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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.

JAVIER GODOY

- RICO ,

Appellant :
:
:
:
:
:
:
:
: 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 STRAS SBURGER, J.: FILED JUNE 28, 2019

Javier Godoy

- Rico (Appellant) appeals nunc pro tunc from the

judgment of sentence imposed following his conviction s for sexual assault,

aggravated indecent assault , and simple assault. Upon review, w e affirm.

In April 2015, a criminal compla int was filed against Appellant,

charging him with, inter alia , the abovementioned crim es. 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 prese nted

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. []J

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Appellant, Rivera, and [T.A.] stayed until c losing, 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 apa rtment, 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 c ell phone from Hanover Borough Police following and related to the incid ent. 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 “t here were six missed calls on [ Ap pellant’ 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 he r nervous. Then, she asked [] where the bathroom was, and Appe llant 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. Whe n 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] force fully when [ she] was trying t o 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.”J

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During this, [T.A.] tried to punch and scratch Appellant, despite not having [long] f ingernails. 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 fightin g 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 bac k, [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 t o 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 incide nt, [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 late r.” [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.” W h en [T.A.] arrived home, she tried to use her boyfriend ’s cell phone to call the p olice, 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’sJ

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- After [T.A.] testified, the Commonwealth called Sergeant Jason Byers (“Sergeant Byers” ) and Officer Christine Mee (“O fficer 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, b ut kind of m essed up. She just looked like she had been crying. Her eyes w ere 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 ri ght 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 st ood in the apartment building’s hallway and notified Sergeant Byers and Officer Mee that someone was in the hallway. W hen Sergeant Byers went into the hallway, he determined that [he saw] Appellant [, and identified him as] the suspect and detained him. Sergean t Byers took a photograph of [] Appellant at that time, who was wearing a black diamond square earring in his rig ht 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 h im. Id. at 122.J

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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 ar e 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 pict ure[.]

... Then, Young testified that [T.A.] had the following injuries: bite mark patter ns 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 testifi ed that he had consensual vaginal, oral and anal intercourse with [T.A.] and that he had also vaginally penetrated [T.A.] with his fingers

.

T rial Court Opinion, 5/1/2018, at 3

- 10 (some quotation marks and footnotes

omitted).

F ollowing trial, Appellant was convicted of the aforementioned crimes,

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

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

a post

- sentence motion , which the trial court denied

. Post

- Sentence Motion,

8/31/2016. T his 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, 2 017, 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.J

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sufficiency and weight of the evi dence to sust ain his convictions

. Appellant’s

Brief at 4

. With respect to Appellant’s sufficiency c laims , 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 Commonwea lth’s witnesses,

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

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

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

support convictions fo r s exual a ssault and aggravated indecent a ssault.

Testimony regarding injuries was provided by both [T.A.] and [Young] ;
however, the cause of the injuries were [ sic ] less clear due to the te stimony

of Appellant that [T.A.] left his apartment after their en counter 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 admi tted 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 e vidence 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 App ellant and the trial cou rt complied with Pa.R.A.P. 1925.J

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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 doub t 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 complai nant without the

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

penetration, however slight, of the genitals or anus of a compla inant 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 wi thout 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 r eck lessly causes bodily

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

At trial, T.A. testified that Appellant penetrated her vag inally, 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 throu ghout this encounter Appellant p ulled her hair, hit her in the head

multiple times , and forced himself upon her. Id. at 94, 118. This testimonyJ

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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 long

recognized 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 fac tfinder 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

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

omitted). I t was within the province o f the jury, as fact

- finder, to believe

T.A.’s testi mony that Appellant attacked, injured and sexually assaulted her ,
and discred it the testimony of Appellant that the en counter was consensual

and T.A. left Appellant’s apartment u nharmed

. 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 hi s 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 testimonyJ

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concerning her injuries; and (3) argues th at th e jury did not gi ve 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 present ed, 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

w as an abuse of that discretion.

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

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

(Pa. Super. 2016) (“T he trier of fact while passing upon the credibility of

witnesses a nd 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 eviden ce presented by the Commonwealth

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

(Pa. 2011).J

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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 cred ibility

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 jur y 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 s olely 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 v erdict 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 purpo se 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, prejudi ce, bias or ill will.

Id. (citation omitted).

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

discretion in the trial court’s determination. Appellant has not alleged, andJ

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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