In the Interest of: R.A.P., Appeal of: R.A.P.

J-A05033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF R.A.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.A.P. :
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: No. 930 WDA 2019
Appeal from the Dispositional Order Entered March 18, 2019
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-JV-0000309-2018
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 20, 2020
R.A.P., a minor at the time of his offenses, appeals from the dispositional
order entered by the Westmoreland County Court of Common Pleas (juvenile
court) following his adjudication as delinquent on the charges of rape,
involuntary deviate sexual intercourse, aggravated indecent assault, two counts
of sexual assault and three counts of indecent assault.1 We affirm.
I.
This appeal arises from an incident that occurred on April 21, 2018, when
R.A.P. was 17 years old and E.B., the victim, was 16 years old. They both
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3125(a)(1), 3124.1, and 3126,
respectively.
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attended the same high school, and during the summer of 2017, they began
communicating on the messaging platform “Snapchat.”2 E.B. claimed that R.A.P.
then forced her to have vaginal sex and to perform oral sex on him against her
will. R.A.P. claimed that E.B. initiated the consensual sexual encounter, but that
he told her after it was over that he wanted only to be friends and did not want
an ongoing romantic relationship. E.B. then falsely accused him of rape.
Because of the arguments raised by R.A.P., unfortunately, a detailed
description of the evidence adduced at the dependency hearing by the
Commonwealth and R.A.P is necessary.
A.
Mainly through the testimony of E.B and her friends, M.I. and S.G, the
Commonwealth presented the following version of events as confirmed by our
reading of the record.
That testimony revealed that E.B. and R.A.P, although they had frequent
Snapchat communications, met one time before the incident at issue when, after
arranging a date on Snapchat sometime in August of 2017, R.A.P. picked E.B.
up at her home, met her parents and went on a date to a restaurant. After the
date, E.B. stated that they “made out,” only involving kissing in her parents’
driveway but that she rejected his request to have sex. After that date, she did
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2Snapchat messages that are not saved are available for only ten seconds before
they disappear.
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not have any more contact with R.A.P. because he blocked her from his Snapchat
account.
In April 2018, R.A.P unblocked E.B. and they began communicating with
each other solely through Snapchat. Those snaps would occur daily with
frequent back and forth messaging and they discussed meeting again in person.
On the evening of April 21, 2018, E.B. went to a friend’s house and, after
eating dinner, began to feel ill. She told R.A.P. over Snapchat that she was not
feeling well and he offered to pick her up and drive her home. On the ride from
her friend’s house, E.B. texted her mother. (Reproduced Record (R.R.) 82.)3
The text from E.B. to her mother sent at 9:01 p.m. said, “[R.A.P.] is bringing
me home in a little. He wants to come in. What do I say?” (R.R. 53, 216.)
However, her mother responded by messaging at 9:14 p.m: “You say no, my
parents are not home.” Id.
Not getting a reply from her mother, E.B. remained in the car “french
kissing.” When the kissing stopped, R.A.P asked to walk her to the door and she
said no thank you, but he walked her to the door anyway. (R.R.) 81-82.) When
he asked to come in again, E.B. said that no one is home but he persuaded her
to let him the house so he could play an Xbox video game called Fortnite. (R.R.
84.) They went into the living room and as E.B. went to turn on the television
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3 Because no one could recall the exact times of the events, E.B.’s mother’s
cell phone retained these texts from that night. (R.R. at 216, 451.) These
texts were printed out and were placed into evidence to reveal these exact
times.
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and the Xbox game, R.A.P. came up from behind her and began hugging her but
she continued to turn on the video game. (R.R. 87.) R.A.P then took E.B. over
to the couch, pulled E.B. on top of him and they started to kiss.
R.A.P. then started to take off E.B.’s bra but she told him that she didn’t
want to do that and put her arms over her breasts in an X position to cover them
and told him no; but he did not stop, instead flipping her over onto her back and
pulled her leggings down with her underwear. She put her hands in an X position
again covering her breasts and put her kneecaps together in an attempt “to get
him to not touch [her] down there because [she] did not want that.” (R.R. 90-
91.) She testified that he ignored her and put his fingers in her vagina as she
was repeatedly telling him no. As E.B. was telling him to stop, he pulled his
fingers out of her vagina and forcefully put them into her mouth causing her to
gag. After she gagged, R.A.P pulled his fingers from her mouth and got off her.
She told him “that isn’t cool” and he apologized by saying that he was sorry and
did not mean it. (R.R. 92) R.A.P. then left the room, telling her that he was
going upstairs to her bedroom. (Id.)
E.B. then pulled her leggings back up, strapped her bra back on, and then
put on the big jacket she had on earlier in the night because she “didn’t want to
be violated again.” (R.R. 94, 95.) She went upstairs to get R.A.P. out of her
house but when she went into her room, his shirt was off and he pushed her
over the bedpost onto her back. Her upper body was on the bed at an angle,
but from her kneecaps down, she was almost off the bed; her feet were off the
bed and her hands were trapped behind her back almost at her waist.
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R.A.P then pulled her leggings and underwear off again and pulled his
pants down, got on top of her with his penis penetrating her vagina. As this was
occurring, she testified that she was saying stop and no, trying to push her
kneecaps and thighs together to get him to stop. As he penetrated her, E.B.’s
body was moving closer to the edge of the bed. When he pulled out, she flopped
onto her stomach onto the floor of the bedroom with the right side of her face
down on the carpet, her hands behind her back palms facing up. She felt his
penis penetrate her vagina from behind when she was on the floor while she
heard him say “really quick, really quick.” (R.R. 105.) She was squirming and
trying to get up, but her hands were behind her back. She felt his hands around
her waist and lower back. She testified that R.A.P. was getting mad because he
was penetrating her harder and harder.
After he pulled his penis out from her vagina the second time, he was
sitting on the edge of the bed and told her that she was going to make him
“finish”. (R.R. 108-109.) He grabbed her on the left side of her neck and
shoulder as she was saying no repeatedly and he pushed her head down on his
penis. As he was pushing his penis into her mouth, E.B. was attempting to get
free. As E.B. tried to push her head up, R.A.P. was pushing her head down. She
tried to say no but his penis never came out of her mouth until after he
ejaculated. Immediately after he ejaculated, his semen came out of E.B.’s
mouth onto his stomach, and he got really mad at her for not swallowing it. He
told her to clean it up but she grabbed a tissue and gave it to him to clean up.
He cleaned himself off and threw the tissue in the garbage can in her room.
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R.A.P. then told E.B. that “[m]y job here is done” and walked downstairs and
left. (R.R. 112.)
E.B. put her clothes on and heard R.A.P. leave. She immediately ran
downstairs to get her phone from the couch where she put it when she came
home. That is when E.B. saw her mother’s message about not letting R.A.P. into
the house. The time on the text message showed 9:14 pm. E.B. immediately
responded at 9:14 telling her mother that R.A.P. just dropped her off because
she did not want to tell her mother that she was just sexually assaulted. After
responding to her mother’s texts, E.B. immediately called her best friend M.I.
After receiving her phone call, M.I and her boyfriend, S.G., drove to E.B.’s
house arriving within 15 minutes after E.B.’s call. Both observed that E.B. was
crying so hard that she could not speak and got in the back of S.G.’s car while
M.I. got out and sat in the back seat with her. They then took her to a Dunkin
Donuts where she told them what happened. After M.I. sent R.A.P a Snapchat
telling him to stay away from E.B. or she will call the police, R.A. P. then blocked
M.I. R.A.P. then sent the following Snapchat message directly to E.B., witnessed
by both S.G. and M.I.:
I’m sorry for putting you through everything I’ve done to u and using
and playing u. I feel bad but you are a great person but like every
time we do stuff it just makes me feel wrog for doing it cuz ik I’m
using u. I fucked up. Okay did I thing I was going to do more with
you after tonight? Yes I honestly did and I think we can be friends
but I don’t wanna use u basicly like I did tonihht so I’m sorry for
hurting u physically and mentally but I’d rather be friends and no do
anytbing and I’m sorry for everything tonihht I was just being a
horny fuck and wasn’t using my head, but we can’t change the past
but we can make the future a better place for us. I will honestly
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from the bottom of my heart never lay a hand on you again and
never use u or try to because ik I fucked up big time.
I can’t express how bad I feel.
Why am I dumb shit [(two frowny face emoticons.)] Plse talk back
so we can work things out between us no one else just me and u
E.B.
(Commonwealth’s Exhibits 2A, 2B, Snapchat message sent to E.B. from R.A.P.,
4/21/18, at 10:27 p.m.).
When R.A.P. sent this message to E.B., M.I. used her personal cell phone
to take pictures of this Snapchat message. Upon seeing this message, S.G.
testified that he was so upset that he got R.A.P.’s address, stopped for gas, and
drove to R.A.P.’s house to confront and fight him. S.G. was not told to go but
did so on his own, with both M.I. and E.B. in the car. S.G. drove to R.A.P.’s
house, knocked on his door and attempted to Snapchat R.A.P. to come out of
his house and give his version. The lights were on in R.A.P.’s house and the
window blind moved, but nobody came out. After ten minutes of waiting, S.G.
got back in his car and drove E.B. back to her home. On the way, he and M.I.
tried to persuade E.B. to tell her mom what happened.
E.B. texted her mom at approximately 11:09 p.m. saying she was on her
way home from being out with M.I. and S.G. S.G. and M.I. dropped E.B. off at
her house and left. No one was home when E.B. arrived so she went to bed.
The morning of April 22, 2019, E.B. woke up to a text from M.I. telling her not
to shower and tell her parents what happened. E.B. then went to her parents
and told them what happened while her brother was out of the room. E.B.’s
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parents called 911 who dispatched Officer Robert Kwaitkowski from the Manor
Borough Police Department to their house. E.B. then went to the hospital with
her mother where she was examined.
B.
R.A.P. presented the following version of events that our reading of the
record supports as to what he testified and others testified in his presentation of
the case. R.A.P. recounted a much different version of what occurred in
apparently the only two “live” encounters between them.
R.A.P. agreed that his relationship with E.B. started after the two began to
communicate back and forth via Snapchat and that in August 2017, they went
out to dinner. After dinner, E.B. brought up their having sex and they went to
his parent’s basement and had oral and anal intercourse. E.B. snapchatted
R.A.P. afterwards that she had a fun time, but R.A.P. told E.B. that he was not
interested in having a romantic relationship with her and as a result discontinued
further communication with E.B. through Snapchat.
Two other classmates stated that both R.A.P. and E.B. confirmed that they
had sex. G.P. testified that R.A.P. told him he had sex with E.B. sometime in
2017. He later became friends with E.B. and asked her if what R.A.P. told him
was true, and E.B. responded that it was true and that the sex they had occurred
in R.A.P.’s basement in 2017. B.G., who was friends with both E.B. and R.A.P.,
testified that after E.B. alleged that R.A.P. raped her, E.B. admitted to having
sex with R.A.P. in August 2017. B.G. also stated that E.B. asked him to obtain
a package of condoms and that B.G. had, in fact, obtained the condoms for her.
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On April 16, 2018, E.B. re-initiated contact with R.A.P., and from that date
through April 21, 2018, E.B. and R.A.P. were in constant contact. On April 21,
2019, E.B. and R.A.P. Snapchatted each other back and forth for hours on end.
R.A.P. was returning to his home from a college visit with his parents in upstate
New York and E.B. snapped that she was with some friends at a friend’s house
and the girls were eating pizza and each using their phones. He testified that
E.B. eventually messaged him that she wanted to get away from her friends and
get together with him and that she messaged R.A.P. the address where he should
pick her up.
After picking E.B. up from her friend’s house a little after 8:00 p.m., the
two went to E.B.’s home. When they arrived at E.B.’s residence, they proceeded
to the first-floor family room where R.A.P. removed his shoes and proceeded to
attempt to play games on the Xbox before E.B. stated that they could be doing
something better. The two then began kissing and R.A.P. unhooked E.B.’s bra
and fondled her breasts, all with E.B.’s consent. R.A.P. then removed E.B.’s
yoga pants and touched her vagina with his fingers, again with E.B.’s consent,
and E.B. then led him upstairs to her bedroom. They removed each other’s
clothes and R.A.P. lied back on E.B.’s bed while she performed oral sex on him.
At one point, R.A.P. testified that he put his hand on the back of E.B.’s
head and pushed her down onto his penis but that E.B. resisted and R.A.P. then
withdrew his hand. Eventually, R.A.P. ejaculated in E.B.’s mouth and E.B. spit
R.A.P.’s semen out onto his stomach and chest. E.B. then got a tissue and R.A.P.
cleaned the semen off. R.A.P. explained that after he had ejaculated, E.B. still
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wanted him to perform vaginal sex and E.B. produced a condom for him to put
on. While R.A.P. was able to put the condom on his penis, he was unable to
achieve a sufficient erection to perform vaginal sex.
The two then got dressed. E.B. told R.A.P. to take the condom with him
so her parents would not find out. They then proceeded downstairs and turned
the television on and R.A.P. played on the Xbox for about a half an hour. While
downstairs, R.A.P. told E.B. that he only wanted to be friends; E.B., however,
took what he said as a joke.
E.B. then told R.A.P. her family was returning shortly and he departed the
residence. On the way home, R.A.P. reiterated to E.B. via Snapchat that he was
serious about not wanting a relationship with her and only wanting to be friends.
E.B. did not respond.
Later, however, E.B. Snapchatted R.A.P. that she was going to ruin his life
by claiming that he had raped her because he had used her. R.A.P. testified that
he then apologized for using her for sex a second time and for in any way hurting
her by placing his hand on the back of her head while she performed oral sex on
him. At that point, however, E.B. had gotten her friends involved and her
allegations against R.A.P. persisted. R.A.P. then told his mother what happened.
She instructed him not to respond via Snapchat any further.
C.
Officer Kwaitkowski testified that when he arrived to obtain the basic
information as to what happened, he advised E.B. to go to the hospital where a
“rape kit” was done. Dr. Heather Walker, the trauma physician who conducted
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the sexual examination of E.B., described that although there were no cervical
wounds or abrasions in the pelvic examination, there was injury referred to as
“mild tenderness to the left upper lateral chest and anterior left shoulder and
lateral neck area” in the physical examination. Dr. Walker also testified that she
found no physical evidence of scratches or redness to E.B.’s body nor any
evidence of rug burns to E.B.’s face or any other part of her body.
After the rape kit was collected, Officer Kwaitkowski asked for assistance
in this investigation by the Westmoreland County Detective Bureau. Detective
John Mandarino assisted Officer Kwaitkowski in obtaining the physical evidence
and statements from R.A.P.
On May 3, 2018, R.A.P., accompanied by his parents, arrived at the Manor
Police Station, and Detective Mandarino advised him of his Miranda rights and
signed a waiver of his rights. R.A.P. gave a verbal statement to the officers
acknowledging that he knew he was there because E.B. was accusing him of
rape.
In his interview, R.A.P. conceded that oral and vaginal sex occurred but
stated that it was consensual. When he finished his verbal version of events,
Detective Mandarino confronted R.A.P. with his Snapchat message to E.B. on the
night of the assault. R.A.P. admitted that he mentally hurt E.B. because he was
using her for sex and did not respect E.B. that night. He testified that vaginal
sex occurred after the oral sex in which he ejaculated and he could not get a
condom on afterward because he could not get an erection. He told Detective
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Mandarino he tried a “few times” to have vaginal sex, but gave up playing video
games instead.
Based on the testimony, the juvenile court adjudicated R.A.P. delinquent
of the above-mentioned charges. The court ordered R.A.P. to serve a term of
probation on home electronic monitoring until further order of court, subject to
a three-month review. Following oral argument, the juvenile court denied
R.A.P.’s post-disposition motion. R.A.P. timely appealed and he and the juvenile
court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).
II.
R.A.P. challenges the sufficiency of the evidence supporting his
delinquency adjudication, arguing that he presented compelling evidence that
he engaged in consensual sexual activity with E.B.4 (See R.A.P.’s Brief, at 6,
30, 34).5 We review a challenge to the sufficiency of the evidence under the
following, well-settled standard of review:
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4 In the crimes that he was adjudicated delinquent—rape, involuntary deviate
sexual intercourse, aggravated indecent assault, sexual assault, indecent
assault—requires that the sexual act be done either by “forcible compulsion” or
without consent. Forcible compulsion is defined as “[c]ompulsion by use of
physical, intellectual, moral, emotional or psychological force, either express or
implied . . . that compels a person to engage in sexual intercourse against the
person’s will.” 18 Pa.C.S. § 3101.
5 “When a juvenile is charged with an act that would constitute a crime if
committed by an adult, the Commonwealth must establish the elements of the
crime by proof beyond a reasonable doubt. When considering a challenge to the
sufficiency of the evidence following an adjudication of delinquency, we must
review the entire record and view the evidence in the light most favorable to the
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A challenge to the sufficiency of the evidence is a question of
law, subject to plenary review. When reviewing a sufficiency of the
evidence claim, the appellate court must review all of the evidence
and all reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. The Commonwealth need not
preclude every possibility of innocence or establish the defendant’s
guilt to a mathematical certainty. Finally, the trier of fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005) (citations
and quotation marks omitted).6
R.A.P. contends that the evidence is not sufficient for the juvenile court to
adjudicate him delinquent of the charged crimes because the evidence does not
support such a finding as a matter of law. In making this argument, he combines
two separate principles on which we should reverse the trial court’s decision as
a matter of law.
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Commonwealth.” In re V.C., 66 A.3d 341, 348 (Pa. Super. 2013), appeal
denied, 80 A.3d 778 (Pa. 2013) (citation omitted).
6 We note that the uncorroborated testimony of a rape victim, if believed, is
sufficient to support a rape conviction and no medical testimony is needed to
corroborate a victim’s testimony if the testimony is accepted as credible by the
jury. See Commonwealth v. Gabrielson, 536 A.2d 401 (Pa. Super. 1988).
This holding is required by 18 Pa.C.S. § 3106, which provides “The credibility of
a complainant of an offense under this chapter shall be determined by the same
standard as is the credibility of a complainant of any other crime. The testimony
of a complainant need not be corroborated in prosecutions under this chapter.
No instructions shall be given cautioning the jury to view the complainant’s
testimony in any other way than that in which all complainants’ testimony is
viewed.”
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A.
One of the principles that R.A.P. advances that allows us to find the
evidence sufficient is the doctrine of equipoise. This doctrine is based on the
premise that “[w]hen two equally reasonable and mutually inconsistent
inferences can be drawn from the same set of circumstances, a jury must not
be permitted to guess which inference it will adopt, especially when one of the
two guesses may result in depriving a defendant of his life or his liberty.”
Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946).
In contending that doctrine of equipoise applies to this case, R.A.P. relies
on In re JB, 189 A.3d 390 (Pa. 2018), a case that deals with what inferences
can be drawn from proven facts. That case involved J.B. and an 11-year-old
male child who lived with his father, his father’s fiancée (K.M.H.), and K.M.H.’s
daughters, aged four and seven. He was adjudicated to have committed the
homicide of K.M.H and K.M.H.’s unborn child. All of the evidence against J.B.
was circumstantial.
It was established that on the morning of the murder, after J.B.’s father
had gone to work, J.B. and K.M.H’s seven-year-old daughter left the house to
board their school bus at 8:15 a.m. Workers arrived at the house at 9 a.m. and
discovered K.M.H.’s four-year-old crying and K.M.H. apparently dead of a
shotgun wound to the neck. There was testimony that J.B. and his father were
hunters, and that J.B. kept guns, including the shotgun that killed K.M.H., in his
room. J.B’s clothes and hands tested positive for what appeared to be recently
deposited gunshot residue and there were no bloodstains. When tested, J.B.’s
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father’s hands and clothes were residue-free. A shell casing that appeared to
be the shell that was used to kill K.M.H. was found in the driveway, but it lacked
either fingerprints or DNA evidence. Other potential suspects included K.M.H.’s
former boyfriend, who was subject to a protection from abuse order and had
made death threats to K.M.H. as recently as the previous evening. J.B. also
testified that when he was leaving for school, there was a black van he did not
recognize parked in the driveway, a fact no other evidence corroborated.
Reversing the juvenile court and this Court, notwithstanding the
deferential standard of review given to factual findings, our Supreme Court held
there is an exception where “the entire body of evidence introduced at trial which
furnished the basis for an appellant’s conviction is so deficient that it does not
reasonably support a finding of guilt beyond a reasonable doubt, as a matter of
law.” Id. at 409. In other words, there may be cases where “the trial evidence
equally supported two reasonable but diametrically opposed ultimate inferences:
one that the defendant committed the murder, and the second that he did not
commit the murder.” Id. “[I]n those atypical situations, our Court has
consistently held that we are not bound by the factual findings and credibility
determinations rendered by the finder of fact, and we are compelled in such
circumstances to reverse a legally erroneous conviction.” Id.
Our Supreme Court discussed what could be discerned from the found
evidence and concluded, at most, that it supported two equal but fundamentally
inconsistent inferences. Id. at 411. The Court explained that the coroner could
not fix the exact time of death and provided only a range of times based on rigor
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mortis, nor prove that the defendant was with the deceased at the time of death.
Id. Moreover, even if the defendant was with the deceased at or near the time
of death, this fact alone did not support an inference of murder; “it merely raised
a conjectural suspicion which was in and of itself insufficient to convict.” Id.
While, as R.A.P. suggests, we can reverse a juvenile adjudication
delinquency where the found evidence allows two equal but inconsistent
inferences does not mean just because we have two different versions of events
that we can reverse. Once the factfinder accepts one version of events, that is
the only found evidence from which inferences can be drawn. Once the juvenile
court found E.B.’s testimony to be credible, her testimony is the only relevant
testimony in determining whether there is sufficient evidence to sustain the
conviction beyond a reasonable doubt. Simply, the doctrine of equipoise does
not apply.
B.
The other basis that R.A.P. contends that we can reverse is the
contradictions, inconsistencies and irreconcilable conflicts inherent within the
Commonwealth’s case that makes it so unreliable that it does not support, as a
matter of law, a finding of guilt beyond a reasonable doubt. The legal
underpinning of this argument flows from our Supreme Court’s decision in
Commonwealth v. Farquharson, 354 A2d. 545 (Pa. 1976), where it noted
that although credibility determinations and weighing of the evidence are for the
factfinder and an appellate court will not re-weigh the evidence, there is also a
principle that provides “that a verdict of guilt may not be based upon surmise or
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conjecture.” Id. at 550. It found that “where the evidence offered to support
the verdict of guilt is so unreliable and/or contradictory as to make any verdict
based thereon pure conjecture, a jury may not be permitted to return such a
finding.” Id. In such a situation, the evidence would be insufficient to support
the verdict.
In Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), our Supreme
Court applied this principle and concluded that the testimony of the complainant
was so contradictory and unreliable that it was incapable of supporting a guilty
verdict and, thus, the evidence entered by the Commonwealth was insufficient
as a matter of law to support the verdict. See id. at 1172. In Karkaria, the
adolescent complainant alleged that her stepbrother raped her regularly
between April 9, 1984, and September 19, 1984, while he was acting as her
babysitter. See id. at 1167-68. The Supreme Court found the complainant’s
testimony was “riddled with critical inconsistences” and was so unreliable that it
was insufficient as a matter of law to support the verdict. Id. at 1171-72.
Our Supreme Court went on to find the complainant’s testimony unreliable
because (1) the rape allegations suggested the complainant had an ulterior
motive because they coincided with the pending reconciliation between the
complainant’s mother and stepfather, whom the victim disliked; (2) the
complainant’s description of the sexual assaults were “disturbingly vague” and
she proffered only one factual scenario to describe the allegedly numerous
assaults; and (3) the uncontroverted evidence contradicted the complainant’s
testimony regarding the timing of the assault, as she alleged the assaults only
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happened when the defendant was babysitting her, but she admitted, and others
testified, that the defendant no longer babysat the complainant and was rarely
at the family home at the time the alleged assaults occurred. See id. at 1171.
However, just because there are inconsistencies does not necessarily make
testimony unreliable; it must be so pervasive that it makes it impossible for the
factfinder to arrive at a verdict to be based on other than surmise or conjecture.
Moreover, the inconsistencies must be material, not related collateral matters,
to make the evidence so unreliable that the factfinder cannot arrive at a verdict
beyond a reasonable doubt as a matter of law. In this case, R.A.P. alleges the
following makes E.B.’s testimony so inconsistent that as a matter of law it cannot
support the verdict.
a. The testimony regarding whether they engaged
in intercourse in 2017.
R.A.P. essentially contends that the juvenile court erred when it did not
accept that he and E.B. had engaged in sexual intercourse when they went out
on a date in August 2017 because E.B.’s denial is contradicted by other witnesses
who testified that E.B. admitted that she engaged in sexual intercourse with
R.A.P. on that date. R.A.P. points to G.P.’s testimony that R.A.P. told him
sometime in 2017 that he had intercourse with E.B. When G.P. asked E.B.
whether what R.A.P. had told him was true, E.B. admitted that they had sex in
the basement of R.A.P.’s home. He also points to B.G.’s testimony that stated
that after E.B. alleged that R.A.P. raped her in April 2018, he asked her whether
they ever had sex before that day and E.B. admitted to him that they had.
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R.A.P. contends that reasonable doubt was raised because E.B. was not
telling the truth regarding a sexual encounter that she allegedly had with him
eight months before the incident in question, which calls into question her
version of the events on April 18, 2018.
What that argument ignores is that there is no inconsistency in her
testimony because the juvenile court found E.B.’s testimony credible that she
did not have sex with R.A.P. in August 2018.
The contradiction between the accounts of [B.G.] and [E.P.], on one
hand, and [E.B.], on the other, about the prior sexual activity, does
not prove that [E.B.] lied. [B.G.] and [E.P.], like [R.A.P.], are both
male athletes and have known [R.A.P.] longer than they have known
[E.B.]. Both described themselves as friends of R.A.P. Both were
called as witnesses by R.A.P. Based on those relationships and the
general demeanor of all three witnesses during the hearing, the
Court gave more credence to the testimony of E.B.
(Juvenile Court Opinion, 5/22/19, at 9) (record citations and footnote omitted.)
What R.A.P. is really saying, though, is that the trial court should have
accepted B.G. and E.P.’s testimony over that of E.B. in this regard. However,
that ignores that credibility determinations are for the factfinder, not the
appellate court on review. As the juvenile court noted, “A mere conflict in the
testimony does not render the evidence insufficient because it is within the
province of the fact finder to determine the weight to be given to the testimony
and to believe all, part, or none of the evidence.” Commonwealth v. Walter,
849 A.2d 265, 267 (Pa. Super. 2004).
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b. That E.B. obtained and supplied condoms
on the evening in question.
R.A.P. contends that the juvenile court erred in accepting E.B.’s denial of
supplying the condoms for their encounter in the bedroom that night and the
denial that she ever had condoms in her room, as well as denying that B.G. had
ever given her condoms at her request very shortly before that evening.
B.G. testified prior to April 2018 that E.B. asked him to get her condoms
and that he supplied them to her. R.A.P. argues the fact that E.B. obtaining
condoms prior to her encounter with R.A.P. is affirmative evidence that E.B. was
anticipating having consensual, sexual relations with R.A.P., and that what
happened in her home on the night of April 21, 2018, was not non-consensual,
forcible rape.
He argues that the reasons given by the court for it to credit E.B.’s
testimony that she did not receive condoms by the general demeanor of the
witnesses, the fact that B.G. knew R.A.P. longer, that B.G. and R.A.P. were male
athletes, and that R.A.P. called B.G. to the stand as reasons not to credit his
testimony over E.B.’s denials are highly suspect because B.G. was a wrestler,
not a hockey player, and the fact that he was summoned by the defense are
improper reasons on their face to discredit his testimony.
Again, while R.A.P. believes that the juvenile court should have credited
B.G. and himself ignores that it is for the juvenile court, as factfinder, “to
determine the weight to be given to the testimony and to believe all, part, or
none of the evidence.” Id.- 20 -
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c. Who initiated contact in 2018?
E.B. denied that she reinitiated the Snapchat conversations with R.A.P. in
2018. R.A.P. contends that he produced evidence that showed she was the one
who reached out to him first. He contends that even though they never spoke
at school, this purported inconsistency shows that E.B. wanted to have a
relationship with him. However, even if material, what R.A.P. ignores is that he
never established an inconsistency because he never proved her assertion
untrue. As the juvenile court stated in addressing who initiated contact:
[R.A.P.] next asserts that [E.B.] lied when she testified that it
was R.A.P who sent a friend request to her on SnapChat, about a
week before the incident. However, he never proved that that was
untrue and that it was her who initiated contact with him. In support
of his contention, he referred to Defendant’s Exhibit “A.” This exhibit
represented a printout of a SnapChat text message from [R.E.P.] to
a friend, Nina, containing a screen shot. The screen shot was of a
SnapChat Menu, supposedly from [R.A.P.’s] phone, with [E.B.’s]
name on it, under the heading “Added Me.” (Ex. A.) In the Exhibit,
[R.A.P.] has forwarded the screen shot to Nina, with the message
“WTF I wanna know why she added me.” (Id.) It was not only
difficult for a layman to determine who initiated contact from an
examination of this exhibit, it was problematic for an expert. In fact,
the only social media expert called as a witness was Donald Lucas,
who reviewed [R.A.P]’s phone and the exhibit, and testified that it
was impossible to determine whether [R.A.P] friend-requested
[E.B.] or [E.B.] friend-requested [R.A.P.].
(Juvenile Court Opinion, at 10-11) (record citations omitted).
d. Where the assault(s) of 4/21/19 allegedly took place.
R.A.P. contends that there was an inconsistency in E.B.’s testimony that
after some initial consensual kissing in the living room area of the house, R.A.P.
then allegedly physically assaulted her in that room by forcibly taking down her
leggings and inserting his fingers into her vagina and her mouth. E.B. admitted
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that she had told police that nothing of that nature occurred downstairs at all.
However, that is not an inconsistency but an omission presumably because she
focused on the forcible vaginal and oral sex that occurred upstairs.
e. How they got to the bedroom.
R.A.P. next contends there is an inconsistency between E.B.’s claim that
after the violent physical assault took place in the living room downstairs, she
went upstairs to get him to leave and what she purportedly told the nurse, that
she agreed to allow R.A.P. to see her room. Addressing this contention, the
juvenile court rejected this allegation, stating:
Juvenile’s counsel apparently infers this from the report that [E.B.]
said that “after sitting and talking for another X minutes, the suspect
asked if he could see her bedroom.” This may or may not be a fair
deduction on his part. It is true that there is an indication in the
nurses’ notes that [E.B. “agreed” to allow [R.A.P] to see her room.
This would appear to be in conflict with her testimony that he went
up to her room without asking, and she followed him in order to ask
him to leave. However, it must be kept in mind that there is a
relatively low degree of reliability for these kinds of statements
contained in medical reports. First of all, her alleged statement was
not recorded. Secondly, the hospital representative who wrote down
[E.B.’s] statements was not there to testify regarding the level of
accuracy she attempted to maintain. Third, unlike a statement
written by a witness or for a witness by law enforcement, there was
no opportunity for [E.B.] to review the statement for correctness.
Fourth, common sense would indicate that when a nurse takes a
history in a sex assault case, the primary purposes would be to
ensure that the physician examines the correct body parts and so
that the physician can determine whether the physical evidence is
consistent with the history. In this case, the portion of the history
referred to by the Juvenile’s counsel would have no bearing on the
type of physical examination performed, and the physical
examination would have no bearing on any determination as to
whether that portion of the history was true. Therefore, it is possible
that the note-taker did not use as much care taking this part of the
history as he or she might have in describing the physical contact,
as an example.
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(Juvenile Court Opinion, at 13-14) (record citations omitted).
f. The absence of physical evidence of a forcible assault.
R.A.P. next contends that E.B.’s description of the assault that he violently
pulled down her pants to penetrate her vagina, allegedly pushing her to the floor,
re-entering her from behind as her face was on the carpet, then forcibly
penetrating her again, and concluding with him forcibly compelling her to
perform oral sex so violently that she was choking that there should have been
both bodily and physical corroboration that occurred. He argues that her clothing
would show rips, tears or other evidence of having been forcibly removed during
an intense physical assault. He also contends that the Emergency Room
physician testified that on the morning after the incident, there was no physical
evidence of scratches, abrasions, redness or rug burns to any part of her face or
body, and that there was absolutely no evidence of vaginal trauma.
At the outset, we note that physical evidence of force or medical evidence
is not required for proof for any sexual offenses in the Commonwealth of
Pennsylvania. See Commonwealth v. Jette, 818 A.2d 533, 534 (Pa. Super.
2003); Commonwealth v. Minerd, 752 A.2d 225, 227 (Pa. 2000). In
disagreeing with R.A.P’s contention, the juvenile court stated:
In this case, Dr. Heather Walker, who examined [E.B.] on the day
after the incident, testified that she reported “vaginal pain and throat
pain” when she saw her. On physical examination, she found that
there was tenderness to the left shoulder and chest on palpation,
but there were no wounds, abrasions, or other objective signs of
physical trauma. This lack of findings is not surprising, given [E.B.’s]
description of the assault. [E.B.] had testified that during the
assault, she had “closed her legs” screaming for him to stop, but she
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never scratched, kicked, or hit him or did anything to push him away.
Dr. Walker confirmed that she does not always make physical
findings when there is a report of genital penetration.
(Juvenile Court Opinion, at 14-15) (record citations omitted). We also note that
E.B.’s description of how R.A.P. took off her clothes would not necessarily result
in their tearing or ripping.
g. How long the incident in the home lasted.
R.A.P. contends that the time period in which the alleged sexual assaults
took place as measured by the message from E.B. to her mother at 9:01 p.m.
stating that R.A.P. wanted to come into the house, until she responded to her
mother’s return message saying no at 9:14 p.m., was only 13 minutes. He
infers that if that is true, then the events could not have taken place as E.B.
contends. However, this argument is at odds with R.A.P.’s admission that all
the sexual acts occurred within a ten-minute period.
h. E.B.’s failure to turn over a key piece of evidence.
Finally, R.A.P. contends that if E.B. was a victim of a violent sexual
assault on that evening, her testimony is not reliable because she failed to
voluntarily turn over her phone used for repeated contacts with R.A.P. He
argues that while Snapchat messages may be difficult to recover, the phone
may have contained other evidence to corroborate the version of events given
by either party in this matter that could have shed critical light on disputed
areas.
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This is not a matter where E.B. refused to turn over the phone but
involves the failure of R.A.P.’s counsel to subpoena it. As the trial court
explained:
On July 9, 2018, the Juvenile’s counsel filed a Motion for
Discovery in which he sought to obtain from the Commonwealth the
“Juvenile’s cell phone and the cell phone(s) used by the alleged
victim, together with passwords, usernames and any other phone
records, to be delivered to Juvenile’s attorney for the purpose of
investigation of information regarding this case.”
An oral argument on this Motion took place before the
undersigned on July 13, 2018. Juvenile’s counsel represented that
he wanted the Commonwealth to turn over “two phones”
(presumably his client’s and [E.B.’s]) to him so that he could have
an expert witness examine them. He was willing to pay his expert
witness to determine whether there might be text messages or
SnapChats between the two that would bear on the credibility of
[E.B.]. The Commonwealth represented that it had possession of
the Juvenile’s phone but not the alleged victim’s phone. The
attorneys agreed to schedule a meeting of the experts so that they
could review and examine the Juvenile’s phone. However, the
Assistant District Attorney maintained that she had no basis to
obtain the victim’s phone because the Commonwealth lacked
probable cause. She did not want to violate the victim’s Fourth
Amendment rights and felt that the victim needed to have a civil
attorney available to argue for her privacy rights before having to
turn over the phone. The Court suggested that a solution would be
for the Juvenile’s attorney to issue a subpoena on the victim,
requiring her to bring her phone to the meeting of the experts. The
Court explained that this would permit the “victim [to have the]
opportunity to come forward to object to it.” If the victim did not
object, then the Juvenile’s attorney would have the phone. If the
victim did object, the Court could schedule an argument or hearing
to determine whether the objection was valid.
On July 13, 2018, the Court issued an Order requiring the
parties to schedule a meeting of the experts. The Court further ruled
that:
[t]he Commonwealth will not be required to seize the victim’s
telephone or bring the victim’s telephone to the meeting of the
experts. However, nothing in this Order will prevent the
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Juvenile from issuing a subpoena on the victim or her guardian,
directing her to bring that telephone to the meeting of the
experts. If the Commonwealth or the victim objected to the
subpoena, he, she, or they can make the appropriate request
to the Court for review of that objection.
In the meantime, the victim was “not to destroy, alter, or
modify the [victim’s] phone in anyway, or to delete any information
from the cellular telephone.”
Experts for both sides ultimately met and examined the
Juvenile’s cellular telephone. They were not provided with the
victim’s phone or her mother’s phone. In fact, it appears that the
Juvenile’s attorneys never served a subpoena upon the victim or her
mother for the phones, as the Court had suggested. If they had,
they may well have been permitted to provide the phone to the
expert. If there was an objection, or the phone was not brought to
the meeting, they could have asked the Court for relief, and if the
Court denied it, they would certainly have had an appealable issue.
Since they never issued a subpoena to obtain these cellular
telephones, however, they should not be entitled to relief.
(Juvenile Court Opinion, at 15-17) (record citations omitted).
Accordingly, because there are no pervasive material inconsistencies in
the Commonwealth’s evidence, its evidence was sufficient to sustain the juvenile
adjudication of delinquency.
III.
R.A.P. next challenges the weight of the evidence supporting his sexual
offense adjudications. The crux of his claim is that the juvenile court failed to
recognize the inconsistencies in E.B.’s version of events and that it placed too
much weight on the Snapchat message he sent to E.B. after the encounter,
which it erroneously viewed as a categorical confession of rape. He avers that
the court should have credited his testimony that the rape allegations were
driven by his rejection of E.B.’s desire to have an ongoing relationship with him.
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“A weight of the evidence claim concedes that the evidence is sufficient to
sustain the verdict, but seeks a new trial on the grounds that the evidence was
so one-sided or so weighted in favor of acquittal that a guilty verdict shocks
one’s sense of justice.” In re A.G.C., 142 A.3d 102, 109 (Pa. Super. 2016)
(citation omitted) “Thus, we may reverse the juvenile court’s adjudication of
delinquency only if it is so contrary to the evidence as to shock one’s sense of
justice.” Id. (citation omitted). “Moreover, where the juvenile court has ruled
on the weight claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight of the evidence.”
Id. (citation omitted). “Rather, this Court is limited to a consideration of whether
the juvenile court palpably abused its discretion in ruling on the weight claim.”
Id. (citation omitted). “Hence, a juvenile court’s denial of a weight claim is the
least assailable of its rulings, as conflicts in the evidence and contradictions in
the testimony of any witnesses are for the fact finder to resolve.” Id. (citation
omitted).
In the instant case, the juvenile court found the testimony of E.B.
“compelling.” (Juvenile Court Opinion, at 2). It explained:
She described the events in great detail, and in a convincing
manner. While there were some minor discrepancies between her
testimony and the accounts she provided to detectives and hospital
personnel, she was generally consistent. Her friends, [S.G.] and
[M.I.], who had both been sequestered, described her as being quite
shaken when they picked her up shortly after the incident. . . . [Their
accounts were] largely undeviating from [E.B’s] courtroom
description.
Conversely, the credibility of [R.A.P.] and his mother was
questionable. . . .
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(Id. at 2-3).
Although the court did find R.A.P.’s Snapchat message an important factor
in its decision, it did so in conjunction with its credibility determinations, which
weighed heavily in favor of E.B. The juvenile court also put the Snapchat
message in context, reasoning:
We [] know that [R.A.P.] testified that it was [E.B.] who
pursued the sex at least as much as [R.A.P.], and he testified that it
was [E.B.] who wanted the vaginal sex. So I asked myself, how
would a normal person who has just engaged in consensual sexual
intercourse react when wrongly accused of rape? The answer is that
that person would likely be outraged and incensed. That person
would likely deny the allegations. That person would likely call the
accuser a liar. That person would likely contact the police and ask
them to investigate false accusations. Instead, [R.A.P.] responded
with a SnapChat text where he A. apologized for everything he put
[E.B.] through; B. called [E.B.] a great person; C. apologized for
hurting her physically and mentally; D. apologized for being horny[;]
E. says he’ll never lay a hand on [E.B.] again; F. admits that he effed
up big time; G. says he can’t express how badly he feels; and H.
says “please talk back so we can work things out between us. No
one else, just me and you [E.B.].” This is not the response of
someone who’s been falsely accused of rape. This is a response of
someone who’s practicing damage control.
It is also noteworthy how [R.A.P.] responded when confronted
with a copy of the SnapChat text by authorities on May 2, 2018. At
4:00 p.m. that day, [R.A.P.] was interviewed by Manor Police Officer
Bob Kwiatkowski and Westmoreland County Detective James
Mandarino. . . .
***
Near the end of the oral interview, [R.A.P.] was shown a copy
of the text, which he admitted that he had sent [E.B] on April 21,
2018. Up to that point, when describing the incident, he had not
reported any actions on his part that could have caused her pain or
been construed as aggressive. Detective Mandarino testified that
when confronted with the text, [R.A.P.]’s body language changed.
[R.A.P.] admitted that he was surprised at this point. [He] was
asked what he meant when he apologized for hurting her physically.
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He responded that he hurt her during his attempt at vaginal sex, due
to the size of his penis. This explanation, however, makes no sense
because he stated that he was never able to penetrate her. He was
then asked what he meant when he said he would never “lay a hand
on” her again. He then responded, for the first time, that he had
put his hand on her head and pushed downward while she was
providing oral sex. He was then asked to provide a written
statement, and his parents and he were given privacy to do so. In
the written statement, he did not repeat the dubious claim that he
hurt her due to his penis size. He did write that during oral sex, he
“touched her head to go deeper, and she told [him] to stop so [he]
stopped.” However, this part of the written statement was
apparently added later, as this sentence was inserted with a caret.
[R.A.P.]’s actions when confronted with his text from the night of
the incident cast further doubt on the veracity of his account.
(Id. at 6-8) (case citations omitted).
R.A.P. asks this Court to re-weigh the evidence and reevaluate the juvenile
court’s credibility determinations regarding E.B., who it found “compelling,” and
himself, who it found not credible, a task that is beyond our scope of review.
See In re A.G.C., supra at 109. After review of the record, we conclude that
the juvenile court did not palpably abuse its discretion in denying R.A.P.’s weight
of the evidence claim and find that the evidence fully supports his sexual offense
adjudications. R.A.P.’s second issue merits no relief.
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2020
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