Com. v. Rini, K.

J-S36022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KELLI NORMAN RINI, JR. :
:
Appellant : No. 969 WDA 2021
Appeal from the Judgment of Sentence Entered June 29, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004229-2020
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: NOVEMBER 16, 2022
Appellant, Kelli Norman Rini, Jr., appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his bench
trial conviction for indecent assault.1 We affirm.
In its opinion, the trial court set forth the relevant facts of this case as
follows:
On February 8, 2020, the victim in this case and her friend
went out for a night of drinking in Pittsburgh, Pennsylvania.
The victim and her friend became intoxicated. The victim
called Uber to obtain a ride home. The Uber driver arrived
to pick them up and began driving the victim and her friend
to the victim’s residence. The Uber driver was [Appellant].
During the ride home, the victim and her friend began
arguing. [Appellant] stopped the vehicle and ordered the
victim’s friend to exit the vehicle. [Appellant] drove the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3126(a)(4).
J-S36022-22
victim to her residence. Upon arriving at her residence, the
victim realized she left her apartment keys in her vehicle
which she left behind at the drinking establishment.
[Appellant] ended the Uber ride but took the victim back to
her vehicle to obtain her apartment keys. [Appellant] then
transported the victim back to her residence. At
approximately 6:15 a.m., the victim and [Appellant] arrived
at her apartment. [Appellant] escorted her into the
apartment and the victim realized she left her phone in
[Appellant’s] vehicle. [Appellant] offered to retrieve the
phone. The victim gave [Appellant] her apartment keys so
[Appellant] could get back into her apartment after
retrieving the phone. [Appellant] retrieved the phone and
came back into the victim’s apartment.
The victim testified that upon entering her apartment, she
went to bed. She believed she passed out. She awoke to
[Appellant] using a vibrator on her genital area. She was
wearing underwear but [Appellant] had pulled the
underwear to the side and had partially inserted the vibrator
past her labia and it was forcefully pressing against her
clitoris. It took the victim a few seconds to realize what had
occurred and she immediately told [Appellant] to stop. She
did not know if [Appellant] left right away but she was lying
on her bed in a fetal position wearing nothing but a shirt and
panties.
When the victim woke up the next morning, [Appellant] sent
her a text message advising that he still had her apartment
keys and her work badge. The victim sent [Appellant] a text
message accusing him of touching her while she was asleep.
[Appellant] responded by admitting that he touched her. He
further admitted he was “totally wrong” and he apologized
for touching her. The victim called the police and charges
were filed against [Appellant].
(Trial Court Opinion, filed 1/18/22, at 2-3) (internal footnote omitted).
Procedurally, following a bench trial, the court convicted Appellant of
indecent assault—person unconscious. The court sentenced Appellant on June
29, 2021, to 9 to 18 months’ imprisonment, plus three years’ probation.
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J-S36022-22
Appellant timely filed post-sentence motions on July 9, 2021, which the court
denied on July 27, 2021. Appellant filed a timely notice of appeal on August
19, 2021. That same day, the court ordered Appellant to file a concise
statement of errors complained of on appeal per Pa.R.A.P. 1925(b), and
Appellant complied following the grant of an extension of time.
Appellant raises three issues for our review:
Was the verdict against the sufficiency of the evidence?
Was the verdict against the weight of the evidence?
Did the court abuse its discretion at sentencing by elevating
Appellant to “a position of care?”
(Appellant’s Brief at 2).
After a thorough review of the record, the briefs of the parties, and the
relevant law, we conclude that the trial court properly addressed and disposed
of Appellant’s first and second issues in its opinion. The trial court explained
that the victim did not unequivocally consent to the indecent contact by
Appellant, and there was sufficient evidence to demonstrate that the victim
was unaware that she was being touched by Appellant in the manner she
described at trial. Upon realizing that Appellant was touching her, the victim
told Appellant to stop. Appellant admitted that he touched the victim and
apologized the next day for having touched her. The court found the victim’s
trial testimony credible. More specifically, the court indicated that the
evidence showed Appellant touched the victim’s genitals with a vibrator while
she was unaware that conduct was occurring, and the obvious purpose of the
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J-S36022-22
touching was to arouse or sexually gratify Appellant or the victim. Further,
the court indicated that the Commonwealth produced credible, competent,
and reliable evidence to establish each element of the indecent assault
subsection at issue. The court did not find the verdict to shock any rational
sense of justice such that it was against the weight of the evidence. (See
Trial Court Opinion at 3-7). We agree with the court’s sound analysis and
affirm Appellant’s first and second issues based on the trial court’s opinion.
In his third issue, Appellant challenges the discretionary aspects of his
sentence. Preliminarily, we observe that challenges to the discretionary
aspects of sentencing do not entitle an appellant to an appeal as of right.
Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super. 2003). 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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by, inter alia, including in his
brief a separate concise statement demonstrating that there is a substantial
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question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617,
621-22 (2002); Pa.R.A.P. 2119(f). “The determination of what constitutes a
substantial question must be evaluated on a case-by-case basis.” Anderson,
supra at 1013. A substantial question exists “only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999)
(en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001).
Instantly, Appellant did not include the requisite Rule 2119(f) statement
in his appellate brief. The Commonwealth objects to this deficiency. (See
Commonwealth’s Brief at 9, 19). Appellant’s failure to include the Rule
2119(f) statement renders his sentencing challenge waived on appeal. See
Commonwealth v. Griffin, 149 A.3d 349 (Pa.Super. 2016), aff’d, 652 Pa.
127, 207 A.3d 827 (2019) (stating if appellant fails to include Rule 2119(f)
statement and Commonwealth objects, appellant has waived discretionary
aspects of sentencing challenge). Accordingly, we affirm.
Judgment of sentence affirmed.
Judge Stabile joins this memorandum.
Judge Colins notes his dissent.
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J-S36022-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2022
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Circulated 11/03/2022 10:20 AM
Allegheny County - Department of Court Records
Criminal Division -Filings Information
County caseID:CP-02-CR-0004229-2020(OPINION)
Case Description: COMMONWEALTH OF PENNSYLVANIA v. LNAME RINI
Official Docket Entry, Sort By Document Number Ascending
Document Title/Entry Filing Date
Number
1 OPINION 01/18/2022
(Index Page- 1)
I - OPINION
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
uHIGINAL
!.';riminal Division
COMMONWEALTH OF PENNSYLVANIA ;ear, O₹ Court Records
1i-•r141 i1V ominty, PA
,
VS. CC No. 2020-04229
KELLY NORMAN RINI
Defendant.
OPINION
Mariani, J.
This is adirect appeal wherein the defendant, Kelly Norman Rini, appeals from
the judgment of sentence of June 29, 2021 which became final on July 27, 2021 when
post-sentencing motions were denied. Germane to this appeal, after anon-jury trial, this
Court found the defendant guilty of Indecent Assault and not guilty of Involuntary
Deviate Sexual Intercourse. This Court sentenced the defendant to a period of
incarceration of not less than nine months nor more than 18 months followed by aterm of
three years' probation. The defendant challenges the convictions as set forth in the
Concise Statement of Matters Complainted of on Appeal alleging that the evidence was
legally insufficient to convict him, the verdict was against the weight of the evidence and
that this Court's sentence was manifestly excessive.
The facts of record adduced in this case are as follows:
On February 8, 2020, the victim in this case and her friend went out for anight of
drinking in Pittsburgh, Pennsylvania. The victim and her friend became intoxicated. The
victim called Uber to obtain aride home'. The Uber driver arrived to pick them up and
began driving the victim and her friend to the victim's residence. The Uber driver was
the defendant. During the ride home, the victim and her friend began arguing. The
defendant stopped the vehicle and ordered the victim's friend to exit the vehicle. The
defendant drove the victim to her residence. Upon arriving at her residence, the victim
realized she left her apartment keys in her vehicle which she left behind at the drinking
establishment. The defendant ended the Uber ride but took the victim back to her
vehicle to obtain her apartment keys. The defendant then transported the victim back to
her residence. At approximately 6:15 a.m., the victim and the defendant arrived at her
apartment. The defendant escorted her into the apartment and the victim realized she left
her phone in the defendant's vehicle. The defendant offered to retrieve the phone. The
victim gave the defendant her apartment keys so the defendant could get back into her
apartment after retrieving the phone. The defendant retrieved the phone and came back
into the victim's apartment.
The victim testified that upon entering her apartment, she went to bed. She
believed she passed out. She awoke to the defendant using avibrator on her genital area.
She was wearing underwear but the defendant had pulled the underwear to the side and
had partially inserted the vibrator past her labia and it was forcefully pressing against her
clitoris. It took the victim a few seconds to realize what had occurred and she
1 Uber is aprivate taxi service.
2
immediately told the defendant to stop. She did not know if the defendant left right away
but she was lying on her bed in afetal position wearing nothing but ashirt and panties.
When the victim woke up the next morning, the defendant sent her atext message
advising that he still had her apartment keys and her work badge. The victim sent the
defendant a text message accusing him of touching her while she was asleep. The
defendant responded by admitting that he touched her. He further admitted he was
"totally wrong" and he apologized for touching her. The victim called the police and
charges were filed against the defendant.
The defendant first claims that the evidence was legally insufficient to convict
him. The standard of review for sufficiency of the evidence claims is well settled:
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 adefendant's guilt may be
resolved by the fact-finder unless the evidence is so weak
and inconclusive that as amatter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proof [ofJ
proving every element of the crime beyond areasonable
doubt by means of wholly circumstantial evidence. More-
over, in applying the above test, the entire record must be
evaluated and all the evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence
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produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003)
Defendant first claims that the evidence was insufficient to convict him of
indecent assault. That offense is set forth in 18 Pa.C.S.A. § 3126:
(a) Offense defined.--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:
(4) the complainant is unconscious or the person
knows that the complainant is unaware that the indecent
contact is occurring;
"Indecent contact" is defined as " any touching of the sexual or other intimate parts of the
person for the purpose of arousing or gratifying sexual desire, in either person." 18
Pa.C.S. § 3101.
This Court finds the testimony of the victim credible. "[TJhe uncorroborated
testimony of asexual assault victim, if believed by the trier of fact, is sufficient to convict
adefendant...." Commonwealth v. Charlton, 2006 PA Super 149, 902 A.2d 554, 562
(Pa. Super. 2006). The victim did not unequivocally consent to the indecent contact of the
defendant and there is sufficient evidence in the record to also demonstrate that the victim
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was unaware that she was being touched by the defendant in the manner she described at
trial. She told the defendant to stop upon realizing she was being touched and the
defendant admitted he touched her and apologized for touching her the next day.
Additionally, the evidence in this case clearly indicates that the defendant had
touched the victim's labia and clitoris with avibrator while the victim was unaware that
such conduct was occurring. The obvious purpose of the touching was to arouse or
gratify sexual desire both in the defendant and in the victim. The implement used to
touch the victim, avibrator, is an object that is used for sexual arousal. This evidence
clearly demonstrates non-consensual indecent sexual contact as described in the statute.
Accordingly, the defendant's conviction for indecent assault should be affirmed.
The defendant next claims that the guilty verdict was contrary to the weight of the
evidence. As forth in Criswell v. King, 834 A.2d 505, 512. (Pa. 2003):
Given the primary role of the jury in determining questions of
credibility and evidentiary weight, the settled but
extraordinary power vested in trial judges to upset ajury
verdict on grounds of evidentiary weight is very narrowly
circumscribed. A new trial is warranted on weight of the
evidence grounds only in truly extraordinary circumstances,
i.e., when the jury's verdict is so contrary to the evidence that
it shocks one's sense of justice and the award of anew trial is
imperative so that right may be given another opportunity to
prevail. The only trial entity capable of vindicating aclaim
that the jury's verdict was contrary to the weight of the
evidence claim is the trial judge -- decidedly not the jury.
5
834 A.2d at 512. Armbruster v. Horowitz, 572 Pa. 1, 813 A.2d 698, 703 (Pa. 2002);
Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1189 (Pa. 1994)). Although
Criswell spoke in terms of ajury verdict, there is no distinction relative to anon jury verdict.
The initial determination regarding the weight of the evidence is for the fact-finder.
Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007). The trier of fact is free
to believe all, some or none of the evidence. Id. A reviewing court is not permitted to
substitute its judgment for that of the fact-finder. Commonwealth v. Small, 741 A.2d 666,
672 (Pa. 1999). A verdict should only be reversed based on aweight claim if that verdict
was so contrary to the evidence as to shock one's sense of justice. Id. See also
Commonwealth v. Habay, 934 A.2d 732, 736-737 (Pa.Super. 2007). Importantly "[a]
motion for a new trial on the grounds that the verdict is contrary to the weight of the
evidence concedes that there is sufficient evidence to sustain the verdict but claims that
``notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny justice." Commonwealth v.
Widmer. 744 A.2d 745 (Pa. 2000)). When the challenge to the weight of the evidence is
predicated on the credibility of trial testimony, appellate review of atrial court's decision
is extremely limited. Unless the evidence is so unreliable and/or contradictory as to make
any verdict based thereon pure conjecture, weight of evidence claims shall be rejected.
Commonwealth v. Rossetti, 2004 PA Super 465, 863 A.2d 1185, 1191 (Pa. Super. 2004).
The fact-finder's rejection of a defendant's version of events or the rejection of an
affirmative defense is within its discretion and not avalid basis for aweight of evidence
attack. Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa.Super. 2011).
6
The defendant's weight claim essentially argues that the sexual contact between the
victim and the defendant was consensual. Inasmuch as the defendant's weight claim
concedes that the evidence was sufficient to convict in this case, the issue of consent was
specifically considered by this Court after assessing the credibility of the victim. Because a
weight of the evidence claim cannot be based solely on achallenge to the Court's credibility
determinations, the defendant's weight claim fails. The trial evidence presented by the
Commonwealth has been recounted herein and was credible, competent and reliable and
established every element of indecent assault. This Court has reviewed the trial record and
believes that the verdict does not shock any rational sense of justice and, therefore, the
verdict was not against the weight of the evidence.
The defendant's final claim is that this Court's sentence was excessive and
unreasonable. A sentencing judge is given agreat deal of discretion in the determination
of asentence, and that sentence will not be disturbed on appeal unless the sentencing
court manifestly abused its discretion." Commonwealth v. Boyer, 856 A2d 149, 153 (Pa.
Super. 2004), citing Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001)
appeal denied, 568 Pa. 695, 796 A.2d 979 (2002); 42 Pa.C.S.A. § 9721. An abuse of
discretion is not amere error of judgment; it involves bias, partiality, prejudice, ill-will,
or manifest unreasonableness. See Commonwealth v. Flores, 921 A.2d 517, 525
(Pa.Super. 2007), citing Commonwealth v. Busanet, 817 A.2d 1060, 1076 (Pa. 2002).
7
Furthermore, the "[s]entencing court has broad discretion in choosing the range of
permissible confinements which best suits aparticular defendant and the circumstances
surrounding his crime." Boyer, supra, quoting Commonwealth v. Moore, 617 A.2d 8, 12
(1992). Discretion is limited, however, by 42 Pa.C.S.A. § 9721(b), which provides that
asentencing court must formulate asentence individualized to that particular case and
that particular defendant. Section 9721(b) provides: "[t]he court shall follow the general
principle that the sentence imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense, as it relates to the impact on the life of
77
the victim and on the community, and the rehabilitative needs of the defendant .
Boyer, supra at 153, citing 42 Pa.C.S.A. § 9721(b). Furthermore,
In imposing sentence, the trial court is required to consider
the particular circumstances of the offense and the character
of the defendant. The trial court should refer to the
defendant's prior criminal record, age, personal
characteristics, and potential for rehabilitation. However,
where the sentencing judge had the benefit of apresentence
investigative report, it will be presumed that he or she was
aware of the relevant information regarding the defendant's
character and weighed those considerations along with
mitigating statutory factors.
Boyer, supra at 154, citing Commonwealth v. Burns, 765 A.2d 1144,1150-1151 (Pa.Super.
2000) (citations omitted).
In fashioning an appropriate sentence, courts must be mindful that the sentencing
guidelines "have no binding effect, in that they do not predominate over individualized
sentencing factors and that they include standardized recommendations, rather than
mandates, for aparticular sentence." Commonwealth v. Walls, 592 Pa. 557, 567, 926 A.2d
8
957, 964 (2007). A sentencing court is, therefore, permitted to impose a sentence
outside the recommended guidelines. If it does so, however, it "must provide awritten
statement setting forth the reasons for the deviation...." Id., 926 A.2d at 963.
A sentencing judge can satisfy the requirement of placing reasons for aparticular
sentence on the record by indicating that he or she has been informed by the pre-
sentencing report; thus properly considering and weighing all relevant factors. Boyer,
supra, citing Burns, supra, citing Commonwealth v. Egan, 451 Pa.Super. 219, 679 A.2d
237 ( 1996). See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (if
sentencing court has benefit of presentence investigation, law expects court was aware of
relevant information regarding defendant's character and weighed those considerations
along with any mitigating factors). In Commonwealth v. Moury_, 992 A.2d 162, 171
(Pa.Super. 2010), the Superior Court explained that where asentencing court imposes a
standard-range sentence with the benefit of apresentence report, areviewing court will
not consider asentence excessive.
The record in this case supports the sentence imposed by this Court. The
sentence imposed by this Court was within the standard range of the sentencing
guidelines. The record reflects that this Court was guided by the presentence report and
that the defendant did not object to the contents of that report. The defendant provided a
presentence statement denying culpability in this matter. This Court considered the fact
that the defendant failed to accept responsibility for his actions in this case. Additionally,
in this Court's view, the defendant, as an Uber driver operating ataxi service, was in a
9
position of care and owed aduty of care to the victim. Rather than honor that duty of
care, the defendant violated the duty of care, entered the apartment of the victim and
indecently assaulted the victim while the victim was unaware of the circumstances. The
defendant was keenly aware of the victim's intoxicated state and took advantage of the
victim's intoxication for his own personal selfish sexual arousal. This Court believed
that astandard range sentence was appropriate.
Defendant finally includes in his concise statement of issues complained of on
appeal a section titled "Intermediate Punishment." There is no claim of error
challenging aruling of this Court included in this section. Accordingly, that section is
not addressed in this opinion.
For the foregoing reasons, the judgment of sentence should be affirmed.
Date: By the Court:
JJWv,Wy
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