J-S28033-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

JAVIER GODOY-RICO,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1782 MDA 2018

Appeal from the Judgment of Sentence Entered August 24, 2016

in the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-CR-0001598-2015

BEFORE: BOWES, J., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 28, 2019

Javier Godoy-Rico (Appellant) appeals nunc pro tunc from the 

judgment of sentence imposed following his convictions for sexual assault, 

aggravated indecent assault, and simple assault. Upon review, we affirm.

In April 2015, a criminal complaint was filed against Appellant, 

charging him with, inter alia, the abovementioned crimes. These charges 

arose from a January 2015 sexual assault. Eventually, Appellant proceeded 

to a jury trial. We set forth the trial court’s summary of the facts presented 

at Appellant’s trial.

The Commonwealth first called [T.A.], who was the victim 

in this case. In her testimony, [T.A.] described the events that 

occurred on January 25, 2015. On that night, [T.A.] had been 

working at Bourbon Bar & Grill. Once [T.A.] finished work, she 

stayed at Bourbon Bar & Grill to listen to a band that was playing 

there. [T.A.’s] friend, Fernando Rivera (“Rivera”), arrived with 

Appellant at Bourbon Bar & Grill to listen to the band. [] 
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Appellant, Rivera, and [T.A.] stayed until closing, around 2:00 

a.m., and there was supposed to be a party at Appellant’s house 

afterwards that [T.A.], Appellant, Rivera, and three other people 

were supposed to attend.

To go to Appellant’s house, Appellant and [T.A.] drove 

together in [T.A.’s] car, while the rest took a separate car. [T.A.] 

and Appellant drove back to Appellant’s apartment, which was 

located above a business. Once Appellant and [T.A.] arrived at 

Appellant’s apartment, they sat on Appellant’s couch, and 

Appellant gave [T.A.] a beer, which [T.A.] may have had just a 

sip out of. No one else arrived at the apartment, but [T.A.] 

heard Appellant’s phone ring multiple times, which he did not 

answer.10 At no point did Appellant and [T.A.] have a 

conversation or understanding that it would be just the two of 

them at the apartment.

______

10 The Commonwealth had called Detective Mark Baker, a 

criminal investigator with the Northern York County 

Regional Police Department, to testify. Detective Baker 

testified that he had received Appellant’s cell phone from 

Hanover Borough Police following and related to the 

incident. He testified that he had “perform[ed] an analysis 

of the cell phone pursuant to [ the] ... ongoing 

investigation,” and on January 25, 2015 from 2:18 a.m. 

until 2:25 a.m., he found that “there were six missed calls 

on [Appellant’s] phone from someone” that Appellant had 

designated in his phone as Fernando.

On the couch, Appellant tried to kiss and touch [T.A.], 

making her nervous. Then, she asked [] where the bathroom 

was, and Appellant pointed out a doorway to her. She went to 

that doorway, but she realized it was to a bedroom, after 

entering through the doorway. When she turned around to leave 

the room, she found Appellant standing in the same doorway.

[T.A.] attempted to move around Appellant, but he tried to 

shove her down. When she tried to get away from [] Appellant 

again, he grabbed her pants from behind her, and “basically had 

[her] pants already kind of at [her] ankles by grabbing [her] 

forcefully when [she] was trying to get away from him.” 

[Appellant] pushed her onto his bed, and “he was trying to 

shove his hands inside of [her. They] started fighting. [She] 

tried to fight him off.”
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During this, [T.A.] tried to punch and scratch Appellant, despite 

not having [long] fingernails. Further, during the incident, [T.A.]

testified that [] Appellant hit her head multiple times and pulled 

her hair. [T.A.] testified that Appellant’s fingers penetrated 

[T.A.] vaginally and anally. Then, [T.A.] testified that she 

stopped fighting back when she realized she was not going to 

get away from him and cried through the rest of the incident.

In addition, [T.A.] “kept telling [Appellant] that [she] 

needed to go home to her children,” but he did not stop. Before 

she stopped fighting back, [T.A.] told Appellant “Stop, no, I don’t 

want this,” and [T.A.] noted in her testimony that she said this 

in two different languages. Then, [T.A.] testified that Appellant 

penetrated her vaginally, orally and anally with his penis and 

that he “forcibly climbed on top of [her] chest, with his knees on 

top of [her] arms, his legs were open, and [her] arms were at 

his side, and then he tried to forcibly make [her] give him oral 

sex.” At no point did [T.A.] consent or indicate to Appellant that 

she wanted to participate in any form of sexual intercourse. After 

the incident ended, Appellant asked [T.A.] to take a shower, but 

she refused and was able to then go home.

When the Commonwealth asked [T.A.] about her injuries 

that occurred as a result of the incident, [T.A.] testified that she 

had “lumps and bruises on [her] head. [She] had a bruise on 

[her] eye in the corner of [her] eye socket. [She] had scratch 

marks, bite marks, [and] bruises that happened immediately and 

bruises that showed up several days later.” [T.A.] also testified 

that the injuries to her head and eye occurred because Appellant 

punched her in the face when he initially pulled [her] pants down 

and got [her] on the bed ... when [she] started fighting him off 

of [her,] and [Appellant] fought [T.A.] back.” When [T.A.] 

arrived home, she tried to use her boyfriend’s cell phone to call 

the police, but he would not let her, and, so, she went to Turkey 

Hill [convenience store] to call the police.[1]

 

1 There was testimony elicited from T.A. that when she arrived home her 

boyfriend Alex was upset and demanded to know what had happened to her 

before he would allow T.A. to use the phone to call police. N.T., 6/17/2015, 

at 120. She decided “it wasn’t a good idea to tell Alex what happened at the 

moment[,]” so she left the home and drove to Turkey Hill to contact the 

police. On cross-examination, defense counsel read a portion of T.A’s 
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After [T.A.] testified, the Commonwealth called Sergeant 

Jason Byers (“Sergeant Byers”) and Officer Christine Mee 

(“Officer Mee”) to testify. Sergeant Byers and Officer Mee 

responded to the Turkey Hill that [T.A.] was at and they found 

her standing outside. Sergeant Byers state[d] that [T.A.]

appeared somewhat disheveled and upset. Similarly, Officer 

Mee described [T.A.] as looking “disheveled. Her hair was up, 

but kind of messed up. She just looked like she had been crying. 

Her eyes were kind of puffy, makeup was a little runny.”

After receiving a description of the location [where] the 

incident occurred, [Sergeant] Byers went to the location, took 

pictures of the outside of the building and went back to [T.A.] to 

ask her if the pictures were of the attack’s location. [T.A.] 

confirmed it was the right location, and she described her 

attacker to Sergeant Byers as a “Hispanic male ... wearing black 

diamond stud earrings.” After [T.A.] confirmed that it was the 

correct location, Sergeant Byers went back to the apartment 

with two search warrants. No one was in the apartment at the 

time. 

While Officer Mee and Sergeant Byers executed the search 

warrant on the apartment, another officer stood in the 

apartment building’s hallway and notified Sergeant Byers and 

Officer Mee that someone was in the hallway. When Sergeant 

Byers went into the hallway, he determined that [he saw]

Appellant[, and identified him as] the suspect and detained him. 

Sergeant Byers took a photograph of [] Appellant at that time, 

who was wearing a black diamond square earring in his right 

ear, which matched [T.A.’s] description of her attacker. 

Appellant told Sergeant Byers that he was the only one in that 

apartment and that he had consensual intercourse with [T.A.].

Then, the Commonwealth called Abigail Young (“Young”) 

to testify. On January 25, 2015, Abigail Young (“Young”) was a 

registered nurse and a sexual assault forensic examiner (also 

known as a “safe nurse”). On that same date, Young conducted 

a sexual assault exam on [T.A.] and wrote a report. In Young’s 

report [], she noted that [T.A.]:

 

statement to police, which stated that she told police that when she arrived 

home, Alex had accused her of cheating on him. Id. at 122. 
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appear[ed] disheveled, wearing a black sweatshirt, 

T-shirt, and maternity jeans, with black shoes. Black 

T-shirt is torn at the left neck. Black bra is torn in 

the middle, and the black tank shoulder straps are 

stretched out. [T.A.’s] eyes are puffy and red; she 

appears to have been crying. Her hair is pulled up 

onto the top of head with a band, and the loose bun 

is clumpy.

Young also testified that she wrote in her report [] that 

there was swelling and a raised area on the right side of [T.A.’s]

face, which was also visible in a picture[.] ... Then, Young 

testified that [T.A.] had the following injuries: bite mark patterns 

on the right side of [T.A.’s] neck ..., abrasions on [T.A.]’s center 

back and lower back, scratch marks on [T.A.’s] neck and mid 

back ..., and bruising inside [T.A.’s] rectum. 

Lastly, Appellant testified during trial. Appellant testified 

that he had consensual vaginal, oral and anal intercourse with 

[T.A.] and that he had also vaginally penetrated [T.A.] with his 

fingers. 

Trial Court Opinion, 5/1/2018, at 3-10 (some quotation marks and footnotes 

omitted). 

Following trial, Appellant was convicted of the aforementioned crimes, 

and on August 24, 2016, the trial court sentenced Appellant to an aggregate 

five to 10 years’ incarceration plus 30 days’ probation. Appellant timely filed

a post-sentence motion, which the trial court denied. Post-Sentence Motion, 

8/31/2016. This appeal followed.2,3 On appeal, Appellant challenges the 

 

2 On September 23, 2016, Appellant timely filed a notice of appeal. On 

November 22, 2016, this Court issued an order dismissing Appellant’s appeal 

for failure to file a docketing statement pursuant to Pa.R.A.P. 3517. On 

September 26, 2017, Appellant pro se filed a petition under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, averring counsel 

had abandoned him and seeking the reinstatement of appellate rights, which 

the PCRA court granted. Order, 1/22/2018. 
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sufficiency and weight of the evidence to sustain his convictions. Appellant’s 

Brief at 4. 

With respect to Appellant’s sufficiency claims, Appellant concedes that 

there was sexual contact between Appellant and T.A. Appellant’s Brief at 12. 

However, he contends that the testimony of the Commonwealth’s witnesses, 

when considered along with his testimony, did not prove beyond a 

reasonable doubt that the sexual contact was not consensual. See id. (“The 

fact that sexual intercourse occurred is insufficient, in and of itself, to 

support convictions for sexual assault and aggravated indecent assault. 

Testimony regarding injuries was provided by both [T.A.] and [Young]; 

however, the cause of the injuries were [sic] less clear due to the testimony 

of Appellant that [T.A.] left his apartment after their encounter without 

injury and the evidence regarding [T.A.’s] boyfriend and his aggressive 

response to her late night arrival.”). 

Our standard of review in challenges to the sufficiency of the evidence 

is to determine

whether, viewing all the evidence admitted at trial in the light 

most favorable to the [Commonwealth as 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 

 

3 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015) 

(citation omitted). 

A person commits sexual assault “when that person engages in sexual 

intercourse or deviate sexual intercourse with a complainant without the 

complainant’s consent.” 18 Pa.C.S. § 3124.1. “[A] person who engages in 

penetration, however slight, of the genitals or anus of a complainant with a 

part of the person’s body for any purpose other than good faith medical, 

hygienic or law enforcement procedures commits aggravated indecent 

assault if[,]” inter alia, “the person does so without the complainant’s 

consent[.]” 18 Pa.C.S. § 3125(a)(1). “[A] person is guilty of assault if he:[] 

attempts to cause or intentionally, knowingly or recklessly causes bodily 

injury to another[.]” 18 Pa.C.S. § 2701(a)(1).

At trial, T.A. testified that Appellant penetrated her vaginally, orally, 

and anally with his penis and fingers without her consent. N.T., 5/9/2016, 

at 91, 93, 95. Specifically, T.A. testified that she attempted to fight 

Appellant off of her, move away from him, and told him “no” several times,

in two different languages, all to no avail. Id. at 88, 90-92. T.A. testified 

that throughout this encounter Appellant pulled her hair, hit her in the head 

multiple times, and forced himself upon her. Id. at 94, 118. This testimony 
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alone is sufficient to sustain Appellant’s convictions for sexual assault, 

aggravated indecent assault and simple assault. See Commonwealth v. 

Charlton, 902 A.2d 554, 562 (Pa. Super. 2006) (“This Court has longrecognized that the uncorroborated testimony of a sexual assault victim, if 

believed by the trier of fact, is sufficient to convict a defendant, despite 

contrary evidence from defense witnesses. If the factfinder reasonably could 

have determined from the evidence adduced that all of the necessary 

elements of the crime were established, then that evidence will be deemed 

sufficient to support the verdict.”) (internal quotation marks and citations 

omitted). It was within the province of the jury, as fact-finder, to believe

T.A.’s testimony that Appellant attacked, injured and sexually assaulted her,

and discredit the testimony of Appellant that the encounter was consensual 

and T.A. left Appellant’s apartment unharmed. See Commonwealth v. 

Miller, 172 A.3d 632, 642 (Pa. Super. 2017) (“Resolving contradictory 

testimony and questions of credibility are matters for the finder of fact.”). 

In light of the foregoing, Appellant’s sufficiency claims fail. 

We now turn to Appellant’s weight-of-the-evidence issue. In support 

of his weight claim, Appellant avers “the jury gave inappropriate weight to 

[T.A.’s] testimony.” Appellant’s Brief at 15. Specifically, Appellant (1) 

attacks the veracity of T.A.’s testimony; (2) claims “T.A’s altercation with 

her boyfriend upon her return home” called into question her testimony 
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concerning her injuries; and (3) argues that the jury did not give adequate 

consideration to Appellant’s testimony and version of events. Id. at 13-15. 

Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question of whether 

the verdict is against the weight of the evidence. Because the 

trial judge has had the opportunity to hear and see the evidence 

presented, an appellate court will give the gravest consideration 

to the findings and reasons advanced by the trial judge when 

reviewing a trial court’s determination that the verdict is against 

the weight of the evidence. One of the least assailable reasons 

for granting or denying a new trial is the lower court’s conviction 

that the verdict was or was not against the weight of the 

evidence and that a new trial should be granted in the interest of 

justice. 

However, the exercise of discretion by the trial court in 

granting or denying a motion for a new trial based on a 

challenge to the weight of the evidence is not unfettered. The 

propriety of the exercise of discretion in such an instance may be 

assessed by the appellate process when it is apparent that there 

was an abuse of that discretion. 

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal 

citations omitted). See also Commonwealth v. Britton, 134 A.3d 83, 86 

(Pa. Super. 2016) (“The trier 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.”) (citation omitted). “A motion alleging the 

verdict was against the weight of the evidence should not be granted where

it merely identifies contradictory evidence presented by the Commonwealth

and the defendant.” Commonwealth v. Chamberlain, 30 A.3d 381, 396 

(Pa. 2011).
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As the trial court correctly observed, it is within the province of the 

jury, sitting as fact-finder, to review the evidence and assess the credibility 

of the testifying witnesses. See Trial Court Opinion, 5/1/2018, at 18

(finding Appellant’s weight-of-the-evidence claim without merit because “the 

evidence was sufficient to support the convictions, and there is no 

reasonable argument that the jury mis-weighed the evidence. It was within 

the jury’s discretion whether to find the testimony of the witnesses 

credible.”). See also Commonwealth v. Williams, 854 A.2d 440, 445 

(Pa. 2004) (“In criminal proceedings, the credibility of witnesses and weight

of evidence are determinations that lie solely with the trier of fact.”).

In reviewing the issue before us, we reiterate that “[a]ppellate review 

of a weight claim is a review of the exercise of discretion, not of the 

underlying question of whether the verdict is against the weight of the 

evidence.” Widmer, 744 A.2d at 753.

The term ‘discretion’ imports the exercise of judgment, wisdom 

and skill so as to reach a dispassionate conclusion, within the 

framework of the law, and is not exercised for the purpose of 

giving effect to the will of the judge. Discretion must be 

exercised on the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary actions. Discretion is 

abused when the course pursued represents not merely an error

of judgment, but where the judgment is manifestly unreasonable 

or where the law is not applied or where the record shows that 

the action is a result of partiality, prejudice, bias or ill will.

Id. (citation omitted).

With this in mind, upon review of the record, we discern no abuse of 

discretion in the trial court’s determination. Appellant has not alleged, and 
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we do not conclude, that the trial court acted unreasonably, or displayed 

prejudice, bias, or ill-will when dismissing Appellant’s weight claim. No relief 

is due.

Accordingly, after a review of the briefs, record, and applicable case 

law, we are not persuaded that Appellant’s issues warrant relief from this 

Court. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/28/2019