J-S31004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM FRANKLIN MITCHELL,

Appellant No. 1734 MDA 2014

Appeal from the Judgment of Sentence Entered May 29, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0003085-2013

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 26, 2015

William Franklin Mitchell (Appellant) appeals from the May 29, 2014 

judgment of sentence of an aggregate term of 4 to 8 years’ incarceration 

after being found guilty at a bench trial of sexual assault1and corruption of 

minors.2 Appellant now challenges the sufficiency and weight of the 

evidence supporting his convictions and the trial court’s discretion in the 

exclusion of certain evidence. After careful review, we affirm the judgement 

of sentence.

The trial court set forth a factual summary of this matter as follows:

On the morning of May 1, 2013, [Appellant] exchanged 

messages with S.R. [the victim], with whom he was friends, and 

____________________________________________

1 18 Pa.C.S. § 3124.1.

2 18 Pa.C.S. § 6301(a)(1)(ii).
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urged her to leave school to hang out with him, drink alcohol 

and smoke marijuana. S.R. agreed to leave school early and 

met [Appellant] at a bridge near the school. Before they met, 

[Appellant] asked S.R., “You are coming by yourself, right? Not 

with nobody else?” S.R. did not know they were going to Mr. 

Rivera’s [Appellant’s Co-Defendant at trial] home or that they 

would be renting a motel room.

[Appellant] and S.R. walked to Mr. Rivera’s home, where 

they started drinking alcohol and smoking marijuana. S.R. 

stated she drank approximately half a bottle of brandy and was 

intoxicated. At one point, [Appellant] left Mr. Rivera’s residence 

to get more alcohol, leaving S.R. alone with Mr. Rivera. Mr. 

Rivera began pressuring S.R. for oral sex, which made her feel 

uncomfortable, and she sent a message to [Appellant] telling 

him that Mr. Rivera was “creeping [her] out.” [Appellant] 

replied, promising her he would take care of it.

When [Appellant] returned to Mr. Rivera’s house, S.R. and 

Mr. Rivera left. Mr. Rivera purchased Xanax pills and rented a 

room at the Ephrata Motel, where S.R. thought they were going 

to drink. S.R. took some Xanax pills and was feeling intoxicated 

as a result of the alcohol, marijuana and Xanax. S.R. testified 

that while in the motel room, Mr. Rivera assaulted her, engaging 

in anal intercourse without her consent. As a result, she was 

physically hurt, bleeding and had fecal matter coming out of her. 

S.R. went into the small shower to clean up, and Mr. Rivera 

assaulted her again in the shower by forcing her to have oral 

intercourse with him.

S.R. was seated on the floor in the corner of the shower 

with her head down when [Appellant] entered the bathroom. 

She testified that [Appellant] “forced [her] to do the same thing 

[have oral sex with him]” and engaged in anal intercourse with 

her. She testified that she was in pain and felt betrayed, 

powerless and used since she “was blocked in the shower with 

nowhere to go,” and that she did not tell [Appellant] to stop 

because “at that point [she] had given up.”

S.R. left the bathroom to get her clothes, returned to the 

bathroom to get dressed and then returned to the room and sat 

on the bed, where Mr. Rivera assaulted her a third time. S.R. 

got dressed again and [Appellant] came back into the motel 

room with a third man, who tried to remove her clothing. When 
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the third man attempted to remove her clothing, S.R. resisted 

and left the motel room.

During the course of the incident, S.R. had been sending 

text messages to Joseph Klepchick telling him what was 

happening. Mr. Klepchick met S.R. across the street after she 

left the motel room. When S.R. met Mr. Klepchick, she was 

crying and screaming at [Appellant] to get away from her. 

[Appellant], who was walking about 10 feet behind S.R., told Mr. 

Klepchick that “he wasn’t going to go down for this. He wasn’t 

going to go down for rape.” The next day, [Appellant] sent a 

text message to S.R. and apologized to her, stating “I didn’t 

think it would go down the way it did.”

On cross-examination, S.R. admitted she voluntarily left 

school on May 1, 2013, to drink with [Appellant], and that she 

was not forced or threatened to drink, smoke marijuana, or 

consume Xanax.

On May 2, 2013, after the incident was reported, police 

took photographs of the motel room and collected evidence, 

including the towels and bed linens. The shower in the motel 

bathroom was approximately three feet by three feet, but the 

entrance was partially blocked by the bathroom sink which 

protruded 17 inches from the wall. Blood and fecal matter were 

found on towels and S.R.’s jeans.

On the same date, Kyle Wojiechowski, R.N., performed a 

SAFE3examination of S.R. at Lancaster General Hospital. He 

documented several injuries to her anal and genital regions 

consistent with her description of the assaults.

3 During a SAFE examination, a trained nurse examines 

and collects evidence from a person who reports being 

sexually assaulted.

[Appellant] was interviewed by the Ephrata Borough police 

on May 7, 2013, May 21, 2013, and June 6, 2013. The audio 

recordings of these interviews were admitted into evidence and 

played during the course of the trial. During these interviews, 

[Appellant] admitted that he and Mr. Rivera plied S.R. with 

alcohol, marijuana and Xanax, and it was obvious that S.R. was 

intoxicated. [Appellant] also told the police he knew that Mr. 

Rivera had raped S.R., and that [Appellant] saw blood and fecal 

matter coming out of S.R. Despite this, he engaged in oral and 

anal sex with her while she was in the shower.
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Trial Court Opinion (T.C.O.), at 7-10.

On March 6, 2014, at the conclusion of a bench trial, Appellant was 

found guilty and sentenced as stated above. He was found not guilty on the 

remaining eight counts against him.3 Appellant filed a timely notice of 

appeal and complied with the trial court’s order to file a Pa.R.A.P. 1925(b) 

statement. The trial court issued its Rule 1925(a) opinion on December 1, 

2014. Appellant now presents the following issues for our review:

I. Was the evidence presented at trial insufficient to find 

Appellant guilty of the crimes of sexual assault and 

corruption of minors, a felony of the third degree where 

the victim gave no indication the sexual contact was not 

wanted and the Commonwealth established no course of 

conduct in violation of Chapter 31 (relating to sexual 

offenses)?

II. Alternatively, was the trial court’s finding that Appellant 

was guilty beyond a reasonable doubt of the crimes of 

sexual assault and corruption of minors against the weight 

of the evidence?

III. Did the court abuse its discretion by denying Appellant the 

ability to cross-examine the victim regarding her use of 

alcohol and Xanax together only four days after the 

incident in question?

____________________________________________

3 Appellant was charged with two counts of involuntary deviate sexual 

intercourse by forcible compulsion, 18 Pa.C.S. § 3123(a)(1); two counts of 

involuntary deviate sexual intercourse by threat of forcible compulsion, 18 

Pa.C.S. § 3123(a)(2); one count of rape by forcible compulsion, 18 Pa.C.S. § 

3121(a)(1); one count of rape by threat of forcible compulsion, 18 Pa.C.S. § 

3121(a)(2); one count of sexual assault, 18 Pa.C.S. § 3124.1; one count of 

corruption of minors, 18 Pa.C.S. § 6301(a)(1)(ii); one count of unlawful 

contact with a minor, 18 Pa.C.S. § 6318(a)(1); and one count of criminal 

conspiracy, 18 Pa.C.S. § 903.
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Appellant’s Brief, at 4.

Sufficiency of the Evidence

Appellant presents a sufficiency argument for each of the two offenses 

which we shall address in turn. For the offense of sexual assault, Appellant 

contends that both the consent and mens rea elements were insufficiently 

established. Appellant also challenges the definition of the term “course of 

conduct” as it applies to corruption of minors.

We review Appellant’s challenge to the sufficiency of the evidence 

under the following, well-settled standard of review:

A claim challenging the sufficiency of the evidence is a question 

of law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a 

reasonable doubt. Where the evidence offered to support the 

verdict is in contradiction to the physical facts, in contravention 

to human experience and the laws of nature, then the evidence 

is insufficient as a matter of law. When reviewing a sufficiency 

claim the court is required to view the evidence in the light most 

favorable to the verdict winner giving the prosecution the benefit 

of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal 

citations omitted).

Sexual Assault

The offense of sexual assault is defined in 18 Pa.C.S. § 3124.1, which 

provides that, “a person commits a felony of the second degree when that 

person engages in sexual intercourse or deviate sexual intercourse with a 

complainant without the complainant's consent.” The Commonwealth, 
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therefore, was required to prove that Appellant had sexual intercourse with 

S.R., that S.R. did not consent, and that Appellant acted intentionally, 

knowingly or recklessly concerning S.R.’s lack of consent.4 That Appellant 

and victim had sexual intercourse is not in dispute.

Consent

As to the element of consent, Appellant argues that no fact-finder 

could reasonably have determined that the victim did not consent, given the 

following version of events:

Not only was there insufficient evidence to find beyond a 

reasonable doubt that S.R. did not consent to intercourse with 

Appellant, while not required, there is sufficient evidence to find 

that S.R. did consent [emphasis in original]. She voluntarily 

went to a hotel room. She went into the manager’s office to 

assist in the rental. She said nothing to the hotel manager. She 

voluntarily took off her own clothing. She engaged in sex with 

Mr. Rivera without objection, verbal or physical. She went to the 

shower and did the same. Appellant entered the shower and the 

two engaged in oral and anal intercourse, all without any 

objection. She never said to stop, she did not scream in pain, 

she never said no, she never tried to get away, she did not resist 

physically. Appellant made no threats toward her. Appellant 

used no physical force. Once outside the bathroom, and not 

“blocked in”, as the Commonwealth claims, she did not leave. 

S.R.’s first “nonconsent” came when a third man entered the 

room. She immediately said no, pushed him away, and left. It 

does not mesh to believe that five minutes earlier, when in 

control of her thoughts, S.R. makes no verbal or physical sign of 

nonconsent, but shortly thereafter shows her first sign of 

____________________________________________

4 See 18 Pa.C.S. § 302(a), which provides that mens rea must be 

established with respect to each material element of the offense. See also

18 Pa.C.S. 302(c) (stating that when a statute remains silent as to the 

degree of culpability required, such element is established if a person acts 

intentionally, knowingly, or recklessly).
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nonconsent and the event ceases. Likewise, to find S.R. “gave 

up” while with Appellant, would be to say that she had expressed 

some resistance or denial earlier.

Appellant’s Brief, at 15.

This Court has construed silence, without more to suggest otherwise, 

as evidence of consent. “In rape prosecutions, evidence of the [alleged 

victim] should be carefully considered in determining whether she 

consented, and ordinarily proof of failure to make an outcry, offer resistance 

and complain tends to show consent.” Commonwealth v. Goodman, 126 

A.2d 763, 765-66 (Pa. Super. 1956). Appellant asserts, “find[ing] that 

sufficient evidence supported the trial court’s verdict would be to find that 

any person, after any regrettable sexual encounter, could have her 

counterpart convicted of sexual assault if she later decided that act was 

unwanted.” Appellant’s Brief, at 16.

However, the victim’s silence in this case was not the only evidence 

related to consent. This Court has long held that the uncorroborated 

testimony of a sexual assault victim is sufficient to convict a defendant. 

Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006) 

(citation omitted). Additionally, the fact-finder was free to rely entirely on 

the victim’s characterization of the events when she said that she was 

“forced,” indicating a lack of consent. Commonwealth v. Adrulewicz, 911 

A.2d 162, 166 (Pa. Super. 2006). Equally important, it is not requisite that 
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a victim actively resist in order for there to be a lack of consent. 18 Pa.C.S. 

§ 3107.5 Finally, the victim provided the following version of events:

Q: When you say you had fecal matter coming out of you, can 

you tell me - - strike that. You stated you had gone into the 

shower. Can you tell me what happened next?

A: After I was in the shower for a little bit, then [CoDefendant] came in and he forced me to have oral sex with him.

Q: After that happened with [Co-Defendant], can you tell me 

then what happened next?

A: I was sitting in the corner of the shower with my head 

down and then [Appellant] came in.

Q: And what happened after [Appellant] came in?

A: He forced me to do the same thing.

Q: When you say, he forced me to do the same thing, what 

do you mean?

A: Oral sex.

Q: Then what happened?

A: And then I got up, he turned me around then had anal sex 

with me.

N.T., at 24-26.

S.R. provided more than just an attestation at trial that she did not 

consent. When viewed in the light most favorable to the verdict winner, the 

evidence shows that, after Co-Defendant sexually assaulted her, the victim 

____________________________________________

5 See 18 Pa.C.S. § 3107, which provides as follows: “The alleged victim 

need not resist the actor in prosecutions under this chapter: Provided, 

however, that nothing in this section shall be construed to prohibit a 

defendant from introducing evidence that the alleged victim consented to 

the conduct in question.”
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retreated to the shower to clean herself of blood and excrement. After CoDefendant sexually assaulted her a second time, Appellant entered the 

bathroom and “forced” himself upon her twice. It is reasonable to infer from 

the testimony that the victim’s silence was not due to active participation. 

Accordingly, we find the evidence sufficient to support the finding of lack of 

consent.

Mens Rea

Appellant further contends that there was insufficient evidence of the 

mens rea element. The Commonwealth was required to prove that Appellant 

acted intentionally, knowingly or recklessly concerning S.R.’s lack of 

consent. Appellant argues that, “[e]ven if found there was sufficient 

evidence to find that S.R. did not consent, it is clear from the preceding 

recitation of facts that Appellant received no sign, signal, or indication, 

verbal, or physical, of her nonconsent.” Appellant’s Brief, at 16.

We recognize that sexual assault contemplates a form of rape where 

force is not a factor.6 To establish the requisite intent, the Commonwealth 

does not need to show force or affirmative resistance; rather, evidence that 

____________________________________________

6 18 Pa.C.S. § 3124.1 is a newly enacted statute, which was drafted in 

response to the Pennsylvania Supreme Court’s decision in Commonwealth 

v. Berkowitz, 641 A.2d 1161 (Pa. 1994). The statute is intended to fill the 

loophole left by the rape and involuntary deviate sexual intercourse statues 

by criminalizing non-consensual sex where the perpetrator employs little or 

no force. Commonwealth v. Pasley, 743 A.2d 521, 523 n.3 (Pa. Super. 

1999).
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Appellant disregarded a substantial risk that the victim did not consent to 

the sexual activities is sufficient.7 With regard to this element, the trial court 

found as follows:

Despite knowing S.R. was extremely intoxicated and having seen 

the blood stain on the bed and the blood and fecal matter 

coming out of her body, [Appellant] nonetheless engaged in oral 

and anal intercourse with S.R. without her consent. S.R. was 

huddled on the floor in the corner of the three foot square 

shower stall when [Appellant] entered the shower, and she was 

blocked in the shower by the sink and by [Appellant]. S.R. 

explained she did not resist [Appellant] because she had “given 

up” after what had occurred with [Co-Defendant]. She also 

testified how she was in pain and felt betrayed and used by 

[Appellant].

T.C.O., at 10-11.

As summarized by the trial court, when viewed in the light most 

favorable to the verdict winner, the evidence establishes sufficient support 

for the fact-finder to infer that Appellant disregarded the substantial risk that 

the victim did not consent. Accordingly, we find the evidence sufficient to 

support the verdict.

Corruption of Minors

____________________________________________

7

“A person acts recklessly with respect to a material element of an offense 

when he consciously disregards a substantial and unjustifiable risk that the 

material element exists or will result from his conduct. The risk must be of 

such a nature and degree that, considering the nature and intent of the 

actor's conduct and the circumstances known to him, its disregard involves a 

gross deviation from the standard of conduct that a reasonable person would 

observe in the actor's situation.” 18 Pa.C.S. § 302(b)(3).
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Appellant also contends that the evidence does not sufficiently prove 

corruption of minors.8 The essence of Appellant’s argument is that the 

necessary element, “course of conduct,” requires multiple actions, and that 

the sexual assault at issue is singular in action.9

In his brief, Appellant posits the following argument to support his 

contention:

A course of conduct is a “pattern of actions composed of more 

than one act over a period of time, however short, evidencing a 

continuity of conduct.” 18 Pa.C.S. § 2709(f). As discussed at 

length in Commonwealth v. Kelly, 102 A.3d 1025 (Pa. Super. 

2014), the term course of conduct requires multiple acts over 

time in violation of Chapter 31. In Kelly the defendant touched 

the genital of a minor while he bathed the minor. The Superior 

Court found this evidence to be insufficient to find defendant 

guilty beyond a reasonable doubt.

Appellant engaged in one sexual encounter with S.R. in violation 

of Chapter 31. The encounter took place in the bathroom of the 

Ephrata Motel and lasted approximately 5-10 minutes. There 

was no evidence presented that suggested Appellant had 

encouraged S.R. to engage in any other sexual acts with Mr. 

Rivera. Conversely, the evidence established that Appellant was 

not around when the motel room was rented, did not provide 

____________________________________________

8 The elements of the offense are: first, that the defendant was eighteen 

years old or older at the time of the crime; second, that the minor victim 

was under eighteen years of age at the time of the crime; and third, that the 

defendant corrupted or tended to corrupt the morals of the minor by 

engaging in a course of conduct in violation of Chapter 31. 18 Pa.C.S. § 

6301(a)(1)(ii).

9 Appellant also argues that this offense must fail because it is contingent 

upon a Chapter 31 violation which he avers was deficient. Because we find 

sexual assault sufficiently proven, the argument that insufficiency of sexual 

assault is tantamount to insufficiency of the corruption charge as well is 

moot.
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S.R. with any Xanax, and was not in the room for S.R.’s sexual 

interactions with Mr. Rivera.

Appellant’s Brief, at 17-18 (citations to the record omitted).

In response, the Commonwealth points out that the Kelly court 

allowed that the acts constituting a “course of conduct” may occur over a 

short time span. Appellee’s Brief, at 26. Instead of constituting one 

continuous act, the Commonwealth argues that the forced oral sex and 

subsequent anal sex should constitute separate actions. Id., at 27.

To distinguish the case at bar from Kelly, we agree with the 

Commonwealth that Appellant engaged in two distinct acts of sexual 

assault.10 Forcing S.R. to have oral sex with him constituted the first sexual 

assault. Forcing her to have anal sex with him, however short the time 

between the acts may have been, constituted a distinct, second sexual 

assault. That alone is enough to satisfy the “course of conduct” element of 

the offense. In addition, when viewed in the light most favorable to the 

verdict winner, the record provides that Appellant encouraged the victim to 

____________________________________________

10 It was not requisite for Appellant to have been charged separately for 

each act in order for the fact-finder to determine that distinct Chapter 31 

offenses had occurred. “Inconsistent verdicts, while often perplexing, are 

not considered mistakes and do not constitute a basis for reversal. Rather, 

the rationale for allowing inconsistent verdicts is that it is the [fact-finder]'s 

sole prerogative to decide on which counts to convict in order to provide a 

defendant with sufficient punishment.” Commonwealth v. Stokes, 38 

A.3d 846, 855 (Pa. Super. 2011) (citations omitted). “Thus, this Court will 

not disturb guilty verdicts on the basis of apparent inconsistencies as long as 

there is sufficient evidence to support the verdict.” Commonwealth v. 

Petteway, 847 A.2d 713, 718 (Pa. Super. 2004).
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leave school, drink alcohol, and smoke marijuana, which culminated in 

violations by both Co-Defendant and Appellant against the victim. The 

evidence thus sufficiently allows the trial court to adduce that Appellant 

aided, abetted, enticed, or encouraged multiple violations of Chapter 31. 

The element is therefore satisfied under either interpretation of Kelly. 

Accordingly, we find the evidence sufficient to support the corruption of 

minors verdict.

Weight of the Evidence

Appellant challenges the weight of the evidence regarding the two 

offenses. He avers that the trial court must have established the element of 

lack of consent from the testimony of the SAFE nurse and the victim’s friend, 

Joseph Klepchick, in direct contradiction to the testimony of the victim 

herself. The SAFE nurse testified that the victim’s anal and genital regions 

had sustained injuries consistent with her description. Mr. Klepchick testified 

that Appellant had said, “He was not going down for rape.” It is Appellant’s 

theory that this testimony goes impermissibly against the testimony of the 

victim, that she specifically did not express lack of consent.

We review Appellant’s challenge to the weight of the evidence 

according to the following standards:

The weight of the evidence is exclusively for the finder of fact 

who is free to believe all, part, or none of the evidence and to 

determine the credibility of the witnesses. An appellate court 

cannot substitute its judgment for that of the finder of fact. 

Thus, we may only reverse the lower court's verdict if it is so 

contrary to the evidence as to shock one's sense of justice. 

Moreover, where the trial court has ruled on the weight claim 
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below, an appellate court's role is not to consider the underlying 

question of whether the verdict is against the weight of the 

evidence. Rather, appellate review is limited to whether the trial 

court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations 

omitted).

“An abuse of discretion is not merely an error of judgment, 

but if in reaching a conclusion the law is overridden or 

misapplied, or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or illwill, as shown by the evidence or the record, discretion is 

abused.”

Commonwealth v. Stollar, 84 A.3d 635, 650 (Pa. 2014) (citations 

omitted).

As noted above, the uncorroborated testimony of the victim is 

sufficient to convict. Charlton, 902 A.2d at 562. Further, the fact-finder 

was free to believe the victim independent of any other witnesses. 

Andrulewicz, 911 A.2d at 166. Additionally, the victim did not have to 

express her lack of consent. 18 Pa.C.S. § 3107. Upon review of the record, 

we do not find the SAFE nurse or Mr. Klepchick contradicted the victim’s 

testimony. Therefore, in order for us to conclude that the verdict was 

against the weight of the evidence, the trial court’s decision must have been 

due to partiality or prejudice.

The verdict reveals no such abuse of discretion. To the contrary, 

finding Appellant not guilty of the other offenses signals a distinct lack of 

bias. Appellant was charged with rape by forcible compulsion, which 

requires a finding of force. The lesser included offense, sexual assault, 
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requires no such showing. Because the trial court interpreted the “force” 

that the victim testified to as connoting a lack of consent rather than 

denoting a use of force, Appellant was found guilty only of the lesser 

included offense. This use of discretion by the trial court compels us to 

conclude that it actively considered the evidence presented and rendered its 

judgment impartially. Accordingly, we find the trial court did not err in 

concluding that the verdict was not against the weight of the evidence.

Exclusion of Evidence

Appellant contends that the trial court committed an abuse of 

discretion by not allowing him to question the victim as to her use of alcohol 

and Xanax a few days after the event at issue. He argues that this evidence 

was important in showing that she had a history of alcohol and drug use and 

that the use of the intoxicants days after the incident supports the 

proposition that she consented to the acts. Appellant is referencing the 

following relevancy objection sustained during trial:

Q. [Defense Counsel]: In fact, do you recall three days after 

this incident that - -

[Assistant District Attorney]: Objection, Your Honor. Relevance 

as to the time and date of the offense.

[The Court]: Your response []?

[Defense Counsel]: A big part of the Commonwealth’s case is 

going to be that she was drugged and drinking alcohol. And 

especially the use of alcohol with Xanax together, I think it’s 

important to establish this wasn’t the first time she drank and 

she knows what the effects of this are.

[The Court]: Does this incident afterwards involve 

your client or this other individual []?
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[Defense Counsel]: No, it doesn’t. It is a text message.

[The Court]: To whom?

[Defense Counsel]: To neither [Appellant] or [CoDefendant].

[The Court]: You can ask her about her experience 

mixing these various substances, but what happened with other 

people I don’t see the relevance of that, especially if it is after 

the events in question.

[Defense Counsel]: Okay, Your Honor.

[The Court]: The objection is sustained.

N.T., 3/4/14, at 32-33.

We apply the following standard of review: “Questions of the 

admission and exclusion of evidence are within the sound discretion of the 

trial court and will not be reversed on appeal absent an abuse of discretion.” 

Commonwealth v. Kendricks, 30 A.3d 499, 503 (Pa. Super. 2011) 

(citation omitted). “An abuse of discretion is not merely an error of 

judgment, but the misapplication or overriding of the law or the exercise of a 

manifestly unreasonable judgment based upon partiality, prejudice or ill 

will.” Commonwealth v. Charleston, 16 A.3d 505, 526 (Pa. Super. 2011) 

(citation omitted).

Evidence is relevant if it has any tendency to make a fact more of less 

probable than it would be without the evidence; and, the fact is of 

consequence in determining the action. Pa.R.E. 401.

First, the trial court did allow questioning of the victim regarding her 

prior use of alcohol and Xanax. The evidence of her subsequent use does 
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not tend to make that fact more or less probable. Second, although 

Appellant argues that this evidence goes to support the theory that the 

victim was fabricating the lack of consent, there is nothing in the record 

which leads us to conclude that this evidence would further that line of 

inquiry. Finally, we note that the voluntariness of the victim’s intoxication is 

not material to the case at bar. Consequently, we find that the trial court 

did not abuse its discretion in excluding the evidence of intoxication after the 

incident.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence AFFIRMED.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/2015