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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRANDON ANTHONY WARRINGTON

Appellant : No. 1925 MDA 2018

Appeal from the Judgment of Sentence Entered August 21, 2018

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0005154-2015

BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED JULY 12, 2019

Brandon Anthony Warrington appeals from the judgment of sentence

imposed on August 21, 2018, in the Court of Common Pleas of Dauphin

County. The trial court sentenced Warrington to an aggregate term of two

and one-half to five years' imprisonment, followed by nine years' probation,

after he was convicted by a jury of statutory sexual assault, aggravated

indecent assault (two counts), indecent assault (two counts), unlawful contact

with a minor, and corruption of minors.' On appeal, Warrington argues the

verdict was against the weight of the evidence. For the reasons discussed

below, we affirm.

' 18 Pa.C.S.A. §§ 3122.1, 3125(a)(1) and (8), 3126(a)(1) and (8), 6318, and

6301(a)(1)(ii), respectively.
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The trial court summarized the facts underlying Warrington's conviction

as follows:

On August 5, 2015, the victim, [], went to the Hummelstown

Carnival with a few friends. The victim had met Mr. Warrington

through her friend []. On the date of the incident, the victim had

gone to her brother's home so that she could be picked up by []

Warrington and driven to the carnival. On their way to the

carnival, [] Warrington and [the victim] [went] to pick up their

mutual friend [], and two others [ ].

When the group of them arrive[d] at the carnival, they walk[ed]

around for a short time. [] Warrington ask[ed] [the victim] if she

wanted to spend some time together privately, and she agree[d].

They [left] the carnival in [] Warrington's car, and dr[o]ve around

for approximately thirty minutes. Eventually, he stop[ped] at a

local church that is surrounded by a wooded area with a nature

trail. The two of them exit[ed] the vehicle and beg[a]n to walk

the nature trail. At some point as they [were] walking the trail,

they happen[ed] upon a clearing and stop[ped] to continue the

conversation they [were] having. During their time in the

clearing, [the victim]'s friend [] call[ed] her to ask where she and

[] Warrington had gone. After [the victim]'s and [her friend's]

conversation end[ed], she tosse[d] her phone to the side. As [the

victim]'s testimony described, the next thing she remembered

was being pushed to the ground. As she [was] lying face up on

the ground, [] Warrington position[ed] himself over the top of the

victim's body by placing his hands on her chest. Unable to get out

from underneath [] Warrington, [the victim] beg[a]n to scratch at

his arms in an attempt to get out of the position. He then

proceed[ed] by removing her clothing. He penetrate[d] her

digitally, perform[ed] oral sex on her, and then proceed[ed] to

have intercourse with her. During this, she [told] him no

approximately five to six times, and at no point d [id] he stop. As

per [the victim]'s testimony, she stop[ped] struggling at some

point because she realized that she wasn't going to be able to stop

what was happening to her. After, [the victim] testified that she

remembered going back to the carnival with [] Warrington but was

unable to recall the details of how they got back to his car or when

she put her clothes back on.

Upon arriving back at the carnival, [the victim] explain[ed] to her

friend [] what had happened between her and [] Warrington.

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Others described [the victim] as being visibly upset when she and

[] Warrington came back. That evening after arriving at her

home, [the victim] also testified to telling her brother what had

happened with [] Warrington. In [the victim]'s words, she did not

report what had happened because she felt that no one would

believe her. [the victim] also t[old] [another] friend [] what had

happened between her and [] Warrington. It [was] not until [this

friend] contact[ed] one of [the victim]'s mother's friends that [the

victim]'s parents f[ound] out what had happened. [The victim]'s

parents t[ook] her to Good Samaritan Hospital and there she

[met] with a [Sexual Assault Forensics Examiner(SAFE)] nurse

and the nurse conduct[ed] an examination on her. That evening,

she [was] also interviewed by police. During that interview, it was

revealed that [the victim] was only fifteen years old, and []

Warrington was twenty-two.

When [the victim] was examined by Ms. Houser, the SAFE Nurse,

Ms. Houser had indicated that [the victim] had told her the same

story that she had told everyone else. Ms. Houser testified that

[the victim] presented to her with bruises around her neck and

lower abdomen above her groin, scratches on her right side,

bruising on her left inner thigh, and vertical scratches from her

upper to mid back. There were no visual findings in her genital

area. Ms. Houser indicated that [the victim] was very tearful

during the entire exam and acted as if she was ashamed because

she didn't make eye contact and left her hair draped over her face.

After speaking to [the victim], police did conduct a search of the

area where the incident was alleged to have occurred. During the

search, [o]fficers had found a used condom and wrapper in a small

clearing along the nature trail. Photos taken of [] Warrington by

[o]fficers revealed marks on his upper right bicep area, bruising

on his upper right chest area, and a scratch or injury mark to the

back -shoulder area. [] Warrington revealed during interviews

with the police that he had engaged in consensual intercourse with

[the victim].

Trial Court Opinion, 2/13/2019, at 1-4 (record citations and footnotes

omitted).

Warrington was subsequently charged with thirteen offenses. A jury

trial took place in May 2018. On May 23, 2018, the jury convicted Warrington

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of the aforementioned offenses, but found him not guilty of rape, sexual

assault, aggravated indecent assault by forcible compulsion, indecent assault

by forcible compulsion, unlawful restraint, and simple assault.2 On August 21,

2018, the trial court sentenced Warrington to an aggregate term of two and

one-half to five years' imprisonment, followed by nine years of probation. On

August 30, 2018, Warrington filed a timely post -sentence motion, challenging

the weight of the evidence supporting his convictions and seeking a

modification of his sentence. The trial court denied the motion on November

14, 2018. This timely appeal followed.3

In his sole issue on appeal, Warrington contends that the verdict was

against the weight of the evidence.4 Warrington's Brief, at 15-19. A weight

of the evidence claim concedes the sufficiency of the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Our review of

a challenge to the weight of the evidence supporting the verdict is settled:

The weight of the evidence is a matter 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. A new trial is

2 See 18 Pa.C.S. § 3121(a)(1), 3124.1, 3125(a)(2), 3126(a)(2), 2902(a)(1),

and 2701(a), respectively.

3 On November 27, 2018, the trial court ordered Warrington to file a concise

statement of errors complained of on appeal. On November 29, 2018,

Warrington filed a timely Rule 1925(b) statement. On February 13, 2019, the

trial court filed an opinion.

4 Warrington preserved this claim by filing a post -sentence motion. See Pa.

R.Crim.P. 607; Post -Sentence Motion, 8/30/2018, at 4.

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not warranted because of a mere conflict in the testimony and

must have a stronger foundation than a reassessment of the

credibility of witnesses. Rather, the role of the trial judge is to

determine that notwithstanding all the facts, certain facts are so

clearly of greater weight that to ignore them or to give them equal

weight with all the facts is to deny justice. On appeal, our purview

is extremely limited and is confined to whether the trial court

abused its discretion in finding that the jury verdict did not shock

its conscience. Thus, appellate review of a weight claim consists

of a review of the trial court's exercise of discretion, not a review

of the underlying question of whether the verdict is against the

weight of the evidence. An appellate court may not reverse a

verdict unless it is so contrary to the evidence as to shock one's

sense of justice.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en

banc) (citation omitted), appeal denied, 168 A.3d 1237 (Pa. 2017).

Here, Warrington contends the verdict was against the weight of the

evidence because his "version of a consensual, sexual encounter with the

complaining witness was corroborated by the complaining witness' own

testimony."5 Warrington's Brief at 15. He insists the victim gave "conflicting

accounts of what actually occurred ... in order to mislead the investigation."

Id. at 16-17. Warrington claims the victim "intentionally omitted vital

5 Although Warrington does specify the convictions he is challenging, it is

evident his assertion that the sexual encounter was consensual only

undermines his convictions of aggravated indecent assault, 18 Pa.C.S. §

3125(a)(1), and indecent assault, 18 Pa.C.S. § 3126(a)(1). His convictions

of statutory sexual assault, aggravated indecent assault under subsection

(a)(8) and indecent assault under subsection (a)(8), do not require a consent

element. Rather, those offenses are based upon the age of the victim (less

than 16 years of age), and the age of the defendant (four or more years older).

See 18 Pa.C.S. §§ 3122.1(a)(1), 3125(a)(8), and 3126(a)(8).

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information" about her relationship with him when speaking to police and the

SAFE nurse, including the fact that she and Warrington (a) exchanged text

messages about sex; (b) communicated after the alleged assault; and (c) bit

each other, which left marks on her neck. Id. at 17. Warrington asserts the

victim misled both the nurse and police into believing the marks on her neck

were from the assault. See id. Furthermore, Warrington argues the victim's

testimony corroborated his account that the encounter was consensual. See

id. at 17-18. Indeed, she acknowledged she exchanged text messages with

Warrington hours before the encounter in which she stated she wanted to

have sex with him, and she brought condoms to the carnival, which she

showed to him before voluntarily leaving with him. See id. at 18. Moreover,

Warrington maintains the jury believed the encounter was consensual because

they acquitted him of rape, sexual assault, aggravated indecent assault by

forcible compulsion and indecent assault by forcible compulsion. See id. at

19. Accordingly, he argues his convictions were inconsistent with the other

verdicts. See id.

In its opinion, the trial court denied Warrington's weight of the evidence

claim, citing the testimony of the victim. See Trial Court Opinion, 2/13/2019,

at 7-8. Although the court properly cited the standard for a weight of the

evidence argument, its analysis reads more like a sufficiency claim. See id.

Nevertheless, it is evident from the court's discussion that it found no basis to

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overturn the jury's verdict and credibility determinations. We, in turn, find no

abuse of discretion on the part of the trial court. See Rosser, supra.

The victim described in detail the events leading up to and during

Warrington's non-consensual sexual assault. See N.T., 5/22-23/2018, at 35-

47. Both the Commonwealth and defense counsel questioned the victim

regarding the text messages she exchanged with Warrington both before and

after the assault, which in some ways, contradicted her allegations of non -

consent. See id. at 51-55, 62-68, 71-77, 82-83. Nevertheless, the jury found

the victim's testimony credible, and, accordingly, convicted Warrington of the

above -referenced crimes. We agree with the trial court's conclusion that the

verdict does not "shock one's sense of justice." Rosser, supra, 135 A.3d at

1090.

Furthermore, with respect to Warrington's claim that the jury's verdict

was inconsistent, we note:

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 jury's

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

provide a defendant with sufficient punishment.

Commonwealth v. Thoeun Tha, 64 A.3d 704, 711 (Pa. Super. 2013).

Accordingly, Warrington is entitled to no relief.

Judgment of sentence affirmed.

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Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 07/12/2019

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