Commonwealth v. Gonzalez

109 A.3d 711

Superior Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Appellee

v.

David Joseph GONZALEZ, Appellant.

Submitted Nov. 24, 2014.

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Filed Jan. 21, 2015.

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Reargument Denied March 24, 2015.

Synopsis

Background: Defendant was convicted in the Court of Common Pleas, Franklin County, Criminal Division, No. CP–28–CR–0001103–2011, Van Horn, J., of rape, aggravated indecent assault, and sexual assault. Defendant appealed.

Opinion

OPINION BY JENKINS, J.:

David Gonzalez met K.M., a cerebral palsy patient,1 on a Christian dating website. On March 8, 2011, after dating for several months, they had sexual intercourse. K.M. claimed that Gonzalez raped her.... The jury believed K.M. and found Gonzalez guilty of rape,2 aggravated indecent assault3 and sexual assault.4 The trial court sentenced Gonzalez to an aggregate sentence of 4–15 years’ imprisonment. Gonzalez filed a motion for post-trial relief and timely post-sentence motions, all of which the trial court denied.... [W]e affirm.

The trial court recounts the evidence adduced at trial as follows:5

The above convictions arose out of an incident that occurred on March 8, 2011. The victim was twenty-five years old at the time and suffers from cerebral palsy. Her cerebral palsy causes her to have ‘stiffness and tightening of the muscles’ in her legs and she needs crutches to walk. She testified that if she were lying on the floor, she could pull herself up if she had something to pull herself up on. When asked whether she could bend her knees normally, she testified ‘[n]ot on my own. If I had to bend my knees, I would either need to use my hands or have someone to help me.’ When asked if she could easily spread her legs apart, she responded, ‘[n]o,’ and said ‘[t]hey have to be pushed apart.’ The victim also testified that ‘I can’t *717 spread my legs far enough to get [a tampon] in,’ and has to use pads during her period.6

The victim and [Gonzalez] met each other on a Christian dating website in August 2010. They met in person in September of that year, but [Gonzalez] soon left the area to pursue a position as a youth minister in New York. They reestablished a relationship when he returned in December 2010, and began seeing each other. On March 7, 2011, [Gonzalez] picked up the victim and took her to the mall. They discussed their religious beliefs, and the victim testified that ‘I had told [Gonzalez] that I was a virgin and didn’t plan on having sex before I was married.’ She further testified that he responded by saying ‘something along the lines ... of praise the Lord.’ She also said that he told her he was not a virgin. That evening, they kissed and hugged. The victim also testified that [Gonzalez] asked her to be his girlfriend, and she agreed7.

On March 8, 2011, [Gonzalez] picked up the victim from her physical therapy appointment around 2:30 p.m. They stopped to get food and went to [Gonzalez]’s apartment to watch a movie. This was the first time the victim had been to [Gonzalez]’s apartment. They sat down on the couch and began watching the movie. The victim testified that she started kissing [Gonzalez] and they both began touching and rubbing one another’s genitals over their clothes. This lasted for about half an hour. Eventually, the victim noticed that [Gonzalez] was erect. Next, the victim testified that [Gonzalez] asked her if she wanted to go to the bedroom, to which she agreed. The victim ‘assumed that we would continue doing what we were doing in the living room in the bedroom ... [b]ecause ... [Gonzalez] knew that I didn’t want to have sex before I was married.’ Before they moved, the victim testified that [Gonzalez] took her phone out of a pouch connected to her jeans and placed it on a TV tray in the living room. The victim then got her crutches, got off the couch, and walked to [Gonzalez]’s bedroom. Once in the bedroom, she noticed a bare mattress against the wall with no furniture surrounding it. [Gonzalez] then either helped her sit on the mattress or she sat down herself. The victim testified that [Gonzalez] ‘took my crutches [and] put them out of reach. I didn’t see exactly where he put them. But I know it was out of reach.’ The victim lay down by herself. When asked ‘is there any way you could have gotten up from that point?’ She responded ‘no.’8

The victim testified that [Gonzalez] then removed her jeans and underwear, and lay on top of her. The victim did not say anything while [Gonzalez] took off her pants and underwear, but when he lay on top of her, she said ‘no, don’t.’ When he lay on top of her, her legs were flat, straight, and unopened because ‘I can’t open my legs by myself.’9

Next, the victim testified that [Gonzalez] ... forced her legs apart ‘with his hands and put them on his shoulders. And he had his hands cuffed around my ankles.’ She testified that ‘[h]e put my ankles around his shoulders.’ ‘He bent [her knees] because they were up on his shoulders.’ She then felt his penis inside her, and *718 she ‘kept saying ow.’ [Gonzalez] told the victim she ‘had to be quiet.’ The victim was asked if she tried at all to kick off [Gonzalez] during the penetration. She responded, ‘I couldn’t move my legs. My legs don’t move like that.’ When asked if she tried to push him off, she said, ‘[n]o ... because he’s too big. And I was scared.’10

At some point, [Gonzalez] suddenly stopped, and the encounter ended. There was blood on the mattress and blood on the victim’s underwear after she put them back on. The victim testified that after she got dressed, [Gonzalez] said to her, ‘I’m sorry. I have a weakness.’11

During cross-examination, defense counsel inquired into the victim’s mobility. The victim attended Lancaster Bible College and when asked if she could walk around the campus independently, she responded, ‘with crutches, yes.’ The victim later testified on redirect that she has ‘people to help me carry’ books and things, and she needs assistance to open doors.

...

Furthermore, when asked if she had any bruises from the incident the victim responded: ‘No, I don’t think I did.’ The victim also testified that [Gonzalez] did not hit, kick, grab, push, gag, or punch her or use his fists or a weapon. Defense counsel asked why the victim and [Gonzalez] moved to the bedroom when they were already making out in the living room. The victim responded, ‘there was no purpose. I didn’t think I was in any danger with David. I saw him—I thought he was an honest person.’ Defense counsel asked, ‘So for the record, it never crossed your mind that at that point, you were moving to the bedroom for sex. It never crossed your mind?’ The victim responded, ‘No, ma’am.’12

After concluding sexual intercourse, K.M. and Gonzalez returned to the living room to continue watching the movie. Gonzalez indicated that his cousin was coming over to visit, and K.M. asked him to take her home. Gonzalez assisted her, and ... Gonzalez went to get his car. Although the police station was across the street, K.M. did not make any telephone calls or attempt to go to the police station to report the incident. Gonzalez helped K.M. into the car, and they stopped at a gas station en route to her house. She did not use her cell phone at the gas station or report the incident to anyone. Upon arriving at her home, Gonzalez helped her get out of the car.15

After K.M. entered her house, her sister asked her whether something was wrong.... K.M. initially denied that anything was wrong but then stated: “I think he raped me.”16

...

[1] [2] [3] Gonzalez’ first argument on appeal is a challenge to the sufficiency of the evidence. We first consider the evidence of rape. The Crimes Code defines rape in pertinent part as follows: “A person commits a felony of the first degree when the person engages in sexual intercourse with a complainant ... by forcible compulsion.” 18 Pa.C.S. § 3121(a)(1). The Crimes Code defines “forcible compulsion” in relevant part as “compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied.” 18 Pa.C.S. § 3101. This Court has observed “forcible compulsion” as the exercise of sheer physical force or violence and has also come to mean an act of using superior force, physical, moral, psychological or intellectual to compel a person to do a thing against that person’s volition and/or will. *721 Commonwealth v. Ables, 404 Pa.Super. 169, 590 A.2d 334, 337 (1991). A determination of forcible compulsion rests on the totality of the circumstances, including but not limited to this list of factors:

the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress.

Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217, 1226 (1986) (emphasis added). It is not mandatory to show that the victim resisted the assault in order to prove forcible compulsion. Id. The victim’s uncorroborated testimony is sufficient to support a rape conviction. Commonwealth v. Wall, 953 A.2d 581, 584 (Pa.Super.2008).

[4] The distinction between forcible compulsion and lack of consent is important to remember. With regard to consent, the Crimes Code states: “The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.” 18 Pa.C.S. § 311(a). “Forcible compulsion” means “something more” than mere lack of consent. Commonwealth v. Smolko, 446 Pa.Super. 156, 666 A.2d 672, 676 (1995). “Where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the ‘forcible compulsion’ requirement ... is not met.” Id.

[5] The trial court comprehensively analyzed the sufficiency of the evidence of rape ... denying Gonzalez’s motion for post-trial relief. The court aptly described this case as “unique”, because “it is not a case of moral, psychological, or intellectual forcible compulsion that has often been found in circumstances involving a young, vulnerable victim and a perpetrator who is in a position of authority and trust.” Opinion Denying Post–Trial Relief (“Post–Trial Opinion”), 11/5/13, p. 13. The court was careful to note that this case involved “two competent adults who formed a dating relationship” who had engaged in “some consensual intimacy (i.e. kissing, hugging)”, and the incident “occurred during a planned date.” Id., p. 14. Moreover, “the victim initiated kissing and touching with [Gonzalez] on the couch in his living room, willingly walked herself to the bedroom upon [Gonzalez’s] request, and did not protest when he removed her pants and underwear.” Id. Thus, the court found nothing about the respective ages or mental conditions of Gonzalez and K.M. that demonstrates forcible compulsion. Id. Gonzalez did not occupy a position of “authority or custodial control” over K.M., and she was not under duress. Id.

Despite these factors, the trial court reasoned that other details showed Gonzalez’s “domination” over K.M. The court observed that K.M.’s cerebral palsy “was a physical condition that caused her to have stiff legs with limited movement and walk with crutches.” Id., p. 16. During the encounter, “she was lying on her back, away from her crutches and her cell phone,” all of which Gonzalez had placed beyond her reach, and she “was away from any objects she could use to help lift herself up ...” Id. Gonzalez “was initially lying on top of her and then forced her legs apart and cuffed her ankles on his shoulders. He also told [K.M.] to be quiet when she repeatedly said ‘ow’ during the penetration.” Id. Although K.M. did not call out for help or try to push Gonzalez away with her arms, “resistance is not *722 necessary to prove forcible compulsion”—and in any event, resistance would have accomplished nothing, since Gonzalez was too big to push off her body, and she was unable to kick due to her cerebral palsy. Id., pp. 16–17.

The trial court also concluded that there was evidence of “physical force.” By itself, K.M.’s statement, “no don’t”, is not sufficient evidence of force, because this statement only indicates lack of consent, and “forcible compulsion is something more than lack of consent.” Id. at 17 (citing Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161, 1165 (1994)). Here, however, there was “something more,” specifically, lack of consent and physical force:

[Gonzalez] forc[ed] the victim’s legs apart, ben[t] her knees, mov[ed] her ankles up to his shoulders and cuff[ed] her ankles while he penetrated her. The victim was unable to open her legs or bend her knees by herself. [Gonzalez] repositioned her legs when he penetrated her with his finger, and then again placed her legs back on his shoulders when he penetrated her with his penis a second time. Again, the victim was unable to move her legs to resist or prevent [Gonzalez’s] actions.

Id., p. 17. Although this force “was not extreme, it was certainly unique to the factual circumstances of the case and sufficient to establish forcible compulsion by [Gonzalez] on this particular victim” beyond a reasonable doubt. Id., pp. 17–18.

[6] We agree with the trial court’s astute analysis by construing the evidence in the light most favorable to the Commonwealth. K.M.’s testimony establishes that she told Gonzalez that she did not want premarital intercourse. Gonzalez pretended to agree with K.M., but one day later, he maneuvered her into a position in which she was powerless to resist his advances. He took her to his apartment, where she had never been before. He placed her cell phone out of reach in a living room tray, and when they adjourned to his bedroom and lay down on his bed, he placed her crutches out of reach. Without her phone or crutches, she could not escape from the bed or contact an outside agency for help. He then disrobed her and lay on top of her. She uttered “no, don’t,” but instead of stopping, he forced her legs apart and cuffed them on his shoulders—movements she was incapable of performing herself due to her cerebral palsy. He then penetrated her with his penis and told her to be quiet when she repeatedly called out “ow”. K.M.’s lack of consent (“no, don’t”), combined with Gonzalez’s use of domination and physical force, provide sufficient evidence of forcible compulsion to justify his conviction for rape.

...

In his final argument on appeal, Gonzalez insists that his sentence is unreasonable and excessive.

[38] [39] This is a challenge to the discretionary aspects of Gonzalez’s sentence. 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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa.Super.2007).

[42] Here, Gonzalez timely filed his notice of appeal ... after the trial court denied his post-sentence motions. Pa.R.Crim.P. 720(A)(2). He preserved the challenge to his sentence in his post-sentence motions and included a Pa.R.A.P. 2119(f) statement in his brief.... The substantial question in Gonzalez’s brief is an “excessive sentence claim[ ] in conjunction with an assertion that the court did not consider mitigating factors.” Commonwealth v. Dodge, 77 A.3d 1263, 1272 (Pa.Super.2013) (en banc ).38

*732 [43] We determine, however, that Gonzalez’s excessiveness claim is devoid of merit. We find persuasive the trial court’s thorough analysis of this question:

[Gonzalez] argues that the Court failed to properly weigh[ ] certain mitigating circumstances, including his law abiding past, his education, his employment history, his community and familial support, and the fact that this was his first conviction. The Court disagrees as this argument is contradicted by the record. First, a pre-sentence investigation report was prepared by the Probation Department, and our Supreme Court has stated that, ‘[w]here pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding [Gonzalez]’s character and weighed those considerations along with mitigating statutory factors.’ Commonwealth v. Devers [519 Pa. 88], 546 A.2d 12, 18 (Pa.1988). Not only did the Court thoroughly review [Gonzalez]’s pre-sentence investigation report, but also considered [Gonzalez]’s twenty-four letters of support, heard and considered the individuals who came forth to support [Gonzalez] at sentencing, and heard what his attorney stated on his behalf. See N.T. 12/18/2013 p. 41. Acknowledging this information, the Court stated, ‘[t]he witnesses that have testified in your support and the letters provided for those who are absent today all attest to your good moral character, your commitment to the community in general, and to your church.’ Id. The Court stated further:

Notwithstanding the uncontested good deeds that are attested to in these documents relative to your community, the issue alone is not whether you are viewed as an upstanding contributing member of society. The focus today must be on what you did do to this victim on March 8th of 2011 and how should you be held accountable for your behavior on that day.

Id. at 41–42. Despite [Gonzalez]’s contentions otherwise, the Court did in fact consider and weigh mitigating factors, yet found them of lesser value when considering the gravity of [Gonzalez]’s crimes against the victim. Additionally, at the time of sentencing, [Gonzalez] still refused to ‘acknowledge wrongdoing or the pain of the victim.’ Id. at 42. Such lack of remorse and accountability weighed heavily in the Court’s sentencing decisions and weighed against the mitigating factors [Gonzalez] claims the Court failed to consider. The Court reasoned that [Gonzalez]’s ‘choice to not express remorse for the victim’s consequences of that day limits the value of the character witnesses letters and testimony provided today such that I can consider them in shaping the sentence. But they cannot be viewed as an excuse for your behavior.’ Id.

Judgment of sentence affirmed.

109 A.3d 711, 2015 PA Super 13