J-S74036-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES BENNETT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3636 EDA 2018

Appeal from the Judgment of Sentence Entered October 10, 2018

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

No(s): CP-51-CR-0000232-2016

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 29, 2020

Appellant James Bennett appeals from the judgment of sentence 

entered by the Court of Common Pleas of Philadelphia County after Appellant 

was convicted of indecent assault by forcible compulsion and harassment by 

physical contact.1 Appellant challenges the sufficiency and weight of the 

evidence and argues that the trial court abused its discretion in imposing his 

sentence. After careful review, we affirm.

The trial court aptly summarized the factual background of this case as 

follows:

The complainant was the girlfriend of Appellant’s son on 

September 6, 2015. She was at the Appellant’s house, where her 

boyfriend, and Appellant’s two daughters also lived. The 

complainant was spending the night. At some point her boyfriend 

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 3126(a)(2) and § 2709(a)(1), respectively.
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fell asleep and the complainant was talking on her phone while 

lying on her stomach with her boyfriend’s two year old daughter.

Appellant knocked on the door, which was opened by the 

complainant. Appellant then proceeded to lean over the 

complainant and started rubbing the back of her thighs and 

moving his body against her.

Appellant then got off the complainant and proceeded to ask 

the complainant to come downstairs with him. When she refused, 

he grabbed her arm, digging his nails int[o] her arm. Appellant 

then pulled her through the door. As he pulled her, the 

complainant grabbed the child, thinking the presence of his two 

year old granddaughter would deter Appellant.

Once downstairs, Appellant repeatedly commented on the 

complainant’s appearance, including her “butt.” Appellant sat 

down next to the complainant on the couch, rubbing up against 

her and touching her neck, thighs, and chest. Appellant grabbed 

[the] complainant’s face [and] kissed her. Appellant also rubbed 

against the complainant’s vagina outside her clothes. During this 

time, Appellant was holding the complainant by her arm. At some 

point, something fell, making a noise that caused one of 

Appellant’s children to come into the room, which enabled the 

complainant to escape Appellant.

The next morning the complainant told her boyfriend and 

his aunts (Appellant’s sisters) what had happened, which resulted 

in a physical altercation between her boyfriend and Appellant. 

That morning the complainant also called her girlfriend and told 

her what had happened. Police were called to the location, where 

an officer arrived to find the complainant sitting on the steps 

crying and very distraught. She gave a statement to the police 

about 12 hours after it occurred.

Trial Court Opinion (“T.C.O.”), 3/7/19, at 1-2 (citations omitted).

After being charged in connection with this assault, Appellant chose to 

waive his right to a jury trial and proceeded to a bench trial. On June 29, 

2018, the trial court convicted Appellant of the aforementioned charges. On 

October 10, 2018, the trial court imposed two to five years’ incarceration on 

the indecent assault conviction, but imposed no further penalty on the 
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harassment conviction. Appellant filed a timely post-sentence motion, which 

the trial court subsequently denied.

Near the end of the expiration of the thirty-day time period in which 

Appellant was to file a notice of appeal, his trial counsel filed a motion to 

withdraw. Appellant was thereafter appointed new counsel, who filed a PostConviction Relief Act (PCRA) petition seeking the reinstatement of Appellant’s 

direct appeal rights. The lower court reinstated Appellant’s right to file a notice 

of appeal nunc pro tunc. Appellant filed this timely appeal.

Appellant raises the following issues for our review:

I. Whether the evidence was sufficient to sustain the verdict.

II. Whether the court abused its discretion and committed 

reversible error when the court denied [Appellant’s] postsentence motion, which challenged the weight of the 

evidence.

III. Whether the trial court abused its discretion and committed 

reversible error when the court denied [Appellant’s] postsentence motion, which challenged the discretionary 

aspects of sentence.

Appellant’s Brief, at 11.

We first evaluate Appellant’s challenge to the sufficiency of the 

evidence supporting his convictions. Our standard of review is as follows:

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 the above test, we may not weigh the evidence and 

substitute our judgment for [that of] the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 
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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. Leaner, 202 A.3d 749, 768, (Pa.Super. 

2019) (citation omitted). To reiterate, the jury, as the trier of 

fact—while passing on the credibility of the witnesses and the 

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

evidence. Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. 

Super. 2014) (citation omitted). In conducting review, the 

appellate court may not weigh the evidence and substitute its 

judgment for the fact-finder. Id. at 39-40.

Commonwealth v. Baumgartner, 206 A.3d 11, 14–15 (Pa.Super. 2019).

Appellant does not claim the prosecution failed to prove any particular 

element of the offenses of which he was convicted. Instead, Appellant claims

the complainant did not corroborate her testimony by presenting witnesses to 

testify that she had reported the assault to them and faults the complainant 

for waiting twelve hours to report the assault to the police.

Despite Appellant’s claim that he could not be convicted of sexual 

offenses without corroboration of the complainant’s allegations, “[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.” Commonwealth v. Diaz, 

152 A.3d 1040, 1047 (Pa.Super. 2016) (quoting Commonwealth v. 
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Charlton, 902 A.2d 554, 562 (PaSuper. 2006)). After hearing the 

complainant’s account that Appellant had sexually assaulted her, the trial 

court, as fact finder, was free to find her testimony credible.

Appellant focuses his argument on the credibility of the complainant and 

suggests her testimony was wholly unreliable pursuant to Commonwealth 

v. Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993). In reviewing a similar 

claim, we noted the following:

While challenges based on inconsistent testimony generally 

implicate the weight of the evidence, in Karkaria, our Supreme 

Court observed the following with respect to testimony and 

sufficiency of the evidence.

Normally, the evidence is deemed to be sufficient where 

there is testimony offered to establish each material 

element of the crime charged and to prove commission of 

the offense by the accused beyond a reasonable doubt. The 

question of credibility is left to the [finder of fact] and the 

verdict will not be disturbed if the [finder of fact] determines 

the evidence is worthy of belief.

We have, however, made exception to the general rule that 

the [finder of fact] is the sole arbiter of the facts where the 

testimony is so inherently unreliable that a verdict based 

upon it could amount to no more than surmise or 

conjecture.

Karkaria, 625 A.2d at 1170.

Commonwealth v. Smith, 181 A.3d 1168, 1186 (Pa.Super. 2018), appeal 

denied, 193 A.3d 344 (Pa. 2018).

Appellant does not identify any instances in which the complainant

testified inconsistently, but merely argues that the complainant’s testimony 

was unreliable due to her twelve-hour delay in reporting the abuse. However, 
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this fact was to be weighed by the fact finder in assessing the complainant’s 

credibility. Smith, supra. Appellant is not entitled to relief under Karkaria

as Appellant has not shown that the complainant’s testimony was so 

inconsistent as to be completely irreconcilable.

To the extent that Appellant asks this Court to find the complainant’s 

testimony was not credible, Appellant is raising a challenge to the weight of 

the evidence, not its sufficiency. 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 witnesses. 

Commonwealth v. Johnson, 542 Pa. 384, 394, 668 A.2d 

97, 101 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90, 

136 L.Ed.2d 46 (1996). An appellate court cannot substitute 

its judgment for that of the finder of fact. Commonwealth 

v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 

(1982). 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. Commonwealth v. Hawkins, 549 Pa. 352, 368, 

701 A.2d 492, 500 (1997), cert. denied, 523 U.S. 1083, 118 

S.Ct. 1535, 140 L.Ed.2d 685 (1998).

Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 672–73 

(1999). 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. Tharp, 830 A.2d 519, 528 (Pa.2003) 

(citations omitted).

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 

(2003). A weight of evidence challenge “concedes that sufficient evidence 

exists to sustain the verdict but questions which evidence is to be believed.” 
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Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa.Super. 2014) 

(citation and quotation marks omitted).

Again, Appellant asks this Court to reassess the complainant’s credibility 

and reweigh the evidence presented at trial. As it was exclusively within the 

factfinder’s province to weigh these matters, the trial court was free to believe 

the complainant’s testimony. Champney, supra. As such, we conclude that 

the trial court did not abuse its discretion in denying Appellant’s weight of the 

evidence claim. 

Lastly, Appellant claims that the trial court abused its discretion in 

imposing his sentence. The following principles apply to our consideration of 

Appellant’s challenge to the discretionary aspects of his sentence:

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to an appeal as of right. Prior to reaching the 

merits of a discretionary sentencing issue[, w]e conduct a fourpart analysis to determine: (1) whether appellant has filed a 

timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether 

the issue was properly preserved at sentencing or in a motion to 

reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) 

whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).

When appealing the discretionary aspects of a sentence, an 

appellant must invoke the appellate court’s jurisdiction by 

including in his brief a separate concise statement demonstrating 

that there is a substantial question as to the appropriateness of 

the sentence under the Sentencing Code. The requirement that an 

appellant separately set forth the reasons relied upon for 

allowance of appeal furthers the purpose evident in the 

Sentencing Code as a whole of limiting any challenges to the trial 

court’s evaluation of the multitude of factors impinging on the 

sentencing decision to exceptional cases.
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Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018) 

(quotation marks, some citations, and emphasis omitted).

In this case, Appellant has: (1) timely filed a notice of appeal, (2) 

preserved the instant issue in a post-sentence motion, and (3) included a Rule 

2119(f) statement in his brief. We turn to the next requirement: whether 

Appellant raised a substantial question meriting our discretionary review. 

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. A substantial question 

exists only when the appellant advances a colorable argument 

that the sentencing judge’s actions were either: (1) inconsistent 

with a specific provision of the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.

Id. (quotation marks and some citations omitted).

Appellant claims that the trial court failed to properly account for all the 

factors set forth in 42 Pa.C.S.A. § 9721, as the trial court focused solely on 

the protection of the public and failed to consider the gravity of the offense or 

Appellant’s rehabilitative needs. This Court has held that “an averment that 

the trial court failed to consider relevant sentencing criteria, including the 

protection of the public, the gravity of the underlying offense and the 

rehabilitative needs of Appellant, as 42 Pa.C.S.[A.] § 9721(b) requires,

presents a substantial question” for our review. Commonwealth v. Derry, 

150 A.3d 987, 992 (Pa.Super. 2016) (citation omitted). We may proceed to 

review the merits of Appellant’s sentencing challenge.

In this case, as Appellant’s prior record score rendered him a repeat 

felony offender (RFEL) and his indecent assault conviction carried an offense 
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gravity score (OGS) of 5, the guidelines provided a standard range of 24-36

months with an aggravated/mitigated range of 3 months. Notes of Testimony 

(“N.T.”), Sentencing, 10/10/18, at 3-4; 204 Pa.Code §§ 303.4, 303.15,

303.16(a). As such, Appellant’s two-year minimum sentence for his indecent 

assault conviction falls in the standard range of the sentencing guidelines.

When a defendant is given a standard range sentence, we review the 

sentence to determine if the trial court’s application of the guidelines would 

be “clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). In reviewing a 

sentence, an appellate court shall have regard for: (1) the nature and 

circumstances of the offense and the history and characteristics of the 

defendant; (2) the opportunity of the sentencing court to observe the 

defendant, including any presentence investigation; (3) the findings upon 

which the sentence was based; and (4) the guidelines promulgated by the 

commission. 42 Pa.C.S.A. § 9781(d)(1)–(4). 

Moreover, our Legislature has set forth general sentencing standards 

that require the sentencing court to impose a sentence that is consistent with 

protection of the public, the gravity of the offense in relation to the impact on 

the victim and the community, and the rehabilitative needs of the defendant.

Commonwealth v. Walls, 592 Pa. 557, 569, 926 A.2d 957, 964 (2007)

(citing 42 Pa.C.S.A. § 9721(b)). 

We find that the trial court did not abuse its discretion in imposing a 

standard range sentence in this case after it had considered the applicable 

pre-sentence investigation report (PSI). “Where the sentencing court had the 
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benefit of a presentence investigation report (“PSI”), we can assume the 

sentencing court was aware of relevant information regarding the defendant's 

character and weighed those considerations along with mitigating statutory 

factors.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010)

(citations omitted). Further, this Court has emphasized “where a sentence is 

within the standard range of the guidelines, Pennsylvania law views the 

sentence as appropriate under the Sentencing Code.” Id. 

Moreover, the trial court emphasized its concern for the fact that this 

was Appellant’s third separate conviction for a sexual misconduct offense as 

Appellant had been previously convicted of statutory rape and attempted rape 

in the course of a burglary. N.T. at 8-9, PSI, at 2. The trial court expressly 

stated at sentencing hearing:

I’ve considered the arguments of both counsel, the 

presentence report, the sentencing guidelines, the mental health 

evaluation report, testimony from [Appellant’s] girlfriend, as well 

as [Appellant’s] allocution as well as the evidence that the Court 

heard in this case. [Appellant’s] record as a whole is concerning 

because of the way it relates to this case. There is a need to 

protect society. That need persists despite [Appellant] having 

been accountable for the same type of offense in the past in no 

small way.

This Court is concerned about the repeated harms of the 

same nature demonstrating that [Appellant] is un[deterred] by 

law enforcement. Notwithstanding, for what is worth, I accept 

[Appellant’s] words of remorse today. Time will only tell if that 

lasts. I only have two and a half and five to work with, in any 

event, which happens to be within the guidelines in any event. 

But because I credit the words of remorse, the sentence on 

indecent assault will be two to five years’ incarceration. No further 

penalty on the harassment.
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N.T. at 12-13. 

Based on our review of the record, we cannot conclude that the trial 

court’s sentence was “clearly unreasonable” and find this issue merits no 

relief.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/29/2020