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* Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. :

:

SALVATOR NZO-MISENG, : No. 382 WDA 2014 

:

 Appellant :

Appeal from the Judgment of Sentence, December 13, 2013, 

in the Court of Common Pleas of Allegheny County 

Criminal Division at No. CP-02-CR-0002634-2006 

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 14, 2015 

 This is an appeal from the judgment of sentence imposed on 

December 13, 2013, in the Court of Common Pleas of Allegheny County. 

Following a jury trial, appellant was found guilty of one count of rape, 

18 Pa.C.S.A. § 3121(a)(3), one count of involuntary deviate sexual 

intercourse, 18 Pa.C.S.A. § 3123(a)(3), and one count of sexual assault, 

18 Pa.C.S.A. § 3124.1. Appellant was sentenced to 42 to 84 months’ 

incarceration. We affirm. 

 We adopt the facts as summarized by the trial court: 

 [M.S.] was a freshman student at LaRoche 

College in the fall of 2006. (Trial Transcript p. 109). 

One evening she visited an acquaintance in his 

dormitory room and consumed at least four shots of 

vodka. (Trial Transcript p. 112). While she was 

there, Defendant appeared and started talking to 

her. (Trial Transcript p. 113). At some point, [M.S.] 
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passed out. (Trial Transcript p. 116). She briefly 

gained consciousness to find a man on top of her 

having vaginal sex with her. (Trial Transcript 

p. 117). She recalled that the man who was 

engaging in intercourse with her was wearing a black 

shirt with a red stripe down the sleeve. (Trial 

Transcript p. 118). This was the outfit Defendant 

was wearing when he entered the dormitory room. 

(Trial Transcript p. 118). [M.S.] again lost 

consciousness. (Trial Transcript p. 119). When she

awoke, she was completely naked lying on the floor 

of her acquaintance’s dormitory room. (Trial 

Transcript p. 119). She quickly gathered her clothes 

and ran to her room. She immediately showered, 

then contacted the counselor in the dormitory and 

reported that she thought she was raped. (Trial 

Transcript p. 119-22). 

 [M.S.] then was transported to UPMC 

Passavant Hospital where she underwent the 

standard post-rape examination. Susan Hirth, the 

emergency room nurse who examined [M.S.], 

testified that the standard procedure for a post-rape 

examination is fairly invasive. (Trial Transcript 

p. 184-85). As part of this examination, numerous 

photographs are taken of all parts of the victim’s 

body where there is evidence of injury. (Trial 

Transcript p. 185, 191). In this case, Ms. Hirth 

noticed bruising and abrasions on the right side of

her face, and ulceration on her labia. (Trial 

Transcript p. 185). All of these injuries were 

photographed and admitted into evidence. 

. . . . 

 Defendant testified at trial and admitted that 

he had sexual intercourse with [M.S.], however, he 

maintained that the victim consented to the sexual 

act. 

Trial court opinion, 10/15/14 at 3-5. 

 Appellant raises the following issues for our review: 
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I. DID THE LOWER COURT ABUSE ITS 

DISCRETION WHEN IT ADMITTED AN 

IRRELEVANT AND INFLAMMATORY 

PHOTOGRAPH OF THE ACCUSER’S GENITALS, 

CAUSING UNFAIR PREJUDICE AGAINST 

MR. NZO-MISENG? 

II. WAS THE VERDICT RENDERED CONTRARY TO 

THE WEIGHT OF THE EVIDENCE PRESENTED 

WHERE THE ACCUSER ADMITTEDLY LIED TO 

MEDICAL STAFF DURING HER “RAPE KIT” 

EXAMINATION, TO THE POLICE DURING THE 

INVESTIGATION, AND TO THE JURY AT TRIAL 

REGARDING HER LEVEL OF INTOXICATION? 

Appellant’s brief at 5. 

 In his first claim, appellant contends that the trial court abused its 

discretion in allowing photographs of M.S.’s genital area to be admitted as 

evidence at trial. Appellant argues that the photographs were inflammatory 

by their very nature and were irrelevant. 

 “The admission of photographs is a matter resting with the discretion 

of the trial court.” Commonwealth v. Tharp, 830 A.2d 519, 530 (Pa. 

2003). In Commonwealth v. Malloy, 856 A.2d 767 (Pa. 2004), our 

supreme court outlined a two-part test for the admissibility of photographs. 

First, the court must decide whether a photograph is 

inflammatory by its very nature. If the photograph

is deemed inflammatory, the court must determine 

whether the essential evidentiary value of the 

photograph outweighs the likelihood that the 

photograph will improperly inflame the minds and 

passions of the jury. 

Id. at 776. 
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 Appellant contends the graphic photos taken during a medical 

examination did not assist the jury in any factual determination before it. 

Appellant asserts the only purpose of the photographs from M.S.’s rape kit 

examination was to improperly inflame the passions and sympathies of the 

jury, thereby distracting it from the matter actually at issue in the trial. 

 To be deemed inflammatory, the photograph “must be of such a 

gruesome nature or be cast in such an unfair light that it would tend to cloud 

an objective assessment of the guilt or innocence of the defendant.” 

Commonwealth v. Dotter, 589 A.2d 726, 729 (Pa.Super. 1991) (citation 

and quotation omitted). Having reviewed the Commonwealth’s Exhibit 11, 

we cannot conclude the trial court abused its discretion in determining the 

photographs were not inflammatory. The colored photographs were taken in 

a hospital setting. While they are intimate, they are not gruesome or 

particularly shocking, as the jury, obviously comprised of adults, would be 

familiar with female genitalia. The photos were were a fair and accurate 

depiction of M.S’s physical condition after the incident. Thus, they were 

relevant and tended to corroborate M.S.’s testimony. 

 Additionally, the trial court addressed the evidentiary value of the 

photographs as follows: 

 Prior to admission of this particular 

photograph, this court viewed the photograph and 

concluded that it was not prejudicial. Further, this 

court stated, I don’t see a whole lot there. I think 

you would be able to cross-examine that. I don’t see 

how it is prejudicial. Thus, this photograph fails the 
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first prong of the Malloy test in that it is not an 

inflammatory photograph. Further, as is noted 

above, [M.S.] underwent a very invasive post-rape 

examination. The testimony of the emergency room 

nurse established that there was an ulceration in the 

vaginal area of [M.S.] that was found during the rape 

examination. Given that the victim does not recall

with specificity the events of that evening, any 

evidence of damage to the vaginal area would be 

highly probative of the facts at issue. Further, the 

photograph was taken by a medical provider during 

the course of an examination. As such, it was not 

inflammatory or prejudicial to such an extent that 

would cause the jury to be inflamed by its admission. 

Thus, the relevant photograph was properly 

admitted. 

Trial court opinion, 10/15/14 at 7 (internal citations omitted). 

 The record indicates M.S. testified that she had not had pain in her 

vagina prior to the date of this incident, but did have pain after being 

assaulted. 

[The Commonwealth] Did you have any pain in any 

part of your body? 

[M.S.] Yes. 

Q. Where did you feel the pain? 

A. Both my vaginal and rectum area. 

Q. Did you have that pain before September 6, 

2005? 

A. No. 

Notes of testimony, 7/9/13 at 128. 

 Emergency Room Nurse Susan Hirth testified regarding the injuries 

she observed on M.S. during her treatment at the hospital: 
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Q. While you are doing the exam for [M.S.], did 

you notice any injuries to her? 

A. Yes. She had bruising, abrasions like on the 

right side of her face, right cheek, right 

eyebrow area. And then on the vaginal exam 

she had like an ulceration on her labia. 

. . . . 

A. I mean, she complained of discomfort in the 

vaginal area, but not in the rectum. 

Id. at 185, 197. 

 The Commonwealth was permitted to introduce a photograph of the 

ulceration of the victim’s vagina as evidenced by the following: 

Q. I’m going to show you what has been marked 

as Commonwealth Exhibit 11. 

A. This is a picture of her -- we do a close-up and

a full body picture. And then the bottom two 

show the area of the ulceration near her 

vagina. 

Q. Do those pictures fairly and accurately 

represent what you saw on September 7, 

2005, when you examined [M.S.]? 

A. Yes. 

Id. at 192. 

 Based on the above, we agree with the trial court’s reasoning in 

permitting the photographs to be admitted into evidence. 

 In his next claim, appellant contends the verdict was against the 

weight of the evidence. Specifically, appellant asserts the jury gave 

improper weight to the testimony of M.S., who acknowledged lying to the 
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police and medical professionals and who did not remember saying “yes” or 

“no” on the night in question. (Appellant’s brief at 27.) This claim lacks 

merit. 

 Our standard of review is as follows: 

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 witness. 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 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. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013), appeal 

denied, 80 A.3d 774 (Pa. 2013). 

 The record indicates the 18-year-old victim, a college freshman, did 

not initially tell either the police or hospital personnel that she had been 

drinking prior to the assault and that she had passed out from alcohol. 

(Notes of testimony, 7/9/13 at 135-136.) However, she admitted she 

initially lied and explained that she did so because she was scared and 

embarrassed. 

[Attorney Shrager]: You have already said to the 

jury that you don’t know why you lied to the police

about saying you drank Pepsi? 

[M.S.]: I do know why I lied. 
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Q. When I asked you a few minutes ago, what did 

you say? When I asked you why you lied. 

A. I was scared, embarrassed. 

Id. at 151. M.S. was further questioned regarding her reasons for not 

telling the police she had been drinking: 

[The Commonwealth]: [M.S.], you indicated you 

didn’t tell the police you were drinking when you 

initially spoke to them on September 7, 2005. Can 

you explain to the jury why you didn’t tell them you 

were drinking that particular morning? 

[M.S.]: I was scared, I was embarrassed. I didn’t

want them to think it was my fault because I was 

drinking. 

Q. Did you ever meet with the detective after that 

day, after September 7? 

A. I think so, yes. Yes, I did. 

Q. At the subsequent meetings, what did you tell 

him about the drinking on that particular day? 

A. I told him I was drinking. 

Id. at 175-176. 

 Based on the above, the jury was informed of the initial false 

statement concerning the role of alcohol that evening and M.S.’s explanation 

for being untruthful. Appellant testified the sex was consensual. (Id. at 

277.) This matter hinged on credibility determinations as to the presence or 

absence of consent. Clearly, the jury believed the victim, M.S., to be more 

credible. It was within the exclusive province of the finder-of-fact to resolve 
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conflicts in the testimony and to believe all, part, or none of the evidence. 

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

denied, 911 A.2d 933 (Pa. 2006). We conclude the trial court did not abuse 

its discretion in denying the weight of the evidence claim. 

 The judgment of sentence is affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/14/2015