J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LEVI LEE EVANS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1050 WDA 2022

Appeal from the Judgment of Sentence Entered February 28, 2022

In the Court of Common Pleas of Westmoreland County Criminal Division

at No(s): CP

- 65

- CR

- 0001345

- 2018

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: May 25, 2023

Appellant, Levi Lee Evans, appeals from the aggregate judgment of

sentence of six to twelve years’ incarceration, followed by two years’

probation, imposed after he was convicted o f rape of an unconscious person

,

18 Pa.C.S. § 3121(a)(3), conspiracy to commit rape of an unconscious person,

18 Pa.C.S. § 903 (a), indecent assault ( without consent ) , 18 Pa.C.S. §

3126(a)(1), and possession with intent to deliver a controlled substance, 35

P.S. § 780

- 113(a)(3)

. Appellant challenges the sufficiency and weight of the

evidence to sustain his sex

- offense convictions. After careful review, we

affirm.

The trial court set forth a lengthy summary of the evidence presented

at Appellant’s non

- jury trial, as follows:

The instant case arises out of an investigation of sexual assaults

of [E.M.] and [K.S.] on January 18, 2018 [,] in Greensburg,

Westmoreland County. The evidence presented at a non [

- ] juryJ

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-

trial established that Patrolman Justin Scalzo, of the City of

Greensburg Police Department, received a call to respond to the

Autumn Brook Apa r t m ents for a possible sexual assault. (Non

Jury Trial Transcript [(]“ [N.T. Trial, ”)] 9/14/21 [,] at 11). Upon

arrival, Patrolman Scalzo stated that he was met by [E.M.] and

[K.S.] who relayed that they were victims of a sexual assault that

occurred the night and morning prior to Patrolman Scalzo ’ s arrival.

( [ Id. ] at 11

- 12). According to Patrolman Scalzo, the victims

identified Benjamin Davis and [Appellant] as th e individuals

accused of committing these assaults. ( [ Id. ] at 12). Patrolman

Scalzo testified that [E.M.] explained [that] she, [K.S.] , Mr. Davis,

and [Appellant] were at her apartment hanging out and using

marijuana when she was given a drink which caused her to

blackout and [,] during that time, she felt as though she was a

victim of sexual assault. ( [ Id. ]

... ). According to Patrolman Scalzo,

[K.S.] reported a similar experience of alleg ed sexual abuse.

( [ Id. ] at 12

- 14). Patrolman Scalzo described [E.M.] as being

“ very emotional ” and “ very much shaken [.”] ( [ Id. ] at 12

- 13).

Patrolman Scalzo testified that [E.M.] was crying, vomiting in the

bathroom, and had “ a look of maybe a traumatic experience upon

her face. ” ( [ Id. ]

... ). According to Patrolman Scalzo, [K.S.] was

“ very withdrawn ” and “ had a worrisome and traumatic look on her

face ” as well. ( [ Id. ] at 13). Pursuant to his investigation,

Patrolman Scalzo indicated that he secured two used condoms,

two empty condom wrappers, and clothing items belonging to the

victims. ( [ Id. ] at 14). Patrolman Scalzo stated that after

speaking with the victims, he suggested that they both go to the

hospital to have a rape kit conducted, and he accompa nied them

to the hospital for that purpose. ( [ Id. ] at 14

- 15).

Patrolman Scalzo testified that he did not detect “ any type of large

odor of an alcoholic beverage ” from the victims which would

suggest that they were “ completely blacked

- out drunk [.”] ( [ Id. ]

at 17). However, Patrolman Scalzo indicated that the victims had

a “ drowsy appearance, which I, kind of, looked at it that they had

possibly had something slipped into a drink and drugged. ”

( [ Id. ]

... ). The parties stipulated that none of the analyses of the

blood and/or urine samples given at the hospital by the victims on

the following day [,] nor any of the drinks collected from [E.M.’s]

residence [,] contained any identifiable date

- rape drug. ( [ Id. ] at

16, 18

- 19).

[E.M.] testified that in January of 201 8, she was living at the

Autumn Brook Apartments in Greensburg. ( [ Id. ] at 22). [E.M.]

indicated that on January 17, 2018, she had plans to hang outJ

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-

with [K.S.] , who was a really good friend of hers, and [K.S.]

invited Benjamin Davis and [Appellant]

. ( [ Id. ] at 22

- 24). [E.M.]

testified that she met Mr. Davis, who she knew as “ Spen Ben ” and

[Appellant] , who she knew as “ Tampa [,]” approximately two

weeks prior to the incident through [K.S.] , and she interacted with

them a little bit over Facebook and met [ them] once or twice.

( [ Id. ] at 23

- 24). [E.M.] testified that she spoke to Mr. Davis on

Facebook prior to the incident, and she told him that she was not

interested in engaging in sex. ( [ Id. ] at 24).

Text message exchanges between [E.M.] and Mr. Davis we re

admitted as Commonwealth ’ s Exhibit One. [E.M. ’s ] message to

Mr. Davis indicated that, “ I ain ’ t looking for dick [.”] ( [ Id. ] at 28).

[E.M.] explained that she meant, “ I wasn ’ t looking to be sexual

with anybody, but I was just pretty much trying to hang out as

friends. ” ( [ Id. ]

... ). A message from [E.M.] two days prior to the

incident stated, “ I ’ m just bluntly putting it out there for all cuz I ’ m

tired of people thinking I need dicked down. ” ( [ Id. ] at 29).

On the night of the incident, [E.M.] testified that she and [K.S.]

met Mr. Davis and [Appellant] at the Sunoco on Mount Pleasant

Road between 9:00 and 10:00 p.m. [,] and drove them to Sheetz

before driving back to [E.M.’s] apartment at around 11:00 p.m.

( [ Id. ] at 29

- 31). Once back at her ap artment, [E.M.] indicated

that they ate their food and smoke d marijuana in her bedroom.

( [ Id. ] at 31). [E.M.] stated that she had smoked marijuana prior

to this incident, and she confirmed that she was familiar with the

sensation that marijuana gave her a nd the effects it had on her

body. ( [ Id. ] at 33). [E.M.] stated that she ended up falling asleep

while smoking which was uncommon for her, and when she was

woken up, she “ didn ’ t feel right ”

— “ I didn ’ t feel like I could move. ”

( [ Id. ] at 33

- 34). [E.M.] testified that she was wearing a pair of

shorts and a shirt when she fell asleep. ( [ Id. ] at 34).

Subsequently, [E.M.] indicated that she was woken up on the

other side of her bed to someone penetrating

... her vagina and a

figure standing behind her, who [m ] she believed to be Mr. Davis.

( [ Id. ] at 35

- 36). [E.M.] testified that she ended up falling back

asleep and was awoken to another figure with dreadlocks, who [m]

she believed to be [Appellant] behind her, penetrating her in her

vagina. ( [ Id. ] at 38

- 39). [E.M.] stated that she was not fully

conscious, and she could not move or scream during these

encounters. ( [ Id. ] at 37

- 38). Additionally, [E.M.] testified that

she was unable to move her body, roll over, or lift her arms. ( [ Id. ]

at 38). Once again, [E .M.] indicated that she was unable to move

or speak, and after being conscious for no more than 20 seconds,J

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-

she fell back asleep. ( [ Id. ] at 39

- 40)

. During these encounters,

[E.M.] testified that [K.S.] was asleep next to her in her bed.

( [ Id. ] at 39

- 40).

[E.M.] stated that she awoke in the morning in the living room

where she was lying naked on a futon with Mr. Davis behind her.

( [ Id. ] at 40

- 41). [E.M.] testified that she was freaking out, she

was extremely dizzy, and she went into the bathroo m and began

calling for [K.S]

. ( [ Id. ] at 41). [E.M.] indicated that [K.S.]

eventually came into the bathroom and revealed that she found

four used condoms on [E.M.’s] bedroom floor. ( [ Id. ]

... ). [E.M.]

testified that she was sick and throwing up. ( [ Id. ] at 43).

According t o [E.M.] , she and [K.S.] then drove Mr. Davis and

[Appellant] to a different Sunoco. ( [ Id. ]

... ). After dropping off

Mr. Davis and [Appellant]

, [E.M.] indicated that she and [K.S.] sat

in the hospital parking lot for a couple hours, and t hen went back

to her apartment before calling the police. ( [ Id. ]

... ). After the

incident, [E.M.] sent Mr. Davis a Facebook message indicating the

following:

Since ya ’ ll wanna treat me like a hoe when I told you I didn ’ t

want dicked down, don ’ t ever hit me up, period. And then

to act like nothing happened? I wasn ’ t even fully awake, let

alone know Tampa touched me. Be glad I ain ’ t being petty.

I got all DNA and condoms and messages.

( See Commonwealth ’ s Exhibit 1; [N.T. Trial] at 46

- 47).

[E. M.] testified that after writing the above message, and while

sitting outside the hospital, [Appellant] called her phone “ trying

to talk things out [.”] ( [ Id. ] at 45). [E.M.] indicated that she was

... certain that she had never been to [Appellant ’s ] reside nce prior

to this incident. ( [ Id. ] at 50).

[K.S.] confirmed that she has known [E.M.] for 12 or 13 years,

she knew [Appellant] for approximately nine years, and she has

known Mr. Davis for about 13 years. ( [ Id. ] at 69

- 70). [K.S.]

testified that on January 17 th into the 18 th of 2018, there were

plans for her, [E.M.] , Mr. Davis, and [Appellant] to get together

at [E.M. ’s ] apartment to watch Netflix and smoke marijuana.

( [ Id. ] at 71). [K.S.] stated that she messaged [Appellant] and

[E.M.] messaged Mr. Davis that they “ wanted no sexual activities

happening ” on the night of the incident. ( [ Id. ] at 72). [K.S.]

confirmed that she and [E.M.] picked up Mr. Davis and [Appellant]

at approximately 10:00 pm to 11:00 pm, they traveled to She etz,

and then went back to [E.M. ’s ] house after midnight. ( [ Id. ] ...)

.J

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Upon arrival back at [E.M.’s] apartment, [K.S.] testified that Mr.

Davis rolled a blunt, [Appellant] broke up a pill, which she believed

to be Xanax, and put it into the blunt, and the four of them smoked

it. ( [ Id. ] at 73

- 74). [K.S.] testified that she has smoked

marijuana before and has used Xanax prior to the date of the

incide nt, and she confirmed that she is familiar with the effects

those drugs, both individually and together, hav e on her body.

( [ Id. ] at 74). After smoking the marijuana, [K.S.] indicated that

she fell asleep wearing clothing; however, [K.S.] testified that she

was awoken to [Appellant] pulling her pants down and “ tapping

his penis on my butt [.”] ( [ Id. ] at 74

- 78)

. [K.S.] said she told

[Appellant] no, and “ he respected that and just moved on to

[ E.M. ] with Ben [.”] ( Id. at 78). [K.S.] testified that at that point

she was not able to move, and she observed [E.M.] on the bed

next to her; however, her body was on th e opposite side of the

bed from where she fell asleep. ( [ Id. ] at 78

- 79).

[K.S.] testified that she observed Mr. Davis next to [E.M.] , who

appeared to be sleeping, trying to take her clothes off; however,

[K.S.’s] vision started to become blurred and her eyes shut.

( [ Id. ] at 79). [K.S.] testified that she woke up again and saw

both Mr. Davis and [Appellant] on top of [E.M.] , and she heard

[E.M.] telling them “ no, to stop, and that she didn ’ t want it [.”]

( [ Id. ] at 79

- 80). After waking up the nex t day, [K.S.] testified

that only she and [Appellant] were in the bedroom at that time.

( [ Id. ] at 80). [K.S.] indicated that she was still unalert and had

difficulty walking, but she heard [E.M.] crying in the shower, and

she asked [E.M.] what happened. ( [ Id. ] at 81). After talking with

[E.M.] and being informed that she was raped by both Mr. Davis

and [Appellant] and in pain, [K.S.] testified that she told Mr. Davis

and [Appellant] to get their belongings and told them that they

were taking them home “ b ecause they did [ E.M. ] wrong [.”]

( [ Id. ]

... ). According to [K.S.] , they dropped off Mr. Davis and

[Appellant] , waited in the hospital parking lot for two hours, and

then returned back to [E.M. ’s ] apartment and called the police.

( [ Id. ] at 82

- 83).

[K.S.] testified that during this time, she was texting back and

forth with [Appellant] via Facebook. ( [ Id. ] at 82

- 83). During the

non [

- ] jury trial, the Commonwealth introduced screenshots of

Facebook message exchanges between [K.S.] and [Appellant]

, whose nam e appeared as “ Tellemboutdat [.”] ( [ Id. ] at 83

- 85;

See Commonwealth ’ s Exhibit Two.) Communication between

[K.S.] and [Appellant] revealed that [K.S.] messaged, “ O[h] God,

I ’ m piss[ed] off cus shes crying cus y ’ all played her that ’ s [weirdJ

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-

as fuck truth]. ” ( [ N.T. Trial ] at 86

- 87). [Appellant] then

responded “ how [,”] to which [K.S.] replied, “ [C]us u ain ’ t asked

her to fuck her, you just did. ” ( [ Id. ] at 86

... ). [Appellant] replied,

“ [I]t looks like she cool wit it. U feel, fell asleep n left her now,

datz that ’ s weird as fuck truth. ” ( [ Id. ]

... ). Additionally, the

messages revealed that [Appellant] wrote, “ [T]ell her I said my

fault didn ’ t think she cared. ” ( [ Id. ] at

... 87).

[Appellant] also elected to testify during the non [

- ] jury trial.

[Appellant] state d that he first met [E.M.] through [K.S.] , after

New Year ’ s of 2018, and they smoked marijuana. ( [ Id. ] at 103

- [] 04). [Appellant] testified that prior to the incident, he and

[E.M.] had sex three to four times, including at his residence.

( [ Id. ] at 104). [Appellant] indicated that on the date of the

incident, [K.S.] invited him over to [E.M. ’s ] apartment, and [K.S.]

told him to invite a friend, and he invited Mr. Davis. ( [ Id. ] at

105). [Appellant] testified as soon as they arrived back at [E.M

. ’s ]

apartment, the four of them went into [E.M. ’s ] bedroom and

smoked a blunt that [Appellant] rolled. ( [ Id. ] at 106

- []0 7).

[Appellant] denied putting any Xanax into the blunt. ( [ Id. ] at

106). [Appellant] testified that after they were done smoking

wee d, “ [I] slapped my dick off [K.S.’ s ] butt [,”] and asked [K.S.]

if she wanted to have sex, but [K.S.] said no. ( [ Id. ] at 109, 115

- [] 16). [Appellant] claims that [K.S.] was not passed out at that

time. ( [ Id. ] at 116). According to [Appellant] , while in the

bedroom in the presence of Mr. Davis and [K.S.] , he then asked

[E.M.] if she wanted to have sex, and [E.M.] said she did not care.

( [ Id. ] at 109

- [] 10). [Appellant] indicated that he then had

consensual sex with [E.M.] while [K.S.] was lying on the bed next

to her, and after he was finished, he observed [E.M.] get up and

walk out of the room. ( [ Id. ] at 110). [Appellant] testified that

Mr. Davis was not in the room at this time. ( [ Id. ] at 111).

[Appellant] denied forcing [E.M.] in any way and denied that she

was unconscious while he was having sex with her. ( [ Id. ] at 112).

[Appellant] indicated that he used a condom while having sex with

[E.M.]

. ( [ Id. ] at 131).

[Appellant] initially testified that he never saw Mr. Davis have sex

on the date of the incident; however, he later recanted and

indicated that “ I just remembered that the bed was shaking, so

they probably could have been having sex [.”] ( [ Id. ] at 117, 136).

[Appellant] later confirmed that he did observe Mr. Davis have sex

with [E.M.]

. ( [ I

d. ] at 142). On the following morning, [Appellant]

indicated that all four of them smoked marijuana again [,] and

then [E.M.] and [K.S.] dropped him and Mr. Davis back off. ( Id.J

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-

at 118

- [] 19). After they were dropped off, [Appellant] testified

that he and [E.M.] were texting each other. ( [ Id. ] at 119

- []2 0).

[Appellant] denied conspiring with Mr. Davis to rape or sexually

assault the victims. ( [ Id. ] at 122). On cross

- examination,

[Appellant] testified that the reason why he and Mr. Davis were

invited to [E.M. ’s ] apartment was to have sex and smoke. ( [ Id. ]

at 123

- [] 24). [Appellant] testified that while engaging in sex with

[E.M.] , he did not think [E.M.] “ liked it ” because she was not

moaning and did not say anything during sex. ( Id. at 133

- [] 36).

[Appellant ’s ] mother, Stephanie Hudson [,] also testified at trial.

Ms. Hudson testified that on a date prior to the date of the

incident, [E.M.] was at Ms. Hudson ’ s residence with [Appellant]

. ( [ Id. ] at 148). The parties made the fol lowing stipulations at the

non [

- ] jury trial: If called as character witnesses for [Appellant]

, Westmoreland County Prison inmates Erza Grant, Jesse Lawson,

and Elijah Vento would testify that [Appellant] had a reputation as

a peaceful, law

- abiding person i n the community of Greensburg.

( [ Id. ] at 154

- [] 60). The parties also stipulated that Mr. Grant had

pending charges for attempting to murder three law enforcement

officers in the City of New Kensington; Mr. Lawson had current

pending charges for aggravated assault; and Mr. Vento had

current pending charges for possession of a firearm and hindering

apprehension. ( [ Id. ]

... ).

Trial Court Opinion (TCO), 11/4/2 2 , at 1

- 9.

Based on this evidence, the court convicted Appellant of the above

stated offenses. On Febr uary 29, 2022, the court sentenced him to the

aggregate term set forth supra

. Appellant filed a timely , post

- sentence

motion . After the court denied Appellant’s post

- sentence motion on

September 9, 2022 , Appellant filed a notice of appeal on September 13

,

2022. 1 He thereafter complied with the trial court’s order to file a Pa.R.A.P.

_________________ __________ ______ ____ _______

1 By order dated September 8, 2022, and entered on September 9, 2022, the

trial court denied Appellant’s post

- sentence motion by operation of law.

P ennsylvania Rule of Criminal Procedure 720(B)(3)(a) requires judges to

decide post

- sentence motions within 120 days of filing. If the judge fails toJ

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-

1925(b) concise statement of errors complained of on appeal. On November

4, 2022, the court filed its Rule 1925(a) opinion. Herein, Appellant states two

issues for our review:

1. Whether the Commonwealth produced sufficient evidence to

convict ... Appellant of i ndecent a ssault [(] w ithout c onsent [)]

when ... Appellant’s actions were de minim us [ sic ] and

discontinued once consent was explicitly revoked?

_________________ __________ ______ ____ _______

decide the motion or grant an extension within that timeframe, the motion

“shall be deemed denied by operation of law.” Id. When a post

- sentence

motion is denied by operati on of law, the clerk of courts must enter an order

“forthwith” on behalf of the court stating that the post

- sentence motion is

deemed denied. Pa.R.Crim.P. 720(B)(3)(c). This Court has previously held

that a breakdown occurs when the clerk of courts fails to enter an order

deeming a post

- sentence motion denied by operation of law and notifying the

defendant of the same. See Commonwealth v. Perry , 820 A.2d 734, 735

(Pa. Super. 2003). When a trial court denies a post

- sentence motion after the

120

- day perio d and the appellant then appeals within 30 days of the date of

that decision, this Court has found that the notice of appeal is timely. See

id. ; see also Commonwealth v. Braykovich , 664 A.2d 133 (Pa. Super.

1995) (holding t hat the appellant’s notice of ap peal, filed within 30 days of

the untimely order d enying post

- sentence motion, was timely).

Appellant filed a timely post

- sentence motion with in 10 days of his

j udgment of s entence. Pursuant to Rule 720(B)(3)(a), the trial court was

required to decide the motion by July 5, 2022

— 120 days after the motion

was filed. The trial court did not decide the motion by that date, nor did

Appellant ask for an extension of time for the trial court to decide the motion.

Accordingly, after 120 days passed, the clerk of courts was required to

immediately enter an order denying the motion by operation of law. The clerk

of courts did not enter the appropriate order in this case. The trial court

eventually denied the post

- sentence motion by operation of law on Sep tember

9, 2022. Appellant filed a n otice of a ppeal on September 13, 2022. Pursuant

to Perry

, we find that there was a breakdown in the operation s of the court

, and we allow the instant appeal to proceed, as Appellant’s n otice of a ppeal

was filed within 3 0 days from the date that the order denying his post

sentence motion was entered on the docket.J

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-

2. Whether Appellant’s convictions were against the weight of the

evidence due to the conflicting and disparate testimony of the

alleged victims and the lack of supporting physical evidence?

Appellant’s Brief at 2 (unnecessary capitalization omitted)

.

Appellant first challenges the sufficiency of the evidence to sustain his

conviction of indecent assault

.

“W hether the evidence was sufficient to sustain the charge

presents a question of law. ” Commonwealth v. Toritto

, 67 A.3d

29 (Pa. Super. 2013) ( en banc ). Our standard of review is de

novo

, and our scope of review is plenary. Commonwealth v.

Walls

, 144 A.3d 926 (Pa. Super. 2016). In conducting our

inquiry, we examine [,]

whether the evidence at trial, and all reasonable inferences

derived therefrom, when viewed in the light most favorable

to the Commonwealth as verdict

- winner, [is] sufficient to

establish all elements of the offense beyond a reasonable

doubt. We may not weigh the evidence or substitute our

judgment for that of the fact

- finder. Additionally, the

evidence at trial need not preclude every possibility of

innocence, and the fact

- finder is free to resolve any doubts

regarding a defendant ’ s guilt 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. When

evaluating the credibility and weight of the evidence, the

fact

- finder is free to believe all, part or none of the evidence.

For purposes of our review under these principles, we must

review the entire record and consider all of the evidence

introduced.

Commonwealth v. Trinidad

, 96 A.3d 1031, 1038 (Pa. Super.

2014) (quotation omitted).

Commonwealth v. Rojas

- Rolon

, 256 A.3d 432, 436 ( Pa. Super. 2021),

appeal denied

, 285 A.3d 879 (Pa. 2022)

.

Indecent assault (without consent) is defined as follows:

(a) Offense defined.

-- A person is guilty of indecent assault if

the person has indecent contact with the complainant, causes the

complainant to have indecent contact with the person orJ

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-

intentionally causes the complainant to come into contact with

seminal fluid, urine or feces for the purpose of arousing sexual

desire in the person or the complainant and:

(1) the person does so without the complainant ’ s consent;

1 8 Pa.C.S

. § 3126 (a ) (1). “Indecent contact” is defined as, “[a] ny touching of

the sexual or other intimate parts of the person for the purpose of arousing or

gratifying sexual desire, in any person. ” 18 Pa. C.S. § 3101

.

Appellant contends that this Court has too broadly construed the term

“ other intimate parts,” resulting in “ virtually any part of the human body ”

being included within that phrase. Appellant’s Brief at 12 (citing

Commonwealth v. Fisher

, 47 A.3d 155, 158 (Pa. Super. 2012) ( finding that

the back of a person’s legs fell within the definition of ‘other intimate parts ’ )).

He maintains that it is therefore “ unclear which parts of the human body are

not ‘intimate’ for purposes of 18 Pa.C.S.[] § 3103.” Id. Appellant further

avers that the evidence was insufficient to support his indecent assault

conviction because his “alleged conduct [was], at best, de minimis with

respect to intimate contact[,]” and because there was “implied consent due to

[his and E.M.’s ] prior sexual history.” Id. at 12

- 13.

Both these arguments are meritless. Initially, Appellant is correct that

this Court has

interpreted the phrase “other intimate parts” to encompass more

than sexual organs. For example, in [ Commonwealth v. ] Capo

, [727 A.2d 1126

, 1128 (Pa. Super. 1999), we]

... interpreted “other

intimate parts” to include the shoulders, neck, and back.

Similarly, then

- Judge, now Justice Wecht in Fisher

, supra

, opine d

that “[t]he backs of the legs can be intimate parts of the body,

just as the shoulders, neck, and back were in Capo []... .” Fisher

, 47 A.3d at 158; see also [ Commonwealth v. ] Evans

, [ 901 A.2dJ

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-

528

, 533 (Pa. 2006)] (holding evidence was sufficient to convict

defendant of indecent assault where defendant wrapped his arms

around victim and inserted his tongue into victim ’ s mouth because

such act would not occur outside of sexual or intimate situation).

Commonwealth v. Gamby

, 283 A.3d 298, 313 n.16 (Pa. 2022). Recently,

in Gamby

, our Supreme Court declined “to speak to whether the body parts

at issue in these decisions are properly considered ‘intimate parts

.... ’” Id.

However, the Court adopted our general interpretation of the phrase,

explaining that “other intimate parts” is

not limited to only sexual body parts, but rather, was also intended

to mean a body part that is personal and private, and which the

person ordinarily allows to be touched only by people with whom

the person has a close personal relationship, and one which i s

commonly associated with sexual relations or intimacy.

Id. at 313

- 14 (footnotes omitted).

Under the definition set forth in Gamby

, we have no trouble concluding

that the victim’s bare buttocks is a ‘ sexual or other intimate part ’ as

contemplated by the indecent assault statute. Th e buttocks is unquestionably

a part of one’s body that is ordinarily touched only by people with whom one

has a close personal relationship

, and i t is commonly associated with intimacy.

Indee d, this Court has suggested that one’s buttocks is a sexual or intimate

part of one’s body comparable to one’s genitalia or breasts. See

Commonwealth v. Haahs

, 289 A.3d 100, 104 (Pa. Super. 2022) (“ While

[the] phrase[, ‘ sexual or other intimate parts,’] is not statutorily defined, this

Court has not limited its meaning to a person’s genitalia, buttocks or breasts

for indecent assault.” ). Consequently, the evidence was sufficient to showJ

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-

that Appellant’s act of touching the victim’s bare buttocks with his penis

constituted contact with a ‘ sexual or other intimate part ’ of the victim’s body.

We also reject Appellant ’s argument that indecent contact must be more

than ‘ de minimis ’ to constitute indecent assault, and his assertion that a victim

can impliedly consent to contact simply by having had prior sexual relations

with her attacker. Notably, Appellant cites no legal authority to support either

of these claims

. In any event

, K.S. testified that Appellant’s “tapping his penis

on [her] butt” woke her from sleep. N.T. Trial at 76. We disagree that such

contact was ‘ de minimi s

. ’ We also disagree that the sleeping victim impliedly

consented to this sort of intimate touching simply because she had allegedly

had sexual contact with Appellant on prior occasions

. This is especially true

where the evidence demonstrated that K.S. told Appellant before the incident

that she “wanted no sexual activities happening” that night. Id. at 71

- 72.

Thus, the evidence was sufficient to sustain Appellant ’s conviction of indecent

assault

.

Next, Appellant challenges the weight of the evidence to sustain his sex

offense convictions. He avers:

In many respects, [] Appellant’ s accuser ’ s testimony was so

inconsistent it calls into question whether the crimes in question

occurred. [E.M.] testified she awoke to [] Appellant behind her,

penetrating her vagina with what she believed to be his penis.

[N.T. Trial] at 39. She later recounted that she was not certain

the individual behind her was [] Appellant and she was unsure

whether his penis was being used to penetrate her vagina. Id. at

58

- 59. This testimony alone should be sufficient to vacate []

Appellant’ s conviction for Rape of an Unconscious Victim [,] as

[E.M.] could neither identify [] Appellant as the perpetrator orJ

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-

confirm he was, in fact, engaging in sexual intercourse with her.

See 18 Pa.C.S. [] § 3121(a)(3) (providing [that] a rape is

committed when a person engages in sexual intercourse with a

complainant). To make matters more shocking to the court ’ s

conscience, [E.M.] later admitted [that] she had previously

testified at a [Protection From Abuse (PFA)] hearing [that] she

could not recall the events of this incident at all. Id. 52

- 53. Not

only was [E.M.’s] testimony internally inconsistent, it is admittedly

inconsistent with her prior testimony under oath.

[K.S.’s] testimony only sways the weight of the evidence further

in the direction of [] Appellant [’s] being convicted of offenses he

did not commit. [K.S.] claimed she woke up and saw both Davis

and [Appellant] standing over [E.M.]

, who was saying she didn ’ t

want it. Id. at 79

- 80. This testimony runs counter to [E.M.’s]

own statements, where she noted she could neither move nor

speak during the assault. Id. at 36

- 38. [K.S.] went further in

vividly describing [E.M.’s] legs being in the air with someone

between them. Id. at 80. Again, this testimony was contradicted

by [E.M.]

, who stated she was penetrated from behind. Id. at 35,

39. Nevertheless, [K.S.] testified she never saw [] Appellant

having sex with [E.M]

. Id. at 97.

Given the plain contradictions in testimony by the alleged victims,

the convictions against [] Appellant should be vacated for shocking

the court ’ s sense of justice. When these apparent discrepancies

are viewed in conjunction with the lack of physical evidence,

justice is further wounded. Both alleged victims submitted saliva

samples, blood draws for drug screening, and submitted rape kits.

Id. at 82. In contradiction to their testimony, both individuals

tested negative for the presence of any date

- rape drugs. Id. at

18. All drinks found at the scene also tested negative for the

same. Id. at 19.

Recall

, testimony was given that all four of the individuals in this

matter consumed the same drugs at the same time, with the drugs

seemingly only having an incapacitating effect on the females.

See [ id. ] at 33, 73. The chief mystery in this matter is how both

women became incapacitated after sharing the same drugs with

the two perpetrators who appeared to suffer no ill

- effects. When

examined in light of the lack of date

- rape drugs in either ’ s system,

it becomes apparent that the testimony regarding their

unconsciousness should be granted virtually no weight. The

issues regarding physical evidence, in conjunction with the

inconsistent testimony cannot be overlooked. As such, []J

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-

Appellant should be granted a new trial [,] as all of his convictions

appear to be against the weight of the evidence.

Appellant’s Brief at 14

- 17.

Appellant’s arguments are unconvincing. Initially, he claims that certain

inconsistencies in E.M.’s and K. S .’s testimony cast doubt on whether he

actually had sexual intercourse with E.M.

, yet he himself admitted at trial that

he had sex with E.M. See N.T. Trial at 109, 115

- 16. 2 Thus, the question for

the trial court, sitting as the fact

- finder, was whether that sexual intercourse

– and Appellant’s contact with K.S., which he also admitted, see id.

– was

consensual. While Appellant insists that the court should have discredited the

victims’ claims that they did not consent due to the inconsistencies in their

testimony and the lack of physical evidence to corroborate their claims, the

trial court disagreed. It explained:

In the present case, this [c] ourt had the opportunity to hear and

see the evidence presented and to assess the credibility of the

witnesses. The [c] ourt finds that the entirety of the evidence

presented at trial convinces the [c] ourt that the evidence was in

support of the verdict rendered. Through the duration of the non

-

_________________ __________ ______ ____ _______

2 Appellant also misconstrues E.M.’s testimony about her statements during a

PFA hearing. During cross

- examination, E.M. was asked if she remembered

“testifyi ng at a PFA hearing in this case ... on February 26, 2018[,]” to which

E.M. replied, “Yes.” N.T. Trial at 52. E.M. was then asked if she would agree

that, “at that time, [she] testified that [she] had no recollection of the

incident.” Id. E.M. explained what she meant by that testimony, stating:

“Meaning there [were] parts of the rape that I was not aware, like, of what

had happened. There [were] times that I was not awake.” Id. Inquiring

further, defense counsel then asked E.M. if she meant that “ther e are bits and

pieces that you have no recollection of?” Id. at 53. E.M. responded, “Yes. I

don’t know what happened when I was not awake.” Id. Based on E.M.’s

explanation, we do not discern any significant discrepancies between her PFA

hearing testim ony and her testimony at Appellant’s trial.J

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-

jury trial, the [c]ourt considered the following evidence: the

testimony from [E.M. ]

... that she was penetrated by both Mr.

Davis and [Appellant] at a time where she was unable to move or

talk; the testimony of [K.S.]

... that Mr. Davis and [Appellant] were

on top of [E.M.] and she heard [E.M.] telling them “ no, to stop,

and that she didn ’ t want it ” ; the testimony of [Appellant]

... that

he had sex with [E.M.] while using a condom and he did not think

[E.M.] “ liked it ” because she was not moaning and did not say

anything during sex; the message from [Appellant] to [K.S.]

indicating, “ [I]t looks like she cool wit it ” and “ [T]ell her I said my

fault didn ’ t think she cared ” ; the message from [E.M.] to Mr. Davis

two days prior to the incident saying that “ I ain ’ t looking for dick ”

and “ I ’ m tired of people thinking I need dicked down ” ; the

message from [E.M.] after the incident saying [,] “ since y ’ all want

to treat me like a hoe when I told you I didn ’ t want dicked down,

don ’ t ever hit me up ” ; the message from [Appellant] purportedly

blaming [K.S.] for falling asleep and leaving [E.M.] ; the testimony

of [Appellant]

... that he saw Mr. Davis having sex with [E.M.] ; the

testimony of [Appellant]

... that the reason why he and Mr. Davis

were invited to [E.M.’s] residence was to have sex and smoke; the

testimony of Officer Scalzo [regarding E.M.’s] emotional state

following the incident; the testimony of Officer Scalzo

... that he

located two used condoms on [E.M.’s] bedroom floor; the

testimony of [K.S. ] ... that she was awoken to [Appellant ’s ] pulling

her pants down and tapping his penis against her bare butt asking

her to have sex; the testimony of [K.S.]

... that she said no, but

she was not able to move at that time, and [Appellant ’s ] testimony

... that [,] “ [I] slapped my dick off [ K.S.’s ] ass ” and [that he] asked

[K.S.] if she wanted to have sex, and she said no.

Despite minor inconsistencies, the [c]ourt finds the testimony of

[E.M.] and [K.S.] to be credible and corroborated. Based upon

this [c]ourt’ s review of the entire record, this [c]ourt does not find

that the verdicts are inconsistent or so contrary to the evidence as

to shock this [c]ourt’ s sense of justice.

TCO at 12

- 13.

We discern no abuse of discretion in the court’s decision. We have held

that “ t he lack of corroborating physical evidence does not undermine the

victim ’ s testimony ” when deemed credible by the fact

- finder.

Commonwealth v. Diaz

, 152 A.3d 1040, 1047 (Pa. Super. 2016)

. Indeed

,J

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-

“[t]his 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.” Id. (citing

Commonwealth v. Charlton

, 902 A.2d 554, 562 (Pa. Super. 2006) (citation

and internal punctuation omitted )). Here, there was no dispute that Appellant

had sexual inter course with E.M., and that he touched his penis to K. S .’s bare

buttocks. The court found credible the victims’ testimony that they did not

consent to this contact, during which they were unconscious or semi

conscious

. We agree with the Commonwealth that there was no “ ill

- will, bias,

or prejudice present during the process of the non

- jury trial [,] nor was there

a misapplication of law or manifestly unreasonable exercise of judg [ ment ] ” by

the trial court. Commonwealth’s Brief at 18. Rather, “[t] he [court] properly

used [its] discretion to weigh the eviden ce and determine the credibility of

each witness ’ s testimony. ” Id. Accordingly, the trial court did not abuse its

discretion in denying Appellant’s challenge to the weight of the evidence to

sustain his convictions.

Judgment of sentence affirmed.J

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-

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/25/2023