Commonwealth v. Harris

1

COMMONWEALTH OF PENNSYLVANIA v. KENNETH HAYWOOD HARRIS, JR. Appellant

No. 851 MDA 2022

No. J-A04023-23

Superior Court of Pennsylvania

February 15, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered January 6, 2022 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0004733-2019

Joseph D. Seletyn, Esq. Prothonotary

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

MEMORANDUM

DUBOW J.

Appellant Kenneth Haywood Harris, Jr., appeals from the January 6, 2022 judgment of sentence of 25 to 50 years of incarceration entered in the York County Court of Common Pleas following his conviction of Rape, Sexual Assault, and Attempted Rape.^[1] Appellant challenges the sufficiency and weight of the evidence, the legality of his mandatory minimum sentence, and the addition of the Attempted Rape charge during trial. After careful review, we affirm Appellant's judgment of sentence.

The relevant facts and procedural history are as follows. On June 11, 2019, York City Police Officers Adam Nothstein and David Baez responded to an assault in progress after a man reported that his neighbor ("Victim") was yelling out for help because she was being raped. When Officer Nothstein arrived on the scene,^[2] he heard Victim scream from inside an apartment and entered. Officers found Victim on her back lying on the floor with a man, later identified as Appellant, on top of her. Officers observed that Appellant was completely naked and Victim's pants were pulled down.

Victim immediately told officers that Appellant was trying to rape her. Appellant, however, claimed that the sexual encounter was consensual. Officer Nothstein also noted that Appellant's lip was bleeding; Appellant claimed Victim had punched him.

Victim promptly reported to York Hospital where medical staff performed a sexual assault forensic exam and collected evidence. Victim presented with, inter alia, injuries to her elbows, bruising, tenderness, abrasions, and lacerations to her vaginal area. An exam of the interior of her vagina revealed multiple injuries and blood at the bottom of her cervix where her cervix and vagina meet.

York City detectives interviewed Victim shortly after the assault. At that time, Victim told detectives that Appellant had pulled down her pants and underwear and forced his penis into her vagina multiple times.

Police arrested Appellant and, on July 11, 2019, charged him with Rape and Sexual Assault. Appellant's three-day jury trial commenced on May 19, 2021.

Victim, Officer Nothstein, and Michelle Frey, the forensic nurse who examined Victim at York Hospital, testified at trial.^{[3] [4]}

Relevant to the instant appeal, Victim testified that, on the night of the assault, Appellant "pulled down my pants and panties, and he - - and he put his penis inside me. I told him to stop. He didn't stop at all. He said no." N.T. Trial, 5/20/21, at 114, 116. She further testified that she "felt his penis inside me" and that she felt "pressure . . . in my [] vagina." Id. at 117-18. Victim repeatedly confirmed that Appellant's penis was inside her vagina and that she "kept saying no." Id. at 114-118, 119, 144.

Appellant's counsel vigorously cross-examined Victim regarding the inconsistencies between her statement to Officer Nothstein immediately following the assault that Appellant had "tried" to rape her and "tried" to pull her pants down, and her subsequent statements and trial testimony that Appellant had, in fact, pulled down her pants and raped her. See id. at 129, 133, 135-140.

Nurse Frey testified that Victim's initial chief complaint upon arriving at York Hospital was vaginal pain and bleeding. Id. at 166-67, 179. Nurse Frey also offered testimony about the nature and extent of Victim's physical injuries. In particular, she testified that Victim exhibited bruising, tenderness, pinpoint-like hemorrhages, and numerous lacerations to her vagina. Id. at 174-76. In addition to conducting her own examination of Victim, Nurse Frey also attended an examination of Victim performed by emergency room doctors. She further testified that during that examination doctors observed blood towards the back of Victim's cervix. Id. at 182-83. Nurse Frey explained that it was not possible that the blood was menstrual blood because Victim is postmenopausal. Id. at 190.

Appellant cross-examined Nurse Frey regarding Victim's statements to her about whether Appellant had vaginally penetrated Victim. Nurse Frey, reading her examination notes, stated "[i]t looks like she said that she thought so, but, like, she - -I put attempted, so she must not have been, like, a hundred percent [sure] but that she thought he did." Id. at 186.

Officer Nothstein testified that when he arrived on the scene he stopped outside of Victim's door and heard a female voice screaming that she was being raped and asking for help. Id. at 196. He explained that he then entered Victim's apartment and observed Appellant naked, laying on top of the Victim whose pants were pulled down below her buttocks. Id. at 196-97, 203. He described that Victim was "clenching the front of her pants pulling them up towards her waist . . . and the back part was exposed." Id. at 203. Officer Nothstein testified that, when describing the assault, Victim did not "use the word penetrate. She stated that his privates did touch her privates while he was attempting to have sex with her." Id. at 204. Later, on cross-examination, Officer Nothstein testified that in his written report he noted that Victim reported that Appellant "did not go inside of her." Id. at 206. Officer Nothstein testified that Victim "seemed scared and frantic." Id. at 208. Officer Nothstein also testified that, when he was initially asking Victim what had transpired, he did not go into a lot of specific detail because his job as a patrol officer is to "secure and make everybody safe and just basically get a general overview of what happened without going into too much detail with the actual victim . . . so that there's no further trauma or any type of emotional setbacks or anything like that." Id. He explained that detectives follow up with victims in rape cases and conduct more in-depth interviews. Id.

At the conclusion of the evidence, but prior to closing arguments, the Commonwealth requested a jury instruction on the lesser-included offense of Attempted Rape. N.T. Trial, 5/21/21, at 225. Appellant objected to this late request on the grounds that the Commonwealth had known of the facts and circumstances of this assault as early as July 2019 when it charged Appellant and could have amended the information at any time prior to trial. Id. at 226. The Commonwealth responded that after jury selection but prior to opening statements it had informed Appellant's counsel of its intent to make this request. Appellant's counsel did not dispute that he had prior notice of the Commonwealth's intention. The trial court granted the Commonwealth's request, noting that the rules permit amendment of the information at any time up to and including during trial as long as the amendment does not create unfair surprise or prejudice. Id. at 227. The court concluded that the Commonwealth's request did not create any unfair surprise because Appellant had known of the allegations and averments of fact since the Commonwealth filed the charges. Id. at 226.

On May 21, 2021, the jury convicted Appellant of the above charges. The trial court deferred sentencing pending the preparation of a pre-sentence investigation ("PSI") report. Relevant to the instant appeal, the PSI report indicated that Appellant has, inter alia, two prior Rape convictions.

On January 6, 2022, the trial court held a sentencing hearing and imposed a mandatory minimum sentence of 25 to 50 years' incarceration.^[5]Appellant's counsel did not object to the accuracy of the PSI report or to the imposition of the mandatory minimum sentence.

Appellant filed a timely post-sentence motion in which he raised each of the issues presented in this appeal. The trial court denied the motion on May 17, 2022.

This appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Whether the verdict was against the greater weight of the evidence as to Rape and Sexual Assault[?]

2. Whether the evidence presented at trial was insufficient to support the jury's verdict as to Rape and Sexual Assault[?]

3. Whether the trial court abused its discretion in imposing a mandatory minimum sentence pursuant to 18 Pa.C.S. § 9718[?]

4. Whether the trial court erred in granting the Commonwealth's request to add a lesser incident charge of Attempted Rape?

Appellant's Brief at 4.

A.

In his first issue, Appellant challenges the weight the jury gave to the Commonwealth's evidence sustaining his Rape and Sexual Assault convictions. Id. at 10-12. In support, Appellant emphasizes the apparent inconsistencies between Victim's statements to Officer Nothstein and Nurse Frey that Appellant only tried to rape her and her subsequent statements and trial testimony that Appellant had penetrated her vagina. Id. at 11-12. He further argues that, given that Officer Nothstein found Victim "on her back with her pants pulled up in front, penetration would have been practically impossible." Id. at 12.

When considering challenges to the weight of the evidence, we apply the following precepts. "The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none[,] or some of the evidence and to determine the credibility of the witnesses." Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa Super. 2015) (quotation marks and citation omitted). Resolving...