Com. v. Idrrissa, A.

J-S67035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ABDOU IDRRISSA,

Appellant No. 564 MDA 2015

Appeal from the Judgment of Sentence January 21, 2015

in the Court of Common Pleas of Dauphin County

Criminal Division at No.: CP-22-CR-0001945-2009

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 13, 2016

Appellant, Abdou Idrrissa, appeals from the judgment of sentence

imposed on January 21, 2015, following his jury conviction of rape of an

unconscious victim and indecent assault of an unconscious person.1 On

appeal, Appellant challenges the denial of his motion to suppress his

statement to the police, and claims that the verdict was against the weight

of the evidence and that his sentence was excessive and unreasonable. For

the reasons discussed below, we affirm.

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

18 Pa.C.S.A. §§ 3121(a)(3) and 3126(a)(4).

J-S67035-15

We take the underlying facts and procedural history in this matter

from the trial court’s August 20, 2015 opinion and our independent review of

the certified record.

. . . [O]n December 31, 2008, [the victim] lived in an

apartment [in] Harrisburg, PA. Prior to [that date, the victim’s]

sister, [ ] had been staying with her until she was arrested for a

probation violation. [The victim] knew [Appellant] through [her

sister] although she was not sure whether they were in a “dating

relationship” or if it was “a fling.” It was not until prior to trial

that [the victim] questioned her sister about the relationship and

found out that [the sister and Appellant] were in a sexual

relationship.

. . . On December 31, 2008, [the victim] was at her

friend[’s] house, who was also her neighbor, when she received

several calls on her cell phone from [Appellant]. He was asking

if he could come by her apartment to help [the sister] “put

money on her books,” meaning placing money in her personal

account in the work release facility where she was being

detained. [Appellant] was insistent about coming over, but [the

victim] kept telling him it was too late.

[The victim] returned to her apartment at approximately

11:00 p.m. and proceeded to take the prescription medication

Lexapro and Tylenol P.M. She immediately went to bed fully

clothed in pajamas including a bra. She claimed that she just

passed out. She later awoke to a knock at the door at

approximately 3:00 a.m., and when she answered, [Appellant]

was at her door. He asked to use the restroom so, [the victim]

let him in. [The victim] testified that she did not wait for him to

finish in the bathroom; instead, she went back to bed and

“passed out.”

Later she awoke to find her pants and underwear at her

ankles[,] which scared her and prompted her to call her mother.

She called her mother and her friend, [ ], multiple times until

one of them answered the call. Her mother called back at

approximately the same time that [her friend] arrived at the

apartment with police. [The victim’s mother] instructed her to

touch her vaginal area and smell. She . . . did as her mother

instructed and smelled the odor of latex. [The victim]

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acknowledged that a condom was not found at the scene and

that she likely did not have condoms in her apartment at the

time. She also stated that when she awoke, one of her breasts

was out of her bra cup. [The victim had] no knowledge of what

had happened for her to wake in the described state of undress.

[The victim] remained on her bed in the condition in which she

awoke until the police arrived and, ultimately, the paramedics

took her to the emergency room by ambulance.

While at the hospital, a nurse conducted a physical

examination and completed a rape kit. [The victim] admitted to

the nurse that she had used marijuana earlier in the evening and

that prior to bed she had taken Lexapro and Tylenol P.M. She

relayed the details she could remember about what had

happened that night to the nurse. [The victim] eventually

appeared for an interview with Det[ective Manuel] Rivera [of the

Harrisburg Police Bureau] to provide a statement summarizing

her version of the events of December 31, 2008. She agreed to

place a phone call to [Appellant], that would be recorded, during

which she would act as if she remembered and enjoyed the

sexual encounter for the purpose of eliciting any additional

evidence of the crimes.

With respect to any relationship with Appellant, [the

victim] stated that she neither had a conversation with

[Appellant] about any type of sexual relationship nor actually

had sex with him. At the time of the incident, she was involved

in a seven year relationship with a woman . . . who she referred

to as her fiancée. She stated that she did not have a boyfriend

at the time and that she is not sexually attracted to men.

In December 2008, Stefanie Zeller, RN (“Nurse Zeller”)

was an ER nurse at Harrisburg Hospital who had also been

certified as a SAFE nurse which training qualified her to examine

sexual assault victims. Nurse Zeller was called in for duty in the

ER when [the victim] was admitted for an examination.

According to Nurse Zeller, [the victim] relayed to her that, on

December 31, 2008, she had let a male acquaintance into her

residence, fell back to sleep and when she later woke discovered

that she was undressed from the waist down and smelled the

odor of latex. [The victim] disclosed to Nurse Zeller that she

had smoked marijuana and had taken Lexapro and Tylenol

P[.]M[.] that day. Nurse Zeller proceeded to examine [the

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victim] for the purpose of completing a rape kit to collect any

possible evidence of the alleged sexual assault.

Nurse Zeller conducted an overall physical examination

and a physical examination of the vagina and anus. A saliva

specimen, vaginal swab, and an oral swab were collected from

[the victim] and her pubic hair was combed. During [ ] her

examination, Nurse Zeller did not observe any bruising on [the

victim’s] body or trauma to the vaginal vault. According to

Nurse Zeller, [the victim] did not report any pain but she was

clearly upset. . . .

* * *

Det. Rivera . . . oversaw the resulting investigation. On

the morning of December 31st, he met with [the victim] who

ultimately provided a recorded statement recounting her version

of events. By the time of trial however, the transcription of the

statement was not available because the written version was lost

and the memory of the transcribing secretary’s computer had

been wiped clean due to her retirement.

[The victim] agreed to participate in a wiretapped phone

call to [Appellant] for the purpose of gaining further evidence of

the incident and to determine his last name and address. Det.

Rivera and another officer coached [the victim] on what she

should say during the conversation that might elicit an admission

relating to the crime or any other identifying information. After

several attempts to contact [Appellant], he returned a call[,]

which was captured by recording on January 8, 2009. . . .

During the conversation, [Appellant] admitted to having

sexual intercourse with [the victim] on December 30, 2008,

while she was asleep, which information led to his arrest on

February 4, 2009. During the recorded conversation, [Appellant]

said that he knew [the victim] did not remember what had

happened and that he tried to wake her up. He explained that

he thought she [would] be mad about the encounter, so he left

the area.

(Trial Court Opinion, 8/20/15, at 4-9) (record citations omitted).

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On July 13, 2009, the Commonwealth filed an information charging

Appellant with the aforementioned crimes and other related offenses. On

the date scheduled for trial, January 11, 2010, Appellant failed to appear

and the trial court issued a bench warrant. Appellant was apprehended in

Brooklyn on January 18, 2014. On October 15, 2014, Appellant filed a

motion to suppress his statements to the police. The trial court held a

suppression hearing on October 20, 2014, following which the court denied

Appellant’s motion.

. . . The suppression hearing established the following

facts: [Appellant] was arrested on February 4, 2009, and

interviewed by [Det. Rivera]. Det. Rivera became aware that

[Appellant] was of African ethnicity but, spoke English. He later

learned that [Appellant] was from Niger and [Det.] Rivera

explained that, even though he did not recall specifically asking,

he knew Niger was a French speaking country. Det. Rivera

stated that although [Appellant’s] English was not “the best

English,” he was able to comfortably communicate in English

without a problem. Prior to the commencement of the verbal

interview, Det. Rivera spent approximately five [ ] minutes going

over his Miranda[2] warnings to reassure himself that

[Appellant] understood his rights. The specific legal warnings

conveyed to Appellant included his right to remain silent, his

right to counsel prior to speaking to police, the right to have

counsel appointed if he could not afford an attorney, the fact

that any statements could be used against him in a court of law,

and his right to stop speaking to police at any time despite

beginning an interview. After explaining the allegations against

him and when he was sure that Appellant understood that he

was waiving his Miranda rights, Det. Rivera began a verbal

interview during which Appellant provided his version of events.

[Det.] Rivera stated that during the interview, he received no

indication that Appellant did not understand the discussion and if

____________________________________________

2

Miranda v. Arizona, 384 U.S. 436 (1966).

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he did not understand something, [Appellant] asked for

clarification.

The verbal interview lasted approximately [fifteen-twenty]

minutes. Afterwards, [Appellant] agreed to give Det. Rivera a

recorded statement. The transcript of the recorded statement as

well as the recording itself was admitted into evidence at the

suppression hearing.

[Appellant] also testified at the suppression hearing.

[Appellant] moved to the United States from Niger in October of

2005. In his native country he spoke Hausa and French. Upon

arrival, he got job working for an American company where

other French speaking Niger natives worked, some of whom

could translate directions from English. [Appellant] paid money

to marry an American woman, who did not speak Hausa or

French, for the purpose of obtaining “legal papers.” While he

was married from 2006-2008, his wife only spoke English.

Additionally, [Appellant] was an acquaintance of the victim, [ ]

with whom he only spoke English as she did not speak Hausa or

French.

Regarding the recording of the interview with Det. Rivera,

Appellant stated that he understood he was waiving certain

constitutional rights but[] thought he was obliged to answer.

[Appellant] stated that he was nervous and the fact that Det.

Rivera was in plain clothes while carrying a gun meant that he

was required to answer everything he said. [Appellant] never

asked for an interpreter; rather, he assumed that it was the

police officer’s job to ask.

(Trial Ct. Op., at 2-4) (record citations and footnotes omitted).

A jury trial took place on October 20 through 22, 2014, at which time,

the jury found Appellant guilty of the aforementioned offenses. On January

21, 2015, the trial court sentenced Appellant in the upper end of the

standard range of the guidelines to a aggregate term of incarceration of not

less than sixty-six nor more than one hundred thirty-two months. (See N.T.

Sentencing, 1/21/15, at 10-11). On January 30, 2015, trial counsel filed

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both a motion to withdraw his appearance and a post-sentence motion

challenging the weight of the evidence and seeking a modification of

sentence. (See Appellant’s Post-Sentence Motion, 1/30/15, at unnumbered

pages 2-3). On February 3, 2015, the trial court granted counsel’s request

to withdraw. On February 24, 2015, the trial court denied Appellant’s post-

sentence motion.

On March 12, 2015, Appellant, despite now being represented by the

Dauphin County Public Defender’s Office, filed a pro se petition brought

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

On March 20, 2015, the trial court appointed counsel to represent Appellant.

On March 26, 2015, appellate counsel filed the instant, timely appeal from

the judgment of sentence. On April 16, 2015, the trial court concluded that

Appellant had prematurely filed his PCRA petition, vacated the appointment

of PCRA counsel, and dismissed the petition without prejudice. On April 17,

2015, the trial court ordered Appellant to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely

Rule 1925(b) statement on May 7, 2015. On August 20, 2015, the trial

court issued an opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review.

I. Whether the trial court erred in denying Appellant’s

[s]uppression [m]otion where he did not knowingly, voluntarily,

and intelligently waive his Miranda rights, in violation of Article

I, Section 9 of the Pennsylvania Constitution and the Fifth

Amendment to the United States Constitution?

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II. Whether the trial court erred in denying Appellant’s [p]ost-

[s]entence [m]otion where his convictions were against the

weight of the evidence so as to shock one’s sense of justice

where Appellant was not shown to have engaged in acts which

constitute the offenses of which he was convicted?

III. Whether the trial court erred in denying Appellant’s [p]ost-

[s]entence [m]otion where his sentence is excessive and

unreasonable and constitutes too severe a punishment in light of

the gravity of the offense, Appellant’s rehabilitative needs, and

what is needed to protect the community?

(Appellant’s Brief, at 7) (unnecessary capitalization, justification and

underlining omitted).

In his first claim, Appellant argues that the trial court erred in denying

his motion to suppress his statement to the police because he was unable to

make a knowing waiver of his Miranda rights because of his poor grasp of

the English language. (See id. at 14-16). We disagree.

When we review a ruling on a motion to suppress, “[w]e must

determine whether the record supports the suppression court’s factual

findings and the legitimacy of the inferences and legal conclusions drawn

from these findings.” Commonwealth v. Holton, 906 A.2d 1246, 1249

(Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation

omitted). Because the suppression court in the instant matter found for the

Commonwealth, we will consider only the testimony of the Commonwealth’s

witnesses and any uncontradicted evidence supplied by Appellant. See id.

If the evidence supports the suppression court’s factual findings, we can

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reverse only if there is a mistake in the legal conclusions drawn by the

suppression court. See id.

Appellant has waived this claim. Appellant’s conclusory argument that

his motion should have been granted because of his difficulties with the

English language is, with the exception of a general citation to Miranda,

completely devoid of relevant legal authority. He also completely ignores

our standard of review, citing to elements of Appellant’s testimony that were

contradicted by the Commonwealth’s evidence to support his argument, it is

therefore waived. See Commonwealth v. Cotto, 753 A.2d 217, 224 n.6

(Pa. 2000) (meaningful appellate review is not possible where argument

consists only of bald assertions unsupported by citation to authority or

pertinent discussion of point).

Moreover, his assertions are without merit. Generally, statements

made during custodial interrogation are presumptively involuntary, unless

the police first inform the accused of his Miranda rights. See

Commonwealth v. DiStefano, 782 A.2d 574, 579 (Pa. Super. 2001),

appeal denied, 806 A.2d 858 (Pa. 2002). Further:

The determination of whether a confession is voluntary is a

conclusion of law and, as such, is subject to plenary review.

Moreover, the totality of the circumstances must be considered

in evaluating the voluntariness of a confession. The

determination of whether a defendant has validly waived his

Miranda rights depends upon a two-prong analysis: (1)

whether the waiver was voluntary, in the sense that defendant’s

choice was not the end result of governmental pressure, and (2)

whether the waiver was knowing and intelligent, in the sense

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that it was made with full comprehension of both the nature of

the right being abandoned and the consequence of that choice.

Commonwealth v. Mitchell, 902 A.2d 430, 451 (Pa. 2006), cert. denied,

549 U.S. 1169 (2007) (citations omitted). “Only if the totality of the

circumstances surrounding the interrogation reveals both an uncoerced

choice and the requisite level of comprehension may a court properly

conclude that the Miranda rights have been waived.” Commonwealth v.

Cephas, 522 A.2d 63, 65 (Pa. Super. 1987), appeal denied, 531 A.2d 1118

(Pa. 1987), cert. denied, 484 U.S. 981 (1987) (emphasis added) (internal

quotation marks omitted). The Commonwealth has the burden to prove “by

a preponderance of the evidence that the waiver is also knowing, and

intelligent.” Id. (emphasis omitted).

When assessing voluntariness the court should look at the following

factors: “the duration and means of the interrogation; the physical and

psychological state of the accused; the conditions attendant to the

detention; the attitude of the interrogator; and any and all other factors

which could drain a person’s ability to withstand suggestion and coercion.”

Commonwealth v. Nester, 709 A.2d 879, 883 (Pa. 1998). See also

Commonwealth v. Sanabria, 385 A.2d 1292, 1294-95 (Pa. 1978) (holding

appellant’s waiver of Miranda rights was knowing, voluntary, and intelligent

despite appellant’s claimed difficulty in understanding English; appellant’s

ability to communicate effectively in English with police before and after his

arrest belied his claims); Commonwealth v. Padilla, 854 A.2d 549, 552-53

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(Pa. Super. 2004) (holding appellant possessed sufficient fluency in English

to understand verbal communication despite his inability to read or write

English; statements made after police read Miranda warnings in English did

not require suppression); Commonwealth v. McFadden, 559 A.2d 58, 60

(Pa. Super. 1989), appeal denied, 568 A.2d 1246 (Pa. 1989) (inability to

read and write English did not invalidate otherwise knowing, voluntary, and

intelligent Miranda waiver).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

Appellant’s first issue merits no relief. The trial court credited the testimony

of Det. Rivera that Appellant understood and spoke English and did not

credit Appellant’s testimony to the contrary. (See Trial Ct. Op., at 11). We

must defer to that finding. See Commonwealth v. Walker, 874 A.2d 667,

671 (Pa. Super. 2005). Further, the trial court reviewed the evidence

underlying its decision as follows:

Review of the record reveals Det. Rivera’s interaction with

[Appellant] began with his arrival at the police station after his

arrest at approximately 7:45 a.m. Appellant was Mirandized

when he was arrested and Det. Rivera went over his

constitutional rights again prior to his verbal interview[,] which

lasted [fifteen-twenty] minutes. The parties began recording the

statement at 8:39 a.m. Clearly [Appellant] was not held for any

great length of time prior to the interview and the questioning

was of a very short duration. Further, as pointed out by

Appellant’s counsel, approximately [fifteen] minutes of the

overall interaction was dedicated to Det. Rivera explaining his

constitutional rights and ensuring that [Appellant] understood

what was happening and what he was agreeing to do. The

record is void of any evidence of coercion or an indication that

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[Appellant] was deprived of sleep, medication, food or drink. If

Det. Rivera had any indication that [Appellant] was not

understanding, such as when they were discuss[ing] a slang

term of a sexual nature, he made sure to state or explain the

term in other ways to ensure Appellant’s understanding. With

respect to his inexperience with the criminal justice system, this

[c]ourt finds [Appellant’s] claim without merit. The record

clearly highlights that he admittedly had enough knowledge of

the legal system to know how to circumvent it by finding a

woman whom he could pay to enter into a sham marriage so he

could legally stay in this country. Finally, the recording of

[Appellant’s] statement establishes a free flowing conversation

during which there were no unresponsive answers that would

indicate any language barrier or misunderstanding.

Therefore, in conclusion, this [c]ourt finds that the record

amply supports the finding that Appellant voluntarily and

knowingly waived his Miranda rights; as such, the denial of

Appellant’s [s]uppression [m]otion was proper.

(Trial Ct. Op., at 13-14). The record supports the trial court’s conclusion

that Appellant’s statements were knowingly, intelligently, and voluntarily

made. See Sanabria, supra at 1294-95; Padilla, supra at 552-53;

McFadden, supra at 60. Thus, even if Appellant had not waived the claim,

Appellant’s first issue lacks merit.

In his second claim, Appellant argues that his conviction was against

the weight of the evidence because the victim’s testimony was not credible.

(See Appellant’s Brief, at 16-18). We disagree.

Initially, we note that Appellant waived this claim because his

argument is completely devoid of citation to any legal authority. See In re

C.R., 113 A.3d 328, 335-36 (Pa. Super. 2015) (finding weight of evidence

claim waived where appellant failed to cite to any legal authority).

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In any event, the claim is without merit.

Our scope and standard of review of a weight of the evidence claim is

as follows:

The finder of fact is the exclusive judge of the weight of

the evidence as the fact finder is free to believe all, part, or none

of the evidence presented and determines the credibility of the

witnesses.

As an appellate court, we cannot substitute our judgment

for that of the finder of fact. Therefore, we will reverse a jury’s

verdict and grant a new trial only where the verdict is so

contrary to the evidence as to shock one’s sense of justice. A

verdict is said to be contrary to the evidence such that it shocks

one’s sense of justice when the figure of Justice totters on her

pedestal, or when the jury’s verdict, at the time of its rendition,

causes the trial judge to lose his breath, temporarily, and causes

him to almost fall from the bench, then it is truly shocking to the

judicial conscience.

Furthermore, where 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.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and internal quotation marks omitted). “Thus, the trial

court’s denial of a motion for a new trial based on a weight of the evidence

claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949

A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation

omitted).

Here, the trial court rejected Appellant’s weight of the evidence claim,

noting that fact-finding and credibility determinations were matters for the

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jury. (See Trial Ct. Op., at 16). We agree. The record reflects that the jury

chose to credit the testimony of the victim and chose to reject the defense’s

theory of the case. The jury, sitting as finder of fact, was free to believe the

Commonwealth’s witnesses and to disbelieve the defense. See

Commonwealth v. Griscavage, 517 A.2d 1256, 1259 (Pa. 1986). “[I]t is

for the fact-finder to make credibility determinations, and the finder of fact

may believe all, part, or none of a witness’s testimony.” Commonwealth

v. Lee, 956 A.2d 1024, 1029 (Pa. Super. 2008), appeal denied, 964 A.2d

894 (Pa. 2009) (citation omitted). Thus, even if Appellant had not waived

his weight of the evidence claim, it is without merit.

In his final claim, Appellant argues that his sentence was excessive

and unreasonable because his fiancée testified that his is a “loving,

compassionate, loyal, and dedicated man[,]” who is loved in the community.

(Appellant’s Brief, at 18) (record citation omitted). We disagree.

Preliminarily, we note, “[i]ssues challenging the discretionary aspects

of sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings. Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.”

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal

denied, 860 A.2d 122 (Pa. 2004) (citations and internal quotations marks

omitted). Here, Appellant properly preserved his claim by filing a post-

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sentence motion. (See Appellant’s Post-Sentence Motion, 1/30/15, at

unnumbered pages 2-3).

The right to appeal the discretionary aspects of a sentence is not

absolute. See McAfee, supra at 274. When an appellant challenges the

discretionary aspects of the sentence imposed, he must present “a

substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted). An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to the fundamental norms underlying the sentencing scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we

determine whether a substantial question exists. See Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which

the appeal is sought, in contrast to the facts underlying the appeal, which

are necessary only to decide the appeal on the merits.” Id. (emphases in

original).

Here, Appellant has included a Rule 2119(f) statement in his brief.

(See Appellant’s Brief, at 11-13), arguing that his sentence was harsh and

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excessive because his fiancée testified that he was a good person. (See id.

at 12-13). This Court has held that “a bald assertion that a sentence is

excessive does not by itself raise a substantial question justifying this

Court’s review of the merits of the underlying claim.” Commonwealth v.

Fisher, 47 A.3d 155, 159 (Pa. Super. 2012), appeal denied, 62 A.3d 378

(Pa. 2013) (citation omitted). Thus, because this claim is a bald allegation of

excessiveness and does not raise any challenge in the claim itself or in the

brief as to a violation of the Sentencing Code or a particular fundamental

norm underlying the sentencing process, we find that it does not raise a

substantial question. See id.

Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/13/2016

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