appellant’s sexual assault
conviction because the Victim testified that, on the night of the crime, she
woke to Appellant on top of her, with his penis inside of her anus, and
Appellant “[g]oing in and out of” her. N.T. Trial, 10/25/16, at 46 and 51-52.
Thus, Appellant’s claim that the Commonwealth failed to prove the element of
“lack of consent” plainly fails, as the Victim was asleep when Appellant began
the sexual intercourse. As such, the Victim could not have consented – and
Appellant could not have believed she consented – to the sexual intercourse.
Appellant’s first claim on appeal thus fails.
____________________________________________
3 The term “sexual intercourse” is defined in the following manner: “[i]n
addition to its ordinary meaning, [the term ‘sexual intercourse’] includes
intercourse per os or per anus, with some penetration however slight;
emission is not required.” 18 Pa.C.S.A. § 3101. “Deviate sexual intercourse”
is defined as: “[s]exual intercourse per os or per anus between human beings
and any form of sexual intercourse with an animal. The term also includes
penetration, however slight, of the genitals or anus of another person with a
foreign object for any purpose other than good faith medical, hygienic or law
enforcement procedures.” Id.
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Second, Appellant claims that the evidence was insufficient to support
his indecent assault conviction. Appellant was convicted of indecent assault
under 18 Pa.C.S.A. § 3126(a)(1). This section declares:
A person is guilty of indecent assault if the person has
indecent contact with the complainant, 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:
(1) the person does so without the complainant's consent.
18 Pa.C.S.A. § 3126(a)(1). The term “indecent contact” means “[a]ny
touching of the sexual or other intimate parts of the person for the purpose of
arousing or gratifying sexual desire, in any person.” 18 Pa.C.S.A. § 3101.
Appellant’s argument on appeal is sparse. See Appellant’s Brief at 9-
10. To the extent that Appellant raises a cognizable sufficiency of the evidence
claim on appeal, we understand Appellant’s claim to be that the evidence was
insufficient to prove that the Victim did not consent to his touching during the
first incident, when Appellant simply went into the Victim’s bed and began
touching her vagina and buttocks. See id. at 10. This claim fails.
At trial, the Victim testified as to Appellant’s first assault:
A: We were having a Thanksgiving dinner at my house with
the family . . . and then we went back to [Appellant’s] house.
. . . We were hanging out, watching TV. We ate. And then
me, [Appellant, and Appellant’s brother] were hanging out in
[Appellant’s] room.
...
Q: What happened while you were in [Appellant’s] room?
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A: We were drinking for [a while] and talking, and then
eventually [Appellant’s brother] went up to his room.
...
Q: What happened after [Appellant’s brother] left?
A: We continued to drink, and then I laid down.
Q: Prior to [lying] down, how many drinks do you think you
had had?
A: I’m not sure.
Q: How did you feel?
A: I was nauseous, and I didn’t feel all right.
Q: What happened when you laid down?
A: [Appellant] had gotten in the bed and laid behind me.
...
Q: Did you have your clothes on?
A: Yes.
Q: Did he have his clothes on?
A: Yes.
Q: What happened next?
A: He started to touch me.
Q: Where did he touch you?
A: He was touching my butt.
Q: Was that on top of your clothes or underneath your
clothes?
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A: On top.
Q: Did you say anything?
A: No. I just laid there.
Q: What happened next?
A: He continued to touch me.
Q: Did he touch you anywhere besides your butt?
A: He was touching my vagina.
Q: On top of or underneath your clothes?
A: On top. I don’t remember if he went under.
Q: Did you say anything at that point?
A: I just tried to sleep.
Q: Why did you try to sleep?
A: I didn’t know how to react because he’s family, and I was
drinking a lot.
Q: Did you want him touching you?
A: No.
Q: How long do you think that lasted?
A: I don’t think it was very long that I remember.
Q: Now, when you said you had been drinking and you don’t
know how much, how was the alcohol affecting you?
A: It made me feel really dizzy. I couldn’t really see straight.
It was really gross, and it tasted very strong, like pure
alcohol, like rubbing alcohol.
Q: And you said it was affecting your ability to see. What
other things was it affecting?
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A: It made me very tired.
Q: Had you ever felt like that before?
A: No.
Q: Had you ever drank like that before?
A: No.
Q: How did this whole situation stop?
A: He eventually stopped and went to sleep, and I just laid
there and fell asleep.
Q: Did you say anything to make him stop?
...
A: No.
N.T. Trial, 10/25/16, at 36-41.
On appeal, Appellant claims that the evidence was insufficient to
establish that the touching was done without the Victim’s consent. See
Appellant’s Brief at 10. This claim is meritless, as the Victim specifically
testified that she did not consent to Appellant’s touching. N.T. Trial, 10/25/16,
at 40. Further, Appellant could not have believed that the Victim consented
to the touching because Appellant did not obtain the Victim’s verbal consent
at any point and Appellant simply got into the Victim’s bed, while the Victim
was trying to sleep, and began touching her vagina and buttocks. Id. at 39-
40. Under these circumstances, the evidence was plainly sufficient to prove
that Appellant’s touching was done “without the [Victim’s] consent.” See 18
Pa.C.S.A. § 3126(a)(1). Appellant’s claim on appeal thus fails.
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2018
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