Com. v. Dukulah, S.

J-S89040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

SUMO DUKULAH

Appellant No. 1955 EDA 2015

Appeal from the Judgment of Sentence February 17, 2015

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0007817-2013

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 09, 2017

Appellant, Sumo Dukulah, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas. Appellant

challenges the sufficiency of the evidence, the weight of the evidence, the

admission of testimony and the discretionary aspects of his sentence. We

affirm.

We adopt the facts as set forth by the trial court’s opinion. See Trial

Ct. Op., 11/12/15, at 2-5. All charges at issue in this case concern

Appellant’s conduct with his niece, K.D., from the time she was

approximately age ten until age sixteen.

During his jury trial, Appellant’s counsel discussed K.D.’s lack of

physical injuries during his opening statement:

*

Former Justice specially assigned to the Superior Court.

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The physician who did [the rape kit] will testify in this trial.

What they will tell you is that the rape kit exam shows no

signs of sexual abuse or sexual activity. She had no—they

examined her vagina and her anus and her mouth. They

found no cuts, no tears, no scrapes, no scratches, no

bruises, no sign on her vagina or anus of any sexual

contact at all. Her hymen was still intact.

N.T. 3/26/2014, at 89.

In response, the Commonwealth sought to present the testimony of

Dr. Laura K. Brennan, an attending physician in the pediatrics division at the

Children’s Hospital of Philadelphia who was qualified as an expert in the field

of child sexual abuse. The Commonwealth argued outside the jury’s

presence:

Your Honor, during the defense’s opening yesterday they

made a statement that the Commonwealth believes

deliberately presented a falsehood to the jury. They

deliberately—the defense opened on the fact that the

complaining witness' hymen was intact and therefore she

was never penetrated and that that was the evidence they

were going to hear. Respectfully, to this Court, that is a

deliberate misleading of the jury. Because the defense is

on notice that, A, a sperm was found by the lab, and, more

importantly, the complainant told the doctor and the

detective that she had had consensual sex in the past with

someone her own age.

So they are on knowledge that the complainant has been

penetrated in the past. And to say that the condition of her

hymen therefore means she was never penetrated is

deliberately misleading the jury. So, based on that, the

Commonwealth believes they’ve opened the door. And we

would ask to call an expert for the limited purpose to say

that the fact that the hymen is not damaged or intact does

not mean that they were never penetrated.

And, as Your Honor knows, the experts testify to a study

that was done of a number of pregnant teenagers who all

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had hymens that were intact. You can’t un—ring that bell.

The defense put in their mind that her hymen being intact

or being not damaged therefore means she was never

penetrated.

It was not the Commonwealth’s original—because there is

no trauma in this case, and because the DNA is not an

issue, the Commonwealth was not originally intending to

proceed down that path, but now we're forced to rectify

that. And so we would ask to call an expert for that

limited purpose for those three or four questions, because

the defense has put that into an issue and has put that

idea already in the minds of the jury.

N.T., 3/27/2014, 16-17.

Appellant sought to exclude Dr. Brennan’s testimony on the ground

that the Commonwealth failed to reveal its intention to procure expert

testimony prior to trial. The trial court admitted this testimony, concluding

that Appellant “opened the door” during opening statements. On April 2,

2014, Appellant was convicted of rape,1 rape of a child,2 involuntary deviate

sexual intercourse,3 unlawful contact with a minor,4 endangering the welfare

of a child5 and corruption of minors.6

1

18 Pa.C.S. § 3121(a)(1).

2

18 Pa.C.S. § 3121(c).

3

18 Pa.C.S. § 3123(a)(1).

4

18 Pa.C.S. § 6318(a)(1).

5

18 Pa.C.S. § 4304(a)(1).

6

18 Pa.C.S. § 6301(a)(1)(ii).

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Prior to sentencing, in August 2014, Appellant filed a motion for

extraordinary relief, attaching a handwritten letter, purportedly authored by

K.D., recanting her trial testimony. The Commonwealth responded with a

motion to remove defense counsel, Michael Van Der Veen, Esquire, for his

alleged involvement in procuring the recantation letter. The trial court

granted the Commonwealth’s request and removed Attorney Van Der Veen

from the case for purposes of Appellant’s motion for extraordinary relief.

Trial Ct. Order, 8/29/14. William Christopher Montoya was appointed to

represent Appellant regarding the motion. The trial court conducted two

hearings concerning the motion, on November 7, 2014 and December 16,

2014. At the first hearing, K.D. revealed that her family had encouraged her

to lie by recanting her trial testimony. N.T., 11/7/14, at 111-122. Further,

K.D. explained that Attorney Van Der Veen told her that if she wrote a letter

recanting, Appellant would be released and sent back to Africa. Id. at 122-

124. Further, K.D. testified that she copied exactly what a family member

told her to write when creating the recantation letter. Id. at 129-135. The

trial court denied Appellant’s motion for extraordinary relief.

On February 17, 2015, the trial court sentenced Appellant to

consecutive terms of five to ten years’ imprisonment for rape, fifteen to

thirty years for rape of a child, five to ten years for involuntary deviate

sexual intercourse and five to ten years for unlawful contact with minor. The

trial court also imposed sentences of one to three years’ imprisonment for

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both endangering the welfare of a child and for corruption of minors, to run

concurrent with each other but consecutive to the remainder of the

sentence. The resulting aggregate sentence was thirty-one to sixty-three

years’ imprisonment.

On February 25, 2015, Appellant filed a post-sentence motion, which

the trial court denied on May 21, 2015. Appellant filed a timely notice of

appeal and an amended court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal on August 27, 2015.7 The trial court filed a

responsive opinion.

Appellant raises the following issues for our review:

A. Was the evidence insufficient to sustain Appellant’s

convictions because the complainant’s testimony was

inconsistent and contradictory, so much so that to sustain

the convictions amounts to a violation of due process?

B. Were the verdicts against the weight of the evidence

and did the trial court commit an abuse of discretion by

not granting Appellant a new trial?

C. Did the trial court err by permitting the Commonwealth

to call Dr. Brennan as an expert witness after the start of

trial?

7

In his Rule 1925(b) statement, Appellant included, inter alia, the general

contention that “the evidence was insufficient to find Appellant guilty of the

charges against him, where the alleged victim’s testimony was inconsistent,

and she regularly contradicted herself on the stand.” Appellant’s Rule

1925(b) Statement, 8/27/15. Attorney Montoya filed Appellant’s Rule

1925(b) statement but the instant appellate brief was filed by Attorney Van

Der Veen.

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D. Did the trial court commit an abuse of discretion by

imposing an excessive sentence without considering the

circumstances of the case and the character of Appellant?

Appellant’s Brief at 4.

In his first issue on appeal, Appellant contends that the evidence was

insufficient to support his convictions. The crux of his argument lies in his

contention that K.D.’s testimony was “replete with inconsistencies and

contradictions.” Id. at 34. Appellant also points to a “lack of physical

evidence” and an “incomplete police investigation.” Id. at 42. The

Commonwealth counters that Appellant waived his sufficiency claim due to a

lack of specificity and, in the alternative, maintains that K.D.’s testimony

alone provided more than ample evidence to support Appellant’s

convictions.8 Commonwealth’s Brief at 11-17. No relief is due.

Our review of a sufficiency of the evidence claim is governed by the

following principles:

[O]ur scope of review is plenary. Our standard of review is

de novo. Scope of review refers to the confines within

which an appellate court must conduct its examination. . .

. In other words, it refers to the matters (or what) the

appellate court is allowed to examine. In contrast,

standard of review refers to the manner in which (or ‘how’)

that examination is conducted. A standard of review is the

degree of deference given by the reviewing court to the

8

Despite receiving three extensions, the Commonwealth filed its brief thirty-

five days after the third extended deadline. Hence, we are in receipt of

Appellee’s motion to strike the Commonwealth’s brief. Although we

admonish the Commonwealth for failing to file a timey brief, we decline to

strike the brief pursuant to Pa.R.A.P. 2118 because Appellant was not

prejudiced by the late filing.

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decision under review. In other words, it is the power of

the lens through which the appellate court looks at the

issue in a particular case.

[T]he critical inquiry on review of the sufficiency of the

evidence to support a criminal conviction . . . does not

require a court to ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable

doubt. Instead, it must determine simply whether the

evidence believed by the fact-finder was sufficient to

support the verdict. [A]ll of the evidence and any

inferences drawn therefrom must be viewed in the light

most favorable to the Commonwealth as the verdict

winner.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007)

(quotation marks and citations omitted). Indeed, this Court has held that a

“victim’s uncorroborated testimony is sufficient to support a rape

conviction.” Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa. Super.

2015) (citation omitted).

In addition, regarding the need for specificity in a sufficiency claim,

this Court has held:

[W]hen challenging the sufficiency of the evidence

on appeal, the [a]ppellant’s 1925 statement must

“specify the element or elements upon which the

evidence was insufficient” in order to preserve the

issue for appeal. Such specificity is of particular

importance in cases where, as here, the [a]ppellant

was convicted of multiple crimes each of which

contains numerous elements that the Commonwealth

must prove beyond a reasonable doubt. Here, [the

a]ppellant . . . failed to specify which elements he

was challenging in his 1925 statement . . . . While

the trial court did address the topic of sufficiency in

its opinion, we have held that this is “of no moment

to our analysis because we apply Pa.R.A.P.1925(b) in

a predictable, uniform fashion, not in a selective

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manner dependent on an appellee’s argument or a

trial court’s choice to address an unpreserved claim.”

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.

2009) [ ].

Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (some

citations omitted).

As a prefatory matter, we consider whether Appellant has waived his

sufficiency of the evidence claim. As noted above, Appellant’s Rule 1925(b)

statement failed to “specify the element or elements upon which the

evidence was insufficient” and failed to specify which convictions he was

challenging. See Garang, 9 A.3d at 244. Thus, we are constrained to

conclude that Appellant’s sufficiency issue is waived. See id. Moreover,

even were we not to conclude that Appellant’s sufficiency issue is waived, we

agree with the trial court that ample evidence supported Appellant’s

convictions. See Ratsamy, 934 A.2d at 1235-36. As noted by the trial

court, K.D.’s testimony established that Appellant, the man she thought of

as her father, repeatedly raped her over a six-year period, starting when she

was only ten years old. This testimony was sufficient for the jury as the

fact-finder to find Appellant guilty, and we see no reason why this

determination should be disturbed by this Court. See Gonzalez, 109 A.3d

at 721. Thus, no relief is due.

Appellant also maintains that his guilty verdicts were against the

weight of the evidence. To that end, Appellant points to inconsistencies in

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K.D.’s testimony regarding the timing of the sexual assaults at issue, K.D.’s

letter recanting her trial testimony, the lack of any physical evidence and

“the utter lack of corroborating evidence.” Appellant’s Brief at 48. To the

contrary, the Commonwealth emphasizes that any inconsistencies in K.D.’s

testimony were minor and the trial court found that the recantation letter

was engineered by others. Commonwealth’s Brief at 19-23. Further, the

Commonwealth highlights that five other corroborating witnesses testified

that K.D. had confessed Appellant’s abuse to them individually. Id. at 23.

Once again, we disagree with Appellant and decline to award relief.

The principles governing a challenge to the weight of the evidence are

well settled.

A verdict is against the weight of the evidence “only

when the jury’s verdict is so contrary to the evidence as to

shock one’s sense of justice.” A weight of the evidence

claim is primarily directed to the discretion of the judge

who presided at trial, who only possesses “narrow

authority” to upset a jury verdict on a weight of the

evidence claim. Assessing the credibility of witnesses at

trial is within the sole discretion of the fact-finder. A trial

judge cannot grant a new trial merely because of some

conflict in testimony or because the judge would reach a

different conclusion on the same facts, but should only do

so in extraordinary circumstances, “when the 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.” . . .

Commonwealth v. Blakeney, 946 A.2d 645, 652-53 (Pa. 2008) (citations

omitted).

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An appellate court reviews the exercise of discretion by the trial court,

“not . . . the underlying question of whether the verdict is against the weight

of the evidence.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)

(citation and emphasis omitted).

In this case, the trial court aptly concluded that the jury’s verdicts

were not contrary to the weight of the evidence and “shock[ ] no one’s sense

of justice.” Trial Ct. Op. at 9; see also Blakeney, 946 A.2d at 652-53.

We agree. K.D.’s testimony regarding Appellant’s continual sexual abuse,

and the corroborating witnesses who testified that K.D. had confided in them

about the abuse, was ample evidentiary support for the trial court’s decision.

Thus, we hold that the trial court did not abuse its discretion in determining

that the verdicts were not contrary to the weight of the evidence. See Clay,

64 A.3d at 1055. Therefore, Appellant’s second issue warrants no relief.

Turning to Appellant’s third issue, he contends that the trial court

erred by admitting the testimony of Commonwealth witness Dr. Brennan

“because Appellant did not open the door to the testimony, the admission of

the testimony constituted trial by ambush, and the opinions expressed by

the doctor lacked evidentiary support and amounted to a regurgitation of

findings made by someone else.” Appellant’s Brief at 32. The

Commonwealth responds that Dr. Brennan’s testimony regarding the ability

for a sexual assault victim to still have an “intact hyman” was necessary to

refute Appellant’s suggestion that K.D. could not have been sexually

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assaulted. Commonwealth’s Brief at 25-27. The Commonwealth also

emphasizes that Dr. Brennan, as a supervising physician in the pediatrics

division at the Children’s Hospital of Philadelphia, had extensive personal

experience examining suspected sexual abuse victims, and utilized that

experience, together with K.D.’s doctor’s report, to inform her trial

testimony. See id at 28. We conclude that Appellant’s argument regarding

the admission of Dr. Brennan’s testimony does not merit relief.

In cases involving the admission of expert testimony we note:

Generally speaking, the admission of expert testimony is a

matter left largely to the discretion of the trial court, and

its rulings thereon will not be reversed absent an abuse of

discretion. An expert’s testimony is admissible when it is

based on facts of record and will not cause confusion or

prejudice.

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citation

omitted).

In addition, it is beyond cavil that “when expert opinion evidence is

admitted, the factfinder is free to reject it, accept it, or give it some weight

between the two.” Commonwealth v. Stephens, 74 A.3d 1034, 1041 (Pa.

Super. 2013) (citation omitted). Further, “a litigant opens the door to

inadmissible evidence by presenting proof that creates a false impression

refuted by the otherwise prohibited evidence.” Commonwealth v.

Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) (citation omitted).

In the case sub judice, the trial court properly determined that

Appellant “opened the door” to Dr. Brennan’s testimony by referring to

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K.D.’s “intact hyman” in counsel’s opening statement as evidence that K.D.

was not the victim of sexual assault. See Nypaver, 69 A.3d at 716.

Further, the decision to accept Dr. Brennan’s opinion as to whether, in her

substantial experience, it was “possible” that K.D. had been the victim of

sexual assault even without direct physical evidence was a matter properly

left to the factfinder’s discretion. See Stephens, 74 A.3d at 1041.

Therefore, we conclude that the trial court did not abuse its discretion by

admitting the testimony of Dr. Brennan. See Huggins, 68 A.3d at 966.

In his last issue, Appellant argues that the trial court abused its

discretion in imposing an aggregate sentence of thirty-one to sixty-three

years’ imprisonment. Appellant specifically avers that his sentence was

unreasonable and manifestly excessive because it was imposed

consecutively rather than concurrently. Appellant’s Brief at 68-69. He

further contends that the trial court focused on the seriousness of the

offense rather than Appellant’s circumstances and rehabilitative needs. Id.

at 70-71.

This Court has stated:

discretionary aspects of [an appellant’s] sentence [ ] are

not appealable as of right. Rather, an appellant

challenging the sentencing court’s discretion must invoke

this Court’s jurisdiction by satisfying a four-part test.

We conduct a four-part analysis to determine: (1)

whether appellant has filed a timely notice of appeal,

see Pa.R.A.P. 902 and 903; (2) whether the issue

was properly preserved at sentencing or in a motion

to reconsider and modify sentence, see Pa.R.Crim.P.

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720; (3) whether appellant’s brief has a fatal defect,

Pa.R.A.P. 2119(f); and (4) whether there is a

substantial question that the sentence appealed from

is not appropriate under the Sentencing Code, 42

Pa.C.S.A. § 9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted).

Instantly, Appellant timely filed his appeal, preserved the issue of an

excessive sentence in his post-sentence motion, and included a statement in

his brief, which conforms with Pa.R.A.P. 2119(f). See Appellant’s Brief at

63-65. Accordingly, we ascertain whether Appellant has raised a substantial

question. See Leatherby, 116 A.3d at 83.

“We conduct a case-by-case analysis to determine what allegations

constitute a substantial question.” Commonwealth v. Malovich, 903 A.2d

1247, 1252 (Pa. Super. 2006) (citation omitted); see also 42 Pa.C.S. §

9781(b). “A claim that a sentence is manifestly excessive such that it

constitutes too severe a punishment raises a substantial question.”

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011);

Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (appellant

raised a substantial question when he claimed that a sentencing court

imposed an excessive sentence and failed to consider substantial mitigating

factors). “[A]n averment that the court sentenced based solely on the

seriousness of the offense and failed to consider all relevant factors raises a

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substantial question.” Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa.

Super. 2012) (citation omitted).

We find that Appellant’s Rule 2119(f) statement presents a substantial

question. See id.; Kelly, 33 A.3d at 640; Perry, 883 A.2d at 602. Our

standard of review is as follows:

Sentencing is a matter vested in the sound discretion of

the sentencing judge, and a sentence will not be disturbed

on appeal absent a manifest abuse of discretion. An abuse

of discretion is more than just an error in judgment and,

on appeal, the trial court will not be found to have abused

its discretion unless the record discloses that the judgment

exercised was manifestly unreasonable, or the result of

partiality, prejudice, bias, or ill-will.

More specifically, 42 Pa.C.S.A. § 9721(b) offers the

following guidance to the trial court’s sentencing

determination:

[T]he sentence imposed should call for confinement

that is consistent with the protection of the public,

the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and

the rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b).

Furthermore,

Section 9781(c) specifically defines three instances

in which the appellate courts should vacate a

sentence and remand: (1) the sentencing court

applied the guidelines erroneously; (2) the sentence

falls within the guidelines, but is “clearly

unreasonable” based on the circumstances of the

case; and (3) the sentence falls outside of the

guidelines and is “unreasonable.” 42 Pa.C.S. §

9781(c). Under 42 Pa.C.S. § 9781(d), the appellate

courts must review the record and consider the

nature and circumstances of the offense, the

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sentencing court’s observations of the defendant, the

findings that formed the basis of the sentence, and

the sentencing guidelines. The weighing of factors

under 42 Pa.C.S. § 9721(b) is exclusively for the

sentencing court, and an appellate court could not

substitute its own weighing of those factors. The

primary consideration, therefore, is whether the

court imposed an individualized sentence, and

whether the sentence was nonetheless unreasonable

for sentences falling outside the guidelines, or clearly

unreasonable for sentences falling within the

guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Bricker, 41 A.3d at 875-76 (alterations and some citations omitted).

When imposing sentence, a court is required to consider

the particular circumstances of the offense and the

character of the defendant. In considering these factors,

the court should refer to the defendant’s prior criminal

record, age, personal characteristics and potential for

rehabilitation. Where pre-sentence reports exist, we shall

. . . presume that the sentencing judge was aware of

relevant information regarding the defendant’s character

and weighed those considerations along with mitigating

statutory factors. A pre-sentence report constitutes the

record and speaks for itself.

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014)

(quotation marks and citations omitted).

The trial court stated that prior to sentencing, it considered the

sentencing guidelines and also read the Commonwealth’s sentencing

memorandum, which raised grave concerns regarding Appellant’s lack of

potential for rehabilitation. N.T., 2/17/15, at 51. The trial court also

indicated that it carefully reviewed the presentence report and mental health

evaluation. Trial Ct. Op. at 11. The trial court specifically noted that the

cruelty involved in the case over a prolonged period of time and Appellant’s

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lack of any remorse or compassion for the victim were important factors in

the sentence imposed. N.T., 2/17/15, at 51.

After a careful consideration of the record, we find no abuse of

discretion. See Bricker, 41 A.3d at 875-76. The trial court considered the

presentence report. See Antidormi, 84 A.3d at 761. Further, the trial

court also properly weighed the gravity of Appellant’s actions and his lack of

propensity toward rehabilitation. See id. Therefore, Appellant’s fourth issue

on appeal also must fail. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed. Motion to strike denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2017

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