J-S60041-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY RIVERA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 824 MDA 2019

Appeal from the Judgment of Sentence Entered April 8, 2019

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0003031-2016

BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED NOVEMBER 26, 2019

Anthony Rivera (Rivera) appeals from the judgment of sentence entered 

on April 8, 2019, by the Court of Common Pleas of Berks County (trial court) 

following his convictions for aggravated assault, rape, sexual assault, 

terroristic threats, possessing instruments of crime, and two counts of simple 

assault.1 Rivera challenges the sufficiency of the evidence to sustain his 

aggravated assault conviction and contends that all of his convictions were 

against the weight of the evidence. We affirm.

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a)(1), 3121(a)(1), 3124.1, 2706, 907(a), 2701(a)(1), 

2701(a)(3).
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I.

The trial court summarized the facts of this case as follows:

After a tumultuous year-and-a-half, Rita Rivera (“the Victim”) and 

Appellant ended their romantic relationship in 2016, but the two 

remained in contact. (Notes of Testimony of Trial from November 

27-28, 2018 “N.T.” at 62-65). Therefore, when on or about April 

23, 2016, the Victim was awoken from sleep to someone knocking 

on the front door of her Chestnut Street apartment in the City of 

Reading, and she recognized Defendant as the person knocking, 

she opened the door, thinking that Defendant merely wanted to 

talk. (N.T. 65-68). Unfortunately, when the Victim opened the 

door, Appellant pushed the door in and forced his way into the 

apartment. (N.T. 66-68). Appellant then pushed the Victim 

toward her bedroom and told the Victim that he was coming to kill 

her. (N.T. 68).

Arriving at the bedroom, the two began to struggle and Appellant 

then took out a ten-inch knife from a cart that he had with him, 

put it to the Victim's face and told her that he would slash her 

throat. (N.T. 69-70). On the bed, Appellant was situated on top 

of the Victim with his knees in her back and his hands holding her

shoulder and neck. (N.T. 72). Appellant began to punch the 

Victim in the face and repeatedly told her that he was going to kill 

her. (N.T. 71-72). Appellant demanded that the Victim close her 

eyes and told her that he had a gun, though the Victim never 

actually saw the gun. (N.T. 73).

After telling the Victim that he wanted to rape her, Appellant then 

pulled down the Victim's pants and underwear, proceeded to rape 

the Victim and then rubbed ejaculate onto her face. (N.T. 73). 

Appellant punched the Victim in the jaw in order to force her 

mouth open, then poured what the Victim believed to be fabric 

softener into her mouth and began choking her. (N.T. 74). During 

the continuing struggle, the Victim was able to turn her face to 

the side and spit the substance out onto the floor and she and 

Appellant continued to struggle. Id.

Appellant abruptly sat back and started crying. (N.T. 76). In an 

attempt to calm the situation and to quell any suspicions of 

Appellant that she might become aggressive, the Victim offered to 

make Appellant coffee.

8 (N.T. 77). However, Appellant refused 

and forced the Victim to accompany him to Appellant’s apartment, 
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which was several blocks away. (N.T. 77-78). When the Victim 

attempted to resist, stating that she would scream along the way, 

Appellant reiterated threats that he had a gun, a knife, a stick and 

other tools in his cart. (N.T. 77).

8 The Victim explained that she was alone, confused 

and without energy and scared that if she appeared 

aggressive, Appellant would reengage the assault. 

(N.T. 76-77).

Reaching Appellant’s apartment, Appellant gave the Victim some 

pills that rendered her unconscious. (N.T. 78). On Sunday, when 

the Victim awoke, she hurriedly dressed and left Appellant’s 

apartment, but Appellant followed her and grabbed the Victim’s 

shoulders, attempting to restrain her. (N.T. 79-80). A neighbor 

then emerged from an adjoining apartment and asked if the Victim 

was okay. Id. With the concerned neighbor providing an 

opportunity for the Victim to get away, the Victim ran into the 

elevator and left the building. (N.T. 80). A few days later, the 

Victim called police because Appellant continued to threaten her. 

Id.

On April 26, 2018, Officer Christopher Bucklin responded to a call 

at 720 Chestnut Street in the City of Reading to meet with a 

reported assault victim. (N.T. 123). When Officer Bucklin arrived, 

he met with the Victim and noticed discoloration on the Victim’s 

face and signs of physical and emotional trauma, including 

fragmented thoughts, frequent weeping and genuine fear. (N.T. 

124-26). Officer Bucklin received the Victim’s account, which was 

consistent with the injuries he observed, and began taking 

photographs of the room where the assault took place. (N.T. 124-

25).

***

Officer Bucklin testified that a search warrant was issued and 

executed on Defendant’s residence. (N.T. 135). During the 

search of Defendant’s apartment, the black cart described by the 

Victim was found. (N.T. 136). On the black cart, a green back

[sic] was found, which contained a blue bottle of fabric softener. 

(N.T. 137). Two knives were also found in Defendant’s apartment. 

(N.T. 137-39).
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The Victim was taken to the Reading Hospital emergency room 

where she was assessed by a nurse specializing in sexual assault 

examinations. (N.T. 113-14). The Victim reported to the nurse 

that she had been held hostage in her apartment by an exboyfriend who had a knife and gun, held the Victim down and 

made her drink laundry detergent. (N.T. 116). After interviewing 

the Victim, the nurse performed an examination of the Victim in 

order to collect various swab specimens. (N.T. 116-17). The 

nurse indicated that no internal trauma was detected, but 

cautioned that she has observed allegations of forcible rape in 

which there is no internal trauma. (N.T. 117). However, the nurse 

did indicate that she observed signs of physical trauma on the 

Victim including discoloration on the Victim’s head and cuts on the 

Victim’s lip and left calf. (N.T. 117-18).

Trial court opinion, 7/15/19, at unnumbered 1-4.

Rivera proceeded to a jury trial. At trial, the Commonwealth and Rivera 

stipulated that no seminal material was found in any of the swabs taken during 

the Victim’s rape kit. (N.T. at 149). However, DNA analysis identified the 

Victim’s blood on two pillowcases and a blanket. (N.T. at 149-50). 

Spermatozoa found on a pillowcase and a blanket matched Rivera’s DNA.

(N.T. at 149-51).

The jury found Rivera guilty of the above-mentioned offenses. The trial 

court sentenced Rivera to an aggregate term of 13 to 35 years of 

incarceration. He filed a timely post-sentence motion, which the trial court 

denied. Rivera then timely filed a notice of appeal and both he and the trial 

court complied with Rule 1925.2

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2 Our standard of review is well-settled:
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II.

Rivera first contends that the evidence was insufficient to sustain his 

conviction for aggravated assault because the Victim did not suffer serious 

bodily injury nor did Commonwealth introduce sufficient evidence that he 

attempted to cause serious bodily injury. In making this argument, he relies 

upon Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1978), for the 

principle that when serious bodily injury does not result, the Commonwealth 

must prove intent to cause serious bodily injury to support a conviction for 

aggravated assault.

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The standard we apply in reviewing the sufficiency of the evidence 

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

most favorable to 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 [this] test, we may not weigh the 

evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

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

Commonwealth v. Lopez, 57 A.3d 74, 79 (Pa. Super. 2012) (citation 

omitted).
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A defendant may be convicted of aggravated assault if he “attempts to 

cause serious bodily injury to another. . . .” 18 Pa.C.S. § 2702(a)(1). The 

Crimes Code defines “serious bodily injury” as “[b]odily injury which creates 

a substantial risk of death or which causes serious, permanent disfigurement, 

or protracted loss or impairment of the function of any bodily member or 

organ.” 18 Pa.C.S. § 2301. Intent to commit aggravated assault may be 

proven by circumstantial evidence or inferred from the totality of the 

circumstances of the offense. Commonwealth v. Palmer, 192 A.3d 85, 96 

(Pa. Super. 2018). Moreover, “the jury [is] permitted to attach significance 

to the natural and probable outcome of [a defendant’s] behavior when 

assessing intent.” Id.

In Alexander, our Supreme Court held that a single punch to the 

victim’s head was not sufficient to infer that the defendant had intended to 

cause serious bodily injury. 383 A.2d at 889. Rivera also cites 

Commonwealth v. Savage, 418 A.2d 629, 632 (Pa. Super. 1980), and 

Commonwealth v. Mayo, 414 A.2d 696 (Pa. Super. 1979), for the 

propositions that pointing a gun at a victim or scratching a victim with a knife

without drawing blood are not sufficient to establish an intent to cause serious 

bodily injury.

3

 Rivera’s claim is based on the premise that each individual part 

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3 We note that in Mayo, the defendant was charged with aggravated assault 

with a deadly weapon, which required proof of intent to cause “bodily injury” 

instead of “serious bodily injury.” Commonwealth v. Mayo, 414 A.2d 696, 
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of the attack would not be sufficient to support his aggravated assault 

conviction. However, in evaluating the sufficiency of the evidence, we assess 

the totality of the circumstances to determine whether intent was proven 

beyond a reasonable doubt. Palmer, supra.

Viewing the record in the light most favorable to the Commonwealth, it 

is clear that the totality of the circumstances of the lengthy attack supports 

the jury’s finding that Rivera intended to cause serious bodily injury. The 

Victim’s testimony established that Rivera did not throw a single punch and 

walk away; rather, he repeatedly punched her in the face, held a knife to her 

throat, and forced fabric softener into her mouth while choking her. (N.T. at 

69-72, 74, 89-90). He also knew that one of the Victim’s arms was weak and 

repeatedly struck that arm to make it harder for her to resist the attack. (N.T. 

at 72, 89). The attack lasted approximately 45 minutes, and Rivera 

repeatedly told the Victim that he would kill her. (N.T. at 71-72, 88). While 

the Victim managed to avoid swallowing the fabric softener by spitting it out 

on her floor, the jury was entitled to conclude that Rivera intended to inflict 

serious bodily injury and such injury could have resulted when Rivera forced 

those chemicals into the Victim’s mouth while choking her.

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702 (Pa. Super. 1979). Relevant to Rivera’s claim, however, is our court’s 

analysis of the defendant’s intent to cause bodily injury, not simply the type 

of injury that resulted.
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III.

Next, Rivera contends that he is entitled to a new trial because the guilty 

verdicts for all of the charges were against the weight of the evidence.4 He 

argues that the Victim’s testimony was incredible, as there were 

inconsistencies between the events as she recounted them at trial and when 

she initially described the attack to Officer Bucklin, her co-worker and the 

nurse who performed her rape kit. Moreover, he argues that the physical 

evidence does not corroborate the Victim’s version of events. We discern no 

abuse of the trial court’s discretion.

“An allegation that the verdict is against the weight of the evidence is 

addressed to the discretion of the trial court.” Commonwealth v. Sullivan, 

820 A.2d 795, 805-06 (Pa. Super. 2003) (citation omitted). However, “[t]he 

trial court will only award a new trial when the jury’s verdict is so contrary to 

the evidence as to shock one’s sense of justice.” Commonwealth v. Olsen, 

82 A.3d 1041, 1049 (Pa. Super. 2013) (citation omitted). To meet this high 

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4 When evaluating a challenge to the weight of the evidence to support a 

conviction, this court does not reweigh the evidence presented at trial, but 

rather evaluates the trial court’s denial of the motion for new trial for an abuse 

of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

An abuse of discretion occurs “where the course pursued represents not 

merely an error of judgment, but where the judgment is manifestly 

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

the action is a result of partiality, prejudice, bias or ill-will.” Id. (citation 

omitted). A trial court’s determination that the verdict was not against the 

weight of the evidence is “[o]ne of the least assailable reasons for granting a 

new trial.” Id. (citation omitted).
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burden, “the evidence must be so tenuous, vague and uncertain that the

verdict shocks the conscience of the court.” Commonwealth v. Akhmedov, 

3443 EDA 2015, at *26 (Pa. Super. July 29, 2019) (en banc) (citation 

omitted). In evaluating the verdict, this court does not independently assess 

the credibility of the evidence, as this is purely within the province of the factfinder. Olsen, supra.

Rivera’s argument is principally based upon discrepancies in the Victim’s 

testimony at trial and the versions of events that she recounted to Officer 

Bucklin, her co-worker, and the nurse who performed her rape kit. See

Rivera’s Brief at 45. He argues that these three witnesses testified credibly, 

but the Victim had told a different story to each of them immediately after the 

events. Id. The discrepancies concern how the Victim ended up at Rivera’s 

apartment after leaving her own, how long she was at each scene, and which 

particular acts took place at each apartment. Id. at 48-49. He also points 

out that the Victim did not immediately tell Officer Bucklin or the nurse that 

she had been drugged by Rivera. Id. Further, the parties stipulated that the 

samples of the fabric softener that were recovered from the floor in the 

Victim’s apartment did not match the fabric softener found at Rivera’s 

apartment. Id. at 50. He also argues that the evidence collected for the 

purposes of the rape kit did not reveal any internal trauma or seminal material 

on the Victim’s person, and that her bruising and cut lip were inconsistent with 

the severity of the attack she described. Id. at 51, 54-55. Finally, he points 
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out that forensic testimony did not reveal any DNA on the knives recovered 

from Rivera’s apartment, even though the Victim testified that Rivera had 

pressed one of the knives to her throat during the attack. Id. at 56.

After careful review of the record, we agree with the trial court that the 

discrepancies that Rivera has identified in the Victim’s testimony are minor,

and it was the proper function of the jury to resolve those discrepancies when 

making credibility determinations. Trial court opinion, 7/15/19, at 

unnumbered 10; Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011)

(citations omitted). Further, while the rape kit did not reveal any internal 

trauma or Rivera’s DNA, the jury could have credited the nurse’s testimony 

that forcible rape does not always result in physical trauma, and that enough 

time had passed between the assault and the rape kit to eliminate any DNA 

evidence. (N.T. at 117, 120-21). The Victim’s testimony and the photos taken 

of her injuries days after the assault further support the jury’s verdict. Finally, 

even though no DNA was found on the knives and the fabric softener 

recovered from Rivera’s home did not match that at the Victim’s apartment, 

the jury was entitled to weigh the testimony and conclude that a knife and 

fabric softener had been used in the attack. The trial court’s conclusions on 

these matters are well supported by the record, and it did not abuse its 

discretion in rejecting Rivera’s challenge to the weight of the evidence and 

denying his motion for a new trial.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/26/2019