J-S73039-17

* Retired Senior Judge assigned to the Superior Court 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

KEITH EDWARD GALVIN, JR.,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 885 MDA 2017

Appeal from the Judgment of Sentence May 4, 2017

in the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0002429-2016

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 04, 2018

Keith Edward Galvin, Jr. (Appellant) appeals from the judgment of 

sentence entered May 4, 2017, after he was found guilty of, inter alia, indecent 

assault. We affirm. 

The trial court summarized the pertinent factual history as follows. 

On March 8, 2016, [B.G.] went to Lords and Ladies in 

Blandon, Berks County, Pennsylvania, for a massage. [B.G.] had 

a scheduled appointment for a massage which was given to her 

as a Christmas gift to help alleviate her neck and back pain. She 

was unable to select her massage therapist when she made her 

appointment. [B.G.] had never received a massage prior to this 

date. 

While at Lords and Ladies, [B.G.] met Appellant, her 

massage therapist, for the first time in the reception area when 

he handed her a health questionnaire to complete. [B.G.] 

completed the paperwork and informed Appellant she was having 

pain in her neck and back areas. Prior to performing the massage, 

Appellant discussed the massage procedure with [B.G.] and also 

offered her aroma therapy and deep tissue massage. Appellant 

then requested that [B.G.] undress to her level of comfortability 
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and he exited the room. [B.G.] removed all of her clothes and lay 

on the massage table underneath a sheet. Appellant knocked and 

re-entered the room with [B.G.’s] permission. 

Appellant began the massage of [B.G.] with her arms and 

then around her neck and shoulders as she was lying on her back. 

Appellant pulled down the sheet covering [B.G.’s] breasts and 

began massaging her pectoral muscles. Appellant then proceeded 

to grope and fondle [B.G.’s] breasts. Appellant fondled both of 

[B.G.’s] breasts multiple times for approximately one minute 

without explanation to [B.G.]. At no time did [B.G.] consent to 

Appellant touching her breasts. 

Appellant left [B.G.’s] breasts exposed and then moved to 

[B.G.’s] right leg. As he was working on her leg, Appellant’s 

fingers brushed [B.G.’s] vagina two to three times. Appellant then 

moved his hand so that he was only rubbing [B.G.’s] vagina which

lasted for one to two minutes. [B.G.] did not give Appellant 

consent to touch her vagina. After Appellant rubbed [B.G.’s]

vagina, he asked twice if [B.G.] was comfortable but she did not 

respond. Appellant apologized to [B.G.] and stated that he 

doesn’t normally do that and he can do a lot of good in this world 

if [B.G.] doesn’t tell anyone about what had happened. Appellant 

then quickly finished [B.G.’s] massage without further incident. 

Appellant informed [B.G.] that if she would keep her mouth shut 

he would remove some of the add-ons from her receipt. [B.G.’s]

receipt indicated that she was not charged for deep tissue 

massage. After [B.G.] left Lords and Ladies, she contacted her 

mother and informed her of what had occurred. [B.G.’s] mother 

called the police who instructed [B.G.], through her mother, to go 

to the strip mall parking lot across the street and wait for her 

father and the police to arrive. 

Officer Alan C. Shinkus of the Northern Berks Regional Police 

Department arrived in the parking lot with [B.G.’s] father. It took 

approximately 10 to 15 minutes for Officer Shinkus to arrive.

Officer Shinkus observed that [B.G.] appeared visibly upset, 

distraught and looked like she had been crying when he arrived 

on scene. Officer Shinkus was with [B.G.] at the strip mall for 

approximately 5 or 10 minutes. Officer Shinkus had a brief 

discussion with [B.G.] about what had occurred and then 

instructed her to follow him back to the Northern Berks Regional 

Police Department where she was interviewed by Officer Shinkus.

[B.G.] was very distraught during the interview.
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Appellant was interviewed by Officer Officer Shinkus. 

Appellant denied fondling [B.G.’s] breasts but admitted to his 

knuckles rubbing against [B.G.’s] vagina as a result of a trip and 

fall that occurred during the massage.

Trial Court Opinion, 7/27/2017, at 2-4 (citations omitted).

Following a bench trial, Appellant was found guilty of indecent assault 

and harassment. On May 4, 2017, the trial court sentenced Appellant to three 

to 23 months’ incarceration and a $400 fine. Appellant filed post-sentence 

motions averring, inter alia, that the verdict was against the weight of the 

evidence. The trial court denied Appellant’s post-sentence motions on May 

15, 2017. Appellant then timely filed a notice of appeal.

1

On appeal, Appellant raises claims challenging the weight and 

sufficiency of the evidence to sustain his indecent assault conviction. 

Appellant’s Brief at 6. 

In reviewing Appellant’s sufficiency claim, we are mindful of the 

following.

[O]ur standard of review of sufficiency claims requires that we 

evaluate the record in the light most favorable to the verdict 

winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. 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. Nevertheless, the 

Commonwealth need not establish guilt to a mathematical 

certainty. Any doubt about the defendant’s guilt is to be resolved 

by the fact finder unless the evidence is so weak and inconclusive 

that, as a matter of law, no probability of fact can be drawn from 

the combined circumstances. 

 

1 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013) (internal 

citations and quotation marks omitted). The Commonwealth may sustain its 

burden by means of wholly circumstantial evidence, and we must evaluate the 

entire trial record and consider all evidence received against the defendant. 

Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

A person commits the crime of indecent assault when “the person has 

indecent contact with the complainant, causes the complainant to have 

indecent contact with the person or 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 [] the person does so 

without the complainant’s consent.” 18 Pa.C.S. § 3126(a)(1).

The separate crime of indecent assault was established because 

of a concern for the outrage, disgust, and shame engendered in 

the victim rather than because of physical injury to the victim. 

Due to the nature of the offenses sought to be proscribed by the 

indecent assault statute, and the range of conduct proscribed, the 

statutory language does not and could not specify each prohibited 

act.

Commonwealth v. Provenzano, 50 A.3d 148, 153 (Pa. Super. 2012) 

(citation omitted).

Appellant contends the evidence was insufficient to sustain his 

conviction because the Commonwealth failed to prove that Appellant “had 

indecent contact with [B.G.] for the purpose of arousing sexual desire in either 

one of them.” Appellant’s Brief at 18. Specifically, Appellant argues that
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there is a factual dispute over the extent to which Appellant made 

contact with [B.G.’s] breasts. Yet, viewing the light most 

favorable to the Commonwealth there is a legitimate purpose, 

besides sexual gratification or arousal, for some contact with 

[B.G.’s] breasts. The pectoral muscles surround the breast, and 

Appellant obtained consent to perform a pectoral massage 

because he believed it would be beneficial to [B.G.] in relieving 

pain and stress. Appellant disputes that [B.G.’s] breasts were 

exposed during the massage, but in the light most favorable to 

the Commonwealth, this fact amounts to a violation of 

professional standards, not a crime under the indecent assault 

statute. 

Likewise, there is a factual dispute as to the extent of 

contact Appellant had with [B.G.’s] vagina. In the light most 

favorable to the Commonwealth, contact with [B.G.’s] vagina was 

in the context of a massage of [B.G.’s] legs and gluteal muscles. 

Appellant was at no time told to stop the massage or stop a 

particular motion. [B.G.] was completely nude and in a selfreported “state of panic” that left her unable to remember certain 

specific details. Vaginal contact during a massage is undoubtedly 

inappropriate and against professional standards, but it only 

amounts to the crime of indecent assault if the contact is for the 

purposes of sexual gratification. There is no evidence, direct or 

otherwise, of sexual gratification or arousal of either party, nor is 

there a basis for a reasonable inference of sexual gratification or 

arousal to be drawn.

Id. at 20-21 (citations omitted). 

The trial court responded to Appellant’s claim as follows. 

In the case at bar, Appellant does not dispute that he had 

indecent contact with [B.G.] but argues that his purpose was not 

for arousing sexual desire in himself and/or [B.G.]. At trial, 

Appellant testified that he had indecent contact with [B.G.] due to 

a trip and fall. However, th[e trial c]ourt disagrees. [B.G.] was in 

a position of vulnerability when lying on the massage table with 

only a sheet between her body and Appellant. Appellant took 

advantage of his position and fondled [B.G.’s] breasts for 

approximately one minute without [B.G.’s] consent. Appellant’s 

assault of [B.G.] continued as he proceeded with the massage of 

her right leg and brushed [B.G.’s] vagina two to three times with 

his fingers. Appellant then moved his hand so that he was only 
J-S73039-17

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rubbing [B.G.’s] vagina which lasted approximately one to two 

minutes and was also done without her consent. As stated by the 

Pennsylvania Superior Court in [Commonwealth v. Evans, 901 

A.2d 528, 533 (Pa. Super. 2006)] “such [acts do] not occur 

outside of the context of a sexual or intimate situation.” 

Appellant’s contact with [B.G.] was not accidental. The length of 

time Appellant spent touching [B.G.’s] breasts and vagina clearly 

indicated to th[e trial c]ourt that he intended to arouse sexual 

desire in himself and/or [B.G.]. Appellant’s actions were in no way 

consistent with his role as [B.G.’s] massage therapist. As 

stipulated to by the parties, if the Commonwealth’s expert, Ms. 

Porambo, would have been called to testify, she would have 

rendered her professional opinion that Appellant acted 

inappropriately during the massage with respect to draping and 

inappropriate touch and did not act in accordance with the 

Professional Standards of Massage Therapy. 

Appellant’s conduct following the assault of [B.G.] is further 

evidence that he intended to arouse sexual desire in himself 

and/or [B.G.]. After Appellant had finished rubbing [B.G.’s]

vagina, Appellant asked [B.G.] twice if she was comfortable but 

[B.G.] did not respond. He explained to [B.G.] that he doesn’t 

normally do this to his clients. Appellant attempted to remedy the 

situation when he offered an apology to [B.G.], explained how he 

can do a lot of good in this world, and removed the charge for 

deep tissue massage from [B.G.’s] bill so that [B.G.] would not 

tell anyone what had happened. It is evident to th[e trial c]ourt 

that Appellant knew his conduct was inappropriate and that he 

had victimized [B.G.] to arouse sexual desire in himself and/or 

[B.G.]. Appellant was hoping to mitigate the damage he had done 

and limit his personal exposure through his subsequent efforts to 

keep [B.G.] from disclosing what had just occurred. The evidence, 

accepted in the light most favorable to the Commonwealth, 

demonstrated the elements of [i]ndecent [a]ssault beyond a 

reasonable doubt. Appellant’s conviction for [i]ndecent [a]ssault 

should be upheld.

Trial Court Opinion, 7/27/2017, at 8-9 (citations omitted).

We agree with the trial court’s conclusions. The Commonwealth 

presented evidence, including the testimony from B.G., which led the court to 

conclude that the type of touching detailed by B.G. was not done as part of a 
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properly-conducted massage. Despite the lack of “direct” evidence to support 

a finding that the contact was made for the purposes of sexual arousal, the 

trial court cited Appellant’s behavior and statements to B.G. as additional 

proof that Appellant was aware of his inappropriate behavior and tried to 

remedy the situation so B.G. would not disclose what had occurred. 

Furthermore, the court posited that this inappropriate touching served no 

legitimate professional purpose and that based on the type of touching and 

length of time during which it occurred, the trial court concluded that the 

inappropriate contact was made to arouse sexual desire in Appellant or B.G.,

without B.G.’s permission. Based on the foregoing, the testimony, if believed 

by the fact-finder, was sufficient to sustain Appellant’s conviction. See

Evans, 901 A.2d at 533 ( “[T]he act of wrapping one’s arms around another 

person and inserting one’s tongue into another’s mouth clearly involves the 

touching of an intimate part of that person. We agree with the Commonwealth 

that such an act does not occur outside of the context of a sexual or intimate 

situation.”). Appellant’s sufficiency challenge fails. 

Next, we begin our review of Appellant’s weight-of-the-evidence 

argument by setting forth our standard of review. 

The decision of whether to grant a new trial on the basis of a 

challenge to the weight of the evidence is necessarily committed 

to the sound discretion of the trial court due to the court’s 

observation of the witnesses and the evidence. A trial court 

should award a new trial on this ground only when the verdict is 

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

Our review on appeal is limited to determining whether the trial 
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court abused its discretion in denying the motion for a new trial 

on this ground.

Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations 

omitted). “Not merely an error in judgment, an abuse of discretion occurs 

when the law is overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, 

as shown by the evidence on record.” Commonwealth v. Handfield, 34 

A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29 A.3d 

3, 6 (Pa. Super. 2011)).

In support of his claim, Appellant argues that this case rested upon the 

credibility of the testifying witnesses, and that B.G.’s 

testimony lacked the credibility necessary to establish that 

Appellant had indecent contact with her for the purpose of 

arousing sexual desire in the person or the complainant, without 

the complainant’s consent. ... A proper reweighing of the evidence 

demonstrates that there is no credible evidence that Appellant 

intentionally touched [B.G.] inappropriately. 

Appellant’s Brief at 25. Specifically, Appellant contends, inter alia, that B.G.: 

(1) “admitted to suffering from anxiety, for which she was prescribed 

Xanax[;]” (2)“consented to a pectoral and gluteal massage, regions close to 

the breasts and genitalia” even though she never had a massage before; (3) 

decided to completely undress; (4) had her eyes closed during the massage, 

and therefore her allegations were based “on the sensation of touch alone[;]” 

(5)did not request the massage to stop at any point; (6) responded “the entire 
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thing” when asked after the massage had ended what her favorite part of the 

massage was.2 Id. at 23-24

In its 1925(a) opinion, the trial court offered the following:

Appellant claims that th[e trial court’s] verdict was against the 

weight of the evidence. However, as set forth above in th[e trial 

court’s] analysis of the sufficiency of the evidence, the verdict was 

not contrary to the evidence as th[e trial c]ourt was presented 

with a case upon which to convict Appellant. Th[e trial c]ourt 

evaluated the evidence, determined the credibility of the 

witnesses and, when assessing the weight of the evidence, 

believed the evidence presented by the prosecution and rendered 

a guilty verdict. ... [T]he verdict was consistent with the evidence 

presented and did not shock anyone’s sense of justice.

Trial Court Opinion, 7/27/2017, at 12. 

We discern no abuse of discretion in the trial court’s conclusion.3 It is 

well-settled that it is within the province of the fact-finder, to review the 

evidence and assess the credibility of the testifying witnesses. See 

Chamberlain, 30 A.3d at 396 (“A motion alleging the verdict was against the 

weight of the evidence should not be granted where it merely identifies

contradictory evidence presented by the Commonwealth and the defendant.”). 

 

2 B.G. admitted at trial that she had responded that the “entire” massage was 

her favorite part, but explained that it was not true and she answered as such 

in order “to get out of there as soon as [she] could.” N.T., 2/10/2017, at 49.

 

3 This was a non-jury trial. It is hard to see how a judge can be shocked by 

his or her own verdict. See Commonwealth v. Walsh, (36 A.3d 613, 622 n. 

5) (“Although we recognize that weight of the evidence claims have been 

addressed in non-jury cases, there is a logical inconsistency in asking a trial 

judge to conclude that her verdict shocked her own conscience.”).
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Accordingly, after a thorough review of the record and briefs, we find 

Appellant has presented no issue on appeal which would convince us to disturb 

his judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/4/2018