Com. v. Williams, R.

J-S54032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHMEL NMN WILLIAMS :
:
Appellant : No. 255 WDA 2017
Appeal from the Judgment of Sentence January 19, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001289-2016
BEFORE: OTT, MOULTON, and FITZGERALD, JJ.*
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 21, 2017
Appellant, Rahmel NMN Williams, appeals from his judgment of
sentence of thirteen years and three months to thirty-one years’
imprisonment for kidnapping,1 simple assault,2 reckless burning3 and
tampering with physical evidence.4 Appellant contends, inter alia, that the
evidence was insufficient to sustain his conviction for kidnapping, and the
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2901(a)(3).
2
18 Pa.C.S. § 2701(a)(1).
3
18 Pa.C.S. § 3301(d)(2).
4
18 Pa.C.S. § 4910(1).
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trial court abused its discretion in admitting into evidence two photographs
of the victim’s genital area taken after the assault. We affirm.
The factual and procedural history of this case is as follows. On the
evening of June 4, 2016, J.L. arrived at a bar to celebrate a friend’s
birthday. N.T., 1/9/17, at 23.5 After midnight, J.L. left the bar with
Appellant, whom she met that night. Id. at 24-25. J.L. purchased condoms
at a nearby convenience store, and she and Appellant left the store in his
car. Id. at 27-28. J.L. asked Appellant to drop her off on the road she
resided on, but Appellant traveled in the opposite direction for approximately
one mile and pulled over to a remote area of the road. Id. at 33-35. J.L.
attempted to exit the car, but Appellant punched her in the face and
threatened to shoot her if she attempted to escape. Id. at 36. J.L. testified
that Appellant pinned her down, mounted her and had her put a condom on
him. Id. at 37-38. J.L. stated that Appellant had sex with her without her
consent, bit her on her arm and shoulder, strangled her, and inserted a hard
metal object into her rectum. Id. at 38-40.
Appellant finally allowed J.L. to leave when he noticed blood on the car
seat. Id. at 42. J.L. left the car and called her boyfriend, who picked her
up. Id. at 47. Several hours later, J.L. went to the hospital. Id. Later that
day, she underwent emergency surgery. Id. at 49-50. The operating
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5
The transcript of the three-day trial is in one volume with consecutively
numbered pages.
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physician, Dr. Elias, testified that he performed a colostomy on J.L., and that
she had impalement injuries of the rectum and significant bruising at the
lower portion of the rectum and buttocks. Id. at 197-201.
Appellant testified and admitted meeting J.L. at the bar and driving her
to the gas station. Id. at 316-18. He admitted having sexual intercourse
with J.L. but claimed it was consensual. Id. at 319. He admitted hitting J.L.
in her face up to five times but said it was because he thought she stole his
money. Id. at 321-23.
On June 5, 2016, Appellant learned that the police were looking for
him. Id. at 326. On June 6, 2016, he set his car on fire. Id. at 327. The
police officers who responded to the fire searched the car and found the
clothes Appellant wore on the night of his encounter with J.L. as well as a
lug wrench, the hard metal object that they believed he used on J.L. Id. at
262-70. Appellant burned his leg while setting fire to the car, and he later
checked into the hospital under a false name, Randall Means. Id. at 329-30,
336-37.
The jury found Appellant guilty of kidnapping, simple assault, reckless
burning, and tampering with physical evidence but not guilty of aggravated
assault, rape by forcible compulsion and involuntary deviate sexual
intercourse by forcible compulsion. Id. at 384-87. Following sentencing,
Appellant filed a timely post-sentence motion challenging the length of his
sentence, which the court denied. Appellant filed a timely notice of appeal,
and both Appellant and the trial court complied with Pa.R.A.P. 1925.
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In this timely appeal, Appellant raises the following issues for review:
I. Did the Commonwealth fail to present sufficient
evidence to prove beyond a reasonable doubt that
Appellant unlawfully removed the victim a substantial
distance or confined the victim for a substantial period of
time in a place of isolation so as to sustain a conviction
[for] kidnapping, 18 Pa.C.S.[] § 2901(a)(3)?
II. Did the trial court abuse its discretion in admitting as
evidence two (2) photographs of the victim’s genitalia area
that were taken following the alleged assault?
III. Did the sentencing court err in sentencing Appellant on
the crime of simple assault to a consecutive period of
incarceration to the crime of kidnapping, as the two (2)
crimes merged for sentencing purposes?
IV. Did the sentencing court abuse its discretion by
imposing a harsh, severe, and manifestly unreasonable
and excessive sentence by sentencing Appellant to the
maximum sentence allowable by law for each offense and
by running each offense in a consecutive order?
Appellant’s Brief at 8.
In his first issue, Appellant argues that the evidence was insufficient to
sustain his kidnapping conviction, because the Commonwealth failed to
establish that he unlawfully removed the victim a substantial distance or
confined her for a substantial period of time in a place of isolation. No relief
is due.
When reviewing a challenge to the sufficiency of the evidence,
[t]he standard we apply . . . 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 the
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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 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 credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015),
appeal denied, 138 A.3d 4 (Pa. 2016) (citation omitted).
The kidnapping statute provides in relevant part:
[A] person is guilty of kidnapping if he unlawfully removes
another a substantial distance under the circumstances
from the place where he is found, or if he unlawfully
confines another for a substantial period in a place of
isolation, with any of the following intentions . . .
(3) To inflict bodily injury on or to terrorize the victim or
another.
18 Pa.C.S. § 2901(a)(3).
For purposes of the kidnapping statute, a substantial
distance is not limited to a defined linear distance or a
certain time period. See Commonwealth v. Hughes, []
399 A.2d 694, 696 ([Pa. Super.] 1979). The
determination of whether the victim was moved a
substantial distance is evaluated “under the
circumstances” of the incident. See Commonwealth v.
Chester, [] 587 A.2d 1367, 1382 ([Pa.] 1991), cert.
denied, 502 U.S. 959 [] (1991). Further, “the guilt of an
abductor cannot depend upon the fortuity of the distance
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he has transported his victim nor the length of time
elapsed . . . .” Hughes, 399 A.2d at 696.
Commonwealth v. Malloy, 856 A.2d 767, 779 (Pa. 2004).
Here, Appellant moved J.L. to an isolated area approximately one mile
from where she asked Appellant to drop her off. We consider this to be a
“substantial distance” under the circumstances of this case. See Hughes,
399 A.2d at 698 (where defendant removed victim two miles to isolated
area, beyond reach of friends or police, “two miles is a substantial enough
distance to place the victim in a completely different environmental setting
removed from the security of familiar surroundings”). In addition, the
evidence was sufficient to prove that Appellant removed J.L. to a place of
isolation. For purposes of the kidnapping statute, a place of isolation is “not
geographic isolation, but rather effective isolation from the usual protections
of society.” Commonwealth v. Jenkins, 687 A.2d 836, 838 (Pa. Super.
1996) (citation omitted). A location can constitute a place of isolation “if
detention is under circumstances which make discovery or rescue unlikely.”
Id. (citation and emphasis omitted) (defendant’s actions created “place of
isolation” within victim’s home for purposes of kidnapping statute, even
though police arrived approximately twenty minutes after incident began and
surrounded home; no one was able to reach victims for five hours, fate of
victims was exclusively within defendant’s control until he surrendered,
seventy-year-old victim was immobilized on floor from shoulder injury, and
four-year-old victim was carried around by defendant at knifepoint).
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Further, J.L. voluntarily entered the car at the bar and again at the gas
station, but instead of dropping her off where she requested, Appellant
drove to a secluded area off the road in early morning hours, where J.L. was
beyond the aid of friends or the police, punched J.L. in the face when she
attempted to exit the car, and threatened to shoot her if she attempted to
escape. Because Appellant effectively isolated J.L. from rescue or the usual
protections of society, Appellant created a “place of isolation” at the
roadside. Therefore, Appellant’s challenge to the sufficiency of the evidence
is without merit.
In his second issue, Appellant argues that the trial court abused its
discretion in admitting into evidence two photographs of the victim’s
genitalia taken following the assault. Appellant argues that the photographs
were irrelevant and prejudicial. We disagree.
In a challenge to a trial court’s evidentiary ruling, our standard of
review is one of deference:
The admissibility of evidence is solely within the discretion
of the trial court and will be reversed only if the trial court
has abused its discretion. An abuse of discretion is not
merely an error of judgment, but is rather the overriding
or misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of
record.
Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012)
(citation omitted). When the evidence is graphic in nature, the court must
engage in an additional analysis:
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First a court must determine whether the photograph is
inflammatory. If not, it may be admitted if it has
relevance and can assist the jury’s understanding of the
facts. If the photograph is inflammatory, the trial court
must decide whether or not the photographs are of such
essential evidentiary value that their need clearly
outweighs the likelihood of inflaming the minds and
passions of the jurors.
Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003) (citation
omitted).
The trial court found the photographs inflammatory but determined
that they were of essential evidentiary value. Trial Ct. Op., 4/17/17, at 9.
The court observed:
[T]he Commonwealth used the photographs in an attempt
to establish certain elements of the crimes charged. The
images of [J.L.’s] injuries were probative of several of the
crimes, specifically the aggravated assault charge, since
they could have been used to establish the necessary
intent and the serious bodily injury elements of that crime.
See Commonwealth v. Small, [] 741 A.2d 666, 680
[(Pa. 1999)] (photographs of murder victim’s decomposed
body were probative of the attempted rape and first
degree murder convictions since they helped to establish
the necessary intent element of the crimes). Moreover,
the photographs were not merely cumulative of Dr. Elias’
expert testimony because the photographs were useful in
aiding the jury to understand [his] detailed medical
testimony . . . As our Supreme Court has held, an expert
witness’s testimony conveyed to the jury, in clinical terms,
the nature of a victim’s injuries does not render
photograph evidence merely duplicative because the
meaning of the words can be usefully illustrated through
photographic images. Commonwealth v. Pruitt, [] 951
A.2d 307, 319 ([Pa.] 2008). Finally, this Court took a
number of precautionary steps, such as limiting the
number of photographs the Commonwealth was permitted
to admit, limiting the jurors’ exposure to the photographs
by giving them only one opportunity to review them[,] and
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providing the jury with cautionary instructions on two
separate occasions, immediately prior to the jurors
reviewing the photographs and during the Court’s jury
instructions at the end of trial and prior to jury
deliberations.
Trial Ct. Op. at 9-10. Based on this reasoning, we conclude that the trial
court acted within its discretion by admitting the photographs into evidence.
Furthermore, the verdict demonstrates that the photographs did not
prejudice the jury: the jury acquitted Appellant of aggravated assault, rape
and involuntary deviate sexual intercourse, three felony charges to which
the photographs directly related.
In his third issue, Appellant argues that the trial court erred in failing
to merge his simple assault and kidnapping convictions for sentencing
purposes. No relief is due.
“A claim that crimes should have merged for sentencing purposes
raises a challenge to the legality of the sentence. Therefore, our standard of
review is de novo and [our] scope of review is plenary.” Commonwealth v.
Nero, 58 A.3d 802, 806 (Pa. Super. 2012) (citation omitted).
The merger statute states:
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
42 Pa.C.S. § 9765. Merger is proper only when both elements in this
provision are met. See Commonwealth v. Wade, 33 A.3d 108, 116 (Pa.
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Super. 2011). In this case, Appellant’s crimes did not arise from a single
criminal act; he committed multiple distinct criminal acts.
When considering whether there is a single criminal act or
multiple criminal acts, the question is not whether there
was a break in the chain of criminal activity. Th[e] issue is
whether the actor commits multiple criminal acts beyond
that which is necessary to establish the bare elements of
the additional crime, [and if so,] then the actor will be
guilty of multiple crimes which do not merge for
sentencing purposes.
Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa. Super. 2012)
(citation and quotation marks omitted). In Pettersen, the trial court
sentenced the defendant to, inter alia, consecutive terms of imprisonment
on three counts of aggravated assault after he broke into the victim’s
residence, struck her in the head with a hammer, stabbed her ten times and
placed a bag over her head and attempted to suffocate her. Id. at 906-07.
This Court rejected the defendant’s argument that the aggravated assault
charges merged for sentencing purposes:
Although the time between the separate acts was relatively
short, the three assaults were committed with different
weapons and caused distinct injuries to different parts of
the victim’s body. When Appellant struck the victim in the
back of the head with a hammer, he committed an
aggravated assault. When Appellant stabbed the victim
multiple times in the chest and back, he committed at
least one aggravated assault. And Appellant committed an
aggravated assault when he attempted to suffocate the
victim by placing a plastic bag over her head.
Appellant is not entitled to a volume discount for these
crimes simply because he managed to accomplish all the
acts within a relatively short period of time.
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Id. at 912. Similarly, Appellant committed separate crimes of kidnapping
and simple assault against J.L. He committed the crime of kidnapping when
he punched J.L. in the face as she attempted to exit the vehicle. At another
point, he committed simple assault by strangling J.L. and biting her in the
arm and shoulder. See 18 Pa.C.S. § 2701(a)(1) (defendant is guilty of
simple assault if he “attempts to cause or intentionally . . . causes bodily
injury to another”). The fact that he committed these crimes within a
relatively short period of time did not cause them to merge for sentencing
purposes. See Pettersen, 49 A.3d at 912.
In his fourth and final issue, Appellant contends that his sentence was
excessive because he received the maximum sentence for each offense and
the trial court ran each sentence consecutively. We disagree.
Kidnapping, a first degree felony, carries a maximum sentence of
twenty years’ imprisonment. See 18 Pa.C.S. §§ 1103(1), 2901(b)(1).
Appellant’s prior record is that of a repeat felon, and the offense gravity
score (“OGS”) for kidnapping is ten, yielding a standard range sentence of
seventy-two to eighty-four months and an aggravated range sentence of
ninety-six months. The court sentenced Appellant to ninety-six months’ to
twenty years’ imprisonment, an aggravated range minimum sentence within
the statutory maximum.
Reckless burning or exploding, a third degree felony, carries a
maximum sentence of seven years’ imprisonment. See 18 Pa.C.S. §§
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1103(3), 3301(d)(1). The OGS for this offense is five, yielding a standard
range sentence of twenty-four to thirty-six months and an aggravated range
sentence of thirty-nine months. The court sentenced Appellant to thirty-nine
months’ to seven years’ imprisonment, an aggravated range sentence with
the maximum tail allowed by law.
Tampering with evidence, a second degree misdemeanor, carries a
maximum sentence of two years’ imprisonment. See 18 Pa.C.S. §§
1104(2), 4910(1). The OGS for this offense is two, yielding a standard
range sentence of six to twelve months and an aggravated range sentence
of fifteen months. The court sentenced Appellant to one to two years’
imprisonment, the maximum sentence allowed by law.
Simple assault, a second degree misdemeanor, carries a maximum
sentence of two years’ imprisonment. See 18 Pa.C.S. §§ 1104(2),
2701(a)(1). The OGS for this offense is three, yielding a standard range
sentence of twelve to eighteen months and an aggravated range sentence of
twenty-one months. The court sentenced Appellant to one to two years’
imprisonment, the maximum sentence allowed by law.
Appellant argues that the trial court abused its discretion by imposing
consecutive sentences that amounted to a virtual life sentence. Appellant’s
Brief at 27. The court, Appellant claims, intended to punish him for crimes
of which he was acquitted (aggravated assault, rape and involuntary deviate
sexual intercourse). Id.
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This Court has stated that:
[c]hallenges to the discretionary aspects of sentencing do
not entitle an appellant to appellate review as of right.
Prior to reaching the merits of a discretionary sentencing
issue:
[W]e conduct a four part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or raised in a motion to modify the sentence
imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)
(quotation marks and some citations omitted).
The Rule 2119(f) statement
must specify where the sentence falls in relation to the
sentencing guidelines and what particular provision of the
Code is violated (e.g., the sentence is outside the
guidelines and the court did not offer any reasons either on
the record or in writing, or double-counted factors already
considered). Similarly, the Rule 2119(f) statement must
specify what fundamental norm the sentence violates and
the manner in which it violates that norm . . . .
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “Our inquiry must focus on the reasons for which the appeal is
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sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Id. (emphasis in original).
Here, Appellant timely appealed, preserved his discretionary aspects of
sentencing issue in his motion for reconsideration of sentence, and included
a Pa.R.A.P. 2119(f) statement in his brief. See Evans, 901 A.2d at 533.
Appellant asserts the trial court imposed a manifestly excessive sentence
because it imposed aggravated range sentences without adequately
considering the factors set forth in 42 Pa.C.S. § 9721. This presents a
substantial question. See Commonwealth v. Fullin, 892 A.2d 843, 847
(Pa. Super. 2006).
This Court has stated:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish,
by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at
a manifestly unreasonable decision.
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted).
In reviewing the record the appellate court shall have
regard for: (1) The nature and circumstances of the
offense and the history and characteristics of the
defendant. (2) The opportunity of the sentencing court to
observe the defendant, including any pre-sentence
investigation. (3) The findings upon which the sentence
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was based. (4) The guidelines promulgated by the
commission.
42 Pa.C.S. § 9781(d)(1)-(4).
A sentence may be found to be unreasonable if it fails to properly
account for these four statutory factors, or if it
was imposed without express or implicit consideration by
the sentencing court of the general standards applicable to
sentencing found in Section 9721, i.e., the protection of
the public; the gravity of the offense in relation to the
impact on the victim and the community; and the
rehabilitative needs of the defendant.
Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).
Here, the court reviewed Appellant’s presentence report, N.T.,
1/19/17, at 7, and took into account all factors required under section 9721.
The court stated in its opinion that it
took into consideration a number of factors, including the
nature and seriousness of the offenses. The jury found
that Appellant kidnapped and assaulted [J.L.] and then
subsequently burned the vehicle where the assault took
place in an attempt to destroy evidence and ultimately
cover up his crimes. First, Appellant’s actions were
violent, resulting in bodily injury to [J.L.]. Second,
Appellant’s actions were intentional, meaning it was his
conscious object to both kidnap and assault [J.L.]. And
third, by attempting to conceal his identity and destroy
evidence, his actions indicate that not only did [he] know
what he did was wrong, but that he also felt he did not
need to face the consequences of his crimes.
This Court also took into consideration a sentence that
would best suit the rehabilitative efforts of Appellant. A
careful review of the pre-sentence investigation report
shows that Appellant’s prior record included a long list of
convictions dating back to 1996, including several serious
felony convictions. As stated at the time of sentencing,
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this indicated to the Court the failure of prior rehabilitative
efforts. Therefore, it was incumbent upon this Court to
provide Appellant with long term correctional treatment
that will best lead to rehabilitating [him] throughout his
sentence.
Trial Ct. Op. at 14. Based on this analysis, we conclude that Appellant’s
sentence was a proper exercise of the court’s discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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