Com. v. Steele, D.

J-S79013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS R. STEELE :
:
Appellant : No. 516 MDA 2018
Appeal from the Judgment of Sentence December 12, 2017
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000308-2012
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 24, 2019
Dennis R. Steele (“Appellant”) appeals from the judgment of sentence
entered after a jury convicted him of involuntary deviate sexual intercourse
(“IDSI”), sexual assault, aggravated indecent assault, and indecent assault.1
We affirm.
This case stems from Appellant sexually assaulting his nineteen-year-
old granddaughter (“the Complainant”) at approximately 7:00 a.m. on
February 14, 2012, by fondling her breasts, digitally penetrating her vagina,
and performing oral sex on her. N.T., 9/14/17, at 26–32. The Complainant
and her grandmother reported the incident on February 16, 2012. Id. at 34,
38. Upon returning from a truck-driving route, Appellant voluntarily went to
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1 18 Pa.C.S. §§ 3123(a)(1), 3124.1, 3125(a)(1), and 3126(a)(1),
respectively.
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the Pennsylvania State Police on February 20, 2012, for an interview. Id. at
49–50. During the interview, Appellant admitted to engaging in sexual activity
with the Complainant as alleged, but he claimed it was consensual. Id. at
51–53, Commonwealth Exhibit 1.
Appellant was arrested on February 21, 2012, and a criminal information
was filed against him on April 13, 2012. Appellant filed a motion to suppress
his statement to the police, which the trial court denied following a hearing.
Motion to Suppress, 7/16/12; Opinion and Order, 10/4/12.
Appellant proceeded to trial on October 17, 2013. The trial court
declared a mistrial, finding manifest necessity after Appellant’s counsel
intentionally subverted the Rape Shield Law during cross-examination of the
Complainant. N.T., 10/17/13, at 44. Appellant filed a motion to dismiss the
charges on double jeopardy grounds, which the trial court denied. Motion to
Dismiss, 11/26/13; Order, 1/13/14. On appeal, we affirmed the order denying
Appellant’s motion to dismiss. Commonwealth v. Steele, 120 A.2d 390,
197 MDA 2014 (Pa. Super. filed February 24, 2015).
Appellant went to trial again on September 14, 2017, and the jury
convicted him of all charges. On December 12, 2017, the trial court sentenced
Appellant to incarceration as follows: a term of fifty-seven months to ten
years on the IDSI count and a consecutive term of one to two years on the
indecent assault count. The trial court did not impose a sentence on the
charges of sexual assault or aggravated indecent assault. Appellant filed a
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post-sentence motion for judgment of acquittal on the IDSI conviction, which
the trial court denied. Post-Sentence Motion, 12/21/17; Order, 3/12/18. This
appeal followed. Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following questions for our
consideration:
1. Whether the evidence is insufficient to sustain the
jury’s guilty verdict on the charge of involuntary deviate sexual
intercourse because the evidence is insufficient to show that
Appellant exercised forcible compulsion which caused the
complainant to have sexual intercourse with him?
2. Whether the trial court erred in denying Appellant’s
motion to suppress an incriminating statement that he made to
an officer of the Pennsylvania State Police?
Appellant’s Brief at 7 (full capitalization omitted).
Appellant’s first issue assails the sufficiency of the evidence supporting
his conviction of IDSI by forcible compulsion. We analyze arguments
challenging the sufficiency of the evidence under the following parameters:
Our standard when reviewing the sufficiency of the evidence
is whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to the
Commonwealth as verdict-winner, are sufficient to establish all
elements of the offense beyond a reasonable doubt. We may not
weigh the evidence or substitute our judgment for that of the fact-
finder. Additionally, the evidence at trial need not preclude every
possibility of innocence, and the fact-finder is free to resolve any
doubts regarding a defendant’s guilt 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. When
evaluating the credibility and weight of the evidence, the fact-
finder is free to believe all, part or none of the evidence. For
purposes of our review under these principles, we must review the
entire record and consider all of the evidence introduced.
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Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (quoting
Commonwealth v. Emler, 903 A.2d 1273, 1276–1277 (Pa. Super. 2006)).
To prove forcible compulsion, the Commonwealth is “required to
establish beyond a reasonable doubt that Appellant used either physical force,
a threat of physical force, or psychological coercion . . . .” Commonwealth
v. Brown, 727 A.2d 541, 544 (Pa. 1999). The degree of force is relative and
depends on the totality of the facts and circumstances of the particular case.
Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986). “[R]esistance
to sexual assault is not required to sustain a conviction.” Commonwealth v.
Smith, 863 A.2d 1172, 1176 (Pa. Super. 2004). Furthermore, the
uncorroborated testimony of the complaining witness is sufficient to convict a
defendant of sexual offenses. Commonwealth v. Castelhun, 889 A.2d
1228, 1232 (Pa. Super. 2005) (citation omitted).
According to Appellant, “there is insufficient evidence to show that
Appellant used either physical force, threat of physical force or psychological
coercion causing the Complainant to have sexual activity with him.”
Appellant’s Brief at 10. Yet, Appellant quotes the trial court’s analysis in
support of its denial of the motion for acquittal. Appellant’s Brief at 12 (citing
Trial Court Supplemental Opinion, 7/2/18, at 3–4). That analysis describes
the physical force Appellant used while sexually assaulting the Complainant:
In this case, [the] Complainant testified that she repeatedly
told Appellant “no” and was crying during the entire encounter.
When Appellant attempted to pull her shirt up, she pushed it
down and asking [sic] Appellant not to do it. She also testified
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that she pulled her knees up to her chest and Appellant had to
pull them down to straighten her body when he decided to
perform oral sex on her. [The] Complainant further testified that
Appellant repeatedly told her “don’t fight it.” She tried to keep
her pants up but Appellant overpowered her and pulled them
down. [The] Complainant testified that when Appellant finally
stopped performing oral sex, she curled up and turned away from
him, but he grabbed her hand and pulled it to his penis. She
pulled it away and Appellant grabbed it again and pulled it
back. Each of these acts indicates that Appellant indeed used
physical force.
Trial Court Supplemental Opinion, 7/2/18, at 3–4 (emphasis supplied).
The Commonwealth argues that this case is similar to Commonwealth
v. Riley, 643 A.2d 1090 (Pa. Super. 1994), wherein:
the Court held the defendant by his actions in laying on top of [the
Complainant] and pinning her with his weight, not stopping when
the [Complainant] told him to stop, and frustrating her attempts
to avoid being kissed when she kept moving her head from side
to side, demonstrated [Appellant] exerted enough force to
overcome any resistance, and that his actions thwarted her
attempt to resist.
Commonwealth’s Brief at 4–5. Applying Riley, the Commonwealth continues:
Herein, [Appellant’s] actions in pulling up the [Complainant’s]
shirt, even after she pulled it back down, straightening out her
legs even after the [Complainant] said no while she was crying,
and his statement not to resist as he was going to do it anyway,
all the while she was trying to prevent him from pulling her pants
down clearly establishes [Appellant] exerted enough force to
overcome her resistance, and thwarted her attempt to resist
sexual contact.
Id. at 5.
Viewing the evidence in a light most favorable to the Commonwealth,
we reject Appellant’s argument that the evidence was insufficient to prove the
use of forcible compulsion, both physical and psychological. On the contrary,
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the evidence sufficiently established that Appellant physically and
psychologically exerted enough force to overcome the Complainant’s
resistance. Riley, 643 A.2d at 1092.
The record confirms that the Complainant lived with Appellant in a loving
relationship. N.T., 9/14/17, at 23. On the morning of February 14, 2012,
Appellant entered the Complainant’s room while she was sleeping and asked
to pet her “pussy,” which she assumed meant her cat. Id. at 26. After petting
the cat, Appellant used physical force to pull up the Complainant’s shirt, pull
down her knees, pull down her pants, and twice grab her hand, despite her
resistance, telling him “no” and asking him to stop. N.T., 9/14/17, at 26–32.
Additionally, the record reveals that Appellant instructed the Complainant “not
to resist because he was just going to do it anyway,” and he said, “[H]e will
make love to me and if I ever told anyone he would deny it.” Id. at 28, 32.
Such statements lead to a reasonable inference that Appellant would assault
the Complainant again. Thus, considering the totality of the circumstances,
the Complainant’s testimony was sufficient to establish the use of forcible
compulsion, and the jury was free to credit the Complainant’s testimony over
Appellant’s theory of the case. Riley, 643 A.2d at 1091; Castelhun, 889
A.2d at 1232.
Despite the overwhelming evidence of forcible compulsion, Appellant
asserts that the Complainant’s testimony on cross-examination, i.e., she
froze, did not scream or try to escape, “is devoid of any statement which
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clearly or adequately describes the use of force or the threat of force against
her.” Appellant’s Brief at 14. Appellant’s reliance on this testimony is
disingenuous. On direct examination, the Complainant testified to the use of
force. On cross-examination, the Complainant described her reaction to the
assault as it was unfolding and after it ended. The fact that her responses to
defense counsel’s questions did not again describe the use of force is of no
moment. Accordingly, we conclude that Appellant’s challenge to the
sufficiency of the evidence supporting his conviction of IDSI by forcible
compulsion lacks merit.
In his second issue, Appellant challenges the denial of his motion to
suppress the statement he gave to police. Appellant’s Brief at 14. Specifically,
Appellant complains that, “although the videotaped interview which took place
at the Pennsylvania State Police barracks started as non-custodial, the actions
of the police officer conducting the interrogation became accusatory and
transitioned the interrogation to one of a custodial nature.” Appellant’s Brief
at 15. In support of his position, Appellant refers to the trooper’s position as
an “authority figure,” the trooper “having [Appellant] cornered in a room,” the
trooper’s use of “interrogation techniques that he is trained in,” and
Appellant’s belief that he was “being restricted in his freedom of movement.”
Id. at 15, 16, 17.
Our standard of review is limited to determining whether the record
supports the suppression court’s factual findings and whether the legal
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conclusions drawn from those facts are correct. Commonwealth v.
Williams, 176 A.3d 298, 315 (Pa. Super. 2017) (citations omitted). Where
the record supports the findings of the suppression court, we are bound by
those facts and may reverse only if the court erred in reaching its legal
conclusions based upon the facts. Id. Moreover, it is within the lower court’s
province to pass on the credibility of witnesses and determine the weight to
be given to their testimony. Commonwealth v. Clemens, 66 A.3d 373, 378
(Pa. Super. 2013). The scope of review of orders granting or denying motions
to suppress is limited to the evidence presented at the suppression hearing.
In the Interest of L.J., 79 A.3d 1073, 1085 (Pa. 2013).
Upon review of the parties’ briefs, the certified record, and the opinion
of the trial court, we conclude that Appellant’s suppression challenge lacks
merit. In reaching this conclusion, we adopt as our own the well-reasoned
opinion and order of the trial court, wherein the Honorable President Judge
Nancy L. Butts concluded that “the incriminating statements made by
[Appellant] were done during a non-custodial interview with police.” Trial
Court Opinion and Order, 10/4/12, at 6.2 Thus, Appellant was not entitled to
suppression of his confession, and the trial court did not err in denying him
relief.
Judgment of sentence affirmed.
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2 The parties are directed to attach a copy of the trial court’s October 4, 2012
opinion and order to any future filings in this matter.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/24/2019
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I 634 A.2d 1078, 1085-86 (Pa. 1993). The reasonable belief of the defendant is I
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Il A person is in custody for Miranda purposes only when he "is physically denied his I
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believes that his freedom of action or movement is restricted by the interrogation."
Commonwealth v. Johnson. 727 A.2d 1089, 1100 (Pa. 1999). The U.S. Supreme Court
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i ! movement' of the degree associated with a formal arrest." Stansbury v. California, 511 !
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Commonwealth v. Sherwood, 982 A.2d 483, 499 (Pa. Super. 2009). Elements that courts look at
! ! to determine whether the defendant's will has been impinged include: 1) the duration and
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I conditions present which may serve to drain one's power of resistance to suggestion and
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I l undermine his self-determination. Commonwealth v. Watson, 360 A.2d 710, 713 (Pa. Super.
II 1976) (citing Commonwealth v. Alston, 317 A.2d241, 244 (Pa. 1974).
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!I I Miranda v. Arizona, 384 U.S. 436 (1966) (outlining a defendant's Fifth Amendment rights).
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In Schwing, the defendant was called by police to discuss an alleged sexual assault of a
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!! thirteen (13) year old female. Commonwealth v. Schwing, 964 A.2d 8, 10 (Pa. Super. 2008).
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\ The defendant voluntarily went to the police station and was placed in an interview room. Id.1
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! The room was eight-by-eight with windows and had an interview table, and chairs. Id. The door I
I was left open and the defendant agreed to videotape the interview. Id. The defendant was I
! advised that he was free to leave at any time and that he was not under arrest. Id. In addition, I
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i the defendant even left the interview room to go use the restroom and make a phone call. Id.! l The interview lasted one hour and twenty (20) minutes and eventually the defendant made
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\ ! incriminating statements. Shortly after the statements were made the Defendant asked to leave I
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I· The defendant in Schwing alleged that the officer preventing him from leaving raised the
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!; interview into a custodial interrogation. The Pennsylvania Superior Court stated that police
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iI crime. Id. at 12. In addition, the Superior Court found that the interview was not custodial
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j because the defendant voluntarily went to the police station, the defendant was told he could
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!I Here, the Defendant voluntarily arrived at the police station and was clearly informed that I
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propped open and the Defendant always had a clear path to the door. The interview was I
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relatively short lasting approximately thirty-four (34) minutes. In addition, the Defendant made l
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incriminating statements fifteen (15) minutes from the beginning of the interview. The
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Defendant left the police station after the interview was conducted and was not placed in a secure
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waiting area, was not frisked, and was not placed in handcuffs. The Defendant never asked if he
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The Court finds that the facts in this case are similar to Schwing, in which the defendant !
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! 1 arrived at the police station, was interviewed in a small conference room, and told that he could
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Further, as in Schwing, the defendant stated at a pre-trial hearing i
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that he believed that he could not terminate the interview. Schwing, 964 A.2d 12. The Superior j
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!\ at anytime there was no custodial interrogation and it was a meritless claim. Id. (stating that I
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inexperience with police stations and procedures is meritless in showing a subjective feeling of I
lI.Ii not being able to leave). The Defendant in this case was also informed that he could leave and
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j[ placed in a similar situation and therefore his testimony that his movements were restricted and
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Ij The Court finds, under the totality of the circumstances, that the interview was not
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I and composed. Further, the Defendant appeared in good physical condition and there were no
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suggestion or undermine his self-
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11 determination. When Havens told the Defendant he was going to be charged for a crime he had
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by that time already made the incriminating statements. Final!y, the interview was very short in
j duration and the conditions of the interview made it clear that the Defendant was free to leave,
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AND NOW, this , ) day of October, 2012, based upon the foregoing Opinion, the
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Court finds that the incriminating statements made by the Defendant were done during a non-
custodial interview with police. Therefore, the Defendant's Motion to Suppress is hereby
DENIED.
�ythe Court,
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Nancy L. Butts}..P.tesid/n; Judge
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/Pete Campana, Esq .
.,_..Eilee:9 Dgien, Dep. CA
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