J-A20039-20
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`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
`
`IN THE SUPERIOR COURT OF
`PENNSYLVANIA
`
`No. 1613 WDA 2019
`
`:::::::::
`
`COMMONWEALTH OF PENNSYLVANIA
`
`v.
`
`CARLTON F. WALTER
`
`Appellant
`
`Appeal from the Judgment of Sentence Entered September 18, 2019
`in the Court of Common Pleas of Cambria County
`Criminal Division at No(s): CP-11-CR-0001656-2018
`
`BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
`
`MEMORANDUM BY MUSMANNO, J.:
`
`FILED OCTOBER 26, 2020
`
`Carlton F. Walter (“Walter”) appeals from the judgment of sentence
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`imposed following his convictions of two counts of rape, and one count each
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`of sexual assault, simple assault, and kidnapping.1 We affirm.
`
`In its Opinion, the trial court summarized the relevant factual and
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`procedural history underlying this appeal as follows:
`
`On September 27, 2016, Officer James Ardary [(“Officer
`Ardary”),] [with the] Stoneycreek Township Police Department,
`received a call for service to investigate a sexual assault that
`had taken place in the 200 block of Ohio [Street], Johnstown,
`Cambria County, [Pennsylvania]. When [Officer Ardary] arrived
`at [the victim’s] residence, he found her crying on the kitchen
`table. [The victim] told Officer Ardary that a black male,
`approximately 5’9” tall, skinny to medium built, wearing glasses,
`and clean shaven, put what she believed to be a gun on her
`back[,] took her into an alley[,] and had non-consensual sex
`
`____________________________________________
`
`1 18 Pa.C.S.A. §§ 3121(a)(1), (a)(2); 3124.1; 2701(a)(1); 2901(a)(2).
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`with her. [The v]ictim was transported to the hospital[,] where
`a sexual assault forensic evidence kit was collected. A serology
`analysis of bodily fluids recovered from [the v]ictim’s vaginal
`area and underwear identified a mixture of three DNA profiles.
`
`On September 7, 2018, Officer Thomas Owens [(“Officer
`Owens”),] [with the] Stoneycreek Township Police Department,
`received a report from Forensic DNA Scientist Rachael Rodriguez
`[(“Rodriguez”),] which indicated that [Walter] was “indicated” by
`[the Federal Bureau of Investigation’s Combined DNA Index
`System (“CODIS”)] as a potential source of one of the DNA
`profiles [that was] collected from the [v]ictim’s vaginal area and
`underwear. After receiving this report, Officer [Owens] began
`his investigation[,] which revealed that[,] despite not being from
`the Johnstown area, [Walter] had been in the 300 block of Ohio
`Street on or around May 2018. After obtaining a photograph of
`[Walter], Officer Owens noticed that the photograph matched
`the description given by the [v]ictim. Based on this information,
`Officer Owens filed a Complaint, obtained a warrant, and
`[Walter] was arrested. …
`
`[Walter’s] trial began on June 17, 2019, and lasted for two
`days. On June 18, 2019, the jury found [Walter] guilty of [the
`above-mentioned crimes.] On September 18, 2019, [the trial
`court] sentence[d] [Walter] to incarceration in a state prison for
`an aggregate period of nine years and two months to eighteen
`years and four months. On September 25, 2019, [Walter] filed
`his post-sentence [M]otion[,] in which he moved [for the trial
`court] to modify the sentence (unduly harsh), and to grant his
`[M]otion for acquittal based on: sufficiency and weight of the
`evidence, and prosecutorial misconduct challenges. After [a]
`hearing, [the trial court] denied [Walter’s] post-sentence
`[M]otion on October 10, 2019.
`
`On October 22, 2019, [Walter] filed this timely appeal….
`On November 12, 2019, [Walter] filed his [court-ordered
`Pa.R.A.P. 1925(b)] Concise Statement of
`the [m]atters
`[c]omplained of on [a]ppeal.
`
`Trial Court Opinion, 1/10/20, at 1-3.
`
`On appeal, Walter raises the following questions for our review:
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`J-A20039-20
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`I. Whether the trial [c]ourt was in error in denying [Walter]’s
`Post[-]Sentence Motion for Sentence Modification when it found
`that it was not unduly harsh to sentence [Walter] to consecutive
`sentences?
`
`II. Whether the trial [c]ourt was in error in denying [Walter]’s
`Post Sentence Motion [f]or Judgment of Acquittal when it found
`the Commonwealth had presented sufficient evidence as to the
`crimes of [r]ape by forcible compulsion, [r]ape by threat of
`forcible compulsion, [k]idnap to facilitate a felony, [s]exual
`assault, and [s]imple assault[?]
`
`III. Whether the trial [c]ourt was in error in denying [Walter]’s
`Post Sentence Motion [t]hat a new trial should be granted when
`it found that the verdict was not against the weight of the
`evidence when the [p]rosecution relied on a non-credible in[-
`]court identification of [Walter] as the assailant to prop up a
`weak scientific identification through DNA analysis?
`
`IV. Whether the trial [c]ourt was in error in denying [Walter]’s
`Motion [t]hat a new trial should be granted when[,] in closing
`argument[,] [the] prosecutor misrepresented critical scientific
`testimony and also suggested to the jury that the DNA evidence
`in the state [CODIS] system could be used to exonerate
`[Walter]?
`
`Brief for Appellant at 8.
`
`In his first claim, Walter argues that the trial court abused its
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`discretion by sentencing him to consecutive sentences.
`
`See Brief for
`
`Appellant at 23-24. Walter claims that the sentence is excessive; the trial
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`court did not state sufficient reasons for imposing the sentence; and the trial
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`court did not give adequate consideration to mitigating factors. Id.
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`This claim challenges the discretionary aspects of Walter’s sentence.
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`“An appeal raising the discretionary aspects of sentencing is not guaranteed
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`as of right; rather, it is considered a petition for permission to appeal.”
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`Commonwealth v. Mulkin, 228 A.3d 913, 916 (Pa. Super. 2020). Prior to
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`reaching the merits of a discretionary sentencing issue,
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`[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).
`
`Commonwealth v. Grays, 167 A.3d 793, 815-16 (citation omitted).
`
`When the appellant has not included a Rule 2119(f)
`statement and the Commonwealth has not objected, this Court
`may ignore the omission and determine if there is a substantial
`question that the sentence imposed was not appropriate, or
`enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e.,
`deny allowance of appeal. However, this option is lost if the
`Commonwealth objects
`to a 2119(f) omission. In such
`circumstances, this Court is precluded from reviewing the merits
`of the claim and the appeal must be denied.
`
`Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004); see also
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`Commonwealth v. Dawson, 132 A.3d 996, 1005 (Pa. Super. 2015)
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`(denying an appellant’s petition for permission to appeal the discretionary
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`aspects of her sentence where the appellant failed to include a Rule 2119(f)
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`statement in her brief and the Commonwealth objected).
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`Here, Walter filed a timely Notice of Appeal and raised his sentencing
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`claim in a post-sentence Motion. However, Walter did not include a Rule
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`2119(f) statement in his brief, and the Commonwealth has objected to this
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`deficiency. Brief for Commonwealth at 9. Accordingly, we are precluded
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`from considering Walter’s discretionary sentencing claim on appeal. See
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`Kiesel, supra; Dawson, supra.
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`In his second claim, Walter challenges the sufficiency of the evidence
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`supporting his convictions for rape by forcible compulsion, rape by threat of
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`forcible compulsion, kidnapping, sexual assault, and simple assault. Brief for
`
`Appellant at 24-28. According to Walter, the testimony of Ashlee Mangan
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`(“Mangan”), the Pennsylvania State Police Crime Lab manager who reviewed
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`the serology report, was unreliable.
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`Id. at 25. Walter points out that
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`Mangan did not prepare the serology report, and the serology report was not
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`offered into evidence.2
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`Id. Walter argues that the remaining evidence
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`produced at trial was insufficient to identify him as the perpetrator of the
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`above-mentioned crimes. Id. at 28.
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`When considering a challenge to the sufficiency of the evidence, we
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`ascertain
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`____________________________________________
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`2 Walter also challenges the admission into evidence of Mangan’s testimony,
`and claims a violation of his Sixth Amendment right under the United States
`Constitution to confront a witness against him. See Brief for Appellant at
`25-28. Walter argues that because the serology report was not admitted
`into evidence, and because Mangan did not prepare the report, Mangan
`should not have been permitted to testify regarding its contents. Id. Walter
`claims that his Sixth Amendment right was violated because the
`Commonwealth did not produce for cross-examination the lab technician
`Id. To the extent that Walter raises
`who prepared the serology report.
`these claims, they are waived, because they were not raised in his Concise
`Statement. See Commonwealth v. Lemon, 804 A.2d 34, 36 (Pa. Super.
`2002) (stating that “issues not included in a Pa.R.A.P. 1925(b) statement
`are deemed waived on appeal.”).
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`J-A20039-20
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`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 [that of]
`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
`and the weight of the evidence produced, is free to believe all,
`part or none of the evidence.
`
`Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
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`omitted).
`
`As the trial court aptly explained,
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`[T]he [v]ictim was present at trial and testified about the
`attack perpetrated upon her; and, she identified [Walter] at trial
`as being her attacker. … [H]er testimony showed that she had
`intimate knowledge of the attack and reconstructed the criminal
`occurrence, in great detail. And, she identified [Walter] as her
`attacker from her observations at the time of the crime. Finally,
`[Walter] was physically present in the courtroom during trial; so,
`the [v]ictim had the opportunity to see him and to compare his
`appearance to that of the attacker.
`
`Trial Court Opinion, 1/10/20, at 8.
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`Accordingly,
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`there was sufficient
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`evidence to identify Walter as the perpetrator, and to convict him of the
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`above-mentioned crimes. See Melvin, supra.
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`In his third claim, Walter alleges that the jury’s verdict was against the
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`weight of the evidence.3 See Brief for Appellant at 28-31. Walter claims
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`that the victim’s identification of him as the perpetrator was unreliable,
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`because she was unable to give a detailed description of the perpetrator
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`prior to trial, and her in-court identification was made 33 months after the
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`crimes were committed. Id. at 29-30.
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`The law pertaining to weight of the evidence claims is well-
`settled. The weight of the evidence is a matter exclusively for
`the finder of fact, who is free to believe all, part, or none of the
`evidence and to determine the credibility of the witnesses. A
`new trial is not warranted because of a mere conflict in the
`testimony and must have a stronger foundation than a
`reassessment of the credibility of witnesses. 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.
`On appeal, our purview is extremely limited and is confined to
`whether the trial court abused its discretion in finding that the
`jury verdict did not shock its conscience. Thus, appellate review
`of a weight claim consists of a review of the trial court’s exercise
`of discretion, not a review of the underlying question of whether
`the verdict is against the weight of the evidence.
`
`Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
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`(quotation marks and citations omitted).
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`Here, the jury was free to assess the credibility of the victim in
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`rendering the verdict, and we will not disturb that credibility determination
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`on appeal. See Gonzalez, supra. Based on the record, the trial court’s
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`____________________________________________
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`3 Walter does not state which convictions he is challenging based on the
`weight of the evidence.
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`decision is supported by the evidence, and does not shock one’s sense of
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`justice. See Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super.
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`2009) (stating that “[w]hen the challenge to the weight of the evidence is
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`predicated on the credibility of trial testimony, our review of the trial court’s
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`decision is extremely limited. Generally, unless the evidence is so unreliable
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`and/or contradictory as to make any verdict based thereon pure conjecture,
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`these types of claims are not cognizable on appellate review.”). Thus, the
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`trial court did not abuse its discretion in denying Walter’s weight of the
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`evidence claim.
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`In his fourth claim, Walter alleges that the prosecutor made false
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`statements in his closing argument. Brief for Appellant at 31-34. Walter
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`directs us to the prosecutor’s comments that Walter’s DNA was found “inside
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`the victim,” and that DNA profiles in the CODIS system are used not just “to
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`convict people,” but also “to exonerate people.”
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`Id. Walter claims that
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`these statements were either not based on evidence produced at trial, or
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`factually inaccurate. Id.
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`Here, Walter did not object to the prosecutor’s comments at trial,
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`either during the prosecutor’s closing argument or immediately thereafter.4
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`See N.T., 6/18/19, 139-150. “[T]he lack of a contemporaneous objection
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`constitutes a waiver of any challenge to the prosecutor’s closing remarks.”
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`____________________________________________
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`4 Walter raised this claim for the first time in his post-sentence Motion.
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`Commonwealth v. Rivera, 983 A.2d 1211, 1229 (Pa. 2009). Accordingly,
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`this claim is waived.
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`Judgment of sentence affirmed.
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`Judgment Entered.
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`Joseph D. Seletyn, Esq.
`Prothonotary
`
`Date: 10/26/2020
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