Commonwealth v. Weaver

1

COMMONWEALTH OF PENNSYLVANIA v. NATHAN WILLIAM WEAVER Appellant

No. 119 MDA 2023

No. J-S29041-23

Superior Court of Pennsylvania

November 3, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered July 25, 2022 In the Court of Common Pleas of Clinton County Criminal Division at No(s): CP-18-CR-0000432-2019

BEFORE: MURRAY, J., KING, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Nathan William Weaver appeals from the judgment of sentence imposed following a jury convicting him of sexual assault, aggravated indecent assault, and indecent assault.^[1] For these offenses, Weaver was aggregately sentenced to nine and one-half to twenty-four years of incarceration. On appeal Weaver presents three issues for our consideration contending that the evidence was insufficient to sustain the jury's verdict on all counts, that the court erred in allowing prior uncharged "bad act" testimony from two witnesses, and that the Commonwealth failed to demonstrate, by clear and convincing evidence, that he was a sexually violent predator ("SVP"). After a thorough review of the record, we affirm.

Briefly, as recounted by the trial court:

On or about October 26, 2018, the victim … (age 21), attended an apartment party with her sister and her sister's fiancé, … Weaver. The victim acknowledged that she was consuming alcoholic beverages and, around 3:15 a.m., went to a bedroom and laid down on the bed. A short time thereafter, the victim heard [Weaver] enter the room and state that he was going to sleep on the floor. The victim later realized that [Weaver] was in her bed and kissing her. The victim believed that it was her boyfriend who entered into her bed. Later on she felt her vagina being digitally penetrated and her … shorts being removed. At that point she felt someone having sexual intercourse with her. She eventually realized that it was not her boyfriend and that it was [Weaver]. She pushed [Weaver] off of her and waited until [he] fell asleep. At that point she left the room and called the police. At the time of this event [Weaver] was the victim's sister's fiancé. [Weaver] denied having sex with the victim but later DNA testing confirmed [Weaver's] DNA on the vaginal swab.

Trial Court Opinion and Order, 7/15/22, at 1-2.

In a subsequent opinion, the court expanded upon the factual underpinnings of this case:

The victim testified that on the night in question, she was present at her own rental unit near … Lock Haven University, which she was attending as a student. Also present at the time of the incident was the victim's sister and her sister's fiancé, [Weaver].

The participants consumed alcoholic drinks and the victim made a decision to proceed to her own bedroom in the early morning hours to lay down and rest. Shortly thereafter, [Weaver], uninvited, entered the victim's bedroom indicating that he was going to sleep on the floor. The victim, while under the influence of alcohol and attempting to sleep in her own bed, realized that someone was in her bed kissing her, believing it to be her boyfriend. A short time later the victim felt her vagina being penetrated by fingers and her clothing being removed. The encounter proceeded to a point where the victim was engaging in vaginal intercourse with the person in her bed whom she still believed to be her own boyfriend. A light outside of the window illuminated [Weaver's] body and the victim identified [Weaver's] tribal tattoos and gold chains. The victim immediately pushed [Weaver] off of her. [Weaver] put the victim's clothing back on her and then proceeded to go to sleep with the victim fleeing the bedroom and calling the police. The victim clearly testified at the time of trial that she in no way consented to any type or level of sexual activity with [Weaver] and that she never would.

Trial Court Opinion and Order, 1/10/23, at 2-3.

At trial, following a hearing, the lower court granted the Commonwealth's motion to introduce, pursuant to Pennsylvania Rule of Evidence 404(b), the testimony of two individuals who both testified that Weaver had engaged in nonconsensual, uncharged bad acts of a sexual nature on them. These acts were alleged to have occurred some eight to ten years prior to the present incident.

Ultimately, a jury found Weaver guilty of the three aforementioned crimes. Weaver was correspondingly sentenced to nine and one-half to twenty-four years of incarceration and additionally determined by the trial court to be an SVP.

After sentencing, Weaver filed a timely post-sentence motion. However, the trial court ruled on this motion-the determination Weaver has now appealed from-outside of its 120-day period to do so, as outlined in Pennsylvania Rule of Criminal Procedure 720(B)(3)(a). Moreover, once that 120-day period had elapsed, the clerk of courts failed to enter and distribute an order deeming the motion denied on behalf of the trial court by operation of law. See Pa.R.Crim.P. 720(B)(3)(c). While, ordinarily, an appeal taken from a decision issued outside the 120-day period would be untimely, this court has "found a breakdown [in court operations] where the clerk of court did not enter an order notifying the appellant that his post-sentence motion was denied by the operation of law." Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007) (citation omitted). As such, and because Weaver filed his notice of appeal within thirty days of the trial court's order denying his post-sentence motion, we may excuse the untimely filing of Weaver's notice of appeal and proceed to adjudicate this appeal's merits.

On appeal, Weaver asks:

1. Was the evidence submitted to the jury sufficient to sustain its guilty verdicts?

2. Is Weaver entitled to a new trial because the court erred in allowing 404(b) testimony?

3. Was the evidence sufficient, based on a clear and convincing evidence standard, to establish that Weaver met the definition of an SVP?

See Appellant's Brief, at 12.

As Weaver's first issue contests the sufficiency of evidence employed against him at all three guilty verdicts, we note our well-settled standard of review:

The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact[-]finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth may not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Lambert, 795 A.2d 1010, 1014-15 (Pa. Super. 2002) (citations omitted).

Relevant to the claim at hand, "it is well-established that the uncorroborated testimony of the complaining witness is sufficient to convict a defendant of sexual offenses." Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005) (citations and internal quotation marks omitted). We also emphasize that "resistance to sexual assault is not required to sustain a conviction." Commonwealth v. Smith, 863 A.2d 1172, 1176 (Pa. Super. 2004).

Weaver does not discuss, with any particularity, the elements of any of his convictions. Instead, he argues that "the evidence failed to show that the alleged victim did not consent to the alleged sexual activity or, in the alternative, [Weaver] was not aware that the victim was not consenting to said sexual activity." Appellant's Brief, at 18. Specifically, Weaver illuminates that: (1) Weaver got into the victim's bed; (2) Weaver and the victim engaged in sexual activity without any verbal or physical resistance, with the victim seemingly going along with this activity; and then, (3) when the victim realized Weaver was not her boyfriend, she pushed Weaver away, leading to an immediate cessation of sexual activity between the two. See id. Weaver contends that "a person in [his] position would have believed that the victim was consenting to the activity until she pushed him off." Id. As such, the Commonwealth failed to prove non-consent and that Weaver recklessly disregarded that non-consent. See id., at 19 (citing Commonwealth v. Carter, 418 A.2d 537 (Pa. Super. 1980)).

Weaver is correct insofar as all of his convictions required the Commonwealth to demonstrate beyond a reasonable doubt that the complainant did not consent to his actions. See 18 Pa.C.S. § 3124.1 ("without the complainant's consent"); 18 Pa.C.S. § 3125(a)(1) ("without the complainant's consent"); 18 Pa.C.S. § 3126(a)(1) ("without the complainant's consent"). We note that, because none of the relevant statutes define the mental state sufficient to establish the defendant's guilt, the Commonwealth was required to prove that Weaver acted intentionally, knowingly, or recklessly with respect to each material element of the offenses. See 18 Pa.C.S. § 302(c); A.L. v Pennsylvania State Police, 274 A.3d 1228, 1240 (Pa. 2022) (indicating that the offense of sexual assault requires at least a finding of reckless mental...