J-S57028-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

 Appellee

v.

DAVID ELIJAH WARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 109 EDA 2018

Appeal from the Judgment of Sentence September 21, 2017

in the Court of Common Pleas of Bucks County 

Criminal Division at No.: CP-09-CR-0007977-2016

BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 28, 2018

Appellant, David Elijah Ward, appeals from the judgment of sentence 

imposed following his jury conviction of two counts of indecent assault.1 We 

affirm.

The trial court aptly provided the factual and procedural background in 

its February 2, 2018 opinion:

. . . On July 21, 2016, at approximately 8:55 P.M., H.R. 

visited Hand and Stone Spa in Fairless Hills, PA (“Hand and 

Stone”) for a massage appointment. H.R. had previously received 

one massage, not from Appellant, at this Hand and Spa location, 

as well as one other massage in her life. After H.R. arrived, 

Appellant introduced himself and led H.R. to the massage room, 

which contained a massage table with sheets. Appellant directed

H.R. to undress to her underwear and lie face down on the table[,] 

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1 18 Pa.C.S.A. § 3126(a)(1). The jury found Appellant not-guilty of 

aggravated indecent assault. See 18 Pa.C.S.A. § 3125.
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under the blanket. H.R. undressed but left the bottom portion of 

her underwear on during the massage.

During the massage, Appellant first began working on H.R.’s 

upper back towards her shoulders. While H.R. was still lying face 

down on the massage table, Appellant began working toward 

H.R.’s lower back in a way that H.R. felt was “a little bit too low 

on top of my butt” compared to previous massages she had 

experienced. (N.T. Trial, 4/19/17, at 109). H.R. did not respond 

verbally or physically to this action, but testified that she “wanted 

to give [Appellant] the benefit of the doubt”. (Id.). After finishing 

with H.R.’s back, Appellant instructed H.R. to switch from lying on 

her stomach to lying on her back.

Appellant eventually began working on the lower portion of 

H.R.’s body. While applying pressure to H.R.’s left leg, Appellant 

slid his hand under H.R.’s left buttocks and made a grabbing 

motion as he placed his right hand on her left thigh. H.R. again 

did not respond verbally or physically, but testified to her 

discomfort at that moment. Appellant subsequently moved to 

H.R.’s right leg, and after working up to H.R.’s right thigh[,] placed 

one hand underneath her buttocks. As he did, Appellant began to 

rub the exterior of H.R.’s vagina in a circular motion with his right 

hand. Appellant performed this action briefly on top of H.R.’s 

underwear before inserting his hand underneath her underwear. 

Eventually Appellant penetrated H.R.’s vagina with his fingers. 

During this period[,] Appellant moved his left hand from her 

buttocks and began touching her breasts above the sheets, 

pinching the nipples. H.R. estimated that this experience lasted 

approximately five minutes.

During this experience, H.R. did not respond or resist []

Appellant’s actions. H.R. testified that she felt shocked, confused, 

and scared, and did not know what Appellant would do if she 

attempted to stop him. H.R. further stated that she did not believe 

she could overpower Appellant. H.R. confirmed that she did not 

desire or expect Appellant’s actions and had never encountered 

similar actions at any other massage. H.R. also testified she felt 

“slightly violated” after the massage. (Id. at 121).

After finishing the massage, Appellant left the room. . . . 

[She] then paid and left Hand and Stone and proceeded to call her 

boyfriend, [R.L.], informing him of her experience. H.R. returned 

to her residence, showered, and . . . [R.L.] drove himself and H.R. 
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to the Falls Township Police Department. At th[e] police station . 

. . Detective Stephen Reeves spoke with H.R. [].

* * *

[Complainant] E.M. first received a massage from Appellant 

on July 14, 2016[, which] seemed “fairly normal” compared with 

the approximately [ten] previous massages she had received[.] . 

. . E.M. then made an appointment for July 28, 2016, to receive a 

[second] massage from Appellant.

. . . [O]n July 28, 2016, [when] E.M. arrived at Hand and 

Stone, . . . Appellant instructed E.M. to disrobe to her comfort 

level[.] . . . E.M. accordingly removed all of her clothing. . . . While 

massaging E.M.’s right leg, Appellant moved his hands higher on 

the thigh than E.M. had experienced in her past massages. 

Appellant then began rubbing the outside of E.M.’s genitals in a 

circular motion. E.M. testified that this contact was “[a]bsolutely 

not” a mere brush or passing moment. (N.T. Trial, 4/20/17, at 

81). E.M. shifted her hips to indicate her discomfort, at which 

point Appellant asked if she were uncomfortable and E.M.

affirmed. Appellant apologized and then moved the hand which 

had come in contact with her genitals to the middle of her thigh 

before finishing the massage.

E.M. testified that she felt “[s]cared to death” during 

Appellant’s actions. (Id. at 82). . . . Following the massage, . . . 

E.M. paid and left Hand and Stone[.]

(Trial Court Opinion, at 1-3) (most record citations omitted; record citation 

formatting provided).

On April 21, 2017, at the conclusion of a three-day trial, the jury 

convicted Appellant of two counts of indecent assault. On August 14, 2017, 

the court sentenced Appellant to an aggregate term of not less than four nor 

more than twenty-three months’ incarceration, with credit for time-served. 

Appellant timely filed a post-sentence motion. On September 21, 2017, the 

court granted that portion of the motion seeking additional credit for time-
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served, and, on November 29, 2017, it denied the remainder of his postsentence motion after a hearing. Appellant timely appealed.2

Appellant raises five questions for this Court’s review:

I. Whether the trial court erred in overruling defense counsel’s 

Batson[

3] challenge when the Assistant District Attorney struck 

Juror Number 23[?]

II. Whether the trial court erred in denying defense counsel’s 

motion for a mistrial[?]

III. Whether the evidence was insufficient to sustain the verdict 

of guilt for both counts of indecent assault where the 

Commonwealth failed to prove beyond a reasonable doubt 

Appellant possessed the requisite mens rea[?]

IV. Whether the verdict was against the weight of the 

evidence[?]

V. Whether the sentencing court erred in sentencing Appellant 

to an aggravated range, aggregate sentence and failed to put 

specific reasons for doing so on the record[?]

(Appellant’s Brief, at 5-6).

In his first claim, Appellant maintains that “[t]he Assistant District 

Attorney violated Batson . . . when she struck Juror Number 23 and the trial 

court erred when it overruled defense counsel’s challenge.” (Id. at 9). We 

disagree.

A Batson claim presents mixed questions of law and fact. 

Therefore, our standard of review is whether the trial court’s legal 

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2 Pursuant to the trial court’s order, Appellant filed a concise statement of 

errors complained of on January 22, 2018. The court filed an opinion on 

February 2, 2018. See Pa.R.A.P. 1925.

3 Batson v. Kentucky, 476 U.S. 79 (1986).
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conclusions are correct and whether its factual findings are clearly 

erroneous.

In Batson, the [Supreme Court of the United States] held 

that a prosecutor’s challenge to potential jurors solely on the basis 

of race violates the Equal Protection Clause of the United States 

Constitution. When a defendant makes a Batson challenge during 

jury selection:

First, the defendant must make a prima facie

showing that the circumstances give rise to an 

inference that the prosecutor struck one or more 

prospective jurors on account of race; second, if the 

prima facie showing is made, the burden shifts to the 

prosecutor to articulate a race-neutral explanation for 

striking the juror(s) at issue; and third, the trial court 

must then make the ultimate determination of 

whether the defense has carried its burden of proving 

purposeful discrimination.

Commonwealth v. Edwards, 177 A.3d 963, 971 (Pa. Super. 2018) (citations 

and quotation marks omitted). “The trial court should consider the totality of 

circumstances when determining whether the prosecutor acted with 

discriminatory intent or engaged in purposeful discrimination.” 

Commonwealth v. Towles, 106 A.3d 591, 602 (Pa. 2014), cert. denied, 135 

S. Ct. 1494 (2015) (citation omitted). This Court must give great deference 

to the trial court’s finding about the absence of discriminatory intent in 

peremptory challenges, and we will not overturn it unless it is clearly 

erroneous. See id.

Here, the trial court explained:

In this case, Appellant’s trial counsel raised objections based 

on the fact that “Number 23, out of the 56 panel member[s], is 

the only African American juror, potential juror” and that “Juror 

Number 23 did not answer any question in such a way the 
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defense, the Commonwealth, nor the Court had to have any 

follow-up question”. (N.T. Trial, 4/19/17, at 51-52). In response, 

the Commonwealth noted that it struck “all single males on the 

jury”, and that “that was the reason he was struck. My first strike 

was single men.” (Id. at 52). The Commonwealth further stated 

that Jurors Number 7 and Number 3 were single men and also 

struck. (See id.) Based on this reasoning, the [c]ourt found, and 

continues to find, that the Commonwealth adequately offered a 

race-neutral explanation for striking Juror Number 23. Th[e] 

[c]ourt does not see any discriminatory intent in the 

Commonwealth’s desire to strike all single males from a potential 

jury for a case where [Appellant] was an unmarried male. 

Accordingly, th[e] [c]ourt maintains that Appellant has 

insufficiently established a claim under Batson.

(Trial Ct. Op., at 6) (record citation formatting provided).

In the totality of the circumstances, we discern no legal or factual error

where the Commonwealth provided a race-neutral explanation and the trial 

court found that Appellant failed to carry his burden of proving his Batson

claim. See Towles, supra at 602; Edwards, supra at 971. Appellant’s first 

issue does not merit relief.

In his second claim, Appellant argues that “[t]he trial court erred in 

denying defense counsel’s motion for a mistrial.” (Appellant’s Brief, at 12) 

(record citation omitted). He alleges that his testimony, elicited by the 

Commonwealth during cross-examination, that Hand and Stone fired him after 

E.M. lodged her complaint, “had the unavoidable effect of depriving [him] of 

a fair trial.” (Id. at 13) (citation omitted). Appellant’s claim lacks merit.

Our standard of review of the denial of a motion for a mistrial is wellsettled.
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The trial court is in the best position to assess the effect of 

an allegedly prejudicial statement on the jury, and as such, the 

grant or denial of a mistrial will not be overturned absent an abuse 

of discretion. A mistrial may be granted only where the incident 

upon which the motion is based is of such a nature that its 

unavoidable effect is to deprive the defendant of a fair trial by 

preventing the jury from weighing and rendering a true verdict. 

Likewise, a mistrial is not necessary where cautionary instructions 

are adequate to overcome any possible prejudice.

Commonwealth v. Johnson, 107 A.3d 52, 77 (Pa. 2014), cert. denied, 136 

S. Ct. 43 (2015) (citation omitted).

Here, the trial court explains:

In this case, the Commonwealth on cross-examination of 

Appellant asked, “And in response to that complaint by [E.M.,]

Hand and Stone fired you?” (N.T. Trial, 4/20/17, at 119). 

Appellant’s trial counsel immediately objected, which objection 

was sustained by the[e] [c]ourt. (See id.). Following this 

objection, a sidebar was held with Appellant’s counsel, the 

Commonwealth, and the [c]ourt, in which Appellant’s counsel 

moved for a mistrial because “there’s before this jury what could 

be conceived as a conclusion of an investigation or a finding of 

fact that he did in fact do this, resulting in his termination”. (Id.

at 119-20). Appellant’s counsel then asked the [c]ourt for a 

mistrial or, alternatively, a “cautionary instruction that 

employment termination is of no moment as to whether 

something did or did not occur”. (Id. at 120). The [c]ourt denied 

the mistrial, but agreed to instruct the jury “that they strike that 

from their consideration”. [(Id.)]. Appellant’s trial counsel then 

stated that he did not want a cautionary instruction after all. (See 

id.). When the [c]ourt determined that the Commonwealth 

sought to show through its questioning that Appellant wrote a 

statement of appeal following his firing, the [c]ourt agreed to 

allow that statement, and the Commonwealth promised to make 

no mention of the firing other than Appellant’s written statement. 

(See id. at 120-21).

. . . The only other reference to Appellant’s employment at 

trial occurred during direct examination of Appellant, in which 

Appellant’s counsel asked if Appellant were employed and 
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affirmed that Appellant was working at that time as a personal 

trainer. (See id. at 103). . . . 

(Trial Ct. Op., at 78) (record citation formatting provided).

Based on the foregoing, and our independent review of the certified 

record, which confirms the trial court’s recitation of the facts, we conclude that 

it did not abuse its discretion in denying Appellant’s motion for a new trial. 

See Johnson, supra at 77. The court sustained Appellant’s objection 

immediately after defense counsel made it, and the Commonwealth did not 

mention his termination again. Other than his bald presumption that, “[o]nce 

the jury heard that Appellant had been fired, no reasonable juror could 

possibly conclude that an assault did not occur[,]” Appellant fails to establish 

that the jury was unable to fairly weigh the evidence because of this fleeting 

mention of his firing. (Appellant’s Brief, at 13 (emphasis omitted); see id. at 

12). Appellant’s second issue does not merit relief.

Appellant’s third issue challenges the sufficiency of the evidence to 

sustain his conviction of indecent assault where the Commonwealth failed to 

establish that he possessed the required mens rea. (See id. at 13-15). 

Appellant’s issue lacks merit.

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 
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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. Thomas, ___ A.3d ___, 2018 WL 3679940, at *5 (Pa. 

Super. filed Aug. 3, 2018) (citation omitted). It is well-settled that, “[i]n a 

prosecution for sex offenses, a verdict may rest on the uncorroborated 

testimony of the victim. Commonwealth v. Cody, 584 A.2d 992, 993 (Pa. 

Super. 1991), appeal denied, 592 A.2d 42 (Pa. 1991) (citing 18 Pa.C.S.A. § 

3106) (case citation omitted). Further, “[t]he Commonwealth is not required 

to prove mens rea by direct evidence. Frequently such evidence is not 

available. In such cases, the Commonwealth may rely on circumstantial 

evidence.” Commonwealth v. Beasley, 138 A.3d 39, 48 (Pa. Super. 2016), 

appeal denied, 161 A.3d 791 (Pa. 2016) (citation omitted).

Section 3126 of the Crimes Code provides, in pertinent part: “A person 

is guilty of indecent assault if the person has indecent contact with the 

complainant . . . for the purpose of arousing sexual desire in the person or the 

complainant and . . . the person does so without the complainant’s consent[.]” 

18 Pa.C.S.A. § 3126(a)(1).

Instantly, both complainants testified that, based on their experience 

with other massages, Appellant touched them inappropriately. (See N.T. 
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Trial, 4/19/17, at 109, 112-18; N.T. Trial, at 4/20/17, at 80-81). Specifically, 

he rubbed the exterior of their vaginas in a circular motion, penetrating H.R.

with his fingers while pinching her nipples, and grabbing her buttocks. (See 

N.T. Trial, 4/19/17, at 112-18; N.T. Trial, 4/20/17, at 80-81). Both women

testified to their discomfort and stated that they did not want Appellant to

touch them this way. (See N.T. Trial, 4/19/17, at 119-21; N.T. Trial, 4/20/17, 

at 81-82). 

Based on the foregoing, we conclude that the evidence sufficiently 

established that Appellant had indecent contact with the complainants without 

their consent for the purpose of arousing sexual desire. See Thomas, supra

at *5; Beasley, supra at 48; Cody, supra at 993. Appellant’s third issue 

lacks merit.4

In Appellant’s fourth issue, he claims that the verdict was against the 

weight of the evidence. (See Appellant’s Brief, at 16-17). He maintains that 

the verdict shocks the conscience because the evidence, specifically his own 

testimony and that of his character witnesses, established that any touching 

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4 We note that, although he frames his issue as a challenge to the sufficiency 

of the evidence to support a finding of his required mens rea, (see Appellant’s 

Brief, at 5, 13), his argument sounds more akin to a weight of the evidence 

challenge. He compares his testimony to that of the complainants’ and 

concludes that the differences rendered the evidence insufficient. (See id. at 

15). He also points to the fact that E.M. did not contact the police and that 

no DNA evidence was recovered from H.R.’s underwear as proof that the 

evidence was insufficient. (See id.). However, these arguments go to the 

weight of the evidence, not its sufficiency, which was within the province of 

the jury to decide. See Cramer, infra at *2.
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was accidental, not intentional. (See id.). Appellant’s fourth claim lacks 

merit.

When considering challenges to the weight of the evidence, 

we apply the following precepts. The weight of the evidence is 

exclusively for the finder of fact, who is free to believe all, none 

or some of the evidence and to determine the credibility of the 

witnesses. Resolving contradictory testimony and questions of 

credibility are matters for the factfinder. It is well-settled that we 

cannot substitute our judgment for that of the trier of fact.

Moreover, when a trial court finds that the evidence was not 

against the weight of the evidence, we must give the gravest 

consideration to the trial court’s conclusion because it is the trial 

court, and not the appellate court, that had the opportunity to 

hear and see the evidence presented. Furthermore, a defendant 

will only prevail on a challenge to the weight of the evidence when 

the evidence is so tenuous, vague and uncertain that the verdict 

shocks the conscience of the court.

Commonwealth v. Cramer, ___ A.3d ___ 2018 WL 4232479, at **2-3 (Pa. 

Super. filed Sept. 6, 2018) (citations and quotation marks omitted).

In the case sub judice, the trial court found that:

. . . The jury was presented with evidence by both the 

Commonwealth and Appellant, considered the credibility of the 

witnesses presented by each side, and ultimately believed the 

evidence presented by the Commonwealth. . . . [T]he evidence 

presented was more than sufficient to support Appellant’s 

convictions, and th[e] [c]ourt discerns no reason why the 

convictions should shock any reasonable person’s sense of justice. 

. . .

(Trial Ct. Op., at 10).

We agree with the trial court. It was within the province of the jury to 

determine the weight of the evidence, including resolving conflicts in the 

testimony and credibility questions. See Cramer, supra at *2. “[T]he 
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evidence [was not] so tenuous, vague and uncertain that the verdict shocks 

the conscience of the [C]ourt.” Id. at *3. Therefore, Appellant’s fourth issue 

lacks merit.

Finally, in his fifth issue, Appellant challenges the discretionary aspects 

of his sentence. (See Appellant’s Brief, at 17-18). This issue is waived.

Challenges to the discretionary aspects of sentence are not 

appealable as of right. Rather, an appellant challenging the 

sentencing court’s discretion must invoke this Court’s jurisdiction 

by (1) filing a timely notice of appeal; (2) properly preserving the 

issue at sentencing or in a motion to reconsider and modify the 

sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a 

separate section of the brief setting forth “a concise statement of 

the reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of a sentence[;]” and (4) presenting a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.[A.] § 9781(b).

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (case 

citation omitted).

In this case, Appellant complied with the first two requirements of filing 

a timely notice of appeal and a post-sentence motion raising his sentencing 

issue. (See Post Sentence Motion, 8/24/17, at unnumbered page 2). 

However, he has failed to include a Rule 2119(f) statement in his brief. “While 

this does not automatically waive his claim on appeal, we may not reach the 

merits of [the] claims where the Commonwealth has object[ed] to the 

omission of the statement.” Commonwealth v. Hudson, 820 A.2d 720, 727 

(Pa. Super. 2003), appeal denied, 844 A.2d 551 (Pa. 2004) (citation and 

internal quotation marks omitted). Because the Commonwealth objects to the 
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omission of Appellant’s Rule 2119(f) statement, (see Commonwealth’s Brief, 

at 27-28), we deem his issue waived. See Hudson, supra at 727 (finding 

sentencing claim waived for review where Commonwealth objected to 

omission of Rule 2119(f) statement).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/18