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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
' PENNSYLVANIA
v.
SAMUEL OKORIE, : No. 1854 WDA 2015
Appellant

Appeal from the Judgment of Sentence, July 28, 2015,
in the Court of Common Pleas of A||egheny County
Criminal Division at No. CP-OZ-CR-0012588-2014

BEFORE: FORD ELLIO`|_|', P.J.E., LAZARUS AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIO'|'|', P.J.E.: FILED NOVEMBER 08, 2016
Samuel Okorie appeals from the judgment of sentence entered in the
Court of Common Pleas of A||egheny County on July 28, 2015, after his
conviction in a waiver trial of one count of kidnapping, two counts of rape,
one count of involuntary deviate sexual intercourse, and one count of
robbery.1 The trial court sentenced appellant to an aggregate term of
imprisonment of 20 to 40 years. We affirm.
The trial court summarized the facts as follows:
[O]n the evening of September 6, 2014, [the]
22-year-old [victim] went to the South Side section
of the City of Pittsburgh with three female friends to
celebrate one girl's birthday. They arrived at

11:30 p.m. and went to the Rowdy Bucks Bar, then
to the Jimi Hendri)< Bar and returned to the Rowdy

 

1 18 Pa.C.S.A. §§ 2901(a)(1), 3121(a)(1), 3123(a)(1), and 3701(a)(1)(v),
respectively.

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Bucks Bar, where they stayed until closing at
2:00 a.m. [The victim] walked back to the car
herself and on the way, she encountered [appellant]
who approached her, told her she looked nice and
offered her a ride home. She told him she had [a]
ride and kept walking. She met her friends at the
car and went back to Carson Street briefly with two
of them. Eventually all the girls got in the car and
left, stopping at the BP Gas Station on 10th Street.
Because she was angry at her friends, [the victim]
got out of the car and began walking towards the
Liberty Tunnel. While she was walking, a car drove
up to her and [appellant], who was a passenger,
scolded her for not waiting for him to get his car but
indicated he could take her home now. [The victim]
got into the car and instructed the driver to go
through the Liberty Tunnels and turn onto Route 51
South. After exiting the tunnels, the car did not turn
onto Route 51, but instead continued up
West Liberty Avenue then stopped. [Appellant]
pulled [the victim] out of the vehicle and the vehicle
drove off. Scared, [the victim] attempted to call a
friend, but [appellant] grabbed her cell phone and
kept it. [The victim] ran up the street, but
[appellant] caught up to her, backed her into the
corner of a parking lot behind a van, pushed her
down and had intercourse with her. After he was
finished, [the victim] got up and tried to walk away,
but [appellant] grabbed her arm and took her with
him to his residence on Fallowfield Avenue in
Beechview. He pushed her into the house and took
her into the bedroom, where he ripped off her
underwear and had vaginal and anal intercourse with
her. Eventually, [the victim] convinced him to let
her use the bathroom and she ran out of the house
and down the street, knocking on doors until a
woman let her in and called 911. Upon the arrival of
police, [the victim] directed the officers to
[appellant's] residence and later identified him for
the police. A search of [appellant's] bedroom
revealed [the victim's] cell phone and her panties,
which had been ripped in half and thrown in the
garbage. [The victim] was transported to Magee
Hospital where a rape kit examination was

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performed. Semen was found [in] the vaginal
cervix, right genital area and internal rectal swabs
and DNA taken from samples was matched to
[appellant].

Trial court opinion, 4/12/16 at 4-5.

The record reflects that after imposition of sentence, appellant filed

timely post-sentence motions and amended post-sentence motions.

The

record further reflects that the trial court initially granted appellant's

post-sentence motions, but did so as a result of a clerical error.

After

recognizing that error, the trial court vacated the order granting appellant's

post-sentence motions and entered an order denying same.

appeal followed.2

Appellant raises the following issues for our review:

1.

2a.

Did the Trial Court err when it concluded
[appellant's] pretrial statement to police could
not be afforded evidentiary weight due to
[appellant's] decision not to testify at trial,
thus drawing an adverse inference from
[appellant's] right not to testify on his own
behalf?

Did the Trial Court err in convicting [appellant]
when the testimony of the victim at trial was
so markedly inconsistent with previous
testimony and statements that the Court
concluded it was unbelievable thereby shocking
the conscious [sic] and making the conviction
against the weight of the evidence?

 

This timely

2 Appellant complied with the trial court's order directing him to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

court filed a Rule 1925(a) opinion.

The trial

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2b. Would the evidence presented by the
Commonwealth, even if believed, be
insufficient to convict [appellant], given that
when the testimony of the victim is excluded,
the only evidence is the victim's cell phone, the
victim's panties, and the neighbor's
statements?

3. Did the Sentencing Court abuse its discretion
when it sentenced [appellant] at the statutory
maximum, above the aggravated range of the
guidelines to be run consecutively solely in
response to the impact of the crime on the
victim and without due consideration for all
statutory factors?

Appellant's brief at 4.

Appellant first complains that the trial court violated his constitutional
rights when it drew an adverse inference from appellant's choice not to
testify at trial.

The record reflects that appellant advanced a consent defense at trial.
To that end, and in his closing statement, appellant argued that the
inconsistencies in the victim's testimony established her consent. At the
conclusion of closing arguments, the trial court stated:

THE COURT: Well, of course, there is [sic] a number
of inconsistencies, including how the victim got from
the South Side to West Liberty. It was either friends
of the victim, friends of [appellant], a random person
they hitch hiked with, or if you believe that the
victim doesn't remember.

You know this Court draws no adverse
inference whatsoever from the fact that
[appellant] did not testify. However, I have

difficulty putting the same amount of weight on
[appellant's] consent defense as given through the

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police officer since the statement was not
cross-examined. And although [appellant] doesn't
have to testify, the only evidence we have of consent
is not direct evidence.

Obviously, [the victim] makes a very poor
decision in this case. However, I find three issues
compelling. One is that the cell phone was found in
[appellant's] bedroom. Two would be the torn
panties. And three, the most important piece of
evidence was the 9-1-1 call. That was made shortly
after this incident. That speaks for itself.

Notes of testimony, 5/13/15 at 129-130 (emphasis added).

Appellant argues that the trial court's statement that it had “difficulty
putting the same amount of weight on [appellant's] consent defense as
given through the police officer since the statement was not
cross-examined" violated appellant's Fifth Amendment rights. (Appellant's
brief at 18.) In support, appellant cites to Commonwealth v. Hodge, 369
A.2d 815 (Pa. 1977), for the proposition that “a comment on [appellant's]
failure to testify is improper and violative of [appellant's] Fifth Amendment
rights.” (Appellant's brief at 19.)

Appellant's reliance on Hodge is unavailing. In Hodge, our supreme
court reiterated the rule that an inference or suggestion to a jury concerning
a criminal defendant's failure to testify violates the accused's Fifth
Amendment rights. Id. at 818. Here, appellant was convicted in a bench
trial. Moreover, it is axiomatic that when a trial court sits as fact-finder, it is

presumed to know the law, ignore prejudicial statements, and disregard

inadmissible evidence. Commonwealth v. Konias, 136 A.3d 1014, 1022

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(Pa.Super. 2016) (citation omitted); see also Commonwealth v. Flynn,
460 A.2d 816, 823 n.13 (Pa.Super. 1983) (stating that this court
“presume[s] that the [trial] court, which sat as factfinder in this case,
followed its own instructions[]”). Here, the record reflects that the trial
court stated that it “[drew] no inference whatsoever from the fact that
[appellant] did not testify." (Notes of testimony, 5/13/15 at 129.) Nothing
in the record demonstrates otherwise. Therefore, this claim lacks merit.

Appellant next challenges the weight and sufficiency of the evidence.
At the outset, we note that it is well settled that when challenging the
sufficiency of the evidence on appeal, that in order to preserve that issue for
appeal, an appellant's Rule 1925(b) statement must specify the element or
elements upon which the evidence was insufficient. Commonwealth v.
Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670
(Pa. 2010) (citation and internal quotation marks omitted).

Here, in his Rule 1925(b) statement, appellant frames his sufficiency
challenge as follows: “Appellant next alleges that the verdicts as to
Counts 1, 2, 3, 4 and 7 were insufficient as a matter of law. In so doing,
[appellant] incorporates the arguments set forth paragraph [sic] 12 of this
Concise Statement.” (Concise statement of matters complained of on
appeal, 2/3/16 at 3, 11 13.) In paragraph 12, appellant:

avers that the verdicts as to counts 1, 2, 3, 4 and 7
were against the weight of the evidence.

Specifically, [appellant] alleges that the testimony of
the victim in this matter was wildly inconsistent with

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previous statements and testimony given in this
matter, and therefore could not be reliable.

Id. at 2-3, 11 12.

Appellant's sufficiency claim as set forth in his Rule 1925(b) statement
completely fails to identify which element or elements of any of the crimes of
which he was convicted were insufficient. Although appellant attempts to
challenge the sufficiency of the evidence, he does nothing more than refer
us to his weight challenge. Appellant's weight challenge does nothing more
than attack the victim's reliability. Therefore, appellant's sole challenge is to
the weight of the evidence, not its sufficiency. See Commonwealth v.
Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003) (a review of the
sufficiency of the evidence does not include a credibility assessment; such a
claim goes to the weight of the evidence); Commonwealth v. Gaskins,
692 A.2d 224, 227 (Pa.Super. 1997) (the fact-finder makes credibility
determinations, and challenges to those determinations go to the weight of
the evidence, not the sufficiency of the evidence).

The essence of appellate review for a weight claim
appears to lie in ensuring that the trial court's
decision has record support. Where the record

adequately supports the trial court, the trial court
has acted within the limits of its discretion.

A motion for a new trial based on a claim that the
verdict is against the weight of the evidence is
addressed to the discretion of the trial court. A new
trial should not be granted because of a mere conflict
in the testimony or because the judge on the same

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facts would have arrived at a different conclusion.
Rather, the role of the trial judge is to determine
that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny
justice.

An appellate court's standard of review when

presented with a weight of the evidence claim is

distinct from the standard of review applied by the

trial court. Appellate review of a weight claim is a

review of the exercise of discretion, not of the

underlying question of whether the verdict is against

the weight of the evidence.
Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations
and quotation marks omitted). “In order for a defendant to prevail on a
challenge to the weight of the evidence, ‘the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the court."'
Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013).

Here, appellant contends that the trial court “made clear . . . that it did
not believe the victim's testimony, as it was inconsistent with previous
statements, and simply unbelievable.” (Appellant's brief at 25.) Appellant's
contention fails to accurately reflect the record. The trial court noted “a
number of inconsistencies, including how the victim got from the South Side
to West Liberty.” (Notes of testimony, 5/13/15 at 129.) The trial court,
however, found that a “review of the evidence as a whole clearly

demonstrates [appellant's] perpetration of the crimes.” (Trial court opinion,

4/12/16 at 10.)

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In this issue, appellant invites us to assess the victim's credibility and
reweigh the evidence. We decline the invitation. The trial court, as
fact-finder, had the duty to determine the credibility of the testimony and
evidence presented at trial. See Talbert, 129 A.3d at 546 (citation
omitted). Appellate courts cannot and do not substitute their judgment for
that of the fact-finder. See id.

After carefully reviewing the record, we conclude that the trial court's
verdict was not so contrary to the evidence that it shocks the conscience of
this court. Rather, our review of the record supports our conclusion that the
trial court properly exercised its discretion in denying appellant's weight of
the evidence claim.

In his final complaint, appellant challenges the discretionary aspects of
his sentence.

[T]he proper standard of review when considering
whether to affirm the sentencing court's
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not 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. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.

The rationale behind such broad discretion and the
concomitantly deferential standard of appellate

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review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the

individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super.

(citation omitted; brackets in original).

Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra,
(Pa.Super. 2000)].

Moury, 992 A.2d at 170 (citation omitted; brackets in original).

[W]e 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.
[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).

[752 A.2d 910, 912
An appellant challenging the
discretionary aspects of his sentence must invoke
this Court's jurisdiction by satisfying a four-part test:

2010)

Here, the record reflects that appellant filed a timely notice of appeal

and included a Pa.R.A.P. 2119(f) statement in his brief.

appellant requests that we review two sentencing challenges.

In this appeal,

FirSt,

appellant contends that the trial court abused its discretion by sentencing

him to the statutory maximum based solely on the impact of the crime on

the victim. (Appellant's brief at 31.) Second, appellant contends that the

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trial court abused its discretion when it imposed sentence without
considering all of the statutorily required sentencing factors. (Id. at 35.)
We must now determine whether appellant properly preserved these
challenges.

In his amended post-sentence motion, appellant raised two sentencing
challenges. In his first challenge, appellant claimed that the trial court
abused its discretion when it imposed sentence without articulating the
aggravating circumstances that would warrant a departure from the
standard range of the guidelines. ([Appellant's] Amended Post-Sentence
Motion Pursuant to Pa.R.Crim.P. 720, 11/2/15 at 3, 11 10(c).)3 In his second
challenge, appellant claimed that the trial court abused its discretion
because the nature of the offense and the impact of the crimes on the victim
alone are insufficient reasons to justify the sentence. (Id. at 11 10(d).)

The Commonwealth argues that appellant failed to properly preserve
his current challenge that the trial court abused its discretion when it
imposed sentence without considering the requisite statutory factors set
forth in 42 Pa.C.S.A. § 9721(b) for failure to raise the issue in post-sentence

motions. We agree. Accordingly, we must now determine whether appellant

 

3 The record reflects that the trial court entered an order permitting
appellant to file amended post-sentence motions 45 days following his
receipt of the complete trial transcript. (Order of court, 8/13/15;
Docket #14.)

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raises a substantial question with respect to his claim that the trial court
abused its discretion when it imposed sentence solely on victim impact.

We determine whether an appellant raises a substantial question on a
case-by-case basis. Commonwealth v. Swope, 123 A.3d 333, 338
(Pa.Super. 2015) (citation omitted). “A substantial question exists only
when an appellant advances a colorable argument that the sentencing
judge's actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Id. (citation omitted).

In determining whether a substantial question exists,
this Court does not examine the merits of whether
the sentence is actually excessive. Rather, we look
to whether the appellant has forwarded a plausible
argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question
determination does not require the court to decide
the merits of whether the sentence is clearly
unreasonable.
Id. at 340 (citation omitted).

Based on the circumstances of a particular case and the extent to
which an appellant's Rule 2119(f) statement suggests that the trial court
deviated from sentencing norms, a claim of excessiveness may constitute a
substantial question. See Commonwealth v. Coulverson, 34 A.3d 135,
143 (Pa.Super. 2011), citing Commonwealth v. Perry, 883 A.2d 599, 602

(Pa.Super. 2005) (concluding that an appellant's excessiveness averments

raised a substantial question where the trial court had couched its reasons

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for imposing the sentence in terms of the seriousness of the offense and the
impact on the victim without considering the appellant's expressions of
remorse, desire to make restitution, and lack of a prior criminal record). As
such, we will consider the merits of appellant's sentencing challenge.

Here, the record belies appellant's contention that the trial court
imposed sentence solely based upon victim impact. The record reflects that
at the beginning of the sentencing hearing, the trial court stated that it had
ordered, read, and considered appellant's presentence investigation report
(“PSI"). The benefit of a PSI indicates that the trial court was aware of
appellant's character and circumstances and weighed those considerations
when imposing the sentence. See Commonwealth v. Moury, 992 A.2d
162, 171 (Pa.Super. 2010) (“Where the sentencing court had the benefit of
a [PSI], we can assume the sentencing court was aware of relevant
information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” (internal quotation
omitted)). Additionally, prior to imposition of sentence, defense counsel
summarized relevant information about the appellant, including his age;
prior record score of zero; familial relationships; educational and
employment history; and the fact that if he was paroled, he would be
subject to deportation. (Notes of testimony, 7/28/15 at 3-4.)

The record further reflects that when the trial court asked appellant if

he wanted to make a statement prior to imposition of sentence, appellant

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voiced his displeasure with defense counsel and expressed his “concerns
about how [his] case was handled." (Id. at 4-5.) Appellant expressed no
remorse. Finally, we note that because the trial court presided over this
case and also acted as trier-of-fact, it was in the best position to not only
observe appellant's demeanor at trial, but to also observe the impact his
crimes had on the victim, which the trial court described as “senseless” and
“vicious" crimes. (Id. at 6). We find no abuse of discretion.
Judgment of sentence affirmed.

Judgment Entered.

 

Joseph D. Seletyn, Es .
Prothonotary

Date: 11/8/2016

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