J-A24002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

OROBOSA ENAGBARE

                        Appellant                  No. 785 EDA 2016


        Appeal from the Judgment of Sentence September 21, 2015
             In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0002279-2012


BEFORE: BOWES, OTT AND SOLANO, JJ.

MEMORANDUM BY BOWES, J.:                      FILED FEBRUARY 08, 2017

     Orobosa Enagbare appeals from the judgment of sentence of four and

one-half years to nine years of incarceration, followed by a consecutive

period of five years probation, imposed after a jury convicted him of, inter

alia, rape of an unconscious person. We affirm.

     On the evening of May 26, 2012, the victim, a female college student,

went to a bar in West Chester to celebrate the end of the semester. She

sent text messages inviting most of the people she knew, including

Appellant, to join her. The group consumed alcohol throughout the evening

and danced. Sometime between 1:45 a.m. and 2:00 a.m., Appellant asked

the victim if she would like to be walked home.    The victim accepted the

offer. The two left the bar by themselves and began the walk back to her

apartment, which was approximately fifteen minutes away.
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      Due to her intoxication, the victim’s recollection of the details of what

next occurred was somewhat hazy.           She recalled walking with Appellant,

entering her residence, and changing her clothes.          The next thing she

remembered is waking up and experiencing vaginal pain. She saw Appellant

on top of her and felt his penis inside her.        She told him to stop, and

attempted to push him away.        Appellant did not stop, and she again fell

asleep. She testified that she did not consent to sex at any point.

      Around 9:00 a.m., the victim awoke with vaginal pain and told a friend

she had been raped.     She proceeded to a hospital, where an examination

was performed and evidence collected for a rape kit. A police officer told the

victim to contact Detective Stan Billie.

      On May 29, 2012, the victim contacted Detective Billie, who initiated

an investigation.    The victim agreed to call Appellant and have that

conversation recorded. Two separate recorded phone calls were played to

the jury, which reveal the following facts. The victim asked Appellant if he

remembered what happened on the 26th. Appellant initially stated that she

invited him in and that they kissed for a few minutes, but she fell asleep so

he carried her upstairs and left. She told him something more must have

happened.     Appellant again denied that anything happened.          When the

victim revealed that she remembered seeing him on top of her, and told him

to stop lying. Appellant then stated, “I just f---ed up,” and told the victim

that he used a condom which he took with him and threw away in a public


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trashcan. When Appellant was asked if he thought about stopping when she

tried to push him off, he said no and admitted that he continued to have sex

with her for five to ten more minutes. Appellant said, “I’m saying I f---ed up

and I mean, I know obviously it wasn’t consensual.                   It was never

consensual. None of it was okay.” N.T. Vol. I, 5/12/15, at 158.

       Based on this incident, Appellant was charged with rape by forcible

compulsion, rape of an unconscious person, sexual assault, and aggravated

and indecent assault.       Appellant proceeded to a jury trial on February 11,

2013, which resulted in a mistrial on February 13, 2013. The mistrial was

granted at Appellant’s request, after the trial court determined that the

Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963).

       On or about February 28, 2013, counsel filed a motion to bar retrial,

averring that the Commonwealth’s failure to provide the Brady material

constituted prosecutorial misconduct.1           The trial court held a hearing, and

issued an order denying the motion on March 26, 2013.2

       On April 9, 2013, Appellant filed a motion to suppress a statement

given by Appellant to Detective Billie, which was granted on April 30, 2013
____________________________________________


1
   This motion was not docketed until March 20, 2013. The certified March
20, 2013 filing includes a fax from Appellant’s counsel stating that the
judge’s chambers informed counsel that the motion was never docketed.
We note that a March 18, 2013 postponement is in the certified record
stating, “motion to bar re-trial pending.”
2
    The transcript of this hearing is not in the certified record.




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after an evidentiary hearing.         The Commonwealth, pursuant to Pa.R.A.P.

311(d), certified that the order would terminate or substantially handicap its

prosecution and appealed; we affirmed on April 17, 2014. Commonwealth

v. Enagbare, 102 A.3d 535 (Pa.Super. 2014) (unpublished memorandum).

The Commonwealth sought review with our Supreme Court, which denied

that request on September 30, 2014. Commonwealth v. Enagbare, 101
A.3d 101 (Pa. 2014).        The court of common pleas received the record on

October 29, 2014. Thereafter, the matter was continued several times.

       On or about May 6, 2015, Appellant sought dismissal pursuant to the

prompt-trial provisions outlined in Pa.R.Crim.P. 600.3        The trial judge

addressed that motion4 and several other pre-trial matters on May 11, 2015,

immediately prior to jury selection.

       The second jury trial commenced on May 12, 2015. On May 15, 2015,

Appellant was acquitted of rape by forcible compulsion and convicted of the

remaining offenses.        Appellant’s bond was revoked and sentencing was
____________________________________________


3
   Rule 600 requires the Commonwealth to try a criminal defendant within
365 days from the date that the criminal complaint is filed. Following filing
of the criminal complaint Rule 600 was revised, with the current version
effective July 1, 2013. The order granting the mistrial predates the July 1,
2013 enactment. We therefore apply the prior version of Rule 600 to the
facts of this case. See Commonwealth v. Wilson, 145 A.3d 194, 195, n.2
(Pa.Super. 2016) (applying version of Rule 600 in effect on date matter was
remanded from Superior Court for further proceedings).
4
   This motion was never docketed. The Commonwealth’s brief states that
its office received a copy and does not contest its filing. Its omission is not
an impediment to our review due to the nature of the claim.



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deferred to September 21, 2015, whereupon Appellant received the above-

referenced sentence.

      Appellant timely filed post-sentence motions and a notice of appeal

following their denial.   Appellant and the trial court complied with the

mandates of Pa.R.A.P. 1925 and the matter is ready for our review.

Appellant poses the following questions for our consideration:

      I. Did the lower court err in denying Appellant’s motion to
      dismiss the charges pursuant to Pennsylvania Rule of Criminal
      Procedure 600 where the Commonwealth failed to exercise due
      diligence in bringing Appellant to trial?

      II. Did the lower court err in denying Appellant’s motion to
      dismiss and bar retrial on the grounds of double jeopardy where
      the Commonwealth’s withholding of exculpatory evidence was
      only one instance of prosecutorial misconduct and Appellant has
      demonstrated that the Commonwealth engaged in a pattern of
      misconduct designed to deprive him of a fair trial?

      III. Did the lower court violate the corpus delecti rule when it
      admitted Appellant’s inculpatory wiretap conversations into
      evidence where the Commonwealth failed to establish that a
      crime had occurred by a preponderance of the evidence and
      where it allowed the jury to consider Appellant’s admissions
      during its deliberations even though the Commonwealth had
      failed to prove that a crime had occurred beyond a reasonable
      doubt?

      IV. Were Appellant’s convictions supported by the clear weight of
      the evidence where the complainant’s trial testimony was
      contradicted by her statements to the police and at a previous
      trial?

Appellant’s brief at 5-6 (first two issues reordered for ease of discussion).




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     Since Appellant’s Rule 600 arguments are incorporated in his double

jeopardy claim, we elect to address it first.   Our standard and scope of

review in evaluating Rule 600 issues is well-settled. We determine

     whether the trial court abused its discretion. Judicial discretion
     requires action in conformity with law, upon facts and
     circumstances judicially before the court, after hearing and due
     consideration. An abuse of discretion is not merely an error of
     judgment, but if in reaching a conclusion the law is overridden or
     misapplied    or   the    judgment    exercised    is   manifestly
     unreasonable, or the result of partiality, prejudice, bias, or ill
     will, as shown by the evidence or the record, discretion is
     abused.

     The proper scope of review is limited to the evidence on the
     record of the Rule [600] evidentiary hearing, and the findings of
     the [trial] court. An appellate court must view the facts in the
     light most favorable to the prevailing party.

Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013) (citing

Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa.Super. 2007) (en

banc) (alterations in original due to rule renumbering)).       “The proper

application of discretion requires adherence to the law, and we exercise

plenary review of legal questions.” Commonwealth v. Baird, 975 A.2d
1113, 1118 (Pa. 2009) (citing Commonwealth v. Chamberlain, 731 A.2d
593, 595 (Pa. 1999)).

     Since Appellant was on bail during the first trial, the pertinent

provision of Rule 600 required the Commonwealth to commence Appellant’s

trial within 365 days of the order granting the mistrial.   See Former Rule




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600(D)(1).5 The first step is calculating the ‘mechanical run date,’ which is

arrived at by adding 365 days to the date of the order granting the mistrial.

Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa.Super. 2013).

Therefore, trial was required to commence within one year of February 13,

2013 (on or before February 13, 2014).               Appellant filed the motion to

dismiss on or about May 6, 2015.

        Since trial did not commence within the mechanical run date, we must

determine whether the trial occurred within the adjusted run date.                To

calculate the adjusted run date, we add all periods of delay caused by the

defendant     which     were     statutorily     excluded   from   the   speedy-trial

computation. See Former Rule 600(C)(1)-(3) (effective until July 1, 2013).

Our precedents interpreting the former Rule also added periods of

“excusable delay.”       This concept was derived from former Rule 600(G),

which

        includes an explicit exception, neither explicitly nor implicitly
        included in Rule 600(E). The additional language provides the
        Commonwealth with the ability to obtain what this Court ...
        termed to be “an extension” of the 365–day time limit, as
        opposed to a Rule 600(C) “exclusion,” to the extent the
        Commonwealth has exercised due diligence such that

____________________________________________


5
    “When a trial court has granted a new trial and no appeal has been
perfected, the new trial shall commence within 120 days after the date of
the order granting a new trial, if the defendant is incarcerated on that case.
If the defendant has been released on bail, trial shall commence within 365
days of the trial court's order.”




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      circumstances occasioning a postponement are beyond its
      control.
Commonwealth v. Dixon, 907 A.2d 468, 474 (Pa. 2006). Thus, if the

Commonwealth exercised due diligence during the challenged time periods,

the 365–day time limit would be extended. Due diligence, in turn, “is a fact-

specific concept that must be determined on a case-by-case basis. Due

diligence does not require perfect vigilance and punctilious care, but rather a

showing by the Commonwealth that a reasonable effort has been put forth.”

Ramos, supra at 1102. Finally, mindful of the Rule's dual purposes, where

“there has been no misconduct on the part of the Commonwealth in an effort

to evade the fundamental speedy trial rights of an accused, Rule 600 must

be construed in a manner consistent with society's right to punish and deter

crime.” Id. at 1100.

      Appellant argues that the entire time period during which the

Commonwealth appealed the grant of suppression should be counted against

the Commonwealth.      The trial court’s Rule 1925(a) opinion refers to the

conclusions set forth on-the-record, where the court stated the following:

      THE COURT: Let me address the Rule 600 issue first. In the
      absence of any appellate decision in Pennsylvania or the absence
      of any statutory provision or rule, rule which would enable me to
      reach the conclusion the defense wants me to is that the
      appellate review days, let’s refer to them as, are against the
      Commonwealth, against or the proper measure by which to
      calculate the speedy trial rule in a retrial scenario would include
      the days that went before the first trial.

      I agree with the calculation of time stated in the
      Commonwealth’s response to the Rule 600 Motion. I suppose


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       we could quibble over a couple of days here and a couple of days
       there. I don’t intend to do that.

       If I need to reconstruct it precisely, I will do it in the context of a
       1925 opinion, but I’m taking it at face value, Ms. Capuano’s
       representation to the Court.

       If you exclude the appellate consideration period, and don’t
       count the days that got us to the commencement of trial, that
       195 days by her calculations are charged to the Commonwealth.
       That doesn’t get us anywhere close to the infraction of the 365
       day timeframe . . . and therefore, defendant’s motion to dismiss
       the charges pursuant to Rules of Criminal Procedure 600 is
       denied.

N.T., 5/11/15, at 76-77.

       The dispositive issue in this case is whether the 518 days during which

the Commonwealth appealed the suppression order is chargeable to the

Commonwealth.          “[I]t is clear that if the delay occasioned by the

Commonwealth’s appeal to the Superior Court and then to the Supreme

Court is counted against the Commonwealth, then [A]ppellant’s speedy trial

rights have been violated.”6 Appellant’s brief at 32-33. Appellant challenges

the trial court’s calculation by claiming that the Commonwealth failed to

exercise due diligence when it filed the appeal.           “Appellant respectfully

asserts that the Commonwealth’s decision to appeal the trial court’s

____________________________________________


6
  This calculation is correct. A total of 812 days elapsed between the date
granting mistrial, February 13, 2013, and the date Appellant presented his
motion to dismiss, May 6, 2015. If the 518 days are not included in the
adjusted run date, then the remaining 294 days (812 minus 518) would
extend the adjusted run date only to December 4, 2014. Thus, the 518 day
period controls the outcome.



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suppression order, despite the lack of any legal support for its position,

precludes a finding that the Commonwealth exercised due diligence.” Id. at

35-36.

      We disagree.    The leading case on this matter, Commonwealth v.

Matis, 710 A.2d 12 (Pa. 1998), holds that the Commonwealth acts with due

diligence for purposes of Rule 600 when it certifies for appeal that a pre-trial

order terminates or substantially handicaps the prosecution. In Matis, the

trial court had denied a Commonwealth request for a continuance to secure

the presence of a witness.    Id. at 15.      The Commonwealth appealed, but

failed to seek permission from the trial court to appeal an interlocutory order

pursuant to Pa.R.A.P. 312; instead, the Commonwealth certified that the

court’s order substantially handicapped its prosecution under Pa.R.A.P.

311(d). This appeal was ultimately quashed. Id.

      Following quashal, Matis sought discharge under Rule 600, arguing

that the appeal time period was chargeable to the Commonwealth since the

Commonwealth (1) failed to exercise due diligence and (2) filed a frivolous

appeal in bad faith from a non-appealable interlocutory order for the sole

purpose of delaying trial. Id. The trial court granted the motion. The court

found that the Commonwealth did not act in bad faith in filing the appeal.

However, the trial court concluded that the Commonwealth was not duly

diligent.   Our Supreme Court disagreed, finding “that the filing of a . . .

certification is sufficient safeguard to prevent the Commonwealth from filing


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appeals to delay a trial when a court has denied a motion to continue.” Id.

at 18.       The Court compared this situation to        Commonwealth v.

Malinowski, 671 A.2d 674 (Pa. 1996), wherein the Commonwealth did not

file a certification and instead opted to withdraw its appeal before the

deadline for filing a brief.

      Appellant seeks to circumvent Matis by claiming that our prior panel

memorandum affirming the trial court’s grant of suppression admonished the

Commonwealth for filing an appeal of the suppression order.     In a footnote,

we stated:

      Enagbare also challenges the Commonwealth's good faith
      certification that the suppression order will terminate or
      substantially handicap its prosecution. See Pa.R.A.P. 311.
      Enagbare asserts that the prosecution has two alternate, valid
      sources of evidence that are substantively identical to the
      evidence at issue. The question of whether the evidence is
      sufficient for the Commonwealth to meet its burden of proof is
      not before us at this time and we will not address it. We remind
      the Commonwealth that such certifications are to be made in
      good faith and caution that the filing of a certification no longer
      requires blind acceptance and this Court is permitted to examine
      the basis of such certifications.      See Commonwealth v.
      Cosnek, 836 A.2d 871 (Pa.2003); see also Commonwealth v.
      White, 910 A.2d 648 (Pa.2006).

Enagbare, supra, unpublished memorandum at n.2.            Appellant contends

that this footnote, in conjunction with our affirming the trial court, proves

that the Commonwealth was not duly diligent. However, as the trial court

correctly recognized, we addressed the merits of the appeal and therefore

this statement was dicta.




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      Moreover, the cases cited in this dictum do not affirmatively state that

we may question the basis for the certification when reviewing an appeal of

a suppressed inculpatory statement. Following our memorandum decision,

this Court issued Commonwealth v. Woodard, 136 A.3d 1003 (Pa.Super.

2016), in which we quashed a Commonwealth appeal from a denial of

motion for joinder. In reaching this conclusion, we discussed our jurisdiction

to review Commonwealth appeals:

      Although Rule 311(d) permits an appeal as of right, prior case
      law has continually placed limits on the scope of this right as it
      pertains to non-evidentiary issues. Thus, the court will not
      “accept blindly the Commonwealth's certification of
      substantial hardship” when appeal is sought for non-
      evidentiary interlocutory orders. White I, supra at 558. As
      illustrated by    the   White     cases,   the  law     regarding
      Commonwealth appeals under Rule 311(d) is far from settled.

Id. at 1005 (emphasis added). In other words, our ability to examine the

Commonwealth’s certification has, to date, extended only to Commonwealth

appeals pertaining to non-evidentiary rulings.        The order suppressing

Appellant’s confession was, of course, an evidentiary ruling.

      Additionally, the Commonwealth’s motivation in pursuing an appeal

poses a factual question, as opposed to a question of law implicating our

jurisdiction to consider a Commonwealth appeal. Matis, supra at 15 (“This

Court is therefore bound by the trial court’s factual finding that the

Commonwealth did not act in bad faith.”) (emphasis added). Hence, Matis

applies, and the Commonwealth exercised due diligence.          Since the trial

court did not find the Commonwealth acted in bad faith in pursuing its

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appeal, the 518 days constituted excusable time that is added to the

mechanical run date.        This yields an adjusted run date of July 16, 2015.

Therefore, trial commenced within the permitted time period.

       We next address Appellant’s double jeopardy claim, which was

litigated prior to the motion to suppress and accompanying Commonwealth

appeal.     Appellant alleged that the Commonwealth’s failure to provide the

Brady material was prosecutorial misconduct. The trial court held a hearing

and issued an order denying relief on March 26, 2013, which included

findings of fact.7

       An    appeal   grounded      in   double    jeopardy   raises   a   question   of

constitutional law, and our scope of review is plenary and the standard of

review de novo. Commonwealth v. Kearns, 70 A.3d 881 (Pa.Super.

2013), sets forth the applicable principles:

       “The Double Jeopardy Clause of the Fifth Amendment protects a
       criminal defendant from repeated prosecutions for the same
       offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct.
2083, 72 L. Ed. 2d 416 (1982). However, the “Double Jeopardy
       Clause is no bar to retrial” when “the defendant moves for a
       mistrial[.]” Id. at at 673, 102 S. Ct. 2083 (1982). The Supreme
       Court of the United States has recognized a limited exception to
       this rule, holding that:
____________________________________________


7
   The trial court did not determine whether the motion to dismiss was
frivolous. See Pa.R.Crim.P. 587(B)(4) (if motion to dismiss on double
jeopardy grounds is denied, the findings of fact shall include a finding as to
frivolousness). The Commonwealth does not suggest that the issue is
waived or otherwise non-appealable at this juncture; thus, we shall address
the merits.




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            [T]he circumstances under which ... a defendant
            may invoke the bar of double jeopardy in a second
            effort to try him are limited to those cases in which
            the conduct giving rise to the successful motion for a
            mistrial was intended to provoke the defendant into
            moving for a mistrial.

      Id. at 679, 102 S. Ct. 2083.

      Our Supreme Court has determined that the Double Jeopardy
      Clause of Pennsylvania's constitution provides greater protection
      than its federal counterpart:

            [T]he double jeopardy clause of the Pennsylvania
            Constitution prohibits retrial of a defendant not only
            when prosecutorial misconduct is intended to
            provoke the defendant into moving for a mistrial, but
            also when the conduct of the prosecutor is
            intentionally undertaken to prejudice the defendant
            to the point of the denial of a fair trial.

      Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325
      (1992).

Id. at 884.   To the extent factual findings bear on the double jeopardy

question, we apply the more deferential standard of review to the trial

court’s findings. Id.

      Preliminarily, we note that Appellant’s double jeopardy claim rested

solely on the Brady violation.      Indeed, Appellant’s Pa.R.A.P. 1925(b)

statement was similarly limited: “Did the lower court err in denying

appellant’s motion to bar retrial of his case where his first trial ended in a

mistrial as a result of the Commonwealth’s withholding of exculpatory

evidence?” Rule 1925(b) Statement, 3/24/16, at 1.




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       Appellant now seeks to raise additional matters not presented to the

trial court, claiming that “the Commonwealth engaged in a pattern of

misconduct designed to deprive him of a fair trial.” Appellant’s brief at 17.

Specifically, Appellant folds in the Rule 600 argument, supra, and claims that

the Commonwealth’s appeal was purely dilatory. Appellant also cites to the

testimony of Detective Billie, who was called by Appellant during trial. He

testified that the District Attorney’s office ordered the rape kit destroyed and

did not perform any DNA analysis of the kit. N.T. Vol. III, 5/13/15, at 199.8

       However, Appellant did not raise these matters to the trial court nor

did he include them in the Pa.R.A.P. 1925 statement. We therefore agree

with the Commonwealth that these additional theories have been waived.

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). We therefore confine our

analysis to the actual claim raised and addressed by the trial court.9

       Thus limited, we find that the trial court correctly denied this claim. As

applied to Brady violations, intentionality is a necessary prerequisite for
____________________________________________


8
   The Commonwealth argued during closing arguments that the kit was not
tested because Appellant’s intercepted recording admitted that he used a
condom. N.T. Vol. IV, 5/14/15, at 65.
9
     Appellant cites Commonwealth v. Anderson, 38 A.3d 828 (Pa.Super.
2011), in support of his position. Anderson holds that a defendant seeking
to bar retrial on prosecutorial misconduct grounds is not limited to relying on
conduct that occurred before or during the first trial. However, this does not
mean that Appellant is relieved of his obligation to present the issue to the
trial court.



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double jeopardy relief. In Kearns, supra, we reversed a trial court’s order

barring retrial following a Brady violation that resulted in a mistrial.    The

trial court opined that the prosecutor’s failure to disclose exculpatory

material was grossly negligent, but not intentional.    Id. at 886.   We held

that finding mandated reversal:

      In this instance, we accept the factual determinations of the trial
      court regarding the Commonwealth's conduct and, further, we
      accept its legal conclusion that the Commonwealth was grossly
      negligent in withholding discoverable evidence from the defense
      based upon those factual determinations. Nevertheless, gross
      negligence on the part of the Commonwealth is never a sufficient
      basis upon which to bar retrial on double jeopardy grounds.

Id. (emphasis in original).

      Herein, the trial court’s order denying the motion to bar retrial

specifically found that the Brady violation was unintentional. As an initial

matter, we note the nature of the Brady violation during the first trial.

Following the close of the Commonwealth’s case-in-chief, the prosecutor

informed the court that several supplemental pages of reports prepared by

Detective Billie were not turned over to Appellant.    N.T., 2/13/15, at 127.

Appellant’s brief states that these missing reports contained a supplemental

interview Detective Billie conducted with the victim, an interview with the

victim’s boyfriend, and a synopsis of an interview with another person who

was at the bar the evening of the incident.     Appellant’s brief at 17.    The

Commonwealth’s brief agrees with this description.     Commonwealth’s brief




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at 8. The trial court took testimony on the motion to bar retrial, and issued

the following findings of fact:

      Initially, we observe that there is no indication that any
      representative of the Chester County District Attorney’s Office
      who at any time has had responsibility for handling this case,
      from Mr. Carmody through Mr. O’Keefe, has ever demonstrated
      any personal act of misconduct. Rather, the issue here is solely
      with police department actions.

      In this case, Detective Billie testified that he believed the entire
      report was turned over to the Commonwealth. The court finds
      his testimony credible, and therefore concludes that the failure
      to turn over the missing pages was inadvertent, and not willful
      or intentional.

Order, 5/26/13, at n.1, 3-4.        This credibility finding binds us.    Thus, as a

matter of law, the trial court correctly denied the motion. Kearns.

      Appellant’s   third   issue    challenges    the   admission   of   Appellant’s

statements    introduced     through      the     audiotaped   recordings    of   his

conversations with the victim as violating the corpus delicti rule. That rule is

“rooted in the hesitancy to convict a person of a crime solely on the basis of

that person’s statements.”        Commonwealth v. Turza, 16 A.2d 401, 404

(1940). Therefore:

      Before   introducing    an   extra-judicial  admission, the
      Commonwealth must establish by independent evidence that a
      crime has in fact been committed; however, the Commonwealth
      is not required to prove the existence of a crime beyond a
      reasonable doubt.

Commonwealth v. Reyes, 681 A.2d 724, 727 (Pa. 1996).

      Application of the corpus delicti rule may occur at two levels. The first

level is a matter governing evidentiary admissibility, applying a prima facie


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standard, which is subject to an abuse of discretion.    Commonwealth v.

Otterson, 947 A.2d 1239, 1249 (Pa.Super. 2008). The second tier requires

proof beyond a reasonable doubt, such that the factfinder may consider the

statements in deciding guilt.

      After the court has made its initial determination that the
      Commonwealth has proved the corpus delicti by a
      preponderance of the evidence and has ruled the confession to
      be admissible, the corpus delicti rule additionally requires that
      the Commonwealth prove to the jury's satisfaction beyond a
      reasonable doubt, the corpus delicti of the crimes charged.

Reyes, supra at 728 (quoting Commonwealth v. Ahlborn, 657 A.2d 518

(Pa.Super.     1995))   (emphases   supplied   by   Ahlborn).   “The   crucial

determination in applying the corpus delicti rule is whether, at the close of

the case, the proof of the corpus delicti was sufficient to permit the fact

finder to consider defendant's admission or confession.”   Commonwealth

v. Cuevas, 61 A.3d 292, 295 (Pa.Super. 2013) (quoting Commonwealth v.

Hogans, 584 A.2d 347, 349 (Pa.Super. 1990)).

      The trial court found that this issue has been waived, and, in the

alternative, is meritless. We agree on both counts. Appellant failed to raise

a corpus delicti issue at trial. Appellant’s Rule 1925(b) statement asked the

trial court to find the issue preserved “because he reasonably believed the

Commonwealth would introduce evidence obtained from the complainant’s

rape kit[.]”    Rule 1925(b) Statement, 3/24/16, at 1, n.1.        However,

Appellant does not explain why that belief excuses his failure to object, nor




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does it explain why Appellant did not object to the jury’s ability to consider

the statements in deliberations.

      Nevertheless, we have reviewed Appellant’s argument and find that

Appellant is not entitled to relief.    There is no corpus delicti issue if the

evidence,   excluding   the   confession,   establishes   that   the   crime   was

committed. In Reyes, supra, the trial court incorrectly applied the second

tier of the corpus delicti rule by considering the statements themselves in

conducting the beyond a reasonable doubt inquiry. The Court proceeded to

review the sufficiency of the evidence without regard to the statements:

      As such, we agree with Appellant that although the trial court
      employed the proper standard for admitting his extra-judicial
      statements, the trial court failed to utilize the correct standard
      regarding its consideration of the statement. However, even
      excluding the alleged erroneously admitted inculpatory
      statements of Appellant, and the Coroner's report as well, the
      circumstantial evidence alone was sufficient to convict Appellant
      of murder.
      ....

      Based upon the aforementioned facts, we are satisfied that there
      was sufficient evidence to support the trial court's conclusion
      that the Commonwealth proved Appellant's guilt beyond a
      reasonable doubt even excluding Appellant's extra-judicial
      statements.

Id. at 730. Herein, the victim testified that she was asleep as a result of

intoxication, woke up and saw Appellant on top of her, felt his penis inside

her, attempted to push him off, and did not consent to sexual intercourse at

any point. This testimony easily satisfies the elements of the two charged

rape crimes. Commonwealth v. Gonzalez, 109 A.3d 711, 720 (Pa.Super.



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2015) (“The Crimes Code defines rape in pertinent part as follows: “A person

commits a felony of the first degree when the person engages in sexual

intercourse   with    a   complainant   .      .   .   by   forcible    compulsion.”);

Commonwealth v. Price, 616 A.2d 681, 683 (Pa.Super. 1992) (a victim

who   is   sleeping   when   sexual   intercourse      is   initiated   is   considered

unconscious for rape of an unconscious person charge). As the trial court

noted in addressing the merits of this claim, the victim’s testimony standing

alone is sufficient to convict. “A rape victim’s uncorroborated testimony to

penal penetration is sufficient to establish sexual intercourse and thus

support a rape conviction.”    Commonwealth v. Wall, 953 A.2d 581, 583

(Pa.Super. 2008). Thus, the corpus delicti issue is meritless.

      Finally, Appellant raises a challenge to the weight of the evidence.

Appellant properly preserved this issue in a post-sentence motion and the

trial court addressed the claim. Commonwealth v. Stiles, 143 A.3d 968,

980 (Pa.Super. 2016) (“[A] defendant must present his challenge to the

weight of the evidence to the trial court for a review in the first instance.”).

The trial court found that the weight of the evidence supported the jury’s

verdict, setting forth its reasoning as follows:

      [T]he specific points of evidence raised to support [the weight]
      claim are attacks upon the credibility of the victim.           The
      credibility of witnesses is an element of the weight of the
      evidence, exclusively for the finder of fact who is free to believe
      all, part, or none of the evidence and to determine the credibility
      of the witnesses. Therefore, we will examine Defendant’s claim
      through the lens of the weight of the evidence. A verdict is
      against the weight of the evidence only when that verdict is so

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      contrary to the evidence as to shock one’s sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail. When considering a weight of
      the evidence claim, the role of the trial court is to determine that
      notwithstanding all the evidence, 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. A court reviewing the
      evidence cannot substitute its judgment for that of the jury on
      issues of credibility.

      In the instant case, Defendant’s conviction is not so contrary to
      the evidence as to shock one’s sense of justice. . . . Even though
      there were inconsistencies in the victim’s statements over the
      course of the investigation, the jury chose to find her trial
      testimony credible. The jury, as the factfinder, was entitled to
      believe some, all, or none of the various statements made by the
      victim, and chose to accept her testimony that she was raped by
      Defendant and render a guilty verdict. Moreover, the jury heard
      an audio recording wherein Defendant admitted his culpability in
      a telephone call with the victim recorded by police. The jury’s
      verdict was not against the weight of the evidence presented by
      the Commonwealth, therefore Defendant’s motion must be
      denied.

Order Denying Post-Sentence Motions, 2/23/16, at 1-2 (quotation marks and

citations omitted).    The foregoing discussion cogently sets forth the

applicable law and the rationale for denying the claim.      In reviewing this

conclusion, we do not review the underlying weight of the evidence claim;

instead, we review the judge’s exercise of discretion in ruling on the claim.

“Appellate review of a weight claim is a review of the exercise of discretion,

not of the underlying question of whether the verdict is against the weight of

the evidence.” Commonwealth v. Smith, 146 A.3d 257, 264–265 (Pa.

Super. 2016) (citation omitted). We discern no such abuse of discretion.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2017




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