Commonwealth v. Thompkins

258 A.3d 492 (Table)

COMMONWEALTH of Pennsylvania

v.Kevin David THOMPKINS, Appellant

No. 706 WDA 2020

Superior Court of Pennsylvania.

Filed: June 3, 2021

MEMORANDUM BY BENDER, P.J.E.:

Kevin David Thompkins ("Appellant") appeals from the judgment of sentence of an aggregate term of 23 to 46 years' imprisonment, imposed after he was convicted of rape by forcible compulsion, involuntary deviate sexual intercourse by forcible compulsion, aggravated assault, strangulation, criminal trespass, terroristic threats, unlawful restraint, false imprisonment, simple assault, recklessly endangering another person, and indecent assault by forceful compulsion.¹ Appellant alleges the verdict is against the weight of the evidence and challenges the trial court's denial of his request for a mistrial. Appellant also asserts that his sentence is manifestly excessive and an abuse of the trial court's discretion. After careful review, we affirm.

The trial court did not provide a summary of the facts adduced at Appellant's jury trial in either of its Pa.R.A.P. 1925(a) opinions issued in this matter. Thus, we reproduce the Commonwealth's factual summary of the events that led to Appellant's convictions.

On November 1, 2018, Ann Myers, 46 years old, stayed at a motel. The same day, she went to a bar. Between 5 p[.]m[.] and 9 p[.]m[.] in the evening of the same day, she was contacted by [Appellant], an individual known to her, who requested to accompany her to another bar. She refused, which angered [Appellant] and established [his] motive to retaliate. As Ms. Myers was heading back from the bar towards her motel room, she stopped her vehicle at [a] red light, at which time, her vehicle got hit by [Appellant's] car.

Ms. Myers attempted to drive an alternate route to evade [Appellant and] to return to her motel. However, as [she] was attempting to close the door of her motel room, [Appellant] appeared behind her and put his foot in the doorway and then grabbed [a]hold of her and pushed her on the bed inside the room. In an attempt to subdue [her], [Appellant hit her in the face with] a taser (not the electric part) .... While hitting [her], [Appellant] kept repeating, "Do you want this? Do you want this?" After securing a hold of the victim with physical violence and a threat of employing a taser, [Appellant] started strangling [her]. [Ms. Myers] testified to being unable to breathe to the point that she had to start hitting her bed to obtain access to air. Believing that her life [was] at risk, [she] pretended to lose consciousness in hopes that [Appellant] would stop the crime. However, that only incited the nefarious ... and vicious ill will of [Appellant] and formed in [Appellant's] mind the motive to obtain a carnal knowledge of the victim by involuntarily inserting his penis into the vagina of the victim. [Ms. Myers] described the strangulation simultaneously occurring with her rape as an act "of squeezing [her] life ... out of [her]." [Appellant] then proceeded to penetrate the victim's anal cavity with a finger splint, as well as inserted [sic ] his penis in the victim's mouth about 2 to 3 times while exclaiming, "do what daddy says." The victim also testified to knowing that [Appellant] had a pocket knife on him. At the conclusion of the act, [Appellant] removed [Ms. Myers's] keys and her phone[,] as well as used physical force[,] to keep [her] from escaping and from reporting to [the] police. [Ms. Myers] testified that she urinated on herself due to the inability to stand up from the bed caused by [Appellant]. [She] testified that while being raped, strangled[,] and assaulted[,] she kept praying to God that her kids would not end up receiving a call that their mother [was] found dead in a [m]otel.

The ... assault continued for hours through the night. [Appellant] then demanded money from [Ms. Myers], which allowed [her] an opportunity to get the keys to her car from [Appellant], and pretend to go to her parked car outside to retrieve money from her wallet, while [Appellant] watched her. When [she] felt she could escape, she drove directly to a Sheetz store [that] she knew would be open at 5 a.m., at which point she entered the store, immediately approached the counter, and asked the cashiers to call [the] police.

While at the Sheetz store, a store clerk observed Ms. Myers who was very loudly and frantically asking for someone to call [the] police[,] as she needed help; she appeared scared as if someone was going to "come get her," upset, distressed, and was constantly moving.

[Ms. Myers] described the numerous injuries she sustained as a result of [Appellant's] conduct: bruising on [her] chin, discoloration of [her] cheeks, [which she stated] turned into black and blue colors, as well as injuries to her neck. [She] testified that as a result of her injuries, she could not swallow without pain for at least 2 to 3 weeks and wasn't ... able to catch her breath, and [she] continues to experience severe anxieties. [She also] testified to the severe psychological trauma, which she described as devastating to her life. She further characterized that as a result of [Appellant's] crime, Ms. Myers now cannot form a loving and caring relationship as her life has changed upside down. Ms. Myers testified that she never agreed to have sex with [Appellant], never asked for any sex, [and] never wanted to engage in a relationship or intimate intercourse with [Appellant] that night.

Commonwealth's Brief at 5-8 (unnecessary capitalization and citations to record omitted).

At trial, Appellant presented a far different version of events. Appellant's Brief at xiii. He claimed to have met Ms. Myers in August of 2018. She was a long-haul truck driver, and he was in the process of obtaining his CDL. Id. He claims that Ms. Myers told him she was an instructor for a driver training program with the trucking company she worked for, and she offered to take him on an upcoming trip. He stated that she even offered to pay him $500 per week for his company and that he accepted. Id. After Ms. Myers' obtaining authorization from her trucking company, Appellant asserts that he accompanied her on two trips, during which they began a sexual relationship. Id. Upon their return from the trips, he stated he discovered that "the trucking company did not in fact have a training program and that Ms. Myers had fabricated the entire thing." Id. Appellant confronted her about the lie, but stated that they remained friends, and that they would occasionally "meet up for drinks and sex" when she was in town. Id.

Appellant's version of the events that transpired on the night in question was as follows:

On the night of November 1, 2018, [Appellant] stated that he received multiple calls and texts from Ms. Myers stating that she was in town and asking him to come meet her at the bar. She claimed to have some money she still owed him from their earlier trips that he had long since given up on. He eventually agreed to meet her. By the time [Appellant] arrived at the bar, Ms. Myers was already in her car. They had been speaking on the phone as he drove from Gallitzin to Altoona. She told him to follow her back to the Motel 6. While stopped at a traffic light, [Appellant] gently bumped the back of [her] car, then pulled around in front of her as they proceeded to the motel. They parked next to each other and entered the motel room.

They sat at the small table, [Appellant] pulling up a cooler to sit on as there was only one chair. Ms. Myers began drinking from a bottle of fireball whiskey. Mr. Thompkins was not drinking due to a serious table saw injury to his finger the previous day which required antibiotics and thick bandaging. They engaged in small talk[,] and Ms. Myers suggested that [Appellant] come out on the road with her again. He declined. After some time, [Appellant's] hand started throbbing[,] so he went over to the bed and laid down. Soon thereafter, Ms. Myers asked if he wanted to have sex and he agreed. She came over to the bed and began to perform oral sex on him before transitioning to vaginal sex at her request. After, they went to sleep for a short time. Around 4:30 the next morning, [Appellant] woke up. Ms. Myers was just waking up as well. She again asked [him] to go out on the road with her. He refused, reminding her that she still owed him money from the first two trips. She pleaded with him, insisting that she would have the money. She asked him to leave his longtime girlfriend and be with her instead. When he made it clear that was not ever going to happen[,] she became upset and tearful. [Appellant] got dressed and left the motel room. He was shocked and confused when [the] police arrested [him] the following day.

Id. at xiv-xv.

Appellant was arrested and charged with rape by forcible compulsion, involuntary deviate sexual intercourse by forcible compulsion, burglary of an occupied structure adapted for overnight accommodation, aggravated assault (attempting to cause serious bodily injury), strangulation during a sexual assault, criminal trespass, terroristic threats, unlawful restraint, false imprisonment, simple assault (attempting to cause bodily injury), simple assault by physical menace, recklessly endangering another person, and indecent assault. See id. at ix. Appellant's trial commenced on December 9, 2019. On December 11, 2019, after the conclusion of the three-day trial, "the jury returned a guilty verdict on all counts, with the exception of the charge of burglary and the sexual violence component of the charge of strangulation, convicting only of strangulation without sexual violence." Id.

The trial court ordered a pre-sentence investigation ("PSI"), sentencing memorandums, and the production of the Sentencing Guidelines prior to sentencing. Trial Court Opinion ("TCO I"), 8/19/20, at 3. A sentencing hearing was conducted on February 25, 2020. After hearing testimony from Daneen Hoover, Appellant's paramour and mother of his children, and from Appellant, and...