J-S64037-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NOEL LLOYD SMILE

Appellant No. 161 EDA 2016

Appeal from the Judgment of Sentence April 23, 2013

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0004456-2012

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 23, 2016

Appellant appeals nunc pro tunc from the judgment of sentence 

entered in the Court of Common Pleas of Delaware County following his 

conviction at a bench trial on the charges of rape by forcible compulsion, 

burglary, and simple assault.1 Appellant alleges the evidence was 

insufficient to sustain his convictions. We affirm. 

Appellant was arrested in connection with the rape of S.H., and on 

December 4, 2012, represented by counsel, he proceeded to a bench trial. 

The trial court has aptly summarized the testimony and evidence presented 

at trial as follows: 

____________________________________________

1 18 Pa.C.S.A. §§ 3121(a)(1), 3502(a)(1), and 2701(a)(1). 
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On May 24, 2012, at approximately midnight, [S.H.] went 

to sleep in her apartment. . .in Delaware County. (N.T. 12/4/12 

p. 26). She was awakened by her upstairs neighbor, Appellant, 

knocking on her window. He motioned for her to open the 

outside door for him and she complied. From the hallway, not in 

her apartment yet, he said: “[O]h, [S.H.], you’re playing with 

me because you know you wants me. You wants me [a] long 

time and I’m not giving in. . . .” (Id. p. 49). [S.H. testified 

Appellant then] grabbed her throat, shoved her backwards into 

her apartment and onto a table. (Id.). He said, “[S.H.], you—

do you know that I should kill you right now.” (Id.). [S.H. 

testified Appellant] lifted her up and shoved her into the 

bedroom onto her bed. (Id.). [S.H.] tried to get up and fought 

Appellant. (Id. pp. 50-51). He [went on top of her and] hit her 

with a closed fist in the face several times. (Id. pp. 49-50). He 

stood her up, [held her by the throat,] removed her clothes, and 

then removed his own clothes. (Id. pp. 51-61). Then, he sat on 

the bed, [shoved S.H. into a kneeling position,] and forced her 

to perform oral sex upon him. (Id. pp. 66-69). [S.H. testified 

that she did not want to engage in oral sex with Appellant and] 

[s]he was crying throughout the ordeal. (Id. pp. 69, 74, 75). 

[S.H. testified she complied with Appellant’s demand to perform 

oral sex because, “I didn’t want him to hit me anymore.” (Id. p. 

70)]. [Appellant then] shoved her on the bed and had vaginal 

sex with her. (Id. pp. 73-74). [S.H. testified that she was 

“crying, praying for her boyfriend to come.” (Id. p. 74)]. 

Thereafter, she ran out the back door, called her boyfriend, and 

then called the police. (Id. p. 75). 

Patrolman James J. Murray of the Colwyn Borough Police 

Department testified that he responded to the area of Third and 

Walnut Streets. . .in the early morning hours of May 24, 2012[,] 

for a call relating to the sexual assault of [S.H.] [S.H.] was 

transported to Mercy Fitzgerald Hospital in Darby, Pennsylvania 

for her injuries. The officer observed “a fresh lump under her 

left eye.” (N.T. 12/5/12 p. 6).

As Officer Murray and a second officer, Officer Croddock, 

looked for Appellant, at [S.H.’s] residence, they “heard a loud 

crash towards the rear of the residence.” (Id. p. 7). They heard 

a fence rattling and heard somebody hopping a fence. They 

followed and found Appellant on the ground attempting to hide 

underneath a bow window. Appellant [had] broke[n] his leg in 

his attempt to flee the apartment building. (Id. pp. 7-8). The 
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Officer later testified that he believed Appellant rolled off the 

awning which extended from the second floor, where Appellant’s 

apartment was located. (Id. p. 14). 

Without the Officers asking questions, Appellant blurted 

out a denial. [Officer Murray testified,] “When I first came upon 

[Appellant], his first statement is that he didn’t do it. She—that 

he didn’t know why she was saying that. That she doesn’t know 

why he—he doesn’t know why she would say that he did it.” 

(Id. pp. 9-10). Another Officer, Detective Dave Taylor, who was 

also on the scene at about [4:00 a.m.], testified that Appellant 

subsequently consented to a DNA swab and when he was 

obtaining the swab from Appellant he blurted out: “[S]he knows 

I didn’t do that to her. I don’t know why she’s doing that to 

me.” (Id. p. 19). 

Dr. Michael McCollum, an [emergency room] physician at 

Mercy Fitzgerald, testified that he examined [S.H.] on May 24, 

2012. He determined that there was a bruise on her left cheek 

with an abrasion and there was swelling around the thyroid area 

and the neck in general. (N.T. 12/4/12 p. 124). The Doctor 

determined that the injuries he observed were consistent with 

his interview of [S.H.] When the District Attorney showed Dr. 

McCollum Exhibit C-10, a photograph of [S.H.] in her hospital 

bed, and asked him about the freshness of the wound, he 

testified: “[W]ell they look relatively fresh. There’s very little 

discoloration underneath the skin. The abrasion looks fresh. It 

has not—a scab has not developed on the skin, so it looks within 

a few hours old.” (Id. p. 126). The Doctor also testified to 

[S.H.’s] entire eye socket being swollen, her cheek being 

swollen, and her vaginal mucosa being swollen. He testified 

within a reasonable degree of medical certainty that her vaginal 

injury was consistent with penetration force. (Id. pp. 130-33).

Appellant [testified at trial]. [Specifically, he] testified that 

he never forced [S.H.] to perform oral and vaginal sex with him, 

rather the sex was consensual. (12/5/12 pp. 45-82). [Appellant 

testified that S.H. initiated the encounter, and he denied that he 

ever grabbed S.H. by the throat or hit her. (Id. at 49-79). 

Appellant testified that, prior to their sexual encounter on May 

24, 2012, he and S.H. were friends. (Id. at 64-65)]. 
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Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed 3/16/16, at 1-3 (footnote 

omitted). 

At the conclusion of the bench trial, the trial court convicted Appellant 

of the offenses indicated supra, and on April 23, 2013, the trial court 

imposed the following sentence: rape by forcible compulsion-six to twelve 

years in prison, to be followed by five years of probation; burglary-two to 

four years in prison, to run concurrently to the sentence imposed for rape by 

forcible compulsion; and simple assault-two years probation, to run 

consecutively to the sentence imposed for rape by forcible compulsion. 

Further, Appellant was found to be a sexually violent predator and subjected 

to lifetime registration under Megan’s Law. 

Appellant filed a timely motion for reconsideration of his sentence in 

which he sought a lesser sentence due to mitigating circumstances, and the 

trial court denied his motion on May 13, 2013. Appellant did not file a timely 

direct appeal; however, on January 24, 2014, Appellant filed a timely pro se 

PCRA2 petition seeking to file a direct appeal nunc pro tunc. By order 

entered on May 1, 2014, the PCRA court reinstated Appellant’s direct appeal 

rights nunc pro tunc. 

Thereafter, Appellant filed pro se correspondence indicating that he did 

not wish to file a direct appeal; but rather, he wished to have his remaining 

____________________________________________

2

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
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PCRA claims litigated. On May 30, 2014, the PCRA court ordered that 

Appellant’s direct appeal rights be reinstated nunc pro tunc. Further, the 

PCRA court specifically clarified that “in [Appellant’s] filing of a nunc pro tunc

appeal, he is not waiving his rights under the [PCRA] and may proceed with 

his PCRA petition at the conclusion of appellate review of his direct appeal.” 

PCRA Court’s Order, filed 5/30/14, at 1 n.1 (italics in original).3 

Appellant did not file a direct appeal nunc pro tunc to this Court; but 

rather, on April 24, 2015, Appellant filed a pro se PCRA petition,4 which was 

to be considered a timely first PCRA petition.5 The PCRA court appointed 

counsel to represent Appellant, and counsel averred that previous counsel 

was ineffective in failing to file a direct appeal nunc pro tunc following the 

____________________________________________

3 We note that a lower court may modify its order within thirty days if an 

appeal is not taken therefrom. 42 Pa.C.S.A. § 5505. 

4 Although this petition was docketed on April 29, 2015, we deem it to have 

been filed when Appellant handed it to prison officials on April 24, 2015. 

See Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011) 

(discussing the prisoner mailbox rule).

5

“This Court has explained that when a PCRA petitioner's direct appeal 

rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent 

PCRA petition will be considered a first PCRA petition for timeliness 

purposes.” Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super. 

2013) (citations omitted). Therefore, in the case at bar, the time for filing a 

PCRA petition restarted thirty days after the May 30, 2014, order reinstating 

Appellant's direct appeal rights, and a PCRA petition filed on or before 

approximately June 30, 2015, will be considered a timely first PCRA petition. 

See id. The fact Appellant did not timely file a direct appeal nunc pro tunc

following the entry of the May 30, 2014, order does not alter this analysis 

and conclusion. See id. at 1286 n.3.
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PCRA court’s May 30, 2014, order. The PCRA court agreed and, thus, by 

order filed on November 10, 2015, the PCRA court again reinstated 

Appellant’s direct appeal rights nunc pro tunc.

6

 This counseled appeal 

followed on January 7, 2016,7and all Pa.R.A.P. 1925 requirements have 

been met. 

On appeal, Appellant challenges the sufficiency of the evidence 

sustaining his convictions. Our standard of review in assessing a challenge 

to the sufficiency of the evidence is well-settled. “The standard we apply in 

reviewing the sufficiency of the evidence is whether viewing all of 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.” Commonwealth v. Garland, 63 

____________________________________________

6 Due to counsel’s ineffectiveness in failing to file a requested direct appeal 

nunc pro tunc following the PCRA court’s May 30, 2014, order, the PCRA 

court was permitted to again reinstate Appellant’s direct appeal rights nunc 

pro tunc via the subsequent timely PCRA petition, which was filed on April 

24, 2015. See Turner, supra; Commonwealth v. Ousley, 21 A.3d 1238 

(Pa.Super. 2011). 

7 We note that an appeal must be filed within thirty days of the entry of the 

order reinstating direct appeal rights. Pa.R.A.P. 903(a). However, in this 

case, the PCRA court specifically provided in its November 10, 2015, order 

that Appellant had sixty days to file a direct appeal nunc pro tunc. See 

PCRA Court’s Order, filed 11/10/15, at 1. Due to the PCRA court’s 

misstatement of the appeal period, which constitutes a breakdown in the 

court’s operation, we shall overlook the untimeliness of the instant appeal. 

See Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa.Super. 2001) 

(declining to quash an appeal where the failure to file a timely appeal was 

the result of the trial court’s misstatement of the appeal period). 
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A.3d 339, 344 (Pa.Super. 2013). “Any doubts concerning an appellant's 

guilt [are] to be resolved by the trier of fact unless the evidence was so 

weak and inconclusive that no probability of fact could be drawn therefrom.” 

Commonwealth v. West, 937 A.2d 516, 523 (Pa.Super. 2007). Further, 

“the Commonwealth may sustain its burden of proving every element of the 

crime beyond a reasonable doubt by means of wholly circumstantial 

evidence.” Commonwealth v. Perez, 931 A.2d 703, 707 (Pa.Super. 

2007). 

Here, Appellant was convicted of rape by forcible compulsion under 18 

Pa.C.S.A. § 3121(a)(1), which provides, in relevant part, that “[a] person 

commits a felony of the first degree when the person engages in sexual 

intercourse with a complainant. . .by forcible compulsion.” “[P]enetration, 

however slight,” of the female genitals with the penis is necessary to 

establish the element of sexual intercourse. 18 Pa.C.S.A. § 3101. Moreover, 

the Crimes Code defines “forcible compulsion” as “[c]ompulsion by use of 

physical, intellectual, moral, emotional or psychological force, either express 

or implied.” 18 Pa.C.S.A. § 3101. “Something more” than mere lack of 

consent is necessary to establish “forcible compulsion.” Commonwealth v. 

Smolko, 666 A.2d 672, 676 (Pa.Super. 1995). Forcible compulsion is a 

determination made in each case based on the totality of the circumstances 

that have been presented to the fact-finder. See id. at 675.
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Here, Appellant does not dispute that he and S.H. engaged in sexual 

intercourse on May 24, 2012. However, he contends the record reveals the 

encounter was consensual and lacking any evidence of forcible compulsion. 

In rejecting Appellant’s sufficiency of the evidence claim, the trial court 

determined:

[S.H.] testified that as she opened the door to her 

apartment, Appellant grabbed her by the throat, shoved her into 

the bedroom, punched her, forced her into performing oral sex 

upon him and then vaginally raped her. Appellant inserted his 

penis into [S.H.’s] vagina without [her] consent. [S.H.] testified 

that she did not want to have sex with Appellant. She cried 

during the ordeal.

[S.H.’s] testimony at trial is sufficient to support a 

conviction for the charge of Rape by Forcible Compulsion. 

Appellant grabbing her by the throat, shoving her into the 

bedroom, and punching her established the use of physical 

force[.] Based upon [S.H.’s] credible testimony that Appellant 

forcibly grabbed her throat and with a closed-fist punched her in 

the face in order to engage in sexual intercourse with her, there 

was sufficient evidence to sustain the Rape by Forcible 

Compulsion conviction in this case. Further, Dr. McCollum’s 

testimony as to the physical injuries to [S.H.’s] neck and eye 

area corroborated her version of the facts. The Doctor testified 

that the abrasion looked fresh, it didn’t have a scab on it, and so 

it looked within a few hours old. The Doctor also testified to 

[S.H.’s] entire eye socket being swollen, her cheek being 

swollen, and her vaginal mucosa being swollen. He testified 

within a reasonable degree of medical certainty that [S.H.’s] 

vaginal injury was consistent with penetration by force. 

Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed 3/16/16, at 9-10.

The record supports the trial court’s findings in this regard. Under our 

standard of review, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, together with all reasonable inferences, 
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we conclude the evidence of Appellant’s physical force used in the rape, 

which resulted in documented bodily injuries to the victim, was more than 

sufficient to prove forcible compulsion. 18 Pa.C.S.A. § 3101; Smolko,

supra.

Appellant was also convicted of burglary under 18 Pa.C.S.A. § 

3502(a)(1), which provides, in relevant part, that: 

A person commits the offense of burglary if, with the intent to 

commit a crime therein, the person: (1) enters a building or 

occupied structure, or separately secured or occupied portion 

thereof that is adapted for overnight accommodations in which 

at the time of the offense any person is present[.]

18 Pa.C.S.A. § 3502(a)(1). Relevantly, it is a defense to burglary if the 

“actor is licensed or privileged to enter.” 18 Pa.C.S.A. § 3502(b).

As our Supreme Court has indicated:

Under Pennsylvania law the crime of burglary is defined as an 

unauthorized entry with the intent to commit a crime after entry. 

18 Pa.C.S.[A.] § 3502; Commonwealth v. Wilamowski, 534 

Pa. 373, 633 A.2d 141 (1993). The intent to commit a crime

after entry may be inferred from the circumstances surrounding 

the incident. This intent may be inferred from actions as well as 

words. However, actions must bear a reasonable relation to the 

commission of a crime.

Commonwealth v. Alston, 539 Pa. 202, 206-07, 651 A.2d 1092, 1094 

(1994) (footnote and citations omitted). Moreover, the Commonwealth is 

not required to specify what crime the defendant was intending to commit 

upon entering the premises. See id.

In the case sub judice, Appellant contends the evidence reveals that 

S.H. gave him permission to enter her residence and that he did not intend 
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to commit a crime after entry. In rejecting Appellant’s sufficiency claim, the 

trial court stated the following:

[S.H.] had gone to sleep for the evening but was 

awakened by Appellant “knocking on [her] window.” (N.T. 

12/4/12 p. 39). She moved the curtain and saw that it was 

Appellant, her upstairs neighbor. He gesture[d] for her to open 

the door. The apartments are configured such that Appellant 

and [S.H.] can both enter the front door and enter into a 

common hallway. The common hallway leads to [S.H.’s] 

apartment door on the first floor and Appellant enters his 

apartment upstairs, on the second floor. [S.H.] thought that he 

was locked out of the front door but in fact he was in the 

common hallway and was trying to enter her apartment. (Id. p. 

44). Appellant then said: “[Y]ou better stop playing with me. I 

know you want me.” [S.H. testified that then] “he held [her] by 

[her] throat.” (Id. p. 47). [He] forced his way into her 

apartment. She testified [on direct examination]:

Q: Was he still right on the other side of the door or 

was he in your. . . . 

A: [U]m-hum[.]

Q: [S]o he was on the other side?

A: Right.

Q: And you were right inside your apartment?

A: Right.

***

Q: And he grabbed you by your throat?

A: Right.

Q: What did he do after he grabbed you by your 

throat?

A: He grabbed me by my throat and shoved me in 

my living room on this table right here [in the 

photo]. . . .

Q: So he pushed you backwards[?]

A: He shoved me, right. And I went on the table.

(Id. pp. 47-48). 

Here, Appellant entered. . .[S.H.’s] apartment. He entered 

the apartment with the intent to commit the crime of [r]ape[.] 

[S.H.’s] apartment was not open to the public. Appellant did not 

have permission to enter [S.H.’s] apartment, he forced his way 

into the apartment. Finally, [S.H.’s] apartment was an occupied 

structure, that was adapted for overnight accommodations (she 
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testified she was raped in her bedroom) and at the time of the 

offense [S.H.] was present. . . .

[T]he evidence [reveals] that Appellant gained entrance 

only by grabbing [S.H.’s] throat and forcing her backwards 

through the door, [which] he entered only to attack her, and 

that he never stated to her any reason or purpose for the entry 

but to attack her[.] [S.H.’s testimony] permitted the fact-finder 

to infer that Appellant was neither licensed nor privileged to 

enter the apartment. Therefore, there was sufficient evidence to 

sustain Appellant’s conviction for the charge of [b]urglary.

Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed 3/16/16, at 11-13. 

The record supports the trial court’s findings in this regard. Under our 

standard of review, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, together with all reasonable inferences, 

we conclude the evidence of Appellant’s use of physical force upon S.H. in 

order to gain entry into her apartment during the evening hours is sufficient 

to sustain Appellant’s conviction for burglary. 18 Pa.C.S.A. § 3502(a)(1). 

Contrary to Appellant’s assertion, the evidence sufficiently establishes that 

Appellant intended to commit a crime (rape) when he entered S.H.’s 

apartment and he was not given permission to enter the apartment. 

Although Appellant would have us view the evidence in the light most 

favorable to him, and accept his version of events, such is not the 

appropriate standard of review. Garland, supra. 

Finally, Appellant was convicted of simple assault under 18 Pa.C.S.A. § 

2701(a)(1), which provides that “[e]xcept as provided under section 2702

(relating to aggravated assault), a person is guilty of assault if he: (1) 

attempts to cause or intentionally, knowingly or recklessly causes bodily 
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injury to another[.]” 18 Pa.C.S.A. § 2701(a)(1). “Bodily injury” is defined 

as “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 

2301. 

Furthermore, it is axiomatic that simple assault does not 

require a victim to suffer actual bodily injury. The attempt to 

inflict bodily injury may be sufficient. This intent may be 

inferred from the circumstances surrounding the incident if a 

specific intent to cause bodily injury may reasonably be inferred 

therefrom.

Commonwealth v. Polston, 616 A.2d 669, 679 (Pa.Super. 1992) (citations 

omitted). 

In the case sub judice, Appellant contends the evidence reveals that 

S.H. received the injuries at issue from a physical altercation with her 

boyfriend, and not from any incident occurring between her and Appellant. 

In rejecting Appellant’s claim, the trial court indicated the following:

Here, Appellant hit [S.H.] in the face with a closed fist. 

(N.T. 12/4/12 pp. 49-50). [S.H. testified that] [“[h]e] shoved 

me on the bed and then went over me, came over me, and then 

hit me twice in my face again.” She was required to go to the 

hospital to seek treatment for her injury. Dr. McCollum, the 

[emergency room] physician, described her injury: “[T]he area 

around her left eye is swollen and bruised and there’s an 

abrasion beneath her left eye. Her upper eyelid here is also—

appears to be bruised.” (Id. p. 130). He continued: “[T]he 

entire eye socket is swollen and her check. . . is also swollen 

there, too.” (Id. p. 130).

Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed 3/13/16, at 14. 

The record supports the trial court’s findings in this regard. Under our 

standard of review, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, together with all reasonable inferences, 
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we conclude the evidence establishes that S.H. suffered actual bodily injury 

as a result of Appellant’s assault upon her. 18 Pa.C.S.A. § 2701(a)(1). 

Thus, the evidence is sufficient to sustain Appellant’s conviction for simple 

assault on this basis. 

For all of the foregoing reasons, we affirm Appellant’s judgment of 

sentence.

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2016