J-A05041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MAKKAH DILLARD,
Appellant No. 981 EDA 2015
Appeal from the Judgment of Sentence July 2, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005276-2012; CP-51-CR-0006607-
2012
BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 15, 2016
This is an appeal from the judgment of sentence imposed after a jury
convicted Appellant of multiple sexual offenses and related charges. We
affirm.
The facts and procedural history may be summarized as follows: In
1998, four-year-old A.F. lived with her mother and four of her siblings. The
family moved about often, and was in and out of homeless shelters. A.F.
also lived with an aunt for a period of time, and for some unknown reason,
A.F. was treated differently than the other children. A.F. was put in an
unfurnished room and her siblings would bring food to her. Appellant, her
older half-brother, who did not live at the same address, came into A.F.’s
room one night and told her to take off her clothes. When she did not do so,
he hit her with an open hand. Appellant then removed A.F.’s clothes and put
*Former Justice specially assigned to the Superior Court.
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his penis in her vagina. Over the course of approximately one year,
Appellant repeatedly sexually assaulted A.F., sometimes digitally penetrating
her, and at other time forcing her to perform oral sex on him.
At trial, A.F., then age nineteen, testified that the abuse began in 1998
and continued for approximately a year. In other documents admitted at
trial, however, A.F. was recorded as stating that the abuse continued until
she was seven or eight years of age. A.F. also testified that she did not tell
anyone because Appellant told her, “Don’t tell nobody. Nobody would believe
[you].” N.T., 7/24/13, at 28. According to the victim, the abuse ended
when “[Appellant] just disappeared. He just stopped coming around.” Id.
At trial, it was stipulated that Appellant was incarcerated from April of 1999
until April of 2006. N.T., 7/26/13, at 8.
A.F.’s mother died when A.F. was nine years old, and she was left to
live with family members. When she was thirteen years old, A.F. entered
foster care. At the age of seventeen, A.F. went to live with a new foster
mother, D.M, with whom she developed a good relationship. In December,
2011, A.F. decided to write D.M. a letter about her childhood, including an
admission of how she had been sexually abused by “my one older brother.”
N.T., 7/24/13, at 107. D.M. showed the letter to A.F.’s caseworker, and
then A.F. gave a statement to police, in which she identified Appellant as the
perpetrator of the abuse.
In 2006, Appellant was released and married M.J., a woman who
already had a son, J.J. The couple also had a son born to the marriage. In
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2009, Appellant was watching the boys while his wife was at work. At that
time, J.J. was approximately four years of age. While watching cartoons in a
bedroom, Appellant told J.J. to “rub his private part,” N.T., 7/25/13, at 23,
and J.J. complied. J.J. told his mother when she got home, and M.J.
confronted Appellant about the allegation. According to M.J., although
Appellant initially neither admitted nor denied the act, he later admitted to
it, explaining that it was “a lesson for [J.J.] saying this is not what you’re
supposed to do. By making [J.J. rub Appellant’s penis], that was a lesson
for [J.J.] not to do it.” Id. at 64.
In 2010, Appellant was once again incarcerated. In 2012, while
Appellant remained incarcerated, a police detective investigating A.F.’s case
contacted M.J. after discovering that she was married to Appellant. After
learning that Appellant had abused another child, M.J. decided to tell the
detective about the incident involving J.J. and Appellant. Subsequently,
Appellant was arrested on numerous offenses as a result of the assaults of
both A.F. and J.J. A jury convicted Appellant on all charges with regard to
each victim. On July 2, 2014, the trial court imposed an aggregate sentence
of ten to twenty years of imprisonment. This timely appeal follows.
Appellant was not directed to comply with Pa.R.A.P. 1925(b), and the trial
court, having retired from the bench, did not file a Rule 1925(a) opinion.
Appellant raises the following issues on appeal:
A. WAS IT ERROR TO DENY APPELLANT’S MOTION TO SEVER
CASES [INVOLVING A.F. AND J.J.]?
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B. WAS THE EVIDENCE INSUFFICIENT AS A MATTER OF LAW TO
ESTABLISH APPELLANT’S GUILT BEYOND A REASONABLE
DOUBT ON THE CHARGE OF RAPE AND RELATED OFFENSES?
C. WHETHER A NEW TRIAL SHOULD BE AWARDED IN THE
INTERESTS OF JUSTICE BECAUSE THE JURY VERDICT WAS
AGAINST THE WEIGHT OF THE EVIDENCE?
Appellant’s Brief at 8. We will address these issues in the order presented.
Appellant first asserts that the trial court erred in denying his motion
to sever the two cases. He essentially claims that the trial court erred in
failing to sever the two cases because he was prejudiced by the introduction
of “prior bad acts.” See Appellant’s Brief at 31-43. Appellant also claims
that the Commonwealth never filed a motion to consolidate the cases, failed
to provide notice in accordance with Pa.R.Crim.P. 582(a), and otherwise
violated the pertinent rules of criminal procedure.
Our review of the record supports that Commonwealth’s assertion that
Appellant waived this claim by failing to raise these theories as a basis to
sever the cases before trial. See Commonwealth’s Brief at 6-7.1 Prior to
trial, the court disposed of several motions filed by the parties. The trial
court held a hearing on the motions on June 7, 2013. The issue regarding
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1
The fact that Appellant raised a severance issue in his post-sentence
motion does not alter our waiver finding. See Commonwealth v.
Melendez-Rodriguez, 856 A.2d 1278, 1288-89 (Pa.Super. 2004) (en banc)
(explaining that a defendant may not raise a claim in a post-sentence
motion that was not properly preserved at the appropriate stage of the trial
proceedings).
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severing the cases arose when, while discussing discovery issues regarding
the victims’ mental health records, the Commonwealth informed the trial
court that it had received full records concerning J.J., but had yet to receive
the relevant records concerning A.F. See N.T., 6/7/13, at 24-28. The
following exchange then occurred:
THE COURT: Well, what do we do?
[DEFENSE COUNSEL]: Well, I suggest that we go forward on
[A.F.’s] matter as planned and we just give [J.J’s] matter
another trial date.
[THE PROSECUTOR]: Your Honor, I’m not willing to sever
these cases at this time. These cases have always been
together. It is not appropriate to sever these cases.
N.T., 6/7/13, at 28. The court and the parties then discussed the delay in
receiving the full records vis-à-vis Appellant’s right to a fair trial. Defense
counsel informed the court that he could present a defense to A.F.’s case
without reviewing the records at issue. The prosecutor then opined that
severance was not necessary:
[THE PROSECUTOR]: Then, Judge, if that is the case and
if [defense counsel] does not need [A.F.’s] records and he can
go forward to trial, and I just passed [J.J.’s] records, then why
can’t we proceed on both?
Id. at 31.
After discussing, how much time should be afforded to await receipt of
A.F.’s records, the trial court ultimately concluded:
THE COURT: Well, if we don’t get [A.F.’s records] in, then
I’ll order the severance and let the Superior Court decide what’s
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appropriate. We have a full record as to what we have done.
And at that point we’ll either sever it, dismiss it, or do whatever.
Id. at 35. After the parties began to discuss the difficulties in scheduling the
next hearing, defense counsel asked, “Based on the scheduling, would you
reconsider my request to sever in this matter?” Id. at 36. The trial court
answered negatively, and then informed his staff that “defense counsel’s
motion to sever [] is denied at this time.” Id. at 37.
As indicated supra, Appellant did not raise the issues he now asserts in
his appellate brief when discussing the issue of severance prior to trial.
Thus, his first issue involves claims that are inappropriately being raised for
the first time on appeal, and are, therefore, waived. See generally,
Pa.R.A.P. 302(a).
Even if not waived, we would also agree with the Commonwealth’s
assertion that Appellant’s claim warrants no relief. As recited above, despite
any procedural rule violation, Appellant had actual notice that the criminal
informations would be tried together. Moreover, there is sufficient
commonality between the two incidents and the evidence supporting the
crimes against each victim could be easily separated by the jury. Finally,
although a lengthy period of time occurred between the instances, this factor
must be placed in the context of Appellant’s term of incarceration during
that time. See, e.g., Commonwealth v. Tyson, 119 A.3d 353, 361
(Pa.Super. 2015) (en banc) (explaining that “Appellee’s time spent in prison
must be excluded [from] the calculation of how much time has elapsed since
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the prior crime”); Commonwealth v. Smith, 47 A.3d 862, 866-69
(Pa.Super. 2012).
Appellant next claims that the evidence was insufficient to support his
multiple convictions for offenses perpetrated upon A.F.2 Rather than
discussing a specific element of any crime, Appellant asserts that A.F.’s
testimony “was so unreliable, uncertain and contradictory to identify [him]
as A.F.’s alleged rapist that the jury’s verdict could only have been arrived at
through speculation and conjecture.” Appellant’s Brief at 45-46 (citing
Commonwealth v. Kankaria, 625 A.2d 1167 (Pa. 1993). We disagree.
Our standard of review is well settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of witnesses
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2
Appellant does not challenge his convictions relating to J.J.
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and the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Jones, 886 A.2d 689, 704 (Pa.Super. 2005) (citations
omitted).
Regarding prosecutions for sex offenses, Section 3106 of the Crimes
Code provides that “[t]he testimony of the complainant need not be
corroborated in prosecutions under this chapter.” 18 Pa.C.S.A. § 3106. Our
review of A.F.’s testimony pursuant to the above standard of review refutes
Appellant’s claim that “the record is riddled with critical inconsistencies
regarding identity.” Appellant’s Brief at 48. Although evidence was
introduced at trial involving inconsistencies given by A.F. during the criminal
investigation as to the time, place, and frequency of the offenses, A.F.
clearly identified Appellant as the perpetrator. See N.T., 7/24/13, 23-33.
Moreover, our review of the record confirms that any inconsistencies with
regard to these facts were properly resolved by the fact finder. See, e.g.,
Commonwealth v. Baskerville, 681 A.2d 195, 199 (Pa.Super. 1996)
(explaining that a mere conflict in the testimony of the witnesses does not
render evidence insufficient because it is within the province of the fact
finder to determine the weight to be given to the testimony and whether to
believe all, part, or none of the evidence adduced); see also Jones, supra.
Thus, Appellant’s sufficiency challenge is meritless.
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In his final claim, Appellant asserts that his convictions were against
the weight of the evidence. Our review of the record reveals that Appellant
failed to preserve his claim in the trial court, and therefore, it is waived on
appeal. See generally, Pa.R.Crim.P. 607; Commonwealth v. Griffin, 65
A.3d 932 (Pa.Super. 2013). Thus, we will not consider it further.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2016
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Com. v. Dillard, M.
Combined Opinion