HomeMy WebLinkAboutCP-21-CR-0000752-2015
This one for L.J.
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO. CP-21-CR-752-2015
:
:
THOMAS MARTIN BALDWIN : AFFIANT: DET. MATTHEW JOHNSTON
OPINION PURSUANT TO PA. R.A.P. 1925
On March 24, 2016, at the conclusion of a jury trial, Appellant was found guilty of
the following: Count 5, Aggravated Assault; Count 6, Firearms Not to be Carried
Without a License; Count 7, Unlawful Restraint; Count 8, Terroristic Threats; Count 9,
Simple Assault – Bodily Injury Caused; Count 10, False Imprisonment; Count 12, Rape
by Forcible Compulsion; Count 13, Rape by Threat of Forcible Compulsion; Count 14,
Sexual Assault; Count 15, Sexual Assault; and this Court found Appellant guilty at Count
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11, Harassment, a summary offense. On July 19, 2016, following review of a pre-
sentence investigative report (PSI), we sentenced the Appellant to the following terms of
imprisonment: on Count 5, Aggravated Assault, a felony in the first degree, a period of
not less than forty-eight months nor more than ninety-six months; on Count 6, Firearms
Not to be carried Without a License, a felony in the third degree, not less than twelve
months nor more than twenty four months; and on Count 12, Rape by Forcible
Compulsion, a felony in the first degree, not less than sixty months nor more than one
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hundred and twenty months. On Counts 7, 8, and 9, Appellant was to serve one year of
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probation under state supervision to run concurrently. Counts 10, 14, and 15 merged
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with other counts for sentencing purposes. All sentences of imprisonment were ordered
1
Order of Court, In Re: Petitioner Found Guilty/Verdict/Appear, April 1, 2016. He was found not guilty
on two counts, one count of Rape of an Unconscious or Unaware Person, and one count of Involuntary
Deviate Sexual Intercourse of an Unconscious or Unaware Person. Order of Court, In Re: Appellant
Found Guilty/Verdict/Appear, April 1, 2016 (Peck, J.)
2
Order of Court, In Re: Sentence, July 21, 2016.
3
Order of Court, In Re: Sentence, July 21, 2016.
4
Order of Court, In Re: Sentence, July 21, 2016 (Peck, J).
to run consecutively, with the total sentence being not less than ten years and not more
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than twenty years.
This Court denied a Motion for Extraordinary Relief made by Appellant’s private
counsel prior to the start of the sentencing hearing. The Motion was substantially based
on three allegations: 1) that the Court erred in admitting 404(b) evidence under the
common plan, scheme or design exception; 2) that the Commonwealth acted improperly
with regards to disclosing the fact that C. H. had deleted certain text messages from her
phone the morning after the incident; and 3) allegations that the Commonwealth did not
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timely turn over information regarding a potential witness Mr. McGeehan.
On July 21, 2015, this Court granted Appellant’s private counsel’s Motion to
Withdraw as Counsel, appointed the Cumberland County Public Defender office to
represent the Appellant for purposes of appeal, and ordered counsel to file any post-
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sentence motions within thirty days of the receipt of the transcripts in the matter. On
August 19, 2016, Appellant filed a Post-Sentence Motion by and through attorney
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Michael Halkias, a public defender appointed for purposes of appeal. The Post-Sentence
Motion requested that this Court vacate the conviction and sentence imposed based
substantially on the same three arguments raised by Appellant’s prior counsel in his
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Motion for Extraordinary Relief. In the same motion, counsel averred that he had not
yet received all of the transcripts in the matter, and requested permission to amend the
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motion if necessary upon receipt of such transcripts. The Post-Sentence Motion was
filed nunc pro tunc; this Court clarified in a later Order dated September 26, 2016, that it
had allowed the Appellant to file the post-sentence motion late in consideration that the
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Public Defender office had just been appointed after sentencing.
5
Order of Court, In Re: Sentence, July 21, 2016 (Peck, J).
6
Order of Court, In Re: Oral Motion for Extraordinary Relief, July 21, 2016 (Peck, J); Order of Court, In
Re: Appellant’s Post-Sentence Motion September 26, 2016 (Peck, J).
7
Order of Court, In Re: Withdraw Counsel/Appoint Public Defender/ Request Transcripts/Appellant
Remains in CCP, July 21, 2016 (Peck, J).
8
Appellant’s Post-Sentence Motion, 08/19/2016.
9
Appellant’s Post-Sentence Motion, August 19, 2016.
10
Id.
11
Order of Court, In Re: Appellant’s Post-Sentence Motion September 26, 2016 (Peck, J).
2
A hearing was held on the Post-Sentence Motion on November 22, 2016 at which
time the Commonwealth argued this Court lacked any jurisdiction to hear the Post-
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Sentence Motion because it was filed one day past the thirty-day window for appeal.
Recognizing the remedy through a subsequent PCRA Petition would be to reinstate
Appellant’s direct appellate rights, that the Public Defender had only been appointed on
the day of sentencing and had voluminous transcripts to review, which may or may not
have been available at the time, and noting the Post-Sentence Motion was filed just one
day late, in the interests of judicial economy this Court reviewed the substantive
arguments raised in the Post-Sentence Motion, together with the parties’ oral arguments
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and cited case law, and denied the same. On December 29, 2016, Appellant filed the
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following Concise Statement of Errors Complained of on Appeal:
1.The \[T\]rial \[C\]ourt abused its discretion when it admitted evidence related to
Mr. Baldwin’s prior relationships with two other females under PA.R.E. 404(b)
because the facts of the instant case and the facts of the two past relationships
were not sufficiently similar to demonstrate the existence of a common scheme
or plan, and in fact, had such significant dissimilarities that the incidents were
not so unusual and distinctive as to be like a signature.
2.The Trial Court improperly denied Defendant’s Motion for Extraordinary
Relief and request for new trial when the Commonwealth failed to disclose that
C. H. intentionally deleted text messages from her phone which related to her
relationship with Mr. Baldwin despite being aware of that information on the
day C. H. reported the incident to police, and failed to disclose, prior to trial,
that C. H. was involved in a sexual relationship with one of the police officers
who responded to her home on the day of the incident. The Commonwealth’s
failure to timely disclose this information significantly impaired defense
counsel’s ability to investigate alternate defense theories and to formulate trial
strategy.
3.The Commonwealth failed to introduce sufficient evidence to convict
Defendant beyond a reasonable doubt of the above-captioned offenses where:
a.The evidence presented at trial was insufficient to sustain a conviction
on the charges of Rape and Sexual Assault because the evidence proved
that C. H. invited Mr. Baldwin over to her \[house\] on the night of the
incident for the sole purpose of engaging in sexual intercourse with him,
and that she and Mr. Baldwin had a history of engaging in rough sex
12
Order of Court, In Re: Appellant’s Post-Sentence Motion Nunc Pro Tunc November 29, 2016 (Peck, J).
13
Order of Court, In Re: Appellant’s Post-Sentence Motion Nunc Pro Tunc November 29, 2016 (Peck, J).
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Concise Statement of Errors Complained of on Appeal, December 29, 2016.
3
where restraints, chocking \[sic\], and other acts of physical violence
occurred.
b.The evidence presented at trial was insufficient to sustain a conviction
on the charges of Unlawful Restraint and False Imprisonment because
the Commonwealth could not provide that Mr. Baldwin unlawfully
restrained C. H. when she testified that she had willingly used handcuff-
type restraints on prior occasions during sexual intercourse with Mr.
Baldwin and she further testified that on this occasion, specifically, she
voluntarily put her hands behind her back to be restrained.
c.The evidence was insufficient to sustain convictions for Terroristic
Threats, Aggravated Assault, Simple Assault, and Harassment because
the Commonwealth failed to establish that Mr. Baldwin acted with the
requisite mens rea necessary to sustain each of those crimes.
4.Mr. Baldwin’s conviction was against the weight of the evidence so as to shock
one’s sense of justice when the uncontradicted evidence proved that the
incident that lead to the instant offenses \[sic\] C. H. admitted that she and Mr.
Baldwin had consensual sex that evening, and she further admitted that she and
Mr. Baldwin had previously discussed and voluntarily engaged in rough sexual
intercourse involving the use of restraints and acts of physical violence.
For the following reasons, Appellant’s convictions should be upheld.
FINDINGS OF FACT AND PROCEDURAL HISTORY
Appellant was tried on 11 assorted criminal counts related to an alleged rape and
sexual assault of C. H.. On the night of March 5, 2016, Appellant Thomas Baldwin went
to C. H.’s home in the early morning hours. He and C. H. had been in a “friends with
benefits” relationship (consisting of sex without emotional attachment) since late January
2015 and arranged to have a sexual encounter on the night in question. N.T. Vol. 2 at 15-
16, 100-101.
C. H. gave the following account: the encounter between them began
consensually, but quickly became non-consensual. N.T. Vol. 2 at 15-17. They started
kissing and becoming intimate. Id. at 16. Appellant restrained her wrists (with a sexual
restraint called “bad girl bracelets”) and placed a belt around her neck. Id. She said
“Come on, do we really have to do this?” and stated she “didn’t want to.” Id. at 17. She
asked him not to do it, and her told her “it was her dog collar” and she “need\[ed\] to obey
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\[him\]. Id. He stood beside the bed and told her to “suck his \[penis\].” Id. at 18. When
she said, “Do we really have to do this?”, he told her to shut up and made the belt tighter
around her neck. Id. She then sucked his penis. Then he got behind her and told her he
was going to “fuck her in the ass”. Id. C. H. begged him not to do so, but he told her to
spit on his hand because he was “doing her a favor,” and then he penetrated her. Id.
Crying and in pain, C. H. asked him to stop and begged him not to do it. Id. She tried to
get away from him and scream, but Appellant tightened the belt around her neck. Id. at
19. C. H. tried to fight to get away from him but she could not get out from beneath him.
Id. With her hands still restrained behind her, all she was able to do was pinch him in the
stomach. Id. Appellant continued to make the belt tighter and tighter, telling her to shut
up as he did so, and though she tried to scream, she could not. Id. The pressure
continued to build up in C. H.’s head, until she felt her limbs go weak and she blacked
out. Id. at 19-20. C. H. testified Appellant continued to penetrate her anally as she lost
consciousness. Id.
After an unknown amount of time, C. H. regained consciousness. Id. at 20. She
was facedown in her bed, and everything was kind of “hazy”; she thought good, what had
happened was a dream. Id. Then Appellant started talking to her and she realized he was
really there. Id. She realized he had removed the belt from her neck. Id. Hoping to
prevent him from choking her with the belt again, she thanked him for taking the belt off.
Id. Appellant asked her if she liked it, and then he put his arm around her neck from
behind and began choking her again. Id. at 20-21. C. H. was still face down on the bed,
with her arms restrained behind her. Id. She struggled to get free and one of her arms
slipped free of the restraint. Id. at 21.
Using her free arm, C. H. was able to push herself away from Appellant, off the
bed to stand on the floor. Id. at 21. She told him to stop and that she didn’t want to do it.
Id. at 22. Appellant tried to push C. H. back on the bed, telling her he wasn’t “done with
\[her\] yet.” Id. at 22. C. H. then punched him in the face several times. Id. In response,
Appellant angrily pushed her to the floor and put one hand around her throat, choking her
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again, while repeatedly punching her in the face with his other hand. Id. at 22-23. As he
choked and punched her, he told her he should just kill her. Id.
With his hand around her throat, C. H. told Appellant she would do whatever he
wanted her to do if he would just stop choking her. N.T. Vol. 2 at 22. C. H. acquiesced
to everything Appellant wanted after this point out of fear. Id. at 31. He told her she was
a “worthless bitch”, that she made his penis soft, and that she needed to “suck it to make
it hard again.” Id. at 24. Complying with Appellant’s orders, she sucked on his penis.
Id. at 24. Then Appellant told her to stand up and bend over the bed again. Id. at 24. He
penetrated her anally again. Id. at 24. While penetrating her, he asked her if she liked it;
she said yes because she thought that was what he wanted to hear. Id. Then he told her
lay down on the bed and suck his testicles and to lick his anus, which she did. Id. at 24-
25. Then he ejaculated on her face. Id.
After Appellant ejaculated, he sat down on the bed and removed the restraint from
C. H.’s wrist. N.T. Vol. 2 at 25. He told her she was “lucky” because “the girl who hit
\[him\]” was dead. Id. at 25. He told her to promise him she wouldn’t say anything about
what happened, to which she replied, “I promise”. Id. at 29-30. Appellant continued by
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saying “If I go to jail, I will come after you, do you understand?” Id. at 30. Appellant
then got dressed to leave and as he walked out, with his back to C. H., he said, “Please
don’t contact me, I already feel awful about what happened.” Id. at 31. C. H. testified
that after Appellant left she was crying and upset. Id. at 31. She could see in a mirror
that her eyes were all swollen, so she iced them. Id. at 32. Blood was coming out of her
nose, and she could taste it in her mouth. Id. at 32.
A text exchange between Appellant and C. H. in the early morning of March 5th, a
few hours after the incident, showed Appellant said “alcohol is not an excuse” and
“\[C.H.\] I’m sorry.” Commonwealth’s Exhibit 35. C. H. then texted “I trusted you. This
is the worst night of my life.” Id. Appellant’s response was “I would do anything to take
it back, I was the worst possible person ever. I will be a punching bag for you if you
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This statement was accompanied by a limiting instruction that it was to be considered only for the
effect it had on the listener. N.T. at 30-31.
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want.” Commonwealth’s Exhibit 36. C. H. said, “Please promise you won’t do that to
anyone again.” Id. He responded, “I won’t, I promise.” Id.
A few hours after Appellant left C. H.’s home, she contacted two friends and told
them Appellant had raped her. N.T. at Vol. 2 at 43-44. She initially did not want to call
the police because she was embarrassed and scared about what Appellant would do to her
if he found out she had reported it. Id. at 43-44, 61. She contacted one friend, Mike
McGeehan, to get a ride to the hospital. Id. at 44. Mr. McGeehan, who was in the police
academy at the time, called 911 and officers from the North Middleton Township Police
Department were dispatched to C. H.’s home. See, Id. at 44, 103-104. After Mr.
McGeehan told her the police were on their way but before the officers arrived, C. H.
deleted from her phone a number of text messages between her and Appellant. Id. C. H.
testified she did this because she was embarrassed about their content. Id. at 103. Mr.
McGeehan also arrived at her home and later drove C. H. to the hospital, where she was
treated by emergency room staff. Id. at 166.
Appellant was arrested later that day at his place of employment. Appellant’s
primary defense rested on his assertion that C. H. consented to the activities which
occurred that night as part of a consensual relationship oriented toward rough sex or
kinky or fetish-type activities. N.T. Vol. 3 at 106. According to Appellant, he and C. H.
had previously discussed or engaged in all of the activities that occurred that night and
that she expressed consent specifically on the night in question. Id. at 106-143. He had
shown C. H. the “quick release” on the cuffs the first time they used them, and on the
night in question, C. H. released the cuffs herself after he stopped consensually choking
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her and she rolled onto her back. Id. at 126, 141-142. He showed C. H. the belt before
he put it around her neck and explicitly agreed to its use. Id. at 130. He applied only a
slight or low pressure for only a few seconds at a time and then released the belt to
restore blood flow. Id. at 138-140; 164-65. They had previously arranged for a “safe
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C. H. did state that Appellant had shown her how to use the quick release on the cuffs, but not until
after the first time they used them, in late February 2016. She was not questioned at trial as to whether
th
she tried to use the quick release on March 5, but her testimony indicated she slipped an arm free while
struggling to get away, without consciously using the quick release. N.T. Vol. 2 at 20-21.
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signal” – if C. H. tapped on his arm, he would stop applying pressure. Id. at 140. That
night, C. H. utilized the safe signal and tapped on his arm. Id. He stopped immediately
and took the belt off her. Id. at 140-141. He never punched C. H. with a closed fist, but
he did erotically slap her. Id. at 142. He testified that he began to slap her lightly at first,
as they “got more aggressive with each other” and then “starting smacking her harder,
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until I hit her too hard and she said stop.” Id. at 142. The only unwanted force he
admitted to using on the night of the incident was getting “a little out of control with the
slapping.” Id. at 178. Furthermore, Appellant said he did not hit her at all after she said
to stop. Id. at 143. He said they stopped having sex completely. Id. He stated C. H. was
not crying after he stopped slapping her and when he asked her if she was ok, she said
she was fine. Id. They then resumed having sex, until he ejaculated on her face, which he
claimed was part of the mutual fantasies they shared. Id. at 143. Appellant said the
sexual encounter then ended and he told C. H. he had to leave because he had work later.
Id. at 144. Appellant said that before he left, he told C. H. he could not see her anymore
because he wanted to focus on his-long term relationship with his girlfriend and wanted
to “cut back” on seeing her and texting her. Id. 144-146. Appellant said C. H. was quiet
and seemed disappointed when he left, but was not crying or showing other signs of
being upset. Id. at 146-147. Appellant implied C. H. was upset with him for ending the
relationship. Id. at 146-149.
Appellant testified the apology texts he sent to C. H. – where he said he was the
“worst person ever” – referenced the erotic slapping which he thought got “a little out of
hand.” N.T. Vol. 3 at 148. He apologized because he didn’t want to get into a “full
blown argument” with C. H. about what he saw as the bigger issue, that he was trying to
end the relationship while she wanted it to be more serious. Id. at 148. Appellant denied
ever threatening to harm C. H. or making any threat to kill her. Id. at 147. He denied
ever forcing her to do anything she didn’t want to do, and specifically denied forcing her
to perform oral sex on him, to engage in anal sex, erotic bondage, or erotic strangling
beyond to what she had consented. Id. at 161. He denied that she passed out. Id. at 168.
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Appellant told Detective Johnston he hit C. H. just three times. N.T. Vol. 2 at 182.
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He denied causing all the injuries visible in the photographs of C. H. introduced at the
trial by the Commonwealth, stating that when he left she was “fine” and the only injuries
he saw were some redness from the strangling and a red mark on her cheek from where
he had slapped her. Id. at 164-168.
C. H. and Appellant gave different accounts of their relationship leading up to the
incident. Appellant stated that C. H. was aggressive during sex and into sharing sexual
fantasies that included violence and bondage or fetish type activities. N.T. Vol. 3 at 99,
106-108, 113, 121. Appellant stated that the activities are characteristic of a bondage
type relationship, where one person is dominant and one is submissive. Id. at 176. C. H.
testified that while she did exchange sexually explicit text messages with Appellant, their
sexual relationship was not in actuality particularly rough, kinky or fetish-oriented. N.T.
Vol. 2 at 108-109. She did not think of their relationship as being marked by a “fetish
lifestyle”. Id. at 108. She testified that she generally “laughed it off” when Appellant
suggested kinky or fetishistic activity, and that their text communications reflect that she
often was just humoring him when he initiated conversation on those topics. At trial, all
text messages exchanged between Appellant and C. H. over the course of their
relationship and recovered from Appellant’s phone were entered into evidence. See,
Commonwealth Exhibits 12-36, Defense Exhibits 5-20, 23-24 (a disk and CD of all text
messages), and 26-36. One of the exchanges highlighted at trial went as follows:
Appellant: I’m ready to fuck
C. H.: Lol are you
Appellant: yeah I’m ready to fuck your tight little ass
Appellant (an hour later): I think you need a dog collar and a ball gag
C. H.: Lol I don’t think so
18
Commonwealth Exhibit 12.
Appellant stated that when C. H. gave a response such as “lol I don’t think so” to
one of his suggestions, he thought it didn’t necessarily mean “no”, but that the issue was
18
The history of exchanges shows C. H. often gave a noncommittal or lukewarm response when she was
not plainly negative. E.g., from another conversation around the same time, Commonwealth Exhibit 14:
Appellant: \[picture of woman in dog collar bondage outfit\] I’m going to get this for you
C. H.: lol you’re nuts lol I don’t think so
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“something they could discuss.” N.T. Vol. 3 at 172. He also admitted to being the
initiator of anal sex, erotic choking or strangulation, and strangulation with a belt. Id. at
174. However, C. H. and Appellant also gave conflicting testimony about erotic choking
and anal sex between them prior to the incident on March 5th. Appellant claimed that
they had used erotic choking on more than one occasion, and that on the most significant
time they tried it C. H. expressed no complaints at the time, only stating the next day, in a
text message, that she did not like to be choked for “too long”. N.T. Vol. 3 at 123-124,
128. In contrast, C. H. testified that she did not like it when it occurred and tried to
squirm away from Appellant but he did not stop until he ejaculated. N.T. Vol. 2, 45-47,
81-82, 97. She testified she was crying and told him she didn’t want to do it again, and
he said it wouldn’t happen again. Id. They also exchanged messages about C. H.’s eyes
being bloodshot from the choking. Id. at 83-84; Commonwealth’s Exhibit 11. Appellant
claimed they had anal sex on more than one occasion, while C. H. testified that she did
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not remember ever having anal sex with Appellant. Furthermore, Appellant testified
they had engaged in mutual erotic slapping and spanking. N.T. Vol. 3 at 135, 178.
Substantial other evidence regarding C. H.’s injuries was presented. The evidence
included: multiple photographs of bruises and red marks on C. H. taken at the hospital on
March 5, 2016; multiple photographs showing purple bruising and swelling on C. H.’s
body on March 12, 2016; the testimony of Dr. Scott Miekley, an emergency room
physician who treated C. H. and who testified at trial as an expert in blunt force trauma
and strangulation injuries; and a report prepared by Dr. Miekley for the Commonwealth
describing C. H.’s injuries. See, Commonwealth’s Exhibits 37-50, Defense Exhibit 25,
and N.T. Vol. 3 at 37-63.
Dr. Miekley testified that C. H.’s injuries were consistent with what she reported
had happened to her (restraint, choking to the point of unconsciousness, and punching).
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On February 2, Appellant sent C. H. a text that sad, “lol we should get drunk and fuck and try anal.”
She responded, “lol I don’t know about that one \[winky face\]”. Defense Exhibit 34. A text message
exchanged between them in mid-February referenced trying anal “again”. N.T. Vol. 2 at 109, Defense
Exhibit 13. C. H. testified it could have occurred one night when she was drunk in early February when
she passed out and Appellant stayed at her house. N.T. at 109.
10
N.T. Vol. 3 at 57. The bruising around C. H.’s eyes and face indicated blunt force trauma
comparable to someone getting into a boxing ring without gloves “if they were boxing
without gloves”. Id. at 62; see, Commonwealth Exhibits 45-47. He testified the red
rash-looking markings on her face, chest, and neck were petechial hemorrhaging, which
are ruptures of small blood vessels and are caused by the exertion of significant force on
the body, such as with strangulation. N.T. Vol. 3 at 40-62; see, Commonwealth Exhibits
37-50. C. H. had particularly significant hemorrhages in her eyes; the whites of her eyes
were almost completely blood red, and her left eye was marked by several darkish purple
or black areas, which Dr. Miekley explained were subconjunctivial hemorrhages
associated with blunt force trauma or the exertion of significant internal pressure. N.T.
Vol. 3 at 40-62. Dr. Miekley also stated that C. H. had petechial hemorrhaging in her ear
drums, which can indicate significant internal pressure was exerted. Id. at 49-51. Dr.
Miekley testified that even a brief period of strangulation could lead to brain damage. Id.
at 55-57. He further testified that C. H.’s injuries could have caused serious bodily
injury, and that she was “lucky” to not have suffered serious bodily injury. Id. at 57. C.
H. herself testified that the swelling and bleeding in her eyes made it difficult for her to
see for weeks, and that her face didn’t “clear up” for at least a month. N.T. Vol. 2 at 38-
39; 98. Some of the bruising on her body lasted for weeks. Id. at 40. The photos entered
into evidence showed C. H.’s injuries both on the day of the incident and a week later; in
the later photographs the injuries have subsided but bruising and redness are still visible.
See, Commonwealth Exhibits 37-50.
Furthermore, investigating officer Detective Matt Johnston testified about the
timeline of events that occurred and also gave testimony related to the credibility of C. H.
and Appellant. He testified C. H.’s accounts about what happened to her had been
consistent from the morning of the incident up until and through trial. N.T. Vol. 2 at 166.
Upon first seeing C. H., he believed she had suffered some type of traumatic assault due
to the severity of her injuries. Id. at 157. He had never seen someone’s eyes so full of
blood. Id. In his experience, the injuries he observed on C. H. were not consistent with
the type of force Appellant said he had used on C. H. (three open handed slaps,
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increasing in force). Id. at 182. Detective Johnston also provided rebuttal testimony that
served to undermine Appellant’s credibility, where, in a phone call with a different
female, Appellant told her he did not remember what had happened that night with C. H.,
blaming his lack of memory on having taken drugs. Id. at 188. This statement
contradicted Appellant’s trial testimony and statement he made during an interview with
police on the day he was arrested. In both his testimony and the interview, Appellant had
a clear memory of all of the events of the evening, but instead asserted that everything
that happened with C. H. was consensual.
Other testimony adduced at trial particularly significant to the issues raised by
Appellant on appeal follows.
a.Testimony from Appellant’s Previous Girlfriends
Following a hearing held March 21, 2016, immediately prior to trial, where victim
and two of Appellant’s previous girlfriends testified, this Court allowed the
Commonwealth to present evidence of Appellant’s prior conduct under the Common Plan
or Scheme exception to Pennsylvania Rule of Evidence 404(b). An incident involving E.
D. took place in April 2014, just over a year before the incident in question; and an
incident with K. W. took place in May 2012. This Court found:
The habit and pattern of the Appellant and the time, place and type
of alleged victim were such that the Appellant in each instance chose
\[a\] young woman between the ages of approximately 16 to
approximately 26-years old, that the Appellant initiated a
relationship with each, that after a period of time with each witness
Appellant would request sexual intercourse, and if the witness
denied that request, then in a bedroom the Appellant would force the
alleged victim to the bed and pin down their arms and attempt to
force or did force the individual to have sexual intercourse, with the
conduct surrounding that force escalating in the force level used with
respect to each individual. The Court further found similarities
regarding the Appellant attempting to choke the individuals,
obstructing her airway, pinning each of them to the bed, and holding
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his body weight in an attempt to have sexual intercourse.
20
Order of Court, In Re: Appellant’s Supplemental Motion in Limine & Appellant’s Second
Supplemental Motion in Limine March 24, 2016 (Peck, J)
12
See also, N.T. Vol. 2 at 112-130 (testimony of E. D.); Id. at 130-143 (testimony of
K. W.). The Court found the incidents were not too distant in time to be relevant to the
incident in question. The Court found the evidence was relevant given Appellant planned
to assert at trial the defense of C. H.’s consent. Finally, the Court found the probative
21
value was not outweighed by the prejudicial effect. The jury received a limiting
instruction that the testimony of the two women was to be considered only for the
purposes of whether there was a common scheme, plan, or design, and not as evidence of
Appellant’s bad character or criminal tendencies. N.T. Vol. 2 at 142-143; N.T. Vol. 4 at
22
16.
21
Id.
22
The instruction was given twice – once after the two witnesses testified, and once in closing jury
instructions, we note the closing jury instruction was more comprehensive in that it defined use if these
prior bad acts for 404(b) purposes more generally as set forth in the standard jury instruction on same.
13
b.Text Messages Deleted from C. H.’s Phone
Defense counsel discovered that C. H. had deleted text messages from her phone
when he compared phone records from C. H.’s phone with records from the Appellant’s
23
phone. C. H. admitted to the investigating detective that she had deleted the messages
just a few hours after she did so, when the detective interviewed her at the hospital on
March 5, 2016. N.T. Vol. 2 at 44; N.T. Vol. 3 at 170.
The text messages she deleted included communications between her and
Appellant dated from between January and March, 2016. They included the sexually
explicit messages, previously discussed supra, which Defense used to bolster his
argument that the events of the night in question were a consensual part of kinky or
fetishistic sexual activity.
Defense counsel’s analysis also found no text messages on C. H.’s phone at all
from March 5 to mid-June, 2015, leading him to believe they had been deleted. N.T.
Proceedings 404B at 14. Defense counsel believed C. H. may have deleted text messages
from that time which were exchanged with friends or acquaintances regarding Appellant
or the events of March 5, 2015. Id. at 34-35. Defense counsel did not present any
concrete information about the existence of any relevant text messages, only conjecture
based on the complete absence of text messages during the relevant window. Id. C. H.
testified she routinely deleted text messages as her inbox got full. N.T. Vol. 2 at 105.
Prior to trial, it was determined the jury would receive an instruction regarding the
missing cellphone evidence (Standard Jury Instruction 3.21B), which would allow the
24
jury to draw inferences unfavorable to the Commonwealth. The jury was instructed it
could draw an unfavorable inference if three conditions were met: 1) the item was
available to one party and not the other, 2) it appeared that the item contained or showed
23
Proceedings, In Re; 404(B) Hearing, Defense counsel had records from Appellant’s phone in his
possession since August, 2015. Proceedings, 404B at 20. C. H. told the investigating detective that she
had deleted the messages just a few hours after she did so, on the morning of March 5 when he
interviewed her at the hospital. N.T. Vol. 2 at 44.
24
Order of Court, In Re: Appellant’s Supplemental Motion in Limine & Appellant’s Second
Supplemental Motion in Limine, March 21, 2016.
14
special information material to the issue, and 3) the item would not be merely cumulative
evidence. N.T. Vol. 4 at 17-18.
The entire record of text exchanges recovered from Appellant’s phone, which
included all the messages deleted by C. H. from her phone, was entered into evidence.
See, Commonwealth Exhibits 12-36, Defense Exhibits 5-20, 23-24 (a disk and CD of all
text messages), and 26-36. Both defense counsel and the Commonwealth’s attorney
questioned C. H. and Appellant about a number of specific text messages and text
exchanges. See, Testimony of C. H., N.T. Vol. 2 at 8-112; Testimony of Thomas
Baldwin, N.T. Vol. 3 at 84-187.
c.Prior Relationship with Potential Witness
On the second day of trial, the Commonwealth’s attorney brought to the attention
of the Court an issue regarding Mike McGeehan, the friend of C. H.’s who called the
police on the morning of March 5th and drove her to the hospital. N.T. Vol. 2 at 140-
141; 184-190. By the time of trial, Mr. McGeehan had graduated from the police
25
academy and joined the Middlesex Township Police department. The Commonwealth
had subpoenaed Officer McGeehan and he was present at trial as a potential witness.
Defense counsel was aware of his status as a potential witness. On the second day of
trial, the Commonwealth’s attorney, Mr. Nathan Boob, informed the court that Officer
McGeehan had approached him that morning and disclosed that he and C. H. had been in
a romantic relationship that ended some months prior to March 5, 2016. N.T. Vol. 2 at
140-141; 184-190. Mr. Boob disclosed this information to defense counsel and to this
Court prior to the restart of trial. This Court, Mr. Boob, and defense counsel discussed
the issue in chambers off the record prior to the restart of trial and at side bar several
times during the trial. The Court noted the information that Mr. McGeehan and C. H. had
been in a relationship might be barred by the Rape Shield protections, but that it also
might fit an exception and offered defense counsel an opportunity to have a hearing on
25
Mike McGeehan’s position at the time of the incident versus at the time of trial was not clarified for all
parties on the record until after trial. See, N.T. Post-Sentence Motion Nunc Pro Tunc, December 26,
2016, at 27-28. The record of Officer Johnston’s initial interview with Mr. McGeehan was turned over to
the defense prior to trial and defense was aware he was a potential witness for the commonwealth. Id.
15
the issue. N.T. Vol. 2 at 184-190. Defense counsel declined a hearing on the matter. Id.
Mr. Boob further stated that because Officer McGeehan’s testimony would be
cumulative, he had decided not to call him. Id. It was agreed that the fact that C. H. had
contact with someone who later became a police officer before she deleted the text
messages on her phone on the morning of March 5th would be admissible, and could
come out through the testimony of other witnesses. Id.
On March 24, 2016, the trial concluded after more than two days of testimony and
nine hours of jury deliberations. Appellant was found guilty of the charges as listed
supra, and not guilty of two other charges, rape of an unconscious or unaware person and
26
involuntary deviate sexual intercourse of unconscious or unaware person. At the
sentencing hearing, prior to being sentenced, Appellant made a Motion for Extraordinary
Relief, based on: allegations that the Commonwealth erred in introducing the 404(b)
evidence; C. H.’s deleted text messages; and allegations that the Commonwealth did not
27
timely turn over information regarding a potential witness, Mr. McGeehan. After a
28
hearing on the same, Appellant’s Motion for Extraordinary Relief was denied.
Appellant’s Post-Sentence Motion requesting a new trial, which was based on the same
29
arguments, was also denied.
DISCUSSION
This Court will now address each of Appellant’s Errors in order as presented in his
Statement of Errors.
1.Evidence Admitted Under 404(b) was Admissible, or Alternatively, Harmless
Error
Appellant argues the trial court abused its discretion when it admitted evidence
related to Mr. Baldwin’s prior relationships with two other females under PA.R.E. 404(b)
because “the facts of the instant case and the facts of the two past relationships were not
26
Order of Court, In Re: Appellant Found Guilty/Verdict/Appear, April 1, 2016 (Peck, J).
27
Order of Court, In Re: Oral Motion for Extraordinary Relief, July 21, 2016 (Peck, J).
28
Id.
29
Defendant’s Post-Sentence Motion, August 19, 2016.
16
sufficiently similar to demonstrate the existence of a common scheme or plan, and in fact,
had such significant dissimilarities that the incidents were not so unusual and distinctive
30
as to be like a signature.” When ruling on a trial court’s decision to grant or deny a
motion in limine, the appellate courts apply an evidentiary abuse of discretion standard of
review. Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010) (internal
citations omitted). The admission of evidence is committed to the sound discretion of the
trial court, and a trial court’s ruling regarding the admission of evidence will not be
disturbed unless that ruling reflects “manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.” Id.
Evidence of prior bad acts to show that a defendant acted in conformity with bad
character is not permissible. “Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity therewith."
Pa.R.E. 404(b)(1). However, "Such evidence may be admissible for another purpose,
such as proving the existence of a common scheme, establishing an individual's motive,
intent, or plan, or identifying a criminal defendant as the perpetrator of the offense
charged." Pa.R.E. 404(b)(2). The courts have held:
Evidence of prior bad acts may be admitted to establish the existence
of a common scheme, \[establish\] an individual's motive, intent, or
plan, or \[identify\] a criminal Appellant as the perpetrator of the
offense charged. Two conditions must be satisfied to admit prior-
crimes evidence to establish a common scheme: (1) the probative
value of the evidence must outweigh its potential for prejudice
against the Appellant and (2) a comparison of the crimes must
establish a logical connection between them.
Commonwealth v. Ivy, 146 A.3d 241, 253 (Pa. Super. 2016).
This Court found the evidence of the prior bad acts to be distinctive and the
31
“signature” of the Appellant, or the habit and pattern of the Appellant. This Court
30
Concise Statement of Errors Complained of on Appeal, December 29, 2016.
31
Order of Court, In Re: Appellant’s Supplemental Motion in Limine & Appellant’s Second
Supplemental Motion in Limine March 21, 2016.
17
32
found Appellant perpetrated on the same types of victims in a distinctive way. This
Court further found the probative value of the evidence would not be outweighed by the
33
prejudicial effect. In so concluding, this Court specifically considered that, as made
clear by Appellant in hearings leading up to trial, the defense strategy at trial would be
that the victim consented to all of the events underlying the charges. The evidence was
admitted under the common plan, scheme, or design exception. See, 404(b)(2); N.T. Vol.
34
2 at 142-43; N.T. Vol. 4 at 16.
The courts evaluate 404(b)(2) evidence admitted for the purpose of establishing a
defendant’s identity differently from 404(b)(2) evidence admitted to prove a common
plan, scheme, or design. See, Commonwealth v. O’Brien, 836 A.2d 969-71 (Pa. Super.
2003). To the extent it may be asserted that the 404(b)(2) evidence allowed here was not
similar enough as to constitute a “signature” for identity purposes, such evidence was
nevertheless properly admitted as an exception to Rule 404(b) as evidence of Appellant’s
common scheme, plan, or design, whereby he forced or attempted to force sexual contact
35
over the resistance or objections of the victim. This Court finds the instant case is
similar to Commonwealth v. Ivy, 146 A.3d 241 (Pa. Super. 2016). In Commonwealth v.
Ivy, the defendant was charged with rape, kidnapping, and sexual assault against a
woman he had been dating. Id. The defendant denied he assaulted the victim, claiming
bruising on the Appellant’s neck was attributable to consensual “rough sex”. Id. at 246.
32
Id.
33
Id.
34
We note that, while Appellant objected to the 404(b) testimony being admitted at trial, Appellant raised
no objection to the jury instructions regarding the reason for the admission of the evidence.
35
At a hearing on the Post-Sentence Motion Nunc Pro Tunc, Appellant argued Commonwealth v. Ross,
57 A.3d 85 (Pa. Super. 2012) controls the instant case. See, N.T. In Re: Post-Sentence Motions Nunc Pro
Tunc, December 20, 2016, at 20-22. In that case, the court excluded evidence of a defendant’s previous
sexual assaults on other women where the incidents were not identical to the case at bar; specifically, in
that case the victim had been brutally murdered, while the previous incidents were less serious assaults.
The Court found the last incident would have been such a significant escalation by a perpetrator as to
disqualify the three events as representative of a perpetrator’s “signature”. The defendant denied ever
harming the victim, the Commonwealth had little physical evidence, and the victim obviously was not
available to testify, so it was essential to prove identity by other means. Id. Understandably, where the
defense at trial is that Appellant did not commit the crime, whether the Commonwealth’s evidence
conveyed a distinctive “signature” as to be allowed under 404(b) to combat that defense would be highly
scrutinized. See, e.g., Commonwealth v. Hawkins, 626 A.2d 550 (Pa. 1993). Such is not the analysis here.
18
The Court reasoned evidence of the defendant’s prior bad acts involving assault
against two previous girlfriends was admissible under the common plan, scheme, and
design exception to 404(b), deeming the evidence “especially necessary to corroborate
the victim’s allegations in a case involving sexual assault, prove similarities between the
cases, and to rebut \[defendant’s\] contention that his sexual assault of \[the victim\] actually
was consensual sex.” Id. at 252. The logical connection between the incidents pertained
to the defendant’s attempt to claim the affirmative defense of consent. The Court
allowed the Commonwealth to admit documentation of PFAs obtained by two of the
defendant’s previous girlfriends in support of the testimony about and concerning the
36
underlying incidents the two women gave at trial. The courts of the Commonwealth
have also admitted evidence of a common plan, scheme, or design where it was used to
counter attacks on a victim’s credibility by showing a defendant had perpetrated the same
acts on others. See, Commonwealth v. O’Brien, 836 A.2d 970 (Pa. Super. 2003)
(admitting the evidence that the defendant had previously assaulted other young boys in a
case where the defendant was charged with sexually assaulting a young boy who did not
disclose the assault for five years). This Court finds the evidence of E. D. and K. W. was
properly admitted under a common scheme, plan, or design, for the purposes noted in Ivy
37
and O’Brien.
The evidence is not unduly prejudicial. In all evidentiary rulings, the trial court
should balance the relevancy and evidentiary need for the evidence against the potential
36
The admissibility of the testimony about those incidents was not challenged.
37
Remoteness in time is one factor the courts must consider under the common scheme, plan, or design
exception. Admittedly, both incidents in Ivy took place within about 18 months of the incident involving
the victim, while in the case at bar the incidents between Appellant and E. D. and K. W. took place
approximately two years and four years prior to the incident involving C. H.. However, the courts have
reasoned that the remoteness in time is merely one factor for the court to consider and its importance is
inversely proportional to the similarity between the incidents. See, Commonwealth v. Aikens, 990 A.2d
1181 (Pa. Super. 2010) (allowing evidence of a sexual assault of a minor that took place fifteen years
before the incident at bar, also a sexual assault of a minor, where the two incidents were “identical”);
Commonwealth v. O’Brien, 836 A.2d 966 (Pa. Super. 20023) (In case involving an assault of a child that
took place in 2001, allowing evidence of Appellant’s convictions related to sexual assaults on two boys in
1982 and 1985 under the common plan or scheme exception). In this case, this Court found the incidents
were not too distant in time when viewed in proportion to their similarity.
19
for undue prejudice. Commonwealth v. Gordon, 673 A.2d 866, 870 (Pa. 1996).
Evidence of other bad acts is inherently prejudicial to a defendant; whether it is unduly
prejudicial is “a function in part of the degree to which it is necessary to prove the case of
the opposing party”. Id. at 870. Again, in Commonwealth v. Ivy, the Court reasoned that
evidence of a defendant’s assault against his previous paramours was highly relevant to
the defendant’s claim that he and the victim had merely engaged in consensual rough sex.
Ivy, 146 A.3d at 253-254. This Court finds that in the instant case, the testimony given
by E. D. and Ms. Wilkinson, that Appellant had tried to force them to engage in sexual
activity and was later conscious of his guilt in doing so, is highly relevant to his claim
38
that he and C. H. engaged in consensual rough sex. We reiterate the jury twice received
the limiting instruction that the evidence was for a limited purpose, not to show
Appellant’s bad character or consciousness of guilt. N.T. Vol. 2 at 142-143; N.T. Vol. 4
at 17.
Finally, to the extent Appellant argues this Court erred in the manner of its
admission of 404(b) evidence as common scheme or design, such admission of evidence
was harmless error given the overwhelming evidence of Appellant’s guilt. Evidence
improperly admitted may be treated as harmless if any one of the following three grounds
is met:
1) The error did not prejudice the Appellant or the prejudice was de
minimis; or 2) the erroneously admitted evidence was cumulative of
other, untainted evidence which was substantially similar to the
erroneously admitted evidence; 3) the properly admitted and
uncontradicted evidence was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that the error
could not have contributed to the verdict.
Commonwealth v. Foy, 612 A.2d 1349 (1992).
There is significant body of evidence in the record, wholly separate from the
404(b) testimony, from which the jury could conclude C. H. did not consent to the rape.
38
N.T. Vol. 2 at 118-120 (E. D.’s description of Appellant’s attempts to force sexual intercourse with her
and his reaction to her), and Id. at 133-135 (K. W.’s description of Appellant’s attempt to force sexual
intercourse with her).
20
The jury heard testimony from C. H. and Appellant, saw a number of photographs of C.
H.’s serious injuries, heard the testimony of a medical expert, whose opinion
corroborated C. H.’s having been assaulted and her report of the event, and heard
testimony that Appellant had made inconsistent statements about what happened that
night. The medical testimony regarding blunt force trauma and the picture of the injuries
to C. H.’s face in particular powerfully undermine Appellant’s claim that he never
punched C. H., but only slapped her with an open palm. See, Commonwealth’s Exhibits
37-55, N.T. Vol. 3 at 37-84. Similarly, the extent of the petechial hemorrhaging – so
severe that it was present in her ear canals, turned her eyes entirely red, and caused
subconjunctival hemorrhaging – undermines Appellant’s claims that when erotically
choking C. H. he used only light force, applied for just a few seconds at a time. The jury
received the “false in one, false in all” jury instruction. N.T. Vol. 4 at 19. Where specific
evidence strongly contradicted Appellant’s testimony on the type and extent of force he
used on C. H., the jury properly could have concluded his testimony was not credible
generally.
Furthermore, several pieces of evidence entered into the record would allow a jury
to infer Appellant was conscious of wrongdoing. C. H. testified Appellant threatened
her, telling her he would come after her if he went to jail. N.T. Vol. 2 at 29-30. A text
exchange between C. H. and Appellant was also entered into the record where Appellant
apologized to C. H.. Commonwealth’s Exhibit 35. In that exchange, Appellant texted,
“alcohol is not an excuse,” and, “C. H. I’m sorry.” Id. When C. H. stated, “I trusted you.
This is the worst night of my life,” Appellant’s response was, “I would do anything to
take it back, I was the worst possible person ever. I will be a punching bag for you if you
want.” Commonwealth’s Exhibit 36. The jury was free to interpret these statements as
Appellant’s consciousness of his guilt, and to apply that consciousness of guilt to the
version of events related by C. H. rather than by Appellant. Therefore, even if it was
error to admit the 404(b) testimony, it was harmless error because the other evidence
weighs so overwhelmingly against Appellant and the prejudicial effect of any error is
insignificant by comparison to the evidence of guilt.
21
2.Appellant’s Motion for Extraordinary Relief Was Properly Denied
Appellant argues that his Motion for Extraordinary Relief and Motion for a new
trial were improperly denied. Pennsylvania Rule of Criminal Procedure 704(B) states
that the trial court may hear an oral motion for extraordinary relief “when the interests of
justice require”. Pa.R.Crim.P. 704(B). The courts have indicated that Rule 704(B)
Motions were not “intended to provide a substitute vehicle for a convicted Appellant to
raise matters which could otherwise be raised via post-sentence motions.”
Commonwealth v. Celestin, 825 A.2d 670, 674 (Pa. Super. 2003). Furthermore, such
motions are to be granted only “when there has been an error in the proceedings that
would clearly result in the judge’s granting relief post-sentence.” Comments to
Pa.R.Crim.P. 704. The rule is intended to allow the trial judge the opportunity to address
only those errors so manifest that immediate relief is essential. Id.
Granting a new trial is an extreme remedy, and should not be granted merely because
of a conflict in testimony or because a different fact finder might have arrived at different
conclusion. Commonwealth v. Edwards, 903 A.3d 1139, 1148-49 (Pa. 2006)(internal
citations omitted). A new trial should be granted only in truly extraordinary
circumstances such as “when a jury’s verdict is so 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.” Id. On appeal, appellate review is limited to
whether the trial court abused its discretion. Id. In the instant case, this Court denied the
Motion for two reasons: first, Appellant could have raised the same issues in post-
sentence motions and secondly, because the alleged errors were not of the nature that
would “clearly” result in the grant of relief, i.e., a new trial. Because this Court did not
abuse its discretion in denying the Motion, the ruling should be upheld.
a.Text Messages Deleted by C. H.
22
Appellant alleges this Court improperly denied his Motion for Extraordinary
Relief and request for a new trial “when the Commonwealth failed to disclose that C. H.
intentionally deleted text messages from her phone which related to her relationship with
Mr. Baldwin despite being aware of that information on the day C. H. reported the
incident to police,” and that “the Commonwealth’s failure to timely disclose this
information significantly impaired defense counsel’s ability to investigate alternate
defense theories and to formulate trial strategy.” Concise Statement of Errors
39
Complained of on Appeal, December 29, 2016.
This Court cannot find the Commonwealth’s alleged failure to disclose knowledge
of the deleted text messages impaired defense counsel’s ability to investigate alternate
defense theories or to formulate a trial strategy where Defense counsel knew the text
messages had been deleted in advance of trial and was able to develop that fact on the
40
record. Defense counsel had all of Appellant’s phone records by fall of 2015, and was
aware of the existence and content of the text messages C. H. had deleted. N.T. 404(B)
Proceeding at 6-22. In late 2015, he was given access to over 4,000 pages of copies of C.
H.’s phone records, and he received digital versions of those records in late January 2016.
Id. Defense counsel had time to conduct four different analyses of the phone records
prior to trial. Id. Comparison of the text messages turned over by the Commonwealth to
defense counsel with Appellant’s text messages revealed that some of C. H.’s text
messages had been deleted. Id. At trial, Defense counsel utilized a number of the
messages in cross examination of C. H. and in direct examination of Appellant. See,
Defense Exhibits 7-18; N.T. Vol. 2, 61-104 (testimony of C. H.). He specifically
39
Appellant has not alleged a “Brady violation”. The standard for evaluating a Brady violation is laid out
in Commonwealth v. Willis, 46 A.3d 648, 650 (2012). The standard focuses on whether the Appellant
was prejudiced.
40
The Commonwealth’s attorney was not aware that C. H. had deleted the text messages on the morning
of March 5, 2016, until the 404(b) hearing just before trial on March 21, 2016; he stated he did not see
any notes of that fact in the police reports or other document he reviewed in preparation for trial. See,
N.T. In Re: Prost-Sentence Motions Nunc Pro Tunc, December 20, 2016, at 23-24. While the state courts
have noted the Unites State Supreme Court has held “a prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government's behalf in the case, including the police,”
Commonwealth v. Willis, 46 A.3d 648, 650 (2012) it is unclear to what degree that affirmative duty
extends.
23
questioned C. H. about how and when she deleted the text messages. Id. The jury
received Standard Jury Instruction 3.21(B), which stated they could draw a negative
inference against C. H. regarding the missing evidence provided the three conditions
explained in such instruction. N.T. Vol. 4, 18. Thus, Appellant had the opportunity to
both show the jury the content of the deleted text messages and to use the fact that C. H.
deleted the messages to undermine her credibility. Where Appellant’s defense strategy
relied on C. H.’s consent, the credibility of each party was a key issue at trial.
Furthermore, Appellant has not raised any specific alternate theories or strategies
41
he would have otherwise explored. While the fact that C. H. had deleted the text
messages did not officially enter the record until the morning before jury selection began,
Defense counsel’s own investigations prior to trial enabled him to extensively address the
content of the messages and the credibility issues related to them. Appellant did not
establish that he was prejudiced by the Commonwealth’s delayed acknowledgement that
C. H. had deleted the text messages. In light of the foregoing, this Court found no error
related to the text messages which would clearly result in the trial court granting post-
sentence relief. The Motion for Extraordinary Relief and request for a new trial was
properly denied with regards to the text messages.
b.Disclosure About the Victim’s Prior Relationship with An Individual Who
Eventually Became a Police Officer
Appellant also argues that the Motion for Extraordinary Relief to grant a new trial
should have been granted where the Commonwealth “failed to disclose, prior to trial, that
C. H. was involved in a sexual relationship with one of the police officers who responded
to her home on the day of the incident,” and “the Commonwealth’s failure to timely
41
Under the Brady violation standard, the burden is on the Appellant to show the allegedly suppressed
evidence was material such that had the evidence been disclosed earlier, there was a reasonable
probability the outcome of the proceeding would have been different. Commonwealth v. McGill, 832
A.2d 1014, 1020 (2003) citing United States v. Bagley, 473 U.S. 667, 682 (1985). Though Appellant
seems to imply the outcome would have been different had he been able to explore different strategies at
trial, he has not explicated argued that there was a Brady violation. Brady v. Maryland, 373.U.S. 83
(1963).
24
disclose this information significantly impaired defense counsel’s ability to investigate
42
alternate defense theories and to formulate trial strategy.”
The record shows the Commonwealth disclosed the knowledge of the relationship
to defense counsel in a timely manner, shortly (and on the same day) after being made
aware of the fact himself. Vol. 2 at 140, 184-190. The record does not indicate that
anyone else in the Commonwealth’s employment knew of the relationship prior to the
time Officer McGeehan disclosed it during trial. Therefore this Court does not find that
the Commonwealth failed to timely disclose the information.
Furthermore, this Court notes Appellant’s error, as stated, mischaracterizes Officer
McGeehan’s role in the events of March 5thand the impact of the information on trial
strategy. First, the record shows that, on March 5, 2015, Mike McGeehan was not in fact
a qualified police officer, but was still in training at the police academy. C. H. testified
that she contacted him as a friend. The record shows he arrived at C. H.’s home in his
private capacity, not as an officer on duty responding to a call. Secondly, the record also
shows the Commonwealth’s attorney, Mr. Boob, only learned of a romantic or sexual
relationship between Officer McGeehan and C. H. on the second day of trial. Thirdly,
the record shows that Officer McGeehan related that he and C. H. had a romantic
relationship that ended some months prior to March 5, 2015. Defense counsel discussed
the fact that C. H. and Mr. McGeehan having a prior sexual relationship would probably
have been excluded under Rape Shield principles. N.T. Vol. 2 at 184-90. This Court
offered to hold a hearing to determine if the fact might come in under an exception to the
Rape Shield Law, but Defense counsel declined to take the Court up on the offer. Id.
Appellant implied the “alternative theories” it would have attempted to explore at
trial included that Appellant deleted the text message on her phone at the prompting of a
law enforcement officer responding to the scene, which potentially could allow the jury
to draw inferences favorable to Appellant; however, the facts show that when C. H.
communicated with Mr. McGeehan, he was not yet a fully qualified law enforcement
officer, did not show up at the scene in any formal capacity, and certainly was not a
42
Concise Statement of Errors Complained of on Appeal, December 29, 2016.
25
member of the same police department as the responding officers. The fact that Mr.
McGeehan eventually became a police officer in a different police department is an
insufficient basis to support allegations of improper conduct. Furthermore, Defense
counsel’s trial strategy focused on undermining C. H.’s credibility anyway, and defense
counsel specifically questioned her about when and why she deleted the text messages.
Where Appellant’s argument rested solely on the specter of impropriety, based on a
misunderstanding of the actualities of the underlying events and relationships, this Court
cannot find error in denying the Appellant’s Motion.
3.Sufficient Evidence Supported the Jury’s Verdict
Appellant claims there was insufficient evidence as a matter of law to support the
jury’s guilty verdict. The standard of review for a challenge to the sufficiency of the
evidence is as follows:
In evaluating a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable
to the Commonwealth as verdict winner, together with all reasonable
inferences therefrom, the trier of fact could have found that each and
every element of the crimes charged was established beyond a
reasonable doubt… This standard is equally applicable to cases
where the evidence is circumstantial rather than direct so long as the
combination of evidence links the accused to the crime beyond a
reasonable doubt. Unless the evidence presented at trial is “so weak
and inconclusive that, as a matter of law, no probability of fact can
be drawn from the combined circumstances,” the verdict should not
be disturbed on appeal.
Commonwealth v. Lee, 956 A.2d 1024, 1027 (Pa. Super. 2008)(internal citations
omitted). The jury is not obligated to accept a defendant’s evidence. Commonwealth v.
Morales, 91 A.3d 80, 90 (Pa. 2014).
To a significant extent, Appellant’s third and fourth Errors (the third relating to
sufficiency and the fourth relating to weight) argue the jury could not have properly
rejected Appellant’s affirmative defense of consent. Consent may be an affirmative
defense to certain crimes:
26
The consent of the victim to conduct charged to constitute an offense
or to the result thereof is a defense if such consent negatives an
element of the offense or precludes the infliction of the harm or evil
sought to be prevented by the law defining the offense.
18 Pa.C.S. §311. Consent is an available defense “if the victim at the time of the alleged
crime \[was\] willing to engage in the conduct charged or to the result thereof, and \[made\]
her willingness to the Appellant known by words or behavior.” N.T. Vol. 4 at 40. The
burden is on the Commonwealth to prove beyond a reasonable doubt that the victim did
not consent. See, Commonwealth v. Prince, 719 A.2d 1086 (Pa. Super 1998). Id.
§
Finally, assent given under force or duress does not constitute legally valid consent. 18
Pa. C.S. 311(c)(4).
The jury was given a number of instructions related to credibility. They received
the standard instruction on credibility of witnesses, which says it is solely the jury’s job
to judge “the credibility of witnesses and their testimony” and they decide “whether to
believe all, part or none of the witness’s testimony”, and that where if there is conflicting
testimony or evidence, it is up to the jury to decide what to believe. Id. at 12-13. In
addition to a number of standard jury instructions on the credibility of witnesses and the
jury’s role in weighing conflicting testimony, the jury also received the standard jury
instruction for “Conviction Based on Victim’s Uncorroborated Testimony in Sexual
Offenses,” which states that the testimony of a victim alone, if found credible by the jury,
is sufficient to find a defendant guilty; the “false in one, false in all” instruction; an
instruction that they could draw negative inference against C. H. based on the fact that
she deleted text messages on her phone, if the three applicable factors were present; and
an instruction that the jury could consider contradictory statements made by Appellant to
police as evidence of his guilt. Id. at 17-19. Thus, the jury was amply instructed that it
was up to them to decide which account to believe.
Additionally, Appellant’s Errors 3(a) and 3(b) rely on the argument that C. H.’s
consent to previous episodes or rough sex or restraint was sufficient to establish her
consent to the events of the night in question, or that because the encounter began
consensually, C. H.’s consent was effective throughout the encounter. Appellant is
27
incorrect. Simply because C. H. invited Appellant to her home to have sex does not
mean that she agreed to the use of restraints, choking, or sexual intercourse when and as
it was actually initiated. Consent to sexual intercourse, or related acts, on one occasion
does not constitute consent on future occasions. An individual is free to agree to
intercourse on one night, but not another; to use of restraints on one night but not another;
and to erotic choking of one type or degree but not another. An individual may consent
to certain types of sexual contact but not others. Furthermore, consent can be withdrawn;
after a mutual encounter begins, an individual is free to end it at any time. These
principles may seem so obvious as to not require articulation, but this Court states them
43
because Appellant’s Error, as written, seems ignorant of them. Even if Appellant and
C. H. previously used restraints, had “rough sex”, or mutually participated in acts of
physical violence, and even if she did invite him over in expectation of a sexual
encounter, the jury had to determine whether C. H. consented on that night in particular,
to those acts particularly. Where C. H. and Appellant offered contradictory testimony on
the issue of her consent, it was the jury’s job to resolve the conflict by determining which
account they found more credible. The jury was free to believe C. H.’s testimony over
Appellant’s, based on her testimony alone, or in conjunction with the other body of
evidence in the record.
43
This Court notes a surprising lack of authoritative case law from the courts of this Commonwealth
explicitly stating the principle that consent may be revoked or withdrawn. See, e.g., Commonwealth v.
Blakeslee, 1989 Pa. Dist. & Cnty. Dec. LEXIS 195 (Pa.C.P. 1989)(citing opinions from New Jersey,
Maryland, and California in support of Pennsylvania’s rape statute, stating that where a woman consents
to foreplay but communicates a withdrawal of consent before penetration, subsequent penetration is rape.)
28
a.The Record Contains Sufficient Evidence to Convict Appellant of Evidence for
Rape and Sexual Assault
Appellant argues, by Error 3(a), that the evidence admitted at trial was insufficient
to sustain convictions for rape and sexual assault because 1) “the evidence proved that C.
H. invited \[Appellant\] over to her \[sic\] on the night of the incident for the sole purpose of
engaging in sexual intercourse with him” and 2) C. H. and Appellant “had a history of
engaging in rough sex where restraints, chocking \[sic\], and other acts of physical
44
violence occurred.”
Appellant was convicted of rape by forcible compulsion, rape by threat of forcible
compulsion, and two counts of sexual assault. The offense of Rape by Forcible
Compulsion is defined in 18 Pa.C.S. §3121(a)(1), which reads as follows: “A person
commits a felony of the first degree when the person engages in sexual intercourse with a
complainant: By compulsion.” Appellant was also convicted of Rape by
(1)forcible
Threat of Forcible Compulsion: “A person commits a felony of the first degree when the
person engages in sexual intercourse with a complainant: (2) By threat of
forcible
compulsion that would prevent resistance by a person of reasonable resolution.” 18
Pa.C.S. §3121(a)(2). Forcible compulsion means “something more than a lack of
consent” and includes "not only physical force or violence but also moral, psychological
or intellectual force." Commonwealth v. Fischer, 721 A.2d 1111, 1115 (Pa. Super. Ct.
1998). "The degree of force required to constitute rape is relative and depends upon the
facts and particular circumstances of the case." Commonwealth v. Rhodes, 510 A.2d
1217, 1226. The offense of Sexual Assault is defined as follows: “Except as provided in
section 3121 (relating to rape) or 3123 (relating to involuntary deviate sexual
intercourse), a person commits a felony of the second degree when that person engages in
sexual intercourse or deviate sexual intercourse with a complainant without the
complainant’s consent.” 18 Pa.C.S. §3124.1. The jury received standard jury
instructions on the charges. N.T. Vol. 4 at 10-46.
44
Concise Statement of Errors Complained of on Appeal, December 29, 2016.
29
C. H. testified that while she did invite Appellant to her home in expectation that
they would have a sexual encounter, and that the encounter began consensually, it
quickly became non-consensual. She testified that she, from the time he put the belt
around her neck starting close to the beginning of the encounter, she asked Appellant to
stop or to not do numerous things. N.T. at 16-23. She also tried to scream and get away
from him. Id. She thereby manifested her lack of consent by both words and actions. C.
H. testified that when Appellant anally penetrated her the first time, she did not consent;
she was restrained by the wrist restraints and the belt around her neck, she cried and
begged him not do it. Id. at 31. Such was sufficient evidence to find Appellant guilty of
rape by forcible compulsion. When Appellant anally penetrated her the second time, she
only acquiesced out of fear, after the point where he had already raped her, choked her
unconscious, beaten her, and threatened to kill her. Id. at 24, 31. Such was sufficient
evidence to support a conviction for rape by threat of forcible compulsion. Similarly,
while C. H. did acquiesce to Appellant’s order to suck his genitalia twice, it was after she
had acquiesced out of fear. Id. at 22-24. Where consent is obtained under duress, it is
not effective. Thus, the jury properly could have convicted Appellant of sexual assault
based on her non-consent under the facts.
The jury’s verdict reflects that it found the evidence that C. H. did not consent
45
more credible than Appellant’s assertions that she did. Where the record sustains such
evidence, this Court finds sufficient evidence was presented to convict Appellant of rape
by forcible compulsion, rape by threat of forcible compulsion, and sexual assault.
b.The Record Contains Sufficient Evidence to Convict Appellant of Evidence for
Unlawful Restraint and False Imprisonment
45
This Court also finds additional support for the jury’s verdict in the apparent thoughtfulness by which it
evaluated the various charges against Appellant. Though the jury found Appellant guilty of rape by
forcible compulsion, rape by threat of forcible compulsion, and sexual assault, they found Appellant not
guilty of rape of an unconscious or unaware person and involuntary deviate sexual intercourse of an
unconscious or unaware person. The verdict of not guilty on the last two charges may indicate the jury
found the Commonwealth could not prove beyond a reasonable doubt Appellant had sexual intercourse
with C. H. while she was unconscious. See a similar analysis in Commonwealth v. Prince, 719 A.2d
1086, 1089 (Pa. Super. 1998).
30
Appellant argues, by Error 3(b), that the evidence admitted at trial was insufficient
to sustain convictions for Unlawful Restraint and False Imprisonment because the
Commonwealth “could not provide that \[Appellant\] unlawfully restrained C. H. when she
testified that she had willingly used handcuff-type restraints on prior occasions during
sexual intercourse with Mr. Baldwin and she further testified that on this occasion,
46
specifically, she voluntarily put her hands behind her back to be restrained.”
In order for the Commonwealth to prove its case for Unlawful Restraint- Risk of
Injury, it had to prove that the “Appellant restrained the victim unlawfully in
circumstances that exposed her to the risk or serious bodily injury”, and “Appellant did
so knowingly. In other words, the Appellant was aware that he was restraining the
individual, that the restraint was unlawful, and that he was exposing her to risk of serious
bodily injury.” N.T. Vol. 4 at 33; 18 Pa.C.S. §2902(a)(1). The Courts have held that
depending on the circumstances, a single punch may constitute an attempt to cause
serious bodily injury. Commonwealth v. Dailey, 828 A.2d 356, 360 (Pa. Super. 2003) (in
the context of an aggravated assault); see also, Commonwealth v. Baynes, 2013 Pa. Dist.
& Cnty. Dec. LEXIS 76 (Pa. C.P., Apr. 4, 2013), aff’d, 100 A.3d 304 (Pa. Super
2014)(convictions for aggravated assault, terroristic threats, unlawful restraint and false
imprisonment upheld where Appellant attacked victim in their apartment, beating her
when she tried to escape and confining her to the apartment).
In order for the Commonwealth to convict Appellant for false imprisonment, it
had to prove beyond a reasonable doubt that “Appellant restrained \[victim\] unlawfully so
as to interfere substantially with her liberty” and “the Appellant did so knowingly.” N.T.
Vol. 4 at 36; 18 Pa.C.S. §2903(a). The jury was instructed that “knowing” meant
Appellant was aware he was restraining her and that the restraint was unlawful and
interfered substantially with the individual’s liberty.” Id. The jury was further instructed
that “an individual is restrained if he or she is deprived of his or her freedom to leave a
particular place” and “the restraint is unlawful if it is by force or threats without
46
Concise Statement of Errors Complained of on Appeal, December 29, 2016.
31
§
justification or excuse.” Id. If C. H. consented to the restraint of her person, the restraint
of her person was not unlawful. 18 Pa.C.S. 311(a).
As discussed, supra, even if C. H. initially consented to restraint of her arms by
putting her arms in the “bad girl bracelets”, that does not mean she consented to ongoing
restraint or restraint by other means. Appellant’s Error ignores C. H.’s testimony that
Appellant restrained her in multiple ways at multiple times, in addition to and separately
from using the “bad girl bracelets”. C. H. testified that she did not initially object to
Appellant putting the “bad girl bracelets” on her wrists, though she agreed reluctantly.
N.T. at 20. However, Appellant then placed a belt around her neck without warning her,
kept it there over her objections, and continued to tighten that belt as she tried to scream
and squirm away from Appellant. N.T. Vol. 2 at 16-23. C. H. tried to get away from
Appellant, but was unable to do so because Appellant was on top of her, his body weight
preventing her from escaping. Id. at 19. After she passed out and then regained
consciousness, Appellant removed the belt, which brought C. H. temporary relief, but
then he choked her a second time, this time using his arm instead of the belt. Id. at 20-12.
When C. H. was finally able to use a free hand to push herself up and off the bed,
Appellant tried to push her back onto the bed. Id. at 22. After C. H. hit him, Appellant
pushed her to the floor, got on top of her, and choked her with one hand while punching
her in the face with the other hand. Id. at 22-23. C. H. testified that she told or begged
Appellant to stop repeatedly. Id. at 16-23. Based on this evidence, the jury could find
Appellant knowingly and by use of force or without justification deprived C. H. of her
freedom of movement.
As to whether C. H. was at the risk of serious bodily injury, Dr. Miekely testified
that being choked to the point of unconsciousness can cause serious bodily injury. N.T.
Vol. 3 at 55-57. Dr. Miekley also testified C. H.’s injuries were consistent with her
account of what happened to her, such that she was put at risk of serious bodily injury.
Id. at 57. The jury also saw the photographs of C. H.’s injuries, which indicated she
suffered significant bodily injury. Taken together, the evidence was sufficient to
determine C. H. was placed at risk of serious bodily injury.
32
In light of the foregoing, the record contained evidence sufficient to convict
Appellant of unlawful restraint – risk of serious bodily injury and false imprisonment.
c.The Record Contains Sufficient Evidence to Find Appellant Had the Mens Rea
Required to Convict Him for Aggravated Assault, Simple Assault, Terroristic
Threats, and Harassment
i.Aggravated Assault, Simple Assault and Harassment
Appellant was convicted of Aggravated Assault, 18 Pa.C.S. §2702(a)(1). The
Commonwealth charged on the theory of attempted serious bodily injury. To convict
Appellant for Aggravated Assault, the jury had to find Appellant attempted to cause
serious bodily injury to C. H., where “attempt” meant he engaged in conduct that
constituted a substantial step towards causing serious bodily injury and where
Appellant’s conduct in that regard was intentional. N.T. Vol. 4 at 28-29 (Jury
Instructions). The jury was instructed that serious bodily injury is defined as "bodily
injury which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily member or
organ." N.T. Vol. 4 at 29; see, 18 Pa.C.S. §2301. The jury was further instructed that
they did not have to find that serious bodily injury was actually inflicted on C. H., only
47
that Appellant took a substantial step toward causing serious bodily injury. Id. at 28.
The courts have reasoned:
Looking first to whether \[the\] evidence established intent to cause
serious bodily injury, we note that such an inquiry into whether the
evidence established intent to cause serious bodily injury, we note
that such an inquiry into intent must be determined on case-by-case
basis. Because direct evidence is often unavailable, intent to cause
serious bodily injury may be shown by the circumstances
surrounding the attack. In determining whether intent was proven
from such circumstances, the fact finder is free to conclude ‘the
47
See also, Commonwealth v. Caterino, 678 A.2d 389 (Pa. Super. 1996)(“Whether or not the \[victim\]
actually suffered serious bodily harm is irrelevant at this stage, as an attempt to inflict serious harm is as
punishable as if the attempt succeeds.”)
33
accused intended the natural and probable consequences of his
actions to result therefrom.’
Circumstances deemed probative in this inquiry have included
evidence that the assailant was disproportionately larger or stronger
than the victim, that the assailant had to be restrained from
escalating the attack, that the assailant had a weapon or other
implement to aid his attack, or that the assailant made statements
before, during, or after the attack which might indicate his intent to
inflict further injury. Depending on the circumstances, ‘even a single
punch may be sufficient’.
Commonwealth v. Bruce, 916 A.2d 657 661-662 (Pa. Super. 2007)(internal
48
citations omitted).
In the instant case, the record contains sufficient evidence for a jury to find
Appellant attempted to cause serious bodily injury to C. H. intentionally. C. H. testified
she was choked three times, at least once to the point of passing out, and punched
repeatedly in the face. Photographs and expert medical testimony supported her
testimony.
C. H. testified that after Appellant placed the belt around her neck, he told her is
was her dog collar and that she needed to obey him. N.T. Vol. 2 at 18. As he
progressively tightened the belt around her neck, she was struggling and trying to scream.
Id. at 19. He told her to “shut up”, indicating he knew she was making noise in protest.
Id. She eventually passed out. Id. at 19-20. After she regained consciousness Appellant
asked her if she “liked” it. Id. at 20. Appellant’s testimony evinced a familiarity with
erotic strangulation and its possible consequences. N.T. Vol. 3 at 138. Both Appellant
and C. H. testified that after the incident where Appellant “significantly” choked C. H. on
a prior occasion, it caused her to have bloodshot eyes that took some days to clear up.
See, N.T. Vol. 2 at 83-84, Vol. 3 at 129-30. Taken together, that evidence would allow a
48
See also, Commonwealth v. Alexander, 383 A.2d 889 (Pa. Super. 1978)(“We hasten to add that a
simple assault combined with other surrounding circumstances may, in a proper case, be sufficient to
support a finding that an assailant attempted to inflict serious bodily injury, thereby constituting
aggravated assault.”)
34
jury to know Appellant was aware his actions could result in injury to C. H., and he
intentionally disregarded that risk as well as her objections, because he wanted her to
49
pass out.
C. H. testified that Appellant punched her repeatedly. N.T. Vol. 2 at 16-23. While
he punched her in the face and eyes, he had one hand around her throat, and told her he
should just kill her. Id. at 23. The photographs and expert testimony regarding the
injuries to C. H.’s face and eyes corroborated her testimony, strongly indicating she was
repeatedly punched with significant force. N.T. Vol. 3 at 37-62; Commonwealth Exhibits
45-47 (photographs showing C. H. had two black, very swollen eyes). Dr. Miekley
testified her injuries indicated blunt force trauma to her face akin to someone
participating in a bare-knuckle boxing match. N.T. Vol. 3 at 37-62. The evidence would
allow a jury to conclude Appellant struck C. H. with the intent to cause serious bodily
injury. This Court is satisfied that there was more than sufficient evidence for the jury to
convict Appellant of Aggravated Assault.
Appellant was also convicted of Simple Assault – Bodily Injury Caused or
Attempted, 18 Pa.C.S. §2701(a)(1). To convict Appellant for Simple Assault, the
Commonwealth had to prove beyond a reasonable doubt that Appellant “caused bodily
injury to the victim and Appellant’s conduct was intentional, knowing, or reckless.” N.T.
Vol. 4 at 35. Bodily injury means impairment of physical condition or pain. Id. The jury
was instructed as to the legal meanings of “intentional”, “knowing”, “reckless” and
“bodily injury”. N.T. Vol. 4 at 34-35.
The evidence unquestionably shows C. H. actually suffered significant bodily
injury. The damage to her face and eyes was particularly severe, such that it
conspicuously undermined Appellant’s claim that his blows to C. H.’s face were limited
to three open handed slaps. C. H. suffered extreme petechial hemorrhaging throughout
her upper body and particularly severely in her eyes. She had significant bruising over
49
Dr. Miekley testified the significant petechial hemorrhaging C. H. suffered clearly suggested she
actually was choked with significant force. N.T. Vol. 3 at 53-58.
35
various parts of her body. Therefore, the record contained sufficient evidence to convict
Appellant of Simple Assault.
This Court found Appellant guilty of Harassment, a summary charge, under 18
Pa.C.S. §2709(a). To find Appellant guilty of the charge, this Court had to determine that
the Commonwealth proved beyond a reasonable doubt that the Appellant struck, shoved,
kicked, or otherwise attempted or threatened to do the same to C. H., with the intent to
harass, annoy, or alarm her. 18 Pa.C.S. §2709(a). This Court found the evidence of the
above charges sufficient to convict Appellant of Harassment.
ii.Terroristic Threats
To find Appellant guilty of Terroristic Threats, the jury had to determine that the
Commonwealth proved beyond a reasonable doubt that the Appellant communicated a
threat of “any crime of violence” with intent to terrorize another. N.T. Vol. 4. at 34; 18
Pa.C.S. §2706(a)(1).
The first issue for the jury to resolve was whether Appellant actually did threaten
to kill C. H.. C. H. testified that when Appellant was on top of her and punching her, he
told he should just kill her. N.T. Vol. 2 at 23. A short time later, after Appellant
ejaculated on C. H.’s face and removed the restraint from her arm, he told he she was
“lucky” because “the last girl who hit him” was dead. Id. at 25. He told her to promise
him she wouldn’t say anything about what happened, to which she replied, “I promise”.
Id. at 29-30. Appellant continued by saying “If I go to jail, I will come after you, do you
50
understand?” Id. at 30. Appellant denied ever making any such threatening statements.
The jury was free to find C. H. more credible than Appellant, and therefore determine he
did in fact make the threats.
Once the jury determined Appellant did in fact make the statements, they had to
determine whether Appellant intended to “terrorize” C. H.. The courts have reasoned that
threats made on the “spur of the moment” as contemporaneous expressions of “fleeting
anger” are insufficient to support a conviction for terroristic threats, while in contrast,
50
This statement was accompanied by a limiting instruction that it was to be considered only for the
effect it had on the listener. N.T. Vol. 2 at 30-31.
36
threats that are the result of conscious, deliberate actions are sufficient to support a
conviction. Commonwealth v. Kelley, 664 A.2d 128 (Pa. Super. 1995). In the instant
case, Appellant made threats some minutes apart during different assaults that evening.
Appellant’s statements were a deliberate, conscious attempt to prevent C. H. from
revealing what had happened to her. Appellant’s statements were unmistakably
threatening and clearly intended to cause fear. The evidence was sufficient to find
Appellant possessed the mens rea necessary to convict him of terroristic threats.
4.Weight of the Evidence
Appellant next claims that the jury’s verdict was against the clear weight of the
evidence “when the uncontradicted evidence proved that the incident that led to the
instant offenses C. H. admitted that she and Mr. Baldwin had consensual sex that evening
\[sic\] and she further admitted that she and Mr. Baldwin had previously discussed and
voluntarily engaged in rough sexual intercourse involving the use of restraints and acts of
51
physical violence.” The standard of review when an appeal has been made on the basis
that a verdict was against the weight of the evidence has been stated as follows:
The weight of the evidence is 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. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we may only reverse
the jury’s verdict if it is so contrary to the evidence as to shock one’s
sense of justice.
Commonwealth v. Gooding, 818 A.2d 546, 552 (Pa. Super. 2003)(quoting
Commonwealth v. Begley, 780 A.2d 605, 619 (Pa. 2001)). Moreover,
\[W\]here the trial 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… rather,
appellate review is limited to whether the trial court palpably abused
its discretion in ruling on the weight claim.
51
Concise Statement of Errors Complained of on Appeal, December 29, 2016.
37
Commonwealth v. Kim, 888 A.2d 847, 850 (Pa. Super. 2005)(quoting Commonwealth v.
Shampney, 832 A.2d 403, 408 (Pa. 2003)).
This Court notes Appellant does not specify the charges for which the jury verdict
is against the weight of the evidence. The Court ruled against the Appellant’s weight of
the evidence claim when it denied his Post-Sentence Motions. This Court disagrees with
the assertion that the jury’s verdict was against the weight of the evidence, for any of the
charges of which he was convicted. The convictions hinged on the credibility of the
evidence as to whether C. H. consented to the actions that took place on the night of the
incident. As discussed extensively, supra, C. H.’s consent to certain activities on
previous occasions did not establish that she consented to those same activities, or to the
extent thereto, on the night of March 5, 2015. The Commonwealth introduced substantial
evidence supporting their contention that she did not consent. One only need look at the
pictures of the injuries to C. H. that were introduced at trial to determine that she did not
consent. But the evidence consisted of other testimony, including Dr. Miekley, that
corroborated C. H.’s account.
The jury’s verdict reflects their determination that, taken together, the evidence
supported C. H.’s assertion that she did not consent. As thoroughly discussed, supra,
significant evidence supports that conclusion. Consequently, the jury’s verdict falls far
short of shocking this Court’s sense of justice. Thus, this Court found the verdict was not
against the weight of the evidence, and it acted accordingly by denying the Appellant’s
Post-Sentence Motions. Because such a ruling does not amount to an abuse of discretion
by this Court, its decision regarding the weight of the evidence should be upheld on
appeal.
CONCLUSION
In light of the foregoing, Appellant’s Errors are without merit. This Court’s denial
of his Motion for Extraordinary Relief and his Post-Sentence Motion Nunc Pro Tunc, and
38
the jury’s convictions of Appellant, respectfully should be upheld.
BY THE COURT,
Christylee L. Peck, J.
Charles J. Volkert, Jr., Esq.
Chief Deputy District Attorney
Christopher McCabe, Esq.
Assistant Public Defender
39