Com. v. Thomas

• Decision Date: 27 July 2006
• Citation: 904 A.2d 964
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Nyankun A. THOMAS, Appellant.
• Court: Pennsylvania Superior Court

904 A.2d 964

COMMONWEALTH of Pennsylvania, Appellee v. Nyankun A. THOMAS, Appellant.

Superior Court of Pennsylvania.

Submitted April 10, 2006.

Filed July 27, 2006.

W. Russell Carmichael, Media, for appellant.

William R. Toal III, Asst. Dist. Atty., Media, for Com., appellee.

BEFORE: FORD ELLIOTT, P.J., STEVENS, and TAMILIA, JJ.

OPINION BY STEVENS, J.:

¶ 1 Following a jury trial which commenced on June 16, 2003, Appellant Nyankun Thomas was found guilty of Rape,¹ Sexual Assault,² Aggravated Indecent Assault,³ Indecent Assault,⁴ False Imprisonment,⁵ Unlawful Restraint,⁶ Simple Assault,⁷ Terroristic Threats,⁸ and seven (7) counts of Criminal Conspiracy.⁹ Appellant appeals nunc pro tunc from the judgment of sentence entered in the Court of Common Pleas of Delaware County on September 23, 2003, at which time Appellant was sentenced to an aggregate term of five (5) years to ten (10) years in a state correctional institution followed by two (2) years probation. We affirm.

¶ 2 The relevant facts and procedural history in the instant matter are as follows: The victim, P.H., testified that on June 26, 2002, at about 10:00 p.m., she was seventeen (17) years of age and attending a pool party at a friend's home. N.T., 6/17/03, at 20, 23. At approximately 10:35, P.H. was pushed into the pool; P.H. was wearing white sweatpants, a white shirt, underwear and a bra at the time. N.T., 6/17/03, at 23. Without changing her clothing, which was still partially wet, P.H. decided to walk home and said goodbye to her friends. N.T., 6/17/03, at 23-25.

¶ 3 When P.H. was halfway to her home, she saw Appellant, Tia, and another, unidentified boy coming toward her.¹⁰ N.T., 6/17/03, at 25. She recognized Appellant and Tia because she had met them three nights before while walking with her cousin. N.T., 6/17/03, at 26. The boys asked P.H. to "sit down and chill on the sidewalk," and P.H. agreed. N.T., 6/17/03, at 26. The group discussed school while two boys sat on one side of P.H., and the third boy sat on her other side. N.T., 6/17/03, at 26. Tia, Appellant or the individual who resembled him, eventually left Appellant and P.H. alone for approximately five minutes.¹¹ N.T., 6/17/03, at 31.

¶ 4 P.H. had a five to ten minute walk ahead of her and an 11:00 p.m. curfew. N.T., 6/17/03, at 28. As she had to get home, she began to stand up, at which time Appellant told her "you're not going home." N.T., 6/17/03, at 31. When P.H. asked Appellant to explain his comment, the latter replied "you're not finished." N.T., 6/17/03, at 31. As P.H. tried to stand up, Appellant grabbed her arm, and P.H. slapped him with her free hand. N.T., 6/17/03, at 32. With his free hand, Appellant, or "the boy who looked like him,'" pulled down his pants and P.H.'s pants, as she continued to scream and slap him. N.T., 6/17/03, at 33. The other boys came out from somewhere in front of P.H. N.T., 6/17/03, at 34. The three pushed her to the ground and the one who had been on top of her placed his penis in her vagina, on her stomach, and ejaculated on her underwear and thighs. N.T., 6/17/03, at 39-42.¹² P.H. pushed and kicked the individual penetrating her, the others released her hands, and she ran to the porch of a nearby house, because the boys had indicated to her they knew where she lived and shouted her address. N.T., 6/17/03, at 40, 43-45.

¶ 5 P.H. proceeded to her home and after she arrived there, she washed her legs off with a hose in the back yard. N.T., 6/17/03, at 45. P.H. went to her front yard and entered her home. N.T., 6/17/03, at 46. P.H. placed her underwear in a plastic bag and laid her clothing in the closet to dry. N.T., 6/17/03, at 47.

¶ 6 When she initially entered the home at about 11:10, P.H. saw her mother sitting in front of the television and about to fall asleep. N.T., 6/17/03, at 47-48. P.H. did not tell her mother what had happened. N.T., 6/17/03, at 47. P.H. proceeded to the basement with her cordless phone to call her cousin, Ileana, at approximately 11:15. N.T., 6/17/03, at 48. P.H. explained to Ileana she was in "deep crap and [she] told her the story, what happened." N.T., 6/17/03, at 48. Though she did not utilize the word rape in her discussion, P.H. explained to Ileana that she saw Thomas, Tia and another young man and described what they did to her. N.T., 6/17/03, at 49. The two spoke on the phone for approximately fifteen minutes. N.T., 6/17/03, at 52. When the phone conversation ended, P.H. took a shower, after which Nadia, Ileana's sister, called P.H. to discuss the incident. N.T., 6/17/03, at 52.

¶ 7 P.H. went to sleep at approximately 1:00 a.m. and woke up at around 8:00 a.m. or 9:00 a.m. N.T., 6/17/03, at 54. Though P.H. thought her grandmother was in the home that morning, she did not speak to her about what had transpired the prior evening. N.T., 6/17/03, at 54. Instead, P.H. took a trolley to her cousins' house, at which time the girls told P.H.'s aunt, Ileana and Nadia's mother, about the attack. N.T., 6/17/03, at 55. P.H. began crying and her aunt called the police. N.T., 6/17/03, at 57. P.H.'s aunt then contacted P.H.'s mother, her sister, at work and told her about the incident. N.T., 6/17/03, at 57-58.

¶ 8 P.H., Nadia, her aunt and her mother went to the Upper Darby Police Station and spoke to Detective Graff about what had happened to P.H. the prior evening. N.T., 6/17/03, at 58. P.H. was taken to Delaware County Memorial Hospital where she underwent a physical examination. N.T., 6/17/03, at 60-65. P.H. cried because she found the vaginal examination uncomfortable and was bothered by a lingering smell on her body. N.T., 6/17/03, at 65.

¶ 9 When P.H. had initially met the three boys, she noticed that Appellant and Tia had what she described as a "Jamaican or African" accent. N.T., 6/17/03, at 70. She was "almost positive" Appellant was the one who inserted his penis into her vagina. N.T., 6/17/03, at 120.

¶ 10 Ileana Evangelopoulos testified she is P.H.'s fourteen-year-old cousin and they are also best friends. N.T., 6/17/03, at 156, 159. Ms. Evangelopoulos recalled speaking with P.H. on June 26, 2002, at which time the latter, her voice shaking, explained the sexual attack upon her. N.T., 6/17/03, at 159-161. Ms. Evangelopoulos asked P.H. if she were injured to which P.H. replied she was frightened, did not know what to do, and was unsure if she should tell her mother what had happened to her, because the boys indicated they knew where she lived and she feared for her family's safety. N.T., 6/17/03, at 161, 169. Ms. Evangelopoulos advised P.H. to tell her mother what had happened, to take a shower, and to call her back when she was finished. N.T., 6/17/03, at 169.

¶ 11 Ms. Evangelopoulos's sister and she spoke to P.H. again later that evening. N.T., 6/17/03, at 170. The three made an agreement that the next day P.H. would come to her cousins' home and tell their mother what had happened; this meeting did occur at around 12:00 or 1:00 the following afternoon. N.T., 6/17/03, at 171. P.H.'s aunt called P.H.'s mother at work and told her what had happened to P.H. N.T., 6/17/03, at 172.

¶ 12 Detective Raymond K. Graff testified that on June 27, 2002, at approximately 1:00 p.m., he received information that a victim of a sexual assault would be coming to the Upper Darby Police Station. N.T., 6/18/03, at 6. Upon meeting with P.H., detective Graff brought her into a conference room with him at which time she relayed the story of the assault to him in a conversation which lasted about twenty minutes. N.T., 6/18/03, at 6-17. Thereafter, Detective Graff took P.H. to Delaware County Hospital where a rape kit was completed. N.T., 6/18/03, at 17. Upon their return to the police station, P.H. placed her narrative in writing while Detective Graff prepared the rape kit to be sent out for analysis. N.T., 6/18/03, at 22. Detective Graff remarked that P.H. began to look pale and sluggish after she completed the written narrative, and P.H. indicated to Detective Graff that she did not feel well and asked to use the ladies' room. N.T., 6/18/03, at 23. The question/answer portion of the interview ended prematurely in light of P.H.'s condition. N.T., 6/18/03, at 23.

¶ 13 Appellant testified that he emigrated from the Republic of Liberia and had been in the United States for four years. N.T., 6/19/03, at 282. Appellant denied raping P.H., holding her down so that Tia or his brother could assault her, or removing any of her clothing. N.T., 6/19/03, at 285. Appellant did state that he saw P.H. on the evening of June 26, 2002, somewhere between 11:00 p.m. and midnight, and Appellant was home by 12:30 a.m. N.T., 6/19/03, at 303-304, 311. Appellant stated when he saw P.H., she was on the opposite side of the street walking toward him by herself, he did not remember what she was wearing, and he did not smell chlorine on her that evening. N.T., 6/19/03, at 311-312. Appellant did not speak to P.H. at all as she passed. N.T., 6/19/03, at 317.

¶ 14 After Detective Graff arrested Appellant and took him into custody, Appellant denied having committed a rape and refused to write a statement at the police barracks. N.T., 6/19/03, at 294-295.

¶ 15 On June 20, 2003,¹³ both parties rested and the trial judge discussed the proposed jury charges of Appellant. Specifically, Appellant requested that the trial court provide the jury an instruction on prompt complaint, to which the Commonwealth responded that a prompt complaint instruction was unnecessary. N.T. 6/20/03, at 30. In explaining its reasoning on the issue, the trial court appears to have reached the opposite conclusion: "[t]he testimony is that she came home and called her cousin and told her cousin. My recollection is that—well all right, it's there, because . . ." N.T. 6/20/03, at 31.

¶ 16 Upon hearing further argument from both sides, the trial court stated "[a]ll right, I am not going to give an instruction on failure to make a prompt complaint." N.T. 6/20/03, at 33. In...