Com. v. Herron, D.

J-S16025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEMETRICE HERRON :
:
Appellant : No. 1490 MDA 2021
Appeal from the Judgment of Sentence Entered September 1, 2021,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0000018-2020.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 5, 2022
Demetrice Herron appeals from the judgment of sentence imposed
following his conviction for sexual assault. We affirm the conviction; however,
we vacate the judgment of sentence and remand for resentencing.
I. Procedural and Factual History
On October 19, 2018, Susquehanna Township Police Detective Scott
Meier charged Herron with rape and sexual assault. Both counts were held
for court following a preliminary hearing on December 26, 2019.
On March 1, 2021, Herron moved to allow admission of evidence of the
complainant’s subsequent sexual conduct at trial. Specifically, Herron moved
to introduce the complainant’s statements that the day after the incident with
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* Retired Senior Judge assigned to the Superior Court.
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Herron, she had consensual sexual intercourse with her boyfriend.
Immediately prior to trial, the trial court heard and denied this motion.
The case proceeded to a jury trial on March 8 and 9, 2021. The trial
court summarized the evidence at trial:
On the evening of October 19, 2018, Abigail J[.] ([A.J.])
arrived at River Drive Service Center to retrieve personal
belongings from her previously totaled vehicle. [A.J.] entered the
establishment to speak with an employee at the front desk. When
she entered, [Herron] said, “Damn.” [A.J.] did not respond and
left the area to retrieve her belongings. [A.J.] drove her rental
vehicle through the gates into an empty lot where her totaled
vehicle was. As [A.J.] began to clean out her totaled vehicle, she
noticed an individual walking towards her. She initially believed
this individual was there to help her remove the license plate from
her totaled vehicle. The individual, [Herron], kept walking
towards her even as she walked around the vehicle to create space
between them. He began to ask her derogatory questions that
she ignored. [Herron] commented on her outfit and asked her if
she had “ever f[—]ed a black person.” When [A.J.] located her
cellular phone, [Herron] asked her for her phone number. [A.J.]
gave him her phone number because she thought “that would get
the person to leave me alone and just block the number.” [A.J.]
eventually asked [Herron] to leave her alone and [said] that
someone was coming with a screwdriver to help her out.
As [A.J.] continued moving things out of the driver’s side,
she felt [Herron] approach her from behind. [Herron] pushed her
from behind into the backseat of the vehicle. [A.J.] stated that
[Herron] placed his penis inside her vagina. [A.J.] asked him to
stop, but [Herron] did not stop. [A.J.] described that she froze
and did not know what to do. [A.J.] stated that she did not want
to engage in sexual intercourse with [Herron] and felt that she
had no choice. [Herron] stopped sexually assaulting [A.J.] when
an employee started to come through the gate. [Herron] stated
to [A.J.] that he was not done with her yet, then left the area.
[A.J.] left most of her belongings in the totaled vehicle and
left the establishment. [A.J.] called her mother and drove home.
[A.J.] went to the hospital on October 22, 2018, and had a rape
kit completed by a forensic nurse. Forensic nurse Eileen Aiossa
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(hereinafter, “Ms. Aiossa”) began her interview of [A.J.] at 5:40
p.m. [A.J.] consented to having evidence collected and saved.
[A.J.] explained to Ms. Aiossa that she had been assaulted on
October 19, 2018, at the River Drive Service Center while she was
gathering her belongings. She further explained that [Herron]
followed her out into the junkyard, that she thought he was an
employee bringing the screwdriver, that he asked her if she had
ever “f[—]ed a black guy,” and that he became aggressive while
asking her questions. She then explained that [Herron] pushed
her from behind into the car seat and began to assault her.
[A.J.’s] documented injuries include a four centimeter linear
scratch on her left leg, a four by three centimeter red-purple
bruise and a two centimeter purple bruise on her left leg, and a
three centimeter by four centimeter purple bruise on her right
knee. Ms. Aiossa explained that the lack of injury to the external
and internal genitalia is not uncommon in these situations.
Vaginal and buccal swabs were taken. All evidence taken during
the exam was sealed, labeled, and locked into storage.
On January 16, 2019, [A.J.] went to the police station and
spoke with officers about the incident. Scott Meier (hereinafter,
“Detective Meier”), a detective with the Susquehanna Township
Police, conducted the initial interview of [A.J.] Detective Meier
went to the River Drive Service Center to obtain any possible video
footage of the incident. There was not any video footage saved
from the day of the incident.
Although [A.J.] had [Herron’s] number blocked, she
received multiple voice messages from [Herron]. [A.J.] shared
these voice messages with the police. [A.J.] received three
additional calls from [Herron] while he was in jail. [Herron] used
another inmate’s PIN [] to make these calls. In one of the voice
messages, [Herron] states [A.J.’s] first name and that he
apologizes. As [A.J.] had been receiving messages and phone
calls from [Herron], police attempted, unsuccessfully, to obtain
her phone records. Police were able to obtain [Herron’s] phone
records that showed several calls to [A.J.] Detective Meier was
able to match the phone number from which [A.J.] received the
calls from [Herron] to [Herron’s] name and location in North
Carolina. With that information, Detective Meier was able to make
a photographic lineup. Police then contacted [A.J.] to show her a
photo array on January 18, 2019. [A.J.] identified [Herron]
through the photo array. She then attempted to contact him via
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phone while at the police station. She was not able to contact
him.
Michael Melendez (hereinafter, “Detective Melendez”), a
police detective in Charlotte, North Carolina, was contacted by
Susquehanna Township Police Department regarding a sexual
assault case in Harrisburg, Pennsylvania that potentially involved
a suspect that resided in his jurisdiction, [Herron]. Detective
Melendez was contacted in hopes that he could obtain a DNA
sample from [Herron]. Detective Melendez met with [Herron] on
April 24, 2019, and obtained a buccal swab. [Herron] asked
Detective Melendez if the reason for obtaining the buccal swab
was a woman named “Abby.”
Brett Albert, a forensic scientist specializing in serology at
the Pennsylvania State Police Harrisburg Regional Laboratory,
analyzed the evidence collected in this case. He determined that
no seminal fluid was identified on the vaginal sample. He then
confirmed that there were sperm cells present on a pair of shorts
that [A.J.] had been wearing at the time of the assault. The
sample was prepared for DNA analysis.
Patrice Ferlan, a forensic DNA scientist with the
Pennsylvania State Police Forensic DNA Division, analyzed the
samples for DNA. The DNA sample taken from the pair of shorts
[A.J.] had been wearing during the assault matched the sample
taken from [Herron].
[Herron] testified that he walked up behind [A.J.] as she
was bent over gathering her belongings from her vehicle. After
propositioning her, [Herron] then pressed his body against her
and started rubbing her over her shorts. [Herron] then stated
that [A.J.] began to grind her hips against him. [Herron] testified
that he and [A.J.] engaged in consensual sexual intercourse.
[Herron] obtained [A.J.’s] phone number and they both left the
area. [Herron] then claims that he apologized on [A.J.’s]
voicemail because his girlfriend called [A.J.] [Herron] used his
girlfriend’s phone to call [A.J.] and apologize to her.
Trial Court Opinion, 1/11/22, at 2–6 (record citations omitted).
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The jury found Herron not guilty of rape and guilty of sexual assault.
Herron and his trial counsel moved for trial counsel’s withdrawal; following a
hearing, the trial court appointed conflicts counsel for sentencing.
On September 1, 2021, the trial court sentenced Herron to serve 10 to
20 years’ imprisonment, pay a fine of $50 plus costs, undergo a sex offender
treatment program, and have no contact with the victim.
Herron filed a post-sentence motion on September 10, 2021, and the
Commonwealth responded on October 6, 2021. The trial court denied
Herron’s post-sentence motion on October 13, 2021. The trial court appointed
appellate counsel on October 29, 2021. Herron timely appealed; Herron and
the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.
II. Analysis
Herron presents the following issues for our review:
A. Whether the trial court erred in accepting the jury’s verdict
where the Commonwealth failed to present sufficient evidence
to prove non-consensual sexual intercourse?
B. Whether the trial court erred in accepting the jury’s verdict
which was contrary to the weight of the evidence presented at
trial, which supported consensual sexual intercourse?
C. Whether the trial court erred [in] denying [Herron’s] motion to
pierce [the] Rape Shield where the evidence was being
introduced to prove complainant’s state of mind and attack her
credibility?
D. Whether the trial court erred in sentencing [Herron] as a
second strike where the Commonwealth failed to prove
[Herron’s] prior out of state burglary conviction was a
qualifying crime of violence?
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Herron’s Brief at 4 (reordered for ease of disposition).
A. Sufficiency of the Evidence
Herron claims that the evidence was insufficient to convict him of sexual
assault. Herron’s Brief at 23–24. We review a challenge to the sufficiency of
the evidence under a well-established 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 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 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 finder 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. Rudolf, 262 A.3d 574, 578–79 (Pa. Super. 2021)
(quoting Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super.
2014)).
The jury found Herron guilty of sexual assault, which is committed when
a “person engages in sexual intercourse or deviate sexual intercourse with a
complainant without the complainant’s consent.” 18 Pa.C.S.A. § 3124.1.
Under this statute, the Commonwealth must prove that the complainant did
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not consent.1 Commonwealth v. Prince, 719 A.2d 1086, 1090 (Pa. Super.
1998). It is well-established that “the 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) (citing
Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005));
accord 18 Pa.C.S.A. § 3106 (“The testimony of a complainant need not be
corroborated in prosecutions under this chapter.”).
Herron alleges that the Commonwealth’s evidence was insufficient to
prove that the sexual intercourse was not consensual. He directs us to
numerous alleged deficiencies in the Commonwealth’s case. However, the
complainant testified that Herron pushed her into her car, she told him to stop,
and he put his penis into her vagina. N.T., Trial, 3/8/21, at 37–38. She
testified that she did not want to engage in sexual intercourse. Id. at 51–52.
Under our laws, this testimony alone is sufficient. Cramer, supra. Therefore,
the trial court did not err in accepting the jury’s verdict.
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1 Trial counsel did not request an instruction on consent. The trial court did
instruct the jury as to the elements of sexual assault, including lack of consent.
N.T., Trial, 3/9/21, at 281. The jury submitted a question—“can sexual assault
occur with consent?”—and the court answered that it cannot. Id. at 286. The
court later instructed: “The burden is on the Commonwealth to prove beyond
a reasonable doubt that the alleged victim did not give consent.” Id. at 288.
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B. Weight of the Evidence
Herron claims that the jury’s verdict was against the weight of the
evidence, arguing that the evidence presented at trial weighed more towards
consensual sexual intercourse than sexual assault. Herron’s Brief at 25–26.
The trial court found that Herron waived this claim. We agree. By rule:
A claim that the verdict was against the weight of the evidence
shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A). Here, because Herron did not raise a challenge to the
weight of the evidence before the trial court either in an oral or written motion
for a new trial, he has waived this claim.2 Commonwealth v. Kinney, 157
A.3d 968, 972 (Pa. Super. 2017), appeal denied, 170 A.3d 971 (table) (Pa.
Aug. 7, 2017).
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2 After trial and before sentencing, Herron filed a document pro se including a
claim that “[t]he weigh[t] of the evidence was insufficient to establish beyond
a reasonable doubt that” he sexually assaulted the victim. He stated that
there was no evidence of forcible compulsion and that the jury was not
instructed that a mistake of fact of consent would be a defense. Motion for a
Judgment of Acquittal, 8/4/21, at 4. The trial court denied the motion on the
record. N.T., Sentencing, 9/1/21, at 7.
In assessing whether Herron waived his challenge to the weight of the
evidence, we do not consider this document, which was not signed by Herron’s
attorney. See Commonwealth v. Reid, 642 A.2d 453, 462 (Pa. 1994) (not
considering issues in a pro se brief based on Pennsylvania’s rule against hybrid
representation). Furthermore, the arguments on this page of Herron’s pro se
filing do not implicate the weight of the evidence.
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C. Rape Shield Law
Herron challenges the trial court’s denial of his motion to introduce
evidence to pierce the Rape Shield Law, 18 Pa.C.S.A. § 3104. Before trial, he
moved to admit the complainant’s statements that she had consensual sexual
intercourse with her boyfriend the day after the incident with Herron. See id.
§ 3104(b). Herron maintained that this would show the complainant’s state
of mind during and after the incident.3 Herron’s Brief at 19 (arguing “that a
woman who engaged in consensual sexual intercourse with a stranger would
be more likely to immediately engage in sexual intercourse with her boyfriend
than a woman who was sexually assaulted”). Immediately prior to trial, the
trial court heard and denied Herron’s motion. N.T. Trial, 3/8/21, at 4–8. The
court found that this evidence was precluded by the Rape Shield Law and that
its prejudicial impact “would far outweigh any probative value as it serves no
purpose other than to shift the fact finder’s focus from the culpability of the
accused [] to the virtue or chastity of the victim.” Id. at 7–8.
This Court has established that a trial court’s ruling on the
admissibility of a sexual abuse victim’s prior sexual conduct will
be reversed only where there has been a clear abuse of discretion.
“An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied or the
judgment exercised is manifestly unreasonable, or the result of
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3 Pretrial, Herron also argued that sexual activity the day after an alleged rape
is not “past sexual conduct” within the meaning of the statute. He does not
repeat this argument on appeal. See Commonwealth v. Rogers, 250 A.3d
1209, 1219 (Pa. 2021) (holding that the Rape Shield Law extends to conduct
after the alleged offense and before trial); Commonwealth v. Jones, 826
A.2d 900, 908 (Pa. Super. 2003) (en banc) (same).
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partiality, prejudice, bias, or ill will, as shown by the evidence or
the record, discretion is abused.”
Commonwealth v. Martz, 232 A.3d 801, 816–17 (Pa. Super. 2020) (citing
and quoting Commonwealth v. K.S.F., 102 A.3d 480, 483 (Pa. Super.
2014)).
The Rape Shield Law provides that “[e]vidence of specific instances of
the alleged victim’s past sexual conduct . . . shall not be admissible in
prosecutions of any offense listed in subsection (c),” including Chapter 31
offenses, with a statutory exception that does not apply here. 18 Pa.C.S.A.
§ 3104(a). Its purpose “is to prevent a sexual assault trial from degenerating
into an attack upon the [alleged] victim’s reputation for chastity.”
Commonwealth v. Berkowitz, 641 A.2d 1161, 1165 (Pa. 1994).
Herron points us to Commonwealth v. Killen, 680 A.2d 851 (Pa.
1996). In Killen, the defendant was accused of sexually assaulting a woman
he had pulled over for speeding, who was then taken by ambulance to a
hospital. Id. at 851–52. The defendant, alleging that the complainant
fabricated the sexual assault, sought to introduce evidence of her “sexually
provocative statements” and flirtatious behavior to men in the ambulance and
hospital. Id. at 852–53. Our high court held that this was not in the class of
evidence barred by the Rape Shield Law, as it showed “the complainant’s state
of mind shortly after (and by implication during) her alleged sexual assault.”
Id. at 854 (describing the statements as being “part of and relevant to the
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ongoing episode in which the alleged criminal activity [took] place”). Because
the evidence was relevant to a critical issue, it was error to exclude it. Id.
Courts have declined to extend the state-of-mind exception in Killen to
allow evidence of a complainant’s sexual conduct with others after the criminal
episode is concluded. In Commonwealth v. Jones, 826 A.2d 900, 907–09
(Pa. Super. 2003) (en banc), we reversed a trial court’s grant of a defendant’s
motion to admit evidence that the complainant was convicted of prostitution
the month the defendant allegedly sexually assaulted her. “Whatever the
motivation for the complainant’s conduct might be, evidence of her sexual
history with a man other than Appellee after the alleged rape is non-probative
of her inclination to consent to such activity with Appellee on December 16,
1999—or at any other time.” Id. at 909.
Likewise, in Commonwealth v. Rogers, 250 A.3d 1209 (Pa. 2021),
the Supreme Court of Pennsylvania held that evidence that alleged rape
victims were later convicted of prostitution involving other men was barred by
the Rape Shield Law and not otherwise admissible to prove that they had
consented to sexual intercourse with the defendant. Id. at 1221 (holding that
the subsequent sexual acts “would cast aspersions upon the moral character
of the complainants and do little to prove consent at the relevant time – even
if the victims had engaged in prostitution on other occasions”).
Here, Herron’s proposed evidence was that the day after he had sexual
intercourse with the alleged victim, she had consensual sexual intercourse
with her boyfriend. Unlike in Killen, this sexual conduct happened the next
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day and was not part of an ongoing episode. Like in Jones and Rogers, it
does little to show whether she consented to the sexual activity that was
subject to trial. As the Rape Shield Law prohibited precisely the evidence that
Herron sought to admit, and the trial court determined that the evidence’s
prejudicial impact far outweighed its probative value, we cannot say that the
trial court abused its discretion in denying Herron’s motion.
D. Legality of Sentence
Herron challenges his “second strike” minimum sentence under 42
Pa.C.S.A. § 9714. Herron’s Brief at 20–23. He argues that his prior conviction
from North Carolina for breaking and entering is not a “crime of violence” that
requires a ten-year minimum sentence. Because this is a question of law, we
review it de novo. Commonwealth v. Johnson, 241 A.3d 398, 405 (Pa.
Super. 2020).
By statute:
Any person who is convicted in any court of this Commonwealth
of a crime of violence shall, if at the time of the commission of the
current offense the person had previously been convicted of a
crime of violence, be sentenced to a minimum sentence of at least
ten years of total confinement, notwithstanding any other
provision of this title or other statute to the contrary.
42 Pa.C.S.A. § 9714(a)(1). The definition of “crime of violence” includes, inter
alia, “sexual assault,” “burglary as defined in 18 Pa.C.S.A. § 3502(a)(1)
(relating to burglary),” “or an equivalent crime in another jurisdiction.”
We have explained that
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to determine whether a foreign offense qualifies as a prior “crime
of violence” under § 9714, we consider “the elements of the
foreign offense in terms of classification of the conduct proscribed,
its definition of the offense, and the requirements for culpability.”
Commonwealth v. Northrip, 985 A.2d 734, 740 (Pa. 2009)
(quoting Commonwealth v. Shaw, 744 A.2d 739, 743 (Pa.
2000) (internal quotation marks omitted)). “The focus is not on
the facts underlying the conviction, but rather on the statute that
triggered the conviction.” Id. at 741. Additionally, underlying
public policy behind the two criminal statutes is relevant to our
analysis, though not controlling. Commonwealth v. Ward, 856
A.2d 1273, 1277 (Pa. Super. 2004). Importantly, “the offenses
do not identically have to mirror each other, but must be
substantially equivalent to invoke operation of 42 Pa.C.S. § 9714.”
Id.
Johnson, 241 A.3d at 405–06 (citation formatting altered).
Here, the North Carolina statute under which Herron had been convicted
provides: “Any person who breaks or enters any building with intent to commit
any felony or larceny therein shall be punished as a Class H felon.” N.C. Gen.
Stat. § 14-54(a).4 Our task is to determine if this is “substantially equivalent”
to a crime of violence listed under 42 Pa.C.S.A. § 9714(g).
Pennsylvania’s burglary statute provides:
(a) Offense defined.--A person commits the offense of burglary
if, with the intent to commit a crime therein, the person:
(1) (i) enters a building or occupied structure, or separately
secured or occupied portion thereof, that is adapted for
overnight accommodations in which at the time of the offense
any person is present and the person commits, attempts or
threatens to commit a bodily injury crime therein;
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4“[B]reaking and/or entering, which is a Class H felony, [] carries a maximum
punishment of up to 39 months in prison.” State v. Lindsey, 843 S.E.2d
322, 326 (N.C. Ct. App. 2020); see N.C. Gen. Stat. § 15A-1340.17
(prescribing punishment limits).
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(ii) enters a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for
overnight accommodations in which at the time of the offense
any person is present;
(2) enters a building or occupied structure, or separately secured
or occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense no person is
present;
(3) enters a building or occupied structure, or separately secured
or occupied portion thereof that is not adapted for overnight
accommodations in which at the time of the offense any person is
present; or
(4) enters a building or occupied structure, or separately secured
or occupied portion thereof that is not adapted for overnight
accommodations in which at the time of the offense no person is
present.
18 Pa.C.S.A. § 3502(a).
Importantly, Section 9714(g) limits the definition of burglary as a “crime
of violence” to burglary as defined in Section 3502(a)(1), which requires a
person to be present at the time of the burglary. The North Carolina statute
under which Herron was convicted does not contain this requirement.5 N.C.
Gen. Stat. § 14-54(c) (defining “building” to include “uninhabited house”).
The Commonwealth placed on the record at sentencing that a person
was in the building that Herron entered in North Carolina. N.T., Sentencing,
9/1/21, at 4. However, we focus on the actual statute under which a
defendant was convicted rather than the underlying facts. Johnson, 241 A.3d
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5 In contrast, North Carolina defines first-degree burglary to require the
building entered to be “actually occupied at the time of the offense.” State
v. Singletary, 472 S.E.2d 895, 899 (N.C. 1996); see N.C. Gen. Stat. § 14-
51.
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at 405 (quoting Northrip, 985 A.2d at 741).6 Herron’s prior North Carolina
conviction was for a crime that did not require proof that another person was
present; based on the statutory language, it was not a “crime of violence”
under Section 9714(g). Therefore, Herron did not qualify for an enhanced
sentence under Section 9714(a)(1). Accordingly, we vacate his sentence and
remand for resentencing.
III. Conclusion
Conviction affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:07/05/2022
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6 A prior version of Section 9714(g) specifically listed “burglary of a structure
adapted for overnight accommodation in which at the time of the offense any
person is present,” and our Supreme Court thus concluded “that with respect
to all crimes except burglary, the focus is on the crime for which the defendant
was convicted, not the factual scenario underlying that crime.” Northrip, 985
A.2d at 741. The General Assembly later amended both statutes; now,
Section 9714(g)’s definition of “crime of violence” specifies a subsection of the
burglary statute. We thus conclude that Northrip’s general rule to focus on
the crime rather than the factual scenario also applies in determining if a
foreign statute is the equivalent of burglary as defined in Section 3502(a)(1).
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