Com. v. Mohamed, W.

J-S20036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WARFA AHMED MOHAMED :
:
Appellant : No. 1284 MDA 2020
Appeal from the Judgment of Sentence Entered June 5, 2020
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0002662-2018
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 27, 2021
Warfa Ahmed Mohamed (“Mohamed”) appeals from the judgment of
sentence imposed following his conviction of indecent assault.1 We affirm in
part, vacate in part, and remand for consideration of Mohamed’s registration
requirements under the revised Subchapter H of the Sex Offender Registration
and Notification Act (“SORNA”),2 consistent with our Supreme Court’s holding
in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020).
In its Opinion and Order denying Mohamed’s post-sentence Motion, the
trial court ably summarized the factual background underlying Mohamed’s
conviction, which we adopt herein for the purposes of this appeal. See Trial
Court Opinion and Order, 9/10/20, at 2-11.
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1 18 Pa.C.S.A. § 3126(a)(8).
2 42 Pa.C.S.A. §§ 9799.10-9799.42.
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Briefly, in January 2018, a child, S.A. (a female born in June 2002),
reported to police that Mohamed, a friend of her stepfather, had sexually
abused her. On February 4, 2018, police responded to S.A.’s residence
following a report that S.A. was contemplating suicide. S.A. informed officers
that her suicidal thoughts began when Mohamed started a nonconsensual
sexual relationship with her. Police arranged for S.A. to be transported to a
hospital for evaluation and treatment. S.A. reported the assaults to a treating
physician at the hospital.
S.A. had known Mohamed for four years, and Mohamed had often visited
S.A.’s family home to spend time with S.A.’s stepfather. Mohamed acted as
a driver for S.A.’s family, after her stepfather was jailed for violating a
Protection From Abuse Order. S.A. referred to Mohamed only as “uncle,”
which was a signifier of respect in S.A.’s family culture.3 In June 2017, while
visiting S.A.’s home, Mohamed went upstairs to S.A.’s bedroom, where he
began touching her thighs and breasts. S.A. told him to stop and got up and
went into the bathroom. Mohamed followed her, locked the door, and
continued groping her. S.A.’s stepfather eventually unlocked the door and
kicked Mohamed out of the house. However, S.A. told her stepfather that she
was only helping Mohamed find his lighter. S.A.’s mother observed S.A.
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3 S.A. was born in Djibouti.
S.A. arrived in the United States in 2011 with her
mother and siblings, and moved to Cumberland County in 2013. N.T.,
11/5/19, at 29, 32-34.
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holding back tears as S.A.’s stepfather questioned S.A. about Mohamed’s
actions. The incident was eventually reported to police on January 30, 2018,
after a family member overheard S.A. telling her cousin what had happened.
S.A. also alleged that in January 2018, Mohamed volunteered to drive
S.A. to a viewing for a deceased classmate of S.A. Instead of driving S.A. to
the viewing, Mohamed drove her to a park in Mechanicsburg Borough,
Cumberland County. When they arrived at the park, Mohamed parked his car,
reclined S.A.’s car seat, got on top of her, took off her clothes, and choked
her. Mohamed then engaged in sexual intercourse with S.A. and forced S.A.
to perform oral sex on him. Mohamed threatened S.A. that if she told anyone
what had happened, he would expose the fact that the passports for S.A. and
her family had been suspended.
Mohamed was charged with, inter alia, the above-referenced offense in
relation to the June 2017 assault, and was charged with, inter alia, rape by
forcible compulsion and statutory sexual assault in relation to the January
2018 assault.4 During Mohamed’s trial beginning on November 5, 2019, the
jury heard testimony from S.A.; S.A.’s mother; several of S.A.’s friends;
several police officers and detectives; and a nurse practitioner who had
examined S.A. Following testimony, the trial court issued instructions to the
jury regarding witness credibility, as well as instructions regarding a missing
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4 18 Pa.C.S.A. §§ 3121(a)(1), 3122.1(b).
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witness.5 At the conclusion of trial, the jury convicted Mohamed of indecent
assault in connection with the June 2017 assault, and acquitted Mohamed of
the charges related to the January 2018 assault.
The trial court sentenced Mohamed to serve 45 days to 23 months in
the Cumberland County Prison. Further, Mohamed was classified as a Tier II
Offender, and subjected to a registration period of 25 years pursuant to
SORNA. Mohamed filed a timely post-sentence Motion, which the trial court
denied. Mohamed subsequently filed a timely Notice of Appeal, and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal.6
Mohamed raises the following questions for our review:
1. Whether the Commonwealth presented insufficient evidence to
sustain [Mohamed]’s conviction of indecent assault[,] as the
testimony was so contradictory on the essential issues that the
jury’s findings were based on mere conjecture and speculation[?]
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5 During the June 2017 assault, an unnamed guest was also present at S.A.’s
home. N.T., 11/5/19, at 92-93. The trial court instructed the jury that they
were authorized to infer that the guest’s testimony would have been
unfavorable to the prosecution, if the person was available only to the
Commonwealth, had special non-cumulative information material to the issue,
and if a satisfactory explanation for the failure to call the person did not exist.
N.T., 11/6/19, at 329-30. Further, S.A.’s stepfather could not be located to
testify at trial. Id. at 184-87.
6 In his Notice of Appeal Mohamed purports to appeal from the September 10,
2020, Order denying his post-sentence Motion. However, “in a criminal action,
appeal properly lies from the judgment of sentence made final by the denial
of post-sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408,
410 n.2 (Pa. Super. 2001). Accordingly, Mohamed’s appeal properly lies from
the June 5, 2020, judgment of sentence.
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2. Whether the registration requirements of SORNA are
unconstitutional and violated [Mohamed]’s rights under the
Pennsylvania and United States constitutions[,] in that SORNA
denied [Mohamed] procedural due process under Article I and XI
of the Pennsylvania Constitution because it created an irrebuttable
presumption that those convicted of enumerated offenses “pose a
high risk of committing additional sexual offenses[,]” depriving
those individuals of the fundamental right to reputation[?]
3. Whether SORNA denied [Mohamed] procedural due process
under Article I, Section 1 of the Pennsylvania Constitution because
it unlawfully restricts liberty and privacy without notice and an
opportunity to be heard[?]
4. Whether SORNA constitutes criminal punishment and therefore
violates the separation of powers doctrine[,] because it usurps the
exclusive judicial function of imposing a sentence[?]
Brief for Appellant at 5.
Mohamed first argues that the Commonwealth presented insufficient
evidence to support his indecent assault conviction. Id. at 8-13. Mohamed
asserts that S.A.’s testimony was “riddled with inconsistencies,” including the
dates and times of the assault, and how she got home after the assault. Id.
at 11, 12. Mohamed asserts that S.A.’s inconsistent testimony required the
jury to reach its guilty verdict “by pure surmise and conjecture,” thereby
creating a verdict unsupported by evidence beyond a reasonable doubt. Id.
Further, Mohamed claims that the jury’s verdict was inconsistent, as the jury
had acquitted him of the rape and statutory sexual assault charges. In
particular, Mohamed argues that “if the jury accepted [S.A.]’s testimony as
false as to one of the incidents, it should have been a complete defense to all
of the charges.” Id. at 12-13.
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Mohamed challenges the sufficiency of the evidence.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable to
the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most favorable
to the Commonwealth, demonstrates the respective elements of
a defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2019).
Additionally, “a review of the sufficiency of the evidence does not include
an assessment of the credibility of the testimony; such a claim goes to the
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weight of the evidence.”7 Commonwealth v. Gibbs, 981 A.2d 274, 281-82
(Pa. Super. 2009). Further, the uncorroborated testimony of the victim alone
is legally sufficient to support a verdict, if the jury believes such testimony.
See Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018).
[T]he [jury’s] individualized assessment of the credibility of the
trial evidence is, as a general principle, not to be questioned by
an appellate court as part of its review, even if the evidence is
conflicting. [C]ourts presume the jury resolved evidentiary
disputes reasonably so long as sufficient evidence supports the
verdict. [M]ere inconsistency and conflicts in witnesses[’]
testimony, by itself, will not furnish a basis for an appellate court
to reverse a conviction [] on the grounds of evidentiary
insufficiency.
Commonwealth v. Brown, 52 A.3d 1139, 1165 (Pa. 2012) (citations
omitted). Rather, the fact-finder’s resolution will only be disturbed “in those
exceptional instances [] where the evidence is so patently unreliable that the
jury was forced to engage in surmise and conjecture in arriving at a verdict
based upon that evidence.” Id. (citing Commonwealth v. Karkaria, 625
A.2d 1167, 1170 (Pa. 1993)).
The Crimes Code provides, in relevant part, that
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7 In Mohamed’s post-sentence Motion, he also alleged that the verdict was
against the weight of the evidence based on S.A.’s testimony at trial. Post-
Sentence Motion, 6/15/20, at 2 (unpaginated). Mohamed, however, did not
preserve a challenge to the weight of the evidence in his Concise Statement.
Thus, to the extent that Mohamed’s claim challenges the weight of the
evidence, such claim is waived. See Commonwealth v. Bullock, 948 A.2d
818, 823 (Pa. Super. 2008) (stating that an appellant waives any issue not
raised in a court-ordered concise statement) (citing Commonwealth v. Lord,
719 A.2d 306, 308).
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[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 [ ] the complainant is less than 16 years of age
and the person is four or more years older than the complainant
and the complainant and the person are not married to each other.
18 Pa.C.S.A. § 3126(a)(8).
In this case, S.A. testified that on one occasion in June 2017, Mohamed
visited S.A’s stepfather at S.A.’s home. N.T., 11/5/19, at 40. S.A. stated that
Mohamed would visit her stepfather routinely; Mohamed knew S.A.; and S.A.
would talk to Mohamed about problems she was having in school, when she
did not feel comfortable talking to her parents. Id. at 45-46.
On the night in question, while S.A. was upstairs in her bedroom
watching a movie, Mohamed came upstairs and started “touching [her] thighs,
rubbing back and forth[.]” Id. at 41. S.A. got up to go to the bathroom,
where Mohamed followed her, locked the bathroom door, and continued to
touch her thighs and breasts. Id. at 41-43. S.A. testified that Mohamed had
his pants down and that S.A. could see his underwear, and that she told him
to stop. Id. at 42-43. S.A. stated that at that point, her stepfather came
upstairs and unlocked the bathroom door. Id. at 43. When S.A.’s stepfather
saw Mohamed and S.A., he ejected Mohamed from the house. Id. at 43-45.
S.A. indicated that she did not tell either her stepfather or her mother what
Mohamed had done out of embarrassment and due to her culture, and instead
told them that she was helping Mohamed locate his lighter. Id. at 44-45.
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S.A. testified that at some point after the incident, when Mohamed was driving
S.A. to mosque, Mohamed asked S.A. if she liked what he had done to her.
Id. at 47-48.
Additionally, S.A.’s mother testified that on the night in question, she
observed Mohamed go upstairs to use the restroom. Id. at 132-33. S.A.’s
mother explained that, after a while, her husband went upstairs, at which time
she heard a loud argument taking place. Id. at 133. According to S.A.’s
mother, when she went upstairs, she heard her husband questioning
Mohamed. Id. at 133-35. At that time, S.A.’s stepfather, Mohamed, and S.A.
were standing outside of the bathroom. Id. at 133-34. S.A.’s mother heard
Mohamed say that he didn’t do anything, and observed S.A. holding back
tears. Id. at 134-35.
In viewing the record in the light most favorable to the Commonwealth,
as the verdict winner, we conclude that the above evidence was sufficient to
sustain Mohamed’s conviction of indecent assault pursuant to section
2136(a)(8). Additionally, we cannot conclude that S.A.’s testimony was so
inherently unreliable that Mohamed’s guilty verdict amounted to no more than
surmise or conjecture. See Karkaria, supra. Further, we note that despite
any apparent inconsistencies, we permit inconsistent verdicts “in a variety of
contexts.” Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014); see
also id. at 1249 (stating that “juries may issue inconsistent verdicts and []
reviewing courts may not draw factual inferences in relation to the evidence
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from a jury’s decision to acquit a defendant of a certain offense.”).
Accordingly, we can grant Mohamed no relief on this claim. See Sebolka,
supra.We will address Mohamed’s final three issues together. First, Mohamed
argues that application of SORNA’s registration requirements under
Subchapter H denied Mohamed his constitutional due process rights. Brief for
Appellant at 14-22 (citing Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017)). Second, Mohamed argues that application of SORNA denied him his
due process rights, because it unlawfully restricted his liberty and privacy,
without notice and the opportunity to be heard. Brief for Appellant at 22-23.
Third, Mohamed argues that SORNA’s registration requirements constituted
“criminal punishment,” and, as a result, violated the separation of powers
doctrine and functionally imposed an additional criminal sentence. Id. at 24-
26.
In Torsilieri, our Supreme Court addressed Subchapter H, vacated a
trial court’s order finding it unconstitutional, and remanded the matter to the
trial court for additional consideration. Torsilieri, 232 A.3d at 572. There,
the petitioner presented studies challenging the General Assembly’s policy
finding that sex offenders pose a high risk of committing additional sexual
offenses and asserted that SORNA’s irrebuttable presumption of a high risk of
recidivism violated due process rights. Id. at 574.
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However, the Torsilieri Court declined to reach the constitutional
challenge raised by the petitioner. Id. at 596. Instead, the Torsilieri Court
remanded the matter to the trial court in order to further develop the record
to “allow the parties to address whether a consensus has developed to call
into question the relevant policy decisions impacting offenders’ constitutional
rights.” Id. (footnote omitted). The Court indicated that “the wisdom of a
public policy is one for the legislature, and the General Assembly’s enactments
are entitled to a strong presumption of constitutionality rebuttable only by a
demonstration that they clearly, plainly, and palpably violate constitutional
requirements.” Id. (citation omitted). Nevertheless, the Court emphasized
that it would “not turn a blind eye to the development of scientific research,
especially where such evidence would demonstrate infringement of
constitutional rights.” Id.
Further, in Commonwealth v. Asher, 244 A.3d 27 (Pa. Super. 2020),
this Court addressed a similar claim challenging Subchapter H. Although the
appellant properly preserved the issue in his post-sentence motion, the trial
court did not conduct an evidentiary hearing. See id. at 32-33. Because of
the lack of an evidentiary hearing, the appellant could not admit relevant
research or studies into evidence. Id. On appeal, this Court, relying on
Torsilieri, concluded that remand was necessary based on the lack of a
factual record to address the appellant’s claim. Asher, 244 A.3d at 32-33.
In particular, the Asher Court explained that “although [the appellant]
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properly preserved his challenges at sentencing and in post-sentence motions,
there [wa]s no factual record. Therefore, in accordance with Torsilieri, we
vacate[d] and remand[ed] for a hearing at which the parties can present
evidence for and against the relevant legislative determinations discussed
above.” Id. at 33.
Here, Mohamed properly preserved his Subchapter H claim in his post-
sentence Motion. See Post-Sentence Motion, 6/15/20, at 3-4 (unpaginated).
However, as in Asher, the trial court did not develop an evidentiary record.
See Order, 7/1/20 (cancelling argument on Mohamed’s post-sentence Motion,
and directing the parties to submit briefs). Further, we note that Mohamed,
in his brief in support of his post-sentence Motion, cited extensively to
Torsilieri, as well as to various studies and research in support of his position.
See Defendant’s Argument in Support of Post-Sentence Motions, 8/10/20, at
23-29. Therefore, because there is no evidentiary record on which we can
properly evaluate Mohamed’s claim, we vacate Mohamed’s judgment of
sentence, and remand for a hearing in accordance with Torsilieri and Asher.
See Torsilieri, 232 A.3d at 596; Asher, 244 A.3d at 31-33.8
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8 In its appellate brief, the Commonwealth agrees that Mohamed’s SORNA
issues necessitate a remand to the trial court for the purposes of conducting
an evidentiary hearing in accordance with Torsilieri. Commonwealth’s Brief
at 18-20.
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Conviction affirmed. Judgment of sentence vacated and remanded for
consideration of Mohamed’s registration requirements under Subchapter H of
SORNA consistent with Torsilieri. Superior Court jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/27/2021
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